Friday, December 20, 2013

Christmas clemency trivializes pardon process

Regular readers know Grits is no fan of the modern practice of Christmas-time clemency, which I think trivializes presidential and gubernatorial pardon powers by treating them as some sort of "gift" as opposed to an ongoing duty of the executive branch. Unfortunately, disgracefully, that's how clemency is treated in 21st century America nearly across the board.

This year, Texas Gov. Rick Perry issued a dozen pardons, mostly for trivial offenses committed long ago. Only one pardon from this most recent batch was for an offense committed while he was in office. Go here for a tally of Perry's pardons prior this latest round.

President Barack Obama's 21 clemency grants this year were slightly more interesting, including eight commutations of drug sentences including two Texans whose life sentences were commuted to 20 and 21 years, respectively. These were sentences for which penalties were recently lowered by Congress to reduce the crack/cocaine disparity. That's all well and good, a fine symbolic exercise, and welcome news for the eight individuals involved. But there are thousands of people in federal prisons sentenced under the same guidelines. Grits still believes the president should use his pardon power to reduce those sentences across the board as a class rather than pick out a few, lucky individuals for symbolism's sake. (See more on Obama's latest clemency grants here, here and here.)

MORE: Doug Berman at Sentencing Law & Policy expressed similar mixed feelings about the important precedential value but limited scope of Obama's commutations:
though I do not want to turn a praiseworthy act by Prez Obama into an excuse for more criticism, there is a cynical voice in my head that is not only eager to fault the limited reach of this new round of clemency, but also its timing. Perhaps intentionally, these grants could (and perhaps should) be marginalized as just a holiday tradition, not as a bold statement of executive priorities. Even more worrisomely, as there is on-going talk of statutory sentencing reforms in Congress, these grants might provide some basis for opponents of broader reforms to contend that truly troublesome cases can and should be just handled and remedied by the executive branch.

Better summing up my cynicism is a response to this news from Professor Mark Osler: "Good news... But just one lifeboat off the titanic. With no structural change, the ship is still sinking."
RETROSPECTIVE: A few years ago, I authored a column in the Dallas Morning News titled "Holiday pardons send wrong message" that criticized the modern-day Christmas clemency practice. With the exception of Obama's eight commutations, you could swap out the trivial cases chosen for clemency this year, or virtually any year, with the ones described in that article without missing a beat. Find that 2010 column republished below the jump.
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.


Alex Bunin said...

One of the commuted, Clarence Aaron of Mobile was featured in the PBS Frontline documentary “Snitch” which was filmed partially in my Southern Alabama federal defender office. Although we represented another featured defendant (who was commuted by Clinton on his last day in office), Mr. Aaron’s case was particularly affecting. He was an African-American college athlete who drove a package of cocaine on I-10 to make some money. With no criminal history, he was sentenced to two mandatory concurrent life sentences. Since jurors have no part in federal sentencing they were not told his punishment. The show’s producer Ofra Bikel found and interviewed one of the jurors. When asked what he thought the proper sentence should have been, the juror said, “Oh maybe five years.” When told about the two life sentences, after a pause, the old white man’s voice started to crack and he said, “I wish you had not told me that.”

Gritsforbreakfast said...

Glad to hear that, Alex, great news!

Those eight commutations are the most significant acts of federal clemency in years, I just don't understand why it's ONLY those eight and not everybody else similarly situated. OTOH, I guess not everybody else was featured in a PBS documentary.

Alex Bunin said...

Sort of good news, since he spent almost 20 years in prison. I can also think of at least as many additional and nearly identical cases where such ridiculous sentences were issued.

Gritsforbreakfast said...

Better news than leaving him there! The bigger issue, though, indeed, is all the others. I don't see why Obama does it for a symbolic handful but not the rest.

Anonymous said...

An example of this is a client of mine was just sentenced to 47 years for possession of 5 grams of crack cocaine. Her children are in foster care, she will be 67 when her sentence is done. Really?

Gadfly said...

Free Leonard Peltier!

Thomas R. Griffith said...

While a hardy 'Congrats' is in order for those 'Picked' to participate in this year's Federal Reindeer Games, consider this - Instead of simply asking Why? Or, allowing this to morph into a racial issue maybe we can agree that it’s just another form of the Cherry Picking for Justice 'Lotto' with a side of politicians being politicians around Christmas time. We've been condoning this shit for decades folks.

Despicable and yet exactly what we deserve for condoning a rigged Federal & State judicial system. *If you oppose a rigged system, speak up a lil louder.

As a possible solution, it would be worth looking into replacing the Pardon process with an Apology for actual Innocence Applicants with full / timely ‘Compensation’ Packages from the State shown to have wronged the individual and a Commutation reserved for those Guilty but shown to have been utilized in a tuff-on-crime political campaign where the crime fails to match the punishment (political prisoners).

I know, Too easy? Thanks anyway.