Thursday, April 2, 2015

The Conservative Case for the Pardon Power (Repost)

Right On Crime (added to our blog listing) is a new site which claims to focus on "Conservative" views of the criminal justice system. In particular, it takes an interest in reducing crime, reducing the costs of criminal justice, reforming past offenders, restoring victims and protecting communities. In its Statement of Principles, the site notes that "Conservatives are known for being tough on crime," but argues it is also vital to achieve "a cost-effective system that protects citizens, restores victims, and reforms wrongdoers." In addition:
The corrections system should emphasize public safety, personal responsibility, work, restitution, community service, and treatment—both in probation and parole, which supervise most offenders, and in prisons. An ideal criminal justice system works to reform amenable offenders who will return to society through harnessing the power of families, charities, faith-based groups, and communities.
With these very concerns (and others) in mind, here are some reasons why Conservatives should favor well-articulated clemency policies which 1) regularize the process and minimize the tendency toward last-minute blitzes 2) restore a proper balance between the branches of government 3) address the specific concerns of Conservatives and 4) re-educate the American public as to the significance of the pardon power:

Reason 1: The pardon power is explicitly vested in the President of the United States by Article II, Section 2 of the United States Constitution. It is not derived from a so-called "elastic clause" or inferred from penumbras emanating from the Bill of Rights. The pardon power is not the result of a "test" imposed by judicial fiat, or a goal-oriented construction of the traditions and conscience of the people, or tortured divination of what is implicit in the concept of ordered liberty. It is a power explicitly granted and as firmly entrenched in the Constitution as the provisions creating a House and Senate and the federal judiciary.

Reason 2: In addition to being an explicit feature of our Constitution, the Founding Fathers made a conscious effort to emphasize the importance of this power. Federalist 74 (authored by Alexander Hamilton, who argued for the pardon power in his first speech at the Constitutional Convention) notes that pardons are a logical by-product of "humanity and good policy." Why? Because "the criminal code of every country partakes so much of necessary severity." The cure for this tendency? "Easy access" (yes, you read that right), "easy access" to "exceptions in favor of unfortunate guilt." Otherwise, says Federalist 74, "justice would wear a countenance too sanguinary and cruel."

Reason 3: The pardon power is not a fetish of ancient monarchs that accidentally crept its way into the Constitution. It is an important part of our system of checks and balances. Although political scientists have long recognized that our government more accurately features "shared" powers (as opposed to truly "separated" powers), the fact of the matter is that each branch has its unassailable weapon in the system of checks and balances. The Supreme Court has judicial review. Congress has the spending power. The president has the pardon power. For centuries, pardons have made up for the lack of flexibility in laws, anticipating - long before Congress - such considerations as reformation and rehabilitation, the juvenile status of offenders, the possibility of insanity, the considerable costs of incarceration, degrees of guilt in relation to murder, etc. Of course, pardons have also been used to blunt the impact of imperfect decision making in the judicial branch. To be sure, Conservative Presidents - for whatever reason - can neglect this power. But they do so at a cost to our political system and in direct contradiction to the intent of the Founding Fathers.

Reason 4: Conservatives have long recognized the importance of incentives, even in the arena of crime and criminal justice. But the public (and, evidently, most in the news media) doesn't seem to be aware of the fact that the typical (as in well over 95 percent) recipient of a presidential (or gubernatorial) pardon, today (and for the last several decades), is someone who has already served their time (if there was any time to serve), has taken care of all associated fines and penalties, and has integrated back into the community as a law-abiding citizen. That is to say, presidential pardons are not springing hardened professional gangland criminals from our prisons and tossing them into the streets, or overturning the judgement of judges and juries. The impact of pardons is to simply restore the civil rights of applicants. The pardon allows them to vote again, serve on a jury, run for public office, own a hunting rifle, etc. The problem is, today, the typical presidential pardon is also granted more than two decades after the offense, when the applicant is probably in his/her 60's or 70's. This, in itself, prompts many to ask, "Why bother? Why does a person even want a pardon?" It is clear that presidential pardons, if granted on a more regular basis, and in a more relevant manner, could provide powerful incentives for hopeful recipients to demonstrate just the kind of reform Conservatives (and every American) should desire.

Reason 5: "Controversial" acts of clemency get the lion's share of attention from the news media, and reasonably so. But this kind of attention invariably warps the public's general perception of pardons and, to some extent, the perceptions of politicians (who tend to view pardons as huge political risks requiring some grand expenditure of political capital). But Conservatives should give a long hard look at recent pardon "controversies." Yes, Democratic presidents have dropped some stink bombs along the way. But, on the Republican side, there is Richard Nixon, the Iran-Contra figures, Scooter Libby, etc. These pardons have all had a distinct "political" feel to them. Indeed, along the way, Republicans frequently expressed concern that Democrats were hunting for "show trials" and "criminalizing" policy differences. If there is even the slightest element of truth to these claims, we must seriously ask: Where would this country be, today, without the pardon power?

