PRESIDENTIAL PARDONS

Wednesday, February 28, 2001

Thank you Mr. Chairman and members of the Subcommittee. My name is Daniel T. Kobil. I am a Professor of Law at Capital University Law School in Columbus, Ohio, where I have taught constitutional law for the past fifteen years. Since entering teaching, my principal area of scholarly interest has been executive clemency and I have written a number of articles on this subject. See Daniel T. Kobil, "The Quality of Mercy Strained: Wresting the Pardoning Power from the King", 69 Texas Law Review 569 (1991); Daniel T. Kobil, "Do the Paperwork or Die: Clemency, Ohio Style?," 52 Ohio State Law Journal 655 (1991); Daniel T. Kobil, "Due Process in Death Penalty Commutations: Life, Liberty, and the Pursuit of Clemency," 27 University of Richmond Law Review (201); Daniel T. Kobil, The Evolving Role of Clemency in Capital Cases, Chapter 20 in America’s Experiment with Capital Punishment (Acker, Bohm, & Lanier, ed.1998). I have represented individuals seeking clemency, and have also served as counsel of record for the American Civil Liberties Union as amicus curiae in Ohio Adult Parole Authority v. Woodard, 523 U.S. 272 (1998), a case decided by the United Supreme Court concerning clemency and Fourteenth Amendment guarantees of due process. It is therefore a pleasure to be with you today to discuss the history, scope, and proper role of clemency in our constitutional system.

Article II, section 2, of the Constitution succinctly provides that the President “shall have Power to grant Reprieves and Pardons, for Offenses against the United States, except in Cases of Impeachment.” The President’s power to grant reprieves and pardons has been broadly construed by the Supreme Court as authorizing the issuance of all forms of clemency, including amnesty, commutation, and the remission of fines and forfeitures, in addition to pardon and reprieve. Although it is common to refer to any executive act that ameliorates punishment as an exercise of the “pardoning power,” I believe that the term “clemency” more accurately describes the plenary constitutional authority of the President to remit punishment using the distinct vehicles of pardons, amnesties, commutations, reprieves, and remissions of fines. Generally, in this testimony I will use “clemency” as an umbrella term referring to all exercises of the power of the President under Article II to diminish punishment.

I have been asked by the Subcommittee to address the history of the clemency power, particularly the intent of the framers in adopting the provision, which has survived in its current form unchanged since it became part of our Constitution in 1787. I will also address the manner in which the judiciary has interpreted the President’s clemency authority, as well as the history of its use by various presidents. Finally, I will consider the appropriate and necessary role that I believe clemency ought to continue to play in our constitutional system.

Although the controversy currently surrounding various grants of clemency issued by former President Clinton at the end of his term cannot be ignored, I believe that the much of the ensuing inflammatory rhetoric has worked against constructive debate about appropriate uses of the clemency power. Thus, I do not intend to comment directly on the propriety of these remissions of punishment. It is my hope, instead, that by looking at the clemency power in the broader context of our constitutional system, this hearing will foster greater understanding of the importance of clemency, and serve as a catalyst for a reasoned, national discussion on its proper role.

I. History of the President’s Clemency Authority

A. The Drafting of the Constitutional Provision Governing Reprieves and Pardons

During the constitutional convention in Philadelphia, Alexander Hamilton initially proposed that the President "have the power of pardoning all offences except Treason; which he shall not pardon without the approbation or rejection of the Senate." The Report of the Committee of Detail retained the President as the sole repository of the power to grant reprieves and pardons, but instead of excepting treason, the report provided that presidential pardon "shall not be pleadable in Bar of an Impeachment." This language was shortened to its present form--"except in cases of impeachment"--without reported debate.

The few recorded discussions at the Convention concerning the clemency power pertained to unsuccessful attempts to restrict the scope of the President's power. Mr. Sherman proposed that the power “to grant reprieves & pardons” be amended so as to read “to grant reprieves until the ensuing session of the Senate, and pardons with consent of the Senate.” The motion was voted down eight to one. 2 The Records of the Federal Convention of 1787, at 419 (M. Farrand ed. 1911) [hereinafter “M. Farrand at ___”].

