An armed insurrectionist, teamster with (perhaps) ties to the mafia, socialite turned terrorist,
presidential sibling and even a former President of the United States have all received either
a presidential pardon or commutation of their sentence.
A tradition far older than any modern republic, with various emperors and monarchs having
similar power seemingly as long as there have been emperors and monarchs, the power of the
United States President to grant clemency traces its more direct lineage to a time when
the Anglo-Saxons ruled England.
Originally residing with the king, the first written record of such pardoning power among
these Anglo-Saxon rulers is found in Section 6 of the king's statutes, during the reign
of King Ine (668-725 AD), where it identified that the king had the power to either kill,
or not, anyone who got into a fight in his castle.[i]
By the time of the Norman Conquest (1066AD), the king's pardoning power, codified in the
Codes of William the Conqueror (1066-1087 AD), had expanded to include thievery as well
as sedition.
William's son, Henry I (1100-1135 AD) broadened the power even further in Leges Henrici Primi
to include breach of the peace, killing of servants, contempt of writs and outlawry.[ii]
This power continued to expand and remained with the monarch, or executive, in England
even through the establishment of the British colonies in America and then the Revolution.
And, as the Founders turned to British law in crafting the Constitution, they included
the power to pardon in Article II Section 2, to wit:
“The President . . . shall have the power to grant reprieves and pardons for offenses
against the United States, except in cases of impeachment.”
As with the rest of the Constitution, when it came time to interpreting its sparse language
on the power to reprieve, the country turned to the judiciary and the Supreme Court.
Early on, in United States v. Wilson, 32 U.S. (7 Pet.)
150, 159-60 (1833), Chief Justice Marshall held that the presidential pardoning power
was nearly as broad as that of the English monarchs:
“The Constitution gives to the President . .. the power to grant reprieves and pardons.
As this power has been exercised, from time immemorial, by the executive of that nation
whose language is our language, and to whose judicial institutions ours bear a close resemblance;
we adopt their principles respecting the operation and effect of a pardon.
. . .” And while many jurists have found this interpretation
appropriate, others were disturbed by the idea of bestowing upon an American President
the broad powers of an English king.
As Justice McClean wrote in dissent in Ex parte Wells, 59 U.S. (18 Hos.)
307, 311 (1855), he had doubts that it was "safe for a republican chief magistrate . . . to
be influenced by the . . power of the British sovereign."
Likewise, Chief Justice Taney, in Fleming v. Page, 50 U.S. 603, 618 (1850), while acknowledging
the United States' heavy dependence on English jurisprudence generally, questioned the prudence
of relying on it when determining "the distribution of political power between the great departments
of government, there is such a wide difference between . . . the President . . . and the
English crown."
In any event, the power has always been, and remains today, a broad one, and Constitutional
scholars have identified at least three purposes for it: (1) "to temper justice with mercy,"
(2) to better execute public policy, such as "to obtain testimony of accomplices;" and
(3) as Alexander Hamilton put it in The Federalist No. 74, to ensure peace "in seasons of insurrection
or rebellion."
And, accordingly, over the years, presidents have continuously used the pardon, usually
for one of these purposes.
For example, both George Washington (16 clemencies) and John Adams (21 clemencies) pardoned people
convicted of treason or other crimes during the Whiskey Rebellion.
Thomas Jefferson (119) pardoned a person convicted of sedition for his criticism of the federal
government, and James Madison (196) pardoned the Governor of Michigan Territory, who had
been sentenced to death for surrendering Fort Detroit.
Other notable clemency include President Buchanan (150) pardoning Brigham Young and other Mormons
in 1858 for their role in the Utah War (which, among other things, included a massacre of
100 civilians on a wagon train to California).
Likewise, the 20th century also saw a number high profile clemencies.
In 1971 President Nixon (926) commuted Jimmy Hoffa's sentences for jury tampering and mail
fraud.
Then shortly after, in 1974, President Ford (409) controversially turned around and pardoned
former President Richard Nixon, even though he had yet to be officially charged with a
crime.
President Ford also restored Confederate General Robert E. Lee's citizenship rights (posthumously
obviously) and offered conditional amnesty to over 50,000 men who had illegally avoided
the Vietnam War draft.
