Presidential Pardons: Not Just for Turkeys

Professor Mark Osler, ProPublica, and Think Progress have all commented on the marked lack of presidential pardons in the current administration.  According to the Justice Department statistics, President Obama has pardoned 22 individuals and denied 1,019 applications.  

ProPublica states:

Obama “has given pardons to roughly 1 of every 50 individuals whose applications were processed by the Justice Department. At this point in his presidency, Ronald Reagan [3] had pardoned 1 of every 3 such applicants. George H.W. Bush had pardoned 1 in 16. Bill Clinton had pardoned 1 in 8. George W. Bush had pardoned 1 in 33.”

When Alexander Hamilton advocated for the presidential pardon power in Federalist No. 74, he stated:

Humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed. The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel. As the sense of responsibility is always strongest, in proportion as it is undivided, it may be inferred that a single man would be most ready to attend to the force of those motives which might plead for a mitigation of the rigor of the law, and least apt to yield to considerations which were calculated to shelter a fit object of its vengeance. The reflection that the fate of a fellow-creature depended on his sole fiat, would naturally inspire scrupulousness and caution; the dread of being accused of weakness or connivance, would beget equal circumspection, though of a different kind. On the other hand, as men generally derive confidence from their numbers, they might often encourage each other in an act of obduracy, and might be less sensible to the apprehension of suspicion or censure for an injudicious or affected clemency. On these accounts, one man appears to be a more eligible dispenser of the mercy of government, than a body of men.

Hamilton envisioned the presidential pardon power as a means to offset the necessary harshness of the criminal justice system, a system that has in many ways been harsher today than in the Founding period given the spread of rigorous federal sentencing laws and “three-strikes” statutes in many states.   Today, people can spend years in prison for minor drug offenses, even life in prison for marijuana possession in some states.  These circumstances seem to provide an ideal time to follow Hamilton’s advice of taking the presidential pardon power seriously as a way to balance some of the ” too sanguinary and cruel” consequences of our justice system.

Instead, the opposite trend is taking place.  Perhaps the perception of the presidential pardon as an instrument of political favor after President Clinton’s pardon of Mark Rich has prompted an overabundance of caution in exercising the power.  In fact, the only presidential pardons of 2012 actually went to Cobbler and Gobbler, the Thanksgiving turkeys pardoned in the annual White House ceremony.

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