Clemency on Trial

Most governors grant clemency for the wrong reasons. Here's what coverage of the Huckabee/Clemons case is missing.

Former presidential candidate, former Arkansas governor, and current Fox News host Mike Huckabee is taking heat for his 2000 commutation of the prison sentence of Maurice Clemmons, the man now believed to have murdered four police officers in a Washington state coffeehouse. Police shot and killed Clemmons after a two-day manhunt. The coverage of and reaction to Huckabee's decision raise interesting questions about how pardon and clemency powers are—and ought to be—used.

Huckabee has been criticized before for his use of pardon and clemency powers, from conservatives who say he was too easy on violent offenders to liberals who say the Baptist minister favored convicts who found Jesus in jail. Already, some are arguing that the Clemmons case will make governors much less likely to use their clemency power. That's too bad. These powers are already increasingly under-utilized. Worse, when they are used, it's often for the wrong reasons. A governor's power to grant relief to convicts ought to be used as a check against injustice. It's far more commonly used as a reward for redemption. 

Huckabee insists his clemency for Clemmons was the former, not the latter. For crimes committed when he was 17 or younger, Clemmons was sentenced to 103 years in prison for a series of theft, robbery, and burglary charges, as well as a handgun charge. According to Clemmons' clemency petition (PDF), his crimes covered a period of seven months, and included two thefts, an aggravated robbery, and a burglary. None involved pointing weapons at or inflicting bodily harm to another person. His first sentence was 30 years for the aggravated robbery, an incident that's described in his application as he and some other youths confronting a woman and taking her purse.

Huckabee commuted Clemmons' sentence after 11 years. The commutation itself didn’t free Clemmons, but made him eligible for parole. The parole board subsequently freed him. The judge who sentenced Clemmons had no objection, though Clemmons' prosecutor, Pulaski County District Attorney Larry Jegley, says he opposed the release. At the conservative website Human Events, Huckabee wrote that Clemmons' was "a case that involved a 16 year old sentenced to a term that was exponentially longer than similar cases and certainly longer than had he been white, upper middle class, and represented by effective counsel who would have clearly objected to the sentencing." 

So Huckabee says the clemency wasn't a judgment of Clemmons' character; it was a judgment on his sentence. In the weeks before he murdered the four police officers, relatives say Clemmons grew increasingly unstable, having recently claimed that Barack Obama would soon visit him and proclaim him the Messiah. Huckabee's defenders say he shouldn't be held accountable for Clemmons' mental breakdown 10 years after his release. His detractors say Clemmons' record should have served as a warning that he wasn't fit to be out of prison.

But if the 103-year sentence Clemmons was given was excessive, it was excessive regardless of what may have happened after his release. We generally don't punish people for what they might do, we punish them for what they have done. If Huckabee is truthful in asserting he commuted the sentence because he felt it was unjust, then the discussion should focus on whether he was correct in that assessment, not on the tragedy in Lakewood, Washington last week. On the other hand, if Huckabee commuted Clemmons' sentence because he was convinced Clemmons was a reformed man, then Huckabee clearly showed poor judgment, and deserves every bit of the criticism he's getting.

The distinction is important. The pardon and clemency power's most important function is a last refuge for those who have fallen through the cracks in the criminal justice system. Where there's good reason to believe an innocent person was convicted, a law was applied inappropriately, or a sentence was determined contrary to the interest of justice, executive clemency can be the only redress.

Here's a good example: In 2007 Florida Gov. Charlie Crist pardoned Richard Paey, a paraplegic and multiple sclerosis patient convicted of distributing prescription painkillers. Prosecutors acknowledged Paey was in chronic pain, couldn't legally obtain the medication he needed at the dose he'd been taking, and that they had no evidence he was giving the medication to anyone else. But all that mattered to them was that Paey was illegally in possession of a quantity of painkillers that automatically labeled him a distributor. Paey was convicted, and given what amounted to a life sentence. Crist's pardon served justice, even if Paey was technically guilty as charged.

