This paper explains and defends a “second-best” theory of pardons. Pardons are “second-best” in two ways. First, pardons are second-best because they represent, in part, a failure of justice: the person convicted was not actually guilty, or he or she was punished too harshly, or the punishment no longer fits the crime. In the familiar analogy, pardons act as a “safety valve” on a criminal justice system that doesn’t work as, ideally, it should. Pardons, in the non-ideal world we live in, are sometimes necessary.
But pardons are also “second-best” in another way, because they can represent deviations from certain other values we hold dear in the criminal law: fairness, consistency, and non-arbitrariness. Pardons, when they are given, can all too often reflect patterns of racial bias, favoritism, and sheer randomness, both when they are given too generously or not generously enough. So we need to have a theory of how the pardoning power should be used, even when it is used to correct what are obvious injustices in the criminal justice system.
This paper both takes up the task both of showing how pardons are justified, but more importantly, also gives a theory on when they should be used. It introduces two constraints on the pardon power, one which constrains pardons when considered individually, and another which constrains pardons when we consider them as a whole. It is this latter ground that has been left mostly underdeveloped in the literature: we seem to know that pardons when given en masse can be controversial, but we lack adequate terms to explain why they might be morally problematic. This paper fills that gap in the literature, and in the process provides a general framework for analyzing when various “second-best” moves are permissible in reforming and correcting injustices in the application of the criminal law.
Flanders, Chad, Pardons and the Theory of the 'Second Best' (March 19, 2013). Florida Law Review; Saint Louis U. Legal Studies Research Paper No. 2013-11.