Barbour's Mercy: The Stench Grows

From the New York Times:

A close look at some of the clemency applications of nearly 200 of the other felons who were pardoned reveal that a significant share contained written appeals from members of prominent Mississippi families, major Republican donors or others from the higher social strata of Mississippi life.

Is any thinking person really surprised? See story here.

In our view, there is additional "breaking news." PardonPower spoke with one of the authors of the Times article linked above and it was his distinct impression that "most" of the recommendations made by the State's Parole Board were forwarded to Haley Barbour in the last six months of the administration! Unfortunately, for now, we don't know if "most" here means closer to 51 percent, or closer to 90 percent. But, regardless, this news creates several layers of complexity to both Barbour's behavior and normative analysis of the general situation in Mississippi.

If the Parole Board sat on applications, and did little, for the greater part of eight years, then it is as much to blame as Haley Barbour. If a large number of applications were dumped on Barbour on the last minute, then he didn't have much of a choice with respect to granting clemency so near the end of the term. Why hasn't Barbour ever mentioned this factor in his own defense? It certainly makes more sense / sounds more reasonable than references to Christianity and Hurricane Katrina. If that is when he got the applications from the Board, then that is when he had a chance to make the decisions!

In thinking along these lines, one wonders if Barbour may have actually even instructed the State's Parole Board not to forward applications his way while he was considering a run for the presidency. Remember, the members of the Board are selected by Barbour. This would, of course, explain the fact that Barbour has not thrown the Board under the bus ... yet.

Sooner or later, the Board of Parole will have to stand under the same spotlight as Barbour.

Representative Questions Holder re Pardons

A Legislative Assistant in the Office of Representative Robert C. "Bobby" Scott (Virginia, 3rd District) - member of the House Judiciary Committee - has confirmed that the following questions have been formally submitted to U.S. Attorney General Eric Holder:

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You testified when you were confirmed that you would study the problems with the clemency advisory process and fix them.

1. Please let us know what you have found and what changes you have made or plan to make.

It has been reported that the pardon attorney no longer assigns commutation cases to staff attorneys, and does not write a recommendation in the large majority of these cases.

2. How does this fulfill the Department's responsibility to advise the president about the merits of each case?

3. Doesn't this make the commutation process meaningless for most applicants?

4. How can the pardon attorney himself conduct a meaningful review of thousands of commutation petitions?

5. Even if most of these should be denied, if no one is really looking at them, how do you know each one is without merit?

We can all agree that no system is perfect. The legal system is no exception. There are mistakes. The Constitution gives the president a role in fixing such mistakes.

6. How does this procedure help the president do that?

7. How does the pardon office identify the rare exception that deserves a closer look? Political support? Media attention? If so, is that the best way — the most fair way — to make these decisions?

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Over at Douglas Berman's Sentencing Law and Policy blog, there is recommendation for an additional question:

8. In light of your Department's advocacy for crack and powder cocaine sentences to be equalized, as well as the passage of the Fair Sentencing Act in 2010, has any effort been made to give special attention or review to any commutation petitions filed by persons still serving very long crack sentences who may be able to make an especially convincing claim that their continued incarceration is unfair and serves no continued valid purpose?

South Dakota: Bill Gives Victims a Voice

The Rapid City Journal reports that a bill that would "give victims the opportunity to comment on a prison inmate's request for clemency" has made it through the State's House of Representatives. HB 1021 gives victims "the right to provide written comments at clemency hearings with the Board of Pardons and Paroles and written comments when clemency is considered by the governor." It passed in the chamber by a vote of 66-0. The right to provide such comments extends to parole hearings with the board and consideration of sentence commutations by the governor. See full story here.

Brief Report on Thomson Reuters Mississippi Prison Status Data

EDITOR : Because the Editor of this blog has a keen interest in empirical study of the pardon power, state and federal, it seemed worthwhile to try to look past some previous negative experiences with authors and ask the statisticians at the University of Georgia about their recent analysis of clemency in Mississippi. As expected, they were both very generous with their time and quite open about the details of their effort. So, an additional, brief summary was requested, and they have graciously provided it here (below). The Editor is quite thankful and has renewed faith in the collegiality of scholars.

Prepared for the UGA SCC by Dr. Kim Love-Myers and Dr. Jaxk Reeves:

Analysis: 


We were provided with the data below, regarding the current prison status of 25,480 individuals in Mississippi.

