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Article Excerpt
I. INTRODUCTION
"Power tends to corrupt and absolute power corrupts absolutely."--John Emerich Edward Dalberg-Acton, Lord Acton, Letter to Bishop Mandell Creighton (1)
Executive clemency exists to serve the public welfare. Presidential pardons afford relief from overly harsh judgments or prejudice in the operation or enforcement of criminal law. (2) The pardon power also operates as a check on the judicial branch of the government, just as the presidential veto is a check on the Congress. (3) At its root, the clemency power is based on fundamental notions of mercy and justice. (4)
Throughout American history, however, there have been occasions when the pardon power was abused. More recently; great consternation was generated by the possibility that, during President Clinton's last moments in office, improper influence led to a string of unjustifiable presidential pardons. This Note examines the history of the pardon power, how a pardon is granted, and whether there are any limitations that may be imposed on the presidential pardon power.
Currently, constitutional limitations that govern the grant of a pardon and other restrictions could be imposed by either the executive or the legislative branch. The judicial branch, however, would not likely review a pardon unless other provisions of the Constitution were violated through the grant of a pardon. Despite these limitations from the three branches, possibilities for abuse remain. The only effective limitation that would guard against the improper use of the executive pardon power would be a constitutional amendment allowing the Senate to overrule pardons that it deems constitutionally unjustified.
Part II of this Note provides the facts of President Clinton's most controversial pardons. Part III presents a historical analysis of restrictions imposed on the pardon power, as well as possible limitations on the pardon power discussed at the Constitutional Convention. Part IV provides a brief glimpse of the pardon power as it currently exists, looking specifically at the language granting the power, the pardon power's effect and underlying rationales, and common uses of the power. Part V examines the current administration of the pardon power, looking specifically at the Office of the Pardon Attorney and the recommended review process. Part V also focuses on existing limitations on the pardon power and whether it is up to the executive branch to impose restrictions. In addition, Part V examines previous congressional attempts to curtail the use and effect of the pardon power, as well as judicial efforts to protect the constitutional boundaries of executive clemency. Part VI proposes a constitutional amendment concluding that such an amendment could curb the abuse of the pardon power by vesting the Senate with the power to check the use of the presidential pardon.
II. THE CLINTON PARDONS
On January 20, 2001, President Clinton granted 141 pardons and 36 commutations. (5) Although these reprieves were expected for weeks in advance, there were a few peculiar aspects about the pardons that made them notable. First, the pardons were granted at the very last hour of Clinton's presidency. Second, approximately 30 pardons did not go through the normal Department of Justice, Office of the Pardon Attorney review process. A former Justice Department pardon attorney stated that, prior to Clinton's "unprecedented" pardons, "the number of situations in recent decades in which a pardon was granted without a prior Justice Department investigation and recommendation from the attorney general `could be counted on the fingers of one hand."' (6) Third, the identities of the recipients and their relationships to the President were extremely controversial. Most notably, billionaire Marc Rich and cocaine trafficker Carlos Vignali received pardons. It seems these individuals were pardoned due to the actions of those close to the President who advocated for clemency. (7) Another factor that made the late pardons curious was that President Clinton granted no pardons at all during the first four years of his presidency. (8) Surprisingly, however, Clinton issued roughly the same overall number of pardons as his predecessors, with approximately half of his pardons coming in the last month of his presidency. (9)
As presidents come and go, the pardon power has been exercised less frequently. (10) The pardon power is regarded with "suspicion and cynicism." (11) Clinton issued the pardons with no explication or justification. When the press began to question the pardons, specifically the pardon of Marc Rich, Clinton responded by publishing an explanation in the New York Times. (12) The editorial failed to stop criticism of Clinton's pardons, despite all of Clinton's reasons and his declaration of widespread support of his decisions, including the support of the Deputy Attorney General and of three distinguished Republican lawyers. (13) More recently, Clinton reversed his position, stating that the if he had known of the subsequent damage to his reputation, he would have refused the Marc Rich pardon. (14) There have been other controversial pardons granted by U.S. presidents, but Clinton's pardons captured and sustained public attention and perhaps will be a catalyst for eventual reform.
III. HISTORICAL BACKGROUND OF THE PARDON POWER
While the concept of clemency has its origins in ancient Roman law, the Framers of the U.S. Constitution borrowed directly the fundamentals of the executive pardon power from the British legal tradition. (15) The English king's pardon power was essentially unlimited. (16) According to Blackstone, in addition to tempering justice with mercy, allowing an expansive pardon power to rest with the king fostered other goals, such as the endearment of the sovereign to his subjects and the creation of filial affection and loyalty in the hearts of the people. (17) William Duker found that Parliament consistently attempted to limit the clemency power of the king but constantly failed. (18) However, at the height of the king's power to grant clemency, Henry VIII enjoyed absolute pardon power; this plenary power was later ratified by Parliament, which granted a king unlimited authority to pardon virtually any crime, even murder. (19)
Duker did, however, describe a limitation to the king's pardon power that occurred long after Henry VIII's reign. The pardon power was restricted when Charles II, acting against the will of Parliament, ordered Great Britain's Treasurer to extend a neutrality pact to France in exchange for pecuniary compensation. (20) Meanwhile, Parliament wished to raise funds for a war against France. (21) Parliament thus impeached the Treasurer for his actions that challenged the will of Parliament but Charles II nevertheless pardoned the Treasurer during impeachment hearings. (22) As a result, Parliament ceased the impeachment hearings and dismissed all charges against the Treasurer. In response, however, Parliament limited the king's power to grant a pardon after the impeachment of an official. (23) This limitation seems, though, to have been the only limitation throughout history to be imposed by Parliament on the king's pardon power.
When Britain established the American colonies, the king entrusted the pardon power to the local governors, who were subject to the same singular limitation as the king--no pardons were allowed in cases of impeachment. (24) After the American Revolution, due to the general mistrust on the part of its drafters of such plenary power vested in an executive, the Articles of Confederation divided the pardon power between the local governor and the state legislature and sometimes even vested the pardon power in the legislature alone. (25) This distrust of a unified pardon power softened by the time the Constitutional Convention convened.
The two initial plans proposed at the Constitutional Convention, the New Jersey and the Virginia plans, at first did not include the pardon power. (26) Upon revision, the Virginia plan, authored by John Rutledge, vested the pardon power in the newly proposed executive branch, specifically to be held by the President. (27) Rutledge's position was later supported by Alexander Hamilton in Federalist 74, in which Hamilton explained that, "[i]t is not to be doubted, that a single man of prudence and good sense is better fitted, in delicate conjunctures, to balance the motives which may plead for and against the remission of the punishment, than any numerous body whatever." (28) For example, Hamilton addressed a situation where the President could quickly pardon an insurgent or a rebel to restore peace. (29) Another Convention proposal suggested that the pardon power be subject to the consent of the Senate. (30) This option was quickly discarded because some Framers believed that the Senate was too powerful already. (31) A third option by Luther Martin of Maryland proposed that the pardon power be exercised only for the benefit of convicted persons. This recommendation was promptly withdrawn. (32) At the close of the Convention, the Framers accepted the Rutledge proposal and adopted the existing impeachment limitation in Article II. Overall, "the pardon power emerged from [the Constitutional Convention] as exclusive, broad, and unfettered by the regular checks and balances of the governmental structure." (33)
IV. THE CONSTITUTION AND THE PARDON POWER
The United States Constitution states that that "[t]he President ... shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment."...
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