Written into the US Constitution is the well-known power granted to the President, the ability to Pardon those convicted of a Federal crime. The power to reduce their sentence or fines and restore such things as voting rights and eligibility for certain jobs.
The power is described in Article 2, Section 2:
Article 2 - The Executive Branch
Section 2 - Civilian Power Over Military, Cabinet, Pardon Power, Appointments
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any subject relating to the Duties of their respective Offices, and he shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.
The exercise of this power is, and has always been, controversial. That one man, occupying the highest office in the land, and a political office at that, shall have the power to re-write the entire justice system as it relates to a specific case, at his pleasure.
It seems on the face of it, to almost suggest a left-over from colonial, nay Monarchical times. As it does. It was modeled on the much more ancient Royal Prerogative, although adapted for a more modern era. So this power exists, and I am going to argue that it should be used.
Alexander Hamilton, writing in The Federalist March 25th, 1788:
It is not to be doubted that a single man of prudence and good sense, is better fitted, in delicate conjunctures, to balance the motives, which may plead for and against the remission of the punishment, than any numerous body whatever.
He went on to explain why it would not be reasonable to insist that decisions on matters such as this should need confirmation by either the Senate, or the States:
It deserves particular attention, that treason will often be connected with seditions, which embrace a large proportion of the community; as lately happened in Massachusetts. In every such case, we might expect to see the representation of the people tainted with the same spirit, which had given birth to the offense. And when parties were pretty equally matched, the secret sympathy of the friends and favorers of the condemned person, availing itself of the good nature and weakness of others, might frequently bestow impunity where the terror of an example was necessary. On the other hand, when the sedition had proceeded from causes which had inflamed the resentments of the major party, they might often be found obstinate and inexorable, when policy demanded a conduct of forbearance and clemency.
Critical, however, in the light of recent events was the coup de gras:
But the principal arguments for reposing the power of pardoning in this case in the Chief Magistrate is this--In seasons of insurrection or rebellion, there are often critical moments, when a well timed offer of pardon to the insurgents or rebels may restore the tranquility of the commonwealth; and which, if suffered to pass unimproved, it may never be possible afterwards to recall.
When President Obama was first elected, there were immediate calls from the left for the indictment of members of the previous Administration on charges of war crimes. Even if it was unrealistic for America to send a President and Vice-President to the Hague, and even more unrealistic that the Hague wanted them, there was nothing to prevent Articles of Impeachment being brought in the House. Democrats had control of the House, and of the Senate where the trial would be held.
These calls were not simply ignored, they were answered by the President. Barack Obama was clear. This was to be a time of healing. A time when the nation could reflect on the past, and build a bi-partisan future. The economy was in a terrible state, we were fighting two wars, and splitting the country, as such an action would have done, was not the President's priority. Indeed, he was plugging straight into the rationale of Alexander Hamilton. In a time of national crisis he was going to be the President who preemptively pardoned the sins of the past in order that we might move forwards together. Five years on we all know just how well that worked out.
Barack Obama may have had Thomas Jefferson as his guide and inspiration. Jefferson pardoned many imprisoned under the Alien and Sedition Act, legislation Jefferson felt unconstitutional. The spirit of bi-partisanship being alive and well, Texas State Board of Education also took some inspiration from Jefferson, they tried to remove him from the history books.
The exercise of political power is ALWAYS political. There are no exceptions. The various tools available to a politician are the levers of power, to be used to further the platform on which the election was won. We sent Barack Obama to the Oval Office to make changes. Substantive changes. Changes that would last for generations, breaking the monopolies that seek to disadvantage the majority of Americans; or at least to try!
The President has scored some notable successes. The Lilly Ledbetter Act was passed early on and, in the face of unprecedented opposition, so was The Affordable Care Act. Watered down to be sure, but still able to provide a springboard to Universal Healthcare down the road. Other successes followed, but failure to call the banks to account, and some very odd appointments were indicative of a Presidency that might be a little less Hopey Changey than many had wanted. Nonetheless, a completely dysfunctional House of Representatives makes much of the ambition moot, because they are not about to pass even a kidney stone, let alone any legislation.
Of late, the President has indicated that he will govern by Executive Order, because governing actually matters, and he has done so in the areas affecting climate change. He has the tools and is showing a determination to use them, at least in some instances.
So I therefore ask the question: Why the hell is Don Siegelman still in prison?
Siegelman was sent to prison as the result of a right wing conspiracy. So egregious was their behaviour that over 100 Attorneys General filed an amicus brief with the United States Supreme Court, on his behalf. This was a bi-partisan (there's that word again) effort. The SCOTUS punted. Presumably they took the view that they did not want to get involved in a case that would limit the ability of politicians and candidates to raise money, and govern. They thought that decision was best left to a District Court Judge, and sent it back. Given that Justice Sotomeyor would likely have recused herself, we might be glad they did so. Whatever.
