The Quality of Mercy
Via Steve Benen, a look a the folks hoping to get out of jail:
With a backlog of applications piled up at the Justice Department, high-profile criminals and their well-connected lawyers increasingly are appealing directly to President Bush for special consideration on pardons and clemency, according to people involved in the process.
Among those seeking presidential action are former junk-bond salesman Michael Milken, who hired former solicitor general Theodore B. Olson, one of the nation’s most prominent GOP lawyers, to plead his case for a pardon on 1980s-era securities fraud charges. Two politicians convicted of public corruption, former congressman Randy “Duke” Cunningham (R-Calif.) and four-term Louisiana governor Edwin W. Edwards (D), are asking Bush to shorten their prison terms.
George H.W. Bush was an okay president and Bill Clinton was a good president, but neither could restrain themselves from legacy-tarnishing midnight pardons. George W. Bush has been a terrible president and appears to lack any of the intellectual, ethical, or temperamental qualities associated with good leadership. So presumably he’ll do something worse. I can hardly even imagine it. I also can’t help but wonder if the pardon power — which, as Sandy Levinson has argued seems to be an odd monarchist holdover into our republican system of government — shouldn’t be done away with or radically changed.
52 Responses to “The Quality of Mercy”
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November 24th, 2008 at 12:46 pm
At least we need some check on the Pardon’s use. Think Constitutional amendment.
1) Time - no more lame duck pardons. Ban it from a week before presidential elections till the next inauguration.
2) Who - Executive branch officials can not be pardoned without congressional approval.
3) What - no more pardons without specifying the crimes being pardoned, in specificity.
November 24th, 2008 at 12:49 pm
Recent presidents have issued far fewer pardons and other kinds of clemency action than older presidents. Franklin Roosevelt issued almost 4,000. Truman, over 2,000. Johnson and Eisenhower, almost 1,200 each.
November 24th, 2008 at 12:51 pm
it absolutely should be done away with, it’s a huge fuck-up in the constitution.
it’s a slap in the face to “government of laws, not men”.
November 24th, 2008 at 12:52 pm
“pardon power — which, as Sandy Levinson has argued seems to be an odd monarchist holdover into our republican system of government — shouldn’t be done away with or radically changed.”
How is it un-republican that executives can pardon people? The amount of damage that Clinton has done to his legacy from his bad pardons seems to be at least proportional to the small amount of harm that his pardons have done to society. Huckabee’s political career has been seriously damaged by a bad pardon, and as a result some executives like Romney don’t pardon anyone. It’s not some sweeping, dangerous power without any political checks on it.
November 24th, 2008 at 1:02 pm
it absolutely should be done away with, it’s a huge fuck-up in the constitution. it’s a slap in the face to “government of laws, not men”.
Laws are only effective if men are willing to enforce them. What do you propose to do about prosecutors who decline to bring charges, and juries that acquit because they think a law is unjust?
November 24th, 2008 at 1:15 pm
this is really lazy of me, but, i am basically copying this from a comment i left elsewhere a week or so ago. msotly becuase i am pressed for time, but also because when we on the left are as meciless as right-wingers, we are wrong.
we have pardons because the ruler traditionally had the discretion to grant clemency. clemency need not be rational; it need not be justified; it need not be merited. can it be abused? sure, in at least three ways, i think, cronyism, overuse, and underuse.
the first is always trotted out when someone we [whatever we is out of power] disfavor is the beneficiary. sometimes the criticism is warranted, sometimes not. we get to criticize, but think hard about eliminating the power. the next time you read the (true, but surely maudlinly written)article about the girlfiend of the drug dealer who got 20 years because she was the prosectuor’s bargaining chip and the dealer didn’t fold, you’ll want the power back. no reasoanble guideline can be written to pardon those we like and not those we don’t.
the second has rarely been a problem. the third, to some of us, has been the real scandal of the last 16 years. all those last minute pardons from clinton came because the power had been barely exercised over the first 7 years and 11 months. bush too has been mercy-challenged.
i’m in favor of mercy. it’s a big country, with a lot of people in jail and in which a record hampers one for years to come. a little mercy a few hundred times a year cannot hurt. that we disagree with individual exercise of the power should not lead us to ablosih it as a constitutional mistake or a monarchial hangover. it isn’t a mistake. it is a monarchial residue, but one that has only benefits. the person pardoned benefits directly and we all benefit from the existence of mercy.
