Why O. Henry? Would pushing Jack Johnson pardon have more 'symbolic heft'?

The first bit of publicity for the Pardon O. Henry! campaign at pardonohenry.org is starting to roll in. Jordan Smith at the Austin Chronicle has a short item, and MSNBC's Kari Huus has a longer piece, comparing this campaign to efforts to pardon another great Texan, Jack Johnson, whose posthumous clemency application was rejected by President Obama in 2009:

In that effort, spearheaded by Sen. John McCain, R-Ariz., and Rep. Peter King, R-N.Y., the subject was black heavyweight boxer Jack Johnson, who was imprisoned nearly a century ago for violation of the Mann Act, which made it illegal to transport women across state lines for "immoral purposes." The case was seen as punishment for Johnson's unapologetic relationships with white women, and a warning to other black men.

Ms. Huus (who btw has done good reporting on clemency issues), thinks that Jack Johnson's cause would be "arguably one with more symbolic heft." Grits, though, must respectfully disagree.

For starters, President Obama has already turned down Johnson's pardon, and as much as I supported that effort, which was notably led by GOP Congressional leaders, Grits doesn't expect the President to flip flop. But there's another reason I think championing O. Henry's pardon carries just as much if not more "symbolic heft" when it comes to critiquing the president's parsimonious pardon policies, and I articulated that view this morning over at the Pardon O. Henry! blog:

Why O. Henry?

The short answer is that this campaign didn't choose William Porter, President Barack Obama did (or more likely one of his speech writers). When the President quoted the great writer in the midst of the ceremonial pardoning of a turkey last Thanksgiving, it brought the absurdity of 21st-century clemency into crystal-clear perspective: The bird may be pardoned but the man may not be forgiven, even if he was innocent, indeed even as his prose is purloined.

Just as the pardoned bird was symbolic, so is centering a campaign for expanded use of presidential pardon power around a writer honored by the President, but from a clemency perspective only in the breach.

That's why, to me, a campaign for Porter's posthumous pardon has plenty of "symbolic heft," though I suppose it depends on precisely what one is trying to symbolize. Sign the petition. Tell Barack Obama to "Pardon O. Henry!" and reinvigorate presidential clemency powers.

Grits launches petition to clear Texan writer: Pardonohenry.org

After Barack Obama last November quoted the renowned short story writer O. Henry while pardoning a turkey, even though the writer's own posthumous pardon requests had been denied, Grits just couldn't help myself: Readers may recall I authored a polemic titled, "Eat the turkey, pardon O. Henry!," and shortly thereafter, unbeknownst to all but a few, I purchased the URL domains for pardonohenry.org, com, and net.

Today Grits is pleased to announce the launch of the pardonohenry.org website, the main function of which is to host an online petition asking President Barack Obama to grant a posthumous pardon to the great short story writer. Prof. P.S. Ruckman, who blogs at Pardon Power, is collaborating, taking the lead to prepare the application.

O. Henry, born William S. Porter, may or may not have committed the crime of embezzlement for which he was convicted in Austin in 1897. He claimed innocence throughout, but he also jumped bail and fled to Honduras, returning to face trial and imprisonment in order to care for his dying wife. In the end, his guilt or innocence probably doesn't matter. He produced among the best short stories in American literature, some while incarcerated. Here's the full text of the petition:

To President Obama and the Office of the Pardon Attorney, Department of Justice:

In this 150th year after William S. Porter's birth, I ask that you posthumously pardon him and in so doing honor this great American writer better known by his pen name: O. Henry.

O. Henry's works are among America's great contributions to English language literature, and he is widely credited with reinventing the short story. His writings were probably required reading at some point in your education. The nation's most prestigious short-story award is the PEN/O. Henry Prize. This year the US Postal Service will issue a stamp featuring his image. It's past time for the writer's recognition by the President as well in the form of a posthumous pardon.

Though you quoted O. Henry last year while pardoning a turkey, pardons are not mere jokes or symbols, nor should they be reserved for a turkey or two before Thanksgiving. They are a critical constitutional function that returns fairness and grace to a criminal justice system sorely short of those elements.

O. Henry always claimed innocence, but pardons are not just for the innocent. Alexander Hamilton in Federalist Paper 74 (1788) wrote that, "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." As executive clemency has withered in use, America has seen the criminal justice system's cruel countenance blossom in full -- prisons overflowing with petty offenders, families broken, innocent people released after decades thanks to DNA tests that remain difficult to obtain.

