Wampum

No Mercy

Just before Thanksgiving, President Bush made some "news" by pardoning two turkeys, Biscuits and Gravy.

Although not reported as such, perhaps the bigger news was that President Bush also pardoned six people. The DOJ press release announcing the pardons is here.

The power of the pardon is contained in Article II, Section 2, Clause 1 of the Constitution:

The President ... shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

Unlike many of the powers granted by the Constitution, the power of the pardon is vested in one person with no check or balance on its use. The Senate need not advise or consent to a pardon. A pardon does not have to originate in the House. There is no judicial review over the grant of a pardon. The President, and the President alone, wields the power of the pardon.

The Founders' reasons for vesting such power in one person arose from a desire to have the power of the pardon be freely, mercifully, and justly exercised. The Jurist, hosted by the University of Pittsburgh Law School explains:

At the Constitutional Convention in Philadelphia the Framers appear to have accepted the argument that the prerogative of mercy, upon which the pardon power is based, is most efficiently and equitably exercised by a single individual, as opposed to a body of legislators or judges. In Federalist No. 74, supporting the ratification of the Constitution, Alexander Hamilton wrote:

Humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed...As the sense of responsibility is always strongest in proportion as it is undivided, it may be inferred that a single man would be most ready to attend to the force of those motives, which might plead for a mitigation of the rigor of the law, and least apt to yield to considerations, which were calculated to shelter a fit object of its vengeance...On the other hand, as men generally derive confidence from their numbers, they might often encourage each other in an act of obduracy and might be less sensible to the apprehension of suspicion or censure for an injudicious or affected clemency. On these accounts, one man appears to be a more eligible dispenser of the mercy of the government than a body of men.

The Founders thought that one single man would be more likely to grant mercy than a group.

How might we expect President Bush to use the power of the pardon? There are several reasons to think that Mr. Bush would frequently exercise the power in "mitigation of the rigor of the law."

The first reason is Mr. Bush's faith. Mr. Bush is a committed Christian. In particular, Mr. Bush is a Methodist. Mercy has a special place and is a special obligation for a Methodist:

Christian Perfection is "holiness of heart and life." It is "walking the talk." John Wesley expected Methodists to do not only "works of piety" but "works of mercy"--both of these fused together put a Christian on the path to perfection in love.

The rotunda of the United Methodist Building in Washinton DC contains inscriptions of two verses that "have always guided" the Methodist ministry. One of those inscriptions is from the prophet Micah 6:8:

What does the Lord require of you but to do justice, and to love mercy, and to walk humbly with your God?

Given Mr. Bush's deep religious beliefs and his special obligation as a Methodist to be merciful, one might expect Mr. Bush to lend a receptive ear to pleas for pardons.

A second reason to suspect that Mr. Bush would freely exercise the power of the pardon is his view of the accuracy of the jury system. Stated bluntly, Mr. Bush thinks that juries often return inaccurate verdicts. He believes that through passion, prejudice, or artful persuasion, juries return civil verdicts for large sums in cases that have no merit whatsoever. Mr. Bush does not think we can trust juries to make accurate judgments. That is the premise behind his tort reform proposal.

If juries can not be trusted in civil cases, there is no reason to think that they can be trusted in criminal cases. Indeed, as I have previously argued, there are strong reasons to believe that the accuracy of justice in criminal cases is far below that of civil cases.

In addition, there have been many cases that conclusively demonstrate that criminal juries make mistakes. One project at one law school, the Innocence Project at the Cardoza School of Law, has helped to exonerate 153 convicted criminals. There must be many more people who have been wrongly convicted.

Given Mr. Bush's view of the inaccuracy of the jury system, combined with God's requirement to do justice as exemplified by the Micah verse above, one would expect that Mr. Bush would be free with his use of the power of the pardon.

The final reason to suspect that Mr. Bush would often issue pardons is his own life story. Among other things, pardons are about second chances. Mr. Bush's life story is one of making the most of a second chance.

By all accounts, George W. Bush's life until his fortieth birthday had little to commend him. He had failed at his first attempt at elective office. His business ventures had shown no great success. Neither having been born into an affluent and powerful family, nor having been educated at the very schools in the country was sufficient for George W. Bush to succeed at life. He was a mediocre businessman at best. His personal life was in shambles as he struggled with booze.

At an age when most men have settled into the life they will live, George W. Bush was a failure at nearly everything he had tried. Mr. Bush got a second (or was it a third, or fourth?) chance. He used that opportunity to become wealthy in his own right through his work with the Texas Rangers. He then reentered politics and became the reelected Governor of Texas as well as a two term President of the United States. If his personal history taught him nothing else, surely it taught him the power of second chances. Havoing benefitted from a second chance, one would think that Mr. Bush would be receptive to providing a second chance to others.

Those three reasons suggest that Mr. Bush would use the power of the pardon freely. That has not been the case.

The six pardons Mr. Bush granted in November raise his first term total to 25. His father granted more than three times as many in his one term. That is remarkable in itself as George Bush, the elder, granted fewer pardons than any president since Zachary Taylor in 1850.

Only four Presidents have issued fewer pardons than George W. Bush. Two of those Presidents, James Garfied and William Henry Harrison, died shortly after taking office and issued no pardons at all.

If we eliminate those two from consideration, we have to go back to John Adams to find a President who granted fewer pardons than George W. Bush.

With the exception of the current President's father, all of the Presidents since 1900 have issued least eight times as many pardons (not adjusting for number of terms) as George W. Bush. Here is the list:

T. Roosevelt 981

Taft 758

Wilson 2480

Harding 800

Coolidge 1545

Hoover 1385

Roosevelt 3687

Truman 2044

Eisenhower 1157

Kennedy 575

Johnson 1187

Nixon 926

Ford 409

Carter 566

Reagan 406

G.H.W. Bush 77

Clinton 456

G.W. Bush 25

The purpose of this post is to point out Mr. Bush's pardon record and to make inquiry. Why has Mr. Bush issued so few pardons? What does his pardon history tell us about him as a man and as a President? Any thoughts?

Posted by Dwight Meredith at December 7, 2004 03:55 PM | TrackBack