Saturday, November 22, 2008

Pardons for Fugitives

George Lardner Jr., an associate at the Center for the Study of the Presidency, is working on a history of the presidential pardon power. In today's New York Times, he has an editorial entitled "A Pardon to Remember," which focuses primarily on the role that Eric Holder played in the pardon of Marc Rich. PardonPower finds the following passage particularly interesting:

The precedent against pardons for fugitives was set more than 200 years ago by President John Adams. The charge, brought in 1799, was murder on the high seas against a ship’s captain who was clearly trying to put down a mutiny. But the mutineers made it back to the States, ready to testify against the captain, while his supporters were still at sea. The captain was afraid to return. Asked to approve a nolle prosequi (a notice that prosecution won’t be pursued, a procedure then treated as part of the pardon power), the president consulted his cabinet, which concluded that a trial should come first and a pardon, if justified, after that. Clemency, wrote Secretary of War James McHenry, should be exercised only with “great caution and on the fullest information.”

Mr. Holder never came close to meeting that standard. He had the last word at Justice on clemency petitions and he saw to it that he had the only word. He brokered one of the most unjustifiable pardons that an American president has ever granted.
It makes all the sense in the world that the pardon of a fugitive from law would not be "the norm" - regardless of what the Draconian John Adams, or the members of his cabinet had to say about it. But the sense of the language used here ("the precedent against pardons for fugitives was set more than 200 years ago") is somewhat odd. Presumably Lardner is aware of the fact that the same John Adams did in fact grant a pardon, in the same year (1799), to a fugitive from law and that Thomas Jefferson did the same in 1801. That is to say, two of our Nation's first three presidents broke the "precedent" Lardner is describing.

In a professional paper I delivered seven years ago, I observed:

In preparation for my forthcoming book, I scanned the Annual Report of the Attorney General over a twenty-five year period (1907 to 1932) with the specific goal of finding pardons that were given to “fugitives from justice.” Even though my approach was somewhat casual (essentially a lot of fast eyeballing of very, very small print), I found a dozen such instances. A one-every-other-year estimate for the period must certainly be low, or conservative, as I may very well have overlooked some relevant cases and, in some instances, the Report may simply not have mentioned the “fugitive” status of clemency recipients. Of the twelve fugitives I quickly identified, eight had escaped from prison and four fled either before their crimes were detected or during the appellate process (and they were presumably out on bond).
As I would later conclude, pardons for fugitives are certainly not the "norm," but they are far from the most radical or freakish events in the world of clemency decision making. Was 1932 a long time ago? You betcha. But the Annual Report of the Attorney General stopped reporting individual acts of clemency in 1933. Thus, our inability to generalize about pardons of fugitives is more due to a lack of data than it is any particular reason to think such activity just stopped instantly, in 1933. See the full Lardner editorial here.

2 comments:

Anonymous said...

Prof,

Your rejoinder is fair, as usual; history is always more complex than we would like. So, you're certainly correct that there is no settled practice against pardoning fugitives under any circumstances. After all, Pres. Clinton also pardoned Preston King, who was a fugitive, and I think that grant was both justified and well-received.

But I think the gist of Mr. Lardner's point(reading it sympathetically) is that such grants must be made "only with 'great caution and on the fullest information,'" and that "Mr. Holder never came close to meeting that standard."

There is the additional point, implicit in Lardner's piece, that Holder's "Gosh, I was just so busy that I wasn't paying attention" excuse is highly disingenuous, if not deliberately false.

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

EDITOR:Well, don't get me wrong. The piece is - as you suggest - a great review of Holder's relationship to the Rich pardon. And we should all be so lucky as to have the Times accept our editorials!

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