Prof. Berman and ... the Pardon Power?
I have noted elsewhere (here and here) that the recent congressional hearings on President Bush's use of the pardon power are quite notable for the complete absence of scholars with expertise in the pardon power. The committees which investigated President Clinton's last-minute pardons were much more impressive on this count. One witness that appeared before the House Committee on the Judiciary, on July 11, was Prof. Douglas Berman of the Ohio State University who manages a great blog on sentencing law and policy. Prof. Berman's written statement can be found, in its entirety here.
Prof. Berman actually had experience with President Bush and the pardon power previous to the Libby commutation. Bush failed to commute the death sentence of one of Berman's clients, Terry Washington, a former convict who had committed murder. More specifically, Washington waited until Beatrice Huling, a 29-year old mother of two and fellow employee, was alone. He then tied her up, tortured her and stabbed her over 80 times. Witnesses testified that Washington bragged about the murder afterward and a parole officer noted that Washington had actually predicted that, if he were imprisoned again, it would be for murder. Prof. Berman's written statement describes Washington as a "poor, African-American man who suffered from mental retardation." Berman has since criticized President Bush for "having pardoned more Thanksgiving turkeys than he has commuted federal sentences."
Prof. Berman did not present himself before the Committee as the shrill, overtly partisan, disconcerted type. Indeed, I admired his expertise, demeanor and articulation. But his written statement leaves a lot to be desired in the way of objective scholarly analysis. It says President Bush's commutation of Libby's sentence "undermines the rule of law," has "troublesome consequences," is "peculiar and suspect," is "hard to justify or understand," "troubling," "undermines principles of modern federal sentencing reform," is likely to "weaken the rule of law" and "decrease public faith in the government," and will "complicate" the work of federal prosecutors and judges. I guess, if there is any glimpse of hope among the rubble of our obliterated system of justice, it is more than blighted by this horrifying prospect, "law professors will have to try and explain this to students."
If Prof. Berman had 1) provided more detail on how an individual act of clemency can "undermine" and "weaken" the rule of law and disrupt the day-to-day workings of the entire judicial system 2) provided maybe even one historical example of such a situation or 3) put more effort into identifying the empirical referents of such effects generally, then I could respect all of the alarm more easily. Or, perhaps Prof. Berman thinks this is the very first use of the pardon power with these important consequences. Short of a more full explanation, skepticism seems appropriate.
But the heart of Prof. Berman's written statement focuses on guidelines and decision making in the sentencing process - which makes perfect sense, given his area of expertise. Berman finds the President's commutation peculiar, puzzling, hard to understand and justify in light of the Justice Department's "stated" sentencing policies, modern sentencing reforms and federal guidelines created by the U.S. Sentencing Commission. Why, if he had wanted, he could have added that the President's commutation is hard to understand and justify in light of the Justice Department's "stated" guidelines on applications for pardons and commutations of sentence! Libby admitted no guilt, made no application for clemency and completed no "waiting period." But the very clear major premise of Prof. Berman's concerns, as expressed, is that the policies, reforms and guidelines he referenced admit of no exception and/or should somehow constitute limiting conditions on the president's use of the pardon power. This line of thinking is perhaps consistent with Berman's view that Bush's commutation "was fundamentally a sentencing decision," but I would respectfully disagree.
1. Sentencing decisions are founded in the decision making of legislators and the discretion and decision making of judges and prosecutors. The pardon power is grounded in the actual text of the Constitution.
2. Sentencing decisions are (or can be) formally guided by policies, which may extend across several administrations. The pardon power is vested in the individual serving as the Executive and one Executive's decision making is in no way binding, limiting or even relevant to another's, and cannot be made so.
3. Sentencing decisions can be shifted, in aggregate, in a more lenient or severe direction, by the decision making of the legislature or the judiciary. The pardon power cannot be restricted, in any way, by either the legislative or judicial branch.
