Wednesday, April 24, 2013

Alabama: Deciphering the Scottsboro "Pardon"

The Scottsboro Nine
It makes perfect sense that, as the pardon power dries up at the state and federal level, symbolic pardoning might become all the rage. Symbolic pardons free no one. They relieve no punishment. They solve no real - much less "pressing" - problem. Yes, they might very well have the potential to make positive, much-needed, profound public statements about law and criminal justice. Pardoning O. Henry, for example, might educate Americans on a point that certainly needs to be taught these days: people can change, rehabilitation is real, mercy can be both deserved and earned! Every person who violates the law is not Willie Horton!

More typically, posthumous pardons are truisms (reinforcing already well-accepted points/notions) or merely making those who grant them feel better about themselves and - more importantly - endearing them to potential blocs of voters who are, evidently  quite easily impressed. Why, if politicians could feel the same passion about real pardons - pardons for deserving people, who are actually alive, and suffering - the world would be a much, much better place. Once upon a time, the Federalist papers argued there should be "easy access" to such forgiveness. That hasn't really worked out too well.

But, again, there is potential for good in pardoning dead people. Indeed, if such acts amount to all of the courage that a President or Governor can muster, then so be it. If the only regard for the mercy Alexander Hamilton argued was absolutely necessary in any system of justice is to look favorably upon someone who has been dead for a half century, or two, then so be it. It is a far far better thing to feign relevance in a system of separation of powers and checks and balances than to make no effort at all. 

In recent days, headlines all over the Nation's newspapers are reporting that Alabama Governor Robert Bentley has "pardoned" the Scottsboro boys, wrongfully convicted of rape back in the 1930s. Gov. Bentley must be loving it. Especially since - in the real world - the pardon power is administered by the State's Board of Pardons and Parole. Bentley has never pardoned anyone as Governor of Alabama. Safe to say he never will.

No, Bentley merely signed a House Joint "resolution" by the Alabama State legislature. Like Bentley, the men and women of that body must be beaming with pride, in the glow of headlines. But, guess what, the legislative branch in Alabama does not have the authority to grant pardons either. No, the Resolution merely provides a "formal exoneration" for the Scotsboro boys. But who on earth has ever heard of that? An "exoneration?" Doesn't make good press copy. "Pardon." Much easier ... more exciting!

Rosa Parks
One can see similar goo at Jurist, which reports that, in 2006, the Alabama legislature "pardoned" Rosa Parks (link here). Indeed, at the time, the New York Times reported a bill "would pardon" Parks (see link here). NBC more accurately reported a bill was signed "to pardon" Parks and that it "could" lead to an actual pardon (link here). Three years later (in 2009), CBS News reported Alabama was "closer" to a Rosa Parks pardon, by having "set up a process" for "requests" (link here). You can see the resulting "process" in State law here. Oh, and, to date, Rosa Parks has not been pardoned!

Similarly, the State legislature's "exoneration" of the Scottsboro boys follows an Act (real law) which established general procedures for the consideration of posthumous pardons by the State's Board of Pardons and Parole - again, the people who really have the pardon power in the State but, admittedly, no constituents to hypnotize. Or, if you would prefer language directly from the governor's office:
Dr. Ruckman: Alabama law prohibits any Governor from granting a pardon or paroling a convicted person in this state. The Alabama Board of Pardons is the sole authority on such and answers only to the Alabama State Legislature. The Governor’s clemency powers extend only to death row inmates awaiting execution ... Denise Randall,Office of Governor Robert Bentley (Constituent Services Senior Specialist)
In sum, a body with no authority to pardon resolved to exonerate, and asked the Governor (who also has no authority to pardon) to sign on. The resulting headline: "Governor Pardons Scottsboro Boys." The underlying text: "Your Alabama legislator encouraged him to do so. Don't forget it dear voter!" The real world result: The boys are still not pardoned. The educational benefit of the entire affair: ...

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