Mandatory Sentences and Presidential Mercy: The Role of Judges in Pardon Cases, 1790–1850
10 Pages Posted: 14 Mar 2010 Last revised: 26 Jun 2018
Date Written: February 13, 2004
This article looks at the way criminal sentences were determined in the early years of the Republic, and in particular at the mitigating role of the President’s pardon power. The federal justice system in the early 19th century seems in many respects a rigid one, with many penalties mandated by law and few opportunities to correct mistakes. Using illustrations drawn from archival pardon files, it shows that federal judges were, then as now, sometimes required by law to impose punishments they considered unjust. In such situations judges might recommend the case to the President for a grant of clemency. They did so more frequently than they do today, and with greater expectation of success. Judges urged the President to intervene not only in capital cases, but also in cases involving mandatory fines, corporal punishment, and prison terms. The experience of these early years, as reflected in the President’s pardon grants, underscores the importance of having a safety valve in any system of mandatory punishments, one that is both readily accessible and politically accountable.
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