The chief safeguard is that the rules must apply to those who lay them down and those who apply them—that is, to the government as well as the governed—and that nobody has the power to grant exceptions.
—Friedrich Hayek. The Constitution of Liberty, 1960.
The power to grant pardons is a violation of the rule of law because it gives discretion to an official to overrule the criminal laws. It is an affront to the principle that no one is above the law.
In 2001 President Clinton pardoned his half-brother for narcotics offenses. This was clearly not an exercise of discretion on behalf of the people of the United States, but rather on behalf of Bill Clinton. Some may dismiss these kinds of abuses as merely being a small reward for years of presidential service, but there are several problems with this view:
- Public office is a trusteeship that requires utmost good faith. The holder must act only in the interests of the people and never for personal gain.
- No one should ever be allowed to determine his own reward at the public expense. If presidents deserve a reward after leaving office, they should be granted a pension by the standing law.
- If presidents are to be rewarded, then let their reward be anything but the power to flout the law. After all, the inscription engraved on the portico of the U.S. Supreme Court reads ‘Equal Justice under the Law’, not ‘Equal Justice under the Law—except for those who are brothers of the president.’
Similar reasoning condemns governors and presidents holding the power to remit the death penalty. Men in a free country should not be given the discretion to decide who lives and who dies. If a person must die for his crimes no human should decide the question. It must be the written law and the actions of the condemned man alone that deliver him to the execution chamber. Under the rule of law, the legislature merely writes the law, the jury merely decides the facts, the judge merely applies the law, the executioner merely executes the warrant. It is an extreme deviation from the rule of law to have governors and presidents sit, like Sulla, as supreme arbiters of who lives or dies.
The argument for pardons is that they can abate the rigor of the law where its application is overly harsh due to circumstances unforeseen by the legislators. There is some merit in that view; after all, it was to meet such cases that the Courts of Chancery evolved. However, the Courts of Chancery are not easily susceptible to abuse; chancellors do not pardon their half-brothers for narcotics offenses. Moreover, their judgments are closely constrained by long-settled principles and are subject to appeal. Because the law is fixed, known in advance, and not determined by discretion, these courts do not in practice derogate from the rule of law.
Any mechanism to moderate the harsh application of the law must be reduced to a formula, and that formula must be reduced to the written law. The formula must not allow for any discretion—it should only fulfill the technical task of applying the new law to the established facts. The Roman Republic had a rule that only an assembly of the people could sentence a man to death. This proved a great bulwark of liberty. It would not offend the rule of law to keep murderers on death row until they had a chance to seek remission of the death penalty from people at the annual referendum.