Reflections on the atrophying pardon power.

AuthorRosenzweig, Paul
PositionSymposium on Overcriminalization

Today more than 2.2 million Americans sit in jails and prisons across the nation. (1) More than 200,000 of them are under the care of the Federal Bureau of Prisons (the remainder being remanded to the custody of state and local authorities). (2) As a percentage of the population, that number is greater than that of any other Western nation and rivals the degree to which citizens are imprisoned in China and Russia, authoritarian regimes to which Americans are not used to being compared (and whose official incarceration rates may understate the actual numbers). (3)

To be sure, a significant majority of those currently in prison deserve to be where they are under any conception of justice. Nobody doubts that murderers, rapists, and robbers are rightly subject to punishment and imprisonment in any society of ordered liberty. But at some level these figures serve to confirm what we already instinctively know: that America is in the throes of a bout of overcriminalization, reflecting our instinct to make a case (and often a federal case) out of every transgression of societal norms.

It was not always so. The growth in criminal law today reflects a divergence from its treatment early in our republic and under the traditional common law rules of Anglo-American culture. We have, for example, diluted the traditional requirement that criminal acts require criminal intent. (4) We have expanded concepts of civil liability and wrongdoing into the criminal sphere, such that those who cause an injury that traditionally would require compensation are now jailed. (5) We have seen the federalization of criminal laws formerly thought of as the proper domain of the state's police power. (6) We have diverged from the Founders' conception of the separation of powers, allowing the devolution of unchecked authority to unelected prosecutors without the oversight of the other branches of government. (7) And with the growth in mandatory and lengthy sentences, we have seen an explosive growth in the old-age prisoner population. (8)

This short essay explores yet another way in which criminal justice today no longer resembles a justice system that the Founders would recognize: the atrophying of the executive's pardon power. For much of our history, the President used his pardon power to correct wrongs, forgive transgressors, and temper justice with mercy. (9) Governors, likewise, used their power to prevent the perpetuations of injustice. (10) Today, those instincts have died, buried under a legacy of prosecutorial zeal and a fear of adverse political criticism. (11) And that's a shame, for the pardon power, properly understood, is one of the great bulwarks of individual liberty. It is, in effect, the personification of the government acting as a check on the institutions of the government. Leaders today would do well to remember the value of the pardon power and restore it to its former prominence.

  1. PARDONS AND JUSTICE--A FOUNDER'S CONCEPTION

    I begin, appropriately enough, at the beginning--with the conception of the pardon power in the first days of the American republic. To be sure, this inquiry may have some normative import. For many in today's academy and judiciary, the originalist interpretation of law at the time of the founding is an important guide to the interpretation of texts from that era. (12) But it is not my intention here to make that strong a claim. Indeed, inasmuch as the Constitution makes only brief mention of the pardon power (and virtually no mention of the substantive criminal law to which the power is inextricably linked), (13) a Founder's conception of the pardon might appear somewhat less than controlling of its contemporary interpretation.

    Thus, I advance the far more modest claim that how the American legal system and its Founders treated the pardon authority is (and ought to be) relevant to policymakers and jurists alike who are charged with developing and interpreting contemporary American criminal statutes. For example, if we were to conclude, at a minimum, that the founding generation was skeptical of the exercise of pardon authority, then we might approve of our current practice of limiting clemency. Conversely, if we were to conclude that the exercise of the pardon authority was thought to be linked to the severity of the punishment to be imposed, we might develop a greater skepticism of, say, the movement towards felony punishment for simple negligence offenses.

    My conclusions from reviewing the history are relatively straightforward. At the time the Constitution was framed, the pardon was conceived of as having a dual purpose--both as a political means of ameliorating dissent, (14) broadly understood, and as a moral expression of just deserts. (15) There was, in the Founders' conception, a link between criminal liability and some form of moral blameworthiness--a link that led to mitigation of punishment where criminal intent was lacking. (16)

    That link between pardons and intent can be inferred from the contemporaneous materials from this era. It can be seen in the writings of some of the Founders--Jefferson and Wilson, most clearly. It can be inferred, with moderate force, from the acts of the First Congress in defining federal crimes and, more significantly, in providing for the mitigation of penalties where intent was deemed lacking. (17)

    Naturally, none of this is dispositive. My assessment, however, is that the connection between crime and moral blame was far more predominant and influential at the founding than it is today. It would have been unusual for punishment to be directed at acts where the alleged criminal acted with diminished intent. (18) Today, by contrast, we are in the midst of a near orgy of creating crimes with either no criminal intent requirement or diminished intent requirements. (19) Given the Founders' focus on the need for intentionality in criminal acts, it appears that the pardon authority historically was much more widely and commonly deployed in earlier times to mitigate the punishment of those lacking criminal intent than it is today.

    The presidential power to pardon is granted under Article II, Section 2 of the Constitution: "The President ... shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment." (20) The text does not provide any standard for the presidential exercise of the power. For all it appears, the power can be exercised for any reason or no reason at all. (21) And substantively there is only one limitation: that impeached officeholders can't be pardoned.

    Why such a broad and unfettered pardon power? It was considered essential for both normative reasons of justice and utilitarian reasons of power.

    First, the pardon power coincided with the Founders' conception of justice. As Alexander Hamilton put it in Federalist No. 74:

    The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel. 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 a mitigation of the rigor of the law, and least apt to yield to considerations, which were calculated to shelter a fit object of its vengeance. The reflection that the fate of a fellow creature depended on his sole fiat, would naturally inspire scrupulousness and caution: The dread of being accused of weakness or connivance, would beget equal circumspection, though of a different kind. (22) Thus, Hamilton concluded: "Humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed." (23)

    Hamilton was not alone in his view that the pardon power's purpose is to temper justice with mercy. Chief Justice John Marshall said much the same thing: "A pardon is 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." (24)

    But pardons were also seen as playing a practical role in public policy. Here is Hamilton on the use of pardons as a critical component of reconciliation: "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." (25) Likewise, James Wilson argued during the Constitutional Convention that a "pardon before conviction might be necessary in order to obtain the testimony of accomplices." (26) For public policy reasons, as much as anything else, President Washington granted amnesty to those who participated in the Whiskey Rebellion, (27) and Lincoln and Johnson did the same for Confederate soldiers who fought in the Civil War. (28) Indeed, this aspect of the pardon was relatively recently used when Ford pardoned President Nixon and Carter granted amnesty to Vietnam-era draft evaders. (29)

    These conceptions of mercy and utility distinguished the Founders' understanding of the pardon power from the pre-Revolutionary pardon power exercised by the king of England. In England, the power to pardon was part of the king's royal prerogative and, indeed, likely dated back to the time of the Norman invasion. (30) The Parliament tried, unsuccessfully, to limit the king's pardon power (which was often granted in exchange for money or military service). Finally, in the Act of Settlement in 1701, the Parliament managed to preclude the king from pardoning officials impeached by Parliament, (31) a limitation carried forward in our own Constitution. (32)

    For the Founders the pardon power was thus transformed into an authority that was both utilitarian in nature and an effort to develop a constitutional conception of just...

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