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I Beg Your Pardon:
Presidential pardons historically have provided a critical safety valve in the federal criminal justice system. Today, though, that is no longer true.

  Throughout American history, Presidents issued pardons in a measurable chunk of federal criminal cases. (Statistics available here and here.) Back when only a few thousand federal criminal cases were charged each year, Presidents generally exercised their pardon power in hundreds of cases. In the early 19th century, for example, James Monroe pardoned 419 people. In the early 20th century, Woodrow Wilson pardoned 2,480 people. On a percentage basis, pardons have been becoming rarer over time. Even in the 1970s and 1980s, however, presidents have averaged about 400 or 500 pardons per Term. And of course, the federal prison population in absolute terms has gone way up since that time: according to Bureau of Prison statistics, the federal prison population has jumped from 20,000 in 1970 to about 150,000 today.

  Under George W. Bush, however, the pardon process essentially has come to a standstill. The Associated Press reports that the total number of pardons that George W. Bush has granted in his first Term in office is currently 31, jumping all the way from 27 with the addition of 4 new pardons announced yesterday. The only two Presidents who completed a Term in office with fewer pardons than Bush are the first two Presidents — George Washington and John Adams — and that was only because at the time there was no one around to pardon. Further, the four pardons granted yesterday are entirely symbolic. They all involve misdemeanor charges that resulted in probation, and in each case the probation was served and the case closed many years ago — and in some cases many decades ago. (The convictions were obtained in 1969, 1980, 1981, and 1990.) [UPDATE: It turns out that while all 4 crimes were minor and resulted only in probation, the convictions technically were felony convictions, not misdemeanors.]

  Presidential pardons can be politically risky; just ask Bill Clinton about pardoning Marc Rich. But it's the President's job to do the right thing regardless of what the pollsters say. There are currently 150,000 people in federal prisons, with another 50,000 or so on probation. Could it be that none of them deserve Presidential pardons?

  I have enabled comments.
Steven Andrew Miller (mail):
The only two Presidents who completed a Term in office with fewer pardons than Bush are the first two Presidents — George Washington and John Adams — and that was only because at the time there was no one around to pardon.

The article states:

Only two presidents never used their constitutional authority to grant clemency: 19th century chief executives James Garfield and William H. Harrison.


So there are four Presidents who have pardoned less people than President George W. Bush.
12.22.2004 12:55am
Strange Doctrines (mail) (www):
"Could it be that none of them deserve Presidential pardons?."

No, for if none of these 200,000 persons deserved a pardon, it would mean the federal criminal justice system were infallible. And everyone knows that the only infallible criminal justice system is in Texas.
12.22.2004 1:01am
David J. Parsons (mail):
This is troubling in the extreme. It is actively worse than if no pardons were granted at all - the symbolism makes a complete mockery of the genuinely valid reasons for the existence of the safety valve of executive clemency. Cases exist wherein the strict application of the law requires a certain punishment, a punishment, nonetheless, that justice abhors. Such cases cry out for the exercise of executive prerogative of mercy. I find it a sad indictment of this presidency that the desire to appear "tough on crime" trumps the necessity to see that justice is done.
12.22.2004 1:52am
Theodore Hasse (mail) (www):
It seems risky to offer pardons to anyone in the current political climate. To borrow a phrase from President Bush, why would he risk his "political capital" on convicted criminals when he can spend it on efforts that could benefit all Americans? Bush's opponents will not be moved by his compassion, they would more likely scrutinize any pardons for anything that could damage his administration (repeated offenses after pardon, distasteful backgrounds of pardoned individuals, Nth degree of separation relationships to Bush family or administration members that could be used to insinuate corruption, etc.)

Perhaps President Bush will grant some more pardons in the last hours of his second term as President Clinton did. But we should hope that he would have better judgment in doing it. Marc Rich was ineligible for pardon because he never served any sentence and he never admitted guilt for his crimes. Now we have found out that he was mixed up with the food-for-oil scandal.
12.22.2004 2:22am
Greedy Clerk (mail):
"It seems risky to offer pardons to anyone in the current political climate. To borrow a phrase from President Bush, why would he risk his "political capital" on convicted criminals when he can spend it on efforts that could benefit all Americans?"

That has to be a joke, right? This is from the President who has asserted that he has the right to detain US citizens on US soil indefinitely and with NO PROCESS WHATSOEVER. A proposition that was rejected by every Justice on the Supreme Court with the exception of Thomas's absurd --- dare I say embarssing --- opinion in Hamdi which implied that even Congress may not have the right to restrict the President's power to detain US citizens on US soil during wartime (read the first and second paragraphs of his dissent where he says "arguably" Congress could provide citizens with process).

