Real Pardons for Real People

By Noah Marks

The minor political crisis that unfolded over the weekend, fallout from the Presidential pardon of “Mac” and “Cheese” and Sasha and Malia’s apparent boredom, has claimed at least one person’s job. The President, puzzled by the tradition, echoed his recent immigration executive order by claiming that the act is “fully within” his “legal authority” to “spare the lives of two turkeys . . . from a terrible and delicious fate.”

Presidential turkey pardons apocryphally date to Harry Truman, but the first confirmed, formal(ish) pardon took place in 1989 by George H.W. Bush. In fact, only in recent years (since George W. Bush) has it become custom for the President to pardon both turkeys. This year, President Obama ignored requests from PETA, who called on Sasha and Malia to urge their father to end the tradition and have a vegan Thanksgiving.

At the risk of over-analyzing and ruining one of the few light moments in a President’s life, we should take Thanksgiving and the turkey “pardon” as an opportunity to evaluate the ever-diminishing role of the real pardon. Unlike the photogenic turkeys, our world-leading incarcerated population is invisible, disenfranchised, and all too easily ignored.

Even given the laudable clemency initiative, President Obama has granted pardons and clemency less than Presidents Bush, Clinton, and Reagan had at comparable points in their presidencies. You are only slightly less likely to be born with 11 fingers or toes than to receive favorable review from the Obama pardon office.

Unlike questions about the margins of executive power, the President has explicit constitutional authority to grant pardons — it is among the least limited powers of the Presidency. Furthermore, Presidents, including Washington and Lincoln, have used the power to mitigate punishment for classes of offenses rather than individuals. One benefit of such an approach is that it protects the administration of law from becoming arbitrary and capricious and from treating individuals who commit the same crimes wildly differently.

Fundamentally, the purposes of criminal sanctions are deterrence, retribution, and incapacitation. President Obama has spoken and acted in favor of reforming criminal law to be more fair and equitable. To date, reforms have been forward-looking. Hopefully, the new clemency initiative and the President’s recent experience with fake pardons will inspire more real pardons saving real people from injustice.

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