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13 Fed. Sent'g Rep. 139 (2000-2001)
Pardon Us: Systematic Presidential Pardons

handle is hein.journals/fedsen13 and id is 141 raw text is: Pardon Us: Systematic Presidential Pardons Shortly after the last presidential election, President- elect Bush and President Clinton both observed that the penalty differentials for possession of crack cocaine and powder cocaine are unjustified. They were not the first to do so. The U.S. Sentencing Commission has studied and sharply criticized the disparate racial impact of the cur- rent crack versus cocaine sentencing rules.' Scholars have shown troubling differentials in the investigation and system selection for crack and cocaine offenders? And now Hollywood has added its two cents, illustrat- ing in the movie Traffic that some offenders use both crack and powdered cocaine, in which case differential sanctions may be a function of which was being used at the time of arrest. A president who wants to address issues of proper cocaine punishment and punishment disparities might seek to have Congress and the American people recon- sider this issue using the bully pulpit or proposing legislation to reduce or end the penalty differential. Another alternative would be to direct the attorney gen- eral, who sits as an ex officio member of the U.S. Sen- tencing Commission, to raise again the issue of cracl4socaine differentials. Another tool exists: the President might use the pardon power to reduce sentences for a class of people incarcerated for possession of crack cocaine to the level of those imprisoned for possession of powder cocaine, or to some other level fully articulated and justified as principled policy. Scholars, judges and commentators often empha- size the individualized and mercy-driven nature of the pardon power.3 The use of pardons as a systematic pol- icy tool has not previously received scholarly attention. We consider whether it is constitutional and appropri- ate to use the pardon power in a systematic way, applied to a group of offenders selected through consistent cri- teria and processes, and for reasons that may reflect concerns of justice, equality, and wise policy, rather than mercy. We thereafter consider how a president might exercise the pardon power to equalize unjustified sentencing disparities., 1. The Constitutionality of Systematic Pardons One constitutional objection might be made to sys- tematic use of the pardon power by a president to fur- ther a policy goal. If Congress passes a statute that directs differential penalties for two crimes, and the judiciary implements this law, even upholding its con- stitutionality in the process, does it violate the separa- tion of powers to allow the president to undo what Congress and the courts have approved? Of course, the president has an obligation to take Care that the Laws be faithfully executed. Art. II, \ 3. However, we do not believe this obligation overrides, much less obliterates, the distinct constitutional power stating that the President shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment. Art II, S 2, d. L' Were the faithful execution duty extended so far, it would effectively remove the pardon power from the Constitution altogether6 This power, explicitly given to the Executive responsible for enforcing the law rather than sharing with Congress, should be viewed as a limited exception to the general duty of the presi- dent to faithfully execute the laws., The pardon power qualifies the duty only in connection with enforce- ment of criminal statutes. It has no bearing on enforcement of regulatory statutes or on private civil actions established by Congress. Moreover, even as to criminal law statutes, the pardon power operates only as a check on prosecu- tions or sentences; it in no way alters congressional criminalization of particular behavior. Indeed, because the pardon power is explicit in the Constitution's text, it seems less vulnerable to criticism on separation of powers grounds than the authority of the executive branch, regularly exercised, to decline to prosecute particular cases or to plea bargain for lesser offenses than those recognized by Congress as applicable to particular behaviors. The Supreme Court has used extremely broad language to describe the pardon power' and has jeal- ously guarded this power from congressional encroachment.9 As the most recent substantial Supreme Court case on the pardon power notes, the pardoning power is an enumerated power of the Con- stitution and ... its limitations, if any, must be found in the Constitution itself' At least a third of all United States presidents, including many of our greatest presidents, and from the earliest administrations, have used systematic par- dons. This long history convinces us that even class- wide pardons, with the potential to dramatically limit the impact of federal criminal laws, are constitu- tional. Though this article is not the proper forum for examining each of these pardons in detail, the follow- ing chart gives a striking demonstration of a system- atic, unbroken, executive practice, long pursued to the knowledge of Congress and never before questioned, CHARLES SHANOR & MARC MILLER Charles Shanor and Marc Miller are profes- sors at Emory Law School. Shanor is the editor of the new law school casebook Amer- ican Constitutional Law: Structure and Recon- struction (West 2001) and a former General Counsel of the United States Equal Employ- ment Opportunity Commission. Miller is the editor (with Ronald Wright) of Criminal Procedures: Cases, Statutes & Executive Materials (Aspen Law & Business 1998), and a founding editor of and advisor to the Federal Sentencing Reporter. We thank Margy Love, Bill Mayton, Robert Schapiro and Ron Wright for their com- ments on a draft of this paper and Terry Gordon for advice and his extraordinary assistance with histori- cal research. FEDERAL SENTENCING REPORTER • VOL. 13, NO. 3-4 - 2000-2001

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