Pardoning William S. Porter would signal that you understand and value the true purpose of executive clemency powers in the justice system -- not just as a symbol but also a remedy for both actual innocence and "unfortunate guilt," one that provides a healing salve even for century-old wounds.

Please sign the petition and promote it via social media, email lists, word of mouth or any other means at your disposal. The URL is easy to remember: Pardonohenry.org. We'll be adding more content as we go along, but for now there's also a blog at the site that includes some original items not seen on Grits, including:

• Why a Pardon O. Henry! campaign? 
• President should pardon O. Henry as postal service profits from him 
• Children attend schools named after unpardoned felon since 1902
• Is it possible O. Henry was actually innocent?
• 'Criminous Nonsense from O. Henry'
• O. Henry on O. Henry: The author's only interview, 1909
  
• 'Work a little history into your travels on the Lone Star literary tour'
• Exhibit: 'O. Henry: A Short Story'
  
• Pardon me, Louisiana: Bobby Jindal's chincy clemency record

Though as the petition says, it doesn't really matter, Grits is now fairly satisfied that William S. Porter was actually a victim of a false conviction lo these 115 years ago. The writer was depressed following the death of his wife and barely participated in his own defense, though he always insisted on his innocence. But the late Texas Third Court of Appeals Justice Trueman O'Quinn, an avid fan and collector of all things O. Henry, also believed Porter innocent and spent years unsuccessfully seeking his posthumous pardon. (After that, it should be mentioned, the now-departed curator at the O. Henry Museum in Austin filed another application during the George W. Bush Administration.) In a chapter O'Quinn authored in a book about the writer, Time to Write, he recorded that the prosecutor in Porter's case, Duval West (who went on to be appointed a federal judge in the Western District of Texas by Woodrow Wilson), years later 'told a reporter that he believed Will Porter was the victim of the banking practices of the day and innocent of intentional misappropriation of funds.'"

Even 100 years ago prosecutors weren't keen on admitting mistakes, so from the perspective of a pardon request that's a big deal. Both Trueman O'Quinn and Duval West, two of the preeminent Texas barristers of their respective generations, more closely examined the evidence than Grits ever will and both concluded Porter was likely innocent. Combine that with fatal flaws in the indictment, which claimed the alleged offenses occurred months after he'd left the bank and moved to Houston to write a column for the Post, and to me, absolutely Will Porter deserves pardon based on innocence, if not also for his contribution to American letters during and after his incarceration.

Innocent or not, "Why do this?," I'm inevitably asked. This project serves numerous goals for Grits. First and foremost, it amuses me, which some days is all it takes. Second, it highlights a bipartisan consensus among politicos and the media that has diminished clemency in recent decades, a trend which, in this age of mass incarceration, to me is the opposite of what's needed. And third, it honors and celebrates a legendary Texan writer and publisher whose Austin weekly, The Rolling Stone (no, not that one, Porter beat 'em to it), was the direct heir to William Brann's Iconoclast, a Texas journalism legend and the state's first, no-holds barred muckraking publication (Porter launched his magazine by buying out Brann at a low point for $250). At its zenith, Porter's Rolling Stone supposedly had 1,000 subscribers at a time when Austin had 11,000 residents, even if it always seemed to teeter on the brink of bankruptcy.

But there's one other, more fundamental reason for launching this project at this particular point in time: Grits should announce that just this week papers were filed to create the "Grits for Breakfast Action Fund," a Texas nonprofit for which we intend to seek 501c(4) status. (That means soon, but not quite yet, Paypal donations won't deduct sales tax: Will notify folks when; many have asked.) My hope is that this entity will become a vehicle to influence policy and legislation here in Texas, and aim to build up web organizing infrastructure headed into the session toward that end. The Pardon O. Henry! campaign provides an opportunity to get some of these e-activism tools set up and take them out for a test run on a project with bit more of a leisurely pace than anything that occurs at the Texas Legislature.

To summarize, this project was designed to be fun, to address a serious subject in (one hopes) a creative way, and to pay homage to my own roots as a Texan writer. But it also aims to lay the groundwork for future web activism promoting a wider array of criminal justice reforms. So go sign the petition, poke around the site, tell your friends, and help promote a national discussion on the decline of clemency and the resulting redaction of mercy from the American criminal justice system. And for heaven's sake smile while you're doing it, as though you've just savored one those classic, O. Henry twist endings.

