We Beg Your Pardons, Mr. President

For a guy who supposedly harbors authoritarian impulses, Donald Trump hasn’t used presidential clemency powers much. In his first 16 months in office, he’s granted only five pardons and commuted one prison sentence. If he wants to outshine his predecessors, he’ll need to up his game.

You could win a bar bet in any saloon in America that still allows political conversations with this question: Which U.S. president in the past 50 years issued the most pardons? The answer is Richard Nixon, and the competition isn’t close.

Although the pardon that comes to mind with Nixon is the one granted to him by his hand-picked successor, Gerald Ford, in Nixon’s 5 ½ years in the White House, he 863 Americans, while commuting the sentences of another 60. This record is counterintuitive. Long before Watergate, Nixon was considered a ruthless character. But as a young man he was a practicing Quaker and 15 months after assuming office he pardoned 82 Americans in a single day – more than George H.W. Bush did in four years.

Commutations and pardon fall under the umbrella of executive clemency, with being another category. Ford and Jimmy Carter, mostly Carter, pardoned 100,000 Vietnam-era draft dodgers — a fraction of the Confederate soldiers pardoned by President Andrew Johnson. More than a century later, Ronald Reagan signed a law forgiving the undocumented status of 3.2 million people who came to the U.S. illegally, most of whom ultimately obtained U.S. citizenship.

When it comes to individual acts of mercy, however, here are the totals for Donald Trump’s other predecessors: Ford (2 ½ years in office) – 382 pardons, 22 commutations; Carter (four years) – 534 pardons, 29 commutations; Ronald Reagan (eight years) – 393 pardons, 13 commutations; George H.W. Bush (four years) – 74 pardons, three commutations; Bill Clinton (eight years) – 396 pardons, 61 commutations; George W. Bush (eight years) – 189 pardons, 11 commutations; Barack Obama (eight years) – 212 pardons, 1,715 commutations.

Although Obama’s record for commutations , it is less generous than it appears. Almost all of them came in the last two years of his presidency as part of an initiative designed to cull federal drug prisoners sentenced under “mandatory minimum” laws that had since been repealed. The administration essentially invited all federal drug offenders to apply for clemency, and though the raw totals in 2016 and 2017 were high, the percentage was low — only 5 percent.

Yet for those who did receive clemency from Obama, it seemed a miracle, which was the exact word used by Alice Marie Johnson, the 62-year-old grandmother released from prison last week by Trump after he was lobbied by Kim Kardashian West. Johnson had served 22 years of a life sentence for a first-time, non-violent drug conviction. 

“I would tell President Trump, thank you so much,” she added. “I am going to make you so proud and I hope that my life will encourage him to do this for others, too.”

That’s the rub, of course. How will these people do out of prison – and who will be blamed if they transgress? Bill Clinton’s aversion to clemency stemmed from a case in Arkansas where he ordered the release of an elderly convict who was terminally ill, but who killed again on his way home from prison.

Although horror stories like that tend to induce caution in politicians, they are rare. Nonetheless, Trump has played it safe with his . Heavyweight champion Jack Johnson is long dead. Lewis “Scooter” Libby, Arizona ex-sheriff Joseph Arpaio, writer Dinesh D’Souza, and sailor Kristian Saucier all felt singled out by prosecutors because of their conservative politics.

The first acts of clemency were issued, fittingly, by the first president, George Washington, who granted amnesty to those who participated in the “Whiskey Rebellion” anti-tax revolt. The authority to grant unconditional pardons was one of few powers a king possessed that the Founders reserved for our chief executive.

It has, of course, an older provenance than English kings, namely the Sermon on the Mount. Expounding on this concept in “The Merchant of Venice,” Shakespeare compared mercy to “a gentle rain from heaven” that is twice blessed. “It blesseth him that gives and him that takes.”

It didn’t feel that way to Jerry Ford and Dick Nixon. Pardoning his predecessor cost Ford the 1976 election. As for Nixon, the rest of the world – Ford included – treated his acceptance of the pardon as an admission of guilt. For our current president, an expansive approach to the presidential pardon power could only help him. Given the racial disparity in prison, it could counter the pervasive narrative fostered by his critics: namely, that he’s hostile to people of color. It was an opportunity he did not take when Hurricane Maria devastated Puerto Rico, but this is an easier problem to solve.

After he pardoned Alice Johnson, criminal justice reformers wondered about , a 51-year-old African-American Tennessean sentenced to 35 years in prison after selling crack to an undercover officer in 1996. Charles was one of 231 nonviolent drug offenders granted clemency in 2016, and he made the most of it: landed a steady job, went to church, volunteered in his community every weekend. But the Justice Department went to court and showed that under the Fair Sentencing Act, Charles wasn’t actually eligible. So back to the slammer he went.

This underscores the problem with the current system. Want to know why George H.W. Bush, a supremely decent guy, granted so many fewer pardons than presidents who were not nearly as nice? Because there’s a system in place for presidential clemency, developed in the executive branch and administered by the Justice Department. It’s not a good one.

“There is an , and they don’t seem to approve anybody,” Kevin Ring, president of Families Against Mandatory Minimums, told me. “It’s a place where petitions go to die.”

This makes sense, as Ring acknowledges. Prosecutors prosecute. So that’s not where an office devoted to mercy should be housed. It should be in the White House, perhaps in the office of faith-based initiatives, which has been moribund under Trump. It would have a lot to do. Alice Johnson and Matthew Charles are not unique. Half of the 183,000 inmates in the federal prison system are incarcerated for drug offenses, compared to about 20 percent in state prisons.

“We’re glad he’s going around the Justice Department,” Ring said. “But we hope there’s some rhyme or reason to it.”

If this president wanted to make history, he could announce that the burden of proof will shift to the Justice Department to explain why drug offenders who apply for clemency should stay behind bars. He could kill two birds with one stone, maybe three. First, his law-and-order attorney general, whom Trump can’t seem to get rid of, might quit on the spot. Second, Trump’s many critics would have to zip the racist talk for a while. The third benefit? That one is sacred: “Blessed are the merciful, for they will be shown mercy.”

Carl M. Cannon is the Washington Bureau Chief for RealClearPolitics. Reach him on Twitter .