A curious part of modern justice systems is the power to pardon. In America, the government is divided into three separate branches: judicial, legislative, and executive. You might expect that pardons, being related to justice, would come from the judicial branch. Not so. The power to pardon rests in the executive branch, and specifically, solely in the President. State governments give similar power to governors, with similarly few restrictions. The American system is descended from the British tradition in which the power to pardon was held only by the king.
Daniel T. Kobil has a written an article called “The Quality of Mercy Strained: Wresting the Pardoning Power from the King.” [ Link to the article ] He argues that the power to pardon is too open to abuse. The executive’s power should be limited. I summarize his article below.
Kobil classifies pardons into two broad categories.
- Justice-enhancing
- Justice-neutral
Justice-enhancing
A justice-enhancing pardon seeks to remedy a defect in the administration of justice. A President may erase a wrongful conviction, or commute a disproportionately harsh sentence. Traditionally, Presidents and governors have made little use of justice-enhancing pardons, partly owing to fear of the political fallout. Kobil mentions California Governor Edmund Brown, who declined to commute the death sentence of Richard Lindsey because “a legislator with the swing vote on an important piece of legislation for migrant workers was strongly in favor of the execution and would withhold his support if Brown granted clemency.” In 1893, Illinois Governor John Peter Altgeld pardoned three anarchists who had been wrongfully convicted of a bombing. “Not surprisingly, he was not reelected to a second term as governor.”
Justice-neutral
A justice-neutral pardon is one that serves the public good, but not necessarily justice. For example, President Washington issued an unconditional pardon after the Whiskey Rebellion. President Johnson offered pardons after the Civil War. Carter pardoned Vietnam draft dodgers. None of these serve to fix any defects in the justice system. They are at odds with justice. Presidents issue such pardons when they believe the result will be better for the public than the strict adherence to justice and the rule of law.
The Problem
The power to pardon is intended to enhance justice, but in reality it rarely works that way. Kobil shows that presidents don’t issue many pardons. Even a deserving person is unlikely to receive a pardon. The political fallout is too great. No politician can afford to risk his public support. The few pardons that do get issued are politically motivated:
As Edward Hammock, the former chairman of the New York State Board of Parole, which reviews clemency applications for the governor, notes: “[W]ith the governor, it’s not the individual case he’s looking at. He picks a few from that pool of eligible individuals on the basis of a political statement he wants to make.“
The Solution
Kobil proposes dividing the power to pardon into two parts.
The clemency process should be bifurcated. While the executive alone would remain responsible for making occasional justice-neutral clemency decisions, justice-enhancing clemency decisions would be made by a professional board that is independent of the political pressures which inevitably distort the decisions of elected officials. Such a board could, like the federal judiciary, be appointed during good behavior, and be selected based on expertise in various areas relevant to assessing the fairness of the punishment imposed.
In other words, the President only gets the power to issue justice-neutral pardons. Justice-enhancing pardons would be handled by a non-political board, which could issue pardons to those who deserve them. Kobil proposes that the board should examine pardon applications and issue pardons when any of the following conditions are met:
- Substantial Doubt of Guilt
- Diminished Mental Capacity, Retardation, Intoxication, or Minority
- Disparate Sentencing: Proportionality - For example, “it is fundamentally unfair to sentence one offender to death, while another offender judged to be equally culpable receives a lesser sentence.”
- Disparate Sentencing: Special Circumstances - “A reason for granting clemency based on disparate sentencing exists when a sentence is disproportionate in light of the offender’s age or terminal illness. A seventeen-year-old murderer and a ninety-year-old murderer are not affected in the same way by the passage of time: life imprisonment would result in differing degrees of disadvantage for each. Similarly, a five-year sentence given to an offender in the waning stages of a battle with AIDS amounts to life imprisonment.”
- Sentencing That is Unrelated to Deserts - “Clemency also is properly granted where there is a substantial likelihood that the sentence was based on factors such as the race or gender of the criminal or victim, rather than on the punishment the individual deserved.”
- Crimes Committed out of Necessity, Coercion, or Adherence to Moral Principles - The punishment should fit the circumstances of the crime. “A mother who steals to feed and clothe her children is not as morally blameworthy as one who steals to buy a new television.”
