Presidential Pardons: Biden and Trump vs. Their Predecessors

        When Thanksgiving and the end of a presidential term align, it is not surprising to see an increase in discussions about the pardon power, prompted by the Official Pardoning of the White House Thanksgiving Turkey. In September, a great article from Rachel Barkow and Mark Osler urged President Biden to exercise the power, and a thoughtful article by Doug Berman earlier this week envisioned more regular clemency evaluations. One can see in the data that presidents tend to grant more pardon and clemency requests as they leave office.  

        President Biden’s potential pardons/clemency, as well as President-elect Trump’s (more on that below), inspired me to examine pardon and clemency over time, comparing modern trends to historical patterns. (Hereinafter, I will typically use “pardon” to mean the granting of a petition for pardon, clemency, commutation, reprieve, and remission, as different terms have been used at different points in history, and parsing the nuance is unnecessary for this post. “Amnesty,” or pardoning an entire class of people (for example, “draft dodgers”), is excluded for reasons explained below.) How does President Biden’s use or nonuse of the pen compare with previous presidents? Viewed historically, roughly how many pardons should we expect a president to grant? 

        I began by compiling data from various federal agencies. At the outset, I note that these data are imperfect because the government’s terminology and collection methodologies have changed a bit over time. But the information is reliable enough from 1900 onward to make some general observations. The primary purpose of this post is to provide some (hopefully interesting) data, not to provide an explanation for every historical nuance or anomaly in the context of the pardon power. I don’t group the pardons by categories like administration, world events, or changes to the criminal code; instead, I simply provide the data over time with a bit of commentary.

        I’ll first present the ten-year averages to offer insight into the use of the pardon power by decade: 

1900–1910	1911–1920	1921–1930	1931–1940	1941–1950	1951–1960
155	253	317	299	314	144

1961–1970	1971–1980	1981–1990	1991–2000	2001–2010	2011–2021
207	172	50	27	45	166

        The increase from 2011 to 2021 was the result of the unusually high number of clemency petitions that President Obama granted—around 1,700 in late 2016 and early 2017. Notably, data from the Office of the Pardon Attorney do not include President Biden’s pardons for simple marijuana possession or veterans who were convicted of engaging in gay sex under a military code because pardons by proclamation to a class of people (rather than by individual petition) are not included in DOJ data. I elected to include only pardons published in the Office of the Pardon Attorney’s data (the granting of individual petitions) because it would be impossible to quantify everyone amnestied in history. We can credit President Biden with amnesty of at least 8,500 individuals who are not reflected in these data, but we don’t know quantitatively what that looks like compared to other presidents who have granted amnesty. I focus on traditional pardons by presidents granting individual petitions.  

        Petition grants dropped rather remarkably in starting in the 1980s, falling well below 100 per year starting with the Reagan Administration in 1981. They don’t exceed 100 per year until President Clinton’s final year in office, then drop to under 50 per year during the George W. Bush Administration and during most of the Obama Administration:

        We might expect to see an increase in petition grants over time based on at least two factors: (1) an increase in the population of the United States and assumed concomitant increases in the prison population, and (2) an increase in convictions as a result of the federalization of crime over time and tough-on-crime policies. But as Rachel Barkow has written, tough on crime apparently entails tough on pardons. Charles Shanor and Marc Miller have also commented on low pardon-petition grants relative to the increase in prison population. According to Margaret Colgate Love, the decrease is also attributable to structural changes in the late 1970s placing pardon recommendations in the hands of the same DOJ officials who are responsible for setting tough-on-crime prosecution policy.  

        The following graph is illustrative of these points. It compares the U.S. population, new inmates received in federal custody, and pardons over time (the former two categories are scaled to fit reasonably within one graph):

We see a sharp increase in new incarcerations beginning in the late 1980s and early 1990s, alongside steady population growth, but a notable decrease in the granting of pardons. Below is the same information focused on inmates received and pardons: (I concluded that analyzing inmates admitted was superior to analyzing overall prison population, but the general observations would be similar.)

