Under the Constitution, the president has the “authority to grant reprieves and pardons for crimes against the United States, except in cases of indictment.
That power is often misunderstood as being limited to compassionate claims by prisoners facing the death penalty or a long prison term and who are sick or old. The exercise of compassion is an important element of this extrajudicial power, but it is not the only one. The executive power of pardon and commutation is a central aspect of our constitutional system of checks and balances. It empowers the president to enforce control of legislative and judicial encroachments in the federal criminal justice system.
President Donald Trump’s decision to pardon General Michael Flynn is a good example of this control. Prosecutors overreached themselves by setting a perjury trap for him and then threatening to prosecute family members unless he pleaded guilty to a non-crime. It was a non-crime, because his false answers could not be “material” to any investigation. The investigators already had conclusive evidence that he met with Russian diplomats – they recorded the conversation! They only asked about the conversation in order to get him to lie about it. Congress was supposed to pass laws prohibiting such perjury traps, but they did not. The judge who presided at that time should have allowed the Department of Justice to drop the charges, but it did not.
So President Trump intervened to investigate these abuses, which he is authorized to do. He did the right thing – he corrected the wrong things that were done and not done by the other branches. The system of checks and balances worked in the Flynn case.
Now we will see if it works in other cases of legislative and judicial overreaching. Let’s look at the general question of excessive sentencing and the specific question of the so-called “trial penalty”. Since I began practicing criminal law almost 60 years ago, the penalties for non-violent crimes have increased dramatically. As one colleague put it: “They have simply added a zero to most sentences; what used to get a year now gets 10; two now get 20”.
This systematic increase in penalties has increased the pressure on defense lawyers to plead guilty and not go to court. Because lawmakers (and the Condemnation Commission created by lawmakers) have allowed such harsh sentences for so many non-violent crimes, prosecutors have the power to threaten defendants with the functional equivalent of life imprisonment if they plead not guilty. If an accused does so, he can reduce the sentence by years, sometimes decades. But if he goes to court and loses, the sword of Damocles falls on his neck.
In a case currently before President Trump, two economic defendants have been offered seven years in prison if they plead guilty. They did not believe that they were actually guilty, so they went to court. They lost and were sentenced to a prison term more than ten times longer. Seven of these years were served for the crimes for which they had been convicted. The additional more than 70 years were the punishment for exercising their constitutional right to a jury trial.
There is something very wrong with a system that produces such disparity, but neither the courts nor the legislature have corrected this injustice. The president has the constitutional authority to do so by converting these “trial penalties” into appropriate punishments that reflect the actual crime, rather than the additional punishment of exercising a constitutional right. He also has the authority to commute punishments that are simply too long by any reasonable standard of justice. Many presidents, including Presidents Trump and Obama, have used this power, especially in drug-related cases.
Then there are defendants who have been convicted for crimes that are off the books or are no longer prosecuted. The courts generally do not have the power to overturn such anachronistic convictions, but the president does.
There are other categories of injustice, abuse and overreaching that the president can correct or mitigate by the grace of the executive branch. These include judicial, prosecutorial or police abuse. These include special threats to the health of detainees resulting from the current pandemic.
Thus, when President Trump reviews the executive branch’s current requests for clemency, he will be fulfilling a critical constitutional duty: “to ensure that the laws are executed faithfully” and that the other branches of our government have acted justly, fairly and with compassion. He is the ultimate check and balance against state interference in our imperfect criminal justice system. It should exercise its constitutional authority broadly, fairly and equally.
Alan M. Dershowitz is the Felix Frankfurt Professor Emeritus of Law at Harvard Law School. His new podcast, The Dershow, is available on Spotify, YouTube and iTunes. Tweet: @AlanDersh. Dershowitz now represents, as he has done throughout his career, clients who seek mercy from executives.
The views expressed in this article are those of the author.
