The Inalienable Right to Rot in Jail

David Weigel | June 19, 2007

I didn't think anyone else picked up on Mitt Romney's disgusting brag, during the last GOP debate, that he refused to issue pardons as governor of Massachusetts. It came up when he said that yeah, maybe, sure enough he might pardon I. Lewis Libby.

MR. ROMNEY: I didn’t pardon anybody as governor because I didn’t want to overturn a jury. But in this case, you have a prosecutor who clearly abused prosecutorial discretion by going after somebody when he already knew that the source of the leak was Richard Armitage. He’d been told that. So HE went on a political vendetta.

MR. BLITZER: So is that a yes?

MR. ROMNEY: It’s worth looking at that. I will study it very closely, if I’m lucky enough to be president, and I’d keep that option open.

The Politico's Roger Simon grimaced at this and he has a great column knocking Romney's apparent standard of Pardons for Famous Republicans and No One Else.

When he was 13 years old, Anthony Circosta shot another kid in the arm with a BB gun, which was not a nice thing to do.

And even though Circosta's shot did not break the kid's skin, Circosta was convicted of assault.

Which did not matter much as Circosta worked his way through college, joined the Army National Guard, went to Iraq and led a platoon of soldiers in the Sunni Triangle.

In 2005, while still in Iraq, Circosta petitioned then-Massachusetts Gov. Mitt Romney for a pardon so that Circosta could become a police officer when he returned home. And the state Board of Pardons recommended that Circosta receive that pardon.

But Romney refused. Twice.

Someone else who might deserve a pardon is, of course, Cory Maye. Assuming the worst with his legal calender, he couldn't get a pardon before the year 2012 because Mississippi's talk-tough Gov. Hayley Barbour (who Chris Matthews wants to run for VP with Rudy Giuliani) refuses to pardon anyone. So would Romney's flip-flop one day apply to unjustly convicted people? Or just to people who Republican primary voters care about?

Comments

stephen the goldberger|6.19.07 @ 9:17AM|#

Is how the president uses his pardon really a factor in determining who anybody votes for?

|6.19.07 @ 9:26AM|#

Is how the president uses his pardon really a factor in determining who anybody votes for?

It's one of the things I consider. (Of course, the chance of my voting for Mitt Romney was already pretty much zero, so here it doesn't make much difference. And *all* presidents, and governors with presidential ambitions, seem to make a point of not using their power of executive clemency, lest they be perceived as soft on crime, so again, it probably doesn't make a lot of difference.)

|6.19.07 @ 9:27AM|#

yo Dave...
or is it only those folks whom Dave W. would pardon?

|6.19.07 @ 9:29AM|#

I will be watching with interest to see who GWB pardons. Clinton set a despicable new precedent on his last day.

SugarFree|6.19.07 @ 9:33AM|#

It speaks to Romney's character, that Circosta cannot get an appeal but a party creature such as Libby can.

(Not that I think Libby should be going to jail. Or that MormonBot 3000 could have ever gotten a vote from me. Anybody ever read Transmetropolitan? Romney is The Smiler.)

David Ross|6.19.07 @ 10:04AM|#

Once upon a time, half the Republican primary voters would have been libertarians or NRA types, who would like to see Cory Maye pardoned.

Mind you, that was before Dubya chased us off.

|6.19.07 @ 10:10AM|#

A politician who only cares about doing favors for the privileged elite of his own party? Pass the onion dip.

|6.19.07 @ 10:11AM|#

Is how the president uses his pardon really a factor in determining who anybody votes for?

You might want to ask Jimmy Carter that question.

|6.19.07 @ 10:12AM|#

I wonder if the Bush pardons will be as stupid and (at least seem) as for-sale as Clinton's were.
JMR

Col. Panic|6.19.07 @ 10:12AM|#

Once upon a time, half the Republican primary voters would have been libertarians or NRA types, who would like to see Cory Maye pardoned.

I think you overestimate us.

|6.19.07 @ 10:13AM|#

Don't forget the Amiralt case. Is there anyone currently in jail right now who deserves a pardon more than Gerald Amiralt? If Romney were half as Mormon and moral as he claims to be, he would have done the right thing as governor and let those poor people out of jail. He didn't, which tells me that he is a typical smarmy politician with no values or morals.

