Sunday, June 8, 2008

Comment: The Court's Clemency Caper

Everyone has their angle on what is wrong with the pardon power and what can be done about it. Here is where PardonPower stands:

The president's power to pardon is, in large part, a giant mess, because of the United States Supreme Court. The blundering began one hundred and seventy-five years ago, in a very quirky case (good start!), where an individual facing a possible death sentence refused to include, as evidence, a grant of clemency that he received from President Andrew Jackson (in a separate but related proceeding). In his analysis of the pardon power, Chief Justice John Marshall (among the most extreme wing of the Federalist gang) argued that the president's power to grant pardons should be interpreted in light of the practices of the Kings of England. To this day, most Supreme Court opinions have followed this premise and, on occasion, have sprinkled in two additional ideas (both of which are false): that the Framers of the Constitution carefully considered the inclusion of this power and that the Kings of England were not restricted in their use of it.

Marshall's opinion hardly shocked the Nation. Most Americans were busy doing other things and the Supreme Court was easy enough to ignore back then. Why, had he been alive, Alexander Hamilton may have applauded the decision, or announced a new tax in its honor. After all, Hamilton was the one who stood up at the Constitutional Convention and gave a speech, lasting several hours, which called for a king in America. Of course, it was those sort of ideas that made Hamilton wildly popular with the masses and earned him a solid shooting from Mr. Burr.

The more logical thing ruling for the Court - given the clear trends in the colonies, the Articles of Confederation and trends in the states - would have been to asset that the president's pardon power had to be interpreted in light of our written Constitution (something England does not have to this day and, thus, no King ever had to deal with). After all, he is a president, not a King. The Court should have asserted that the pardon power had to be assessed in light of our system of checks and balances and separation of powers. Likewise, it should have ruled that the power had to be utilized in consideration of the Bill of Rights. Would the Constitution have ever been ratified to begin with had it been asserted at the state conventions that the president could violate the Bill of Rights at will with the pardon power? Of course not.

What did the Kings of England do with the pardon power? They abused it like crazy. They pardoned on the condition that prisoners serve in the military or go to the colonies and assist in population growth. They sold pardons in order to beef up the treasury. They used clemency to extort money from the rich and to celebrate their own birthdays. One King sold pardons and split the money with his mistresses. This was the "intent" of the Framers was it? I suspect not. "Yes," one could say, "but in our system, we can impeach a president who uses the power in such an abusive manner." Sure you can, unless they do pardon stunts at the end of the term, while Congress is running for re-election and busy jockeying for positions and status in the oncoming administration. Not much of a check there.

In this article, we see a government granting pardons to 2.8 million people to mark President Lee Myung-bak's 100th day in office. What a dumb way to do things! And yet that is just about where the 1833 ruling of the Supreme Court in U.S. v. Wilson has placed the bar for American presidents. It is no wonder that they have granted the most "controversial" pardons, over and over and over, without serious concern. And no one has done anything about it, except threaten, or purt on show-investigations and point partisan fingers in hopes of short-term PR victories. On the other hand, here is a passage from a dissent, in a more recent Supreme Court case (Schick v. Reed, 1974) which uses the kind of logic we need in majority opinions:

While the clemency function of the Executive in the federal criminal justice system is consistent with the separation of powers, the attachment of punitive conditions to grants of clemency is not. Prescribing punishment is a prerogative reserved for the lawmaking branch of government, the legislature ... the primary resource for analyzing the scope of Article II is our own republican system of government. The separation of powers doctrine does not vest the Chief Executive with an unrestrained clemency power, but views his functions as distinct from the other coordinate branches ... Indeed, history recounts that even the pardon power of the King to "annex [a condition] to his bounty" was subject to statutory limitation. The sovereign of England, with all the prerogatives of the crown, in granting a conditional pardon, cannot substitute a punishment which the law does not authorize.... The great discretion available to the King to dispense mercy did not incorporate into the pardoning power the royal right to invade the legislative province of assessing punishments.


Shane said...

I am sort of wondering what exactly you are arguing about...Is it just the fact that executives sometimes use their pardon power incorrectly? if so how often is it a problem? Is it just where the executive puts some conditions on clemency? Are you aware she can only relieve punishment and never increase punishment? As the last reprieve, the very last stop in criminal justice matters you dont think clemency has a role in our system of justice and government administration? make your argument more concise so we can actually debate.

P.S. Ruckman, Jr. said...

Editor: Apologies for any confusion. My position is that the president is not a king and never should have been declared so by the Supreme Court. So, in my view, while the pardon power is certainly a legitimate and important power, it should be subject to review, consistent with our system of separation of powers, checks and balances and the Bill of Rights. How is that for concise?

As for never being able to increase a punishment, well, that can be a little tricky. What about the person who says life in prison is worse than execution? What if a 1-year sentence is "commuted" to a $5 million dollar fine? Is that really a reduction? There is room for play here. Best,

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