Of the 222 on the pardons list: 142 are white
                                                   68 are black
                                                   12 are unidentified

Of a total population of 25,258: 8572 are white
                                                 16386 are black
                                                    222 are Hispanic
                                                      31 are Native American
                                                      37 are Asian
                                                      10 could not be identified

The 22 individuals who could not be identified were removed from the data, as knowledge of their races was not available.

The emphasis for this analysis was on the disparity between white and black individuals, and so the SCC considered only those individuals in this population who are described by either of these terms. Table 1 below provides the distribution of individuals described as white or black according to whether they are pardoned or currently serving a prison sentence.

Table 1. Prison Status of Mississippi Individuals by Race (White and Black Only)

Table of Prison Status by Race

Table of Prison Status by Race
Status	Race
	White	Black	Total
Pardon	142	68	210
	1.63%	0.41%
Prison	8572	16386	24958
	98.37%	99.59%
Total	8714	16454	25168

From this table, 142 out of 8714 white individuals in this population are pardoned (1.63%); also from this table, 68 out of 16454 black individuals in this population are pardoned (0.41%). The odds of being pardoned for a person described as white are 3.99 times the odds of being pardoned for a person described as black (Footnote 1).  A Fisher's exact test to determine whether Race and Prison Status are independent of one another determined that the probability (P-value) of a population where Race and Prison Status are unrelated producing data with a difference in the two populations this large or larger is 2.14E-22, or 0.000000000000000000000214 (Footnote 2). This is a one in 4,664,179,104,477,610,000,000 chance — much less than a one in a million possibility.

Important Notes

Odds. Note that "odds" are calculated as the probability of an event (such as a pardon) occurring for an individual in a particular population divided by the probability of that event not occurring. This can be written mathematically as p / 1-p, where p is the probability of the event occurring. Therefore, when it is said that the odds of a pardon are 3.99 times higher for whites than for blacks, technically this is not completely synonymous with stating that the probability of a pardon is approximately 3.99 times higher for whites. (In this case, the calculations are not much different, however; the probability of whites being pardoned compared to blacks is 3.94 times higher).

P-value and chance of occurrence. Note that the P-value as listed here (i.e., chance of this distribution occurring randomly) do not take any additional factors beyond race into account. In other words, these analyses compare the probability of pardons for whites to blacks with the underlying assumption that these pardons should be randomly distributed among the races. In reality, there are many other issues to consider and pardons should probably not be randomly distributed. Other factors, which may very well be related to race (not necessarily causally) and influence the rate of pardons are the severity of the crime committed, time spent in prison, number of previous offenses, gender, or any number of additional factors. This analysis does not account for such factors. In particular, it would be wrong to state that this analysis "proves" that race is the "cause" of different rates in pardoning; this type of observational information cannot prove causality, though it does indicate a significant relationship between race and the probability of being pardoned.

[1] See notes section for important information regarding odds.

[1] See notes section for important information regarding this P-value.

Egypt: 1,959 Pardons!

Reuters reports Egypt's military ruler, Hussein Tantawi, has pardoned 1,959 people "convicted by military courts in the year since President Hosni Mubarak's ouster, including 25 year old activist Michael Nabil whose hunger strike had brought him close to death." It is "unclear" however if any of the detainees have actually been released. One group claims about 12,000 cases have come before the military courts since February and "sentences are often handed out swiftly behind closed doors and without proper legal representation." See story here.

Barbour: Incredibly Stupid? Or Simply a Clumsy Liar?

Anyone who knows anything about the exercise of the pardon power, state or federal, knows that THE most common misconception about pardons has to do with their impact. More specifically, it is often thought that pardons routinely spring violent and hardened criminals straight out of prison, over-turning the considered judgement of judges and juries. This misconception is no mystery at all - at least not to any thinking person. It springs from the weight of attention given to the freakishly few pardons which very nearly fit that kind of imagery.

But, in fact, as every person who knows anything about the exercise of the pardon power, state or federal, knows, the typical pardon is given to someone who has committed a minor, non-violent crime, years (often decades ago). They have served their time (if there ever was any), taken care of all fines (if there ever were any) and the degree to which they have been law-abiding since the offense has been examined by a board, a commission or the FBI. The pardon, thus, does not spring anyone from prison. It merely restores their civil rights. the right to vote, to serve on a jury, to hold public office, to travel without restrictions, to own a hunting rifle, etc.

Mississippi: Cause for Celebration, In Spite of ...

