Grits launches petition to clear Texan writer: Pardonohenry.org

After Barack Obama last November quoted the renowned short story writer O. Henry while pardoning a turkey, even though the writer's own posthumous pardon requests had been denied, Grits just couldn't help myself: Readers may recall I authored a polemic titled, "Eat the turkey, pardon O. Henry!," and shortly thereafter, unbeknownst to all but a few, I purchased the URL domains for pardonohenry.org, com, and net.

Today Grits is pleased to announce the launch of the pardonohenry.org website, the main function of which is to host an online petition asking President Barack Obama to grant a posthumous pardon to the great short story writer. Prof. P.S. Ruckman, who blogs at Pardon Power, is collaborating, taking the lead to prepare the application.

O. Henry, born William S. Porter, may or may not have committed the crime of embezzlement for which he was convicted in Austin in 1897. He claimed innocence throughout, but he also jumped bail and fled to Honduras, returning to face trial and imprisonment in order to care for his dying wife. In the end, his guilt or innocence probably doesn't matter. He produced among the best short stories in American literature, some while incarcerated. Here's the full text of the petition:

To President Obama and the Office of the Pardon Attorney, Department of Justice:

In this 150th year after William S. Porter's birth, I ask that you posthumously pardon him and in so doing honor this great American writer better known by his pen name: O. Henry.

O. Henry's works are among America's great contributions to English language literature, and he is widely credited with reinventing the short story. His writings were probably required reading at some point in your education. The nation's most prestigious short-story award is the PEN/O. Henry Prize. This year the US Postal Service will issue a stamp featuring his image. It's past time for the writer's recognition by the President as well in the form of a posthumous pardon.

Though you quoted O. Henry last year while pardoning a turkey, pardons are not mere jokes or symbols, nor should they be reserved for a turkey or two before Thanksgiving. They are a critical constitutional function that returns fairness and grace to a criminal justice system sorely short of those elements.

O. Henry always claimed innocence, but pardons are not just for the innocent. Alexander Hamilton in Federalist Paper 74 (1788) wrote that, "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." As executive clemency has withered in use, America has seen the criminal justice system's cruel countenance blossom in full -- prisons overflowing with petty offenders, families broken, innocent people released after decades thanks to DNA tests that remain difficult to obtain.

Pardoning William S. Porter would signal that you understand and value the true purpose of executive clemency powers in the justice system -- not just as a symbol but also a remedy for both actual innocence and "unfortunate guilt," one that provides a healing salve even for century-old wounds.

Please sign the petition and promote it via social media, email lists, word of mouth or any other means at your disposal. The URL is easy to remember: Pardonohenry.org. We'll be adding more content as we go along, but for now there's also a blog at the site that includes some original items not seen on Grits, including:

• Why a Pardon O. Henry! campaign? 
• President should pardon O. Henry as postal service profits from him 
• Children attend schools named after unpardoned felon since 1902
• Is it possible O. Henry was actually innocent?
• 'Criminous Nonsense from O. Henry'
• O. Henry on O. Henry: The author's only interview, 1909
  
• 'Work a little history into your travels on the Lone Star literary tour'
• Exhibit: 'O. Henry: A Short Story'
  
• Pardon me, Louisiana: Bobby Jindal's chincy clemency record

Though as the petition says, it doesn't really matter, Grits is now fairly satisfied that William S. Porter was actually a victim of a false conviction lo these 115 years ago. The writer was depressed following the death of his wife and barely participated in his own defense, though he always insisted on his innocence. But the late Texas Third Court of Appeals Justice Trueman O'Quinn, an avid fan and collector of all things O. Henry, also believed Porter innocent and spent years unsuccessfully seeking his posthumous pardon. (After that, it should be mentioned, the now-departed curator at the O. Henry Museum in Austin filed another application during the George W. Bush Administration.) In a chapter O'Quinn authored in a book about the writer, Time to Write, he recorded that the prosecutor in Porter's case, Duval West (who went on to be appointed a federal judge in the Western District of Texas by Woodrow Wilson), years later 'told a reporter that he believed Will Porter was the victim of the banking practices of the day and innocent of intentional misappropriation of funds.'"

Even 100 years ago prosecutors weren't keen on admitting mistakes, so from the perspective of a pardon request that's a big deal. Both Trueman O'Quinn and Duval West, two of the preeminent Texas barristers of their respective generations, more closely examined the evidence than Grits ever will and both concluded Porter was likely innocent. Combine that with fatal flaws in the indictment, which claimed the alleged offenses occurred months after he'd left the bank and moved to Houston to write a column for the Post, and to me, absolutely Will Porter deserves pardon based on innocence, if not also for his contribution to American letters during and after his incarceration.

