Sunday, March 27, 2016

The Pardon Power: FAQ for Post Readers

Today, the Editor of this blog has the privilege of appearing in the editorial section of the Washington Post with George Lardner, Jr. The basic premise of the piece is that President Obama's promise of Hope and Change appears to have had little impact on the dysfunctional bureaucratic apparatus that manages clemency applications. President Obama is not the cause of this problem but, for some time, he has clearly raised the expectation that he would address it unequivocally. To date, his record is far from impressive. This late in the term, we wonder if a surge in grants - no matter how well deserved - would cause more general harm than good to the reputation of the pardon power. See the full editorial here.

And, make no mistake, the reputation of the pardon power is not good. Just check out the comments section on the Post editorial piece! Wanting to make the most of the opportunity, the Editor has taken the time to address some of the more calm, thoughtful, non-partisan comments but is reminded that, when it comes to the pardon power, the same set of mis-perceptions remain. In public discourse, the same things often needed to be said, over and over. Here are a few examples of standard concerns, and replies:


It's Risky. Too Great of a Chance of Political Backlash 

The pardon power is absolute. The president does not need an ounce of support, from anyone, much less Congress, to exercise it. Additionally, the political backlash argument simply does not fly far, or high. President Obama has pardoned 70 people. It would be a miracle if you could name a single one of them. He could pardon hundreds more to the same effect. The typical (as in almost every) pardon recipient has committed a minor, non-violent offense years (if not decades) ago, has served their time (if they ever had any) and has been a law abiding citizen ever since. No one is being released from jail. No considered judgment of a judge or jury is being overturned. They simply want pardons so their civil rights can be restored. There is no political "heat" to take, no "controversy" to generate. 

With respect to commutations of sentence for persons in prison, both parties in both chambers of Congress have agreed that the former sentencing laws were ineffective if not outright unfair. The Left and the Right (Liberals and Conservatives) are increasingly in agreement re the War on Drugs, the over-criminalization of law, the high costs of the ineffective prison system and the need for less-costly, more effective alternatives to incarceration. To be sure, there will always be someone, somewhere, who will find some way to be critical about what the President does, or does not do. But, what is also true is this: there is no doubt whatsoever that this president (Obama) is in the middle of the most bi-partisan mood there has been in this country, on this topic, since the 1950s. It is clear that he has plenty of political capital to spend.

Pardoning is Outside / In The Face of the Law / Overturns Judges and Juries

Your understanding of the pardon power is flawed. The pardon power is part of (not contrary to) our constitutional system of separation of powers and checks and balances. It is based on the assumption that legislators and judges are not perfect (you may disagree). It also assumes presidents will be part of the criminal justice process, not motionless, irrelevant, by-standers. Most presidents - armed with those understandings - have not avoided the power. Indeed, they granted pardons regularly, every month of the term, a few of them missing one or two months at most.

The President is Too Busy 

The days of presidents mulling over clemency petitions, one by one, deep into the night and early hours of the morning are long gone. We now have a huge, costly bureaucracy, the Department of Justice (DOJ). Within it is a mechanism, the Office of the Pardon Attorney (OPA), complete with staff, that is supposed to process clemency applications and forward recommendations to the president. Virtually every knowledgeable observer of this process concludes that it is failing. It is dysfunctional. It is time to move the clemency process out of the DOJ – it was not always there - and into the Executive Office of the President. Political scientists have been recommending something like this, off and on, for almost 100 years.

If You Can't Do the Time, Don't Do the Crime

Hamilton, Federalist 74 "Humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed. The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel."

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