One of our several complaints about former governor Haley Barbour's last-minute pardon rush was the fact that it cast a cloud of suspicion over the clemency process (as it always does and as it very well should) and well-deserving recipients of mercy as well. Today's Boston Globe gives some attention to such persons. When 61-year old Vietnam veteran Thomas Ailes heard that he had been pardoned for a marijuana conviction in the 1970s, he drove his truck to the capital to pick up the pardon himself! Said Ailes, "I'm going to have about 10 copies of this bad boy made. And this one here is getting framed."

The Globe reports "most" of Barbour's pardons were for "lesser crimes, some dating back decades."

Mississippi: Barbour's "White" Christian Mercy

Just when Haley Barbour thought he had sold the swampland in Florida, comes Reuters with this nugget via University of Georgia statisticians Kim Love-Myers and Jaxk Reeves:

Overlooked in the controversy has been the racial composition of the list of inmates and ex-convicts Barbour pardoned. Barbour granted 222 acts of clemency in his tenure to 221 individuals ... Of those, roughly two of three were white, according to data from the Mississippi Department of Corrections and a search of public records. The racial makeup of Mississippi's prison population is the inverse: about two-thirds' black. Whites make up about 59 percent of the state's population as a whole and blacks about 37 percent.

Barbour, through a spokesperson of course, says that race played no factor in his decisions. A Notre Dame Law School professor, however, says, "At the very least, those numbers raise some very disturbing questions that need to be addressed by the attorney general and even by the U.S. Department of Justice civil rights division." Equally interesting is this piece of information:

... the [State's Parole] board received more than 500 applications during Barbour's eight-year tenure. Of those, just over 250 met the required standards for consideration and were sent on to the governor's office. Among the applications forward by the Parole Board, Warnock calculated that Barbour granted clemency to 185 applicants and denied it to 69 others.

So, now we know that Barbour did not grant clemency to almost 70 individuals whom the Parole Board deemed worthy of "consideration." Now, we just need to know when the recommendations were made, so as to determine how long Barbour sat on the applications.

Professor Love-Myers and Reeves also found that based on Mississippi's prison demographics, white prisoners were about four times more likely to be pardoned than black prisoners. See story here.

Mississippi: Program Abolished. Pardon Power Just Fine

While Haley Barbour tours the Nation's media expressing deep concern that his rabid critics will undermine the very Constitution where he once served as governor, the Clarion Ledger reports what most more calm, and intelligent people expected all along: namely that "State prison trusties are no longer working at the Governor's Mansion." From this point foward, prisoners of trusty, or minimum security status "may serve in one of several community work centers throughout the state, as well as in maintenance or office positions in the prisons, depending on their crimes." See story here.

Barbour's Preposterous Whining

Haley Barbour has been given editorial space in the Washington Post, but continues to stick to the ridiculous story line that he is an upright, Christian guy whose admirable behavior has simply been misunderstood by an irrational, crazed mob. He was simply too busy saving lives and comforting the afflicted post-Katrina to consider use of the pardon power. Yes. Yes.

But, for all of his whining, it is perfectly clear that Mr. Barbour 1) neglected the pardon power for eight years as he pondered whether or not to insert himself into the race for the Republican nomination to the presidency 2) that Barbour sat on favorable recommendations made to him by the State's parole board for months, perhaps years 3) that deserving clemency applicants suffered because of Barbour's callous neglect 4) that Barbour could have simply followed the recommendations of the State Parole Board in most of the cases, across eight years, and there would have been no controversy whatsoever. But, by waiting until his last day in office to suddenly have time for Christian mercy (so wildly popular in Mississippi), he cast a cloud of doubt and suspicion over the clemency process and the clemency recipients.

Saunders to Obama: Pardon Marines

Today, Debra J. Saunders of the San Francisco Chronicle is calling on President Obama to grant presidential pardons to the four Marines who were captured on video as they urinated on three corpses. Saunders suggests Obama "spare [the Marines] and their families the ordeal of an extended investigation, mounting legal bills and possibly prison time." Writes Saunders:

Obama could use this episode as a teaching moment about the need for respect - not to mention discretion - in the era of the camera phone. It also is a moment for Washington to consider that these Marines have made sacrifices in service to this country that noncombatants cannot begin to understand. These men have had to carry out the commander in chief's orders on the ground - that's a far more daunting duty than ordering a drone attack that kills the enemy and civilians remotely.

