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 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.
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 such as 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. He has pardoned only 113 people 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. 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.