- Crimes in Which the Offender Has Suffered Enough - “If an offender who assaulted someone was blinded as a result of injuries received in the fight, and the damage can be said to fairly approximate what she deserved for her crime, further punishment would be excessive and should be remitted.”
The President retains the power to issue justice-neutral pardons. Kobil suggests further that the President be required to give his reasons for issuing a pardon. Each presidential pardon will be immediately forwarded to Congress, which may veto it by a supermajority vote.
Kobil’s suggestion would likely require a Constitutional amendment, so it is unlikely to be implemented. If it were, it would prevent abuses such as President Clinton’s decision to issue hundreds of last-minute pardons as he left office. Under Kobil’s system, those pardons would be reviewed by Congress before becoming effective. The system would have a check against a rogue President. No such check exists today.
Not to mention Lincoln’s numerous pardons (or commutations) after the Souix Uprising in Minnesota in 1862. He commuted the death sentences of about 250 of the 300 Indians who were tried for the rapes and murders of nearly a thousand Minnesota settlers. His use of the Presidential pardon likely fit under both the “justice-enhancing” and “justice-neutral” categories.
I’m not sure what I think about the power to pardon. It has been used quite effectively, but like you mentioned, others have abused the privilege. A check and balance system by Congress has its weaknesses, one of which being the further politicization of another of the President’s powers and privileges. For instance, if Bush decides to pardon Scooter Libby, if Congress had to approve it, you know that they would use it for as much political fodder as possible rather than to address the obvious merits of his case for a pardon.
“If Bush decides to pardon Scooter Libby, if Congress had to approve it, you know that they would use it for as much political fodder as possible rather than to address the obvious merits of his case for a pardon.”
Yeah, I see your point. But under Kobil’s proposed system, the President would not pardon Libby. If Libby deserved a pardon on the merits, that pardon would come from the Pardon Board, not the President. Since the Pardon Board handles all on-the-merits cases, the President could only pardon people for justice-neutral reasons, which should be debated and discussed in the political arena.
Justice-neutral pardons would almost exlusively be issued to classes of people (like southern rebels, or Vietnam draft dodgers) and not specific individuals. I’m hard-pressed to think of a case where an individual should be pardoned on justice-neutral grounds. In that rare case, I see no problem with letting Congress have some oversight.
I too, like Darius, am not sure what to think about the power to pardon. I think it has been abused far too often in the name of agenda (Clinton and the FALN terrorists, Bush Sr. and his pardon of Reagan-administration with Iran-Contra), but I believe its existence is in the spirit of the office of executive. If the president has the power to veto congress, why not a reversal of judicial as well? I just believe more checks/balances should exist in a similar light.
Alexander Hamilton writes exclusively of this in the Federalist Papers (No. 74). You can read it here: http://www.foundingfathers.info/federalistpapers/fed74.htm
Good link, Ornot. Hamilton (and Jew/Kobil) makes sense. Yet at the same time, I am loath to support a constitutional amendment such as this one since, as of yet, we have seen only relatively minor abuses of the privilege, at least at the presidential level (governors have made some gross mistakes with pardons in the past). So, I’m on the fence.
I don’t quite understand how this Pardon Board would be that much different than the normal judge/jury system, followed by appeals and/or the parole board. Aren’t the criminal courts, juries, and judges supposed to take all those things into account, at least numbers 1-6 on your list?
Is the assumption that the regular court system can’t get it right, so we need another pseudo court system to judge the case again?
I think I like the idea of presidents and governors holding the power to pardon, but it certainly does hold the potential for abuse if the leader were not a trustworthy person. I like the idea because sometimes it brings hope to all of us to see someone get mercy instead of justice.
Thainmu - I think that’s the point. It works ideally if someone is trustworthy. This power can be abused. It has rode the fence a few times (I think several examples were mentioned), but no one has of yet completely abused the power.
Darius - The federalist and anti-federalist papers are VERY good reading. Shows insight truly into the minds of the framers, and the arguments for and against a strong centralized nation. While I tend to lean more towards anti-federalist (I advocate a strong states government with a minimal central government, which is what I believe was the original intent. Oh how far we have travelled…), both sides make incredible arguments.
[spam deleted - Jew]
That GoogleBot is not Darius. It’s an impostor!