Pondering the Ghosts of Christmas Pardons Past, Present and Future

Will Texas Gov. Rick Perry issue one last round of Christmas-time pardons on his way out the door?

The future of executive clemency looks bleak.
Image from A Christmas Carol, 1951.

Usually he'd do it this week. (The sign of a clemency geek: I've been keeping the governor's web page up in a browser tab and periodically refreshing it. At least I'm up to date on the governor's views on the Australian hostage crisis and Chanukah.) Grits notoriously is not a great fan of the Christmas pardon phenomenon, but for the most part, with a few notable exceptions (especially early in his governorship), Perry has restricted routine exercises of clemency to a minimalist, annual pre-Christmas ritual.

One also wonders as pardon season approaches about Greg Abbott and what his clemency policy will look like as governor. Rick Perry rejected two thirds of positive recommendations he received from his appointees on the Board of Pardons and Paroles. Will Greg Abbott approve them at higher rates? What instructions will he give BPP appointees on clemency? What questions related to clemency will his staff ask potential BPP appointees during the vetting process? Might he be willing to revisit clemency requests which were approved by the BPP but rejected or never acted upon by Rick Perry? Will Gov. Abbott treat clemency as an ongoing, year-round executive function or limit pardon announcements to a few, symbolic Christmas-time public relations gambits? Nobody ever asked the governor-elect any of these questions on the campaign trail so I guess we must wait and see.

Grits hopes we see one more clemency announcement from Rick Perry, who can afford to be generous on his way out the door. But even more, I hope Greg Abbott ends this annual charade and integrates the clemency function more deeply and thoughtfully into the day-to-day duties of the state executive. With a few, notable exceptions (the Tulia cases, DNA exonerees, death-sentence commutations to comply with US Supreme Court orders) Rick Perry either ignored clemency or treated it as a political prop. Most years, an annual announcement during the holiday season of 10-20 lucky winners of the clemency lottery was the most one could hope for.

But clemency is one of the core duties of a state executive, in Texas filtered through the governor's appointees at the Board of Pardons and Paroles. It shouldn't just be a once-a-year thing and if two-thirds of the BPPs recommendations are to be rejected, reasons ought to be given.

There are many good explanations for the rise of mass incarceration in America over the last four decades, but one contributing factor you don't hear discussed very often is that mass imprisonment coincided with a precipitous decline both in the exercise of executive clemency and judges' habeas corpus power, both of which became more timid, stilted and stymied as they fell under sustained political attack, especially surrounding the death penalty. But these are the two main remedies for overincarceration envisioned by constitutional framers. So if the executive and judicial branches are incapable of reining in mass imprisonment, allowing the tools granted them for that purpose to atrophy from disuse, that leaves the legislative branch which largely created the problem in the first place. In Texas, the Lege is slowly reconsidering its predilection for expensive, lock-em-up solutions to every social problem. But that process would go faster if the governor and the courts exercised leadership on clemency using the means already at their disposal.

WANT MORE ON PARDONS? For current news on Christmas-time pardons from other states and from the Pardon-Grinch-in-Chief President Obama, don't forget to check the blog Pardon Power by the inestimable P.S. Ruckman, who tracks clemency issues nationwide and around the globe.