Presidential clemency: Obama's 900 pardons leave too many in limbo

Setting: The Oval Office, this week. A misty figure appears.

Visitor: Hey, Barack! Whatcha doing?

President Obama (continuing to look at a briefing book): I'm picking the turkeys to pardon this year. Who names a turkey Francine? I mean, really? (Looks up abruptly) Who are you?

Visitor: I'm you. In 20 years.

Obama: I'm looking pretty good! But isn't this more of a Christmas thing? You know, Ghost of Christmas Future …

Visitor: It can't wait. I need to talk to you now.

Obama: What's so urgent?

Visitor: Clemency. Forget the turkeys. You need to use the presidential pardon power to get people out of prison. You need to do it now. It's all I think about some nights — the people I didn't get out who now are old men like me. I — you — didn't do enough. We didn't save everyone we could.

Obama: Don't you remember? My guys are working hard. I've granted clemency to over 900 people, and we're going to get to every petition filed through August or September, maybe. It's more than the last bunch of presidents combined.

Visitor: Yeah, more than the Bushes. Congrats. They weren't even trying. It's like saying you and your buddies beat the Detroit Red Wings at basketball. Those guys weren't playing the same game. Except President Gerald Ford. Why do you always forget Ford? He pardoned more than 13,000 draft dodgers and deserters after Vietnam.

Obama: I don't think that really counts. It's apples and oranges.

Visitor: How come? Draft dodgers weren't any more popular than crack dealers. And he announced it at a VFW convention! You gotta be at least as brave as Gerald Ford.

Obama: What happened to you, er, me? When did you become an expert on clemency?

Visitor: Back in 2025. Malia was in law school, and we did a clemency petition together. A guy named Travis — you never got around to him while you were here, because his lawyer got his petition in late, in October. Malia guilted you into working on it. You met Travis's sister, went to prison to see him, you got woke. You two wrote a great petition, but President Pence denied it.

I — you — had to call and tell Travis. The guy is still locked up. I think about him every night. Every damn night.

Obama: Are you serious? You know how much work I do on this? Every evening, I go over to the quarters carrying a stack of these memos. Valerie Jarrett is riding my butt every week to get them done. Neil Eggleston is sick of it. My pardon attorney, Zauzmer, that guy hasn't had a weekend off in months. How can I do any more?

Visitor: Stop fussing so much. You group them and cut the sentences of the lifers for nonviolent narcotics offenses, or the ones who didn't get retroactive benefit when the crack law changed in 2010, or the long-termers over 60, or all of those groups. You have the Sentencing Commission send you the names; they're good with data. If you wanted, you could use clemency to say that no nonviolent drug defendant should do more than 20 years.

For two more months you are the most powerful person in the world. Act like it, and have mercy on the least powerful.

Obama: But, how do I know they are safe? I don't want someone killed by one of these guys. We have to vet them all for prison behavior, right?

Visitor: Sure. But don't forget, the Bureau of Prisons has already done that with prison classification. You just throw out the ones still in maximum security — those are the ones who have been in trouble. If they earned their way to a lower classification, the BOP has already told you what you need to know. These are low-risk populations, anyway. And if you don't do anything because of some risk, there will be the certainty of injustice.

Obama: At some point, Congress has to fix this with legislation, right? That's their job.

Visitor: Barack, you know better than to use "Congress" and an active verb in the same sentence.

Obama: Ha! At least I'm still funny, old man. But can't some other president come along and clean this up?

Visitor: Who? Donald Trump? Pence? It's 2036 where I live, and we just had a presidential election between Tiffany Trump and Chelsea Clinton.

Obama: Now you're just messing with me.

Visitor: A year ago, back in your era, you laughed whenever anyone said "President-elect Trump." Now you're having lunch with him. If someone is messing with you, it isn't me. "If you save one life, you save the world …"

Obama: Nice line. So in the future I'm Jewish, a Talmudic scholar?

Visitor: No, just wiser. And sometimes wisdom brings urgency, because not all moments are equal. This is your chance, don't throw away your shot.

Obama: Now you're quoting "Hamilton"?

Visitor: It's still playing on Broadway. But Barack, you are a good man with a good heart and a strong mind. If you are going to be bold, be bold for the people with the least. Make Malia proud.

Obama (nodding and turning back to his briefing book): Francine, you are going to get some company.

Mark Osler is the Robert and Marion Short Professor of Law at the University of St. Thomas and the author of "Prosecuting Jesus."