The Forgotten Power

Tuesday, January 3, 2006

PRESIDENT BUSH is a big fan of presidential power -- from warrantless wiretapping to conduct just short of torture to locking up American citizens without charge or trial. But there are some powers of his office that this president likes to ignore. He still has not exercised his veto, for example. And he prefers to forget that Article II of the Constitution gives him the "Power to grant Reprieves and Pardons for Offenses against the United States." Mr. Bush, who famously proclaims himself a "compassionate conservative," has shown mercy fewer times than any president in recent history (though he has granted more pardons than President Bill Clinton had at the comparable point in his presidency). He has granted clemency less than a fifth the number of times of presidents Jimmy Carter, Ronald Reagan or Gerald Ford, who served not even a full term in office. His record on the subject is dismal.

In December Mr. Bush issued 11 pardons, bringing his total to 71 pardons and sentence commutations. The recent actions follow his usual pattern. All involved old crimes; the most recent conviction is a decade old, and one happened way back in 1950. Most involved minor offenses -- a bank robbery from 1964 being a notable exception. None required the president to take a stand of any kind. They involved, rather, no political risk.

All of which is a far cry from the manner in which the Framers of the Constitution envisioned the power. Alexander Hamilton, that champion of the executive branch, emphasized that the "benign prerogative of pardoning should be as little as possible fettered or embarrassed." Why? Because "the criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel." His words were prophetic. For little could Mr. Hamilton have imagined a federal prison population measured in the hundreds of thousands or the ferocious drug sentencing regimes that have driven its growth.

We don't doubt the value of pardons to those who receive them. But the power of mercy should be grander. Is there no person in prison Mr. Bush believes to be innocent or, short of that, sentenced too harshly? Is there no one convicted under a law the president regards as unjust or misapplied? Is there nobody, other than those long since released, whose rehabilitation he believes worthy of presidential grace? The pardon power was imagined as a lively check on the criminal justice system, a way for simple justice to prevail over all of the legalisms and procedures of the courts. To be sure, this is a check that some previous presidents have abused, thereby casting the power into disrepute. But Mr. Bush's timidity, implying as it does that any aggressive use of clemency is inappropriate, ironically has the same effect. Continuous neglect of a legitimate power is itself a form of abuse.

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