Duncan Hunter Press Release: Hunter Introduces Bill To Pardon Convicted Border Patrol Agents

This just arrived in my email:

“Washington D.C. – Today, Congressman Duncan Hunter (R-CA) introduced the Congressional Pardon for Border Patrol Agents Ramos and Compean Act. The legislation pardons convicted Border Patrol Agents Ignacio Ramos and Jose Compean, who reported to prison yesterday to begin serving 11 and 12 year sentences respectively. The conviction derived from an incident involving their efforts to apprehend a drug smuggler on the international border with Mexico.

“The Border Patrol is America’s first line of defense against the constant and unrelenting efforts of drug and human smugglers to illegally enter the United States,” said Congressman Hunter. “Agents Compean and Ramos fulfilled their responsibilities as Border Patrol agents and rightfully pursued a suspected and fleeing drug smuggler. It is irresponsible to punish them with jail time.

“The security situation on our Southern land border requires a strong law enforcement presence. This conviction demoralizes our nation’s Border Patrol and sends a clear message that we are not serious about protecting our borders and enforcing our immigration laws.

“We cannot turn our back on Agents Compean and Ramos or the rest of the men and women proudly serving in the U.S. Border Patrol. These two agents deserve our full support and the Congressional pardon provided by this legislation.”

In addition to introducing the Congressional Pardon for Border Patrol Agents Ramos and Compean Act, Congressman Hunter contacted the Federal Bureau of Prisons and personally requested that Agents Compean and Ramos be segregated from the general prison population in order to ensure their safety.”

Wow. Can they do this? Even if they can, wow, this may very well be a can of worms best left unopened. Certainly, if this were to work, we’d see bills like this being introduced regularly and it would put congressmen in the position of trying to play judge and jury based on their political convictions and what could turn out to be slanted, hearsay evidence as presented by the media. You could also certainly make a case against this bill along Terri Schiavo lines, “Right, wrong, whatever, Congress shouldn’t be involved.”

Of course, I was for intervening in the Terri Schiavo case and I’m for intervening in this case, too, if it can be done. I just can’t support leaving two border patrol agents in jail for more than a decade each because they shot a drug running illegal alien — whom they thought had pulled a gun — in the behind. Worst case scenario, these guys merited a short suspension, not a jail term.

I guess that means the old saying is true: “Hard cases, it is said, make bad law”.

Update #1: Duncan Hunter’s people have sent out a 2nd press release on this explaining the legal reasoning behind it:

To help answer questions about the “constitutionality” of Congressman Hunter’s Congressional Pardon for Border Patrol Agents Ramos and Compean Act, I am forwarding a legal analysis provided to our office.

In response to your query, our research indicates that Congress has never enacted legislation purporting to grant an individual pardon. However, it does appear that legislation contemplating such action was introduced in the 72d Congress. We are currently in the process of obtaining the text of the pertinent House and Senate bills. The Supreme Court has not ruled on the constitutional authority of Congress to grant individual pardons. It could be argued that the vesting of pardon authority in the President in Article II of the Constitution gives rise to the negative implication that Congress is precluded from exercising such authority.

The Supreme Court has construed an act of Congress granting immunity from prosecution to qualifying individuals as “virtually an act of general amnesty, [which] belongs to a class of legislation which is not uncommon either in England or in this country. Although the Constitution vests in the President ‘power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment,’ this power has never been held to take from Congress the power to pass acts of general amnesty….” Brown v. Walker, 161 U.S. 591, 601 (1896). The Court went on to declare that the “distinction between amnesty and pardon is of no practical importance” and that the distinction between the two terms “is one rather of philological interest than of legal importance.” Id. at 601-02.

This statement could be viewed as lending support to the view that the pardon power is not vested exclusively in the President and may be exercised by Congress as well. However, it could be argued conversely that the holding in Brown does not in fact support such a conclusion, as the act at issue did not attempt to grant a pardon to anyone already convicted of a crime, or who had already committed a crime; instead, the statute considered by the Court simply prohibited the use of certain testimony in a subsequent criminal prosecution of the person giving the testimony. As such, it is not clear that Brown may be taken to support the assertion that Congress may grant a pardon to an individual of the same type that may be made by the President (for instance, to vacate or set aside the conviction and imprisonment of a person convicted of a crime). Based on these factors, it is impossible to predict with certainty whether a reviewing court would consider an individualized legislative pardon to be within the power of Congress, or, rather, an unconstitutional usurpation of the pardon power that is specifically vested in the President in the Constitution.

Translation: If this bill passes and goes to court, maybe it will pass muster and maybe it won’t.

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