Wednesday, December 9, 2009

Clemency Considerations

Laura Dean, at the American Prospect, worries that the reaction to Mike Huckabee's commutation of the sentence of Maurice Clemmons (or the media's coverage of the commutation) "may deter other governors from granting clemency at all." But Dean is also disturbed by some distinctions which are made in Radley Balko's recent piece for Reason Magazine (full text here).

Balko makes the point that most clemency decisions take the form of pardons granted to persons who have served their time, taken care of associated fines and fees, shown evidence of rehabilitation and/or integration into the community and, as such, seek only to have their rights restored. In such circumstances, clemency does not appear to be so much as a check or balance with respect to the other branches of government, as it does an act of mercy.

He then addresses the use of clemency in the scenario of a commutation of sentence. To Balko's way of thinking, if a commutation of sentence is based on the argument that a sentence is unfair, disproportionate, etc., then the quality of that argumentation should be judged on its face, without reference to anything else. That is to say, presidents and governors who make such decisions are not responsible (or should not be held responsible) for the future actions/behaviors of the recipient. After all, those actions/behaviors were not present at the time of the decision, are largely unknowable and - by the presence of a good argument - entirely irrelevant.

If, however, a commutation of sentence is based on the argument that the recipient is a changed person, has been rehabilitated, is a new person, etc. , Balko argues the agent of mercy should be held responsible for the subsequent actions/behaviors of the recipient. PardonPower agrees with Balko and believes the point is obviously relevant to any fair and serious minded assessment of Huckabee's decision re Clemmons.

This standard appears to bother Dean, however, who says rehabilitation "should play more of a central role in our prison system than it currently does" because, in our legal system, punishments "exceed the severity of their crime with regularity." The "systematic" problem of "over-sentencing" (brought on by “3 strikes” laws and "mandatory minimums") has created such a gap between judges and prisoners that arguments relative to rehabilitation may constitute the only hope for many "who have fallen through the cracks in the criminal justice system."

We would suggest that Balko has no intention of discrediting the rehabilitation model, or even discouraging its use. He is simply noting that it is not the proper model for assessing the quality of executive decision making when clemency has clearly been exercised for other reasons. See Dean's blog entry here.

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