Share this article

print logo


Who is not chagrined about the recent U.S. presidential pardons? What an array of inside influence and wealth they seem to represent.

There's a convicted drug dealer from a fine old Southern family, a Wall Street speculator and fugitive who had pleaded guilty to manipulating stock prices, a California businessman convicted of mail fraud and perjury in 1983 and now again being investigated on entirely new charges of fraud. Not to mention the president's rather low-life brother, Roger, a drug offender.

All -- plus dozens more -- from the ranks of the privileged, pardoned with the sweep of the presidential pen.

Whether Democrat or Republican, Clinton lover or loather, political liberal or political conservative, every thinking American has paused to reflect on this recent spectacle and wonder what it means for the republic.

Let's talk first about the character of the presidential pardon power itself, and why we have it.

On one historical fact, every historian agrees: The Founders of this nation did not want a king. But because most of them did want a powerful executive, they looked to the model of the English monarchy for guidance. They discarded some kingly powers (such as unlimited control of appointments) and chose the ones they thought most suitable, including the unlimited power to pardon.

They were confident they had constructed the office well. Indeed, Alexander Hamilton in the Federalist Papers predicted the presidency would be "filled by characters pre-eminent for ability and virtue." This assumption, soon proved false though it was, makes the pardoning power seem less reckless.

More important to them, however, were the troubled times of the 18th century, riddled with class warfare, particularly in England. Not accidentally, it was also a time of brutal criminal law, in which nearly every offense -- theft, forgery, poaching -- was a capital crime.

While the law's cruelty was regularly tempered by juries that refused to convict, huge numbers of English subjects were regularly sentenced to be hanged. The king's pardon, supported even by conservative Parliamentarians like Edmund Burke, moderated the law when necessary, to retain popular support.

As historian Douglas Hay argued in his study of 18th century crime: "The law was important as gross coercion; it was equally important as ideology. Its majesty, justice and mercy helped to create the spirit of consent and submission" that maintained the loyalty of the English poor. Royal pardons, wrote Hay, "were presented as acts of grace rather than as favours to interests."

Or as William Blackstone argued in his definitive commentaries on English law: "These repeated acts of goodness" had the effect of endearing "the sovereign to his subjects, and contribute more than anything to root in their hearts that filial affection, and personal loyalty, which are the sure establishment of a prince."

That's the theory, anyway.

In their search for a well-ordered government overseeing a stable society, the founders endowed the presidency with this unlimited kingly power to pardon citizens as an outlet to overly severe laws or courts.

According to Hay, however, even in the king's hands the power was often suspect. The "grounds for mercy," he wrote, "were ostensibly that the offense was minor, or that the convict was of good character, or that the crime he had committed was not common enough in that county to require an exemplary hanging."

Under this analysis, we might put the president's pardon of his brother's cocaine conviction in the "minor" category -- and therefore suitable. (Though many observers would quickly point out the thousands of unpardoned inmates whose cases are at least equally worthy.)

Applications that go through regular channels in the Department of Justice -- which Clinton pretty much bypassed -- nearly always put forward an argument of good character. The applicant is cited for family values, community and church service or generous philanthropic contributions -- though sometimes of ill-gotten gains.

Hay doubts that most kingly pardons were meritorious. On the contrary, they "served to save a good many respectable villains." Then, as now, the pardon tended to go to the well-off criminal, because "mercy was part of the currency of patronage.

Petitions were most effective from great men, and the common course was for a plea to be passed up through increasingly higher levels of the social scale, between men bound together by the links of patronage and obligation." But there was a downside to all this.

The power had to be used judiciously or its effects could boomerang. Says Hay: "The aim above all was to avoid exposing the law and authority either to ridicule or to too close scrutiny."

Ridicule of the law and close scrutiny of this once unquestioned presidential power are quickly becoming two more legacies of the Clinton years.

JULIA VITULLO-MARTIN, a New York-based writer, is at work on a book about the American jury.

There are no comments - be the first to comment