Two Paths to Pardon Reform

President Bush's commutation of the Scooter Libby's sentence is but the latest of a long, long line of "controversial" clemency decisions. The list clearly stretches all the way back to the administration of George Washington and very few presidents, since then, have failed to contribute to it. To be sure, there are some variables which seem to have an impact on clemency decision making on our end of history - increasing prison populations, sentencing controversies, the residue of the "law and order" campaigns of Richard Nixon, etc.

But, by far and away, the most distinctly new feature of clemency decision making is the potential that the media provide for critics to lambaste presidents for extended periods of time. Of course, complaints of abuse, disregard for "the law" and favoritism are not new. They have been the leit motif of losers in the judicial process from day one. But, today, the media provide exceptional opportunities for unexceptional complaints. And, there is no doubt that the mere transmission of such complaints by the media lends a degree of credibility (in some minds) that might not exist otherwise.

One by-product of the interaction of media activity and the variables I have mentioned above is that one can find now, more than ever, argumentation suggesting that the pardon power needs to be "restricted" or, at the very least, "reformed." And I align myself with those who contribute to this argumentation. While I see the possibility of anything like "reform" being very remote, I do constantly wonder if the wrong paths toward that goal have been pursued long enough. After all, for all of the whining and complaining about the Nixon pardon, the Steinbrenner and Hammer pardons, the Iran-Contra pardons, the Whitewater pardons, the Marc Rich pardon, Clinton's last minute pardons, etc. critics have really accomplished zero in terms of "reforming" the power. If anything, one might argue presidents are wielding the power more arbitrarily than ever. Was that the goal of the critics?

In the next few posts, I am going to describe what I see as a "Traditional Path" to pardon reform. It is the path that, in my mind, simply has not worked. What is more, given the problems that I see with it, I don't think it will ever have much of a chance of working at all. There is no future in it. If I describe this path successfully, then the alternative route will stand on its own two feet. I thought to call the second path "My Path," but I think the "Political Path" will suffice. Indeed, I think that, given the descriptions that I will provide, most people in my discipline (political science) would agree that reform is (if anywhere) at the end of the "Political Path."

Coming Next: The Traditional Path to Pardon Reform