End-of-term clemency is a centuries-old, often vilified tradition
Is a governor’s power to pardon criminals a valuable tool to correct unjust sentences or does it undermine the rule of law by allowing politicians to forgive offenses as personal favors?
Legal experts contend that this vestige of a sovereign’s absolute power does both.
Clemency grants at the end of a governor’s or president’s term have become a routine departure ritual, gaining attention only when they offend the public’s idea of fairness, as did President Clinton’s 2001 intervention to forgive fugitive financier Marc Rich and President Ford’s pardon of his predecessor, Richard M. Nixon.
Former Gov. Arnold Schwarzenegger’s commutation of the 16-year sentence for Estaban Nuñez, the son of political ally and former Assembly Speaker Fabian Nuñez, spurred outcries of cronyism and threats to challenge the reduced penalty as an assault on justice.
But the authority of a state or federal executive to overrule a court’s judgment is immutable, leaving the citizenry without recourse beyond the right to denounce it as an abuse of power.
The concept of a leader empowered to free prisoners harkens back to ancient Greece but was modeled for the New World on the pardon powers of the English kings, much to the consternation of the colonists who sought to exclude or at least restrict it from the U.S. Constitution, said P.S. Ruckman Jr., a political science professor at Rock Valley College in Illinois, one of the few academics focused on the arcane throwback to days when law was regularly trumped by the whims of kings.
“The abuse of pardons is a great tradition,” Ruckman said. “Kings used to grant pardons to celebrate their birthdays, raise an army, populate colonies or just to raise money.”
All 50 states have some form of executive pardon power, but with “wild variations and constant change,” as legislatures seek to restrict the exercise of the power by requiring clemency board consensus or consent by lawmakers or the courts, Ruckman said.
Modern day abuses are the exception, though, legal experts contend.
“I don’t think it’s a serious problem. It’s almost as if we have this annual ritual on both the state and federal level where legitimate questions are raised about commutations and everyone goes through a lot of hand-wringing about how we got this bizarre principle,” Robert Weisberg, a Stanford University constitutional law professor, said of the clemency power controversies that punctuate political administrations.
Although the dubious grants garner most of the attention, the power has to be broad to allow its use for “morally admirable purposes,” Weisberg said, noting Ohio Gov. Richard Celeste’s 1991 commutation of eight death row inmates’ sentences, most of them women who had been victims of spousal abuse and racial discrimination.
Margaret Love, an attorney in Washington, D.C., specializing in executive clemency and restoration of rights, said governors and presidents risk tarnishing their legacies when they stray from the legitimate objectives.
“The power may be unconstrained, but a governor or president acts at his own peril when he goes outside of the established administrative procedures” for considering clemency petitions, she said. She pointed to Clinton’s last-minute pardons, which included heiress Patricia Hearst, Whitewater figure Susan McDougal, former CIA Director John Deutch and Rich, who was on the FBI’s 10 Most Wanted list.
In California, the governor can unilaterally issue pardons, without consultation or even public announcement. The state Constitution empowers the governor to “grant a reprieve, pardon, and commutation, after sentence, except in case of impeachment.” Its sole other restriction prohibits granting clemency to any person twice convicted of a felony unless at least four of the state Supreme Court’s seven justices endorse it.
In announcing that he was cutting Esteban Nuñez’s 16-year sentence to seven years, Schwarzenegger said the former speaker’s son deserved leniency because he was an accomplice, not the killer, in the campus knife fight that left 22-year-old Mesa College student Luis Santos dead.
“I do not discount the gravity of the offense,” the governor’s statement said. “But given Nuñez’s limited role in Santos’ death, and considering that ... Nuñez had no criminal record prior to this offense, I believe Nuñez’s sentence is excessive.”
Prosecutors and Santos’ family were outraged.
“A pardon, clemency, or commutation cannot be undone; in other words, once it is granted, the same or another governor cannot change it, except to improve further the petitioner’s situation,” said John Caragozian, a Loyola Law School professor of California constitutional history.
Those who follow constitutional law in the state say they are unaware of any challenge to past grants of clemency by California governors, although controversial exercises of the power have been appealed — unsuccessfully — in other states. Illinois Gov. George Ryan’s 2003 commutation of all 167 death sentences among Illinois inmates, for example, was taken to court but upheld as within his defined powers.
Most experts see enduring value in an executive’s ability to step in and rectify an injustice or show lenience where a judge or jury chose not to.
“In the main, it gives people who are convicted of a crime yet one more opportunity to get a government office to review it and make a determination whether the sentence is unjustified or excessive,” said Jesse Choper, a constitutional law professor at UC Berkeley’s Boalt School of Law. “Very often there has been no legal error but nonetheless it may seem unjust.”
“The pardon power is an important check and balance, if used carefully and wisely. But any power is prone to abuse,” said Daniel Kolkey, former legal counsel to Gov. Pete Wilson and now in private practice in San Francisco. “Ultimately, it’s human beings who are governing. Nothing is risk-free.”