Abolishing clemency powers unpardonable mistake

No doubt prefiled HB 85 by Democrat state Rep. Austin Badon is more political jab than serious policy, but the issue deserves a nontrivial hearing.

This bill would amend the Constitution to abolish the governor’s authority to issue pardons and would retain only the automatic pardon provision for first-time perpetrators of nonviolent crimes and some violent offenses. This would make Louisiana unique as the only state not to grant some kind of executive clemency power for nearly all state crimes; currently in 41 states governors, many requiring the recommendation of a board (such as Louisiana), and in nine states an executive board may exercise sweeping pardon powers.

Companion legislation filed by Badon, HB 84, would excise the state’s Board of Pardons, the imprimatur of which is necessary for a request to go to the governor. It also wipes out the governor’s power to commute sentences and to grant reprieves, along with the Board’s role in that process.

The pardon power received national attention weeks ago when outgoing Mississippi Gov. Haley Barbour issued a slew of them, some to convicted murderers serving life sentences, just as he exited office. Louisiana got in its own small bit of controversy when Republican Gov. Bobby Jindal appointed a pair of ex-legislators (one of whom can serve only for a year as he assumes a new elective office at the beginning of next year) to join another ex-legislator reappointed. This makes them a majority of the five-member voting board, with all drawing a combined $186,000 in annual salary.

It’s clear Badon wants to make the off-loading of ex-legislators into appointive jobs at full-time pay an issue by wanting to excise the Board of Pardons. If he was going to claim justice might get cheated by rogue governors and hold up Barbour as an example of pardoning gone amok, his bill could have made a narrower slice and left the ability for the Board to recommend and a governor to act upon commutations and reprieves. Since every voluntary clemency power gets wiped out by the bill, which no one argues Barbour nor apparently any other governor has questionably decided reprieves and commutations, it seems the Board is the target as indicated by wiping out even the less controversial forms of clemency.

That will not do in our system of justice. It’s appropriate for a broad range of clemency powers to exist as tools to mete out at informed discretion in order to accomplish, as Aristotle’s conception of distributive justice maintains, the treatment of equals equally and unequals unequally. If in the service of a sentence, or after its completion, an individual’s behavior is meritorious, or can serve society in a significant way (think Joseph Wladislaw), it’s a positive reflection on the quality of that society if those who have sufficiently repaid society may have the reward, or by its availability be induced to behave to seek it, that these may be conferred on deserving individuals.

If Badon wants to clip the wings of the Board, he should strip out the salaried aspect, although admittedly the panel serves a critical role that should require quite a bit of attention from its members, which may justify more remuneration than paying just for their expenses. But the power of clemency should remain, in the hands of the governor with the Board of Pardons’ capacity to recommend as a check on potential gubernatorial abuse. Badon needs to move past cheap political stunt if he wishes to make any meaningful input into the issue’s debate.