The Problematic Presidential Pardon: a Proposal for Reforming Federal Clemency
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\\server05\productn\H\HLP\3-2\HLP206.txt unknown Seq: 1 24-AUG-09 10:15 The Problematic Presidential Pardon: A Proposal for Reforming Federal Clemency Jonathan T. Menitove* I. INTRODUCTION Shortly after 9:30 a.m. on January 15, 2009, Senator Patrick Leahy gav- eled the Senate Judiciary Committee to order.1 Seated before the Committee was Eric Holder, then President-elect Barack Obama’s nominee to become the eighty-second Attorney General of the United States. As Senator Leahy used his opening statement to sing the nominee’s praises, the senator seated to Leahy’s right—ranking member Senator Arlen Specter—had only one name on his mind: Marc Rich. Senator Specter’s initial round of questioning focused entirely on Holder’s role in the controversial, last-minute pardon President Clinton granted to the wealthy financier and Democratic fundraiser during his final hours in office.2 Undoubtedly, Specter was not the only one with questions, as many Americans questioned whether Holder truly repre- sented the change for which the nation had voted. The reemergence of the Marc Rich story during the Holder confirmation hearings once again cast the limelight on the current presidential pardoning structure’s vulnerability to abuse. This article seeks to explore the pardoning process and—consistent with the Obama Administration’s focus on making government more trans- parent—to propose a solution by which the unchecked power of the Presi- dent to pardon might be reformed. Article II, Section 2, Clause 1 of the Constitution grants the President of the United States the “Power to Grant Reprieves and Pardons for Of- fenses against the United States, except in Cases of Impeachment.”3 The Framers’ vesting of this broad authority, coupled with Supreme Court deci- sions affirming the near-limitless nature of this power,4 has imbued the Of- fice of the President with tremendous discretion to grant federal offenders pardons, conditional pardons, commutations of sentence, remissions of fines, * J.D. Candidate, Harvard Law School, 2010; M.A., Yale University, 2007; B.A., Yale University, 2007. The author would like to thank Alex Whiting for his support, guidance, and helpful comments. 1 See Attorney General Nomination Hearings Before the S. Judiciary Comm., 111 Cong. (2009) (statement of Sen. Patrick Leahy, Chairman, S. Judiciary Comm.), available at http:// judiciary.senate.gov/hearings/testimony.cfm?id=3610&wit_id=2629 (on file with the Harvard Law School library). 2 See Eric Lichtblau & David Johnston, Pardon Is Back in Focus for the Justice Nominee, N.Y. TIMES, Dec. 1, 2008, at A1; see also Eric Lichtblau, Nominee Wants Some Detainees Tried in the U.S., N.Y. TIMES, Jan. 16, 2009, at A1. 3 U.S. CONST. art. II, § 2, cl. 1. 4 See infra text accompanying notes 22–31. \\server05\productn\H\HLP\3-2\HLP206.txt unknown Seq: 2 24-AUG-09 10:15 448 Harvard Law & Policy Review [Vol. 3 reprieves, and amnesties.5 While clemency power is by no means unique to the American system of government,6 the seemingly unchecked nature of this power establishes executive clemency as somewhat of a constitutional anomaly outside the system of checks and balances.7 Eric Holder’s confirmation hearings revived the public’s memory of President Clinton’s notorious Marc Rich pardon. Other recent controversial pardons include President George H.W. Bush’s pardon of six White House officials involved in the Iran-Contra scandal8 and the commutation of I. Lewis “Scooter” Libby’s sentence by President George W. Bush.9 Addi- tional criticism of executive clemency has highlighted the declining use of the presidential pardon, despite the Framers’ intent for clemency to serve a vital role in the criminal justice system.10 In an effort to address the problems of the current executive clemency structure, this paper probes the various state pardoning models for solutions. Drawing on the structure common to many state reform systems while rec- ognizing the unique attributes of federal clemency, this paper proposes the creation of a small, partisan Presidential Clemency Board to review and ap- prove all presidential pardons. The hope is that the creation of such a Board would establish a system that is agile enough to respond to those situations where the public interest demands a pardon, responsive enough to allow de- serving offenders the opportunity to receive clemency, and accountable enough to the electorate to deter corruption. To illustrate the necessity and potential benefits of a Presidential Clem- ency Board, this paper tracks the following path. The next section provides 5 See Daniel T. Kobil, The Quality of Mercy Strained: Wresting the Pardoning Power from the King, 69 TEX. L. REV. 569, 575–78 (1991). The terms “pardon” and “clemency” are sometimes used to describe different things, with “pardon provid[ing] the most sweeping remission of the consequences that normally attend violation of the law” and “clemency” being the broader umbrella term capturing pardons, commutations, remissions of fines, re- prieves, and amnesties. For the purposes of this paper, the term “pardon” is used interchange- ably with “clemency” to refer to what Kobil describes as the “general power to remit punishment.” Id. at 576. 