Tuesday, January 27, 2009

A Reader Comments on the Toussie Pardon

The following is a response from a reader regarding the Washington Post editorial by Prof. Brian Kalt on the pardon - an unpardon - of Isaac Robert Toussie (linked here):

Kalt, I submit, is all wet. He says, for instance, that modern decisions step away from the old notion of pardons as "acts of grace," but he doesn't cite any. Perhaps he is thinking of the Perovich case, which isn't that modern. I thought Justice Holmes was absolutely right in that case when he said a pardon is a decision of the president in the public interest, and that should be that. But then he backed off near the end of his ruling, limiting it to commutations and leaving Burdick intact for pardons. President Ford, for one, was happy about that. The Burdick ruling was a key factor in Ford's decision to pardon former President Nixon. When Nixon refused to acknowledge his crimes, or even his obstruction of justice, in signing for the pardon, Ford consoled himself with the Burdick doctrine that acceptance is an admission of guilt.

Kalt also tries to make a distinction between the Depuy and Toussie cases by noting that the Depuy pardon was conditional whereas Toussie's was not. He says the Depuy pardon required payment of a fine and that condition was not fulfilled. The distinction is meaningless. Depuy never had an opportunity to pay the fine because the pardon was withdrawn before it was delivered and accepted. And the Burdick case applied the delivery and acceptance rule, for the first time, to full and unconditional pardons.


Brian Kalt said...

To respond:

I'd cite Schick as another example.

On De Puy, I think that the distinction is potentially very important. I think that we all agree that one of the important considerations for the revocability question is finality. Clearly, we can disagree over what makes a pardon final, how final Toussie's was, and how revocable a final pardon is. But compare (1) an otherwise-final conditional pardon in which the condition has not yet been met; and (2) an otherwise-final unconditional pardon.

It seems to me that there is an important difference in terms of finality between the two. Though a court could call both of them revocable, or both of them irrevocable, I see plenty of room to draw a line between those two cases, should a court be so inclined.

On the other point, about De Puy and paying the fine, there was no reason that De Puy couldn't have paid the fine. Of course, he didn't know yet about the condition attached to the pardon, and it isn't clear that the court wouldn't have let the pardon get yanked even if he had. But there is still room for the distinction.

To put it in the commenters terms, someone reading Burdick alone could easily say that the distinction between accepting a pardon and accepting the commutation of a death sentence is meaningless. (Indeed, the Court's own language seems to reject that distinction.) But then came Biddle v. Perovich. The distinction didn't matter in Burdick. When it did matter, the Court addressed it.

Maybe I am all wet, but we won't know for sure until and unless the courts weigh in.

Anonymous said...

I think the reader's interpretation of Burdick is mistaken in another significant respect. The Burdick case was not about delivery. Rather, the specific and narrow question before the Court was whether a pardon had to be ACCEPTED to be valid. Read the opinion again. This question arose because the prospective grantee (unlike Toussie) didn't want to be pardoned. The Court held that acceptance was required and, to be sure, assumed that delivery of some sort was a prerequisite to acceptance on the "deed" analogy. But the question of what constitutes effective delivery or constructive delivery was not in dispute and was thus not litigated. Put otherwise, the plaintiff in Burdick conceded that delivery had been made; the only question was whether he could reject it.

Hence, Burdick is not authority for the proposition that actual physical delivery of a piece of paper is a prerequisite to the finality of a pardon grant, much less that notification of the sort Toussie's lawyer received isn't sufficient to count as constructive delivery. Burdick is simply silent on that issue.

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