With this latest pardon controversy — and the possibility of more self-serving pardons to come from President Bush (Libby, Cheney, et al.?) — there’s another rush of commentary suggesting we curtail or even abolish the president’s pardon power. For my own part, though, not only am I against getting rid of the power, I actually think this current crop of pardons is pretty shabby in terms of stinginess.
President Bush’s pardons (these and the ones from earlier in his administration) are mostly pardons for people who committed relatively minor crimes and got relatively minor punishment and have long since served their sentences.
I understand the symbolic importance of clearing people’s names. But that’s pretty thin gruel. I’d much rather see some people doing serious hard time getting sprung from prison. Long term imprisonment is a life-crushing, brutal thing. Often the punishment fits the crime. But certainly there are more than a few people languishing in prison who, either because of an original miscarriage of justice or subsequent meritorious acts, have a claim on a second chance?
I think the vast majority of people in prison on low level federal drug charges don’t deserve the sentences they have. But that would involve so many people that it’s not realistic as a wrong to be righted by pardons. And the use of pardons I’m advocating does create an inevitable problem of arbitrariness — some prisoners have grace come down upon them out of the blue and, inevitably, some others no less deserving get nothing. The whole concept of the pardon power is in uncomfortable tension with the rule of law. In many ways, it’s archaic. But I think some leavening of mercy is an essential escape valve to make the justice system actually just. In its punishing capacity, the state is a vast, impersonal, crushing, awful thing. Some sliver of hope is crucial.
Late Update: To drive home the point above, the current formal pardon process requires petitioners to go through the DOJ’s Pardon Attorney, a specific career DOJ attorney charged with evaluating pardons. But the Pardon Attorney’s petition guidelines require that you have already been out of prison for five years before you even apply. So the only pardons the system even envisages are the essentially symbolic sort — pardon after you’ve already done the time. Commutations are different, of course. But the strictures are pretty stiff there too.
