“24” and the Pardon Power
by Edward N. Tiesenga
Executive Pardons as Law Enforcement. As we near the end of President Obama’s final term of office, speculation has begun regarding likely criminal candidates for executive pardons. It has become common practice for second-term presidents to furiously issue “11th hour” pardons without fear of political retribution in their rapidly collapsing universe of lame-duck power right before they disappear from office.
Many of these pardons have reeked of cronyism and corruption.1 Rather than limiting exercise of the last-minute pardon power to benefit mainly wealthy convicted criminals2 this presidential prerogative could be channeled to serve more positive, justice-oriented purposes. The rough outline for this is suggested in “Season 4” of the popular TV series “24,” in which agent Jack Bauer must find a stolen nuclear missile. In the Midnight-to-1:00 a.m. episode, Jack is beating information out of a mid-level terrorist in a dimly lit room at CTU3 when an ACLU-type American lawyer hired by the foreign terror group shows up with an order signed by a federal judge to stop the interrogation. After first trying to fight the court order—but with no time do so—Bauer relents and CTU releases the suspect. Bauer then resigns from CTU on the spot, catches the freed criminal in CTU’s parking lot as his smug public interest lawyer drives away in a sports car, and continues his interrogation while breaking the suspect’s fingers until he coughs up the information. Bauer then locates and kills the top bad guy to stop the stolen missile from blowing up Los Angeles.
This TV drama suggests how a President could similarly manipulate our legal system to release dangerous criminals with pardons.4 Stepping back from fictional television, we all hear about insufficiently-punished crimes. In a particularly outrageous case, perhaps akin to nurse-murderer Richard Speck5, what would stop the President from ordering a “Jack Bauer pardon” with the understanding that the criminal be released to allow the victims’ families to directly administer justice?6
Judicial Situational Ethics and Extreme Law Enforcement. Supreme Court Justice Antonin Scalia defended Jack Bauer’s methods at a recent international conference of jurists and national security officials in Ottawa, Canada. During a panel discussion on interrogating terrorists, a Canadian Judge observed, “Thankfully security agencies in all our countries do not subscribe to the mantra, ‘What would Jack Bauer do?’”7
Justice Scalia then reportedly jumped to Bauer’s defense, arguing “law enforcement officials deserve latitude in times of great crisis.” Scalia went on to declare, “Jack Bauer saved Los Angeles . . . he saved hundreds of thousands of lives. Are you really going to convict Jack Bauer? Say that criminal law is against him. You have the right to a jury trial. Is any jury going to convict Jack Bauer?”8
Answering himself, Scalia said, “I don’t think so. So the question is really whether we believe in these absolutes. And ought we believe in these absolutes.”9
Clinton’s Pardons as Transformational Precedent. Justice Scalia makes an important point.10 The legal system is not self-executing, can be imperfect and includes procedural rules that can be gamed by criminals and their counsel. Of course, the key formalistic hoops,11 like Miranda,12 and absolute procedural guarantees like the Fifth Amendment are designed to preserve other elements of justice and minimize perversion of the law.
Formalistic protests that criminal procedure is somehow too sacred to be manipulated by the pardon power ring hollow after the Clinton pardons of cop-killing terrorists, drug-using half-brothers, uncooperative Whitewater witnesses and the largest criminal tax evader in U.S. history.13 Simply put, Clinton took pardon power manipulation even further than his predecessors, so why shouldn’t Obama do the same, only this time with a different agenda? If pardons can assist criminals, why can’t pardons assist the families ruined by criminals?14 If groups of these families organize into political blocs, a President—or political party—could even follow the vote-mongering, quid pro quo standard and buy those votes with strategic pardons. Furthermore, White House flak-catchers could frame the practice as being virtuous as it would address an Executive Branch access inequality between poor victim families and the usual cast of rich speculators and corporate chieftains. Phrases could be poll-tested to help a President tap into “the desire for vengeance,” whereby “a pain can be inflicted upon the wrong-doer, of a sort which does not restore the injured party to his former situation, or to another equally good, but which is inflicted for the very purpose of causing pain.”15
Projectile Pardons that Cannot be Refused. There is precedent for a President granting a pardon against the will of a convicted criminal.16 In the 1927 case of Biddle v. Perovich17, the Supreme Court declared that commutation of a death sentence to a life sentence could not be refused.18 Writing for the Court, Justice Holmes reasoned that, “A pardon in our days is not a private act of grace from an individual happening to possess power. It is a part of the Constitutional scheme. When granted it is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed.”19 History also affords the example of a President forcing a convict out of jail with a pardon. When Tammany Hall crony and Democratic New York City Comptroller Charles Craig refused his pardon in order to milk his victim status to score points against New York Republicans, Republican President Calvin Coolidge “ordered him removed from the prison and the doors locked behind him.”20
Outcome-Based Executive Ejectment Programs – New Deal Legal Theory Tests Positive for Power.
