Some Reflections on the President s Pardon Power

• Author: Mark Strasser
• Position: Professor of Law, Capital University Law School.
• Pages: 143-159

Page 143

I Introduction

Periodically ¹ , politicians, and pundits call for reform of the presidential pardon power, especially after allegations of abuse involving cover-ups of official wrongdoing or rewards for financial contributions have been made.² Because the pardon power was neither intended to help fill political coffers nor to prevent individuals in office from being brought to justice, such calls should be expected after scandals have come to light and are unlikely to generate much controversy.³ However, what is and will continue to be controversial is whether a constitutional amendment should be passed to limit the pardon power of the President and, if so, what the content of such an amendment should be.

Some commentators argue that the presidential pardon power is only appropriately used to rectify mistakes, e.g., to free someone wrongly convicted or to reduce a clearly disproportionate sentence.⁴ Others disagree, suggesting that it may be used to achieve a variety of state goals such as promoting peace and healing in the country or inducing witnesses to testify so that criminal offenders might be brought to justice.⁵ Without more consensus about which uses are appropriate and which are not, it seems clear that the pardon power neither will nor should be limited.

Part I of this Article addresses the limitations on the presidential pardon power, concluding that the power is plenary and that it can be exercised for a variety of reasons so long as the power is being exercised to substitute a less severe punishment for a greater one. Part II suggests that the equal protection and due process guarantees of the Constitution provide very modest limitations on the pardon power. The Article concludes that while there are very few limitations on the President's power to pardon, the Page 144 costs of passing a constitutional amendment to impose more limitations would far exceed the benefits thereby gained.

II Justice and the Power to Pardon

Commentators strongly disagree about the purposes behind and the appropriate limitations of the pardon power. Some suggest that pardons should only be issued to promote justice, apparently believing that were such a limitation imposed there would be many fewer pardons.⁶ Yet, commentators' expectations notwithstanding, this view might require so many more commutations and pardons to be issued that the entire system would be swamped. In any event, this view neither reflects the current jurisprudence nor the framers' intentions, and does not seem to have much to commend its adoption. While commuting sentences to promote justice is of course to be commended, it is not at all clear that commuting sentences for other worthwhile purposes should be condemned.

A The President's Power To Pardon

Article II, section 2, clause 1 of the United States Constitution reads in relevant part, "The President . . . shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in cases of Impeachment."⁷ The Court has made clear that the President's power to pardon is plenary, and that it is neither subject to "modification or regulation by Congress."⁸ If indeed the pardon power has any limits, those limits must found in the Constitution,⁹ either as it exists currently or as it will exist after having been amended.

When trying to determine the limits imposed on the pardon power by the Constitution, it would be helpful to establish what that power was designed to accomplish. Regrettably, there is no consensus regarding the purposes the pardon power does or should serve.¹⁰ For example, Professor Moore suggests that pardons may only appropriately be issued when justice would otherwise not be served, either because the sentence was too harsh¹¹ or because the person was wrongly convicted.¹² Pardons which are Page 145 not "justice-enhancing,"¹³ but instead promote other purposes,¹⁴ should not be issued because their issuance would undermine rather than promote justice.

Moore explains that there are four kinds of cases in which a pardon is justice-enhancing:

1. When the criminal automatically suffers all that is deserved, for example, when a parent discovers that the individual whom he or she carelessly ran over with a car was his or her own dearly beloved child.¹⁵

2. When particular circumstances like a terminal illness make the person disproportionately harmed by a punishment.¹⁶ For example, the person had received a term of years rather than a life sentence and if the person's sentence is not commuted, he or she may well die in prison.

3. When punishment is too great on an absolute scale,¹⁷ for example, the long prison term Jean Valjean received in Victor Hugo's Les Miserables for stealing a loaf of bread to feed his starving family.¹⁸

4. When the lingering effects of the crime add undeserved punishment,¹⁹ for example, an individual continues not to be able to get a job, notwithstanding that the conviction occurred long ago and that the individual Page 146 has already repaid his or her debt to society.²⁰

   After explaining which reasons would justify granting a pardon, Moore offers examples of reasons that would not justify a pardon, common beliefs to the contrary notwithstanding. These include:

1. promoting the public welfare or the welfare of pardoner,

2. pity, and

3. the recommendation of the judge, jury, or attorney.²¹

   One difficulty with Moore's system is that it may not be as easy to classify the different cases as she apparently believes. To use one of Moore's examples, suppose that an individual who has been sentenced to several years' imprisonment has been diagnosed as having a terminal illness and will die in prison unless the sentence is commuted. Moore argues that the individual's sentence should be shortened as a matter of justice.

   Suppose that the sentence is in fact commuted, although out of pity rather than justice. Is the issuance of the pardon appropriately criticized?²²At least one issue that must be addressed is whether justifiable pardons must be issued for the "right" reason or whether they might still be acceptable if issued for the wrong reason, as long as they would in fact be justice-enhancing. According to the stricter version of Moore's theory, a pardon issued out of pity would not be justified even if the issuance of that same pardon could have been justified as a matter of justice. According to the less strict version of her theory, a pardon would be justified as long as its issuance would be justice-enhancing, regardless of why it was in fact issued.

   Moore has reason to avoid choosing between these approaches, although she may not appreciate the disadvantages of either position. Suppose that she adopts the narrower view, which is probably closer to her Page 147 actual view.²³ Then she would seem to be precluding a variety of pardons merely because the Executive happened to have the wrong motivation for granting them, e.g., because the Executive was so overcome by pity that she did not even realize that issuing the pardons would in fact promote justice. Yet, if the quality of the pardon is based on whether its issuance would enhance justice, the Executive's lack of appreciation of the justice- enhancing nature of the pardon should not diminish the praiseworthiness of the pardon, even if the Executive's qualities might thereby seem less admirable.

   Suppose that Moore rejects the above approach and instead suggests that the issuance of a pardon would be acceptable as long as the pardon would in fact enhance justice, even if the Executive does not appreciate the justice-enhancing nature of the pardon. In that event, it may turn out that many of the pardons Moore would be tempted to criticize would in fact be justifiable, because it would be possible to claim that they would be justice-enhancing, even if the Executive had not been at all focused on issues of justice. Indeed, it might turn out that there are few if any pardons that are not at least arguably justice-enhancing.²⁴

   Moore's system is more complicated than she seems to realize for yet another reason. Consider the prisoner whose terminal illness is discovered post-sentencing. As a practical matter, it may not be possible in many cases to know when individuals will in fact die. William Howard Taft discusses "two notable cases in which [he had been] assured by the prison authorities that death was imminent, and that if . . . [the convicted prisoners] were to be released at all, to die, they ought to be released at once."²⁵ Taft "reached the conclusion from the evidence submitted that death was certain [and he] pardoned them both."²⁶ One of the individuals died but the other did not.²⁷

   The pardons discussed by Taft illustrate not only the difficulties in predicting who may die but also that judging the praiseworthiness of pardons may depend upon whether one is judging their justice-enhancing nature prospectively or retrospectively. Assuming that Taft's commutations were motivated by considerations of justice rather than of mercy, Moore would presumably suggest that both pardons were justice-enhancing when viewed prospectively, but that only one qualified as justice-enhancing when viewed retrospectively. Page 148

   Not only would the evaluation of the pardons themselves depend on whether they were viewed prospectively or retrospectively, but a separate issue would be whether an apparently justice-enhancing pardon should be revoked when in retrospect it turned out not to have the requisite quality. While the pardon issued by Taft was not revoked, that was because there was no evidence of fraud on the part of the pardonee²⁸ rather than...