Similarly, some of the framers voiced concerns that vesting in the President an unlimited power to pardon in cases of treason was too dangerous. Edmund Randolph argued that "[t]he prerogative of pardon in these cases was too great a trust. The President may himself be guilty. The Traytors may be his own instruments." 2 M. Farrand at 626. While a number of the delegates, including James Madison, agreed that the power to pardon treason should not be vested in the President alone, the framers ultimately were unwilling to allow the Senate to share the power to pardon. The debate on Mr. Randolph’s motion (later withdrawn) to “except cases of treason” from the clemency power is instructive on the framer’s views of why the power should be vested in the President alone, rather than the legislature:

Col: Mason supported [Mr. Randolph's] motion.
Mr Govr Morris had rather there should be no pardon for treason, than let the power devolve on the Legislature.
Mr Wilson. Pardon is necessary for cases of treason, and is best placed in the hands of the Executive. If he be himself a party to the guilt he can be impeached and prosecuted.
Mr. King thought it would be inconsistent with the Constitutional separation of the Executive & Legislative powers to let the prerogative be exercised by the latter--A Legislative body is utterly unfit for the purpose. They are governed too much by the passions of the moment. In Massachusetts, one assembly would have hung all the insurgents in that State: the next was equally disposed to pardon them all. He suggested the expedient of requiring the concurrence of the Senate in Acts of Pardon.
Mr. Madison admitted the force of objections to the Legislature, but the pardon of treasons was so peculiarly improper for the President that he should acquiesce in the transfer of it to the former, rather than leave it altogether in the hands of the latter. He would prefer to either an association of the Senate as a Council of advice, with the President.
Mr. Randolph could not admit the Senate into a share of the Power. The great danger to liberty lay in a combination between the President & that body--
Col: Mason. The Senate has already too much power--There can be no danger of too much lenity in legislative pardons, as the Senate must concur, & the President moreover can require two-thirds of both Houses.

2 M. Farrand at 626-27.

Ultimately, the only limit on the clemency power admitted by the framers was that it could not be used in cases of impeachment. In my view, the framer’s retention of impeachment as the sole textual limit on the clemency power is consistent with the complementary nature of impeachment and pardon as integral parts of the Constitution’s system of checks and balances. If the President could pardon in cases of impeachment, this important check which Congress can exercise on the Executive and the Judiciary would be significantly weakened. Likewise, if the President had been required to share the clemency power with the Congress, the efficacy of clemency as an essential counterbalance on the law-making and law-interpreting branches, would be diminished.

B. The Ratification Debate in the States regarding the Constitutional Provision Governing Reprieves and Pardons

Any consideration of the intent of the “framers” of the Constitution ought to include, not only the views of the delegates to the Philadelphia convention, but also the substance of the debates over ratification of the Constitution that occurred in the states. After the Philadelphia convention, some critics of the proposed constitution voiced objections that the President's unrestrained power to pardon might lend itself to abuse, particularly in cases of treason.

Alexander Hamilton responded forcefully that the clemency power is both necessary, and is properly vested in the President alone:

Humanity and good policy conspire to dictate that the benign prerogative of pardoning should be as little as possible fettered or embarrassed. . . . As the sense of responsibility is always strongest in proportion as it is undivided, it may be inferred that a single man would be most ready to attend to the force of those motives which might plead for mitigation of the rigors of the law, and least apt to yield to considerations which were calculated to shelter a fit object of its vengeance.

The Federalist No. 74, at 447-48 (A. Hamilton) (C. Rossiter ed. 1961)[hereinafter, "The Federalist No. 74, at ___"].

