Madness, absurdity, and one’s personal feelings don’t matter nearly as much as some future judgment by the Supreme Court.
Most pardons are of this type, and they tend to be the ones that the Office of the Pardon Attorney approves. Almost no one objects to this sort of pardon. The problematic ones are the ones that don’t go through that office, that tend to benefit the president’s political allies or big donors to his party or even people who may have dirt on the president. To name just a few of the latter type:
- Richard Nixon was pardoned by Gerald Ford without being indicted
- Casper Weingerger was pardoned by George H. W. Bush after being indicted but before the trial started
- Marc Rich was indicted and fled the country. He never stood trial before Bill Clinton pardoned him.
- Scooter Libby was convicted and sentenced to prison, but George W. Bush commuted his sentence before he actually served any time. Later, Donald Trump pardoned him.
- Roger Stone was sentenced to prison but was pardoned by Donald Trump before he served a day.
So what happens when someone really deserves a pardon in the President’s fourth year?
In terms of how it is abused (and every president abuses the pardon power a few times) this is low on my priority list. Should I care that Clinton pardoned his brother or that DA’s refuse to indict white male cops that murder unarmed Black men? Should I care that Trump pardoned the racist “Fightin’ Joe” Arpaio or that the court let police departments steal money from the innocent through civil asset forfeiture? Look at Biden’s pardons for Bogans and Bolden and tell me I should care more about that then cops flagrantly violating the law and people’s rights but we can’t hold them accountable because of Qualified Immunity.
I’m willing to look at the President’s ability to pardon (and note, Federal crimes only) whomever they want as a feature and not a bug. Let’s clean up the rest of the legal system first.
He’s typically been eligible for a pardon in the President’s third year.
Fourth-year pardons, especially after Election Day, are generally the ones the President would pay a political price for granting if they were done earlier.
Recently, maybe. But early twentieth century presidents commonly granted several hundred each year, including their last year. What with today’s higher population — and incarceration rate — there probably should be several thousand granted a year.
In some ways, we are more liberal than Americans were a century ago. But not when it comes to incarceration. I am much more concerned with miscarriages of Justice than someone getting away with something.
As to how to encourage more pardons, without a constitutional amendment, setting up a non-partisan board to make recommendations would help. The President could ignore recommendations, but a good president would not.
Be able to recommend a not so horrible confinement for that year and then eligible for pardon the next year. It’s not uncommon for people who legit should be pardoned, but sometimes have to wait till the last term when the president actually does it and this is for political reasons, that could be 3+ years of extra jail time and no leniency extended which seems like the greater evil then having someone wait it out 1 year in a more lenient situation.
The sole limitation in the Constitution is that POTUS cannot undo an impeachment conviction (and remember, all officials of both executive and judiciary can be impeached).
Myself, I want the POTUS to be able to make that last minute call to Federal Death Row right until noon on Jan. 20th, especially if it would be an impopular decision.
Yes, but what tells us the new POTUS taking over “next year”, (or the same POTUS once safely reelected) will not just go right ahead and “nope” on it anyway because it would still be politically uncomfortable for them to actually free the convict(s).
And “recommend” a “not so horrible confinement”… I suppose just recommend because if you did change the terms of the sentence, that would be exercising the clemency power, only for a limited time – which gets bogged down in the question of would they stay in “not so horrible” until a decision is made on a pardon however long it takes?
And hope the next President pardons them?
And to also address JRD’s comments as well.
Much of the details could be worked out, it was just a general concept. The next president could cancel it I guess with return to full confinement, but should be something active on their part to do so, if a certain amount of time went by the pardon might be automatic. This way the next pres doesn’t have to pardon them, but can respect the office of the presidency and allow the former pardon to happen.
Ultimately the pardon power should be with the people through elections, and in that a late pardon should not skip the people’s input
This is exactly the opposite of how it should be. The power of the pardon should not be based on popular opinion. It should be based on the facts and that is why unpopular pardons are a feature and not a bug. Let me ask you this. A Black man is convicted by a kangaroo court in the early 1950’s South. Would you really want the President’s/Governor’s hand tied on this obvious miscarriage of justice simply because the pardon would be unpopular?
Totally agree.
It is inevitable that popular opinion, as it now exists, will cause some pardons to create negative public opinion pressure. A nonpartisan pardon board, tasked with giving frequent pardon and clemency recommendations, could give the President some political cover.
One thing a President could do, to give themself cover, is to say that jury verdicts will be respected, but deals made by lawyers will not be. Since only 2% of federal criminal defendants go to trial, this would only be a minor limitation.
EDIT: Thinking some more, my last idea could encourage defendants to plea bargain in hopes of getting a pardon, and ths is the opposite of my intent. Any proposal on a board like this would of course be just a first draft.
Juries make wrong decisions now and then. Probably more often than innocent people pleading guilty in a plea bargain. (at least for serious crimes. A lot of people plead guilty to minor crimes to get out of jail sooner)
It would probably be difficult to define rigorously, but I would like to see a provision stating that a president can’t pardon crimes that were committed in support of that president. This would obviously take care of presidents pardoning themselves, but would also prevent some serious abuse where the president commands someone to commit illegal acts by promising them a pardon.
The first thing to figure out is whether amending the President’s ability to pardon anyone he wants to, whenever he wants to, for whatever crimes he wants to, is even possible, and then to figure out how best to do that.
Then we need to figure out which aspect of pardons we want to amend: when the President can do it (i.e., in the first three years up to election day, or whatever), who the President may pardon (himself? his staff?), what restrictions we want to place on his absolute power to pardon, assuming we can (make pardons subject to the approval of a non-partisan Pardoning Board?)–we’re kind of all over the place with this topic just now. I’ll take the blame for phrasing the OP so broadly.