MORE: See a press release announcing the petition drive.

Obama the Merciless: Is DOJ to blame?

The Washington Post has a compelling story about a man's quest for a federal sentence commutation from the Bush and Obama Administrations and the biased interpretations, flawed through omission and understatement, given the President by the Office of the Pardon Attorney at the US Department of Justice. It's a substantial story so those interested should read the whole thing, or here's a brief summary from P.S. Ruckman at Pardon Power.

Grits' immediate interest lies in reported criticisms of the internal workings of the Pardon Attorneys office, including calls to outright abolish it. In the case of Clarence Aaron highlighted in the story:

That Aaron joined the long line of rejected applicants illuminates the extraordinary, secretive powers wielded by the Office of the Pardon Attorney, the branch of the Justice Department that reviews commutation requests.

Records show that Ronald Rodgers, the current pardon attorney, left out critical information in recommending that the White House deny Aaron’s application. In a confidential note to a White House lawyer, Rodgers failed to accurately convey the views of the prosecutor and judge and did not disclose that they had advocated for Aaron’s immediate commutation.

But it's not must one individual thwarting more active clemency recommendations, some argue, but an institutional, prosecutorial anti-clemency bias from prosecutors at the Justice Department:

Last week, the American Constitution Society sponsored a panel discussion on Capitol Hill devoted to the pardon issue. President Obama’s former White House counsel Gregory B. Craig said the president could issue an executive order eliminating the pardon office.

“We cannot improve or strengthen the exercise of this power without taking it out of the Department of Justice,” Craig said.

He advocated for a bipartisan review panel that would report directly to the president.

The number of pardons awarded has declined sharply in the past 30 years, as have commutations. Obama has rejected nearly 3,800 commutation requests from prisoners. He has approved one. Bush commuted the sentences of 11 people, turning down nearly 7,500 applicants.

A former pardon office lawyer said some applicants have been turned down “en masse” with little, if any, review, a claim the Justice Department disputes.

Here's an interesting tidbit: "Under Ronald Reagan and Bill Clinton, both two-term presidents, one applicant in 100 was successful. Under Bush, approvals fell to barely better than one in 1,000." Obama's record is even poorer.

Under Barack Obama's US Pardon Attorney Ronald Rodgers, paralegals began vetting cases instead of attorneys, and large batches of cases would allegedly be denied en masse with little review (though of course Rodgers insists the review was adequate):

Under Rodgers’s predecessors, staff lawyers reviewed each case, gathered pre-sentence and Bureau of Prisons progress reports and wrote recommendations based on their research.

“Some reports were shorter, just a paragraph or two,” said Margaret Love, who served as a pardon attorney from 1990 to 1997. “But there was always enough of a report that you could get an idea of what the basic facts and issues were.”

For the first 2¹/₂ years under Rodgers, however, most petitions were handled by paralegals, not staff attorneys, and recommended for denial in batches, said Samuel Morison, a lawyer who spent more than a decade in the pardons office before leaving in 2010 to work for the Defense Department. He said Rodgers instituted the change when there was a significant backlog.

“The office types up a list of names, along with basic sentencing and offense information for each prisoner, and sends the list to the White House with a note that says the attached cases are meritless and should be denied,” Morison said.

The story of Clarence Aaron, who at 24 was "sentenced to three life terms for his role in a cocaine deal, even though it was his first criminal offense and he was not the buyer, seller or supplier of the drugs," is certainly troubling, but it mostly just affects him, his family and loved ones (and of course taxpayers footing the bill for his incarceration). Even more concerning are reported changes in institutional practices by President Obama's pardon attorney giving at best minimal consideration to the thousands of clemency requests they receive, ensuring there will be many more Clarence Aarons, most of whose cases won't be nearly so well publicized..

Mitt Romney's pardon record is even worse - he never once issued clemency to anybody when he was Governor of Massachusetts - so I don't expect this to become a campaign issue. It just doesn't cut along partisan lines. There's a firm bipartisan consensus that the constitutional clemency power has become an anachronism barely worth considering.

