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In Mississippi, Identities of Pardon Applicants Must Be Public

A state judge has blocked the release of 21 people, including five convicted of murder, who were pardoned by the outgoing governor. One issue is whether they had given sufficient public notice of their intent to seek release, allowing time for victims to comment.

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Mississippi Gov. Haley Barbour (Justin Sullivan/Getty Images)

The legality of last-minute clemency decisions by outgoing Mississippi Gov. Haley Barbour appears to hinge on whether the recipients gave sufficient public notice of their intent to seek release. The state's attorney-general, Jim Hood, has said there was not proper notice. A state judge, responding to the attorney general's request, temporarily blocked the release of 21 prisoners, ordered by Barbour.

In Mississippi, public notice is a constitutional requirement for acts of clemency, which include pardons, or acts of forgiveness after the completion of a sentence, and commutations, or shortened prison sentences. Under Mississippi law, the notification onus appears to be on the applicant and allows time for victims to comment on a potential pardon or early prison release before it takes effect.

At ProPublica, we recently reported on bias and transparency in presidential pardons, which require no such public notice. The Justice Department keeps the identity of an applicant secret until the president has granted or denied the pardon. But sometimes victims are privately given an opportunity to weigh in. The Justice Department's Office of the Pardon Attorney, which processes pardon claims and makes recommendations to the White House, can seek comments from victims.

At the federal level, most successful pardon and commutation applicants go through a rigorous application and interview process conducted by the pardon office. Although it is rare for a pardon to be granted for someone who has not applied through the pardon office, presidents can pardon anyone charged with or convicted of a federal crime at any time, with or without paperwork.

Marc Rich, for example, did not file an application through the Office of the Pardon Attorney when he sought a pardon in late 2000 from then-President Bill Clinton. Clinton granted the pardon to Rich, a fugitive financier, on his last day in office in January 2001. The Rich pardon was controversial because he had not applied through the pardon office and because his ex-wife was a major donor to Democratic causes and the Clinton presidential library.

Clinton granted nearly 400 pardons during his two-term presidency. George W. Bush granted 189. So far, President Barack Obama has pardoned 22 people.

ProPublica's examination of pardon decisions from 2001-08 found that white applicants were nearly four times as likely to receive pardons than minorities. Other factors, such as financial stability, employment, marital status and the support of a member of Congress, also increased the likelihood of receiving a pardon.

Presidents have also granted few commutations in recent years. Bush granted 11, including one to I. Lewis "Scooter" Libby, who had served as chief of staff to Vice President Dick Cheney and was convicted of perjury and obstruction of justice in a leak case. Obama has commuted the sentence of one person.

Not all governors have the power to pardon. In some states, the power is shared by the legislature and the executive. Some states have set up pardon boards to review applications and either act independently or advise governors of their recommendations.

Pardons are more common in some states than at the federal level. During the period in which Bush pardoned fewer than 200 ex-felons, the governor of Pennsylvania pardoned more than 1,000 people.

Pardons and other acts of clemency can also be controversial and, in some cases, riskier for a governor who may have political ambitions beyond his or her home state. Many federal pardon recipients were convicted of financial or drug-related crimes and very few of violent crimes. One exception during the Bush presidency was a pardon granted to a bank robber who was armed during the crime. But murderers have been pardoned or won early prison release at the state level.

In the court order blocking the 21 pardons, issued Wednesday in Mississippi, Senior Circuit Judge Tomie Green noted that during Barbour's tenure he had granted clemency to individuals convicted of "murder, manslaughter, rape, armed robbery, aggravated assault, sexual assault, kidnapping, burglary, domestic violence, etc."

Barbour's last day in office was Jan. 10. His pardons and commutations, Green's restraining order (PDF) notes, were issued on or just before that day. Some of the individuals who have been or would have been let out of prison early "failed to publish a petition for pardon ... for thirty days prior to the purported pardon granted to them by former Governor Barbour," the order says. Alternately, the order notes, some had failed to prove that they had published a notice.

Among those pardoned were five men convicted of murder. Green concluded that it was possible the clemency acts had violated the state constitution. The 21 will remain behind bars while the order is in effect.

Margaret Colgate Love, who served as the U.S. pardon attorney from 1990-97, said the Mississippi "case seems to be another example of how a governor's failure to observe established pardoning procedures can get him in trouble. It also shows how waiting to the last minute to use the pardon power is a really bad idea."

Barbour was criticized early in his governorship for a lack of pardons, then faced new criticism when he began issuing them. By the time he left the governor's mansion, Barbour had issued more than 200 acts of clemency, more than any recent predecessor.

A 2009 Slate article examined Barbour's decision to release convicted murderers who had been part of a state trusty program that allowed them to work odd jobs around Barbour's official residence. Others pardoned last week appear to have worked in the same program.

Barbour, a former Republican Party chairman and lobbyist, last year had explored running for president but decided against it.

Correction: The original version of this post misstated the length of Bill Clinton’s presidency. He served two terms, not two years.

