Tuesday, November 22, 2011

Pardoning Is for People, Not Turkeys

Justin E. H. Smith has a sharp criticism of the annual turkey pardon and P. S. Ruckman, Jr., who runs the "Pardon Power" blog, is clearly not amused by it, either. And I don't think it can really be argued that it isn't, at best, a sad thing: the Office of the President has over the past several administrations been absurdly stingy with pardons, and the Obama administration has done very, very poorly with it -- only George W. Bush took longer to give the first presidential pardon (and that not much), and his commutation record isn't any better. To date he has a mere 22 pardons and 1 commutation to his name. This is truly awful. Further, most of these were for minor crimes occurring a long time ago, yet the Obama White House is still notoriously slow with them -- cleared by the DOJ, it still takes months before anything is done about them. We should be well over a hundred pardons and commutations by now, even in the most stingy of administrations.


  1. Joel Feil8:07 AM

    <p><span><span>This doesn't make sense to me.<span>  </span>"Pardons" are by their very nature free, for no one can have a right to them at all.<span>  </span>What is the basis of criticism that the giver is "notoriously slow" in giving an absolutely gratuitous gift, which it is in his sole power to grant?<span>  </span>Or what sense in saying that we "should be" well over whatever number when by definition the recipients cannot demand by right and do not deserve by merit the gift to be given?<span>  </span>To do this is to ignore the fundamental nature of what it is to be a pardon.<span>  </span></span></span>
    </p><p><span><span>The Justin E. H. Smith article makes some excellent points (and some less excellent ones), but the opening is absolutely divorced from the rest of the article, in a truly baffling way.<span>  </span>Perhaps, as the bulk of the article argues, the death penalty is wrong in-principle and, perhaps further, the practice of the death penalty is such that it ought to be abolished anyway.<span>  </span>Then what is needed is not the pardoning of death-row inmates, but the abolition of death row!<span>  </span>Squawking about the pardoning of turkeys is more than tone-deaf, it is deeply wrongheaded.<span>  </span>To complain that pardons are being given in a capricious or overly limited way, absent some showing of misconduct or corruption (which no one is doing here), is to ignore the nature of the rule of law as well.<span>  </span>If pardons are to exist, they must do so in a limited fashion, otherwise, they destroy the rule of law itself.<span>  </span>It is good that the rule of law is leavened with the equity, but overuse of equity will destroy the rule of law.<span>  </span>And an equitable mercy to be enshrined as right is for that equity to cease being an equity and to become the new law.<span>  </span>But there is no need to take such corrosive measures, for an immediate (and better) remedy is at hand:<span>  </span>If the law itself is unjust, change the law.<span>  </span>If the law is just, why bemoan its application?</span></span>
    </p><p><span><span>A better argument (though I do not say a good one), that has merely been mentioned in passing, would be that pardoning turkeys is demeaning to the dignity of the office of POTUS.<span>  </span>This may be, but the same could fairly be said of a great swath of things that the modern president is expected to do.<span>  </span>The dignity of the modern presidency has more pressing problems than pardoning turkeys.</span></span></p>

  2. branemrys3:53 PM

    But pardons aren't by their very nature free; no one has the right to them, to be sure, but that doesn't mean that there are no cases where it is unreasonable to withhold a pardon. You can have purely free pardons, of course; but there are also pardons it is unreasonable or even immoral to deny. And this is particularly true in the case of legal pardons, because the point of such pardons is not whim on the part of the executive, but the furtherance of common good. And if common good is furthered by a pardon, an executive has no special right to withhold it, any more than he has the special right to withhold the use of military action when we are being invaded -- it is not a private power of the executive, subject to the executive's whim, but the power of the people who grant the executive the power of the pardon for the sake of the common good.  It is not an exercise of despotic overruling of law but an expression of the rule of law itself. Of no other power can it be said that we give our representatives a perfectly free slate, immune to criticism. It makes no sense to start doing it here.

    I don't think you can simultaneously argue that pardons are by nature free and that they must be limited. But I don't think there's anything that guarantees that they must be limited either -- this is purely a matter of common good. Not all laws are just, and even in cases where the law is just there may be unusual circumstances that require quite general use of the pardon power for certain kinds of crimes. In fact, the U.S. has had such cases -- certain kinds of pardons during and after the Civil War, for instance.  There is nothing to rule out general amnesties; what matters in such cases is whether they further the common good. Pardon is not the sort of thing that can be inconsistent with rule of law. Pardon itself is part of the law itself; indeed, it is part of the highest law of the land. It can no more violate the rule of law than overturning convictions on appeal can.