In defending the proposed Constitution’s broad grant of authority to the President, the two most often-cited defenders of the clemency power, Hamilton and James Iredell, pursued nearly identical lines of reasoning. First, both emphasized the justice-enhancing aspects of clemency, meaning that the power is necessary to assure that people are treated fairly. Hamilton argued that the "benign prerogative of pardoning" should be as little fettered as possible so that exceptions in favor of "unfortunate guilt" could be made; otherwise, "justice would wear a countenance too sanguinary and cruel." The Federalist No. 74, at 447. Mr. Iredell was even more explicit:

[T]here may be many instances where, though a man offends against the letter of the law, yet peculiar circumstances in his case may entitle him to mercy. It is impossible for any general law to foresee and provide for all possible cases that may arise; and therefore an inflexible adherence to it, in every instance, might frequently be the cause of very great injustice. For this reason, such a power ought to exist somewhere; and where could it be more properly vested, than in a man who had received such strong proofs of his possessing the highest confidence of the people?

"Address by James Iredell," North Carolina Ratifying Convention (July 28, 1788) [hereinafter Iredell Address], reprinted in 4 The Founders' Constitution 17-18 (P. Kurland & R. Lerner ed. 1987).

Despite their initial observations on clemency's justice-enhancing aspects, however, both Hamilton and Iredell devoted the bulk of their responses to defending the clemency power on what I have called “justice-neutral” grounds: pragmatic reasons unrelated to whether it would be fair to remit punishment in a particular case. Hamilton contended that the principal argument for vesting the power to pardon in the President alone was that in "seasons of insurrection," a well-timed offer of pardon to the rebels could be essential to the preservation of the government. The Federalist No. 74, at 449. (The prescience of this observation was borne out after the Civil War, when Presidents Lincoln and Johnson employed the clemency power generously to help bind together a divided nation).

Iredell also argued that shrewd use of the pardoning power might prevent a civil war, but cited additional justice-neutral reasons for giving the power to the President. Iredell contemplated that the clemency power could be used to procure the testimony of the accomplices of great criminal offenders and to protect that "set of wretches whom all nations despise, but whom all employ"--namely, spies who have proved useful to the government. Iredell Address at 18. These arguments evidently carried the day because the Constitution was ratified with the provision vesting the clemency power solely in the President, intact.

C. The “gloss of life:” Presidential Uses of the Clemency Authority

As Justice Frankfurter observed in Youngstown Sheet and Tube v. Sawyer, 343 U.S. 579 (1952), in evaluating presidential powers, we cannot disregard “the gloss which life has written on them.” This is true also of the clemency power. Once the Constitution was ratified, Presidents did not hesitate to use clemency in ways that benefitted the republic. In 1795, President Washington granted an unconditional pardon to many of the participants in the Pennsylvania Whiskey Rebellion. John Adams, in order to serve "the public good," likewise issued a presidential pardon to all persons involved in an insurrection in Pennsylvania.

After the Federalists were soundly defeated in the election of 1800, President Jefferson utilized the clemency power to pardon all those convicted and sentenced under the Alien and Sedition Act, which the Federalists had used, in clear violation of the First Amendment, to silence the Jeffersonian Republicans. President Jefferson also attempted to utilize the pardon power in pragmatic fashion to procure the testimony of an alleged "accomplice" of Aaron Burr during Burr's treason trial. This attempt failed when the witness indignantly refused the pardon and declared his and Burr's innocence on the stand, resulting in the acquittal of Jefferson's long-time political rival.

President Madison, in gratitude to the Barrataria pirates who had aided the defense of New Orleans against the British, pardoned all crimes and dismissed all indictments against any who could show they had helped defend the city. The executive clemency power was also used in pragmatic fashion, as it had been in England, to man the navy. Presidents Harrison and Cleveland used the clemency power by granting a general amnesty to members of the Mormon Church, forgiving past crimes of polygamy, but warning that those “who shall fail to avail themselves of the clemency hereby offered will be vigorously prosecuted.” James D. Richardson, 7 A Compilation of the Messages and Papers of the President 5803 (1897).

