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Obama’s Historic Commutations Obscure Clemency Record

President Barack Obama commuted the sentences of 214 federal prisoners this week, 67 of whom are serving life sentences. The president has now commuted the sentences of 562 men and women.

The commutations are the result of a clemency review project first advanced by the administration in 2014, which put a small team of lawyers on examining harsh sentences to determine whether they should be shortened to a length commensurate to present day sentencing.

The White House proclaimed, and media outlets eagerly parroted, the line that President Obama “has granted commutations to more prisoners than the past nine presidents combined.” While this is technically true and to some degree worthy of applause, the statistic obfuscates the size and impact of the administration’s use of clemency powers in the age of mass incarceration.

A commutation is a substitution of a lesser penalty. This could mean reducing someone’s sentence to time-served, in which case they could be released immediately. Even more generally, it could be a reduction of any sentence.

In granting this round of commutations, the White House said it imposed conditions for some of the applicants, for which a failure to fulfill could result in the revocation of the president’s mercy. For example, some of those with newly commuted sentences are required to seek “additional drug treatment,” whatever that may be.

While it is important for people with substance abuse disorders to seek and obtain treatment, for former prisoners, the issue is often more complex.

Former prisoners face incredible obstacles to success upon release. In addition to finding housing, getting a job, feeding oneself, and other essential survival tasks, finding, attending, and maintaining fidelity to a drug treatment program is no simple task.The odds are even tougher for those who suffer from mental illness, substance abuse, or both.

One 2012 study published in the journal Addiction Science & Clinical Practice found that “former inmates return to environments that strongly trigger relapse to drug use and put them at risk for overdose.” Another study, from 2010 and produced by CASAColumbia, found that “only 11% of all inmates with substance abuse and addiction disorders receive any treatment during their incarceration.”

While well-intentioned, commuting sentences on the condition of drug treatment could set many former prisoners up for failure.

A president can also forgive a person for their conviction with a pardon. A pardon restores most if not all of an individual’s civil rights “so that in the eyes of the law the offender is as innocent as if he had never committed the offense.” Without expungement, a pardoned felon still has a conviction on their record but is free of most of the legal restrictions placed on ex-convicts.

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Neither pardons nor commutations are substitutes for criminal justice reform. Nor are they a viable solution to mass incarceration. Yet, the question remains whether the president is doing enough with this executive power to meet the challenge of the day. So, the numbers should be put into perspective.

Screen Shot 2016-08-03 at 4.39.03 PM

Chart by Shadowproof. Data compiled from the Federal Bureau of Prisons (https://www.bop.gov/about/statistics/population_statistics.jsp) and the Department of Justice (https://www.justice.gov/pardon/clemency-statistics)

President Obama received the highest number of clemency and pardon applications in history. In fact, the number of clemency applications the administration received was nearly three times more than requests under George W. Bush. Given the unprecedented size of the federal prison population under his tenure, this may be predictable.

Indeed, the Obama administration has commuted the sentences of more federal prisoners than any of his recent predecessors. He has also pardoned the fewest number of federal prisoners.

Of 2,528 pardon applications received by the Obama administration, the president has only approved seventy or 2.77% of pardon applications. In contrast, George W. Bush, who issued the second-lowest number of pardons, received 2,498 applications and pardoned 189 or 7.57% of applicants. President Bill Clinton pardoned 19.9% of applicants, and President Ronald Reagan 393 or 18.72% of applicants.

In other words, thus far, Reagan showed more mercy to federal prisoners than Obama.

The relative size of the federal prison population is important to examine in relation to the number of clemency requests granted.

Only 0.30% of federal prisoners were granted some form of clemency under the Obama administration. While this is not the lowest (an accolade that belongs to the Bushes, each of whom granted clemency to 0.11% of the average federal prison population for their administrations), President Obama’s clemency rate is less than half of that of the Reagan administration, which granted clemency to 1.04% of the federal prison population. At that time, the average number of prisoners under federal control was 39,000—nearly 174,000 fewer federal prisoners than there are today.

Finally, many of those granted commutations were convicted of nonviolent drug crimes. These individuals have been applause lines in speeches and platforms for both parties, as politicians, including President Obama, have made a great show of their feelings of mercy toward the victims of the war on drugs. If those feelings are sincere, this is a weak gesture to prove it.

View a spreadsheet with more data on clemency for the last five presidents here.

Brazilian President Dilma Rousseff. Photo from UNWomen on Flickr.
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Brian Sonenstein

Brian Sonenstein

Publishing Editor at Shadowproof and columnist at Prison Protest.