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31 Cap. U. L. Rev. 143 (2003)
Some Reflections on the President's Pardon Power

handle is hein.journals/capulr31 and id is 153 raw text is: SOME REFLECTIONS ON THE PRESIDENT'S PARDON POWER' MARK STRASSER* I. INTRODUCTION Periodically, politicians, and pundits call for reform of the presidential pardon power, especially after allegations of abuse involving cover-ups of official wrongdoing or rewards for financial contributions have been made.2 Because the pardon power was neither intended to help fill political coffers nor to prevent individuals in office from being brought to justice, such calls should be expected after scandals have come to light and are unlikely to generate much controversy. However, what is and will continue to be controversial is whether a constitutional amendment should be passed to limit the pardon power of the President and, if so, what the content of such an amendment should be. Some commentators argue that the presidential pardon power is only appropriately used to rectify mistakes, e.g., to free someone wrongly convicted or to reduce a clearly disproportionate sentence.4 Others disagree, suggesting that it may be used to achieve a variety of state goals such as promoting peace and healing in the country or inducing witnesses to testify so that criminal offenders might be brought to justice. Without more consensus about which uses are appropriate and which are not, it seems clear that the pardon power neither will nor should be limited. Part I of this Article addresses the limitations on the presidential pardon power, concluding that the power is plenary and that it can be exercised for a variety of reasons so long as the power is being exercised to substitute a less severe punishment for a greater one. Part II suggests that the equal protection and due process guarantees of the Constitution provide very modest limitations on the pardon power. The Article concludes that while there are very few limitations on the President's power to pardon, the Copyright 0 2003, Mark Strasser. * Professor of Law, Capital University Law School. This article is based on a talk given at a Capital University Law School Symposium entitled Forgiveness and the Law: Executive Clemency and the American System of Justice. For further discussion of these and related issues, see Mark Strasser, The Limits of the Clemency Power: On Pardons, Retributivists, and the United States Constitution, BRANDEIS L. J. (forthcoming 2003). 2 See An Indefensible Pardon, N.Y. TIMES, Jan. 24, 2001, at Al. 3 See Daniel T. Kobil, The Quality of Mercy Strained: Wrestling the Pardoning Power From the King, 69 TEX. L. REv. 569, 571 (1991). 4 See KATHLEEN DEAN MOORE, PARDONS: JUSTICE, MERCY AND THE PUBLIC INTEREST 132 (1989). 5 See Kobil, supra note 3, at 592.

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