Clemency played an especially crucial role in restoring tranquility to the nation following the Civil War, when Presidents Lincoln and Andrew Johnson repeatedly issued amnesties to persons who had fought against the Union, conditioned on their taking an oath to uphold the Constitution. Although Lincoln's amnesty proclamation was authorized by statute, many became disenchanted with what were widely perceived as lenient presidential clemency policies and, during Johnson's administration, Congress sought to curtail the clemency power through legislation. However, Congress's efforts to restrict the President's power were unavailing, largely because of the expansive interpretation given to the presidential pardoning power by the branch whose duty it is to say what the law is: the judiciary.

II. Judicial Interpretation of the Clemency Authority

Prior to the drafting of the United States Constitution, political theorists generally believed that it was impossible for clemency to exist in a democracy, because lacking a monarch, there was no one “above the law” who could forgive crimes against society. As we have seen, the framers disregarded the conventional wisdom and vested the clemency power entirely in the President. However, for some time, the courts tended to equate the President’s exercise of clemency with the royal pardoning prerogative of the British monarch.

In United States v. Wilson, 32 U.S. (7 Pet.) 150 (1833), the first Supreme Court case to discuss the presidential clemency power, Chief Justice John Marshall defined a pardon as "an act of grace, proceeding from the power entrusted with the execution of the laws, which exempts the individual, on whom it is bestowed, from the punishment the law inflicts for a crime he has committed." Implicit in Marshall's definition is the notion that the executive can dispense such "grace" in any form, at any time, and for any reason, in all cases except impeachment. However, the Court has since eschewed Marshall's vision of a pardon as something akin to divine forgiveness. In Biddle v. Perovich, 274 U.S. 480 (1925), the Court limited an earlier holding that a presidential pardon could be refused and decided that the clemency power permitted commutations of sentences regardless of whether the recipient accepted the proffered commutation. Justice Holmes reasoned that this was true because clemency is not a private act of grace, but an integral aspect of our constitutional system:

A pardon in our days is not a private act of grace from an individual happening to possess power. It is a part of the Constitutional scheme. When granted it is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed. Just as the original punishment would be imposed without regard to the prisoner's consent and in the teeth of his will, whether he liked it or not, the public welfare, not his consent determines what shall be done.

Id. at 486 (emphasis supplied).

The President’s authority to use clemency as a tool to advance the public welfare has been consistently interpreted broadly.

The President has been held to possess the power to grant not only reprieves and pardons as expressly authorized in the Constitution, but every other form of clemency as well. In Ex parte Wells, 59 U.S. (18 How.) 307 (1855), the Court held that the chief executive could condition the grant of pardons on the recipient's acquiescence to virtually any terms.

During the Reconstruction era, when Congress was for the first time questioning the presidential power to grant general amnesties, the Court confirmed that the executive could not only dispense this form of clemency, but could also grant conditional amnesties. See Armstrong v. United States, 80 U.S. (13 Wall.) 154, 155-56 (1872) (upholding the validity of Andrew Johnson's proclamation of pardon and amnesty of December 25, 1868). In a similar vein, the Court ruled in Osborn v. United States, 91 U.S. 474 (1875), that the presidential clemency power includes the power to remit fines and forfeitures.

The Court also has rejected the notion that the coordinate branches of government can in any way limit the executive's clemency power. In Ex parte Garland, 71 U.S. (4 Wall.) 333,380 (1866), the Court gave perhaps its broadest characterization of the plenary scope of executive clemency:

The [clemency] power thus conferred is unlimited, with the exception [in cases of impeachment]. It extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment. This power of the President is not subject to legislative control. Congress can neither limit the effect of his pardon, nor exclude from its exercise any class of offenders. The benign prerogative of mercy reposed in him cannot be fettered by any legislative restrictions.

A more difficult issue implicit in Schick concerns the authority of the judiciary to limit the President's clemency power, an issue which pits the notion that the presidential clemency power should be unfettered against the principle that the judiciary is responsible for reviewing the constitutionality of executive actions. In Ex parte Grossman, 267 U.S. 87 (1925), the Court again construed the clemency power expansively, this time at the judiciary's expense, by holding that the power to pardon extends to the offense of criminal contempt of court.

