A longer version of this paper will appear as Rosenzweig, Reflections on the Atrophying Pardon Power, 102 J. Crim. L. & Criminology. (2012) (forthcoming). My thanks to the participants in the conference at Northwestern, where I delivered an earlier version of this paper, and to the staff of the Journal of Criminal Law and Criminology (most particularly Ms. Jennifer Won) for their helpful comments and editorial suggestions.
 Paul Rosenzweig, The History of Criminal Law, in One Nation Under Arrest 127, 139–143 (Paul Rosenzweig & Brian Walsh eds., 2010).
 A classic example of the criminalization of formerly civil offenses was United States v. Park, 421 U.S. 658 (1975), imposing criminal liability on the manager of a food storage warehouse company for maintaining unsanitary conditions.
 One example of the phenomenon, subject to the limitation of the Commerce Clause power, was Congress’s effort to make all violence against women a federal offense. See United States v. Morrison, 529 U.S. 598 (2000).
 Brian W. Walsh & Benjamin P. Keane, Overcriminalization and the Constitution, Heritage Found. Legal Memorandum, Apr. 13, 2011, available at http://thf_media.s3.amazonaws.com/2011/pdf/lm64.pdf.
 Margaret C. Love, The Twilight of the Pardon Power, 100 J. Crim. L. & Criminology 1169, 1169 (2010) (“For most of our nation’s history, the president’s constitutional pardon power has been used with generosity and regularity to correct systemic injustices and to advance the executive’s policy goals.”).
 Joanna M. Huang, Correcting Mandatory Injustice: Judicial Recommendation of Executive Clemency, 60 Duke L.J. 131, 133 (2010) (“Executive clemency[’s]…flexible and broad nature allows the president and state governors to pardon or commute sentences at will, including those sentenced during the mandatory-injustice period.”).
 A recent example of which was the decision of Mississippi Governor Haley Barbour to pardon more than 200 during his last days in office—a decision that generated a firestorm of criticism. See infra notes 46–48.
 See Kathleen M. Ridolfi, Not Just an Act of Mercy: The Demise of Post-Conviction Relief and a Rightful Claim to Clemency, 24 N.Y.U. Rev. L. & Soc. Change 43, 50 (1998) (“[T]he Framers, themselves steeped in the tradition of English law, were in substantial agreement about the need for an executive pardoning power and favored its adoption…. [A]n executive pardon would allow the President to heal the country in times of civil unrest, thereby protecting national security.”).
 See Mark Strasser, The Limits of the Clemency Power on Pardons, Retributivists, and the United States Constitution, 41 Brandeis L.J. 85, 89 (2002) (“[P]ardons may be issued when justice would otherwise not be served either because the sentence was too harsh or because the person was wrongly convicted.”).
 U.S. Const. art. II, § 2, cl. 1.
 Indeed, even Bill Clinton’s infamous pardon of donor Marc Rich did not violate the Constitution. To be sure, it was contrary to every understanding of good governance (the selling of justice has been anathema at least since the Magna Carta). See Magna Carta ch. 40 (1215) (“To none will we sell, to none will we deny, to none will we delay right or justice”). But no constitutional barrier to the exercise is apparent. See Albert W. Alschuler, Bill Clinton’s Parting Pardon Party, 100 J. Crim. L. & Criminology 1131, 1168 (2010).
 The Federalist No. 74 (Alexander Hamilton).
 United States v. Wilson, 32 U.S. 150, 160 (1833).
 The Federalist No. 74 (Alexander Hamilton).
 Madison Debates August 27, Yale Law Sch., http://avalon.law.yale.edu/18th_century/debates_827.asp (last visited Feb. 27, 2012). The practice that has arisen regarding the compulsion of testimony under a grant of immunity (e.g., 18 U.S.C. § 6002 (2006)) makes this particular ground for the pardon power a historical curiosity.
 Jonathan T. Menitove, Note, The Problematic Presidential Pardon: A Proposal for Reforming Federal Clemency, 3 Harv. L. & Pol’y Rev. 447, 452 (2009) (“[T]he President’s ability to pardon federal offenders swiftly has helped to heal the nation and serve the public interest. George Washington used the first presidential pardon in 1795 when he granted amnesty to participants in the Whiskey Rebellion.”).
 Id. (“Perhaps the best known examples of the presidential pardon being employed to restore tranquility to the nation arose during and after the Civil War. In 1863, President Lincoln issued a proclamation of general amnesty to those who rebelled against the Union; President Andrew Johnson, on Christmas Day 1868, pardoned Jefferson Davis and other confederate soldiers in what one scholar has called ‘the most salient exercise of executive clemency to date.’”) (citation omitted).
 Id. at 453 (“Similarly, on his first full day in office, Jimmy Carter pardoned those who had evaded the draft during the Vietnam War in an effort to ‘bind the wounds that an unpopular war had inflicted on society and on its young people, so that healing could begin.’”) (citation omitted).
 Biddle v. Perovich, 274 U.S. 480, 486 (1926).
 Akhil Reed Amar, America’s Constitution 189 (2006).
 Mitigation and Remittance Act of 1790, ch. 11, 1 Stat. 122.
 Act of Jul. 31, 1789, ch. 5, 1 Stat. 29.
 Act of Sept. 1, 1789, ch. 11, 1 Stat. 55.
