The Power to Pardon

Posted Nov. 15, 2009, at 6:06 p.m.

Pardoning has gotten a bad name, and a recent visitor to Maine hopes to do something about it.

Kurt L. Schmoke, dean of the Howard University School of Law and former mayor of Baltimore, told a gathering of lawyers and law students at the University of Southern Maine that it was time for presidents and governors to rethink the role of the pardon and use that power to remedy excesses in the criminal justice system. He delivered the annual Frank M. Coffin Lecture, named for the retired judge of the 1st Circuit Court of Appeals.

Dean Schmoke noted that recent pardons seemed to be received only by the well-connected and influential, as in President Bill Clinton’s pardon of financier Frank Rich and President George W. Bush’s commutation of the prison sentence of Lewis “Scooter” Libby, Vice President Dick Cheney’s former chief of staff. He said that presidents had been cautious in using the pardon since Gov. Michael Dukakis lost his 1988 presidential bid partly because of political commercials condemning his pardon of Willie Horton. He could have added the turmoil over President Ford’s pardon of Richard Nixon.

“Rather than viewing with trepidation the opportunity to pardon or commute, the executive should welcome the chance to review annually the operation of the justice and correction systems to see if there is a need to ameliorate the often coldly objective application of criminal laws,” he said. He suggested the flawed “war on drugs” was a good place to start such a review.

Dean Schmoke recognized that presidents and governors are reluctant to exercise clemency powers and expressed the hope that “citizens will encourage our leaders to carefully, thoughtfully and regularly exercise the power in the future.”

His lecture drew in part from a 2007 article by Margaret Colgate Love titled “Reinventing the President’s Pardon Power.” She recalled that Alexander Hamilton called pardon a “benign prerogative” and that Supreme Court Justice Anthony Kennedy urged that the pardon process be “reinvigorated” in response to “unwise and unjust” federal sentencing laws.

Ms. Love, a former federal pardon attorney now in private practice in Washington, described a “web of invisible punishment” and “internal exile” suffered by federal convicts long after serving their prison terms. Many recent laws exclude people with criminal records, and some states withhold basic civil rights including the right to vote.

She attributed the decline in pardoning to the emergence of the theory of “just deserts” (deserved punishment) embodied in the 1984 Sentencing Reform Act and to the “war on crime,” as well as to the hostility of prosecutors toward pardoning.

Now it’s up to presidents and governors to restore pardoning to its historic role and to lawyers, judges and the general public to rethink the matter in the interest of justice for all.

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