In arguing for the federal pardon power in Federalist 74, Alexander Hamilton put it this way:

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 the sense of responsibility is always strongest, in proportion as it is undivided, it may be inferred that a single man would be most ready to attend to the force of those motives which might plead for a mitigation of the rigor of the law, and least apt to yield to considerations which were calculated to shelter a fit object of its vengeance.

"It's useful to think of the pardon as another check in our system of checks and balances," says P.S. Ruckman, who runs the Pardon Power blog and is the author of the forthcoming book Pardon Me, Mr. President: Adventures in Crime, Politics and Mercy. "That check could take the form of freeing someone who is innocent. But it could also take the form of a policy disagreement." Ruckman points to President Woodrow Wilson, who pardoned dozens of violators of the Volstead Act because of his objections to alcohol prohibition. A modern president might consider similar policy-based pardons for people like Charlie Lynch or Ed Rosenthal, both convicted on federal drug charges despite being in compliance with state laws allowing for the production and sale of medical marijuana.

Unfortunately, the far more common use of the pardon and clemency power is to confer forgiveness and mercy on those who have confessed to their crimes, done time, and convinced a governor or president they have rehabilitated (there's also the more corrupt use of the power: as a favor to fallen political cronies). "Typically, a pardon comes after the person has served their time," Ruckman says. "But it doesn't have to be that way."

Used this way, the power is no longer a check on injustice or misapplication of law so much as an almost godlike proclamation that a wayward soul has been redeemed. Tellingly, Ruckman says about half of all presidential pardons over the last 30 years have been issued in December, usually around Christmas. "There is definitely a tendency to view pardons as gifts handed down by monarchs," Ruckman says.

Mississippi Gov. Haley Barbour, a possible rival to Huckabee for the 2012 GOP presidential nomination, is a good example. During Barbour's time as governor, three Mississippians convicted of murder have been exonerated and freed from prison. Disgraced forensic specialists Steven Hayne and Michael West contributed to two of those convictions, and almost certainly have helped convict other innocent people (there are at least three people currently on death row due to testimony from Hayne and/or West whose convictions have been called into question by other experts). Barbour has said nothing about any of this. Barbour has also ignored the case of Cory Maye, the man convicted of murdering a cop during a botched drug raid on his home in 2001 whom many (including the author of this piece) believe is innocent. Barbour even refused to grant a posthumous pardon to Clyde Kennard, a man framed on a bogus theft charge in the 1960s to keep him from integrating the University of Southern Mississippi.

But in the last two years Barbour has pardoned, granted clemency, or suspended the sentence of at least five convicted killers, four of whom killed their wives or girlfriends. In none of these decisions did Barbour cite any concerns about the fairness of the convicted's trial. Rather, all were products of a trusty rehabilitation program, eventually earning a spot working in the governor's mansion. Barbour is using his power to undo just verdicts, not to remedy an injustice. When used this way, it isn't difficult to see how clemency and pardons quickly lose favor with the public.

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  • ||

    Hucka-T a.k.a Cop-killer granted clemency because Clemmons gave the parole board a bullshit story on how he'd found Jeebus in jail and how Christ had penetrated his soul (or something like that...) and he was born again, etc.

    Hucka-T is nothing but an Arkansas Ayatollah who thinks that a hard-on for Christ and hatred of gays will make him President.

    A pox on his retarded trailer-park house.

  • Lord Jubjub||

    So if Balko had written an article about how Clemmons was railroaded and sentenced to an overlong stay in jail, would you have been happy about how Huckabee had let justice be done?

  • ||

    Yes.

  • kinnath||

    Ditto

  • Saxon||

    I am no fan of Hucka, but how the heck can you justify this guy's 100+ yr jail term for robberies?

    Or, is it too much to "think"?

  • MNG||

    "Ruckman points to President Woodrow Wilson, who pardoned dozens of violators of the Volstead Act because of his objections to alcohol prohibition."

    Bring the Woodrow hate!

  • Old Mexican||

    Why? Do you think he was cuddly?

  • ||

    I know it is so terrible. Racist segregators just can't get a fair shake. I mean really MNG, what is so wrong with making the colored people stick to their own kind?

    Good to know where you stand on things there MNG.

