View of posthumous pardon issued by Gerald Ford to Robert E. Lee

This week the American Constitution Society released an “issue brief” by former United States Pardon Attorney Margaret Colgate Love.

In it she details the history of presidential pardons from the Founding Fathers down to the infamous abuse of the Pardon Power in the case of I. Lewis Libby. Although clearly written for lawyers, it is very accessible to lay people and at only 19 pages, an easy read.  (PDF warning for those of you with dial up.)

Right off the bat, she addresses the gut check the American people have with this abuse of the pardon power:

How is it tolerable, in a democracy, for the president to be able to reach into the machinery of criminal justice to pluck out one of his close associates, particularly if ordinary people have no hope of similar favor? The answer is, it isn’t. The president’s constitutional pardon power was never supposed to be used the way it was in the Libby case, and in our country’s history it rarely has been.

[emphasis mine]

Now, in the interests of full disclosure, I must tell you that I am a card carrying member of the ACS, though I do not know Ms. Love. The ACS is a non partisan 501(c)(3) non profit educational organization promoting the rule of law. It’s hardly surprising that you would find someone like me — who regularly pounds my shoe on the table demanding “rule of law” “rule of law” — would be among its members.

Some of the best nuggets in this brief are to be found in the footnotes, one of my favorites being footnote #3 wherein Ms. Love draws this completely accurate analogy:

The closest parallel to the Libby grant in recent history is President George H. W. Bush’s pardon of six government officials prosecuted in connection with the Iran-Contra investigation. There, the President was straightforward about his reasons for extending clemency, stating that all six were “patriots” with a “long and distinguished record of service to the country” who had been caught up in the criminalization of policy differences.” See: Proclamation 6518 (Dec. 24, 1991), available at jurist.law.pitt.edu/pardonsex5.htm President Reagan’s pardon of two FBI officials convicted of authorizing illegal “black bag jobs,” whose cases were still on appeal. President Reagan’s pardon for Mark W. Felt & Edward S. Miller (Apr. 15, 1981), reprinted in 17 Weekly Comp. Pres. Doc. 437 (generosity due “two men who acted on high principle to bring an end to terrorism that was threatening our nation”). [LHP notes--this excuse hails back to 1981!] This same sentiment appears to have been behind the Libby grant, as evidenced by the complete remission of Libby’s “excessive” prison sentence, rather than the more usual reduction of sentence accomplished by “commutation.” If Libby is given a full pardon at the conclusion of President Bush’s term as some predict, the remission of his prison sentence will likely be seen in retrospect as a temporary expedient to retain Libby’s Fifth Amendment protection against testifying about the circumstances of his offense.

Like we at the Lake didn’t know that already!

In 1898, President McKinley signed the first federal clemency rules directing that all applications for pardon or sentence commutation should be submitted to the Justice Department’s pardon attorney for review. Ms. Love also points out that it is only the really fishy, stinky, corrupt uses of the pardon power (including those at the very tail end of the Clinton Administration), like the Libby and Iran Contra pardons that bypassed the normal legal review process.

Between 1953 and 1999 , there were only three occasions on which the president did not follow the established Justice Department procedure for handling pardons, and all three were controversial: President Ford’s 1975 pardon of Richard Nixon, President Reagan’s pardon of two FBI agents who had authorized illegal surveillance of radicals, and President Bush’s 1992 pardon of six Iran-Contra defendants.

It’s pretty obvious why that is so. The abuses of the pardon power as described above have cost the Office of the President the confidence of the American people with respect to this sacred trust and “confirm[ed] the popular view of pardon as a personal prerogative of the president, a remnant of tribal kingship generally reserved for the well-heeled or the well connected.”

Using her historical approach, Ms. Love taught me a few things I did not know about criminal procedure law and the pardon power in past centuries. For example, prior to 1907 there was no right to appeal from a criminal conviction. And there was no federal parole review system until 1910. Consequently, the pardon power (which includes all the other forms of clemency such as sentence reduction and restoration of civil rights, like voting) once served as the ONLY means of individualizing sentences or altering sentencing to take into account changed circumstances, such as the prisoner’s age, health or changed family circumstances.

Further, in the “good old days” clemency was the only way to take into account defenses then not known in law, such as duress, incapacity and self defense. It was regularly used to help defuse and put down insurrections. For example, after the Civil War, how do you think all those Confederate soldiers were restored to their civil rights and once again allowed to vote? A recent example of this intended use of clemency were amnesties issued by Presidents Ford and Carter to draft dodgers and deserters from the Viet Nam war.

This is wonderfully informative piece, however I disagree with Ms. Love’s central argument. She argues for a return to the robust use of clemency with clearly articulated standards for its employment. I believe its use has been too discredited and its propensity for abuse too well proven. Its main rationales have been obviated by the development of a full appeals process and a federal parole system. For mass amnesties, there is always special legislation.