In Grossman, the Department of Justice had argued on behalf of the trial court that the President cannot pardon criminal contempt of court, because to do so would impair the power and functions of the judiciary. Rejecting this separation-of-powers argument, Chief Justice Taft reasoned that the possibility that the pardoning power could be perverted so as to destroy the deterrent effect of judicial punishment is not a sufficient basis for limiting the President's discretion to grant clemency. "Our Constitution," wrote Taft for a unanimous Court, "confers [full] discretion [to pardon] on the highest officer in the nation in confidence that he will not abuse it." Id at 121. If the power were abused, the remedy, according to the Grossman Court, would be "resort to impeachment rather than to a narrow and strained construction of the [clemency power] of the President." Id.

Although the Supreme Court has never spoken to the issue as directly, the Court has suggested that narrow limitations on the power might be imposed through the process of judicial review where an act of clemency impairs other constitutional provisions. In Knote v. United States, 95 U.S. 149 (1877), the Court observed that a presidential pardon, like the king's pardon at common law, may not affect the vested rights of third parties. By similar reasoning, once proceeds from the sale of an offender's property have been paid into the United States treasury, a presidential pardon cannot secure the return of such proceeds to the offender, for to do so would contravene the appropriations power reserved to Congress in article I of the Constitution. Id. at 154-55. In Burdick v. United States, 236 U.S. 79 (1915), the Court upheld an offender's right to refuse a presidential pardon granted in order to impel him to testify in a case in which he had asserted his right against self-incrimination. Implicit in the Court's reasoning is the notion that the clemency power must be balanced against the rights of a witness under the Fifth Amendment: "[b]oth have sanction in the Constitution, and it should, therefore, be the anxiety of the law to preserve both,--to leave to each its proper place." Id. at 93-94.

The Court in Schick v. Reed, 419 U.S. 256 (1974), likewise recognized that the executive is free to attach any condition on the pardon "which does not otherwise offend the Constitution," presumably as determined by the judiciary. Thus, at least in theory, there is support for the notion that the judiciary can review the constitutionality of some exercises of the executive clemency power. However, issues of standing and justiciability, notably the political question doctrine articulated in Baker v. Carr, 369 U.S. 186 (1962), would surely complicate such review. Only in Burdick, which was limited in Biddle v. Perovich, 274 U.S. 480, 488 (1927) discussed earlier, has the Court ever used the power of judicial review to curtail the President's clemency power.

III. The Future of the Clemency Authority

As the previous discussion suggests, our understanding of the clemency power has changed over time, so that today clemency is best understood as a unique “part of the Constitutional scheme” that when granted, represents a determination that “the public welfare will be better served by inflicting less than what the judgment fixed.” Biddle v. Perovioch, 274 U.S. 480, 486 (1927). It is important at this time, when the clemency power is under fire, to keep in mind the many ways in which clemency, purposely “unfettered” according to the intent of the framers, advances the public welfare.

A. The Continuing Need for Clemency

The most obvious benefit of clemency is that it provides a “fail-safe” to correct the mistakes of an imperfect justice system. Although today our legal systems are generally much more refined than the common law systems in which clemency originated, mistakes inevitably occur. See generally Daniel T. Kobil, "The Quality of Mercy Strained: Wresting the Pardoning Power from the King," 69 Texas Law Review 569, 611-14 (1991)[hereinafter, “The Quality of Mercy at ___”]. In Illinois, executions were recently halted and Governor Ryan established a clemency commission to study the administration of the death penalty after it came to light that since 1990, that state has executed 11 inmates and freed 10 from Death Row. "Outraged Illinois Rethinks Death Row," The Detroit News p. A18 (Feb. 14, 1999). Clearly, as the federal system gears up to reinstate executions, and limits on appeals reduce the ability of judges to ameliorate punishment, there remains a need for clemency in cases of actual innocence, or where there are other questions about guilt.

