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Mark Osler, P.S. Ruckman Jr., guest columnists: Obama would do well to follow Gerald Ford’s example of clemency

Mark Osler, P.S. Ruckman Jr., guest columnists: Obama would do well to follow Gerald Ford’s example of clemency

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As President Obama prepares for the annual turkey-pardoning, it’s a good time to recall the most famous — but perhaps not the most important — pardon in American history.

The short, eventful presidency of Gerald Ford encompassed conclusion of the Vietnam War, a troubled economy and signing of the Helsinki Accords. Yet it is Ford’s pardon of Richard Nixon that is most often noted. Journalists and historians routinely describe it as the most “controversial” or “significant” act of clemency in American history. However, this focus on the Nixon pardon obscures so much more than it reveals, at least when it comes to the pardon power and the legacy of Ford.

Most recent attempts at placing controversial pardons in context result in a list of persons pardoned after Nixon (G. Gordon Liddy, George Steinbrenner, Marc Rich, the FALN terrorists, Iran-Contra defendants, Whitewater participants, Patricia Hearst, etc.) — as though somehow the Nixon pardon started it all. In fact, every generation of Americans has experienced a wildly controversial pardon or two. Presidents have extended mercy to Nazis, multiple ax-murderers, vampires (yes, you read that right) and spies who compromised our nation’s intelligence and security. The pardon power benefited persons complicit in the assassination of Abraham Lincoln, individuals who sprayed the chamber of the House of Representatives with bullets (and hit three congressmen) and the owner of the so-called “Murder Stable” in New York City where more than 60 people were tortured, murdered and buried.

Yet the attention given to the Nixon pardon is better directed at educating Americans about the more common use of constitutional mercy. In most instances, pardons are granted to “average” persons — persons of little repute, who are “connected” to no one of great social or political import. These pardons are granted to applicants many years (sometimes decades) after conviction for some minor, nonviolent offence. Consequently, they are not violent criminals being sprung from prison. The judgment of judges and juries are not being overturned. The simple effect of these pardons is restoration of civil rights.

Nixon, of course, was a former president who did not even ask for pardon, much less fill out an application. Indeed, Nixon was never even convicted of anything. He was pardoned for unspecified crimes that he “may have committed.” In sum, there is very little that is representative, or generalizable, about Nixon’s pardon. It was a notable but highly idiosyncratic event that produced more heat than light.

Alas, the legend of the Nixon pardon obscures the thousands of other pardons granted during Ford’s partial term. If Obama is the stingiest modern president in using the pardon power (and we concur that he is, thus far), then Ford was the most merciful. His record is well worth a re-examination.

Just eight days after pardoning Nixon, Ford announced that he would again use the pardon power in a deeply meaningful way, with the same goal of healing national divisions. His plan was to convene a bipartisan commission to evaluate pardons for thousands of people who had either evaded the draft or deserted the military.

The Presidential Clemency Board he established did recommend the pardon of thousands of Americans, which Ford allowed. This was done without significant controversy, which may be one reason this part of the Ford legacy is now obscure. Compounding this is the fact that these pardons apparently are not counted in Department of Justice statistics, presumably because they did not go through the DOJ.

Because the board-recommended pardons were not controversial does not mean they weren’t significant. In fact, they represent the most important systemic use of the federal pardon power in the modern era. Moreover, Ford’s actions provide a template for addressing those who have been oversentenced for nonviolent federal narcotics crimes.

The maxim “those who don’t know history are doomed to repeat it” is incomplete. History can also provide precedent for the present, a clear path to a good outcome. In this upcoming season of mercy, Obama should look to the hidden legacy of Gerald Ford as a way to heal contemporary divisions created by the ill-advised War on Drugs.

Former prosecutor Mark Osler, formerly of the Baylor Law School faculty, is a professor of law at the University of St. Thomas Law School in Minnesota and a member of the Trib Board of Contributors. P.S. Ruckman Jr. is a professor of political science at Rock Valley College in Illinois and editor of the Pardon Power blog.

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