Spurred by the forthcoming essay of crimprof Chad Flanders, I’ve written in defense of executive pardons. The draft is posted on SSRN here, and this is the abstract:
Pardons by the past two American presidents—one Democratic and one Republican—have caused some to question the wisdom of executive clemency. American criminal justice is imperfect, such critics of course recognize, but here the cure might be worse than the disease. If pardons have become the playthings of would-be monarchs and tyrants, perhaps it is time to let them go. As a strong proponent of role-reversible criminal justice, I am sympathetic to this view—even in mercy, why is the decision of the single elite supplanting the will of the people?
Still, I write in pardons’ defense. Not only are pardons an important lever of mercy in our current, woefully non-role-reversible systems of criminal justice, but, given the human tendency to anger, they might be a critical mercy lever even in a truly robust system. Looking to the eighth century BCE parable of Jonah, and to the teachings of first century CE Roman stoic Seneca, I make the case for pardons, human-ugly though their implementations will be. Ultimately, there may be no more important symbol than an elected representative of the people with the power to nullify and lessen every criminal conviction and sentence; it is an enduring, nationwide commitment to the merciful inclination.
Thoughts?
Leave a Reply