The sheer number of pardons handed out by outgoing Mississippi Gov. Haley Barbour – over 200 – left many Mississippians in shock. What may not have been so surprising is that white prisoners were four times more likely than black ones to get the gubernatorial benefit of the doubt.
Out of a total of 222 acts of clemency given by Barbour during his tenure – 156 of which Attorney General Jim Hood has subsequently argued may be constitutionally invalid because of public notice violations – two-thirds benefited white prisoners. Meanwhile, two-thirds of the state's prison population is black.
On its face, the disparities immediately raise questions about whether the Mississippi pardon system is inherently racist. Some critics have called on the US Justice Department to investigate Barbour's pardons on the racial disparities alone, since such broad inequalities could point to a violation of the Constitution's equal protection clause.
At the same time, the racial pattern of Barbour's pardons, justice experts say, offers insight into how parole lawyers, governors, even presidents, may view factors like rehabilitation and remorse differently depending on the race of the convict, where opinions may be based more on subtle cultural factors than outright prejudice.
A recent investigation by ProPublica showed that white convicts in the federal justice system were four times more likely to receive a presidential pardon than black convicts – a trend that has continued under President Obama, who is African American.
In most such cases, including Barbour's, chief executives have denied any racial bias, noting that the pardon boards and attorneys do not note a person's race on their written recommendations to the executive.
"A majority of the clemency cases were reviewed by the Parole Board before being sent to Governor Barbour," Barbour spokesperson Laura Hipp told Reuters, which conducted an analysis of Barbour's pardons. "Race was not a factor in his decision. In fact, it wasn't even listed on the Parole Board's application."
Black-white incarceration disparities are highest in the Northeast and Midwest and, overall, lowest in the South. Iowa, for example, has a black-to-white incarceration of 13-to-1 while Mississippi's ratio is 3-to-1.
Nevertheless, suspicions linger most especially in the South about the extent to which racial prejudice persists in the justice system and throughout society. In December, the US Justice Department declined to approve a new Voter ID law in South Carolina, for example, saying the state failed to prove how it would not disenfranchise blacks, a greater percentage of whom don't have state issued IDs.
Perhaps more than incarceration rate disparities, however, pardon rate inconsistencies suggest that biases may be less individual and more systemic. In Mississippi, for example, black prisoners, on the whole, have fewer resources than white prisoners, including access to personal lawyers, which may have led to fewer black prisoners requesting a pardon in the first place.
But the “tests” applied by pardon boards and attorneys may also favor whites, critics say. In most such proceedings, lawyers consider “conduct, character and reputation” of applicants, the “need” of the applicant, the opinions of prosecutors and judges, and then gauge the level of remorse and atonement of the applicant.
If they key pardon players – judges, prosecutors, attorneys, and, ultimately, the chief executive – are for the most part white, cultural ignorance could come into play. Rather than relying on any kind of conscious bias, experts say, a pardon officer may misread the level of remorse exhibited by a black pardon applicant for cultural reasons, given that African-Americans may express contrition in different ways than whites.
“To the extent that [pardon boards] allow their staff to be making judgments into somebody’s attitude — that’s an entry point for bias,” Jack Glaser, a discrimination expert at the University of California, Berkeley, told ProPublica. “It’s not that it’s a reflection of racial biases, because there are also cultural attitudes. White people understand white people better. They may not understand the outlooks of minority people as well.”
Researchers have found that convicts whose crimes were committed more than 20 years ago, those who are married, and those who are financially stable had better luck getting pardons. But even though such factors could disproportionately impact African-Americans, especially the large populations of poor blacks in the South, they don't fully explain what's happening.
“When the effects of those factors and others were controlled using statistical methods, however, race [still] emerged as one of the strongest predictors of a pardon,” the ProPublica team wrote.
The same notion held true for the Mississippi pardons, a pair of University of Georgia researchers found. "The odds of a random sample of the prison population coming out with the same or greater disparity in racial proportions as the pardons list is less than one in a trillion, if race were truly unrelated to pardons,” University of Georgia researchers Kim Love-Meyers and Jaxk Reeves have stated.
Given its likely wide range of causes, pardon disparities may be tough to fix. But making the process less secret and mysterious may be a start, experts say, as would implementing review boards that could pinpoint patterns of racial disparity.
In Mississippi, the legislature reacted to the uproar over the pardons by ending a long-running "trusty" program that allowed convicts to work at the Governor's Mansion. Five of those pardoned by Barbour worked under him at the executive residence, pointing out another truth behind pardons that ProPublica unearthed: Connections help.
Despite anger about the pardons, few in Mississippi believe Barbour acted on the basis of racial prejudice. Only last summer, the NAACP called Barbour a "shining example" for freeing two African-American women serving life sentences for a robbery that yielded $11. But offering at least one hint into how he weighed the pardon applications before him, Barbour declined to officially pardon the women, which would have restored their voting rights, saying they didn't show sufficient remorse for their crimes.
Mississippi Circuit Court Judge Tomie Green will convene a hearing on Monday to start looking into whether Barbour's pardons circumvented the state constitution. The race of those pardoned, however, will not be considered in that hearing.