Some Bartenders Have the Gift of Pardon

by Henry on December 5, 2008

Josh Marshall is a little uncertain about Jerry Nadler’s proposed measure to reform the pardons process.

in addition to always being leery of fiddling with the constitution, I don’t know if I like the idea of changing the pardon power. I think it’s an important safety valve in our constitutional system. If it’s been a problem, rather than changing the constitution, maybe we need better presidents.

Looking more closely at what Nadler is saying, it seems to me that there are two distinct elements. One is the suggestion that the President not be allowed to pardon members of his/her own administration. This, I suspect, is the bit that Josh is leery of – I imagine that his thinking is that in a country where the prosecution is highly politicized (as in the US), the benefits of having the President able to overturn politically-driven prosecutions may outweigh the benefits. This, I think can be argued either way. But I can’t see any very good argument against the second, admittedly more tentative element of Nadler’s proposal – that the President’s power to pardon be restricted during his/her final months in office. As we saw most notoriously with Clinton, presidents may possibly have a strong incentive to pardon people in the closing months of their administration, because they won’t have to pay a significant political price for it. This creates real problems of democratic accountability, in an area where the arguments for political discretion seem relatively weak (e.g. if the claim is that the power would be used primarily to overturn bogus political prosecutions, then there shouldn’t be much of a legitimacy hit for pardoning people earlier in the President’s term). So is there any good rationale why the President shouldn’t be constitutionally forbidden from issuing pardons say, during the interregnum after November 4 and before the new President takes office?

{ 65 comments }

1

mpowell 12.05.08 at 5:38 pm

Well, there’s a pretty damn simple rationale, I think. What if there is someone genuinely deserving of a pardon who comes to the attention of the president during that time period?

I don’t think this is enough to justify the practice, but I’m just answering the question…

2

Phil 12.05.08 at 5:53 pm

Mpowell, but how do we know or decide who genuinely deserves a pardon. The normal to decide things like this is through the court so maybe better judges or a better legal system are needed.

3

Brock 12.05.08 at 5:57 pm

Of the two parts of the proposed amendment as you described it (none of your links seem to go to the text), I’m much more on board with the “no pardoning of your subordinates in the executive branch” part than the “no pardoning between election and inauguration” part.

The pardon power is almost certainly underused, and the second would serve to make it even moreso. That “interregnum” is a time when an outgoing president can make some genuinely magnanimous, though controversial, pardons.

I’m not deeply offended by pardons, such as that of Mark Rich, that are not “deserved”. I am bothered by presidential pardons of criminal wrongdoing by the president’s subordinates, such as Scooter Libby, because that creates bad incentives for future executive-branch officials.

4

Brock 12.05.08 at 5:59 pm

The normal to decide things like this is through the court so maybe better judges or a better legal system are needed.

Yes, but while we’re holding our breath waiting for that to magically occur, I like that presidents and governors have the pardon power.

5

Righteous Bubba 12.05.08 at 6:05 pm

It’s a term-limit problem isn’t it?

6

Dave Weeden 12.05.08 at 6:07 pm

I’d like to know what ‘genuinely deserving of a pardon’ might possibly mean. I cannot imagine any examples.

On that note, I can’t see why Presidents can grant pardons. If the courts find someone guilty, they’re guilty. I don’t much like the idea that some people can be guilty but absolved. This seems unnatural politicizing of the justice process.

However, it seems to me that a President should simply have powers that last from inauguration to inauguration. I find the idea that Presidents have variable powers during their term deeply unattractive. I also don’t like this period (does it have a name?) between the election and the inauguration, and there are probably good reasons to make it shorter. (Should the President be able to declare war in this period? Bail out failing companies? There are bigger things than pardons.) But the problem seems to lie in those two months. Bush was leaving office no matter who won: he’d just have done his pardoning in October if his powers were curtailed from the 5th of November.

7

Brock 12.05.08 at 6:11 pm

I hope that Obama’s presidency will mark a return to the Nixon/Ford/Carter standard of more common use of the pardon power.

Surely there are at least 200 deserving people per year eligible for presidential pardon.

In my fantasy world, Obama pardons every non-violent drug offender in federal prison. But that’s not going to happen.

8

Brock 12.05.08 at 6:12 pm

If the courts find someone guilty, they’re guilty.

So it’s an analytic truth that no one has ever been wrongly convicted. That’s interesting.

