Access to The Champion archive is one of many exclusive member benefits. It’s normally restricted to just NACDL members. However, this content, and others like it, is available to everyone in order to educate the public on why criminal justice reform is a necessity.
For those lucky enough to be related to, friends with, or have other connections to the president of the United States, the pathway to a pardon or commutation of a sentence is often without significant obstacles or, for that matter, without any obstacle at all. The president has sole and unfettered power to “grant Reprieves and Pardons for offenses against the United States, except in cases of Impeachment.”{1} 1 Article II, Section 2 United States Constitution. The use of such power started with George Washington, who chose to pardon participants in the Whiskey Rebellion, which was one of the first serious challenges to the authority of the government of the United States.{2} 2 The Whiskey Rebellion (1791-1794) was a violent response to the Federal taxation of the production of whiskey. In the aftermath, two men were charged with and convicted of treason and sentenced to hang. George Washington would pardon both. The grant of pardons as a factor of political patronage was rare or practically nonexistent until the administration of James Polk, who pardoned John Freemont as a favor to Sen. Thomas Hart Benton of Missouri.{3} 3 John C. Freemont, the son-in-law of Sen. Thomas Hart Benton of Missouri, was pardoned by President James Polk in 1848. Abraham Lincoln would be the first president to pardon a relative when he granted a pardon to his wife’s half-sister, Mary Todd Lincoln.{4} 4 Emilie Todd Helm, the wife of a Confederate General and the half-sister of Mary Todd Lincoln (the First Lady), was pardoned by President Abraham Lincoln in 1863. Prior to her pardon, she was smuggled into and secretly lived in the White House. This tradition has continued with other relatives of presidents.{5} 5 Roger Clinton Jr. was pardoned by his half-brother, President William Jefferson Clinton, after serving one year of a Federal sentence for possession of cocaine. Charles Kushner, the father of Jared Kushner, President Donald Trump’s son-in-law, was pardoned by President Trump in 2020 after having been convicted of tax evasion and witness tampering. The list of political allies, friends of campaign donors, and supporters of the president is much more expansive. These lucky few might be referred to as the “pardonocracy.”
Thousands of inmates in Federal prisons and tens of thousands of formerly incarcerated individuals are equally deserving of a presidential pardon or commutation of their sentence, but they lack the influence necessary to join the pardonocracy. President Obama recognized this problem when he issued clemency to a broad range of prisoners, many of whom had no special connections. At the invitation of the White House, during the Obama administration, NACDL participated in the Clemency Project, which brought relief to many inmates. Through NACDL’s participation, the president granted clemency to 894 people before the Project was shut down in 2017.{6} 6 Norman L. Reimer, Clemency Project Redux: NACDL Renews Effort to Seek Freedom for the Imprisoned, The Champion, Sept/Oct 2017, at 9. President Trump also acknowledged this issue when he signed the First Step Act in 2018.{7} 7 The First Step Act, Public Law 115-391, was signed into law by President Donald Trump on Dec. 21, 2018. As of December 2024, the Federal Bureau of Prisons identified 3,642 prisoners serving life sentences. Another 23,255 were serving sentences of more than 20 years but less than life. More than 20% of Federal prisoners are older than 51, and over 7% are 60 or older.{8} 8 United States Sentencing Commission “Quick Facts.”
Given the long-acknowledged understanding that the rate of recidivism falls dramatically as a person grows older, the housing of and care for geriatric prisoners constitutes an unnecessary waste of resources that the government could better spend on reentry programs. The hope of reentry often becomes hollow when reentry does not allow for full participation in society. The effects of a sentence typically last well beyond the period of incarceration, as those with criminal records are much less likely to find employment, public housing, or other forms of assistance. Many States disallow required licensure for certain professions for those convicted of criminal offenses. Even in States where no such bar exists, many employers pay for online services to search for criminal histories of prospective applicants. We have effectively created a society of Jean Valjeans.{9} 9 Victor Hugo, Les Misérables (1862).
A Modest Proposal{10}
10 Apologies to Jonathan Swift. It has always been a presidential prerogative to pardon or commute Federal sentences. However, millions of people may be equally deserving of relief under pardon powers enumerated in Article II, Section 2 as those who have previously been invited into the pardonocracy. Is a first-time drug offender who has no prior criminal history any less deserving of a presidential pardon than someone convicted of murder, perjury,{11} 11 Maurice Schick, pardoned by President Gerald Ford, and Micheal Behenna and Clint Lawrence, pardoned by President Donald Trump. obstruction of justice,{12} 12 Lewis “Scooter” Libby, pardoned by President Donald Trump. or witness tampering?{13} 13 Conrad Black, pardoned by President Donald Trump. Is the possession of cocaine any less pardonable for someone who is not the half-brother of the sitting president? Shouldn’t most cannabis-related offenses be considered for pardon in a country where cannabis possession is becoming increasingly legal or subject to civil fines as opposed to criminal prosecution? What if absent some compelling reason, all Federal convictions were reviewed for pardons? What if the Pardon Office was no longer cosseted within the Department of Justice but was an independent commission whose appointed members held terms like the Federal Reserve? What if the role of such a commission was to identify — within the population of incarcerated individuals and those convicted of Federal offenses — and refer pardon and commutation requests to the president? The president would still have the ultimate authority to reject such requests and could still chose — on her or his own initiative — others who might benefit from a pardon. Thousands of deserving people might receive an opportunity to reenter and participate in our society truly, and we would be a better society for it.
About the Author
Christopher A. Wellborn is a founding member and past president of the South Carolina Association of Criminal Defense Lawyers. He practices in state and federal courts, representing clients facing all types of misdemeanor and felony charges, including drug charges, traffic offenses, white collar crimes, and juvenile offenses. Wellborn is sought after nationwide for his experience with unwarranted charges of shaken baby syndrome and child abuse.
Christopher A. Wellborn (NACDL Life Member)
Christopher Wellborn PA
Rock Hill, South Carolina
803-366-1065
cawlaw@comporium.net
www.wellbornlawfirm.com