6 Id. at 575 (“The clemency power is something of a living fossil, a relic from the days when an all-powerful monarch possessed the power to punish and remit punishment as an act of mercy. It is the oldest form of release procedure, and survives in some form in every state in the union and in every country of the world except China.”). 7 James N. Jorgensen, Federal Executive Clemency Power: The President’s Prerogative to Escape Accountability, 27 U. RICH. L. REV. 345, 353 (1993) (“Although the delegates recog- nized the potential breadth of the clemency power, all of the proposed limitations on the exer- cise of that power were ultimately defeated at the Convention. Thus, the executive’s clemency power, a privilege uncharacteristic of the constitutional framework of checks and balances and limited democracy, was incorporated into the Constitution.”). 8 Id. at 362–68. 9 Margaret Colgate Love, Reinventing the President’s Pardon Power, 20 FED. SENT’G REP. 5, 5 (2007). 10 See, e.g., Brian M. Hoffstadt, Normalizing the Federal Clemency Power, 79 TEX. L. REV. 561, 582–83 (2001); Elizabeth Rapaport, Retribution and Redemption in the Operation of Executive Clemency, 74 CHI.-KENT L. REV. 1501, 1508 (2000); Margaret Colgate Love, Of Pardons, Politics and Collar Buttons: Reflections on the President’s Duty to be Merciful, 27 FORDHAM URB. L.J. 1483, 1491 (2000); Kobil, supra note 5, at 602. R \\server05\productn\H\HLP\3-2\HLP206.txt unknown Seq: 3 24-AUG-09 10:15 2009] Short Essays 449 a brief constitutional history of executive clemency and Supreme Court deci- sions that have expansively interpreted this presidential power. Following that, the paper presents both the strengths and faults of the current regime, noting situations of national emergency in which the President’s ability to pardon swiftly has served the public interest, but also highlighting faults of the current system, including the declining use of the pardon and the poten- tial for corruption. The subsequent section provides a discussion of state pardoning procedures, noting how states have deviated from the federal model by promoting executive accountability and distributing at least part of the pardoning power to an external clemency board. The argument then culminates in a plan for reforming federal clemency, considering the states’ approaches and the unique attributes of the federal clemency system. The proposed creation of a small, partisan Presidential Clemency Board main- tains the current clemency model’s ability to respond swiftly during mo- ments of national crisis, while simultaneously improving the pardoning process by increasing the availability of clemency to deserving offenders and decreasing the potential for corruption. II. CONSTITUTIONAL HISTORY OF PARDONING POWER AND THE SUPREME COURT’S INTERPRETATION Executive clemency in the United States has its roots in the pardoning power of the British monarchs in the seventeenth and eighteenth centuries.11 Rather than perceive it as a failsafe in the criminal justice system, the British viewed executive clemency as a power vested in the monarch in accordance with his divine right to rule. Pardons were thought of as personal gifts from the monarch that required no justification and were not subject to criticism.12 Naturally, monarchs began to abuse the pardon, employing this power for monetary and political gain.13 Upon colonizing the New World, the British Crown delegated clemency power to the colonies’ royal governors. The American Revolution toppled this existing order, and, in accordance with the Revolution’s spirit of distrust in executive authority, the states placed clemency power in the hands “of the legislature and governor jointly or in the legislature alone.”14 This trend toward empowering the legislature shifted in 1787 when the Framers, de- spite their wariness of concentrating power in the executive and their full 11 Kathleen Dean Moore, Pardon for Good and Sufficient Reasons, 27 U. RICH. L. REV. 281, 282 (1993). 12 Id.; see also Jorgensen, supra note 7, at 350. R 13 P.S. Ruckman, Jr., Executive Clemency in the United States: Origins, Development, and Analysis (1900-1993), 27 PRESIDENTIAL STUD. Q. 251, 252 (1997) (citing the work of David Gary Adler and his discussion of the pardoning power’s history). 14 Ashley M. Steiner, Remission of Guilt or Removal of Punishment? The Effects of a Presidential Pardon, 46 EMORY L.J. 959, 965 (1997); W. HUMBERT, THE PARDONING POWER OF THE PRESIDENT 13–14 (1941). \\server05\productn\H\HLP\3-2\HLP206.txt unknown Seq: 4 24-AUG-09 10:15 450 Harvard Law & Policy Review [Vol.