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Begging His Pardon

by Gene Healy

This article appeared in Legal Times the week of November 14, 2005.

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It's unfortunate that it takes the indictment of a high-ranking White House official to remind Washington that the president has the "Power to grant Reprieves and Pardons for Offenses against the United States." In an era in which the federal criminal justice system is becoming ever more centralized and punitive, there are many federal prisoners who are far better candidates for a pardon than I. Lewis "Scooter" Libby Jr. Yet they have gone unnoticed by a president whose exercise of the pardon power has been timid at best.

At the end of September, with no more fanfare than a Justice Department press release, President George W. Bush announced that he had pardoned 14 people. Most had received minor sentences and had served their time—if any—more than a decade ago.

This was in keeping with Bush's long-standing reluctance to pardon: The president issued 31 clemency orders in his first term, far fewer than those granted by his father or Bill Clinton or Ronald Reagan. Indeed, along with the veto, the pardon seems to be the rare executive power that this president is reluctant to use.

That's a shame. Last December, in lamenting President Bush's miserly approach toward clemency, law professor Orin Kerr of George Washington University noted that there are more than 150,000 people in federal prison now. Kerr asked, "Could it be that none of them deserve presidential pardons?"

A History of Good

As Alexander Hamilton noted in Federalist No. 74, the pardon power is a necessary corrective to the severity of the criminal justice system, without which "justice would wear a countenance too sanguinary and cruel." The pardon power is there to do justice in individual cases when strict application of the laws would thwart it. Today, given the increased severity and scope of federal criminal law, we should expect broader use of the pardon to ease injustice and draw attention to aspects of the system that cry out for reform.

Unfortunately for those making the case for more pardons, Americans tend to remember first the scandals: President Richard Nixon's pardon of Teamsters chief Jimmy Hoffa, President Gerald Ford's pardon of Nixon, President George H. W. Bush's pardon of several Iran-Contra figures, and President Clinton's pardon of financier Marc Rich, whose ex-wife had conveniently pledged nearly a half-million dollars to the Clinton library.

But executive clemency also has a proud history. Upon taking presidential office, Thomas Jefferson pardoned and freed political dissenters who had been convicted under the Sedition Act, deeming that act a "nullity as absolute and palpable as if Congress had ordered us to fall down and worship a golden image."

President Warren Harding, no stranger to scandal himself, wielded the pardon to free Socialist presidential candidate Eugene Debs. Debs had been jailed during President Woodrow Wilson's crusade against opponents of World War I, but Harding freed him and other war protesters on Christmas Day 1921. "I want him to eat his Christmas dinner with his wife," Harding said.

Even some of Clinton's late-hour pardons had a benevolent aspect. For instance, Clinton pardoned Kemba Smith, a first-time offender who, at age 19, had been sentenced to 24 years in federal prison for cooperating with her drug-dealing boyfriend, even though the prosecutor admitted that Smith had never used or sold drugs.

Must Serve

Smith was just one of many people who received hard time because of mandatory-minimum sentencing laws. While theSupreme Court's January 2005 decisions in United States v. Booker and United States v. Fanfan brought judicial discretion back into the federal sentencing system (for good and for ill), those decisions did nothing to solve the problems created by mandatory minimums.

As Justice Anthony Kennedy told the American Bar Association in 2003, mandatory minimums too often lead to outcomes that are "unwise and unjust." And still, legislators such as House Judiciary Committee Chairman F. James Sensenbrenner Jr. (R-Wis.) are considering increased reliance on mandatory-minimum sentencing as a Booker "fix."

President Bush need not consider himself "soft on crime" to recognize that the proliferation of mandatory-minimum sentences can often cause grave injustice in specific cases. In fact, a more frequent use of the pardon power could burnish his image as a "compassionate conservative."

Still In Prison

Here are just a few federal prisoners worthy of the president's attention:

• Marsha Cunningham
  
  Like Kemba Smith, Cunningham, who was arrested in 1997, had no prior offenses. Nor was there any evidence that she had ever participated in a drug deal.
  
  Yet when police found powder and crack cocaine in the Dallas apartment that Cunningham shared with her boyfriend, and her boyfriend was caught with crack while driving her car, federal mandatory minimums kicked in. Now, Cunningham is serving 15 years in prison.

• Dane Yirkovsky
  
  Yirkovsky is serving a 15-year sentence for possession of a single .22-caliber bullet.
  
  In December 1998 he found this bullet while doing remodeling work for a friend who was giving him a place to stay in exchange for the work. Yirkovsky put the bullet in a box in his bedroom. Later that month, the police found the bullet while searching Yirkovsky's room after a call from his former girlfriend, who claimed he had some of her possessions. Because of Yirkovsky's prior convictions for burglary, federal prosecutors charged him under the Armed Career Criminal Act, although he had not threatened anyone and did not have a gun.

• Weldon Angelos
  
  A year ago this week, 24-year-old Angelos was sentenced to 55 years in prison for selling two small bags of marijuana to a police informant. During the transaction, Angelos was carrying a pistol in an ankle holster, although he did not threaten anyone with the weapon. Nonetheless, the law imposed a severe mandatory minimum for gun possession during a drug deal.
  
  In sentencing Angelos, U.S. District Judge Paul Cassell of Utah, a conservative Republican appointed by President Bush, also ran through the maximum penalties for hijacking an airplane (25 years), a terrorist bombing intending to kill a bystander (20 years), and kidnapping (13 years). The judge noted that just two hours earlier, he had imposed a sentence of 22 years in a case where a man beat a senior citizen to death with a log.
  
  "Is there a rational basis," Cassell asked, "for giving Mr. Angelos more time than the hijacker, the murderer, the rapist?" Cassell called the 55-year sentence "unjust, cruel, and even irrational" but said that the law left him "no choice."
  
  Of course, President Bush need not free Angelos immediately—a crime was committed—but he has the power to reduce Angelos' sentence. Surely one mistake is a poor justification for taking away most of a young father's life.

• Robert Blandford, Diane Huang, David McNab, and Abner Schoenwetter
  
  Three American seafood dealers and one Honduran lobster-fleet owner are currently doing hard time for importing lobster tails that were the wrong size and that were packaged in clear plastic bags rather than in cardboard boxes. They ran afoul of the Lacey Act, a federal statute that makes it a crime to import fish or wildlife taken "in violation of any foreign law."
  
  The U.S. government argued that they had broken Honduran law because some of the lobster tails—3 percent, to be exact—were less than five and a half inches long, and because a Honduran regulation required that the lobster tails be packed in boxes. Yet Honduran officials testified that no laws had been violated.
  
  Nonetheless, Blandford, McNab (the Honduran national), and Schoenwetter, three small-business men with no previous criminal records, were sentenced in 2001 to eight-year terms. Their "partner in crime," Huang, got off easy: two years' incarceration for the mother of two young children.

And these cases only scratch the surface. The federal criminal code now provides for more than 4,000 federal crimes and many harsh mandatory minimums. A more vigorous use of the pardon power could help mitigate the inevitable injustices. Even better would be the wholesale reform of the federal laws that lead to sentencing overkill in the first place.

President Bush could start the process by closing this year with mercy for some.

©2005 ALM Properties Inc. All rights reserved. This article is reprinted with permission from Legal Times