We generally only see the pardon and clemency power discussed in a political campaign when a challenger is excoriating an incumbent governor for using the power too liberally. It’s rare to see a candidate criticize an incumbent for issuing too few pardons. But it just happened in Maryland:
Republican Larry Hogan says a governor’s authority to commute sentences and pardon prisoners is an important power that he would rejuvenate if he is elected governor.
Hogan spoke in an interview with reporters of The Associated Press on Monday. Hogan says he believes Gov. Martin O’Malley’s administration hasn’t made pardons and commutations a priority of his tenure. Hogan says while he considers himself to be a tough law and order candidate, there are people who need the pardon and commutation process. He says he would seek help former Gov. Robert Ehrlich’s help in using the power more.
Ehrlich, a Republican, made the executive branch power a priority.
The power to pardon and grant clemency is widely misunderstood. The original intent, at least as it was laid out at the federal level in the Constitution, was for the executive to serve as a stopgap against any injustices that may slip through the system. Here’s Alexander Hamilton explaining the pardon power in Federalist 74:
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. As the sense of responsibility is always strongest, in proportion as it is undivided, it may be inferred that a single man would be most ready to attend to the force of those motives which might plead for a mitigation of the rigor of the law, and least apt to yield to considerations which were calculated to shelter a fit object of its vengeance.
There are some exceptions, but that generally isn’t how the power is used today (to the extent that it’s used at all). There’s just too much political risk for a governor or president to pardon or grant clemency to someone who might have been wrongly convicted. Instead, the power today is overwhelmingly used as a way to confer redemption on people who have admitted to their crimes and, usually, have already served their sentences. That, or it’s used for political patronage.
It’s also nice to see this talk from a Republican. President Obama and Attorney General Eric Holder have been slammed by some Republicans after announcing their intent to commute the sentences of scores of nonviolent drug offenders. It’s almost comical that in the age of the imperial presidency, one of the more strident pushbacks against presidential power we’ve seen in years was over the exercise of a power that (a) demonstrates mercy, (b) is meant to be a check on abuse of power and (c) is explicitly authorized by the Constitution.