“Get Rid of Pardons”

The title of this post is the title of this essay authored by Chad Flanders that I just saw on SSRN. Here is its abstract:

Pardons and commutations are in theory compatible with the rule of law, if we see them as fixing things when the rule of law has not been followed-when a person has been wrongly convicted, or sentenced for too long.  Pardons and commutations, in these circumstances, act as a safety valve for the criminal justice system and make sure that system punishes justly.  But pardons and commutations can also be abused, when they are used to help friends or allies regardless of the underlying justice or fairness of their convictions.  We may have reached a tipping point with the recent pardons from the Biden and Trump administrations-who seemed to have pardoned in this mold.  The result is that with many of these pardons and commutations, the pardoning power is being used as a symbol of executive power-of a kind of kingly supremacy-that is fundamentally incompatible with a liberal democracy.  When the pardon power comes to mean this, it may be time to get rid of it.