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June 22, 2009

The telling failure to make serious use of the clemency power in Maryland

This Washington Post article, headlined "O'Malley Puts the Brakes on Clemency in Md.: Governor Prepares to Clear 7, His First Such Cases, and Remains Far Behind Ehrlich's Pace," highlights how a governor who has been eager to end the death penalty has not show eagerness to use his clemency power. Here are some details:

During his four years as governor of Maryland, Robert L. Ehrlich Jr. (R) drew national notice for the aggressive use of his executive clemency powers, pardoning or commuting the sentences of 249 convicts, including several serving life sentences for murder. His successor, Gov. Martin O'Malley, has quietly but abruptly reversed that trend.

Nearly 2 1/2 years into his term, O'Malley is preparing to grant his first pardons, to seven people convicted years ago of such crimes as petty theft and disorderly conduct. Those cases were advertised Friday, as required by law, in a legal newspaper. O'Malley's only previous acts of clemency were releasing two prisoners who were in advanced stages of AIDS. Both were required to return if their conditions improved.

O'Malley (D), a former mayor of Baltimore, said he views clemency requests as less pressing than his other public-safety priorities, including expanding a state DNA database used to solve crimes. "I suppose my orientation from being a big-city mayor and having seen the violence on our streets is more of a tough-on-crime orientation," he said. "You probably won't see me doing as many of these as past governors."

In an interview, Ehrlich declined to comment directly on O'Malley's approach but said he received little criticism for his more expansive approach. "The criminal justice system has flaws, and it's the job of the governor, when appropriate, to correct those flaws," Ehrlich said. "When you try to make the system better, you don't get much criticism."

The state's last Democratic governor, Parris N. Glendening, was loath to commute life sentences, a view O'Malley said he shares. Glendening did pardon 134 former convicts during his eight years in office....

In Maryland, Ehrlich drew praise from some unlikely sources for his prolific use of clemency powers. Shortly before leaving office in January 2007, Ehrlich issued a statement citing the number of "good people who make mistakes in life" whom he had been able to help.

During his tenure, Ehrlich granted 228 pardons to former convicts and rejected applications from 211 others. Perhaps more noteworthy were 15 commutations of sentences of current prisoners, including five serving life sentences for murder.... Ehrlich also released six prisoners for medical reasons....

O'Malley, an opponent of capital punishment, said he would review death penalty sentences "on a case-by-case basis" with the possibility of commuting them to life without parole. He did not elaborate, but aides said such decisions are not likely to be made anytime soon.

Maryland has had a de facto moratorium on capital punishment since December 2006, when the state's highest court ruled that lethal injection procedures had not been properly adopted. O'Malley reiterated his plans to introduce new regulations "shortly," now that the legislature has failed to heed his call to repeal the death penalty in each of the past three legislative sessions....

Governors have typically pardoned more former convicts in the latter part of their terms, but O'Malley is well behind the paces of Glendening and Ehrlich. By the end of his second year in office, Glendening had approved 25 applications. By the end of his second year, Ehrlich had approved 63, a figure that grew to 127 by the end of his third year.

The number of applications pending in Maryland has grown to 663, up from 274 when O'Malley took office, according to parole officials. Regardless of how many of those are approved, O'Malley said his administration should do a better job of addressing the backlog. "People at least deserve an answer," he said.

I call Governor O'Malley's failings here "telling" because this story represents, in my view, how anti-death-penalty advocacy distorts and harms other parts of the criminal justice system.  I think it is fair to suggest that Governor O'Malley, because he has been investing so much time, energy and political capital on eliminating the death penalty in Maryland, has been unable or unwilling to invest needed time, energy and political capital on his clemency duties.

June 22, 2009 at 09:40 AM | Permalink


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Doug, I think you overstate your case a bit. It certainly is possible to be anti-DP but penurious when it comes to clemency. But you're definitely right about one thing--the death penalty has an importance out of proportion to its reality. Personally, I have a hard time understanding what people get so worked up about, even if they are opposed to capital punishment.

I think Dems have an allergy to clemency etc. They think they'll get nailed to the wall on being "soft on crime", which most of them are--only Nixon could go to China.

Posted by: federalist | Jun 22, 2009 11:44:33 AM

Doug, I really think you need to re-evaluate how you present this recurring topic.

Governors and presidents do not have "clemency duties." They are not duty-bound to give clemency to anyone. It is an option, not an obligation. Choosing not to exercise it is therefore not a "failing."

Posted by: Marc Shepherd | Jun 22, 2009 11:48:54 AM

Unless, Marc, you believe that having the power to do something creates an obligation to use it well and wisely.

