Presidential Clemency Explained: Why Obama Just Gave 46 Drug Offenders A Ticket Out of Prison

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Last week, President Obama (July 13) commuted the sentences of 46 inmates in federal prison, all of whom were serving time for non-violent drug offenses related to cocaine trafficking.

“These men and women were not hardened criminals,” Obama said in his announcement. “But the overwhelming majority had been sentenced to at least 20 years. Fourteen of them had been sentenced to life for non-violent drug offenses.”

All 46 inmates, many of whom still had years left on their sentences, will be released in November.

In commuting these sentences President Obama was using a unique executive authority granted in Article II of the US Constitution, which states that the president "shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.”

Like supporters today, the Founders argued it necessary for the president to provide relief in cases where the law had been excessively harsh.


Modern day presidents have primarily used this power, known as executive clemency, for pardons and commutations. Pardons restore a convicted offenders legal rights, like the ability to vote, serve on a jury or own a gun. Commutations, like the 46 made last week, reduce the severity of a punishment (but unlike pardons, don’t sweep criminal records under the rug). Presidents can only grant clemency to those convicted of federal offenses (governors typically hold that power for state-level crimes).

Obama has actually been pretty slow to exercise his clemency authority: he didn't issue any during his first three years in office.  The recent commutations, though, mark the most granted in a single day since the administration of President Lyndon B. Johnson. Obama has now commuted 89 sentences to date. Most have been for non-violent drug offenses, including 22 commutations in March.

That's more commutations than those granted by presidents Ronald Reagan, George H.W. Bush, Bill Clinton and George W. Bush combined. It should be noted, though, how rare these commutations actually are: the 89 granted were out of the more than 17 thousand Obama has received, making for a commutation grant rate of about .5%.

Obama's pardon record, though, tells a different story. He's only granted 64, one of the lowest rates in presidential history.

“There are only eight other presidents who have pardoned fewer people,” according to P.S Ruckman Jr, who teaches political science at Rock Valley College in Illinois. “[And] three of them died in office before they could complete a term.”

[Click here for a complete list of all clemency requests granted and denied during Obama's presidency.]

Even with the spike in the prison population, the use of executive clemency, common among many 19th Century presidents, has declined dramatically, and most recent presidents have tended to exercise their clemency powers towards the end of their terms. President Bill Clinton, for instance, who had previously made little use of this power, waited until his very last day in office to grant 140 pardons and several commutations.

Source: DOJ

In its ramping up of clemency relief,  the Obama administration is specifically taking aim at the U.S. criminal system and its recent history of harsh sentencing for non-violent offenses. Last year, the Justice Department announced it would prioritize applications from inmates convicted of non-violent, low-level drug offenses who had already spent more than ten years in prison. The department helped launch the Clemency Project, enlisting more than a thousand volunteer defense attorneys to review clemency applications.

The U.S. prison population exploded over the last three decades: in 1980, state and federal prisons held about 300,000 inmates. The current population exceeds 1.5 million, making it the largest prison system in the world. The federal prison population alone grew from about 24,000 in 1980 to nearly 208,000 today.

Much of this growth was the result of the prolonged War on Drugs, which lawmakers waged heavily throughout 1980s and 1990s as a tough-on- crime tactic. Sentences for non-violent drug offenses were often dramatically extended through new state and federal mandatory minimum sentencing laws (wherein people convicted of specific crimes are sentenced to a fixed minimum number of years in prison).

Mouseover points below to see offenses and original  sentences of the 46 inmates granted clemency and where they're from. (Note: "cocaine base" refers to crack cocaine.). All theses inmates will be released in November. Map produced by Jessica Tarlton.

All 46 inmates granted clemency last week had received strikingly harsh sentences for non-violent drug convictions. Many of these drug laws, enacted during the 1980s crack epidemic,  made penalties for crack cocaine about a hundred times more severe than for cocaine in its powder form. Disproportionately target African-Americans, these laws swept thousands of non-violent drug offenders into prison.

To address this disparity, Congress in 2010 passed the Fair Sentencing Act, which significantly eased the penalties for minor crack possession. However, while some aspects of the new law were made retroactive, thousands of offenders sentenced under earlier guidelines are still behind bars, many years left on their original sentences.

Using clemency to “patch up policy problems” is nothing new, says Douglas Berman, a law professor at The Ohio State University. When America went dry during Prohibition, President Woodrow Wilson pardoned hundreds of people convicted of alcohol related crimes, and his successor pardoned all those who remained in prison after the repeal of the 18th Amendment. Presidents John F Kennedy and Lyndon Johnson, pardoned hundreds of first-time drug offenders sentenced to mandatory minimums under the Narcotics and Control Act of 1956. And President Jimmy Carter famously used the authority to issue a pardon for Vietnam draft-dodgers.

After signing the 46 commutations, Obama reiterated the need for criminal justice reform, noting the rare bipartisan political opportunity at hand.

“Their punishments didn’t fit the crimes,” Obama said in a recent Facebook video.

“We’re at a moment when some good people in both parties, Republicans and Democrats, and folks all across the country are coming together around ideas to make the system work smarter. To make it work better and I’m determined to do my part, wherever I can.”