Well, He Kinda Pardoned Her

FIRST ANECDOTE

Several decades ago, I was invited to a meeting to help figure out how to prioritize and then advance the goals of an anti-death penalty organization.  

Should we, the group's conveners asked, be focusing on the risk and evil of executing the factually innocent? It seemed a simple question.  On the one hand, the answer was obvious. Of course factually innocent people shouldn't be executed; nobody disagrees with that.  But might that focus lead folks to adopt a simple carve out:  

Sure, save those folks.  But of course that acknowledges that we can feel good about killing the guilty ones.

SECOND ANECDOTE

Another time, a prosecutor and I were guest debaters in a law school class on the death penalty.  Who, the question arose, ought the death penalty be for?  

Well, we both agreed, the idea is that it should be reserved for the worst of the worst who did the worst things.  But, I said, how can you tell?  Where's the margin?  Oh, c'mon said the prosecutor.  It's easy.  Hitler,  Stalin.  Pol Pot.  Yeah, I said.  But you wanted the death penalty against my client who killed the clerk while robbing a carryout.  He wasn't Hitler.  Didn't kill millions.  What's the stopping point?  And that's if you think it's OK to be in the execution business in the first place.

THIRD ANECDOTE

Guy on death row, not my client, days before he's due to be executed, tries to commit suicide.  Guards find him in his cell.  He's rushed off to emergency medical care and then the prison hospital.  Why for godssake?  Hell, they want him dead don't they.  He's just helping them along.  But no the sentence isn't death, it's execution.  The government's job isn't to let him die.  It's to kill him.  And if we have to save his life so that we can kill him, well, that's just how it goes.

FOURTH ANECDOTE

Another client: 22 years old.  Got his conviction and death penalty vacated, he's sent back for a new trial.  The problem is that he is, and is incontestably, factually guilty.  And at the new trial they'll bring in evidence of another person he killed.  Goes to trial it's a sure thing he'll get another death sentence.  But he's offered a deal:  Plead guilty and accept a sentence of life without the possibility of parole.  You'll die in prison, but we won't kill you.  No, he says.  No. No. No.  

We argue with him for weeks.  Take the deal.  You'll be in general population which is less restrictive, less harsh, than being on death row.  And it's not like the one end will be fast and peaceful.  In the end, he takes the deal.

In this business, that sentence, Death in Prison but not killed there by agents of the government, is a win.

. . . . . . .

This business of deciding who should live and who should die.  This business of killing people in our name.  This business of insisting that the proper way of dealing with the worst of the worst who did the worst things, of pretending we can figure out who they are and never accidentally misidentify someone who's only nearly the worst of the worst, or who, frankly, we just don't like because he (it's almost always a he) is black or brown or yellow or has an ugly tattoo or if it's a woman wore transparent thongs and slept with people for money, and besides all that think about the drugs, and at trial had a  shitty lawyer who couldn't be bothered or . . . . 

Look, the system sucks.  And it's efforts, even the serious ones, to do better are hopeless and doomed to failure.  And that's if you're OK with the morality of the thing.

. . . . . . . 

All of which, 

well, probably I should tell you first about Tommy Lee Walker who was killed in the electric chair by the good people of the State of Texas on the 12th of May, 1956.  Walker, a 21-year-old Black man, was tried and convicted of raping and murdering Venice Parker, a young white woman.  He had a rock solid alibi, but hey, that was Dallas County, Texas, he was Black, she was White, and . . . .  

Or maybe I should tell you about Francis DeSales Grayson, Frank Hairston Jr., Howard Hairston, James Luther Hairston, Joe Henry Hampton, Booker T. Millner, and John Clabon Taylor, young Black men convicted of raping and beating Ruby Stroud Floyd, a young white woman in Martinsville, Virginia in 1949.  Six trials (2 were tried together) and six death sentences.  Four executions February 2, 1951, the other three February 5

Or maybe?  Nah, you don't need another of these stories.  You know how they go.  But here's what you need to know:  On August 31, 2021, Virginia's Governor, Ralph Northam, formally pardoned the Martinsville 7.  This year, on January 21, the Dallas County Commissioner's Court unanimously adopted a resolution exonerating Tommy Lee Walker.  None of these folks were brought back, but their actions made clear that what was done to them - not just the executions but the arrests and trials - were travesties of justice

ALL OF WHICH is a prelude to the news today from across the pond.

