Holiday pardons send wrong message
Dalas Morning News, Dec. 30, 2010
In Federalist Paper 74, Alexander Hamilton predicted today's sorry state of justice without "easy access" to clemency from the executive: "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."
Who can look at America's prisons - a nation with 5 percent of the planet's population and 25 percent of its prisoners - and not recognize the sanguinary and cruel countenance of justice feared back in the day by Publius?
Clemency is now treated mostly as a holiday ritual, with little more practical significance than the pardoning of Thanksgiving turkeys. True to form, this month President Barack Obama issued nine pardons and Texas Gov. Rick Perry issued eight. In both cases, the clemency granted was a symbolic gesture focused on trivial, long-ago cases chosen more for their lack of political risk than the particular merits of the petitioners.
Obama took longer than any other Democratic president to issue his first, paltry pardons.
And while Perry's done better than the president - maxing out at 73 pardons in 2003, including 35 convicted in the notorious Tulia drug sting - he pardoned just eight people in fiscal 2009, and the fiscal 2010 total won't be much higher.
Georgia, by contrast, pardoned or restored rights to 561 people in fiscal 2010 - about four times as many as our governor has pardoned in his entire gubernatorial tenure. In Georgia, 38 percent of clemency applications are granted. In Texas, it's less than 3.5 percent.
I've become disenchanted with the Christmastime pardon ritual, for reasons ably articulated by pardon expert P.S. Ruckman: "Christmastime pardons send a very wrongheaded - if not outright dangerous - signal to the American people that pardons are something like Christmas gifts, passed out during the holiday season, to those who actually may or may not deserve them. Which is to say, it is no wonder the [federal government is] so shy about pardons. The very timing of them implies their work [regarding] the assessment of pardon applications is a joke."
Indeed, it's hard to not consider these pardons a joke when you look at the details. For example, Perry granted clemency to a 73-year-old man for a theft conviction from 1955. If the governor had waited any longer, he might have had to issue his second-ever posthumous pardon. Another pardon recipient spent three days in jail 31 years ago for unlawfully carrying a handgun. If it's true that justice delayed is justice denied, these latter-day pardons hardly constitute justice.
And why pardon just one individual who "was convicted of possession of marijuana in 1971 at the age of 21"? Are there no other men and women who've grown up to lead productive lives after a pot conviction in their youths? Texas arrests tens of thousands for pot possession every year; hundreds of thousands are in similar circumstances who will never benefit from such gubernatorial largesse.
If the governor is going to issue pardons for such petty offenses, the fair thing would be to pardon entire classes of offenders - for example, pot offenders with no other convictions on their records 10 years later. For that matter, commuting long drug sentences and those of low-risk elderly offenders with high health care costs would actually save the state a great deal of money. Plus, the possibility of clemency creates incentives for good behavior.
I'm not holding my breath for Perry or Obama to embrace a robust, Hamiltonian clemency, but there's a strong case to be made that they should treat the pardon power as more than just a token Christmastime genuflection to values of mercy and forgiveness - which are then ignored in practice the rest of the year.
Certainly Perry isn't alone in this. Sentencing Law and Policy recently published a post titled "Clemency policy and practice as symbol of failed Obama presidency," arguing that Obama's failure to exercise his clemency authority shows he "lacks the core convictions and political courage" for the job he holds. In that vein, why shouldn't Gov. Perry use gubernatorial clemency power to differentiate himself from the President?
Who could argue today that, as Hamilton predicted, "The criminal code ... 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"? If you're going to embrace states rights, it seems to me, you need to also demonstrate you're prepared to shoulder these long-neglected Hamiltonian responsibilities incumbent to states' governance. I harbor no illusions that Perry will exercise clemency authority as aggressively as suggested in that column, but there's a less radical, more politic version that doesn't seem so out there to me:
In the past, Perry has rejected about 2/3 of clemency recommendations from the Texas Board of Pardons and Parole. Perhaps a good start would be to simply accept more or most of the BPP's recommendations this year (it's not like the people he's appointed to the parole board are a bunch of softies) instead of selecting a symbolic few. Nobody can grant clemency except state or federal executives like Perry and Obama, so a robust clemency approval by Perry this December might generate at least a news cycle or two of interesting press analyzing the pair's relative clemency records (where Perry already compares favorably). By granting more-than-usual clemencies this December, Perry would likely generate good media with little near-term Wille-Horton-esque risk, while setting the story up inevitably as comparing Perry and Obama (since none of the other GOP candidates can grant pardons) and thereby making the governor appear more presidential.
I'm not confident Perry will do that, but if he doesn't he'll have missed an opportunity to separate, even elevate himself in a controlled, positive media moment from the other GOP contenders and the president. And at the moment, his is a campaign that needs to separate itself from the pack.
MORE: For reference, I added FY 2010 clemency data from the Board of Pardons and Paroles annual report (pdf) to update the chart Grits compiled last year on Rick Perry's clemency record, which, while timid, is still superior to the president's:
RELATED: Should have mentioned that the Texas Tribune has a widget to search Rick Perry's past pardons and related acts of clemency.