ACSBlog: The Blog of the American Constitution Society

Today, ACS released an issue brief entitled "Reinventing the President's Pardon Power" by former United States Pardon Attorney Margaret Colgate Love. She asks:

How is it tolerable, in a democracy, for the president to be able to reach into the machinery of criminal justice to pluck out one of his close associates, particularly if ordinary people have no hope of similar favor? The answer is, it isn't. The president's constitutional pardon power was never supported to be used the way it was in the Libby case, and in our country's history it rarely has been.

Love places the pardon power in historical context, describing the founder's view of it as "a necessary and functional part of their carefully calibrated system of checks and balances, not a perk of office."  She argues that even though the pardon power "appeals increasingly anachronistic and corrupt, its continued relevance in the federal justice system is suggested by the sheer size of the prison population and the array of collateral disabilities imposed on the growing population of people with criminal records.

Presidential pardons went into decline, according to Love, because of "the retributivist theory of 'just deserts' and the politics of the 'war on crime'" that became popular during the Reagan administration. She calls for "a reinvigoration of the constitutional pardon power," and articulates four reasons for doing so:

• Federal criminal law has produced a great deal of injustice for which only pardon provides a remedy.
• Pardoning is the most immediate way for the president to communicate his law enforcement priorities to executive officials, including prosecutors.
• Pardons allow the president to advance his criminal justice agenda with Congress and the public.
• The Pardon power is susceptible to both real and perceived misuse when not gainfully employed in the service of the justice system.

She also lays out three questions a president might ask to make the most efficient use of the pardon power under present circumstances:

• Should executive clemency be available on a routine basis to ordinary individuals, or should it be rare and its beneficiaries extraordinary?
• How can the pardon power be most effectively administered to protect the president and reassure the public?
• How can the president most effectively use the pardon power to provoke and shape a national conversation about criminal justice policy?

Love concludes by arguing the pardon system is still relevant today.

If there was little practical need or theoretical justification for pardon in an indeterminate sentencing system, its virtues shine now that the criminal justice system so often seems merciless. Rule-based sentencing has severely limited the courts' ability to dispense individualized justice and created new possibilities for disparity and unfairness, the more pernicious because they are hidden within the prosecutor's office. With the proliferation of collateral penalties and easy access to criminal history information, the overwhelming majority of people convicted of a crime in America have no realistic hope of ever satisfying their debt to society. Not since the 19th century has pardon been as relevant from both a moral and practical point of view, for those who make and apply the law, as well as for those convicted of breaking it. No one should be fooled into thinking otherwise by the fact that the power has in recent years been used so sparingly and irregularly.

The full text of the Issue Brief is available here.