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Pardoning Criminals -- Appropriate Mercy or Perverting Justice?

Posted: 01/18/12 01:00 PM ET

Pontius Pilate would have been proud of Haley Barbour. Pilate, the Roman procurator over Judea at the time of Jesus, pardoned Barabbas, a murderer/insurrectionist against Pilate's own authority (as the Gospel of Mark tells us), the most famous pardon in the history of the world. Barbour, the outgoing procurator (actually, governor) of Mississippi pardoned 203 criminals, including 17 convicted murderers, one of whom shot his wife to death while she was holding her six-week old baby, and wounded her friend. Imagine: a dictator like Pilate, at festival time, using his totally arbitrary, unbridled power to free a prisoner who was actually an insurrectionist against him. Imagine Barbour pardoning a vicious and guilty murderer.

Given Barbour's somewhat bizarre record of pardons, the pardon power has become a topic of interest, although it has never been very far from inflaming public opinion and exciting controversy. President Richard Nixon pardoned teamster boss Jimmy Hoffa to gain support from his union; President Gerald Ford, ostensibly to "heal the nation's wounds," pardoned Richard Nixon before Nixon could be charged, let alone convicted of any crime; President William Clinton pardoned his brother, Roger, but his most notorious pardon was of fugitive financier Marc Rich after application from the state of Israel because of Rich's supposedly charitable endeavors; President George W. Bush gave clemency to Vice President Dick Cheney's crony "Scooter" Libby; and New York Governor George Pataki granted a full pardon to only one man, the comedian Lenny Bruce (and, indeed, posthumously).

What is this "pardon power," and why does it incite controversy? The pardon power is engraved in the U.S. Constitution ("The President shall have the Power to Grant Reprieves and Pardons") and according to the Framers, was intended to be a "benign prerogative" in the interests of "humanity and good policy." Alexander Hamilton long ago explained why the power is critical: criminal law, he said in one of the "Federalist" papers, "partakes so much of necessary severity," and that without "exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel." Chief Justice William Rehnquist called the pardon power a "fail safe" in a justice system that is fallible and convicts innocent people. But however benign and protective, the pardon power is the essence of arbitrary power - a power that can be used capriciously and without any basis to believe that the justice system has malfunctioned or that the person being given a pardon is innocent, and without any mitigating circumstances to warrant any official mercy. And there are no standards or guidelines to regulate a unilateral executive decision that is unconditional, final, and cannot be appealed.

This is not to suggest that the pardon power may not be a necessary "fail safe" for a system prone to errors, as Chief Justice Rehnquist observed. For example, Governor George Ryan of Illinois pardoned several men on Death Row who were convicted on the basis of confessions extracted through torture by the notorious Chicago homicide squad. Pardons have been given to persons serving draconian sentences for minor drug offenses. President Jimmy Carter pardoned hundreds of thousands of draft resisters after the Vietnam War. But in surveying how it is used, it is clear that the pardon power is not the corrective to injustice that the framers intended it to be. Despite mountains of evidence showing that innocent people get convicted -- often the data proves this to a certainty -- it is hard to find many cases where a person has been pardoned exclusively on the basis of innocence. Nor are there many instances where persons are pardoned who have been convicted of a crime many years ago and the government seeks to deport them.

So when lame duck Mississippi governor Barbour granted his "midnight" pardons to murderers -- especially, murderers who, perhaps not coincidentally, were waiters and did odd jobs in the governor's mansion while serving their life sentences - an inevitable uproar ensued. The controversy wasn't about race or cross-racial crimes, or the fact that some Barbour contributor or crony supported their pardons. It was largely the fact that these persons were viewed as having "earned" their pardons by essentially being the Governor's personal servants or "trustees" in the Governor's mansion.

But this spectacle raises a bigger question for pardons generally. Sure, there was considerable public criticism when President Nixon pardoned Hoffa, when President Ford -- to many, suspiciously -- pardoned Nixon ostensibly to end, as Ford put it, the "long national nightmare," when George H. W. Bush pardoned Caspar Weinberger over Iran Contra on the eve of trial, and when Clinton pardoned Marc Rich shortly after Rich's ex-wife reportedly gave substantial contributions to the Clinton Library. The problem with all of these pardons is that nothing about them suggests that the pardon power was used to correct an injustice, or potential injustice. (At least in George W. Bush's controversial clemency to Libby, Bush attempted to articulate some injustice in the length of sentence imposed).

These cases illustrate that the pardon power is hardly the "fail safe" to correct an injustice when questions are raised about "rigidity" of the criminal law and the fallibility of the criminal justice process that may have resulted in a breakdown, and where no remedy is otherwise available to correct the injustice.

The pardon power could be used more often as a fail safe. Indeed, there are numerous cases where it can be powerfully demonstrated that the justice system didn't work -- and didn't even appear to work -- and lawyers for an accused make a persuasive case for that fact, and for the intervention of official mercy in the form of a pardon. After all, appearances are also important.
Given the harshness of some of our sentencing laws, especially the mandatory minimum sentences, it is commendable that many governors have used the clemency power to soften sentences and make inmates more quickly eligible for parole. But that's not what happened in Mississippi. What happened is that the governor, about to leave office -- after he decided he wasn't going to run for president, and his political career was therefore probably over anyway - decided to pardon over 200 people. Among them were murderers who had apparently been sentenced fairly given the horrific nature of their crimes. Moreover, Barbour did so without articulating any reasons for his action, and there certainly was no basis to believe that those pardoned were actually innocent.

Consider -- if only for appearance's sake -- that you are the next of kin to a murdered individual, and the governor's "houseboy" -- the guy who busses his table or repairs his toilet -- gets a pardon after having been convicted for the killing. Haley Barbour is a bright man -- but wasn't he tone deaf here? And why didn't someone tell him "No governor -- you just can't do that"? Presumably in the same way that no one apparently advised President Clinton on the Marc Rich pardon -- "You just can't do that. It will look terrible." And by the way, the current Attorney General of the United States, Eric Holder (then, Deputy Attorney General) was also tarnished for a long time over the Marc Rich pardon for, frankly, not standing up to Clinton and opposing it.

We're not arguing here that the pardon power should be jettisoned. The power is well-established, constitutional, and potentially an important corrective to injustice. Still, in a day when so many miscarriages of justice have been exposed, particularly by way of indisputable proof of actual innocence, the guidelines for pardons should be far more stringent. That way the executives in whom the pardon authority is vested will use it more responsibly. Pardons should never be awarded, or even appear to be awarded, as a chief executive's gratitude for his meals being served punctually and properly heated, or because his toilets flush consistently.

We have no quarrel with a governor or even president getting to know a prisoner and consequently learning about an injustice in his case and therefore deciding to pardon him -- although even then it might seem to be unfair to extend mercy to that prisoner when others, similarly situated, didn't enjoy the relationship with the governor. Just that disparity alone might cause an "appearance" problem regarding fair and even-handed justice. Inequities can never be eliminated. Nonetheless, when a president or governor exercises the unique and unreviewable power of granting official mercy, he should exercise it in a way that makes the public confident that he is exercising it wisely and benevolently.