November 24th, 2008 at 1:17 pm
One thing to consider about changing the pardon/clemency power: The courts will not undo or modify convictions or sentences unless the conviction/sentence is tainted by some legally cognizable error — and “error” does not (so far) include the mere fact that the person was innocent. The courts have been quite clear that any such claims are properly made to the executive. There has to be some means of overturning or modifying convictions based on considerations beyond legal error, including in some cases mercy. If that means is not to be lodged in the executive, then it needs to be placed somewhere.
November 24th, 2008 at 1:20 pm
George H.W. Bush was an okay president and Bill Clinton was a good president
Neither of these statements is true.
November 24th, 2008 at 1:23 pm
Yes, full and unreviewable pardon power vested with President seems like a very bad idea, especially for preemptive political pardons of people who work in the Adminstration. I can see the need to a pardon power, but it ought to rest with a less political agency than the President. Say a pardon commission appointed by Congress.
November 24th, 2008 at 1:25 pm
Recent presidents have issued far fewer pardons and other kinds of clemency action than older presidents.
Are you counting Carter’s pardons (ok, amnestry cause you are a nit-picker) of draft dodgers?
Pardoned by Carter
The bigger issue you are ignoring is not the raw number, but special cravenness of pardoning folks from the Executive Branch. - Nixon, Libby, the whole Iran Contra crew, etc. Throw in Susan McDougal and Henry Cisneros for the Clinton side too.
November 24th, 2008 at 2:31 pm
When Bush the First pardoned Iran-Contra people, he was pardoning himself. If some of those people had been brought to trial, Bush’s own involvement in Iran-Contra would have come to light. Walsh deeply regretted not being able to get to the bottom of Bush’s role.
Chapter 28, Walsh Report: George Bush.
November 24th, 2008 at 2:34 pm
And I guess I should spell it out: When George W. Bush pardons people, he will be pardoning himself.
The law should be changed. No President can pardon his own subordinates.
November 24th, 2008 at 2:35 pm
Susan McDougal was not from the executive branch. According to her, she was imprisoned for refusing to offer perjured testimony against Clinton.
November 24th, 2008 at 2:42 pm
Cisneros and McDougal? Seriously? You object to those? Why?
Just providing an example of a Democrat issuing pardons for members of their administration, or folks accused of covering for the President. I don’t have an objection myself for those cases.
November 24th, 2008 at 3:00 pm
Are you counting Carter’s [amnesty] of draft dodgers?
If we count all those as separate pardons, then Carter probably beats all other presidents combined.
Strangely, I don’t liberal critics of the pardon power attacking Carter for this.
November 24th, 2008 at 3:10 pm
Precisely, dear Mixner. In fact, it was just the right kind of pardon. Not a venal, self-serving ass covering, but a move to heal wounds in our country.
November 24th, 2008 at 3:21 pm
The law should be changed. No President can pardon his own subordinates.
This is exactly the change that should be made. There is a difference between cronyism, which is untoward but difficult to objectively determine, and the ability to insulate the president and members of the administration from any of their own misdeeds.
November 24th, 2008 at 3:31 pm
Precisely, dear Mixner. In fact, it was just the right kind of pardon.
So the pardon power is good when exercised in a way you approve of, and bad otherwise. Brilliant.
November 24th, 2008 at 3:38 pm
Can you keep Mixie the Autistic Robot confined to this thread for the next two days, please? Thanks.
November 24th, 2008 at 3:42 pm
“My name is pseudonymous in nc and I live in a permanent state of uncontrollable rage.”
November 24th, 2008 at 3:48 pm
@22: I object to the insult to autistics. And also to robots. Both are capable of logic (the latter, in fact, renowned for it).
Returning to the subject, while there are certainly legitimate exercises of the power, there are also corrupt ones. Perhaps a check or balance on the power would be useful - say, any pardon can be overruled by a simple majority of both houses of Congress. That still wouldn’t stop political pardons when Congress acquiesces, but I don’t see how you *can* stop united political action by two branches of government at once, short of requiring supermajorities to exercise the pardon power.
Presumably, legitimate pardons would be noncontroversial and nobody would even introduce a congressional resolution to revoke them, but someone like Libby would need to find a lot more than one person willing to cover his ass.
November 24th, 2008 at 3:50 pm
I have no problem with the pardon power generally, even though I disagree with both Clinton’s and Bush 41’s last minute pardons. I do think if we were going to enter the fantasyland of constitutional amendments, we would want to ban it from a week before the election to after the inauguration, unless the new President signs off on the pardons. That would ensure that at least there’s someone to take the political heat for an unpopular pardon.