9

Brock 12.05.08 at 6:13 pm

Should the President be able to declare war in this period?

Presidents never have the power to declare war. Only Congress has that power.

10

mds 12.05.08 at 6:20 pm

One is the suggestion that the President not be allowed to pardon members of his/her own administration

…for official acts. This is the kicker. Because it seems a glaring flaw in the whole “rule of law” and presidential oath to uphold the Constitution when the President can secretly order his underlings to break the law, then pardon them for it if they get caught. Remember how the Iran-Contra people got off scot free, and even returned to power under GWB? Remember all the stonewalling in investigating the disclosure of a covert CIA operative, Valerie Plame? Why should any underlings cooperate with the prosecution in investigating executive malfeasance, when they know they’re going to be pardoned / commuted anyway? That seems to put the legislative and judicial branches at a severe disadvantage relative to the executive.

I know that Madison’s answer would be that Congress, fiercely protective of its prerogatives, would simply impeach and remove from office a President who was even suspected of ordering illegal acts. But we pretty obviously don’t live in Madison’s ideal world.

11

mpowell 12.05.08 at 6:27 pm

First, obviously if the debate is about the value of a ban on pardons for a narrow window of time, we are taking as given that the pardon power is, in general, helpful.

Secondly, I have to disagree with Brock. With the exception of Clinton, admitting pardons in that final time slice had little effect on the total number of pardons (according to the chart). Was that because Clinton was unusually corrupt or because the political environment of the 90s was such that it was dangerous for a Democratic to appear soft on crime due to the vindictive nature of our voting populace? Tough to say. That being said, restricting the pardon power so that it can’t be used during that time period AND so that it can’t be used by a president on official acts conducted by members of the executive branch during his term in office, both seem like good ideas to me. The latter requires more subtlety though, and that makes it difficult to pass as a constitutional amendment.

12

Brock 12.05.08 at 6:33 pm

Why the restriction to “official acts”? How about just “any act committed by an employee of the executive branch during the period when she is so employed”?

If an executive branch employee is convicted of embezzlement, she’ll just have to wait for the next president to get the pardon.

13

Dave Weeden 12.05.08 at 6:37 pm

Brock @ 8; well of course you’re right about wrongful convictions, but I can’t see why Presidents have any special insight that courts of appeal don’t have. So I apologise for my poor phrasing, but deciding guilt or innocence and penalties for guilt should be up to the courts, IMO. Presidents should have larger concerns. (That goes for Presidents dealing with any individuals: Terri Schiavo included. Micromanagement is not part of the office of the President – again IMO.)

Brock @ 9. My bad – that was supposed to be rhetorical. Of course they can’t declare war. However, I still can’t see what is special about pardoning (other than I consider it a very bad idea), that should incline anyone to believe that Presidential power in that area alone should be curtailed in the two and a bit months of the “interregnum” and not other Presidential power. For the record, I was thinking of making a remark regarding the nuclear codes – but decided (for brevity and clarity, but clearly in error) for making the ‘declare war’ remark.

14

mpowell 12.05.08 at 6:47 pm

12: That’s a decent proposal. Especially if include the possibility for a president to extend a capital punishment date into the following term as well.

15

Brock 12.05.08 at 6:47 pm

I can’t see why Presidents have any special insight that courts of appeal don’t have.

The President doesn’t have any special insight. But the pardon power is one more point at which someone might get mercy from an all-too-unmerciful justice system.

deciding guilt or innocence and penalties for guilt should be up to the courts, IMO.

Penalties for guilt? At the federal level anyway, that’s not up to the courts, it’s up to the US Sentencing Commission – the Booker, Fanfan, and Blakely decisions notwithstanding.

We have a very rigid, inflexible justice system. Restricting or doing away with the pardon power would make it just a little more rigid and inflexible.

16

Righteous Bubba 12.05.08 at 6:47 pm

Brock @ 8; well of course you’re right about wrongful convictions, but I can’t see why Presidents have any special insight that courts of appeal don’t have.

Presidents may (exceptionally charitable here) have them because they’re allowed to have them. Courts of appeal do not necessarily consider the totality of a case when an appeal is made.

