From the July 8, 2007, New York Times:
For Libby, Bush Seemed to Alter His Texas Policy
By ADAM LIPTAK
Until he commuted the 30-month prison sentence of I. Lewis Libby Jr. on Monday, President Bush had said almost nothing about his philosophy in granting clemency while at the White House.
As governor of Texas, though, Mr. Bush discussed and applied a consistent and narrow standard when deciding whether to issue pardons and commutations. And that standard appears to be at odds with his decision in the Libby case.
Mr. Bush explained his clemency philosophy in Texas in his 1999 memoir, “A Charge to Keep.”
“In every case,” he wrote, “I would ask: Is there any doubt about this individual’s guilt or innocence? And, have the courts had ample opportunity to review all the legal issues in this case?”
In Mr. Libby’s case, Mr. Bush expressed no doubts about his guilt. He said he respected the jury’s verdict, and he did not pardon Mr. Libby, leaving him a convicted felon. And Mr. Bush acted before the courts had completed their review of his appeal.
“As governor, Bush essentially viewed the clemency power as limited to cases of demonstrable actual innocence,” said Jordan M. Steiker, a law professor at the University of Texas who has represented death-row inmates.
“The exercise of the commutation power in Libby,” Professor Steiker continued, “represents a dramatic shift from his attitude toward clemency in Texas, and it is entirely inconsistent with his longstanding, very limited approach.”
In the six years that George W. Bush was governor of Texas, a state that executes more people than any other, he commuted a single death sentence and allowed 152 executions to go forward. He also pardoned 20 people charged with lesser crimes, said Maria Ramirez, the state’s clemency administrator. That was fewer than any Texas governor since the 1940s.
As president, Mr. Bush has commuted three sentences in addition to Mr. Libby’s and denied more than 4,000 requests, said Margaret Colgate Love, the pardon lawyer at the Justice Department for most of the 1990s. He has also issued 113 pardons and denied more than 1,000 requests. “His grant rate is very low compared to other presidents’,” she said.
In commuting Mr. Libby’s sentence, Mr. Bush said he had found it excessive. If Mr. Bush employed a similar calculus in Texas capital cases, he did not say so. Even in cases involving juvenile offenders and mentally retarded people, Mr. Bush allowed executions to proceed, saying that he was satisfied of the inmates’ guilt and that they had received a fair hearing.
The United States Supreme Court has since barred the execution of juvenile offenders and mentally retarded people as a violation of the Constitution’s ban on cruel and unusual punishment.
Jeanie Mamo, a White House spokesman, said on Saturday that Mr. Bush “has been very careful and deliberative in the use of his pardon powers.”
“The president commuted — not a pardon — the sentence of Mr. Libby based on thoughtful and deliberate reasoning and acted within the lawful authority granted to him under the Constitution, which he has used very sparingly,” Ms. Mamo said. “As the president has said, he respects the jury’s verdict and he felt the punishments that the judge determined were adequate which included a $250,000 fine, two years probation and a felony conviction. However, in this case, the president considered the 30-month jail sentence for Mr. Libby to be excessive.”As governor, Mr. Bush did not issue formal statements giving reasons for granting or denying clemency. But in his memoir, Mr. Bush wrote that he considered clemency requests carefully.
“For every death penalty case,” he wrote, “they brief me thoroughly, review the arguments made by the prosecution and the defense, raise any doubts or problems or questions.”
Mr. Bush made many of his decisions in Texas based on case summaries prepared by his legal counsel, Alberto R. Gonzales, now the attorney general of the United States. The 57 summaries were examined in a 2003 article by Alan Berlow in The Atlantic Monthly. Mr. Berlow found that they were relatively brief, often dwelt on the details of the crime and sometimes omitted information that lawyers for the inmates said was crucial. Mr. Bush apparently rarely reviewed the inmates’ actual clemency petitions.
In a 1998 interview with The Austin American-Statesman, Mr. Bush said the Texas capital justice system, including its clemency process, was working well.
