Saturday, December 5, 2009

Newspaper Man Against Pardons

Gary Dickson is the publisher and editor of the Lake County (CA) Record-Bee. And today's issue features an editorial explaining why Mr. Dickson does not "believe" in "presidential pardons, governor commutations or early release programs." Dickson's commentary is pointed, but often without focus. It appears to inform, but actually misleads. He can at least be given credit for writing what many others probably think, but do not actually come out and say.

Dickson asks, rhetorically, "Whatever happened to 'You do the crime you do the time?'" and insists that "it doesn't work that way" in America any more because we "are soft toward criminals." Of course, the pithy rhetorical response to Dickson's question is that "Doing the time went out the window - and rightly so - back when we also tossed out the equally important notion that the punishment should fit the crime." He does not appear to be aware of the fact that mandatory minimum sentences, three-strikes laws and the like have been crippling the judicial systems' ability to tailor punishments to crimes. One has to also wonder how the massive prison population of this country squares with his "soft toward criminals" perspective.

Attempting to make his point (or at least score emotional points) via cop-killer Maurice Clemmons, Dickson fails to note that Governor Huckabee's commutation of sentence did not free Clemmons at all. It only made Clemmons eligible for parole - something Governor Huckabee had no power to grant. This is also notable because Dickson's editorial actually says that he believes in parole!

Why does Dickson object to pardons and commutations of sentence? He says they are 1) too subjective 2) they make a mockery of the judicial system and 3) they are unfair.

PardonPower agrees that the decision to grant clemency has an element of subjectivity about it. It is certainly an act of discretion. But, if we are going to rid criminal processes of subjectivity and/or abolish every aspect of the system which cannot be cleaned of subjectivity, it will be a long dark day indeed. Criminal justice policy is a extraordinary monument to subjectivity! Few public officials have the discretion that state and federal prosecutors have, and their decisions (to prosecute, which charges to file, which charges to press, whether or not to plea bargain and what to bargain, etc.) are certainly the by-products of their subjective points of view. Judges have subjective views of their role in the criminal process, the conduct of the trial and the interpretation of law. Does anyone really need to argue that the testimony of witnesses and the opinions of jurors are subjective?

Dickson makes a half-hearted attempt to define "subjective" as knowing someone, or knowing of their situation. First, we expect that he would not be pleased if pardons were granted without knowledge the situation of the recipient. Second, we suspect the percentage of pardons and commutations granted to friends or relatives of governors and presidents has been small indeed. Dickson knows that as well. We are certain of it. He simply wants to burn down the house to roast the pig.

Do pardons make a mockery of our judicial system? Well, yes, it is possible. It is also possible that a prosecution, or a grand jury investigation, can make a mockery of our judicial system. Why, the judicial system has been known to make a mockery of itself (see the Dred Scott decision, Bradwell v. State of Illinois, Buck v. Bell, Plessy v. Ferguson, etc.) ! Dickson asks, "What message is sent, concerning our system of laws ... when inmates are allowed to go free before paying their full debt to society for their transgression(s)?"

Here is the message Mr. Dickson: ours is a system of checks and balances, not a judicial monarchy. In this country, courts were not created to have the first, last and only word on the law. Woodrow Wilson thought the National Prohibition Act was a dumb idea, so he vetoed it. Congress then overrode the veto and the courts started convicting people for violations. Wilson answered with a record number of pardons, many of them dealing with violations of the National Prohibition Act. Welcome to America, Mr. Dickson. Don't like the rough and tumble of separated powers and checks and balances? Move elsewhere. Otherwise, learn to live with a great American tradition.

Finally, Dickson argues pardons and commutations are "unfair to the victim(s) of the prisoner's crimes and to all of the other prisoners who wind up having to serve their total sentence." Again, we cannot dispute that such can be the case, but, when DNA demonstrates someone is innocent, where is the relevance of these concerns? When the true killer confesses, in what sense should we even care what other prisoners think? When Woodrow Wilson pardoned a man convicted for a triple ax-murder, did it really mean that he somehow owed the same favor to every prisoner convicted of such a crime? Would Dickson seriously argue that? We certainly hope not.

The Supreme Court once noted that the potential abuse of a power is not, in and of itself, a very good reason to get rid of it. Any power can be abused. Assessing whether or not it is worth it to retain a power at least arguably in need of reform requires much more serious analysis than that which has only recently sprung from Mike Huckabee's decision nine years ago. See Dickson's full editorial here.

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