17

Paul Gottlieb 12.05.08 at 7:07 pm

I don’t think CT readers quite understand the nature of U.S. Presidential pardons. The vast majority of pardons are issued to individuals who have already served their sentences, often many years ago. The effect of a pardon in these cases is to allow the individual to regain many lost civil rights: the right to vote, the right to practice law, the right to hold elective office, or the right to purchase a gun. You could argue that these rights should be regained automatically after a period of good behavior, but that’s not how it works in the states.

18

novakant 12.05.08 at 7:24 pm

So it’s an analytic truth that no one has ever been wrongly convicted. That’s interesting.

If I was wrongly convicted, I wouldn’t want a pardon, I would want to be exonerated by a court.

Presidents never have the power to declare war. Only Congress has that power.

Well sure, but the US hasn’t made a formal declaration of war since WW2.

Pardon power should be abolished altogether, it’s a remnant of aristocratic power. If the justice system really cannot function without pardon power, it’s time to fix it.

19

Righteous Bubba 12.05.08 at 7:26 pm

If I was wrongly convicted, I wouldn’t want a pardon, I would want to be exonerated by a court.

Let’s imagine you can’t get that. Still want a pardon?

20

MarkUp 12.05.08 at 7:34 pm

The vast majority of pardons are issued to individuals who have already served their sentences, often many years ago. The effect of a pardon in these cases is to allow …. the right to purchase a gun.

Thus is the case of the poor bald eagle killer. He seems to have learned that wantonly dispersing poison is the wrong way to dispatch coyotes. He now knows he needs a gun. What happens when Rin Tin Tin goes missing? ;)

21

Dave Weeden 12.05.08 at 7:37 pm

Righteous Bubba @ 15: Courts of appeal do not necessarily consider the totality of a case when an appeal is made. And Presidents do? Less sarcastically, surely courts of appeal have to consider the appeal.

RB @ 18: Speaking for myself, I’d like my innocence recognised. There’s a principle there. A pardon does not address it. Yet again, guilt or innocence seems to be the issue: ‘Guilty but meh’ is not a verdict.

Paul @ 17 I’d certainly argue that three of those rights should be regained. :-p Good grief, how can I have read so much about the US and be so ignorant of some of its fundamental laws? (That’s a rhetorical question: answers which reference to my impaired cognitive abilities will be ignored.)

22

Chuchundra 12.05.08 at 7:55 pm

I’d like to see some check on the President’s pardon power. Perhaps give the Senate a small time window — say 30 days — to reverse a pardon with a 2/3 vote being required.

23

Righteous Bubba 12.05.08 at 8:09 pm

Less sarcastically, surely courts of appeal have to consider the appeal.

What’s in the appeal? “Please reconsider everything because the verdict was not to my liking?” I’m not an expert in law but I’m of the opinion that appeals need reasonable grounds and that those grounds are considered, not the whole of a trial. A new trial can be ordered, but if your trial went reasonably well procedurally what grounds do you have to appeal?

Speaking for myself, I’d like my innocence recognised.

Me too, but there’s a trade-off between principle and practicality when the fees start to mount.

24

Dave Weeden 12.05.08 at 8:22 pm

No. Seriously: appeals can be rejected. Appeals which are considered have to have something more than, “My client maintains his/her innocence.” And secondly, I think you’re wrong. *If* someone is convicted because – say – an expert witness forged evidence and was then let off because that evidence (which was accepted at the trial) is now revealed for what it was – then they were let off not for innocence but on principle. I can see how courts of appeal consider details rather than the totality in cases like that — and rightly so, officials of the law should behave lawfully.

No, scratch all that. An appeal is in the details. If a detail was wrong in the conviction, the defendant should walk free. I can’t see how a court of appeal – after considering an appeal to detail and deciding that the original trial was fair and correct – can be mistaken for not considering the totality. In short, I really cannot see where a President can do better than a court.

25

novakant 12.05.08 at 8:25 pm

Let’s imagine you can’t get that. Still want a pardon?

Let’s say the police storms into your flat tomorrow morning at 6 and, despite you being totally innocent, locks you up for 10 years. Then, because someone has noticed that there was something fishy about the whole procedure and deems it the best way to sweep it under the carpet, you are granted a pardon. Would you walk out of jail happy, thinking “oh never mind the ten years they took from me and the fact that most people still think I’m probably guilty of something at least – hey, I got a pardon, woohoo” ?

