Revitalizing the clemency process.

• Author: Larkin, Paul J., Jr.
• Position: II. The Disappearance of Executive Clemency B. Possible Explanations for the Decline 4. Justice vs. Mercy through Conclusion, with footnotes, p. 873-916

4. Justice vs. Mercy

   Clemency can be used to ameliorate a punishment that, while permissible in some or even most cases, turns out to be wholly unjust when applied to a specific offender. Jean Valjean is a classic example; (129) statutes imposing mandatory minimum sentences are modern examples. Clemency can extend an offender mercy even when his sentence appears entirely just. (130)

   But there is no consensus with respect to that opinion. Some scholars have argued that justice and mercy are distinct (albeit sometimes confused

   (131)) concepts. (132) Because of that difference, they can be (or at least appear to be) in irreconcilable conflict. Immanuel Kant certainly thought so. He concluded that pardoning someone guilty of a crime is "the greatest injustice" to society. (133) Others have held that opinion too. (134)

   For a President who is concerned about how clemency will appear to the public, that prospect can give him pause. Given the reforms that the criminal justice system has undergone since the Pardon Clause became law, a President could reasonably be troubled by two perceived results of granting an individual clemency. He could decide that extending mercy to a justly convicted and sentenced offender creates an injustice for other offenders in similar circumstances who have not sought clemency, or could give rise to a public perception that some offenders receive favorable treatment because they are fortunate enough to have a lawyer or someone in a position to gain the President's attention. A President who makes the categorical judgment that mercy is unnecessary in a system that, to the extent humanly possible, produces justice in individual cases will be reluctant to intervene in the criminal justice system's operation and will devote to other matters the time that he would have spent making clemency decisions. That fear may explain why George W. Bush, when he was Governor of Texas, declined to commute the capital sentence of Karla Fay Tucker, a woman convicted of pick-axing two people to death, but whom impartial observers believed had undergone a wholesale transformation while on death row. Bush may have feared that granting an attractive white woman mercy would have generated considerable criticism as showing illegitimate favoritism. (135)

   The proper tradeoff between justice and mercy is not an easy one to resolve, philosophically or legally. (136) The issue arises most acutely today in connection with the racial disparity in imprisonment arising from the application of the mandatory minimum sentencing laws to crack cocaine offenders. The lengthier sentences imposed on primarily African-American small-scale crack offenders than on predominantly white small-scale powder cocaine offenders is not due to intentional racial discrimination, but is nonetheless troubling to many people today. (137) The reason is that the disparity could leave the black community with the impression that they are victimized both by the traffic in crack cocaine they witness in their communities and by the federal laws that are designed to address that problem. (138) As Professor Glenn Loury has noted, "Assessing the propriety of creating a racially defined pariah class in the middle of our great cities at the start of the twenty-first century" poses a very troubling problem, asking us to decide not only whether we have just crack cocaine sentencing laws, but also whether we have a just criminal justice system. (139) A President troubled by that disparity could well decide that granting otherwise justified mercy to a large number of white offenders would undermine public confidence in the legitimacy of the criminal justice system by exacerbating the current racial disparity. By declining to extend clemency, the President would, in effect, be choosing the appearance of justice over mercy.

5. The Victims' Rights Movement

   Another likely explanation is attributable to the rise of the victims' rights movement over the last few decades. For most of our history, victims had no role in the criminal justice system other than as complainants or witnesses; like Victorian Era children, victims were to be seen, but not heard. Once organized police forces and public prosecutors offices developed in the nineteenth century, they gained a monopoly over decision-making authority in the criminal process, and shunted victims to the side. (140) Beginning early in the 1980s, however, victims began to assert their right to be involved in a process that began when they were assaulted, robbed, or defrauded. Since then, they have made up for lost time. (141)

