Clemency in Its Various Forms. Essay

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The naked use of executive power completely bypassed the DOJ clemency review process referenced above (Love, 2007, 5).

Has a president reached the apogee when he reaches into the judicial process itself (while it is motion no less) and run roughshod over the very clemency review process that is in place within his own DOJ? While not a violation of the letter of the law, it certainly is not in the spirit of it. According to an article by Mary Colgate Love in the Federal Sentencing Reporter, she remarks that "while the Framers did not subscribe to a notion of pardon as

a species of high-level gift-giving...For them, pardon was a necessary and functional part of their carefully calibrated system of checks and balances...pardon was a necessary and functional part of their care-fully calibrated system of checks and balances...(ibid)." What she further points out is a little remembered fact that in the early days of the country, the pardoning power was used much more frequently and was seen as a legitimate component of the nation's justice system in a day-to-day fashion. In this way, the executive branch had a check on what might be the excesses of the judicial branch and therefore acts of mercy could be dispensed to prevent the judiciary's abuse of its powers.

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While they saw the potential for abuse of the procedure, they thought it worth the risk in the greater cause of the balance of power between departments. Certainly, in our eyes the system may seem anachronistic and should not be used in a way that is not now the standard in presidential practice. However, it is still the law of land (ibid., 5-6). In other words, if we do not like the law, we should change it by amendment to the Constitution.

Conclusion

In the opinion of this author, the founders of the country had a great amount of wisdom and insight into government that has been rarely equaled in human history. We really should simply keep things the way they are. Our politicians and statesmen of this generation are amateurs compared to the founders. In exceptional situations, the executive branch should have the ability to grant clemency. Normally, the DOJ process is followed. The small amount of abuse of the system does not warrant changing the system at this time.

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