Scholarship Saturday: Presidential pardons for convicted wartime murderers
By Isaac Kennen
About three years ago, the New York Times reported:
An unusual coalition of largely older and conservative former military men and younger, left-leaning law students [from the University of Chicago Law School], [have launched] a joint campaign for one of the most unlikely causes: clemency for troops convicted of killing civilians in Iraq and Afghanistan.
That unlikely team has represented and obtained the early release of a number of high-profile wartime convicts, including SGT Evan Vela (CAAFLog case page), 1LT Michael Behenna (CAAFLog case page), SGT Michael P. Williams (covered by the LA Times, here), SSgt Lawrence Hutchins III (CAAFLog news page) (covered by the Washington Times, here); Pvt Corey Clagett (covered by Fox News, here); and SPC Franklin Dunn (profiled, here). [Update: Input from a reader has provided greater clarity concerning the services which the above-referenced coalition, United American Patriots, has provided to these men. The menu of services offered may have differed depending on the case. Some men may have received only monetary support from United Patriots, some may have received only support by civilian pro bono counsel, and some men, as the New York Times reported, may have received the assistance of law students from the University of Chicago School of Law.]
The effort to obtain pardons or other clemency for men convicted of wartime murder is back in the news (Fox News and Military.com). Behenna has followed-up his parole with an effort to obtain a pardon. That effort has gained the approval of the Attorney General for the State of Oklahoma, who has written a favorable letter to the President.
This renewed push for leniency may be partially inspired by the pardon of Kristian Saucier, a Navy sailor who pleaded guilty to illegally retaining photographs of classified areas of a nuclear submarine. On March 10, the President announced that pardon by Tweet:
Congratulations to Kristian Saucier, a man who has served proudly in the Navy, on your newly found Freedom. Now you can go out and have the life you deserve!
With revitalized attention being given to pardons, it might be helpful to explore the principles that guide the exercise of clemency. The keystone guide for that power is The Grounds of Pardon, written in 1927 by University of Oregon Political Science Professor James D. Barnett. Professor Barnett’s article was selected for publication by famed legal scholar (and accomplished Army judge advocate), John Henry Wigmore, in the journal he founded at Northwestern Law School – the Journal of Criminal Law and Criminology.
As an initial matter, while he asserts that the basis for granting clemency should be specified and the executive ought to adhere to those limitations, Professor Barnett emphasizes that the exercise of clemency discretion should remain an entirely executive, rather than judicial, function:
The discretion of the pardoning power should be limited by positive rules of law, based upon such considerations as [will be outlined below]. . . . [T]he legitimate grounds of pardon are all of them capable of being, and all of them ought to be, specified.
It is not here suggested, however, that the courts should have the power to review executive action, however specifically the grounds for pardon might be enumerated. But it does not follow that limitations would be any more ineffective in this direction than in case of other so-called “political questions,” the determination of which by the executive is final.
The Grounds for Pardon, 17 Am. Inst. Crim. L. & Criminology 490, 530.
According to Professor Barnett, the first grounds for clemency can be generally characterized as a “failure, real or alleged, of justice in the courts.” Id. at 499. The sort of failures which have been remedied, and which fall into this category, are numerous:
(1) Practical punishment of the (guilty) defendant by long imprisonment before trial, sometimes for months and even years. . . .
(2) Failure to provide a proper defense—[including] counsel was incompetent. . . .
(3) Allowing the defendant to plead guilty under a mistake. . . .
(4) Coercion into a plea of guilty, improper selection of the jury, manipulation of the jury. . . .
(5) Wrongful admission or exclusion of evidence. . . .
(6) Conviction upon insufficient, unreliable, perjured evidence; unfair trial in general; conviction of those not guilty to the degree of conviction[; and,] conviction of the absolutely innocent, the insane, the feeble-minded, stupid. Very often clemency is granted [on this grounds] because only of “grave doubt,” “doubt,” “some doubt,” “uncertainty” as to guilt. . . .
