The twilight of the pardon power.

• Author: Love, Margaret Colgate
• Position: Centennial Symposium: A Century of Criminal Justice

1. INTRODUCTION

   Almost two years after taking office, President Barack Obama had yet to issue his first pardon. (1) Almost 5,000 petitions for clemency awaited his consideration. (2) At the same point in his presidency, Abraham Lincoln had granted clemency to over 200 ordinary citizens and many hundreds of soldiers. (3) In their first year in office, Presidents Theodore Roosevelt issued 134 clemency grants, Franklin Roosevelt 204, and Truman 107. (4)

   President Obama's early reticence in matters of official forgiveness should not be surprising, for it continues a trend begun in the Reagan Administration that accelerated under Bill Clinton. What was once a steady stream of presidential clemency grants has dwindled to a token few. The process for administering the president's power in the Department of Justice now functions primarily to protect the handiwork of federal prosecutors. Like his immediate predecessors and most (though by no means all (5)) current governors, President Obama appears to have concluded that there is too little gain and too much risk in pardoning to make it a worthwhile activity. (6)

   The diminished role of clemency reflects and reinforces a justice system that has become inhumane and politicized. We live in a nation that imprisons a higher proportion of its population than any other in the world and that permanently stigmatizes those convicted of crime. (7) But federal law makes almost no provision for shortening a prison term and makes no provision at all for mitigating the collateral consequences of conviction. (8)

   It would be bad enough if presidents had made a conscious choice not to pardon at all or to make only occasional symbolic use of their constitutional power. But what makes current federal pardoning practice intolerable is that as the official route to clemency has all but closed, the back-door route has opened wide. In the two administrations that preceded Obama's, petitioners with personal or political connections to the presidency bypassed the pardon bureaucracy in the Department of Justice, disregarded its regulations, and obtained clemency by means (and sometimes on grounds) not available to the less privileged. The Department of Justice invited these end runs by refusing to take seriously its responsibilities as presidential advisor in clemency matters, by exposing President Clinton to charges of cronyism, and then President Bush to charges of incompetence. The two presidents are also at fault: in confirming popular beliefs about pardon's irregularity and unfairness, they disserved both the institution of the presidency and their own legacies. To date, President Obama has taken no steps to reform and reinvigorate a pardon process that has, in Justice Anthony Kennedy's words, been "drained of its moral force." (9)

   Who hijacked the president's pardon power? Is it worth rescuing, or should it be left to wither away in peace? To find the answers, Part II of this Article looks at pardoning practices in the nineteenth and early twentieth centuries, a time when pardon played an important operational role in the federal justice system. It describes how pardon evolved into parole, and how in an age of indeterminate sentencing pardon came to be used primarily to restore rights of citizenship. Part III examines the reasons for pardon's decline in the 1980s and its collapse in the Clinton Administration. Part IV argues that President Obama should want to revive the power and suggests how he might do it.

2. PUBLIC MERCY FROM 1789 TO 1980

   In the Federalist Papers, Alexander Hamilton justified giving the president exclusive control of the "benign prerogative of pardoning" in terms of two great public purposes: to temper the law's harsh results as a matter of compassion and to intercede to defuse a politically inflammatory situation. (10) As to the first of these purposes, Hamilton observed that "without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel." (11) With respect to the second, he proposed that "in seasons of insurrection or rebellion, there are often critical moments, when a well-timed offer of pardon to the insurgents or rebels may restore the tranquility of the commonwealth." (12) In a government otherwise of limited powers, there was to be no check on the president's prerogative but public opinion. (13)

   Examples of pardon used as a tool of statecraft abound in American history, often linked to wartime exigency or post-war amnesties. George Washington granted his first pardons in 1794 to Pennsylvania farmers challenging the federal government's power to tax whiskey. (14) Sixty years later, Abraham Lincoln used the pardon power to bring a measured end to another dangerous internal rebellion, this time involving the "largest massacre of whites by Indians in American history." (15) Presidents since Thomas Jefferson have issued post-war pardons to deserters and draft evaders (16) and issued pardons to signal their disagreement with a law. (17) Pardon has also figured in such politically divisive issues as labor organizing, race relations, polygamy, and Puerto Rican independence. (18) Arguably the most famous statecraft pardon is Gerald Ford's of Richard Nixon.

