D’Souza, the Pardon Power and the Question of Norms

May 31, 2018 12:37 p.m.

The issue of presidential pardons raises an important issue with “norms”. I have written many times over the years that Presidents don’t use the pardon power nearly enough. The pardon power is archaic and in some ways hard to reconcile with our modern concepts of justice and judicial process. But mercy is an important element of justice. Indeed, without a role for mercy there can be no justice. There are many people rotting in prison who shouldn’t be there, even if they were guilty of the crimes for which they were convicted. In the past, the pardon was used sometimes for reasons as simple as managing prison over crowding. Sentences do not need to be sacrosanct. The pardon power is a tool to cut through the harsh indifference of criminal law and right wrongs.

Relatedly, I’ve written about the way the modern pardon power has been circumscribed almost beyond recognition. There’s a Pardon Attorney at the DOJ who handles the process. The guidelines make demands which all but erase the meaning of the pardon power itself. You not only have to express remorse, you have to have served your sentence and then wait a period of time after you’ve served your sentence. In other words, the whole idea of have executive clemency which springs you out of prison ahead of time isn’t even supposed to be part of the process.

There’s some benefit of having your record wiped clean. But notional pardons long after you finished your punishment really defeats the purpose. That’s why most pardons until the ones Obama did late in his term were stuff like some guy who got arrested for selling moonshine forty years ago but has been a stand up guy since and he gets a pardon.

The pardon power is there to find people who simply should be forgiven by the state in advance of completing their sentence. We should use it for classes of prisoners who we see now shouldn’t be in jail. Once marijuana is legal, should people really be serving long terms for use or minor dealing? As a legal matter, legalization makes no difference. But the pardon power can provide a measure of justice and rectification.

Yet clearly part of what running the pardon process through the DOJ is for is to insulate the President from that power. These are in a sense norms. The President doesn’t just wake up one day and decide to pardon someone or hear from a friend who puts in a good word for someone in jail. It’s too arbitrary, too ripe for abuse, even though the constitution is 100% clear that the President does have the power to do this.

What clearly isn’t okay is what we’re seeing today. Jack Johnson seemed to get a long overdue pardon because Sylvester Stallone wants to make a biopic and lobbied Trump to pardon him. No real harm there and there is an historic injustice that in some sense gets undone. But the real pattern is giving political allies an out from the execution of the law, political allies and people who have an iconic significance for Trump’s most loyal supporters. This isn’t just bad governance. It’s the essence of factional rule. The faction leader – the political warlord – gets control of the state and uses it in the interest of his supporters, protecting them from the law and giving them the state’s largesse. We’re not quite there yet. But Joe Arpaio, Scooter Libby, Dinesh D’Souza – the pattern is pretty clear. We are already seeing policy moves like giving a generous version of medicaid for white rural voters and a harsher ones for urban minorities, albeit this is driven mainly by the states.

This is why you have norms. They keep you within the rails in the face of obvious temptations and questions about propriety. In this case, I think the norms are wrong, outmoded and counterproductive. But when you have someone who is just crooked, using the pardon power as a tool of his own personal advancement, rewarding friends for loyalty, norms have little effect, little significance. They don’t matter.

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