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May 23, 2011

The sad realities of modern pardon politics

Many criminal justice reform advocates have been (justifiably) critical of President Barack Obama's failure to make serious and sustained use of his clemency powers.  Yet this new Politico piece, headlined "GOP governors could face pardon issue in 2012 campaign," highlights the sad reality that executive branch leaders are always shrewd to make little or no use of their clemency powers whenever an election is on the horizon.  Here is the start and ending of the Politico piece:

It’s still early in the presidential race, so the opposition research dumps haven’t really begun. But when the skeletons in the closets of 2012 GOP hopefuls begin to be revealed, the unique shape of the field — which will almost certainly feature a handful of current or former governors — makes it’s a good bet that someone is going to have a Willie Horton problem.

That’s code for a violent or deranged felon run amok on their watch — a reference to the notorious convict who went AWOL during a furlough from a Massachusetts prison, committed more crimes and ultimately became the subject of a devastating ad that helped seal the fortunes of 1988 Democratic presidential nominee Michael Dukakis.

With former Govs. Mitt Romney, Tim Pawlenty, and Jon Huntsman in the 2012 mix — and a few other current and former chief executives perhaps in the wings — the issue of pardons and furloughs is one that could play an unexpected and damaging role for some campaigns.

Before he departed from the race, Mike Huckabee, who issued more than 1,000 sentence reductions and pardons as Arkansas governor, was widely viewed as having the most exposure.  While no one in the current field has anything close to that in the oppo files, Romney and Pawlenty might be haunted by a few cons who could undermine their law-and-order credentials....

Some strategists argue that a candidate’s good faith attempt to look for signs of redemption or offer compassion will appeal to evangelical voters, possibly mitigating the political fallout.  “There are a lot of active evangelical Christians who don’t believe you’re criticized for trying to show mercy,” [Republican strategist Charlie] Black said.

Still, almost anything connected to ex-cons is fodder to be blown up into a negative ad. “Everything you did can, and will, be used against you,” warned said James Pinkerton, an analyst and commentator who has deep ties in GOP politics, and who was involved in the research that led to the Horton ad in 1988.  “Even if statistically the problem seems manageable, anecdotally it will be fatal.  And therefore you have to have your ducks in a row.”

May 23, 2011 at 09:09 AM | Permalink


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The problem with pardons is that the bad ones cause disproportionate harm to the executive’s electoral chances. A president or governor can issue 100 “good” pardons, but a single bad one is the one people remember.

This, of course, is the reason why it takes the DOJ years of study to recommend pardons in even the most innocuous cases. All they need to do is give just one guy a break who didn’t deserve it, and the president will have a P.R. fiasco on his hands. And of course, there is hardly anybody (except for a handful of pardon gurus) praising the president for the pardons he did issue. He gets zero political or electoral benefit from exercising the power. Zero.

Parole has a similar risk/reward trade-off. If just one inmate on parole commits a gruesome crime, nobody cares about the 100 who don’t. But parole decisions don’t usually have an obvious political actor who can be punished at the polls, the way executive clemency does.

Posted by: Marc Shepherd | May 23, 2011 10:18:34 AM

As an aside, I have yet to see a serious argument why President Obama should exercise his pardon power. The only people who ought to be agitating for it, are those who want him to lose in 2012, given the risk–reward trade-off that I referred to above.

The fact that the Constitution gives him this authority does not mean he ought to use it. The Constitution also allows him to make recess appointments, but there is usually a hue and cry whenever a president does so. There is no rule that a president must exercise every power available to him. Like the recess appointment power, the pardon power has too little benefit and too much political risk, to be used any more often than it is.

Posted by: Marc Shepherd | May 23, 2011 10:25:42 AM

sounds to me like it's LONG PAST TIME for an amendment for "freedom from the press" Unless your doing something illegal.

Posted by: rodsmith | May 23, 2011 1:50:13 PM

I believe the President should exercise his pardon power because he is the last hope for some of those who have been wrongfully convicted. There is no one else who can do this for a federal prisoner and there are many circumstances that do not allow for appellate rights to be exercised.

The current Office of the Pardon Attorney is an extension of the DOJ and appears to be in the business of upholding convictions rather than completing a fair and full review.

It takes courage and a commitment to justice for a President to rise above the political fallout in order to do the right thing. Although it's a relief for those who have been pardoned by President Obama to date, so many of the actions taken have been for people who were convicted minor sentences and have been released from prison many, many years ago.

Posted by: 114 | May 24, 2011 6:00:29 AM

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