  • Old Mexican||

    Good to know where you stand on things there MNG.

    John, so we know that Tony believes CO2 is a "pollutant", Chad believes 33% of the income of each of us belongs to "society"... And MNG thinks Wilson was cool. There's just one more that needs to open up on his true feelings . . .

  • MNG||

    I think Wilson was "cool?" Wilson was many things, but cool was never one of those things.

  • Barrack Obama||

    What? Don't you think it was cool to pardon a bunch of guys that violated the Volstead act?

  • Enyap||

    Anonymity bot called Wilson a major cool dude, is MNG anonymity bot?

    http://reason.com/blog/2009/11.....ons-legacy

  • MNG||

    I thought Wilson was the libertarian Anti-Christ so I was just having trouble with how he used the pardon power to oppose alcohol prohibition.

    Maybe the world (especially the historical world) is not black hats and white hats?

  • ||

    I'll be sure to remember that the next time a progressive invalidates everything Thomas Jefferson ever wrote because he was a slaveholder.

  • ||

    sweet

  • ||

    In Huckabee's defense, I read an article he wrote explaining why he granted clemency (it was not a pardon), and if he wasn't lying, you can't blame him for this. Clemmons had been in jail since 16 on not-that-serious charges and had gotten a crazy long sentence. Everyone, from the judge to the recommendations board, supported clemency.

    Huckabee's a populist douchebag, but you can't hang this one on him. Though I think this incident just killed any real chances of him being President.

  • MNG||

    Well said imo

  • ||

    Good. He shouldn't be allowed anywhere near the White House.
    He's into theocracy and believes the Bible supersedes the Constitution, which makes him so unfit to be President that it's not even fucking funny.

  • ||

    Huckabee's a populist douchebag, but you can't hang this one on him.

    Great point! That's in contrast to Mike Dukakis, who was just a d-bag and we could blame for his stupid furlough (sic) program.

  • Old Mexican||

    But in the last two years [Mississipi Gov. Haley] Barbour has pardoned, granted clemency, or suspended the sentence of at least five convicted killers, four of whom killed their wives or girlfriends.

    Maybe it was a coincidence that he happened to pardon four individuals that had it up to here with their wives or girlfriends...

    Or maybe he wanted to "save" cop jobs by releasing them - kinda like Daffy Duck whe he released the cat to get the mouse and the dog to get the cat and the bear to get the dog and the elephant to get the bear and then the mouse to get the elephant OUT of Porky's hotel room...

  • bubba||

    Isn't the central discussion of a parole board whether or not the convict is likely to repeat his offense?

    Why should a clemency hearing be any different? If 16 year old felon were ranting in prison about how he wanted to kill cops, no one would care that his sentence was overly long.

  • Fiscal Meth||

    Parole and pardon are two different animals. Kinda the theme of the article

  • Fiscal Meth||

    Clemency should be different because a sentence (and more importantly whether or not some one is convicted in the first place) is often affected by current hot-button issues of justice. Clemency should serve as a check against the passions of the time of the sentence. Parole is the one that deals with the convict's character.

  • Alan Vanneman||

    My grandmother knew a warden who said that murderers always made the best trustys, particularly wife/girlfriend murderers. They were people who had one person they wanted to murder. When they actually did it, they were happy and no longer had a grudge against the world. Unfortunately, murderers don't deserve to be happy.

  • Pond Ideas||

    I read an article on this topic once that was really interesting. I totally agree that murderers do not deserve to be happy.

  • Mad Max||

    'the next time a progressive invalidates everything Thomas Jefferson ever wrote because he was a slaveholder.'

    Let's be fair - if Jefferson had merely been a (guilt-ridden) slaveholder, that might have been bad enough. But he also espoused libertarian sentiments ('that government is best that governs least') and he was a fundamentalist who actually thought that there was a so-called 'God' who took an interest in human affairs. And not a touchy-feely, I'm-OK-you're OK God:

    ‘And can the liberties of a nation be thought secure when we have removed their only firm basis, a conviction in the minds of the people that these liberties are of the gift of God? That they are not to be violated but with his wrath? Indeed I tremble for my country when reflect that God is just: that his justice cannot sleep for ever . . .’

