Public tired of Willlie Horton? Whither 21st century clemency?

Referring to the case of Maurice Clemmons - the mentally ill man whose 108-year sentence was commuted in 2000 to 47 years by former Arkansas Governor Mike Huckabee for crimes committed as a juvenile, and who last year killed four Washington state police officers in a coffee shop - former US Pardon Attorney Margaret Colgate Love offers up an item in the National Law Journal titled "Goodbye to Willie Horton" (Jan. 11), suggesting that, "The American public is tired of hearing about Willie Horton. The case of Maurice Clemmons has given our elected leaders an opportunity to move on."

No politician needs to be reminded of the iconic 1988 rampage by a furloughed prisoner that dashed Michael Dukakis' presidential hopes and ushered in two decades of harsh justice. For anyone aspiring to elective office, Horton has come to symbolize the hazards of any association with a high-profile crime. Since then, despite declining crime rates and escalating prison budgets, politicians have been cautious to the point of paralysis when it comes to criminal justice issues.

Nowhere has the spell cast by Horton been more powerful than where pardoning is concerned. Although attacks on chief executives related to particular pardons are nothing new in our history, never before has mere anticipation of attack ­succeeded in shutting down the pardon power altogether. With a few notable exceptions, recently governors and presidents alike have let their constitutional power atrophy, fearful of being labeled soft on crime or of being held personally responsible for a heinous act that might even tenuously be linked to them. Pardons and commutations have become essentially unavailable in many states and in the federal system, whether to release a dying prisoner, to rectify a sentencing error or to remove a barrier to employment. This creates special problems in jurisdictions where parole has been abolished, and where records cannot be expunged no matter how dated the conviction.

This is regrettable. The framers of our Constitution understood the unique and indispensable role of pardon when they entrusted the president with an unreviewable power to override the law. For most of our history, and until fairly recently, pardon played an integral operational part in the justice system. The Supreme Court has repeatedly relied upon the pardon power to save excessive or unjust punishments from constitutional infirmity. If pardoning is among a chief executive's toughest jobs, there is no time in memory when it has been more necessary to a just system. As Justice Anthony Kennedy has said, "A people confident in its laws and institutions should not be ashamed of mercy."

She further opines that:

The Seattle tragedy would be compounded if it were allowed to derail pragmatic proposals to reduce prison terms for nonviolent offenders, to increase the availability of drug and mental health treatment in and out of prison and to facilitate prisoner re-entry. It would be equally unfortunate if fear of forgiving sidelined pardon as a tool of law reform for another generation.

Of course, the vast majority of those who receive pardons don't reoffend, but in the minds of politicians, fear of outcomes like Maurice Clemmons too often outweigh arguments for clemency. Since becoming President, Barack Obama has issued more pardons to Thanksgiving turkeys than to ex-offenders.

As Texas Governor, Rick Perry has not completely sidelined his pardon power, but he has used it quite sparingly and refused to offer clemency to the majority of offenders for whom the Board of Pardons and Parole recommended it during his tenure. When he has given pardons, frequently it has either been for DNA exonerees or for petty, long-ago crimes that make you wonder why many others aren't also eligible.

Too seldom have we seen Governor Perry issue pardons "to release a dying prisoner, to rectify a sentencing error or to remove a barrier to employment," as Love suggests - particularly when one considers the volume of folks convicted in the Texas justice system. I hope she's right that Mike Huckabee's defense of his pardons will mark a turning point that changes perceptions about clemency by chief executives. It's been quite a while - perhaps dating back to Gov. Ma Ferguson's tenure - since pardons in Texas have been the kind of systemic safety valve preventing error and injustice that Love describes in her essay.

H/T: Pardon Power.