26

Dave Weeden 12.05.08 at 8:27 pm

Oh, as to grounds. Poor defense lawyer (wouldn’t submit pertinent evidence); faulty forensics; witness(es) since proved to be unreliable. These happen. And I still can’t see why a President would know better than a judge. Bush (either of them, now I think about it) has no legal training.

27

Righteous Bubba 12.05.08 at 8:29 pm

I can’t see how a court of appeal – after considering an appeal to detail and deciding that the original trial was fair and correct – can be mistaken for not considering the totality.

You don’t see how considering detail is not considering totality? That’s absurd. The appeals court is considering the detail and NOT whether the entire original trial was fair and correct.

28

Righteous Bubba 12.05.08 at 8:32 pm

Would you walk out of jail happy, thinking “oh never mind the ten years they took from me and the fact that most people still think I’m probably guilty of something at least – hey, I got a pardon, woohoo” ?

Obviously not: I’d want what you want. It would be swell, however, that somebody did something.

29

cpareader 12.05.08 at 9:09 pm

Mr. Weeden spoke of the “unnatural” politicization of justice arising from the presidential pardon option . Shall we citizens of the US then be satisfied with the natural politicization of justice arising from partisan election of trial judges or religious, ethnic, etc. prejudices affecting jurors or the headline impact of a charge selected by the DA or the manipulation of voir dire by prosecutors? Until whatever golden day that these natural events no longer occur, I hope we maintain the presidential and gubernatorial pardon powers we now have.

30

Righteous Bubba 12.05.08 at 9:48 pm

31

roy belmont 12.05.08 at 10:06 pm

Brock #3:
I’m not deeply offended by pardons, such as that of Mark Rich, that are not “deserved”.
Thank “goodness”!
However. It may be that what some of your peers find offensive about Rich’s “pardon” isn’t so much that it wasn’t “deserved”, but the depth and degree to which it most assuredly was not. And consequently the depth and degree of perfidious compromise exhibited by its granting.
It may be, in fact undoubtedly is, as well, the “case” that at least some of your peers find something ominous, even minatory, in the “pardoning” of Mark Rich.
The dynamic in that being quite the reverse of the superficial, which places Rich below Clinton in terms of power.

32

notedscholar 12.05.08 at 10:56 pm

Pardons are interesting. Lacking very much internal information, they often appear to be random. And, they are often for either 1) petty or 2) serious crimes. It would be interesting to track pardons according to seriousness of crimes.

NS
http://sciencedefeated.wordpress.com/

33

novakant 12.05.08 at 11:06 pm

It would be swell, however, that somebody did something.

Sure, but pardons are often used to cover up failures of the justice and political system. There are many cases of people who, after having been pardoned, fought until their death, and – when their relatives or friends carried on the fight – even beyond their death, to be fully rehabilitated.

Until whatever golden day that these natural events no longer occur, I hope we maintain the presidential and gubernatorial pardon powers we now have.

I wouldn’t call this state of affairs natural, as there are many countries where justices aren’t elected, but rather appointed like other civil servants.

34

Righteous Bubba 12.05.08 at 11:09 pm

Sure, but pardons are often used to cover up failures of the justice and political system.

Exactly.

35

Righteous Bubba 12.05.08 at 11:10 pm

Whoops, agreed too soon: I would have replaced “cover up” with “fix”.

36

BillCinSD 12.05.08 at 11:18 pm

IIRC, there are often time limits by which you must file an appeal following conviction. Exculpatory evidence coming in after this time limit is not considered except by executive pardon

37

PG 12.05.08 at 11:26 pm

notedscholar,

From what I understand, almost all pardons are for non-violent crimes. It doesn’t look well to pardon convicted rapists, murderers etc. even if they have served their time and the conviction was dubious. Marc Rich, for example, never actually stood trial, and the tax evasion charges were deemed legally unsound by several tax experts, including Justice Ginsburg’s husband. So if one considers violent crimes to be the most serious ones — as I think most Americans probably do — then the president isn’t pardoning “serious” crimes, only petty ones, albeit in some cases ones that came with a lifetime sentence. For example, violations of the securities laws to artificially inflate stock prices can stack up into a sentence that will keep a middle-aged corporate executive in prison until he dies, but most people wouldn’t consider that as “serious” as aggravated child rape — yet the mandatory minimum for that in Massachusettes is less than 10 years.