4. Sentencing decisions are (or should be) guided with consideration for equal justice of the law in light of the particular circumstances of each case (Note Berman's emphasis on the fact that Libby's prosecutor and judge are "most familiar with the details" of the case). Unless the pardon power takes the form of a general amnesty, its purpose and impact are entirely limited to the individual recipient.
5. The legitimacy of sentencing decisions is based in notions of reason and fairness. This is evident in the fact that sentencing policies are debated in advance and sentencing decisions are "guided," argued before judges, justified in memorandum, explained in judicial decisions and subject to review. While reason and fairness might be laudable properties of a clemency decision, the very construction of the power recognizes that, when applied to the topic of individual mercy, notions of reason and fairness are focus of endless speculation, debate and acrimony. Thus, no president is required to provide any explanation whatsoever for a pardon decision. And the vast majority of the time, most have not.
6. If a sentencing decision were explicitly based on the fact that an applicant was female, or was witty or had a pleasant disposition, it would be bad PR for the judicial system, constitutionally questionable and, again, subject to judicial review. Pardons, on the other hand, can be granted for any reason and history shows that president have hardly been more impressive than the Kings of England (who granted pardons to populate the colonies, celebrate birthdays, replenish the treasury, reward mistresses, etc.)
The last point leads me to the most notable (albeit understandable) misstep in Prof. Berman's written statement. Having asserted that Bush's commutation has infected the judicial process, Berman expresses his hope that the Committee will consider ways to "improve the process of, and public respect for" executive clemency decision making and raises the spectre of the clemency power's "rich and distinguished history." Camelot is not mentioned by name, but one can see the bloodied, white horses shamefully limping away, into the sunset.
The good old days of non-political, non-corrupt, non-biased pardons have simply never existed, not in this country. Gerald Ford's pardon of Richard Nixon was not the "beginning" of anything and Scooter Libby's commutation isn't "extraordinary," not from the perspective of the history Prof. Berman references. Every generation of Americans has had its "controversial" pardons that have "undermined" the law. It has been done many, many times before. This is only the latest complete collapse of all that is meaningful to us. Rest assured, the next utter annihilation of justice is just around the corner. Funerals for the justice system are a great American tradition.
To read Prof. Berman's response, click HERE
Prof. Berman actually had experience with President Bush and the pardon power previous to the Libby commutation. Bush failed to commute the death sentence of one of Berman's clients, Terry Washington, a former convict who had committed murder. More specifically, Washington waited until Beatrice Huling, a 29-year old mother of two and fellow employee, was alone. He then tied her up, tortured her and stabbed her over 80 times. Witnesses testified that Washington bragged about the murder afterward and a parole officer noted that Washington had actually predicted that, if he were imprisoned again, it would be for murder. Prof. Berman's written statement describes Washington as a "poor, African-American man who suffered from mental retardation." Berman has since criticized President Bush for "having pardoned more Thanksgiving turkeys than he has commuted federal sentences."
Prof. Berman did not present himself before the Committee as the shrill, overtly partisan, disconcerted type. Indeed, I admired his expertise, demeanor and articulation. But his written statement leaves a lot to be desired in the way of objective scholarly analysis. It says President Bush's commutation of Libby's sentence "undermines the rule of law," has "troublesome consequences," is "peculiar and suspect," is "hard to justify or understand," "troubling," "undermines principles of modern federal sentencing reform," is likely to "weaken the rule of law" and "decrease public faith in the government," and will "complicate" the work of federal prosecutors and judges. I guess, if there is any glimpse of hope among the rubble of our obliterated system of justice, it is more than blighted by this horrifying prospect, "law professors will have to try and explain this to students."
If Prof. Berman had 1) provided more detail on how an individual act of clemency can "undermine" and "weaken" the rule of law and disrupt the day-to-day workings of the entire judicial system 2) provided maybe even one historical example of such a situation or 3) put more effort into identifying the empirical referents of such effects generally, then I could respect all of the alarm more easily. Or, perhaps Prof. Berman thinks this is the very first use of the pardon power with these important consequences. Short of a more full explanation, skepticism seems appropriate.
