Crime

Clemency Under Fire

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

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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 (rbalko@reason.com) is a senior editor at reason.

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  1. Biting you in the ass is one of the things you need to consider before you grant someone clemency.

  2. “The crimes spanned about eight months, each occurring before Clemmons turned 17. None involved pointing weapons at or inflicting bodily harm upon another person.”

    Great story except for his punching the woman he stole the purse from. Or pretending he had a gun in that robbery. Or clocking his mom with a lock in jail because he missed the guard he threw it at.

    Facts suck when they get in the way of an argument. Or have Balko – and libertarianism in general – become so infatuated with sticking it to the man that it really has to defend letting this degenerate out?

    For cites to the facts above, see the Wikipedia article on Clemens and the news stories it cites. Sorry I don’t know how to link here.

    1. Right, 108 years sounds reasonable for throwing a punch. Anything that happened in jail should have been brought up in the parole board hearing. Huckabee, who I hate to defend on anything, just commuted his sentence to a more reasonable term. He didn’t grant him a full pardon. The parole board let him out.
      Logic sucks when it gets in the way of an argument, doesn’t it?

      1. However, there is every indication that he should have been violated back to prison almost immediately after being released. See my comment below.

      2. Mr. Simple,

        I only referred to the acts of actual violence where he connected to another person. He also was convicted of carrying a gun on school property, making and secreting on himself a weapon in jail – aside from the lock he disassembled – and making threats to the Court officers assigned to him in Court because of his activities in jail. There is more. Look at the articles on Clemmons.

        He got 108 years because he had been given probation on earlier counts. He then violated probation. That means he gets the sentence for the earlier crime plus the new counts he picked up. So it adds up. Not 108 years for throwing a punch but for years of criminal activity.

        And the things that happened in jail were part of the underlying crime that sent him to prison, not things he did after conviction and went to state prison. Those are two separate animals, especially when talking about a parole board.

        Finally, it does not matter that Huckabee did not grant him a full pardon, as he let him out. And given Clemmons’ history, even without the benefit of hindsight as two Washington, it was an abysmally poor choice.

        So yes, logic does such when it gets in the way of an argument. Fortunately for me, your post contains little logic.

        1. +6

    2. You completely missed the point of this post. Huckabee granted clemency because the original sentence was outrageous. Fair sentencing is a bedrock principle in a jurisprudence system that is supposed to treat everyone the same.

      1. “Huckabee granted clemency because the original sentence was outrageous.”

        The original sentence was probation. But subsequent crimes and parole violations added up to 108 years. The asshole deserved every day he was sentenced to.

        1. So, string of lesser parole violations should lead to higher punishment than a single, non-paroled murder or rape?

          And by “lesser”, I mean lesser than rape or murder.

          BTW How does it make sense to slap anything beyond 30 years on person, without calling it “life” outright? 108 years is de facto life, so why pretend otherwise?

  3. The solution here is obvious: Don’t elect assholes like Mike Huckabee.

    1. Huckabee seems like he’s personally a pretty nice guy, but sadly he’s a complete doofus. All a prisoner has to do to steal his heart is to find Jesus and start speaking in tongues.

  4. You’re kind of missing the point, unhyphenatedconservative — Balko specifically states that “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”. His point, among others, was that Clemens’ sentence could reasonably have been seen as excessive, and commuted on that basis to something more reasonable. Instead, Huckabee granted a “rehabiliation pardon”.

    I’m not sure the motivation for such pardons is simply a love of exercising power, per se. I’ve met a number of people in my time who seem to get off on forgiving wrongs as a demonstration of their own saintliness, or perhaps as a means of doing penance for their own perceived sins. Such people hand out forgiveness quite gratuitously, with little or no regard for the presence of remorse or “rehabilitation” on the part of the wrongdoer. Religious folk may seek to live their lives in imitation of Christ, but I don’t think I’d vote for Jesus as Governor either.

    1. Sorry — my mistake on the commutation/pardon thing. I really can’t fault Huckabee for the commutation part, as 47 years doesn’t seem that bleeding-hearted on its face. I believe the Arkansas DAs, however, have claimed that Huckabee appointed most of the Parole Board himself, with an eye toward leniency, so I’m not sure what subtext there may have been to the commutation.

      1. 47 years sounds like a lot but then you have to factor in the various credits inmates get. In the words of Innigo Montoya, 47 years does not mean what you think it means!

        1. That’s the point the DAs were making — that Huckabee commuted knowing that it would lead to quick parole. That brings us back to Balko’s point — that “reform”-based clemency is overused and generally a bad decision.

        2. Maybe that is the principal problem. Sentences should mean what they mean.

  5. We’re also leaving out the uncomfortable fact that Clemmons was already back in trouble after receiving clemency from Huckabee. Even if you don’t want to blame Huckabee, it was very clear, very fast that Clemmons had no business being out of prison:

    Clemmons moved to Washington state while still on parole. He spent the past several months in jail on a child-rape charge but was released last week after posting a $15,000 bond. His release here came despite seven other pending felony charges, according to court records.

    http://seattletimes.nwsource.c…..cy01m.html

  6. Actually, the point I got from the article is that this is a perfect opportunity to discuss the power of the pardon. And, to have an adult discussion of how it is used and abused. However, most commentators and politicians seem more interested in scoring points than having an adult discussion.

    1. “politicians seem more interested in scoring points than having an adult discussion”

      In other news: fish still swim and birds still fly.

  7. Maybe that is the principal problem. Sentences should mean what they mean.
    http://www.christianlouboutinvips.com

  8. Nice piece. Keep Going, Thank you.

  9. I mean, er, awesome thoughts, Liz – I need some time to think about this!

  10. how pardon and commutation powers should be used.

  11. “Government health insurance since statist takeover in 2011 cost taxpayers $3 trillion more than private insurance would have.”
    ???? ????? ??? ???????
    As noted in the story, nothing government does is even close to budget and the budget for so-called “health-care reform” is at least $1 trillion. They can’t estimate and they can’t contol costs.

  12. ssetts Gov. Mitt Romney and former Minnesota Gov. Tim Pa

  13. Clemmons case making governors more reluctant to use their

  14. eir clemency power, which allows them to reduce or suspend the sentences of convicted criminals. Two of Huck

  15. nd was then gunned down two days later. The fallout from the cop killings may stop Huckab

  16. mency power, which allows them to reduce or suspend the

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