38

PG 12.05.08 at 11:28 pm

novakant,

I wouldn’t call this state of affairs natural, as there are many countries where justices aren’t elected, but rather appointed like other civil servants.

Yes, countries like New York, California, Arizona, the federal system of the U.S. …

39

MarkUp 12.05.08 at 11:42 pm

”For example, violations of the securities laws to artificially inflate stock prices can stack up into a sentence that will keep a middle-aged corporate executive in prison until he dies, but most people wouldn’t consider that as “serious” as aggravated child rape—yet the mandatory minimum for that in Massachusettes is less than 10 years.”

Of course that 10 years could also “stack up” on multiple counts as could serial jaywalking.

FreeEbbersNow.com/world

40

lemuel pitkin 12.06.08 at 12:17 am

countries like New York, California, Arizona, the federal system of the U.S. …

Huh? I don’t know about Illinois, but judges certainly are elected in California and New York.

41

JanieM 12.06.08 at 12:39 am

For PG and Lemuel, from , where there’s more explanation:

There are two ways to become a judge in California. One is to be appointed by the Governor. The other is to run for election.

42

JanieM 12.06.08 at 12:40 am

43

George Wallace 12.06.08 at 1:21 am

This is all very interesting, but I surely expected that after more than forty comments in this thread at least one perspicacious CT reader would have complimented on the very splendid Mark Eitzel reference in his post title.

There, now that’s done. As you were.

44

Brett Bellmore 12.06.08 at 1:54 am

“Righteous Bubba @ 15: Courts of appeal do not necessarily consider the totality of a case when an appeal is made. And Presidents do? “

At least they don’t have iron clad rules demanding that they not.

45

Martin Bento 12.06.08 at 2:56 am

Anyone who has followed recent political history knows how the pardon power has been abused – Marc Rich is the least of it. Nixon and most of his henchman got off, most of the Iran/Contra figures got off. Most of the bad players in the current administration trace their pedigree to those previous ones, and are largely furthering the abuses they began in those administrations. This is what the pardon power, coupled with America’s somewhat childish emotional need to believe in the system and therefore “heal” unpleasant memories and truths has taken us to the point of serious damage to the political system and rule of law and caused or encouraged untold damage. So that’s the bad side of recent pardons?

And the good side? A lot of them seem to be relatively unimportant cases. Sometimes, they are done to set old political conflicts to rest. Probably the most important of these was Carter’s pardon of the draft dodgers. However, although one could see the political advisability of what Carter did, it probably should have been done through the legislature, or just through a decision not to prosecute.

It is interesting to me how many defenders of the pardon power do not seem to be fans of jury nullification. If the premise is that the legal system sometimes reaches bad results that need to be overridden, the biggest requirement would seem to be that the overrider have no vested interest, which will be true of a well-chosen jury, but will often not be true of a President, and indeed has not been true in the most important recent cases.

46

Sortition 12.06.08 at 5:43 am

Presidential pardons are just another power giveaway to the rich and powerful – another shot at getting away with murder (or some other crime). Sure – they sometimes are used for good purposes as well, but this could probably be said about any arbitrary power.

If the power of pardon is to exist at all, it should be vested with a group outside the electoral elite or any other elite.

47

J. 12.06.08 at 6:14 am

Eitzel. Best. Songwriter. Ever.

48

novakant 12.06.08 at 8:53 am

PG, I am not familiar with the laws in different states, but it’s permissible to contrast the US, where some judges – and also other representatives of law enforcement and the legal system such as sheriffs and district attorneys – are elected by the people, with other countries, where none of them are.

The judge, sheriff or DA running for re-election is a popular trope in American literature and film (e.g. Bonfire of the Vanities), while this theme initially seems peculiar to many Europeans because of this difference.

49

Dave Weeden 12.06.08 at 12:20 pm

Brett @ 44: I really don’t understand the problem with appeal courts not considering the ‘totality’ of a case. Appeals – as I understand them – are made to details: the evidence was tainted, the judge wrongly advised the jury, etc. Appeals are supposed to get the defendant off. It’s the details which keep the state back: focussing on details is a bulwark against oppression, surely.

Bubba @ 27: I think you’re just wilfully twisting things. And your comment @ 34 seems to confirm that.

