Politics & Policy

Respite for Scooter

An alternative for the president.

Democrats were fairly confident Calvin Coolidge was in a pickle. A federal judge had slapped Charles L. Craig, an outspoken Tammany Hall star and comptroller of New York City, with a 60-day sentence for failure to retract several public statements. Craig appealed, but was on his way to doing the time.

It seemed the president would have to grant a pardon and annul the decision of a Republican-appointed judge., Or, Craig would be jailed simply for exercising his First Amendment rights, and the Democrats could use the widely publicized case as campaign material. Indeed, labor leader Samuel Gompers predicted a martyr would be a great “public service” and begged everyone to stop lobbying for a pardon — something Craig loudly promised he would not accept anyway. Key Republicans agreed it was all an awful mess and begged Coolidge to just grant the pardon and get it over with.

Everyone was focused on the pardon that might, or might not, appear.

That is when a cold bucket of water was tossed on those unfamiliar with the world of federal executive clemency. Without comment, Coolidge remitted Craig’s 60-day sentence. Administration officials were designated to explain that Craig “justly deserved” his punishment, but the people of New York needed their comptroller. The Times, the Post, Craig, and everyone else were essentially left wondering the same thing: What’s a remission? Silent Cal had masterfully evaded conflict with the judge, upheld the essence of the court’s decision, avoided a pardon, and denied Craig the victimization he so craved.

Today, many are pleased that Scooter Libby might be denied bail and sent to prison during his appeal. In their minds, a pardon is Libby’s only way out. Of course, they would declare such a pardon “unprecedented” and “controversial” right up to Election Day. Meanwhile, Libby’s strongest supporters are clearly disappointed with the president, if not outright angry. In their view, a pardon should be granted right away and the less likely an immediate pardon seems, the gloomier their world gets.

I’m not predicting a cold-water dousing is just around the corner, but that’s not to say there isn’t a very large bucket sitting right at the President’s feet.

The Constitution gives presidents the power to grant “reprieves and pardons.” The U.S. Supreme Court has interpreted that language to include pardons, conditional pardons, commutations of sentence, conditional commutations of sentence, remissions of fines, as well as forfeitures, reprieves, respites, and amnesties. A respite delays the execution of a sentence. It does not address issues of due process or guilt or innocence. It merely suspends sentence for a designated period of time. George Washington granted the first respites in June, 1795, when he delayed the execution of two men who fought in the Whiskey Rebellion — both of whom were eventually pardoned

The typical respite lasts between 30 and 90 days. But many times, initial grants have been followed by a second and third respite, or as many additional respites as were necessary. Woodrow Wilson delayed the six-and-a-half-year prison sentences of two men with nine respites because an “investigation of the facts” had taken “considerable time” — 13 months to be exact. Wilson also delayed the five-year sentences of W.G. and S.G. Simpson with three respites before pardoning them. The men were described as “guilty,” but it was noted they had made a “strong showing” that they had not intended to commit a crime. Howard Showalter lost his appeals, but his five-year sentence was delayed by Wilson for eight months before a pardon was granted over the strenuous objections of the judge and U.S. attorney. Robert Sidebotham’s 13-month sentence was delayed for over a year (with eight respites) because Wilson concluded it was “doubtful” Sidebotham “realized he was violating the law.” A pardon followed. There is, in short, a long history to the use of the respite.

E.C. Chambers was the champ of delays. Chambers sold property prone to flooding, and was convicted on 12 counts of “using the mails to defraud.” He faced a possible sentence of five years and a $12,000 fine, but was given only two years and a $6,000 fine. Chambers appealed, lost, and was ordered to turn himself in.

President Wilson complained to the attorney general that he could not give the case “full consideration” by the day Chambers was supposed to report to prison. So a respite was granted. And 15 more followed. The sentence was delayed from May of 1917 to November of 1919, before Wilson’s 17th act of clemency on behalf of Chambers ended the matter. Almost four years after the original conviction, a “thorough investigation” was over and a pardon was granted.

More recently, President Clinton twice delayed the court-ordered execution of a federal prisoner in order that a study of discrimination in federal sentencing might be completed. The respite power has not disappeared.

To date, President Bush has expressed a desire to refrain from interfering with the judicial process. A pardon would certainly be disruptive. Is there a way Bush can avoid a pardon, allow Libby to remain out of prison, take the position that the appeal has merit (or at least deserves to be heard), and revisit clemency later — perhaps at the end of the term?

Yes there is: Bring on the respites.

– P. S. Ruckman, Jr., a political scientist, is the author of the forthcoming book Pardon Me, Mr. President: Adventures in Politics, Crime and Mercy

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