Posted by: federalist | Jun 22, 2009 11:57:59 AM

I agree with federalist on this one. It takes a Nixon to pardon or commute. Since Willie Horton, the dems have been emasculated. It's a shame. With 200 people exonerated from death row based on DNA, and withi millions in prison, imagine the many others folks convicted of non-capital felonies who deserve a commutation or even a pardon. The pardon and communation powers are there to be used in appropraite cases. In general, see Testimony of Justice Anthony Kennedy before the Senate Judiciary Committee February 14, 2007 in response to a question from Senator Whitehouse: "Our sentences are too long, our sentences are too severe, our sentences are too harsh... [and because there are so few pardons] there is no compassion in the system. There’s no mercy in the system.”0, video link accessible at Professor Berman’s Sentencing Law and Policy Blog of Feb. 15, 2007)

Posted by: Michael R. Levine | Jun 22, 2009 12:36:42 PM

"With 200 people exonerated from death row based on DNA"

Better check your facts.

Posted by: federalist | Jun 22, 2009 12:53:11 PM

I am not sure what Federalist is arguing for. Doug's approach is practically always statistical, emphasizing that a particular executive is using the pardon power less frequently than a predecessor. But that begs the policy question of what constitutes wise use of that power in the first place.

Posted by: Marc Shepherd | Jun 22, 2009 1:28:10 PM

marc, not really arguing, just pointing out that one can have the view that clemency/pardon power was given to be used wisely, and yes I agree that different people will have different opinions, but it's certainly not nuts to call pardoning a duty of the governor.
Doug never thought of the possibility that Ehrlich took care of most of the deserving ones leaving not much for O'Malley.

Posted by: federalist | Jun 22, 2009 1:36:22 PM

Marc: I share federalist's view that having the clemency power creates a "duty" to use this power wisely and with a keen sense of one's responsibility to serve the ends of liberty and justice within a well-functioning representative constitutional democracy. It may be "wise" from a crass political standpoint for a chief executive to never exercise the clemency power, but a failure ever to grant (or even tend to) clemency requests does not (in my view) show me that a governor or Prez has a sense his (or her) responsibility to serve the ends of liberty and justice.

The Framers gave this power to the Prez with virtually no formal checks/balances because they sensibly recognized that a residual power to show mercy might always be controversial and yet also played a critical role in serving the ends of liberty and justice. Until the last 25 years, all Presidents realized this fact and they used their constitutional clemency authority fairly regularly. Similarly, O'Malley's predecesor appreciated that he had a duty to be attentive to help correct some of the criminal justice system's flaws and also to give some persons a second chance.

The telling and troublesome irony here is that O'Malley seems to believe that the democratic process and the criminal justice system has flaws in its affinity for the death penalty. And so he has repeatedly spent lots of time, energy and political capital on eliminating the death penalty in Maryland as Gov (even though very few get sentenced to death and/or executed in the state now). But he cannot even take the time to respond to clemency requests by persons who surely committed crimes far less awful than the rare murderers who are even eligible for capital punishment in Maryland.

Posted by: Doug B. | Jun 22, 2009 1:44:06 PM

"Unless, Marc, you believe that having the power to do something creates an obligation to use it well and wisely."

federalist. That's the stupidest thing you've ever said. Something that is an option is optional. What part of "option" doesn't you understand? I agree with Marc.

Posted by: Daniel | Jun 22, 2009 1:45:48 PM

Well, Daniel, at the risk of losing my reputation in here of a bomb-thrower, I will try to explain. The governor is an elected official. He is, theoretically anyway, supposed to exercise his powers etc. for the common weal. Clemency is one of those powers.

Perhaps, Daniel, you've never heard of an obligation being strictly a moral one. Fair enough--but I hardly think that what I said was the "stupidest" thing I've ever said.

Posted by: federalist | Jun 22, 2009 2:19:53 PM

federalist, you are correct. My mistake on exonerations--not over "two hundred." The number apparently is 133.


Posted by: Michael R. Levine | Jun 22, 2009 2:25:29 PM

Marc you must have been talking about the former Governor of North Carolina(Easley) he most certainly did not think it was his duty to show any mercy. The Ironic thing is that he abused his powers and someday just maybe he might have to rely on soneone to grant him a pardon.

Posted by: Anon | Jun 22, 2009 9:36:10 PM

Once again, I agree with federalist. He has said a lot of things in other comments threads that are much more stupid than anything he said in this thread. ;-)

Posted by: Doug B. | Jun 22, 2009 9:36:14 PM

But what exactly is Federalist arguing for? He just says that the pardon power ought to be used "well and wisely," without saying what that is? His usual bias is for locking up everybody for the longest possible time, so I have to assume that, by his definition, "well and wisely" are synonymous with "hardly ever."

Posted by: Marc Shepherd | Jun 23, 2009 8:38:55 AM

Actually, not, Marc. When you believe in a regime of harsh punishments, you need to have some safety valve. So I am more in Ehrlich's camp than O'Malley's.

Posted by: federalist | Jun 23, 2009 11:32:43 AM

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