By Samuel Morison, a criminal defense attorney in Washington, D.C., and a former staff attorney at the Office of the Pardon Attorney.
For most of this country’s history, the practice of executive clemency has quietly functioned as an ancillary feature of the criminal justice system, without attracting much attention. The purpose of the pardon power, as the Founders envisioned it, was to fill the inevitable gaps in the just and humane infliction of punishment. In addition to being a failsafe to correct injustices that escaped judicial scrutiny, executive clemency was conceived as an equitable vehicle for bestowing legal “forgiveness” in appropriate cases. As the Supreme Court observed in Ex Parte Grossman, “[t]he administration of justice … is not necessarily always wise or certainly considerate of circumstances which may properly mitigate guilt.” Hence, “[e]xecutive clemency exists to afford relief from undue harshness or evident mistake in the operation or enforcement of the criminal law.”
Beginning in the 1970’s, however, under the influence of the “new retributivism,” the prevailing rehabilitative paradigm began to collapse, along with the traditional practices of discretionary sentencing and parole. In its place, we have witnessed the ascendance of determinate sentencing schemes, including strict mandatory minimum penalties for a broad array of offenses, most notably the distribution of illegal drugs. However well intentioned, the rhetoric of retribution quickly degenerated into a crass endorsement of punitive incapacitation for its own sake, with little regard for what any particular offender actually deserves. The result has been a burgeoning federal prison population of more than 200,000, coupled with thousands more ex-felons who labor under the burden of lifetime collateral disabilities.