How the Grinch stole clemency: Christmastime pardons trivialize process

Our pal P.S. Ruckman over at Pardon Power pointed me to his terrific piece on George H.W. Bush's pardon of Houston-born basketball great Charles "Tex" Harrison, the first black player named an "All-American" and a long-time star and coach of the Harlem Globetrotters who'd been convicted of marijuana possession in 1965. I didn't know that history and I bet some of y'all didn't, either, so those interested should give it a read.

And speaking of pardons, it's December which means it's pardon season. Ruckman is fond of noting that half of all pardons are issued in December, and I'd expect Governor Rick Perry's usual Christmas pardons to come out like clockwork any old time now.

Numerous other blogs and MSM outlets have been rightly lamenting President Obama's Grinch-like clemency for 9 penny ante defendants, in an act with little more practical significance than the pardoning of Thanksgiving turkeys. It took Obama longer than any other Democratic president - 682 days into his presidency - to issue his first pardons. Pathetic. Ruckman emphasizes that the nine tepid cases that made it represented a tiny fraction of the candidates: " To date, Obama has received 3,389 new petitions for federal executive clemency. At the beginning of fiscal year 2010, there were 4,716 petitions pending. He has denied 1,288 petitions and an additional 842 have been 'closed without presidential action.'"

To his credit, Ruckman had predicted this outcome, writing in early November that

dumping a handful of pardons at Christmas is a very sorry way to demonstrate that you (or the DOJ) has anything like a serious clemency program. Instead, it clearly sends the signal that the justice that can only be wrought by acts of mercy is a mere afterthought, inappropriate for the other 11 months of the year, when you see yourself as taking care of "important" stuff.

In addition, 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 DOJ and OPA are so shy about pardons. The very timing of them implies their work re the assessment of pardon applications is a joke.

Of course, if the media were to inquire about the "typical" pardon half as much as they do the "controversial" ones, they would learn (and educate the American public to) the fact that the typical act of clemency does not spring anyone from prison or overturn the judgment of judges and juries at all! In fact, the typical act of clemency simply restores the civil rights of individuals who have served their time, waited a prescribed period before applying for clemency and have become productive members of society. Which is to say, their pardon was not really much of anything like a "gift." They earned it. Believe it, dear reader, when a person gets a pardon out of the DOJ in the last 4 decades - it is earned!

So, while some may be encouraged by the morsels of mercy that President Obama distributes while Santa Claus is in the neighborhood, let us be the first to complain. Shame on you, Mr. President. To date, your clemency "policy" deserves nothing but scorn, slight regard and contempt.

Strong language, but he's got a strong point. Clemency is an important power of the executive branch but it's not one that's exercised on an ongoing basis. Instead, as Ruckman says, pardons are handed out like symbolic Christmas gifts or else end-of-term political favors.

The same criticism about trivializing pardons by issuing them mostly at Christmastime applies, for the most part, to Governor Perry's clemency record, though his is certainly better than Barack Obama's. This morning I took a chart published earlier on Grits that was compiled from annual reports from Texas' Board of Pardons and Paroles, updating and extending it back to 2001 to get a fuller picture of Governor Perry's overall clemency record (including pardons, commutations, etc.) since he ascended from Lt. Governor after Gov. Bush was elected President. Take a look:



Clearly 2003 was the high-water mark for Perry pardons, with 73 clemency requests granted out of 90 recommended by the Board of Pardons and Paroles, including pardons for 35 people convicted in the notorious "Tulia drug stings" and others from the Dallas fake drug scandal. Otherwise, though, commutations have been rare and pardons have mostly come either around Christmastime in relatively trivial cases, as Ruckman describes, or in the wake of high-profile DNA exonerations.

In debates over "innocence" issues, one frequently hears executive clemency tossed around as a (theoretical) remedy available to actually innocent people who are convicted, but without exoneration by the courts that's an incredibly rare occurrence. For the clemency process to actually fulfill that role in the justice system, Ruckman's right that it must be exercised on an ongoing basis throughout the year and not just used as a symbolic Christmas photo op. And that's not a criticism that's exclusive to Barack Obama.