Clyde Kennard

There are many good things about living in the Deep South. The pace of life is slower. People are generally more polite. Practically all the food is comfort food. But there are bad aspects to the Deep South, too, and the shadow of slavery and racism still looms large.

So when it was reported in the news yesterday that the Mississippi Parole Board had declined to recommend a posthumous pardon for Clyde Kennard, I just had to groan. The local newspaper article can be linked to here. Kennard, for those who don't know, was a Korean war vet who was falsely accused and convicted of burglary in 1960. His real crime? Trying--repeatedly but unsuccessfully--to enroll in Mississippi Southern College (now the University of Southern Mississippi in Hattiesburg), which at the time was all-white. More information on Kennard is available here. Parole Board Chairman Glenn Hamilton justified the board's decision by explaining that "a more appropriate and satisfying remedy may be available to exonerate the name of Mr. Clyde Kennard." In other words, the wrong done to Mr. Kennard was so egregious that a pardon is not a big enough gesture--so let's deny the pardon.

Perhaps not surprisingly, the board's recommendation against a pardon came after public statements by Mississippi Governor Haley Barbour that he would not grant a pardon, since pardons are for the living, not the dead. (Mr. Kennard died of colon cancer in 1963.) So you have to wonder whether the Parole Board caved to executive pressure. The board makes its pardon recommendations to the governor, so it could be that the board did not want to put the governor in the awkward position of denying a recommended pardon--which I understand has never before happened in this state.

I don't know. But whatever the logic, the decision is astounding. And shameful.

For the sake of argument, let's take Parole Board Chairman Hamilton at his word. Saying that the wrong was so great that pardon doesn't rectify it is like saying a crime we commit is so terrible that apologizing cannot make amends for that criminal act--so we refuse to apologize. That's ludicrous. And as for Governor Barbour's logic, it doesn't explain why President Ford pardoned Confederate General Robert E. Lee, or why other state governors have issued posthumous pardons.

I am not saying that we should not hew to rules. In the field of law, adherence to the rule of law sometimes generates unpopular results, and anyone who has been to law school understands this. The law is in many ways an imperfect proxy for morality, as is well-illustrated by the term "loophole": there is an intent behind a provision of law, but there is a way around it--a way to obey the letter of the law but violate its spirit. Yet underlying much of the law is the notion of morality. That's why we outlaw things like murder, but allow for insanity defenses. And it drives the current national debate about abortion.

The upshot here, as I see it, is that the Parole Board had discretion to recommend pardon and take a least a small step toward reconciliation between the white and black communities of Mississippi, which still remain deeply separated from one another in many ways. And the governor is not bound by law to oppose the pardon. So the pardon clearly can happen. Don't we teach our kids to say they are sorry when they do something wrong? And to put it bluntly, would we teach them differently if the person wronged were dead? Would we tell them not to apologize to their relatives or friends?

This turn of events troubles me even more deeply because this debate is all so unnecessary. Kennard should be pardoned--and other avenues of redress can be explored too. You can be sure that tonight, when I attend my law school's annual BLSA luncheon, this will be a topic of conversation--which illustrates how significant an event this parole denial is.

P.S.--At least I can say that I am proud that Mr. Kennard's case is being championed by the Center on Wrongful Convictions at my alma mater, Northwestern University School of Law. Lawyers get a lot of criticism, but in this case I am glad to be affiliated with an institution that is doing the right thing for the sake of doing the right thing.