The Stroke of a Pen That Could Empty Prisons: Why Executives Keep Their Clemency Powers Locked Away

Somewhere in a state penitentiary tonight, a woman who has served twenty-two years for a nonviolent drug conviction is completing another petition. She has filed three times before. Each application was reviewed, delayed, and quietly denied. The governor who could sign her release with a single executive order will instead spend this week attending fundraisers, issuing proclamations about criminal justice reform, and explaining to reporters why meaningful change requires legislative consensus.

It does not. Not for this.

Executive clemency — encompassing pardons, commutations, reprieves, and sentence reductions — is one of the oldest and most constitutionally unambiguous powers available to American executives. The president holds this authority over federal sentences. Every governor holds it over state convictions. No legislature can block it. No court can overrule it. And yet, by virtually every measurable standard, this extraordinary tool for immediate decarceration sits functionally dormant, deployed with a timidity so profound it borders on deliberate abandonment.

For the movement to dismantle mass incarceration, understanding why this power remains unused — and building the political pressure to change that — is not a secondary concern. It is an urgent strategic imperative.

A Power Built for Exactly This Moment

The framers embedded clemency into the constitutional architecture precisely because they understood that legal systems produce unjust outcomes. Alexander Hamilton described the pardon power in Federalist No. 74 as a necessary check on the severity of the law, a mechanism for mercy when rigid application of statute produces cruelty rather than justice. For most of American history, that theory held imperfect but meaningful practice. Presidents from Lincoln to Carter used clemency expansively, sometimes dramatically.

The modern era represents a rupture. Since the 1980s, clemency grant rates have collapsed at both the federal and state levels. President Obama, who entered office with explicit commitments to criminal justice reform, granted 1,927 commutations — a figure that sounds significant until measured against the roughly 13,000 petitions his administration received and the more than 200,000 people serving federal sentences when he left office. President Biden's record was similarly constrained by political calculation until a flurry of last-minute grants in his final weeks — grants that advocates had been demanding for years.

At the state level, the picture is often worse. Multiple governors across the country have granted zero or near-zero clemencies in recent terms, presiding over swollen prison populations while publicly endorsing the language of reform.

The Political Calculus of Inaction

Why does this happen? Ask anyone who has worked inside a governor's office, and the answer arrives quickly and with little variation: the political risk calculation is brutally asymmetric.

"There is no political reward for granting clemency," explains a former senior policy advisor who worked in a Democratic administration and requested anonymity to speak candidly. "You free a thousand people who deserved to be free, and no one writes a story. You free one person who goes on to commit a crime — even years later, even something minor — and that becomes a campaign ad that follows the governor for the rest of their career."

This dynamic is not accidental. It was engineered. The mass incarceration project of the late twentieth century required not just legislation and prosecutors and prison contracts — it required a political culture in which appearing tough on crime became a survival instinct for elected officials of both parties. That culture did not evaporate with the arrival of progressive rhetoric. It calcified into institutional timidity that persists regardless of who holds office.

Darren Walker, who spent three years incarcerated on a drug conviction before his sentence was commuted by a sympathetic governor, describes the experience of waiting for executive mercy with controlled fury. "They talk about reform in every speech. They talk about second chances. And then the petition sits there, and sits there, and nobody calls. You realize that the words and the power are completely disconnected. The power is being saved for something. You just don't know what."

The Bureaucratic Maze Designed to Produce Denial

Beyond political fear, the clemency process itself has been architecturally redesigned to minimize grants. In most states, petitions must pass through a pardon board or similar review body before reaching the governor's desk — bodies that are frequently stacked with former prosecutors, law enforcement officials, and political appointees with no interest in recommending release.

Federal clemency petitions route through the Office of the Pardon Attorney, a Department of Justice entity that critics have long argued functions as a filter designed to protect prosecutors' conviction records rather than to identify meritorious cases. A 2020 investigation by The Marshall Project found that the office recommended denial in the overwhelming majority of cases it reviewed, and that its internal culture was deeply resistant to the expansive use of the power it nominally administered.

For advocates, this architecture is not a neutral administrative reality — it is a political choice that can be unmade. Governors can bypass pardon boards. Presidents can instruct the pardon attorney to apply different standards. The machinery of delay and denial exists because executives allow it to exist.

How Movements Change the Calculation

The history of clemency is also, imperfectly, a history of organized pressure forcing reluctant executives to act. The commutation campaigns that freed thousands of crack cocaine sentence prisoners under Obama were the product of years of sustained organizing by legal advocates, directly impacted communities, and civil rights organizations that made inaction politically costly.

More recently, California Governor Gavin Newsom's expansion of clemency grants — still insufficient by abolitionist standards, but meaningfully larger than his predecessors — came after sustained pressure from organizations including All of Us or None, a group founded by formerly incarcerated people that has made clemency advocacy central to its political strategy.

"Executives respond to organized constituencies," says Tanya Gaines, a clemency advocate who has worked with families of incarcerated people for over a decade. "When the only organized voice they hear on this issue is law enforcement saying 'don't do it,' they don't do it. When families show up at the capitol, when faith communities show up, when people who were incarcerated and came home run for local office and endorse candidates who use clemency — the calculation shifts. Not enough. But it shifts."

The strategic lesson is direct: clemency will not be deployed as a tool of mass decarceration through goodwill or legal argument alone. It will happen when the political cost of inaction exceeds the political cost of action.

What Radical Clemency Could Look Like

The scale of what is possible — and what remains withheld — demands to be stated plainly. Across the United States, tens of thousands of people are serving sentences for offenses that have since been decriminalized or substantially reformed. Thousands more are aging in prison, medically compromised, and pose no conceivable public safety threat. Thousands of others received sentences that no court would impose today under current law but who have no legal mechanism to seek relief.

A governor who chose to act with genuine urgency could convene a clemency review task force, establish clear and public criteria for consideration, and process applications in months rather than years. A president who treated commutation as a policy tool rather than a political liability could reduce the federal prison population by tens of thousands within a single term.

None of this requires new legislation. None of it requires a court ruling. It requires only the political will to treat incarcerated people as human beings whose freedom matters more than electoral optics.

The Demand Is Simple. The Work Is Not.

For activists and organizers committed to dismantling the carceral state, executive clemency must become a sustained pressure point — not a secondary ask appended to legislative campaigns, but a central demand directed at specific executives with specific timelines and specific accountability.

That means building clemency coalitions that include directly impacted families, faith institutions, legal organizations, and electoral constituencies powerful enough to make officials feel the weight of their inaction. It means demanding public clemency dashboards that track petition backlogs and grant rates. It means making the grant rate of every sitting governor and the president a visible, recurring political fact — as familiar to reform voters as any other policy metric.

The power to free people exists. It has always existed. The question — the only question that organizing can answer — is whether the political cost of refusing to use it will ever become higher than the cost of acting.

For the woman completing her fourth petition tonight, that answer cannot arrive soon enough.