Why do we still have Pardons?

Let's imagine a situation, taking the recent Boston Bomber example.

So, the man stands infront of a jury of his peers, as the judge reads out the sentence. The evidence was beyond question, the defense tried to state his clients mental state demanded a mitigated sentence, but that ploy failed. Guilty, life imprisonment, no chance of parol. The federal government had considered trying for the death penalty, but decided it simply was not worth the legal headache of fighting the legal battle of the state that has abolished the death penalty and not give the bomber something to appeal over.

But, what is this? A messenger walks through the door, holding a letter, that he said was just faxed over. It is signed by the president. Full pardon, president's signature. Later that night, president has a press conference to say yes, he pardoned the bomber, and then quickly left before the reporters could ask any question.

The bomber walked out the court a free man, not a single thing any police, judge, or jury can do about it.

Is this situation likely? It is so unlikely it is safe to safe it is next to impossible. The bomber would be dead within a weak, and the president and the first family prospects are not looking so hot, even with Secret Service protection.

Still, it is 100% legally possible.

The President of the United States, like many other head of states, can issue a full pardon or granted clemency (basically reduces sentence), not as part of the constitution but as part of a Supreme Court ruling. It doesn't matter what the crime is, who did it, or even if the person has been charged or been dead for a century, that person can be given a get out of jail card.

People have committed manslaughter (such as Alexander William Holmes by John Tyler), those part of the conspiracy to kill Lincoln, plus many other crimes including mutiny and treason. Many politicians and the wealthy have also been granted full pardons, look through the list and you can find all kinds of shady deals by government officials swept away by the stroke of the president's pen. The most famous of these being, of course, Richard Nixon.

I have to ask, what is the point of giving the Executive branch such broad power on rulings done by the Judiciary branch? It is so open to abuse, and abused it has been. Not even going through individual cases as above, the president could nullify laws and regulations the passed Congress at a 2/3rd majority by making blanket pardons on anyone charged with breaking the new law or regulation.

Yes, it has been used to undo unjust convictions or undo badly written laws, but that is what the appeal process is for. A person can be exonnirated from any crime if evidence found after their trial proves they couldn't of committed the crime. Laws can be appealed.

Why does the president of the United States, or any head of state, be given such control on guilt and innocence?

So he can pardon a turkey from having it's head cut off every year. Other than that I have no idea.

Sounds a lot like the plot for john grishams "The broker".

Anyway OT: I think its pretty weird that the president has the power to pardon people. It should be up the judges.

MrTub:
Sounds a lot like the plot for john grishams "The broker".

Anyway OT: I think its pretty weird that the president has the power to pardon people. It should be up the judges.

Kind of. It's not really a judicial power at all (pardoning a sentence is not the same as issuing one).

The theory is that because the executive is in charge of enforcement, he has one particularly unique power that comes with it. While they are technically bound to enforce any law passed by the legislature, they are offered an out after the judicial process has been completed and the crime's punishment finalized (i.e. the pardon). The idea is that sometimes one's crime is forgivable or understandable, and for them society (represented by the executive) can offer them a pardon for the wrong they have done. In other cases, it's for crimes that were taken off the books (such as prohibition in the case of Olmstead or Dale). The easiest way of thinking about it is to compare it to parole procedures with more leeway in the decision making process.

Many of the famous pardons in the US fall into the category of illegal and impermissible under the law, but understandable (such as blanket pardons for LDS members who practiced polygamy, Tokyo Rose, and Vietnam anti-war draft dodgers).

As far as I can tell, the Pardon is used when the President feels that a case is being held to the letter of the law whilst ignoring the spirit.

Usually though, there are checks and balances involved. A President couldn't just pardon a convicted terrorist and let him off scott free, he'd find himself without allies in Washington and lose the ability to influence policy. So a President who found himself abusing the Pardon would find himself with little other things he can get away with.

Not G. Ivingname:

Why does the president of the United States, or any head of state, be given such control on guilt and innocence?

Quick answer: power. People who run the place like little dodges and wheezes conducive to getting things done.

