It’s been pointed out multiple times that 45 had plenty of time to pardon more people - especially those in his inner circle - and he chose not to do so. Also, I’ve been giving the side-eye to NPR’s coverage of the upcoming election because of clickbaity stuff like this:
An NPR review of social media posts, speeches and interviews found that Trump has made calls to “free” Jan. 6 defendants or promised to issue them presidential pardons more than a dozen times.
Add some references to polls claiming 45 would win, jump to the conclusion that all this is inevitable, stir in some factoids about how all his wild claims would be totally legal…
Need a Stop trying to make “fetch” “45 will win” happen meme for the mainstream media at this point.
Well…sometimes people are wrongfully convicted. Sometimes people are sentenced to much harsher sentences than they should be. Sometimes people make amends for their crimes through real action after they’ve served their time because they actually changed and became better people (pardons can be given even after the time was served). There are plenty of good reasons for pardons, and I don’t think we should only allow them in election years. I think that might make the problem worse in that it might forestall some worthy pardons just because they wouldn’t be popular.
Those are good arguments for pardons, and for times other than October 6 in the first term of a presidency. But I don’t see any good argument in there for a president to have pardon power.
No, I’m saying that the US Constitution maybe isn’t the greatest constitution ever written, because it’s got obvious, stupid flaws like letting a president pardon people. It’s astounding to me that in 200+ years, nobody has hardened it against bad actors, instead stupidly relying on “norms” that assume everybody’s going to play by the rules.
Oh, so you want to replace the Constitution. That’ll be way easier than passing an Amendment. /s
Look, I’m not an originalist by any means. I’m all for reinterpreting the Constitution as times and needs change, but the parts that are pretty clear and direct, we can’t just ignore. And the pardon power is one of those. The 2nd Amendment is ambiguous as fuck, so reinterpreting that is easy. I mean, that’s exactly what Scalia did in Heller v. DC. But “he shall have power to grant reprieves and pardons for offenses against the United States” doesn’t leave a lot of room for interpretation. So if you want to change that, you need to amend it.
Yes! As you mentioned above, the criminal justice system is deeply imperfect. The various departments of corrections even more so. Allowing for a human safety valve for some of the more egregious errors in justice, poor sentencing decisions, changing norms, or, we hope, changing offenders, is not a bad thing. The important thing is electing officials who will not abuse that very broad power. And making sure Trump does not get elected is what we should be focusing on.
ETA: the Praise You topic is closed, so I’ll just thank you here for all of your legal insight everywhere on the BBS. I appreciate the time and effort you spend on all the legal stuff so much. And congrats on your degree!
Most of us Americans who are not enriched/empowered by the current status quo, or enthralled with the idea of white supremacy are well aware of our governing document’s flaws.
It is the kernel of a great idea, just not necessarily the implementation thereof, unfortunately.
Many countries have some kind of power of pardon reserved to their head of state.
It is an example of a governing power which is benign when used reasonably by people with genuinely good intentions, but which becomes a raging bin fire when abused.
I assume the drafters of the Constitution were basing this presidential power on the British ‘royal prerogative of mercy’ which can change or nullify any sentence - although not overturn a conviction. This was previously a power of the monarch, and although it is now performed by ministers, it is still conferred in the name of the monarch.
A recent example of it being used wisely to undo (as far as possible) a previous wrongdoing was the 2013 pardon of Alan Turing.
So much of the entire system is based on this. It’s really not designed to deal with internal bad actors that hold others to norms while ignoring them themselves, who expect others to have shame while they have none. That’s probably one of the most important take always from the last decade. The system only works if everyone respects the system and works in good faith.
Related just to pardons, I think having a pardon ability is a recognition that the law and it’s enforcement is squishy and not a definitive machine that always produces the correct result. The pardon is a safety valve, useful for when a clear misarrange of justice has occurred and the system produced the wrong result.
The problem, as you noted, is when these two topics collide. The pardon safety valve only works when the person wielding it is following norms and working in good faith. How we pick who should operate this safety valve is using the presidency as a stand in for picking someone worthy of the power who should in theory wield it based on norms and compassion, using it to right wrongs that the system got wrong.
Certainly, there could be other ways to pick who should wield this power. It would still come back to the difficultly in dealing with someone who will not follow the rules while they work in a system where everyone else is expected to follow the rules.
Yeah, I (very briefly) checked, and it seems this is what Canada has. Loosely, the civil service can recommend a pardon, which is then rubber-stamped. That seems better than oh, I don’t know, being able to try to buy votes by promising pardons if elected. And having Mike Flynn running around shooting his mouth off still.
Also, I’ve been giving the side-eye to NPR’s coverage of the upcoming election because of clickbaity stuff like this:
