During the three years I advised the President on pardons, the thing that most viscerally captured what was at stake was the incoming mail. Hundreds of messages arrived daily via email and many more by post. Twice each day, a mail carrier with a pushcart came by the office to unload thick stacks of letters, bundled into bricks, onto a desk directly outside my door. Most of the paper mail came from prisons around the country, carefully penned by hand. The envelopes bore the depersonalizing marks of incarceration—institution name, prisoner number, security-inspection stamp—but folded inside were the contents of people’s lives. Personal reflections, regrets, and apologies; accomplishments, hopes, and goals; grievances and disappointments; all spilled onto paper in pursuit of the slim possibility of a second chance through clemency.

Applications for executive clemency have surged since 2014, when President Barack Obama announced an ambitious initiative to use the pardon power to correct the excesses of mass incarceration driven by mandatory minimums. I was a federal public defender at the time, and this use of the pardon power to rebalance the scales of justice felt revolutionary. My colleagues and I were all-hands-on-deck, submitting applications for our clients into the waning days of the presidency. In total, Obama commuted the sentences of more than 1,700 people and pardoned about 200 more. His historic clemency initiative energized criminal justice advocates across the country and gave hope to tens of thousands of prisoners condemned to decades or even life in prison for nonviolent drug offenses. But the work of redressing excessive sentences remained unfinished.

In The Presidential Pardon, constitutional scholar Saikrishna Prakash takes on the timely question of what purpose the power to pardon serves in the modern presidency. Though its origins are rooted in mercy, reconciliation, and proportionality of punishment—all sound goals—Prakash recounts vigorous debate among the Constitution’s framers about whether the executive could be trusted to use “an almost limitless pardon power” for the public good. Nearly 250 years later, their concerns—abuse, self-dealing, and possibly even subversion of the Constitution—have been brought into sharp relief by a series of dubious pardons by recent officeholders. Prakash argues that Joe Biden’s late-term pardons of his family members, followed almost immediately by Donald Trump’s blanket pardon of the January 6 rioters, have brought us to a “pardon dystopia,” in which “the pardon pen is no longer much of an instrument of justice or mercy, but increasingly a weapon of partisan politics and personal aggrandizement.”

The idea of pardons as “politics by other means” is not new, Prakash explains. He makes the case that the pardon power reached its moral peak under our first President, George Washington, due to Washington’s keen awareness that his use of it would set precedent for the future. He gave mass pardons to leaders of the Whiskey Rebellion and reprieves of death sentences to others. But in stark contrast to recent practice (which has seen pardons doled out over a dinner or a round of golf), Washington’s process for considering these requests was methodical and deliberative. The legitimacy of his decisions was aided by the fact that he “invariably listed reasons” for his pardons. Prakash rates Washington’s pardon record as “stellar,” which he attributes to Washington’s character: “The first pardoner-in-chief was an astute and honorable man, always pursuing the nation’s best interests as he perceived them.”

What followed was largely downhill, Prakash assesses. He recounts a series of “contentious and even notorious” historical pardons linked by “the sense that presidents perhaps used the pardon power to advance personal interests, partisan goals, and contested policy objectives.” Thomas Jefferson pardoned James Callender, a newsman whose “caustic attacks” on political rivals were financed by Jefferson himself. While Jefferson claimed that the pardon was premised on his philosophical disagreement with the Sedition Act under which Callender was prosecuted, “observers were utterly convinced that Jefferson had wielded the pardon pen as a political tool, this time to reward an ally who had lacerated Jefferson’s opponents for years.”

Even Abraham Lincoln raised eyebrows with his pardons of Confederate soldiers, conditioned upon their pledge to “abide by and faithfully support” the Emancipation Proclamation and other laws pertaining to slavery. Prakash questions the propriety of conditioning the exercise of mercy on support for the President’s policies. Because “Lincoln’s moral stance on slavery was undoubtedly right,” we have come to accept the premise of his pardons without question. But imagine, Prakash suggests, if a modern President extended a pardon to a celebrity conditioned on a public endorsement of the President’s Medicare policy. Or if the President offered a pardon to a big-city mayor conditioned on their support for the President’s deportation policies. We have seen quid pro quos very near to these play out during Donald Trump’s presidency, and they reek of corruption.

