23 December 2004

Pardon? What Pardon?

Yesterday's theme of the day around the blawgosphere was how President Bush fails to use the pardon power in an effective and just manner:

Bush's stingy pardon practice

I Beg Your Pardon

80% of Recent Bush Pardons Were Convicted of White Collar Offenses

Bush the Grinch Pardons Few

Bush and the Pardon Power

Pardon Me, But Why?


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I really don't think we are going to effect this administration's stand on this issue. To be sure, I see the reason that Presidential pardons should be used to balance out an unfair federal system where you can be sentenced for things you were found not guilty of, where long-standing doctrines like the "exculpatory no" have been abrogated so that even if the prosecution cannot get together enough evidence to accuse a defendant of the crime it was investigating it can comb through its records and if it finds an untruth charge the defendant with lying to a federal agent (see Martha Stewart), and where a person who is a lower level conspiree can get more time than a higher level conspiree because the lower level guy doesn't have information to sell in order to get less time. However, I don't see any administration wading into the criminal justice system and expending the time and political capital it would take to use the pardon power to correct these sort of systematic problems.

Given this, pardons strike me as always being entirely arbitrary. Can an arbitrary system ever be fair? No. Short of wholesale pardons there will always be those among the convicted who deserve a break. Political necessity will keep any president from giving too many pardons, whether they are deserved or not. The test is probably that the number of pardons will always be kept at a number low enough to fly below the media's radar (and thus avoiding the attention of the citizenry).

Whether it is arbitrary at 30+ pardons or 100+ doesn't really change anything. If it's not going to be used to fix the flaws in the system it's purely an exercise in emotions and/or politics. In other words, there will be "feel good" pardons (probably strategically announced around Christmas or Yom Kippur or Eid al-Adha) and pardons as an effect of being a member of the monied class. I would be very interested if anyone out there has a breakdown of how many of each of these two types there were in the Clinton administration and how many in Bush the Younger's administration.

I think Bush probably thinks he is on the right path. He shows contentment in his convictions (I'd say courage but you need serious opposition for courage) and seems to have an abiding trust-belief that systems work, whether they be legislative or judicial or administrative; how often have we seen him step up after a decision has been made by any organ of the government and oppose it? Therefore, it's not all that surprising that he's not disturbing judicial decisions made by others.

Would I like to see the current administration give out more pardons? Yes. The application of an arbitrary method to reach equity in some cases does justice for at least those few souls.

But it ain't gonna happen.

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