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Posted at 5:49 PM ET, 08/13/2009

A Hard Call Kaine Probably Got Right

By editors

By Richard Cullen

Virginia Gov. Tim Kaine’s Aug. 6 decision to grant only a conditional pardon in the case of the so-called “Norfolk 4” has satisfied no one, including The Post’s editorial page. I publicly supported the petitioners’ requests for pardons. My reaction when I first heard the news was similar to The Post’s, and I was tempted to take a swipe at the governor. But as I considered his public statement setting forth the reasons for his decision, I came to the conclusion that he probably got it right.

The right to substitute his judgment for that of a jury and the court system is the most solemn power granted to the chief executive of a state. In Virginia, at least, it is a power rarely exercised. Kaine has granted only two absolute pardons. Mark Warner granted five; James S. Gilmore, four; George Allen, nine and L. Douglas Wilder, four. (I found it interesting that Republicans have out-pardoned Democrats.)

An unconditional pardon is, in essence, an absolute finding of actual innocence. It is like saying that the state made a mistake and that we are sorry. The governor’s decision is final. There is no appeal, review or other recourse. So when a governor grants an absolute pardon to a convicted felon, there had better be no mistake.

In addition, the decision to grant an absolute pardon has political as well as legal aspects. This is not to say that a governor must make the popular decision but rather that the standards upon which he bases his decision must make sense to the electorate.

Each governor must establish his own standards for the exercise of his clemency powers. There is no statutory or constitutional mandate. In this case, Kaine set out, in what surely must be the most detailed such statement a governor has ever issued, the reasons for his decision to free the men from prison but not to find them innocent.

Kaine imposed the toughest burden on the petitioners. As a lawyer, we would say that he shifted the burden of persuasion, requiring the person seeking a pardon to conclusively prove his innocence. That makes sense. Someone seeking to overturn a jury verdict that was upheld by appellate courts and based on a confession should be required to meet the highest burden. The public should demand no less. That is why I say this is partly a political decision.

Based on the standard he set, Kaine was unable to declare that the men had conclusively established their innocence. But he did acknowledge the doubts regarding their involvement in the crime, and he reduced their sentences accordingly. While I would have come down on the other side of that line, I respect Kaine if, as he wrote, we who supported a pardon had not convinced him the men were actually innocent.

I spoke out because I felt that these men did not belong in prison, and I wanted them to be free. To use an old cliche, a conditional pardon may be like kissing your sister, but here it allowed Kaine to achieve the right result but also to uphold the reasonable standards he set for himself.

Richard Cullen is the chairman of McGuireWoods LLP. A Republican, he is a former U.S. attorney for the Eastern District of Virginia and former attorney general of Virginia.

By editors  | August 13, 2009; 5:49 PM ET
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