This week, Arkansas Governor Mike Beebe announced his intent to pardon Herman T. Warren, who had been convicted of possessing marijuana and drug paraphernalia in 2003. Warren had completed his sentence, two years on probation, and paid all the fines associated with his conviction.
Beebe’s pardon, which will be issued following a 30-day public comment period, means that Warren will be eligible to serve on a jury and apply to own a gun, and if anyone ever questions Warren about his conviction, he can show the pardon as proof that he’s turned his life around. It’s almost as if Warren’s conviction never happened -- although his record won’t be formally cleared, he will no longer experience any official consequences of his conviction.
Pardons like this one are relatively common in Arkansas. In his six-year tenure, Governor Beebe has pardoned 529 individuals, usually issuing a few pardons each month to minor drug offenders convicted more than 10 years ago. The process is a routine part of Beebe’s job, and he’s “constantly reviewing clemency requests,” says spokesman Matt DeCample.
But Beebe’s pardoning practices are increasingly rare among governors, who fear political backlash if a pardoned criminal should reoffend. Clemency decisions have proved costly for recent Republican presidential candidates, including Beebe’s Arkansas predecessor, Mike Huckabee, who faced tough questions after Maurice Clemmons, a man whose sentence Huckabee commuted, was linked to the murder of four police officers near Tacoma, Washington.
Many current governors in the national spotlight, such as Wisconsin’s Scott Walker, New York’s Andrew Cuomo, and Massachusetts’ Deval Patrick, have granted no pardons at all. And governors don’t have an example of pardon leniency to follow in the White House either -- President Obama granted just 22 pardons in his first term, the lowest number of any president since George Washington. These days, many governors are more inclined to pardon a turkey for Thanksgiving or a pig for a bacon festival, than to grant restored rights to a convicted criminal.
The reasons are not always personal. In six states, pardons are entirely the province of an independent commission. In 20 states, the governor can make the decision, but must consult with a board of one kind or another. In Rhode Island, the Senate must approve every pardon application before it can be granted. Needless to say, very few offenders receive pardons in Rhode Island.
But in much of the country, the power to pardon remains a gubernatorial prerogative, one of the broadest executive powers afforded to governors in a state’s constitution. And the pardon decision rarely follows any ideological trend; it’s largely subject to the individual preferences of the executive and the customs of the state, says Margaret Colgate Love, who served as U.S. pardon attorney from 1990 to 1997.
By and large, the reason for the drop in the number of governors’ pardons since the 1960s is political, argues P.S. Ruckman, a professor of political science at Rock Valley College in Rockford, Illinois, and author of the blog, Pardon Power. “Some governors think, ‘why should I do this? It won’t benefit me politically and it might hurt me.’ There’s some very crass political calculating going on,” says Ruckman, “and people suffer because of it.”
The pardon power
“Particularly when a governor does it alone,” says Love, “pardoning is a very personal thing, and the reasons for doing it can vary. To me, it is a measure of character. In some states, like Arkansas and Nebraska and Connecticut, there is a culture and expectation that there will be pardons. But there is always a political element because popular opinion is the main brake on the power.”
Originally designed as a final check on the courts and the legislature, the two most common grants of clemency are pardons and commutations. Commutations are the grants that make people most uncomfortable. A commutation ends or reduces a criminal sentence and forgives any fine. In some cases, these actions can lead to people walking out of jail before their sentence is complete.
More commonly, governors grant pardons, which, while potentially broader in scope than a commutation, because they remove all punishment, have become synonymous with the restoration of civil rights following the completion of any incarceration and payment of any fines or fees associated with conviction.
Criminal convictions come with a range of collateral consequences, including the loss of voting rights, right to serve on a jury, hold public office or obtain a gun permit. A pardon from the governor can restore those rights, and a handful of governors, including Democrats Beebe in Arkansas and Tim Kaine in Virginia and Republican Robert Ehrlich in Maryland, have restored the rights of hundreds of former offenders.
Both pardons and commutations are often made at the end of a governor’s tenure when he is not facing reelection and the political consequences for a pardoning decision won’t be as severe. “You really see what they believe when they’re a lame duck,” says Rachel Barkow, a law professor at New York University.
It’s these end-of-term grants that are often the most infamous. For example, just hours before Governor Arnold Schwarzenegger left the California governor’s mansion in 2011, he shortened the sentence of a political ally’s son from 16 to seven years, which angered the victim’s family and the public. The victim’s family sued Schwarzenegger for not notifying them in advance of the commutation, but a court found that while the last-minute commutation was “repugnant,” it was not illegal.
One year later, as Haley Barbour was leaving office as Mississippi’s governor, Barbour pardoned nearly 200 offenders, including five convicted murderers, as a display of Christian principles of forgiveness, he said at the time. The last-minute pardons set off a national uproar and the state’s attorney general argued that Barbour had violated the state constitution by not publishing a notice of his intent to pardon the offenders. The Mississippi Supreme Court upheld Barbour’s right to pardon the offenders; however, incoming Governor Phil Bryant vowed to severely limit the number of pardons he would grant.
While the overall trends show pardons on the downturn, there are some current exceptions. Illinois Governor Pat Quinn has pardoned over 800 people since taking office in 2009, clearing a backlog of more than 2,500 pardon applications left untouched by previous Governor Rod Blagojevich. California Governor Jerry Brown, who has noted his commitment to rehabilitation, has issued 149 pardons since taking office in 2011, reversing a nearly 20-year trend of minimal pardons from California governors.
For the offenders on the receiving end of pardon decisions, the change in philosophy from one administration to the next can be frustrating. But for the few offenders who manage to get a pardon, it can amount to a new lease on life because in each grant, governors make a political and personal endorsement of an offender’s rehabilitation.
“My counsel staff and I were completely overwrought,” said former New York Governor David Paterson in an interview with the New York Times about his final pardoning decisions. Paterson issued 35 pardons during his two-year term as governor, including a handful of pardons to immigrants who were facing deportation as a result of minor criminal convictions.
“We made a final decision on the last day (of my term); one we decided not to do. When I went to the (new) governor’s inauguration on January 1, I breathed a sigh of relief.”