The "Traditional" Path to Pardon "Reform"
In a previous post (here) I noted that I would discuss what I see as two distinct paths to pardon "reform." I intend to explain this path here. In another post, I will then contrast it with that I call the "political" path to pardon reform.
My discussion is based on the premise that, while the pardon power has frequently intersected with election politics, it hardly the stuff to mobilize voters (Barack Obama's constant references to Paris Hilton notwithstanding). The persons who are primarily concerned about the pardon power are convicted felons (in and out of prison), lawyers who represent convicted felons and Justice Department officials who are connected to the pardon process in a variety of ways. That is, of course, a pretty small group of individuals in the big scheme of things. But they make up the pool of those who maintain a steady interest in the exercise of the power.
When presidents grant "controversial" pardons, or the political climate is right to paint any exercise of presdential discretion (including pardons) as "controversial," two additional groups of individuals appear on the scene: critics of the president and the media. The critics generally ring the bells of "favoritism: and "injustice" and the media bend over backward to find something, anything, that can be labeled "unprecedented" or, if necessary, "unprecedented in recent memory."
When critics and the media begin to focus on what only a small group of others have been focusing on up to that point, the chat often turns to "reform." Some suggest the need for a constitutional amendment. Some suggest Justice Department "guidelines" should be followed more rigorously and perhaps take on something like restrictive parameters on presidential decision making. The Scooter Libby commutation even featured sentencing experts arguing that the public explanations for individual acts of clemency were the equivalent of sweeping, formal sentencing policy.
As heated as discussions may get, as "controversial" as presidential decisions may become, it seems to me that the calls for reform along this path generally carry the seeds of their own destruction. Critics of the president are, of course, usually partisan and/or ideological opponents. Their criticisms and thus be easily brushed aside by the administration as "sour grapes." Usually, it is easy enough to find some equally "controversial" pardon, from a president on their side of the fence, that they said nothing about (at the time) or they are quite anxious to forget. When you hear critics say things like, "Oh, you think the president can do it because every other president has done it," you can be sure they are operating on the basis of politics not principle and the intent of their rhetoric is to selectively sweep dirt under the rug. This is, of course, any one's right. But disingenuous argument is a bad start for any serious effort to reform pardon law.
The arguments of convicted felons and the lawyers representing them can also be easily shoved aside, regardless of how legitimate they may be. The argument that "A" deserves a pardon because "B" got one just doesn't sail very far in the court of public opinion. And I am not even sure it sails far among those in the legal profession given the dominance of plea bargaining in the criminal process and the institutionalization of "individualized" justice. Prosecutors and defense attorneys routinely defend plea bargaining because it allows the punishment to better fit the crime, in full consideration of the nuances of circumstance - the assumption being that every case is, ultimately, different and every defendant is different. Now, work with that premise every day and then go try to convince everyone in the Justice Department that there are 100s of Scooter Libbys out there who now deserve to have their sentences commuted!
Another theme that comes from Justice Department officials, especially those who are intimately tied to the pardon process, is that the typical pardon is not "controversial." I have never been entirely certain as to why there is a need to point this out as I have never once heard anyone say (or suggest) that the situation were otherwise. Whatever the intent of the observation, I think the net effect is this: "No need for alarm. This is just a little bump in a much bigger road." And, again, it is coming from people who are intimately connected with the workings of the pardon process. Their word carries a great deal of weight when the focus is on "reform" gets more serious. However true the observation may be, it does nothing for the momentum for "reform."
This is what I see as the "traditional" path to pardon reform. It has been tried many times before. To date, so far as I can tell, it has accomplished nothing, except generate lots of media attention. I think the more productive path to reform is the "political" path. I will discuss it next.
My discussion is based on the premise that, while the pardon power has frequently intersected with election politics, it hardly the stuff to mobilize voters (Barack Obama's constant references to Paris Hilton notwithstanding). The persons who are primarily concerned about the pardon power are convicted felons (in and out of prison), lawyers who represent convicted felons and Justice Department officials who are connected to the pardon process in a variety of ways. That is, of course, a pretty small group of individuals in the big scheme of things. But they make up the pool of those who maintain a steady interest in the exercise of the power.
When presidents grant "controversial" pardons, or the political climate is right to paint any exercise of presdential discretion (including pardons) as "controversial," two additional groups of individuals appear on the scene: critics of the president and the media. The critics generally ring the bells of "favoritism: and "injustice" and the media bend over backward to find something, anything, that can be labeled "unprecedented" or, if necessary, "unprecedented in recent memory."
When critics and the media begin to focus on what only a small group of others have been focusing on up to that point, the chat often turns to "reform." Some suggest the need for a constitutional amendment. Some suggest Justice Department "guidelines" should be followed more rigorously and perhaps take on something like restrictive parameters on presidential decision making. The Scooter Libby commutation even featured sentencing experts arguing that the public explanations for individual acts of clemency were the equivalent of sweeping, formal sentencing policy.
As heated as discussions may get, as "controversial" as presidential decisions may become, it seems to me that the calls for reform along this path generally carry the seeds of their own destruction. Critics of the president are, of course, usually partisan and/or ideological opponents. Their criticisms and thus be easily brushed aside by the administration as "sour grapes." Usually, it is easy enough to find some equally "controversial" pardon, from a president on their side of the fence, that they said nothing about (at the time) or they are quite anxious to forget. When you hear critics say things like, "Oh, you think the president can do it because every other president has done it," you can be sure they are operating on the basis of politics not principle and the intent of their rhetoric is to selectively sweep dirt under the rug. This is, of course, any one's right. But disingenuous argument is a bad start for any serious effort to reform pardon law.
The arguments of convicted felons and the lawyers representing them can also be easily shoved aside, regardless of how legitimate they may be. The argument that "A" deserves a pardon because "B" got one just doesn't sail very far in the court of public opinion. And I am not even sure it sails far among those in the legal profession given the dominance of plea bargaining in the criminal process and the institutionalization of "individualized" justice. Prosecutors and defense attorneys routinely defend plea bargaining because it allows the punishment to better fit the crime, in full consideration of the nuances of circumstance - the assumption being that every case is, ultimately, different and every defendant is different. Now, work with that premise every day and then go try to convince everyone in the Justice Department that there are 100s of Scooter Libbys out there who now deserve to have their sentences commuted!
Another theme that comes from Justice Department officials, especially those who are intimately tied to the pardon process, is that the typical pardon is not "controversial." I have never been entirely certain as to why there is a need to point this out as I have never once heard anyone say (or suggest) that the situation were otherwise. Whatever the intent of the observation, I think the net effect is this: "No need for alarm. This is just a little bump in a much bigger road." And, again, it is coming from people who are intimately connected with the workings of the pardon process. Their word carries a great deal of weight when the focus is on "reform" gets more serious. However true the observation may be, it does nothing for the momentum for "reform."
This is what I see as the "traditional" path to pardon reform. It has been tried many times before. To date, so far as I can tell, it has accomplished nothing, except generate lots of media attention. I think the more productive path to reform is the "political" path. I will discuss it next.
posted by P.S. Ruckman, Jr. | 5:39 PM
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