President Obama made US justice history on Monday, when he issued 78 pardons and commuted the sentences of 153 prisoners, the most to ever receive clemency in a single day.
With only a few weeks left in office, Mr. Obama is evidently hoping to cement his presidential legacy of clemency with the historic move, bringing the total number of people who have received reduced sentences or pardons at his orders to a total of 1,324 during his eight years in office.
But while Monday's commutation of sentences reflects Obama's view of the United States as a "nation of second chances" for deserving individuals, the president has by far preferred commutations of sentences rather than full-on presidential pardons. As he prepares to leave office, his clemency will be weighed in comparison to other presidents, and the historical forces at play that shaped their decisions to show mercy for imprisoned individuals.
According to the US Department of Justice (DOJ) website, Obama had pardoned only 70 prisoners before the Monday announcement. The mass pardoning brings the total presidential pardons to 148, a figure that pales in comparison with the 1,176 commuted sentences under his tenure. In total, 1,324 individuals have been the beneficiaries of Obama's presidential clemency, but a pardon and a commuted sentence are very different.
"A commutation of sentence reduces a sentence, either totally or partially, that is then being served, but it does not change the fact of conviction, imply innocence, or remove civil disabilities that apply to the convicted person as a result of the criminal conviction," reads a post from the DOJ. "A commutation may include remission (release) of the financial obligations that are imposed as part of a sentence, such as payment of a fine or restitution."
A commutation does not remove the civil disabilities created by a conviction like a presidential pardon would. The right to vote, for instance, would not be restored to a person who was released based on the commutation of a sentence, but would be restored to someone who received a full pardon. While a pardon indicates the president's forgiveness of a crime, however, a pardon is not the same as being declared legally innocent, and Obama actually lags most modern presidents in terms of full pardons.
"For the pardon recipient, it is the story of an individual who has led a productive and law-abiding post-conviction life, including by contributing to the community in a meaningful way," writes Neil Eggleston, White House Counsel to the President, in the White House blog. "For the commutation recipient, it is the story of an individual who has made the most of his or her time in prison, by participating in educational courses, vocational training, and drug treatment. These are the stories that demonstrate the successes that can be achieved – by both individuals and society – in a nation of second chances."
Like the presidents before him, Obama's views on presidential clemency reflect his political attitudes in office. As the first African-American president, he has shown particular concern for a judicial system that disproportionately jails minorities, generally young Hispanic or African-American men imprisoned for drug-related offenses.
"If we can show at the federal level that we can be smart on crime, more cost effective, more just, more proportionate, then we can set a trend for other states to follow as well," Obama said after commuting the sentences of 95 prisoners last year.
The first uses of a presidential pardon to overturn criminal convictions occurred in 1794, when George Washington pardoned John Mitchell and Philip Weigel, leaders of the so-called Whiskey Rebellion, who had been convicted of treason. The rebellion was a violent, if short-lived, revolt against one of the earliest taxes imposed by the fledgling US government on the American populace. Washington's show of mercy against the rebellion's perpetrators was a significant move of reconciliation between the federal government and ordinary American citizens in the early days of the republic.
Since Washington, presidential pardons have directly reflected the historical environment of each president's tenure in office. The first president after the end of the Civil War, Andrew Johnson, pardoned "every person who, directly or indirectly, participated in the late insurrection or rebellion" and granted "amnesty for the offense of treason against the United States or of adhering to their enemies during the late civil war." More than a century later, Gerald Ford pardoned former president Richard Nixon, who had resigned only weeks before in light of his involvement in the Watergate scandal.
Obama, on the other hand, has not focused on more apparently political cases like some of his predecessors. Instead, he is more concerned with righting what he sees as systemic injustices against more ordinary prisoners, with a special focus on non-violent, drug-related crimes. To this end, he created a system of lawyers during his term to sift out potential candidates for clemency from thousands of applicants in order to create a more fair system for potential pardon or commutation. They are assisted by the Clemency Project, which helps promising candidates apply for clemency.
Like most presidents, the bulk of Obama's pardons and sentence commutations has happened near the end of his term in office.
A full list of the prisoners receiving the benefits of Monday's announcement can be found on the White House blog.