President Trump has issued three presidential pardons in the fifteen months he has been in office.
According to Article 2, Section 2, Clause 1 of the Constitution, the president “shall have power to grant reprieves and pardons for offenses against the United States except in cases of impeachment.” According to the case of Ex parte Garland (1867), the scope of the president’s pardon power is quite broad. And according to United States v. Klein (1871), Congress cannot limit the president’s grant of an amnesty or pardon.
On August 25, 2017, Trump pardoned Joseph M. Arpaio, the longtime sheriff of Maricopa County, Arizona, for his conviction for criminal contempt of court on July 31, 2017. He had not yet been sentenced.
On March 9, 2018, Trump pardoned Kristian Mark Saucier, a former U.S. Navy sailor, for his conviction for unauthorized retention of national defense information on August 19, 2016. He was sentenced to 12 months’ imprisonment and three years’ supervised release, conditioned upon six months’ home confinement and the performance of 100 hours’ community service.
On April 13, 2018, Trump pardoned Irve Lewis “Scooter” Libby, former Vice President Dick Cheney’s chief of staff, for his conviction for obstruction of justice, false statements, and perjury. He was sentenced to 30 months’ imprisonment, two years’ supervised release, and fined $250,000 on June 14, 2007.
Trump has also considered issuing a presidential pardon to boxer Jack Johnson (1878–1946). Johnson, a black man who enjoyed the company of white women, was convicted by an all-white jury in 1913 of violating the Mann Act against “transporting women across state lines for immoral purposes.” He was sentenced to a year and a day in prison, but fled the country for seven years. Upon his return, he surrendered to federal agents and served less than a year in prison in the U.S. Penitentiary at Leavenworth.
Sylvester Stallone called me with the story of heavyweight boxing champion Jack Johnson. His trials and tribulations were great, his life complex and controversial. Others have looked at this over the years, most thought it would be done, but yes, I am considering a Full Pardon!
The “others” include members of the U.S. House and Senate, including Senators John McCain and Harry Reid; filmmaker Ken Burns; Johnson’s great-niece, Linda Haywood; and former boxer Mike Tyson.
Lost in all of the clamor about Trump’s pardoning Johnson is the fact that there are other people who really deserve a Trump pardon — thousands of them. Almost half of those in federal prison are incarcerated because of drug charges. The president has the power, today, to pardon every American in a federal prison for committing a drug crime.
Why in the world should he do that?
There are two simple reasons why he should: (1) the war on drugs is a blatantly unconstitutional activity of the federal government; and (2) the war on drugs imprisons people for committing a victimless crime.
First, the Constitution.
In Article I, Section 8, of the Constitution, there are eighteen specific powers granted to Congress. We call these the enumerated powers. Everything else is reserved to the states.
Nowhere does the Constitution authorize the federal government to regulate or prohibit the manufacture, sale, use, or trafficking of any drug.
Nowhere does the Constitution authorize the federal government to concern itself with the nature of any substance that Americans want to eat, drink, smoke, inject, absorb, snort, sniff, inhale, swallow, or otherwise ingest into their bodies.
Nowhere does the Constitution authorize the federal government to be concerned with the medical or recreational activities of any American.
Nowhere does the Constitution authorize the federal government to have a Narcotic Control Act, a Controlled Substances Act, a Comprehensive Drug Abuse Prevention and Control Act, or a Combat Methamphetamine Epidemic Act.
Nowhere does the Constitution authorize the federal government to have a Substance Abuse and Mental Health Services Administration, an Office of National Drug Control Policy, or a Drug Enforcement Administration.
Nowhere does the Constitution authorize the federal government to have a National Drug Control Strategy, a National Survey on Drug Use and Health, or a Domestic Cannabis Eradication/Suppression Program.
When the federal government sought to limit the use of alcoholic beverages after World War I, it realized that it could do so only by amending the Constitution. That is why the 18th Amendment to the Constitution was adopted in 1919. If a constitutional amendment was needed to prohibit the “manufacture, sale, or transportation of intoxicating liquors,” then it should also be necessary if the federal government is to prohibit the unauthorized manufacture, sale, or transportation of drugs.
Second, victimless crimes.
Every crime should have a tangible and identifiable victim with real harm and measurable damages.
Rape, assault, child abuse, battery, kidnapping, manslaughter, and murder are real crimes. They actually harm people.
Burglary, robbery, theft, arson, looting, shoplifting, and embezzlement are real crimes. They actually harm property.
Possessing, using, growing, manufacturing, buying, selling, and trafficking in “illegal” drugs may be vices, but they are victimless crimes. They harm no one’s person or property as long as they are done in a peaceful manner by consenting adults who respect the property rights of others.
And as so eloquently explained by the nineteenth-century classical liberal political philosopher Lysander Spooner in his work Vices Are Not Crimes (1875),
Vices are those acts by which a man harms himself or his property.
Crimes are those acts by which one man harms the person or property of another.
Vices are simply the errors which a man makes in his search after his own happiness. Unlike crimes, they imply no malice toward others, and no interference with their persons or property.
In vices, the very essence of crime — that is, the design to injure the person or property of another — is wanting.
It is a maxim of the law that there can be no crime without a criminal intent; that is, without the intent to invade the person or property of another. But no one ever practises a vice with any such criminal intent. He practices his vice for his own happiness solely, and not from any malice toward others.
Unless this clear distinction between vices and crimes be made and recognized by the laws, there can be on earth no such thing as individual right, liberty, or property, and the corresponding and coequal rights of another man to the control of his own person and property.
For a government to declare a vice to be a crime, and to punish it as such, is an attempt to falsify the very nature of things. It is as absurd as it would be to declare truth to be falsehood, or falsehood truth.
Prosecuting Americans for committing victimless crimes turns vices into crimes and unnecessarily and unjustly makes criminals out of otherwise law-abiding Americans.
Trump should pardon everyone in federal prison who has been convicted of a drug crime. Anyone who has committed a real crime such as armed robbery or assault or murder in conjunction with a drug offense (e.g., possession, use, or trafficking) should, of course, remain in prison. But no one should ever under any circumstances be locked in a cage merely for possessing a substance the government doesn’t approve of.
Using drugs may be addictive, unhealthy, risky, immoral, sinful, and dangerous, but it should not be for the government to decide what risks Americans are allowed to take and what kinds of behaviors they are allowed to engage in so long as their actions are peaceful, private, voluntary, and consensual.