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by Julia Vitullo-Martin
(April '01) From the founding of the country forward, executive pardons by presidents and governors have been a regular means of mercifully correcting overly harsh laws or easing overly punitive sentencing in individual cases. As former pardon attorney Margaret Colgate Love (Department of Justice, 1990-1997) pointed out in the June 2000 Fordham Urban Law Journal, Americans incorrectly tend to associate pardons with politics and controversy. (I would add celebrity and notoriety to the list.) Few realize that for most of American history the pardon power was exercised routinely and quietly to give relief to ordinary people convicted of what Love calls "garden-variety" crimes.
PARDONS AS A CORRECTION TO THE JUSTICE SYSTEM
Writing several months before the Clinton exit pardons erupted onto the American scene, Love deplored the disuse and disrepute into which she feared the federal pardon power had fallen. Pardons are a necessary tool for correcting what she called the "harsh inflexibility" of the criminal justice system: in so many cases the legally mandated punishment seems morally wrong. Just as serious, she wrote, the "growing crime control infrastructure . . . reflects poorly on our national humanity."
Up until the Reagan administration, every administration from Franklin Roosevelt's to Jimmy Carter's had acted favorably on 30 percent or more of pardon petitions, says Love. Under Reagan, the percentage of favorable pardons dropped by a third to 20 percent. President Reagan also reversed course over his predecessors in absolute numbers. He pardoned 393 individuals in his two terms, compared to the 534 pardoned by President Carter in one term, says Love.
President Bush went even further. He granted only 68 pardons in his one term, or 7 percent of pardon petitions--perhaps in part because the Willie Horton clemency scandal in Massachusetts had helped him defeat Gov. Dukakis for the presidency.
Love attributes the decline in pardons to the politics of crime control, in which both Republicans and Democrats have competed for advantage in a "race to incarcerate," producing what Love calls "a prison industrial complex with a powerful institutional constituency."
THE PARDON CONTROVERSY IN NEW YORK
And now we have the Clinton exit mess, a controversy which is not about to go away in New York, home or former home to many of those pardoned. Since some of the pardons are thought to have been helpful to the successful campaign of our new junior U.S. Senator, Hillary Clinton, the specter of unseemly politics floats in the background.
This is not the first round of pardon controversy in New York. In August 1999 Clinton granted clemency to 16 members of a Puerto Rican nationalist group serving lengthy prison sentences for terrorism. Republicans charged that clemency was an attempt to strengthen Mrs. Clinton's Senate bid. The White House denied she had played any role. (The allegations were examined in the Findings of the Committee on Government Reform, available online)
Thus the pardon cauldron already held a volatile mix before the early February announcement from the Bush administration that Mary Jo White, the U.S. attorney for the Southern District of New York, would be the prosecutor in charge of investigating the pardons. The Chicago Sun-Times called her "the most feared and respected prosecutor in the United States." (Even without White, the Southern District, which includes Manhattan, is considered to be the highest profile prosecutor's office in the nation.)
Although Clinton appointed White in 1993, they quickly became non-friends. Their aloof relationship cooled even further when she looked into charges that the Teamsters Union funneled cash to the Democratic Party during the 1996 election. President Clinton failed to consult her or her office when he pardoned New Yorkers or former New Yorkers, including fugitive financier Marc Rich and his partner Pincus Green.
Now White has opened a criminal investigation about whether Rich contributed to the Democratic Party in exchange for the pardons. (Rich's former wife gave hundreds of thousands of dollars to the party and to Clinton's presidential library.) Or, for that matter, did Rich or Green commit any other violations of federal law? In grand prosecutorial tradition, White is embarking upon a wide-open investigation. She is authorized by the Bush administration to investigate or delegate the investigation of any of the 177 pardons granted by Clinton during his last days in office.
PRESIDENTIAL PARDONS AND THE CONSTITUTION
On one historical fact, every historian agrees: The Founders of this nation did not want a king. But because most of them did want a powerful executive, they looked to the model of the English monarchy for guidance. They discarded some kingly powers (such as unlimited control of appointments), and chose the ones they thought most suitable--including the unlimited power to pardon.