Skipping forward a century from the Reconstruction Era, Prakash covers well-known modern pardon controversies, including Gerald Ford’s pardon of his disgraced predecessor, Richard Nixon; George H.W. Bush’s pardon of political allies ensnared in the Iran-Contra arms-for-hostages scandal; and Bill Clinton’s last-minute pardons of supporters including the fugitive Marc Rich, whose wife was a major Clinton donor. Prakash points out that public perception of some, though certainly not all, of these pardons has improved with age. While Ford’s pardon of Nixon caused his approval ratings to plummet – leading to his eventual loss to Jimmy Carter in the 1976 election – many of his former critics have come to see him as “courageous,” perhaps because he was acting against his own self-interest. Prakash effectively illustrates that our assessment of the President’s motives will likely color our views on the legitimacy of his pardons. As Jeffrey Toobin put it in his book on the Nixon pardon: “For better and worse, pardons operate like X-rays into the souls of presidents.”

Prakash largely skips past the presidencies of George W. Bush and Barack Obama. This is a considerable flaw in his narrative. The book devotes just a single paragraph to the two Presidents—whose criminal justice legacies could hardly be more different—offering the dismissive assessment that both “saw Clinton’s mess … and erred on the side of caution,” knowing “their reputations would not suffer from rejecting most pardon applicants.” Bush’s sparing use of the prerogative of mercy was no surprise; it reflected the tough-on-crime policies that characterized his presidency. Obama, by contrast, unflinchingly acknowledged the harms inflicted by the mandatory minimum sentencing schemes legislated in the 1980s and ’90s— particularly on people of color. In 2010, he signed into law the Fair Sentencing Act, which reduced the disparity in penalties for crack and powder cocaine. In 2015, he became the first sitting President to visit a prison, where he spoke of his belief in second chances. He sought to make criminal justice reform part of his legacy, including through the systematic use of clemency to ameliorate unduly harsh sentences for nonviolent drug offenses.

Notably, Obama’s clemency initiative generated a momentum for criminal justice reform that did not die when Donald Trump first took office. With bipartisan support, Trump signed into law the most comprehensive criminal justice reform bill in decades, the First Step Act of 2018. The bill eliminated some of the harsh sentencing practices that Obama sought to mitigate through clemency, including by substantially narrowing the application of mandatory recidivist enhancements for drug offenses. As for Trump’s first-term pardons, Prakash characterizes them as “tawdry theater,” and he is mostly correct. But Prakash is too quick to conclude that the role played by celebrities like Kim Kardashian made the whole endeavor unserious. While many of Trump’s first-term clemencies served as rewards for political loyalty, some were awarded to ordinary people who were treated harshly by the criminal justice system and earned the opportunity for a second chance through demonstrated rehabilitation. These include Alice Marie Johnson (now Trump’s “Pardon Czar”), who had served over 20 years in prison when Kardashian became her advocate. Kardashian has established herself as a serious and effective advocate for clemency, who was invited into the Biden White House as well.

I took the job of Pardon Attorney in 2022 imagining that Joe Biden would seize on bipartisan interest in criminal justice reform and complete the work of remediating historical inequities in criminal sentencing schemes. In the end, he did not. But Biden did grant clemency to hundreds of deserving Americans, many sentenced under outdated mandatory minimums, whose lives are forever changed for the better. It is likely that those pardons will be forgotten, and the ones Prakash focuses on— specifically, his late-term pardons of family members and allies— will define Biden’s legacy on clemency. I share Prakash’s view that those acts were not in the public interest and damaged the perceived legitimacy of the whole endeavor of pardoning.

