Should US Presidents and other heads of states have the power to pardon criminals.
Personally I am opposed to presidential pardons as most pardons are political and it would imply that a head of state would have greater wisdom then all the juries, judges, and lawyers who convicted the criminals.
Most presidential pardons aren’t explicitly political. I mean, the pardons that get the press are, like Ford’s pardon of Nixon, Bush’s pardon of some of the Iran-Contra people, or Clinton’s pardon of Rich. but most people pardoned are non-political people who have already served their time.
Besides, I think a pardon can be good as a last resort against injustice. The person who’s convicted wrongly, who has no avenues for appeal, can still be pardoned and go free. The pardon power seems to go with the sentiment that “it’s better for ten guilty men to go free than one innocent man to be punished”, and it’s a feature in American law that leans toward mercy.
The pardon power is essentially a safety valve - it’s used when the system just doesn’t work.
Interestingly, most countries possessing something similar grant the power to the head of state, and not the head of government. In cases like the U.S. when it’s the same person, this can lead to a certain level of politicization.
Its the executives branch check on the judicial branch
If evidence turns up that the criminal is innocent he or she will be freed.
Except that in many (most?) countries with seperate heads of state and government the former does everything on the “advice” of the latter. Queen Elizabeth II, Mary Robinson, or Pratibha Patil may be “above politics”, but they don’t pardon anyone unless their Prime Minister (politician) tells them too.
The pardon power is old; it is one of the ancient prerogatives of the Crown, for example. The point made above about its politicisation in the US where the head of State and the head of government are the same is well taken, but its purpose elsewhere is still important.
In light of the observation above that separate heads of state only act on the advice of the executive, I would note that governments outside the US do not have a statutory use-by date of 8 years. Governments elsewhere can be re-elected after two terms, and so the political scandal (which doesn’t bother an end of term limit president) still bothers other governments.
One of the necessary features of any criminal justice system is finality - any system that just allows endless argument about convictions is merely a debating society. For that reason, the primary rule almost everywhere is that you get one go at defending yourself at a trial, and as a defendant you can’t in general hold back a good argument or piece of evidence on the prospect that if you lose, you’ll get another crack at it. Fresh evidence after a conviction is not an easy ground of appeal to succeed with, for good reasons.
A further consequence of the principle is that in most places you only get one go at an appeal (by that I mean one run through the appeal structure). In the US, the position is complicated by the Federal system, habeus corpus, and the taking of constitutional points at various stages, but generally the desirability of making all your arguments on appeal in one go is very compelling.
I cannot speak for the US, but elsewhere, the point is so strong that appellate courts often don’t have jurisdiction to hear a second appeal brought by a defendant.
So - what happens if compelling evidence of innocence emerges after the appeals have been exhausted? Enter the pardon.
In some places, the pardon application is made to the executive government which considers the point itself. In other places, the executive has statutory power if it wishes to send the matter back to the courts, thereby granting in essence a second appeal which would otherwise not be possible, but with the executive acting as a gatekeeper to stop the courts being choked with meritless try-ons.
In the end it is a useful process which balances the need for finality with the prospect that in rare cases the demands of individual justice will justify overriding the usual rules of The System.
You need a failsafe for when the available legal apparatus won’t permit any other remedy. “Wisdom” has nothing to do with it.
The problem with this is that there is no causal link between the evidence and the pardon. The emergence of compelling evidence of your innocence is no guarantee that some politician is going to pardon you, and the absence of such evidence doesn’t mean your mate the President isn’t going to hand you a Get Out of Jail Free card.
Not necessarily. Actual innocence isn’t necessarily grounds to overturn a sentence.
The (US) President’s is extremely broad, practically unlimited, and subject to no oversight. The President can pardon anyone for any crime against the United States; the only limit pardons cannot be preemptive. It cannot be revoked or overuled by anyone. There is no need to wait until a conviction, list the specific crimes the person is being pardon for, or even presume that the pardonee commited a crime (Nixon was pardoned for any crime against the US that he might have commited). Neither does the pardonee need to be mentioned by name. Carter (or Ford?) granted a blanket pardon to all draft evaders; he did not need to list the individual names of every single man this applied to in the document he signed. In theory the President can even pardon himself. Granted he can’t use a pardon to stop himself (or anyone else) from being impeaced/removed, nut it will preven any federal prosecution against him afterward.
I’m not sure what you mean by “no causal link”. I am guessing you mean there is no absolute guarantee that if you come up with some compelling evidence of innocence that you will be pardoned, because of the exigencies of the political process.
Nothing in life is guaranteed. The courts might not accept your evidence either. But most cases where a pardon is applied for go according to the weight of evidence. My sense of the situation in the US is that the high profile people who get pardons for purely political reasons are not the majority of cases. They are only the ones who get pardoned on the eave of leaving office, when the political imperative to avoid looking like you are just taking care of your dodgy mates no longer matters. The president can pardon a legitimate case of miscarriage of justice any time.
But the pardon arrangement is a pretty good compromise between having a legal system that cannot afford to allow people to manipulate it by holding back evidence and arguments without the risk of essentially breaking down by allowing arguments till the end of time for everybody, and keeping open the possibility that excessive rigidity about that rule can cause injustice in rare cases.
Executive pardons are a lot more palatable when given by governors rather than by the President, because anyone the President pardons will tend to have a higher profile.
That’s not true. The President pardons people you’ve never heard of all the time, unless you’re referring to such notorious figures like Stephen James Jackson (pardoned by President Bush in 2002, convicted of altering the odometer of a motor vehicle), or Samuel Wattie Guerry (pardoned in 2004 for food stamp fraud). The difference is that governors can pardon state crimes and the President can only pardon federal crimes. If anything, that means that governor’s pardons can be higher profile, because murder, which is one of the more high profile crimes out there, is usually a state offense and not a federal one.
This is not true. Once you have been convicted, the assumption is that you are guilty and you have to prove your innocence the same way that the prosecutor previously had to prove your guilt. And even then you’re going to have to find grounds to appeal the conviction - you can’t just ask for a do-over of your trial because you think you’ve got a better chance now.
Yeah, but what pardons do you hear about? It’s always the 5 to 10 notorious convicts the President pardons.
Maybe 1 or 2 people pardoned in a state will create a ruckus, but only within that state.
I’m not talking about the political process. I’m talking about the fact that the President/Governor doesn’t even have to pretend that a pardon is based on any sort of evidence or legal argument. He doesn’t have to listen to the evidence for and against your conviction, he doesn’t have to have any relevant legal education, he could pick your name out of a Lucky Dip and it would be just as binding.
No pardons before indictment, conviction and sentencing.
Any pardons for criminal breach of public trust subject to approval by 3/4 of the legislature.
Otherwise, I’m all for 'em.
I’ll add; Any pardon granted by the executive is subject to being overuled by a 2/3 majority in both houses of the legislature acting within 30 days.