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There's no choice in a democracy but to have something like the pardon power.

The reason is that we need protection also from the power of judicial branch, which is abusable like any branch with power. Not having a pardon power allows bad judges to throw anyone they don't like into jail with no recourse by anyone. In a democracy, all branches are checked by the others, and this is a necessary check on the judicial branch. It could be done differently (approval by Congress or some third party?), but not having a check is dangerous.

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Now suppose the kid who shot the people in Kenosha gets a pardon (I don't know about jurisdiction). What would be the check on presidential power in that case?

I think the pardoning thing is absolutely wrong in the US form, where it is used quite often. I think it's just crazy that you can do something illegal but if you can just talk one guy into it, you are off the hook.

The only case I see where it makes sense is that there's some corner case that everyone can agree on. But then it would involve more than just one guy on his last day in office.

The kid could always be charged on some other state-level technicality. These charges would be state-level and therefore not subject to Presidential pardon.

That said, such a limited abuse would not justify ditching the pardon power. History has shown that not having a pardon power would have been impossible - the civil war would have lasted for decades, there would have been mass charges years after Vietnam, without the option of pardon Nixon may never have resigned, etc. A lot of these aren't corner cases, but they were necessary to still have a country.

IMHO, the by far best solution is to have it in a more limited form so it requires more than one guy.

> the civil war would have lasted for decades, there would have been mass charges years after Vietnam

Congress could have passed acts granting blanket pardons to all involved.

> without the option of pardon Nixon may never have resigned, etc.

It might have been better for the rule of law if he had been convicted and removed forcibly, then subject to prosecution.

>Congress could have passed acts granting blanket pardons to all involved.

That's just a slightly different method of doing the same thing. I agree involving Congress in pardons would make sense.

>It might have been better for the rule of law if he had been convicted and removed forcibly, then subject to prosecution.

It would have also involved more chaos in an already chaotic time, is that better than him resigning? I guess we'll never know.

Congress granting pardons is different. It's limited in scope and has a higher bar, since it requires the assent of a majority of the legislative branch.

What's chaotic about punishing a lawbreaking president? Sounds pretty lawful to me. It's how healthy democracies are supposed to operate. Pardoning Nixon set a bad precedent.

It's not so limited in scope, Congress could pardon half the felonies in the law book. It's only limited because Congress does yet have the authority to pardon people already in bars (or does it? I could be wrong here), but that could be changed.

As for Nixon, not pardoning him would have led to some very messy politics (does he even quit?) in the middle of the oil crisis/price controls/etc. I have no idea how it would have played out, but the US needed at the time a functioning presidency (more than usual).

The federal check on improper use of pardons is impeachment. Of course, that's a huge hurdle.

>> Now suppose the kid who shot the people in Kenosha gets a pardon

Offtopic, but for me that kid did nothing wrong - it was self defence. If he isn't found innocent by court then he definitely needs to be pardoned.

Not having a pardon power allows bad judges to throw anyone they don't like into jail with no recourse by anyone.

Technically, all judges can be impeached, and all judges other than SCOTUS can be appealed (there's actually a specific writ you can file claiming to be jailed unjustly, habeas corpus).

In practice, impeachment hasn't proven to be much of a check on judicial power (recall elections have probably been more effective overall), but I think the appeals process more or less works and I don't think the pardon power has added much, on balance. I think unilateral pardon power by a political official has proven sufficiently ripe for abuse that I would even support adding limits like some kind of Congressional check, but it's definitely nowhere near a top priority.

Obviously the appeals process has had plenty of failings too, the Japanese internment camps being the most famous example, another high-profile one is Lincoln suspending habeas corpus during the Civil War.

Technically, all judges can be impeached, and all judges other than SCOTUS can be appealed (there's actually a specific writ you can file claiming to be jailed unjustly, habeas corpus).

This doesn't vacate the original judgement, which is nigh-unappealable if made by SCOTUS. There are also cases when impeachment isn't warranted but a pardon still makes sense (I gave examples in another post in the thread). I think adding checks on pardon power would be enough to deal with abuse of pardon. You're right this isn't a top priority.

I don't think SCOTUS in its entire history has ever directly ordered anyone jailed, only upheld lower court rulings jailing someone or overturning opinions that concluded someone shouldn't be jailed. So at most that's recourse within the judicial system failing, not lack of recourse; obviously, pardon power can "fail" as recourse too, if anything, not providing recourse to injustice is the normal operation of pardon power.

If my choices were status quo and status-quo-except-pardon-power-is-abolished, I would probably prefer the status quo, because law enforcement overreach is currently a bigger problem than abuse of pardon power. But you made a much stronger statement: "There's no choice in a democracy but to have something like the pardon power." I disagree with that, I could easily imagine a much more just and fair democratic system where all recourse to judicial overreach still involved a decision by a judge at some point.

Well, I think the judicial/legal branch can overstep like any other, and needs some checks too. Letting everything be decided by a judge with a lifetime position risks the court forcing its position on an unwilling populace (think of SCOTUS's original position during the New Deal). But impeachment/packing is a radical move (itself a power play which can be just as unjustified), and doesn't necessarily help the accused as much.

As I wrote, if I had a say on this I'd go for a more limited pardon power than the current situation. I suspect our positions in the end aren't too different.

Sure, the ability for someone to be pardoned should exist, but it's complete nonsense that the President alone controls it. I agree with you, Congress should also take a vote, so that the power to pardon doesn't rest on a single person.

> There's no choice in a democracy but to have something like the pardon power.

Not necessarily. IIUC the American President's pardon power is based on the British monarch's pardon power. The role of President was conceived (consciously or unconsciously) as an elected, non-hereditary monarch. He had many of the same powers - veto, commander of the military.

> Not having a pardon power allows bad judges to throw anyone they don't like into jail with no recourse by anyone.

That would require every judge in every court up to the highest court to be bad.

> IIUC the American President's pardon power is based on the British monarch's pardon power.

Perhaps, but there are parallels in other democracies.

>That would require every judge in every court up to the highest court to be bad.

Technically, only the highest court would need to be bad, and it can order the others around.

Actually, it's merely a prerogative granted via holding the role of the Chief Executive. You get discretion to enforce or grant amnesty etc, because it's your job to set the priorities.

The pardon power, however, was never traditionally treated lightly, as it's use practically guaranteed you'd be right ticking off a potentially very large swathe of the populace by upsetting the smooth operation of the other branches. It was a check, undoubtedly, but one best used only wisely if for no other reason than to reassure the populace there was a commitment to faithfully executing the laws of the land, rather than everyone being at the mercy of a capricious and unstable tyrant/nepotist/other type of person you wouldn't want to see in the highest position of authority in the country.

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