Pardons in a punitive age

By Alan Bean

‘Tis the season for executive pardons–or at least it used to be. 

The editorial board of the Washington Post is criticizing President Obama for making nine trifling pardons, most of which involve small crimes that date back decades. 

In a slashing opinion piece in the Dallas Morning News, Scott Henson of Grits for Breakfast questions the prevailing practice of handing out a few scattered pardons like Christmas presents while ignoring entire categories of people who have fallen victim to ill-considered policies like putting non-violent citizens  in prison for simple pot possession.

Meanwhile, NYT columnist Bob Herbert takes a stripe out of Mississippi Governor Hailey Barbour and the political establishment of Mississippi for their shabby treatment of the Scott sisters.

I was happy for the Scott sisters and deeply moved as Gladys spoke of how desperately she wanted to “just hold” her two children and her mother, who live in Florida. But I couldn’t help thinking that right up until the present moment she and Jamie have been treated coldly and disrespectfully by the governor and other state officials. It’s as if the authorities have found it impossible to hide their disdain, their contempt, for the two women.

There is no sense faulting individuals like Obama and Barbour for their Grinch-like coldness during this season of peace on earth and good will to those who find no room in the inn.  The President and the Mississippi Governor are about as ideologically opposed as folks working within the political mainstream are allowed to get.   Both men turn a deaf ear to the cries of the abused and forgotten because they are responding to the punitive consensus that has gradually taken hold of our national life.

It is likely that Barack Obama, as an isolated individual, would love to give retroactive assistance to, say, the victims of the crack-powder sentencing disparity that has negatively impacted black communities for a generation.  

Hailey Barbour, in his heart of hearts, may have wanted to tell the Scott sisters to go to hell (or, in this case, remain there).  But these are seasoned politicians and their personal desires and feelings have little bearing on what they do.

It could be argued that Barbour’s decision to suspend the Scott sisters’ sentences (even if dispensed in a lowdown and insensitive manner) was more helpful than the president’s craven inaction.

As Henson and the Post  editorial point out, most of Obama’s pardons involve cases that are as inconsequential as they are ancient.  The Post editorial highlights one pardon in particular:

RONALD LEE FOSTER was an 18-year-old Marine in 1963 when he whittled away the edges of pennies to pass them off as dimes in vending machines. He was sentenced to one year of probation and a $20 fine for mutilating the coins; the conviction kept him from obtaining a gun license in his home state of Pennsylvania.

While the victims of the war on drugs and mass incarceration endure multi-decade, soul-destroying sentences, the president goes to bat for a retiree who never spent a day behind bars.

Meanwhile, New Mexico Governor Bill Richardson was considering the pros of pardoning Billy the Kid, a nineteenth century outlaw responsible for the murders of between eight and twenty-two people (depending on which legends you believe).   Richardson sheds a little light on his inner struggle:

It was a very close call. I’ve been working on this for eight years. The romanticism appealed to me to issue a pardon, but the facts and the evidence did not support it and I’ve got to be responsible especially when a governor is issuing pardons.

Jim Morrison, front man for the sixties rock group the Doors, fared better than the Kid.  According to Rolling Stone, “Florida’s Clemency Board pardoned . . . Morrison for two misdemeanor convictions stemming from a 1969 incident in which he allegedly exposed himself.”

How can we explain this fixation on pardoning dead men while our prisons are bursting with non-violent victims of wrongful conviction, egregious over-sentencing and the national disgrace we call the war on drugs?

It’s simple.  Critics of the criminal justice system make mainstream America uncomfortable.  Much more comforting to hear that there are two kinds of people: good and bad; that most of the folks in the free world fall into the ‘good’ category while every last person behind bars is irredeemably bad (and will remain so upon release–should they be so fortunate). 

Politicians get elected for telling folks what they want to believe.

It was not always thus.  This punitive national mood was carefully constructed by cynical public officials desperate for a political edge.  Scott Henson begins his excellent piece in the DMN with the words of Alexander Hamilton:

The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel.

