Pardons, Criminal Theory, and Political Sociology

Few instruments of executive power are as sweeping, as opaque, and as ripe for abuse as the presidential pardon. Under Donald Trump, this power shed its last vestiges of impartiality and morphed into a vehicle of transactional politics. Pardons have become rewards for loyalty, tools of self-interest, and instruments of partisan retribution. Rather than signaling mercy or correcting injustice, they signal allegiance.

In what follows, I will offer two related sets of comments on Donald Trump’s extraordinary use of the executive pardoning power. The first is from the standpoint of a philosopher of criminal law, in which I am an academic specialist. The second is from the standpoint of a political sociologist, in which I am a novice. Even though it affords me less of an opportunity to draw from my scholarly background, I regard the sociological perspective on this topic as more explanatory than its philosophical counterpart. I conclude with brief thoughts about the implications of the sociological dimension of this topic for questions of legal philosophy.

From conduct to loyalty – the philosophical logic behind Trump’s pardons

As regards the philosophy of criminal law, it is easy to misdiagnose the core problem at stake. Some commentators may be concerned that Trump’s exercise of his power to pardon reflects an alarming change in the nature of penal justice itself. Textbooks generally indicate that the criminal law focuses on bad acts (performed with mens rea). Yet the criteria Trump employs to pardon seem indifferent to the crimes committed. What recipients have done is largely irrelevant. Instead, pardons are more typically granted because of who these recipients are. Theorists almost universally oppose this shift in criminal justice from actions to agents. Philosophical orthodoxy, grounded in the principle that punishment should respond solely to culpable acts rather than to the character of the individual, holds that our penal system exists not to punish or reward good or bad persons, but to sanction criminal conduct.

Indeed, it is impossible to detect any pattern in the granting of pardons based on the crimes their recipients have committed. Trump did not, for instance, adopt a general policy of leniency toward those convicted of now-discredited offenses such as marijuana possession. Instead, the individuals he has pardoned were convicted of a wide array of crimes, including some of the most heinous: dealers of massive quantities of hard drugs, rioters who assault federal officers, and con artists who embezzle charitable contributions. Nor were these convictions typically marred by any clear miscarriage of justice in the process – despite vague claims about the weaponization of federal prosecutorial power. The nature of the underlying offenses appears to have played little or no role in the decision to grant clemency.

That said, the apparent shift in criminal justice from actions to agents is not unprecedented and should not itself be cause for alarm among legal philosophers who specialize in the substantive criminal law. It may be crucial to be reminded that the content of the penal code remains unchanged. Pardons do not alter what conduct is defined as criminal – unless one embraces the realist position that the law just is the conduct for which persons will be punished rather than the conduct proscribed in statutes. Moreover, some contrarians hold that persons, rather than acts alone, have always belonged at center stage in a theory of penal liability.¹⁾ Traditional defenses of insanity and infancy (sometimes categorized as exemptions) are clearly grounded in characteristics of the offender rather than in his act. More controversially, excuses in criminal law may be based on qualities of defendants. Lawbreakers who are ignorant, socioeconomically disadvantaged, weak-willed, or otherwise deficient in their capacities are frequently thought to qualify for special treatment. I will not pursue this train of thought here. My point is only that pardons have long been granted because of properties of the offender apart from the nature of their crimes: those who have been incarcerated for long periods of time, have undergone rehabilitation, or have expressed sincere remorse, for instance.

More to the point, a range of familiar criminal justice policies attach more salience to individuals than to their behavior. Like pardons, these policies typically operate at post-conviction stages of the criminal process. Consider, for example, the widespread use of enhanced sentencing for recidivists or so-called “three-strikes” offenders. These measures are clearly less fixated on acts than on agents. I do not suggest that these examples are normatively or theoretically uncontroversial, but they are firmly entrenched in our existing practice, for better or worse.

The U.S. system of gun control represents the best example from the substantive criminal law of a “person-oriented” strategy. For decades, efforts to curb gun violence have focused not so much on regulating the weapons themselves, but on restricting access for those deemed to be dangerous. Individuals subject to domestic abuse orders, drug users, convicted felons, adolescents, and those found to be mentally unfit have all been prohibited from possessing firearms. In such cases, the characteristics of the person matter far more than the type of weapon.