It will be interesting to see if the WSJ comes out for Romney. Claudia Rosset wins a pulitzer for them writing about the new Salem which trials in the Amiralt case, then they come out and endorse for President of a former governor who could have fixed the case. I hope that doesn't happen.

|6.19.07 @ 10:14AM|#

I think most people Republicans or Democrats would want to see Corey Maye out of jail if they knew the facts of the case. The problem is who knows about Corey Maye outside of a few internet geeks who follow this kind of stuff?

|6.19.07 @ 10:16AM|#

Not that this is entirely on point, but I think a Constitutional amendment is needed to prevent presidents from pardoning their own staff. Kind of allows them to do anything through their minions the way it currently works, doesn't it? The staff is protected quite a bit by various immunities, privileges, and the political question doctrine, so I don't think limiting the pardon power would hurt the checks and balances. We might even throw in something about not being able to pardon people in which the president has a personal interest, but that's probably unworkable.

|6.19.07 @ 10:26AM|#

Pro,

I don't have a problem with President's pardoning their staff. First, when they do so they face the prospect of paying a tremendous political price. Gerald Ford probably wins the Presidency in 1976 if he doesn't pardon Nixon. Because of the political price, there is little danger that the power will be abused. As a matter of fact, I can't think of a single instance where the power has been abused. What it does do, however, is limit how much political differences can be criminalized. It also allows the President to basically call shenanigans and end political struggles that have turned criminal. Nixon is a good example. Had Nixon really been tried and convicted, sure some of the public would have been ecstatic but a significant minority would have been embittered and permanently alienated by the process. That is not good for Democracy. Yeah, the principle no one is above the law, but sometimes the price to be paid for that principle is too high. Ultimately, if the President really does pardon a deserving criminal, he or his party will pay a price for it at the ballot box, just like Ford and the Republicans did in both 1974 and 1976. That is a good enough deterrence.

|6.19.07 @ 10:29AM|#

No one ever lost an election by being too harsh on convicted criminals. The last Massachusetts govenor to go all squishy-hearted on the convicts became Michael Dukkakis. Faced with that reality, Mitt made the pragmatic choice.

|6.19.07 @ 10:35AM|#

John,

No, it's not a pressing issue, but it is a large loophole that could allow some serious abuse. I don't think that the political consequences to the party matter that much to a second-term president. For instance.

I was pretty displeased with the Iran-Contra pardons, too, so it's not like there are zero examples in recent times.

However, I was thinking about (but didn't articulate) your point about it being a way to limit any witch hunts against a given administration. My proposal wouldn't have prevented Ford from pardoning Nixon, but it would prevent Bush from pardoning Libby or anyone else who does bad things under his watch (not to open up whether Libby actually did bad things--that's not my point). How much can the other branches engage in witch hunts, aside from their power to impeach? I'm not sure.

|6.19.07 @ 10:39AM|#

Presidential or governor pardons really emphasize how broken the system is. Its a bandaid on the corruption and beaurocracy that many people get caught up in. Maybe if people would focus on fixing the system, pardons would be an obolete thing. I really don't care if a governor/president pardons or doesn't pardon somebody. It shouldn't be in the job description.

|6.19.07 @ 10:44AM|#

No one ever lost an election by being too harsh on convicted criminals. The last Massachusetts govenor to go all squishy-hearted on the convicts became Michael Dukkakis. Faced with that reality, Mitt made the pragmatic choice.

I'm not sure I would characterize his choice as pragamatic. Cynical and disgusting perhaps, but not pragmatic. This guy who shot another kid with a BB gun when he was 13-years old is hardly Willie Horton.

|6.19.07 @ 10:46AM|#

" I didn't pardon anybody as governor because I didn't want to overturn a jury. But in this case, you have a prosecutor who clearly abused prosecutorial discretion by going after somebody when he already knew that the source of the leak was Richard Armitage. He'd been told that. So HE went on a political vendetta."
And no prosecutor in Mass. ever abused his prosecutorial discretion. Ever? Romney is the biggest tool running for President today. This man has no conviction that he would not bend to get power.
"Because of the political price, there is little danger that the power will be abused."
Bullshit, it's called "lame duck." Look at Clinton for example. And the very pardoning of someone who IS guilty, just for political connections, while others without serve out their terms, is abuse enough. Despicable.

|6.19.07 @ 10:58AM|#

I was pretty displeased with the Iran-Contra pardons, too, so it's not like there are zero examples in recent times."

