The clemency lottery: Paltry holiday pardons trivialize clemency process

Governor Rick Perry issued 14 pardons this week, a paltry total unless one compares him to President Barack Obama's niggardly clemency record. Grits was quoted in a story on the pardons at the Texas Tribune complaining that the Christmastime pardon tradition makes clemency "seem like a once-a-year event, while really it should be an ongoing function" of executive offices.

Certainly Grits doesn't begrudge those who received clemency. The Houston Chronicle has an effective story ("Pardon gives Houston single mom a fresh start," Dec. 21) of a single mother who numbered among those receiving a pardon who's faced significant employment barriers as a result of a dubious criminal conviction, including denial to nursing school. "I just feel a huge sense of relief," she told the paper. "I feel so liberated to be able to live my life."

If Texas (or for that matter, the feds) had a functioning clemency system instead of a symbolic one, such relief would be available on an ongoing basis to the many thousands of reformed people with criminal convictions. Instead, it's reserved for a lucky few who win the annual Christmas clemency lottery.

A couple of years ago, Grits authored a column in the Dallas News titled "Holiday pardons send wrong message" that expanded on these themes, which I've republished below the jump.

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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 561 in fiscal 2010 - about four times as many as our governor has pardoned in his entire gubernatorial tenure.

In Georgia, 38 percent of pardon applications are granted. In Texas, most years it's less than 1 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.