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November 30, 2009

How will Mike Huckabee clemency grant to suspected cop killer impact crime and justice debates?

As this CNN article explains in its morning coverage of a still-developing crime story, former Arkansas Governor Mike Huckabee has a notable place in backstory of a suspected cop-killer:

The suspect in the fatal shooting of four police officers kept authorities at bay early Monday -- seven hours after a massive manhunt tracked him to a house in an east Seattle neighborhood.

Authorities had been looking for Maurice Clemmons in connection with an "ambush" Sunday morning at a coffee shop near Tacoma in Pierce County. Four officers -- three males, one female -- died in the attack. Authorities early Monday started identifying Clemmons as a suspect, rather than as someone wanted for questioning, a change that they did not explain.

About 8 p.m. Sunday, police received word that Clemmons had holed up in a home in the Leschi neighborhood. Police blocked off streets and asked residents to stay inside with their doors locked.

Clemmons is a convicted criminal with a long rap sheet who had a 95-year prison sentence commuted in 2000 by then-Arkansas Gov. Mike Huckabee, said Pierce County sheriff's spokesman Ed Troyer. Huckabee, a Republican presidential candidate in 2008, is considering a run for president in 2012. "Should [Clemmons] be found responsible for this horrible tragedy, it will be the result of a series of failures in the criminal justice system in both Arkansas and Washington state," Huckabee's office said in a statement Sunday night.

It perhaps goes without saying that this high-profile event, like the infamous Willie Horton ads two decades ago, could further contribute to giving all clemency grants a very bad name and likely will make governors and presidents even more skittish about how they use their clemency power. Of course, maybe this is how it should be if governors and presidents are seriously considering granting clemency regularly to defendants with a risk profile that seems as significant as the defendant's in this tragic case.

November 30, 2009 at 09:21 AM | Permalink

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Comments

"Huckabee cited Clemmons' young age -- 17 at the time of his sentencing -- when he announced his decision to commute the sentence, according to newspaper articles."

Really? 17? Florida is banging its panhandle against the wall right now.

Posted by: . | Nov 30, 2009 9:46:19 AM

sounds like something out of a cowboy movie- thanks for reporting on it.

Posted by: Criminal Solicitors liverpool | Nov 30, 2009 10:10:52 AM

You gotta love Huckabee's attempted evasion: He didn't have beans to do with it, it was all the "system."

Right. Only it was the system that had this brutal criminal in jail, and Huckabee (perhaps with the aid of others) who let him out.

I would love to see those who have been campaigning for clemency now admit that the process needs to be examined, not for excessive callousness, but for truly brain-dead indulgence.

Somehow I think think I'll be waiting a long time. I guess I'll know in a while.

Posted by: Bill Otis | Nov 30, 2009 10:30:53 AM

I wonder whether there was a religious angle... it seems like having a conversion and having some evangelicals go to bat for you wouldn't be a bad clemency strategy with a governor like Huckabee. All speculation at this point I guess.

Posted by: Anon | Nov 30, 2009 10:47:30 AM

Huckabee has been criticized for years over the clemency decisions he made as governor. Hopefully this will serve to keep him out of any future presidential races.

Posted by: Soronel Haetir | Nov 30, 2009 10:52:54 AM

Anon --

One of the reasons offered to commute Karla Faye Tucker's death sentence was that, in her years on death row, she had "come to God." Fortunately, this hokum didn't work, and she was executed.

She got to death row by repeatedly plunging an axe into her ex-husband. According to her own account, with each swing of the axe, she had an orgasm.

Posted by: Bill Otis | Nov 30, 2009 11:00:05 AM

Soronel --

This will be a big stumbling block for Huckabee. It might not be terminal in a Democratic primary, but things will be different in a Republican primary.

And in other news.............If I might ask, how did you, a small business owner, take an interest in criminal law and sentencing? I'm all for it, but it's unusual.

Posted by: Bill Otis | Nov 30, 2009 11:05:08 AM

If the cop killer turns out to be this guy, which we don’t yet know, I certainly agree that it is a disaster for everyone involved, including Huckabee. But before we begin writing broadsides against the pardon power in general, a couple of points to put this in perspective.

