Monday, February 25, 2008

Context: Presidential Pardons, Drugs and Alcohol

I thought I would use this post to provide additional context to the recent Dallas Morning News editorial by law school professors Marc Miller (University of Arizona) and Steven Chanenson (Villanova). The piece calls on President Bush to use the pardon power to "fix and publicly address" what they see as "systematic injustices" in federal drug sentencing policy. While federal drug sentencing policy is not a topic of personal interest, and my expertise on the matter is quite limited, I have long been intrigued by the seemingly forgotten checks-and-balances nature of the clemency power in relation to such laws.

In 1912, when Woodrow Wilson was asked to express his opinion regarding a National Prohibition law, he wrote that he was a "thorough believer in self-government" and that he favored "local option." In his mind, when "social" and "moral" questions were mixed with party politics, the result was "utter confusion." He also worried that such things had the tendency to throw "every other question, however important, into the background." As Wilson later put it:
You cannot regulate the morals and habits of a great cosmopolitan people by placing unreasonable restrictions upon their liberty and freedom. All such attempts can end only in failure and disappointment. In the last analysis, in these matters that seek to regulate personal habits and customs, public opinion is the greatest regulator.
The Volstead Act or the National Prohibition Act (41 Stat. 305) was a measure devised to enforce the then nine-month-old 18th Amendment. The Act was passed in the House of Representatives in July of 1919 by a vote of 287-100. The Senate then gave its support with a voice vote in September. In October, a conference bill passed by a vote of 321-70. The Act prohibited the manufacture, transport, export, sale or possession of alcoholic beverages within the United States and defined "alcoholic beverages" as those that contained more than one-half of one percent of alcohol. Federal agents were also empowered to investigate and prosecute violations.

But, to the surprise of many, an ailing President Wilson found the strength to veto the Act on October 28. Two hours after his veto message arrived in the House of Representatives, it was overridden by a vote of 176 to 55. The next day, the Senate also voted to override 65-20. The United States was officially "dry."

This much everyone seems to know. But what has not seen the light of day is the manner in which President Wilson persistently utilized the pardon power to express his disagreement with the tenor of Prohibition. Like most presidents before and after him, he granted that largest number of pardons in the fourth year of both of his terms. But 16 percent of the 221 pardons that Wilson granted in his first year as president were related to alcohol or drug offenses (via the Harrison Narcotics Act). With each year, the percentage of such pardons increased (26 percent, to 28 percent, to 38 percent). With the appearance of the Volstead Act (in the second year of the second term) one out of every four pardons was related to drug or alcohol offenses - this despite the fact that Wilson was setting records for pardons including: the highest number overall, the highest number granted in a year, and the highest number granted in a single day. Wilson set a personal record for alcohol and drug pardons (with 179) in his very last year as president.

I have yet to see a single criticism of Wilson's use of the pardon power in these cases, suggesting to me that the political environment was much more comfortable with the checks-and-balances nature of the pardon power than is probably the case today. Wilson's view of policy differed from that of Congress, which had had its say. As president, he had a Constitutional mechanism to express his own viewpoint on the matter. And he used it. That was that. Of course, another potential (and certainly plausible) explanation for the lack of controversy rests in the fact that Prohibition was increasingly unpopular and, as Wilson had predicted, largely unenforceable.

In sum, it would seem that the student of today's federal drug sentencing laws would find great interest in further exploration of Woodrow Wilson's use of the pardon power.

No comments:

blogger templates | Make Money Online