November 24th, 2008 at 3:54 pm
My name is pseudonymous in nc and I live in a permanent state of uncontrollable rage.
pseudonymous, dude, if you ever start your own blog this should probably be the tagline.
November 24th, 2008 at 4:08 pm
I do think if we were going to enter the fantasyland of constitutional amendments, we would want to ban it from a week before the election to after the inauguration, unless the new President signs off on the pardons. That would ensure that at least there’s someone to take the political heat for an unpopular pardon
Then the president could just issue his pardons some time prior to a week before the election. If he’s not running for reelection, he won’t be taking any political heat. And even if he is running for reelection, as long as he issues his pardons early enough they’re not likely to be much of an issue in the election.
November 24th, 2008 at 4:22 pm
“The law should be changed. No President can pardon his own subordinates.”
i believe this is already written into the text of the constitution, but unfortunately the matter is controversial.
what it says is:
“…he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.”
clearly this rules out his pardoning a judge or executive branch member who is being impeached or has been impeached.
just as clearly, it is meant to prevent the executive from circumventing the congressional power of impeachment.
but the executive *does* circumvent that power when he pardons his underlings in order to avoid being impeached himself.
so i think that the text of the constitution as it stands rules out the president’s pardoning a subordinate if that subordinate might be involved in a case of impeachment, e.g. as a witness in the executive’s own impeachment.
we’ll see this tested in court some day by a prosecutor who is willing to declare a pardon invalid because it frustrated the impeachment of a president.
unfortunately, we will see it tested only by a republican prosecutor who is attempting to impeach a democratic president.
November 24th, 2008 at 4:55 pm
Suffice it to say that 99-100% of those to be pardoned will be white, upper class wall street/oil types. In other words, people with fat fucking necks.
November 24th, 2008 at 5:04 pm
True, but in theory he would have an interest in not causing problems for his party’s candidate. It’d still be a problem in years like this where the election isn’t close and the president really doesn’t seem to care much about the state of his party.
November 24th, 2008 at 5:12 pm
True, but in theory he would have an interest in not causing problems for his party’s candidate.
If the pardons are unpopular, the candidate could simply say he doesn’t agree with them.
Anyway, not to worry. In another discussion, DTM assured me Obama will never abuse his executive powers, so we can all rest easy.
November 24th, 2008 at 6:45 pm
I wholeheartedly agree with the need to radically change it (should not remove it, however: it provides an emergency relief against the possibilities of a judicial system that is loathe to overturn juries, even when the legal decisions turn out to be wrong).
The greatest grief we get from the pardon system is how Presidents use it to either 1) free those who gave them fiscal or political help on the way to power (Marc Rich, LBJ and Nixon’s business buddies, and Ford’s pardoning of Nixon), or 2) protect those lackeys and underlings who did all the dirty work (Scooter Libby, the Iran/Contra crew).
So what we need to do is prevent sitting Presidents from offering pardons or commuting of sentences of 1) any person who worked at any level in that President’s administration; 2) any person who had business or fundraising dealings with the President at any time of said President’s career; 3) any family member related by blood or marriage within second-cousin status; 4) any person currently employed by that President’s political party apparatus or who had been employed within the last 4 years.
This ought to have the effect of letting people in any administration realize that they’re not going to get a Get-Out-Of-Jail-Free card the way Scooter Libby did. They commit any illegal activity, they are going to have to rely on the mercies of the following administration. It should also cut back on some of the quid pro quo stuff that’s been going on between politicians and rich crooks since, well, 1787…
November 24th, 2008 at 7:13 pm
A lot of the problems with the pardon system at present arise from the fact that circumstances are now entirely different from what they were when the system was developed. At common law, courts did not have sentencing leniency and felonies were punishable by death. So, unless pardons were freely available, you could reach some really nasty results. Moreover, this (perhaps fairly) split the concepts of justice and mercy - according to the laws of justice, you deserved to die, but under the laws of mercy, you could be pardoned.
Obviously, this system breaks down once you give courts wide leniency in sentencing and allows for generous appeals. If you can take all of the circumstances into account in giving a three year instead of a twenty-five year sentence, you don’t really need some outside figure to right injustices. There may still be some injustices needing pardons (e.g., where the system breaks down (the Illinois death row) or where a prisoner inadvertantly forfeits the right to appeal), but the every day nature of it has disappeared (hence the general decline).
November 24th, 2008 at 10:43 pm
“Mixie the Autistic Robot”
Hey, I liked that show . . although I seem to remember it a bit differently . .
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