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by William H. Benson

September 7, 2006

    “The quality of mercy is not strain’d; It droppeth as the gentle rain from heaven upon the place beneath. It is twice blest: It blesseth him that gives and him that takes.”  So said Portia, a woman acting as a lawyer, in Shakespeare’s The Merchant of Venice.

     It is upon this “quality of mercy” that the notion of clemency is based.  For ages, kings and rulers have reserved the right for themselves to forgive those caught up in the gears of justice.  Pontius Pilate had had the right to grant a pardon to Jesus who stood before his accusers but then had refused.

     In Federalist Paper No. 74, Alexander Hamilton argued in favor of a Presidential pardon as a loophole or a release from the heavy machinery of justice.  “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.”

     Hamilton also believed that this power should be exclusively vested in a single person, the President.  “One man appears to be a more eligible dispenser of the mercy of government than a body of men,” he wrote.

     In Article II, Section 2 of the Constitution, the Founding Fathers granted to the President the exclusive “Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.”

     Franklin Roosevelt granted the most pardons: 3687.  Two Presidents did not live long enough to grant any: Garfield and William Henry Harrison.  Of those who did, the least granted was George Washington with only 16, including those who had defied Washington’s government in the Whiskey Rebellion.

     The most magnanimous pardons ever given were those by Lincoln and then Andrew Johnson, who pardoned the Confederate officers who had seceded from the Union.

     But the most controversial was Gerald Ford’s pre-emptive pardon of Richard Nixon for all crimes associated with Watergate, before he had even gone to trial.  Ford had become President upon Nixon’s resignation on August 9, 1974, and a month later on September 8 he granted Nixon a pardon, causing an immediate uproar and howls of protest.  Ford defended his decision on October 17 before the House Judiciary Committee, arguing that it was a matter of public policy in that he wanted to end the national divisions that Watergate had created.

     Jimmy Carter pardoned those who had evaded military service in the Vietnam War by dodging the draft or fleeing to Canada.  Then, in 1992 George Bush, Sr., pardoned six Reagan officials involved in the Iran-Contra affair, including Caspar Weinberger.

     But the strangest display of clemency was Bill Clinton’s.  On his last day in office in January of 2000, he signed his name to 140 pardons and 36 commutations.  Why he did that he never adequately explained, but one of those he pardoned was Marc Rich, a high-profile financier who had fled the country years before for income tax evasion and other crimes.  The Justice Department was very anxious to get their hands on Rich, but then Clinton pardoned him.  The outrage at Clinton’s inexplicable action was quite intense.

     Lawyers in the George Bush’s new administration were hoping to undo Clinton’s actions by arguing that pardons were like warrants in that they might require delivery to be valid, but that line of reasoning was not pursued.  George Bush announced that he would allow all Clinton’s pardons to stand.  But there was little he could do: a Presidential pardon cannot ever be reversed.  The best that Congress can do is pass a resolution condemning a Presidential clemency order, which is what Congress did in 1999 for another of Clinton’s pardons.

     In the wake of Clinton’s highly controversial action, it is unlikely that Bush will grant many pardons: only 69 through the end of 2005.

     Justice and mercy.  They both call out for our attention.  “Consider this, that in the course of justice, none of us should see salvation.  We do pray for mercy, and that same prayer doth teach us all to render the deeds of mercy.”