Would Public Be Served by a Pardon for North? : Good Reasons Needed; Grace Alone Won’t Do

As demonstrators outside the courtroom chanted “pardon North now,” U.S. District Judge Gerhard A. Gesell announced the sentence of convicted Iran-Contra felon Oliver L. North. The former National Security Council assistant was ordered to pay a $150,000 fine, serve two years probation and perform 1,200 hours of community service. Now it is up to President Bush to decide if there is good reason to pardon him.

In 17th and 18th Century Europe, monarchs did not worry about giving reasons. Answerable to no one but God, they granted pardons that--like divine forgiveness--were arbitrary, unearned gifts of grace, bestowed for any reason or for no reason at all.

Most often, their reasons for pardoning were practical and personal. By giving away full pardons, they rewarded friends and undermined enemies. By granting conditional pardons, they populated their colonies and manned their navies. By selling pardons (for prices ranging from two shillings to 16,000 pounds sterling), they supported their mistresses and paid the court musicians. In those days, the very concept of pardon deflected criticism. Since a pardon was a personal act of mercy, not justice, no pardon could be criticized as unjust.

The framers of our Constitution expected Presidents, unlike kings, to pardon with “scrupulousness and caution.” Presidents could grant pardons, Alexander Hamilton wrote in The Federalist, to “restore the tranquility of the commonwealth” during “critical moments.” Or the pardon power could be used to keep the law from being “too sanguinary and cruel” by making “exceptions in favor of unfortunate guilt.” Impeachment is the remedy the framers provided to call to account a President who abused the pardoning power.

Reaffirming this view, the Supreme Court sharply distinguished the presidential pardon from that of the European monarchs. “A pardon in our days is not an act of grace,” wrote Oliver Wendell Holmes in Biddle vs. Perovich. Since a pardon is not an arbitrary exercise of absolute power, it should only be granted for good reason. A pardon is the President’s judgment, Holmes continued, “that the public welfare will be better served by inflicting less than what the judgment fixed.”

The court thus provided a standard against which all presidential pardons can be measured: Is the public welfare better served by pardoning than by punishing this felon?

By this standard, a pardon is not justified if it serves only the President’s private interests or narrow partisan interests. The most blatant abuse in this category is, of course, selling pardons. Gov. James Ferguson of Texas was impeached after 1,774 pardons made him a rich man.

But there are subtle examples as well. President Gerald Ford may have lost his campaign for the presidency because of widespread suspicion that he abused the pardoning power--that he may have promised to pardon Richard M. Nixon in exchange for appointment as vice president. Ford was compelled to defend the pardon as being in the national interest. Echoing Hamilton, he argued that a pardon would preserve “the tranquility to which this nation has been restored.”

The Supreme Court standard also rules out the possibility that a pardon is justified if it serves the felon’s interests. Merciful treatment of an offender who has suffered through an expensive and painful trial must be weighed against the effects of the kindness on the public welfare. After the Civil War, President Andrew Johnson worried about pardoning leaders of the Confederacy: “By a too extended, thoughtless, or unwise kindness the man may warm into life an adder . . . Offenders must be made to feel the extreme rigor of the law . . . to put the seal of infamy on their conduct.”

This leaves two other kinds of pardons that do serve the public welfare.

Pardons used to carry out sound public policy are clearly justified. President Ronald Reagan, for example, properly granted pardons in order to facilitate a prisoner exchange with East Germany. President Jimmy Carter pardoned Vietnam War draft evaders who had come home under an amnesty proclaimed by Ford.

But pardons best serve the public interest when they serve justice. The pardon was always intended primarily to be a last-ditch measure to prevent miscarriages of justice. For example, a pardon was the only way out of jail for Dr. Samuel (“My name is mud”) Mudd, who was unfairly convicted as an accomplice in the assassination of President Abraham Lincoln. Today, the majority of pardons are granted to help correct a legal quirk that continues to deprive convicted felons of their civil rights, even after they have served their sentences and become model citizens. The very best reason to pardon is, finally, that a person does not deserve to be punished.

Amid the noisy public clamor for a pardon for North, President Bush should listen for the muted voice of Alexander Hamilton, reminding him to be “scrupulous and cautious.” He should remember that his pardoning power is that of a President, not a king, and that a pardon must serve the public welfare, not private or partisan ends.