The reluctance or refusal of President Bush to issue pardons and commutations is strange, considering his willingness to test the limits of executive power in almost every other respect. The Founding Fathers were unapologetic about retaining this traditional kingly prerogative, because they recognized both the necessity of aggressive criminal prosecution and recognized that such a system would spawn its share of Mike Nifongs. Alexander Hamilton wrote, "The criminal code of every country partakes so much of necessary severity that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel."

But while past presidents didn't hesitate to grant clemency or pardons whenever the mood struck or circumstances warranted, the quality of mercy has been strained over the past 50 years or so. According to Justice Department statistics, a quarter or more of clemency petitions were granted by Presidents Truman, Eisenhower, Kennedy, Johnson, Nixon, Ford and Carter. Reagan cut that rate in half, and Bush, Sr. and Clinton cut it in half again. The reason seems to be partly that pardons get more publicity these days, and presidents are reluctant to give their opponents a stick to beat them with even if it means righting a serious wrong. Clinton notoriously waited until his final moments in office to hand out the majority of his pardons, including the seemingly purchased pardon of fugitive millionaire Marc Rich.

President Bush, however, makes Clinton look positively generous in the pardon department. He has granted only three petitions for commutation out of more than 5,000 received. That's not being "tough on crime;" that is simply avoiding the opportunity to do good when one has the power to do it. The justice system, like any justice system, doesn't always achieve a just result, and people can suffer terribly. A president, like a governor, has an ethical obligation to use the power of pardon and clemency.

Jonathan Rauch, a writer for the National Journal writing in Reason Magazine, tells the story of one man who has been horribly treated by American justice, and who would be an ideal and uncontroversial recipient of a presidential pardon. His name is David Henson McNab, and he has been in Federal prison since 2001 because of a bizarre set of circumstances that could have been turned into classic literature by Kafka or Victor Hugo.

A Honduran who is also a U.S. citizen, McNab owned Caribbean Fisheries, which captured lobster and shrimp in Honduran waters. In 1999, agents of the National Marine Fisheries Service seized one of McNab's shipments in Alabama. They found that about four percent of the lobsters were undersized, seven percent were egg-bearing, and all were packaged in plastic bags rather than boxes. This meant that McNab was in violation of Honduran--not American, now, but Honduran---law. But a U.S. statute bars the importation of "any fish or wildlife taken, possessed, transported, or sold in violation" of foreign law, so McNabb was charged with smuggling and, because he had received payment for the illegal shipment, money laundering.

As Rauch points out, McNab could have stayed in Honduras to avoid prosecution, but want to clear up the controversy in American courts, believing that it was all a huge misunderstanding. He was found guilty and sentenced to more than eight years, plus forfeiture of nearly $1 million.

The Honduran statute which McNab supposedly violated had been repealed in 1995. The agriculture ministry bureaucrats who had fingered him to Federal authorities and who testified in McNab's case were simply wrong: McNab had broken no Honduran law. In a November 2004 letter requesting clemency for McNab, Ricardo Maduro, then the Honduran president, wrote President Bush saying, "Mr. McNab did not break any law of Honduras." Even if the law had been broken, the Honduran penalty would have been just a small fine.

McNab appealed his conviction. He lost. He appealed to the Supreme Court. The Court had other priorities. Since 2004, his petition for clemency has been waiting for action by the President, and it seems unlikely that McNab will be pardoned before he completes his seven year sentence in November of 2008. Why? There is no good reason. And while Jonathan Rauch has found one obvious candidate for presidential mercy in David McNabb, there are undoubtedly many others.

Doing the right thing in this case, mitigating a miscarriage of justice that has cost a man his business and six years of his life, requires neither sacrifice, political risk nor great effort for the President. It simply requires action. Inaction when action is necessary to do unequivocal good is no better than affirmatively unethical conduct.

President Bush's unwillingness to exercise his pardoning power may not be deemed sufficiently embarrassing to galvanize his political opponents, but it is a serious ethical failing nonetheless.