Grits finds that ironic. The history of the US presidency throughout the past century involved the accumulation of ever-greater power within the executive branch, much of it through regulatory infrastructure justified by constitutional theories that would leave the Framers' jaws agape. By contrast, clemency authority is an actual, named constitutional power of the presidency, not one assumed after the fact nor assigned by Congress or the judiciary. But this critical presidential power has faded to virtual irrelevance, even though Alexander Hamilton believed (see Federalist 74) "easy access" to clemency was essential to keep the justice system from becoming too "sanguinary and cruel."

Why is this the one area where presidents, especially this president, seem reluctant to exercise their constitutional authority at all, much less seek its expansion as in every other realm of their office? Is DOJ to blame?

MORE: P.S. Ruckman has posted the relevant documents in Clarence Aaron's case.

See prior, related Grits posts:

• Obama may have stingiest pardon record of any American president
• Obama the Merciless
• Eat the turkey, pardon O. Henry! President quotes Texan writer but won't pardon him
• Institutional prosecutorial bias limits federal pardon recommendations from DOJ
• Perry should expand clemency, trump Obama in Christmastime ritual

Obama may have stingiest pardon record of any American president

Recently Grits dubbed the President "Obama the Merciless" for his remarkably parsimonious pardon policy, and now a story in U.S. News and World Report MSNBC takes on the same theme. It opens:

President Barack Obama is on track to be one of the least forgiving of presidents in U.S. history — as measured by his use of presidential pardon powers, according to a political science professor who blogs about clemency exercised by presidents and governors.

"It is fair to say two things," said P.S. Ruckman Jr., who teaches at Rock Valley College in Rockville, Ill. "One is (Obama) is definitely being exceptionally stingy. There’s no doubt about that. There’s also no doubt that this is in a way unexpected."

As president, Obama has pardoned 23 people, including one commuted sentence, in his first 40 months in office. Barring a dramatic flurry of clemency from the White House in the coming eight months, Obama will be among the bottom two or three presidents for granting pardons in his first term, Ruckman said. That puts him in the running with Presidents George Washington, John Adams and James Garfield, who was assassinated after serving less than seven months.

The story mostly relies on the work of our blog-pal Prof. P.S. Ruckman, who writes at Pardon Power, and whose excellent primary-source work Grits has frequently cited. When Washington and Adams were presidents, of course, there were barely any federal convictions they might conceivably pardon! (It took some years for Congress and the states to enact anything remotely resembling functional penal codes, and most prosecutions at the time were brought as private, essentially civil causes of action.) James Garfield, assassinated seven months in, had a good excuse for his low total.

Otherwise, that leaves Barack Obama with functionally the chintziest pardon record among American presidents, at a time when the raft of criminal convictions during the tuff-on-crime era has spawned more pardon requests than ever. Here's a graphic produced by Prof. Ruckman depicting the proportion of pardons given to those requested since WWII by president:

Even George W. Bush appears compassionate by comparison to Obama. "Among recent presidents, George W. Bush had granted 37 pardons and commutations at about this point in his first term. By the end of the year, he had added another 32." Here's Ruckman's depiction of American presidents' historic pardon records before Obama took office:

I don't understand this: Why does the Office of the Pardon Attorney in the Justice Department exist if they consider essentially no one worthy of clemency? How has the President become so dis-empowered on the question that he can't or won't make independent judgments? Perhaps it's true that the role of advising the President on pardon applications should be removed from the Justice Department and handled instead by some appointed adviser or board who understands their job is to recommend pardons. For reasons Grits can scarcely understand, DOJ's Office of the Pardon Attorney seems to think their job is to find excuses to avoid performing the function for which their division was created, and this president more than any other has acquiesced in the trend. As a constitutional scholar in his own right, Barack Obama of all people should know better.

See prior, related Grits posts:

• Obama the Merciless
• Eat the turkey, pardon O. Henry! President quotes Texan writer but won't pardon him
• Institutional prosecutorial bias limits federal pardon recommendations from DOJ
• Perry should expand clemency, trump Obama in Christmastime ritual

Obama the Merciless

For reasons Grits couldn't begin to explain, President Barack Obama has among the stingiest records among presidents when it comes to pardons, commutations and clemency decisions in general - so bad Grits has suggested it compares unfavorably to Texas Gov. Rick Perry, who at least hasn't let his executive power on that score completely atrophy.

