Wednesday, July 24, 2013

Business Litigator's Seminar in Ignorance

The New York Times recently featured a Letter to the Editor by one Alan E. Sash of New York, also identified as a "business litigation attorney." Mr. Sash expresses his disagreement with the Times' suggestion that President Obama has been "timid" in his use of the pardon power. Writes Mr. Sash:
The pardon power should be used with caution and on a limited basis as a safety valve for true miscarriages of justice. It should not be used by a president to usurp the determination of a judge and jury that saw all of the evidence in the case, heard the testimony of the witnesses and observed the impact on the victims. There is no doubt that the power to pardon or commute a sentence is an important tool in our system of government, but it is a tool that should be used sparingly. If prison sentences are unjust or fines excessive, the more appropriate remedy is to change the law or to give judges more discretion in establishing the punishment for the offense. The answer is not broadening the use of the pardon power. 
The world of ignorance encompassed in these words could fill the pages of a medium-sized doctoral dissertation. Hopefully, Mr. Sash is more well informed with respect to matters related to "business litigation."

First, the notion that the pardon power should only be used "as a safety valve for true miscarriages of justice" is both dramatic and romantic, but completely without legal or historical basis. No Founding Father ever took this view. It is not expressed in the text of the Constitution, or any Supreme Court opinion interpreting the Constitution. For this, we can all get on our knees and thank God Almighty. Alexander Hamilton (a better brand of lawyer), in the Federalist papers, for example, argued the pardon power should be easily accessible (yes, you read that right, easily, not sparse), because, generally, criminal codes have a natural tendency toward progressive severity. Anyone seriously disagree with that? Hamilton also noted that pardons are significant political tools (for quelling rebellions, for example). Yes, there is a whole universe of possibility completely invisible to Mr. Sash.

Of course, Sash's view springs from the grossly ignorant supposition that pardons "usurp" judges and juries. With so very precious little research, Mr. Sash could learn that almost all pardons (as in well over 96 percent) granted throughout his entire life (state or federal) have been granted merely to restore civil rights (the right to vote, serve on a jury, hold public office, travel without restriction, etc.) No one is being sprung from prison. No judge or jury is being usurped at all. Typically, the offenses that are forgiven have been minor and committed decades ago. Who knows what color the sky is in Mr. Sash's world?

In a more intelligent use of language, Sash's letter argues that commutations of sentence "should be used sparingly." Even those casually informed know that there is no one, anywhere that believes commutations are raining from state or federal skies. Everyone agrees that this form of clemency has all but completely disappeared from our political system, but especially at the federal level, you know, where Mr. Obama works.

Mr. Sash may very well equate non-existence with "sparing" use, and sit back pleased. But, once again, this view of the pardon power is beyond odd. The Founding Fathers created a system of checks and balances and separation of powers. Their assumption (maybe not Mr. Sash's) was that no branch of government is perfect, much less the legislature. Laws are not perfect. They are often too narrowly written. They are increasingly overly vague. They have unintended consequences. They are applied unevenly, even incorrectly, or in direct opposition to the clearly stated intent of those that pass them. Mr. Sash's solution is, evidently, to just relax and let the suffering continue until the legislature corrects itself ... in any or all of these situations - again, a novel, but strikingly un-American idea.

In sum, clemency powers were given to the president to use, whenever necessary or proper. The president has no business neglecting the use of such powers and - in effect - assuming the superiority / infallibility of the other branches. No president should rearrange basic Constitutional principles and values via neglect, or fear of backlash from ignorant people like Mr. Sash. See Sash's letter here.

1 comment:

Anonymous said...

I wonder if any of his family or himself ever was in trouble if he Mr Sash would come up with a different view. Pardons are not handed out like candy at a parade. It a process that takes a long time to accomplish. A person must show their life history from the day they was convicted. The good they have done for their self and others. But yet a lot of times that's not even good enough..I remember the IL governor saying "JUSTICE DELAYED IS JUSTICE DENIED" and that goes BOTH WAYS..

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