I'll guess that most Americans, if they think about clemency at all, think it happens way too often and benefits the wrong people. That's because high-profile cases of clemency, or even requests for clemency, are almost invariably unpopular. Dick Cheney asked that his buddy, Scooter Libby, be pardoned for his role in the Valerie Plame affair. Bill Clinton caught major grief for Marc Rich's pardon (illegal trading, tax evasion). President Ford's pardon of former president Nixon for any crimes associated with Watergate was probably the signature moment of his presidency - and not in a good way.
You may have noticed some hoopla going on right now over the case of one Maurice Clemmons. Clemmons is suspected of having recently ambushed and killed four police officers in a Washington state coffeehouse. Turns out that Clemmons had been serving what was effectively a life sentence in Arkansas until nine years ago, when then-governor Mike Huckabee commuted his sentence.
If Clemmons is in fact guilty of murdering the police officers, the case would hardly be without precedent. Remember Willie Horton?
Horton was a convicted murderer released on a weekend furlough program supported by Massachusetts governor and 1988 presidential candidate Michael Dukakis. While on release, Horton committed armed robbery, assault, and rape. Lee Atwater, campaign manager for Dukakis' Republican presidential opponent, George H. W. Bush, famously predicted that "by the time this election is over, Willie Horton will be a household name." He was right. Though the weekend furlough program in question had nothing to do with clemency, as such (usually understood in terms of pardons, commutations, and reprieves), "Willie Horton" became a symbol for many of the dangers of "soft on crime" liberal sentiment and policy, in general, and of clemency in particular.
These high/low-points in recent "clemency" history are worth recounting to underline the point that such high-profile cases are ridiculously atypical of the cases that usually come to the attention of parole boards and chief executives (including the president) - and atypical, arguably, of the cases that should come to their attention. Relatively few requests come from super-connected Beltway or Wall Street guys like Libby and Rich, not to mention from ex-presidents. Most pardon petitions come from people imprisoned for minor, nonviolent drug offenses who, upon release, try their damndess to live exemplary lives. They don't rape or murder people, as Horton did and Clemmons may have done. Also worth noting: the vast majority of prisoners participating in the Massachusetts and similar furlough programs did so without mishap.
Last week Ohio Governor Ted Strickland granted clemency in 78 criminal cases. Even though the governor denied clemency in three-quarters of the cases he decided on, with another 400 requests still sitting on his desk, reader responses on like the Columbus Dispatch and Cleveland Plain Dealer online sites were predictably harsh. "I'm sickened at this," one person wrote. "Who does Strickland think he is?" "Doesn't he have better things to do?" - another wondered - "than to be second guessing our judicial system on HUNDREDS of cases?"
These comments and others like them highlight some basic misunderstandings about the clemency process and its purpose.
First, a lot of people think that clemency is just a fancy word for coddling criminals. Nonsense. Governor Strickland pardoned 68 people who have already paid their dues behind bars. All have become productive, responsible citizens. Unfortunately, because of their records, they now live among us as second-class citizens, subject to being denied certain jobs, having their occupational licenses revoked, have their driver's licenses suspended or revoked, and much more. The University of Toledo's summary of these so-called collateral sanctions runs 85 pages! Restoring full citizenship to people who've done their time and play by the rules is not coddling. It's common decency and common sense.
A second claim you'll hear is that clemency undermines the integrity of our justice system by overturning decisions judges and juries have already made. But allowing bad decisions to stand is what really undercuts the system's integrity. That's why we insist that a criminal defendant's guilt be established "beyond a reasonable doubt." It's why we have appeal courts.
In a criminal justice system run by human beings who must process hundreds of thousands of individuals and files every year, mistakes will be made. Eyewitnesses identify the wrong people. Police officers and technicians mishandle evidence. Forensic testing is done improperly. Informants lie. People provide false confessions. Judges give unfair sentences. Under these conditions, clemency gives us a final opportunity to put the justice back into criminal justice.
Finally, some critics of Governor Strickland's use of clemency suggest he did it because it was politically expedient. This one's a real puzzler. In this long era of knee-jerk, tough-on-crime posturing, the fact is that governors with the moral and political fortitude to take their clemency power and responsibility seriously are a vanishing breed precisely because they know that to do so is political self-sabotage.
We have over 7 million people in prison, on probation or on parole in this country. Let's suppose, very conservatively, that 1 percent of them are innocent - that's 70,000 people. How many more have been in prison years too long for minor nonviolent offenses? How many millions of others bear the heavy burden of collateral sanctions years after they paid their prison debt? And how many of these folks are among the 400 cases still sitting on Governor Strickland's desk right now?
Cross-posted from Race-Talk.