« Who are similar defendants sentenced for similar crimes to Dzhokhar Tsarnaev and John Rowland . . . AND WHY DO WE CARE? | Main | SCOTUS cert petition in Young v. United States asserting 15-year ACCA prison term violates the Eighth Amendment »

January 20, 2015

Background on discretion, disparity and discrimination in Presidential clemency

With apologies for (once again) lecturing too much and running late, I hope that I was able in Tuesday's class to effectively lay out some of the basics of what I call the "Three Ds" of modern sentencing debates: Discretion, Disparity and Discrimination.  I got a bit behind because I was not planning to talk about Presidential clemency powers; but given that Prez Obama is giving a State of the Union Address tonight (sentencing background/commentary here), perhaps now is a good time to use clemency as a good focal point for analyzing the "Three Ds."

On this topic, we must start with a key provision of the U.S. Constitution: Article II, Section 2 provides that the President "shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment."   The US Supreme Court views this authority quite broadly and has repeatedly indicated that Congress cannot limit the President's discretionary use of this clemency power. 

In addition to vesting the President with broad discretion, this clause has resulted in considerable disparity in various ways in various eras as different Presidents have used (or not used) this authority in different ways.  Most notably for modern discussion, a recent investigation by ProPublica produced these notable headlines about modern clemency realities:

In light of these headlines and the realities they reveal about the modern exercise of Presidential clemency and discretion, disparity and discrimination, should we find this additional report comforting?:

January 20, 2015 in Who decides | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Background on discretion, disparity and discrimination in Presidential clemency:


I'm torn. I have generally been in favor of clemency, pardons, and reducing sentences before this class, but the fact that a large majority of those receiving such treatment are predominantly white and with their hands in the pockets of political higher-ups is upsetting. On the one hand, I personally feel that any person being relieved of some time in prison is normally an individual and social good. On the other hand, blindly allowing an entirely discretionary system without any checks to continue in its seemingly obvious racial discrimination and preference-based decision making is normatively deplorable, in my opinion. I would, surprisingly for me, have to say that yes, it is comforting that President Obama has granted clemency more rarely than other presidents. Until some form of equality can be achieved, especially in a criminal justice system that already heavily disfavors racial minorities, parole boards should be making the decisions for release instead of chief executives.

Posted by: Ethan Clunk | Jan 21, 2015 4:50:48 PM

I wouldn't be so fast to judge the policies of the current President until his term is over. We mentioned President's extensively using their clemency power on the last day of office.
It is promising though. President Obama is politically aware of the effect of granting clemency. Additionally, the GOP has accused Obama of being soft, (especially in foreign policy) and this could be part of his larger political strategy.
Finally, I would like to echo Ethan's comment that the *negative* disparity is discomforting because it does seem to be race based.

Posted by: Chris Santoro | Jan 21, 2015 6:48:14 PM

The comments to this entry are closed.