Reviewing some notable data after a notably final clemency flourish by Prez Trump

January 20, 2021

A few months ago, I noted in this post a Pew Research Center piece, “So far, Trump has granted clemency less frequently than any president in modern history,” which assailed then Prez Trump’s “sparse use” of his clemency powers as of Nov 2020. At that time, I called the Pew piece a bit unfair because it compared Trump’s record in his (then-not-complete) first term to mostly two-term Presidents. I also noted that Prez Trump had already granted more clemencies in his first term than had Prez Obama or Prez George W. Bush at a comparable point in their first terms and that some more clemencies were surely to come.

Sure enough, after a bunch of pre-Christmas grants and a final big group of pardons and commutations, (former) President Trump’s clemency record might now be reasonably described as fairly substantial. Though I wish he had done a lot more, and while I still recall getting way too excited back in 2018 when Prez Trump said he was considering 3000 people for clemency, some basic data make the case for him being a significant user of his clemency powers. Of course, there are ample grounds for criticizing the substantive decisions and the opaque process surrounding Prez Trump’s use of his historic clemency power. But reviewing the raw numbers with an eye on the modern history of clemency highlights that it is no longer accurate to even suggest Trump’s use of this power was sparse.

Specifically, according to the data on this Justice Department “Clemency Statistics” page (which seems up-to-date but may be an undercount), Prez Trump is reported to have granted in his four years in the Oval Office a total of 206 clemencies in the form of 117 pardons and 89 commutations. Even that number (which may be a bit low) amounts to nearly three times as many clemencies as our last one-term president: Prez George H.W. Bush granted only 77 total clemencies during his four years in office. Indeed, in only one term, Prez Trump’s used his clemency pen even more than Prez George W. Bush did over two full terms as he granted only 200 total clemencies during his entire eight years in office.

Given that Prez Trump was often eager to lay claim to a Reagan legacy, it is notable that Prez Trump can lay claim to using his clemency powers more in his first term in office than any president since Ronald Reagan. As clemency fans may know, Prez Reagan was something of a marker of two different clemency eras: nearly every president before Reagan used his clemency powers more than nearly every president after Reagan (e.g., Prez Nixon alone used his clemency power more in roughly five years than both Prez Bushes and Prez Clinton combined over 20 years). Prez Barack Obama is the one exception to the ugly modern story of relative clemency disuse because of his remarkable second-term commutation project, but that valuable program was still relatively modest if measured against the massive size of the modern federal prison population.

A focus on commutations makes the clemency record of Prez Trump perhaps especially notable. Leaving Prez Obama out of the analysis, Prez Trump’s 89 commutations amount to more federal prison commutations granted than any other president since Prez Lyndon Johnson and amount to more prison commutations granted than any Republican president since Herbert Hoover!

Because so much of Prez Trump’s early use of his clemency powers was overtly political and/or self-serving, I do not want to be misunderstood as unduly praising how Prez Trump used these critical powers of justice and mercy. But I do want to strongly embrace the sentiments in this recent Slate commentary and headline: “The Presidential Pardon Power Is Good: Trump abused it, but clemency remains an indispensable tool that should be used more often, not less.” As Mark Joseph Stern put it even before the last round of grants:

[A] jaundiced view of clemency is understandable. It is also misguided. The pardon power exists for a very good reason, and its exploitation at the hands of crooks and con men should not give cause for its eradication. It is not some obsolete relic from a simpler era, but a vital safeguard against unjust convictions and disproportionate sentences. The United States’ federal prisons are filled with good citizens who have no business being behind bars. It is unfortunate that Trump has overlooked these individuals in favor of his vile cronies. It would be catastrophic if Trump’s actions prevented future presidents from using the pardon power to free the people who actually deserve clemency.

Thankfully, in his final batch of 143 clemencies, the ratio of deserving individuals to cronies seemed a lot better than in early rounds. Regular readers know I have been advocating for reform of the clemency process for more than a decade, and I hope that becomes the focal point for continued calls for reform. But imperfect and even poor use of the clemency power still seems to me better than no use at all. I still wish Prez Trump did a lot more and a lot better with his clemency power, but now it is time to focus on urging Prez Biden to do a lot more and a lot better with this power ASAP.

A few of many recent related posts:

UPDATE: There is now an updated version of the Pew Research Center piece available here under the headline “Trump used his clemency power sparingly despite a raft of late pardons and commutations.”