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Mark Osler

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Who's to Blame for Pardon Abuse?

Posted: 03/19/2012 8:44 pm

Over the past week, two stories have dominated the news out of Mississippi. First, on Thursday, March 8, the Mississippi Supreme Court upheld former Governor Haley Barbour's controversial last-minute pardons of over 200 convicts. The second big story was the Republican primary in that state just five days later.

The sad and surprising fact about these two events is that they did not interact -- the first story did not influence the second. There was a broad and loud public outcry against Barbour's use of the pardon power, yet the important question of how a President should use the nearly identical pardon power described in the United States Constitution was not a prominent issue in the Mississippi campaign.

Clemency is nearly unique as an executive privilege -- it is a pure importation of the power of absolute monarchs into the American political system. As the Mississippi Supreme Court's decision revealed, the governor of that state is the sole arbiter of who gets clemency, and how that process works. The same is true at the federal level, where the Constitution gives the same unchecked and unfettered power to the president. Through our history, presidents have used the pardon power to free draft evaders, insurrectionists, fugitives, and even (in the case of President Truman) a man who attempted to assassinate the man who later granted clemency. Today, this power is more important than ever because it is the president, alone, who can open the prison door for many convicts in a federal system which has eliminated parole.

None of this is a secret, yet we repeatedly express surprise when this unilateral power is used and are quick to decry the lack of principle behind some uses of the pardon power. For example, when Bill Clinton gave out a spate of ill-advised and last-minute pardons which benefited people like fugitive financier Marc Rich, many people (including me) were outraged. When Haley Barbour released murderers who served him dinner in the governor's mansion, we reacted with the same revulsion. It will likely happen again. However, aren't we in part to blame for these surprises, if we never ask how a candidate would use the pardon power during the election cycle? It may well be that the candidates never articulate their views about clemency because we never really ask them to do so. The Barbour pardons should jolt us out of that complacency.

The televised debates which precede primaries and the general election are the best place to raise this issue. My plea to the moderators of those debates would be this: Once, just once, ask the candidates how they would use clemency, that great unchecked power of the executive. In the end, how a candidate would use the pardon power reveals an important aspect of character. We do not hesitate to ask someone seeking the presidency how they would use the terrible force of war; we should be just as bold when asking about the application of mercy.

 

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