Wednesday, January 5, 2011

Getting Out of the Self-Created Corner

In an era of booming prison populations and governmental overreach, executives (both state and federal) essentially paint themselves into a nasty little corner when they fail to exercise the pardon power on a regular basis, throughout the term, if not with some frequency. The consequences of such behavior are predictable and yet, to no small degree, almost completely avoidable. Governor Schwarzenegger's recent commutation of sentence for the son of a former state politician is a classic example of the problem and its symptoms. It also leads one easily enough to a very  logical solution.

First, let it be said that the sons and daughter of politicians deserve justice, and fair consideration, as much as anyone else. The same goes for a governor's (or president's) political allies, supporters, donors and party leaders. An individual should not be exempt from any possibility of clemency simply because they share enthusiastic support for the same party or political views as a governor, or president. That simply flies in the face of basic notions of justice.

However, when executives neglect the pardon power for long periods of time and establish a reputation for outright stinginess, it is reasonable enough to expect that any leniency in the direction of such persons will be heavily scrutinized and criticized - and deservedly so. If Schwarzenegger had granted 200 other commutations of sentence to persons whom he believed received sentences that were "too harsh," then he could at least make a respectable argument that he has a genuine concern for such circumstances. But, when he exhibits precious little interest in such matters, generally and specifically, and then moans about a supposedly overly-severe sentence given to the son of a person who is a business partner with his chief political adviser ... and during the last hours of his administration ... it stinks to high heaven, impugning his judgement, his sense of fairness and, sadly enough, the public's perception of clemency.

It is, of course, true that Schwarzenegger's commutation would have drawn fire regardless. There are always going to be critics. But it is his profound general neglect of the power that gives the most traction to (and even encourages) such criticism and almost completely undermines the ability of those who are politically neutral and more open to persuasion to buy into his public justifications.

The solution is simple, and does not involve restricting the governor's (or the president's) power one bit. The solution is regular, consistent use of the pardon power throughout the term. The general effect would be threefold 1) The public will be educated to the fact that the typical act of clemency is (or at least can be) without controversy 2) There will be less pressure (political and personal) on executives to grant pardons and commutations at the end of the term, and less need for executives to cave in to such pressure 3) "Controversial" pardons will be be less so, because there will be a greater sense that executives are not simply reserving clemency powers for their friends and those with extraordinary access, at the last minute, when no one can be held accountable. Instead, the perception can be that pardons are for all kinds of individuals and the "notables" (who, again, are as deserving of justice and fair consideration as anyone else) are simply a few data points in a big pile.

But, what about the lack of a political benefit? the potential expenditure of political capital? the awful possibility of repeat offenders? the besmirching of potential aspirations for higher office? Once again, all of these things would be less of a factor with regular use of clemency. There is a world of difference between a repeat offender in a total of 99 pardons (ask Tim Pawlenty of Minnesota) and a repeat offender among hundreds and hundreds of clemency recipients (ask Jennifer Granholm of Michigan, who has set records for clemency grants and there are, as of yet, no repeat offenders on the radar - that's right nothing for anyone to gripe about).

Prolonged neglect of the pardon power, followed by last-minute grants, some of which may be given to  individuals who can be tied, one way or another, to the executive simply does not work. It is poor policy and practice. It degrades the significance of clemency, frustrates democratic processes, inflames partisans and schools the public into thinking politicians are, in fact, just as corrupt as they imagine!

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