First, hindsight is always 20/20. In fairness, we have to assess Huckabee's decision based on the info he had available to him at the time the decision was made. In Arkansas, commutation is typically used as the functional equivalent of parole. In this case, the defendant was serving essentially a life sentence for a series of mostly property crimes committed as a juvenile, for which he'd already served 11 years. His release was recommended favorably by the Arkansas Board of Parole and Huckabee accepted their recommendation. On the face of it, the decision does not look remarkable. Parole authorities do this thousands of times per year. Also, the defendant was not simply released on time served, as in the typical commutation case, but rather was released subject to parole supervision. It is therefore a bit misleading to say that Huckabee granted him "executive clemency," if that is understood in the sense that clemency operates at the federal level. It would be more accurate to say that he was released on parole.

Second, the defendant's history of violence, both before the convictions for which he was paroled and during his incarceration is unclear. He did apparently have convictions for robbery and possession of a firearm, and there was some troubling behavior during his trial, e.g., allegedly threatening a judge. All this should have given serious pause about releasing him, to be sure, but what we don't know is how he behaved in prison. If (and I grant you that it’s a big if) he behaved himself for a decade or more in prison, the conclusion that he wasn't a continuing danger to the community doesn't look nearly as bad.

Third, the prosecutors in Arkansas should not get a complete pass here, even if they did oppose his initial release. According to press reports, he committed additional crimes in Arkansas while under supervision, for which his parole was violated, but the charges were later dropped because of procedural mistakes by the prosecutors. This should at least temper the self-righteous chorus of "I told you so."

Fourth, the authorities in Washington state are most immediately to blame that this guy was in the community. It had become increasingly clear that his mental state was questionable, to say the least, and he had had several serious run-ins with law enforcement this year. In May, he punched a police officer in the face and was charged with seven counts of assault and malicious mischief. He was released and sometime thereafter was charged with child rape. At that time, "[p]rosecutors in Pierce County were sufficiently concerned about Clemmons' mental health that they asked to have him evaluated at Western State Hospital. Earlier this month, on Nov. 6, a psychologist concluded that Clemmons was competent to stand trial on the child-rape and other felony charges, according to court records." Remarkably, he was then granted bail, despite his lengthy criminal record, violent behavior, and apparent mental instability.

I realize that all of this is likely to be lost in the public uproar, if this guy turns out to be guilty of this terrible crime. It does not follow that we should throw the proverbial baby out with the bathwater. At the very least, "brain-dead indulgence" strikes me as a bit presumptuous.

Posted by: Anon | Nov 30, 2009 11:06:02 AM

The point, anon, is that no one this would have happened had Huckabee not commuted the sentence. His blaming of others is completely unseemly and disrespectful to the victims. Much as I didn't support Mike Dukakis for president, at least he had the guts to acknowledge his decisions and face victims' families (IIRC, he bluntly told them, I understand your view, I don't agree with it). Huck's buck passing is thoroughly unpresidential. Moreover, that he has company in this travesty doesn't absolve him for his own bad judgment.

Posted by: federalist | Nov 30, 2009 11:13:36 AM

federalist,

I don't dispute that it was Huckabee's decision that resulted in this guy's parole in 2000, and that but for the commutation, he would still likely be in prison in Arkansas. As a point of clarfication, Prof. Ruckman points out on his blog that the commutation merely made him parole eligible, but the actual release decision was made by the parole board, which had recommended the commutation in the first place. Thus, it is perfectly accurate to say that Huckabee and the board share joint responsibility for the release.

In hindsight, it turns out to have been a tragically mistaken decision. No argument there. My point was merely to try to assess the decision from an ex ante perspective. Moreover, this sort of outcome could happen any time a prisoner is released. The only way to guarantee that is doesn't would be to imprison every prisoner for LWOP, and I don't think anyone advocates that.

Posted by: Anon | Nov 30, 2009 11:25:36 AM

Anon --

What accountability should there be for those, Huckabee and perhaps others, who put this hoodlum back on the street?

I hear all the time that prosecutors who hide exculpatory evidence should be held accountable (and I agree, they should).

What should the accountability be here?

Posted by: Bill Otis | Nov 30, 2009 11:41:29 AM

Bill,

Deliberately withholding exculpatory evidence is arguably a crime and a serious ethical violation. In my view, it should result in disbarment, at the very least. In the absence of corruption (i.e., quid pro quo), a bad clemency decision should be punished politically, at the ballot box, even if it was made in good faith. If this guy turns out to be the killer, which as I've said several times we don't yet know, Huckabee's political career is in all likelihood finished. I have no quarrel with that result. If you can't stand the heat, get out of the kitchen.

