Guiding Presidential Clemency Decision Making

Guiding Presidential Clemency Decision Making
PAUL J. LARKIN, JR.*
ABSTRACT
The Article II Pardon Clause empowers the President to grant clemency to
any offender for any reason that he or she deems justif‌ied. The clause contains
only two textual limitations. The President cannot excuse someone from
responsibility for a state offense, nor can he prevent Congress from impeach-
ing and removing a federal off‌icial. Otherwise, the President’s authority is
exclusive and plenary. It is, perhaps, the only surviving aspect of the royal
prerogatives.
What the clause does not do is give the President a standard, a guideline,
or a decision tree for making clemency decisions. There is a consensus that
some reasons are entirely legitimate, even laudatory, grounds for clemency,
such as freeing someone who was erroneously convicted, who is suffering
under an unduly onerous punishment, or who has atoned for his crimes and
turned his life around. Nevertheless, neither the President nor the Department
of Justice Pardon Attorney, who is responsible for managing the govern-
ment’s clemency process, has devised a standard for the President to use
when making clemency decisions. The Pardon Attorney has compiled a list
of relevant factors but has not identif‌ied which ones are necessary and suff‌i-
cient, nor has that off‌icial assigned those factors an ordinal relationship or
different weights. The result is that a President is left to act like a chancellor
in equity by relying on his subjective assessment of the “the totality of the
circumstances.”
This Article discusses the need to make pardon and commutation decisions in
a reasonable, orderly manner that would systematize and regularize the Pardon
Attorney’s recommendation process and the President’s decision making. An
objective approach would help the President make decisions consistent with
longstanding rationales for punishment. The hope is that, in doing so, the
President will be able to act justly as well as to persuade the public that the fed-
eral clemency system is open to all, not merely to the President’s political, f‌i-
nancial, or personal allies, cronies, and friends.
* John, Barbara & Victoria Rumpel Senior Legal Research Fellow, The Heritage Foundation; M.P.
P. George Washington University, 2010; J.D. Stanford Law School, 1980; B.A. Washington & Lee
University, 1977. The views expressed in this Article are the author’s own and should not be construed
as representing any off‌icial position of The Heritage Foundation. I am grateful to Rachel E. Barkow,
GianCarlo Canaparo, Jeffrey Crouch, Shon Hopwood, Alex Kozinski, Margaret Colgate Love, John G.
Malcolm, Mark Osler, Ellen S. Podgor, and Caleb Redmond for helpful comments on an earlier iteration
of this Article. Cooper Conway, Lucas Drill, and Alexis Huggins provided invaluable research
assistance. Any errors are mine. © 2020, Paul J. Larkin, Jr.
451
TABLE OF CONTENTS
INTRODUCTION: THE ODD NATURE OF THE CLEMENCY POWER . . . . . . . . 452
I. PROBLEMS WITH THE FEDERAL CLEMENCY PROCESS. . . . . . . . . . . . 459
II. THE CLEMENCY STANDARDS ADOPTED BY THE DEPARTMENT OF
JUSTICE OFFICE OF THE PARDON ATTORNEY. . . . . . . . . . . . . . . . . . 463
III. DEVISING A STANDARD FOR PRESIDENTIAL CLEMENCY DECISION
MAKING. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 465
A. The Text of the Pardon Clause . . . . . . . . . . . . . . . . . . . . . . . . 465
B. Judicial Interpretations of the Pardon Clause . . . . . . . . . . . . 470
C. The English History of Executive Clemency . . . . . . . . . . . . . . 475
D. The American History of Executive Clemency . . . . . . . . . . . . 479
E. The Teaching of Legal Scholarship . . . . . . . . . . . . . . . . . . . . 485
F. The Wisdom of Moral Philosophy . . . . . . . . . . . . . . . . . . . . . 489
IV. NEGOTIATING THE DIFFICULT CHOICE BETWEEN DISCRETION AND
RULES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 496
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 501
INTRODUCTION: THE ODD NATURE OF THE CLEMENCY POWER
Americans have never willingly chosen to be ruled by a king. The colonies
declared their independence in 1776 in a declaration that indicted King George
III for a host of violations of their natural rights as citizens of England.
1
For the
duration of the Revolutionary War, a Continental Congress became the sover-
eign. The Articles of Confederation carried forward governance by a collegial
body consisting of representatives from each state with no chief executive com-
parable to a monarch. Members of the founding generation, however, soon con-
cluded that the absence of a chief executive was a grievous f‌law in the structure
of the new national government.
2
To remedy that defect, the Convention of 1787
proposed in Article II of the Constitution to create the off‌ice of “President of the
United States.”
3
1. See, e.g., THE DECLARATION OF INDEPENDENCE paras. 2, 4–31 (U.S. 1776).
2. JACK RAKOVE, ORIGINAL MEANINGS: POLITICS AND IDEAS IN THE MAKING OF THE CONSTITUTION
244–87 (1996).
3. U.S. CONST. art. II, § 1, cl. 1 (“The executive Power shall be vested in a President of the United
States of America.”).
