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How Criminal-Law Reform Mimics Clinton's Pardon Decisions

March 11, 2001|Samuel H. Pillsbury | Samuel H. Pillsbury is professor of law at Loyola Law School

Bill Clinton's last-minute clemency decisions illustrate a nasty truth about crime politics: Personal situation, not principles, counts most. Sadly, this same flaw can be detected in more important, and vastly more popular, criminal-law reforms like harsh, mandatory sentences.

Putting aside the still-contested role of political contributions in the former president's grants of clemency, consider his decisions as a matter of criminal justice. From what is known, Clinton approached his clemency decisions without an overall plan or prescribed process; he decided many cases based on limited information from friendly but clearly biased sources (petitioners' lawyers rather than case prosecutors); he focused on individuals rather than on the system as a whole; and he generally trusted his own intelligence, personal experience and instinct to guide him when he needed the advice of others who could offer a rival perspective.

The modern trend has been to restrict grants of leniency, whether by parole or executive clemency. In his first seven years in office, Clinton fit this pattern of executive action, granting considerably fewer pardons than did his predecessors. The reason was chiefly political: The public overwhelmingly desired harsher punishment for felons.

Putting aside its use to right historical injustices, a pardon's main purpose is to forgive the legally guilty. In this sense, a pardon represents a striking exception to our reliance on legal rules to exact justice.

For a governor or a president, the greatest challenge is to exercise this discretionary power in a principled fashion. Because every pardon stands as a potential rebuke to the rule of law, its granting must recognize a truly exceptional situation.

More than anything else, it was Clinton's failure to consider this larger picture that makes many of his pardons suspect. In many cases, the arguments that favored the successful petitions apply with greater force to cases never considered for clemency because of a lack of money or connections to the White House.

Consider the commutation of drug dealer Carlos Vignali's sentence. Any argument that Vignali's original sentence was too harsh for his role in financing a major cocaine operation must stand up to the examples of others who are serving more time in federal prison for lesser drug offenses. Similarly, if the wiretapping and informant methods used to catch Vignali were unfair, they must be unfair in the thousands of drug cases where convictions were obtained using just such methods.

Clinton could have used the pardon power to send a moral message about the injustice of contemporary federal drug-sentencing laws. Instead, his pardons of such petitioners as fugitive financier Marc Rich and herbal remedy marketer Almon Glenn Braswell sent a quite different message about the state of our democracy: Ours is a government of the insiders, by the insiders, for the insiders.

But Clinton's pardons also raise important questions about how we make criminal-justice policy. The most obvious result of the tough-on-crime politics that now dominate both Republican and Democratic approaches to criminal justice is the number of people behind bars in the United States, now more than 2 million, an enormous increase over the past two decades. How did this happen?

Surely, new mandatory sentences, penalty enhancements, truth-in-sentencing provisions lengthening time served, the elimination of parole and other changes all stemmed from careful study, consideration of rival approaches and close attention to human consequences. Certainly, it must be the case that changes leading to the incarceration of the entire population of a major city, unprecedented in the democratic, industrialized world, were accompanied by a deep sense of humility at the face of such an awesome use of the state's power to deny liberty. Right?

Truth be told, the criminal-reform process has been positively Clintonesque. The nation's leaders, armed with the voters' consent, have displayed an eagerness to demand large chunks of others' lives for nonviolent offenses, without seriously considering either alternatives or the consequences.

The question is not whether the incarcerated are generally guilty as charged or whether they merit some punishment. Rather, it is whether long-term incarceration is the best way to address the wrongs of their conduct.

Like the former president, recent reforms reveal a deep distrust of otherwise respected members of the criminal-justice system. "Minimum mandatory" and other sentencing laws dramatically reduce judicial authority over sentencing, traditionally the judge's most important decision in criminal cases. They significantly diminish the say that juries have over the fate of the accused. These same laws also exacerbate class and racial inequities, but because this is an unintended effect, few object. Like Clinton, we presume that good intentions exonerate us from blame.

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