The gloves Lincoln wore the night he was assassinated. Annie Leibovitz/Contact Press Images from "Pilgrimage." Image sourced here.
"The pardon process, of late, seems to have been drained of its moral force. Pardons have become infrequent. A people confident in its laws and institutions should not be ashamed of mercy."
Anthony M. Kennedy, Associate Justice of the Supreme Court, 2003
Despite the sizable disapproval of Lincoln's pardons at the time, there is no doubting the great effect the nature and number of his pardons has on the legacy of the pardoning power in the U.S. presidency. Sure, other presidents also made significant and perhaps even overwhelming use of the pardon, but none are remembered for the kind of accomplishments for which Lincoln is responsible. When modern America remembers our 16th president, the images of the "Great Emancipator," the preserver of the Union, and "Great Heart" come to mind, whether or not they be valid depictions of Abraham Lincoln. In the extenuating circumstances of civil war and massive unrest among various social groups, and in the capable hands of a revered leader, the executive pardon is deemed by modern America as necessary in Lincoln's time. Americans look back on the cases of the Santee Sioux and of the executions of scared soldiers as injustices of the past that reveal no parallels in the present. Accordingly, when we regard the idea of the pardon in a modern political context, it seems to fall short and the power is discarded, a remnant of an outdated concept. A common misconception is that American legal codes, having stood the test of time, have been revised to be less harsh and unfair. An executive pardon is therefore a discredit to the painfully executed amendment to our legal system and does more harm than good.
The merit of a reduction of the executive pardoning power cannot be ignored. Throughout Lincoln's administration, Attorney General Bates and General Sherman made complaint of the pardoning process as it was, claiming that a system based on personal access made it hard for a president to refuse and easy for individuals with a personal or political agenda to influence the exercise of the president's power. A solution to this predicament was to place administration of the pardon power exclusively with the attorney general. This not only took power from the executive, but also made for a greater connection between the pardoning power and the justice system (1). Since Lincoln's time, other factors have contributed to a need for reducing the pardoning power. In the latter part of the twentieth century, the United States began fighting less traditional "wars," such as the wars on poverty, crime, drugs, and terror. In cases such as these, when such abstract enemies are at large, pardons seem as useless as they are dangerous (2). Accordingly, the number of pardons granted by presidents has dropped off since the 1980s. Throughout his two terms, Obama has granted a total of 64 pardons (though that number will likely rise marginally when he grants a good deal of pardons on his last day of office, as has become customary for presidents) (3). This does not necessarily mean that fewer people are being pardoned; they are just finding new ways around it. It has become common for petitioners with personal connections to the presidency to obtain a pardon by means (and sometimes on grounds) not available to the less privileged, evading the regulations of the pardon bureaucracy in the Department of Justice (4).
Source: PardonResearch.com (P.S. Ruckman, Jr, Editor). Image can be found here.
At a time when an entire sector of our population of men and women of color is trapped in an endless cycle of poverty, blatant discrimination on the streets and highways and in the courts, police brutality, and the loss of rights as prisoners within the prison-industrial complex, the reincarnation of the presidential power as it existed in Lincoln's time is more imperative than ever (5). In order to achieve this kind of reform, what is required of the American presidency is an examination of our nation's limits of mercy for other human beings. The question is slippery and uncomfortable, as it calls for us at times to allow for the temporary suspension of the more strict guidelines of human law that have been so acutely amended and refashioned for changing times and situations. If the president of the United States wields the pardon power justly, he or she stands poised to effect immediate positive change. This can only result in the public becoming more aware of the issues in some of our laws as they stand. Instead of clinging to laws that can often effect cruel and unnecessary punishment, we as a public are asked to embrace what connects all beings, even the esteemed "Great Heart," in a common existence: the sympathies that overwhelm our colder reasoning and provide for the preservation of human life. Perhaps we will indeed prevail.
The dogmas of the quiet past, are inadequate to the stormy present. The occasion is piled high with difficulty, and we must rise -- with the occasion. As our case is new, so we must think anew, and act anew. We must disenthrall ourselves, and then we shall save our country.
Abraham Lincoln, December 1, 1862 Message to Congress
1. Love, Margaret Colgate. "The Twilight of the Pardon Power." The Journal of Criminal Law and Criminology 100.3 (2010): 1169-212. Print.
2. ibd.
3. "Clemency Statistics." Clemency Statistics. U.S. Department of Justice, 4 Dec. 2015. Web. 15 Dec. 2015. <http://www.justice.gov/pardon/clemency-statistics>.
4. "The Twilight of the Pardon Power."
5. Alexander, Michelle. "Introduction." The New Jim Crow: Mass Incarceration in the Age of Colorblindness. New York: New, 2010. Print.
2. ibd.
3. "Clemency Statistics." Clemency Statistics. U.S. Department of Justice, 4 Dec. 2015. Web. 15 Dec. 2015. <http://www.justice.gov/pardon/clemency-statistics>.
4. "The Twilight of the Pardon Power."
5. Alexander, Michelle. "Introduction." The New Jim Crow: Mass Incarceration in the Age of Colorblindness. New York: New, 2010. Print.
Further Reading
Databases and Collections
Cornell University Library: The Making of America
http://ebooks.library.cornell.edu/m/moawar/waro.html
Library of Congress: Chronicling America
http://chroniclingamerica.loc.gov
Lincolniana at Brown
http://library.brown.edu/cds/lincoln/
The Miller Center
http://millercenter.org/president/lincoln
The Papers of Abraham Lincoln
http://papersofabrahamlincoln.org
http://ebooks.library.cornell.edu/m/moawar/waro.html
Library of Congress: Chronicling America
http://chroniclingamerica.loc.gov
Lincolniana at Brown
http://library.brown.edu/cds/lincoln/
The Miller Center
http://millercenter.org/president/lincoln
The Papers of Abraham Lincoln
http://papersofabrahamlincoln.org