Following up on my May 11, 2006 post on Clyde Kennard and efforts to secure him a posthumous pardon, my colleague Professor Pat Bennett was quoted about the case in the Jackson, Mississippi Clarion-Ledger (the largest newspaper in Mississippi). That article appears here. Professor Bennett's comments respond to the Mississippi Parole Board Chairman's suggestion that a pardon is insufficient to rectify the wrong done to Kennard, and that Mississippi's lower courts should instead set aside the conviction. Bennett, who teaches criminal law and is a member of the Mississippi Bar, notes that "Procedurally, I don't see how that could happen."
So what we have here, folks, is a classic case of governmental left hand-right hand injustice. Governor Barbour opposes a pardon not because Kennard doesn't deserve one, but rather because he is dead. The Parole Board opposes a pardon because a pardon does not go far enough to right the wrong done. And according to Professor Bennett, the lower state courts cannot set aside the conviction because they lack the procedural means or authority to do so. It's like when you call a government agency and get passed from bureaucrat to bureaucrat, with each one saying, "Yes, we made a mistake on your taxes [or whatever], but I really can't help. Let me forward you to someone who might be able to." And then the next person does the same--over and over again.
So in other words, it seems that the administrative remedies in question have been exhausted here--if indeed that is a requirement for pardon in Mississippi. I do not know the precise answer to that question, and I have not researched it yet. But if either (a) the remedies have been exhausted, or (b) that is not a requirement for pardon, then I am really at a loss here. Governor Barbour likes to take strong stands, and I will concede that pardons should not be handed out willy-nilly. But this is most certainly not a willy-nilly case. There is a lot of pent-up societal pressure involved here. And pardons are by design a sort of release valve--a way to right (or avoid) wrongs by executive fiat.
Take another look at the Clarion-Ledger newspaper article linked to above. Note how it mentions that the Parole Board Chairman is white and the lone Parole Board dissenter in this case is black. This is a hot-button subject, and it is being characterized as a race issue. Some people might say that it is not a race issue, but it is hard to defend that position when it is seen as dividing people along racial lines. And frankly, if Kennard had been white he never would have been convicted. No one wins if there is no pardon or other resolution to clear Kennard's name. So what's the problem?
We Americans pardon a turkey--a bird, mind you--every Thanksgiving holiday. Can't we also pardon an upstanding and innocent man after his death?