Why presidents are wielding their pardon powers less and less

• But beyond sweeping proclamations, Biden has used his pardon power more sparingly than his modern predecessors on ordinary pardon cases, according to Justice Department data.

Caveat: The Office of the Pardon Attorney's public statistics do not record clemency granted through proclamations or executive orders.

• Biden used them to pardon prior federal offenses of simple marijuana possession and veterans convicted and forced out of the military because of their gender identity or sexual orientation.

The big picture: Experts point to structural and political reasons for the shift toward a generally more restrained approach to clemency petitions.

• Throughout U.S. history, the system has become deeply entangled in bureaucratic process, leading to a backlog of ordinary petitions, said Mark Osler, a legal scholar who advocates for sentencing and clemency reform.
• What "Biden seems to be stuck with is a system of analysis that doesn't work and hasn't worked for his predecessors either," Osler said.
• He pointed to a series of seven valves of review a petition must pass through — a pipeline Osler said lengthened under the Biden administration with additional input from the Domestic Policy Council.

Frank Bowman, a legal historian who has written extensively about the pardon power, cited the "nasty politics of our era" as one driving factor.

• "Presidents have become hyper-cautious about making sure that they don't create the grist for the opposition mill," Bowman said.

By the numbers: President Obama granted the most acts of clemency — 1,927 pardons and commutations combined — dating back to Harry Truman, according to DOJ data. But that's just over 5% of the petitions Obama received.

• As of May 2024, Biden had formally granted 153 petitions for clemency — that's 1.6% percent of all requests.

Between the lines: Biden's clemency record is likely far from closed — whether he wins the 2024 election or not. DOJ data shows that every president between Ford and Trump used his clemency power during his final days in office.

• Obama issued 1,185 clemency actions in just over three months in 2017 before he left office. That's just over 61% of all of the petitions he approved.
• But presidents don't always align pardons with their departures: Reagan issued around 8% of his pardons during his final three and a half months in the White House, granting over half of his pardons and commutations in his first four years.

Jeffrey Crouch, a legal scholar who has studied federal executive clemency, said: "Biden is currently at 1.6%, which is a small number, but as the sitting president, he could grant clemency at any time and boost those numbers fairly quickly."

The intrigue: Pardons can be a catalyst for controversy or campaign clout and for some presidents, have been personal in nature.

• A key tenant of Biden's 2020 campaign was a commitment to utilize clemency for non-violent and drug crimes, a promise fulfilled by his mass marijuana pardons.
• In an avalanche of pardons issued in the literal 11th hour before leaving office, former President Trump provoked pop culture buzz when he issued a pardon and commutation to rappers Lil Wayne and Kodak Black, respectively.

• Lumped in with the two musicians were pardons for embattled figures with ties to the administration, including former Trump adviser Steve Bannon over his alleged misappropriation of nonprofit funds and Elliott Broidy, a former Republican National Committee official who pleaded guilty to conspiring to violate foreign lobbying laws.

One key case Biden has vowed not to pursue a pardon in is that of his son, Hunter Biden, who was found guilty last month on federal gun charges.

• Trump has not fully ruled out pardoning himself, despite telling NBC last year it was "very unlikely" he'd do so should he reclaim the White House.
• Bowman said that before the Supreme Court's ruling granting absolute immunity to presidents for official acts, he believed the highest court would strike down a self-pardon. Now, he said he worries, "it's not at all clear... that they would."
• Trump has also said he'd consider pardoning every person convicted in the January 6 riot.

The bottom line: Biden's legacy of clemency so far is one of broad proclamations influenced by societal evolution yet sparse use of the power on individual pardons or commutations.

• Modern presidents have wielded their power to forgive in different ways: Some, like Obama, cast a wider net of clemency while others, like former presidents Trump and Clinton, were scrutinized for cleaning up messes close to home.
• Osler characterized this moment in American clemency history as a potential inflection point, noting Biden — or "someone who takes Biden's place" — could change the system.
• "He's on course to do less with clemency than Trump did," Osler said, "which is really unfortunate."

Go deeper: The politics of Biden's marijuana pardons