An Unexpected Consequence of Pardon Powers

How the Possibility of Executive Clemency Makes it Easier for Judges to Issue Harsh Decisions

As a constitutional law professor, I especially enjoy teaching the section of the course about federal executive powers. That section focuses on the U.S. President’s powers conferred by Article II of the U.S. Constitution and how those powers have been interpreted by the U.S. Supreme Court. Many of the presidential powers are enormously important and have shaped American government, law, and history. To name a few: the President has the power to serve as Commander in Chief of the armed forces, to make treaties, to appoint federal judges and executive officers, and to “take Care that the Laws be faithfully executed.” U.S. Const. art. II.

A seemingly more minor executive authority is the power to pardon crimes. The Constitution authorizes the President to “grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” Id. at § 2, cl. 1. This power has not generated much attention from the U.S. Supreme Court, so it does not feature prominently in constitutional law textbooks. This inattention extends beyond courts and constitutional law texts: one thing that laypeople and lawyers might have in common is that few would list the pardon power as one of the most important things a President does.

Aside from the Constitution’s single listed exception prohibiting a self-pardon in a case of impeachment, the President’s pardon power knows no other limit. This thwarts any meaningful check on the exercise of this power from other branches of government. Presidents can pardon any offenders for any federal offense, or they may choose to not exercise the power at all. One can imagine scenarios where pardons could get the President into legal hot water, such as naked quid pro quo pardons to highest bidders, or a pardon policy that poses equal protection problems. Otherwise, the executive power to pardon is unchecked. (Though not completely unchecked: the pardon power is still subject to review in the court of public opinion, which helps explain why presidential pardon powers usually lie dormant until the lame-duck days of presidencies, when they are often wielded heavily).

The pardon power has the potential to define presidencies. President Obama used his pardon power to advance one of his signature initiatives of criminal justice reform, and even wrote a law review article about it in the waning days of his administration. See Barack Obama, “The President’s Role in Advancing Criminal Justice Reform,” 130 Harv. L. Rev. 811 (Jan. 2017) (“I have sought to reinvigorate the use of the clemency power, commuting more federal sentences than my eleven predecessors combined”). President Trump, on the other hand, wielded his pardon powers in favor of several members of the U.S. military who had been convicted or credibly accused of committing atrocities on the battlefield. See Dan Maurer, “Should There Be a War Crime Pardon Exception?”, Lawfare (Dec. 3, 2019) (“The Behenna, Lorance and Golsteyn pardons and the Gallagher relief were the first instances of a president pardoning or granting extraordinary clemency to a soldier for an offense constituting a war crime.”).

It is good grist for debate to compare the use of pardon powers by presidents and how they contribute to presidential legacies. But I want to draw attention to another and perhaps less appreciated effect of pardon powers: how the mere possibility of executive clemency insulates judges from the consequences of their decisions.

It works like this: judges must often make decisions of great importance. In criminal sentencing and appeals, a judge’s decision will often be the conclusive decision ratifying a harsh result such as life-without-parole or even death. But in theory at least, the judge’s final decision is not the last word: executives such as the President and state governors (whose authority to pardon state offenses in nearly all states closely mirrors Article II presidential pardon powers over federal offenses) could still grant mercy. The existence of the pardon power blurs finality, thus making it easier for judges to feel better about themselves and their decisions.

An example of this comes from a recent U.S. Supreme Court case about the circumstances when children can be sentenced to life-without-parole sentences. The practice of sentencing children to die in prison, even those who commit horrific crimes, is the subject of universal condemnation. Every nation that is a member of the United Nations has agreed to be bound by a treaty that prohibits the practice. See U.N. Convention on the Rights of the Child art. 37(a) (“Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age; …”). Alone among those 196 nations, the United States has signed but not ratified the treaty.

The U.S.’s door-slightly-ajar approach to the treaty left room for some states, including Mississippi, to permit life-without-parole punishments for children. Until recently, though, U.S. Supreme Court precedent sharply circumscribed the sentence. The Supreme Court has previously explained that “[i]mprisoning [a teenager] until he dies alters the remainder of his life by a forfeiture that is irrevocable,” making such punishment “akin to the death penalty” itself. Miller v. Alabama, 57 U.S. 460, 475-76 (2012) (quoting Graham v. Florida, 560 U.S. 48, 69-70 (2010) (cleaned up)). Because of children’s diminished culpability and heightened capacity for change as they mature, sentencing children to “this ultimate penalty” should be “uncommon.” Miller, 567 U.S. at 476, 480. The Court had created a “substantive rule” of Eighth Amendment law that life without parole is barred for “the vast majority of juvenile offenders,” and reserved for only the “rarest” offenders whose crimes reflect “permanent incorrigibility.” Montgomery v. Louisiana, 577 U.S. 190, 206-08 (2016) (citing Miller, 567 U.S. at 280).

