Conclusions

TheSequitur.com Editorial Board
July 12, 2007 

[Click here for dissenting opinion.]

[I]t’s time to adopt of a pardon system that reflects our democratic republic – not, Great Britain’s 18th Century monarchy. A Georgia man is serving a mandatory 10-year prison sentence for aggravated child molestation for having consensual oral sex with a 15-year-old girl when he was 17 years old.

Genarlow Wilson, now 21, was the unfortunate victim of a law that targeted sexual predators preying on minors.

Since then, the state legislature has undone the law that made Wilson a felon; the law’s author is seeking his release and, just last month, an appeals judge eliminated his prison sentence, reduced the conviction to a misdemeanor and declared the case “a grave miscarriage of justice.”

Guess what? Wilson is still in jail, pending an appeal by state prosecutors. I. Lewis “Scooter” Libby, on the other hand, is not – nor will he ever be.

Without even a request from Libby, President Bush this month commuted the 2 ½ year prison sentence of the former Vice President Chief of Staff, who still remains a felon convicted of perjury and obstruction of justice in a case involving the outing of a CIA intelligence operative. But now, thanks to the president, he will never spend a single day in jail for his current crimes.

Conversely, Wilson has spent more than 730 days behind bars – over 18,000 hours more than Mr. Libby’s zero. Even hotel heiress Paris Hilton served 23 days in Los Angeles County lockup for violating probation.

The contrast between the Wilson and Libby cases is a prime example why the American people need to put a cap on the president’s unlimited, unrestrained pardon pen. More often than not, the clemency system in this country is one where those who receive pardons and commutations are those with access to the president, a bridge whose roads are paved with cash and whose beams are hung by social networks and aristocratic privilege.

It’s wrong to think the aberration began or will end with this president. President Clinton pardoned his half-brother as well as fugitive financier Marc Rich, President Carter commuted the sentence of Watergate conspirator G. Gordon Liddy, President Ford pardoned President Nixon for his role in the Watergate break-in and Nixon commuted the sentence of the notorious gangster Jimmy Hoffa.

Unsurprisingly, the pardon power is a vestige of America’s monarchial past. When our Founding Fathers framed our system of government, they included an executive trap-door that allows the president to override any judicial sentencing as ‘check’ against instances of judicial failure. But that intent is vague in the text of the Constitution and subsequently, it has been subjected to interpretation oscillating from one extreme to another.

Now, it’s time to adopt of a pardon system that reflects our democratic republic – not, Great Britain’s 18th Century monarchy. One solution is to provide a check to this unbalanced system. We recommend an independent judicial board to review all applications for clemency. In this scenario, the president could only grant clemency from the pool of applicants the board of rotating federal judges selects, limiting the free dealing of presidential pardons and providing for a fairer, less capricious administration of justice.

Even hotel heiress Paris Hilton served 23 days in Los Angeles County lockup for violating probation.This new system would serve to accentuate the benefits of the pardon system. Those who have the privilege of granting clemency would still retain that privilege, but the panel would be able to provide those authorities of instances in the officially submitted pardon requests they think the judicial system failed. The goal would be to have an entity independent of the White House that can provide counsel on which cases represent situations where egregious errors were made that eliminated the ability of the system to properly serve judgment. Through this, we will also widen the population typically considered for clemency.

Whatever the solution, it will inherently be better than the unfettered, unrestrained and unbelievable pardon system we have now that has “Scooter” Scot free and Wilson walled in a prison cell.

It is fitting to end this question where it began more than 200 years ago, when an anti-federalist writer, ironically named George Clinton, warned of the dangers in the pardoning power in the U.S. Constitution writing, “…the unrestrained power of granting pardons for treason … may be used to screen from punishment those whom he (the president) had secretly instigated to commit the crime, and thereby prevent a discovery of his own guilt …”

Just because the clemency system has a long history and cyclical traditions doesn't mean we shouldn't change it. Our goal should never be to maintain democracy, it should always be to improve democracy. One of the greatest services we can do for our country is to work to improve it, to make it the place our forefathers dreamed of. We've amended the Constitution before, and we can do it again. And with the right analysis, foresight, and insight, we might be able to change it to serve our country better than it already does.

• DISSENTING, Executive Editor Justin Hemlepp:
  

Amazing. With a mere three voting members present for the meeting - a bare minimum for quorum (I stepped in after the fact to dissent), this Board decides it’s best to amend the U.S. Constitution and establish a fourth branch of government.

[I]t would have been more interesting to address the fact that while a commutation allows “Scooter” Libby to continue his proclamation of innocence, a pardon would have required that Libby admit his guilt.The Board proposes that a special panel of judges review the rulings of lower courts before allowing the president to pardon someone or commute a prison sentence. One supposes these judges would occupy an ultra-constitutional plane like Vice President Dick Cheney, who has declared himself outside and above all branches of government. More accurately, if the Board’s plan should be persuasive, we would wind up with five branches of government: the legislature, the courts, the president, Dick Cheney and TheSequitur.com Pardon Review Board.

Unfortunately the Board ignores the simple reality that there already are judges situated to review the holdings of lower courts. We call them appellate judges, and they hear a lot of cases. And the likelihood of a group of special judges looking askance at lower court rulings is about as likely as it already is in the appellate courts.

Likewise, the president has a staff which reviews pardon applications referring to him or her only those which are meritorious. (Defining “meritorious” from one administration to the next is admittedly troublesome, but that is not the point.) Of course, a president’s decision to pardon is his or hers alone, and, ironically, that would not change under the Board’s proposal.

Clearly the Board’s majority has a problem with the pardon power itself, owing to its heritage as an element of the royal prerogative. (Note that it is a power also enjoyed by state governors.) Ultimately, it is not at all unreasonable to be uncomfortable vesting that kind of power in one person, particularly after justice has run its course. However, what is unreasonable is pretending that adding a layer of constitutionally muddy bureaucracy between the president and the pardon authority will assuage that discomfort.

While I would vigorously dissent, if the Board wants to obliterate the pardon power it should just come out and say so. Otherwise, it would have been more interesting to address the fact that while a commutation allows “Scooter” Libby to continue his proclamation of innocence, a pardon would have required that Libby admit his guilt. 
[Wepin, USDOJ, UPitt, Silicon-Valley, NYTimes, CanadaEast, SeattleTimes]