Late last year P.S. Ruckman tallied up Barack Obama's sorry total, and recently he calculated that President Obama ranks near or at the bottom both in both the number of months in his term during which he granted clemency (3) and the longest number of months without issuing clemency at all (24). So far, Obama has issued 22 mostly meaningless pardons, typically given to older folks (average age 61) for petty, long ago crimes, plus one sentence commutation since taking office. He's on track to grant fewer pardons and/or sentence  commutations (by far) than any president at least since World War II, all but completely ignoring this already withered and decrepit constitutional function. Meanwhile, here's the impressively long list (pdf) of requests for commutations of sentences President Obama has denied since taking office.

Grits doubts this will become a partisan campaign issue, but when it comes to exercising the clemency power, one could justly refer to the President as "Obama the Merciless."

Perry persists in paltry, pusillanimous pardon policy

Well I was wrong: Grits predicted Governor Perry would issue 10 or more pardons this week after issuing none for the rest of the year. I was right to expect some, but guessed high: He issued eight - all for trivial, long ago offenses. Three of the eight don't even live in Texas anymore. While in general Grits calls "Humbug!" on Christmastime pardons, this was a missed opportunity. Grits had suggested that if the Governor issued 23 pardons or more, he would ensure positive national coverage by pardoning more people in one day than Barack Obama has granted clemency in his entire tenure. (Perry surpassed that mark in two prior years.) But instead, with Mitt Romney on the campaign trail saying he won't grant pardons at all, Governor Perry decided to play it safe. Disappointing.

MORE: From the Texas Tribune.

Pardons push positive Perry press: More this week?

Grits predicted Gov. Perry would receive positive press from his parsimonious clemency record if the campaign played up the issue, and indeed, as if on cue, Pro Publica came out with a story titled "Perry more generous with pardons than Romney." Since Perry usually grants pardons to about 3% of those requesting them, but some years granted up to 10%, Grits argued back in October that Perry could use Christmastime clemency to separate himself from the other presidential candidates:

In the past, Perry has rejected about 2/3 of clemency recommendations from the Texas Board of  Pardons and Parole. Perhaps a good start would be to simply accept more or most of the BPP's recommendations this year (it's not like the people he's appointed to the parole board are a bunch of softies) instead of selecting a symbolic few. Nobody can grant clemency except state or federal executives like Perry and Obama, so a robust clemency approval by Perry this December might generate at least a news cycle or two of interesting press analyzing the pair's relative clemency records (where Perry already compares favorably). By granting more-than-usual clemencies this December, Perry would likely generate good media with little near-term Wille-Horton-esque risk, while setting the story up inevitably as comparing Perry and Obama (since none of the other GOP candidates can grant pardons) and thereby making the governor appear more presidential.

I'm not confident Perry will do that, but if he doesn't he'll have missed an opportunity to separate, even elevate himself in a controlled, positive media moment from the other GOP contenders and the president. And at the moment, his is a campaign that needs to separate itself from the pack.

I'm generally not a fan of Christmastime pardons. From a candidate's perspective, though, the Pro Publica piece is one of the few, recent positive articles I've seen on Perry and it would be a wasted political opportunity if the governor didn't use the Christmas pardon ritual to his own public-relations benefit, especially now that the campaign can see how the issue plays in the national media.

Grits' prediction: Governor Perry issues 10 or more pardons between now and Christmas day, making the national news cycle for a day or two with mostly positive press. That said, if he really wants to use the issue to trump the president, Gov. Perry should issue at least 23 pardons, a number he surpassed in 2003 and 2005. That would also be one more than President Obama has given out since he took the reins of power three years ago: A sure-fire news hook.

MORE: At Sentencing Law & Policy, Doug Berman  comments on the Pro Publica story and this post, wondering if, "with the Iowa evangelical vote still up for grabs ... Perry might try to make hay by finding a few very appealing stories of redemption to spin around a few high-profile clemency grants.  I am not counting on such a development," wrote Berman, "but I sure like the notion that for once a politician might start granting, rather than consistently deny, clemency requests in an effort to curry political praise."

See related Grits posts:

• Eat the turkey, pardon O Henry! President quotes Texas writer but won't pardon him
• Perry should expand clemency, trump Obama in Christmastime ritual

Might O. Henry deserve a posthumous pardon for actual innocence?

After Grits' recent discussion of writer William S. Porter's (O. Henry's) 1898 federal embezzlement conviction in Austin - and President Obama's decision to quote the Texan writer, whose own pardon prospects have been perennially snubbed, while pardoning a pair of Thanksgiving turkeys -  I revisited some of his short stories and picked up the earliest of several biographies, one by C. Alphonso Smith published in 1916.

