Friday, September 21, 2012

Osler: On Debates and Pardons

Over at Huffington Post, Prof. Mark Osler has written a cool piece which begins with the observation that the pardon power is "the drunk uncle of presidential politics, awkwardly ignored until there is a disaster." True enough. Osler observe that, other than in the aftermath of the occasional "controversy," the pardon power rarely "comes up as a subject of discussion in presidential campaigns." But he hopes that - this time around - debate moderators will "change that."

Osler says President Obama has "simply failed to use clemency" and that his apparent "disinterest" is in stark contrast to the "the needs of the country." And, 
Despite the rich history of clemency and the repeated controversies of the recent past, the pardon power somehow escapes our attention when we are interviewing the candidates for President. We never push them to articulate a principle that would inform these important decisions, and we fail to press for even a declaration of whether the pardon power should be used at all. The time to articulate a clemency policy is now, in the heat of the race, so that we can measure the candidates against one another and make an informed decision. 
The Editor made a similar observation, in the Clarion-Ledger (February 12, 2012) in the aftermath of the Haley Barbour's controversial last-minute pardons:
... Mississippi legislators should also take note of what Alexander Hamilton says in Federalist 74 regarding Haley Barbour-like pardoning. Hamilton argues the executive will rightly exercise "scrupulousness and caution" in granting pardons, and do so with “circumspection" if there is "dread" of being “accused of weakness or connivance" and the executive is in "apprehension of suspicion or censure" for pardons which are considered "injudicious" or "affected." Which is to say, the best check against the abuse of the pardon power is, and always will be, constant public scrutiny. Mr. Barbour clearly did not experience anything at all like dread, apprehension or circumspection.

Yet, Hamilton's analysis all but screams the solution: Mississippi gubernatorial candidates need to be asked about their view of pardons. Do they intend to grant them? If so, how often? Or, how little? And why? They also need to be questioned about last-minute pardons and what factors they would consider in granting pardons. Candidates should explain their view of the State's Parole Board, how important they consider its work and whether or not they will generally follow its recommendations? Such scrutiny would, of course, provide a public record, which would allow for additional scrutiny, the entire term.
Finally, we also noted, in November of 2010, that, on page 104-5 of his book George W. Bush talks about the "flood" of clemency requests in the last days of his administration. Bush wrote:
"I told Barack Obama about my frustrations with the pardon system. I gave him a suggestion: announce a pardon policy early on and stick to it."
Says Osler, "We should not let this failure repeat itself yet again" (in either a second administration of Obama or in a Romney administration). We could not agree more! See full editorial here.

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