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January 12, 2009

The power of the Pardon - the last vestige of Kingly power

Jo Ann Bowman's post over at Blue Oregon asking Will Gov. Kulongoski Pardon David Black? got me to thinking about this whole business of pardons. More specifically, how pardons are the closest that our representative democracy form of government gets to allowing the kind of kingly whims that we rebelled against in the first place. Although it does merit mentioning that the English Sovereign had long since been very nearly neutured by the time our forefathers and foremothers chose to rebel. Nevertheless, the very notion of a presidential/gubernatorial pardon runs counter to every other principle of justice enshrined in federal and state constitutions.

What is a pardon? It is a formal power granted to Presidents and Governors, by their respective constitutions, to vacate or modify a criminal sentence.

What is the criteria? Whatever the President or Governor decide. The federal constitution lists only one limitation - impeachment is not pardonable. An implied limitation is that the enumerated power of pardon is limited to offenses against the same constitution. In other words, a president may only pardon federal crimes and a governor may only pardon state crimes committed under his/her state's criminal statutes. Other than that a president or governor can pardon whatever they want and for whatever reason they choose... up to and including a wholy capricious whim.

Actually, it was a comment on Jo Ann's post that got me to thinking about pardons. It was asserted by a commenter that a pardon rights a wrongful conviction. It does nothing of the sort. If it did then a pardon would also be grounds for expunging the record of said conviction. A pardon does not allow that, as we see in the federal DOJ Pardon information and instructions page and this court ruling in Illinois, which I provide as an example of how state pardons work.

In fact, a pardon effectively skirts the entirety of state/federal criminal law, including the provisions for righting a wrongful conviction. And the citizenry have absolutely no recourse... other than a constitutional amendment.

Here is an interesting primer on presidential pardons which used the highly controversial Clinton pardon of Marc Rich to expand on the subject, for those who want to understand it better. Several times in relatively recent years Congress has attempted to place limits on the presidential power of pardons but it has been withdrawn each time. As the piece notes at the end, any change or limitations to the power of pardons would require a Constitutional amendment, "and those are hard to come by."

Posted by Kevin at January 12, 2009 02:01 PM