Tuesday, March 5, 2013

Johnson v. O. Henry: One of These Things is Not Like the Other

Harry Reid, John McCain, William "Mo" Cowan and Rep. Peter King are back at it again. Today, they have called on the President to pardon the late boxing champion Jack Johnson.

Reid argues Johnson was a "legendary competitor who defined an era of American boxing and raised the bar for all American athletics." McCain says the pardon would be a way of "celebrating [Johnson's] legacy of athletic greatness and historical significance.” Cowan says Johnson was "one of the great African-American athletes." King says Johnson was a "trailblazer and a legend."

But, more than all that, the members of Congress argue Johnson was "unjustly tarnished by a racially-motivated criminal conviction" and a posthumous pardon would be a "small, meaningful step toward acknowledging his mistreatment before the law." In addition to being the victim of "racial persecution," Jackson was convicted via "unjust laws."

This blog has, at times, been critical of posthumous pardons generally - preferring that the DOJ/OPA actually function to benefit living persons (something they very rarely do) - and the Johnson application in particular. In my recent application for a posthumous pardon of O. Henry, the U.S. Pardon Attorney, Ronald Rodgers, actually referenced these criticisms, although they were nowhere referenced in the formal application!

With this post, we invite the Pardon Attorney to a more fair and accurate understanding of our work. We, for example, have consistently held a very high preference for clemency on behalf of the living, as opposed to the dead. But the underlying premise of that paradigm is that pardons ARE being granted for the living. When pardons for the living are as rare as bull's eye lightening strikes, it might just be time for the President (and his DOJ / OPA) to take baby steps (with posthumous pardons, as do some state governors).

Second, each time we have been critical of the Johnson application, we have also held that, if posthumous pardons are going to be given out, there are several people who are probably more deserving than Jack Johnson. Among them, Charlie Winters (who was pardoned),  Samuel Mudd, Ellis H. Parker and O. Henry.

Finally, unlike the Johnson application, the O. Henry application makes no claim whatsoever that O. Henry's conviction was erroneous, or unfair (a mighty high claim). Instead, the application is based on the very solid argument that O. Henry was both rehabilitated and accomplished. In that sense, an O. Henry pardon would be much more relevant than a Johnson pardon - because, today, the typical recipient of federal executive clemency has served his/her time (if they ever had any), and they are pardoned for minor offenses long ago. In addition, they have passed the scrutiny of FBI background checks, documenting that they are law-abiding, productive members of society. Increasingly, the public needs to be aware of this, and the President is the one who can educate them - with or without the assistance of the DOJ / OPA.

Clearly, a Johnson, or O. Henry, pardon would be "symbolic." A Johnson pardon would remind Americans of racial injustice, something most Americans are surely aware of, and a point already emphasized in the pardon of Henry Flipper. In sum it would tell us what we already know, for the 1,00th time. An O. Henry pardon would be much more meaningful, and significant. Most persons who have read O. Henry are not even aware that he spent time in prison. The teachable moment would be obvious. The President who quotes O. Henry and describes America as a place where there are second chances, could use the pardon power in a manner that could educate and inform. See story here.

No comments:

blogger templates | Make Money Online