(7) Imposition of penalties disproportionate to the offense or contrary to the agreement between the prosecutor and the defendant. . . .
(8) Lack of uniformity of sentences, in the same jurisdiction or in the same court, for similar offenses and circumstances. . . .
(9) Failure to consider or sufficiently to consider the mitigating circumstances of the particular case. . . .
(10) Mistake in law; mistake in sentence or in commitment.
Id. at 499-505.
In explaining the willingness to grant clemency for such failures, Professor Barnett quoted a member of the Colorado Board of Pardons:
When I remember that forty-five percent of the convictions for felonies that have been taken to the Colorado Supreme Court since its organization in 1867 have been reversed, my respect for the power of pardon increases . . . The mistakes of judges are legion, and the ways of juries are past understanding. For one abuse of the pardon power there are a thousand abuses of the convicting power. I have known a judge who, just after sentencing a man, sat down and wrote our board all the mitigating circumstances in the case while they were fresh in this mind and he alive and well, so the convict might have the benefit of it in after years on application for clemency. I have read dozens of communications from judges saying their sentences in specific cases were too severe . . . District attorneys time and again tell us that particular sentences are excessive and thus confess that a well-intended prosecution was transformed into an unintended persecution. It is a very common thing for us to have petitions for clemency from a majority of the jurors who rendered the verdict of guilty in the given case, and such petitions from all twelve jurors is not a novelty.
Id. at 505
That quote leads into the second grounds for clemency – “The substitution of the judgement of the pardoning authority for that of the courts [and] to the judgement of those familiar or supposed to be familiar with the circumstances of the offense, and to public opinion.” Id. at 505-506. In applying this grounds:
The recommendation of the judge who presided at trial, the prosecuting attorney, the jurors, the witnesses, is very often the only ‘reason’ for pardon assigned. The [advice of] the judge and district attorney who acted in the cases . . . is often followed without question.
Id. at 506. To that point, President Cleveland once noted:
I should deny the application for pardon in this case except for the very earnest appeal made to me by the judge who sentenced the convict. In deference to his opinion and wish the pardon is granted, and because in the face of this emphatic representation I distrust my own judgment, which would lead me to refuse the application.
Professor Barnett cautions that “deference to the judgment of others should be distinguished from deference to ‘public opinion.’” Id. In that vein, he also urges that, when considering letters of recommendation, the clemency authority ought to consider the fact that it is relatively easy to obtain such letters depending on “the state in life of the prisoner and the political and social influence that he can command.” Id. at 508. In contrast, “generally adverse opinion has no proper expression.” Id.
Further, a clemency authority that is too eager to please public opinion can be lured into injustices:
[Oregon] Governor Olcott delayed the pardon of two men whom he considered to be absolutely innocent of the crimes for which they were convicted on account of the inflamed state of the public mind caused by recent murders. “I saw at the time of these murders,” he said, “that for the benefit of the prison system, for the benefit of Pander and Branson themselves, and for the benefit of everyone concerned it would be a sorry mistake to grant them executive clemency at that time, but upon the return of the public mind to a normal state I would exercise clemency in these cases. I deemed it better that these two men should make vicarious sacrifices for a time for the benefit of the large number of men involved.”
Id. at 507-508.
The third grounds for clemency is “the infirmity of the law, real or supposed, in relation to both the definition of crime and the imposition of penalties[.] Id. at 508. The essence of this ground is the belief by the executive that the criminal law was not intended to apply (or at least not fully) to the particular facts or circumstances at issue in the case.
It has been presumed that, in cases where the law operates too harshly, had the legislature known of the particular facts, and been familiar with the general surroundings, it would have relieved them of the general terms of the law, and the courts, had they the power, would have excepted them from the particular statute.
Id. at 509 (internal quotation omitted). Some have premised that this is the only grounds upon which a clemency authority should act – all other grounds, some contend, are illegitimate. Id.
