A couple of pardons recently issued by President Trump illustrate the two extremes of this type of executive power.
A few weeks ago, Trump pardoned Joe Arpaio, former sheriff of Maricopa County (Phoenix). Arpaio combined contempt for the rule of law with punitive actions against some of the weakest members of our society. It would be difficult to find someone less deserving of a pardon, as this decision tends to give law enforcement officials a sort of carte blanche to ignore judicial rulings that restrain them from violating the rights of defendants.
More recently, Trump pardoned Alice Marie Johnson, who had spent almost 22 years in jail. In this case, it would be difficult to find someone more deserving of a pardon:
Johnson is a 63-year-old woman from Tennessee who was sentenced to life in prison for a first-time drug offense.
In 1993, she was arrested after working with a group of people who transported cocaine. The mother of four has said her involvement stemmed from hitting rock bottom in her personal life: In the early 1990s, she had gone through a divorce, a bankruptcy that led her to lose her house, and her youngest son was killed in a motorcycle accident.
Johnson alleges she never actually sold or dealt drugs, and that her role in the group was that of a “telephone mule” who passed messages along. Nevertheless, she was convicted of conspiracy to sell cocaine and money laundering, which led to a sentence of life plus 25 years in federal prison — despite it being her first offense.
That sugar coats it a bit, but keep in mind that murderers often serve shorter sentences. When I talk to people about this problem, they often shrug and say it doesn’t matter if the sentence is too long, because these are “bad people”. Better to have them put away. But of course it doesn’t end with her imprisonment, there is collateral damage:
Johnson is now 58, and her 16 years of incarceration have taken a toll on her and her family. “It feels like I am sitting on death row,” she says. “Unless things change, I will never go home alive.” Meanwhile, Johnson has been unable to care for her mother, who has Alzheimer’s disease. Her only son dropped out of school and is now in prison himself.
“There is no light at the end of the tunnel,” remarked Johnson’s eldest daughter, Tretessa. “It’s like a waking death, it’s like the person is alive but they’re not. There’s never a point of closure, ever. It’s heartbreaking for me.”[This quote is from 2013]
I also wonder whether people would be so apathetic if it were their daughter. Suppose you had a daughter in college who had a few too many drinks and got pulled over for drunk driving. Obviously that’s bad, endangering the lives of other motorists and pedestrians. But would your daughter deserve life in prison? If not, why is selling drugs worse? At least the buyers have a choice, unlike the person killed by a drunk driver.
Or is it a perception that draconian prison sentences will only snare lower class people, not affluent families? I suppose that’s generally true, but is it fair?
I find it amazing how sensitive our society is to some types of bias, but not others. Careers can be ruined by a single non-PC remark. And yet cases like Alice Marie Johnson drag on for years. Even President Obama overlooked her case:
President Barack Obama pardoned 231 individuals, many who had similar drug-related charges to those of Johnson’s, in December 2016. It’s unclear why she wasn’t in the group.
Trump’s pardon is one of the best things he has done as president. In the future, I hope he spends more time freeing those who are unjustly imprisoned, and less time freeing those who are popular with his base.
Unfortunately his choice of Jeff Sessions as Attorney General means that there will be many more Alice Marie Johnsons. Perhaps those who care about liberty should focus more on these cases, and not so much on the impact of corporate tax cuts.
READER COMMENTS
Mark Z
Jun 9 2018 at 6:31pm
A big conundrum with pardons and leniency in general that it arguably has a much higher political cost than ‘draconianism’.
There would be a cost to more leniency: more crime. People in prison for things that shouldn’t be illegal still disproportionately commit crimes that should be crimes. They also, of course, do productive things, work at legitimate jobs, etc. But the latter is more unseen and the former more seen, to borrow from Bastiat.
So, if a president decided to comb through people in federal prison and commute or pardon all who shouldn’t be there or were over-sentenced, he might pardon tens of thousands of people. But, inevitable, a few of them would murder or rape someone, and those few cases could tank his re-election campaign. “President so-and-so lets murderers and rapists out of jail.” Sure, he could accurately point out that, inevitably, a few of *any* 10,000 people will turn out to be bad; that doesn’t justify keeping all 10,000 in cages. But politicians know well the perils of trying to reason with a crowd.