Second, clemency is a vital part of our system of checks and balances. Of course, it is easy to see how by remitting punishment imposed by the courts applying the laws of the legislature, the clemency power is a check on both of these branches. Indeed, Thomas Jefferson contemplated using the power in just such a manner by pardoning individuals he considered to have been unconstitutionally convicted under the Federalist-enacted Sedition Act. See William J. Duker, "The President's Power to Pardon: A Constitutional History," 18 Wm. & Mary L. Rev. 475, 530 (1977).

But the clemency power can be properly viewed as enhancing the legislative and judicial powers as well. Members of the Supreme Court have suggested, for example, that without the availability of at least some avenue of clemency, imposition of the death penalty might be improper. See Gregg v. Georgia, 428 U.S. 153, n. 50 (1976)(opinion of Justices Stewart, Powell, and Stevens)(a system which included capital punishment but did not provide for executive clemency would be "totally alien to our notions of criminal justice"). By allowing for the possibility of exceptions to general rules promulgated by the legislature when those rules would frustrate the goals sought to be furthered, clemency ensures that laws will be executed in a way that fulfills Congress’ broader objectives.

Third, although it may seem easy to overlook in the heat of the current crisis over clemency, principled remission of punishment by the executive actually promotes public confidence in our system of justice by providing a mechanism to remit anomalous sentences. Historically, clemency has been used to equalize disparate sentencing that creates an impression that our system of justice is arbitrary, as where one individual receives a far harsher sentence than an accomplice who is more culpable. Similarly, clemency has been properly used to diminish the punishment imposed on those who were not entirely responsible for their actions because of mental retardation, brain damage, or other infirmity. See "Quality of Mercy" at pp. 625-28.

Fourth, clemency fulfils an important role in allowing the President to achieve broad policy goals that may be unrelated to achieving “justice” in individual cases, but which nevertheless advance the public welfare. In the past, these goals have included binding together a divided country following insurrection or civil war, rewarding individuals who were guilty of crimes but who had rendered great service to the nation, healing the wounds inflicted by a shattered presidency, manning the navy, and preventing the punishment of individuals who, in the view of the President, had been subjected to indictment for acting patriotically in matters of disputed public policy.

Fifth, clemency provides an opportunity for the executive to initiate or participate in a dialogue regarding the wisdom, efficacy, or constitutionality of our laws. As I mentioned earlier, President Jefferson did just that when he granted pardons to persons convicted under the constitutionally-suspect Sedition Act. Similarly, many of President Clinton’s grants of clemency can be seen as taking aim at what many today, including judges implementing the laws, view as overly-harsh mandatory sentencing standards pertaining to the possession or sale of illegal drugs. Likewise, on the state level governors have used clemency to mitigate the punishment of women who committed crimes while subject to “battered spouse syndrome,” but who were not permitted to raise that as a defense. See Daniel Kobil, "Do the Paperwork or Die: Clemency, Ohio Style?," 52 Ohio State Law Journal 655, 657 and n. 13 (1991).

Finally, grants of clemency are an important–perhaps the primary–way of infusing an element of mercy into our system of criminal justice. Mercy lies at the heart of the clemency power. Despite today’s prevailing philosophy of justice that favors meting out deserved punishment regardless of circumstances, it is important to remember that mercy has an officially-sanctioned place in our system in the form of executive clemency. See Margaret Love, "Of Pardons, Politics, and Collar Buttons: Reflections on the President’s Duty to Be Merciful," 27 Fordham Urban Law Journal 1483, 1500-06 (2000)[hereinafter, “Pardons, Politics, and Collarbuttons at ___”]. Just as we in our private lives aspire to behaving in a merciful manner, in delegating authority to the President who executes the laws on our behalf we also grant him the power to exercise mercy in our stead.

That this is indeed an important aspect of the clemency power can be discerned from the statement of our first President explaining one of the earliest grants of clemency. In justifying his pardons of participants in the Whiskey Rebellion of 1794, President Washington observed:

For though I shall always think it a sacred duty to exercise with firmness and energy the constitutional powers with which I am vested, yet it appears to me no less consistent with the public good than it is with my personal feelings to mingle in the operations of Government every degree of moderation and tenderness which the national justice, dignity, and safety may permit.

