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December 3, 2009

Spotlighting that the Clemmons case could make clemencies even rarer

This new CNN piece, which is headlined "Seattle shootings may reduce pardons and commutations," discusses the likely impact of the the controversy over Mike Huckabee's clemency grant to cop killer Maurice Clemmons. Here are snippets:

The ambush-style shootings of four police officers in Seattle allegedly by a suspect whose prison sentence had been commuted likely will affect the way states approach clemency, according to professors, criminologists and attorneys.  "For many governors, the quick response is, 'Huckabee is getting all this attention, so this is the last place I want to be'," said Marc Mauer, executive director of the Sentencing Project, a Washington-based research group that studies sentencing trends. "They are going to be much more reluctant."...

Clemency, the ability to mitigate a sentence, is a power held by the executive branch. The practice provides presidents and governors a final check on the judicial system. They can grant pardons, removing both punishment and guilt. Or they can commute sentences, reducing the time served but leaving the charges intact. Commutations are often granted to sick inmates or prisoners demonstrating good behavior....

After the 1980s, clemency became a target of the tough-on-crime movement, criminologists say. They say it resulted in a decline in pardons and commutations -- a contrast from earlier in the century when some governors were applauded for commuting hundreds of sentences during the Christmas holiday.  "Politically, it's just too risky today to use your discretion to reduce someone's punishment, especially in commutation," said Jefferson Holcomb, a professor of government studies at Appalachian State University.

According to criminologists, one of the most infamous cases that steered some governors and presidents away from issuing commutations involved Willie Horton, a Massachusetts inmate who raped a woman after being released in a weekend furlough program supported by then-Gov. Michael Dukakis.  In 1988, the Republican Party used Horton in ads opposing Dukakis, who was then the Democratic presidential nominee. Political scientists believe the perception that Dukakis was lenient on crime helped undermine his election bid.

In some media outlets -- online and on television -- Clemmons has been dubbed "Huckabee's Willie Horton," raising questions on how the Seattle shootings will affect Huckabee if he decides to run for president in 2012.

The Horton incident also resulted in policy changes in the corrections industry.  Herbert Hoelter, co-founder of National Center on Institutions and Alternatives, a group that helps file petitions for clemencies, says furlough programs became unpopular after the Horton incident, even though studies have shown they can be effective in helping prisoners re-integrate into society.  "Furloughs used to be popular, but trying to get a furlough now is like trying to avoid a root canal," Hoelter said. "It just doesn't happen."

As the prison population continues to grow, some advocacy organizations and experts argue appropriate clemencies can help manage overcrowding. But experts say the high-profile nature of the Seattle shootings will likely be a setback, just as the Horton case was a generation ago.

At the federal level, the Department of Justice's Office of Pardon Attorney shows a decline in federal clemencies. Experts say presidents and governors usually wait until the end of their terms to grant them because of potential controversy. "The incentive is not to do it if you want a political future," said Matthew Eshbaugh-Soha, assistant professor of political science at the University of North Texas. 

Victim advocacy groups often criticize lawmakers and push for harsher sentences when a parolee commits a crime or when a clemency goes awry.  David Davis, executive director at the Advocacy Center for Crime Victims and Children, says when sentences are shortened, some victims and communities fear the person will commit another offense.

"The Clemmons case underscores the importance of using risk assessment tools to inform release decisions at every point in the system from bail to clemency," said Margaret Love, a U.S. pardon attorney under George Bush and Bill Clinton.  

December 3, 2009 at 07:07 AM | Permalink


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We use a risk assessment tool for pretrial release if the charge is a felony or an assaultive misdemeanor. If the judge has confidence in the risk assessment tool they may be willing to reduce the bond or use supervised pretrial release. If the judge does not have confidence in the risk assessment tool there is no point in having one done.

My concern is that the risk assessment tools can become obsolete or nullified if they are not frequently reviewed and updated. If that happens the judges will discount them and set high bonds.

Posted by: John Neff | Dec 3, 2009 11:02:42 AM

"It's a shame given there are so many cases, which we never hear about because they are commuted and don't go on to commit crimes," said Natasha Frost, a professor of criminology at Northeastern University. "One bad case can change the way the whole system works."

John Neff, has your experience been that risk assessments usually lean in favor of the defendant? That will soon be called a loophole if so.

When risk assessments are the national norm, what will happen when they are not perfect either and someone "slips through the cracks"?

Posted by: George | Dec 3, 2009 11:47:58 AM

The most interesting aspect to me is the missing neocon hand-wringing. Neocons believe in a "unitary executive" so I think they would be especially sensitive to anything that implictly curtails the power of the executive branch. It seems to me that if the executive is not going to use the power it has, why not get rid of the power entirely.

Posted by: Daniel | Dec 3, 2009 12:04:37 PM


In our jurisdiction the person using the risk assessment tries to be conservative which means that most of the failures are that a person that could be released is held in jail or prison. Keep in mind that in general the risk is small (but not zero) and from time to time there is a "nasty surprise" and if it is severe enough the resulting public outrage could end community supervision.

The choice is being conservative where you incarcerate persons that could be released or liberal where you risk ending community supervision and incarcerate everyone.

Posted by: John Neff | Dec 3, 2009 1:58:08 PM

The problem, as we are seeing in this case, is that the so-called “nasty surprise” has 1,000 percent more impact on public perception than the many other times that the risk assessment was correct.

Posted by: Marc Shepherd | Dec 3, 2009 4:50:40 PM

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