  3. branemrys4:15 PM

    I suppose I should add, since I've found that it tends to be overlooked in other discussions I've had on this subject, that, overwhelmingly, most pardon requests are for crimes that (1) are not capital crimes; (2) have already received their legal punishment; and (3) occured years and often decades ago. To give one example, one pardon request that the Obama Administration did finally approve, after two and a half years, was of a man in his  early sixties who, just before going off to the Vietnam War, had been convicted of mutilating coins (he shaved a handful of pennies so that they would fit into dime vending machines). Because he was about to go off to war and was only 18, he got a fine and probation. Since the punishment was light and he was young, he didn't realize that the conviction went on his record as a felony. But, of course, mutilation of coins is indeed a federal felony. Forty years later he discovered this for the first time when he tried to get a gun permit and found that he was unable to get one because he had been a felon. There are lots of things felons can't do, and the laws don't, and sometimes cnan't distinguish at all what the felony was for, or whether it was just young stupidity that led to it; they don't take into account whether the person has otherwise been a good citizen since. People can get punished their entire lives for something relatively minor that they did once.

  4. Joel Feil10:39 AM

    <p><span><span><span>There are several points I want to address:</span></span></span>
    </p><p><span><span><span>You seem to think my position entails that pardons are immune from criticism. Why on earth do you think that? I clearly adverted to cases where it ought to be criticized, and by extension where it ought to be granted. Pardons are a notoriously abused power—as when they are granted to undeserving donors, or given out as favors to loyal henchmen. Moreover, if the President ever was actually aware with a greater certainty than the court system, that a miscarriage of justice had occurred, and then failed to act, then too he would be open for criticism. As you might guess, I think this situation today is fairly rare, and is more often an issue at the State level anyway—gross miscarriages of justice that aren’t correct by the courts are more frequent in State Courts than in federal ones, in my experience.</span></span></span>
    </p><p><span><span><span>But I think that the way in which you have so mistook what I was trying to say illustrates a fundamental confusion that I have been having with what you have been saying. In the original post, I took you to be in basic agreement w/ the NYT article, which has a position that I think is very wrong-headed, and dangerous. Namely, I think the remedy for unjust laws cannot be a presidential pardon, but must be a reform of the law itself. But now you seem to be saying something different, and I’m getting lost somewhere along the way.</span></span></span>
    </p><p><span><span><span>There are several different cases (at least three) in which a pardon could be granted: Where the law itself is unjust (the NYT example, at least, if one assumes the death-penalty is unjust for some reason[note-the merit of this particular claim is neither here nor there for what I am saying]), where the law is just in principle but a miscarriage of justice has occurred (as where bribery or gross prejudice improperly influenced the decision), and the “equitable case” where equity would create an all-things-considered better result. As I said above, you initially seemed to be in agreement with the NYT piece, but now if I understand you rightly, you are making a different and broader argument. But in each case, there are strong and powerful reasons to think that Presidential pardons ought to be limited out of prudential concerns.</span></span></span>
    </p><p><span><span><span>A preliminary point I’d like to make is that Presidential Pardon are “free” only in the sense that there are no procedural limitations (or very little limitation) on them, other than those the President freely chooses to implement, and that, outside the case of injustice, the condemned does not deserve the pardon, but the punishment. This is entirely compatible with the possibility of Presidential Pardons being abused, and one of the ways in which they can be abused is to grant them too freely, or to grant them to an entire class of people, thereby essentially abrogating the law (as I believe Jimmy Carter did when he pardon all Viet-Nam draft dodgers). As I point out below, this abuse means that rather than reforming the law through the channels created and designated by the people, the law is effectively nullified without any check or balance. Thus, Pardons can be free in the sense I’ve sketched out, but still have limitations. Just as man has “free will”, but he still has limitations and still can abuse this power.</span></span></span></p>

