Restructuring Clemency: The Cost of Ignoring Clemency and a Plan for Renewal
The use of the pardon power is a necessary element in a fully functioning system of criminal law. Recent presidents, however, have largely ignored this powerful tool, even as many have sought to expand the power of the office in other ways. This Essay seeks both to describe the costs of this trend and to propose important structural reforms to reverse it. Specifically, we advocate for the creation of a clemency commission with a standing, diverse membership. While this commission should have representation from the DOJ and take the views of prosecutors seriously, the commission itself should exist outside the Justice Department, and its recommendations should go directly to the White House. This new model of clemency should also pay attention to data, both to create uniform standards and to focus the use of the pardon power as a management tool. An emphasis on data will also help the new pardon commission make evidence-based decisions about risk and reentry. This is the time to create a better machine of mercy that will serve the Constitution’s mandate no matter who holds the presidency.