Is Clemency Still Needed?

Former California governor Arnold Schwarzenegger has been in the news lately, because of his last official act before leaving office back in 2011. That act was commuting, from 16 years down to 7, the prison sentence of a young man for his role in the stabbing death of another young man. You see, the man whose sentence Schwarzenegger reduced is the son of the former speaker of the California Assembly, who was a key ally throughout much of Schwarzenegger’s governorship. That fact has led many to conclude that the commutation depended less on the interests of justice than on political cronyism.

But why do we let governors—or the President, for that matter—commute sentences in the first place, much less issue pardons that completely absolve people for their crimes? The governors of 41 states have that power, referred to as the power of clemency, either alone or along with the members of a clemency board. The President’s power to grant pardons and reprieves for federal crimes is explicitly conferred by the Constitution and has been read expansively over the ensuing centuries.

But again, why? In a country founded as a reaction against monarchy, it seems a bit strange to empower a President or Governor to override all the presumably careful work of the criminal justice system—law enforcement officers, prosecutors, judges, juries. We have other checks and balances in the United States, but this one seems a bit, well, arbitrary. And that impression is only strengthened when presidents and governors, like Schwarzenegger, grant pardons or commutations at the very end of their terms in office—some of them controversial and some looking very much like political favors. It doesn’t help that Schwarzenegger had the records of his clemency grants sealed for 25 years.

And yet, executive clemency has been part of American law since the very beginning. The King’s power of clemency goes back a thousand years in English law, to before the Norman invasion. It crossed the Atlantic with the first colonists and came to rest first in colonial governors, then later in the President and the governors of the states, where it has largely remained.

History suggests that one important role of clemency in English history was as a source of revenue; usually, only those who could afford to pay received the King’s mercy. The more high-minded justification for the clemency power, though, was that it was a necessary safety valve for unusual, or unusually sympathetic cases. For much of the history of clemency in England and early America, not just homicide but many less serious crimes were punishable by death. Furthermore, neither prosecutions nor criminal trials offered much in the way of flexibility, at least by today’s standards. In such a system, it was argued, clemency represented an indispensable last chance for mercy.

Truthfully, clemency seems to have worked that way only sporadically; its use to protect political favorites is as old as the power itself. Some experts today argue that executive clemency has outlived its usefulness. The criminal justice system, they argue, includes a lot more flexibility now than in times gone by, so maybe clemency just opens the door to abuse—cronyism and all that—without adding much to the ultimate search for justice tempered by mercy. Others reply, though, that the safety valve is still necessary, pointing to such examples as President Obama’s recent commutation of the sentences of 46 non-violent drug offenders.

Former Governor Schwarzenegger’s commutation of his ally’s son’s sentence might stir up that debate momentarily, as President Ford’s pardon of former President Nixon did in the 1970s. But the odds against any significant changes to the clemency power, either nationally or among the states, are pretty long.

I’m Sean Anderson.