  5. Joel Feil10:40 AM

    <p><span>In the first case, as indeed I already argued (and I do not believe you have actually responded to that argument), the presidential pardon is the wrong tool for the job. This is really why general pardons are almost always very wrong indeed. To be sure, in some general sense they aim at the common good, but so do lots of things. If I know a prisoner to be innocent, should I, the private citizen, break him out of jail? In our society, the people have already granted the power to change laws, but NOT to the president! The proper remedy for an unjust law is to have it repealed or changed. General pardons are therefore almost always an illegitimate usurpation of the legislative power by the executive branch. Let us grant, for arguments sake, that the best outcome was to not punish anybody who dodged the draft in Viet-Nam. Carter saw that there was not the political will to repeal the law legislatively—or amend the general law to exclude the time-frame in which people would have dodged the draft for the Viet-Nam. How does it follow from this that Carter should abrogate the law by his own whim? This is an abuse of the power that ought to be criticized. Now of the civil war examples you mentioned, something more could be said, but I don’t have the space here. Suffice it to say that Lincoln faced such a crisis that there was little choice but now and again to go beyond the normal bounds of ordinary governance and constitutional procedure. It speaks well to his character and vision that he didn’t have to resort to more “violations.” Desperate times and all that. This is no different from saying that inciting revolution is wrong, despite the fact that exceptional circumstances exists where it is justified and called for.</span>
    </p><p><span>In the second case, obviously actual miscarriages of justice are bad, who argues with that? But they are by definition outside of the norm. And your example clearly isn’t one of those cases. What’s more, the problem here is that given a basically unchecked power (there isn’t a constitutional check on the Presidential Pardons), the President is in danger of getting it wrong if he isn’t careful. The courts are in a much better situation to ensure that justice is not miscarried—and they do so. It is pretty rare in this country, though obviously it can happen.</span>
    <span>As for the “equitable case”, I think here some additional explanation is in order, if only so that we don’t end up talking past each-other. I’m using equity in the sense that Aristotle used it. Law is, as Aristotle put it, perfected by equity where the law because of its generality fails due to the particular matter of an outlier case. The reason that equity is needed here isn’t so much a failure of the law, but the particular matter of the individual circumstance. But in the American system, equity (in the Aristotelian sense) as well as law already exist at the court level: jury nullification (which still exists, though one cannot explicitly mention it at trial); the (with a few exceptions) immense flexibility in sentencing at the federal level; post-trial appeals; and habeas corpus after all that, to name but a few.</span></p>

  6. Joel Feil10:40 AM

    <p><span>And indeed, this goes to the heart of why it is not the essential role of the pardon power to catch all of these cases—the pardon power is unchecked and subject to capricious misuse. If you want a stronger equitable override, there needs to be serious procedural safeguards put into place—and something like this is at least aimed at in the American system, with flexibility in sentencing (for the most part) and the institution of the jury in general, as well as other places. Perhaps a further system could be put into place, but why you think it is presidential pardons is unclear to me.</span>
    </p><p><span> </span>
    <span>On my view, the good of presidential pardons (or a chief good of them) stems from the fact that mercy can be a good thing. Over-done, it would destroy the law and create harmful incentives. But where there has been true-repentance, and sufficient penalty paid, mercy is appropriate. This is actually a fourth case, because here we aren’t talking about equity, but about something more like grace, which is also freely given. </span></p>

  7. branemrys4:18 PM

    The point of the reference to the NYT article was occasional: i.e., it was to note that the turkey pardon was being criticized.

    Again, however, pardons are not abrogations of law; they are a mechanism of law. There is a legal authority to pardon; the exercise of it does not abrogate the law, which remains in force, is (like judicial power) confined to particular kinds of cases and within the jurisdiction relevant to the executive, and this is true even with general pardons; are after-the-fact in application, and this is true even when the pardon is offered beforehand; and restricted (like Supreme Court judicial review) by the considerable limitations on the resources that can be devoted to them even in the most pardon-favorable administration. Nor is it unchecked; there's a straightforward reason why the past several administrations have been so stingy with it, and it is that every politician recognizes that pardons, which to have effect are necessarily public, are answerable to the election power of the people, and this has both direct force, if a President is considering a re-election campaign, and indirectly, as the President's allies are. Trying to characterize it as an especially dangerous power is simply not going to fly: there is no structural reason to think it so; there is no historical reason to think that it is more subject to abuse than any other executive power; indeed, historically the major complaint of abuse with the power has been the complaint of access limited to people with powerful friends, which can arise only from the power's not being sufficiently widely applied; Hamilton's argument, and before Hamilton, Blackstone's arguments,  for the necessity of something like it seem to stand; and so forth and so on. Indeed, clear abuses are difficult to find; even something like a general pardon of draft dodgers plunges one not into a transparently obvious case but an extremely controversial one in which the question is whether it is more consistent with the common good to prosecute every such offense or try to start fresh.

    In any case, as you pointed out above, "<span><span><span><span></span>If the law itself is unjust, change the law.<span>  </span>If the law is just, why bemoan its application?</span></span> " Words of wisdom. The authority of pardon is part of the law; if it is unjust, change it; if it is just, why bemoan its application?


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