Following the era of Holmes and Coolidge, constitutional law underwent a New Deal transformation, drastically changing the accepted understanding of the role of government. Where liberties were formerly thought to be protected under the Constitution by limiting governmental power over an individual,21 federal power became an active tool to be used to manage an individual’s liberty to ensure a more politically- approved outcome.22 The specific “positive” application of the pardon power can be rationalized through this same general interpretation and use of federal power.23 Respected scholarship can be invoked to support the idea that “Due process does not mean only liberty against
the government, it can also be used by
government to restrain the liberty of some in the interest of the community.”24 This legal theory powers the post-New Deal modern era of vastly expanded governmental power, and with a little more evolution could justify a more creative use of the pardon power. To paraphrase Justice Holmes, the pardon power will then be whatever the President says it is, insofar as “men to a great extent believe what they want to—although I see in that no basis for a philosophy that tells us what we should want to want.”25
Outcome-Based Executive Ejectment Programs – Liberty as a Redistributable Political Property. This somewhat nihilistic New Deal legacy can be applied to re-polarize the pardon power as a positive tool for a President to create a pro-victim societal outcome against the individual interests of a convicted incarcerated criminal who has in effect been wrongfully protected by a malfunctioning judicial system. The utilitarian aspects of this calculus can be likened to the federal budget and tax system, where the prosperity of the wealthy is redistributed to ensure domestic tranquility and a minimum quality of life for those less fortunate. In this sense, one could make the case that lower socioeconomic classes of crime victims26 may require more social benefits to be redistributed to them by use of the pardon power. Forced Pardons as Voter Outreach. Unlike obvious narcissistic overtures to rich fugitives, Presidential empathy with severely damaged crime victims will not be as easily dismissed as pandering cronyism. At the same time, personal Presidential attention to crime victims will be an effective way to mobilize an overlooked voting bloc.27
Online Prisoner Release Tracing to Protect Victims. Today, technology can assist a President interested in providing direct assistance to victimized families in cases where the criminal justice system has failed to properly (in the opinion of the President) bring justice to a criminal. At least 40 states now employ automated systems to notify the public when inmates are released from prison. Pennsylvania, for example, will notify the criminal’s victims and anyone else who registers to be notified of any criminal’s release date via phone call, letter or e-mail.28 This system was developed in 1993 after a Louisville woman was murdered by her ex-boyfriend whom she thought was still safely incarcerated.29 Online registration for this system is found at www.vinelink.com.30 Each year this company registers over a million users nationwide and issues over 800,000 notifications.31
Online Vigilantes Tracking Released Offenders. Unfortunately, there is precedent for this same kind of notification technology enabling vigilantism. In Maine, Stephen Marshall shot and killed two sex offenders in their homes after using an online state sex- offender registry to get their addresses.32 After Marshall was cornered by police and shot himself in the head, investigators found public registry information for 34 sex-offenders on Marshall’s laptop, which also contained a GPS program he had used to actively hunt six sex offenders.33
Presidential Power to Force Law and Order Performance Standards. Although the Supreme Court struck down President Harry S. Truman’s attempt to command the U.S. Army to take over privately- owned steel mills during a strike in Youngstown, Ohio,34 President Richard Nixon successfully deployed federal troops to break a postal strike.35 Nixon did this by declaring a national emergency and ordering troops to deliver mail36, in spite of the “potential for violent confrontations between the strikers and the Guardsmen.”37 Nixon justified his action as necessary for “the survival of a government based upon law.”38 A President may claim the same power if he or she decides that activist judges are doling out minimal sentences to violent criminals, to re-impose law and order by activist use of the pardon power.