You are certainly entitled to excoriate Huckabee’s bad judgment, and I’m not sure you’re wrong. I’m simply going to withhold judgment until the facts are in, and I’m going to assess the merits of his judgment based on what he knew at the time. You would expect no less if I was second-guessing one of the thousands of discretionary decisions you made while a prosecutor, some of which presumably didn’t turn out as you hoped.

Posted by: Anon | Nov 30, 2009 11:55:11 AM

Bill Otis,

I find law in general fascinating because the rules are entirely arbitrary. I have read every SCOTUS opinion published starting with 502 US. I will freely admit there are plenty of topics I don't find all that interesting, ERISA being a great example. I will also freely admit that I don't remember all of those cases or even a majority, only that I have in fact read them.

I enjoy criminal law mainly because I would invoke so many changes if I were allowed free reign over it.

As for SL&P I enjoy that the blog has a fairly small dedicated community.

It also helps occupy the copious free time that my medical condition forces on me.

Posted by: Soronel Haetir | Nov 30, 2009 12:05:52 PM

Anon --

It is true of me, as of every human being, that not all my decisions turned out as I hoped. However, not a one of them was a but-for cause of four of my fellow creatures being gunned down. If it had, I would expect to be held legally accountable for it.

I agree that Huckabee should (and very likely will) pay a political price for this. Perhaps my question was insufficiently precise, so permit me to re-cast it: What accountability should the LAW exact on Huckabee (and perhaps others) for letting this guy out?

It strikes me as grossly unjust that four policemen in Washington should pay such a hideously high price for Mike Huckabee's foolishness, while Huckabee escapes with no legal sanction whatever and, to the contrary, makes $10,000 a pop on the lecture circuit. Do you agree?

Yes, it is theoretically possible that Huckabee acted in good faith. It is also more than theoretically possible that he acted out of crass political calculation, namely, to position himself as a "compassionate" guy against what he knew would be the charge in his forthcoming presidential campaign that he was a hard-right, evangelical extremist.

But it doesn't make any difference either way: Clemmons had served 11 years of a 95 year sentence. Huckabee, thinking (correctly) that HE wasn't going to be Clemmons' future victim, cut the sentence by 84 years. If Huckabee had shown even a modicum of restraint, much less respect for the judicial system, he could have cut the sentence by a mere 74 years instead of 84. Had he shown even that much sense, the four cops would be alive today.

Posted by: Bill Otis | Nov 30, 2009 12:18:09 PM

Bill, are you really suggesting that Huckabee should be liable for money damages here?

Posted by: federalist | Nov 30, 2009 12:23:24 PM

Bill Otis,

Just as members of Congress are immune for what they say in the legislative chamber (and sometimes beyond, but that is another matter), I would expect that executives are immune from legal liability for their clemency decisions. They remain politically liable, which may not be satisfactory but without such a system clemency would be unlikely to exist at all.

As for Huckabee there is little evidence that he is hard right on numerous issues. I don't blame the people who refer to him as Huckster.

Posted by: Soronel Haetir | Nov 30, 2009 12:23:51 PM

federalist --

I am not making a suggestion. I am asking a question. Those who have been campaigning for more and more clemency seldom acknowledge that, if successful, their wishes will have a price that only other people will be required to pay.

In this Washington case, we see what that price can be.

To me, it is woefully insufficient to say, "Oh shucks, this is a real tragedy; I guess it was a bad mistake," and then, not missing a beat, GO RIGHT BACK to the clemency campaign, shouting at the top of their lungs that the system is too harsh, and STILL refusing to say what price the law should exact when precisely the opposite is shown to be the case.

Why is it that only other people, like these cops, should have to pay the price? Shouldn't the price for fatal error be borne by those who created it?

Posted by: Bill Otis | Nov 30, 2009 12:41:34 PM

Bill,

I can't agree with your speculation about Huckabee's motivations here. There is no plausible incentive for a governor "to position himself as a 'compassionate' guy" toward criminals, especially if he has presidential aspirations. If anything, its the other way around, which is precisely why the clemency power has fallen into relative disuse in recent years. I don't think there is any evidence to support that theory, either generally or in this case. It is much more likely that he was trying, however fallibly, to fulfill his gubernatorial obligations as they relate to parole.

