|
The authors of the United States Constitution gave the President a broad power to pardon criminals. The President can “grant pardons and reprieves for offences [sic] against the United States, except in cases of impeachment.” In practice, this power, as interpreted by Presidents and courts, includes a near-absolute power to forgive past crimes, lighten the severity of criminal sentences, grant amnesties to whole classes of offenders, and place conditions on the issuance of any pardon. Using their power, Presidents issued, between 1900 and 1993, over 200 pardons or other forms of clemency per year.
Although Presidents can pretty much pardon whoever they want, whenever they want, most states, in giving a pardoning power to their governors, limit the governors' power more than the power of the President is limited. Here are some examples.
For example, many state constitutions provide that only the legislature, not the Governor, can grant clemency to traitors. This is presumable based on the fear that rebels against the government might obtain improper political influence and manage to help their comrades escape deserved punishment. The President of the United States can pardon traitors without limitation, and Presidents do not appear to have abused this power. Presidents have pardoned rebels as a condition of laying down their arms, and they have pardoned rebels out of humanitarian concerns about hanging misguided people. Presidents Lincoln and Johnson pardoned former Confederates, provoking criticism from vengeful Northerners in the wake of the civil war, although the consensus today is that clemency was appropriate. President Ford pardoned a Japanese-American woman who had been convicted of treason for making broadcasts for the Japanese government during World War II. This pardon was justifiable also, since the woman had apparently been railroaded into a conviction.
One requirement contained in many state constitutions is that, before you can get executive clemency, you have to ask for it. This makes sense-you can't get a driver's license, a fishing license, or other types of permits without first making a formal request. Similarly, a request from the individual in question must precede a pardon in most states. In contrast, the President can just reach out and pardon someone whenever he feels like it, without the previous knowledge of the person he pardoned. A person who receives a pardon from the President has the legal right to refuse to accept the pardon, but a criminal serving a federal sentence may be forced to accept a Presidential shortening of his sentence.
There is another feature in many state constitutions which is relevant to U. S. Presidents. A common feature in state constitutions is the requirement that clemency be granted after conviction. This means that governors considering clemency applications have the benefit of a court record generated during the trial of the accused. This court record will often flesh out the facts and circumstances of the crime, as well as the factors which argue for and against a severe sentence. The existence of such a record is usually a great help when it comes to considering clemency.
The President of the United States doesn’t have to wait for a conviction. Most famously, President Gerald Ford gave a blanket pardon to former President Richard Nixon for any crime which 'Tricky Dick' may have committed while in office.
The President, unlike most governors, can grant amnesties. For example Presidents can pardon rebels and former rebels. Presidents have also granted amnesties to large groups of people who have violated the law, and whose prosecution would be against the public interest. President Carter's amnesty of Vietnam-era draft offenders in 1977 is an example.
Many state constitutions require clemency requests to be screened by some kind of clemency board. In some cases, the governor himself is a member of a clemency board, along with other state officials. In Massachusetts, an elected governor’s council advises the governor on pardons. In Texas, a Board has veto power over executive clemency on the part of governors, such as current President and former Texas governor George W. Bush. In California, the governor can't give clemency to recidivist felons without the approval of a majority of the state Supreme Court.
The ability of boards and courts to veto acts of executive clemency in certain states gives governors an excellent opportunity to pass the buck. In some states, however, the clemency board has a merely advisory function, and cannot veto a pardon. However, even where pardon boards serve only advisory functions, the petitioner for a pardon generally has to have a hearing before the board before the governor can act on the clemency petition. Clemency boards are frequently required to hold public hearings before making recommendations. Hearings allow the petitioner, and his alleged victim(s), to present in a public forum their opinions on the clemency request. This helps promote the idea of "government in the sunshine," and gives an opportunity for clemency-related issues to be aired in public, rather than simply in the privacy of the governor's office.
In contrast, the President of the United States is not burdened by a clemency board. The President can get advice from the Pardon Attorney's office in the Justice Department, but he can also bypass or ignore the Pardon Attorney. The fact that there is no formal committee or court that gives public hearings in clemency cases could potentially lead to abuse, which is what some people claim has happened in President Clinton's last-minute acts of clemency.
Another feature of many state constitutions is that the governor is required to make a report to the legislature whenever he exercises executive clemency. In some states, this means that the governor must also give a written explanation of the reasons for each act of clemency. The President of the United States, in contrast, doesn’t have to give explanations to the public for his clemency decisions, but sometimes he will try and justify his actions to the public, especially if the press gets on his case about a particularly controversial act of clemency. For example, President Ford defended his pardon of Richard Nixon in his memoirs. Former President Clinton defended his pardon of Mr. Rich, the fugitive financier, in a guest editorial for the *New York Times.* These explanations, however, were completely optional on the part of Ford and Clinton. They could have remained perfectly silent about their controvesial acts of clemency.
The President's pardoning power is based on the power of the monarchs of England, who could grant clemency as part of their sovereign prerogative. The power of the state governors, in contrast, is based on state constitutions which manifest a certain mistrust of absolute executive power. Governors, therefore, are under more restraints than Presidents when it comes to excusing alleged criminals from the legal consequences of their deeds.
|
| |
