Federal Court Wonks, Unite!
More Sources on Pardons

Bush and the Pardon Power

Under Article II, sec. 2, cl. 1, the President "shall have Power to grant Reprieves and Pardons for Offences against the United States." Presidents have traditionally used this power liberally: Only one president in the past century has issued less than 100 pardons. President Bush has only issued 31.

A bipartisan group of bloggers think that this reflects poorly on President Bush. As Professors Kerr, Berman and Reynolds note, President Bush is unfairly stingy with pardons.  A few people (obviously unfamiliar with the pardoning process) say that Bush is wise not to grant pardons.  I'm going to refute the arguments against President Bush's using his pardon power.

Problem No. 1. President Bush can't know whether the person he is going to pardon will kill/rape/rob again.

 No person is eligible for a pardon until at least 5 years after serving his sentence, though in practice, the person should have been living a law-abiding life for at least ten years before filing the application. He must then fill out this 23-page application, listing every aspect of this life, including why he was in prison, his credit history, and why he deserves a pardon. If he lies anywhere on the application, he is liable for perjury.  Moreover, the applicant must have people go out on a limb for him by signing affidavits attesting to his good moral character.  Then he has to deal with DOJ.

Within the Department of Justice is the Office of the Pardon Attorney. There a staff of DOJ lawyers, investigators, and support staff vet every pardon application. Justice Department lawyers are generally the smartest in the country, and they have great noses: An applicant is not going to fool them. DOJ lawyers also have careers to worry about. Do you think a government lawyer would recommend that someone receive a pardon if there were any question whether the person might offend again?

My source within the pardon office tells me that they usually take at least 18 months examining a pardon application, and that they error on the side of recommending against granting clemency. Thus, the argument that the President should not grant pardons due to the potential that a person receiving a pardon will re-offend ignores the pardoning process.

Thus, before a pardon application goes through President Bush, the applicant must fill out a lengthy form, pass numerous personal interviews, and then be approved by the Department of Justice.  That process ensures that the person won't offend again.

Problem No. 2: The "hot water" problem. That is, Clinton got in hot water for granting pardons, therefore, Bush will too.

I think this is the weakest argument against Bush's using his pardon power. The public was not upset that Clinton granted pardons: They were upset he pardoned Mark Rich and others who gave the President or Mrs. Clinton money. Thus, the hot water argument is a non-argument if President Bush issues pardons due to the values the pardon applicant lives, rather than the value the pardon applicant can bring the President.

Problem No. 3: There's no political benefit.

 This crowd is a tough one to persuade, since they believe that the President should only do things that will increase his political capital. Thus, President Bush should not do the morally correct thing unless morality intersects with power. I think this is an abominable position, but we still have to work with these folks.

I think Bush's granting pardons would increase his political capital. I, and many fence sitters, would be moved to see President Bush having a white house dinner with several people who, after twenty years, have lived clean lives. I suspect that it would be very good PR for the country to see the softer side to a president who is usually perceived as unmerciful.  After seeing this softer side, we might be less suspicious of him when he takes aggressive acts.  Just as we don't usually trust a prosecutor or criminal defense lawyer to give us an unbiased view of the criminal justice system, we also don't trust a president who has ever shown mercy when he claims to act out of concern for his fellow man. 

Also, since our criminal justice system unfairly targets minorities, I suspect that the President would pardon a lot of minorities. This would signal to African-American and Hispanic voters that he is serious about minority concerns.

Finally, President Bush is a born-again Christian. Surely he can understand the power of redemption. I imagine he could give a moving speech discussing faith and redemption.  He might tell us that while only God can truly redeem, a president can at least do his part furthering redemption and forgiveness here on earth.