Secondly, on no recognized theory of moral or legal responsibility is Huckabee remotely accountable for the murder of these four persons. His commutation decision was a but for cause of the event, but so were the decisions of many others, as I pointed out above. The ultimate responsibility, of course, lies with the killer, assuming he is mentally competent. In terms of government actors, the proximate cause is the decision of the Washington state authorities to grant bail to a mentally unstable person who'd been charged with assaulting a police officer and raping a child.

Thirdly, you don't really know whether any of your decisions as a prosecutor was a but for cause of a subsequent crime of violence. For example, suppose you prosecuted someone who you correctly believed to be a serious criminal, say, a large scale drug trafficker. Because of his extensive cooperation, you filed a 5k motion to reduce his sentence, which was legally and properly granted. As a result, the defendant got out of prison earlier, perhaps years earlier, than he otherwise would have. After being released, he proceeds to commit a violent crime, i.e., murder, rape, etc. In that hypo, your decision to file the 5k motion is a "but for" cause of the subsequent crime. But under no circumstances would you be held either morally or legally responsible for the crime. I am not suggesting that anything like this actually occurred in your career, but it surely has occurred many times. That is one of the inherent dangers of relying on cooperating witnesses.

If it would be unfair to make a prosecutor liable in these circumstances, then the same holds for a governor making a clemency decision, in the absence of evidence of corruption.

Posted by: Anon | Nov 30, 2009 12:49:26 PM

Soronel --

Thanks for the info about why you follow this blog. It is indeed pretty interesting; it has a variety of real characters.

On the question about immunity: I'm quite sure you're right, that Huckabee has legal immunity. The question is whether he SHOULD have it. When the result is this bad, the victims this numerous, the loss this irretrievable, it seems to be unjust that that he skates off without so much as an official reprimand. This would be particularly true if it were to be shown that he knew at the time, but brushed off, the fact that Clemmons was, and for some good long time had been, a violent man.

Posted by: Bill Otis | Nov 30, 2009 12:55:25 PM

I'd be interested to know how many people who are granted clemency get out and never commit another crime. I imagine this horrible event will trigger a call for an end to commutation and clemency in Arkansas specifically and in the US generally. But I also imagine that the vast majority of inmates granted clemecy never get into serious trouble again. Where did I hear that bad facts make bad law?

Posted by: AC | Nov 30, 2009 12:56:09 PM

It would be difficult enough to remove the federal pardon power that I don't see that happening as a formal matter. It will just continue to fall into disuse, forgotten and dusty.

Bill Otis,

Given the number of intervening events I see no possibility that Huckabee would be held legally liable even if he were not immune for such decisions. Especially given the apparent fact that he did not order the guy released only made him parole eligible which the parole board then followed up on.

I do believe Huckabee's clemency decisions were made in good faith, just extremely misguided. He seemed to believe that turning to a particular form of Christianity was a sufficient condition for reform. Whether that indicates that overly religious people are unfit for elected executive office I am not sure.

Posted by: Soronel Haetir | Nov 30, 2009 1:06:39 PM

AC --

"Where did I hear that bad facts make bad law?"

The only thing we know for sure is that bad facts plus bad judgment has now made for four funerals.

Is this really the time to go back to the "clemency-is-wonderful" campaign? Do you think it might be appropriate to at least wait until they're buried?

Posted by: Bill Otis | Nov 30, 2009 1:06:45 PM

Bill,

Now I think you're getting to the bottom of it. I'm not trying to put words in your mouth and please correct me if I'm wrong, but it seems to me that the real cause of your outrage is the assumption that the murders were reasonably foreseeable at the time the commutation was granted. If that were the case, if the defendant had been a raving lunatic and Huckabee nevertheless facilitiated his release from prison, then your outrage would be entirely justified. That is precisely the assumption that I am calling into question. Now that the crime has occurred, it's very easy to say that he should have seen it coming, but I'm not so sure that is a fair conclusion, no more fair than holding a prosecutor liable because his cooperating witness turns bad. Whether Huckabee should have seen this coming depends on a host of factors that we don't yet know, such as the specifics of the defendant's prior criminal acts, his behavior in prison for 11 years, the recommendations of prison and parole officials, the parole practices in the state, etc. These are the sorts of factors relied on by parole officials every day. At the end of the day, you may be correct, but I think you should keep your powder dry.