To refresh Grits readers' recollection, Porter/O. Henry had been working as a bank teller and part-time newspaperman in Austin in the 1890s, publishing a weekly magazine that boasted a circulation of 1,000 in a town which at the time was home to roughly 11,000 souls. After he was accused of embezzlement, while out on bail, he took a job as columnist for the Houston Post, publishing there for several years and burnishing his reputation both within the industry and at his own publication. When it came time for the trial, though, he panicked. Porter actually boarded the train to Austin that fateful day, planning to return to face charges. However, wrote Smith, fearing the public humiliation of a trial and the permanent stain of lingering suspicion thereafter, even if acquitted, Porter's "imagination outran his reason" and he got off the train in Hempstead, deciding to flee first to New Orleans and then to Honduras. He'd planned to stay there until the statute of limitations expired, hoping his wife would come join him, but sooner than he expected he returned to Austin to care for his wife when she became terminally ill.

This particular biographer believed, based on interviews with jurors and various Austin trial watchers, that the decision to flee was the key fact that convicted Porter, despite what turned out to be incredibly flawed evidence of actual embezzlement presented by prosecutors. Mr. Smith reviewed trial transcripts and evidence and interviewed the attorneys involved as well as Austinites who followed the trial. He concluded that, had Porter gone back to Austin instead of absconding:

he would certainly have been acquitted. He protested his innocence to the end. "A victim of circumstances" is the verdict of the people in Austin who followed the trial most closely. Not one of them, as far as I could learn after many interviews, believed or believe him guilty of any wrong doing. It was notorious that the bank, long since defunct, was wretchedly managed. Its patrons, following an old custom, used to enter, go behind the counter, take out one hundred or two hundred dollars, and say a week later: "Porter, I took out two hundred dollars last week. See if I left a memorandum on it, I meant to."  ... Long before the crash came he had protested to his friends that it was impossible to make the books balance. "The affairs of the bank," says Mr. Hyder E. Rollins, of Austin, "were managed so loosely that Porter's predecessor was driven to retirement, his successor to attempted suicide."

Even more intriguing, from the perspective of considering the merits of a posthumous pardon for the writer:

One error in the indictment was so patent that it is hard to understand how it could have gone unchallenged. He was charged, as has been stated, with having embezzled $299.60 on November 12, 1895, "the said W.S. Porter being then and there the teller and agent of a certain National Banking Association and there known and designated as the First National Bank of Austin." Nothing in O. Henry's life is better substantiated than that on November 12, 1895 he was living in Houston and had resigned his position in the Austin bank early in December 1894. And yet the reader will hardly believe that this flagrant inconsistency in the charge against him has remained to this moment unnoticed. The foreman of the grand jury and the foreman of the trial jury are reported to have regretted afterward that they voted to convict. "O. Henry was an innocent man," said the former, "and if I had known then what I know now, I never would have voted against him."

The failure to catch the disconnect on dates is one of the more egregious examples of incompetent defense counsel I've ever heard of. Outlandish! We've recently seen a case in Houston where a fellow sentenced to life in prison was discovered after the fact to have been in jail at the time the offense was committed. O. Henry's conviction appears to suffer from similarly irreparable flaws, except that nobody caught them until years after he'd already served his sentence and died!

I was half joking when I first suggested President Obama, or his successor, should pardon O. Henry, but if the account of C. Alphonso Smith is accurate, then the writer's conviction represents a serious injustice. Gov. Rick Perry issued a posthumous pardon for Timothy Cole to clear his name when he turned out to be actually innocent. You could make a similar case for posthumously pardoning Will Porter, whose pseudonym to this day graces an Austin middle school as well as the nation's most prestigious short story prize. From this account, it sounds like O. Henry got a bum rap.

RELATED: Eat the turkey, pardon O Henry! President quotes Texas writer but won't pardon him.

Eat the turkey, pardon O Henry! President quotes Texas writer but won't pardon him

UPDATE: See the Pardonohenry.org website and campaign blog which were inspired by this post. Sign a petition asking President Obama to pardon this great American writer.
____________________________

Oh cruel, bitter irony!

