The Brood: Should presidential pardons still exist?
Back in August, Donald Trump pardoned Joe Arpaio, who, as a county sheriff in Arizona, abused the civil rights of undocumented immigrants and criminal suspects by detaining them without evidence, even leading to several deaths. It’s hard to see this pardon as anything other than an endorsement of the effects of racial profiling and violence on Latinx people.
Between this, Trump’s only pardon so far, and the potential pardons that could be used to excuse Trump’s associates from criminal charges related to the Russia investigation, it makes you wonder – why do pardons even exist in the first place? A pardon absolves the recipient of all wrongdoing in a given federal crime.
It’s obvious that an unscrupulous person could use pardons to cover up crimes and obstruct justice. They could even abet treason, as would be the case if Trump tried to pardon someone for working with the Russians to influence the 2016 election.
For answers, its useful to go all the way back to the people who gave the President the power in the first place. Here’s Alexander Hamilton’s arguments in favor of the pardon power in The Federalist Papers No. 74, paraphrased:
- Criminal law can be hard to implement and thus exceptions need to be made.
“The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel.”
- When people think in groups, the pressure tends to cloud their moral judgment, and its better for one person, The President, to make the pardoning decision.
- Pardons are important when large portions of society have committed treason, like after the Whiskey Rebellion, or pardoning ex-Confederates after the Civil War. Otherwise you’d be legally obliged to execute countless people for treason, which, if you’ve just rebelled, is a great reason to keep rebelling.
“The principal argument for reposing the power of pardoning in this case to the Chief Magistrate is this: in seasons of insurrection or rebellion, there are often critical moments, when a welltimed offer of pardon to the insurgents or rebels may restore the tranquillity of the commonwealth”
History generally proved Hamilton’s arguments correct – smart pardons included those mentioned above, as well as the pardoning of Vietnam War draft dodgers, and the pardoning of Mark Felt, AKA Deep Throat, who helped take down the corrupt Nixon Administration during the Watergate scandal.
However, if you read Hamilton, all his arguments assume that the President is a well-adjusted human being:
“The reflection that the fate of a fellow-creature depended on his sole fiat, would naturally inspire scrupulousness and caution.”
Donald Trump is not one for self-reflection, scrupulousness or caution. So, while there is nothing inherently wrong with the institution of the pardon on its own, the human being who yields it is deadly important.
Do you think Presidential pardons should continue on as a constitutional power? Should we abolish it? Reform it? Or is it fine as is? Comment and share your thoughts!
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Written and edited by Dylan Welch, co-host and creator of the Municipals podcast.