On the presidential pardon power

Sandy Levinson

I have a letter in today's NYTimes that is part of their "invitation to a dialogue" series.  I will reply in the Sunday Times to letter received today and tomorrow.  Understandably, the Times shortened my original submission, so it is perhaps worth pondering the following paragraph that did not make the final version:

Sins of omission, by failing to exercise mercy when it is called for, are just as serious as what might be thought to be President Clinton’s sin of commission in pardoning Marc Rich (or Ford’s pardon of Nixon).  The difference, of course, is that the latter was greeted by widespread public criticism and hostile editorials, as was the case when former Mississippi Governor Haley Barbour pardoned 215 convicted felons, including several murderers, as he left the governorship.  “Christianity teaches us forgiveness and second chances.” Barbour explained.  One doesn’t have to be Christian to see merit in Barbour’s argument.  

No doubt President Obama is far more likely to pardon the Thanksgiving turkey than to take seriously his constitutional right/duty to monitor the basic fairness of the federal criminal justice system.  One of the things that is noteworthy is that a number of conservative federal judges have been as vociferous in their dismay over the mindless mandatory minimums imposed by a fearful and callous Congress as have more liberal judges.  This is no longer, assuming it ever was, a partisan political issue.  (One of the most objectionable aspects of Mitt Romney, incidentally, is that he took pride that he had never exercised his gubernatorial power to pardon while governor of Massachusetts.  This is, I think, a dispositive argument about his genuine character.)

One other point:  I am uncertain whether Ford's pardoning of Nixon is really condemnable.  It may well have served the interests of the country.

UPDATE:  Tomorrow is slated to be the day on which President Obama will "pardon" at least one Thanksgiving turkey.  In the best of times, presidents should stop engaging in such a stupid rite.  But Obama himself should be absolutely ashamed--indeed, mortified--at participating in this ritual given his remarkable degree of heartlessness toward thousands of people serving unjustifiably long terms in federal prisons.  A fine piece in this afternoon's Washington Post includes facts and figures demonstrating how Obama has used his pardon power less than any other president in recent American history.  Many people are in prison serving excessive mandatory minimum sentences under a statute declared unconstitutional by the Supreme Court but, in its infinite wisdom, made non-retroactive.  They are truly victims of being in the wrong place at the wrong time.

I think it is interesting that no one who wrote into the Times as art of the "invitation to a dialogue"--the letters and my response will be in the forthcoming Sunday Times--took genuine issue with me.  Nor, for that matter, has anyone in the "comments" below, which have morphed into a discussion of the Nixon pardon.  Whatever may be said about that pardon--or Marc Rich's or Scooter Libbey's commutation--is really quite irrelevant with regard to the less famous and well-connected wretches languishing in federal prison.  (Obviously, there are even more in state prisons, but Obama can do nothing for them, unlike federal prisoners.)  Wouldn't it be wonderful if 100,000 Americans--the new minimum, I think, under the White House policy of accepting petitions from the general public--sent in a petition demanding that he exercise his constitutional prerogative--indeed, duty--to temper legalistic justice with mercy? 

FURTHER UPDATE:  Alas, Obama did indeed participate in the idiotic ritual.  It will be interesting to see if he displays any genuine mercy as we move toward what had been the traditional "pardoning season."




 



Posted 6:28 PM by Sandy Levinson [link]