The power to grant pardons and reprieves has long been a controversial one. It lodges in chief executives’ vast unchecked discretion. Courts have said that 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 arbitrarily 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 why 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, the Supreme 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 clemency power 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, 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, 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 the 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, President 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.”
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