Pardons Are Good, Actually

In the wake of Hunter Biden's pardon, people are calling to limit the pardon power. This is a very bad idea.

On the one hand, I get it— Biden said he wouldn’t pardon Hunter Biden, waited until after the election, and then did.

But on the other hand— did anyone really believe this wasn’t going to happen? Hunter Biden is at least a petty criminal— he’s apparently snorted quite a bit of cocaine off the chests of sex workers. And he may be a tax evader, and the theories of right wingers have him committing serious foreign corruption in Ukraine. Nonetheless, we also should all understand that the actual charges that were brought against him were quite a bit more far fetched than the baseline for these sorts of things, going after Al Capone for tax evasion. He was convicted of not admitting he was a drug addict on a gun form.

Let’s be honest here. You’re President, you have a son, and he is convicted of that sort of charge. Are you really going to “hold the line” and “stand up for the rule of law” and not pardon him? Because I’d pardon him as soon as it became politically practicable.

People get very haughty about the rule of law, especially when it comes to politicians. But the pardon power is very much a component of the rule of law, because a lot of laws are harsh, a lot of laws are silly, and justice has to be tempered with individual consideration and notions of mercy. The pardon power is essential. And that’s why I think the real threat is not the Hunter Biden pardon, but the reaction to it from otherwise sensible thinkers like Stephen Sachs and Matthew Yglesias:

https://x.com/StephenESachs/status/1863384865921519975

https://x.com/mattyglesias/status/1863387541417627651

Sachs and Yglesias are worried about the fairly rare case where a President pardons a crony or a contributor. And sure, that does happen. (I still think Bill Clinton’s pardon of fugitive financier Mark Rich, because his wife was a big donor and probably because he had the hots for her, is still the world champion of “corrupt pardons”. But to be clear, I’m not going to like it when Donald Trump pardons January 6 defendants either.)

But curtailing the pardon power because a few pardons go out to undeserving cronies is, as Frank Zappa might say, like treating dandruff by decapitation. The pardon power is actually essential and its use needs to be expanded, not restricted.

Right now, there are tons of federal defendants who, like Hunter Biden, were convicted of what were essentially BS charges. There’s a popular book that argues that basically everyone has committed federal felonies. Usually these crimes are not prosecuted. But that’s the point— because usually the crimes are not prosecuted, it gives federal prosecutors the option of selectively prosecuting people for them. President Biden mentioned this in his pardon statement on Hunter Biden, and he’s absolutely right about this.

But even where the charges are not bogus, there are other reasons we need pardons. A lot of criminal sentences are way too harsh. For many crimes, the optimal sentence is “swift, certain, and fair”, i.e., not excessive. But in point of fact, the federal criminal code is loaded with mandatory minimum sentences. These laws strip judges of discretion and require the imposition of very long sentences even when they don’t make sense. The only person who can shorten those sentences is the President, through the pardon power.

Mandatory minimums aren’t the only way defendants are over-sentenced. The United States Sentencing Guidelines are not mandatory (they originally were, but the US Supreme Court held that making them mandatory would violate some complicated constitutional doctrines with respect to the proof of facts in criminal cases, so they are now “advisory”). But under current doctrine, judges still have to show good reasons, satisfactory to an appellate court, to sentence a defendant under the guideline range. And that means, in practice, most defendants do get guidelines sentences, which are at least in some cases way too harsh. For instance, the guidelines impose massive sentencing enhancements based on the weight and type of drugs in drug cases. The result is that young adults caught selling drugs in a street gang can end up with years long prison sentences.

Indeed, the entire point of the guidelines was to curtail discretion. It was felt to be a violation of equality for one judge to sentence one defendant to 4 years while another judge sentenced the same crime to probation. But the result of the guidelines is that everyone gets the prison sentence, and it is difficult for judges to impose a below guideline sentence. The President, however, can lower the sentence through the pardon power.

Further, pardons address something else that is wrong with our criminal justice system. As part of a massive reform 40 years ago, Congress ended federal parole, replacing it with something called “supervised release”. This was a way of imposing further punishments on criminal defendants. Instead of getting sentenced to 4 years and getting paroled after 3, you now had to serve the full 4 years (minus only some credits for good behavior in prison) and then after paying your debt to society, you would face the same conditions that used to be part of your parole, and sometimes those conditions would run not for 1 year but for 10 years or even the rest of your life.

Now, to be clear, supervised release is understandable in some circumstances. A limitation on a convicted pedophile working in places supervising children is quite reasonable. But courts have gone hog wild with supervised release conditions, imposing such things as long term bans on the use of the Internet for any purpose. The key point here is that these sorts of conditions make it very difficult or impossible for convicts to reintegrate into the community after serving their sentence (and also serve as a de facto lengthening of their sentence, which may have already been too long to begin with). A presidential pardon can lift these conditions and allow someone to hold a normal job, live in a normal house, and use normal and necessary devices like a cell phone or a computer.

And beyond all of these structural conditions that contribute to mass incarceration in America, there is also the issue of mercy. Some people really do turn their lives around in prison. Some prisoners have aged out of crime and are no longer threats to society. There are surely guilty capital defendants who aren’t deserving of the death penalty. This, by the way, was the original reason for the pardon power. Mercy is an ancient concept. England has recognized a royal prerogative of mercy since at least 1617. Indeed, showing mercy is not only good in itself, but can both facilitate the rehabilitation of convicts and set an example for others that encourages people to confess their wrongdoing. The framers of the Constitution wrote this ancient concept into the Constitution. They wanted our leaders to show mercy.

So we need a pardon power. The abuses are fairly rare. And if anything, our real problems are with the pardon power not being used enough. Presidents are afraid to use it until their lame duck period when they are about to leave office (another point demonstrated by Hunter Biden’s pardon). Also, there’s a large group of tough on crime prosecutors who hate pardons, which has resulted in Department of Justice guidelines that seek to prohibit anyone from getting a pardon until they have served their entire sentence. If there is reform to be had, it should be in making pardons more accessible, not less. That means disbanding the DOJ pardon office and repealing the guidelines, and instead convening a committee of experienced criminal defense attorneys and perhaps former judges to recommend pardons.

It is often pointed out that protecting liberty isn’t popular. If there was a referendum on the First Amendment, it is said, the public would reject it. But a fair, just, and smart society imposes limits on making everyone a criminal and leaving it up to prosecutors to decide who serves very long sentences and suffers lifetime restrictions on their liberty. The pardon power is a bulwark of liberty. Let’s not forget that in the debate over the Hunter Biden pardon.