Pardon me, where do we go from here?

Commonwealth Journal

November 19, 2007 12:00 pm

— Kentucky voters will anxiously await Governor-elect Steve Beshears’ efforts to fulfill promises made during this year’s gubernatorial campaign.
Few of the many hotly debated campaign issues will draw more attention than the new administration’s approach to the constitutional prerogative of the governor to issue pardons.
The decision of Governor Fletcher to issue pardons to members of his administration involved in the merit system investigation prompted protests from many groups, not all of which could be characterized as politically aligned with Beshears. Inevitably, this issue became a central theme of the election.
As recently as Nov. 4, Beshears promised to seek a constitutional amendment prohibiting the governor from granting a pardon prior to conviction for a crime and require that each person seeking a pardon submit a personal application. Of course, a similar movement last spring failed in the Legislature.
Nevertheless, there is little doubt that the merit investigation generally, and the pardoning of administration officials specifically, contributed to Governor Fletcher’s defeat. What remains to be seen is whether Governor-elect Beshears will affirm his campaign promise by seeking to limit the pardon power.
Limiting that authority may not be nearly attractive now that it is solely within the governor-elect’s discretion as to when and where the pardon power will be exercised. And in all candor, a constitutional amendment may not be such a good idea.
Criticisms of granting clemency prior to conviction are not new. In discussing the presidential pardon power, Yale law school professor Charles Berger voiced concerns similar to those heard after the merit-system pardons: “[A] president may cover up damaging information about his administration or himself personally by a timely grant of executive clemency. By pardoning his cronies before trial ... the argument goes, a President can prevent such damaging disclosures from coming to light.”
History is, in fact, replete with examples where the perception existed that a pardon, granted prior to conviction, interfered with the disclosure of information regarding a matter of great public interest. During the hearings prompted by President Ford’s pardon of Richard Nixon, Rep. John Bingham (D-N.Y.) summarized the country’s reaction: “Millions of people are outraged by the pardon not simply because it seems to prevent Nixon from being summoned before a court to answer for his conduct, but because it might forever protect the full story of the ... administration’s violations of the law ... from full disclosure.” Not surprisingly, the Nixon pardon also prompted calls for a constitutional amendment limiting the president to post-conviction pardons.
Efforts to limit the president’s pardon power have failed. Maybe that is a good thing. Berger notes that the framers of the federal constitution rejected proposals limiting the pardon power to post-conviction because they believed pre-conviction pardons could be used to encourage accomplices to testify against their cohorts in crime.
Moreover, history teaches us that post-conviction pardons may not be practical in cases where dozens, hundred or even thousands of individuals are affected. Certainly, conviction of each and every Vietnam draft dodger would have been near impossible prior to President Carter’s grant of clemency for violation of the Selective Service Act. Nor could the Union government, weakened by four years of bitter internal strife, have withstood the bitter acrimony which would have accompanied trial and conviction of every Confederate soldier who was to benefit from the subsequent presidential pardons which commenced in 1865.
In 1910, Charles Bonaparte, writing for the Yale Law Journal, observed that “he who holds and uses ... so delicate and far-reaching a power as that of pardon must be ready at all times and to all legitimate critics to render a just account of his stewardship.”
Perhaps the solution to the dilemma that Governor-elect Beshears must now face lies not with a constitutional amendment, but with recognition that the ballot-box ensures accountability for all executive decisions.