Reinventing the President's Pardon Power
Federal Sentencing Reporter, Vol. 20, No. 5, 2007
11 Pages Posted: 17 Aug 2010
Date Written: August 15, 2007
President Bush's commutation of Scooter Libby's prison sentence calls us to consider whether pardon has a legitimate role in the criminal justice system, or whether it should be consigned to the dustbin of history where it can do no more mischief. This essay argues for a reinvigoration of the constitutional pardon power - a reinvention if you will - by a president who has the political courage to use that beneficent power as the Framers intended. It describes the historical use of the power, explains how pardon fell into disuse and disrepute late in the last century, and proposes that pardon can and should be restored to a useful and respectable role in our present day justice system, and in our national politics.
The Framers of the Constitution did not regard pardon as a species of high-level gift-giving. They were intensely practical men, who conceived of the pardon power as an instrument of statecraft, and would not otherwise have given it to the president. They understood that the pardon power would be distrusted by the people and abused from time to time, but thought the risk worth taking. For them, pardon was a necessary and functional part of their carefully calibrated system of checks and balances, not a perk of office. Until quite recently that is how the pardon power was understood by our presidents, and they exercised it in a considered and meaningful fashion. In the past twenty-five years we have lost touch with the rich history of presidential pardoning. Four successive presidents have allowed the pardon power to atrophy, not because there was no more use for it—certainly this is not true since the advent of determinate sentencing - but because they both misunderstood and feared it. The Department of Justice, pardon’s trusted official custodian for more than a century, marginalized and compromised the power; the regrettable events at the end of the Clinton Administration were the direct result of this failure of stewardship.
And yet, even as pardon appears increasingly anachronistic and corrupt, its continued relevance in the federal justice system is suggested by the sheer size of the prison population and the array of collateral disabilities imposed on the growing population of people with criminal records. The fact is that the federal sentencing scheme assigns a central role to pardon, if only by default, because it provides no other way to take a second look at sentences that have become final, or to release a federal offender from the collateral consequences of conviction. No legal system should have to rely on executive clemency to do justice, but ours does.
Keywords: pardon, president, commutation, Libby, Bush
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