But didn't the Republicans pay a price for that in 1992? Are people who would otherwise not do anything wrong out there committing bad acts on the faith that they will get a pardon? I don't think so. I don't think limiting the pardoning power will stop any bad acts. It will just ensure a few deserving people go to jail, but I don't think it will prevent the deserving people from doing what they do. The problem is that when you get things like Watergate or Iran Contra or any of the Clinton scandals whichever side that gets caught supporters are always going to consider the thing a frame up. The lingering bitterness over those scandals is much worse than anything the scandals themselves created. Better to suffer the occasional pardon and put the things to bed.

Fluffy|6.19.07 @ 11:00AM|#

I think the lack of pardons issued by Romney during his tenure shows a profound lack of judgment - actually, perhaps even a profound fear of exercising judgment.

He was terrified that if he pardoned anyone it might later embarrass him. Rather than take a chance on his own ability to use his pardon power on the basis of available facts, he punted.

Even Bush used the pardon power and commutation power as governor. Romney would rather NOT decide if making a decision could someday hurt him. Is that really a characteristic we want in a President?

|6.19.07 @ 11:02AM|#

Had Nixon really been tried and convicted, sure some of the public would have been ecstatic but a significant minority would have been embittered and permanently alienated by the process. That is not good for Democracy.

Don't you think there was a significant minority who were embittered and permanently alienated by Ford's padon of Nixon? Was that good for democracy?

|6.19.07 @ 11:03AM|#

"Presidential or governor pardons really emphasize how broken the system is. Its a bandaid on the corruption and beaurocracy that many people get caught up in. Maybe if people would focus on fixing the system, pardons would be an obolete thing. I really don't care if a governor/president pardons or doesn't pardon somebody. It shouldn't be in the job description."

I disagree. The pardoning power is a vital part of the system. Any legal system is going to a human system and subject to mistakes. The common law took care of this by giving the sovereign the power to pardon and undo the injustices that inevitably occur in any justice system. The problem is that our politicians have become such insufferable jackasses and the political conversation about crime has become so polarized, the pardon and commutation powers are not exercised enough. As much as anything, it is the pardoning power that is broke rather than the justice system as a whole.

|6.19.07 @ 11:06AM|#

"Don't you think there was a significant minority who were embittered and permanently alienated by Ford's padon of Nixon? Was that good for democracy?"

No it wasn't, but at least it was over and done with. People moved on and they got a new President in 1976. Had Nixon been tried, it would have only gotten more vicous and more embittering as time wore on. Better to pardon him and end the entire matter and move on. The future is a lot more important than settling old scores and it is not like any future President can look back on Nixon and think he got away with it. Resigning in disgrace is about as big of a deterent as there is for a politician.

T|6.19.07 @ 11:08AM|#

Clinton? Was everybody sleeping at the end of Bush the Elder's presidency when he pardoned everybody who could have testified against him? I'd argue that was more of a breakdown in the system, and proof of Pro Libertate's point than anything Clinton did.

How did Bush personally, and the Republicans politically, face any repercussions for those pardons? Bush and the Republicans had already lost, so what else could they lose? The respect of America? Puh-leeze.

|6.19.07 @ 11:30AM|#

Old Man Bush pardoned people who he shouldn't have and probably bought some important silence. Clinton did the same thing, albeit under different circumstances. And in the latter instance, it's hard not to see some potentially more mercenary motivations.

I don't oppose the pardon power; I oppose its use for excusing executive misconduct. Particularly in instances where the underling has done something unconstitutional. This hasn't been a gigantic problem to date, but given the last two president's abuse of the pardon power, it looks like yet another trend is developing in the arbitrary use of power.

|6.19.07 @ 11:33AM|#

John,

When everythings illegal and we're all criminals, I don't think a pardon from some random individual is such a great thing to hope for. How about a pardon by popular opinion? Is that any less justified?

Fluffy|6.19.07 @ 11:36AM|#

While we're on the subject of the pardon power, it's always interested me in an academic sort of way because it's one of the few truly unchecked powers in the Constitution.

A President could, in theory, employ the pardon power to effectively edit out federal criminal laws he did not like. Don't like the marijuana laws but aren't able to get them overturned by the Congress? Pardon everyone convicted under them.