Presidential Care for the Forgotten Victim Class. Of course, no administration would admit to enabling vigilantism. However, the same spinners who created a completely false Benghazi narrative could be relied upon to figure out how to construe ‘Jack Bauer stop the President from bringing the situation full-circle by adding them to the list of “11th hour” pardons, and his Attorney General could later say that “the normal process, unfortunately, was not followed.”
Gaming the pardon power could be the next bloody crossroads between electoral success and the sale of influence. Indian casino legislation payoffs are now old news, and the post-Clinton public may have had its fill of watching well- connected criminals walk away with their pardons.40 Raised on these spectacles, the American populace may wish to turn the tables on the criminal class, and follow the ancient example of the degenerate Roman Republic, whose “pagan populace arose in fury” to demand the blood sport of killing political victims “whenever they dared to stir from their homes.”41 A clamor may develop for pardons to satiate a thirst for vengeance. What happened to the Christians in the Coliseum could happen to pardoned criminals released from prison into the society of their victims.
“24” Pardons as Future Political Currency. A President discerning this public mood could seize pen and phone to shift the old money-for-pardons paradigm to a new standard of cultivating votes with Jack Bauer pardons. The Clinton pardon variant of voter mobilization is only a hybrid half-way house toward this result insofar as all such suspected Clinton pardons were solicited by their grantees42, and never forced on their recipients. These thoughts may crowd in upon a future President facing the final moments in office, particularly those Presidents who leave office only to rejoin one or another “perpetual campaign” rooted in the shifting demographic appeals and culture wars conducted at all levels of the two party system.
1 According to former Senator Hillary Rodham Clinton, cronyism can even be found in President Bush’s partial- pardon grant of clemency to Scooter Libby. See, Morris, Dick. “Do the Clinton’s Now Support Jail Time for Perjurers?” FOX News, July 6, 2007. <http://www.foxnews.com/printer_ friendly_story/0,3566,288392,00.html>.
2 Bill Clinton’s pardoning of fugitive financier Marc Rich was met with much controversy in light of the fact that his family donated a combined total of almost a million dollars to Bill and Hillary’s respective campaigns over the years. “Presidential Pardons.” University of California, Berkley Library. March 2001. University of California Berkley. April 12, 2006 <http:// www.berkeley.edu/library/pardon/html>. Ronald Reagan pardoned New York Yankees owner George Steinbrenner who admitted to knowingly illegally contributing funds to Richard Nixon’s re-election campaign. “Presidents and the Power to Pardon.” Politics, power and money: The pardons controversy. CNN January 2001. <http://www.cnn.com/specials/2001/ pardons/pardon.history.html.>
3 The “Counter Terrorism Unit” operated by the federal government, Los Angeles Office.
4 Other “24” episodes have featured sophisticated deal-making by cornered terrorists who offer to cooperate only after receiving a Presidential pardon, which they require to see signed, and which must be faxed to their attorneys in Libya for cross-verification.
5 On July 14, 1966, Speck killed eight student nurses at the South Chicago Hospital, and was convicted of these murders during a window of time when the U.S. Supreme Court declared the death penalty to be unconstitutional. See generally, Furman v. Georgia, 408 U.S. 238, 92 S.Ct 2726, 33 L.Ed. 2d346 (1972). He lived out his years in an Illinois prison videotaping himself using drugs and having gay sex. Speck was captured on tape saying: “If they only knew how much fun I was having, they’d turn me loose.” Richard Speck. Biography Channel, A&E TV.
6 This is a notable feature of Islamic Sharia Law applied in Afghanistan after the Soviet withdrawal. Victims’ families could choose to directly kill the criminal, or to grant mercy and spare his or her life.
