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Pardons And The Theory Of The 'Second Best', Chad Flanders

All Faculty Scholarship

This paper explains and defends a “second-best” theory of pardons. Pardons are “second-best” in two ways. First, pardons are second-best because they represent, in part, a failure of justice: the person convicted was not actually guilty, or he or she was punished too harshly, or the punishment no longer fits the crime. In the familiar analogy, pardons act as a “safety valve” on a criminal justice system that doesn’t work as, ideally, it should. Pardons, in the non-ideal world we live in, are sometimes necessary.

But pardons are also “second-best” in another way, because they can represent deviations from certain …