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December 31, 2013

"President Obama, the merciless?"

The title of this post is the headline given to this notable new CNN commentary piece authored by P.S. Ruckman Jr., who runs the always great Pardon Power blog.  Here are excerpts:

This month, one of the least merciful presidents in the history of the United States granted 13 pardons and eight commutations of sentence.  The grants moved President Barack Obama's overall mark past the administrations of John Adams (who served only one term), William H. Harrison (who died of pneumonia after serving only 30 days), James Garfield (who was fatally wounded by an assassin after serving only four months) and George Washington.

The New York Times complained that, when it came to the pardon power, there was just "no excuse" for Obama's "lack of compassion" and encouraged him to "do much more." The American Civil Liberties Union called the pardons "a step" and hoped the President would "continue to exercise his clemency powers."  Meanwhile, the Cato Institute, a libertarian think tank, lamented the "drought" of pardons in the Obama administration and called the recent grants "mingy and belated."  Conservative columnist Debra Saunders wrote that it was "about time" Obama acted, and even tossed out the possibility/hope that he might "do it again soon."...

No one is clamoring for violent criminals to be yanked out of prisons and tossed into the streets to wreak havoc on society.  No one is lusting for the considered judgment of judges and juries to be whimsically overturned by politicians leaving office and, in the process, sidestepping accountability.

But, increasingly, there is recognition that budgets are tight, and prisons are both overcrowded and expensive.  The recidivism of those who spend time in prisons and exit without anything like serious rehabilitation is also costly.  Congress' recent recognition of the failure (if not outright unjust nature) of sentencing laws appears, to many, as still yet another indicator that there is consensus regarding the status of the so-called war on drugs: It has not worked out very well....

The pardon power will always carry an inherent political "risk," because no one can perfectly predict the future behavior of recipients and everyone's judgment can be second-guessed, if not mischaracterized.  Informed persons know Mike Huckabee did not "pardon" Maurice Clemmons and Michael Dukakis did not "pardon" Willie Horton.  But, of course, executives cannot always survive political storms with the support and encouragement of informed persons.

Nonetheless, the Founding Fathers considered the pardon power an integral part of our system of separation of powers and checks and balances.  Its presence in the Constitution is premised on the notion that Congress and the Courts are not always perfect.  Anyone care to disagree? It simply follows that, if the pardon power is being neglected or abused, then government is not doing what it was meant to do.

Alexander Hamilton furthermore noted, in the Federalist Papers, that the criminal codes of nations have an almost natural tendency toward over-severity.  For that reason, he argued, there should be easy access to mercy. Yes, you read that right, "easy access," or, in other words, something very different than what is going on in the Obama administration.

The fortunate thing is, presidents and governors can very easily minimize the political "risk" of pardoning by granting pardons regularly, consistently, throughout terms, as opposed to, very questionably, at the "last minute." While Christmas pardons may make some feel warm and fuzzy, they also send a message that is more counterproductive than anything.  They seem to say mercy is an afterthought, or worse, a gift, that may or may not be deserved.

The fact of the matter is the majority of individual acts of executive clemency in our lifetime have been pardons, which simply restored the civil rights of the recipients.  No one was sprung from jail.  Violent criminals were not tossed into the streets.  Judges and juries were not overturned.  Recipients have typically committed minor offenses, many involving no incarceration whatsoever, and usually, many years if not decades before pardon.  FBI background checks documented they had integrated back into society as law-abiding productive members.  Their pardons were not "gifts" so much as they were well deserved recognition.

Have these pardons been high-wire maneuvers?  Have they required presidents to spend precious political capital?  Not at all.  Obama has granted 52 pardons to date.  There is a much better than average chance that readers cannot name a single recipient.  George W. Bush granted almost 200.

So, why can't Obama restore the civil rights of more applicants?  Why doesn't he?  There is no obvious answer to that question, save lack of care and concern.  Where is the President who said his religion teaches him the importance of redemption and second chances?  Where is the hope?

December 31, 2013 at 12:52 PM | Permalink


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President Obama supported change of sentencing laws, drug courts and other measures that are far from "merciless" and reduced the costs to many defendants of their actions to add a bit of context.

Posted by: Joe | Dec 31, 2013 12:57:06 PM

In place of the current system, the President should appoint a pardon committee of four persons to recommend pardons and commutations. This committee should have the necessary staff and access to all Department of Justice and BOP files and should be empowered to obtain evidence from any source. The committee should have absolute immunity for anything they say or do related to their job. Three of the four members must agree on any decision. The committee should be comprised of the following persons: Prof. Doug Berman, Bill Otis, Federalist, and Michael R. Levine.

Posted by: Mindy | Dec 31, 2013 3:36:36 PM

This entire issue would be rendered moot if we simply regarded civil rights as inviolate i.e. irremovable under any circumstances. This appears to be the interpretation offered by the European Court of Human Rights which regards prisoner disenfranchisement (let alone felons generally) as a violation of Protocol 1 of the Ruropean Convention of Human Rights (Hirst v United Kingdom, 2006). That of course would require us to acknowledge we have something to learn from others--not a strong American trait.
Rodney Kingsnorth
Professor of Sociology

Posted by: Rodney Kingsnorth | Dec 31, 2013 4:06:06 PM

Mindy --

I very much appreciate, but doubt I deserve, being put in a category with Doug, federalist and Michael R. Levine, three of the brightest people I have had the good fortune to run across, and who by themselves warrant daily visits to this blog.

Posted by: Bill Otis | Dec 31, 2013 5:29:05 PM

Pardon me for commenting on your conduct here Mister President but the failure to pardon has its relevant political parallels. Democrats, since Joe McCarthy, have been the targets of RepubliCon accusations of being soft on communism, soft on crime, soft on welfare cheats, soft on sexual misconduct charges. The reaction by Democrats is to carry on misguided wars as in Afghanistan, refuse to pardon anyone not named Ray, to prosecute welfare cheats, to criticize those who have soft sexual relations. A President, in his second term, who falls for this is what we call a schmuck. Do the job Obama. Come back from Hawaii and get your pile of ink pens out and pass them out to the press as you sign pardons.

Posted by: Liberty1st | Jan 1, 2014 6:51:15 AM

Seems like he prefers "f"ederalist. That's an interesting proposal. I think it is more likely a "shadow" panel.

Posted by: Joe | Jan 1, 2014 1:33:18 PM

Thanks Bill---you must be talking about another federalist---Mindy too.

Joe, I notice you've been avoiding me.

Posted by: federalist | Jan 1, 2014 10:31:52 PM

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