Posted by: Patrick Allen Foster | August 25, 2013

The Pardon Power

At Balkinization, Sandy Levinson has a post criticizing President Obama for not exercising the president’s pardon power more vigorously, especially in view of the Attorney General’s recent statements about overincarceration:

The Constitution unequivocally gives the President of the United States the power to pardon anyone for any crime committed against the United States. It can be used wisely (Warren G. Harding’s pardon of Eugene V. Debs–which was followed by a meeting, at Harding’s request, at the White House, in which he said, “I have heard so damned much about you, Mr Debs, that I am very glad to meet you personally”–which is enough in my book to remove Harding as the candidate for America’s worst President) or unwisely (Bill Clinton’s pardon of Marc Rich, George H.W. Bush’s pardons of Caspar Weinberger and Eliot Abrams), but it is an important part of the President’s power. …if Obama shares his Attorney General’s view that the US has incarcerated far too many people for far too long prison terms as part of the “war on drugs,” there’s actually a very simple solution: The President can commute all of the sentences to time-served, save for the kingpins who deserve their mandatory (or even longer) sentences. Similarly, if push comes to shove, he can announce an amnesty for everyone who entered the country illegally prior to, say, January 1, 2012 or everyone who has overstayed a visa (which I gather “explains” far more “illegal aliens” than does initial illegal entry). To be sure, that would create a huge political firestorm, but, hey, what does he have to lose?

What are second terms for, anyway? On the other hand, I do recall this post by Ilya Somin at the Volokh Conspiracy, from 2011, pointing out that the “political firestorm” Levinson mentions could lead to backlash that would make the overall situation even worse — a form of winning the battle and still losing ground in the war, as it were. Somin was responding to this post by Bryan Caplan (in which Caplan wrote: “I maintain that an intelligent, wise, brave president could do enormous good. How? For starters, he could give full presidential pardons to everyone serving time for (federal) drug-related offenses. The president can’t end the drug war on his own, but he could free hordes of innocent people before his term (singular, no doubt) ran out.”) Somin’s response:

Bryan somewhat overstates the good that even a president totally indifferent to his political fate can do in the unlikely event that he could get elected in the first place. Such a leader would still have to trim his sails somewhat in order to avoid a political backlash that makes things worse than they were before. Consider Bryan’s example of a president who decides to pardon everyone serving time for federal drug-related offenses. That policy would be extremely unpopular. It will be even more so if even one or two of the pardoned drug dealers goes on to commit a highly publicized murder or other serious crime.

In response, Congress might well enact broader and more punitive anti-drug laws; even if the incumbent vetoes them, his successor would not. The next president would sweep into office on a pro-drug war platform; quite possibly, he would order federal prosecutors and law enforcement agencies to pursue the War on Drugs more aggressively than before. There might be a similar backlash at the state level (the states imprison many more drug offenders than the feds do). The cause of drug legalization, which has been slowly gaining ground over the last several decades, would suffer a significant political setback. The net result could well be a long-term increase in the number of people imprisoned for nonviolent drug offenses. Other principled but highly unpopular policies could backfire in similar ways.



  1. Yes, pardoning a few folks did wonders for Haley Barbour’s reputation.

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