Reason 6: Conservatives and Liberals may differ as to the effectiveness of the War on Drugs, but no one doubts that it has failed to accomplish all that was hoped for and that it is very costly. Recently, Democrats and Republicans rolled back the 100 to 1 disparity in crack cocaine sentencing, reducing the ratio to 18 to 1. While the criminal justice system is likely to be more fair, as a result, even the most basic notions of justice (Conservative or Liberal) demand that we now consider the circumstances of those who were convicted under the previous legislation (almost 30,000 inmates). Congress has probably done all that it is going to do in this matter. It is the president who should now consider the careful, systematic use of the pardon power (or, more specifically, commutations of sentence) in individual cases - at a minimum - for first time, non-violent offenders who have already served considerable sentences and show evidence of rehabilitation (just as an example). In addition to approximating fairness, such use of the pardon power could save tax payers millions of dollars.

Reason 7: In recent years, some Conservatives have rethought their position on the death penalty. On the surface, it does seem quite odd that an ideology which seems to instinctively distrust the government would express such enthusiastic support for a process like capital punishment. Conservatives loath the growth of government and the expansion of its power. Catch phrases like "the nanny state" and "over-criminalization" are often employed by Conservative columnists. Or, in the very words of Right on Crime:
Thousands of harmless activities are now classified as crimes in the United States. These are not typical common law crimes such as murder, rape, or theft. Instead they encompass a series of business activities such as importing orchids without the proper paperwork, shipping lobster tails in plastic bags, and even failing to return a library book. There are over 4,000 existing federal criminal laws. (The exact number of laws is unknown because the attorneys at Congressional Research Service who were assigned to count them ran out of resources before they could complete the herculean task.)

In addition to the profusion of federal statutory crimes, there are additional state crimes (Texas alone has over 1,700), and federal regulatory offenses (approximately 300,000). The creation of these often unknowable and redundant crimes, the federalization of certain crimes traditionally prosecuted at the state level, and the removal of traditional mens rea requirements all contribute to a relentless trend known as overcriminalization.
Message to Conservatives: When George Washington worried that the government's charges of treason against the Whiskey Rebels were too Draconian, he pardoned them. When Thomas Jefferson thought the Alien Sedition Acts went too far, he promised, if elected, to pardon those who were convicted. As soon as he became president he pardoned the last individuals who were still being held for writing bad things about John Adams. When Woodrow Wilson had his veto of the Volstead Act overridden, he set records for pardons of individuals who violated drug and alcohol laws. When John F. Kennedy thought mandatory minimum sentences for drug offenders were too harsh, he granted pardons accordingly. Jimmy Carter promised a blanket amnesty for Vietnam draft offenders and delivered. It is quite obvious that, if Conservative presidents (and governors) ever decide to get serious about addressing the problems associated with government overreach, the pardon power is there, waiting.

Reason 8: Since the "law and order" campaigns of Richard Nixon, Conservatives have placed every seemingly "soft on crime" politician on the radar. When crime was among the highest concerns of Americans in Gallup polls (the 1960s and 1970s), it was clearly a strategy that worked, at many levels. Would Conservative presidents be going "soft" on crime if they granted pardons - as most presidents have throughout history - frequently, and on a regular basis throughout, the calendar year? There is certainly no doubt that someone, somewhere will make the accusation, especially if a single pardon recipient (out of no matter how many hundreds, or thousands) commits an additional offense. On the other hand, if pardons are granted more frequently, and on a regular basis, the American public (and the media) will quickly learn what has largely been forgotten: again, the typical pardon does not spring anyone from prison. It simply restores rights. An additional benefit of a more regular use of the pardon power is that pardons granted to the president's friends, fellow partisans and political supporters (all of which deserve justice and fair consideration as much as anyone else) will appear less significant. In general, the fewer pardons granted, the more obnoxious such pardons will appear (rightly or wrongly).

Should Conservatives take the lead on this matter? Should they take the risk, when it is much easier to simply do nothing? For the sake of the purity of our political system, in order to benefit from the wisdom of our Founding Fathers, in order to pursue justice and economic efficiency in the criminal justice system and in order to better articulate concerns with / and combat the ever invasive expansion of government ... the answer is clearly "yes."

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