Thursday, June 5, 2008

Comment: "I promise not to pardon ..."

The Chicago Sun-Times recently got a charge out of reporting that presidential candidate Barack Obama had promised not to pardon or grant even a commutation of sentence for his friend, the recently convicted Tony Rezko. As it turned out, Mr. Obama made no such promise. The story was based on commentary by an Obama spokesman. See story here. Here are some reasons, however, why I think Obama should never make such a promise, and no candidate, or president ever should:

1. Say Rezko is in prison and doctors certify that he is on his death bed, less than twenty-four hours to live. If Obama makes such a promise, and intends to keep it, then Rezko might die in prison. Clearly many people would think that would be just fine. People die in prison all of the time. They would argue that a death-bed is no excuse for anyone being let out of prison. And that is fine. But many a president has felt differently. How does Obama feel about it?

2. Rezko was convicted. But what if, at a later date, some evidence develops which shows he is actually innocent? Not going to happen? No way? Impossible? Stranger things have happened dear readers. Do you keep an innocent man in prison because of such a promise?

3. Rezko will be sentenced on the basis of 16 counts. What if, at some later date, it is shown that he was innocent of a couple, or even one of the counts? What if substantial doubt emerges with respect to a count here and there because of new evidence, a confession, etc.? Should Obama insist that Rezko serve the original sentence, no matter what, because he made a stupid promise to a reporter?

4. Let's say Rezko goes to prison and repents. Everyone whose opinion matters believes he is sorry for what he did. He joins self-help groups and lead religious meetings. He assists others. He seems to rehabilitate. It is right to take the position that somehow he is exempt from this sort of transformation? Are his crimes really the very worst ever committed? Rehabilitation is a classic goal of sentencing. What if the goal appears to be accomplished in his case, again, from the standpoint of the persons who make such judgments? Should Obama ignore it as though it did not (or could not) happen?

5. Say Rezko decides to become the government's key guy, revealing all sorts of crime and corruption beyond his case. Clemency is routinely offered up as a kind plea bargain tool in such scenarios. Prosecutors say, "You give us the goods. If there are convictions, we will support your bid for clemency." They cannot promise clemency, of course, but a judge might also be impressed by such cooperation. So, you are President Obama. Rezko has served a portion of his sentence. He is cooperating with the Department of Justice and convictions are falling from the sky. The prosecutors and the sentencing judge recommend some form of clemency - not necessarily a full pardon, but a reduction of a year or two. Do you blow them all off because of your promise? Do you refuse to reward the cooperation?

6. If an imprisoned Rezko has the sense that a President Obama will never, in any circumstance, pardon him or grant a commutation of sentence, then he (Rezko) will certainly have no incentive to ever cooperate with the government on any other count.

On a final note, as I wrote number 5, I wondered when the conspiracy theorists are going to emerge with the obvious ... (imagine creepy music here) ... "the Bush administration will wait until October. Then surrogates of the President in the Justice Department will approach the imprisoned Rezko and offer a clemency deal. But they will do so in a subtle way so that Rezko will not be able to spot it and reject it loudly. Clemency will be offered in exchange for information which implicates presidential candidate Obama. The validity of the information will not be so important. The desire will simply be to fill news headlines with words like subpoena, grand jury, investigation, criminal investigation, possible indictments, etc., right before the election ... kinda like the way Mr. Walsh indicted Casper Weinberger the Friday before the 1992 election (end creepy music).

Oh boy, I can see the Huffington Post whirling that one around!

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