The Perils of Pardons

One the few vestiges of royal authority that modern governors and the president have available to them is the power to grant clemency.  That is, reduce the effects of or eliminate altogether a criminal conviction incurred by a particular person.  The federal grant of power is in Article 2, Section 1 of the Constitution (the president "shall have Power to grant Reprieves and Pardons for Offenses against the United States") and is unlimited.  State practice is a little more varied, with a spectrum of setups from complete executive authority to some combination of executive authority and regulatory oversight.

It's a power that is not exercised all that often.  Perhaps that's because it is so fundamentally at odds with the rest of our democratic system (it's inclusion in the new Constitution was not a given among the Founders).  In it's purest form the power to pardon is subject to no review.  No checks, no balances.  No separation of powers.  Executives can, in the sweep of a pen, undue entire classes of punishments, as Illinois governor George Ryan did in 2003 when he commuted all the sentences of those on the state's death row to life in prison.  Such authority begs the question of whether it can ever be wielded corruptly.

Of course, the real reason the pardon power isn't exercised more often is that it almost no political upside.  Sure, some folks will complain at the lack of meaningful pardons or commutations, but they rarely get voiced outside the legal field.

The downside, of course, is huge.  Remember the guy who went on a rampage in Seattle and killed four police officers?  It quickly came to light that he had been pardoned by Mike Huckabee when he was governor of Arkansas.  More recently, the governor of Massachusetts was under fire when a paroled violent offender killed a police officer the day after Christmas. 

For a politician with aims at future elections (i.e., all of them that aren't on their death beds), the cost/benefit analysis is pretty easy to do.  It doesn't matter if you made hundreds of well reasoned pardons or commutations during your term.  One mistake will hound you for the rest of your career.

Which leads to years like 2010, where those pardons that were given out were either too late to mean much to the receiver or posthumous.  Obama's few pardons for last year, for instance, were designed not to make waves:

The average time between the initial offense and the pardon was more than 28 years. Six of the nine people Obama pardoned didn't commit an offense that qualified for a prison sentence. The maximum sentence among the nine was two years. One of the nine was pardoned for defacing coins in 1964, an offense for which he was punished with probation and a $20 fine.

The only ones to tangibly benefit from Obama's 2010 pardons were the damn Thanksgiving turkeys.

In fact, the two biggest pardon stories of last year involved men who had no voice in the debate: Jim Morrison and Billy the Kid.

Morrison, you may recall, was convicted in Florida in 1969 for indecent exposure following a concert in Miami.  Depending on who you talk to, it was either a trumped up charge used as a cudgel in the culture wars or the charge was a complete fabrication.  In any case, Morrison always maintained his innocence and was appealing the verdict when he died in Paris.  In many jurisdiction, that would be enough to vaporize the conviction (as Ken Lay - if you can), but not Florida.  So outgoing Governor Charlie Christ, recently beaten in the race for one of the state's US Senate seats, granted Morrison the pardon.

The Billy the Kid situation is a little more complex.  In 1878, after many years of outlawry, Billy agreed to testify before a New Mexico grand jury in return for amnesty from the territory's governor, Lew Wallace (former Union general and future bestselling author - he wrote Ben Hur), for the murder of a county sheriff.  Brady testified, but slipped away while technically under arrest afterwards.  He was eventually captured, tried for the murder, and sentenced to die.  Another escape followed, this time leading to his death.  Outgoing New Mexico governor Bill Richardson decided not to pardon Billy, not wishing to second guess his predecessor's decision not to honor the agreement (the "escape" after Billy testified may have made killed the deal).

As a history geek, these sorts of posthumous pardon proceedings intrigue me, both because they tend to start interesting debates on the merits and sometimes actually correct a massive historical wrong. But the lawyer in me sees them as a colossal waste of time and effort (Morrison's pardon started circulating in 2007, for instance) that produce little tangible benefit.  Far better to spend that energy on those currently incarcerated, or suffering from the disadvantages of former incarceration, and do something for them. 

But there's too much risk involved to do stuff like that.  So we'll probably stick with pardoning the dead (or not).  And turkeys