This was precisely the case with Clemmons. At age 16, he committed a string of robberies and burglaries. He was sentenced to 108 years in prison without possibility of parole -- a disproportionate punishment by any measure. Eventually, a judge recommended that his sentence be modified. The state parole board agreed. The sentencing judge did not object. Huckabee commuted Clemmons' sentence from 108 years to 47 years, making him eligible for parole. It was the parole board that set Clemmons free, after he had served 11 years in prison.
This second chance offered to Clemmons was rejected. Soon he was back in prison on robbery charges. Because of prosecutorial incompetence -- a warrant served years too late -- Clemmons was free to move to Washington state. There he entered a descending spiral of crime and mental illness -- threatening policemen and sexually assaulting young relatives while claiming to be the Messiah -- that ended in murder. Authorities had chance after chance to put Clemmons away. Their failure caused suffering. But it is unfair to place the responsibility for that failure on an act of clemency a decade earlier.
Huckabee's critics counter that the Clemmons case was part of a promiscuous pattern of clemency. During a decade as governor of Arkansas, Huckabee commuted 163 sentences, a pace greater than that of most governors. Some of Huckabee's commutations turned out to be wise. This one had a terrible human cost. In hindsight, the families of the dead have every right to their anger.
But decisions of this type are not made in hindsight. It is not easy to discern if a young burglar, given another chance, will become a model citizen or a psychotic killer. Yet governors, parole boards and prosecutors are forced to make such impossible judgments regularly when considering clemency, parole and plea bargains. It would be simple always to err on the side of harshness, endlessly filling prisons to minimize risk. But harshness without discretion is not practical, and, in Hamilton's view, not just. Is there really no circumstance in which the strictest application of the law is "too sanguinary and cruel"?
Some professions involve decisions about life and death. When treatment by a doctor results in death and suffering -- as treatments sometimes do -- we ask if his initial choices were reasonable or negligent. The standard applied to governors making clemency decisions should be the same. Huckabee's choice allowed a tragedy. But that does not make it unreasonable.