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.

The wisdom of a pardon or clemency granted because a particular verdict, sentence, or application of the law was unjust ought to be judged on precisely that, and only that—whether the final outcome is consistent with our notion of justice. What happens later is irrelevant. On the other hand, when a governor pardons or frees on rehabilitation grounds someone who unquestionably committed the crime, he's made a bolder proclamation, and put his own judgment on the line. If you're going to pronounce a convicted murderer redeemed by letting him out of prison, you really should be on the hook for the killer's behavior for the rest of his life.

Coverage of the Clemmons case has muddled this distinction, and blurring the difference has made what could have been a useful discussion about when and how a governor should use these powers into one about growing skepticism about whether they should be used at all.

"It's kind of a shame," Ruckman says. "I'm reading media reports now about how Huckabee's decision may spark a backlash against clemency. But it's not the decision. It's way it has been reported."

Radley Balko is a senior editor at Reason magazine.