“All I can tell you,” he said, “is that for the four years I’ve been governor, I am confident we have not executed an innocent person, and I’m confident that the system has worked to make sure there is full access to the courts.”
Mr. Bush did commute one death sentence, that of Henry Lee Lucas, who, though convicted of several other murders, had falsely confessed to the crime that sent him to death row.
He also pardoned Roy Criner, who was serving a 99-year sentence for rape, after Mr. Criner was cleared by DNA evidence in 2000.
Mr. Bush’s attitude toward clemency may have been influenced by a pardon early in his governorship. In 1995, he pardoned a man with an eight-year-old conviction on his record for marijuana possession so that he could work as a constable. A few months later, the man was arrested for stealing cocaine from a police station.
But most of the public scrutiny of Mr. Bush’s attitude toward clemency concerned the capital cases that reached him.
There are significant differences, of course, between those cases and the obstruction of justice and perjury charges on which Mr. Libby was convicted.
In capital cases, juries decide if the defendant is to live or die, while a federal judge, following federal sentencing guidelines, sentenced Mr. Libby. The respect for a jury’s judgment that Mr. Bush expressed in the Libby case may have led him to defer to the death sentences recommended by Texas juries.
Mr. Bush’s power to grant clemency in Texas was also more limited than the absolute power that presidents have where federal crimes are concerned. As governor, he could issue a pardon or commute a sentence only after the state’s Board of Pardons and Paroles issued a recommendation that he do so.
But the 18 members of the board were appointed by the governor, and by the end of his governorship Mr. Bush had appointed every member. Mr. Bush also had the power to grant a 30-day reprieve at any time.
Austin D. Sarat, a professor of jurisprudence and political science at Amherst College and author of “Mercy on Trial,” a study of executive clemency, said it was hard to reconcile Mr. Bush’s actions as governor with the reasons he cited in the Libby matter.
“The grounds he offered for commuting Libby’s sentence were equity — that the sentence was out of line with other sentences — or compassion,” Professor Sarat said. “Those two grounds seem so out of character with anything Bush had ever said or done in the area of clemency that it’s as if he has become a different person.”
In addition to possible innocence, as governor Mr. Bush said he was focused on the adequacy of the legal proceedings. Here, too, however, he took a relatively narrow view.
In 2000, Mr. Bush spoke to reporters about the execution of Gary Graham, whose court-appointed lawyer performed poorly at trial. The prosecution’s case relied mostly on the testimony of a single witness who said she saw Mr. Graham from 30 to 40 feet away through her car windshield. There was no physical evidence linking Mr. Graham, who was 17 at the time, to the killing.
“This is a responsibility I take very seriously,” Mr. Bush said in a grave tone, according to news reports, “because the final determination of innocence or guilt is among the most profound and serious decisions a person can make.”
Five of the 18 members of the state parole board voted for clemency for Mr. Graham. A former member of the board, Paddy Lann Burwell, said in an interview on Friday that the board took pains to insulate Mr. Bush from the decision. “We took a straw vote,” he said, “and I was told that if the vote looks really close it will look bad.”
Mr. Burwell, who was appointed to the board by Mr. Bush, voted for clemency. “He didn’t commit the crime we executed him for,” Mr. Burwell said of Mr. Graham. As for Mr. Bush, “I thought he was harder on crime than he needed to be,” Mr. Burwell said.
In his memoir, Mr. Bush wrote about agonizing over the case of Karla Faye Tucker, who in 1998 became the first woman executed in Texas since the Civil War. Ms. Tucker, who was convicted in the ax murders of two people during a robbery in 1983, had become a born-again Christian while in prison, and her case drew support from across the political spectrum. Mr. Bush described feeling “like a huge piece of concrete was crushing me” as he waited with aides for Ms. Tucker’s execution. It was, he said, “the longest 20 minutes of my tenure as governor.”
In June, before the Libby commutation, The Austin American-Statesman reviewed Mr. Bush’s record on clemency as president and governor in a front-page article. The headline said, “Bush history gives Libby little hope for a pardon.”
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