I mean, Orin, what do you expect from a President who has asserted such power?
12.22.2004 2:45am
Ananda (mail):
"So there are four Presidents who have pardoned less people than President George W. Bush."

Sort of -- the other two, Harrison and Garfield, both died in office after weeks, making it hard for them to exercise any powers, much less the pardon power.
12.22.2004 6:10am
Republican Todd (mail):
It cannot be forgotten that most living federal convicts were convicted in modern federal courts; these courts permit far fewer convictions that cry out for clemency than convictions in years past. Also, there are more minor federal crimes than there were in yesteryear. There are many more strict liability crimes and reasonably minor regulatory crimes than there used to be. Comparing the federal criminal system of today to the systems of the Eisenhower or Polk administrations are apples/oranges affairs.

In addition, surely President Bush is entitled to a vast amount of political discretion in these matters. Pardons are politically risky (ask Gerald Ford or Bill Clinton). Knocking a few years off a harsh drug sentence shouldn't endanger social security reform. One wonders also if previous administrations' pardon totals weren't somewhat inflated by cronyism; it's very hard to believe they weren't. With the 24 hour news cycle, Bush simply can't pardon his buddies like previous presidents could (and some of us would like to believe he wouldn't do such things anyway).

I just don't believe that this issue lends itself to the kind of empirical statistical analysis Prof. Kerr is attempting.
12.22.2004 7:51am
Tocqueville (mail):
One person President Bush might consider pardoning is former World Chess Champion Bobby Fischer. Fischer is wanted in the U.S. on charges of violating the International Emergency Economic Powers Act by flying to Yugoslavia to play Boris Spassky in a chess match in 1992. The government has been dogged in its prosecution of this case and has recently arranged for his extradition fom Japan.
12.22.2004 8:05am
Tocqueville (mail):
One person that Bush may consider pardoning is Bobby Fischer. The former world chess champion is wanted in the U.S. on charges of violating the International Emergency Economic Powers Act by flying to Yugoslavia to play Boris Spassky in a chess match in 1992. The government has been dogged in its prosecution of this case and recently arranged for his extradition from Japan.
12.22.2004 8:10am
Jeff the Baptist (mail) (www):
It is understandable that Bush wouldn't want to use his pardon powers much. Remember the huge public uproar over Clinton's final day pardons? You know, the one that happened on the day of Bush's inauguration? There was even talk of passing legislation to severely restrict the presidents ability to pardon. If I became president under those circumstances, I wouldn't be pardoning many people either. I could screw up the whole pardon mechanism for future generations.

That and research into worthy cases is non-trivial. Bush honestly has had better things to do.
12.22.2004 8:57am
Son of Publius:
On the contrary, such exercises of noblessge oblige hardly seem republican. Do we really suppose that a President can have some special insight into the guilt or innocence of a person, or that it is ok to temporarily suspend the justice system because it isn't producing the outcome we want?
12.22.2004 9:05am
No One of Consequence (mail):
Since the president's favorite political philosopher is Jesus (who was well-known to be in the forgiveness business), he might want to ask himself "Who would Jesus pardon?"

It's heartening, though, to see that he's not following in his father's footsteps. Perhaps he's waiting until Christmas Eve, when the entire national press corps is on vacation, to pardon his political cronies. Query: can he pardon himself for his war crimes?
12.22.2004 9:06am
Nick (www):
I guess I don't see the issue here with the President. The issue I see is that we have created far too many Federal laws that are being broken, that shouldn't be Federal laws. How many of those 150,000 are in on some sort of drug charge? How many for rachetering (sp?). Should those be Federal crimes instead of state? I don't think so... but are they any less of a crime? Absolutely not.

Personally what I find troubling is that we had so many previous presidents who were so willing to set aside what 12 people thought was right, and what would have likely been help up by judges in different levels of appelite courts.
12.22.2004 9:20am
John Jenkins (mail):
Whom would you like the president to pardon then? It seems silly to criticize in general like this, since one could just as easily argue that prior presidents *overused* the pardon power from this same evidence. Some people who are against a powerful executive might even see this as evidence of a *positive* trend.

I'm not sure how the federal pardon power works. While the power to grant clemency is constitutionally invested in the president, I am sure he doesn't see every application. Someone in the justice department must examine the applications and then forward them to the president.