The case of ‘political offenders’ is the most conspicuous. Technically traitors, if they escape the limit of punishment during the period of commotion, they are always, sooner or later, pardoned.
Id. at 510. The reason for this is that “a broad line of distinction is drawn between a violation of the law in which political opinion is the controlling element and those infamous crimes of which moral depravity is the principal ingredient.” Id. at 511.
You may call it just or not, but such is the public opinion of the civilized world, and you find it in every civilized country.
Another type of case where clemency sometimes lies under this grounds are offenses which the legislature has repealed without expressly providing for retroactive effect. Id. at 515. Another sort of crime which often result in executive clemency under this grounds are offenses which are “only a ‘technical’ rather than a ‘real’ violation of the law.” Id. at 513. In particular, Professor Barnett points to “testers of the validity of criminal statutes” as a class of offenders which have often received clemency under this theory. Id.
Crimes of necessity are sometimes pardoned under this grounds, on the theory that the legislature intended the criminal laws to apply only where they would achieve a deterrent effect. For such pardons, the rationale goes:
When threats are ineffective, they should not be made, and their fulfillment is the infliction of needless and uncompensated evil.
Id. at 512.
Perceived “petty” offenses are also likely to be more or less condoned under this third grounds for clemency. President Cleveland once granted relief, explaining simply:
The sentence is nominal; the affair was unimportant, and should have been disposed of by a nolle pros. of the indictment.
Id. at 513.
Under this grounds for clemency, executive authorities also sometimes presume the legislature would wish for leniency to be given to “those who commit offenses, even murder, against others for the benefit of the latter—the girl who kills her lover to put him out of misery, the father who kills his daughter for the same motive[.]” Id at 511. Similarly, offenders have received clemency when their crimes are committed for the benefit of others – such as committing theft to feed one’s children. Id.
Further, believing the legislature would have wanted it, clemency is often given to “children too young to appreciate the nature of the offense” and to women offenders. Id. at 514. However, even in 1927, it was noted that there was “much opposition to discrimination, in general, in favor of women, and, perhaps, even among women themselves.” Id.
Clemency has also been granted under this third basis on the belief that the legislature would not want a convict punished who was truly ignorant of the law at the time of the offense, despite that ignorance not constituting a legal defense. Id. at 515. Additionally, leniency has been premised on the assumption that the legislature would share the “popular prejudice against conviction upon circumstantial evidence.” Id.
Under this grounds for clemency, prisoners are often released if there are “effects of imprisonment on the convict not contemplated in the sentence.” Id. at 518. For example, sometimes inmates may suffer from a disease or defect, physical or mental, that “can be relieved, if at all, only by release from prison.” Id. In one such case, then-U.S. Attorney General (later Secretary of State) Philander Knox explained:
It is not the intention of the [legislature] in punishing these prisoners for the offense of robbery to cause their death.
The fourth grounds for clemency is that “the penalty prescribed by the law is considered to be excessive or otherwise improper.” Id. at 516.
Clemency granted on this basis sometimes has little to do with the merits of the individual prisoner’s case. For example, the Governor of Arkansas “pardoned hundreds of convicts” without regard for their individual merits, but “because of his opposition to the convict-labor system of the state.” Id. at 517. On the same grounds “a long line of governors” have refused to sign death warrants. Id. at 516.
Broad grants of clemency have also been offered on account of “changes in political conditions” – sometimes resulting in “the wholesale release of . . . military offenders after the close of a war or rebellion.” Id. at 525. It has been reasoned that wartime offenses - perhaps like war itself - are essentially political in nature, and therefore convicted wartime offenders are essentially political prisoners:
The war has passed, and it may be assumed that the danger has passed with it. Further imprisonment of political offenders is unnecessary cruelty. . . . The lawless environment which surrounded them has largely disappeared and has been succeeded by respect for law and order.
