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Given the many pardon scandals since the Constitution was ratified and with the most recent pardon scandals of Presidents Ford, Bush, Sr. and Clinton in mind, perhaps citizens will finally re-examine the unrestrained, absolute and arbitrary constitutional power of presidents to pardon offenses before or after trial and conviction. Of course that is highly unlikely, yet there is always hope for radical reform instead of the usual reforms that leave the causes of disease in place instead of extirpating them.



Only a constitutional amendment can remove this particular constitutional cause of the corruption of and treason to the body politic. Otherwise, the Theatre of Absurd Pardons will go on as a Really Big Show from time to time; all sorts of remedies will be proposed and tabled, As If something might done besides waiting for Godot as usual. Undoubteldy the show is not very absurd to those who take it seriously, not unless they have a truly ironic sense of humor. Be that as it may, what is called for is a degree of transcendence in order to see what a bad joke the pardoning scandals really are; only then shall the solution be possible or plausible.



One method of obtaining a more objective view of a current problem is to examine its history. Pardons have been around since strong men forcefully established themselves in seats of power. Tyrants have the power of life and death over their subjects, who live at the will of the tyrant. The subjects of tyrants have no constitutional rights; they are, under the secular doctrine of original sin, born guilty by virtue of lower status. Therefore, given the absolute power of the tyrant, whatever justice was done was done by the tyrant. The subject was indeed the subject: he was "thrown under" the tyrant, where he literally begged and grovelled for his mercy; in the East, the tyrant ritually trampled on their very necks.



We are far removed from the ancient practices today, yet we should be well aware of them and of the obvious fact that the pardoning power has been instrumental to the evolution of modern justice. Justice distributed at the discretion of rulers is discretionary justice, distinct from the retributive justice of the talion principle and the more modern rehabilitative justice which strives to reform the prisoner. Distributive justice evolved with certain religious and moral principles: for instance, that it is the duty of the tyrant to protect the poor and the oppressed, a sort protection that certainly had its allied benefits when other tyrants or lords of the land were getting out of hand and fighters were needed.



Now let us consider more recent times, particularly the critical times of political revolution against tyrannical rule, the crises when the world was being colonized, nations were being born, turned upside down and spanked into constitutional order. As every U.S. citizen should know, the framers of the Constitution encountered valid objections to the inclusion of the presidential pardoning power as well as other powers that would make the president akin to a king; but the framers, unwilling to forsake the vestige of the traditional royal power, overcame those objections. The framers offered an alternative to absolute presidential pardoning power, in the form of a board of pardons such as the ones we are familiar with in some states.



The primary objection to limiting the presidential pardoning power was that the president might need it for emergencies. For instance, in today's terms, the president might want to pardon a terrorist in exchange for information on precise location of a nuclear device set to devastate Miami within three hours. Of course that sort of emergency could be constitutionally provided for; other pardons could be referred to a board of pardons, which could veto presidential pardons and approve petitions for other pardons and send them along to the president, who could, in turn, sign the pardon or not.



Most of us would disapprove of the pardoning power being used by presidents for personal reasons: to shelter their friends, associates, themselves, or anyone willing to pay a sufficient bribe, from prosecution and imprisonment



The anti-Federalists who objected to the pardoning power had the worst sort of tyranny fresh in their minds, the tyranny of British tyrants. Indeed, a loyal British subject spoke on the subject of pardons even more acutely than the framers of the U.S. Constitution. A leading radical reformer of his day, he was nfluential in the Americas and in Europe. His life's work was the creation of a humane legal system. His constitutional code was hawked all over the world to the newly forming nations. Ironically, he was a friend of Aaron Burr: President Jefferson used the presidential pardon to pardon in advance a witness against Burr in order to get the witness to testify.



The English reformer and the father of Utilitarianism was Jeremy Bentham (1748-1832). We in the United States are indebted to him for his radical influence. He is not widely read today; his writings are not the "easy ready" we might prefer. Indeed, his style is stuffy and sometimes very obtuse; yet, if the reader is patient, his way of thinking has its charms. The reader will his remarks on the subject of pardons below. Bentham's contrarian view at the time is based upon the idea put forth by Beccaria that, under a perfect system of justice, no pardoning power is needed at all. On the other hand, where justice is imperfectly applied, the pardoning power was instrumental in mitigating the injustice of powers subordinate (lords, officials, &Co) to the king, hence it was deemed instrumental to the equitable distribution of justice where all were presumably equal under the law.



Many experts believe the pardoning power of the president must be retained because our system is far from perfect. For instance, the uniform determinate sentencing system is unfair: a young woman gets thirty years for buying non-prescription ingredients for the drug kingpin's meth lab in one state, but he is paroled after serving two years. Nevertheless, the abuse of the power calls for not only reform of the criminal justice system itself, but also for the radical reform of the pardoning power. That being said, there is more serious matter to consider than the selling of pardons: treason in the broad sense of those concerted acts against the sovereign will and the liberties of United States citizens. For example, the Iran-Contra Affair, the China Campaign Contribution Affair, and so on.