This was a political act, and it is well within the scope of the President to set it right. Indeed, when the justice system fails to deal effectively, then this is a case where "a single man of prudence and good sense, is better fitted, in delicate conjunctures, to balance the motives, which may plead for and against the remission of the punishment, than any numerous body whatever."- Hamilton 1788
I mention this case simply because it is obvious. So obvious it has been written about ad infinitum, yet still the man is in prison. It would be perfectly proper for the President to pardon this man, and to do so as publicly, loudly and politically as he can muster ... and he "musters" very well. To draw attention to the abuses rife in the system, to make an example of those who perpetrated this fraud on the justice system. To call them on their shit and make it perfectly clear that he will do so again and again until he is timed out. What are they going to do? Vote to defund Obamacare? Cry? Go on Fox News and call him names? This single act, would go a long way to restoring a little faith.
The DoJ has stated that certain minor drug offenses, where guilty verdicts would lead to a mandatory minimum sentence, will not be prosecuted. The President cannot change the law because Obamacare, but he can order prosecutorial discretion. He can also do a great deal more. He has the power to commute the sentences of every poor bastard caught in this iniquitous regime. So do it. Reduce those sentences. Repurpose some of the War on Drugs money too. I am aware that the DoJ is independent of the White House. I do not believe that they fail to communicate.
Is this political? Well yes, it is highly political and the right would hate it, and hate him for it. So what? Most recent Presidents have not been shy to use the pardon power politically. Ford pardoned Nixon. Clinton pardoned his wife's brother's friend. GW commuted the sentence of Scooter Libby, possibly the most political of them all.
I find it hard to believe that a pardon for Don Siegelman would be nearly as controversial, or political, as those above. Except it is this President, so it would indeed be seen as political. Good. Barack Obama has been, how shall I put this ... frugal with this powerful authority, pardoning only 39 people, almost all for minor offenses. It is time to use it effectively.
Maybe now is the time to actually politicize the Pardons Office. This might, at first thought, seem to run counter to the idea that justice should be dispensed on its merits. That adding a political role to that office, serving the self-interest of one side of the political divide, runs counter to the notion of equal justice. I would agree that this is correct should anyone, in any way, manage to persuade me that the Pardons Office, and the Criminal Justice System is not already deeply entrenched in the political process in this country. If any reader can, hand on heart, assure me that equal treatment is given to black defendants and prisoners, as compared with their white counterparts. That those with wealth are prosecuted, tried and sentence without favor over those of limited means. If it can be demonstrated that all men are equal, and treated equally, then I'll pack up my tent, go home and quit writing.
I'll demonstrate this point with one case. A case that highlights everything that is currently wrong with the current system. Even the current White House, with its parsimonious attitude to clemency and pardons is aware that something is going wrong.
Let me introduce you to Clarence Aaron.
Clarence Aaron seemed to be especially deserving of a federal commutation, an immediate release from prison granted by the president of the United States.
At 24, he was sentenced to three life terms for his role in a cocaine deal, even though it was his first criminal offense and he was not the buyer, seller or supplier of the drugs. Of all those convicted in the case, Aaron received the stiffest sentence ...
Clarence Aaron was denied clemency
... The work of the pardon office has come under heightened scrutiny since December, when ProPublica and The Washington Post published stories showing that, from 2001 to 2008, white applicants were nearly four times as likely to receive presidential pardons as minorities. The pardon office, which recommends applicants to the White House, is reviewing a new application from Aaron. Without a commutation, he will die in prison.
I make no comment about the white prisoner referred to in that story. It is quite likely that he deserved clemency too, but the fact remains that on the details of the case, the black guy had the stronger case.
The President has the authority to set up a "Reconciliation in Sentencing" Office. That office could review any case sentence under mandatory minimums, and the President could then impose a sentence that the crime demanded. The office could also immediately review the sentences of every Federal prisoner currently still in prison. It could be mandated to review ALL sentences, but also have the task of removing the color bar.
The Administration could do one more thing. They could remove the impediments to employment and housing to former felons. For non-violent, non sex related crimes carrying short sentences, they could close the prisoner records to the public. Safeguards could be put in place for certain "reserved occupations". If we are going to promise prisoners a fresh start in life, a second chance, the opportunity to make a positive contribution; then we really ought to make sure they get one. An expanded probation service would be more than capable of conducting the required monitoring and supervising.
Which brings me to Bradley Manning.
Manning broke the law. In addition, and this matters to many, he broke his oath. I think that second bit is arguable, as an aggravating factor, but this is not the place. Regardless of what we might think of guilty pleas under these circumstances, the fact remains that Manning did release official secrets, and he did plead guilty.