I've occasionally wondered how such a "blanket" use of the pardon power would impact the system as a whole. It seems like it has the potential to set up a Constitutional crisis, since I'm sure if it was used in the way described above many in the Congress would call for impeachment, and that leads to the question of whether the "abuse" of a power clearly given to the chief executive could ever be grounds for an impeachment.

|6.19.07 @ 11:47AM|#

Fluffy,

I believe that Harry Browne promised to do exactly that. And, of course, you're right--impeachment would soon follow. I suppose the perspective of Congress would be that this would be similar to a president pardoning all the nation's murderers on death row because he doesn't like the death penalty (pardoning altogether, not commuting sentences). I don't hold with that view, but I'm sure that would be their justification--"He's crazy! He has no respect for the law!"

|6.19.07 @ 11:53AM|#

Pro and Fluffy,

I have often thought that a principled President could use his commutation power to mitigate the effects of minimum mandatories. Have his staff choose only deserving cases and commute the sentences. Yes, people would have a fit, but if you stuck to your guns and only chose deserving cases, it would really point out the stupidity of minimum mandatories.

As I explained above, I don't buy the arguments for the abuse of pardoning power. I think pardon and communtation are powers that governors and the President do not use enough.

|6.19.07 @ 11:55AM|#

MITT ROMNEY HATES THE TROOPS!

Seriously, that's the only way to spin this and make it sounds good. "Mitt, why do you hate the troops? Why didn't you pardon Circosta?"

|6.19.07 @ 12:03PM|#

I think pardon and communtation are powers that governors and the President do not use enough.

Without a doubt. What moral cowards our politicians have become, almost to a man.

|6.19.07 @ 12:33PM|#

Re: Bush 41 pardons - everyone remembers the Iran Contra ones, but hardly anyone remembers Orlando Bosch. That one definitely had mercenary implications for Florida politics.

|6.19.07 @ 12:40PM|#

Romney says he doesn't want to overturn a jury. But in this case was there a jury? I didn't think juvenile cases typically had juries. And many people are convicted at bench trials or plead guilty, yet later turn their lives around.

|6.19.07 @ 1:05PM|#

Fluffy/ ProL,

Most drug crimes and murders are prosecuted under state laws, so the Prez cannot pardon people for those offenses.

|6.19.07 @ 1:12PM|#

crimethink,

Yes, I suppose you're right. Oh, well. I wonder if there isn't an angle based on asserting a violation of a defendant's due process rights? Probably not.

|6.19.07 @ 2:08PM|#

"Romney says he doesn't want to overturn a jury"

That is one of the dumbest answers I have ever heard. That is just question begging. Of course it is overturning a jury, it is a fucking pardon. Further, would be somehow better if it were a bench trial? Any time you issue a pardon you are overturning a conviction and thus probably a jury. So, when Romney says "he doesn't want to over turn a jury" he is just saying "I don't want to give out a pardon". Well yeah, but why not?

Aaron|6.19.07 @ 2:44PM|#

Massachusetts... Home of the infamous Amirault/Fells Acres case. No, it's hard to think of anybody in that state who might have been deserving of a pardon or clemency....

Wesley|6.19.07 @ 3:52PM|#

ROMNEY: "But in this case, you have a prosecutor who clearly abused prosecutorial discretion by going after somebody when he already knew that the source of the leak was Richard Armitage. He'd been told that. So HE went on a political vendetta."


... what? So it's bad to go after someone you KNOW is guilty? Prosecutors can only go after people they're GUESSING might be guilty?

|6.19.07 @ 3:57PM|#

I wouldn't have a problem if Mitt had said that he hadn't pardoned anyone because he had gone through the files and felt that the convictions had been justified. But to say that he didn't pardon anyone because he "didn't want to overturn a jury?" Which part of the definition of "pardon" is he unclear about?

P.S. I'm a Mormon voting for Ron Paul.

Fluffy|6.19.07 @ 4:34PM|#

Crimethink -

I know that. But the federal prisons still have a lot of drug prisoners in them. The overwhelming majority are in the state system, but it's not like the federal prisons are empty.

There's also a lot of tax criminals in the federal system, and that's another promising area for pardon carpet bombing. Free Wesley Snipes!