On Tuesday, the White House announced 209 people, including Chelsea Manning and Puerto Rican nationalist Oscar Lopez Rivera, will have their sentences commuted, bringing President Obama's total number of commutations during his presidency to 1,385—more than the total number of commutations issued by the past 12 presidents combined, the White House reports.
Obama also issued 64 pardons, including one for retired Gen. James Cartwright, who was charged with making false statements to the FBI during an investigation into a leak of classified information.
"These 273 individuals learned that our nation is a forgiving nation," wrote White House counsel Neil Eggleston, "where hard work and a commitment to rehabilitation can lead to a second chance, and where wrongs from the past will not deprive an individual of the opportunity to move forward."
Samuel Morison is an attorney who specializes in federal executive clemency and previously worked in the Department of Justice's Office of the Pardon Attorney, which is responsible for making commutation and pardon recommendations to the president. He says historically, it's unusual for a president to exercise his clemency power so much during his last days in office. "Presidents have traditionally started granting commutations and pardons relatively early in their presidency, and they did it on a fairly regular basis throughout the course of their [time in office]," he tells Broadly. "So there wasn't any pressure to do a huge number at the end because they already had a record of doing it all along. That's a much more rational way to do this."
One problem with waiting until the last days, Morison explains, is that doing so "creates a cloud of uncertainty" over those decisions. "Some people will think, 'Oh there's something corrupt about the Manning commutation'—and there probably isn't anything corrupt about it—but when you don't do anything until the very end, it feeds the perception that you have to have special connections to get this done."
The process is pretty straightforward, Morison says, and usually takes a few years to get a decision. A person seeking a reduction of their sentence or a full pardon files an application with the Office of the Pardon Attorney, which then launches an investigation. They look at a variety of factors, such as the nature of the offense, the applicant's criminal record and whether the law they were sentenced under has changed. For a pardon, investigators also consider what an applicant has done with their life since they got out of prison.
The Pardon Office then makes a recommendation to White House Counsel, who then advises the president. But, Morison points out, none of these rules are legally binding for the president. "The president's power is set out in the Constitution, and that's the only thing that constrains him. There's nothing in the Constitution that says anything about the waiting period or filing with the Justice Department or any of that. In fact, the president can pardon somebody anytime after they've committed an offense—they don't even have to be charged or convicted and sentenced. You saw an example of that yesterday when the President pardoned General Cartwright."
According to the Associated Press, more commutations will be announced Thursday, "though [White House] officials said those would focus on drug offenders and would not likely include any other famous names." It's a continuation of Obama's work of bringing attention to the widely held belief that drug sentencing laws are too harsh and often racially discriminatory, Morison says.
But has Obama really made history with his commutation rate, as the White House contends? Morison has mixed feelings about this. While Obama gets credit for highlighting a problem in the law and may have granted as many commutations as the last 12 presidents combined, he says, he's also denied as many as the last 12 presidents combined too. "The absolute numbers are high, but the number of applications are a lot higher, too," he says.
Furthermore, Morison continues, "If you compare the number of grants he's made to the actual prison population, it actually isn't historic." In the early 20th century, he explains, when commutation was the only way a person could get out of prison early, the presidents at that time on average granted about 100 commutations a year, which worked out to be about one percent a year, considering the federal prison population was about 10,000. "Today, the federal prison population is about 200,000, so if Obama was going to equal what his predecessors did a 100 years ago, I would argue that he would have had to have granted about 2,000 commutations a year throughout the course of his presidency."