And asks, "Want change?" Her suggestion: "How about answering an act of thoughtless inhumanity with an act of unusual mercy?" See full editorial here

The Pardon Watch List, 2012

OK, here is our first run of the Pardon Watch List for 2012. Please no betting. Here are some  individuals who have 1) expressed interest in clemency 2) been mentioned in media outlets as deserving clemency or 3) are being supported for clemency through assorted "campaigns":

- Clarence Aaron (drug conviction)
- ACORN (voter fraud)
- Weldon Angelos (marijuana) 
- Jim Black (corruption) 
- Barry Bonds (obstruction of justice) 
- Randall "Duke" Cunningham (bribery, tax law violations)
- Edwin Edwards (racketerring) application rejected by Bush
- John Edwards (illegal use of campaign funds)
- Katie Hall (mail fraud)
- Dan Hanks (quite the rap sheet!)
- Ron Isley (tax evasion)
- William Jefferson (bribery, corruption)
- Jack Johnson (violation of Mann Act) not looking good
- Marion Jones (steroids) 
- John Walker Lindh (terrorism)
- Chris McNair (bribery)
- Michael Milken (junk bond king)
- Leonard Peltier (double murder)
- Jonathan Pollard (spying)  
- Tony Rezko (corruption) a "spokesman" has said it will not happen
- George Ryan (corruption)  
- Michael G. Santos (cocaine distribution)   
- Richard Scrushy (bribery)
- Don Siegelman (trading favors for contributions)
- Wesley Snipes (income tax evasion)
- Martha Stewart (conspiracy)
- Michael Vick (conspiracy to operate interstate dogfighting ring)
- Mark E. Whitacre (wire fraud, tax fraud, and money laundering)

See anyone missing? Let us know. Make your case! We might very well add them! Incidentally, we are not keeping score here. But, in the past, the following people appearing on our "Watch List" have received pardons or commutations: Ignacio Ramos, Jose Compean, Charlie Winters, John Forte, Lawrence Hutchins.

Huff Post: Pardon Edwards (John)!

At the Huffington Post, Gary Stager says President Obama "should use his constitutional power to Pardon former Senator John Edwards." We raised the point in jest on May 18, 2011 (see post here). But Stager says he can "think of no case more deserving of executive mercy than" the case of Edwards. In fact, Stager is calling for the mother of all controversial pardons - the preemptive pardon! Such a pardon would "cause prosecutors to drop the criminal campaign finance case" against Edwards "who has "suffered enough in his life" and now has a "life-threatening heart condition." No the "stress of a trial" just wouldn't be right. See Stager piece here.

Delaware: Mercy!

The Associated Press reports Delaware Gov. Jack Markell "has spared the life of a man who was facing execution this week for the 1990 murder of his former girlfriend." Apparently, Markell is not on his way out of office either - take note Haley Barbour! The 27-year old, Robert Gattis, was scheduled to die Friday, but his sentence has been commuted to life in prison without the possibility of parole. Under Delaware law, governors cannot grant such commutations unless a majority of a five-member Board recommends it.

Markell decided not to wait for backlash, then declare himself the victim of harsh criticism (see Haley Barbour). Instead, Markell stated publicly that the decision was among the most difficult he has made as an elected official. He has also recognized the pain that the decision may cause to the victim's family (whom he met with personally - unlike Haley Barbour). But Markell said, after "substantial time" considering the application, and praying, he was simply not "free from doubt," and he just could not allow the execution to go forward.

Governor Markell. A class act. Barbour, even more foolish looking! See story here.

Clueless: Michael A. Lindenberger on Barbour

In this classically tone-deaf editorial at Time, Michael A. Lindenberger further promotes the Police Squad-like script that former Mississippi governor Haley Barbour represents all that is right and has, somehow, become the victim of unwarranted criticism and attack. And, for dramatic effect, Lindenberger professes concern that Mississippians (who are "calling for blood") could "do real damage to an important safety valve in the American justice system."

On the other hand, Lindenberger is not at all concerned that Haley Barbour all but completely neglected this "important safety valve" for eight long years. No, not a word on that. Nor does Lindenberger display even the slightest concern that any of Barbour's last-minute decisions were made in haste (despite all of the missing information in the clemency warrants, the typos, the lack of detail, etc.). Lindenberger says he is concerned about pardons that have the feel of an "unappealable decision" or seem to hide "secrets" from the public. But it doesn't even dawn on him that dumping a huge pile of pardons just before one leaves office (after ignoring the pardon power for eight years) would clearly encourage any thoughtful person to suspect that unappealable decisions had been made in secret.

No, in Lindenberger's not-so-parallel universe, Barbour has done the reputation of the pardon power a great favor ! And Barbour deserves our praise.

Why, even Bill Clinton's most staunch cheerleaders were not so brazenly obtuse.