Barbour is back where he belongs, in Washington, D.C. as a well paid lobbyist, leaving the usual mess behind for others to clean up.  It is amazing who people vote for, e.g., known Medicare crook Rick Scott in Florida.  A 5-minte Google search would have exposed this clown.  For all of their posturing about the sancity of the Constitution (including state conmstitutions), politicans run roughshod over the law like sociopaths on the prowl and they still get elected.  In the end the Haley Barbour’s of the world are our fault, collectively, because we elect them.  Citizens need to educate themselves about the people who run for office and the major issues that impact their lives.  Ignornance is a choice, especially with the availability of the Internet.  One day on my first federal job at the VA I was confronted by an angry disabled veteran demanding we give him more money on the spot.  After confirming he wasn’t a psychiatric outpatient, I explained he was sitting in a VA field office where claims for benefits were processed and the monthly disability rates were set by Congress.  He looked at me like I had three heads, and then I explained how he could apply to have his disability reviewed.  That was 40 years ago and little has changed.  We get the kind of government we deserve.

Max said: “In the end the Haley Barbour’s of the world are our fault, collectively, because we elect them.”

Not “our” fault, it is the fault of those who vote for them. “We” speak out at work, on the highway (bumper stickers) and on the internet. “They” are WILLFULLY IGNORANT.

I do not share blame with the guilty.

Chuck Stemple

Jan. 15, 2012, 8:11 a.m.

In my opinion, no politician should have the power to commute ANY felons sentence, for any reason, ever. The people have gone to considerable trouble, ane expense to incarcerate these people, and they, especially poilitical criminals, should be turned loose. If some miracle of new evidence occurs, other channels, involving more than one, or two persons are available, or should be.

Chuck…I have to agree with you.  Unless there is a blatant miscarriage of justice (yes, it DOES happen), then I think the courts should decide who should have their sentence shortened or commuted.  As you said, much money was spent putting these people IN prison….there had to be reasons why a jury sentenced them to the particular sentence they were given.  So, unless something comes up; i.e., an eye witness who proves the person tried for the crime was NOT the person who actually committed it….then governors should NOT be allowed to mess with justice.

Chuck Stemple, this is the first time I have ever singled out a comment but you need to read up on the Norfolk Four! It is sad that procecuting attorneys have immunity from being required to seek justice and live to just close cases in whatever slamshot way they feel like closing them and getting convictions. You also need to read: THE ULTIMATE PUNISHMENT by Scott Turow! and maybe read about the well over a hundred people released from death row because of false convictions.

@ Dan Jenkins First of all, congrats on having never made a poor voting decision that came back to bite you.  I wish I could say the same, but in all honesty, I cannot.  When I use the term “We” I mean all of us, collectively; low information voters, single issue voters, tea party fanatics, country club Republicans, limousine liberals, and the enlightened few who never err.  My point was we are all in this together and we need to vote smarter at all levels of government.  That is my frustration with the polity, i.e., they vote against themselves too often and take us all down with them.  Relative to Haley Barbour, I doubt if 10% of the people who voted for him are pleased with his arbitrary, foolish pardons, and I doubt if they know that much about his real corporate background and the economic consequences of his political views.  But now he’s back with his real friends peddling influence for big bucks in Downtown Oz.

While I’d like to agree with “pardons are bad,” the fact of the matter is that there are serious flaws, starting with (as Fleetwood suggests) the prosecutor needing the win.  Your lawyer is negotiating, rather than defending you.

A great example is traffic court.  You walk in with a ticket for running a red light (which let’s say never happened) and you leave paying for a parking ticket, just so nobody loses face.  The principle doesn’t change much in big trials, where the prosecution just needs you to be guilty, with the charges mostly irrelevant.

If we’re not dealing with plea bargains, the next problem is that public defenders stink.  I’ve got a lot of respect for many of them, but they’re underpaid, stressed from dealing with rotten people, and (frankly) often the people who couldn’t get an offer from a firm because they lack ability.  So assuming the prosecutor isn’t trying to nail you just for the notch on his belt, your defender (assuming you can’t afford your own lawyer) just wants to go home to cry into his pillow for the night.  And again, I say that with empathy, not mockery.

Then you have the spin on ambiguous evidence, with the defense rarely able to afford serious experts and the prosecution having access to experts trained specifically to convince jurors.  That’s not even an exaggeration—through a lot of begging, pleading, and making dinner for the facility owner, I managed to get a seat at a course run locally for cops and crime victims, where they’re taught how to testify.  Neat stuff, but terrifying if you’re not big on authority.

So I don’t see a problem with a pardon power any more than I see the executive’s veto power as a problem.  It’s another level among the checks and balances.  However, it does need to be done transparently, in the public eye, and preferably disallowed for any corrupting influences like campaign contributions.  I guarantee the situation would change dramatically if the candidate names were public and anybody donating money (or from donating families) was barred from pardon.

From the previous article on the subject, I’d also argue that there shouldn’t be a pardon for economic reasons.  “I can’t get my inheritance if I’m a felon” is interesting…why, exactly?