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
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).
INTEREST 132 (1989).
5   See Kobil, supra note 3, at 592.

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