That’s why, imo, pardons under used, and why ‘draconianism’ is, in theory, more popular among politicians than the general people. (I say in theory because revealed preferences may say otherwise; how many putatively pro-criminal justice reform people would be convinced to vote against president so-and-so for “letting murderers and rapists out of jail?” How many of those same people were calling for the head of (and successfully recalled) the judge who leniently sentenced Brock Turner (the judge was of course just following the suggestion of the parole board)? Maybe the problem is that the voters punish over-leniency more than over-strictness.
Scott Sumner
Jun 9 2018 at 7:12pm
Mark, Good point. That hurt Michael Dukakis back in 1988.
Thomas Sewell
Jun 9 2018 at 7:47pm
Arpaio is 86 years old and it would be virtually impossible for him to re-offend. There is also a hint of political motivation to the original case which led to his contempt citation. I’m not saying he didn’t deserve some punishment, but I can think of many worse pardons.
Clinton’s pardons of Edgar and Vonna Jo Gregory, Almon Braswell and Marc Rich, among others, for example, had the appearance of favors/pay for pardons.
Trump’s pardon of Dinesh D’Souza, an obvious example of politically motivated selective prosecution, is also one of his better ones, as that’s a type of situation I’d envision the pardon power to be intended for.
Scott Sumner
Jun 9 2018 at 9:00pm
Thomas, I think both pardons were politically motivated. If they had been liberals they would not have been pardoned. Having said that, you may be right that D’Souza deserved a pardon (I didn’t follow that case closely), but Arpaio certainly did not. He has a long record of violating the rights of prisoners, and then ignoring court orders to clean up his act.
Even many Republicans argued the pardon was unwise.
John Smith
Jun 10 2018 at 12:42am
@Scott Sumner To directly answer your question, yes. I would feel exactly the same if it was my own daughter. Many of us are morally righteous and apply the same standards to our own blood and ourselves.
I have been punished before and agreed with the justification for punishment; I have been rewarded before and disagreed with the justification for reward.
Eric Hanneken
Jun 10 2018 at 5:55am
Alice Johnson wasn’t pardoned; her sentence was merely commuted to time served. She still has to suffer all the ancillary penalties that come with a felony conviction (mentioning it on job applications, can’t own a gun, etc.).
Michae Byrnes
Jun 10 2018 at 7:48am
Mark Z wrote:
This is a VERY dangeous line of thinking, as it could also be said that people in prison for things that shouldn’t be illegal are often disproportionately prosectuted for such things.
This part is true, and it is why the whole system trends towards longer sentences that are harder to challenge even for those who are wrongly convicted.
Thomas Sewell wrote:
We are talking, here, about a person whose actions were as close to a Nazi camp commandant as it is possible to be in 21st century US as well as someone who openly defied a court order. His actions, taken as a whole, are far worse than those of the vast majority of prison inmates.
Clinton’s use of the pardon power, at least with regard to these and similar cases, was abusive.
Let’s keep a few things in mind when speaking about Mr D’Souza.
1. He pleaded guilty – he had the option of taking the facts of his case to a jury but did not do so. The political motivation argument, therefore, seems to boil down to “lots of people do this but only some are prosecuted for it”. Even if true, he still, by his own admission, committed the crime in question – and he would be far from the only person (or type of person) who is punished for crimes that authorities would turn a blind eye to if committed by others. I’d happily concede that his pardon was justified if it was accompanied by pardons to all of the poor and minority people whoa re in jail for drug crimes that rich white kids also do, but rarely get punished for.
2. During the court proceedings that led to his guilty plea, he raised the issue of politically motivated prosecution and his argument failed. It is simply not true that only people of his particular political leanings get punished for the crime he committed.
3. He had excellent legal representation. If nothing else, he went into his guilty plea with eyes wide open and the prosecution mde no errors that a quality defense attorney could use to obtain a more favorable outcome for his client.