After legendary Austin short-story writer O Henry's pardon was turned down some years back, and given President Obama's own stingy record regarding pardons, it's especially annoying to learn, via PS Ruckman at Pardon Power, that President Obama's speech writers had the gall (or perhaps the philistinism) to include a quote from O Henry in the President's remarks "pardoning" a Thanksgiving turkey.

O Henry, whose pardon application has been on Ruckman's clemency watch list for ages, always claimed he was innocent, but when accused of embezzling $748 from the Austin bank he worked for, he fled to Honduras, returning to face federal charges in 1898 after his wife became terminally ill. In a practice that wouldn't be allowed in today's TDCJ, he "began writing stories to support his young daughter while he was in prison," moving to New York to continue his career after his release.

According to the Houston Chronicle's coverage in 1985, O Henry's (i.e, William Sydney Porter's) federal pardon application, championed by supporters including late-Texas state appellate court Judge Trueman O'Quinn, was turned down at that time because "A pardon isn't complete until it's accepted by the person, and a dead man can't accept it." In other words, Reagan's pardon office refused to issue a posthumous pardon.

As luck would have it, though, last year a Texas Attorney General's opinion cleared the way for the Texas Governor to issue posthumous pardons so that he could give one to Timothy Cole, who was falsely convicted of rape but wasn't exonerated until years after he died in prison. The Texas opinion took head on the question of whether the US President may issue pardons when the recipient is dead and cannot "accept" it: "the United States Supreme Court has since recognized that 'the requirement of consent [to a pardon] was a legal fiction at best' and has generally abandoned the acceptance doctrine since adopting it in 1833. Schick v. Reed, 419 U.S. 256, 261 (1974)." So according to the formal legal advice given to Rick Perry, the President has full authority to issue posthumous pardons and the "acceptance" requirement is a "legal fiction."

Grits has argued previously that Governor Perry would be wise to use his gubernatorial pardon power more generously than usual this Christmas season, both to distinguish himself from his GOP rivals - none of whom presently possess comparable clemency authority - and to highlight President Obama's abysmal clemency record, which even the President's liberal supporters deplore. (Perry's isn't great, but it's better than Obama's, granting clemency in 2003 alone more often than has Obama during his entire tenure.) IMO that'd be good campaign strategy for an incumbent governor looking to burnish his positive image in the holiday season, using the authority of his office to seize press attention for a news cycle or two and to elevate himself above his rivals.

Why not issue a coupla dozen or so gubernatorial pardons as a news hook, then attack Obama for his Scrooge-like clemency practices and for quoting a Texan during his trivializing turkey-pardon who merits a posthumous pardon himself. It would cost him nothing, it's an homage to a revered and influential Texan, and it rebukes Barack Obama after the President used the words of the Texas writer whose pardon was snubbed to commemorate the disingenuous ritual of pardoning a turkey.

Grits says eat the turkey, pardon O Henry!

See related Grits posts:

• Perry should expand clemency, trump Obama in Christmastime ritual
• Today in History: O Henry leaves prison, launches literary career

Perry should expand clemency, trump Obama in Christmastime ritual

Last year, Grits authored a column for the Dallas Morning News published December 30 analyzing Rick Perry's paltry Christmastime pardons and lamenting the way holiday pardons minimize the intended, much-more robust role of executive clemency. Since most pardons, experts tell us, are issued in December, I thought I'd recycle last year's prose in time to suggest a more aggressive approach for this year's Christmas pardon ritual on the front end: Governor Perry (and for that matter, President Obama) should consider pardoning or commuting sentences for whole classes of offenders - any class, however modest - instead of picking a few, symbolic cases from many decades ago. Here's the argument I made in the Dallas News last year, edited slightly to add links and update statistics, followed by additional thoughts on how this analysis applies during the campaign season.
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Holiday pardons send wrong message

Dalas Morning News, Dec. 30, 2010

In Federalist Paper 74, Alexander Hamilton predicted today's sorry state of justice without "easy access" to clemency from the executive: "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."

Who can look at America's prisons - a nation with 5 percent of the planet's population and 25 percent of its prisoners - and not recognize the sanguinary and cruel countenance of justice feared back in the day by Publius?

Clemency is now treated mostly as a holiday ritual, with little more practical significance than the pardoning of Thanksgiving turkeys. True to form, this month President Barack Obama issued nine pardons and Texas Gov. Rick Perry issued eight. In both cases, the clemency granted was a symbolic gesture focused on trivial, long-ago cases chosen more for their lack of political risk than the particular merits of the petitioners.