The bottom line is that unless there are deserving candidates whom one can identify, these criticisms are rather hollow. Once that happens, then it becomes a matter of explaining the story to the public. If it *is* politically untenable to use the pardon power very much right now, the way you change that is by altering the political climate. Not many people spoke about pardons during the campaign (i.e. 0 that I recall) so it's obviously not an issue right now.
12.22.2004 9:43am
Richard Heddleson (mail):
Clinton has given pardons a deservedly bad name. If the practice fell into disuse I'm not sure the republic would be the worse for it.
12.22.2004 9:54am
Kevin Lister (mail):
This might provide some context and perspective:

"Early in President Clinton’s first term there were signs that he might depart from the consistent practice of his predecessors of relying on the Attorney General’s advice in clemency matters. For example, the White House undertook to respond itself to inquiries about pardon matters, and many of its written responses included a phrase suggesting that the President considered the Justice Department only one of many potential sources of advice. Also, in contrast to past administrations, the Clinton White House did not act on clemency cases in a regular and timely fashion: no grants at all were issued in four of President Clinton’s first five years in office, and only a relative handful of pardons were granted in later years, usually at Christmas. The total number of cases decided did not keep pace with the unprecedented number of new applications each year, so that the case backlog reported by the Pardon Attorney grew steadily larger. When President Clinton departed Washington on January 20, he left behind him well over 3000 pending clemency cases, all of which are now of course the responsibility of the Bush Administration....

Several months before the end of President Clinton’s second term, reports began to circulate that there would be a large number of grants at the end of his term. This by itself would be unusual, for pardoning had in the past taken place regularly and consistently throughout the President’s term and was not reserved until its end. Even more unusual, some pardon applicants and their lawyers were reportedly given to understand, by Justice Department officials and others, that the White House might be receptive to applications filed there directly, given the short time period remaining before the end of the administration. It was said that President Clinton did not want to leave office having pardoned less generously than any President in history, and only three weeks before leaving office he himself remarked publicly on his frustration with the existing system of Justice Department review.

While one might expect some slippage in the ordinary pardon process at the end of an administration, it was clear to anyone familiar with that process that something unprecedented was about to take place."

SOURCE: Statement of Margaret Colgate Love [Pardon Attorney, 1990-97], Hearing on Presidential Pardons, Senate Judiciary Committee, February 14, 2001
12.22.2004 9:54am
noahp (mail) (www):
As one other poster said, how is the President supposed to have any special insight into the justice system? The pardon system seems to me utterly arbitrary, a vestige of the sovereign perogative of kings in the English system. It encourages politicking over the justice system, such as the frivolous attempts by California congresswoman Lynn Woolsey to get a son of one of her staffers leniency in a rape sentence. The idea that lobbying presidents over the criminal justice system should be encouraged strikes me as utterly repulsive.
12.22.2004 10:02am
Dan (mail) (www):
"One person that Bush may consider pardoning is Bobby Fischer."

After hearing of Mr. Fischer's comments immediately following 9/11, I personally wouldn't be in too much of a rush to do him any favors. Ever.
12.22.2004 10:03am
noahp (mail) (www):
As one other poster said, is the President supposed to have any special insight into the justice system? The pardon system seems to me utterly arbitrary, a vestige of the sovereign perogative of kings in the English system. It encourages politicking over the justice system, such as the frivolous attempts by California congresswoman Lynn Woolsey to get a son of one of her staffers leniency in a rape sentence. The idea that lobbying presidents over the criminal justice system should be encouraged strikes me as utterly repulsive.
12.22.2004 10:08am
Dennis Nolan (mail):
Perhaps someone more familiar with this field can tell us the types of cases for which pardons should be issued. A few easy ones come to mind --- where new evidence shows that a person was wrongly convicted; where the sentence imposed was unreasonably harsh; where a convicted person has conclusively demonstrated rehabilitation or performed some exceptionally meritorious work.

The first of these may be (as a percentage, anyway) rarer than formerly because of increased protections for those on trial, and there are already judicial ways of overturning such convictions. The second one also be rarer, due in part to sentencing guidelines. (I leave aside the question of whether mandatory drug sentences are unreasonable: they're imposed by law and a president shouldn't use the pardon power just to undo a law signed by a previous president.) I don't have any feel for the number of people in the third category who have actually sought pardons, so it's impossible to tell if Bush is too strict or others were too liberal.