There can be good reasons for this sort of thing. Someone who has committed a crime might be useful to the nation in a way that him remaining a criminal prevents. For instance, imagine you've locked a traitor up, but he offers up vital information on his superiors - if you'll let him go. That's a decision you may well think worth taking. Another possibility is that people may have been convicted under laws or legal processes that were later deemed faulty or unfair, and it's a way of making good the effective wrong that was done to them.

I think you're absolutely right that the process is open to abuse. Most obviously, I suspect some people are scapegoats for criminal activity done further up the hierarchy, and they get pardoned for agreeing to take the fall instead of their bosses. The obvious limitation on abuse is that poor use of pardoning will bring the head of state (and in a representative democracy by extension his party) into serious disrepute.

I suppose the answer is that sometimes, even after the legal process has run its course and a sentence has been duly handed out, actually going through with the sentence isn't within the public interest, or it'd set an undesirable precedent, or because an act of compassion would be a more powerful gesture.

I was actually reading about one such pardon yesterday: http://en.wikipedia.org/wiki/Kim_Hyon_Hui

Kim Hyon Hui was one of the North Korean agents responsible for bombing a passenger flight, killing 115 people, in 1987. Completely indoctrinated by her training and the North Korean propaganda, she believed that her actions were a necessary step towards freeing the "oppressed, poverty-stricken" South from their manipulative American overlords. It was only after her capture (she attempted to commit suicide by swallowing a cyanide capsule hidden within a cigarette, but this was snatched from her mouth just before she could bite it) when she was shown the reality of life in South Korea that she realised the enormity of the lie she had believed, and the gravity of her actions, and she showed profound remorse. Although sentenced to death, she was pardoned by the South Korean president.

While abuse of the pardon is 100% legal major abuse is nowhere close to likely. The way I see it the benefits for the pardon are outweighed by the potential of abuse.

While the pardon couldn't be prevented could the president be impeached? There has to be a law on the books for abuse of power, effectively preventing a mass pardon like you said.

That doesn't effect those already released but there has to be another tangential charge that a person just released could be charged with. Like why would you add a weapons charge to a terrorist plot and a cop killing, it may not be life but it's enough to get this boston terrorist off the streets for a little while.

Agema:

Not G. Ivingname:

Why does the president of the United States, or any head of state, be given such control on guilt and innocence?

Quick answer: power. People who run the place like little dodges and wheezes conducive to getting things done.

There can be good reasons for this sort of thing. Someone who has committed a crime might be useful to the nation in a way that him remaining a criminal prevents. For instance, imagine you've locked a traitor up, but he offers up vital information on his superiors - if you'll let him go. That's a decision you may well think worth taking. Another possibility is that people may have been convicted under laws or legal processes that were later deemed faulty or unfair, and it's a way of making good the effective wrong that was done to them.

I think you're absolutely right that the process is open to abuse. Most obviously, I suspect some people are scapegoats for criminal activity done further up the hierarchy, and they get pardoned for agreeing to take the fall instead of their bosses. The obvious limitation on abuse is that poor use of pardoning will bring the head of state (and in a representative democracy by extension his party) into serious disrepute.

You, you can get plea deal if you have vital information that you can testify in court about, or some info needed for nation security, no presidential pardon necessary

Shaoken:
As far as I can tell, the Pardon is used when the President feels that a case is being held to the letter of the law whilst ignoring the spirit.

Usually though, there are checks and balances involved. A President couldn't just pardon a convicted terrorist and let him off scott free, he'd find himself without allies in Washington and lose the ability to influence policy. So a President who found himself abusing the Pardon would find himself with little other things he can get away with.

Of course, the president can and often does just make a whole lot of pardons on the last days of their presidency, at which point they are general going to be forced to retire (and generally retire from politics completely) so won't have any influence on policy anyway.

In part because unfortunately what the judicial system does, and justice, do not always have a damn thing to do with each other.

Sounds problematic indeed. We have separation of powers for a good reason. If the justice system can't be trusted to deliver justice, how could the president be trusted to? One man? One very flawed, living-in-a-bubble, perhaps emotionally affected man? I'll have to look up whether such a clause exists in German law, but I'd honestly be surprised if Merkel or Gauck or someone had that sort of ability. And I don't really think they should, either.

