Clemency Under Fire

A parolee turned cop killer sparks an ill-informed debate about pardons and commutations.

In 2000 Arkansas Gov. Mike Huckabee commuted the prison sentence of a robber named Maurice Clemmons. Huckabee went on to become a Republican presidential candidate in 2008 and then a Fox News host. Clemmons went on to murder four police officers in a Lakewood, Washington, coffeehouse in 2009 and was then gunned down two days later. The fallout from the cop killings may stop Huckabee from winning the GOP nomination in 2012. But the more important issue here is how pardon and commutation powers should be used.

It's easy to imagine the Clemmons case making governors more reluctant to use their clemency power, which allows them to reduce or suspend the sentences of convicted criminals. Two of Huckabee's possible rivals in the 2012 race, former Massachussetts Gov. Mitt Romney and former Minnesota Gov. Tim Pawlenty, boasted after Clemmons was killed that they never issued a single pardon while serving as governor. That's too bad. This power is already underutilized. Worse, when it is used, it's usually for the wrong reasons. A governor's ability to grant relief to convicts should be deployed as a last check against the many flaws in the criminal justice system. Instead, when used at all, commutations and pardons are far more commonly bestowed as magnanimous rewards for alleged redemption. 

Huckabee insists his clemency for Clemmons was about justice, not forgiveness. According to Clemmons' 1999 clemency petition, the then-teenager was convicted in 1989 and 1990 of an aggravated robbery, a burglary, two other thefts, and possession of a handgun. The crimes spanned about eight months, each occurring before Clemmons turned 17. None involved pointing weapons at or inflicting bodily harm upon another person. In the most serious crime, aggravated robbery, Clemmons and some other youths approached a woman on the street and took her purse. The burglary charge was for breaking into a home to steal a cell phone. For those crimes, Clemmons was sentenced to 108 years in prison. 

Brian Gallini, a professor of criminal law at the University of Arkansas, says that because Clemmons' crimes didn't cause injury or death, the sentence was unusually harsh, both for Arkansas and for the country as a whole. "Even juvenile accomplices to a murder don't typically receive a sentence like life without parole," Gallini says. "A 108-year sentence for burglary and robbery certainly falls well outside the norm." 

Huckabee commuted Clemmons' sentence to 47 years, making him eligible for parole after the 11 he had served by the year 2000. The parole board subsequently freed him. The judge who sentenced Clemmons had no objection to the commutation or decision to parole, though Clemmons' prosecutor, Pulaski County District Attorney Larry Jegley, says he opposed the release. Writing in the conservative outlet Human Events, Huckabee described the commutation as "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." 

Huckabee insists the clemency was a judgment on Clemmons' sentence, not his character. In the weeks before Clemmons murdered the four police officers a decade later, relatives said he had grown 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, citing a number of outbursts attributed to Clemmons during his time in prison by guards and law enforcement. (Clemmons was never criminally charged for any of these incidents.) 

If the 108-year sentence was excessive on its face, it was excessive regardless of what may have happened after Clemmons' release. We generally don't punish people for what they might do; we punish them for what they have done. If Huckabee is being truthful about commuting the sentence because he deemed it unjust, then the discussion should focus on whether he was correct in that assessment, not on the tragedy in Lakewood, Washington. But if Huckabee commuted Clemmons' sentence because he was convinced Clemmons was a reformed man, the former governor clearly showed poor judgment and deserves the criticism he has received. 

This distinction is important. Where there is good reason to believe that an innocent person was convicted, a law was applied inappropriately, or a sentence was determined contrary to the interests of justice, executive clemency may be the only redress. 

"It's useful to think of the pardon as another check in our system of checks and balances," says P.S. Ruckman, a political scientist at Rock Valley College in Rockford, Illinois, who writes frequently about the clemency power.  "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 Volstead Act violators because of his objections to alcohol prohibition. 

Unfortunately, a far more common use of pardon and commutation powers is to confer forgiveness on those who have confessed their crimes, done time, and convinced a governor or president that they've been 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 clemency power isn't a check on injustice but an expansion of executive power: the ability to issue godlike proclamations that a wayward soul has been redeemed. Some of Huckabee's liberal critics, such as Arianna Huffington and Joe Conason, claim the governor was prone to such decisions, favoring convicts who found Jesus in jail. Ruckman notes that about half of all presidential pardons during 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," he says. 

One of Huckabee's potential rivals for the 2012 GOP nomination, Mississippi Gov. Haley Barbour, is a good example. Barbour has made no effort to use the pardon or commutation power as a backstop for Mississippi's flawed criminal justice system. He even refused to grant a posthumous pardon to a civil rights worker Barbour concedes was framed to prevent him from integrating Mississippi Southern College. But in the last two years, Barbour has pardoned five convicted killers, four of whom slew their wives or girlfriends. All were in a prison program aimed at rehabilitating felons. 

When a governor frees someone on rehabilitation grounds, he is making a proclamation bolder than a determination that the convict's sentence was unjust. He is pronouncing a convicted criminal redeemed, thereby putting himself on the hook for that person's behavior the rest of his life. 

Coverage of the Clemmons case has muddled this distinction. In the process, it has made what could have been a useful discussion about when and how a governor should use the clemency power into knee-jerk, ill-informed skepticism about whether it should ever be used at all. 

Radley Balko ([e-mail]) is a senior editor at reason.