They were confident they had constructed the office well. Indeed, Alexander Hamilton in the Federalist Papers predicted the presidency would be "filled by characters preeminent for ability and virtue." This assumption, though quickly proved false, makes the pardoning power seem less reckless.
More important to them, however, were the troubled times of the 18th century, riddled with class warfare, particularly in England. Not accidentally, it was also a time of brutal criminal law, in which nearly every offense--theft, forgery, poaching--was a capital crime. While juries regularly tempered the law's cruelty by refusing to convict, huge numbers of English subjects were routinely sentenced to be hanged. The king's pardon, supported even by conservative Parliamentarians like Edmund Burke, moderated the law when necessary, to retain popular support.
As historian Douglas Hay argued in his study of 18th century crime, "The law was important as gross coercion; it was equally important as ideology. Its majesty, justice and mercy helped to create the spirit of consent and submission" that maintained the loyalty of the English poor. Royal pardons, wrote Hay, "were presented as acts of grace rather than as favours to interests."
Or as William Blackstone wrote in his definitive commentaries on English law: "These repeated acts of goodness" had the effect of endearing "the sovereign to his subjects, and contribute(d) more than anything to root in their hearts that filial affection, and personal loyalty, which are the sure establishment of a prince." That's the theory, anyway.
In their search for a well-ordered government overseeing a stable society, the founders endowed the presidency with this unlimited kingly power to pardon citizens as an outlet to overly severe laws or courts. According to Hay, however, even in the king's hands the power was often suspect. The "grounds for mercy," he wrote, "were ostensibly that the offence was minor, or that the convict was of good character, or that the crime he had committed was not common enough in that county to require an exemplary hanging."
Under this analysis, we might put the president's pardon of his brother's cocaine conviction in the "minor" category--and therefore suitable. (Though many observers would quickly point out the thousands of unpardoned inmates, including mothers, whose cases are at least equally worthy.)
Applications that go through regular channels in the Department of Justice--which Clinton pretty much bypassed--nearly always put forward an argument of good character. The applicant is cited for family values, community and church service or generous philanthropic contributions--though often of ill-gotten gains.
Hay doubts that most kingly pardons were meritorious. On the contrary they "served to save a good many respectable villains." Then, as now, the pardon tended to go to the well-off criminal because "mercy was part of the currency of patronage. Petitions were most effective from great men, and the common course was for a plea to be passed up through increasingly higher levels of the social scale, between men bound together by the links of patronage and obligation." But there was a downside to all this.
The power had to be used judiciously or its effects could boomerang. Says Hay: "The aim above all was to avoid exposing the law and authority either to ridicule or to too close scrutiny." Ridicule of the law and close scrutiny of this once unquestioned presidential power are quickly becoming two more legacies of the Clinton years. The push is on to restrict the presidential pardoning power, which would entail an enormous political and constitutional fight.
DAMAGE TO THE JUSTICE SYSTEM
Mercy must be an active part of a healthy justice system. In a March 6 article in the New York Law Journal, two former federal prosecutors, Elkan Abramowitz and Barry A. Bohrer, argue that whatever damage Clinton's pardon of Marc Rich did to Clinton's own reputation and legacy, the graver concern is with the damage he may have inflicted on the institution of executive clemency itself. That's because the possibility of obtaining mercy outside the rigid procedures that govern the criminal justice system is an important safeguard both to those seeking absolution, and to "a public committed to the notions of fairness and justice in the administration of its criminal laws."
In other words, the possibility of mercy and forgiveness functions as a protection for everyone. While many commentators have attacked unlimited presidential discretion in granting pardons as an anomaly that should now be corrected, these two former prosecutors see it as "the ultimate check on legislative or judicial injustice."
After all, we live in a time of harsh criminal laws that are often made even more severe by mandatory minimum sentences essentially eliminating judicial discretion. Alexander Hamilton could have been writing about our own time: "Humanity and good policy conspire to dictate that the benign prerogative of pardoning should be as little as possible fettered or embarrassed. The criminal code of every country partakes so much of necessary severity that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel."
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