Wednesday, July 23, 2003
Pardon Me?
posted by Alan
As you probably know, state governors and the president can unconditionally pardon or commute the sentence of any convicted criminal. I’m well aware of the tremendous good pardons can do in a justice system plagued by racism, classism, unjust laws, and overburdened courts, but I couldn’t help but notice that the power to pardon seems inconsistent with democratic legitimacy.
Basically, political power in our republic derives its legitimacy from the will of the people, expressed through elected representatives. In order to check governmental abuse, power is separated among the legislative, executive, and judicial branches. The president can veto a bill, for example, but a two-thirds majority of Congress can override his veto. But even this supermajority isn’t home free; the Supreme Court can strike down a law as unconstitutional. If that is the case and the people really want their law, though, there’s always the constitutional amendment process. Ultimately, then, power is in our hands.
So where do pardons fit in? Or do they? Unlike every other formal power in our government that I can think of, the power to pardon is utterly unchecked; it sidesteps the authority of the other branches. Supposedly, only the judicial branch has the authority to try and sentence criminals – processes, unlike pardons, governed by laws of evidence, testimony, juries, appeals, and the like. However, these processes are costly and time-consuming, so unlimited appeals are out of the question. But this shouldn’t make pardons any more attractive. The implicit reasoning “12 citizens and two appellate courts found this guy guilty beyond a reasonable doubt and the law properly applied, but maybe they’re wrong, so let’s give him one last chance” is misguided idealism, along the lines of “But come on, we all know OJ is guilty!” If we truly value procedural justice, why allow executives blanket discretion to pardon? Judges shouldn’t be allowed to rule in favor of their friends; neither should presidents and governors.
This leads me to some practical arguments about pardons. Despite his sea of bureaucrats, the president cannot effectively have a new trial for every criminal he’s considering pardoning, not to mention that he probably lacks the qualifications of a judge. Realistically, pardons are based on things like political pressure, one-sided evidence, and friendship; only the rich, famous, and well-connected even get their cases considered. It flies in the face of our court system to allow such concerns to trump a series of actual trials. In the eleventh hour of one’s presidency, he shouldn’t have the option of throwing a bone to his white-collar-criminal cronies and campaign contributors.
Of course, the substantive justice of pardons, like jury nullification, may simply outweigh everything I’ve argued so far. There are people on death row, for instance, whom we reliably know are innocent victims of racism, incompetent public defenders, and unjust limitations of appeals. Nevertheless, the discretionary executive pardon strikes me as a qualitatively different form of political power than anything else in our government, and as such, it deserves some scrutiny.
Basically, political power in our republic derives its legitimacy from the will of the people, expressed through elected representatives. In order to check governmental abuse, power is separated among the legislative, executive, and judicial branches. The president can veto a bill, for example, but a two-thirds majority of Congress can override his veto. But even this supermajority isn’t home free; the Supreme Court can strike down a law as unconstitutional. If that is the case and the people really want their law, though, there’s always the constitutional amendment process. Ultimately, then, power is in our hands.
So where do pardons fit in? Or do they? Unlike every other formal power in our government that I can think of, the power to pardon is utterly unchecked; it sidesteps the authority of the other branches. Supposedly, only the judicial branch has the authority to try and sentence criminals – processes, unlike pardons, governed by laws of evidence, testimony, juries, appeals, and the like. However, these processes are costly and time-consuming, so unlimited appeals are out of the question. But this shouldn’t make pardons any more attractive. The implicit reasoning “12 citizens and two appellate courts found this guy guilty beyond a reasonable doubt and the law properly applied, but maybe they’re wrong, so let’s give him one last chance” is misguided idealism, along the lines of “But come on, we all know OJ is guilty!” If we truly value procedural justice, why allow executives blanket discretion to pardon? Judges shouldn’t be allowed to rule in favor of their friends; neither should presidents and governors.
This leads me to some practical arguments about pardons. Despite his sea of bureaucrats, the president cannot effectively have a new trial for every criminal he’s considering pardoning, not to mention that he probably lacks the qualifications of a judge. Realistically, pardons are based on things like political pressure, one-sided evidence, and friendship; only the rich, famous, and well-connected even get their cases considered. It flies in the face of our court system to allow such concerns to trump a series of actual trials. In the eleventh hour of one’s presidency, he shouldn’t have the option of throwing a bone to his white-collar-criminal cronies and campaign contributors.
Of course, the substantive justice of pardons, like jury nullification, may simply outweigh everything I’ve argued so far. There are people on death row, for instance, whom we reliably know are innocent victims of racism, incompetent public defenders, and unjust limitations of appeals. Nevertheless, the discretionary executive pardon strikes me as a qualitatively different form of political power than anything else in our government, and as such, it deserves some scrutiny.
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