But the heart of Prof. Berman's written statement focuses on guidelines and decision making in the sentencing process - which makes perfect sense, given his area of expertise. Berman finds the President's commutation peculiar, puzzling, hard to understand and justify in light of the Justice Department's "stated" sentencing policies, modern sentencing reforms and federal guidelines created by the U.S. Sentencing Commission. Why, if he had wanted, he could have added that the President's commutation is hard to understand and justify in light of the Justice Department's "stated" guidelines on applications for pardons and commutations of sentence! Libby admitted no guilt, made no application for clemency and completed no "waiting period." But the very clear major premise of Prof. Berman's concerns, as expressed, is that the policies, reforms and guidelines he referenced admit of no exception and/or should somehow constitute limiting conditions on the president's use of the pardon power. This line of thinking is perhaps consistent with Berman's view that Bush's commutation "was fundamentally a sentencing decision," but I would respectfully disagree.
1. Sentencing decisions are founded in the decision making of legislators and the discretion and decision making of judges and prosecutors. The pardon power is grounded in the actual text of the Constitution.
2. Sentencing decisions are (or can be) formally guided by policies, which may extend across several administrations. The pardon power is vested in the individual serving as the Executive and one Executive's decision making is in no way binding, limiting or even relevant to another's, and cannot be made so.
3. Sentencing decisions can be shifted, in aggregate, in a more lenient or severe direction, by the decision making of the legislature or the judiciary. The pardon power cannot be restricted, in any way, by either the legislative or judicial branch.
4. Sentencing decisions are (or should be) guided with consideration for equal justice of the law in light of the particular circumstances of each case (Note Berman's emphasis on the fact that Libby's prosecutor and judge are "most familiar with the details" of the case). Unless the pardon power takes the form of a general amnesty, its purpose and impact are entirely limited to the individual recipient.
5. The legitimacy of sentencing decisions is based in notions of reason and fairness. This is evident in the fact that sentencing policies are debated in advance and sentencing decisions are "guided," argued before judges, justified in memorandum, explained in judicial decisions and subject to review. While reason and fairness might be laudable properties of a clemency decision, the very construction of the power recognizes that, when applied to the topic of individual mercy, notions of reason and fairness are focus of endless speculation, debate and acrimony. Thus, no president is required to provide any explanation whatsoever for a pardon decision. And the vast majority of the time, most have not.
6. If a sentencing decision were explicitly based on the fact that an applicant was female, or was witty or had a pleasant disposition, it would be bad PR for the judicial system, constitutionally questionable and, again, subject to judicial review. Pardons, on the other hand, can be granted for any reason and history shows that president have hardly been more impressive than the Kings of England (who granted pardons to populate the colonies, celebrate birthdays, replenish the treasury, reward mistresses, etc.)
The last point leads me to the most notable (albeit understandable) misstep in Prof. Berman's written statement. Having asserted that Bush's commutation has infected the judicial process, Berman expresses his hope that the Committee will consider ways to "improve the process of, and public respect for" executive clemency decision making and raises the spectre of the clemency power's "rich and distinguished history." Camelot is not mentioned by name, but one can see the bloodied, white horses shamefully limping away, into the sunset.
The good old days of non-political, non-corrupt, non-biased pardons have simply never existed, not in this country. Gerald Ford's pardon of Richard Nixon was not the "beginning" of anything and Scooter Libby's commutation isn't "extraordinary," not from the perspective of the history Prof. Berman references. Every generation of Americans has had its "controversial" pardons that have "undermined" the law. It has been done many, many times before. This is only the latest complete collapse of all that is meaningful to us. Rest assured, the next utter annihilation of justice is just around the corner. Funerals for the justice system are a great American tradition.
To read Prof. Berman's response, click HERE
posted by P.S. Ruckman, Jr. | 10:40 AM
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