Executive clemency should be undertaken in light of three principles.
First, we should understand that our criminal justice system is, for by far the most part, reliable and fair, but not infallible. It makes mistakes, by sometimes acquitting (or failing to charge) the guilty, convicting the innocent and imposing sentences uncommonly disproportionate to the crime. In the latter two instances, executive clemency has a role to play.
Second, because clemency power is plenary -- that is, it cannot be cabined by the legislative branch or reviewed by the courts -- it should be exercised with caution, just like any other power of the government. Many believe that its incautious use by President Bill Clinton contributed to the relative paucity of its use by his successors. Clinton became notorious for his "midnight pardons," in which, on the night before he left office, he pardoned, among others, a fugitive billionaire (and a major Democratic contributor). The granting of pardons for reasons other than the equities of the case has the potential to poison the well for future, deserving clemency candidates.
Third, clemency should be based on individual considerations specific to each case. It should not be used as a way for the president (or governor) to impose his view of broad sentencing policy unilaterally -- a matter left to the legislature or, in federal law, to Congress and the Sentencing Commission.
Having faith in Congress, though often vexing, can work: In recent years, Congress lightened penalties for crack cocaine offenses that many thought had become too stiff, and the Supreme Court made Congress's judgment retroactive, so it could benefit previously sentenced inmates.
The power to pardon was created because mercy is a component of any civilized governance. Presidents and governors should use that power -- and should refuse to use it -- without regard to political incentives. At the same time, they should be mindful that the power was never intended simply to displace sentencing statutes with which a president may disagree.
<< AG Nomination Hearing Tomorrow | Main | AG Nomination Hearing >>
The Parameters for Pardons
The New York Times invited my participation in its "Room for Debate," on the subject of executive clemency. The immediate cause of the Times's interest in clemency might be the talented movie star and former teenage thug Mark Wahlberg, but there is a much larger move afoot here, signaled by the Administration's massive effort to enlist the defense bar and allied organizations in proposing literally thousands of clemency candidates -- a thoroughly unprecedented approach to pardoning.
My take on it in the Times is much what you'd expect from a person with generally conservative principles: The system is certain to make errors and we should try to correct them. We need to be clear, however, about the further errors we'll make in the attempt, and understand the different, but no less real, set of costs and risks we will create. Finally, the Constitution should be honored both in its provision of plenary power to the President in this area, and in its overriding instruction to him that he take care faithfully to execute the laws as Congress wrote them.
Taken together, what those things mean is that the President should not fear to use clemency in cases of clear-cut injustice worked on individual defendants. But he should take equal care that his clemencies are not undertaken simply as an expression of disagreement with existing law, or any set of such laws. If the President ignores this latter caution, he will effectively re-write the Constitution to provide a "forever" veto-option, in which Presidents months, years or decades after duly enacted statutes take effect could issue the new, omnipresent, limitless "veto" against any not then to his liking, simply by pardoning every federal felon convicted under them.
That would be exploding the pardon power beyond recognition, to the point of constituting a quasi-usurpation of Congress's sole authority as the law-making body.
Thus, my argument in "Room for Debate" is this:
Leave a comment