The pardon power is derived from the Royal Prerogative of Mercy, which gave monarchs absolute power to pardon an individual convicted of a crime. Here in the United States, the pardon power has a unique history. It is outlined in the United States Constitution, Article II, Section 2, which gives the Commander-in-Chief power to “grant Reprieves and Pardons for Offenses against the United States” (though not in “cases of impeachment”). It has, of course, been used by a number of presidents, including former Presidents Barack Obama and Bill Clinton.

But in a departure from tradition, Donald Trump is using the pardon power like an authoritarian figure—as a tool for self-protection and perverse incentive—so that he can further entrench his power to rule. The paradox of Trump’s pardons is that he is using what is supposed to be a tool for mercy in a nefarious manner and with corrupt intent, cloaked in a facade of fairness and justice, all while upholding the system of mass criminalization.

Yet in the past few months, Trump has appeared to make an odd pivot. He notably extended an offer to NFL players, saying, “…I am going to ask all of those people to recommend to me—because that's what they're protesting—people that they think were unfairly treated by the justice system.” Subsequently, he announced that he was considering granting posthumous clemency to Muhammad Ali, an offer which Khalilah Ali, the boxer's ex-wife expressly rejected. Trump’s offer to pardon Ali came only a few days after he met with Kim Kardashian and granted clemency to Alice Marie Johnson, who was sentenced to life in federal prison even though she was a first-time, non-violent drug offender. Glenn E. Martin, a fierce prison reform advocate, points out that “The Trump Administration’s request for professional athletes to contribute to the pardon process by recommending deserving candidates reeks of privilege and entitlement and reinforces a system of inequity and classism…The ability to be considered for a pardon shouldn’t be contingent on whether one has a celebrity on their contact list.”

Martin’s inclination is right—Trump’s pardons are not abolition (which calls for the reduction or elimination of prisons and jails), nor do they even represent reform. In fact, Trump’s actions undermine the work of organizers such as Reverend Dr. Benny Custodio, Pastor of Immanuel-First Spanish UMC; Mujahid Farid, Co-founder of Release Aging People in Prison; and Donna Hylton, Senior Justice Fellow and author of “A Little Piece of Light.” Custodio, Farid, and Hylton are examples of people who have direct incarceration experiences and commit their lives to challenging mass criminalization by working closely with affected communities. They are invested in long-term mobilization, which—in contrast with Trump’s whimsical and abusive use of the pardon power—pushes a radical, grassroots agenda.

By asking celebrities for recommendations, Trump appears to sympathize with reform and abolition efforts, but really, he is weaponizing the Presidential pardon. He is not concerned with the reality of systemic injustice in the U.S. penal system nor is he concerned by the suffering of Black and Latino people, who are its primary victims. In fact, he actively is incarcerating and separating immigrant families; has referred to countries in the African diaspora as “shithole countries”; and referred to Latino immigrants as rapists and “drug runners.” He also praised the NFL’s (likely illegal) new policy, which bans players from taking a knee during the National Anthem.

Notably, Trump issued his first presidential pardon to Joe Arpaio, who illegally profiled and detained Latinos, and kept inmates in brutal jail conditions during his 24-year tenure as Sheriff in Maricopa County, Arizona. Last week, Trump pardoned Dwight and Steven Hammond, who were convicted of intentionally and maliciously setting fire to public lands in 2012 and who sparked a violent standoff between white supremacists and the federal government in 2016.

Trump’s pardoning signals to his personal associates Michael Cohen, Mike Flynn, and Paul Manafort—all of whom are either under investigation or indictment—that in the event that they are sent to prison for their alleged crimes, Trump has the power to set them free. And in a largely controversial tweet, Trump said that he has the “absolute right” to pardon himself.

If Trump’s record says anything, it is that Trump is wielding the pardon the way that authoritarian figures have often used tools of oppression—as a political weapon.

Trump’s pardons re-inscribe fear and confusion while simultaneously creating dependency. They are strategic and manipulative, designed to elicit gratitude and fright at the same time. By asking the NFL players and other celebrities to recommend people to pardon, Trump is reminding the opposition, and specifically, black and brown people not to bite the dictatorial hand that (he believes) feeds them. He is attempting to quell protest by extending withered olive branches in the hopes of dividing and conquering organizers who are seeking legitimate socio-political change.

By pardoning known racists, obstructers of justice, and right-wing militants, Trump is reminding his base that he can set allies free by wielding the pardon power the way that any authoritarian figure would. He is attempting to vest all power in himself while appearing to be merciful. That is the paradox of his pardons.

mass criminalization

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