Mississippi Attorney General, Jim Hood, brought a lawsuit challenging twenty-one of the ex-Governor’s pardons as unconstitutional under Section 124 of the Mississippi constitution because these twenty-one inmates failed to publish notice of the pardons in a newspaper thirty days prior to the pardons. Governor Barbour countered by arguing that notice does not, as a technical matter, control the Governor’s authority concerning who to pardon, and that his decisions are non-justiciable judgments reserved only for the governor. Furthermore, Barbour claims that his decision was sensible because over ninety percent of those pardoned were already released on some form of parole, posed no threat to the community, and his action would allow them to obtain gainful employment and move on in their life. Mississippi Circuit Court Judge Tomie Green ordered an injunction, which blocked the release of the twenty-one inmates, and the Attorney General recently urged the Mississippi Supreme Court to uphold the injunction and render the pardons void.
“It’s unfortunate Governor Barbour didn’t read the constitution,” said Attorney General Hood. Critics of Barbour’s pardons claim that in addition to failing to comply with the state constitution, many of those pardoned still present a risk to public safety or simply do not deserve a pardon for their crimes. They point to the case of David Gatlin, who two-weeks prior to his pardoning, was denied parole for the 1993 murder of his estranged wife and attempted murder of her friend. Equally troubling critics claim, is the situation of Harry Bostick who, while sitting in jail for his fourth driving under the influence offense and waiting to potentially face vehicular homicide charges, was granted a pardon after such a recommendation from the Mississippi Parole Board. Preliminary investigations into why he was pardoned strongly suggest that neither the Parole Board nor Governor Barbour were aware of Bostick’s fourth arrest and pending criminal charges. Governor Barbour provided no explanation for the error in communication.
These pardons bring back the memories of President Clinton’s pardon of fugitive financier Marc Rich Both caught the public off guard and inspired the public to ask a fundamental question: when evaluating who to pardon, should a governor act like a jury – hear evidence and make credibility determinations – or a judge – deciding pardons based on logical determinations of whether a person poses a danger to society? Should a governor’s decision be subject to judicial or legislative review?
It seems that Governor Barbour was attempting to be logical in his process with the goal to pardon those who successfully completed a major portion of their sentence, and for practical reasons could use the pardon to be more productive members of society. Given the overcrowding in American prisons, this approach seems to serve the public interest. Nevertheless, the Bostick situation reveals that the ability to be purely logical is limited and potentially subject to bureaucratic error. Moreover, nobody can deny that normative judgments of justice, atonement, and fairness, which are inherently subjective, are at some level incorporated into these decisions. One can reasonably infer the thirty day notice period was designed to permit victims, families, and communities to express their reservations to pardon petitions. Thus, a governor is placed in the unenviable role serving as judge and jury.
What is the right answer? Legally, the Mississippi Supreme Court will tell us soon. People are mixed in their views as to how it will rule. Will this result in major reforms to the governor’s pardon power in Mississippi? The answer to that question is above my pay grade. Regardless, one should be careful if they are hoping that the pardon power will be stripped away or severely curtailed. Our criminal justice system is a function of our collective values that seeks to deliver justice for victims and society. Still, from time to time it can fail, which then requires an opportunity to correct those mistakes. Once a jury has rendered a verdict, though, sometimes the best and only way to reverse a gross injustice is through a pardon – a collective apology. But the exercise of a pardon can itself be a gross injustice, as Mississippi is teaching us right now. The case of Harry Bostick is exhibit #1. In such cases, we should be prepared to carve out an exception to a governor’s decision and place it under judicial review. Otherwise, we leave open the possibility that mailroom errors and bureaucratic fumbling becomes a substitute for the orderly administration of justice.
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