Jack Bauer needs them to barter with terrorists.

Skeleon:
Sounds problematic indeed. We have separation of powers for a good reason. If the justice system can't be trusted to deliver justice, how could the president be trusted to? One man? One very flawed, living-in-a-bubble, perhaps emotionally affected man? I'll have to look up whether such a clause exists in German law, but I'd honestly be surprised if Merkel or Gauck or someone had that sort of ability. And I don't really think they should, either.

According to wikipedia, the president does. There are limits, but doesn't explain what they are:

Germany
Similar to the United States, the right to grant pardon in Germany is divided between the federal and the state level. Federal jurisdiction in matters of criminal law is mostly restricted to appeals against decisions of state courts. Only "political" crimes like treason or terrorism are tried on behalf of the federal government by the highest state courts. Accordingly, the category of persons eligible for a federal pardon is rather narrow. The right to grant a federal pardon lies in the office of the President of Germany, but he or she can transfer this power to other persons, such as the chancellor or the minister of justice.

In early 2007, there was a widespread public discussion about the granting of pardons in Germany after convicted Red Army Faction terrorist Christian Klar, who was serving six consecutive sentences of life imprisonment, filed a petition for pardon. President Horst Köhler ultimately denied his request.

For all other (and therefore the vast majority of) convicts, pardons are in the jurisdiction of the states. In some states it is granted by the respective cabinet, but in most states the state constitution vests the authority in the state prime minister. As on the federal level, the authority may be transferred. Amnesty can be granted only by federal law.

http://en.wikipedia.org/wiki/Pardon

Skeleon:
Sounds problematic indeed. We have separation of powers for a good reason. If the justice system can't be trusted to deliver justice, how could the president be trusted to? One man? One very flawed, living-in-a-bubble, perhaps emotionally affected man? I'll have to look up whether such a clause exists in German law, but I'd honestly be surprised if Merkel or Gauck or someone had that sort of ability.

I would be willing to bet Germany does have some form of pardon law, although who may exercise it is another matter.

Pardons are generally granted where someone is accurately convicted by the legal system, where the judiciary has done its job properly. (If the justice system has erred, the appropriate process is usually appeal or retrial). In such cases, a pardon is likely not a criticism of the justice system or a statement/implication it has failed.

Pardons usually reflect that there is some other problem with a conviction: massive moral outrage, understanding that the law was flawed, extraordinary circumstances of national interest, etc. Consequently, pardons are actually outside the remit of the judiciary, and best issued by a body suitably responsive to these sorts of reasons. Which probably means the government, at whatever level.

The way I understand it, pardons are a mechanism for cases where the person who was convicted and sent to do the time could "repay their debt to society" a lot more effectively were they not in prison. Well, and turkeys, but that's just a PR stunt.

Say there's a problem with disease, say "killitis" that's been wrecking the population. One of the lead medical resercers working on containing and curing killitis got drunk one night and then caused a car accident that resulted in several deaths. They're tried and sentenced to decades in prison. Were they responsible? Yes. Were they guilty? Yes. Do they deserve the punishment? Hell yes, those deaths were on their hands. But, the benefits of letting them continue the development of the cure for killitis far outweigh the damange they have caused, and it's in the interest of the society to let them work on it, even if the cost is having to let them go.

On the other hand, if a foreign intelligence agent was compromised, tried and convicted, but has information that could solve an immediate crisis and save the life of a couple of political figureheads, letting them go is iffy, because they most likely also have information that could, in the long term, cause a lot more harm than would be averted in the short-term by letting them go.

Pardons, as I see it, come into play in case when someone is tried and convicted, but their crime resulted in a horrible lapse of judgement, a mistake, if you will, one you can trust they won't repeat, and they have the skills and abilities to do a lot more good out of prison than the bad they caused that landed them in it. You don't "pardon" hardened criminals. Sometimes "pardons" are a means of negotiation with other powers who have a vested interest in exchanges.

But yeah, that's just a layman's opinion really, this is the way I think it should work. For exceptional cases. Because in the end, the way the world is set up, people need things. And if the need for what you can offer outweighs the harm you have caused by several orders of magnitude, the society might grudgingly allow you to keep providing what you're offering.

