Amid the chaos of the coronavirus, the racial tensions, the protests and the president’s unending abuse of those who don’t toe the line, we, the America of this summer of 2020, have lost sight of some of Donald Trump’s perhaps less egregious (but still noteworthy) corruptions: the firings of inspector generals, his sexual harassments, his manipulations of the justice system. They have been allowed to gather in dark corners and collect dust.
It’s time to shine the light on them again, especially on one he’s shared with several governors, one I deem among the most grievous: pardons and grants of executive clemency.
The Chief Executives—of the nation and of 30 states—hold the power to pardon convicted criminals. It’s a practice that’s been indulged in by presidents and governors throughout history, on a state level, especially, by lame ducks who will be leaving office soon and thus won’t bear the consequences of any public or governmental outcry.
A pardon doesn’t wipe the slate clean; it recognizes the crime and the offender’s liability for it. But it does detach the stigma and mitigates the consequences: Pardoned criminals are allowed to re-enter society with barely an asterisk by their names.
President Trump, through February, 2020, had granted 25 pardons and issued executive clemency to 10 other criminals (there’s a fine line of distinction between them, but both excuse criminal acts, no matter how profound) during his time in office. Among them have been pardons of Sheriff Joe Arpaio for the charge of Contempt of Court; Lewis “Scooter” Libby for Obstruction of Justice; Michael Chase Behenna, for Assault and Unpremeditated Murder; and Matthew Golsteyn, charged, but not tried or convicted, for Premeditated Murder while in the Army.
Some governors exercise their power to pardon relatively judiciously. California’s Gavin Newsom, for example, has granted thirty-three since he took office in January 2019, but most were for nonviolent crimes related to drug use and/or sale, or to people who had served most of their sentences. (Many had served their full sentence—most of which were probation—prior to being pardoned.) Tony Evers of Wisconsin granted twelve during 2019, all to men and women who had served substantial time for their generally nonviolent crimes. (Notably, they were the first pardons granted by a Wisconsin governor in nine years.)
At the other end of the gubernatorial spectrum, however, there is former Kentucky Governor Matt Bevin, who granted 428 pardons (and more than 170 sentence reductions) between losing his bid for re-election on November 5, 2019, and leaving office December 10. Over those five weeks, Bevin forgave people who had been convicted of, among numerous other horrors, the sexual assault of a 15-year old-boy; the rape a 9-year old girl, and throwing a newborn baby in the trash;
And the list goes on. And on. And on.
Of course, it begs the question: What is going to be done about it? “Questionable” pardons can’t be revoked, and those who granted them are beyond punishment. Bevin’s actions, for example, were fully within the rights his office accorded him; he acted perfectly appropriately, according to the dictates of the law. The same can—and should—be said of Donald Trump’s capriciousness, directed (by law) only to those charged with or convicted of federal crimes.
The problem, clearly, is the law itself, the one which grants the unrestricted, unchecked power to forgive the unforgivable.
This, then, is a call to the legislatures of the 30 states that have created statutes that allow governors to pardon whomever they choose, for whatever reason they choose, without oversight or the requirement that any other person or body consider the decision. The message is simple: You need to change your law. No one person should be able to countermand the carefully considered judgment of a judge and/or a jury. There are too many potentially unsavory motivations for doing so; Matt Bevin has clearly demonstrated that. (It’s relevant to note that 10 other states grant the governor the power to pardon with the approval of another governmental entity—e.g., a pardons board. Ten states do not address gubernatorial pardons.)
And it’s a call to Congress and to all the states to amend the Constitution, which reads, in Article 2, section 2, in pertinent part: “The President […] shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” No president needs this absolute power; it’s convenient but it invites politicization and corruption. He or she needs to be answerable to a third party—a small committee comprised of senior U.S. judges, for example, or of senior-level former Justice Department officials. The article simply needs to add one phrase: “The President […], with the consent of an advisory committee appointed by the Chief Justice of the Supreme Court [or the Attorney General], shall have Power to grant…”
The power to pardon any criminal, especially one convicted of a felony that has harmed another human being, jeopardized national security or acted in willful contravention of the rights of a class of people, needs to be carefully overseen. Chief executives are human and, therefore, subject to bad judgment and making errors based on misinformation (Bevin pardoned the man who raped the 9 year-old because, he maintained, she couldn’t have been raped: Her hymen was intact. That, by the way, is a common misconception, according to scientists: Most survivors of child sexual abuse, they note, do not have any physical damage); or inappropriate beliefs. (Joe Arpaio’s history, for example, shows he clearly believed the people whose rights he chose to ignore didn’t deserve those rights in the first place, thus leading to his criminal contempt citation.)
There are, and will always be, men and women convicted of forgivable crimes—crimes against society maybe, but ones that did no real or lasting harm to anyone except perhaps the criminal her-/himself: possession of a non-addictive controlled substance such as marijuana, for instance. And there are men and women whose sentences for the crimes they have committed (notably, possession of a controlled substance without intent to distribute) have been excessive, as well as those who have served their sentences for those types of crimes but continue to bear the consequences of having been convicted of a felony.
Thus, while we need to find a way to overcome the unnecessary burden that’s been placed on these felons-cum-victims, there’s a better way than the carte blanche of a pardon in the hands of any single politician. I also call on Congress, and the various state legislatures, to create oversight committees to ensure pardons are granted for good cause, judiciously, and equitably—in the interest of the victims of the crimes as well as of those who committed them.
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