The Corner

The Qualities of Mercy

I want to weigh in on the Bradley/Chelsea Manning commutation before it disappears down the memory hole.

I agree with other Corner writers who have denounced the commutation on the merits. Manning released a volume of classified material that put American lives and interests at risk; she has shown some remorse, but I highly doubt that her expressions of sorrow reflect real repentance — a deep seated acceptance that what she did was wrong, and a commitment to respect and obey the law in the future. I won’t argue about whether 35 years is too long a sentence for non-violent criminals who are unlikely to re-offend should they be released, but seven years strikes me as too short.

I understand those who view Manning as a pitiful rather than a vicious figure, unlike Oscar Lopez Rivera, to whom Obama also extended clemency. But Manning would have been eligible for parole in three years, and the parole process is designed to consider the kinds of mitigating factors that Manning’s supporters urged upon the Obama administration. That forum would have been the better one in which to consider her claims for mercy.

I will say on behalf of President Obama that at least his decision doesn’t smack of the kind of personal corruption that tainted many of Bill Clinton’s last minute pardons.

But the timing of the action is still very suspect. Obama is now the second Democratic president in a row to make highly controversial clemency decisions in the last days of his presidency, when there is no political accountability for anyone — not for the president’s party, which won’t go before the voters until long after this decision is forgotten, not for his successor, who cannot change what Obama has done, and certainly not for Obama himself, who commuted the sentence on his way out the door before going to Palm Springs.

What do we know now about the Manning case that we did not know three months ago, before the general election? What principle of equity is at stake now that was not at stake then? If the case for Manning is as strong as her supporters believe — and they, at least, have been straightforward about their position — it was strong enough for the president to have acted before the election, fully defended his actions, and accepted whatever political risks were associated with his decision.

I am a believer in the pardon power. It should be used aggressively, and without apology, where the executive believes either that a miscarriage of justice occurred in the courts or that the equities tip strongly in favor of clemency. I believe the American people would respect an executive who acted decisively and transparently in using the power, even when they disagreed with a particular decision. But these last minute commutations smell; they are yet another reason, for those looking for such reasons, to be cynical about the institutions of government and the leaders who populate them.

There is a simple remedy available. Congress should consider a constitutional amendment making clemency decisions during presidential transitions provisional only, subject to reversal by the new president within 60 days after he assumes office, and inoperative, unless confirmed by the new president, until the 60 days had passed. (Special provision could be made for death-penalty cases.)

I see no reason why the debate on such an amendment should be partisan. Presidents Clinton and Obama may have opened Pandora’s box, but there is zero reason to believe that future presidents of both parties won’t take advantage of the precedent they have set. It would be a sign of health — a small but important step towards constitutional propriety — if Congress and the states acted on a bipartisan basis to prevent these abuses. By all means, presidents should have the power to extend mercy when they think it’s justified, but they also should be required to show some principle, and some courage, in how they do it.

Jim Talent is a former U.S. senator for Missouri and a senior fellow at the Bipartisan Policy Center.

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