Public policy matters little to a family who loses a sister to murder or comforts a daughter after rape. The state cannot provide comfort for a bungled prosecution, a "soft-on-crime" judge, a legislature that restores a criminal's rights, or a governor who grants a pardon. But punishment designed for the comfort of the victim turns justice into revenge, and it is not the purpose of the state to exact vengeance.

Mississippi's hodgepodge theories of justice complicate consistent arguments on punishment. The "Department of Corrections" seems to make the purpose of justice to help the criminal. This vestige of a rehabilitative theory of justice fails because we hold some prisoners who have been "corrected" while releasing others who are not rehabilitated. That is to be expected under our law code which generally reflects a retributive theory of justice: the punishment should fit the crime. Under this theory if a criminal does "X" he should be sentenced to "Y." But not always: repeat offenders get a different punishment, not because of what they did but because of what they have done in the past. Punishment is increased because their pattern of behavior suggests they might commit a crime again in the future. This increased punishment based on a fear of a crime not yet committed follows a utilitarian theory of justice which uses punishment to protect society through incarceration.

Without a consistent theory, we turn to tools of the state. Prosecutors determine which crime to prosecute and sentences to recommend, including plea deals. Juries consider extenuating circumstances which might result in acquittal for a crime obviously committed. Judges can increase, decrease, vacate, expunge and adjust the status of convictions or manner of sentences. The legislature writes the criminal code and then restores the rights of criminals who break it. The executive branch oversees incarceration and can commute, suspend, restore rights or grant a full pardon.



The use of the pardon is necessary precisely because of imperfect laws. By creating limits on the pardon we defeat its purpose, and could ultimately thwart justice.





Former Governor Haley Barbour justified his use of pardons in different ways. Some, like the infamous Scott Sisters, received suspensions based on medical costs to the state (the state pays 100 percent of a prisoner's costs; but only 25 percent on Medicaid due to the federal match). Some Barbour pardoned with "Christian forgiveness" and the promise of a second chance. Others - a vast majority -served their time, were back in their communities, but blocked by their past from fully contributing to society.

As the legislature considers limiting the pardon, it should remember during the eight years of the Barbour Administration, 82 different Mississippi legislators introduced 180 bills to restore rights to those convicted of murder, arson, kidnapping, embezzlement, Medicaid fraud, armed robbery and other felonies. Barbour approved 86 of those bills. These were bipartisan efforts. Three of Barbour's pardons were for individuals who already had their voting rights restored by the legislature (one approved by Governor Ronnie Musgrove).

One of those 82 legislators is House Democratic Leader Bobby Moak. Moak was asked on the program "On Point with Tom Ashbrook" whether this was about politics, as Barbour suggested. Moak said, "I'm going to be brutally honest, I think in the beginning it was about politics. But quickly within a twenty-four hour time period it became about people, it became about the citizens of the state, it moved way beyond politics."

It was for just this reason - not the continuation of monarchy powers - the Continental Congress vested near absolute pardon power in the President. Our Founding Fathers feared the legislature would act too much on the passions of the moment and would not take individual responsibility like the President. Those are the roots of gubernatorial pardon powers.

Pardons can be powerful tools for justice: free wrongfully convicted, restore peace, reduce excessive punishment, correct politically motivated prosecutions, ensure cooperation in investigations or forgive morally justified crimes (civil rights champions). Why would we limit that power?

If Governor Phil Bryant wants a more rigid pardoning system, he should create an executive commission to make pardon recommendations similar to Barbour's commission to review applicants for judicial appointments. That would retain the ultimate responsibility of the governor and not weaken the executive branch or threaten the separation of powers.

I sympathize with victims. Nothing can justify to them the use of a pardon for a crime against them or their family. A public hearing won't help. A ninety-day-before-the-end-of-term prohibition won't help. A clemency board won't help. Even restricting which crimes can be pardoned only helps some victims; victims of other crimes would find no relief. If the concern of justice is the pain of the victim then there is no way to make the pardon power acceptable; it should be ended.

I think there is a role for pardons. The use of the pardon is necessary precisely because of imperfect laws. By creating limits on the pardon we defeat its purpose, and could ultimately thwart justice.





Brian Perry is a partner in a public affairs firm. Reach him at reasonablyright@brianperry.ms.