Jeremy Bentham's Opinions on the Pardoning Power



THE KING IS GOD ON EARTH:



"Wherever, with a title such as that of king. a monarch has place,--so it is that, under the influence of fear and hope, imagination has exalted him into a being of superior order--a sort of god. In this god upon earth, the people behold the god of their idolatry:--image, deputy, and representative, of the God which is in heaven. As such they worship him....In the hands of the God of heaven, is the power of life and death: so accordingly is it in the hands of this god upon earth...."



"The more oppressive the tyranny of which the law is thus made the instrument, the greater is the quantity of good capable of being done by the non-exercise of it; and the greater the quantity of good capable of thus being done, the greater the quantity of praise capable of being purchased. Thus it is that in a monarchy not only is praise elicited by the exercise of tyranny, but the more enormous the tyranny the greater is the quantity of praise thus undeservedly and insidiously obtained.



"Look at the Roman emperors of old times! Look at the oriental despots of all times! Never were a Titus or a Trajan so much lauded as a Nero or a Domitian. Life and death being at his option, the monarch receives laud for every subject he abstains from putting to death. To the Almighty in heaven man is indebted for his creation; to the Almighty here on earth for his preservation.



"Thus combined with cruelty, with insincerity, with artifice, and with fraud, no wonder if to long-robed sycophants the power of pardon should be the subject of such ecstatic eulogy: by one class held up as the most valuable jewel of the Crown; by another, even to adoration, as being an attribute communicated by the one God to express image and representative here on earth...To pardon is to be a habitual tyrant; to show mercy is to have exercised tyranny....Tyranny is itself without a mask; pardon and mercy are tyranny under a mask."



"Rightly understood, all mercy supposes tyranny--every claim to the praise of mercy is a confession of tyranny: take away tyranny, that which is called mercy, if beneficially exercised, nothing more than

justice."



"Mercy and justice are incompatible. In a government where there is room for mercy, it is because justice is overruled by cruelty. As mercy is the subject of praise, the more cruel the tyranny, the greater is the room made for praise."



"In the import of the word mercy is included, the supposition of the existence of a power of producing pain and pleasure--of producing it in cases, in which the production of it is not required by justice....Mercy is of the number of the attributes of the God in heaven; it is of the number of those, in which, by law, he has for partner, this his deputy--the god upon earth. Thus mischievous is this same word mercy. In a Penal Code, having for its first principle the greatest-happiness principle,--no such word would have its place."



"To the vocabulary of tyranny belongs the word mercy...."



"The word justice...matches with the word deserved....Justice is exercised by the application of punishment on the occasion on which, and in the quantity in which, it is deserved. In this case, if mercy be exercised, it is in opposition to, and at the expense of justice: in so far as mercy is exercised, justice is not done....Under a government which has, for its actual end, the greatest happiness of the greatest number, thus it is that mercy is unknown....Under a representative democracy--under the government of the Anglo-American United States, for instance--mercy is unknown, or at least might be so with great advantage, and therefore ought to be unknown. Under that government, for a functionary to stand up on any occasion and say--I will, on this occasion, show mercy, would be as much as to say--the power of a tyrant is in my hands, but on this occasion I will not exercise it."



THE EXCEPTION; RESTRICTIONS ON PARDONING:



"There are cases in which the power of pardoning is not only useful, but necessary. In all these cases, if the punishment were inflicted, the evil produced would exceed the good....If the legislator could have know that certain individual cases would or would not be included in the general case in which he would have wished that the punishment would cease, would act unwisely were he to rely upon any other person for its cessation. For why should he give to another a power to frustrate his designs? But he does not possess this knowledge unless, in quality of legislator, he acts also in that of a prophet. It follows, therefore, that he must rely on some other." He speaks of prosecutorial discretion without knowledge of the judge in cases where the punishment would be unwarranted by the circumstances, say where the action is being brought by ill-will founded on a private quarrel, but in murder cases prosecutorial discretion should never be allowed.



Publicity: "No pardon granted, but on condition--that, to the fact of its being granted, and the grounds on which it is grounded, the same publicity be given as to the fact, and the ground of the conviction."



Ground: Innocence. "Since the conviction, discovery is made of the convict's non-guiltiness."



Ground: Special Service."On condition of the receipt of the pardon, and not otherwise, special service in any shape rendered, or on adequate grounds expected to be rendered, by the convict; such service not being otherwise obtainable on such good terms...." One such special service may be the provision of information necessary for the conviction of an offender for a more egregious offense.



Ground: Displeasure of the People or of a Foreign Power.



CONCLUSION: GENERAL DANGER OF PARDONING



"From pardon-power unrestricted, comes impunity to delinquency in all shapes; from impunity to delinquency in all shapes, impunity to maleficience in all shapes; from impunity to maleficience in all shapes, dissolution of government; from dissolution of government, dissolution of all political society."





Source:



THE WORKS OF JEREMY BENTHAM, Published Under the Superintence of His Executor, John Bowring, New York: Russell & Russell, 1962