July 19, 2007

George W. Bush became governor of Texas in 1994, when he upset the popular incumbent, Ann Richards. The following September, my client, Carl Johnson, was scheduled for execution.

Johnson had killed a security guard during a holdup of a convenience store. The guard had opened fire on Johnson first, but Johnson did not use that as an excuse. He accepted responsibility for what he had done, and he was remorseful. He had been robbing the convenience store in the first place because he had an expensive heroin habit to support, a habit he picked up in Vietnam, after being drafted.

Johnson had been represented at his trial by one of the most notoriously inept death penalty lawyers in history. The lawyer fell asleep in numerous trials, including Johnson's. He was eventually no longer permitted to represent capital murder defendants. Johnson's co-defendant pleaded guilty, and had long since been released from prison by the time Johnson's execution date rolled around.

Johnson grew up in prison. He became religious and repentant. He did not falsely proclaim his innocence or blame anyone other than himself for his mistakes, which he acknowledged to be serious and perhaps unforgivable. At the same time, in his years in prison, he had no significant disciplinary violations. He worked in prison. He crafted religiously-inspired art. He got his high school equivalency diploma.

I thought of Johnson on the day that President Bush commuted the prison sentence of I. Lewis Libby, Vice President Dick Cheney's former chief of staff, a man who was convicted of lying to a grand jury — that is, a man who was convicted of perjury. President Bush went to the White House saying he was going to bring integrity back to the Oval Office, a reference to President Clinton, who had been impeached for lying to a grand jury, the same as Libby's crime. President Bush got elected despite charges that he had used his father's connections to avoid service in Vietnam, the place where my client, Carl Johnson, found heroin.

In Texas, the governor cannot commute a death row inmate's sentence without approval of the Board of Pardons and Parole. The governor still wields great power, however, because the governor appoints the members of the board, and they take their cues from him. When Gov. Bush wanted to commute the death sentence of Henry Lee Lucas, a man believed by some law enforcement officers to have been a serial killer but who probably did not murder the woman he was sent to death row for killing, he let it be known, and the board accommodated his wishes, recommending a commutation, which Governor Bush signed in 1998.

I asked then-Gov. Bush to grant my client a 30-day reprieve, with the idea that he could thereby signal to the board his belief that Johnson's death sentence should be commuted to life. He denied my request, as he denied the other 56 requests that were made of him by lawyers representing death row inmates. Some of these inmates were mentally retarded. Some were juveniles when they committed their crimes. Gov. Bush always gave the same explanation: that the inmates had had full access to the legal system. He gave that same reason when he turned down a reprieve request made by the lawyers representing Karla Faye Tucker, whose reformation on death row was legendary, and when he rejected the reprieve request made by lawyers representing Gary Graham, who was probably innocent.

My client, Carl Johnson, committed the worst crime that can be committed against another human being: He killed someone. And Lewis Libby committed the crime that is most injurious to our criminal justice system: He lied. Unlike my client, Libby, who was convicted by a jury of his peers despite being represented by the best lawyers that money can buy, has never shown any public sign of remorse. Nevertheless, despite all that, President Bush did not exceed his authority in commuting Lewis Libby's prison sentence. The Constitution gives him the power to do what he did. But it is possible for actions to be lawful and simultaneously in conflict with other constitutional principles. Last week's pardon deeply offends the constitutional value of equality, the idea that all citizens stand equal before the law.

Lewis Libby had something in common with the other people George Bush has pardoned, and with people President Clinton pardoned as well: He is rich and powerful, and he has rich and powerful connections. People do not get pardons because they are mentally retarded, or because they were young when they committed their crime, or because they had terrible lawyers, or because they have reformed, or even because they are innocent. They get them because they have friends in high places. That might not be illegal, but it's still wrong, and a president who issues pardons and commutations on that basis has not done very much at all to bring integrity to the Oval Office.