452 THE GEORGETOWN JOURNAL OF LAW & PUBLIC POLICY [Vol. 18:451
Whatever else can be said about that position, it is not a kingship.
4
King
George III was a hereditary monarch. The President is not; he holds an elected
off‌ice for four years.
5
Before the advent of the rule of law and the rise of
Parliament, the English crown was the complete sovereign; whoever sat on the
throne held the power of life and death over everyone in the nation.
6
The
President’s powers are specif‌ied and few. One is lawmaking in nature.
7
One is
military.
8
Some are diplomatic.
9
One is informational.
10
Some are administrative
or managerial.
11
Presidents also have certain additional implied powers to
4. There is currently a rich debate over the reach of the President’s “executive Power.” One theory is
that the Executive Vesting Clause grants the President all the authority possessed by the English crown
that the Constitution did not otherwise grant to Congress or the federal courts. Another theory is that
the clause merely designates the President as the off‌icial who must execute whatever powers the
Constitution or Congress grants him. See, e.g., SAIKRISHNA BANGALORE PRAKASH, IMPERIAL FROM THE
BEGINNING: THE CONSTITUTION OF THE ORIGINAL EXECUTIVE (2015); Patricia L. Bellia, Faithful
Execution and Enforcement Discretion, 164 U. PA. L. REV. 1753 (2016); Jack Goldsmith & John F.
Manning, The Protean Take Care Clause, 164 U. PA. L. REV. 1835 (2016); Andrew Kent et al., Faithful
Execution and Article II, 132 HARV. L. REV. 2111 (2019); Lawrence Lessig & Cass R. Sunstein, The
President and the Administration, 94 COLUM. L. REV. 1, 49–52 (1994); Gillian E. Metzger, The
Constitutional Duty to Supervise, 124 YALE L.J. 1836 (2015); Julian Davis Mortenson, Article II Vests
the Executive Power, Not the Royal Prerogative, 119 COLUM. L. REV. 1169 (2019); Robert G. Natelson,
The Original Meaning of the Constitution’s “Executive Vesting Clause”—Evidence from Eighteenth-
Century Drafting Practice, 31 WHITTIER L. REV. 1 (2009); Robert J. Reinstein, The Limits of Executive
Power, 59 AM. U. L. REV. 259 (2009). This debate is beyond the scope of this Article.
5. U.S. CONST. art. II, § 1, cl. 1; id. amend. XII (revising the process for electing the President and
Vice President); id. amend. XX (establishing that the Vice President shall become President if the
President either dies before assuming off‌ice or dies during his elected term); id. amend. XXII (limiting
the number of terms that anyone can serve as President).
6. See JOHN PHILLIP REID, THE RULE OF LAW: THE JURISPRUDENCE OF LIBERTY IN THE SEVENTEENTH
AND EIGHTEENTH CENTURIES (2004); Paul J. Larkin, Jr., The Lost Due Process Doctrines, 66 CATH.
U. L. REV. 293, 327–32 (2016) [hereinafter Larkin, Lost Due Process Doctrines].
7. U.S. CONST. art. I, § 7, cl. 2 (requiring that every bill that passes both houses of Congress be
presented to the President for his signature or veto). The President’s veto power includes the authority to
refuse to sign a bill that he deems constitutional but unwise. See, e.g., Youngstown Sheet & Tube Co. v.
Sawyer, 343 U.S. 579, 587 (1952) (“The Constitution limits [the President’s] functions in the lawmaking
process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad.”); The
Pocket Veto Case, 279 U.S. 655, 678 (1929); Consumer Energy Council of Am. v. FERC, 673 F.2d 425,
462 (D.C. 1982), summarily aff’d sub nom. Process Gas Consumers Grp. v. Consumer Energy Council
of Am., 463 U.S. 1216 (1983); THE FEDERALIST No. 73, at 441 (Alexander Hamilton) (Clinton Rossiter
ed., 1961) (stating that the President’s veto power “not only serves as a shield to the Executive, but it
furnishes an additional security against the enaction of improper laws”).
8. U.S. CONST. art. II, § 2, cl. 1 (“The President shall be Commander in Chief of the Army and Navy
of the United States, and of the Militia of the several States, when called into the actual Service of the
United States . . . .”).
9. U.S. CONST. art. II, § 2, cl. 2 (“[The President] shall have Power, by and with the Advice and Consent
of the Senate, to make Treaties, provided two-thirds of the Senators present concur”); id. (“[The President],
by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and
Consuls”); id. § 3 (“[The President] shall receive Ambassadors and other public Ministers.”).
10. U.S. CONST. art. II, § 3 (“[The President] shall from time to time give the Congress Information
of the State of the Union and recommend to their Consideration such Measures as he shall judge
necessary and expedient.”).
11. U.S. CONST. art. II, § 1, cl. 1 (“The executive Power shall be vested in a President of the United
States of America.”); id. § 2, cl. 1 (“The President shall be Commander in Chief of the Army and Navy
of the United States, and of the Militia of the several States, when called into the actual Service of the
2020] GUIDING PRESEDENTIAL CLEMENCY 453

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