Portside

The power to grant pardons and reprieves has long been a controversial one. It lodges in chief executives’ vast unchecked discretion. Courts have said that governors can grant pardons “for good reasons or bad, or for any reason at all.”

History has shown that the pardon power can be used well and to help make our society better, fairer, and more forgiving. But it has also been used arbitrarily or to reward friends, repay political favors, and accommodate the well connected.

Instances of corruption or favoritism in the use of clemency tend to make headlines and overshadow examples of its proper and productive use. That is one reason why what Maryland Gov. Wes Moore did on Monday, when he offered a pardon in his state to more than 100,000 people with more than 175,000 marijuana convictions, is so significant. This mass pardon is a sterling example of how the clemency power can and should be used.

Before looking more closely at what happened in Maryland, let’s recall a bit about our country’s history of clemency.

In the 1833 case United States v. Wilson, the Supreme Court took up clemency for the first time. Chief Justice John Marshall described that power in lyrical terms as “an act of grace, proceeding from the power entrusted with the execution of the laws.”

In 1866 the court returned to the subject and acknowledged that clemency power is “unlimited.” It extends, the court noted, “to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken or during their pendency or after conviction and judgment.”

Clemency power “is not subject to legislative control. … The benign prerogative of mercy … cannot be fettered by any legislative restrictions.”

What the Supreme Court has said suggests that as a kind of monarchical right or an executive action in a democracy, the clemency power is outside or beyond the law and thus poses something of a threat to a society dedicated to the rule of law.

Controversies surrounding clemency have been too numerous to fully catalog. At the federal level, recent examples include President Ronald Reagan’s 1989 pardon of George Steinbrenner, the owner of the New York Yankees, who had pleaded guilty to making illegal political donations to help Richard Nixon and obstructing justice; President Bill Clinton’s pardon of Marc Rich, who had for decades been a fugitive for fraud related to making illegal oil deals and not paying more than $48 million in taxes; and President Donald Trump, who pardoned and commuted the sentences of his cronies, including Steve Bannon, Roger Stone, and Charles Kushner, Jared Kushner’s father.

Enter Moore. Unlike the examples listed above, the pardons he issued were not rewards for the rich and well connected.

His act is remarkable because of the breadth of its ambition, even though he is not the first chief executive to use their clemency power for people convicted of cannabis use.

In 2022, as the Washington Post reported, President Joe Biden “issued a mass pardon of federal marijuana convictions—a reprieve for roughly 6,500 people—and urged governors to follow suit in states, where the vast majority of marijuana prosecutions take place.”

In April of this year, Massachusetts Gov. Maura Healey pardoned tens of thousands of people convicted in her state for simple possession of marijuana.

But because they were linked to what Moore himself called a broader “economic and moral” agenda, what he did went beyond those earlier actions. His pardons were done as part of an effort to address problems of racial injustice in his state. They show that the pardon power can be used not just as a method to right injustices done to individuals, but as a valuable tool of social policy.

According to the Washington Post, Moore’s clemency serves “to forgive low-level marijuana possession charges for an estimated 100,000 people in what the Democratic governor said is a step to heal decades of social and economic injustice that disproportionately harms Black and Brown people.”

Moore, the Post continued, acted because criminal records for marijuana possession “have been used to deny housing, employment and education, holding people and their families back long after their sentences have been served.” Moore’s pardons will have a substantial impact on communities of color in a state where more than 70 percent of its male incarcerated population is Black.

Moore was explicit in tying these pardons to his broader goal of addressing the connection between drug prosecutions and the racial wealth gap. “We’re talking about tools that have led to an eight-to-one racial wealth gap in our state—because we know that we do not get to an eight-to-one racial wealth gap because one group is working eight times harder,” he said.

And the governor argued that Maryland could not “celebrate the benefits” of its recent legalization of marijuana “while forgetting the consequences of criminalization. No Marylander should face barriers to housing, employment, or education based on convictions for conduct that is no longer illegal.”

In the end, Moore’s use of clemency vindicates Alexander Hamilton’s hope that this power would be used to demonstrate concern for “humanity” and enact “good policy.”