The Daily Caller has an interesting piece today noting that Obama has not yet pardoned anyone. This “pardon drought” is apparently one of the longest in U.S. history, trailing just behind Washington, Adams, Clinton, and Bush (W). (Also, as pardon expert P.S. Ruckman, Jr. observed, Iran has pardoned more people than Obama lately.) In some ways, Obama’s decision is unsurprising, as the pardon power seems to be a “no-win” situation. Pardoning a criminal isn’t going to earn celebration from a big chunk of the electorate, while a bad pardon can be disastrous. Will these considerations drive the presidential pardon into extinction? And is that a bad thing?
As The Seattle Times explained, ”[t]he concept of clemency dates to Babylonian times, acting as a safety valve for criminal sentences that kings believed were unjust, or a means to show their power to be merciful. Without clemency, Alexander Hamilton wrote, ‘justice would wear a countenance too sanguinary and cruel.’” The Framers embraced the right of clemency in Article II, Section 2 of the Constitution, which provides that the president “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” Thus, the President may grant clemency in any situation involving a federal crime (which would, interestingly, include any crime here in DC). The pardon (like other forms of clemency, such as commutation) is meant to address the grey areas of the law while providing a degree of relief to those who have paid their debt and want their rights back.
The president’s clemency power, however, does not give the criminal complete absolution; it carries an imputation of guilt, and the acceptance of a pardon is tantamount to a confession. See Burdick v. United States, 236 U.S. 76 (1915). Moreover, pardons do not often allow convicts to escape from prison time, as they’re only given to those [(update: under the Guidelines, at least)] who have served their prison terms and proven they can live a productive life. It’s also unlikely to go to anyone who committed a violent crime. (See, for example, Bush’s pardons.)
To be honest, even though the system is relatively rigid and doesn’t leave murderers wandering the streets or anything, I don’t really see the de facto disappearance of the pardon as a bad thing. Given their scarcity (even before the recent drought), pardons strike me as an arbitrary act of executive grace that is too de minimis to have any effect on the system as a whole. It also seems to be an archaic holdover from a time when the king had absolute power — but that absolute power concept is contrary to the American concept of a more limited chief executive. The pardon abrogates the finding of the jury who convicted the pardoned by stripping the verdict of its punitive weight. And it appears prone to substantial abuse.
So, here’s hoping the drought continues.
-Michael
“Moreover, pardons do not often allow convicts to escape from prison time, as they’re only given to those who have served their prison terms…”
How does that square with the pardon given to, e.g., Marc Rich?
I agree Marc Rich escaped jail time, and that he doesn’t stand alone. That’s why I added the “often.” I see why my post was confusing, though, so I’ve updated it.
The controversy surrounding Rich also suggests that escaping jail time is an unusual event. The pardon guidelines (linked in the post) provide that a pardon is not considered by the pardon attorney until 5 years after the completion of the jail sentence.
Nice to see this article/discussion.
First, please cease considering the pardon as a kind of “get out of jail free” card that “abrogates the finding of the jury who convicted the pardoned by stripping the verdict of its punitive weight,” In fact, the typical presidential pardon (as in 99 percent) over the last 100 years is granted to a person who has served their time, taken care of all associated fines and has demonstrated a law-abiding life in the community over a period of YEARS.
Second, in addition to adding needed flexibility and understanding to the law, the pardon power is also an important part of our system of checks and balances. Woodrow Wilson actually vetoed the National Prohibition Act. But Congress over-rode his veto. So, he set records with pardons, many of which went to people who violated the act. That is fine by me, and the way it should be. The pardon power is (or can be) a legitimate tool of policy disagreement.
Is the power subject to potential abuse? You betcha – as are executive orders, signing statements, proclamations, executive agreements, recess appointments, etc.
Marc Rich? An odd case, to be sure. Ask yourself, how many people can you name that were pardoned by George Bush? Or Bill Clinton for that matter. Most pardons are given to people we have never heard of and will never hear of again. They are simply law-abiding citizens who are wanting their rights restored.
Throw in a booming prison population, ridiculous (and disproportionate) sentences that are the result of three-strikes laws and mandatory minimum sentences and, well, this power is needed now more than ever.
best,
Thanks for the comments, Mr. Ruckman. I just had a couple quick notes in response.
As I noted in the above post, I understand that pardons do not often offer a “get out of jail” free card. At the same time, I think that the stamp of “convict” that follows imprisonment is an important element of the punishment. Thus, I’m not convinced it’s entirely fair to say that the debt has already been paid when most individuals are pardoned, because part of the debt itself is (supposed to be) carrying that stamp for the rest of their days.
As for the checks and balances argument, I think you have a good point. But for some reason it troubles me more to see what is an effectively an executive override of a jury determination (as opposed to an executive override of a congressional action, etc.)
Michael,
I am guessing the typical juror isn’t even aware of the collateral consequences of conviction. Even then, I think most would not be comfortable with the notion that every single federal sentence should automatically have a “life” component (not to mention the exact, same “life” component, regardless of the offense) beyond the scope of rehabilitation. That doesn’t square well with basic notions of justice (the punishment fitting the crime). Finally, as precedent is currently interpreted, a pardon does not remove the “stamp” – as you say. It simply removes continued punishment from the justice systems. The crime and conviction are still a matter of public record and businesses and professions can still take note (refuse to hire, remove licenses, discipline, expel, etc). Best,
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