Barbour and the pardon backlash

At least one thing can be said for former Gov. Haley Barbour: the man sure knows how to make an exit. Before leaving office this month, Barbour pardoned more than 200 convicted criminals, in a move that left the new regime in Jackson confused and outraged. 

They weren’t the only ones; the public outcry following the pardons was deafening. While many of the pardons now hang in judicial limbo, one question has yet to be answered: what’s so wrong with the pardons?

To answer this question, first it helps to look at the role the criminal justice system plays in our society. There are two schools of thought regarding the purpose of the criminal system. The first is the idea that we punish for punishment’s sake, that criminal justice is retributive. On the other side is the more utilitarian view that people who do wrong are punished with the goal of reform.

The current state of our criminal system supports both of these points of view. Our prisons have numerous educational and training programs designed to rehabilitate prisoners and acclimate them to life outside of the prison system. While the effectiveness of these programs is debatable (and the subject of an entirely different column), their existence points to the fact that we have chosen to value the potential for criminals to pay their debt to society and reform. However, we do have the death penalty and life in prison without the possibility of parole for a particularly heinous class of criminal. For that brand of criminal, they are seen as beyond rehabilitation and are punished as retribution for their crimes. It is the duality of views that forms the penal system and creates conflicts when issues like Barbour’s mass pardons arise.

The power of the pardon is a tool granted to most state’s governors and the president. When it’s correctly applied and used without favoritism, it can be an antidote to injustice and harsh sentencing. If the pardon is applied to prisoners who have made a concerted effort at reform, it can be inspirational for other prisoners in similar situations and provide them a measure of hope. For those who were convicted unjustly and or given too harsh of a sentence, it can be a way out that might not have been otherwise available.

Our criminal justice system is very good and we strive to achieve fairness, but while the system strives for that it is a goal not always reached. The power of the executive pardon is a check and balance for when the system fails, as it inevitably does.

The other important thing to note is that this is not an absolute power that Barbour wields. Barbour must disclose the rational for his pardons. In this case, he did so days after the pardons were announced, which may have contributed to the outcry. Pardons like this are also normally done in conjunction with the recommendations from various parole boards and prison officials. It is not a power immune from later judicial scrutiny, as Barbour has experienced. The pardon is an executive function with numerous safeguards attached to it in order to be used to effectuate institutional mercy.

Mercy and compassion are qualities we typically regard as good, except apparently when it comes to executive pardons. While the position of being soft on crime is often politically unpopular, an outgoing politician is afforded a unique opportunity in his pardons. The politician can see justice done and dole out mercy without having to worry about his electability suffering. Barbour’s last acts as governor were ones of mercy and justice, and while they caused quite a stir, more politicians making similar exits would not be such a bad thing.

Brittany Sharkey is a second year law student from Oceanside, Calif. She graduated from NYU in 2010 with a degree in politics. Follow her on Twitter @brittanysharkey.