Commentary: Pardon you, Haley
This article first appeared in the St. Louis Beacon, Jan. 18, 2012 - "For as in absolute governments the king is law, so in free countries the law ought to be king; and there ought to be no other."--Thomas Paine
I teach a course in the Department of Criminology and Criminal Justice at a local university. One of the things my students have taught me over the years is that people are largely oblivious to the pardoning authority enjoyed by most chief executives.
Students are invariably stunned to learn that the president or a governor can override the verdicts of judges and juries by summarily erasing a criminal conviction, thereby setting the guilty free to reoffend with a clean record. Further, the exercise of this prerogative is a plenary decision, meaning that it does not have to be justified nor is it subject to further review. That sort of unbridled power just doesn't seem American -- because it isn't.
When the founders drafted the Constitution and the Bill of Rights, they borrowed freely from their English forefathers. Grand juries, warrants, indictments are all mentioned without ever being defined. There was no need to specify what these terms meant because the writers were simply incorporating features of the familiar British system into their own.
One aspect of colonial governance they sought to preserve was the king's power to forgive criminals. Article II specifically grants the president authority to "pardon offences against the United States, except in cases of impeachment."
Presidential pardoning power is obviously broad but limited to federal crimes. We operate under the doctrine of dual sovereignty: the United States is a sovereign and the individual states are quasi-autonomous sovereignties within it. Pardoning power for state crimes thus rests with the governor of the state in which the offense occurred.
Various state constitutions provide pardoning authority in different fashions. Nine states have taken the decision out of the governor's hands and vested it in independent boards established for that specific purpose. The rest are patterned on the presidential model with varying constraints imposed from place to place.
In Missouri, for instance, pardon applications must be submitted to the Board of Probation and Parole for "investigation and recommendation." The governor, however, is not bound to follow the board's advice and his power is not limited by it.
These arcane matters are normally of concern only to bored undergraduates in political science classes. Historically, pardoning authority has been judiciously invoked. Perhaps its most controversial application was Gerald Ford's pardon of Richard Nixon -- a decision that I found to be outrageous at the time, but that I now feel was probably the right thing to do.
Recently, however, outgoing Mississippi Gov. Haley Barbour elevated the issue of pardons from its usual obscurity and transformed it into a national debate. Before leaving office, Barbour granted clemency to 215 persons who had been convicted of a variety of crimes under state law. Most received full pardons, including several convicted murderers who were serving life sentences.
A convict who receives a commutation benefits from a lessening of punishment. A death sentence, for instance, may be commuted to life in prison or a life sentence reduced to 20 years. Even if the inmate's sentence is reduced to time already served, he is still a convicted felon upon release and can still be subject to court supervision once freed.
But a person granted a full pardon has his slate wiped clean. He now enjoys the same rights and privileges as any other citizen and is answerable to no one. Federal law prohibits persons convicted of a felony from possessing firearms. That's no problem for the pardoned criminal, however, because his conviction has been erased by executive fiat.
Barbour anticipated the restoration of firearms rights. Indeed, among the reasons he cited for the pardons was his desire to allow the freed killers to "hunt and vote." One potential new gun owner in Mississippi is David Gatlin, who formerly worked as a prisoner-trustee at the governor's mansion.
The last time Mr. Gatlin is known to have had a gun in his hand, he used it to shoot his estranged wife, Tammy, in the head while she held their two-month-old child in her arms. He's one of the freed murderers that the ex-governor would "let my grandchildren play with," so I'm sure he's a fine fellow but he may have problems with impulse control.
Suppose for one horrific minute that Tammy was your daughter. Nothing will ever fill the gaping hole that her killing has ripped in your heart but rather than seek vengeance on your own, you relied on the due process of law to extract justice.
You sat through the interminable court proceedings, dutifully attending every hearing, relived her murder at trial and took the stand to give a victim-impact statement where you explained to a jury of strangers what the loss of your daughter meant to you.
Ultimately, you left the courthouse exhausted but assured that your child's killer would never again be free to harm another. Now you learn that a fat-headed political hack decided to celebrate his retirement from public life by returning the murderer to your community. "Honey, guess who I ran into at the gun shop today?"
Of course, all this would have been palatable had the governor brought Tammy back as well. Unfortunately, even the ancient power of kings has its limits.
M.W. Guzy is a retired St. Louis cop who currently works for the city Sheriff's Department. His column appears weekly in the Beacon.