The Magazine

Pardon Me, Mr. President

In the realm of criminal justice, Clinton gets a free pass from the media

Aug 28, 2000, Vol. 5, No. 47 • By DEBRA J. SAUNDERS
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THE ELITE MEDIA BELIEVE that the much-used Texas death penalty may hurt governor George W. Bush in his bid for the White House. They paint the Texas criminal justice system as draconian, cavalier when it comes to due process, unfair to minorities, and excessively swift and unyielding. They take care to report that Bush has stopped only one execution out of 139. Yet while commentators gasp at tough Texas justice, the national media have had almost nothing to say about the Clinton record.


It is one that should horrify the "Save Gary Graham" crowd. To date, President Clinton has commuted the sentences of only 21 prisoners. Of the 21, 12 were convicted terrorists, former members of the Puerto Rican FALN who were serving time for such crimes as armed robbery, sedition, and interstate transportation of firearms with the intent to commit a crime. In 1999 when Clinton pardoned the FALN members, he wrote that he did so not for any partisan reason (read: Hillary's New York Senate race), but because "the prisoners were serving extremely lengthy sentences -- in some cases 90 years -- which were out of proportion for their crimes."


At the time, Clinton had commuted the sentences of only three other convicts. One was a pig farmer convicted of committing perjury in his bankruptcy trial. The other two were drug offenders whose prosecutors had sought reduced sentences in return for their cooperation. National Journal legal writer Stuart Taylor opined in October 1999, "The problem is not that Clinton has been too generous in showing mercy. It is that (putting aside the Puerto Rican nationalists) he has been too stingy -- stingier than any other president in the past century, perhaps history."


(Vice President Al Gore, by the way, has refused to tell the media what he thought of the FALN pardons. After much waffling on the issue, he told the New York Times, "I have not reviewed the records, and here's why: This is a power given to the president, without any checks or balances. It's not reviewable by anyone." A good reason why the media should ask Gore what his pardon policy would be if he were elected.)


Since springing the FALN inmates, Clinton has freed another six convicts, five of them on July 7, 2000. The best-known of these was Amy Pofahl, who had served 9 years of a 24-year sentence for conspiracy. In fact, Pofahl was the estranged wife of Ecstasy kingpin Charles Pofahl. When he was arrested in Germany in 1989, Amy made the big mistake of gathering up his ill-gotten gains to help him post bail. Later, Charles cooperated with the feds and arranged a plea bargain; he pleaded guilty to tax evasion and was credited for some four years served behind German bars for breaking German drug laws. Charles served no time in U.S. federal prison. Amy, however, would not cooperate, and prosecutors charged her as part of her husband's vast drug operation. Asked what she thought her punishment should have been, Pofahl told the San Francisco Chronicle, "I think he should have got my sentence and I should have got his."


Pofahl's release last month was bittersweet, because, she said, "I leave so many people behind who are in the same situation." Asked how many Amy Pofahls there are, Families Against Mandatory Minimums founder Julie Stewart answered, "We could probably lay our hands on 200 quickly." The organization's spokesperson Monica Pratt asserts, "There are thousands of women serving mandatory sentences for drug conspiracy cases who are minimally or not at all involved with the drug offense they are being held accountable for."


The White House framed the five July 7 commutations as a merciful response to women who had "received much more severe sentences than their husbands and boyfriends." As spokesman Jake Siewert told the Associated Press, "The president felt they had served a disproportionate amount of time."


Not quite. One of the freed inmates was a male drug smuggler, Alain Orozco, who had cooperated in the prosecution of a bigger fish. Another, Louise House, was a leading heroin dealer in St. Louis who had frequently received drug deliveries from a young teenage girl. According to the St. Louis Post-Dispatch, House was arrested with $ 1.5 million worth of heroin on her, and the U.S. attorney described hers as "one of the most significant heroin cases this city has ever seen." House didn't serve a heavier sentence than her man; she was a widow.


Serena Nunn and Shawndra Mills came closer to the Pofahl profile. But the question remains why Clinton granted House clemency, and why his press office misrepresented the reason for her and Orozco's release. After I called the White House for more information, Siewert left a voicemail: "It's essentially, these came to our attention. These are the ones that got to the president's desk."


The July commutations, notes Monica Pratt, were "an admission [by the White House] that there's a problem here." When George W. Bush admits a problem -- when he allowed for DNA testing in the Ricky McGinn case, for example (testing that would confirm McGinn's guilt) -- his critics respond by demanding still more leniency. When this administration admits a problem, the media become mute and barely notice that the White House is letting major dealers loose while women like Kemba Smith -- sentenced to 24 years after her drug kingpin boyfriend died -- languish behind bars. There has been no loud call for this administration to reexamine drug policies that too often defy fairness.


Eric Sterling of the Criminal Justice Policy Foundation in Washington noted, "There is a national movement to encourage Clinton to free hundreds, if not thousands, of people like Pofahl. It's called Jubilee Justice 2000." Yet Jubilee Justice 2000 is garnering a tiny fraction of the coverage bestowed on those who wanted Governor Bush to commute the sentence of convicted killer Gary Graham. Then again, talking about federal prosecutorial overkill won't help keep a Democrat in the White House.




Debra J. Saunders is a columnist at the San Francisco Chronicle and the author of the book The World According to Gore.