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Former Arkansas governor Mike Huckabee in 2010.
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The Politics of Mercy

Is clemency still the third rail? We may find out.

As one more candidate in a crowded race for the Republican presidential nomination in 2016, Robert Ehrlich Jr., the former one-term governor of Maryland, would be a decided underdog. Even so, he could have an impact that transcends his odds of reaching the White House.

While several prominent Republican contenders have backed sentencing reform for drug crimes, almost all have avoided what has long been the third rail of criminal-justice politics: clemency. But Ehrlich, who is contemplating running, bucks the politics of mercy.

For decades, the conventional wisdom has been that clemency equals danger. Any governor who grants pardons or commutations to convicted felons invites political risk – with no potential benefit. In Massachusetts, Mitt Romney signed not a single pardon, a record he later touted.

But when Ehrlich was governor of Maryland from 2003 to 2007, he made clemency a priority, dedicating lawyers to screen requests and meeting monthly with senior aides to review applications.

In the end, Ehrlich granted clemency more than 200 times. And should he run for president, he plans to hold up that record as a signature achievement, arguing that it shows he is someone who leads instead of cowers.

“If you have this extraordinary power and fail to use it, the quality and quantity of justice in your jurisdiction suffers,” Ehrlich said in an interview. Sifting requests for mercy “is art, not science,” he said. “But we were extraordinarily careful. We devoted a lot of resources and time. This is not an easy thing. If it was easy, it would not be leadership, it would be politics.”

The GOP field could also include other candidates who have resisted convention, such as Ohio Gov. John Kasich, who has commuted the death sentences of five condemned inmates since 2011.

Is it possible that a willingness to grant clemency might now offer some political benefit? “I would give it a qualified yes,” says P.S. Ruckman Jr., a political science professor at Rock Valley College in Rockford, Ill., and editor of the Pardon Power blog. “I think increasingly there’s a sense that it’s a nebulous plus if you at least appear to be someone who takes the Constitution seriously and isn’t stuck in the 1980s, pushing the Willie Horton button.”

Willie Horton – the convicted murderer, serving life in Massachusetts, who in 1987 raped a woman after getting a weekend furlough – helped doom then-Massachusetts Gov. Michael Dukakis’ run for president in 1988, becoming both cautionary tale and buzzword.

But that was three decades ago. Ehrlich says there has since been a cultural shift, with growing concern about harsh sentencing laws – for example, mandatory minimums – and a realization that “the drug epidemic is more appropriately viewed as a health issue than as a criminal justice issue.” The country’s booming prison population “is impacting so many people, so many families, so many careers, so many parents,” Ehrlich says. “It crosses every line.”

Clemency takes a variety of forms. Commutations, which reduce a sentence but preserve a conviction, can entail risk for the grantor because of the threat that the recipient, once released, will re-offend. Pardons, far more common, strike a conviction but typically come after a sentence has been served. A pardon usually restores someone’s civil rights, be it the right to vote or the ability to obtain a commercial driver’s license.

Margaret Love, who served as U.S. Pardon Attorney under presidents Clinton and George H.W. Bush, says, “This is a function of the justice system that should not be subject to these political whims. I get sort of annoyed whenever I see it treated as a sort of holiday gift-giving. That’s not what it is. It’s part of the system, or at least ought to be.”

On Thursday, Love wrote a post on the website for the Collateral Consequences Resource Center, noting the symbolism of Virginia Gov. Terry McAuliffe’s recent summoning of the media to watch him sign a conditional pardon for an autistic inmate. “There may be no more telling sign that the ‘soft on crime’ label is losing its power over elected officials than McAuliffe’s decision to publicize this bedside act of mercy,” she wrote.

In the next campaign, no candidate would test the power of that label more than Mike Huckabee, who this month left his Fox News show to consider running. In his decade as Arkansas governor, Huckabee granted clemency more than 1,000 times.

On Thursday, BuzzFeed published an unaired ad that Mitt Romney’s campaign had prepared during the 2008 race, tying Huckabee to the early release of a serial rapist who, once freed, committed murder. Romney’s campaign ultimately balked at using the ad.

Since then, Huckabee has become an even more inviting target. In 2009, in Washington state, a former Arkansas inmate named Maurice Clemmons shot and killed four police officers in a coffee shop. Nine years before, Huckabee had commuted Clemmons’s prison sentence, making him eligible for parole.

It might seem that advocates for clemency would cringe at the prospect of a Huckabee candidacy in 2016, given his vulnerability to Willie Horton-type attacks. But Mark Osler, a law professor at the University of St. Thomas in Minneapolis, says, “I’ve told people for the last few years that one of the best things for clemency would be for Huckabee to run.”

What Osler and others see in Huckabee is an opportunity for an open discussion of what clemency is – and is not. “It does not lead to perfection, in the same way the jury system does not lead to perfection,” Osler says. “With clemency you have an independent moral actor who is unpredictable – and that’s the person receiving clemency. You can never guarantee that that person will not commit another crime.”

Clemency advocates believe Huckabee, an ordained minister, can make a persuasive case for mercy, particularly given how he links clemency to his Christian faith and to his belief in what he calls “restorative justice.”

In the Clemmons case, Huckabee has some things working for him. Starting when he was 16, Clemmons, who is African American, racked up eight felony charges in seven months, mostly for robbery, burglary and theft. He was sentenced to 108 years – a figure that Huckabee, a man sensitive to his state’s history of racially discriminatory sentencing, would later describe as “dramatically outside the norm.” That argument could resonate. So, too, could Huckabee’s highlighting of the fact that the state’s parole board had unanimously recommended Clemmons’s commutation.

Working against Huckabee is this: Clemmons was anything but a model of rehabilitation. In prison he preyed on weaker inmates and insulted corrections officers, calling one a “punk ass motherfucker.” In 1999 an Arkansas Department of Correction document reduced Clemmons’s prison history to two numbers: “Disciplinaries: 29 times. Achievements: None.”

Ehrlich, unlike Huckabee, has not had any grants of mercy come back to haunt. And when talking about his embrace of clemency, he’s found support among dramatically different audiences, from a dinner co-hosted by the Charles Koch Foundation to a forum sponsored by George Soros’s Open Society Foundations. “So it’s hard right and hard left, but the audiences have generally the same view on this issue,” he says.

In a speech three years ago, Ehrlich boiled his motives for making clemency a priority down to this: “Because it's the right thing to do. It's really not that complicated.”

Last year, Ruckman, of the Pardon Power blog, took note of gubernatorial candidates who spoke much the same way, hailing the need for governors to use the power to pardon or commute. He saw this in Maryland, in New York, in Illinois.

The field of potential presidential candidates also includes governors at the opposite end of this spectrum. Wisconsin Gov. Scott Walker, a Republican, has refused to grant any pardons, portraying them as an undermining of the criminal justice system, rather than as a way to recognize someone’s rehabilitation or help check an unduly harsh law or ill-conceived prosecution.

To Ruckman, Walker is “on the wrong side of history. He’s a dinosaur on this one.”