Innocent or not, "Why do this?," I'm inevitably asked. This project serves numerous goals for Grits. First and foremost, it amuses me, which some days is all it takes. Second, it highlights a bipartisan consensus among politicos and the media that has diminished clemency in recent decades, a trend which, in this age of mass incarceration, to me is the opposite of what's needed. And third, it honors and celebrates a legendary Texan writer and publisher whose Austin weekly, The Rolling Stone (no, not that one, Porter beat 'em to it), was the direct heir to William Brann's Iconoclast, a Texas journalism legend and the state's first, no-holds barred muckraking publication (Porter launched his magazine by buying out Brann at a low point for $250). At its zenith, Porter's Rolling Stone supposedly had 1,000 subscribers at a time when Austin had 11,000 residents, even if it always seemed to teeter on the brink of bankruptcy.

But there's one other, more fundamental reason for launching this project at this particular point in time: Grits should announce that just this week papers were filed to create the "Grits for Breakfast Action Fund," a Texas nonprofit for which we intend to seek 501c(4) status. (That means soon, but not quite yet, Paypal donations won't deduct sales tax: Will notify folks when; many have asked.) My hope is that this entity will become a vehicle to influence policy and legislation here in Texas, and aim to build up web organizing infrastructure headed into the session toward that end. The Pardon O. Henry! campaign provides an opportunity to get some of these e-activism tools set up and take them out for a test run on a project with bit more of a leisurely pace than anything that occurs at the Texas Legislature.

To summarize, this project was designed to be fun, to address a serious subject in (one hopes) a creative way, and to pay homage to my own roots as a Texan writer. But it also aims to lay the groundwork for future web activism promoting a wider array of criminal justice reforms. So go sign the petition, poke around the site, tell your friends, and help promote a national discussion on the decline of clemency and the resulting redaction of mercy from the American criminal justice system. And for heaven's sake smile while you're doing it, as though you've just savored one those classic, O. Henry twist endings.

MORE: See a press release announcing the petition drive.

Obama the Merciless: Is DOJ to blame?

The Washington Post has a compelling story about a man's quest for a federal sentence commutation from the Bush and Obama Administrations and the biased interpretations, flawed through omission and understatement, given the President by the Office of the Pardon Attorney at the US Department of Justice. It's a substantial story so those interested should read the whole thing, or here's a brief summary from P.S. Ruckman at Pardon Power.

Grits' immediate interest lies in reported criticisms of the internal workings of the Pardon Attorneys office, including calls to outright abolish it. In the case of Clarence Aaron highlighted in the story:

That Aaron joined the long line of rejected applicants illuminates the extraordinary, secretive powers wielded by the Office of the Pardon Attorney, the branch of the Justice Department that reviews commutation requests.

Records show that Ronald Rodgers, the current pardon attorney, left out critical information in recommending that the White House deny Aaron’s application. In a confidential note to a White House lawyer, Rodgers failed to accurately convey the views of the prosecutor and judge and did not disclose that they had advocated for Aaron’s immediate commutation.

But it's not must one individual thwarting more active clemency recommendations, some argue, but an institutional, prosecutorial anti-clemency bias from prosecutors at the Justice Department:

Last week, the American Constitution Society sponsored a panel discussion on Capitol Hill devoted to the pardon issue. President Obama’s former White House counsel Gregory B. Craig said the president could issue an executive order eliminating the pardon office.

“We cannot improve or strengthen the exercise of this power without taking it out of the Department of Justice,” Craig said.

He advocated for a bipartisan review panel that would report directly to the president.

The number of pardons awarded has declined sharply in the past 30 years, as have commutations. Obama has rejected nearly 3,800 commutation requests from prisoners. He has approved one. Bush commuted the sentences of 11 people, turning down nearly 7,500 applicants.

A former pardon office lawyer said some applicants have been turned down “en masse” with little, if any, review, a claim the Justice Department disputes.

Here's an interesting tidbit: "Under Ronald Reagan and Bill Clinton, both two-term presidents, one applicant in 100 was successful. Under Bush, approvals fell to barely better than one in 1,000." Obama's record is even poorer.

Under Barack Obama's US Pardon Attorney Ronald Rodgers, paralegals began vetting cases instead of attorneys, and large batches of cases would allegedly be denied en masse with little review (though of course Rodgers insists the review was adequate):

Under Rodgers’s predecessors, staff lawyers reviewed each case, gathered pre-sentence and Bureau of Prisons progress reports and wrote recommendations based on their research.

“Some reports were shorter, just a paragraph or two,” said Margaret Love, who served as a pardon attorney from 1990 to 1997. “But there was always enough of a report that you could get an idea of what the basic facts and issues were.”

For the first 2¹/₂ years under Rodgers, however, most petitions were handled by paralegals, not staff attorneys, and recommended for denial in batches, said Samuel Morison, a lawyer who spent more than a decade in the pardons office before leaving in 2010 to work for the Defense Department. He said Rodgers instituted the change when there was a significant backlog.

