Saturday, March 1, 2008

Context: Buckley, The Death Penalty and the Pardon Power

Many of William F. Buckley's Firing Line debates and regular television programs were dedicated to the topic of the death penalty. And there was certainly little doubt as to where he stood on the issue. In an August 1989 editorial Buckley wrote, "My own opinion is that too few, not too many, people are being executed in America."

But, if you look through the body of Buckley's work, especially his editorials, you cannot help but see that Buckley's view of the death penalty included an emphasis on the need for the intelligent use of the pardon power. For example, in the above mentioned editorial he also wrote:

But it makes very good sense to be as certain as circumstance allows that the right people go to the death chamber. Hang one man, prove the next day or year that he was in fact innocent, and you set back the case of the death penalty by a generation, with the result that hundreds who should be hanged eventually go back on the streets, and thousands who should live are killed by those who have every reason to scoff at the threat of the death penalty.
These attitudes were frequently displayed when Buckley discussed particular cases that had attracted his interest. He found it "strange," for example, that there was "very little commotion in the press" with regard to the impending execution of Ronald Monroe (in Louisiana) and wondered, "Where are the men of conscience?" He added:

Injustice is written into the human order and cannot be expunged from it. But such injustices as are the result of sheer inattention are injustices compounded.
In the case of Gary McGivern (New York), Buckley was annoyed that Vice President George Bush had made an "indefensible" criticism of Mario Cuomo for merely allowing any consideration of the possibility of clemency. McGivern had been convicted under the felony murder doctrine and had served as an "exemplary" prisoner for 18 years. Buckley wrote:

It has been said before, but it is worth repeating, namely that the Republican Party, in order to stress its devotion to law and order, oughtn't to deem itself insensible to the appeal for clemency.
Buckley also defended the decision making of Judge John Noonan who postponed the execution of the very notable Robert A. Harris. Buckley observed that, while "popular resentment" at "endless judicial review of cases" was a "legitimate complaint," the thing that guided Judge Noonan's decision making was the same thing that guided Mother Teresa to ask the Governor of California to extend clemency to Harris. Noonan believed Harris' "rights under the Constitution [had] have been violated " since the was a "substantial showing" that the jury was not able to hear from competent psychiatrists.

While he stopped short of making an explicit recommendation in the matter, Buckley was clearly intrigued by Karla Faye Tucker's plea for mercy from the Governor of Texas George W. Bush. Buckley's editorials of December 8, 1997, entitled "Dark Night for George W." suggested Tucker's appeal presented "a helluva problem." He noted Tucker was supported by the detective who arrested her, the prosecutors who sentenced her, a sister of one of the murder victims, Amnesty International, the Pope and Pat Robertson. Buckley also offered that her very troubled life (featuring drug use at a very young age and prostitution) was "contingently relevant." The strident manner in which Buckley eventually defended (or presented arguments to justify) Bush's ultimate decision (to do nothing) was more the result of attempts by inconsistent critics to make additional political hay out of the episode.

Of course, Buckley's consideration of the pardon power reached beyond death penalty cases. It is probably not well known that, in 1981, he supported clemency for Abbie Hoffman, who sold $36,000 worth of cocaine to undercover police officers in 1973 and was a fugitive for six years before turning himself in and receiving a three-year sentence. Buckley also supported clemency for Patricia Hearst saying that, if Jimmy Carter dd not see the "transcendant injustice" of her sentence, then it was only because he "affected not to see it." As far as Buckley was concerned, "the institution of clemency was established for such difficult cases." In 1988, Buckley argued that Ronal Reagan should pardon Col. Oliver North and Adm. John Poindexter, sparing them from the stress of a "political lawsuit" that was "a fascinating (but historically trivial) legal carnival." By 1989, Buckley was disappointed by the President's "sheet neglect" in the matter. And, of course, he supported a pardon for Scooter Libby saying, "Mr. Bush will have to exhibit the courage for which he is loved and hated, by doing the right thing, and letting Mr. Libby get on with life."

Buckley wrote that Jimmy Hoffa "probably deserved" the commutation of sentence that was granted by Richard Nixon. On the other hand, although I am not completely positive about it, it is my recollection that Buckley opposed clemency for Junius Scales.

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