Fear of Forgiving: Rule and Discretion in the Theory and Practice of Pardoning

Abstract

This paper, by the former Justice Department Pardon Attorney, discusses the role that executive clemency plays in the modern day criminal justice system. It concludes that our commitment to determinate sentencing ought by all rights to make it easy to carve out a respectable role for pardon, which was intended by the Framers to provide necessary flexibility where the legal system is unable to take appropriate account of individual circumstances. The paper explores the tension between rule-based justice and discretionary mercy, suggesting ways of accommodating these two great principles of decision in a determinate sentencing system. It traces the evolution of the pardon function in the federal justice system, and explains the atrophy of pardon in recent years. It attributes the break-down of the pardon process at the end of the Clinton Administration as much to its capture by prosecutors and bureaucrats within the Justice Department, as to any lack of discipline and judgment shown by the departing President Clinton. It analyzes the other symposium essays in terms of the relative importance they ascribe to regularity and discretion in the theory and practice of pardoning. Finally, it proposes that reliance on a rule-based administrative system maximizes the President's ability to use his constitutional power as the Framers intended. The good news about the final Clinton pardons is that they have drawn attention to problems in the justice system that have been simmering for years. The evident need to rethink how pardon should be used and administered provides an early opportunity to consider these problems. Recognizing the limits of pardon should encourage law reform efforts, and recognizing the limits of the law should identify a place for pardon.