Fewer Hands, More Mercy: A Plea for a Better Federal Clemency System

41 Pages Posted: 8 Sep 2016 Last revised: 29 Dec 2020

See all articles by Mark William Osler

Mark William Osler

University of St. Thomas - School of Law (Minnesota)

Date Written: September 6, 2016


The constitutional pardon power has generated more controversy than mercy over the past three decades. Even President Obama, who has pursued a focused clemency initiative, has struggled to meet historical standards. While changing ideas relating to retribution play a role in this decline, there is another significant factor at play: too much bureaucracy. Beginning around 1980, a review process has evolved that is redundant and biased towards negative decisions. No fewer than seven levels of review take place as cases course through four different federal buildings, a jagged path that dooms the process. For years, this bureaucracy stymied even President Obama’s intention to reduce prison populations; the relative success of his clemency initiative came despite this bureaucracy, not because of it, and only after seven and a half years of futility. This article analyzes the development of this system and the problems it creates before offering solutions based on the experience of state governments and President Ford’s successful use of a Presidential Clemency Board.

Suggested Citation

Osler, Mark William, Fewer Hands, More Mercy: A Plea for a Better Federal Clemency System (September 6, 2016). 41 Vermont Law Review 465 (2017), U of St. Thomas (Minnesota) Legal Studies Research Paper Forthcoming, Available at SSRN: https://ssrn.com/abstract=2835668 or http://dx.doi.org/10.2139/ssrn.2835668

Mark William Osler (Contact Author)

University of St. Thomas - School of Law (Minnesota) ( email )

MSL 400, 1000 La Salle Avenue
Minneapolis, MN Minnesota 55403-2005
United States
(254) 717-7032 (Phone)

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