It would also be interesting to know the reasons offered by former presidents for pardons. My strong hunch is that most of those pardoned have powerful and politically-connected supporters. That's likely to carry more weight than the inherent justice of the pleas. In any event, I'd be very cautious about broadly recommending more pardons, at least without a lot more information: the temptation to do so for political rather than moral reasons can be hard to resist.
12.22.2004 10:08am
David:
Frankly I think that Bill Clinton poisoned the "pardon well" as it were, Marc Rich was just the tip of the iceberg. Until this post I haven't seen anyone really campaigning for pardons, so why should the president risk MSM second guessing his choices?

By the way, for an earlier smarmy remark, a pardon is for people who ARE guilty of a crime or offense. There is a guy here in Connecticut who does not want a pardon as he maintains his innocence.

So let me turn the question around on you all, what guilty person, or fugitive likely to be found guilty in the fed system do you think is worthy of a pardon and why?
12.22.2004 10:30am
Ramrod:
Give me a break! If there so many guys out there that deserve a pardon, you would better serve justice by researching the names and posting them than by carping about it.
12.22.2004 10:51am
Kevin Lister (mail):
Something else to keep in mind is that executive pardons by the President often have purposes that go beyond simply correcting perceived injustices or rewarding those who have demonstrated their rehabilitation. Sometimes (as in Ford's pardon of Nixon, and as in many of the pardons issued after the Civil War) they can be used to help put a painful period behind us. There can also be strategic reasons that can advance the interests of the nation as a whole, particularly in the arena of international diplomacy.

Interestingly, in the eary history of presidential pardons, they were viewed legally as completely erasing both punishment and guilt, placing the pardonee in a position of complete restoration as if the infraction had never occurred. More recently, however, pardons have been viewed as merely exempting the beneficiary from punishment arising out of the matters that are the subject of the pardon.

For those of you who'd like more, take a look at http://jurist.law.pitt.edu/pardons.htm
12.22.2004 11:18am
Matthew:
OK....here's a guy that should be pardoned. About 2 years ago I was involved in a case where the feds convicted a guy of felon in posession of a handgun. The Justice Department had a big *push* for gun related convictions to show they were being tough on crime. The problem? This guy, while no saint, was carrying a weapon for personal protection because another person was trying to kill him. One of the incidents he was prosecuted for involved person X pulling up outside his house and letting off a fusilade of gunfire into the house where defendant, his wife, and kids were. Defendant returned fire with a long gun. ——Conviction. Felon in Possession. Also, Convicted for carrying a pistol on separate incident. (btw...defendant had been shot and hospitalized by person X previously.) Local law enforcement did not arrest defendant and were fully aware that person X was trying to kill him. The feds got the incident report and prosecuted. NO allegation that defendant had used or intended to use either weapon in the commission of a crime. He's doing time.

SC PD
12.22.2004 11:44am
Dick King:
Matthew, you don't give us nearly enough facts to judge whether a pardon should be issued to the felon you are championing. There is something called a Necessity Defense that can be raised. Was it raised in the case of your felon?

What was his felony conviction all about?

-dk
12.22.2004 12:38pm
Crime & Federalism (mail) (www):
Those of you critical of the presidential pardon might benefit from learning about the pardoning process. Here is a link to the United States Department of Justice, Office of the Pardon Attorney:
http://www.usdoj.gov/pardon/pardon_instructions.htm
12.22.2004 12:43pm
Sigivald (mail):
I, for one, don't see pardons as a great, er, injustice to the justice system.

Erring on the side of clemency, for a small percentage of federal convicts, after petition and review, seems at worst a trivial harm, and as others have mentioned a great possible benefit.
12.22.2004 1:12pm
Tangurena:
I predict that he will follow in his father's footsteps and become the second president to pardon someone before their conviction. I point to the pardon of Casper Weinberger for obstruction of justice in Iran/Contra being pardoned the week before the trial was to start. Look for new pardons if there are any indictments on the Plame affair.
12.22.2004 1:18pm
BobVDV (mail):
Tangurena wrote "I predict that he will follow in his father's footsteps and become the second president to pardon someone before their conviction". Remember Ford's pardon of Nixon? That would make W. the 3rd president (at least) to pardon someone before conviction.
12.22.2004 1:50pm
Publius Rex (mail) (www):
While the granting of pardons is a decent and beneficent practice, it hardly seems that it is a metric by which any President ought to be measured. Furthermore, I suspect that rather than tainting the practice Clinton defined how it will be used in the current political climate; one large group as you exit the Oval.
12.22.2004 1:50pm
Matthew:
DK