Biden’s “midnight pardons” were followed almost immediately by Trump’s blanket pardon of the January 6 rioters. The combined effect, Prakash says, was to usher in “a new epoch, one where pardons are often, perhaps mostly, used as instruments of ordinary politics and widely seen as such.” In the early months of Trump’s second term, the traditional vetting process for clemency candidates, administered by the Justice Department, has been routinely bypassed. Clemency hopefuls are taking their cases straight to the White House, often aided by well-connected lobbyists and/or generous political donations. Prakash condemns these “tawdry” developments, but he also argues that they are hardly worse than other longstanding features of our political system, including awarding ambassadorships or supporting legislation favorable to donors.

Prakash analyzes other contemporary clemency controversies as well, including the use of an autopen, the possibility of self-pardons, and the constitutionality of “policy pardons” such as Biden’s broad proclamations pardoning certain marijuana possession offenses, among others. I was surprised by (and am admittedly skeptical of) Prakash’s opinion that the marijuana pardons “seem akin to a suspension of the law” and therefore may be illegitimate. Those blanket pardons did not foreclose future prosecutions of marijuana possession, nor could they alter the consequences already suffered by the pardon beneficiaries in the form of prosecution and conviction as well as fines paid and, in rare cases, jail time served. Still, the questions Prakash raises are timely and, save for the autopen (Prakash sees no problem with it), lack clear-cut legal answers. Although if Prakash is correct about the current trajectory of pardoning, we may soon see courts supplying them.

I found the final chapter of the book – which looks to the future – frustrating. Prakash discusses potential pardon reforms, but he offers no solutions. He considers a range of possibilities—from abolishing or constraining the pardon power to vesting the power in individuals or entities other than the president (such as a committee, Congress, or the pardon attorney)—remarking, “there are downsides to all.” Apart from any downsides, Prakash’s musings are all rather pie-in-the-sky, since only an amendment to the Constitution could effectuate any of these changes. Given the generally dysfunctional state of our politics, with Congress struggling to fulfill even its minimum obligation of funding the government, amending the Constitution seems unlikely at best. Prakash does not discuss more practical options, such as legislative reforms centered on oversight, transparency, and accountability. Rather than endorsing any concrete proposal for democracy-strengthening reforms, Prakash offers this unsatisfying pearl: “When it comes to pardons, my view is that we need fewer misguided or unjust pardons and more praiseworthy ones.” This is so very vague that it would be hard to disagree.

The Presidential Pardon is strongest on brass tacks and history. Prakash carefully parses the Constitution’s pardon clause and walks the reader through key terminology. He provides an accessible historical primer and an engaging accounting of the questions and controversies that have clouded the pardon power up to the present. This short book covers a lot of ground, which makes it somewhat uneven. Its thesis—that traditional considerations of justice and mercy have taken a backseat to political and personal objectives—is not wrong, but it feels thin due to its narrow and selective supporting dataset.

To a reader who has lived and breathed the work of clemency, the book feels bloodless. Prakash gives short shrift to the most beneficial uses of the pardon power by modern presidents, including Obama’s principled effort to rebalance the scales of justice by offering second chances to many deserving Americans. Relatedly, Prakash fails to capture the deeply human element of clemency. The hopes of thousands of incarcerated Americans are resting on the slim possibility of a commutation to reunite them with their families. Still more, who have completed their sentences and repaid their debts, are hoping that their hard work might earn them forgiveness through a pardon. Pardons transform lives, because they restore civil rights and open new doors to employment, housing, credit, and all manner of opportunities that are otherwise permanently closed to persons with felony convictions.

These traditional considerations seem to matter little in the “Wild West of presidential pardons” that has characterized Trump’s second term. Trump’s clemency grants have grown increasingly untethered to conventional norms. He pardoned Juan Orlando Hernández, the corrupt former Honduran President who enriched himself by flooding the United States with cocaine. He pardoned Changpeng Zhao, a cryptocurrency billionaire whose trading platform funneled money to foreign terrorists and criminal organizations. Trump has liberally used the pardon power to reward donors and allies, to advance political objectives, and to promote his own interests. In this booming pardon economy, the founding ideal of mercy seems quaint at best. Still, there are thousands of Americans who remain hopeful of earning redemption through clemency.  Those hopeful individuals, whose causes are what the framers were envisioning when they vested the President with the power to pardon, deserve a place in any discussion of presidential pardons.