Commuted then Pardoned

If President Bush grants a full, unconditional pardon to Scooter Libby before the term ends, it will be quite entertaining to see the response. Many, of course, will say they expected it all along. It was only a matter of time, etc. But, a considerable slice of that group will also be the same persons who seemed to have had no clue whatsoever that Bush was going to grant a commutation to begin with. Another slice of that group will be the same persons who have attempted to be provocative by arguing that Bush did not grant a pardon for fear that Libby would run to a congressional committee and spill the beans like no other witness ever has. If we are really lucky, we will be spared some commentator suggesting a commutation followed by a pardon is "unprecedented," or "unprecedented in recent years" or "freakishly rare."

I recently took the time to review the case of a notable instance of a commutation followed by a pardon: the case of Patricia C. Hearst (Shaw), the granddaughter of William Randolph Hearst. It was no surprise to me at all that some of the themes in the story are parallel to many of those that have been discussed in this blog.

In February of 1974, the 19-year old Hearst was kidnapped from her Berkeley apartment by the Symbionese Liberation Army (SLA). A little over two months later, she was seen carrying an assault rifle during a bank robbery in San Francisco, prompting U.S. Attorney General William Saxbe to call her a “common criminal.” After she was finally captured by the F.B.I., Hearst pled guilty to 11 felony counts and was sentenced to seven years in prison.

But Hearst was no Victor Rita. The “Committee For the Release of Patricia Hearst” sent thousands of letters to President Jimmy Carter and California Representative Leo Ryan circulated a petition on her behalf in Congress. Her release was also supported by John Wayne and Ronald Reagan. The Justice Department estimated that nearly one thousand letters came in supporting clemency before she had even submitted an application. Attorney General Griffin B. Bell assured the New York Times that the application - which arrived arrived after Hearst's fourth month in prison - would be considered "in the regular course of business." Twenty-one months into the sentence (January of 1979), Jimmy Carter granted a commutation on the condition that Hearst would remain on parole for one year. In his previous three years as president, Carter had only handed out 4 commutations.

D.O.J. Guidelines, waiting periods and U.S. attorney manuals did not seem to have had any impact on Carter's decision. They were no "problem" for him. The "normal process" was just a little faster for Hearst. Support for the commutation from within the Department of Justice was reported to have been the result of "research" prepared by the Pardon Attorney's office.

James L. Browning, Jr., the attorney who prosecuted Hearst, said he considered Hearst's sentence to be "fair," but also claimed that he was not surprised by the commutation. Anticipating the "Libby Defense" almost 30 years in advance, Browning was quoted by the Times as saying:

I feel this way, if the President had released 'Joan Schmerdly'- having been through the same situation - then, fine, I have no problem. I hope he didn't treat her differently just because she was Patricia Hearst.

Carter once again interceded on Hearst's behalf, in 2000, recommending a full, unconditional pardon be granted by Bill Clinton. The problem, of course, was that Clinton's administration was coming to an end and he had granted very few pardons in his previous eight years as president. Clinton pardoned Hearst, however, and 140 others, just as he was going out of the door.

Stuart Hanlon, a member of the defense team for SLA fugitive Sara Jane Olson (also known as Kathleen Ann Soliah)said he was shocked to hear of Clinton's pardon and called it "outrageous" that "the rich white people should get pardoned and the nonwhite people who don't have power do not get pardoned." Hanlon also complained that the pardon came only months before Hearst was scheduled to testify in the attempted murder case of Olson, who was arrested in Minnesota 25 years after being charged with placing pipe bombs under two L.A.P.D. cars. Hearst appeared on Larry King Live and said, "I'm not afraid of going in front of a jury."

Olson issued a statement which also mourned the fact that "money, access to power and friends in high places" had, once again, "influenced presidential prerogatives." She added that she felt Clinton's pardon should have been a signal to the Los Angeles County District Attorney to abandon her upcoming prosecution.

But, inexplicably, the "Libby Defense" routine didn't seem to work well for her. Olson is currently serving a 14-year sentence.