No Mercy

March 18, 2005
By Gene C. Gerard

The White House announced last week that President Bush issued pardons to eight individuals. Their offenses included arson on an Indian reservation, disposing of stolen explosives, theft of government property, and bootlegging, among other crimes.

During his first term, Mr. Bush issued a mere 31 pardons and sentence commutations. This is less than any modern president. In fact, you have to go back to Zachary Taylor, twelfth president of the United States, to find a similar number. President Taylor granted only 38 pardons, but it should also be noted that he served barely 18 months before his untimely death in 1850.

The president's power to grant pardons was clearly enshrined in the United States Constitution, Article II, Section 2: "The President... shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment." Although the Framers of the Constitution debated clemency, it was not viewed as a controversial idea. There was some debate over making presidential pardons subject to the consent of the Senate, though this was quickly rejected.

As the Founding Fathers were hammering out the details of the Constitution in Philadelphia, they seem to have essentially agreed that the privilege to exercise mercy, on which the power to issue pardons was founded, could be most easily granted by a single person, rather than a legislative body or even judges. Alexander Hamilton, in Federalist Number 74, wrote "... one man appears to be a more eligible dispenser of the mercy of the government than a body of men."

Over the years, presidents have issued pardons to and commuted the sentences of a motley band of crooks, criminals, and scoundrels. President George Washington gave amnesty to the instigators of the Whiskey Rebellion, while President Johnson did the same for Confederate rebels. President Harding pardoned fiery Socialist labor leader and convicted felon Eugene V. Debs. President Nixon issued a commutation to organized crime figure Jimmy Hoffa, only to be pardoned himself by President Ford following the Watergate fiasco.

President Carter gave amnesty to the Vietnam War draft resisters, and commuted the sentence of bank robber Patty Hearst. President Reagan issued a pardon to George Steinbrenner of the New York Yankees for illegal campaign contributions he made in the 1960s. President George Bush, Sr. pardoned Iran Contra scandal figure Caspar Weinberger. President Clinton infamously pardoned fugitive financier Mark Rich, whose wife had been a major contributor to the Democratic National Committee.

Franklin D. Roosevelt issued the most pardons and commutations of any president. Over the course of his four terms, he issued 3,687. By contrast, George Washington issued the least, only 16. Two presidents in American history, William Henry Harrison and James Garfield, chose not to use their power to pardon.

President Bush is now notable for issuing so few pardons and sentence commutations. In comparison to his first-term record of 31, Mr. Clinton averaged 228 during each of his administrations. Mr. Bush's father issued 77 during his term. Mr. Reagan averaged 203 during each of his administrations. Mr. Carter issued 566, while Mr. Ford issued 409. Mr. Nixon averaged 463 during each of his terms.

During his time as Governor of Texas, Mr. Bush issued fewer pardons than any other Governor in Texas since the 1940s. He issued only 16, compared to 70 for Ann Richards, his immediate predecessor. When questioned about his low number of pardons in an interview with Austin's Star-Telegram newspaper, then Governor Bush suggested that it had less to do with any particular political philosophy, and more to do with his experience with one pardon he issued. He pardoned an individual in 1995 for a marijuana conviction, and only a few months later the individual was arrested for cocaine possession.

Today, it's hard to think of President Bush apart from his political philosophy of "Compassionate Conservatism." After all, he's gone out of his way to promote the concept. Given that the Founding Fathers gave the presidency the power to pardon as a means of demonstrating the government's mercy, you would think that President Bush would have made good use of it. And while it's difficult to think of compassion in numerical terms, issuing a paltry 39 pardons and commutations doesn't seem very compassionate.