Thursday, November 27, 2008

BBC Takes on Pardons

Jonathan Beale of the BBC takes on presidential pardons in a somewhat generic piece entitled: "Dilemmas of US presidential pardons" (see full text here). Along the way Beale says:
But in Article 2 of the American Constitution the founding fathers gave the president the power to pardon in the interests of mending national wounds and to remedy injustice.
The "founding fathers" actually gave very little attention to the pardon power. It did not appear in either of the major plans discussed at the Philadelphia convention and was scribbled in the margin of a draft by a single delegate. It received only cursory attention near the end of the Convention when most of the delegates thought the really "important" stuff had been taken care of.

The idea of pardons "mending national wounds" and to "remedy injustice" is more accurately associated with Alexander Hamilton's discussion in the Federalist - written well after the Convention. Beale says, "at first the presidential pardon seems strange for a democracy and a proud republic - more like a divine right of kings." Guess what Mr. Beale, Alexander wanted the United States to have a king! He gave a speech several hours long at the Convention calling for one. The result? The natural-born citizen qualification for president - which excluded Alexander Hamilton!

Beale says there are "two kinds" of clemency, a commutation or a pardon. In fact, there are at least eight: pardons, conditional pardons, commutations, conditional commutations, respites, remissions of fines and forfeitures, reprieves and amnesties. He also notes:
But pardons can also contribute to a bitter aftertaste when a president leaves office and the most controversial ones are often left to the last moment.
But what is more interesting is the fact that we have long forgotten hundreds of seemingly unforgettable pardons. As for "often" saving "controversial" pardons for the "last moment," there is zero empirical evidence that presidents have done this. The sensible explanation for the impression is that members of the media are actually paying attention to pardons at the end of the term and, as a result, are more likely to generate "controversy" with their reporting. They then stand back and are impressed with their own work! But they shouldn't be.

On the positive side Beale did take the time and effort to contact at least one expert on presidential pardons, Professor Daniel Kobil of Capital University School of Law. Kobil says President Bush has "trivialised the power into a virtual non-existence."

1 comment:

Alex S said...

Just one comment: My understanding was that Hamilton was a U.S. citizen at the time of the adoption of the Constitution.

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