   Victims' rights groups enjoy the same efficiencies that other single-interest groups do, (142) but they also have the ability to generate a wealth of public sympathy. That is an enormously powerful weapon in politics, particularly when used in conjunction with contemporary professional media coverage or social media communications. (143) A compelling story about an attractive victim with whom the public can identify is worth far more than policy arguments. (144) That asset has made victims one the rape and murder of a twelve-year-old by a parolee lead to the adoption of California's "Three-Strikes" law by popular referendum). of the most powerful nongovernmental interest groups in the criminal justice and political processes. (145) They have been able to push numerous bills through the legislative halls that directly (146) or indirectly (147) grant victims' rights in the criminal process, and they also have been able to amend state constitutions to guarantee their rights. (148)

   Presidents now must consider not only the effect that clemency may have on the immediate victims of a crime and their families, but also the political fallout from angering the victims' rights movement. (149) As Professor Marie Gottschalk has noted, "Released long-time prisoners do not pose a major public threat, but they do pose a potential risk to political careers." (150) Like other organizations devoted to a single issue, the political strength of the victims' rights movement poses the risk for the President that a clemency grant will anger a large number of voters strongly motivated to express their displeasure at the ballot box. A clemency decision that leads to the release of an offender who commits another offense, particularly one that is violent or whose facts indicate depravity, could generate even more heated and larger opposition by enraging the members of this movement and by generating the displeasure of additional non-movement voters who are sympathetic to its cause. Those results could happen even when the President grants clemency to an offender who did not victimize a specific individual. Parents terrified of the prospect that their children could become addicted to drugs, for example, might treat the large-scale grant of clemency to drug offenders, even if it comes only in the form of the commutation of a long sentence to time served, as a retreat in the "war on drugs" and punish the President or his party at the next election.

   To be sure, not every victim is opposed to extending an offender mercy in a proper case. The new restorative justice movement gives victims an opportunity to meet face-to-face with the offenders who injured them, and, if offenders take responsibility for and genuinely express remorse for their actions, some crime victims may be able to begin to heal from the insults a crime inflicted. (151) If so, they may not oppose seeing the President shorten the term of imprisonment imposed on their wrongdoers. The willingness of some individual victims to see an offender receive mercy, however, does not eliminate the risk that a President faces whenever commuting a sentence that the offender may recidivate after his release, a result that produces one or more new and, it will be argued, needless victims.

   The result is to deter Presidents from exercising clemency in cases where extending mercy is justified on the merits but may be politically costly. In most cases, Presidents see little benefit of any type--electoral, professional, or personal--from extending criminals mercy, and they fear major political blowback if an offender granted clemency commits a horrific crime afterwards. Witness what happened to then-Presidential Candidate Michael Dukakis in 1988. (152) Add in the fact that society today demands perfection; one failure can tar a clemency program that has a world-class success rate. (153) Accordingly, unless the President can generate considerable goodwill from organizations supporting a clemency initiative, he may decide that the potential political harm outweighs the potential human and penological benefit.

6. Presidential Abuses of the Clemency Power

   There is yet another explanation for the disappearance of clemency, one that may best explain the demise of clemency over the last few decades. That rationale is based not on law or policy, but realpolitik: Recent presidential abuses of the pardon power have poisoned the well. (154) For example, President Bill Clinton was twice guilty of that crime. He offered conditional commutations to the members of a Puerto Rican terrorist group, the Armed Forces of National Liberation (or FALN), (155) very possibly to enlist the support of the Puerto Rican community for his wife Hillary's upcoming Senate race and for Vice President Al Gore's campaign to replace him as President. (156) Clinton also used his clemency power promiscuously in his last twenty-four hours in office, granting pardons and commutations the same way that a drunken sailor on shore leave spends money. Clemency recipients were often people (or their representatives) with strong White House connections or who had contributed generously to the President's party or his own presidential library. (157) Clinton's clemency decisions have left a pall over the entire process. (158)

   As a result, when the President does exercise clemency, the public might find it difficult to...