July 3, 2021

Last week, Governor Kelly granted executive clemency to eight Kansans, including three ACLU of Kansas clients. This news came over a year after we started the Clemency Project.

It was a historic action, and supporters note that both the quantity and the timing of these releases were momentous.

But why? Kansas’ clemency powers, like most states, emulate the independent pardoning powers of the US Constitution, which has been the guiding document for our country’s government since 1789.

As we celebrate American Independence this weekend, let’s consider why our Founders deliberately built this tool into our system of government.

A Brief History of Clemency

Clemency is literally built into the foundation of our country: Article II, Section 2 of the US Constitution.

Alexander Hamilton was the one to introduce and support pardoning powers at the Constitutional Convention.

The Framers deliberated on whether Congress should have oversight in the pardoning process— a proposal for Senate approval was the most popular— but ultimately the Founders deemed that the Executive Branch should have exclusive domain over clemency powers.

This was even bigger at the time than we may recognize now. Although the powers of the Presidency have been interpreted more broadly over the years, this was seen as one of the most unilateral executive powers at the time.

Our founders knew how important it was that the executive wield this power away from the judicial and legislative branches. Only then could it serve as the important check and balance it was created to serve.

Clemency through the years

Clemency’s use runs through our entire history; George Washington became the first president to use the power in 1795, further establishing that use of this power was meant to be a norm.

Abraham Lincoln famously granted pardons to encourage Confederate Army soldiers to flip. Then, as Congress tried to amend stipulations around these pardons, the Supreme Court ruled in U.S. v. Klein that they had infringed on this executive power. This further cemented the importance of executive clemency in our system.

Clemency has historically been an often-used power in U.S. history; per the Department of Justice, from 1900 to 2017 there were 22,485 clemency actions granted. That’s an average of over 192 uses of clemency per year granted by US Presidents.

Clemency in Kansas

Similar to the Presidency, the Kansas governor receives pardoning power from the Kansas Constitution (Article I, Section 7), and the process is governed by K.S.A. § 22-3701.

Despite clearly emulating the federal process, clemency isn’t receiving nearly the same level of usage in Kansas.

This is, in part, why Gov. Kelly’s action was so significant. Kansas’ past four governors used this power only 9 times, and, prior to Kelly’s releases, it had been used only a dozen times since 1993.

The other notable factor in these releases is timing; Kansas governors often waited until the end of their tenure to grant pardons, while Kelly did so in the middle of her first term.

A look around

Clemency use in Kansas doesn’t just pale in comparison to the federal government, it also falls short of our neighboring states.

In a four-year period, Kansas received only 84 clemency applications, averaging 21 a year. This is dwarfed by Oklahoma, where they have averaged over 100 applications for the past 15 years.

To our west, Former Colorado Gov. John Hickenlooper issued over 100 pardons; his successor, Gov. Jared Polis, issued a mass pardon to over 2,700 individuals with low-level marijuana offenses.

Even in Missouri, Gov. Mike Parsons issued 36 pardons last month.

The Founder built clemency to be used

While Gov. Kelly’s clemency actions may have been a good start, they cannot be the end. Our federal government and neighboring states both show how this power was meant to be used: frequently.

Clemency is built into our Constitution, both nationally and in Kansas.

George Washington himself paved the way for its continual use as our first president.

So as we celebrate our Founding Fathers and their dedication to life, liberty, and the pursuit of happiness, let’s not forget one of the keys they designed for these ideals: the power of clemency.