In the Harvard Journal of Law and Public Policy, Dave Yost (Attorney General of Ohio) & Benjamin Flowers (Solicitor General of Ohio): The First Step Act and the Pardon Power. From the introduction (footnotes omitted):
Mercy is a virtue. It implies a lack of worthiness on the part of the person to whom mercy is shown—to release an innocent prisoner is not mercy, but justice. Mercy is an act that overlooks a wrong and acts humanely, with compassion and with a view toward restoration.
But mercy is not the only virtue. And it can work at cross-purposes with others, especially in government. Consider prudence. Exhibiting mercy to a criminal defendant generally means exposing the public to some risk of injury. Prudence may counsel against imposing such risks on innocent third parties. But the zealous distributor of mercy may forget this.
Now consider humility. In a republic like ours, a good public servant realizes that he possesses only limited powers, and that this prevents him from righting every wrong. When government officials arrogate power to themselves in hopes of furthering “preferred policies, even urgent policies,” “they always undermine” the “vertical and horizontal separation of powers, the true mettle of the U.S. Constitution, the true long-term guardian of liberty.” An over-eagerness to show mercy to every deserving recipient can lead to precisely this sort of arrogation.
The brilliant minds who wrote our Constitution understood all this. That is apparent in their decision to give the President alone the power to grant commutations. The President alone wields the awesome responsibility to spare fellow citizens from the (potentially very serious) consequences of their criminal acts. This vesting of exclusive authority empowers the President to exercise mercy while simultaneously encouraging prudence. Because the responsibility of issuing commutations is the President’s alone, the President must live with the consequences—personal and political alike—of showing or denying mercy to a prisoner.
The First Step Act of 2018 upsets this framework. It empowers courts to grant “compassionate release” to prisoners. Courts may reduce a prisoner’s sentence if “extraordinary and compelling reasons warrant such a reduction.” In other words, the Act empowers courts to issue commutations. It thus reflects a profound lack of humility. Congress, apparently frustrated with Presidents’ cautionary approach to commutations, exercised power it lacks: it took from the President, and gave to the courts, the constitutionally assigned responsibility over issuing and denying commutations.
The Act’s compassionate-release provisions, by empowering the judiciary to exercise a power that the Constitution gives to the President alone, violates the Constitution. It is terrible policy to boot. In this essay, we address both issues. …
Posted at 6:13 AM