BY ANDREW KALLOCH
EVERY PRESIDENTIAL TRANSITION year, Presidents issue dozens of pardons, unilaterally sparing people convicted of federal crimes by juries across the country. The pardon power, enumerated in Article II, Section 2 of the U.S. Constitution, is derived from the English Prerogative of Kings. At that time, pardons were particularly useful because the death penalty attached to many small offenses. Thus, British judges would issue rulings, but urge the Monarch to commute sentences.
In 1776, a short political pamphlet written by Thomas Paine, Common Sense, dramatically swayed public opinion in favor of a full and complete declaration of independence from British rule. One of the pillars of Paine’s argument was the importance of the rule of law. “[T]he world may know, that so far as we approve of monarchy, that in America the law is king. For as in absolute governments the King is law, so in free countries the law ought to be King; and there ought to be no other.”
Despite the fervor brought forth by Paine’s pamphlet and the successes of the Revolution, many Americans remained enamored with executive authority. Indeed, many of the delegates to the Constitutional convention of 1787, including Alexander Hamilton, believed that Britain’s system of constitutional monarchy was decidedly the best in the world. Hamilton even proposed a system in which the Executive would have life tenure. While Hamilton’s “Elective Monarch” did not triumph at Philadelphia, the Convention imbued the executive with King-like powers, including the power to pardon any and all offenses against the United States, with the exception of impeachment.
Hamilton defended this broad power in Federalist No. 74, stating, “Humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed… one man appears to be a more eligible dispenser of the mercy of the government than a body of men.” Despite Hamilton’s argument, the pardon power was heavily debated within the Convention. In fact, neither the New Jersey Plan nor the Virginia Plan included a pardon power for the chief executive.
Nevertheless, the pardon power has survived and thrived. Chief Justice William Rehnquist, writing for the Court in Herrera v. Collins 506 U.S. 390, a 1993 case which held that a claim of actual innocence based on newly discovered evidence is not ground for federal habeas relief, echoed Hamilton, stating:
“Clemency is deeply rooted in our Anglo-American tradition of law, and is the historic remedy for preventing miscarriages of justice where judicial process has been exhausted. . . . It is an unalterable fact that our judicial system, like the human beings who administer it, is fallible. But history is replete with examples of wrongfully convicted persons who have been pardoned in the wake of after-discovered evidence establishing their innocence.”
Rehnquist’s reliance on the pardon process to administer justice where the courts have “failed” is profoundly misplaced. While there is no doubt that courts make errors in the judgment of individuals, the judiciary is designed to dispense justice through deliberation, assuring both fairness to the individual and accountability on the government. If evidence comes to light after a trial that shows a significant possibility of actual innocence, we should not rely on the President to unilaterally decide whether to show mercy. Instead, the American people, acting through the legislative and judicial process, should develop rules to allow for the re-opening of cases in which the actual guilt of the defendant is brought into serious doubt.
Another widely acclaimed motive for the pardon is, in Hamilton’s words, that “a well-timed offer of pardon to…insurgents or rebels may restore the tranquility of the commonwealth.” This motive is most often cited with regard to President Gerald Ford’s unconditional pardon of President Richard Nixon. However, history is replete with other examples. In 1794, President George Washington pardoned the participants in the Whiskey Rebellion who had not already been indicted. In 1863, President Abraham Lincoln offered a pardon to any person who had supported or fought for the Confederate Army, subject only to taking an oath of allegiance. And on January 21, 1977, his second day in office, President Jimmy Carter issued a blanket pardon to “draft dodgers” of the Vietnam War, stating his intent was “to bring about an end to the divisiveness that has occurred in our country as a result of the Vietnam War.”
Justice Oliver Wendell Holmes approved of this use of the pardon power, stating, “A pardon in our days is not a private act of grace from an individual happening to possess power. It is a part of the constitutional scheme. When granted it is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed.” Biddle v. Perovich, 274 U.S. 480, 486 (1927). However, while there is little doubt that certain pardons are widely cheered in the court of public opinion, the dangers of such broad authority cannot justify its occasional beneficial consequences.
Indeed, no one alive today can continue to accept Holmes’ blissful ignorance regarding the appalling political and fraternal use of pardons. During President Clinton’s notorious string of 11th-hour pardons on his last day in office, the absolved included his brother, Roger, Carlos Vignali, the son of a leader in the Los Angeles Hispanic community who made large donations to the Democratic party, and, most notoriously, Marc Rich, a billionaire commodities trader, whose wife, Denise, gave over $1 million to the Democratic party in the 1990s and an additional $400,000 to the Clinton Presidential Library. Republicans are not immune from such questionable use of the pardon power either. President George H.W. Bush pardoned a series of officials involved in the alleged transfer of anti-tank missiles to Iran, prompting the Independent Council, Lawrence Walsh, to declare, “The Iran-Contra cover-up… has now been completed.”
In November, Representative Jerrold Nadler (D-NY) introduced a Resolution in the House demanding that President Bush “refrain from issuing pre-emptive pardons of senior officials in his Administration during the final 90 days of office.” This effort, while a noble attempt to bring into the public eye the abuses of power stemming from 11th-hour pardons, does not go far enough.
The American people cannot sit back and cross our fingers that our public officials will not abuse constitutional authority derived from the Prerogative of Kings and Queens of centuries past. The time has come to end this bizarre vestige of Monarchy. We must not allow Presidents, beholden by familial ties and the pernicious effect of campaign donations, to usurp the authority of the judicial branch and the people. Our long, national nightmare is not the abuse of power by elective officials. It is the slow, silent, but certain devolution of a government of laws into a government of men.
Andrew Kalloch is a 3L and Editor-in-Chief of the Harvard Law Record.