7 Lattman, Peter. “Justice Scalia Hearts Jack Bauer.” The Wall Street Journal Online: Law Blog 20 Jun 2007 22 Jun 2007
8 Lattman, Peter. “Justice Scalia Hearts Jack Bauer.” The Wall Street Journal Online: Law Blog 20 Jun 2007 22 Jun 2007
10 Id. Justice Scalia’s point certainly“startles and yet is recognized as conceivable. It is not a sleepy or bizarre vision but one that satisfies a hunger or stimulates the mind . . . to the recognition of a new potentiality.” Frank E. Manuel and Fritzie R. Manuel, Utopian Thought in The Western World (Harvard Press 1979) at 29.
11 On the uses of seemingly arbitrary “hoops,” See generally,
W.B. Yeats, “Meru,” from Supernatural Songs, Section XII (“Civilization is hooped together, brought under a rule, under the semblance of peace by manifold illusion.”)
12 Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2d694
13 See, Dick Morris, supra fn. 1.
14 This question phrased this way assumes that some victims’ families seek revenge against incompletely punished criminals. The author does not agree or disagree with this assumption for the purpose of this paper, which intends to explore how Presidential power could presuppose and encourage this perspective. For an alternative viewpoint that subordinates vengeance to the power of both individual and group reconciliation, See generally, Amstutz, Mark R. The Healing of Nations: The Promise and Limits of Political Forgiveness, (Boulder: Rowman and Littlefield, 2004); See also, Amstutz, Mark R., “After the Death Squads,” Books & Culture, July/August 1997, pp. 25-27.
15 Oliver Wendell Holmes, Jr., The Common Law and Other Writings (Legal Classics Library 1982 ed.), Lecture II, “The Criminal Law,” at 41.
16 Mount, Steve. “Constitutional Topic: Presidential Pardons.” Usconstitution.net. 15 MAR 2006. 27 JUN 2007 <http://www. usconstitution,net/consttop_pard.html>.
17 Biddle v. Perovich, 274 U.S. 480, 47 S.Ct. 664, 71 L.Ed. 1161
18 Thus overturning the Court’s contrary holding in U.S. v Wilson, 32 U.S. 150 (1833) “that a pardon is like a gift that can be refused.”
19 Biddle v. Perovich, 274 U.S. 480, 47 S.Ct. 664, 71 L.Ed. 1161
20 Calvin Coolidge Papers, Library of Congress. Case File #860, microfilm reel #145.
21 The so-called theory of “negative” liberty where government is told what it cannot do.
22 See, Arthur Selwyn Miller, The Supreme Court and American Capitalism (New York: Free Press 1968). Miller further outlines at least five contours of this new Positive State: 1) The change from a constitution of limitations to one of powers; 2) More rather than less economic planning by the government; 3) More federal and less state direction; 4) Legislation as only a starting point for further administrative regulation by bureaucrats, instead of a barrier to administrative innovation; and 5) The blurring of public and private actions.)
23 Arthur Selwyn Miller, The Supreme Court and American Capitalism 72-132 (New York: Free Press 1968). Holmes’ phrasing of “inflicting less than what the judgment fixed” would be reinterpreted as “inflicting more than what the judgment failed to fix.” Compare, Biddle, supra fn 19, at 2.
24 Miller, supra, at 55 (emphasis added).
25 Holmes, supra fn. 15, at 314 (Excerpted from Harv. L. Rev, Vol. XXXII (1918)).
26 For instance, residents of trailer park communities seem to suffer particularly horrific crimes committed by transient visitors. Nine year-old Jessica Lunsford’s killer John Couey died in a prison hospital years after being convicted and sentenced to death for her abduction and subsequent brutal rape and strangulation/suffocation murder in a Florida trailer park. Couey appealed on the grounds that his confession was obtained via unconstitutional means and therefore inadmissible evidence. “Couey Jury Wants Death for Florida Girl’s Killer.” CNN. 14 MAR 2007. <http://www.cnn.com/2007/ LAW/03/14/couey.sentence/index.html>.