        The overall average number of petition grants (again, including clemency) from 1900 to today is around 180 per year. But that is a static figure and does not take into account modern incarceration rates. Before 1980 the grant rate averaged around 4.5% of inmates admitted. If modern presidents adhered to their predecessors' rate, we would probably see around 2,500 pardon/clemency petitions granted per year. By either metric, President Biden—and all modern presidents—fall well short. (We might be inclined to give President Biden credit for the amnesty described above, but recall that amnesty by prior presidents was also excluded from these data.) Finding the exact reasons modern presidents seem to grant fewer petitions is beyond the scope of this post, but feel free to explore that in the comments or via email. I can think of a myriad of reasons to justify a number higher or lower than 2,500 per year, but it's an interesting starting place.

        Another reason I was motivated to explore this issue was President-elect Trump’s promise to exercise his pardon power on behalf of individuals associated with the January 6, 2021, Capitol Breach. I have spoken with D.D.C. judges and practitioners working on those cases, and I reviewed the sentencing files for hundreds of those cases for a law-review article that will be published in the next few weeks, so I know a thing or two about those cases and offenders. Most of the offenders (67%) were convicted of misdemeanors, and most of those have likely already served any period of incarceration. Historically speaking, President-elect Trump’s pardons would be somewhat unusual in that they wouldn’t be relieving a death sentence or reducing a long period of incarceration (for example, George Washington spared John Mitchell and Philip Weigel a potential death sentence for treason after the Whiskey Rebellion), they would be eliminating probation or supervised release among mostly low-level offenders (or potentially restoring rights). I don’t mean to diminish the misdemeanor sentences or the burdens of supervised release, but there is less at stake than what pardonees like Washington’s were spared.   

         So which offenders or offenses will President-elect Trump pardon? Misdemeanors? Nonviolent offenders? All offenders—even violent ones who trained for months in paramilitary combat tactics, stormed the Capitol in combat gear intending to thwart the Electoral Count, and assaulted multiple police officers?  

        I suspect that if you asked an average, informed citizen, they would agree with Alexander Hamilton—that the pardon power is for rare cases of “unfortunate guilt” where a flaw exists somewhere in the system or conviction. Over time, people have probably come to expect a politically motivated pardon or two in every administration. But the widespread use of the power based not on an analysis of the merits, but for seemingly tribal reasons (an apparent continuation of the theme, “crimes committed in my name are OK”), will only further undermine the sense of “justice” in the “system.”  

        I expect that this sense of delegitimization will arise among at least some of Trump’s pardonees themselves—in particular, those convicted of serious or violent offenses. A vast majority of January 6 offenders admitted their unlawful conduct and pleaded guilty, with many of them apologizing and acknowledging how wrong they were. Their slates may soon be wiped clean long before serving their full sentence, based not on a flaw in the system or conviction, but on tribal pardons. They would understandably delight in being released, but even beneficiaries of such pardons may feel that the system is unreliable because the rules are applied inconsistently. The exchanged glances that January 6 pardonees will share with their cellmates as they leave them behind will be telling. 

        When I recreate the above graphs in five years, we will probably see at least one new historic bump like the one we saw during the last few months of the Obama Administration (although we might not if President Trump proceeds by proclamation instead of by granting petitions). Could we see more? It seems reasonable to demand so from both men. Historically, we would expect them to grant around 2,500 petitions per year. This could be an interesting proxy for the Executive’s historical perception of the rate of flaws in the system, around 4.5% of new convictions containing “unfortunate guilt.” 

        President-elect Trump’s newly discovered liberal use of the pardon power should extend to petitioners who objectively deserve it. I suspect that he has the political capital to spend, and it would make his January 6 pardons much more palatable. President Biden should also refill his pen, for among other reasons (as he has essentially admitted), his tough-on-crime policies from the 1990s are the reason some of these potential pardonees were even incarcerated.  

        The power to grant pardon and clemency petitions should be about reaffirming the integrity of the system. If history is a guide, Presidents Biden and Trump would do well to exercise it wisely rather than sparingly. 

 

-Sam J. Merchant