The Framers’ Mistake and What to Do about It

Abstract Under the Constitution, the president has sole power to grant federal clemency, either by sentence commutations or pardons. Unlike many other grants of institutional power in the Constitution, which famously features checks and balances by the other branches of government, the president’s clemency power is unchecked; neither the courts nor Congress has any say in it. Over the last few decades, this has resulted in scandalous misuse of the power in which the president has given clemency to members of his family, friends, political allies, party contributors, crooked politicians and office holders with whom he has been aligned, and others unworthy of such special treatment under traditional and more widely accepted criteria. This should be remedied by eliminating the present, unchecked power in the Constitution and replacing it with a clemency commission drawn from members of both parties together with retired federal judges. The commission could cast a broad net and would select candidates for presidential clemency. The president could choose to grant clemency to candidates from the list but could not go outside the list. This would be a step toward restoring political neutrality, integrity, and critical public respect for federal clemency.