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.