James D. Richardson, 1 A Compilation of the Messages and Papers of the President 176 (1897).

Thus, the public good can be served by allowing for an official act of mercy that recognizes the rehabilitation of citizens who made mistakes, but have repaid the debt they owed to society. Mercy may also be appropriate where a sentence, though legally correct, seems overly harsh in light of all the circumstances, as President Clinton apparently concluded was true in the cases of a number of people serving extremely long mandatory sentences for a first-time violation of federal drug laws. Yet the controversy surrounding President Clinton’s recent grants of clemency has prompted many to consider whether the clemency power needs to be reformed.

B. Possible Reform of the Clemency Power

The public outcry against President Clinton’s use of the clemency power suggests that our constitutional system may indeed have been harmed by the way in which the power was exercised. However, the danger posed is not the obvious one that some have suggested--that clemency might be dispensed improperly in the future, because the President’s authority is so sweeping. Rather, the real danger posed by the controversy over the Clinton pardons is that it will cause clemency, with its attendant benefits to the public welfare, to disappear entirely.

Despite the importance of clemency in our constitutional scheme, this power of the President has been in decline for a long time. My colleague on this panel, former U.S. Pardon Attorney, Margaret Love, has documented the decrease in the use of clemency during the administration of George H. W. Bush, coinciding with an official stance of being “tough on crime.” As Ms. Love has pointed out, clemency was least used by former President Bush, continuing a trend of parsimoniousness established by his predecessor, Ronald Reagan. "Pardons, Politics, and Collarbuttons" at 1492-97; see also "Quality of Mercy" at pp. 602-03, 640-41 (remarking on the perceptible decline in clemency after President Ford’s administration based on clemency statistics compiled by the Office of the United States Pardon Attorney 1969-1990).

Presidents who follow President Clinton could be unwilling to use the clemency power at all, in view of its obvious political risks. President Ford’s pardon of Richard Nixon may have cost him the 1976 election, sparking a precipitous decline in the use of clemency. President Clinton’s undisciplined use of clemency may also exact a high cost in terms of his reputation and historic legacy. If the past is prologue, it does not seem far fetched to speculate that such repercussions could threaten, in practical effect, to wipe out use of the clemency power for the foreseeable future. On the other hand, a proper appreciation of the importance of clemency to our constitutional scheme might outweigh considerations of political expediency in the minds of future Presidents, thereby preventing atrophy of the power. Only time will tell us how this delicate balance will be struck.

Under these circumstances, it is my belief that amendment of the Constitution to allow for a legislative veto of grants of clemency is unnecessary, and potentially dangerous in that it could effectively delete the clemency power from the Constitution. Such an amendment should be rejected for the same reasons that a similar proposal was discarded by the drafters of the Constitution. As Rufus King of Massachusetts bluntly put it, “a Legislative body is utterly unfit for the purpose.” 2 M. Farrand at 626. The recorded debate of the Constitutional Convention indicates that the framers thought that the legislature was either too powerful, or too prone to being swayed by the passions of the day to be entrusted with the clemency power.

Our recent history with controversial judicial nominations and cabinet appointments suggests that the framers may not have been far off the mark. One can imagine the public relations points that could be scored by the opposition off of the President’s proposed pardons if every lurid aspect of potential clemency recipients’ backgrounds became a basis for political wrangling. If the clemency power did not completely disappear following such an amendment, it would almost certainly be relegated to use only in the most innocuous circumstances. This may be why a similar proposal that was made in response to President Ford’s unpopular pardon of former President Nixon died in the Senate in 1974.

Rather than amending the Constitution, Congress might explore other methods of communicating to the President both its recognition of the importance of the clemency power to the public welfare, and its desire that the power be exercised regularly in a principled, informed fashion. It is my hope that hearings such as this one will encourage discussion of the clemency power, and contribute to a wider appreciation of its vital role in our Constitutional scheme.

Thank you for this opportunity to engage with you in public discussion of this important issue. I will be happy to answer any questions that you have.

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