Exploring Clemency and Justice

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FARAI CHIDEYA, host:

I'm Farai Chideya, and this is NEWS & NOTES.

Earlier this week, President Bush gave Lewis "Scooter" Libby a way to avoid two and a half years of jail time. The former White House aide was convicted of obstructing a CIA leak investigation. Now, after commuting Libby's sentence, the president said he wouldn't rule out a pardon either.

Presidents have been granting clemency since George Washington. Franklin Roosevelt issued more than three and a half thousand of them. Arguably, the highest profiled pardon was Gerald Ford of Richard Nixon. So how does a president decide who gets clemency?

Joining me now to talk about the power to pardon and grant clemency is Paul Butler, a former federal prosecutor. He now teaches law at George Washington University in Washington, D.C. Paul, great to have you back on.

Professor PAUL BUTLER (Law, George Washington University): Great to be here, Farai.

CHIDEYA: So the Constitution gives presidents the power to use clemency actions. President Bush hasn't granted very many so far, so why is there such a public outcry over Libby?

Prof. BUTLER: Well, in fact, it is because he hasn't granted a lot. He's had a number of sympathetic cases before him - cases in which based on history, it seems like other presidents would have been likely to grant pardon. But Mr. Bush has been rather miserly using this constitutional authority, and so in a case where he knows someone and that someone who's pardoned is also an important friend of the vice president raises a lot of questions. Why now?

CHIDEYA: So let's talk about fairness. Obviously, presidential clemency and pardons are legal but are they what most people and particularly African-Americans would consider fair?

Prof. BUTLER: Well, the power is one that the president has that's this -descended from the divine right of king. So the idea is that whoever is in ultimate authority should have the power on behalf of the state to be kind, to be merciful, to be forgiving, and I think that idea is something that most people support, including the African-American community. We have a lot of people caught up in the criminal justice system who need that kind of kindness.

So the issue isn't that the president should not have this authority. It's that he ought to exercise it in a way that seems fair and consistent. And that's the - again, the issue that's raised lots of questions with the pardon or commutation of the sentence of Mr. Libby.

CHIDEYA: You actually have some reversed criticism on the party lines where Senator Hillary Clinton spoke out and folks said, well, hey, your husband, President Clinton, did pardon this rogue financier.

Prof. BUTLER: And what Mr. Clinton has said in response is that, okay, that's true but, at least, he wasn't someone who was associated with our administration.

You know, Farai, I used to be a public corruption prosecutor and you rarely see pardons in those cases. One, because the people who were convicted to those crimes have close ties to the government so one must avoid the appearance of impropriety or unfairness.

But the other thing is those crimes are especially serious. When people do things, like what Mr. Libby was convicted of - obstructing justice, committing perjury and lying to the FBI. Well, when they are in positions of public authority and trust, that undermines the very machinations of government, of our democracy. And so when we think of the kinds of crimes that are appropriate for pardons and for commutations, most people don't think public corruption is high on the list.

CHIDEYA: Speaking of what kinds of crimes are available or likely to be pardoned, let's talk about folks that some called political prisoners - Assata Shakur, Mumia Abu-Jamal among others. Both were convicted of killing law enforcement officers, both say they were either innocent or they were mitigating circumstances.

Now Shakur escaped from prison in 1979. He has been in Cuba ever since. Abu-Jamal is on death row in Pennsylvania. In general, are people convicted of murder ever pardoned, and do you think that they will ever get the opportunity for a presidential pardon?

Prof. BUTLER: Well, it's very rare for people who were convicted of murder to be pardoned. The only time that that generally happens is if someone's been, let's say, imprisoned for years and years, really decades. They may be 75 years old, don't have a long life ahead of them, sometimes, in that instance, the president or the state executive exercises mercy. But even then, it's rare.

But, Farai, one of the interesting things is that when Mr. Bush pardoned Libby, he listed the reasons why he was doing that and those reasons would apply to the inmates who you mentioned as well. What Mr. Bush said is that, well, the sentencing judge didn't take into account all of the good things that Mr. Libby had done. And he also didn't consider the effect of the sentence on Mr. Libby's family.

Now, the ironic thing is that the Bush Justice Department has opposed all kinds of arguments when they've been made for other people seeking lenient sentences. But again, now that Mr. Bush himself has endorsed those arguments in favor of commuting the sentence and in favor of a less punishment, it's hard to understand why they shouldn't apply it to everyone.

CHIDEYA: You had the case of Tookie Williams where he also was - many people said, look, you know, he did commit a murder but at the same time he was nominated for a Nobel Prize. He was seen a humanitarian. Very briefly, was that a case in which pardon under a different president perhaps might have been executed?

Prof. BUTLER: Well, that's certainly a case where exactly what Mr. Bush did adhere, which is to commute the sentence. Even Mr. - the attorney in that case, they weren't seeking a pardon, they just wanted a life sentence. And again, what a lot of people think is that it would have been appropriate for the governor, Governor Schwarzenegger in that case, to commute that sentence.

CHIDEYA: All right. Paul, that's all we've got time for. Thank you so much.

Prof. BUTLER: It's always a pleasure, Farai.

CHIDEYA: Paul Butler is a former federal prosecutor who now teaches law at George Washington University in Washington, D.C.

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