In the wake of a number of recent controversial pardons issued by President Trump, some have begun to argue that perhaps the Constitution should be amended to restrict the president’s authority. Introduced by Rep. Johnny Olszewski (D-MD), the Pardon Integrity Act proposes an amendment that would allow Congress to reject a presidential pardon or commutation if 20 members of the House and five members of the Senate initiate a process, which must then be approved by a two-thirds vote of both chambers. Some have called for an even greater role for Congress, urging an amendment that would require the president to get Senate approval for a clemency grant. But while ostensibly a check on presidential power, this latter reform would unduly restrict clemency. For proof, look no further than Rhode Island, the only state which requires the governor to get approval from the state’s senate to issue a pardon. The last pardon issued in Rhode Island was in 2011, to a man who had been hanged in 1845.
Rhode Island is the only state in the country with a constitution which requires the consent of the Senate before someone can receive clemency from the governor. The posthumous grant in 2011, awarded to someone who had died more than 160 years earlier, is the only act of clemency since the 1950s. So few living people get clemency that “there are only a handful of applicants each year.” For the limited number who apply, there is no formal process or criteria for consideration; people write to the governor with no knowledge of what factors they might consider or the timeline for a decision. The absence of process and standards has led State Representative David Morales to propose the creation of a commission to make recommendations to the governor in 2024—but the proposal died in the committee stage.
Rhode Island should be a cautionary tale for people like New York Times Columnist David French, who want to place a similar restriction on the federal clemency power. Clemency needs reform, but requiring Senate approval would effectively foreclose grants entirely. Clemency is infrequently granted as is, largely because presidents and governors worry that a pardon or commutation (sentence reduction) to someone who goes on to commit another crime might harm their political careers. Although their clemency rates are low (and have declined in the tough-on-crime political mood of the last 50 years), presidents have still done far better than Rhode Island’s governors. President Barack Obama gave sentencing reductions to more than 1,700 people. President Joe Biden set a record with more than 4,000 grants, including the commutations of the death sentences of 37 out of the 40 people on the federal death row.
The lesson we learn from Rhode Island is that requiring the president to obtain Senate approval would cripple their ability to issue clemency. This would not solve the problem of powerful people disproportionately receiving clemency thanks to connections or campaign donations (which is the key issue with Trump’s grants). It would, however, exacerbate the critical problem of regular people struggling to get clemency relief.
There are roughly two million people in prison in the United States, making it one of the most carceral countries on earth, with many serving sentences for crimes they committed when they were young. Those incarcerated are disproportionately low-income and people of color. Having a criminal record makes it difficult to obtain jobs, housing, and other benefits, so these individuals need clemency to get a fresh start. For the roughly 150,000 people serving their sentences in federal prisons, the only way they can get a sentence reduced or their records cleared is to get a commutation or a pardon from the president of the United States.
The problem with federal clemency is that presidents have historically been stingy with their clemency powers, granting most of them at the end of their terms when they do not have to face voters again. While the news has focused on unseemly grants, almost no attention has been paid to all the people who have been ignored or denied. The Pardon Integrity Act would make it even harder for those convicted to get relief; Rhode Island’s track record makes clear that the already low grant rates at the federal level could fall even further. In fact, this drop could be even more drastic at the federal level. Rhode Island offers some alternative measures that serve as partial substitutes for clemency, like offering a mechanism for expunging a criminal record or seeking a sentence reduction in some circumstances. The federal system has no such substitutes. Clemency, flawed as it is, is the only game in town.
The use of pardon power by President Biden and President Trump has sparked a great deal of criticism, owing to the controversy surrounding the grants they issued rather than their low grant rates. Despite the more than 4,000 commutations he issued, Biden only granted 80 pardons during his four years as president. But the public ire has largely focused on the few people who received clemency; at the end of his term, Biden granted a broad pardon to his son, Hunter (after promising he would not do exactly that) and gave preemptive pardons to other family members. Meanwhile, President Trump issued over 1,500 presidential pardons to January 6 Capitol insurrectionists. He has also given clemency to major campaign donors, investors in his family’s cryptocurrency business, and other loyalists. It was these high-profile clemency grants which prompted calls by legislators, advocacy groups, pundits, and citizens for a constitutional amendment to place limits on a president’s ability to issue pardons.
If a constitutional amendment requiring Senate approval were to pass, it is hard to see how President Obama would have been able to give relief to the more than 1,000 people serving excessively long drug sentences under laws passed in the 1990s whom he gave clemency. It is also unlikely that Joe Biden would have been able to give commutations to 37 people on federal death row. Senators, eager to portray themselves as sympathetic to victims and tough on crime, would be quick to object to grants like these.
A clemency system which requires so many checks does not function effectively to give people justice. The United States incarcerates more than any other democracy, and it needs mechanisms to correct its punitive impulses; the Framers put broad pardon power in the Constitution and rejected calls to restrict it by requiring Senate approval. Rhode Island is an example of what happens when you make clemency even harder to obtain. Scaling that up to the national level would only exacerbate the problems of mass incarceration. What is already rare would become nonexistent. In a nation where incarceration is so widespread, restricting pardon power is simply too dangerous.