   While the tradition of clemency as statecraft is an important and enduring one in this country, this Article is concerned with the equally important tradition of clemency as a tool of justice to make "exceptions in favor of unfortunate guilt." (19)

   1. THE ADMINISTRATION OF THE PARDON POWER BEFORE 1870

      From the earliest years of the Republic, pardon was used to benefit ordinary people for whom the results of a criminal prosecution were considered unduly harsh or unfair. This kind of low-level pardoning took place largely out of the public eye, but with some regularity. Presidents spent what seems today like a great deal of their time in office considering pardon requests, which frequently came from judges forced to apply laws they regarded as excessively harsh. (20) Presidents granted clemency to a high percentage of those who asked for it, forestalling or halting prosecutions, cutting short prison sentences or remitting them entirely, forgiving fines and forfeitures, and occasionally restoring citizenship rights lost as a result of conviction.

      The secretary of state was the official custodian of pardon documents, but the presidents generally relied on their attorneys general for advice about how and when to exercise their constitutional power. Access to the president's mercy sometimes depended upon personal or political connections, and early pardon warrants reveal that the president frequently gave weight to "respectable testimonials" about a pardon petitioner's former good character from prominent citizens. (21) Thomas Jefferson began the practice of routinely seeking the views of district attorneys and judges, declaring that "[n]o pardon is granted in any case but on the recommendation of the judges who sat on the trial & who best know & estimate the degree of the crime, & character and deportment of the criminal." (22) Later presidents would continue this practice. (23) Reasons for pardon were occasionally spelled out in pardon warrants, though James Polk was the first president to adopt this practice on a systematic basis. (24)

      The informal and idiosyncratic system for administering the pardon power that prevailed in the first half of the nineteenth century began to crystallize in 1852 when Daniel Webster, Millard Fillmore's Secretary of State, formally handed over responsibility for investigating and making recommendations on clemency petitions to Attorney General William Crittenden. (25) Under President Buchanan, a pardon clerk was appointed to assist the attorney general in his new administrative responsibilities. (26)

      During the Civil War, President Lincoln's inclination to be merciful and his sensitivity to the pardon's political usefulness were the source of some frustration to his generals--though his pardoning apparently inspired the troops. (27) He once spared the lives of sixty-two deserters in a single order (28) and wrote to General George Meade that he was "unwilling for any boy under eighteen to be shot." (29) General William T. Sherman complained to the Judge Advocate General that Lincoln found it "very hard ... to hang spies," reporting that he intended "to execute a good many spies and guerrillas--without ... bothering the President." (30) President Lincoln spent long hours reviewing clemency requests from soldiers and their families, (31) and famously entertained pardon petitioners at the White House.

      While Lincoln's military pardons are the stuff of legend, he also issued 331 clemency warrants to people convicted in the civilian courts. Attorney General Edward Bates, the embodiment of an emerging institutional impulse to manage the practice of pardoning, worked hard to control access to the president and keep track of those to whom he made promises. Pardon Clerk Edmund Stedman reported, "My chief, Attorney General Bates, soon discovered that my most important duty was to keep all but the most deserving cases from coming before the kind Mr. Lincoln at all; since there was nothing harder for him to do than put aside a prisoner's application...." (32) Indeed, the Attorney General declared that President Lincoln was "unfit to be trusted with the pardoning power," partly because he was too susceptible to women's tears. (33) Lincoln accepted advice from all quarters, and frequently provided explicit and detailed reasons for clemency decisions in the warrants themselves. (34) At the same time, he approved many capital sentences, in one case rejecting a petition for clemency signed by ninety-one members of Congress. (35)

   2. THE JUSTICE DEPARTMENT AND THE PARDON POWER, 1870-1930

      A regime in which a petitioner could appear personally before the president to plead for a pardon became unthinkable after the Civil War as the federal...