|USPS: O. Henry (Forever)|
Whether or not he was actually innocent, though (the application takes no firm position on the subject), there's little doubt that the writer left federal prison not just rehabilitated but prepared to make an enduring contribution to American literature and culture. Even if he never received presidential forgiveness, the American public forgave and embraced him. Porter's pseudonym to this day graces an Austin middle school as well as the nation's most prestigious short story prize. Indeed, a school was named for the writer in Llano, TX just two years after his release from prison! There are elementary schools named after O. Henry in Garland, TX and Greenville, North Carolina, and even a middle school in New York City.
The pardon petition idea first bubbled to the surface after President Obama quoted the great writer last year while pardoning a pair of Thanksgiving turkeys in an annual ritual that IMO makes a mockery of executive clemency powers. The Constitution's framers considered a pivotal check and balance to excesses of the criminal justice system. In Federalist Paper #74, Alexander Hamilton wrote that, "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." In modern times, though, executive clemency, especially at the federal level, has itself become a cruel joke to those who seek it.
Prof. Ruckman was the primary drafter of the pardon application and Grits appreciates his hard work on this project more than I can say. So partially in appreciation, and partially because he framed the argument so well, I'll close with a quote from the section of the pardon application articulating the reasons why the President should honor this great American writer with posthumous clemency:
the conventional view of pardons (state and federal) is all too often deeply infected with a kind of cynicism that is based in ignorance. This cynicism is directed at both those wielding the power of clemency and those who benefit from it. In this view, politicians use pardons to benefit personal friends, family members, large donors and fellow partisans. Anyone outside of the ranks is assumed to be a violent criminal, being tossed into the streets to terrorize society once again. In this view, acts of clemency are seen as “gifts” (fittingly distributed around Christmastime), “gifts” which may (or may not) be deserved. Sadly, members of the media do little to better inform, or discourage, this conventional wisdom.Go here to sign a petition in support of O. Henry's pardon application. Here's a copy of the application itself and attachments articulating an account of the offense and reasons for granting the pardon, as well as a summary brief submitted separately to the President.
Of course, students of the pardon power (state and federal) know that the typical clemency recipient does not spring anyone from prison. The typical recipient has already served his/her time – if there ever was any to be served. The offenses addressed are usually minor / non-violent and the recipient has, over a considerable period of time, integrated back into society as a law-abiding and productive member.
In sum, the typical pardon (which usually has the effect of merely restoring rights) is not a “gift” at all. It is earned and deserved. Executives are thus not “doing favors.” They are fulfilling their constitutional duty to make sure laws are not “too sanguinary and cruel” and that – where deserved - there is “easy access” to mercy.
The posthumous pardon of William Porter can be the very first to make this critical point, educating the American public - like no other - as to the original purposes and actual usage of the pardon power. It can be a much-needed giant step toward realigning the conventional wisdom with reality. The American public needs to understand the relationship between the rehabilitative function and the pardon power and Porter’s case is the perfect vehicle. School teachers across America could discuss rehabilitation and pardon as their students read The Gift of the Magi or the Ransom of Red-Chief. In an environment where the value of clemency is understood and appreciated, presidents and DOJ officials can exercise the pardon power more generously, and more effectively, as they should. O. Henry is considered a master of “surprise endings” and his life-story deserves a better ending.
See past posts from Prof. Ruckman's Pardon Power blog on O. Henry:
- O. Henry application: A worthy exception
- O. Henry: The early years
- O. Henry: Trial and conviction
- O.Henry: Prisoner No. 30664
- O. Henry: The American writer
- Pardon for O. Henry: Prelude
- Obama quotes fugitive, felon while pardoning turkey!
- Might O. Henry deserve a posthumous pardon for actual innocence?
- Why O. Henry: Would pushing Jack Johnson pardon have more 'symbolic heft'?
- Eat the turkey, pardon O Henry! President quotes Texas writer but won't pardon him