Bennett L. Gershman: Pardoning Criminals -- Appropriate Mercy or Perverting Justice?

Bennett L. Gershman: Pardoning Criminals -- Appropriate Mercy or Perverting Justice?

"Pontius Pilate would have been proud of Haley Barbour. Pilate, the Roman procurator over Judea at the time of Jesus, pardoned Barabbas, a murderer/insurrectionist against Pilate's own authority (as the Gospel of Mark tells us), the most famous pardon in the history of the world. Barbour, the outgoing procurator (actually, governor) of Mississippi pardoned 203 criminals, including 17 convicted murderers, one of whom shot his wife to death while she was holding her six-week old baby, and wounded her friend. Imagine: a dictator like Pilate, at festival time, using his totally arbitrary, unbridled power to free a prisoner who was actually an insurrectionist against him. Imagine Barbour pardoning a vicious and guilty murderer.

Given Barbour's somewhat bizarre record of pardons, the pardon power has become a topic of interest, although it has never been very far from inflaming public opinion and exciting controversy. President Richard Nixon pardoned teamster boss Jimmy Hoffa to gain support from his union; President Gerald Ford, ostensibly to "heal the nation's wounds," pardoned Richard Nixon before Nixon could be charged, let alone convicted of any crime; President William Clinton pardoned his brother, Roger, but his most notorious pardon was of fugitive financier Marc Rich after application from the state of Israel because of Rich's supposedly charitable endeavors; President George W. Bush gave clemency to Vice President Dick Cheney's crony "Scooter" Libby; and New York Governor George Pataki granted a full pardon to only one man, the comedian Lenny Bruce (and, indeed, posthumously).

What is this "pardon power," and why does it incite controversy? The pardon power is engraved in the U.S. Constitution ("The President shall have the Power to Grant Reprieves and Pardons") and according to the Framers, was intended to be a "benign prerogative" in the interests of "humanity and good policy." Alexander Hamilton long ago explained why the power is critical: criminal law, he said in one of the "Federalist" papers, "partakes so much of necessary severity," and that without "exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel." Chief Justice William Rehnquist called the pardon power a "fail safe" in a justice system that is fallible and convicts innocent people. But however benign and protective, the pardon power is the essence of arbitrary power - a power that can be used capriciously and without any basis to believe that the justice system has malfunctioned or that the person being given a pardon is innocent, and without any mitigating circumstances to warrant any official mercy. And there are no standards or guidelines to regulate a unilateral executive decision that is unconditional, final, and cannot be appealed.

This is not to suggest that the pardon power may not be a necessary "fail safe" for a system prone to errors, as Chief Justice Rehnquist observed. For example, Governor George Ryan of Illinois pardoned several men on Death Row who were convicted on the basis of confessions extracted through torture by the notorious Chicago homicide squad. Pardons have been given to persons serving draconian sentences for minor drug offenses. President Jimmy Carter pardoned hundreds of thousands of draft resisters after the Vietnam War. But in surveying how it is used, it is clear that the pardon power is not the corrective to injustice that the framers intended it to be. Despite mountains of evidence showing that innocent people get convicted -- often the data proves this to a certainty -- it is hard to find many cases where a person has been pardoned exclusively on the basis of innocence. Nor are there many instances where persons are pardoned who have been convicted of a crime many years ago and the government seeks to deport them."