I have to say that I *still* don’t get pardons. I know that as a Brit I don’t understand the US justice process, but the Presidential pardon seems like an anachronism to me. It’s like you’ve imported the “royal touch” fetish straight from European courts. I don’t disagree that courts sometimes make wrong decisions. However, the sensible remedy is procedural: consideration of the relevant facts by trained experts and the merits of the case debated with the whole thing on public record. Against this, the private cogitations of one man – no debate, no records – seem like a superstition.

50

Brett Bellmore 12.06.08 at 12:42 pm

The problem is that, under some circumstances, the courts will flatly refuse to take into account some relevant details, perhaps because they came out after you filed your appeal. The result is appeals in which you’re not allowed to present the evidence of your innocence.

The pardon doesn’t seem so strange to me: The prosecution gets discretion to not bring charges, the judge has discretion to dismiss charges, why shouldn’t the executive have discretion to set people free?

Now, pardoning people before they’ve been charged, let alone convicted, that IS nuts.

51

ejh 12.06.08 at 1:42 pm

Saves time, surely? I mean why take the piss by letting everybody else go through a charade before you hand over the Get Out Of Jail Free card?

52

Righteous Bubba 12.06.08 at 4:17 pm

I really don’t understand the problem with appeal courts not considering the ‘totality’ of a case.

Apart from what Brett writes, it’s a human process as much as the trial: if your lawyer isn’t the greatest he may not choose the best grounds for appeal.

No pardons involved but this is a great film about American justice going wrong:
http://en.wikipedia.org/wiki/The_Thin_Blue_Line_(documentary)

53

RobNYNY 12.06.08 at 4:53 pm

Brock: As for declaring war, yes, the Constitution says Congress has the power, but for most practical purposes, the President can start small wars mostly on his own. Don’t forget the George H.W. Bush sent American troops into Somalia after his electoral defeat in December 1992, leaving a mess for Bill Clinton to clean up. Whatever was wrong there could have waited a few more weeks to let the new President handle it.

And the chart above is misleading. George H.W. Bush shows a low number of pardons, but among them the disgraceful pardons of his Iran-Contra co-conspirators.

54

tib 12.06.08 at 5:06 pm

I don’t get the Giuliani worship around here. He was a politically ambitious prosecutor who brought a number of cases designed more to enhance his career than to further justice. His acolytes love to push the Rich case to burnish his credentials and tarnish Democrats. Why fall for it?

I see pardons as an important safety valve on the excesses of government, it is very underused these days.

55

Katherine 12.06.08 at 5:46 pm

“The effect of a pardon in these cases is to allow the individual to regain many lost civil rights: the right to vote..”

Woah, hold up there. Once someone has been convicted of an offence they never get to vote again? Wow. I really don’t know a damn thing about the US justice system, it seems. That is all.

56

MarkUp 12.06.08 at 6:18 pm

”Once someone has been convicted of an offence ”

Not all offense’s and/or in all states.

57

jrosen 12.06.08 at 6:42 pm

Pardon (!) my ignorance but I am under the impression that accepting a pardon is an admission of guilt, which is different from an exoneration which the President can’t give, I believe. There is also commutation of sentence, i. e. the Libby business; does this imply no admission of guilt as well?

In any case, pardon before charging and conviction, without even stating what the offense pardoned might have been, seems a big stretch to me. And doesn’t a pardon require a name…i.e. a specific pardonee, so to speak? If so, than a list of such people pardoned by Bush would give a very good roadmap for a Congressional investigation in to abuses of power, violation of privacy laws, even war crimes…with immunity provided to make testimony easier to compel.

Of course, U S immunity would not be protection against trial by an international court; should say, Bush, Cheney, or Rumsfeld travel abroad, they might well be vulnerable to a Pinochet occurrence.

Anyway, here is my scenario: Bush pardons everybody in sight, then 10 minutes before the swearing-in, he resigns, making Cheney the President, who then turns around and pardons him. Odds, anyone?

58

salient 12.06.08 at 7:52 pm

To me, several comments here sidestep a basic fact about the US legal system: it’s supposed to be the role of the executive to prosecute crime, or more generally, to ‘execute’ the law. No judge or jury gets to weigh in on a crime unless some prosecutor decides to prosecute it. Granted, the supervisory system of prosecutors is a little byzantine, but at least in principal the chief executive should oversee prosecution.

The question is whether the head of an executive branch should have the power to assert either “oops we ought not to have prosecuted person X for Y” (after-the-fact pardon) or “we are categorically not going to prosecute Person X for Y” (proactive pardon) — in a sense, the discussion of exoneration is moot in this context.