But in a recent decision, Jones v. Mississippi, 141 S.Ct. 1307 (2021), the Supreme Court weakened those earlier bulwarks. Brett Jones was a 15-year old in 2004 who was living with his grandparents near Tupelo, Mississippi. Id at 1312. He got into an argument with his grandfather and stabbed him eight times. Id. The grandfather died and Jones was charged with murder. Id. Under Mississippi law at that time, murder carried a mandatory sentence of life-without-parole. Id. But after the Supreme Court ruled in Miller that mandatory life-without-parole for children violated the Eighth Amendment, the Mississippi Supreme Court concluded that Miller applied retroactively and authorized a resentencing hearing. Id. at 1313. Jones’ counsel argued at the resentencing that nothing in the record demonstrated that Jones was permanently incorrigible. Id. But the judge resentenced Jones to life-without-parole anyway, and the Mississippi appellate courts affirmed the decision. Id.

Writing for the majority, Justice Kavanaugh’s opinion backed away from the mandates of Miller and Montgomery and made it easier for states to sentence children to life-without-parole. The opinion emphasized that a factual finding of permanent incorrigibility was not required, and instead reimagined Miller and Montgomery as only standing for the idea that sentencers must have the discretion to consider a lesser sentence than life-without-parole for children. Id. passim. The opinion also distinguished Miller’s decree that life-without-parole for children should be “uncommon” and “rare” by saying that a discretionary sentencing regime would probably result in such sentences being issued uncommonly and rarely. Id. at 1318. Justice Sotomayor wrote a vigorous dissent, charging that the decision “guts” Miller and Montgomery. Id. at 1328.

The Jones decision represented not just a new rule of constitutional law. It was also the final stage of Brett Jones’s appeal. Because of Justice Kavanaugh’s decision, Jones’s life-without-parole sentence was upheld and he was condemned to die in prison.

Judges are human, and it must weigh heavily on them when they pronounce a harsh result as Justice Kavanaugh did with his decree on Jones’s fate. It is a somber duty to acknowledge the real-world impacts of a decision. But rather than doing so, Justice Kavanaugh ended his opinion with a paean to the political process and an upbeat assessment of Jones’s ability to continue seeking sentence relief:

“[O]ur holding today is far from the last word on whether Jones will receive relief from his sentence. Jones contends that he has maintained a good record in prison and that he is a different person now than he was when he killed his grandfather. He articulates several moral and policy arguments for why he should not be forced to spend the rest of his life in prison. Our decision allows Jones to present those arguments to the state officials authorized to act on them, such as the state legislature, state courts, or Governor. Those state avenues for sentencing relief remain open to Jones, and they will remain open to him for years to come.” Id. at 1323.

Justice Kavanaugh’s rationalization that Jones could petition for a change in the law with the state legislature seems fanciful. True, Jones could petition the Mississippi legislature, who could agree to change the law to grant him relief, but that possibility is so minuscule in reality that it seems frivolous to even mention it. So too is the prospect of Jones seeking further relief in state courts, where his claims are now exhausted and he is barred from filing further appeals.

Justice Kavanaugh’s suggestion about clemency from the Governor stands out. Theoretically, this opportunity for relief remains viable. Courts need not assess the likelihood of pardon relief; the fact that this avenue remains open permits misty-eyed hosannas to the wonders of democracy. For a judge, such emphasis is far more attractive than directly reckoning with the reality that a man has been condemned to die in prison for a crime committed as a child. In this way, the existence of the pardon power makes it easier for judges to issue difficult decisions. Judges might even be more likely to reach harsh results when they can avoid confronting the consequences. The existence of federal and state pardon power tends to obscure and soften the impact of the court’s ruling. Justice Kavanaugh’s decision in Jones is a reminder that judges are human, and that they are more likely to embrace harsh results when they can find palatable ways to rationalize their decisions.