The case for clemency: Pardon power too-long ignored among constitutional checks and balances

It's been a long time since this country has engaged in a serious discussion regarding the importance of constitutional clemency authority vested in the executive branch, at least unless you count the tired, Willie-Horton-esque "gotcha" coverage faced by the few governors and presidents who dare exercise their pardon power (usually timidly, and only as lame ducks). Of all the checks and balances envisioned in the Constitution by the framers, arguably none have become more atrophied from disuse or degraded from bipartisan scorn than the pardon power.

In Federalist Paper 74, Alexander Hamilton explained that the President should enjoy sweeping, unrestrained pardon and commutation authority because, without "easy access" to clemency, "justice would wear a countenance too sanguinary and cruel." Grits does not believe it a coincidence that executive clemency in the justice system has reached all-time lows just at the historic moment that the United States reached the pinnacle of mass incarceration, with 5% of the planet's population and 25% of its prisoners. Hamilton warned us. When clemency withers, justice becomes "too sanguinary and cruel." And so it has.

Two weeks ago, Washington Post/Pro Publica coverage of Clarence Aaron's commutation denial by the Bush II Administration launched a rare round of press coverage of clemency that happily coincides with the Pardon O. Henry! web petition (be sure to go sign it if you haven't). The Post/ProPublica stories alleged that the US Pardon Attorney's office at the DOJ misrepresented key facts to Aaron's detriment, even though the Bush Administration told DOJ they were looking for more suitable applicants.

Aaron's story and systemic flaws exposed at the Pardon Office have energized pro-clemency sentiment in the political arena perhaps more than any time in recent memory. Most recently, former Maryland Gov. Robert Ehrlich and Julie Stewart, president of Families Against Mandatory Minimums, co-authored an item on "The Hill" blog critiquing the "grossly inept Office of Pardon Attorney (OPA) at the U.S. Justice Department." They wonder aloud how many clemency recommendations were based on misrepresentations, declaring that "Congress must investigate this vitally important taxpayer-funded office immediately." (The House Judiciary Committee's ranking member John Conyers is suggesting just that.) However, the pair did not go as far as a recent call from former Obama White House Counsel Greg Craig to remove the clemency vetting function from DOJ altogether.

Additionally, FAMM held a panel discussion last week in D.C. which included Aaron's mother and the journalist, Dafna Linzer, who authored the ProPublica series. Their lengthy press release gives a flavor of the event, which I said on the Pardon O. Henry blog "provided glimpses of the human stories behind the stacks of denials." San Francisco Chronicle columnist Debra Saunders called on President Obama to "reform presidential pardons," but really he just needs to grant more.

Highlighting and critiquing this paucity of pardons, this virtual clemency vacuum we've witnessed in the 21st century, particularly at the federal level, was the reason the Pardon O. Henry campaign was launched. Upon doing so, one thing we quickly learned about the pardon issue is that most people are incredibly cynical regarding clemency, jaded perhaps by its infrequency, perceived irrelevance, and/or political misuse.

Grits is especially fascinated by a seeming bipartisan opposition to clemency based on mutual hatred of the other party's standard bearers (while among partisans, one's own party's clemency decisions usually may be justified). Democrats flagellate President Ford for pardoning Nixon, or Bush I for pardoning Iran-Contra figures, while Republicans gleefully squeal about Bill Clinton pardoning Marc Rich. Pardons are viewed by the political class - who're worried about the next election the way short-sighted corporations focus myopically on the next quarter - as all risk, no reward, fearing the political ramifications if a pardoned person later commits a crime, kills someone in a DWI, etc..

Such political considerations ignore clemency's fundamental role in the justice system as conceived by constitutional framers, who installed it as part of a system of checks and balances as essential as the veto, judicial review, or the requirement that the House and Senate both pass legislation. The difference is, those other things still actually happen in 21st century America, while the pardon power has become virtually passé. The "easy access" to clemency framers envisioned has become little more than a cruel joke for the overwhelming majority of those seeking mercy, even as 2.3 million people are presently locked up in America, while millions more have a felony on their record.

The only recent presidential candidate with any meaningful stance on clemency has been Ron Paul, who on the campaign stump promises he would commute sentences for thousands of nonviolent federal drug offenders. In today's clemency context such an act would appear breathtaking, but in fact it's one of the reasons the pardon power was created: To facilitate justice on a mass scale when case-by-case review by the justice system would thwart broader policy goals, like ending the drug war (or for that matter real wars). As a libertarian, Paul argues that commuting thousands of drug sentences is the single quickest way to make more Americans free. From a purely mathematical perspective, that's a hard position to argue!

Indeed, anyone who supports ending the drug war should also support a resuscitated clemency power. After all, if all drugs were legalized tomorrow, there would still be hundreds of thousands of people in state and federal prisons serving time for something that would no longer be criminal, serving far longer sentences than did rum-runners after Prohibition. By what other means could those sentences be commuted or past offenses pardoned except through executive clemency? And how can that happen politically when the public views clemency as spurious or corrupt? The same goes for political opposition to mandatory minimums: Even if Congress or state legislatures were to reduce or eliminate mandatory minimums, it would require clemency by executives or state parole boards to affect the many thousands already incarcerated under such terms.

Grits hopes this serendipitous round of media coverage will spark a more rigorous review of clemency's decline and energize efforts toward its resuscitation. And with luck, the PardonOHenry.org campaign can become a small part of that discussion later this year, both on the sesquicentennial of the writer's birth and during the President's absurd annual turkey pardoning ritual (which sparked the petition idea in the first place after Obama last year quoted the un-pardoned writer while sparing the life of a bird).

So sign the petition, or if you've already done so, go the Recruiting page where you can pick up a "personal tracking link" you can use to promote it. If you do, you'll get credit on Pardonohenry.org's Leader Board for everyone who joins the campaign via your link. These discussions surrounding the Clarence Aaron case and possible Congressional hearings could put clemency closer to the front burner in the coming year than it's been in decades. It's an interesting time to be working on, and thinking about, the issue.

Finally, since we're on the subject, over at the blog Pardon Power, Prof. P.S. Ruckman - who is drafting the O. Henry pardon application for submission before the writer's 150th birthday - has begun posting short vignettes from his research on the writer in preparation for that task. See:

• O. Henry: The Early Years
• O. Henry: Trial and Conviction
• O. Henry: Prisoner No. 30664

For more on both the campaign and clemency issues, check out the Pardon O. Henry! blog, and see also prior, related Grits posts:

• Supporters compete to promote  PardonOHenry.org petition
• Why O. Henry? Would pushing Jack Johnson pardon have more symbolic heft
• Grits launches petition to clear Texas writer: PardonOHenry.org
• Obama the Merciless: Is DOJ a blame?
• Obama may have stingiest pardon record of any American president
• Obama the Merciless
• Eat the turkey, pardon O. Henry! President quotes Texan writer but won't pardon him
• Institutional prosecutorial bias limits federal pardon recommendations from DOJ
• Perry should expand clemency, trump Obama in Christmastime ritual

CORRECTION: An earlier version of this post erroneously identified John Conyers as House Judiciary Committee Chairman. He is the former chairman and currently ranking member.