At this point a posthumous pardon would further trivialize the significance of a power that should, instead, be both profound and relevant. Instead of engaging in the gratuitous, symbolic politics of the legislature, the president should reserve the pardon power to address the real problems of the thousands of living people whose applications are sitting in the Department of Justice and the Office of the Pardon Attorney, waiting (in many instances for YEARS) for some president to act.Background: In recent years, the Office of the Pardon Attorney (OPA) in the Department of Justice (DOJ) has received a record number of applications for pardons and commutations of sentence. As a result, there also emerged a record number of applications which were simply not addressed (acted upon). Many such applications have been sitting around in the DOJ for years! To date, however, President Obama has not granted a single pardon or commutation of sentence.
Nonetheless, the Congress of the United States is generating publicity by a formal request that the President employ his pardon power in a classic, symbolic and gratuitous manner - by pardoning a long dead celebrity (the boxer Jack Johnson). This is, of course, the very kind of meaningless show-boat stunt "politics" which prompts Congress to "declare" National Frisbee Day. The president's Article II power to pardon, however, should be reserved for matters more profound, pressing and relevant. It certainly appears that the problems created by mandatory minimum and disproportionate sentences are far too great for members of Congress who would much rather endear themselves (to constituents?) by taking time out of the legislative process to "declare" a National Blame It On Someone Else Day.
Mr. President, do not stain yourself and the pardon power with the shameless posturing and shallow habits of Congress. Let the desperate-to-be-more-popular members of Congress use their own powers, and pass as many formal resolutions as they like, proclaiming Jack Johnson's innocence, lauding his many virtues and praising his many notable "contributions" (to boxing!)- if that is what they choose to do. Meanwhile, Mr. President, you should concentrate on using your powers to address systematic deficiencies and enormous, real-life concerns related to our system of criminal justice. Before we even think about rescuing the reputation of a famous dead man at the request of high-profile congressional leaders, prominent athletes and a notable film maker, we should consider (and address) the current, continual suffering of hundreds (if not thousands) of nameless clemency applicants who are without the kind of access that accompanies fame and fortune and who, as a consequence, have waited far too long for their government to act.
It is well worthy of note, Mr. President, that the first granting of a posthumous presidential pardon did not occur until the administration of Bill Clinton, a full 210 years into our Nation's history. That administration was, of course, notorious for its neglect of (and lack of interest in) the pardon power. It then ignored standard procedures and processes and left a trail of controversial pardons arguably unmatched. The president who ignored the long-standing practices of the Department of Justice and attorneys general in order to grant the first posthumous pardon granted pardons to his own brother, the FALN terrorists and Marc Rich. Such was the quality of his judgment. You, Mr. President, can do better, for yourself and the pardon power.