by Barry Edelson


Begging the King's Pardon


"The President … shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment."
U.S. Constitution, Article II, Section 2


The founding fathers, in the perfect wisdom with which they have been posthumously endowed, were so enamored of liberty and contemptuous of tyranny that they stripped the powers of the elected few to the barest necessities of managing the affairs of state. No longer would the people be subject to the whims of those individuals who by virtue of fortune or happenstance found themselves at the head of the government. No more would the princely edict hold sway over the lives of men; no more would the judgment of corruptible humans carry consequences of life and death for those without influence.

Well, in theory, anyway. For all of the noble sentiments expressed in the ferment of revolution, and for all of the disdain with which royalty was allegedly held, the American upstarts could not conceive of a national order that did not include a single (male) person sitting atop the pyramid of power and exercising executive control over the fractious and unwieldy body politic. Granted, the prerogatives of the American president are not absolute (at least on paper). He cannot, for example, rule by decree (not entirely, anyway), nor reasonably expect his actions to go unexamined or unchallenged. Nonetheless, the office does have at its disposal any number of authorities that bear a remarkable resemblance to those of the crown that the fledgling nation purportedly eschewed.

Perhaps the most undemocratic and archaic of these is the power of the pardon. In the last few weeks we have been treated to yet another example of an executive taking the occasion of his departure from office to hand down an abundance of pardons to convicted felons. In this case, the offender is Haley Barbour, the now ex-Governor of Mississippi, who deviated little from the time-honored tradition of governors and presidents when he bestowed his mercy upon more than 200 people as the door to the governor's office closed behind him. [As the Constitution was largely modeled and predicated upon the practices of the states, it is no accident that this power rests to varying degrees in the hands of all 50 state governors.] More than two dozen of those pardoned had been convicted of murder or manslaughter, including eight who happened to have worked in the Governor's mansion while serving their sentences. They can now legally buy guns, which has angered a lot of people even in deep-red Mississippi. But not only doesn't that bother Barbour, he actually used it as a rationale for the pardons: full clemency enables them to go hunting now, which is apparently in the state's interest. He also claimed it was the "Christian" thing to do, which begs the question why it wasn't the Christian thing to do in the eight years prior to cleaning out his desk.

Of course, given at almost any other time during his term of office — say, just before he ran for re-election — these pardons would have been an act of political suicide. No great insight into human nature is required to see why so many with the power of the pardon hold it in abeyance until they can no longer be held accountable. Even a citizen of surpassing innocence can see the hypocrisy of these departing gestures. What would the voting public think of a law-and-order politician granting clemency to the very murderers, rapists, embezzlers and tax cheats that he condemned on the campaign trail? What are we to make of the fact that a significant number of those pardoned had advocates who were close to the seat of power, or who were even personally acquainted with Barbour, who, prior to being governor, was at one time chairman of the Republican National Committee?

A case can be made that the pardon is in fact a guarantor of liberty, insofar as it is exercised as a check against the power of the judicial branch. The Federalist Papers in fact argue in favor of it, though they seem more concerned with the benefits of having this power vested in one person than with the justification for granting such power in the first place. Hamilton writes:

"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. On the other hand, as men generally derive confidence from their numbers, they might often encourage each other in an act of obduracy, and might be less sensible to the apprehension of suspicion or censure for an injudicious or affected clemency. On these accounts, one man appears to be a more eligible dispenser of the mercy of government, than a body of men." [For the full text: Federalist Paper No. 74]

The author goes to some length to circumnavigate the baser elements of human nature, and in so doing dispenses with the wide-eyed realism that we normally associate with the framers of the Constitution. It makes no sense to say in one breath that justice is "too sanguinary and cruel", as if it were meted out by machinery instead of flesh and blood people, and in the next insist that "the fate of a fellow creature…would naturally inspire scrupulousness and caution". Why would scrupulousness and caution accompany the considerations of an executive in chief but not a judge in robes? Are they not equally subject to ignorance and depravity, qualities which were only too well known to the men who stood against George III at the risk of their own necks? This argument lacks the foresight and cunning we expect of Hamilton and Madison. "The dread of being accused of weakness or connivance" does not beget circumspection, but merely delay. For what possible reason could Gov. Barbour have pardoned 20 times as many people on his last day in office as he did during the length of his two terms, if not to avoid the appearance of weakness or connivance when it still mattered to his political career? What level of circumspection does this demonstrate? Since the earliest days of the Republic, holders of high office have regularly tarnished their legacies for the sake of pardoning a select few, who would otherwise have had to endure the full punishments that their actions were deemed to merit by a jury of peers in a court of law.

The imperfection of human judgment compelled the founders to assemble an array of institutions that would prevent individuals from dispensing either violence or largesse against the population. And yet, while we put our faith in bodies of men to enact the law, we assign to an individual the sole discretion to intercede against the enforcement of that law. The pardon is a vestige of a lost era, when the emperor's word was sufficient to declare a man innocent or guilty, as the fancy took him. We have largely removed from presidents the power to condemn (the indefinite incarceration of "enemy combatants" notwithstanding) but see nothing amiss in leaving them with the power to pardon. If one were a convicted felon who had exhausted all avenues of appeal, the prospect of a gubernatorial or presidential pardon would no doubt be a precious hope. However, this presupposes that an equitable system of justice cannot be built without the intercession of executive force. Perhaps it cannot. Perhaps our forefathers knew just what they were doing in leaving this particular prerogative in the hands of one person. But let us be under no illusions that the grave responsibilities of office render our leaders less venal or corruptible than the tyrants who preceded them, or that the authoritarian past has been put behind us in every possible respect.

February 4, 2012


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