The Power to Pardon, the Power to Gain
By Asha Rangappa
The flurry of debate surrounding President Clinton's final pardons has focused on two things. One is whether the recipients actually deserved leniency. The other is the president's own personal, political and economic gain. Both perspectives overlook the essence of executive clemency: it has little to do with justice, and everything to do with politics.
Originally, in fact, the power to pardon was used precisely for economic and political ends. Legal historians have noted that in England, kings used pardons for their own ends. For instance, criminals could be pardoned if they agreed to labor for the American colonies or the Crown's navy.
This philosophy found little support in the United States because our nation's founders sought to diffuse, not concentrate, executive power. When delegates to the Constitutional Convention debated whether the president's unrestrained power to pardon might lead to abuse, Alexander Hamilton articulated in the Federalist Papers an idealized rationale for clemency: the ''benign prerogative of pardoning,'' he argued, permitted grants to be made in favor of ''unfortunate'' -- that is, questionable -- guilt.
This lofty ideal has rarely been realized in practice. For example, in 1998, claims of justice expressed in international law could not persuade James Gilmore, Virginia's governor, to grant clemency to Angel Francisco Breard, a convicted murderer from Paraguay. After he was arrested, Virginia authorities failed to advise him of his right to confer with Paraguayan consular officials, as required by the Vienna Convention.
When American courts rejected his appeals, Mr. Breard turned to the International Court of Justice. A unanimous bench, including an American judge, ordered that the United States ''take all measures at its disposal'' to stop Virginia from executing him. Secretary of State Madeleine Albright also supported halting the execution, warning that Mr. Breard's execution would ''limit our ability to insure that Americans are protected when living or traveling abroad.''
In response, Governor Gilmore declared that the international court had no authority to interfere with Virginia's criminal justice system, and Mr. Breard was executed.
Then there is Darrell Mease, who was scheduled to be executed in February 1999 in Missouri. Mr. Mease had admitted killing a 19-year-old paraplegic and that victim's grandparents, and had made no convincing legal or rehabilitative case to justify altering his fate. Then in stepped Pope John Paul II. The pope asked Gov. Mel Carnahan to show mercy to the convicted killer. The governor, who supported the death penalty, commuted Mr. Mease's death sentence to life in prison without parole. Mr. Carnahan emphasized that his act was merely a tribute to the pope, and did not mean that he had changed his mind about the death penalty or Mr. Mease's guilt.
In Virginia and Missouri, bowing to a political imperative -- honoring a religious figure or making a point about states' rights -- was paramount. Deciding whether a convict deserved mercy was irrelevant. For President Clinton, the merits of individual pardon requests may also have been secondary to other interests.
His actions may have been unprincipled, but the use of his power should not come as a surprise. After all, clemency is by nature outside the rule of law. When conferred upon those already convicted of crimes, it unravels the decision of citizen-jurors who found guilt beyond a reasonable doubt. For those who are yet to be tried, it exempts them from the legal and moral standards governing the rest of society. In either case, it renders the law itself impotent. Mercy and justice, then, do not always go hand in hand.
Nevertheless, this seemingly undemocratic practice has a role to play in our democracy. The uniqueness of executive clemency lies in the president's power to act without weighing guilt, innocence and legal principle. In this way, the pardon opens an avenue to those -- like opponents of the death penalty -- who object even when the law has been applied correctly. The pardon offers these individuals a voice when the law has already spoken.
Keeping open this possibility, though, means leaving room for manipulation. In the end, granting mercy comes down to just two people. For the recipient, the pardon is freedom. For the politician, the pardon can mean -- not surprisingly -- political gain.