Posted by: Anon | Nov 30, 2009 1:16:52 PM

Bill --

I don't see anything in my post referencing a "clemency is wonderful campaign," but your proclivity to erect strawmen is nothing new.

I was simply posing a question, and engaging in discussion. Perhaps you could tell me what the acceptable parameters in this discussion are, or perhaps we should all wait "until they're buried."

Posted by: AC | Nov 30, 2009 1:18:15 PM

Anon --

First, let me thank you for your analytical and non-persona oriented discussion. This is refreshing.

Second, while it is true that, most of the time, public officials do not benefit from clemency and pardon decisions, that was not true of Huckabee. He probably thought that none of it would come back to haunt him. For the most part he was right, but "for the most part" doesn't quite wash in light of the weekend's developments.

Like another shrewd but sleazy Arkansas governor, Huckabee was aware of the advantages of "triangulation." Although most governors would not benefit from portraying themselves as harbingers of compassion, Huckabee had figured out that he was the exception. His right flank was protected; it was the center that needed shoring up.

Third, that other people also counted as but-for causes of Clemmons' release does not relieve Huckabee of blame; it merely shows that others were also to blame. I entirely agree, however, that the real blame goes to the killer. It is for this reason that I ridicule defense-oriented arguments that Criminal X isn't really responsible because The System could have done something to help his situation, but failed. Adults of sound mind are responsible for their own lives and acts. That said, however, Huckabee remains a but-for cause of these murders. There's just no way around it.

Fourth, the notion that I am responsible for four murders, or any murders, is somewhere between incorrect and bizzare. As you all but concede, there isn't a shred of actual evidence to suggest, much less prove, any such thing.

I expected during my public career, and now, to be accountable for what I do and say. That is one reason I use my real name here. My father taught me that I should stand behind what I say and do, and as in most things, he was right. I think others, including Huckabee, should stand behind what they say and do as well. I also believe that when their actions have horrendous consequences, a price should be paid, and not just a reduction in his speaking fees from $10,000 to $8,000.

The most important fact is this: We have heard here in recent days the repeated, and often angry, claim that clemency isn't granted nearly enough. Seldom or never have the voices making this argument acknowledged that their proposed course of action will have costs, and still less have we heard any full, honest description of what those costs will be.

Now we have an episode showing that the CURRENT, supposedly too-harsh system, has the most horrendous kinds of costs. The result is not any actual circumspection or re-trenchment by the pro-clemency side, but instead the characterizing of these murders as just one of those things that happens every now and again. If it provides even a hint of a reason to tighten the criteria for clemency, I have yet to hear it.

My question remains: Why should these four dead cops bear the brunt of other people's gross errors? Shouldn't we, at the minimum, tighten up the system to reduce the likelihood of such errors?

Posted by: Bill Otis | Nov 30, 2009 1:45:02 PM

AC --

"I don't see anything in my post referencing a clemency is wonderful campaign,' but your proclivity to erect strawmen is nothing new."

Is it not the case that you believe clemency, as a form of forgiveness, is a virtue, and is not granted often enough?

Posted by: Bill Otis | Nov 30, 2009 1:55:27 PM

bill: "Like another shrewd but sleazy Arkansas governor, Huckabee was aware of the advantages of "triangulation.""

me: I knew it was only a matter of time before the right found a way to blame Clinton for this :P

Posted by: virginia | Nov 30, 2009 2:01:12 PM

by the way, i was the first anon and am not related to the second (more detailed and thoughtful) anon. but thanks for letting me know about karla faye tucker's orgasms. never a dull moment around here.

Posted by: Anon No. 1 | Nov 30, 2009 2:32:51 PM

Bill says:

"Is it not the case that you believe clemency, as a form of forgiveness, is a virtue, and is not granted often enough?"

That's the problem with putting words in other people's mouths; you're often incorrect. No, that's not the case. As a matter of fact, I have no idea if clemecy is granted too much, too little, or just the right amount. I believe there are cases in which clemecy is appropriate and cases in which it is not. I don't have enough data to make a judgment about what the right amount of clemency is. In any event, it's totally subjective. I'm sure I'd grant it more than you; I'm also sure there are people who would grant it more than me.