Again, I have to take you back.  This time to Easter Sunday, April 10, 1955, that was the day Ruth Ellis shot and killed her lover, David Blakely.  She never denied it.  As she said on the witness stand, "[W]hen I shot him, I intended to kill him."

Ellis was, by all accounts, no saint.  But Blakely was worse.  He physically and mentally abused her.  When she was pregnant, he punched her in the stomach, causing a miscarriage.  But murder was murder, guilty was guilty, and mitigation didn't count.  Ellis was sentenced to death.  On July 13, 1955, she was hanged at Holloway Prison in London, the last woman to be executed in England.

But now, and here's where I've been heading with this, King Charles has granted her a pardon.  Sort of.

Per the BBC:

On Wednesday in the House of Commons, Labour MP Pam Cox asked Lammy for the pardon on behalf of her grandchildren, who were watching proceedings from the public gallery.

She said: "Her case serves as a haunting reminder of a time when our justice system ignored the realities of domestic abuse and coercive control.

"In the decades since, members of Ruth's family and supporters have campaigned unwaveringly for her to receive a posthumous pardon.

"Will the deputy prime minister agree with me that their courageous campaign, and the terrible lessons of Ruth's case, must strengthen the government's resolve to free women from devastating cycles of abuse?"

Lammy responded: "I have the honour to say that His Majesty the King has accepted our advice to grant Ruth Ellis a conditional pardon, the last woman to be hanged in the United Kingdom.

Hold on.  A "conditional pardon"?  What the fuck is that?  Oh, right.  The execution is off.  She's now sentenced to spend the rest of her life - which was ended by the crown some 70 plus ears ago - in prison.  Not execution, but death in prison.  Sort of makes you feel all giddy.

But as I said, it's not death.  So it's a win.

Fuck.

It's a Start

Eight commuted sentences in a single day! Eight!

According to Ruckman at Pardon Power, that's the most commutations any Pres has issued in a day since Nixon in December 1970.  (Well, except for Clinton, but still.)  Wow!

And thirteen outright pardons for people who, as Charlie Savage in the Times points out, served brief if any time for mostly minor offenses and that well in the past.

All that moves him right up.  His Barakness has now leaped ahead so that he's issued more grants of clemency of one sort or another than four (count 'em, 4!) of his predecessors.

• More than William Henry Harrison in his one-month presidency!
• More than Garfield in the four months before he was assassinated!
• More than John Adams in his one term!
• More than Washington did in two full terms when there were almost no federal crimes or prisoners!

What a guy!

But let's talk a moment about the commutations, because that's big.  Those 8 folk were doing long terms (up to life) for crack cocaine offenses.  Each of them has already done more than 15 years.  Six were doing life. Under the Fair Sentencing Act which reduced (but didn't eliminate - let's get real here) the frankly racist dispartity in sentences between crack and powder cocaine offenses), they'd have done much shorter terms. In a statement issued by the White House, Obama said,

Commuting the sentences of these eight Americans is an important step toward restoring fundamental ideals of justice and fairness.  But it must not be the last.

Of course, it needn't be.  He could, for instance, do something for the other 8,800 or so folks in prison now (according to FAMM) who are doing mandatory minimum times sentences from before the Fair Sentencing Act reduced the disparity.

I'm not holding my breath either.

-------------------
The list of yesterdays commutations and pardons is here.

Eight More Pardons for Those Who Don't Need Them

It was early Friday morning (or late Thursday night, depending on how you count these things), that I wrote about how the majority of the judges on the 11th Circuit told Ezell Gilbert that it really was a shame that he has to serve 8 1/2 years more than a legal sentence would be but that, darn it, that's just one of those things.

Cue music here.

