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Mark Osler

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Ask Now About the Pardon Power

Posted: 09/21/2012 4:16 pm

The pardon power is the drunk uncle of presidential politics, awkwardly ignored until there is a disaster. It has been the source of great controversy over the past three decades, with clemency granted to Richard Nixon, Marc Rich, and Scooter Libby, but too few others. Yet, the pardon power and how it should be used rarely comes up as a subject of discussion in presidential campaigns. This fall's debate moderators should change that.

Clemency has been used in divergent and often troubling ways over the course of American history. It allowed freedom to scoundrels like Rich, but was also used by President Kennedy to lessen the effects of too-harsh marijuana sentences, by President Ford to address the over-sentencing of thousands of draft evaders, by President Truman to show remarkable mercy to a man who tried to kill him, and (in the beginning) by President Washington to spare from death some of the leaders of the Whisky Rebellion. It is a strange and difficult tool of executive power. To be used properly, it takes skill and attention, but these are both things that the Executive should have or obtain--the framers intended that it be a part of the job.

Most recently, the pardon power has fallen into sad disuse. Except for the pardon of a handful of minor offenders (including one convicted of "coin mutilation"), President Obama has simply failed to use clemency. His disinterest contrasts with the needs of the country; our prisons are over-populated according to liberals and conservatives alike. Perhaps most compellingly, thousands of Americans continue to serve long sentences in federal prison for possession or sale of crack cocaine under the now-forsaken 100-to-1 sentencing ratio between powder cocaine and crack, even after that ratio was rejected by Congress (which amended the ratio to 18-to-1 in 2010), the federal courts, and the United States Sentencing Commission.

Despite the rich history of clemency and the repeated controversies of the recent past, the pardon power somehow escapes our attention when we are interviewing the candidates for President. We never push them to articulate a principle that would inform these important decisions, and we fail to press for even a declaration of whether the pardon power should be used at all. The time to articulate a clemency policy is now, in the heat of the race, so that we can measure the candidates against one another and make an informed decision.

President Bush realized at the end of his term the true cost of this inattention. According to ProPublica journalist Dafna Linzer, "In the final hour of his presidency, Bush confided to Obama his deep frustrations with the pardon process. In the limousine ride the two men shared up Pennsylvania Avenue on Inauguration Day, Bush offered his successor this piece of advice: 'Announce a pardon policy early on and stick to it.'" Sadly, President Obama did not heed this advice, and nearly four years later no such policy has ever been articulated. In those same four years, the pardon power has gone virtually unused, save for a handful of cases largely involving long-ago and insignificant crimes such as "coin mutilation." We should not let this failure repeat itself yet again.

The televised debates between President Obama and Governor Romney will be the best place to press this important question. We should expect at least this from the moderators of those debates: Once, just once, ask the candidates how they would use this great unchecked power to shorten sentences and annul convictions. How the candidates respond will reveal something not only about policy, but about character.

In the debates, there will be no shortage of questions about the economy, health care, foreign policy, and immigration. There ought to be time for at least one question that asks about this vestigial power of kings to grant mercy, which will rest uneasily in the hands of the election's victor.

 

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