 1 Stat. at 63.
 David P. Currie, The Constitution in Congress 50–51 (1997).
 1 Stat. 122, 122–23. Although initially passed as a temporary measure, the provision suspending operation of the Act was repealed in 1800, making the underlying provision a permanent part of the law. Act of Feb. 17, 1800, ch. 6, 2 Stat. 7.
 See David P. Currie, The Constitution in Congress: The First Congress and the Structure of Government, 1789–1791, 2 U. Chi. L. Sch. Roundtable 161, 213 (1995); see also David P. Currie, The Constitution in Congress: Substantive Issues in the First Congress, 1789–1791, 61 U. Chi. L. Rev. 775, 827 (1994) (“Congress perceived no constitutional impediment to this convenient use of judicial officers for purely administrative purposes.” (citation omitted)).
 Act of Feb. 27, 1800, ch. 10, 2 Stat. 7.
 Id. § 9.
 Act of Jan. 9, 1809, ch. 5, 2 Stat. 506.
 Id. § 12.
 P. S. Ruckman, Jr., Policy as an Indicator of “Original Understanding”: Executive Clemency in the Early Republic (1789–1817), at 6–7 (Nov. 1994) (paper presented to Annual Meeting of the Southern Political Science Association), available at http://www.rvc.cc.il.us/faclink/pruckman/pardoncharts/Paper7.pdf.
 Actual pardon numbers are difficult to state with certainty, both because of the age of the records and because early Presidents frequently made pardon or clemency grants to a number of people in a single instrument. In general, the actual number of people receiving pardons is greater than the number of pardon signing statements: For example, Madison’s approximately 200 pardon statements granted relief to more than 250 individuals. The data offered in the text are taken from id. at 7; P. S. Ruckman, Jr., Federal Executive Clemency in United States, 1789–1995: A Preliminary Report 16 tbl.2 (Nov. 1995) (paper presented to Annual Meeting of the Southern Political Science Association) (on file with the Journal of Criminal Law and Criminology).
 Love, supra note 6, at 1170 (citing P. S. Ruckman, Jr. & David Kincaid, Inside Lincoln’s Clemency Decision Making, 29 Presidential Stud. Q. 84 (1999)).
 Ruckman & Kincaid, supra note 35, at 85.
 All data in the text are taken from the Office of the Pardon Attorney, U.S. Dep’t of Just., Clemency Statistics, http://www.justice.gov/pardon/statistics.htm (last visited March 28, 2012).
 For example, in 1925, only 6,430 prisoners were incarcerated in federal prisons. See Langan, Fundis, Greenfield & Schneider, Historical Statistics on Prisoners in State and Federal Insitutions, Yearend 1925–86, Table 1 (Dept. of Justice, Bureau of Justice Statistics, 1988), available at https://www.ncjrs.gov/pdffiles1/digitization/111098ncjrs.pdf.
 Love, supra note 6, at 1188.
 28 C.F.R. §§ 1.1–1.10 (2011).
 President Clinton, for example. See Alschuler, supra note 12, at 1136–60 (detailing numerous questionable, end-of-term pardons issued by President Clinton).
 See Love, supra note 6 at 1197.
 Pete Earley, Presidents Set Own Rules on Granting Clemency, Wash. Post, Mar. 19, 1984, at A17 (quoting David C. Stephenson, Acting U.S. Pardon Attorney).
 All but a handful of the individuals officially responsible for approving Justice Department clemency recommendations since 1983 have been former federal prosecutors. See Margaret Colgate Love, Fear of Forgiving: Rule and Discretion in the Practice of Pardoning, 13 Fed. Sent’g Rep. 125, 132 n.23 (2001).
 Paul Larkin, Overcriminalization: The Legislative Side of the Problem, Heritage Found. Legal Memorandum, Dec. 13, 2011, 1, available at http://www.heritage.org/research/reports/2011/12/overcriminalization-the-legislative-side-of-the-problem.
 There are hundreds of reports of the controversy generated by the Governor’s pardons. One example: Richard Fausset, Pardons Could Haunt Barbour, L.A. Times, Jan. 13, 2012, at A1.
 The Mississippi Supreme Court has agreed to resolve the legal question surrounding proper notice to be a valid pardon. See Miss. High Court Steps into Flap Over Pardons, USA Today, Feb. 2, 2012, at A3.
 Not everyone was opposed to the pardons. For one of the few editorials in support of Governor Barbour, see A Quality of Mercy in Haley Barbour’s Pardons, Christian Sci. Monitor (Jan. 24. 2012), http://www.csmonitor.com/Commentary/the-monitors-view/2012/0124/A-quality-of-mercy-in-Haley-Barbour-s-pardons.
 C. B. Beccaria, An Essay on Crimes and Punishment 158 (photo. reprint 1953) (2d ed. 1819).
 The responsible corporate officer doctrine, first developed in United States v. Dotterweich, 320 U.S. 277 (1943) and United States v. Park, 421 U.S. 658 (1975), stands broadly for the proposition that a corporate officer can be convicted of a crime even though he took no direct part in its commission if he stands in some “responsible relationship” to the criminal actions (as, for example, if he has a duty and capability of preventing their occurrence). See generally, Corporate Crime: Regulating Corporate Behavior Through Criminal Sanction: Standards of Liability, 92 Harv. L. Rev. 1243, 1263–64 (1979).