Obama took longer than any other Democratic president to issue his first, paltry pardons.

And while Perry's done better than the president - maxing out at 73 pardons in 2003, including 35 convicted in the notorious Tulia drug sting - he pardoned just eight people in fiscal 2009, and the fiscal 2010 total won't be much higher.

Georgia, by contrast, pardoned or restored rights to 561 people in fiscal 2010 - about four times as many as our governor has pardoned in his entire gubernatorial tenure. In Georgia, 38 percent of clemency applications are granted. In Texas, it's less than 3.5 percent.

I've become disenchanted with the Christmastime pardon ritual, for reasons ably articulated by pardon expert P.S. Ruckman: "Christmastime pardons send a very wrongheaded - if not outright dangerous - signal to the American people that pardons are something like Christmas gifts, passed out during the holiday season, to those who actually may or may not deserve them. Which is to say, it is no wonder the [federal government is] so shy about pardons. The very timing of them implies their work [regarding] the assessment of pardon applications is a joke."

Indeed, it's hard to not consider these pardons a joke when you look at the details. For example, Perry granted clemency to a 73-year-old man for a theft conviction from 1955. If the governor had waited any longer, he might have had to issue his second-ever posthumous pardon. Another pardon recipient spent three days in jail 31 years ago for unlawfully carrying a handgun. If it's true that justice delayed is justice denied, these latter-day pardons hardly constitute justice.

And why pardon just one individual who "was convicted of possession of marijuana in 1971 at the age of 21"? Are there no other men and women who've grown up to lead productive lives after a pot conviction in their youths? Texas arrests tens of thousands for pot possession every year; hundreds of thousands are in similar circumstances who will never benefit from such gubernatorial largesse.

If the governor is going to issue pardons for such petty offenses, the fair thing would be to pardon entire classes of offenders - for example, pot offenders with no other convictions on their records 10 years later. For that matter, commuting long drug sentences and those of low-risk elderly offenders with high health care costs would actually save the state a great deal of money. Plus, the possibility of clemency creates incentives for good behavior.

I'm not holding my breath for Perry or Obama to embrace a robust, Hamiltonian clemency, but there's a strong case to be made that they should treat the pardon power as more than just a token Christmastime genuflection to values of mercy and forgiveness - which are then ignored in practice the rest of the year.
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Certainly Perry isn't alone in this. Sentencing Law and Policy recently published a post titled "Clemency policy and practice as symbol of failed Obama presidency," arguing that Obama's failure to exercise his clemency authority shows he "lacks the core convictions and political courage" for the job he holds. In that vein, why shouldn't Gov. Perry use gubernatorial clemency power to differentiate himself from the President?

Who could argue today that, as Hamilton predicted, "The criminal code ... 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"? If you're going to embrace states rights, it seems to me, you need to also demonstrate you're prepared to shoulder these long-neglected Hamiltonian responsibilities incumbent to states' governance. I harbor no illusions that Perry will exercise clemency authority as aggressively as suggested in that column, but there's a less radical, more politic version that doesn't seem so out there to me:

In the past, Perry has rejected about 2/3 of clemency recommendations from the Texas Board of  Pardons and Parole. Perhaps a good start would be to simply accept more or most of the BPP's recommendations this year (it's not like the people he's appointed to the parole board are a bunch of softies) instead of selecting a symbolic few. Nobody can grant clemency except state or federal executives like Perry and Obama, so a robust clemency approval by Perry this December might generate at least a news cycle or two of interesting press analyzing the pair's relative clemency records (where Perry already compares favorably). By granting more-than-usual clemencies this December, Perry would likely generate good media with little near-term Wille-Horton-esque risk, while setting the story up inevitably as comparing Perry and Obama (since none of the other GOP candidates can grant pardons) and thereby making the governor appear more presidential.

I'm not confident Perry will do that, but if he doesn't he'll have missed an opportunity to separate, even elevate himself in a controlled, positive media moment from the other GOP contenders and the president. And at the moment, his is a campaign that needs to separate itself from the pack.

MORE: For reference, I added FY 2010 clemency data from the Board of Pardons and Paroles annual report (pdf) to update the chart Grits compiled last year on Rick Perry's clemency record, which, while timid, is still superior to the president's:



RELATED: Should have mentioned that the Texas Tribune has a widget to search Rick Perry's past pardons and related acts of clemency.