The title of this post is the title of this notable new article authored by Mark Osler in the latest issues of the Journal of Law & Politics. Here is part of the piece's introduction:
In this essay, I will not call for the abolition or restriction of the Pardon Power, even as we struggle with the seeming unfairness of some recent grants of clemency. Instead, I argue that we must embrace what the Pardon Power is, and recognize the true nature of this tool of mercy. We don’t need to drive a stake through its heart. Rather, it requires a more consistent and committed public attention than we have given it, which among other things should include a discussion of its use by those who seek the office of president.
Section II below will offer an overview of the more striking employments of the Pardon Power, with a focus on its uses and abuses by more recent presidents. The controversial aspects of clemency often precisely track the controversial aspects of a president’s personality; that is one reason that we see a discontinuity not only in whether clemency is used or not, but in the way that its use reflects different values in different administrations.
Section III will then look backward at the Constitution’s soul and its roots. Clemency drew on English precedents, but its core idea of mercy was woven into the culture of the time. For example, it is a primary theme in Shakespeare’s The Tempest — and George Washington went to see The Tempest during the Constitutional Convention. At that Constitutional Convention, the Pardon Clause was actively debated, and its final form survived a direct challenge that proposed the power be shared with the legislature.
Finally, Section IV will consider the arguments for and against maintaining the Pardon Power as an unalloyed tool of the president. In the end, the use of clemency has been a net good, in that the positive uses have outweighed the controversies. The institution continues to connect us to the core value of mercy, maintains the intent of the Framers, and gives hope to those who are incarcerated. This section closes by considering what we can do when we are dismayed by the exercise of clemency, as will happen when an action follows a conscience not our own.
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