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GANJE: Government pardons in a democracy
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GANJE: Government pardons in a democracy

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David Ganje

David Ganje

The wheel of life does not always give one fortune. It is said when life gives you lemons it is best to slice the lemon thinly and apply tequila. What is submitted here is a more temperate and yet legal remedy for drowning one's sins (and miscellaneous federal crimes).

The remedy is pardon authority for all citizens to be given by the government. But not just any pardon – a self-pardon.

As a principle of law, the traditional executive pardon is granted before or after a criminal conviction depending on the laws of the particular jurisdiction. The executive pardon is granted by a governor or a president. I propose a law change in the pardoning process by way of a constitutional amendment. To the loyal reader I promote equal access to justice. The harvest is plentiful, but the laborers are few. And those reliable readers who actively support the amendment for self-pardons will be blessed to the third if not fourth generation.

Let us first have a partial look on the subject of self-pardons. Should we call this Clemency 101? An indulgence is a church granted self-pardon in a manner of speaking. Indulgence means a remission of the temporal punishment due to sin, the guilt of which has been forgiven. Some time ago a parishioner bought an indulgence in order to obtain its benefit. My proposal is a constitutional amendment under which the United States government authorizes self-pardons otherwise called civil indulgences. The citizen will pay for the indulgence, or as it is called, the self-pardon.

In old European law and custom only the king or queen granted pardons. In contemporary U S law the president and state governors are authorized to do this. History has always entertained me. It was often said under the misleading but popular maxim that, ‘The king can do no wrong.' The maxim reflected two concepts. First, the king was immune from prosecution, and, second, the king's decisions on how or who to pardon were not to be questioned. That is good supervisory employment if you can get it.

Federal self-pardons. No president in history has yet self-pardoned. Nevertheless, under the U S Constitution the pardon power of a president is broad. On the issue of a federal self-pardon Federal Judge Richard Posner wrote in the 1990s, “It has generally been inferred from the breadth of the constitutional language that the president can indeed pardon himself.” He referred to self-pardoning by a president of the president himself for violations of federal law. Not all authorities agree. Shortly before Richard Nixon’s resignation as president, the Justice Department issued its own memo on the subject. The Acting Assistant Attorney General then said, “Under the fundamental rule that no one may be a judge in his own case, the President cannot pardon himself.” And it is argued that a self-pardon by the president is incompatible with the provision of Article II, Section 3 that “he shall take Care that the Laws be faithfully executed”

State self-pardons. Notorious stuff happens in the world of state pardons. A recent Kentucky governor pardoned a man convicted of homicide who was the brother of one of the former governor’s campaign donors. Under a 1972 amendment to the South Dakota constitution the governor was granted exclusive plenary authority over the pardoning process. Plenary authority is the granted power to accomplish any purpose that is not prohibited by law. Before 1972 the governor’s pardoning power had limits and was a patchwork of bureaucratic conditions. Since the 1972 state amendment the South Dakota governor may grant general pardoning and self-pardoning for violations of state law. We should here consider nevertheless a latter-day perhaps unintentional restriction established by the governor’s recent executive fiat. Under an Executive Order issued by the governor in 2019, she reorganized her broad pardoning authority. The governor rerouted the pardoning process. This power is now delegated to the Board of Pardons and Paroles who have authority to first make pardon recommendations, as it were ‘by a committee.’ I tip my hat to the governor. She has removed a means of creating ethical, moral and legal mischief from a governor’s playbook. This is how pardoning now stands in South Dakota unless the Executive Order is rescinded.

The motive behind my recommended federal constitutional amendment for a self-pardoning right is civic, not personal. I deny public rumors to the contrary. Government granted authority to self-pardon will be revenue generating for the government. The reader will understand that a reduction in the federal budget deficit is one of my true aims. The type of self-pardon a citizen seeks will reflect the amount of money that citizen pays the government. The pardon menu includes a full pardon, a pre-emptive pardon, a commutation of sentence, an elimination of fines and penalties and so forth. I am still rifling through my saddle bags for more items to add to the pardon menu list. As far as exercising the right of self-pardoning it is true I might for one apply on account of my juvenile court record.

It has been recommended that Congress submit the proposed amendment to state legislatures for approval. State legislatures are the preferred forum for its adoption. Legislators have good reason to support self-pardoning when one looks at several active skeletons elected leaders secrete in their respective closets. Yet, dear reader please consider that not all citizens have the same ‘access’ to money which may be readily available to local, state and federal politicians. Government officials in tireless attention to their own interests, will undoubtedly be first in line to use this new constitutional right. We must control the amendment terms to provide equal justice for all. We should require that self-pardons be inexpensive. And, if the president supports the proposed change, I will agree the paperwork may include a self-serving letter signed by the President claiming credit for the amendment. To my loyal readers I encourage you to support the amendment. And may the pardon be with you.

David Ganje practices law in the area of natural resources, environmental and commercial law with Ganje Law Office. His website is Lexenergy.net.

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