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THIS DEMOCRATIC GOVERNOR JUST DEMONSTRATED THE RIGHT WAY TO USE THE
PARDON POWER  
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Austin Sarata

Slate
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_ Maryland Gov. Wes Moore’s clemency forgives low-level marijuana
possession charges for an estimated 100,000 people in what he said is
a step to heal decades of social and economic injustice that
disproportionately harms Black and Brown people. _

Maryland Gov. Wes Moore,

 

The power to grant pardons and reprieves has long been
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controversial one. It lodges in chief executives’ vast unchecked
discretion
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have said
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governors can grant pardons “for good reasons or bad, or for any
reason at all.”

History has shown that the pardon power can be used well and to help
make our society better, fairer, and more forgiving. But it has also
been used
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or to reward friends, repay political favors, and accommodate the well
connected.

Instances of corruption or favoritism in the use of clemency tend to
make headlines and overshadow examples of its proper and productive
use. That is one reason
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what Maryland Gov. Wes Moore did on Monday, when he offered a pardon
in his state to more than 100,000 people with more than 175,000
marijuana convictions, is so significant. This mass pardon is a
sterling example of how the clemency power can and should be used.

Before looking more closely at what happened in Maryland, let’s
recall a bit about our country’s history of clemency.

In the 1833 case _United States v. Wilson_
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Court took up clemency for the first time. Chief Justice John Marshall
described that power in lyrical terms as “an act of grace,
proceeding from the power entrusted with the execution of the laws.”

In 1866 the court returned to the subject and acknowledged that
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is “unlimited.” It extends, the court noted, “to every offence
known to the law, and may be exercised at any time after its
commission, either before legal proceedings are taken or during their
pendency or after conviction and judgment.”

Clemency power “is not subject to legislative control. … The
benign prerogative of mercy … cannot be fettered by any legislative
restrictions.”

What the Supreme Court has said suggests that as a kind of monarchical
right or an executive action in a democracy, the clemency power is
outside or beyond the law and thus poses something of a threat to a
society dedicated to the rule of law.

Controversies surrounding clemency have been too numerous to fully
catalog. At the federal level, recent examples include President
Ronald Reagan’s 1989 pardon of George Steinbrenner
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the owner of the New York Yankees, who had pleaded guilty to making
illegal political donations to help Richard Nixon and obstructing
justice; President Bill Clinton’s pardon of Marc Rich
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who had for decades been a fugitive for fraud related to making
illegal oil deals and not paying more than $48 million in taxes; and
President Donald Trump, who pardoned and commuted
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sentences of his cronies, including Steve Bannon, Roger Stone, and
Charles Kushner, Jared Kushner’s father.

Enter Moore. Unlike the examples listed above, the pardons he issued
were not rewards for the rich and well connected.

His act is remarkable because of the breadth of its ambition, even
though he is not the first chief executive to use their clemency power
for people convicted of cannabis use.

In 2022, as the Washington Post reported
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Joe Biden “issued a mass pardon of federal marijuana convictions—a
reprieve for roughly 6,500 people—and urged governors to follow suit
in states, where the vast majority of marijuana prosecutions take
place.”

SHIRIN ALI
Jack Smith’s Moment of Truth at the Supreme Court

In April of this year, Massachusetts Gov. Maura Healey pardoned
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of thousands of people convicted in her state for simple possession of
marijuana.

But because they were linked to what Moore himself called a broader
“economic and moral” agenda, what he did went beyond those earlier
actions. His pardons were done as part of an effort to address
problems of racial injustice in his state. They show that the pardon
power can be used not just as a method to right injustices done to
individuals, but as a valuable tool of social policy.

According to the Washington Post
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Moore’s clemency serves “to forgive low-level marijuana possession
charges for an estimated 100,000 people in what the Democratic
governor said is a step to heal decades of social and economic
injustice that disproportionately harms Black and Brown people.”

Moore, the Post continued, acted because criminal records for
marijuana possession “have been used to deny housing, employment and
education, holding people and their families back long after their
sentences have been served.” Moore’s pardons will have a
substantial impact on communities of color in a state where more than
70 percent of its male incarcerated population is Black.

Moore was explicit in tying these pardons to his broader goal of
addressing the connection between drug prosecutions and the racial
wealth gap. “We’re talking about tools that have led to an
eight-to-one racial wealth gap in our state—because we know that we
do not get to an eight-to-one racial wealth gap because one group is
working eight times harder,” he said.

And the governor argued that Maryland could not “celebrate the
benefits” of its recent legalization of marijuana
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forgetting the consequences of criminalization. No Marylander should
face barriers to housing, employment, or education based on
convictions for conduct that is no longer illegal.”

In the end, Moore’s use of clemency vindicates Alexander
Hamilton’s hope that this power would be used
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concern for “humanity” and enact “good policy.”

 

* pardons
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* Wes Moore
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