Updated January 7, 2021
Should the President of the United States be able to commute a convicted felon’s prison sentence? Should the President have the power to pardon a convicted felon? These are two interesting questions.
Recent events regarding the commutation of a jail sentence by the U.S. President, have brought to light, perhaps, the necessity for reform in both the Justice Department as well as certain powers available to the President of the United States via the Executive Branch. As it stands now, under Article II, Section 2 of the United States Constitution, the President “shall have the power to grant reprieves and pardons for offenses against the United States, except in case of impeachment.” The word reprieves as defined by Webster is “to postpone or cancel the punishment.” Furthermore, Webster’s legal definition of the word commutation is, “reduction of a penalty to a less severe one.” Therefore, if a President commutes a convicted felon’s prison sentence, the sentence can be reduced to anything less than the minimum sentence, including no sentence at all.
Now think about this for a minute. A person was convicted in a United States court of law by prosecutors presenting evidence that a person broke the law. That evidence was reviewed by a judge and either allowed or disallowed. If allowed, it means the jury upon closing arguments, reviewed the case evidence. Remember also, in order for a jury to come back with a guilty verdict, it means all twelve jurors agreed the evidence was so overwhelming that everyone on the jury voted the defendant guilty of the charge. So, why would a President ever commute a prison sentence of a convicted felon?
If we had lawyers in the room, most likely they could come up with possible scenarios whereby the commutation of a prison sentence might be in order. Historically, the power to pardon was embedded in English culture because the king had this power. Therefore, when The Founding Fathers wrote the constitution, they gave the President the power to pardon as a check and balance against the Judicial Branch (Waxman). It turns out they had good reasons to do so. For example, we know each state has somewhat different laws. Suppose the penalty for the distribution of an illegal substance in one state is five to twenty years in prison while in yet another state it is twenty-four months in prison. This may seem like a dumb example but there are significant differences among the states in how they punish people who break a law. In addition, what if new evidence emerges years later that shows the prosecutor should never have charged that person in the first place. What comes to mind is the emergence of DNA evidence that proves a convicted felon was innocent of the crime. In such cases, showing that person mercy by pardoning him/her immediately is the humane thing to do.
These are all good reasons why the President has a pardon power. However, what if the convicted felon could be a key witness in a possible future trial against a sitting/former President? Do you think the President should have the power to either commute or if the convicted felon is in jail serving his sentence, pardon him/her? Founding Father George Mason worried about this very same thing as he struggled to come to grips with ratifying the new constitution (Herwick III). Recent current events would seem to support Mason’s fears and more.
A long-time friend and ally of the President, Roger Stone had both his sentence commuted as well as he received a pardon. Stone was allegedly involved in the conspiracy with Wikileaks founder Julian Assange to leak information about Hilary Clinton’s emails during the 2016 election. Eventually, a jury convicted him of five charges in November 2020. The charges ranged from lying to Congress, witness tampering, and obstructing a congressional committee proceeding during the Russia investigation (Brown).
Since then, additional pardons issued by the President seem to indicate a pattern of helping friends and allies who were involved with him in various political dealings (Schwartz). This is not what the Founding Fathers had in mind for the pardon power. A few examples of this pattern included prodding the Attorney General of the U.S. to drop charges against Michael Flynn. He pleaded guilty for lying about discussions with the Russians during the 2016 election campaign. The President later pardoned him. In addition, Paul Manafort was pardoned. He too was involved in the 2016 election and gave a Russian national election polling information. He also lied to the Vice-President (Brown). Then there was the pardoning of George Papadopoulos for issuing false statements about his involvement with Russians during the 2016 election. Of course, do we need to say much about pardoning the President’s son-in-law’s father (Pardons Granted by President Donald Trump).
Perhaps the worst pardons involved the pardoning of three convicted murderers. Historically, a pardon has been used for non-violent offenders. However, these three individuals were serving as guards for a company operating in Iraq. One day while on duty, the guards claimed they came under sniper fire. Witnesses later testified there was no evidence of this. For whatever reason, the guards began firing indiscriminately into traffic in a public square. When the smoke settled, fourteen Iraqi civilians were dead, some of which were merely passing by in their cars and others were wounded (Castronuovo). The guards were prosecuted and convicted on charges of murder in the first degree and involuntary manslaughter (Pardons Granted by President Donald Trump). Following the pardons, international cries arose condemning American justice.
Clearly, if there is to be equal justice for all in the United States, we must consider major reforms to both the Justice Department as well as a President’s executive power, like the power to pardon. Below are some ideas to ponder.
- No person can be above the law!
- Once confirmed, the Attorney General (A.G.) will function independent of the President of the United States for a period of eight years or until the A.G. is removed from office by Congress. Furthermore, the A.G. will be a political, meaning they will not favor the President, or any political party while in office. There will be no political lawyering for any governmental official, including the President. This is essential if we want our Justice Department to uphold the laws of the land for all people of the United States of America.
- The Justice Department must also be a political and independent of the Executive Branch. This would enable the Justice Department to apply the laws of the land equally no matter who is charged with an offense. There should be either no or little Presidential interference, thereby resulting in a lighter sentence or even charges being dropped for a convicted felon.
- Furthermore, the President of the United States cannot commute or pardon a sentence handed down by a jury for a convicted felon serving time in a federal prison if the criminal in question had anyone to do with an investigation of a sitting President.
- A President cannot pardon a person serving time in jail for a crime unless the convicted felon has served the minimum of their sentence and has been recommended to the President for a pardon by the pardon process or has been proved innocent by emerging evidence.
- It will be the responsibility of the A.G., with the help of the Justice Department to bring charges against anyone in the United States, including the President, while in office or anyone in the government, if they have evidence, he/she violated a U.S. law(s) or international law(s).
These are our ideas. What do you think? Get involved. Please comment and thank you for caring enough to read this blog.
For more information on this topic, refer to the references listed below. In addition, for more ideas on reforming and modernizing the federal government, refer to A Call To Reform. If you do not own a copy of the book, you can order one on the home page of this website or go to Amazon or Barnes & Noble. It’s an easy read and packed full of information on the history of America’s human rights, civil liberties, and important legal concepts as well as numerous reform ideas.
Brown, Pamela, Paul LeBlanc, Katelyn Polantz and Kevin Liptak, CNN. “Trump Issues 26 new pardons, including for Stone, Manafort and Charles Kushner.” CNN Politics. Web. Updated Wed December 23, 2020.
Castronuovo, Celine. “Blackwater guard defends actions following Trump pardon, saying, ‘I’m just confident in how I acted’:AP The Hill. Web. January 3, 2021.
Herwick III, Edgar B. “Why Did The Framers Give The President A Pardon Power?” GBH News, Boston’s Local NPR. Web. June 13, 2018.
“Pardons Granted By President Donald Trump.” The United States Department of Justice. Web. January 3, 2021.
Schwartz, Matthew S. “Roger Stone Clemency Latest Example of Trump Rewarding His Friends, Scholars Say.” npr Witf. Web. July 12, 2020.
Waxman, Olivia B. “The Real Reason America’s Founding Fathers Gave Presidents the Power to Pardon.” Yahoo! News. Web. June 7, 2018.