Thanks for nothing, Greg Abbott: Why conservatives should demand 'industrial-scale' clemency

UPDATE/CORRECTION: The Dallas News' Brandi Grissom emailed to say that, "Abbott did issue pardons this week, a whopping four of them, but he didn't put out a press release. Here's my story." Grits apologizes for the error; I'd been checking the governor's site every day all December for pardon news, but clearly I need better sources, like Brandi.

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Original post, corrected:

Clemency Grinch, Pardon Scrooge - pick your seasonal epithet, but Texas Governor Greg Abbott is about to complete his first year as governor without exercising once having barely exercised one of the handful of core functions assigned to his office in the state constitution: Executive Clemency.

Grits has been waiting to see if the governor would issue a handful of symbolic pardons around Christmas, as was his predecessor's wont, but so far, no dice. I'm not a great fan of the Christmastime pardon tradition, but at least it acknowledges the gubernatorial function. So far, Greg Abbott has shirked this responsibility. To his discredit, in Abbott's first year as governor, Barack Obama has granted clemency to more Texans than him, and Obama's clemency record is abysmal.

It's not like the Texas governor really does much: Sign or veto bills, make appointments, and clemency really are the main things on his plate under the state constitution. But one of those three has been all but abandoned.

The American Conservative this week published an article lamenting "small trickles of clemency" by President Obama and New York Governor Andrew Cuomo "where what is demanded is a rushing, roaring pipeline scaled to the globally unprecedented size of our prison population and incarceration rate. We need industrial-scale clemency."

 As the author recognized, "the real action is at the state level, which handles most policing, sentencing, and imprisoning." In this discussion, former Gov. Rick Perry made an appearance among "recent governors [who] have distinguished themselves with their appalling miserliness." Citing a data point which originated with research on Grits, he declared that "Rick Perry appointed a clemency board of tough-on-crime hardcases, then rejected two-thirds of their pardon and commutation endorsements."

Clemency these days mostly comes up in the context of capital murder and innocence cases. But this article suggests that governors embrace "industrial-scale" clemency aimed at reversing mass incarceration.

Reversing course on hyper-incarceration and clemency will be a generational project, and an Augean one at that. Judges and prosecutors are not the most self-effacing career group, and many would sooner eat their Civil Procedure books than admit error. Even with DNA evidence and a verified confession exonerating the five youths convicted of raping and assaulting the “Central Park jogger” in 1989, former prosecutor Linda Fairstein still insists she got the right culprits. But for most people, clemency in cases of judicial and prosecutorial error is a no brainer: the law’s finality should not come at the expense of justice.

The type of clemency we need today, however, is to remedy a problem several orders of magnitude larger, admitting not legal or judicial error but political or legislative disaster. A rushing, roaring clemency pipeline would be an explicit recognition that the various state and federal tough-on-crime policies, virtually all of which passed with broad bipartisan support, were dead wrong.

The article supplies an overview of past acts of mass clemency and the recent re-embrace of the pardon power across partisan lines by a handful of American governors:

U.S. history turns out to be generously littered with acts of mass clemency. In the 1930s, Mississippi Governor Mike Conner went to Parchman Farm, the state penitentiary, and held impromptu “mercy courts” that freed dozens of African-American prisoners, in an act that entered national folklore—as did Texas Governor Pat Neff’s pardon in 1925 of Huddie “Lead Belly” Ledbetter, who issued his clemency request in song. In the 20th century, Governors Lee Cruce of Oklahoma, Winthrop Rockefeller of Arkansas, and Toney Anaya of New Mexico all commuted their states’ death rows down to zero upon leaving office. 

Among presidents, according to political scientist P.S. Ruckman Jr’s excellent blog Pardon Power, Abraham Lincoln granted clemency every single month of his administration as an act of mercy and a canny political strategy. Woodrow Wilson, though a teetotaler himself, pardoned hundreds convicted of booze-related infractions to signal his disapproval of Prohibition. (Many of these examples are drawn from Marie Gottschalk’s new book Caught: The Prison State and the Lockdown of American Politics, the best single-volume overview of the ongoing crisis in American criminal justice.)

Today, even as clashing currents push at the same time for greater mercy and greater harshness, an affinity for the pardon power has trespassed wantonly over the country’s regional, ideological, and partisan divides. Recent governors who have pardoned and commuted with magnanimity include Arkansas Republican Mike Huckabee (1,058 pardons in his 10 years in office), California Democrat Jerry Brown (83 pardons on last Easter Sunday alone) and Michigan Democrat Jennifer Granholm (182 commutations in her two terms). Haley Barbour pardoned 203 prisoners at the end of his second term as the Republican governor of Mississippi, an act that briefly became a national non-scandal eagerly covered by the national media sniffing around for gotchas. (Thank you, o “liberal” media.)

Considering the increasing number of low-risk elderly folk in state prisons, there's even an argument for expanded clemency on fiscal conservative grounds:

Our incarcerated population is also aging rapidly, and though older prisoners have far lower recidivism rates, few states are availing themselves of geriatric release. For instance, Virginia in 2012 granted geriatric release to less than 1 percent of about 800 prisoners eligible, according to the state parole board. Meanwhile, as the Virginian Pilot reported, “during the same period, 84 inmates died in state prisons.” Running high-security nursing homes is neither compassionate nor fiscally sound—another reason to restore and expand clemency.

Bottom line:

What is needed is a restoration of the kind of clemency that was once the everyday norm in this country, expanded to meet the needs of our enormous 21st-century prison population. There will surely be stentorian howling that industrial-scale clemency is the invasive hand of overweening government power. These fault-finders ought to be reminded that our incarceration regime is on a scale rarely seen in human history: our only competitors are third-century BC “legalist” China; the late, off-the-rails Roman Empire; and the Soviet Union from 1930-55. Routinized clemency on a grand scale will be necessary to tame this beast.

Greg Abbott has yet to embrace barely embraced his clemency power even on a symbolic level, much less on an industrial scale. But what's at stake is more than the fates of individuals who benefit from executive mercy, concludes the American Conservative piece, but rather the issue speaks to who we are as a people and the hypocrisy of mass incarceration in the self-styled "land of the free":

According to Shakespeare’s most famous courtroom speech, mercy “blesseth him that gives and him that takes: ‘Tis mightiest in the mightiest: it becomes the throned monarch better than his crown.” With an expansion of the pardon power, we have the opportunity to rule ourselves as monarchs, with all the magnanimity and grace that implies. Or we can remain a nation of vindictive jailers that lectures the rest of the world about freedom.

Since Rick Perry issued his last pardons on December 19, 2013, it's now been it took more than two full years since before any Texan received the benefit of state-level executive clemency, and then the governor's mercy was limited to four, unheralded souls. Grits isn't sanguine Greg Abbott will ever ramp up to "industrial scale" clemency given this tepid start, but that's what's needed.