Not G. Ivingname:
*snip*

Agema:
*snip*

Thanks, you never stop learning. I guess you're right, it would be strange if there was no pardon whatsoever, but... I still think it's an odd notion to outleverage the enforcement of the ruling in that manner. It's good to have a backdoor of sorts, since you never know all the circumstances that could be involved in reality when drafting or mechanically enforcing a law, I suppose. But it needs to be highly regulated and extremely narrowly used. The separation of powers requires that such a thing remains the absolute exception and cannot ever become common or even the norm.

Skeleon:

Not G. Ivingname:
*snip*

Agema:
*snip*

Thanks, you never stop learning. I guess you're right, it would be strange if there was no pardon whatsoever, but... I still think it's an odd notion to outleverage the enforcement of the ruling in that manner. It's good to have a backdoor of sorts, since you never know all the circumstances that could be involved in reality when drafting or mechanically enforcing a law, I suppose. But it needs to be highly regulated and extremely narrowly used. The separation of powers requires that such a thing remains the absolute exception and cannot ever become common or even the norm.

The thing about pardons is that they can only ever help the accused. They are discretionary, so a potential criminal can't really rely on getting one, and they can't be used to punish someone without a trial. Also, as they come from outside the judiciary and are discretionary, they are not an excuse for the judiciary to ignore a problem with the law. Since pardons can only work in one direction-- in favor of the accused-- it is highly unlikely they would ever become very common.

Separation of powers is important to prevent a potentially abusive authority from controlling all aspects of government: pardons do not significantly impact this. Pardons are far too blunt an instrument for the executive to use them to control the judiciary: at best, a cunning executive branch could stop the imprisonment or execution of criminals. One might suppose that could be problematic if the people had elected to high office one of Los Zetas or something. If things are that bad, pardons are probably the least of your problems.

Seanchaidh:
They are discretionary, so a potential criminal can't really rely on getting one, and they can't be used to punish someone without a trial.

I'd say that would depend on the potential criminal and their connections. Some people might be considered too important to be punished appropriately.

One might suppose that could be problematic if the people had elected to high office one of Los Zetas or something. If things are that bad, pardons are probably the least of your problems.

Hm? Nah, I'm not thinking of anything as outrageous as that, especially nothing involving violent or even murderous crimes. I'm thinking more of corrupt politicians helping the bribed and the bribers out and the like. Or a follow-up to the "too big to jail, too big to prosecute"-issue of particular bankers being convicted for fraud, theft and other large scale monetary crimes supposedly "upsetting the market" and causing "economic chaos" that is "too huge to allow to happen" or arguments like that. If it were to become a common occurance, of course. The way it is now, it would probably only be used to protect the biggest of the big fish. It's a bit of a slippery slope argument I risk making here, but that's the kind of corrupted way pardons could hypothetically realistically be used that I'm talking about.

Skeleon:

Seanchaidh:
They are discretionary, so a potential criminal can't really rely on getting one, and they can't be used to punish someone without a trial.

I'd say that would depend on the potential criminal and their connections. Some people might be considered too important to be punished appropriately.

One might suppose that could be problematic if the people had elected to high office one of Los Zetas or something. If things are that bad, pardons are probably the least of your problems.

Hm? Nah, I'm not thinking of anything as outrageous as that, especially nothing involving violent or even murderous crimes. I'm thinking more of corrupt politicians helping the bribed and the bribers out and the like. Or a follow-up to the "too big to jail, too big to prosecute"-issue of particular bankers being convicted for fraud, theft and other large scale monetary crimes supposedly "upsetting the market" and causing "economic chaos" that is "too huge to allow to happen" or arguments like that. If it were to become a common occurance, of course. The way it is now, it would probably only be used to protect the biggest of the big fish. It's a bit of a slippery slope argument I risk making here, but that's the kind of corrupted way pardons could hypothetically realistically be used that I'm talking about.

Well, I mean, you can already do that simply by not enforcing the law and never making an arrest-- or, as you indicated, by prosecutorial discretion. Either way, we'd be relying on public outcry to get anyone to address the issue.

 

Reply to Thread

This thread is locked