“The office types up a list of names, along with basic sentencing and offense information for each prisoner, and sends the list to the White House with a note that says the attached cases are meritless and should be denied,” Morison said.

The story of Clarence Aaron, who at 24 was "sentenced to three life terms for his role in a cocaine deal, even though it was his first criminal offense and he was not the buyer, seller or supplier of the drugs," is certainly troubling, but it mostly just affects him, his family and loved ones (and of course taxpayers footing the bill for his incarceration). Even more concerning are reported changes in institutional practices by President Obama's pardon attorney giving at best minimal consideration to the thousands of clemency requests they receive, ensuring there will be many more Clarence Aarons, most of whose cases won't be nearly so well publicized..

Mitt Romney's pardon record is even worse - he never once issued clemency to anybody when he was Governor of Massachusetts - so I don't expect this to become a campaign issue. It just doesn't cut along partisan lines. There's a firm bipartisan consensus that the constitutional clemency power has become an anachronism barely worth considering.

Grits finds that ironic. The history of the US presidency throughout the past century involved the accumulation of ever-greater power within the executive branch, much of it through regulatory infrastructure justified by constitutional theories that would leave the Framers' jaws agape. By contrast, clemency authority is an actual, named constitutional power of the presidency, not one assumed after the fact nor assigned by Congress or the judiciary. But this critical presidential power has faded to virtual irrelevance, even though Alexander Hamilton believed (see Federalist 74) "easy access" to clemency was essential to keep the justice system from becoming too "sanguinary and cruel."

Why is this the one area where presidents, especially this president, seem reluctant to exercise their constitutional authority at all, much less seek its expansion as in every other realm of their office? Is DOJ to blame?

MORE: P.S. Ruckman has posted the relevant documents in Clarence Aaron's case.

See prior, related Grits posts:

• Obama may have stingiest pardon record of any American president
• Obama the Merciless
• Eat the turkey, pardon O. Henry! President quotes Texan writer but won't pardon him
• Institutional prosecutorial bias limits federal pardon recommendations from DOJ
• Perry should expand clemency, trump Obama in Christmastime ritual

Obama may have stingiest pardon record of any American president

Recently Grits dubbed the President "Obama the Merciless" for his remarkably parsimonious pardon policy, and now a story in U.S. News and World Report MSNBC takes on the same theme. It opens:

President Barack Obama is on track to be one of the least forgiving of presidents in U.S. history — as measured by his use of presidential pardon powers, according to a political science professor who blogs about clemency exercised by presidents and governors.

"It is fair to say two things," said P.S. Ruckman Jr., who teaches at Rock Valley College in Rockville, Ill. "One is (Obama) is definitely being exceptionally stingy. There’s no doubt about that. There’s also no doubt that this is in a way unexpected."

As president, Obama has pardoned 23 people, including one commuted sentence, in his first 40 months in office. Barring a dramatic flurry of clemency from the White House in the coming eight months, Obama will be among the bottom two or three presidents for granting pardons in his first term, Ruckman said. That puts him in the running with Presidents George Washington, John Adams and James Garfield, who was assassinated after serving less than seven months.

The story mostly relies on the work of our blog-pal Prof. P.S. Ruckman, who writes at Pardon Power, and whose excellent primary-source work Grits has frequently cited. When Washington and Adams were presidents, of course, there were barely any federal convictions they might conceivably pardon! (It took some years for Congress and the states to enact anything remotely resembling functional penal codes, and most prosecutions at the time were brought as private, essentially civil causes of action.) James Garfield, assassinated seven months in, had a good excuse for his low total.

Otherwise, that leaves Barack Obama with functionally the chintziest pardon record among American presidents, at a time when the raft of criminal convictions during the tuff-on-crime era has spawned more pardon requests than ever. Here's a graphic produced by Prof. Ruckman depicting the proportion of pardons given to those requested since WWII by president:

Even George W. Bush appears compassionate by comparison to Obama. "Among recent presidents, George W. Bush had granted 37 pardons and commutations at about this point in his first term. By the end of the year, he had added another 32." Here's Ruckman's depiction of American presidents' historic pardon records before Obama took office:

I don't understand this: Why does the Office of the Pardon Attorney in the Justice Department exist if they consider essentially no one worthy of clemency? How has the President become so dis-empowered on the question that he can't or won't make independent judgments? Perhaps it's true that the role of advising the President on pardon applications should be removed from the Justice Department and handled instead by some appointed adviser or board who understands their job is to recommend pardons. For reasons Grits can scarcely understand, DOJ's Office of the Pardon Attorney seems to think their job is to find excuses to avoid performing the function for which their division was created, and this president more than any other has acquiesced in the trend. As a constitutional scholar in his own right, Barack Obama of all people should know better.

