Thursday, December 3, 2009

Pardon Me, Governor

This week saw the likely end of any presidential aspirations Mike Huckabee may have had when a man he released from prison killed four police officers in Washington state. This wasn’t the first time someone Huckabee released went on a murderous crime spree, but it appears to be the final straw. But while many are upset that Huckabee pardoned this guy, this is really only one example of a much deeper problem with the way Huckabee handled pardons. There are some good lessons here.

Pardons have been a part of the justice system since at least ancient Rome. One of the benefits of Roman citizenship was the unqualified right to appeal directly to the Emperor for a pardon. That right exists today in virtually every country and under virtually every system of government.

Before you say, “we should get rid of it, dirty criminals,” consider that there are very valid reasons to allow governors or presidents to hold the power to commute a sentence or issue a pardon. First, sometimes trials are merely political theater, e.g. any prosecution of Bush officials you can think of. Pardons can be used to undo an unfair result in such circumstances or can even be issued preemptively to prevent the harassment associated with such show trials.

Secondly, juries are not perfect. Even recent history is full of examples of people who were convicted because they were the wrong race or they angered the wrong accuser -- the system is very poor at distinguishing real and false accusations. Every day there are more and more scandals of labs mishandling or even faking evidence. There are corrupt or biased judges, judges worried about re-election, prosecutors worried about re-election, prosecutors who set out to make a name for themselves regardless of right and wrong, and defense attorneys who can’t find their rear ends with a map.

And while convicted defendants usually get at least one appeal, appeals often can’t help solve these problems. What most people don’t realize is that appeals deal almost exclusively with questions of whether or not the judge applied the law correctly, not whether or not the facts were decided correctly. Indeed, in most cases, the moment you start talking about facts to an appellate court, they will tell you to stop. The only real exception to this requires you to show that no reasonable jury could have reached the conclusion reached by this jury. . . a nearly impossible standard.

Moreover, many times evidence does not come to light until after the conviction, but getting a new trial based on that evidence is extremely unlikely and difficult.

This is where pardons come in. In instances where there has been a miscarriage of justice and the system does not allow the miscarriage to be corrected, governors or presidents should step in and issue a pardon or commute a sentence. However, these decisions should be rare -- pardons should be issued only after great care and upon a solid basis.

And this is where Huckabee enters the picture. Huckabee apparently handed out pardons like they were candy. In ten years as governor of Arkansas, he issued 1,033 pardons and 163 commutations -- twice as many pardons as the previous three governors combined (507 in 17.5 years). This works out to nearly one pardon every four days. It is clear from this volume alone that Huckabee did not understand the concept. And this is borne out by further details.

Apparently, Huckabee was prone to releasing prisoners at the urging of pastors. Said prosecutor Robert Herzfeld in 2004: “It seems to be true at least anecdotally that if a minister is involved, (Huckabee) seems likely to grant clemency." Rev. Charles Williams told newspapers that he helped win “many, many” clemencies from Huckabee. A pastor who promoted Huckabee among black voters claims he got Huckabee to release John Henry Claiborne, who was sentenced to 100 years for armed robbery.

But pardons should not be a tool of sympathy. Issuing pardons just because you feel sorry for someone or you think they are reformed or you think they are a good person is completely improper. This is the worst kind of judicial activism. In such instances, the governor is substituting their own judgment for the judgment of the people, the legislature, the courts, and the juries. It is the equivalent of a judge saying: “I don’t think this law should apply to you.”

Huckabee also acted at the request of acquaintances: Samuel Taylor (a drug dealer) went to school with Huckabee’s sister; James Maxwell (who killed a pastor) worked at the Governor’s Mansion under a prison-work program; Donald Clerk (thief) had a stepmother on Huckabee’s staff; Robert Arnold (murderer) had a father who was a casual friend of Huckabee’s. This flies in the face of equality under the law and brings us very close to a patronage system.

In 2004, Huckabee commuted the sentence of murderer Denver Witham even after it was revealed that Witham lied on his pardon application by failing to mention some of his prior convictions.

What this shows is a man who believed his emotional instincts were superior to the rule of law, and a man who had no qualms using the power in which he was vested to benefit his friends and their friends.

It is thus no surprise that Huckabee released people who should not have been released, people who were dangerous and went on to commit other crimes. Here are the two notorious examples:

• Maurice Clemmons, whose felony record included a string of aggravated robberies and assaults, was released from his 108 year sentence by Huckabee in 2000. His post-release career included child rape and now the murder of four police officers. Huckabee’s reason for releasing him was as follows:
"If he were a white kid from an upper middle-class family, he would have gotten a lawyer and some counseling. But because he was a young black kid, he got 108 years."
This is cynical, liberal identity politics of the highest order. This is a despicable claim, particularly without proof of unfairness. Moreover, if it is true, then why didn't Gov. Huckabee reform the system? Why did he just commute the one sentence and leave other poor blacks in prison? Incidentally, while in prison, prior to Huckabee’s release, Clemmons had more than two dozen rules infractions, many of them for fighting. He was described by prison officials as hostile and anti-social.