The practice of granting broad acts of clemency is ancient. Montesquieu noted:
The [Byzantine] Emperor Maurice made a resolution never to spill the blood of his subjects. [Eastern Roman Emperor] Anastasius punished no crimes at all. [Byzantine Emperor] Isaac Angelus took an oath that no one should be put to death during his reign.
Baron de Montesquieu, Charles-Luis de Secondat, The Spirit of the Laws (1748), book 6, ch. 21. But, Montesquieu also cautioned:
Clemency is the characteristic of monarchs. In republics, whose principle is virtue, it is not so necessary.
Id. Further, speaking to the question of when clemency should be offered – Montesquieu advised:
This is a point easier felt than prescribed. When there is danger in the exercise of clemency, it is visible: [though by] nothing so easy as to distinguish it from the imbecility which exposes princes to contempt and to the very incapacity of punishing.
The fifth grounds for clemency is that “the convict has ‘thoroughly reformed,’ is ‘deeply penitent,’ and ‘has learned his lesson.” The Grounds for Pardon, at 519. There are several difficulties with this grounds. The first is a matter of proof. Only good conduct outside of prison is truly probative.
Good conduct inside [a prison], which is often the only available evidence, is very inconclusive, since the environment of the prison has greatly reduced opportunity for criminal conduct.
Id. at 520. Further, Professor Barnett notes that “experience has shown that the most hardened criminals” are the most likely in prison to demonstrate good conduct. Id.
Another trouble with this grounds is that rehabilitation is not the sole function of imprisonment. Attorney General Harry Daugherty (a prohibition-era Attorney General said to have regularly sold bootleggers pardons, paroles, and protection from prosecution) once explained in a letter to the President:
Very frequently, so far as the individual is concerned, all the objects of reformation and promises of good citizenship are accomplished the very hour the prisoner enters the penitentiary, and considered by himself alone might, with safety, be relieved from further imprisonment. To do so, however, would not effectuate the object sought to be accomplished by reason of the sentence imposed, and that is the deterrent effect resulting as a matter of example to others by reason of his imprisonment.
The Grounds for Pardon, at 520-521.
Conversely, while a convict might be denied release, despite being reformed, because they “haven’t served enough time, yet,” a convict that has been imprisoned for a long while might be released because “time concludes all things,” “he ha[s] suffered enough,” or “all the best years of his life have been passed in confinement.” Id. at 524-525.
Atonement – repaying the victim of theft, and the like – is often seen as being important to the question of whether a convict is fit for clemency on this grounds. But, Professor Barnett cautions:
Such treatment of criminal offenses, of course, obliterates the fundamental distinction between criminal offenses and merely tortious acts. The arrangements for such compensation at times look very much like the downright purchase and sale of pardons.
Id. at 522.
Nonetheless, atonement is important. And it does not always require the exchange of monetary value. “Military service has received abundant recognition” for purposes of atonement of harms to society. Id. at 523. Even military service pre-dating the offense has been counted to the benefit of the accused:
We, the jury, find the defendant not guilty, and that fighting at San Juan covers a multitude of sins.
Id. at 523.
However, some commenters have long found one particular sort of atonement – “turning state’s evidence” – to be detestably against the public interest:
The practice [of offering clemency in return for aid in prosecuting other offenders] authorizes “treachery, which is detested even by the villains themselves; and introduces crimes of cowardice, which are much more dangerous than crimes of courage. . . . Besides, the tribunal which has recourse to this method betrays its fallibility, and the laws their weakness, by the assistance of those by whom they are violated.”
Applying the principles Professor Barnett has put forth to individual cases cannot be a mechanical enterprise. But, justice demands that clemency - including for military offenders - should not be granted on an arbitrary basis. Further, justice demands that, when it occurs, the exchange of clemency should be put in its proper light:
The acceptance of a pardon confesses guilt. This ancient theory has actually caused the refusal of pardons in our time.
The Grounds for Pardon, at 495.