Flawed clemency process may be legal, but it’s not right

Nothing is as offensive to democracy as an abuse of political power for which there appears to be no remedy, even under the Constitution. That’s the indefensible situation in Florida today under a federal appeals court ruling in favor of Gov. Rick Scott and the Cabinet — and their massive denial of voting rights to people convicted of felonies who have paid their debts to society.

By a 2-1 vote, the court blocked a district judge’s order calling for a fairer deal for some 1.6 million Floridians who can’t vote because of a prior felony conviction. Worse, the court said in effect that Scott, Attorney General Pam Bondi and their collaborators in voter suppression are likely to win the underlying appeal.

Fortunately, there is an available remedy for this injustice. Amendment 4 on the Nov. 6 ballot is a voter initiative that would provide automatic restoration of voting rights once most ex-felons have fully completed their sentences, including parole or probation. Murderers and those convicted of sexual felonies would still be required to apply to the governor and Cabinet.

More than 800,000 Floridians signed the petitions for this initiative. As with all constitutional amendments, it will require 60 percent of voters to approve it for passage. It deserves everyone’s support. Voting is the right that protects all others. People who have paid their debts to society are as deserving of that right as any others. It is vital to productive citizenship.

It’s true that federal precedents favor the right of governors and pardon boards to deny clemency as capriciously as they choose. But that case law is as flawed as the long line of decisions that upheld racial segregation before enlightened leaders overturned it. Florida’s voter disenfranchisement continues to affect minorities disproportionately and should be buried along with the rest of Jim Crow.

Only three other states — Iowa, Kentucky and Virginia — impose permanent disenfranchisement for felony convictions. But Florida is by far the worst in terms of the number of people languishing in second-class citizenship.

Before Scott and the Cabinet turned back the clock seven years ago, then-Gov. Charlie Crist had instituted a relatively rapid system for considering and granting applications from ex-felons, processing more than 100,000 a year. Now people must wait five to seven years before even applying. Scott and the Cabinet have approved barely 3,000 applications. They meet as the clemency board only four times a year.

The appeals court decision came on the eve of the deadline set by U.S. District Judge Mark Walker of Tallahassee for Scott and the Cabinet to adopt clear rules. A draft prepared for an emergency Cabinet meeting Wednesday night would have preserved the arbitrary five-year rule, but eliminated the need to appear before the governor and Cabinet. That grudging change is inferior to Amendment 4.

The meeting was canceled after the appeals court ruled.

The majority opinion cited “binding precedent...that the governor has broad discretion to grant and deny clemency, even when the applicable regime lacks any standards.”

But to say it’s legal does not make it right.

Scott’s disdain for fundamental fairness in the clemency process isn’t restricted to voting rights. It’s a major stain on his public record. He has now put 26 people to death without ever acknowledging their petitions for mercy, let alone explaining what standards — if any — he applies, other than respect for the jury verdict. If the framers of Florida’s Constitution had meant for the judgments of the courts to be infallible and immutable, they wouldn’t have provided for executive clemency.

Scott’s indifference to justice is evident even in a case that’s nearly 70 years old. He has yet to act on the Florida Legislature’s unanimous request of a year ago that he and the Cabinet grant full pardons to four black men falsely accused of raping a white woman near the Lake County community of Groveland in 1949. The four, all deceased, were Charles Greenlee, Walter Irvin, Samuel Shepherd and Ernest Thomas. Their arrests set off a race riot and other manifestations of hysteria, including a newspaper cartoon depicting four electric chairs.

Lake County was the province of the notoriously racist sheriff Willis McCall. Thomas was slain by a McCall posse with no showing that he had tried to resist arrest. Greenlee, a minor, was convicted and sentenced to life. Shepherd and Irvin were sentenced to death. After the U.S. Supreme Court granted them a new trial, McCall shot both men, claiming they had tried to assault him while he was bringing them from prison. Shepherd died. Irvin survived, was condemned again and spared execution when Gov. LeRoy Collins commuted his sentence to life. Collins plainly doubted his guilt — a conclusion history has long since confirmed.

The facts include an FBI finding that casts of footprints used as evidence were made with empty shoes. Greenlee and Irvin were eventually paroled.

The case was the subject of Gilbert King’s book, which won a Pulitzer Prize in 2013.

A Florida Politics article Wednesday addressed Scott’s inaction in response to the legislation and the individual applications filed by relatives of Greenlee and Irvin. The article noted that families of the four men are aging and fearful that they won’t live to see justice done.

“We haven’t heard anything from anyone,” said Vivian Shepherd, Shepherd’s niece, “so it’s like saying, ‘It’ll never happen.’”

Florida Politics reported that of the four clemency board members, including Bondi, Chief Financial Officer Jimmy Patronis and Agriculture Commissioner Adam Putnam, only Scott’s office acknowledged an inquiry. The statement referred to “standard procedure,” and referred to the Commission on Offender Review, which investigates applications for the board. “We continue to review all of our options,” the statement said.

Glaciers move faster than that commission does.

Scott will be on the ballot along with Amendment 4. He’s running against Sen. Bill Nelson. Putnam may be there, too, if he wins the Republican primary for governor. Patronis, appointed by Scott, is seeking election to the office.

Florida deserves better than a clemency process shrouded in mystery and administered with whim and indifference. These candidates should account to the voters for why they haven’t done better.

It’s true that federal precedents favor the right of governors and pardon boards to deny clemency as capriciously as they choose. But that case law is as flawed as the long line of decisions that upheld racial segregation before enlightened leaders overturned it.