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February 12, 2012

A broader perspective on Barbour pardon spree and surrounding controversy

Professor P.S. Ruckman, who write the always effective Pardon Power blog, has this new commentary inMississippi's Clarion-Ledger running under the headline "Lessons from Barbour: When cooler heads prevail, very few changes may be made, though."  Here are a few excerpts:

[W]hen all is said and done, more will be said than done.  As these kinds of storms calm, cooler minds just about always conclude there are many more reasons to retain the pardon power as it is, than there are to abolish it, or even modify it in any significant way.  The pardon power is not an archaic residue of monarchy that accidentally crept into state and federal constitutional schemes.  It is a deliberately incorporated, necessary and appropriate check and balance in our system of separation of powers.  Can the power be abused? Yes, as can any other.  Is it anti-democratic in nature? Yes, as is the electoral college, judicial review and other features of the Constitution, which guarantees a "republic," not a "democracy" (Article IV, Section 4)....

Mississippi legislators should also take note of what Alexander Hamilton says in Federalist 74 regarding Haley Barbour-like pardoning.  Hamilton argues the executive will rightly exercise "scrupulousness and caution" in granting pardons, and do so with "circumspection" if there is "dread" of being "accused of weakness or connivance" and the executive is in "apprehension of suspicion or censure" for pardons which are considered "injudicious" or "affected."  Which is to say, the best check against the abuse of the pardon power is, and always will be, public scrutiny.

Mr. Barbour clearly did not experience anything at all like dread, apprehension or circumspection.  Yet, Hamilton's analysis all but screams the solution: Mississippi gubernatorial candidates need to be asked about their view of pardons.  Do they intend to grant them?  If so, how often?  Or, how little?  And why?  They also need to be questioned about last-minute pardons and what factors they would consider in granting pardons. Candidates should explain their view of the state Parole Board, how important they consider its work and whether they will generally follow its recommendations?...

In sum, Mississippi can address pardon fiascos without overhauling its Constitution or rejecting what the Founding Fathers considered an important feature of our system of checks and balances and separation of powers.  Mr. Barbour well deserves his share of the blame.  But dread and circumspection can (and should) be created by a well-represented public that cares, a process that is transparent and an attentive press.

I highlight these excerpts from Ruckman's commentary because I think the media and the public ought also be asking these kinds of questions of US Presidential candidates.  The federal clemency power has been more often wickedly abused than wisely used over the last two decades, and in public debates and other political discourse, there ought to be questions raised about candidates' views of the federal clemency power and process.

February 12, 2012 at 12:10 PM | Permalink

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"The federal clemency power has been more often wickedly abused than wisely used over the last two decades, and in public debates and other political discourse, there ought to be questions raised about candidates' views of the federal clemency power and process."

yes, and one of the people who facilitated it is now US Attorney General.

Posted by: federalist | Feb 12, 2012 1:29:43 PM

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