59

salient 12.06.08 at 8:01 pm

The ‘after-the-fact’ idea sounds about right to me: a chief executive should have the power to issue such a pardon, perhaps for reasons as simple as philosophical disagreement with the previous chief executive. I suspect this comes into play, for example, in cases of civil disobedience — perhaps the law’s clear and constitutional, but public opinion about how/when the law should be applied has changed.

A proactive pardon of any kind seems like it ought to carry both the force and the limitations of an executive order (so that, for example, a subsequent chief executive has the authority to reverse the decision). That’s probably the crux of the matter: should the chief executive have the right to prohibit future chief executives from prosecuting specific crimes? Under what circumstances could this be a useful and appropriate power? (My guess — if anything, this should be restricted to use as a bargaining tool, e.g. pardon in exchange for information to prosecute someone else with.)

60

Nell 12.06.08 at 8:47 pm

The chart makes clear the Clinton administration’s pernicious role in setting this precedent, and makes even more unappealing the prospect of Eric Holder as Attorney General.

61

L2P 12.07.08 at 2:17 am

The problem is that, under some circumstances, the courts will flatly refuse to take into account some relevant details, perhaps because they came out after you filed your appeal. The result is appeals in which you’re not allowed to present the evidence of your innocence.

Most importantly, appeal courts never get to consider whether the jury was simply wrong. On appeal, the jury verdict will be upheld if there was any possible way they could have reasonably found the person guilty. Think of a reverse OJ scenario, where virtually anyone looking at that evidence would have acquitted, but that group of 12, with evidence barely over the smell test, convicts.

That happens more than you think. All those DNA “innocence” cases? They try some of those (not after those 20 year appeals AFAIK) and win. Tattoos McGangbang doesn’t look all that innocent on the defense table. A jury sees some “eyewitnesses,” a cop giving some gang history, and the defense giving some expert DNA evidence the jury doesn’t really understand. Give the jury a choice of murder, assault, and innocence, you might get a third strike from 12 guys who think they’re give Tattoos a break, and really think the guys innocent. Juries are crazy.

Without pardons, there’s really nothing you can do about that.

62

Eli Rabett 12.07.08 at 4:04 am

The point is that there isn’t a damn thing the Republicans won’t ruin, screw up, collapse, lay waste to or otherwise abuse. Their whole purpose is to abuse any limit on their unrestrained greed so that it is done away with.

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PG 12.07.08 at 9:35 pm

lemuel,

The New York Court of Appeals and California Supreme Court justices are appointed by the governor, not elected by the people. If Californians want to punish the justices who voted to recognize SSM, they have to wait for an election that is on the 14-year-cycle from the judge’s initial appointment. The fact that we do have non-elected judges in the U.S. (including federal judges who have life tenure and face not even retention elections) means that if one wants to make a comparison between the justice of sentences given by elected judges and those by unelected, one need not go outside the U.S. Comparisons between the states, and between state and federal, won’t have the same degree of noise from differences in laws, cultures, etc. that comparison between American states and foreign nations will.

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Dave 12.08.08 at 10:09 am

The line between ‘directly elected’ and ‘appointed by someone directly elected’ is not particularly thick in practice, I suspect. Do Governors become paragons of neutral probity as soon as their baby-kissing adventures draw to a [very temporary] close? Does anyone argue that appointments to SCOTUS are not political, and their holders not divided by ideology?

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MSS 12.08.08 at 7:33 pm

I’ve always believed that the transition was too long, the pardon power too unilateral (regardless of where it is exercised within a president’s term), and that we should constitutionalize the idea of “caretaker” conventions within the transition stage. The notion of adopting caretaker conventions would apply to lame-duck congresses as well as lame-duck presidents. In fact, while I can see that there needs to be a relatively lengthy period between election and executive inauguration in a presidential system, I see no reason why a new Congress could not take office within a few weeks of the election.

Pardons could be subject to congressional review. Better yet, they could be subject to an independent commission that would recommend cases worthy of pardon to the president, who could then refuse (sustaining the judgment of courts) but could not initiate his own cases of pardon.

Really, this is not that hard to fix. It’s the political will that’s hard.

Final remark: If Josh thinks the solution is “better presidents” I suggest he go back and brush up on his Madison.

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