Guest Editorial for Jurist, March 7, 2001
Keys to Clemency Reform: Knowledge, Transparency
You wouldn't think people could spray the House of Representatives with machine gun bullets and be forgotten. A presidential pardon for those who committed such an act would seem even more amazing...and unforgettable. And who could forget such a pardon if the recipients were not in the least bit "sorry," but were proud of what they had done?
Answer: just about everyone! In 1979, President Jimmy Carter pardoned Irving Flores Rodriguez, Lolita Lebron, and Rafael Cancel-Miranda for precisely such an attack in 1954, but hardly anybody now remembers the pardon, the perpetrators, or the deed (the bullet holes, by the way, are still visible in the House Chamber).
And so, as interest in Clinton's "last minute" clemency actions begins to fade into all-too-predictable obscurity, several questions are well-worth asking: Why do clemency "stunts" happen over and over? Why is nothing ever really done about them? Why do we forget? Why do we leap into outrage and shock when history repeats itself, do absolutely nothing about it and move directly to the forgetting? What is the matter with us?
I think the explanation generally lies in our wrong-headed notions of history and the clemency power - and a bizarre (and inexcusable) lack of information about actual pardons.
When fifty-five individuals arrived at the Philadelphia Convention of 1787, they were greeted with the Virginia Plan. That plan did not contain the pardoning power. The response, the New Jersey Plan, did not contain such a power. After the Great Compromise, a draft of the Constitution was sent to the Committee on Detail. That draft did not contain the pardoning power. In Committee, however, John Rutledge took it upon himself to pencil the power into the margin of the text. Rutledge's addition appeared in the floor draft, but was only briefly discussed as the Convention was closing. In sum, the notion that the Framers of the Constitution had some well-thought out "intent" with respect to the pardoning power is quite silly. Its presence in our Constitution reeks of manipulation, last-minute consideration, and little in the way of thoughtful deliberation.
Yes, it is true that the Federalist Papers (Hamilton's idea) provide a "defense" of the pardoning power. Hamilton wrote most of those papers and provided the "defense" in them. Important footnote: Hamilton wanted a king in America! Great man that he was, is it really any wonder he was shot?
In the early 1800's the Supreme Court suggested that the proper way to interpret the scope of clemency was to look into the past, to England and Kings - forget the whole Revolution and what-not. The decision was clearly as foolish as Hamilton's desire to actually have a King. At common law, Kings sold pardons without apology and divided the bounty among mistresses. At common law, Kings pardoned people to build up armies and colonize. At common law, Kings pardoned people to celebrate birthdays. The history of clemency, as Professor Daniel Kobil's outstanding writing notes, is a history of abuse.
The Supreme Court has, however, generally upheld the central notion of its ancient decision and Presidents enjoy an impressive winning-streak in litigation featured in that institution. The pardoning power appears to be without limit, beyond regulation. That is, the Court's rulings appear to "look into the past" with - not one - but two eyes closed. For history clearly shows that the King's repeated abuses were greeted with movements to limit the scope of the power and - contrary to impressions one might get from Supreme Court rulings or the typical congressional witness - the King's power was limited. Laws restricted the use of that power.
Can we undo, or redirect, such artful manipulation and the awkwardly skewed utilization of history in our law? Probably not. Can anything be done to limit the President's power? Yes. I think. But I readily admit my theory about all this is itself skewed by the fact that I am a political scientist by trade, not a lawyer or an historian - and I (and they) have a problem.
Put simply, none of us has comprehensive knowledge of who in American history received a Presidential pardon, for what, or when. Suppose, as a test, one wants to find the names of those pardoned by Presidents Washington, Lincoln and Reagan. All of Washington's hand-written clemency warrants are on microfilm these days. All of Lincoln's hand-written warrants are on microfilm. There is no public list for Ronald Reagan, microfilmed or not. What a sorry history of progress! For pardons issued from 1789 to 1893, one has to go to hard-to-find and hard-to-read microfilm. For pardons from 1894 to 1933, one can consult the Annual Reports of the Attorney General - pure heaven after the bloody microfilm - but from 1934 to present there has been no reporting of individual acts of clemency. You read that correctly: "no reporting." Yes, one can attain aggregate (summary) statistics easily enough. Ronald Reagan pardoned 406 people. Fine. Who were those people? When were they pardoned? The first year of his term? The last year? No one knows. Any "last-minute" clemency in that administration? Dead ends everywhere. Does the Department of Justice keep records? Of course! Could it make such a list? Certainly, one supposes. But it stopped doing so in 1934.
Consider all of the excellent, relevant questions that cannot be answered by any congressional witness, any member of Congress, or anyone in the Department of Justice because of this unnecessary black hole. Did Clinton set the record for pardons in one day? Did he set the record for "last-minute" pardons? Are "last-minute" pardons normal? Or, were President Clinton's actions, by fair application of the standards of history, quite ordinary? Former Pardon Attorney Margaret Love has suggested that about 2/3 of Clinton's clemency decisions went through "normal" channels. I found that information quite fascinating, but equally frustrating. Was that distribution normal? Abnormal? Expected? What? I submit that we cannot fairly judge Clinton's actions while wallowing in such an abysmal pool of ignorance.
Thus, I take the position that the pardoning power can be limited in effect, without legislation and constitutional amendment. How? Simple. Make the process more transparent. Report the names of those who apply for, and receive, clemency. Report the exact date of clemency decisions. If Presidents offer explanations for decisions, report them. Report what percentage of clemency recipients go through the "normal" channels. We should not have to wait for congressional hearings to know that information! With today's news media and their persistent concern about law and order, campaign finance and ethics, reporting will discourage the clemency stunts we will most certainly experience again if members of Congress simply sit on their hands and snipe.
R E T U R N