Power sometimes abused, but legal
Today at 3:15 a.m.
by Jim Lancaster Special to the Democrat-Gazette
Follow
Were you surprised that in the final days of his term, President Joe Biden pardoned his son, as well as reduced the sentences of 37 federal death-row inmates? And what about President-elect Donald Trump's promise to pardon hundreds of the Jan. 6, 2021, rioters who attacked the national Capitol building and police? Is this an abuse of constitutional power and intent?
Take a look at American history when the founders were writing the U.S. Constitution. There was great debate as to whether a president should have the absolute pardoning power of English kings. And if presidents should be given the power to pardon, should there be limits or exceptions? As it was finally written, the president's authority under Article II, Section 2 encompasses several distinct forms of relief that may be temporary or permanent, partial or wholesale, and may be granted at any time after alleged commission of a federal crime; this even exceeded the power of some European kings. But founders Alexander Hamilton, George Mason and others of the Constitutional Convention came to this agreement.
From the very beginning of America, pardons have been given and have been controversial. In 1794, there was a so-called "Whiskey Rebellion" event, resulting from some Pennsylvania farmers rebelling over what they thought was an excessive tax on whiskey. The rebellion was serious enough that our very first president, George Washington, had to send in troops to prevent a bigger rebellion. Washington then tested the pardoning power in 1795 when he pardoned the insurrection's ringleaders.
Perhaps the best use of presidential pardons happened right after the Civil War when President Abe Lincoln decided that to restore national unity, the Confederate soldiers should be pardoned. Just before he was assassinated, Lincoln issued 64 pardons for Civil War-related offenses. In 1868, President Andrew Johnson pardoned all Confederate soldiers and supporters.
As well as presidential pardons, some states give the governor the power to pardon. In the Arkansas Constitution, Article 6, Section 18 grants the governor broad pardoning powers. It reads, "In all criminal and penal cases, except in those of treason and impeachment, the governor shall have power to grant reprieves, commutations of sentence, and pardons, after conviction; and to remit fines and forfeitures, under such rules and regulations as shall be prescribed by law."
Perhaps the most unusual pardons in Arkansas history happened in 1993. At that time in Arkansas, if the governor was out of state, the powers of the governor passed down to the lieutenant governor, and if both were out of the state, the leader of the state Senate became acting governor. In 1992 when Bill Clinton was elected president, he resigned as governor and Lt. Gov. Jim Guy Tucker became governor. Then Governor Tucker attended the inauguration ceremony of President Clinton in Washington.
This circumstance left Senate President Pro Tempore Jerry Jewell as acting governor of Arkansas for four days. Senator Jewell was already a historic Senate leader because he was the first African American in the Arkansas Senate in the 20th century, and this circumstance made him the first African American to serve as governor, even though it was just for four days.
However, Senator Jewell's four days as governor were filled with unexpected controversy. Jewell pardoned two convicts and extended executive clemency to three others. The most notable of those pardons was that of the son of political activist Robert "Say" McIntosh, Tommy McIntosh, who was convicted in 1987 of cocaine possession and intent to distribute and sentenced to 50 years in prison and a fine of $250,000. This action was legal, but Jewell lost his Senate seat in the next election, and Arkansas voters changed the law so that governors keep their powers when traveling out of state.
There is no doubt that constitutional pardoning powers of presidents and governors have been abused and misused. But as much as this is criticized and debated, that is the law, and a constitutional amendment to change it seems very unlikely.
Jim Lancaster is a former state representative and resident of Sheridan. He is a student of history and has written two books of local stories and history.