WASHINGTON -- If it weren't for bad luck, Mike Huckabee would have no luck at all. Of all the deranged criminals in the country, Maurice Clemmons -- granted clemency by then-Gov. Huckabee of Arkansas almost a decade ago -- recently murdered four police officers in Washington state. Seldom has an act of mercy been more publicly or horribly betrayed.
Some of Huckabee's potential rivals for the 2012 Republican nomination responded, not merely by criticizing this specific act of clemency but by rejecting the very idea. "In Minnesota," said Gov. Tim Pawlenty, "I don't think I've ever voted for clemency." "My conclusion," argues former Massachusetts Gov. Mitt Romney, "was if somebody has been convicted by a jury of their peers and they have been prosecuted and the police were able to get the evidence necessary to put them behind bars, why in the world would I step in and reverse that sentence?"
Given the viciousness of Clemmons' crime, this reaction is predictable. But there is a serious argument for clemency that reaches back to the Founders. In Federalist 74, Alexander Hamilton writes: "Humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed. 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."
Hamilton contended that strict laws, while necessary, must occasionally be set aside for humanitarian reasons that the "rigor of the law" does not foresee -- a view embodied in the U.S. Constitution and most state constitutions. In Hamilton's time -- with a variety of petty crimes punishable by death -- mercy by the executive was an essential part of a working legal order. Our system -- with the growth of mandatory minimum sentences and three-strikes laws -- is not so different, except in severity. It has become easy for nonviolent drug offenders, or troubled teens, to stumble into long prison sentences that effectively end their lives.