Friday, December 31, 2010

Conditional Pardons, eh?

With all of the chatter re Haley Barbour's conditional pardon of the Scott sisters, it is a great time for interested readers to review Harold Krent's fine work entitled Presidential Powers (2005), a work, in part spring-boarded by a 2001 California Law Review article by Krent on conditional pardons.

Many presidential pardons and commutations have been conditioned upon the recipient leaving the country - usually “soon” but, in some instances, “forever.” And, in most of those instances, "forever" constituted a longer period of time than their original sentence!

Curiously, many acts of clemency have required the individuals to simply leave the Washington, D.C. area. Benjamin Ahley was pardoned in 1853 on the condition that he leave Washington until he was twenty-one years of age. In 1861, Charles de Villies was asked to leave the same area, but only for a period of five years. Jesus Pena (1920) was released on the condition that he be deported to Mexico. Victoria Pool (1877) was pardoned on the condition that she leave Washington and “be removed” to North Carolina. Samuel Edgar McIlhenny was allowed to leave prison in 1922, but only if he left with his mother. And, she had to take his little butt right back to Dallas.

James Madison pardoned individuals on the condition that they join the navy. Andrew Jackson pardoned a juvenile on the condition that he would acquire “some beneficial trade.” Warren Harding pardoned Daniel L. Finch on the condition that Finch “promise” to support his own wife and kids. President Cleveland pardoned one man on the condition that he never again carry a “pistol or any other deadly weapon” and another (convicted of assault) on the condition that he never again drink liquor! Cleveland was a bit more lenient with Henry W. Hord (convicted of passing counterfeit money). Hord could not drink liquor for a period of five years.

President Taft remitted a fine on the condition that the same amount be spent by the recipient in efforts to keep his kids in school. Lupo the Wolf was pardoned on the condition that he no longer associated with evil persons - we all know who they are! Jimmy Hoffa's sentence was commuted on the condition that he not participate in union activities - arguably, a violation of his First Amendment rights.

Professor Krent notes that, throughout our nation’s history, the constitutionality of “conditions” attached to acts of clemency has been challenged. But, thus far, “no federal court has ever held any condition invalid.”

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