I think it goes without saying that the best way to stop president from pardoning racists like Joe Arpaio is to not elect presidents who support such racism.  None of the angry commentary matters to Trump.  He didn't do this to please lefty, centrist or even mainstream Republican critics.  I suspect Trump had a bunch of reasons, ranging from a cagy signaling to associates who might be asked to court Robert Mueller's contempt to the banal "because he could."

My first reaction to the news was not even to get mad about Arpaio but to get mad at Obama for eight years of missed pardon opportunities.  The power to pardon people or to commute sentences is a whimsical power that we have given to the president.  You can talk all you want about established procedures and justice department recommendations but the essence of this power is that the president can act here for many reasons that would make a prosecutor apoplectic.

I just read in the Times that George W. Bush wondered to Ari Fleischer why a president has such leeway in the first place. Fleischer referred to it as an anachronism.  It doesn't modern sensibilities.  In the interests of fairness, we like for issues of law, order and punishment to be systematic, with somewhat limited leeway for the government to treat criminal defendants differently.  Of course, we're far off from achieving that but things like sentencing guidelines, even as they have served to institutionalize racism, seem fair for their "goose and gander" qualities.

I suppose we'd like to think that pardons are used broadly to correct failures of the justice system at the federal level. An obviously fine pardon who be for somebody established as wrongly convicted. Or maybe society has evolved to the point where the law that was broken is no longer relevant. Or maybe the crime was committed in the interests of the greater good and the motive matters. Perhaps we agree the crime was relevant and punishment deserved, but that the punishment was too harsh in retrospect.  I can see a lot of good that a smart president could do, using reason and mercy, to issue pardons and clemencies.  I believe that Democratic presidents have under-utilized this power.

Which brings us back to the Department of Justice and its procedures.  We're a modern society. We like procedures and institutions that confer a sense of fairness to these types of decisions.  The problem is that the DOJ is an organization of prosecution and law enforcement.  It is not a hall of mercy.  The DOJ guidelines for recommending pardon or clemency are pretty harsh. They like to see serious prison time already served and they like to seem admissions of responsibility and remorse.  The DOJ acts as a kind of parole board here, made up entirely of prosecutors.

Chelsea Manning only got a commutation from Obama, after seven years of harsh imprisonment for actions that certainly broke the letter of the law but range from treason to heroism in the public mind.

The danger of leaving all of this up to the DOJ is that prosecutors naturally do not want to see their own work undone and they do not have a president's distanced perspective of what is really just and necessary in individual cases and what it just and necessary for the country.

When I was a kid and moved to New Mexico in the 1980s, governor Anthony Anaya, on his way out of office, commuted the death sentences for every death row inmate in the state.  People howled, but it's one of the most principled decisions I've ever seen in politics and there was no way that prosecutors of the judiciary were ever going to accomplish, or even consider, that.  Anaya was way ahead of his time. I'd like to see presidents do more of that.

This is all, admittedly, a bad time to be discussing this with His Fraudulency in office.  For the next four years, all of the pardons are going to be patronage, strategic or random and that will undermine the public's faith in granting this power to executives at the state and federal levels. But we need a human failsafe for our systems. The pardon power, thoughtfully applied, could be very good for society. Here's hoping Trump doesn't ruin it for the future.