Thursday, December 31, 2009

The Top Ten Clemency Stories of 2009

 10: In April, Senator John McCain announced that he would, once again, push for a presidential pardon on behalf of the long-dead boxer, Jack Johnson. Bill Clinton was the first president to ever issue a posthumous pardon (to the first African-American graduate of West Point, Henry Flipper). With good reason, every administration previous to Clinton refused to even entertain such applications. George Bush granted two posthumous pardons (one to Charlie Winters, the other unintentionally). But toward the end of this year, the Obama administration indicated that it would return to the policy of using the pardon power for the more practical purpose of providing real relief for those who are living (no offense to to the shallow, desperate, well-after-the-fact and purely symbolic politics of Congress, the least popular branch).



9. Of course, the year began with more fascinating revelations regarding the role that Eric Holder played in wildly controversial clemency decisions of the Clinton administration (FALN, Marc Rich, etc.). The context, amazingly enough, was the confirmation hearing for Holder, who was nominated to the position of U.S. Attorney General! Holder allowed that he may have made some mistakes, and could possibly have done things better, but that he also learned from his experiences in such a way that what might otherwise have patently disqualified any other nominee actually rendered him better prepared for the job! After the confirmation, clemency experts expressed immediate concern as to whether or not a Holder-led Department of Justice would have any interest at all in maintaining a functioning, respectable clemency program. See item 6, below.

8. In February, two former U.S. Pardon Attorneys (John R. Stanish and Margaret Colgate Love) published an extraordinary piece in the National Law Journal which declared the Nation's program of federal executive clemency "broken" and with "disastrous results." Love and Stanish masterfully described the Office of the Pardon Attorney in the Department of Justice as "a place where petitions for presidential mercy go to die." The problem? A "chronically dysfunctional pardon advisory system in the Justice Department, a system now dominated by prosecutors that produces few favorable recommendations."

7. In June, Virginia Governor Tim Kaine exercised clemency in the case of the so-called "Norfolk Four." The men (who were sailors) were convicted of the rape and murder of a Navy wife. Three of the four were still in prison at the time. The fourth was released in 2006. 13 jurors from two trials later called for a full pardon for all four, joining a dozen former judges and prosecutors, four former Virginia attorneys general and 30 former FBI agents. Kaine granted a conditional pardon, which allowed the three men to leave prison, but emphasized that he did so not on the ground of innocence. The clemency applications of the men were supported by both the New York Times and the Washington Post.

6. In November, President Obama, who campaigned on a theme of "Hope and Change," actually passed Richard Nixon in the list of presidents who were the slowest to grant a first pardon or commutation of sentence. To date, Obama has not granted a single pardon or commutation of sentence and only four other presidents have been slower: Washington, Adams, Clinton and Bush. Obama's apparent kinship with the previous two administrations is even more baffling given the fact that Democrats, presidents with training in law and those who have come to the White House without experience as a governor have generally been more generous with pardons. Throw in the fact that George W. Bush did not hand off a wildly controversial program plagued by late-term pardons and one might very well have expected an instant, regular, vital clemency program out of Obama. So far: No Hope. Little Change. Perhaps the best clue was the fact that Obama and Attorney General Holder did not even bother to choose a new U.S. Pardon Attorney. They are sticking with George W. Bush's choice for the job!

5. Almost every media outlet in America gave way to a seemingly new brand of pardon speculation which might deserve some snappy descriptive identification. George W. Bush granted precious few pardons and commutations of sentence. And no one had any real indication that he would change, suddenly, before he left office. That is, unless he was going to pull a Bill Clinton! With just that much to go on, the most respected networks and commentators speculated, suggested, hinted, joked that George W. Bush would generally pardon everyone in the Nation, maybe even himself! In many instances, the speculation game would follow right on the heels of breaking news of a possible indictment, or the mere announcement of an investigation! The net effect, of course, was to 1) sensationalize 2) smear the president and 3) cast disrespect on the pardon power. It will be interesting to see if the same irresponsible musings will accompany the end of Obama's administration.

4. In January, just before he left office, President George W. Bush commuted the prison sentences of two former border patrol agents (Ramos and Compean) who shot a fleeing suspected drug runner in the buttocks. The prosecutor in the case was a close friend of the president, but many members of Congress supported the clemency application. The case also generated a world of talk radio and newspaper commentary.

3. In April, Illinois Governor Pat Quinn announced that he would make a good faith effort to address the backlog of thousands of clemency applications left by his predecessor, Rod Blagojevich. Quinn, true to his word, then started chipping away at the pile. It was a refreshing recognition that clemency powers are important and the applicants deserve an up or down decision on their application within a reasonable amount of time. President Obama, take note.

2. In July, George Lardner, an associate at the Center for the Study of the Presidency and Congress and a former Washington Post reporter, scored a smashing victory in court. Lardner submitted a Freedom of Information Act (FOIA) request to the Office of the Pardon Attorney (OPA) in the Department of Justice (DOJ), Lardner requested the identities of all individuals whose requests for pardons and commutations of sentence weredenied by George W. Bush. The OPA declined to deliver any such list (although it maintained one) citing FOIA Exemptions 6 and 7(C) as the basis for withholding the information. Lardner appealed the denial, waited a while and then filed suit. A U.S. District Court judge noted that a listing, such as the one Lardner requested, would not include "substantive, personal information" and observed that the very high rejection rate for applications could not reasonably "stigmatize." Indeed, rejection/failure is the "norm" in this context. In addition, the judge noted that the OPA has a "long-standing practice" of "freely" disclosing the fact of denial (a "public act") if it receives an inquiry about any individual by name. In this sense, the court declined to compare a listing of failed pardon applicants to the "rap sheets" of criminal defendants or private communications which reveal the actual substance of decision making in the clemency process.

1. In some instances, the media makes the news. And, as we see it, the number one clemency story of 2009 was the media's ghastly "reporting" in relation to former Arkansas Governor Mike Huckabee's decision making in the Maurice Clemmons case. Clemmons shot and killed a group of police officers in Washington and it was soon discovered that, ten years earlier, he was incarcerated in the state of Arkansas. As the "how did he get out?" spotlights raced through the skies, they fell on a man with high name recognition, Mike Huckabee. Headlines announced that Huckabee had "pardoned" Clemmons and/or "freed" him from prison. When it was explained that Huckabee had 1) never pardoned Clemmons 2) that Huckabee had only commuted Clemmons' sentence to make him eligible for parole 3) that Clemmons' commutation was recommended unanimously by a board and supported by a judge, that 4) Clemmons' parole was granted by another decision making body, Huckabee was accused of shirking responsibility! The episode revealed that the bias toward sensationalism can, at time, transcend both logic and ideology, and that, in the stable of eye-poppers, for whatever reason, very few images sell like that of a politician tossing violent criminals back into the streets so as not to interrupt their careers in rape and pillage!

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