A call for a broader pardon perspective
Over at the National Journal, Jonathan Rauch has this strong new commentary entitled “Pardon Libby? Maybe, But Not Alone.” Here are some highlights:
Will President Bush pardon I. Lewis (Scooter) Libby? Everyone is wondering. But it is the wrong question. The right question is: Will he pardon anyone else?…
Here is a fact that historians may note with puzzlement: Bush, who is obsessively protective of unilateral executive power in every other sphere, has all but abandoned the most unequivocally unilateral power that the Constitution gives him. Presidents can grant pardons and commutations to anyone they please, for any reason or for no reason at all. That’s because the Founders understood the excesses of bureaucratic justice. “The criminal code of every country partakes so much of necessary severity,” Alexander Hamilton wrote, “that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel.”
Prosecutors are paid to be relentless. Courts are bound to go by the book. The Supreme Court cannot reach down and undo a single sentence without potentially overturning a whole branch of law. Thus the Founders ultimately wanted justice to be acceptable and accountable not to a system but to an actual human being, a solitary conscience. That conscience belongs, at the moment, to Bush, who doesn’t seem to overtax it.
According to Justice Department statistics, Presidents Truman through Ford granted a quarter or more of clemency petitions. The total fell to 12 percent under President Reagan, and then into the mid-single digits under Presidents George H.W. Bush and Clinton. Now, under George W. Bush, it has dropped to less than 2 percent.
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