Saturday, July 25, 2015

Commutations for "Classes of Persons"

If you follow the news, you know one exceptionally ignorant response to President Obama's recent commutations of sentence has been to claim - with zero evidence - that the pardon power was given to the president of the United States to be exercised in individual cases, and not with respect to "classes of offenders." Amnesties (which identify classes of offenders) are, of course, a great American tradition dating back to George Washington. One has to really work hard not to be aware of that.

A variation of the "argument" is to say, yes, amnesties are acceptable, and a steady feature of our history BUT they should only be used in exceptional circumstances, like the Civil War, World War I or World War II. This approach is at least less offensive to the senses. Many amnesties that have originated from the executive branch have focused on draft evasion and violation of various war time laws.

Notably, presidents have often granted individual commutations of sentence to classes of persons before those more well known amnesties. On March 3 and April 22, 1919, Woodrow Wilson commuted the sentences of 51 and 49 persons respectively, most of whom violated Espionage laws. On December 23, 1921 and June 19, 1923, Warren Harding granted 23 and 44 commutations of sentence mostly to persons who violated the selective service laws

On the other hand, the Whiskey Rebellion and Shays's Rebellion were not nearly as dramatic as they sound. One amnesty simply rewarded pirates for helping us out in the War of 1812. Mormons were also granted an amnesty for the practice of polygamy. Earthquakes are not a necessary prelude to amnesties, or the individual pardon of classes of persons.

President Obama is being criticized because his recent commutations recipients were drug offenders. To release them, the argument goes, is to "in effect" (in political rhetoric, very often code for "not really") usurp Congress and render legislation void, blah, blah, blah. These have always been the things people say when checks and balances don't go their way. In fact, Obama's commutation fit very nicely into the historical use of the pardon power.

On December 4, 1896, for example, Grover Cleveland commuted the sentences of 46 persons convicted of cutting timber on government property. They all violated a law that Congress wrote.

On June 6, 1903, Theodore Roosevelt commuted 24 sentences. Most were granted to persons who were given mandatory minimum sentenced for horse theft. One stole a horse and a saddle. Another stole a mule. One a cow. Roosevelt thought the sentences, created by Congress and applied by the judiciary, were not fair, proportionate, just.

On June 10, 1910, William Howard Taft commuted the sentences of 17 persons, most of whom made illegal sales of alcohol to Indians.

On January 7, 1932, Herbert Hoover commuted the sentences of 25 persons all convicted of the same crime - illegally entering the country.

Pardoning classes of persons, a great American tradition. By the thousands, the dozens, or just one at a time!

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