See prior, related Grits posts:

• Obama the Merciless
• Eat the turkey, pardon O. Henry! President quotes Texan writer but won't pardon him
• Institutional prosecutorial bias limits federal pardon recommendations from DOJ
• Perry should expand clemency, trump Obama in Christmastime ritual

Obama the Merciless

For reasons Grits couldn't begin to explain, President Barack Obama has among the stingiest records among presidents when it comes to pardons, commutations and clemency decisions in general - so bad Grits has suggested it compares unfavorably to Texas Gov. Rick Perry, who at least hasn't let his executive power on that score completely atrophy.

Late last year P.S. Ruckman tallied up Barack Obama's sorry total, and recently he calculated that President Obama ranks near or at the bottom both in both the number of months in his term during which he granted clemency (3) and the longest number of months without issuing clemency at all (24). So far, Obama has issued 22 mostly meaningless pardons, typically given to older folks (average age 61) for petty, long ago crimes, plus one sentence commutation since taking office. He's on track to grant fewer pardons and/or sentence  commutations (by far) than any president at least since World War II, all but completely ignoring this already withered and decrepit constitutional function. Meanwhile, here's the impressively long list (pdf) of requests for commutations of sentences President Obama has denied since taking office.

Grits doubts this will become a partisan campaign issue, but when it comes to exercising the clemency power, one could justly refer to the President as "Obama the Merciless."

Institutional prosecutorial bias limits federal pardon recommendations from DOJ

Having been focused lately on questions of clemency, I was pleased yesterday to receive an email from Samuel Morison, who was a staff attorney for ten years at the federal Office of the Pardon Attorney and recently resigned, publicly articulating his displeasure with the process. For Morison, the problem at the federal level is institutional. In a November 6 editorial in the LA Times titled "A No-Pardon Justice Department," he argued that it's problematic for the Justice Department to control the office because of competing institutional priorities:

the problem in the vast majority of garden-variety clemency cases — those involving ordinary applicants for whom a grant of clemency would not cause any public controversy — is precisely that recent presidents have given far too much deference to the pardon attorney's office. Having spent more than 10 years as a staff attorney in that office, I can say with some authority that the prevailing view within the Justice Department is that the pardon attorney's sole institutional function is to defend the department's prosecutorial prerogatives. There is little, if any, pretense of neutrality, much less liberality. On this parochial view, the institution of a genuinely humane clemency policy would be considered an insult to the good work of line prosecutors.

As a result, there is a strong presumption within the pardon office that the number of favorable recommendations should be kept to an absolute minimum, regardless of the equitable merits of any individual petition. This stance ignores the reality of a burgeoning federal prison population of more than 200,000 inmates, many serving lengthy sentences for nonviolent drug offenses, and the proliferation of collateral disabilities that hinder ex-offenders' ability to restart their lives, which the attorney general himself has criticized as a "recipe for high recidivism."

Until his nine pardons earlier this month - the longest it's taken any Democratic president in history to issue their first acts of clemency - Barack Obama had pardoned more Thanksgiving turkeys than US citizens, so I can understand Mr. Morison's frustration.

Reading about these institutional dynamics made me consider the position of the Texas Board of Pardons and Paroles as a de facto, semi-autonomous appendage of the Department of Criminal Justice. Indeed, for years the board chair's husband ran TDCJ's institutional division which operates the state's 112 prisons (before he was tapped to be "conservator" at the Texas Youth Commission then retired - I wonder what Ed Owens is doing these days?). So I wouldn't be surprised if there were conflicting institutional interests at work behind the scenes at the BPP, though perhaps not quite as blatantly as it sounds like is happening at the US Pardon Attorney's Office. That said, Governor Perry refuses clemency in about 70% of the cases they recommended to him, so there's little reason to think the problem lies solely with Rissie Owens and the parole board. If they recommended more pardons he'd likely just deny more.

By contrast, at the federal level, according to Morison, "the bureaucratic managers of the Justice Department's clemency program continue to churn out a steady stream of almost uniformly negative advice, in a politically calculated attempt to restrain (rather than inform) the president's exercise of discretion." I can certainly see where putting an agency dominated by federal prosecutors in charge of clemency could be problematic. Morison suggests that for federal clemency to fulfill its intended constitutional function, the president must "defer less to the jaundiced advice he receives from the Justice Department and rely more on his own moral judgment."

Today Mr. Morison works as appellate counsel for the defense in military tribunal proceedings for prisoners at Gitmo. (Given that those seem to be little more than kangaroo courts, it's ironic he would leave a job over its frustrating futility then take that unhappy, thankless task). He also has an academic paper that may interest some Grits readers on Presidential Pardons and Immigration Law.