27 On organizing the forgotten among us, see generally, Alinsky, Saul D, Rules for Radicals: A Pragmatic Primer for Realistic Radicals (Random House 1971); see also, Alinsky, Saul D., Reveille for Radicals (University of Chicago Press 1946) (“There’s another reason for working inside the system. Dostoevsky said that taking a new step is what people fear most. Any revolutionary change must be preceded by a passive, affirmative, non-challenging attitude toward change among the mass of our people. They must feel so frustrated, so defeated, so lost, so futureless in the prevailing system that they are willing to let go of the past and chance the future. This acceptance is the reformation essential to any revolution. To bring on this reformation requires that the organizer work inside the system, among not only the middle class but the 40 percent of American families - more than seventy million people - whose income range from $5,000 to $10,000 a year [in 1971]. They cannot be dismissed by labeling them blue collar or hard hat.”); Compare, Rodham, Hillary, “There Is Only The Fight . . . ”: An Analysis of the Alinsky Model, Wellesley College Senior Thesis (1969).
28 Associated Press. “New System to Alert Public when Inmates are Released.” April 10, 2007. http://www.appriss.com/ sitedocs/PA-SAVIN-04-07.pdf
30 VINE (Victim Information and Notification Everyday) is now available free of charge in 40 states. Vinelink’s website contains a link to the Federal Bureau of Prison’s website, www.bop.gov, which in turn features an “Inmate Locator” with information on federal inmates. Jack Bauer used a similar website to assume the identity of a criminal (to fool some other criminals) during “Season 2” of “24.”
32 Associated Press. “Maine Killings Raise Questions about Sex Offender Registries.” The Intelligencer May 3, 2006.
<http://w w w.o w eb .c om/new s/st or y/053202007_ newSexOffendersSlain.asp>.
33 “Shooter visited more sex offenders: police.” CBC News: Canada/Nova Scotia. 24 APR 2006. CBCnews. 10 Jul 2007
34 Youngstown Co. v. Sawyer, 343 U.S. 579, 72 S.Ct. 863, 96 L.Ed. 1153 (1952).
35 This created much political backlash as Nixon had expanded his war power as Commander in Chief of the military to this domestic application without any approval from Congress. Jacobs, James. “The Role of Military Forces in Public Sector Labor Relations.” Industrial and Labor Relations Review. Cornell University, School of Industrial and Labor Relations, (1982) at 169.
36 Executive Order 11519. “Calling into service members and units of the National Guard.” Signed March 23, 1970. 35 FR 5003, March 24, 1970.
37 Id. at 175.
38 Id. at 169.
39 Just as the Hasidic Jewish communities in Rockland County, New York and the Puerto Rican voters in Hillary Clinton’s New York Democratic Senatorial Primary got the message from Bill Clinton’s strategic pardons issued to high profile members of these communities, according to Dick Morris. See, Morris, Dick. “Do the Clinton’s Now Support Jail Time for Perjurers?” FOXNEWS. 6 JUL 2007. <http://www.foxnews.com/printer_ friendly_story/0,3566,288392,00.html>.
40 Reminiscent of Gibbon’s description of “The servile crowd, whose fortune depended on their master’s vices, applauded these ignoble pursuits.” Gibbon, Edward, The History of the Decline and Fall of the Roman Empire (London: Methuen & Co. 1909) Vol. 1, Chap. IV at 101.
41 Durant, Will, Caesar and Christ: A History of Roman Civilization and of Christianity from Their Beginnings to A.D. 325 (New York: Simon and Schuster 1944) Chap. XXX at 649.
42 Or by their ex-wives, contacts in the Israeli secret service, or other sherpas.
Edward N. Tiesenga is a partner in the firm of Tiesenga Gottlieb & Reinsma LLP located in Oak Brook, Illinois. He is a graduate of Hope College (B.A. 1981) and American University (J.D. 1984). The author wishes to acknowledge and thank Thaddeus H. Goodchild, Esq., who assisted in the research and editing of this article as a pre-law intern with Tiesenga Gottlieb & Reinsma LLP during the summer of 2007. Mr. Goodchild is a graduate of Hope College (B.A., magna cum laude, 2008) and Chicago-Kent College of Law (J.D. 2011). He currently practices law in Chicago, Illinois.