Pardons and the Theory of the “Second-Best”

This Article explains and defends a “second-best” theory of pardons. Pardons are second-best in two ways. First, pardons are second-best because they represent, in part, a response to a failure of justice: the person convicted was not actually guilty, or he or she was punished too harshly, or the punishment no longer fits the crime. In the familiar analogy, pardons act as a “safety valve” on a criminal justice system that doesn’t work as it ideally should. Pardons, in the nonideal world we live in, are sometimes necessary. But pardons are also second-best because they can represent deviations from other values we hold dear in the criminal law: fairness, consistency, and nonarbitrariness. Pardons can all too often reflect patterns of racial bias, favoritism, and sheer randomness, both when they are given too generously and when they are not given generously enough. So we need to have a theory of how the pardoning power should be used, even when it is used to correct obvious injustices in the criminal justice system. This Article takes up the task of showing how pardons are justified, but more importantly, this Article also theorizes how pardons should be used. Specifically, it introduces two constraints on the pardon power, one that constrains pardons when we consider them individually and another that constrains pardons when we consider them as a whole. It is this latter ground that has especially been underdeveloped in the literature, and this Article provides grounds for evaluating pardons not merely taken one-by-one, but when more than one pardon is given out at a time, or over the course of an administration. * Assistant Professor of Law, Saint Louis University School of Law; Visiting Fulbright Lecturer in Law, Nanjing University, China (2012–2013). I am grateful to Jeff Redding, Efthimi Parasidis, Monica Eppinger, and the members of the Washington University Junior Faculty Workshop, especially John Inazu, Zoe Robinson, Max Helveston, and Daniel Morales. They convinced me that my first go at this project was hopelessly wrong. I hope to have done better this time. William Baude and Christopher Bradley helped me to better frame my argument, and Zach Hoskins gave me incisive comments on a near-final draft. Justin Hansford provided helpful bibliographical guidance early on, and Dan Markel clarified a few points for me near the end. Lastly, correspondence with Ronen Avraham helped focus my thoughts on the issue of “comparative desert.” Thanks also to Yiqing Wang of Nanjing University and to Alex Muntges of Saint Louis University for excellent and timely research assistance. Research on this Article was generously supported by a summer research grant from Saint Louis University School of Law. All errors are my own. 1 Flanders: Pardons and the Theory of the “Second-Best” Published by UF Law Scholarship Repository, 2013 1560 FLORIDA LAW REVIEW [Vol. 65 INTRODUCTION 1560 I. A DEFENSE OF THE PARDONING POWER 1566 A. Moore’s Theory of Pardons 1567 B. An Objection Briefly Considered 1570 C. Justifying Haley Barbour’s Pardons 1571 II. PROBLEMS WITH PARDONS EN MASSE 1574 A. Some Problematic Pardons 1574 1. Racist Pardons 1574 2. Pardoning “Favorites” 1576 3. Random Pardons 1577 4. Pardons for the Wrong Reasons 1579 B. Barbour’s Pardons Revisited 1581 C. Some Recent Presidential Pardons 1583 III. TOWARD A SECOND-BEST THEORY OF PARDONS 1585 A. Ideal and Nonideal Theory 1586 B. Applying Nonideal Theory to Pardons 1588 C. Two Important Qualifications 1591 CONCLUSION 1594