Near the end, I pointed out that Obama could fix the problem but that the evidence was that he wouldn't.

Of course, Presidents have the power to remedy this sort of thing.  Obama could commute Ezell Gilbert's sentence tomorrow.  Don't hold your breath.  P.S. Ruckman, Jr. has the numbers at the Pardon Power blog.  (The boldface is Ruckman's.)

The last 12 presidents have, on average, waited 338 days (.9 years) before granting the first commutation of sentence. President Obama, who has yet to grant a single commutation of sentence, has waited 834 days (or 2.3 years). No president has been slower to grant a commutation of sentence save George W. Bush!

The Pardon Power blog, written by P.S. Ruckman, Jr., is a great resource if you're interested in this sort of thing.  I don't have it on the blog roll because, well, there are lots of great resources out there and it's my blog roll so I get to pick and choose.  But I go over there fairly regularly and there's always something interesting.

So, even though I went there early Friday morning/late Thursday night to get those numbers I'd seen a few days earlier, I really should have gone back later on Friday.  Had I, I would have found "Obama: 8 More Pardons to the Tiny Little Pile."

1. Gotten more and more interesting numbers about commutations, and from the same post
2. Learned that Friday afternoon, Obama issued 8 pardons, the first since the 9 he issued in December, bringing his total up to 17.

Wowsers.

And what an 8 they are.  Evildoers all.

• Back in 1980, Danny Alonzo Levitz was sentenced to 2 years probation for conspiracy.
• That same year, Edwin Alan North got 6 months probation for not paying tax on the transfer of a firearm. 
• Patricia Ann Weinzati was ordered to serve 3 years probation for structuring financial transactions so as to avoid reporting requirements.
• Christine Marie Rossiter had to do 500 hours of community service as part of her 3 years probation for conspiracy to distribute marijuana.

The others did some time.

• Michael Ray Neal - 6 months for manufacturing equipment to steal cable signals.
• Allen Edward Peratt, Sr. - 30 months for conspiracy to distribute methamphetamine.
• Randy Eugene Dyer - 5 years (though it was back in 1975) for conspiracy to import marijuana.
• Bobby Gerald Wilson - 3 months and 18 days plus 300 hours of community service for selling alligator hides to the feds.

Good for Obama.  But really, is this the best he can do?

Should I add that none of these people are currently in prison?  Or under any sort of supervision?  Nah, you knew that.

Ruckman runs some numbers.

President Obama has now granted a mere 17 presidential pardons (all announced on Friday afternoons) and, amazingly enough, zero commutations of sentence. He has been in office for 850 days. How does he compare to other Democratic presidents? By this point in his own administration, Bill Clinton had granted 55 pardons and commutations of sentence. Jimmy Carter had granted 312 pardons and commutations and JFK had granted 381. Lyndon Johnson had granted 717 pardons and commutations.
Indeed, only a Republican, George W. Bush, has been slower to grant a single commutation of sentence. Julie Stewart, president of Families Against Mandatory Minimums (FAMM) notes fairly enough:

"We’re happy that these eight people will have their civil rights restored by this presidential pardon, but it's sad that the Justice Department has not brought the president one prison sentence to shorten. It can’t be true that there isn't a single person among the 210,000 currently in federal prison who shouldn't be there. In fact, during the campaign the president acknowledged that federal prisons are filled with nonviolent offenders serving excessive sentences. Why, then, can’t he find one to commute?"

I've said before, and repeatedly, that clemency (which is what a pardon or commutation is) is an act of grace.  It's about generosity of spirit.  It speaks to what we might aspire to be.

Whatever you think of Obama's politics or policies, generosity of spirit as reflected in acts of executive grace doesn't seem to rank high.

But its good news for the guy who sold the alligator skins to the FBI.

* * * * *

On the other hand, Myanmar's ruling junta just announced that it's granting amnesty to some 15,000 or so prisoners, converting death sentences to life, and reducing by a year the prison sentences of everyone else.

Not quite golden for the 2000 plus political prisoners, though.  only about 30 of them will be getting out.  And as Human Rights Watch points out, reducing a sentence of 65 years to one of 64 isn't really all that generous.