My original query, which you ignored, was what fraction of people granted clemency go on to commit serious crimes in the future. My guess is that it's low. This is not a call for more clemency, but a question that might help inform the debate.

Posted by: AC | Nov 30, 2009 3:23:44 PM

Ginny --

I don't blame Clinton for being shrewd. And I don't blame Huckabee for learing from Clinton. But I do blame him for this disastrous, indeed fatal, decision to release Clemmons.

Do you think this multiple murder provides a reason to examine clemency criteria to understand how they could be so lax that something like this could happen? Or are you of the view that, hey, you can't get everything right, so the newly bereaved families will just have to tough it out?

Posted by: Bill Otis | Nov 30, 2009 3:55:24 PM

Bill,

This is Anon No. 2 again. If I didn't make it clear before, let me clarify that I never suggested or implied that you were responsible for any crimes whatsoever. Indeed, the gist of my hypothetical was precisely the opposite: even if (hypothetically) a prosecutor (such as yourself) made a good faith decision that shortened a defendant's sentence that, in turn, was a “but for” cause of a subsequent crime, he would not be responsible for the subsequent crime. My point was simply to show how capacious the notion of "but for" causation is, which explains why it isn't typically sufficient, by itself, to establish fault. I agree that we should be accountable for what we do and say, but even civil liability usually requires something more, such as reasonable foreseeability.

Moreover, the implications of your position are quite far reaching. Do you really mean to suggest that the members of the Arkansas board, the Arkansas prosecutors who failed to timely file charges, the Washington state judge who granted Clemmons' bail request, the defense lawyer who argued for bail, the jailer who let him go, the bail bondsman who facilitated his release, etc, etc, all share moral responsibility for the murder of four persons? If so, how would you apportion the blame? Wouldn't it be arbitrary from a moral point of view to single out Huckabee? (I should add, by the way, that I don't have a political ax to grind here – I tend to vote Republican but have never thought much of Huckabee and would never have voted for him in any event).

As for the clemency process generally, like AC, your criticism does not reach me. While I do think the criminal justice system is too harsh, that we incarcerate too many people for too long, and that executive clemency is vastly underappreciated, I've never advocated clemency for violent offenders. The community always has a collective right to protect itself against violence. On the other hand, I can't see the future either, and if your tolerance for risk is zero, then logically we'd move to a system of preventative detention, wouldn't we? Why wait for actual crimes to be committed if lives are at risk? And why bother with all those pesky Constitutional rights, which stand in the way of incarcerating potentially violent people? I know that you are not advocating any of those things, but the question is why you wouldn't.

Finally, let me say that having been on the inside of clemency decisions in another jurisdiction (hence the anonymous posts), it is inconceivable that Huckabee and the Arkansas Parole Board did not consider the possibility that Clemmons might reoffend. They appear to have been wrong, but I am reasonably certain they were not willfully indifferent to the risk. I suspect they are even more upset about it than you are. I’ll make you a deal: in the absence of contrary evidence, I will grant you a presumption of good faith for prosecutors, if you will grant me the same presumption for clemency and parole decision-makers. At present, the murders themselves, however tragic, do not prove that Huckabee knew or should have know that Clemmons would commit a violent crime nine years after being released from prison.

Posted by: Anon | Nov 30, 2009 3:56:26 PM

AC --

"My original query, which you ignored, was what fraction of people granted clemency go on to commit serious crimes in the future."

I don't know. I'm sure the recidivism rate isn't zero. That means we know right now that there will be future victims.

What would you say to them? You got unlucky, but that's life?

Now let me ask you the question I asked virginia: Do you think this multiple murder provides a reason to examine clemency criteria to understand how they could be so lax that something like this could happen?

Posted by: Bill Otis | Nov 30, 2009 4:02:40 PM

Anon --

On the largely ignored (by me) theory that I shouldn't devote the entire day to this thread, I can't respond to everything you say. Very briefly:

I agree it's wrong to single out Huckabee. But he certainly stands out among all the people you mention. He actually granted the clemency; he's the guy who made himself a presidential candidate; and he's the one putting out a statement blaming the "system" while refusing anything approaching even an apology.

