"In Defense of Pardons"
By Margaret Colgate Love
Tuesday, November 18, 2008; A27
As President Bush's term nears its end, rumors abound that he will
grant a lot of final pardons. Hundreds of clemency applications have
been filed with the Justice Department in the past year, a reflection
of the popular belief that pardoning is an end-of-term phenomenon in
which all presidents indulge. Media re****ts have identified prominent
individuals who are seeking Bush's mercy, and there is speculation
about a blanket amnesty for those engaged in counterterrorism efforts.
Yet presidential pardons have rarely been concentrated in the weeks
between Election Day and the inauguration of a new president. There
was no precedent for the torrent of irregular grants issued by Bill
Clinton on his last day in office, many of which were the product of
special pleading by Clinton friends and family.
Historically, pardoning has occurred regularly over the course of a
president's term, more frequently in the middle than at either end.
The attorney general, custodian of the president's pardon power since
before the Civil War, is responsible for ensuring that the process is
accessible and disciplined, and that grants are defensible on their
merits. The president rarely acts except pursuant to a Justice
Department recommendation, which helps ensure that pardons are
consistent with his criminal justice agenda.
Bush has kept a low profile in exercising his pardon power. Though a
record number of people have applied for pardons and sentence
commutations during his presidency, he has issued fewer grants than
any other president in the past 100 years -- except for his father.
Bush's 157 pardons say little about his criminal justice philosophy.
Most have gone to people convicted long ago of minor offenses, who
spent little or no time in prison, and who are unknown outside of
their communities. Five of his six sentence commutations went to small-
time drug offenders who had spent years in prison and were close to
their release dates.
Meanwhile, Bush has denied almost 8,000 clemency requests, many of
which were indistinguishable from the ones he granted. Only his
decision to spare Scooter Libby a prison term attracted much
attention.
So if Bush's record suggests that he is unlikely to make a lot of
interesting last-minute grants, why should we hope that he does?
The pardon power is more functionally relevant to the federal justice
system today than it has been since the 19th century. That is, more
people want and need what only the pardon power can deliver.
History teaches that the demand for clemency increases when the system
lacks other mechanisms for delivering individualized justice, for
recognizing changed cir***stances, or for correcting errors and
inequities. The Sentencing Reform Act of 1984 made the pardon power
virtually the only mechanism by which lengthy mandatory prison
sentences can be reconsidered once they have become final. Supreme
Court Justice Anthony Kennedy, the author of opinions upholding harsh
sentencing laws, urged in a 2003 speech to the American Bar
Association that the pardon process be "reinvigorated" in response to
"unwise and unjust" federal sentencing laws; "a people confident in
its laws and institutions should not be ashamed of mercy," he said.
Pardon is the only way to overcome the legal and social consequences
of conviction, since a federal conviction cannot be expunged. In some
states, federal offenders cannot exercise basic civil rights,
including the right to vote, unless they have been pardoned. The fact
that so many people with criminal records are African American only
aggravates the "internal exile" phenomenon.
A series of final pardons could highlight flaws in the justice system
that would be instructive to the next administration. The Framers
considered the pardon power an integral part of our system of checks
and balances, not a perk of office. Judicious grants of clemency can
signal to Congress where rigid laws should be amended and give policy
guidance to executive officials. The president's intervention in a
case through his pardon power benefits an individual but also signals
how he wants laws enforced and reassures the public that the legal
system is capable of just and moral application.
It is ironic that a president who has stretched his other
constitutional powers to the breaking point has been so reticent and
unimaginative in using the one power that is indisputably his alone. A
course change would be fitting from someone who has spoken of the
power of forgiveness in his own life and of America as "the land of
second chance." He need not risk reenacting the drama of the final
Clinton grants; surely there are many worthy cases in the Justice
Department's pardon pipeline.
Despite its virtues, pardon has not played a meaningful role in the
justice system for years. Meanwhile, punishments have become too harsh
and the stigma of conviction too permanent. Pardons can show that the
system works and that redemption is always possible. Americans want
their leaders to be merciful as well as just, compassionate as well as
resolute. President Bush still has time to burnish his legacy if he
recognizes and responds to this reality.
[The writer was the U.S. pardon attorney from 1990 to 1997. She
currently represents applicants for executive clemency.]
http://www.wa****ngtonpost.com/wp-dyn/content/article/2008/11/17/AR2008111701665.html
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