4. There seems to be an underlying assumption that because D’Souza holds poltical views deemed reprehensible by many, that his prosecution was politically motivated. But that conclusion doesn’t follow from the premise. Preet Bharara, the relevant US attorney at the time of D’Souza’s guilty plea, says otherwise – that his office (and offices of other US attorneys) did indeed prosecute people of other political leanings of similar crimes. Anyway, my point here is that people making this claim need to show their work, and I have yet to see anyone actually do that.
EB
Jun 10 2018 at 8:01am
Mark Z, I appreciate your point greatly. I hope people that suffer TDS get good assistance.
Eric Hanneken, I also appreciate your point greatly. I hope economists, journalists and other people with poor or no knowledge of law and judiciary processes read lawyers’ opposing arguments in each case.
Thomas Sewell, all presidents are motivated by the idea that “I do it because I can –and I always wanted to be president to do it”. I hope people concerned about power focus their attention on the perverse incentives of existing constitutional democracies.
Alan Goldhammer
Jun 10 2018 at 8:31am
@Scott & Thomas – D’Souza was rightfully prosecuted for campaign finance violation and received a very light sentence; no prison time. If D’Souza really had the courage and belief that he was not guilty why didn’t he let this one go to a full trial?
Mike W
Jun 10 2018 at 9:29am
Maybe Trump has to free those who are popular with his base in order to free those who are unjustly imprisoned.
If they had been liberals they would not have been pardoned.
…Arpaio certainly did not. He has a long record of violating the rights of prisoners, and then ignoring court orders to clean up his act.
Even many Republicans argued the pardon was unwise.
Wow, really? That’s an argument…that an 86 year old with a life imprisonment senteance for contempt does not deserve a compassionate release because of past actions that he may have done but for which he was never indicted? And your support is that “many” thought the pardon was “unwise” for some unstated reason?
Michael Sandifer
Jun 10 2018 at 11:17am
I think there’s a broader point to be made here. Pardoning power should be stripped away from the President. It’s been abused multiple times, even before Trump. I think the country would be better off today if Nixon had gone to prison.
Instead of pardons, let’s have super-judicial review. It would do two things.
1. It would establish a federal court to vet new federal laws for constitutionality before the laws take effect.
2. It would allow for challenges of existing laws that fail to satisfy the legislative intent and/or which are deemed to offer net costs to society rather than net benefits.
Criminal laws that are struck down would also come with sentences struck down for those deemed under the new ruling to have had their constitutional rights violated or who were convicted under laws deemed a net negative to society, with some limited judicial discretion.
Philo
Jun 10 2018 at 12:18pm
Most people who care about liberty also care about prosperity. Repealing the drug laws and freeing those imprisoned for having violated them directly concerns liberty, cutting corporate taxes does so only more tangentially; still, overall the latter may be more valuable in the long run. (But let’s have both!)
Scott Sumner
Jun 10 2018 at 1:21pm
Eric, Thanks for that clarification.
Michael, Interesting suggestion–makes sense to me.
Philo, At the margin, give how rich America is today, criminal justice reform is far more important. It’s not even close.
Brian
Jun 10 2018 at 1:22pm
Sort,
While I agree that Arpaio’s kase is probably not the best eksample of the use of pardons, he is an old guy with no power to misbehave. That’s nowhere near the ekstreme end of the bad use of pardons. The worst eksample would involve someone who gets out and then kommits a similar or worse Rome, like muse ring people or seeking revenge. Beyond that, any pardon pull be viewed as good, sinse it frees people who otherwise would not be.
(Sorry for the misspellings. Some of my keys don’t work.)
Thomas Sewell
Jun 15 2018 at 3:27am
To respond in general to those who mentioned D’Souza, the reason he didn’t fight it, but took the plea, is that the prosecutor tacked on a duplicative charge of filing false statements with the government, pushing the potential punishment to 7 years in prison, with much harsher sentencing guidelines as a result. See additional details at the National Review. Aland Dershowitz is an Obama supporter, but also thought it was a clear case of selective prosecution.
The 20K of hidden excess contributions at issue with D’Souza is less than was spent to investigate and prosecute the offense. Do you remember all the criminal prosecutions of people around the Obama Presidential campaign after they were caught hiding over a million dollars in contributions? Yeah, me neither, because that sort of thing is virtually always just given a fine, not a criminal prosecution.
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