PRESIDENTIAL PARDONS

MR. PRESIDENT, MISUSING THIS POWER IS UNPARDONABLE

Kathleen Dean Moore
Oregon State University

With less than a week remaining in his administration, President Clinton still has at least one major announcement to make: who else shall receive presidential pardons.

Clinton announced 62 pardons and commutations on Dec. 22, bringing his total while in office to 280. He promised one last round of pardons before he leaves office. Speculation about possible recipients has centered on Susan McDougal and of Whitewater fame; Michael R. Milkin, released from prison in 1993 after doing hard time for securities fraud; Native American activist Leonard Peltier, imprisoned for killing two FBI agents; and Jonathan Pollard, convicted of spying for Israel. Hundreds of others have also sought the president's forgiveness. The pardons Clinton chooses to grant will leave the last lingering taste of the moral character of his presidency. He should choose based on forgiveness rather than favor.

The president's pardoning power is widely misunderstood. "Clemency," the broadest term, includes the various kinds of relief available under the pardoning power. A president can commute an offender's sentence, substituting a lesser for a more severe sentence. Or he can grant a reprieve, which postpones execution of a sentence for a specified period of time. Or he can grant a full and unconditional pardon, relieving the offender of almost all the legal consequences of the offense.

Since the start of the Carter administration in 1977, 95 percent of all those granted clemency have received post-sentence pardons, which go to people who have been tried and convicted, served their full sentences and lived productive, law-abiding lives for at least five years. While a post-sentence pardon obviously can't reduce the term of punishment, it provides offenders some measure of self-respect and public recognition of their rehabilitation, and helps them reclaim civil rights they lost when they were convicted--the right to vote, to get certain types of jobs and licenses, to adopt a child, to carry a weapon, to sell alcohol, to race cars or horses, etc.

A routine part of the extra-legal operation of the justice system, these pardons generally go unnoticed. Who remarked on Clinton's Dec. 22 pardon of Alfred Whitney Brown III of Covington, La., who had served his full sentence for the illegal sale of wildlife? Too often, a rare case in which a prosecution is abruptly shut down or prison doors swing open--like the pardons of Richard Nixon and Jimmy Hoffa--hits the headlines and is mistaken for the typical case.

President Clinton's decisions are made more difficult by historical circumstance. When he came into office, the use of the pardoning power was in a steep decline. From Franklin D. Roosevelt's presidency through Jimmy Carter's, an average of more than 200 people each year were granted some form of presidential clemency. President Ronald Reagan, however, pardoned only about 200 each term. And President George Bush pardoned even fewer: a measly 77 in four years. Clinton has done nothing to restore the routine use of this power, pardoning or commuting the sentences of only 35 people a year, on average. Now, with so few pardons issued, the chances are much higher that each will be closely scrutinized.

As someone who could write the book on the importance of forgiveness, President Clinton surely understands that his final pardons will give him a chance to display the highest human virtues, or the basest of political and self-serving motives. More than 200 years ago, philosopher Immanuel Kant warned that the pardoning power is the "most slippery of all the rights of the sovereign." By exercising the pardoning power, the sovereign can "demonstrate the splendor of his majesty," or by the same act, "wreak unjustice to a high degree." Clinton should grant pardons that can be justified as acts of mercy or acts of justice--the two greatest virtues of a ruler.

Remember that the pardon traces its lineage, through the European monarchs, straight back to the idea of divine grace. To forgive is--weary as we are of being reminded--divine. Forgiveness puts the past behind and goes forward. These are not just sweet-sounding words to the hundreds of people who apply for post-sentence pardons every year. Having served their sentences and returned to useful lives in their communities, a pardon for these petitioners recognizes their rehabilitation and offers a fresh start. By honoring their petitions, Clinton can demonstrate the quality of mercy, the greatest of human virtues.

But if a pardon is a gift, it should not be a quid pro quo. Using a pardon to pay for something given in return is corruption--pure and simple. And there's a notable history of that practice. The great number of papal indulgences sold in the Middle Ages was a scandal. A shame of the European kings was the routine sale of pardons for prices ranging from 2 shillings to 16,000 pounds sterling. Giving pardons to reward political loyalty or encourage campaign donations or express gratitude for personal favors differs only in degree. Clinton will need to be very cautious, in his next round of pardons, to avoid even the impression that he is using this most splendid of all powers to reward his friends and gratify his political allies.

Perhaps Clinton could begin by explaining how the pardon of ex-representative Dan Rostenkowski, a Democratic party stalwart convicted of mail fraud in 1996, was a justifiable use of the pardoning power. Or maybe he could explain why, of the 62 people pardoned last month, seven are from Arkansas.

Not all pardons are acts of mercy. Some of the most compelling pardons are acts of justice. Our legal system is imperfect. There are bad laws and bad judges, overzealous prosecutors and vengeful law-enforcement officers, and a vast, unpredictable array of human motives and mistakes. The pride of the legal system is its internal self-correcting devices that identify and eliminate injustices when they occur. But these systems are imperfect, too. When the legal system perpetrates an injustice and is unable to correct it, then a president should correct it with an act of clemency.

"The criminal code of every country partakes so much of necessary severity," Alexander Hamilton wrote, "that without an easy access to exceptions in favor of unfortunate guilt, justice would bear a countenance too sanguinary and cruel." Clinton is well advised--no, more than that, he has a moral duty of justice--to grant pardons to correct the most grievous miscarriages of justice. Generally, these injustices fall into one of three major categories:

• A basic principle of justice is that no one should be punished unless guilt has been established beyond a reasonable doubt. If the president is persuaded that someone's guilt is in doubt, he may grant a pardon. Leonard Peltier's case is a contemporary example, his supporters say. In a trial they contend was notable for the absence of hard evidence, Peltier was convicted of the 1975 murder of two FBI agents on the Pine Ridge reservation in South Dakota.

• When someone has broken the law, but has committed no wrong-doing, he is morally innocent and a pardon is justified. Clinton was right to pardon 80-year old Freddie Meeks in December 1999, for example. Meeks was convicted of mutiny when, as a World War II sailor, he refused a blatantly racist and effectively murderous order--a courageous and, one could argue, morally correct violation of the law.

• Federal mandatory sentencing guidelines and mandatory minimum statutes in drug cases are wreaking havoc on the principle that the punishment should fit the crime by requiring sentences that are extraordinarily harsh or disproportionate to the seriousness of the offense. Where laws prevent judges from making the fine discriminations that justice requires, presidential clemency can remedy some of the worst injustices--and at the same time draw attention to the shortcomings of the laws. Thus, Clinton had good reason to commute the drug-trafficking sentence of Kemba Smith on Dec. 22. Smith--a non-violent accomplice in a crack cocaine ring--had served 6 years of a 24 1/2 year sentence, longer than the average state sentence for murder.

These considerations of justice and mercy, rather than political cronyism, should guide Clinton's last pardon decisions. Deliberately positioned above the statute law and beyond judicial review, the pardoning power should be governed by the moral law. Whether Clinton uses the power well or abuses it, the final appeal will be to the peoples' sense of justice and benevolence, or to their sense of smell.

January 14, 2001

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