Patty Hearst, the kidnapped socialite turned Symbionese Liberation Army terrorist had her
sentence commuted by President Carter (566) in 1979 and received a full pardon from President
Clinton (459) in 2001.
As you can imagine, not everyone is pleased with every clemency, and often the president's
motives for granting a pardon or commuting a sentence are called into question; for example,
when Nixon commuted Hoffa's sentence, many thought it was done in exchange for the union
vote in 1972.
Other infamous clemencies include two pardons granted by President Clinton: to his friend
Marc Rich (for tax evasion and illegal trading) and his own brother Roger Clinton, Jr. (for
cocaine possession).
Similarly, President G.W. Bush's (200) commutation of the sentence of his Vice-President's aide,
Scooter Libby, for perjury and lying to the FBI relating to the leak of the identity of
a CIA operative, was strongly condemned by members of the opposite political party.
Regardless, clemency marches on, and by the end of his second term, President Obama (1,927)
had commuted the sentences of more than 1,700 individuals, the majority of which remained
in jail or prison for nonviolent drug crimes, often with sentences far harsher than someone
would get for committing the same crime today thanks to the peak of the so-called “war
on drugs”.
Or, in some cases, individuals who by the law of the land in 2017 wouldn't have been
considered to have committed a crime at all.
Bonus Fact: Speaking of pardons, starting sometime around
the late 18th century, they came up with a rather novel way for someone to get a pardon
for a death sentence in a certain part of the Ottoman Empire.
At the time, numerous executions, whether they involved commoners or the Sultan’s
own family, took place in the Topkapi palace in modern day Istanbul.
Criminals to be executed on palace grounds were only made aware of their fate on the
day they were meant to be executed via means of a sweetened drink made with sherbet.
The accused would customarily be presented with this drink three days after appearing
in court.
The colour of the drink would be indicative of the court’s decision.
As Professor Godfrey Goodwin of Bogazici University noted, "If it were white, he sighed with relief,
but if it were red, he was in despair, because red was the colour of death."
Despite the vast number of executions that took place in the Sultan’s palace (for reference,
during the brief eight year, sixteenth century reign of Sultan Selim I alone, he is estimated
to have had over 30,000 people executed there), there was no official “executioner” tasked
with this seemingly never-ending job.
Instead, the job of carrying out these executions usually fell to one of the palace’s so-called
"gardeners", except when the person was of extremely high standing, in which case the
execution would be carried out by the palace’s bostancı basha, which roughly translates
to “head gardener”.
While you might think the name for these workers simply came from that they were tasked with
pruning off individuals who had been deemed unfit to be members of that society, they
also were charged with literal gardening in maintaining the gardens and grounds of the
palace.
Beyond this, they variously functioned as bodyguards, police, and security for the palace
as the need arose, with several thousand "gardeners" on staff at any given time.
Now to the race.
While most who were given the red sherbet would simply be killed shortly after by a
gardener, particularly high ranking officials, such as Grand Viziers, still had a little
hope.
The head gardener was honour-bound to challenge these individuals to a foot race through the
gardens to the place of execution near the Fish Market Gate on the southern side of the
palace- a distance of around 300 metres.
If the person was able to finish the dash before the head gardener, their sentence would
be reduced from death to simple banishment.
As far as historians can tell from the known documented instances of this, very few people
ever managed to defeat the bostancı basha in the race.
This is perhaps not surprising as the race was heavily stacked in the executioner's favour,
considering he knew the palace grounds inside out and was more often than not in fantastic
shape relative to the victim.
All condemned who lost were immediately strangled upon reaching the gate.
For those exceptional few who did manage to defeat the head gardener, sometimes things
worked out even better than simply being banished.
For instance, the last known condemned individual to win this deadly race was Grand Vizier Hacı
Salih Pasha in 1822.
Partially due to the respect he gained for his reportedly "impressive" and unexpected
victory, he was later pardoned and made governor general in Damascus.
It isn't clear how this racing tradition got started, though one can speculate it perhaps
was inspired by condemned individuals, or maybe even a specific individual, with nothing
left to lose anyway attempting such a flight out of the palace once they received the red
sherbet, and everyone just thinking this was highly entertaining from there.
Whatever the case, the race was first reported in the late eighteenth century with evidence,
such as the case of Hacı Salih Pasha, suggesting it lasted at least two decades into the nineteenth
century.