Why Trump’s pardon of Alice Johnson’s may not bode well for democracy

Alice Johnson was released from prison shortly after reality star Kim Kardashian visited the White House and asked President Trump to pardon Johnson. A day later, Trump asked NFL players for their pardon recommendations. 

Every subsequent day, it becomes clearer: For this administration, the most effective way to advocate for change in the criminal justice system is to be famous. And that’s a problem for a system ostensibly built on democracy, fairness and justice.

{mosads}Don’t get me wrong — Johnson was well-deserving of the pardon. She had been convicted of a first-time, nonviolent drug offense and had already served more than 20 years in federal prison. By all accounts, she was a model inmate, had become an ordained minister and served as a mentor for many women behind bars. The sight of her celebrating her freedom has gone viral – the pure joy is clear from her face. Still, her release is bittersweet for what it symbolizes about this administration.

Now, Trump is asking NFL players to recommend individuals for pardons, and the players are taking up the charge. Activist Shaun King has encouraged players to put their disdain for Trump or Republicans behind, and to recommend individuals for pardon. Former Giants kicker Lawrence Tynes responded to Trump’s tweet, informing the president that his brother Mark is serving 27 years for selling marijuana. 

The players responding to Trump’s inquiry are smart to be doing so. It makes sense to take advantage of the situation and advocate for those harmed by harsh drug laws. But what about all those individuals serving sentences similar to Mark’s who don’t have an NFL player as a brother?

Given our system of checks and balances, the president’s unencumbered ability to grant pardons is a constitutional anomaly. While the first Supreme Court decision characterized the presidential pardon as “an act of grace” similar to the pardon power of the British monarch, 94 years later, the court clarified that a pardon is “not a private act of grace” on the part of the executive, but rather “part of the Constitutional scheme” representing “the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed.”

Presidents in the past have used pardons to do just that — serve the public welfare. Thomas Jefferson pardoned those still in prison under the controversial Alien and Sedition Acts when he became president. In 1863, President Abraham Lincoln issued a proclamation of general amnesty to those who rebelled against the Union. And as soon as he took office, President Jimmy Carter pardoned those who had evaded the Vietnam draft in order to — as author Kathleen Dean Moore states — “bind the wounds that an unpopular war had inflicted on society.”

The pardon power grants the executive the ability to respond to events quickly using the kind of agility that the other two branches, by design, do not possess. When used appropriately, it can be a very good thing. As the examples above illustrate, often the most legitimate uses of the pardon power have not been to address one-off instances of injustice, but rather to offer relief where a government position or policy harmed large swaths of people. On the other hand, making pardoning into a game – a prize to be won by the famous and those chosen by the famous – endangers the legitimacy of the very Constitution that gives Trump the power to pardon in the first place.

Asking for pardons from NFL players to get them to stop kneeling in protest is particularly problematic. Pardoning certain individuals doesn’t solve the systemic issues the players are protesting; it cannot bring back to life the black men who were unjustifiably shot by the police. In addition, taking recommendations for pardons is one thing, but coaxing players to trade their constitutional right to free expression for a Get Out of Jail Free card — even if just symbolically — is worthy of contempt.

It’s also important to remember that pardons are not a true cure for an unjust sentence — not for the individual being pardoned and, most of all, not for all the others still behind bars. As a public defender in Baltimore, I celebrated with my client when an illegal arrest, an unjustified charge or a case involving police misconduct was finally dismissed. But the dismissal did not cure the harm that had already occurred – the arrest, the time spent in jail waiting for trial, the loss of a job, a home or a family. Similarly, pardons are something to celebrate, but they are no substitute for wholesale criminal justice reform.

We know there are too many people like Alice Johnson still behind bars, serving life sentences for nonviolent, first-time offenses — many involving drugs. If Trump is serious in claiming he recognizes that the criminal justice system is treating people unfairly, it’s time to make larger-scale changes — changes that fix the unfairness on the front end. 

In the meantime, “Executive Clemency” should not be the newest reality show on television. Treating pardons as such turns them into a political tool to be wielded by the famous and destroys the legitimacy of a system meant to treat equal cases equally.

Nila Bala is a senior criminal justice fellow at the nonprofit R Street Institute and a former assistant public defender.