AS SPECULATION grows about whether President Bush will pardon I. Lewis "Scooter" Libby, or at least commute his prison sentence, it's important to remember the hundreds of ordinary people who have been patiently standing in line, some for many years, waiting for presidential forgiveness. In a sense, it is these largely anonymous applicants for executive clemency (of which pardon and commutation are subsets) who hold the key to the president's ability to help the well-connected Mr. Libby.
This is not so much a matter of fairness as it is of political common sense.
Many of those with pending applications for clemency were convicted long ago of garden-variety crimes and have fully served their time; many others are still serving lengthy mandatory prison terms from which there is no hope of parole (parole having been eliminated from federal sentencing).
One such applicant is my client, Willie Mays Aikens, whose addiction to crack cocaine ruined a brilliant major league baseball career and who is now in the 13th year of a 20-year prison term for selling drugs to an undercover policewoman -- an extraordinarily harsh sentence for a relatively minor, nonviolent drug offense.
There are countless others in similar positions. If the president is unwilling to look favorably on deserving applicants for clemency like Aikens, how can he justify helping Libby?
From this country's earliest days, the president's pardon power has played a practical role. In the Federalist Papers, Alexander Hamilton remarked that "the criminal code of every country partakes so much of necessary severity that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel."
Until about 20 years ago, presidents considered it their obligation to make such exceptions on a regular basis. Fred Fielding, Bush's White House counsel, once described pardoning as part of the "housekeeping business" of the presidency.
Pardons have a symbolic function as well. By making executive grace available to people who have made mistakes, the president can set an example for us all. In government as in personal relationships, the willingness to forgive is a sign of courage and character and makes for a stronger community.
But pardoning has fallen on hard times. Bush has been more sparing in his exercise of the constitutional pardon power than any president in the last 100 years, including his father. He has pardoned only 113 people in more than six years in office and denied more than 1,000 pardon applications. He has granted only three of more than 5,000 requests for sentence reduction from federal prisoners. Many hundreds of applications remain to be acted on.
By contrast, six years into his presidency, President Reagan had pardoned more than 300 people and commuted 13 sentences -- and that was at a time when federal prisoners could still hope for parole. Going further back, President Nixon issued 863 pardons and 60 commutations; President Ford issued 382 pardons and 22 commutations; President Carter issued 534 pardons and 29 commutations.
Bush's pardons have not only been few in number, but they have been remarkably unremarkable. Not one of his grants has been even remotely controversial, an amazing accomplishment at a time when every presidential action is subject to intense scrutiny and may be used as fodder for partisan advantage.
For a president who has been willing to stretch his other constitutional powers to the limit and beyond, Bush has proved strangely hesitant to exercise the one power that is unquestionably his alone.
Yet there is still an outside chance that, in the final 18 months of his presidency, Bush can create a climate in which clemency for Libby would be understood and accepted. If he were to start now to whittle away at his backlog of pardon cases and review the commutation caseload with an eye toward granting a few -- or even more than a few -- sympathetic and meaningful sentence reductions, he could put Libby's case into a larger context before the end of his term.
For example, excessive harshness (which is one of Libby's complaints) is a time-honored reason for reducing a prison sentence. Carter commuted the sentence of heiress Patty Hearst, Reagan did the same for former Maryland Gov. Marvin Mandel and President Clinton cut short the prison terms of a group of Puerto Rican nationalists, all because they considered these prisoners' sentences disproportionate to their crimes. Surely there are a number of people now in federal prison, like Willie Aikens, about whom the same could be said.
Similarly, recognition of good citizenship is a classic basis for granting a pardon. Surely there are some pardon applicants who have rendered the same service to their communities that Libby has rendered to his, albeit on a smaller stage.
The federal pardon power has a proud history, yet in recent years it has been trivialized and allowed to atrophy. The Libby case presents Bush with an opportunity to change that.
If he begins now to exercise his pardon power with more intention and greater liberality, with more sympathy for human error and less aversion to controversy, there is at least a chance that the public will regard with equanimity any relief he ultimately chooses to grant to Scooter Libby.