The Big Flaw With the Law That Prevents Trump From Getting a Georgia Pardon

Now that Donald Trump has been indicted for a fourth time—this time in Georgia—the public is asking if Trump can escape the charges with a pardon. The answer is no. And the law that prevents a Trump pardon is a mixed bag for ordinary criminal defendants.

First, the charges against Trump have been brought by a county prosecutor in state court. Even if Trump were to win the presidency in 2024, a president can only issue a pardon in federal cases, not for state charges.

But what about the Republican governor of Georgia, Brian Kemp? Can’t he pardon Trump and the other defendants? Not a chance. Georgia is one of a handful of states that puts all of the pardon power in the hands of an independent board and keeps the governor out of it.

The Georgia rules cut off any escape hatch for Trump and his co-defendants. While this is very bad news for defendant Trump, it is good news for other Georgia defendants. And it’s a policy other states should try to emulate.

Taking the pardon power out of the governor’s hands limits the politicization of crime and justice. The United States is a prison juggernaut. We have nearly 2 million people in prison—including many who committed serious crimes but were hammered with excessively long sentences, and many who are no longer dangerous.

Yet, pardons and sentencing reductions are a rarity. Crime is so politicized that governors are too afraid to show mercy to those who are no longer dangerous and those who have already been adequately punished for their crimes. Many governors go their entire term in office almost never granting pardons. Thanksgiving often brings media coverage of turkeys being pardoned at the White House, but no actual people being sent home to spend the holidays with their families. Instead, our nation has grown accustomed to governors giving out a handful of pardons in their last days in office, or perhaps, if they are “very generous,” during the Christmas season. And even then, governors often concentrate the use of their pardon power on very low-level misdemeanor offenses.

If our nation is going to make a dent in mass incarceration, we need to do better. Sadly, decades of evidence show that our elected leaders are not up to the task. Pardon boards that are insulated from politics—those that cannot be pushed around by elected governors who are worried about reelection or seeking higher office—have the best chance to reduce the size of the prison population. An independent pardon board of reasonable size (the Georgia board has five people) is unlikely to make rash decisions that throw out meritorious prosecutions. Georgia’s independent pardon board is the right way forward.

But the pardon news from Georgia isn’t all good. Georgia also has an antiquated rule that forbids pardons from being issued until five years after a defendant has completed their sentence. (The state constitution provides a rare exception if a person can prove their innocence.) Not allowing pardons until five years after a defendant finishes their sentence is a terrible rule. If a rogue or overly punitive prosecutor seeks unjust charges against a criminal defendant, the pardon door should be open from the beginning of the case as an avenue to challenge prosecutorial overreach. And while there’s zero evidence that the Fulton County district attorney has engaged in improper conduct against Donald Trump, there are surely “regular” defendants in Georgia and around the country who can point to unjust prosecutions that should never have been filed in the first place. The pardon power should operate from the very beginning of a criminal case so that it can shut down a wrongful prosecution at any point in the life of a case, not just years down the road. This is particularly important because while Georgia still provides the option of parole, it may take many years for inmates to become eligible for parole. Moreover, few people are granted parole at their initial eligibility, and some recidivist offenders (not just those sentenced to life without parole) are not eligible for parole at all.

If we are to move toward a fairer and less punitive criminal justice system, we need a revitalized pardon power. The Trump case brings this issue to the surface. And the Georgia pardon rules show us both the right and wrong ways forward.