The fact that it's difficult to apportion blame doesn't make blame vanish. To the extent that the consequences of blame are, or would be, "far reaching," the consequences of these murders are even more far reaching. I don't believe these four cops get to be not dead at some future point.

I don't advocate preventive detention because, being a partisan of a free country, I want courtroom-quality proof of misbehavior, and misbehavior that society deems serious enough to warrant imprisonment, before I go along with putting someone away. Psychologists' evaluation are not proof. They are guesses, often bought-and-paid for guesses. (And no, to answer your possible next question, I never introduced or relied upon a psychological evaluation when I was a prosecutor. They might not be voodoo exactly, but close enough).

"I’ll make you a deal: in the absence of contrary evidence, I will grant you a presumption of good faith for prosecutors, if you will grant me the same presumption for clemency and parole decision-makers."

Sold, with the caveat that it is, as I think you're implying, a rebuttable presumption. That is, accountability could be demanded if it is determined that the official knew, or upon reasonable inquiry ought to have known, that his decison would create a significant risk of harm to others.

Posted by: Bill Otis | Nov 30, 2009 4:58:52 PM

Bill: "Do you think this multiple murder provides a reason to examine clemency criteria to understand how they could be so lax that something like this could happen?"

me: I'd at least like to think that society has enough intelligence to wait for something more substantial than "suspicion" or an accusation before making policy decisions. While making policy decisions based on one case is wreckless, making policy decisions based on the suspicion of one case is downright stupid.

Blaming Huckabee for this is also stupid even if the suspect is guilty - you might as well blame his mother for not having an abortion since had the suspect never been born he never would have commited those murders (you know, assuming he actually did). As far as I can tell Huckabee is a real jerk who has used his alleged Christianity for personal and political gain, but blaming him in any way for this crime is simply unfair.

Posted by: virginia | Nov 30, 2009 5:22:05 PM

Ginny --

"As far as I can tell Huckabee is a real jerk who has used his alleged Christianity for personal and political gain, but blaming him IN ANY WAY for this crime is simply unfair." (Emphasis added).

But for the clemency, Clemmons would not have been on the street to commit these murders. Thus to say that Huckabee cannot fairly be blamed "in any way" for this episode is incorrect. As the thoughtful Anon has noted, the more interesting question is how to apportion the blame between Huckabee and other actors, not whether blame exists.

We are often told in the death penalty setting that the unearthing of a case showing the execution of a single innocent person should be enough to end capital punishment, period. In this Washington episode, we know that freeing Mr. Clemmons, via clemency, led to the deaths of four innocent people. Despite that, I am not calling for an end to clemency. I am simply asking if you think this multiple murder provides a reason TO EXAMINE CLEMENCY CRITERIA to understand how they could be so lax that something like this could happen.

You don't directly answer that question, instead pointing out that Clemmons might be guiltless. The currently available facts suggest otherwise. But humor me for a minute anyway, and address the question on the assumption that Clemmons in fact did it.

Should we not take this as a wake-up call to examine what we are doing in these clemency deliberations that is so lax it could produce these horrendous results?

Posted by: Bill Otis | Nov 30, 2009 7:12:51 PM

"Maybe this is how it should be if..."
{quoting Doug above} if Governors and Presidents are worried about future elections.
I am more inclined to vote for Huckabee because he showed some compassion. Wish he was a Democrat.

Now that the cops have killed Clemmons we will never know the whole story. Maybe the cop killer is still out there.

Posted by: mpb | Dec 1, 2009 12:07:40 PM

Bill: "Thus to say that Huckabee cannot fairly be blamed "in any way" for this episode is incorrect."

me: you are subtly modifying what I said - I think its perfectly fair to blame Huckabee for acting in a weaselly manner and not acting like a good leader who takes the blame even in a case (like this one) where he is not to blame due to indepedent intervening events.

Posted by: virginia | Dec 1, 2009 2:00:59 PM

mpb --

"I am more inclined to vote for Huckabee because he showed some compassion. Wish he was a Democrat."

Me too.

Oh, and could you remind me of who wound up paying the steepest price for this "compassion"?

"Now that the cops have killed Clemmons we will never know the whole story. Maybe the cop killer is still out there."

Your specific evidence for suggesting the killer is still out there is...............what?

Posted by: Bill Otis | Dec 1, 2009 7:31:26 PM

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