• Wayne DuMond, a convicted rapist, was set free by the Arkansas parole board at Huckabee’s urging. DuMond went on to rape and then murder a mother of three in Missouri shortly after his release. Huckabee denied any role in DuMond’s release, but this denial was refuted by the parole board and members of Huckabee’s own staff. It was also subsequently revealed that Huckabee had met secretly with the board, going so far as to meet without the presence of the stenographer who customarily records all board meetings. Huckabee knew DuMond’s wife.
Let’s hope this becomes a lesson to other governors that pardons should not be used on a whim. And let’s hope the voters realize that a person who places themselves above the law has no place in elected office.


BevfromNYC said...

This is why the Governor of Texas no longer has the privilege of commuting sentences or pardoning prisoners and hasn't since the '70's. See, one more reason to move back to Texas...Viva la Tejas!

AndrewPrice said...

Bev, All told, I think having the power to issue a pardon is an important final check on a system that can go very badly wrong, but it does get abused, as in this case.

BevfromNYC said...

I only bring it up really because Bush always got flack from liberals for not pardoning criminals when he was Governor. They wouldn't understand that he couldn't. They just wanted to believe that he was mean.

That aside, I agree with you. Perhaps there should be very narrow guidelines regarding pardons for violent criminals or crimes especially against children.

I never really warmed to Huckabee anyway.

AndrewPrice said...

Bev, I totally agree that there should be standards.

What drives me crazy about the liberal thinking on pardons is that they look at someone and say, "wow, he seems kind of nice sitting there in a suit in his best manners, we should pardon him." They never think about the consequences or the victims.

Huckabee would not have been my choice either. Far too often he took very liberal stances and that concerned me about his judgment. He seemed far too happy to have the government intrude into our daily lives and our wallets.

LawHawkSF said...

Andrew: Wow! I was prepared to give him the benefit of the doubt, since I didn't have all the information you just provided. Thanks for setting me straight. I wouldn't have voted for him in any primary anyway, but this clinches it.

Let me throw another state glitch into the mix here (particularly since Jerry Brown may be our next governor). The governor of California has the power to commute a death sentence to life without possibility of parole. Bad enough. But then he also has the power to commute that sentence to anything he wants, including a full commutaton or pardon. It's a hole that needs to be filled, though I also agree that the power must remain in corrected form for those very rare occasions where it is genuinely warranted.

AndrewPrice said...

Lawhawk, My first instinct was that this was unfair as well. Almost all governors pardon people and it's usually done after an investigation by a legal office results in a report that concludes that a pardon is warranted. If the guy then goes on and commits a crime, it's hard to blame that on the governor.

But then I started looking into this and it was actually kind of stunning. This sounds like something Jerry Brown would do, honestly. I also found, interestingly, that there are a lot of prosecutors who actually campaigned against Huckabee because of this particular issue.

StanH said...

I always liked Huckabee, he seems a decent enough fellow, and man can he speak extemporaneously - - I guess his training as a Baptist minister. From your article it would appear that he was using his pardon powers like jury nullification, or because it feels good. This will definitely be his Willie Horton (Dukakis pardon). He’ll get pounded on this morning, noon, and night.

AndrewPrice said...

Stan, I think that Michelle Malkin already called this his Willie Horton moment today (or yesterday).

He seems nice enough, and he is a good speaker, but this really calls into question his judgment as a governor.

Some people are saying this could be the reason that he implied this weekend that he won't run for President.

Joel Farnham said...


I thought Huckabee was just a little bit too nice. I didn't know he was a bleeding heart liberal.

This has destroyed his aspirations for higher office. No way will any conservative organization help him now.

Tennessee Jed said...

I wonder how is job at Fox will fall out. I enjoyed when he had James Burton on, but doubt he had much of an audience. This surely won't help.

AndrewPrice said...

Joel, I didn't know any of this about him either until I started looking into this issue. I know there were questions about his tax record, though honestly I never looked into what those were, but this was a surprise.

And I think you're right, I think this is the end of his conservative support.

AndrewPrice said...

Jed, That's a good question. In the end, I doubt Fox will abandon him so long as he has good ratings -- which I don't know if he does or doesn't.

It's always hard to predict how things like this will play out.

CrispyRice said...

I'm with Bev - I never much cared for Huckabee. I won't be sad to see him ride into the political sunset. I suspect he was quite interested in increasing the power of the government as long as it was "his" way, and this sort of use of pardons only reinforces that.

This article also reminded me, Andrew, of how much I enjoyed your early articles discussing the legal system. It's good to get insight from people who know how it works.

AndrewPrice said...

CrispyRice, Thanks. I may do a few more legal articles in the future -- just been kind of busy debunking all of the policies Obama keeps dropping on us.

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