Politics & Law

Pardon season

Jonathan Simon

It is January, the month when among other things political officials who have lost election, termed out of office, or simply decided to quit, leave their offices and their successors.Thus you’ll always think of Presidents by their election year, but Obama became President in 2009, January 2009.

In any event, historically the passing of executive leaders and the start of terms (or sometimes just the New Year itself) has been associated with the practice of pardoning prisoners. Sometimes, that meant all the prisoners, but more typically it has meant a select few. This kind of celebratory pardon, that marks the change in executives, as opposed to those based on meritorious consideration of a legal request for pardon based on changed circumstances or new evidence, is a fascinating reminder of the “old logic” of punishment, when the power to punish was an expression of personal sovereignty and its remission a sign of benevolence at the top.

It also recalls a time when releasing prisoners was a populist gesture, intended to warm the hearts of the public and cause celebrating in the towns and villages to which sons and nephews thought dead or lost. It is in perfect keeping with this old logic that North Korea’s communist monarchy marked the ascension of the latest Kim to rule nation with a sweeping pardon of prisoners.

In late modern democracies however, pardons are something of a scandal. (Recall what happened when Bill Clinton made sudden burst of pardons as he left office, some of them seemingly warranted by special generosity in donations to his Presidential library, among other things). American politicians in the age of Governing through Crime never want to appear to be sympathizing with a criminal. Thus pardons even much merited by inequities in the original sentence and excellent behavior in prison and sitting presidents and governors tend to reserve their pardons for symbolic gestures to sometimes dead prisoners whose families have sought to clear their names. It is a sign that punishment is seen as an entitlement of the general public, a small “d” democratic festival of pain in which not executive charisma but public safety is the coin of the realm.

Well God Bless Mississippi. That’s where you want to be on the day the world ends, because everything happens there a couple of years or maybe a couple of decades late. Thus I should not have been surprised at today’s AP story by Holbrook Mohr (read it here in the SF Chron), describing Governor Haley Barbour’s pardoning of five prisoners, four of them in prison for murder, as his term ended in Jackson, citing tradition. The recipients in this case invoked another old tradition, one that survived in many state houses through at least the 1960s (but I suspect has disappeared almost everywhere else than Mississippi), inmate “trusties” who serve the governor and his family in their mansion.

This tradition, which also invokes the monarchical logic of personal sovereignty (and slavery of course) generally involved prisoners serving life (who paradoxically had the most to lose since parole was expected but could be lost by bad acts). Barbour, who is nothing if not a traditionalist, defended his acts as a required gesture in no way intended to disrespect the victims of the crimes committed by the prisoners pardoned. Not surprisingly this was scene as anything but a populist gesture and was quickly seized upon by the opposing party.

The pardons outraged victims’ relatives as well as Democratic lawmakers, who called for an end to the custom of governors’ issuing such end-of-tenure pardons.

“Serving your sentence at the Governor’s Mansion where you pour liquor, cook and clean should not earn a pardon for murder,” Public Service Commissioner Brandon Presley, a Democrat, posted Monday on his Facebook page.

No doubt it is hard to defend the traditions of celebratory pardons or of having life prisoners working as personal servants for the governor. But its hard not to admire any mechanism that ends a lengthy imprisonment no longer required by public safety or respect for the seriousness of the crime, or that showcases trust in the potential for people who commit even the worst act to change for the better. Pardoning seemed old fashioned in the mid-20th century when prison sentences were often short anyway and when parole was regularly used to release even those convicted of murder. Today, when a generation of tough on crime politics has eliminated parole in many states and led to an epic increase in the length of sentences for crimes, when ex-prisoners face a lifetime of economic and social exclusion, and when many states are struggling under the cost of maintaining historically huge prisoner populations we need to invent some new forms of remission.

Cross-posted from Jonathan Simon’s blog Governing Through Crime.

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Comment to "Pardon season":
    • Martin Neimoller

      Especially in light of the incessant platitudes that will abound during this Martin Luther King, Jr. holiday, a discussion of the race/color bias involved in the pardon process (as well as the conviction and sentencing process more generally) should be addressed: including the ‘aversive racism’ and unconscious implicit bias (of the kind Professor Mendoza-Denton frequently addresses on this blog) that corrupts every level of law enforcement and always already sees black bodies as guilty until proven innocent (and often continues to see them as guilty and continues to criminalize them even after they have been shown to be innocent of crimes for which they were falsely accused).

      http://www.propublica.org/article/shades-of-mercy-presidential-forgiveness-heavily-favors-whites/single

      http://www.theroot.com/views/lighter-skin-shorter-prison-term

      The reference to slavery in Professor Simon’s post above needs to be expanded upon, especially as disproportionate and wrongful criminalization and incarceration of those *ascribed* Black racial status in this country continues to be the present day legacy of slavery in a country whose understanding of who is black (and what blackness is) continues to be rooted in categories created to justify American slavery. 

      We continue to be a country that is not post-racial and does not judge people on the content of their character and continues to judge people on the color of their skin: because of the persistence of implicit and unconscious race/color bias, despite the denial of those who claim they are colorblind and we live in a post-racial world (including the dishonest Berkeley Republicans who held a bake sale that disingenuously defined racism as consciously using race as one factor–among many–in determining college admissions, while refusing to acknowledge either white privilege or the institutional racism, largely unconscious, which allows whites to be disproportionately pardoned in the ways uncovered by Pro Publica’s recent investigation).

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