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My understanding is that state governors have roughly unilateral power to pardon state crimes. (First of all, is this true?)

If so, suppose that a governor were to announce something like the following: "For anyone convicted of a drug offense, I will give them a pardon halfway through their sentence, but only if their birthdate is on an odd-numbered day of the month." Effectively, this would divide the state's population into two groups of people that are roughly equivalent, with the exception that one group expects to face longer sentences for drug offenses than the other group. This would allow the governor to test e.g. the deterrent effect of longer sentences, or the effect of longer sentences on future recidivism.

Would there be any barrier to a governor using their pardon power in this way? Has anything like this been done, or seriously proposed?

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    I would guess that such random pardons would run into major legal and political issues that could do major harm to the pardon power. – Joe W Feb 6 at 23:10
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State Governors still need to be elected. Doing something as odd as this look like a good way to ensure that doesn't happen.

Why "odd"? Well, it is one thing to do A-B testing on whether users prefer dark or light mode for a website (for example) Nobody is seriously harmed by being in the B group. But what you are proposing is to play with people's lives in a way that is manifestly and deliberately unfair. This wouldn't even get through the door of an ethics committee.

You are making punishment dependent on birth date. That is probably unconstitutional, under the "due process" or "equal protection" clauses. Of course, that is untested. It might also fall foul of the "cruel and unusual" clause.

And even if the courts decided that they couldn't get involved, you still have to convince the state legislature not to impeach you and convince the people that the use of arbitrary power in this way is not a reason to find someone else to vote for in the next election.

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  • ”This wouldn't even get through the door of an ethics committee.” It's not easy and there are valid concerns but it's not unlike a clinical trial. Here too the consequences can be life and death and they are in fact approved by ethics committees. – Relaxed Feb 7 at 14:54
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    @JamesK It's not cruel and unusual; the ones serving longer sentences are simply serving the time they were sentenced for in the first place (it's not like the governor is increasing their sentence.) I don't think you could make a valid due process claim either; the process was, after all, followed. A better bet might be a "equal protection" claim. – D M Feb 7 at 15:25

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