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March 30, 2007

A call for a broader pardon perspective

Over at the National Journal, Jonathan Rauch has this strong new commentary entitled "Pardon Libby? Maybe, But Not Alone."  Here are some highlights:

Will President Bush pardon I. Lewis (Scooter) Libby? Everyone is wondering. But it is the wrong question. The right question is: Will he pardon anyone else?...

Here is a fact that historians may note with puzzlement: Bush, who is obsessively protective of unilateral executive power in every other sphere, has all but abandoned the most unequivocally unilateral power that the Constitution gives him.  Presidents can grant pardons and commutations to anyone they please, for any reason or for no reason at all.  That's because the Founders understood the excesses of bureaucratic justice. "The criminal code of every country partakes so much of necessary severity," Alexander Hamilton wrote, "that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel."

Prosecutors are paid to be relentless. Courts are bound to go by the book.  The Supreme Court cannot reach down and undo a single sentence without potentially overturning a whole branch of law.  Thus the Founders ultimately wanted justice to be acceptable and accountable not to a system but to an actual human being, a solitary conscience.  That conscience belongs, at the moment, to Bush, who doesn't seem to overtax it. 

According to Justice Department statistics, Presidents Truman through Ford granted a quarter or more of clemency petitions. The total fell to 12 percent under President Reagan, and then into the mid-single digits under Presidents George H.W. Bush and Clinton. Now, under George W. Bush, it has dropped to less than 2 percent. 

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March 30, 2007 at 05:20 PM | Permalink


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As I could not agree more with Rauch's piece, I think it is really the best bit of commentary to emerge thus far in this round of "controversial"-clemency-blah-blah.

In my mind, far too much has been made of Marc Rich scenarios, and Scooter Libby for that matter. Pardons of notorious criminals and the rich and famous are a dime a dozen. Our history is littered with such, neatly dispersed across every generation of Americans.

What is more offensive is that a president, in our system, would even think to pardon his own half brother and leave hundreds of legitimate pardon applicants in the dust. Now THAT is the stuff of controversy.

What would really be something is if Bush handed out a pile of pardons on the way out of the door (like most presidents before him) and the pile was heavy with individuals who have filed all of the proper paper work in accordance with Department of Justice "guidelines" and have waited the longest, or are over due, for some type of decision. That would be some sweet justice to behold.

Posted by: P.S. Ruckman, Jr. | Mar 31, 2007 1:54:33 AM

The above comment makes three points. Some of them can be responded to, some of them cannot. Taking them in reverse order

First, “There is no way Nichols defense should be in seven figures.” Assumes its own conclusion, so it isn’t much of a point. But, because the poster lacks the perspective of a lawyer, I maybe it is worth an attempt. “Seven figures” is not that high a number. Indeed, quite a bit of litigation costs over “one million dollars.” Sometimes the “one million” mark is reached just in discovery. Considering that attorneys routinely bill at $500 per hour, one million is reached in just 2000 hours, which is one man-year. Expert often charge even more. Add to that the cost organization and travel can make the $1,000,000 mark come faster. In fact, I am surprised that more litigation doesn’t cost this much. In the civil context, some judges seek to limit discovery by providing a discovery budget (which places limits on the costs that each side can put on each other), but these “budgets” are based on the amount of money at stake. Here, we are talking about someone’s life, which people have a difficult time quantifying. (Strangely, if we were to quantify it, perhaps we should allow him to raise money to buy his freedom.) Therefore, it seems that the statement that “there is no way…” is problematic.

If you would like to learn more about the price of attorneys fees, reading bankruptcy cases is a good place to start. See, e.g., In re Diet Drugs (Phentermine/Fenfluramine/Dexfenflurammine) Products Liability Litigation, 401 F.3d 143, 167 (3d Cir. 2005) (“The District Court described the task of allocating $160 million in counsel fees as ‘herculean’”).

The second point regarding “If there are a finite amount of resources, shouldn't guilt/innocence be far more important than death/no death?” There is some merit to this point, but in this case, the prosecutor has insisted on the death penalty, and also has indicated that any information from the “guilt phase” of the trial will be used in the “penalty” phase. Therefore, your beef is probably with the prosecutor.

“The problem, of course, is the out-of-control capital punishment law.” I don’t see it so much as a legal problem, but rather with the drive of some legislators and prosecutors to execute people. Eliminating the death penalty would eliminate many of these problems. In fact, the cost of administering most laws would go down if legislators simply eliminated the laws themselves. But, since Americans (that’s me) want people in jail, and think that the percentage of the country in jail is too low, it is going to cost us.

Professor Berman proposes an alternative route: set the amount that prosecutors can spend in advance, and meticulously track all economic benefits prosecutors get. This way, they will have to decide, in advance, what it is really worth doing.

The other suggestion made has been to require local jurisdictions to post a bond before seeking the death penalty, if a budget other than local tax money is tapped. This way, if their wishes are ever disturbed by a jury or appellate court, the innocent taxpayers outside that jurisdiction won’t be hurt by the misguided decision of the prosecutor.

Posted by: S.cotus | Mar 31, 2007 3:38:43 PM

Sorry... posted to wrong post.

Posted by: S.cotus | Mar 31, 2007 3:45:09 PM

Gov. Ehrlich of Maryland seemed to have the right approach with his use of the pardon power. A rigorous examination of each case with a desire to what justice seemed to him to require.

There is also a utilitarian argument for pardons. Prison beds are a scarce resource, and if someone has truly been rehabilitated and their crime was not too heinous and they can become productive members of society, there is a good case for release.

Posted by: federalist | Apr 1, 2007 4:03:14 PM

Strangely, putting the onus on the governor means that one person – the governor – can override the will of 1) prosecutors; 2) juries; and 3) a court system. This seems rather undemocratic.

Posted by: S.cotus | Apr 2, 2007 2:46:06 PM

Hmmmmmmm. Let's see, a decision made by someone elected by the entire electorate of a state is "undemocratic".

Posted by: federalist | Apr 2, 2007 11:43:07 PM

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