    I mean, with that kind of attitude, he was obviously a right-wing fundamentalist who wanted to tear down the wall of separation of Church and State.

  • Kroneborge||

    There is no such thing as a wall of seperation betwen Church and state.

    The 1st amendment prohibits the government from establishing a church, IE, a church of England.

    learn your history.

  • Mad Max||

    Gosh, you really put me in my place with that insightful comment! ؟

  • Jersey Patriot||

    The First Amendment actually says that "Congress shall make no law...respecting an establishment of religion..." It's not only that Congress couldn't create a state church, it also couldn't treat one religion differently than another. People miss that because we no longer use "respect" to mean "discriminate".

  • ||

    I think you are selling it a little short. It wasn't just to prevent a national church, but to prevent the behavior that allowed the creation of a national church. It's about freedom of religion. Freedom requires keeping the government far far away.

  • Fiscal Meth||

    MadMax, Jefferson himself was the one promoting a wall of separation between church and state, in fact those are his words.

  • ||

    The funny thing about Jefferson is that he wasn't really a christian. He thought Jesus was a great man and philosopher, but not the son of God anymore than we are all sons of God. He didn't believe in the immaculate conception, the resurrection or any of the mysticism. He had bad words for the churches because he thought they were making a bigger deal about the mysticism than the philosophy and teachings of Jesus.

  • ||

    You could even see that Thomas Jefferson's predictions are coming true: we, as a society, are having a difficult time remembering our God-given liberties, and thus we have excessive tax rates and arbitrary regulations resulting in heavy fines.

    If we don't restore our freedoms, God will punish us with the greatest punishment he metes out to mortals: a complete destruction of society, enforced by Authorities who are only doing it for our good!

  • ||

    I could take Huckabee seriously as a defender of the ineffectively counseled had he pardoned the West Memphis Three.

  • ||

    Holy shit, Batman. Wilson was right about something.

  • ||

    this guy did enough in Washington (where i live) that he should have been in jail here. For craps sake, 7 relatives and friends are going to jail for helping this ass hat, even when he showed up bleeding with a GSW.

    Not to many people, even in liberal seattle are too sad at this.

    Especially since the death penalty probably would not be given out since Gary Ridgeway did not get it (he is the green river killer)

  • ||

    The governor should still commute the sentence and the parole board should deny parole.

  • ||

    I can't go too hard on Huckabee. Some teenage felons turn out to be incorrigible, but enough of them are just going through a phase to justify giving promising ones a chance.

    Teenage friend of mine fell in with bad companions--a burglary ring. When he was caught, his dad refused to go his bail till he signed a detailed agreement about rules he was going to follow as a way to straighten up. After twiddling his thumbs in jail for several days, the guy signed on. In giving him probation instead of a prison term, the judge adopted the father's terms for probation.

    So this wasn't a governor's clemency, but it's worth noting that my friend did straighten up and has remained straight. Became a pillar of the community, in fact.

  • LifeStrategies||

    "Some teenage felons turn out to be incorrigible, but enough of them are just going through a phase to justify giving promising ones a chance."

    Absolutely, Axman, why lock them up and throw away the key? Who hasn't been persuaded by peer pressure to do things they really didn't want to do. Impressionable teenagers can even be prevailed upon by "friends" to commit petty crimes...

  • Fiscal Meth||

    Really great article Radley. I really don't like Huckabee but I do like when journalists give high fives to people who do uncharacteristically good things.

  • Fiscal Meth||

    Really great article Radley. I really don't like Huckabee but I do like when journalists give high fives to people who do uncharacteristically good things.

  • Fiscal Meth||

    Really great article Radley. I really don't like Huckabee but I do like when journalists give high fives to people who do uncharacteristically good things.

  • ||

    My issue with Huckabee and this case is that when the prosecutor wrote a letter to Huckabee stating that he objected to his overuse of clemency, Huckabee's office sent out a memo that said "The governor read your letter and laughed out loud and wanted you to know," [slightly paraphrased].

