On the Pardon

Although we're dealing with a commuted sentence here and not a full Presidential pardon, we're really treading in the same water. And that's the traditional, constitutionally approved, power of the executive to grant clemency. Which, you know, seems like an open invitation for abuse. Especially when you have a pack of cheats and liars in office who want to cover-up their crimes and/or reward their political friends. I'm not even talking about today but about things like Iran-Contra or the one-foot-out the door pardons that closed out the Clinton presidency. I can remember it being used several times but never for anything like the public good.

And in light of today's psuedo-pardon there are, understandably, going to be a lot of calls for abolishing or restricting the pardon power (One I've liked suggest that the President be unable to pardon anyone he appoints to office. Doesn't stop things like Ford pardoning Nixon but, you know, it's a start.) but I remain skeptical.

Just like the law would prefer to free a hundred guilty persons in order to preserve the liberty of that one, unlucky innocent one the pardon is there not for all the cases when it's used wrong but for those few cases where it can be used right. The idea of clemency exists because sometimes human agencies get it wrong. The courts convict the wrong person, the legislature writes the wrong rules, situations arise that no one anticipated so far outside the boundaries that there's no good, legal way to handle them. In those cases, the pardon is a safety valve. It persists to stop abuses in other areas.

Take, for example, the ticking bomb scenario. Now, many people have used this to justify torture and shredding our laws and traditions in order to cope with the extraordinary circumstances of having an unco-operative suspect with the knowledge to stop an event with only a limited time to extract that information and act on it – I've typically heard it constructed as a nuclear bomb located somewhere in the city, primed to detonate in minutes if not hours, and you've got your hands on someone who knows where it is. It's been argued, again, that we need to have our laws allow for the kind of desperate methods that would no doubt be made by prudent, responsible guardians of our law and safety (Not that I think torture would work under such circumstance, that's a whole different post. Just that I think it's reasonable in that case that someone would at least suggest it.). Methods that would, under normal circumstances, be unthinkable and which we've drafted laws and signed treaties to restrict. But we don't need to. We've never needed to. Because we have the pardon. If, say, Jack Bauer had only minutes to disarm a nuke that his daughter and a puma kitten were strapped to and felt the need to force the evil terrorists to listen to Barbara Streisand in order to force the location from their lips in the face of common decency and the law then he doesn't have to worry about being punished for it. If he really does save that many lives and prevent that much tragedy then there's not an executive in the land that doesn't issue a pardon. Even if a court's hands are tied and forced to prosecute based on the letter of the law.

Jack Bauer can always be pardoned for doing something extraordinary in an unlikely situation that the law doesn't adequately cover. And so can anyone else.

It's for reasons like that we still have a pardon.

And it's because the pardon can be so easily abused that we try to be extremely careful about just who we let wield it. If you don't like the way people have used the pardon in the recent past then there's a much easier fix that tinkering with one of the cornerstones of our political system: Stop letting people like that get elected to office.

And if you don't like the way the people in power currently are using it, there's a perfectly good mechanism for solving that, too. As for what that is, well...

If you want to talk about fixing that, well, I'll listen.