The nature of this approach to gun control is most easily appreciated by contrasting it with our system of drug control.²⁾ The regime of prohibitions throughout the U.S. generally aspires to protect society from the harms of drugs by identifying substances thought to be too dangerous to allow for non-medical purposes. Statutes list specific drugs proscribed for anyone to possess or use, regardless of who is involved. Consumers of specific kinds of drugs, rather than the characteristics of the persons who take them, are the subjects of criminal liability. In this domain, liability attaches to the act, not to the individual’s broader profile. To be sure, neither gun nor drug policy can be considered success stories in criminal justice. But the fact that gun policy is generally “person-oriented” while drug policy is “action-oriented” is seldom mentioned as a cause of failure.

Surely the more worrisome feature of Trump’s exercise of his power is not that it focuses on persons, but on which persons he has chosen to focus. Those who are loyal or have expressed fealty to Trump represent the common thread among the individuals he has decided to pardon. Patrons who contribute to his coffers also gain his favor. It is unthinkable that Democratic offenders would receive benefits. Instead, his opponents are more typically threatened with retribution and made the targets of criminal investigations.

Clemency as governance – the political sociology of Trump’s pardoning power

This brings us to what I believe is the second and more revealing dimension of Trump’s approach: the sociological. Trump’s use of the pardon power reflects a broader worldview – one that aligns closely with what many of his MAGA faithful tend to believe. He is simply doing, more overtly and more effectively, what they suspect all politicians have always done: using public power for private advantage. Much of what Trump has accomplished through his pardoning power does not shock his supporters and stands on a continuum with other parts of his agenda. According to this school of thought, criminal justice, like every aspect of politics, is transactional, allowing officials to reward their friends and to punish their enemies. From this cynical perspective, pardons granted to supporters and withheld from adversaries are nothing new. Trump is simply better at it than his predecessors.

My (hardly original) sociological observation is that Trump would not be able to use his pardoning power in such an openly partisan way but for the complicity of his many enablers. They either share his vision or are intimidated about speaking against it. The foremost enablers are his MAGA base, many of whom seem willing to overlook or excuse nearly anything Trump has said or done. His media allies manage to explain away (or what critics have aptly dubbed “Foxsplain”) any questions about his deeds and persuade their viewers that Trump is uniquely effective in making America great. Republican politicians are in a position to resist, but dare not do so if they face a primary challenge. Congress, sidelined by the expansion of executive authority, has largely abandoned its responsibility by deferring to Trump.

Much has been said of late about the Democratic cover-up of Joe Biden’s cognitive decline throughout his presidency.³⁾ Those closest to the President are said to have withheld what they could plainly see. In my judgment, the conspiracy of silence among Republicans about Trump’s mental state is even more worrisome. I am sure that many of his associates are appalled by his behavior generally and by his exercise of the pardoning power in particular. Few of the elected officials who cowered in their chambers on January 6th can be happy to see their assailants released from prison. One wonders whether significant numbers of elected officials will ever reach the breaking point and withdraw their support. Cracks in Trump’s Teflon armor occasionally open, but close just as quickly.

Undoing accountability – the authoritarian drift

At present, only courts appear both willing and able to do the dirty work of blocking major elements of Trump’s agenda. Even so, judges hesitate to intervene in what remains – at least formally – a core executive prerogative: the pardoning power. At some point, however, the rule of law itself is threatened when pardons are dispensed in such a partisan fashion. The outer legal limits of this power remain largely untested, in part because no executive has ever pushed the boundaries so far.

Imagine, then, a world in which Republican lawbreakers are routinely pardoned as a matter of course, while Democratic opponents find themselves subject to selective prosecution. In such a world, loyalty to the president offers de facto immunity, because supporters could confidently rely on a pardon whenever they break the law. His detractors would be unwilling to speak out because of fear of retribution. How close have we come to this world today? It is unclear to me that the Constitution prohibits this state of affairs, although constitutional lawyers may find the resources to prevent it. Here, as elsewhere, the Trump presidency engages in behavior previously regarded as unthinkable.

Until more of his voters turn on him, I would expect Trump to continue to wield his executive authority far beyond anything we have witnessed in the United States to date. His use of the pardoning power is simply another example of his unfettered ability to put his transactional conception of governing into practice. Thus I do not understand his use of pardons to represent a major departure from his general style of governing.

The logic is consistent: benefit friends, punish foes. To date, his Republican base seems satisfied, or even thrilled, with his demeanor. Those who enable this approach – whether through silence, complicity, or active support – share responsibility for the consequences. What is at stake is not merely political decorum, but the integrity of the rule of law itself. The sociopolitical conditions that explain Trump’s appeal thus have profound ramifications for legal philosophy, particularly in the criminal domain. When criminal justice becomes a partisan weapon, the very notion of equal accountability under law begins to unravel.