    This does not signify a man who had respect for the due process of law nor does it show careful contemplation on his part; rather, it shows a man who knew he had the power to grant clemency to whomever he wished and would use that regardless of circumstance or objection.

    In this particular case I agree that Huckabee was not necessarily incorrect in allowing him to be eligible for parole. But his response to his prosecutor in this case revealed a bigger issue with Huckabee overall--an issue that I would not find desirable in a POTUS.

  • ||

    "...According to Clemmons' clemency petition (PDF), his crimes covered a period of seven months, and included two thefts, an aggravated robbery, and a burglary. None involved pointing weapons at or inflicting bodily harm to another person..."
    - Um, can you please explain what, "Aggravated Robbery" means..? And then tell me how none of his crimes "involved pointing weapons or inflicting bodily harm....?"
    Quite a contradiction! Aggravated Robbery is taking something from someone by threat AND by violence.
    What a HUGE FLAW in an otherwise good analysis.

  • Radley Balko||

    My impression from the petition is that the youths approached the woman and took her purse under threat of violence, but didn't actually harm her, and didn't use any weapons. But that is according to Clemmons' clemency petition. Obviously take the source into account.

  • ||

    Some men, probably many men, do truly repent their sins while in prison and will not commit them again. Some do not. There is horrid waste--both moral and economic--in keeping those who have been punished and changed in shackles. There is horror, plain and simple, in releasing those who will damage society again.

    Any clemency program at all will do both of these things. It will. Really. It is written in the way the universe is made and--more concretely--in detection theory.

    How great a risk are we willing to take in order to free those we need no longer fear? I don't know. Maybe none; maybe any form of clemency is wrong. But if we accept the idea of clemency we must inevitably accept its costs.

  • Kant feel Pietzsche||

    Um, can you please explain what, "Aggravated Robbery" means..? And then tell me how none of his crimes "involved pointing weapons or inflicting bodily harm....?"

    I have a gun in my hand, give me all yr cash. But I never pointed it at you.

  • Kroneborge||

    One say you can say about Huck though. He's for the Fair Tax.

    That alone would do so much to end corruption and get the goverment out of our lives it's worth supporting IMO.

    Not to mention the $200 billion a year in tax compliance costs.

  • ||

    ""It's useful to think of the pardon as another check in our system of checks and balances," says P.S. Ruckman, who runs the Pardon Power blog"

    It's also useful to think of it as a nice source of revenue if one is a crooked politician. We have witnessed such actions brazenly performed before the entire world with absolutely no consequence.

  • whomever||

    If one is looking for an egregious error in the Clemmons case, it is that after he was granted clemency and paroled, he then committed an armed home invasion robbery - and was sentenced to (and served) 3 years. When one plays the 'I have changed' card, they should get slammed when later actions show otherwise.

    BTW, Radley, you make good points about how pardons have come to be used.

  • ||

    Huckabee exercised lots of bad judgment with respect to criminals. Google "Wayne Dumond" for another good example. It seems that he was listening to his Invisible Friend instead of prosecutors, police, and victim's families. We don't want him anywhere the White House.

  • ||

    Regarding Arkansas' lengthy prison sentences: all for show, folks. The perp may get 100 years, but he'll be out in a few, in the normal course of events. Even real hemorrhoids like Dumond and Clemmons.

  • abercrombie milano||

    My only point is that if you take the Bible straight, as I'm sure many of Reasons readers do, you will see a lot of the Old Testament stuff as absolutely insane. Even some cursory knowledge of Hebrew and doing some mathematics and logic will tell you that you really won't get the full deal by just doing regular skill english reading for those books. In other words, there's more to the books of the Bible than most will ever grasp. I'm not concerned that Mr. Crumb will go to hell or anything crazy like that! It's just that he, like many types of religionists, seems to take it literally, take it straight...the Bible's books were not written by straight laced divinity students in 3 piece suits who white wash religious beliefs as if God made them with clothes on...the Bible's books were written by people with very different mindsets

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    So, there is no way she knows about any of the research you site or has any idea how the world outside her own bubble actually works. So cut her some slack.

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