Pardons. We Got Pardons

OK, so Obama finally found some folks on whom he could sprinkle some of the fairy dust of Presidential grace.  Nine of them.  Seven were sentenced only to probation.  

Russell Dixon was convicted of a liquor violation.  Ron Foster of shaving the edges off coins to trick vending machines, convicted back in 1960.  Foster did that when he was 18.  He's 65 now.  Deserving of the pardon, no doubt.  But surely there are those with more desperate need.  And equally deserving.

P.S. Ruckman, Jr.  gives all the details at his invaluable Pardon Blog.  Then he gave the real summary.

Yep, one thing is for certain: this group of kids (including 85-year-old Laurens Dorsey and Edgar Kranz, an Air Force retiree) will think twice before ever violating the law again! As Samuel T. Morison (a former staff attorney in the Office of the Pardon Attorney, Department of Justice) has pointed out, increasingly pardons are granted to people who need (or can actually benefit from) them the very least.

Of course, you can't even describe these as the annual Christmas pardons, since Obama didn't issue any last year.  But Christmas presents they are, random, certain to stir no controversy, to burn up none of his ever-declining political capital.  And that's really a problem.  Obama waited longer than any previous Democratic president to issue a pardon.  And all he could find was this bunch.

Pardons are, of course, exercises in executive grace.  They can also be political theater.

We, even those of us who don't view it as seriously flawed or hopelessly corrupt, know that our system is imperfect.  If we're even marginally honest about it, we know that criminal convictions haunt, often years after the fact and long after there's any reason for the stigma. We like to think we individuate, treat each person based on his/her details.  But we know better.  Easy to class.

And of course, there are those people convicted on the merest shred of evidence, those who were convicted despite legitimate even laudable (albeit legally unavailable) explanations for what they did.  And yet the pardon power is used rarely and quixotically.  And, once again, as political theater.

Jim Morrison's mug shot

And so it was that down in Florida, Charlie Crist, in his last days as governor, found a worthy candidate for grace in Jim Morrison.  Should he have been convicted of (hell, should he even have been charged with) indecent exposure?  Probably not.  Will this somehow cleanse his reputation?  Will he have a more productive life, now?   (Ooops, he's been dead for years, so probably not.)  Does it matter to anyone except Doors fans?  What, exactly, was the point?  Is his conviction and arrest the great wrong in Florida's legal history?  Does anyone believe that?

And so we come to Abe Lincoln who signed off on the largest mass execution in US history.  38 Santee Sioux were hanged together in Mankato, Minnesota in 1862.  There's little question that in the uprising, led by Little Crow, innocent white settlers were brutally murdered.  There's little question that the Sioux were having their homes taken away, forced off their land, and that white soldiers were indiscriminate in attacking and killing Sioux who fought and those who did not.  (Duane Schultz's Over the Earth I Come: The Great Sioux Uprising of 1862 tells the story well.)  But that's not where I'm going with this.

Hanging of the 38 Santee Sioux

Instead, I want to talk about Abe Lincoln.
1862 was not merely the year the Santee went to war.  It was also a particularly dark period for the Union in the Civil War.  And that year was the brief war.  When the fighting was over, General Sibley had captured some 400 men, Santee and "mixed blood."  303 were sentenced to be hanged.  It was, they say, more than Lincoln could stomach.  He decided, apparently, that there was sufficient evidence to kill only 38.  Lincoln knew that commuting sentences for the rest would be unpopular.  Still, he did it.  Some he pardoned, some died in prison.

I could not afford to hang men for votes.

But if he saved 265, he signed off on the death of 38.  And so it was that on December 26, 1862, the day after Christmas (no Christmas pardons here, Christmas killings instead), the 38 were killed in a single mass execution from a single gallows platform.  Except not exactly.  It seems that only 37 of the 38 were killed.  One, whose sentence had been commuted, was inserted into the lot and was killed in the place of one who was supposed to be.  And now, it seems, there's a movement to pardon the wrongly killed guy.
Robert Elder had the story in yesterday's NY Times.

