Monday, July 16, 2007

A Pardon for you and you and you and you

Have you heard about Representative Duncan Hunter's proposal of a Congressional pardon for Border Patrol agents Ignacio Ramos and Jose Alonso Compean, who were sentenced to prison for shooting an illegal immigrant in the back as he fled towards the Mexican border?

I know what you're thinking, Congress doesn't have the power to issue pardons, right?

That's true, only the President may issues pardons in the federal system. That doesn't mean Congress can't give them, just that they aren't very useful. Think if it as Congress giving away unicorns to anyone who asks. Isn't Congress fun?

The best comment I've seen on this was made at the NY Times' Caucus blog:

Congressional Pardons — now there’s an idea every Republicon politico can appreciate.

Just make sure you get a blank one before entering office. Then, when you pull a Duke Cunningham, you just fill in your name and exercise your God-given right to get out of jail free. |Link|


dr said...

Wait a minute. Why couldn't Congress pass a law that had the force of a pardon? All they would have to do is require that an individual be released from prison (or whatever) and that the criminal record be cleansed.

I'm thinking that if Congress didn't have this sort of power, then it wouldn't make sense to have a Constitutional provision explicitly stating that Congress may not pass Bills of Attainder.

Neal R. Axton (USA) said...

I think Kip lays out a wealth of reasons why Congress isn't permitted to give pardons here.

Reasonable minds may differ, of course, as the Sentencing Law and Policy Blog Professor's gut instinct is to agree with you.

But I think Congress giving pardons does harm to the doctrine of separation of powers for all the reasons that Kip explicates.

Finally, I don't see the relevance of the Bill of Attainder prohibition to this debate, Bills of Attainder prohibit arbitrary Congressional punishments without a trial, but that doesn't mean they should be able to void what the legislative branch has done.

More on Bills of Attainder here.

dr said...

Well, Bill of Attainders are an instance of legislative mucking about in the judicial proces. So here's a place where the Constitution could prohibit Congress from all mucking in the judicial process, but instead only prohibits this specific kind of mucking. To me, that indicates that Congress has the power to muck about except insofar as it doesn't.

Also, Congress can pass laws creating exceptions to other laws that it has passed, so I don't see how this would be different.

Maybe I'll have more to say after I follow the links. I will note that, these days, I'm extremely suspicions of seperation of powers arguments aimed at limiting Congressional power.

Neal R. Axton (USA) said...

Your first argument about the Bills of Attainder is what I refer to as a negative inference argument. The Founding Fathers explicitly disallowed A, if they meant to explicitly disallow B, they could have, but chose not to. Thus, B is allowed because it wasn't explicitly forbidden.

Negative inference arguments are obviously inferences and thus subject to debate, but sometimes one has to make inferences to fill in the gaps left by legislators.

In this case, I don't find the argument persuasive because the Founding Fathers explicitly addressed pardons for the executive branch. Thus they made an affirmative decision not the include them for the legislative branch.

Second, Congress can change the Constitution, but it requires a Constitutional amendment, not a simple joint resolution.

Finally, I appreciate your concern with excessive limitations on legislative power given our current administration and their propaganda about the unitary executive and executive privilege, but for our system of checks and balances to work well, all three branches must stay within their Constitutional bounds and we must be just as zealous in enforcing limits on the legislative branch as the executive branch.

Of course, the executive branch has all of the executive agencies at its disposal (see LSU's alphabetical list of federal agencies, for the scope of the agencies).

The executive branch also has the entire armed forces to do its bidding, so when it oversteps its bounds the consequences tend to be serious, but this doesn't mean we should be any less vigilant with the legislative branch.

dr said...

I think we disagree about the form of the negative inference argument in this case.

Call the following the broad negative inference argument:
The Founding Fathers explicitly disallowed A, if they meant to explicitly disallow B, they could have, but chose not to. Thus, B is allowed because it wasn't explicitly forbidden.

This isn't quite the same as what I want to call the narrow negative inference argument:
With regards to P, where P is understood to include both A and B and to be a matter over which Congress has some authority, and where the Founding Fathers explicitly disallowed A, if they meant to explicitly disallow B they could have, but chose not to. Thus, B is allowed because it wasn't explicitly forbidden.

So the argument (which I wouldn't go so far as to say I'm asserting) is that with regard to the administration of criminal justice Congress has at least some power to determine what is an infraction and what the punishment shall be. Of the various particular powers included in this power, it is only the passage of Bills of Attainder which is expressely forbidden. Congress should therefore be assumed to have all of the other particular powers.

But what about the fact that pardons are explicitly addressed in another article. Well, maybe. But I think that the distinction between a pardon and a law with the force of a pardon is the point. The Congress probably can't pass a law which simply declares, "We, the Congress, grant Joe Schmoe a pardon." But why can't the Congress pass a law which says, "Joe Schmoe, who is incarcerated at such and such a place, shall be released as of such and such time." And, further, why can't Congress pass a law which says, "The criminal record of Joe Schmoe shall henceforth not include such and such conviction, and Joe Schmoe shall not be subject to any of the civil or legal penalties associated with having such a conviction on one's record."

So I'm not asking, exactly, whether Congress has the power to pardon. Rather, it's whether Congress has the power to pass laws which are tantamount to a pardon.

And regarding seperation of powers arguments -- my point isn't that such reasoning is wrong, merely that in this day and age most people offereing such arguments in defense of executive brance privilege are doing so in extremely bad faith. So (still not having followed the link) my inclination is toward suspicion.

dr said...

Now having read Kip's post, I can't say that I find any of the reasoning persuasive. Berman at the Sentencing Law and Policy Blog frames the issue in more or less the way I see it.