We have left Hamilton’s checks and balances behind.  In the present consensus, “necessary severity” negates the idea of “unfortunate guilt”.  Guilt, in the view of men like Hailey Barbour, is never unfortunate–it is simply guilt.  Unless, that is, the defendant in question is a white guy working in the governor’s mansion.  Barbour, and his predecessors, have pardoned plenty of people they bumped into in the hall.  In most cases, the recipients of Barbour’s largesse were dangerous men convicted, without controversy, of bloody murder. 

It is good sense and good morality to focus on the plight of particularly sympathetic people like Jamie and Gladys Scott.  Stories trump facts every time.  People who have little feel for (or interest in) the folly of mass incarceration get caught up in the human drama of a particular case.  Jamie Scott will die in prison if she doesn’t get a kidney transplant.  It is clearly outrageous that a two-bit stick up in which no one is hurt should be punished with consecutive life sentences.  We read Mr. Herbert’s columns and our blood begins to boil.  So we send an email to the parole board and the Mississippi governor.  Eventually, the NAACP gets involved and prominent opinion leaders begin to hop on board.  Now we are part of a concerted movement.  Finally, the governor relents (however ungraciously) and our movement declares victory!

There’s nothing wrong with making the most of the human capacity for empathy.  But everyone involved in the justice struggle must understand that the case du jour, while intrinsically important, is ultimately a symbol and symptom of a systemic breakdown. 

Unfortunately, the advocacy community has also fallen victim to the same punitive consensus that has Mr. Obama frozen in the headlights.  We rarely make the jump from empathy to policy.  We care about Jamie Scott, Troy Davis or the Jena 6, but we don’t grasp the wider implications of the stories.  If Jamie Scott is released from prison or the charges against the Jena 6 are radically scaled back, we declare victory and move on to the next moving story.

But what have we achieved?

The Scott sisters case is about the new Jim Crow, a criminal justice regime with one set of rules for citizens and another set for undercaste people like Jamie and Gladys Scott.  They were poor, they were black and the authorities were associating them with a crime involving a firearm.  Who cares if no shots were fired or even if the Scott sisters weren’t holding the gun.  Jurors (and the journalist scribbling on the front row) hear “black”, “gun”, and “hold-up” and its all over. Jamie and Gladys were quickly slotted into the “predatory thug” category and sent to prison for as long as the law (and human ingenuity) will allow.

There are two realities here, and it is essential that they remain distinct: the plight of two human beings, and the ultimate goal of the criminal justice reform movement.  Both realities are fully legitimate.  You can’t fight the new Jim Crow without compelling stories.  Unfortunately, you can focus on stories without addressing the new Jim Crow.  And if we do that there is no criminal justice movement, just a band of bleeding hearts shifting from one horror narrative to the next. 

Like the politicians we criticize, we content ourselves with snatching a few arbitrarily selected brands from the burning, then arguing over who gets the credit.

In Tulia, how many people understood the connection between the Tulia 46 (as they were once called) and America’s war on drugs?

In Jena, how many people saw the Jena 6 as embodiments of the school to prison pipeline?

Until Friends of Justice got involved, the Tulia 46 were a bunch of no-account drug dealers and the Jena 6 were a gang of Ninth Ward-style thugs. 

Until Nancy Lockhart got involved, Jamie and Gladys Scott were faceless numbers in the Mississippi gulag.

Believe me, folks, the NAACP (and any other major civil rights organization) will not go to bat for the victims of the new Jim Crow until some obscure activist works for years to give undercaste people a face, a faith, and a family.  Only then will the mainstream media, Al Sharpton, the NAACP, the other heavy hitters run to the rescue. 

The tattered vestiges of the old civil rights movement have been intimidated and silenced by a punitive (and ubiquitous) national consensus.  We can only go to bat for folks who are considered exceptions to the rule; the normal victims of an unjust and unmerciful system are out of luck. 

Throughout 2011, I will be talking about the economic, political and religious roots of the new Jim Crow and arguing that effective advocacy demands an alternative economic-political-religious vision.  At Friends of Justice we talk about a  “Common Peace Consensus”.  

Stay tuned.

2 thoughts on “Pardons in a punitive age

  1. Too bad Gov. Richardson didn’t pardon ole Billy. Woulda made ‘im feel a whole bunch better.

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