Beg His Pardon?

Eight Texans got an early Christmas gift this week when Gov. Rick Perry pardoned them for the mostly minor crimes they committed many years ago.

Pardoning is a holiday tradition of sorts for state governors and the president, who, at the end of each year, name the fortunate few former offenders whose records will get wiped clean. But experts say state and national leaders are granting fewer and fewer pardons. And they say they're doing it in a way that undermines a critical criminal justice process that allows people who have been rehabilitated to lead normal lives. “It’s not much different than pardoning a Thanksgiving turkey,” says Scott Henson, who writes the criminal justice blog Grits for Breakfast. “They just pick eight or nine trivial cases at Christmas time.”

Perry’s pardon record, while not as stingy as that of some governors, has varied drastically. His banner year was 2003, when he issued more than 70 pardons — 35 of them to defendants in the Tulia drug bust, in which the concocted testimony of a white undercover officer led to the wrongful conviction of dozens of black defendants. “Questions surrounding testimony from the key witness in these cases, coupled with recommendations from the Board of Pardons and Paroles, weighed heavily on my final decision,” Perry said in his a press release announcing that year's pardons.

In 2005, Perry granted 42 clemency requests, the second-highest amount in one year. That year, the U.S. Supreme Court ruled that states could no longer execute murderers who were minors at the time of their crimes. About half of the requests Perry granted that year were commutations of death sentences to terms of life in prison.

Those years, though, were far outside the norm for Perry: Since 2001, he has granted a total of only about 180 pardons for crimes ranging from rape and murder to marijuana possession and passing bad checks. The pardons he granted this month were typical. The eight people he pardoned committed offenses many years ago that were, in many instances, relatively minor, ranging from criminal mischief to burglary. Most occurred when the offenders were young. Seventy-three-year-old Lewis Ray Howell, who lives in Florida now, was pardoned for a theft he committed in 1955 at the age of 18.

Perry can only grant a pardon if the Texas Board of Pardons and Paroles recommends clemency. The board reviews hundreds of requests each year from former prisoners and from inmates who want their sentences reduced or their criminal records cleared, or who want restoration of some of the rights that convicted felons lose. From 2001 to 2009, the board considered more than 2,000 applications. It recommended clemency in more than 530 cases, and Perry granted about 30 percent of them.

Experts say Perry’s record seems to mirror a national trend among governors and presidents, who are granting fewer pardons and issuing them primarily for minor offenses. (Barack Obama's 2010 total, announced earlier this month, was just nine.) The practice, they say, diminishes the value of the clemency process, which is supposed to act as an executive check on the judicial branch of government and provide an incentive for criminals to reform their ways. “It’s unfortunate, I think, when they’re pardoned in December like they are, because it makes the pardon seem more questionable than it should be,” says P.S. Ruckman Jr., a political science professor at Rock Valley College in Illinois who is writing a book about pardons. “It also sends the signal that pardons aren’t that important.”

In his nearly six years as Texas governor, George W. Bush granted only 21 pardons. Compared to Texas governors before them, Ruckman says, Perry and Bush have been particularly parsimonious with their pardons: Republican Gov. Bill Clements issued more than 800 pardons during his eight-year tenure, and Democratic Gov. Mark White issued nearly 500 pardons in four years.

Ruckman says the power to pardon is more important in Texas as a check on the criminal justice system because capital punishment is so prevalent. “Laws are not perfect, and sometimes they have unintended consequences,” he says. “There’s just an extraordinary need for the possibility of clemency in a situation where you have the death penalty.”

Perry's spokeswoman, Katherine Cesinger, says he takes his pardoning responsibility very seriously. “He thoughtfully considers the totality of each pardon request before making his decision and considers each one on a case-by-case basis,” she says.

The national drop in pardon power is a recent phenomenon, experts say, that came about after a few high-profile pardons went bad. Convicted Massachusetts murderer Willie Horton committed rape and robbery while out on furlough, and in 1988 it became a thorn in the side of then-Democratic presidential candidate and Massachusetts Gov. Michael Dukakis. Former Arkansas Gov. Mike Huckabee faced scrutiny last year when a man whose sentence he commuted was charged with killing four police officers. Most recently, Minnesota Gov. Tim Pawlenty has been under fire for pardoning a sex offender who was subsequently charged with abusing a child.

For governors who have higher political aspirations, pardons can be seen as more trouble than they’re worth, Ruckman says. “It’s easy to see these things that have a world of potential problems and little benefits,” he says. But he also says it’s rare that a pardoned person returns to crime. 

In Texas, the Board of Pardons and Paroles would seem to give the governor a kind of political cover, since he can’t grant a pardon without its recommendation. Ruckman says it’s baffling that Perry so often rejects the suggestions of a board whose members he appoints. This year, the board recommended 41 clemency applications to Perry, but he rejected 80 percent of them. “You’ve got to wonder, if he appoints them … why he disagrees with them so much,” Ruckman says.

Of course, pardons aren’t just for people who want out of prison. Many times those who request pardons have already served their time and paid their fines and are simply fed up with not being able to find jobs, buy guns for hunting or vote because of their criminal records. In Texas, there are some 1,400 legal barriers for convicted felons, says Margaret Love, a clemency attorney and former U.S. pardons attorney during the Clinton administration. A full pardon wipes those away and gives the offenders better access to jobs, homes and a normal life, which also means they will be less likely to get into trouble with the law again. “The function of the pardon is precisely to say, ‘Hey, it’s okay now,’” she says.

Love says that if Perry is worried about political fallout, he would do better to rely more on the board’s pardon recommendations instead of picking through them himself. “He would be able to use his power more generously," she says, "and there is certainly a need.”