However, in every criminal case it is the duty of the court to consider the motive. Bradley Manning did not seek financial gain from his crime, nor did he obtain any. The consequences of the crime were restricted to embarrassment to the State Department. It has never been established that any person suffered from the release of documents, although that has been alleged. Nonetheless, the release was indiscriminate and Manning could very easily have caused real harm. Some criticize him for failing to go through the chain of command to register his concerns. Well he did actually try to do the right thing, before he did the wrong thing.
Bradley Manning was a kid. He is still a kid, young enough to have remained on his parent's healthcare plan should he have needed to. But he did display one quality that should make his parents, and the rest of us, proud. The kid had courage!
However misplaced his thinking, however heinous some consider his crime to have been, he knew the difference between right and wrong in his own mind, and he found the strength to act on that belief. This is a young man who displayed all the qualities we hope to see in our younger generation. He was let down very badly by his elders and superiors. They did not take him seriously in a belief that the UCMJ was sufficient to keep hidden that which they would prefer never see the light of day. They were wrong, and Manning is paying the price for the failure of the military to keep its own house in order.
Part of any prison sentence is a punishment for a crime committed. That is not unreasonable, providing that our values dictate that the punishment is dictated by the crime. We see imprisonment as an integral part of that process. What we do not countenance is unduly harsh treatment of prisoners, especially when that treatment clearly crosses the line between punishment and torture. Torture is a crime against humanity, and a person subjected to such a regime is deserving of our sympathy, and restitution.
Bradley Manning has accepted his part in the wrongdoing. He has already served three and a half years in prison under conditions that can accurately be described as torture. The addition of 118 days to his "time-served" is both an acknowledgement that he was appallingly treated, and a pathetic attempt to make amends. I ask you to consider yourself in that situation. Go on, close your eyes and be Bradley Manning for a minute, then try to explain why another eight years in jail will serve the interests of society.
The President can fix this. He is perfectly able to make it very plain that he disapproves, with the full weight of his Office, of the crime that was committed. He is also, and at the same time, able to show the guy some mercy. He can send Manning home to his family with the stroke of his pen. He could, and in my belief should, commute the sentence to "time-served".
If you are still with me, and have not already ranted in the comment section about my choice of Title for this piece, I'd like to finish by examining that choice.
Nelson Mandela was convicted of crimes which included planning to violently overthrow the government. He was a man who held a deep conviction that the racist system of government was both immoral and wrong. Throughout his life at liberty, and in the face of extreme danger, he acted on those beliefs. According to the law prevailing at the time, Nelson Mandela committed violent crimes against the State, and was jailed for life.
At the time this was happening, much of the United States was still segregated. We celebrate Martin Luther King as a hero of the Civil Rights movement. America had largely moved beyond the excesses of the apartheid regime by the time Mandela was imprisoned, but I say "largely", because the work was not yet complete. It is still not yet complete as the criminal justice system in this country demonstrates, every day.
So I wonder what might have happened had Nelson Mandela's case been referred to the Pardons Office. If we cannot bring ourselves to show clemency to Clarence Aaron, what would the chances be of a black man convicted of attempting to overthrow the government? It cannot be said that the government at the time was enlightened, although significant moves were in hand to make it so.
If we are safe and secure in our multi-cultural society. If the President really is the President of all the people, then he really should think seriously about removing the clear evidence of racism that still manifests in the current justice system.
It would not be easy. Barack Obama would be reviled by many, because that would be different! He would face fierce and prolonged criticism, and that opposition would be very well funded.
It would take courage. He would be called "racist", and worse. It would be every nightmare envisioned by the right wing when they think about Affirmative Action, and then some. Doing what you feel is the right thing, regardless of the personal cost, and even when it turns out that you were wrong, takes a special kind of courage. Bradley Manning might have been criminally wrong to do what he did, but his courage is not in doubt. There are many in Congress and State Houses all over the country, who could do far worse than learn how it feels to be Bradley Manning for a day.
Oh yes ... I rather think that Barack Obama, the man we have twice elected President, would have pardoned Nelson Mandela. I certainly hope that he would. When the rights of citizens all over the country are being rolled back. Union rights, women's rights, voting rights ... sometimes hope is all that keeps you going.
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2:58 PM PT: I'll confess to a little surprise, and some disappointment.
There are 3200 words in this Diary, and none of them demanded, or asked, for a pardon for PFC Manning.
If all you take away is that this is "just another Manning Pardon Diary", then you missed the point entirely.
So no, I am not comparing Nelson Mandela with PFC Manning, I am commenting on the Pardon System and trying to make some suggestions on how it might be made to work.