Abolish pardons as presently done and start a new system.

Biden's pardon of his criminal son, and the coming (this week?) torrent of politics-only pardons, make the need for a new system obvious.

Let’s start with the basics: (1) Because human beings make mistakes, a system of pardoning should be retained (I say with all respect to the contrary views of the astute Andy McCarthy). Some people are in jail who don’t belong there but have run out of judicial options. (2) The main problem, though, is not that we have too many people in jail but that we have too few. Crime was much less ten years ago, before the present strong trend of de-carceration took hold. (3) The present system of federal pardons, in which, under the Constitution, the President alone has the pardon power, and his decisions are not subject to review of any kind, is failing in disastrous ways and must be changed.

This is the fault of Presidents of both parties, mainly Democrats but to a lesser extent Trump as well (I doubt I need to go through the litany of politics-based pardons with this audience — Marc Rich, Roger Clinton, Chelsea Manning, and lots more), and was recently highlighted by Joe Biden’s pardoning his druggie, tax-evading (among other things) son. It’s about to get worse with Biden’s list of blanket, pre-emptive pardons for his political buddies (and, for all I know, more of his family perhaps including himself). It may get even worse in six weeks, when Trump issues blanket pardons for the Jan 6 rioters (some of whom may deserve them but some of whom (e.g., the violent ones) don’t). It would improve things, although not by nearly enough, if either Biden or Trump gave individual consideration to each case based on something that might be mistaken for its merits, but this isn’t going to happen and we all know it.

Why is this important? Easy, at least if you think that respect for the criminal justice system and, more broadly, assurance of equality before the law, is important. It’s been a Leftist slogan for years that we have a two-track system of justice. By this, they usually mean that the Ruling Class (roughly, whites) disproportionately incarcerates the non-ruling class (roughly, blacks and “the powerless”) simply out of racist hate, or more generalized vindictiveness and bile.

I can tell you from having spent most of my career as a federal prosecutor that this is flagrant, poisonous bunk. People wind up in prison because of what they do not who they are. Wanna stay about of prison? Not a problem: Don’t steal stuff, abjure violence, stay clear of hard drugs and tell the truth. Do these things and the chances of your going jail — black, white or brown — are close to zip. Not absolutely zip, since any system designed by human beings is going to have errors, but close, probably as close as the human race has come to date.

The main and enormously important danger in politics-based pardons (and, as much if not more, politics-based prosecutions, see, e.g., among numerous candidates, Alvin Bragg’s concocted 34-felony count prosecution of Donald Trump for lying to his diary) is that it gives currency to the viciously corrosive Leftist narrative that it’s not what you do but who you know. To the extent our Presidents, no less, fortify this belief, they damage America in ways it’s impossible to overstate. Is anything more central to our country’s creed than equality before the law, and the promise that how those in power deal with you will depend on a decently fair-mined evaluation of your individual circumstances — as opposed, say, to their free-floating biases and political needs?

The evidence is right in front of our faces. If we want the heart of our civic faith to survive, the present system of whatever-the-President-decrees regimen of pardons has to change. We need to repeal the constitutional language that provides for this and replace it with the following statutory system:

The President would still have the sole power to pardon, but could do so only from a list of recommendations provided to him by a newly-created Pardon Board. The Board would consist of seven members. Four would be former Attorneys General or Deputy Attorneys General, two Republicans and two Democrats. The other three would be former federal judges chosen by consensus by the first four.

It would require a majority vote of the Board to recommend a pardon. The principal although not the only criterion for making a recommendation would be clear and convincing evidence of factual innocence. But other things could be considered as well, for example, extreme and sympathetic circumstances surrounding the crime (e.g., Carter’s pardon of Patty Hearst) or some national need arguably transcending the specifics of the crime (e.g. Washington’s pardon of two participants in the Whiskey Rebellion, Ford’s pardon of Nixon, or Carter’s pardon of draft evaders during the Vietnam War).

Pardoning is an act of grace that a humane and mature government should retain. But, if we want to continue to trust our judicial system and its outcomes — outcomes that already have a good deal of lenity built into them — we must insist on pardons that are clearly justified, non-partisan, and honest.