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.
The 37 pardons President Clinton issued this year send a message of forgiveness to people whose lives have eclipsed the crimes they once committed. In one case--that of Freddie Meeks, a black sailor court-martialed in a racist proceeding during World War II for alleged mutiny--the pardon is recognition that the conviction was a terrible injustice. The other pardons are formal clearings of the slates for people who, long after they have served their sentences, the administration has decided should no longer be defined by their offenses. This is an unobjectionable use of executive clemency. Unfortunately, it has become the predominant use of a constitutional power that was intended to offer the country something more than goodwill gestures.
As Mr. Hamilton's words make clear, the Founders wrote the pardon power into the Constitution as a kind of palliative on the excesses that any criminal justice system necessarily produces. Until relatively recently, presidents used it far more muscularly than now. Even as Congress federalizes more and more crimes, increasing the potential need for a robust clemency power, presidents have become increasingly timid in its use. This is understandable. While clemency and pardon actions can cause political headaches for a president--note the FALN terrorists--presidents don't tend to take political hits for letting guilty people stay in jail.
Mr. Hamilton's phrase "unfortunate guilt" correctly implies that not all guilt is created equal. Is there not a single person in the ever-growing federal prison system deserving presidential mercy? Given the harsh mandatory minimum sentences that govern drug offenses, including nonviolent offenses, there must be many cases where presidential clemency would be a powerful tool for justice. The president should not routinely second-guess the court system. But given the desultory use of this constitutional power over the past 20 years, there seems to be no danger of that. The danger, rather, is that a valuable check on the justice system has wilted into symbolism.