Tuesday, June 29, 2010

Jan Brewer's "Personal" Justice: A Real Creature Feature

Occasionally (some say not enough, others say all too often), an execution takes place in the United States. These episodes are often accompanied by a flurry of last-minute appeals to courts, clemency boards and/or governors. When it is clear that the final call will be made by the governor, one can just about always expect some kind of formal statement, explaining the decision to allow the process to go forward without interruption.

These public statements are the byproduct of external and internal forces. Polls have consistently shown that a majority of Americans favor the death penalty. Governors are certainly aware of this. So, however grim the circumstances, most of them probably feel comfortable issuing what they know will be widely publicized statements which tap into the potentially beneficial stream of majoritarian politics.

But there are other reasons why governors issue such statements. While the public may learn of notorious crimes and criminals through local news reports, it is less likely that attention will be given to appellate processes and clemency hearings, processes which often take many years. Gubernatorial statements serve not only to highlight the consequences of crime but also to educate citizens - at some basic level - as to why the state is carrying out a particular execution, and to provide some measure of assurance that the decision to do so, in a particular case, is not arbitrary, that fairness and justice are clearly in the mix. Of course, state laws do not require any of this. Sensitivity to the concerns of the citizenry, the fundamental obligations of leadership and basic notions of justice compel it.

Now consider the recent antics of Arizona Governor Jan Brewer. Last month, a reporter for KPHO Phoenix approached Brewer in an entirely professional manner to ask about the clemency application of William Macumber. KPHO had been trying to speak with the Governor personally for weeks, but was met by unanswered messages and cancelled appointments. Brewer stopped and listened patiently to questions about her decision to overturn the unanimous recommendation of the State’s Board of Executive Clemency in Macumber’s case without providing any explanation. The Governor then said the matter was “very personal” and that she preferred not to comment at that time. She the turned on her heels and walked away, very much like someone who didn’t want to provide a substantive explanation because they didn’t have to do such a thing. Amazingly enough, here in the 21st century, it is true. Brewer does not have to explain anything, to anyone.

Yet the truly frightening thing is that the Board did not unanimously recommend a pardon for Macumber because they concluded that he is a “new” man, “rehabilitated, has “found religion” or has started a really cool prison book club that distracts otherwise unruly prisoners. The Board - whose members are all appointed by the Governor (!) - believes William Macumber is innocent.

Which is to say, Brewer wants to keep a man in prison who is considered “innocent” by a State entity specifically created to make such judgments. And she doesn’t want to give any explanation to the Board, or anyone else, other than to say it is a “personal” matter. I wonder how many Arizonans would be willing to accept thirty plus years of wrongful imprisonment for a family member as a “personal” thing? The Board considered the evidence in detail, heard testimony, deliberated and spoke with one voice. But we are told the Governor’s wildly peculiar response is nobody’s business? What is it Jan Brewer knows that the Board does not know?

Last week, the New York Times sought an explanation, but the best the Brewer administration could offer up was a "spokesperson" who was willing to say Governor Brewer carefully reviews clemency applications and considers “real and important concepts of public safety, justice and mercy” in the process. That is, the Brewer administration doesn't have a clue about the necessity of specificity discussed above. While Brewer’s critics well understand she has no legal obligation to justify her utterly bizarre behavior, we also understand that any future good faith attempt at explanation (however long or short, or general or specific) is very likely to leave many unsatisfied. And, if being Governor is all about posing, smiling, getting face time on late-night cable news while defying the feds, being popular with the locals and avoiding the profound ugliness of a wrongful conviction, then the point would be well taken.

But the most basic notions of justice should have compelled Brewer to explain her decision to reject the Board’s unanimous recommendation – in a very specific way - the second she decided to do so. And the longer she waits to give the friends and family of William Macumber the explanation they obviously deserve, the more deficient and putrid her sense of justice seems. Clemency is rare enough in Arizona. A unanimous recommendation for clemency on the basis of innocence is downright freakish. For Brewer to leave a man in prison simply because she can, is borderline despicable. PardonPower finds it utterly amazing that her gross negligence in this matter hasn't gotten half of the attention the media gave Micke Huckabee in the case of Maurice Clemmons.

And, of course, it should be at least mildly disconcerting to thoughtful Arizonans that this is the same person who will be the chief executive, the titular conscience of Arizona law enforcement in the application of the State’s forthcoming immigration law. Perhaps Arizonans should be afraid, very afraid!

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