But one man, historians say, did not belong there. A captured Dakota named We-Chank-Wash-ta-don-pee, often called Chaska, had had his sentence commuted by PresidentAbraham Lincoln days earlier. Yet on the day after Christmas 1862, Chaska died with the others.

It was a case of wrongful execution, Gary C. Anderson, a history professor at theUniversity of Oklahoma and Little Crow biographer, said last week in an interview. “These soldiers just grabbed the wrong guy,” he said.

Although the story of the mass execution in Mankato is well-known locally, scholars say the case of Chaska — spared by Lincoln, then wrongfully executed — has been long overlooked by the federal government and all but forgotten even by the Dakota.

Now, an effort to keep the story alive is taking root on campuses and even on Capitol Hill as the 150th anniversary of the execution, in 2012, approaches. Commemorative events will include symposiums, museum exhibits, monument re-dedications, book publications and an original symphony and choral production.

“It’s time to talk about it and time for people to know about it,” said Gwen Westerman, a professor of English at Minnesota State University at Mankato and a member of the Dakota who is planning to investigate Chaska’s case and the cultural context of the conflict with a class. She says she is hoping her students can “put together some more pieces of the puzzle.”

“Because there is a historical record” for Chaska’s commutation, Ms. Westerman said, “that’s a good place to start.”

A move to award Chaska (pronounced chas-KAY) a posthumous pardon has drawn some initial support. Before his defeat in November, Representative James L. Oberstar, Democrat of Minnesota, said a federal pardon would be “a grand gesture and one I think our Congressional delegation should support.”

“A wrong should be righted,” he added.

Senator Al Franken, a Minnesota Democrat who sits on the Committee on Indian Affairs, issued a statement last week signaling that he might move the issue forward.

“Senator Franken recognizes that this is a tragic period in history,” said his press secretary, Ed Shelleby. “The senator will continue to look into this incident in the next Congress.”

Obama has, so far, expended his political capital to issue 9 pardons.  There are thousands of men and women languishing in prison for extensive crack cocaine sentences when his own Justice Department says that the crack/powder distinction was irrational.  Are they all being resentenced?  There are innocent men and women.  There are men and women who have reformed but are denied jobs and housing and franchise.  There are men and women who need help and by all rights deserve it.

I'm not begrudging anyone a pardon.  Let Obama and Charlie Crist do feel-good pardon's that serve no particular purpose.  It is grace, after all.  Portia tells Shylock.

Ruckman again, presciently, from three weeks before Obama acted.

So, while some may be encouraged by the morsels of mercy that President Obama distributes while Santa Claus is in the neighborhood, let us be the first to complain. Shame on you, Mr. President. To date, your clemency "policy" deserves nothing but scorn, slight regard and contempt. Like most presidents before you, you should make pardons (and justice) a year-long concern, and insist that it be the year-long concern of the bureaucrats that are supposed to be working on applications all year long. When there is little evidence that they have more interest in clemency than you, they should be summarily removed, pronto. 

Shylock demands that his contract be strictly enforced.  He wants his pound of flesh.  Portia counsels otherwise.

The quality of mercy is not strain'd,
It droppeth as the gentle rain from heaven
Upon the place beneath: it is twice blest;
It blesseth him that gives and him that takes:
'Tis mightiest in the mightiest: it becomes
The throned monarch better than his crown;
His sceptre shows the force of temporal power,
The attribute to awe and majesty,
Wherein doth sit the dread and fear of kings;
But mercy is above this sceptred sway;
It is enthroned in the hearts of kings,
It is an attribute to God himself;
And earthly power doth then show likest God's
When mercy seasons justice. Therefore, Jew,
Though justice be thy plea, consider this,
That, in the course of justice, none of us
Should see salvation: we do pray for mercy;
And that same prayer doth teach us all to render
The deeds of mercy. I have spoke thus much
To mitigate the justice of thy plea;
Which if thou follow, this strict court of Venice
Must needs give sentence 'gainst the merchant there.

Which is, ultimately, the point.