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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

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.

yyyk 6y ago
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.
- laughinghan 6y ago
  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.
  - yyyk 6y ago
    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.

yyyk 6y ago

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.

laughinghan 6y ago
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.
- yyyk 6y ago
  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.