13 Pages Posted: 9 May 2001
Date Written: August 9, 2001
This paper considers the constitutionality and wisdom of systematic presidential pardons. A systematic pardon is a pardon applied to a group of offenders selected based on described and consistent criteria and processes, and for reasons that may reflect concerns of justice, equality, and wise policy, rather than mercy.
Though the question of the validity of systematic pardons has been ignored by academics, it is far from merely academic. Systematic pardons have been used by presidents through U.S. history, including modern pardons for draft resisters after World War II and the Vietnam War, and pardons for offenders who received excessive mandatory sentences under the Narcotics Act of 1956. Sometimes these pardons have been issued for all members of an identified class; in other instances special presidential boards have been set up to evaluate a group in terms of articulated criteria and to then make pardon recommendations.
Shortly after the last presidential election, President Elect Bush and President Clinton both observed that the penalty differentials for possession of crack cocaine and powder cocaine are unjustified. Scholars and the U.S. Sentencing Commission have noted the highly disparate racial impact of the current 100:1 crack/cocaine "quantity" ratio under federal sentencing laws. We examine whether President Clinton then or President Bush now might use the pardon power to reduce incarceration for a class of people serving sentences for possession of crack cocaine to the level of those incarcerated for possession of powder cocaine, or to some other level fully articulated and justified as principled policy.
The basic constitutional objection to systematic use of the pardon power by a president to further a policy goal is that it may violate the separation of powers to allow the president to undo what Congress and the courts have approved. We consider the tension between the president's obligation to "take Care that the Laws be faithfully executed," Art. II, sec. 3, and the distinct constitutional power stating that the President "shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment." Art II, sec. 2, cl. 1. We examine evidence of original intent, constitutional interpretation of the pardon power, and the overlooked historical practice regarding systematic pardons. We conclude that systematic pardons are both constitutional and, in appropriate circumstances, wise policy.
Keywords: pardon, pardons, constitution, executive, president, crack, cocaine, Bush, Clinton
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