Guys a career criminal who was pretty much past it i.e. in his late 30's early 40's. Again....he didn't spend all his free time in church. The point is that the local cops who KNOW the guy don't charge him (he could have been charged under state law), and then the feds come in a year later and pop him to help their numbers. He's allready done his time for the prior stuff and it shouldn't have any bearing imho on the current charges. What's he supposed to do? Tell person X, "hey, you might as well shoot me 'cuz I sure don't want to catch a federal rap for felon in possession"? (I should point out that the incident report has the police officer confirming the self defense theory for carrying. They knew person X shot defendant before)

Necessity was either charged or requested to be charged and then denied can't remember. (The problem w/it was that it was more applicable to the drive-by than the pistol)

Hope that's a little clearer.
12.22.2004 2:18pm
R:
Are you counting the Thanksgiving turkeys?
12.22.2004 3:06pm
MikeC (mail):
Hey, there's a war on. This doesn't seem like an issue that should be on the front burner at the moment. The AP is mum on what kind of pardon review the President has the AG's office doing. Doesn't this seem like an important detail to tease out before turning the issue into a grand indictment of the administration -- as some commenters have done?
12.22.2004 4:57pm
1L (mail):
Richard Posner and Bill Landes have a paper on the economics of presidential pardons (although I can't find it on the internet anywhere) where they argue, among other things, that it makes sense to grant fewer pardons as the number of criminals goes up to reduce the number of applications per potential applicant and keep static the administrative costs of the office.

What they should do is create a clemency board to function independently from the president and therefore insulate it from political pressures. But even this might not work. The ATF used to have a program that gave people back to the right to bear arms, which is one of the few rights that a federal offender cannot get back from their state clemency office. But the Congress cut off funding to the program because too many people were getting their gun rights back and then committing crimes. It did produce an interesting Supreme Court case, US v. Bean.
12.22.2004 5:44pm
Tim Higgins (mail) (www):
Tangurena and BobVDV,

Make that #4. Clinton and Marc Rich.
12.22.2004 6:10pm
Brian S. (mail) (www):
"Do we really suppose that . . . it is ok to temporarily suspend the justice system because it isn't producing the outcome we want?"

Pardons are part of the justice system and have been for two centuries, a last chance to rectify injustice. Bush isn't interested in that however. Clinton messed things up with his misuse; Bush went on to misrule.
12.22.2004 8:36pm
Greedy Clerk (mail):
"Hey, there's a war on. This doesn't seem like an issue that should be on the front burner at the moment."

But during a time of war, we should not forget what we are fighting for. Hate to use that cliche but it's true. There is a lot of injustice in the federal criminal system, and people from all sides of the political spectrum who deal with that system on a day to day basis see that injustice. For one good example, see Judge Cassell's recent opinion on mandatory minimums. Now, you may not agree that there is a problem in President's Bush's nonuse of the pardon power, and that is fine. But it is no answer to just say, "hey we's fightin' a war, we shouldn' worry abou it. . . ."
12.22.2004 10:41pm
Fûz (mail) (www):
If GWB pardoned Bean ,
Bean
, could he get his gun rights back?
12.22.2004 10:46pm
Brian G (mail) (www):
How about naming some names? Who deserves pardons in your opinion. There is no doubt in my mind that some people indeed deserve a pardon, but I don't think Bush should be pardoning people for the sake of it. For Bush, that is a lose-lose proposition. You can damn well be sure that one (or more) of the people he pardons will be profiled in the New York Times as the worst criminal since the Son of Sam. Nothing would make the MSM happier than Bush having his own "Marc Rich."

There is a reason most pardons take place the last day of a Presidency. Besides, like someone else said, Bush has better things to do with his time.
12.22.2004 11:39pm
noahp (mail) (www):
I disagree with the poster who said that the harms resulting from the pardons process are trivial. The harms have the potential to be simply tremendous. Pardoning a dangerous criminal, of course, would have a very high chance of resulting in a harm, and the risk of pardoning such a criminal seem high when we consider that the president possesses little expertise with regard to the criminal justice system. Then there is the harm of corrupting and subverting the criminal justice system by lobbying for the release of politically powerful crooks. There is the harm to the presidency itself, in making it appear as a corrupt institution and in diverting the president from important duties to entertaining lobbyists for crooks and having to pour over the records of several convictions.
12.23.2004 8:54am
Greg TD (mail):
I'm with MikeC on this one. The President has more important things to do with his time than spend it deciding whether or not people should be pardoned.
12.27.2004 3:34pm