Presidential Pardon Season

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Yes, it’s that time again. The Washington Post tells us today:

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.

But the interesting thing about President Bush’s pardon power is how little he has used it, as Margaret Colgate Love noted in this op-ed on November 18. She made an interesting case that Bush should actually be using that power much more than he has:

History teaches that the demand for clemency increases when the system lacks other mechanisms for delivering individualized justice, for recognizing changed circumstances, 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.

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