Can the president issue a preemptive commutation?

[psychonaut]

It’s well established that the American president can issue preemptive pardons for federal crimes that have already been committed but not yet prosecuted or tried. (If you’re not aware of this, please see any of the zillions of other threads here on this topic.) The president also has the power to commute sentences; can this power also be exercised preemptively?

Consider the following scenario: a president becomes aware that someone has committed a crime and believes that this person is guilty but will receive an overly harsh sentence. (Perhaps the crime is a capital offence and the president is opposed on principle to the death penalty.) However, the sentencing (or maybe even the conviction itself) is not expected to occur until after the president leaves office. Can the president impose an upper bound on the possible sentence by exercising the power of commutation? For instance, could the president rule out the death penalty before a judge even imposes one, or decree that a yet-to-be-issued prison sentence cannot exceed a certain number of years?

[eschrodinger]

@psychonaut

It’s well established that the American president can issue preemptive pardons for federal crimes that have already been committed but not yet prosecuted or tried. (If you’re not aware of this, please see any of the zillions of other threads here on this topic.) The president also has the power to commute sentences; can this power also be exercised preemptively?

Well, I wouldn’t say the former is “well established,” just that it has happened and not been challenged before. But as to the latter, I suspect not. Shooting from the hip here, but I think executive clemency is, at its core, about the executive being able to assess and weigh the penalty actually imposed after a person is convicted and sentenced. It strikes me as outside of that power to preemptively cap the penalty that can be imposed.

When the prosecuting entity is the same as the entity that the executive heads up, then I think there are other discretionary actions that can sometimes be in play, like an executive order to the DOJ to not pursue the death penalty for certain classes of cases, for example. Or like the governors that have imposed death penalty moratoria during their terms.

There could also be an attempt by a president to intervene directly in the prosecution of a particular case, which might be legal, or might not be, depending on the circumstances, but is norm breaking at least, on the federal level.

[CookingWithGas]

@eschrodinger

Well, I wouldn’t say the former is “well established,” just that it has happened and not been challenged before.

IANA constitutional scholar but it seems that this was established in Ex parte Garland, 1866.

But as to the latter, I suspect not. Shooting from the hip here, but I think executive clemency is, at its core, about the executive being able to assess and weigh the penalty actually imposed after a person is convicted and sentenced. It strikes me as outside of that power to preemptively cap the penalty that can be imposed.

I agree that’s what it should be but I don’t know the reasoning a court would use. What you describe seems perfectly reasonable to me but Supreme Court decisions are sometimes made using various types of legal reasoning that may not square with what we think of as “common sense.” Not to mention the fact that decisions are usually split along conservative/liberal lines.

[psychonaut]

@eschrodinger

When the prosecuting entity is the same as the entity that the executive heads up, then I think there are other discretionary actions that can sometimes be in play, like an executive order to the DOJ to not pursue the death penalty for certain classes of cases, for example. Or like the governors that have imposed death penalty moratoria during their terms.

There could also be an attempt by a president to intervene directly in the prosecution of a particular case, which might be legal, or might not be, depending on the circumstances, but is norm breaking at least, on the federal level.

Sure, those options are available to a president whose term coincides with the complete trial. What I’m more interested in is whether a president can, other than by issuing a preemptive pardon, exercise any irreversible control over the penalty phase of a trial that, if it occurs at all, will not conclude until after the president leaves office. A moratorium on the death penalty, for example, can always be reversed by the president’s successor.

[eschrodinger]

@CookingWithGas

IANA constitutional scholar but it seems that this was established in Ex parte Garland, 1866 .

My mistake in what I was thinking of here. Yes, Garland establishes that a pardon can be for a not-yet-charged crime. I was thinking of blanket pardons, not preemptive pardons.

[eschrodinger]

@CookingWithGas

I agree that’s what it should be but I don’t know the reasoning a court would use. What you describe seems perfectly reasonable to me but Supreme Court decisions are sometimes made using various types of legal reasoning that may not square with what we think of as “common sense.”

Well, to the extent that there’s a GQ answer, it is likely that the Supreme Court would look to the historical precedents and how the commutation power was viewed when that power was granted to the president in Article II, sec. 2.

I haven’t done that research.

This question won’t really have a GQ type of answer. It’s going to be opinion and speculation about how the Court will decide, if it’s ever presented with that scenario.