For notorious Wild West outlaw Billy the Kid, it looks like Christmas might yet come, just 129 years too late. And some are wondering why.
New Mexico Gov. Bill Richardson, a Democrat, has just a few days left in his second and final four-year term in office, and will spend some of it deciding whether to grant a petition to pardon Billy the Kid, who was born as Henry McCarty but also was known by the aliases Henry Antrim and William H. Bonney.
Mr. Richardson must make his decision about the legendary figures fate before midnight Dec. 31, when his time in office expires.
Some experts on executive pardon criticized Mr. Richardsons consideration of Billy the Kid’s case.
“It seems to me that the case demonstrates a kind of trivialization of the pardon power,” Margaret Love, a former U.S. pardon attorney who specializes in executive clemency, told The Washington Times. “It doesn’t bear any relationship to the needs of real people in the criminal justice system that I think governors should be addressing.”
Mr. Richardson acknowledged last week during an interview on CNN that he enjoyed the attention the issue was bringing - “I’m going to string it out a little bit,” he said - but added that he would not consider a “blanket pardon.”
“I’ve considered this for the last eight years,” he said Thursday. “I’m looking at all of the documentation. I’ve heard from people around the world. It’s about 52-48 in favor of the pardon.”
The governors office failed to return three voice messages from The Times.
Peter Ruckman Jr., a political science professor at Rock Valley College in Illinois who runs a blog called Pardon Power, said extending a pardon to Billy the Kid would be “wildly inappropriate,” and would degrade the power of a weighty gubernatorial power.
“I think a more appropriate thing about this would be an proclamation or something of that order,” Mr. Ruckman said. “I think pardons should be for living people.”
Randi McGinn, the lawyer and history buff who submitted the petition to the governors office, disagreed.
“If we dont learn from history, we continue to relive our mistakes,” Ms. McGinn said. “The power to pardon is absolute, and it applies to people who are both currently alive and currently dead.”
While Billy the Kid is thought to be responsible for up to nine deaths at the time of the Lincoln County War, he was only convicted of one - the death of Sheriff William Brady. The outlaw, whose fame mostly came after his death, was fatally shot by Pat Garrett in 1881 before he could stand trial for two additional killings.
According to Mr. Richardsons office, granting clemency would compensate for an unfulfilled pardon promise from Lew Wallace, the governor of New Mexico Territory in the late 1800s.
A Billy the Kid pardon wouldnt be the only posthumous vindication this month. Florida Gov. Charlie Crist pardoned Doors singer Jim Morrison, who was sentenced to prison for indecent exposure and profanity in 1969, two years before he died.
Though little detailed data on gubernatorial pardons exists, there are comprehensive records on presidential pardons, and they show only two posthumous uses.
President Clinton caught the publics attention in 1999 when he cleared the record of Lt. Henry O. Flipper, the first black graduate of West Point. Flipper, who had been dead for nearly six decades, was dismissed for conduct unbecoming an officer related to a disputed charge of embezzlement. On Dec. 23, 2008, President George W. Bush posthumously pardoned Charlie Winters, who was convicted of violating the U.S. Neutrality Act in aiding Israels War for Independence.
But, as Ms. Love pointed out, in both of these cases, the individuals were proven reputable citizens.
Executives have granted clemency to well-known outlaws in the past. Ed Reed, Bluford Duck, David Anderson (aka Buffalo Bill), Henry Starr and Al Jennings were all cleared of their crimes. Mr. Ruckman suggested that Billy the Kids case is likely receiving attention from the governor purely because of the outlaws prestige.
“Theres this perception that if you have influence and whatnot, you already have an advantage,” Mr. Ruckman said. “In the list of dead people, you do get your Jim Morrisons and your other people of notoriety.”
“If its such a big, important issue, why didnt he do it two years ago, and why did he do it now?” Mr. Ruckman questioned.
Ms. Love, who lauded several governors for improvements they have made in their states’ criminal procedures, said governors should treat their pardon powers seriously, as, in many states, pardon is the only option available for those convicted of crimes to “start over with a clean slate.” Ms. Love estimated that the 15 or so states with functional pardon programs grant anywhere from 30 percent to 60 percent of requests.
“If Gov. Richardson had spent even a quarter of the time addressing the real-life difficulties of the citizens of his state … as he has on this silly publicity stunt, his state would be a lot better off,” Ms. Love said.
But Ms. McGinn disagreed that pardoning Billy the Kid is an outdated action.
“I think it is as important to enforce the principles of the law that are 130 years old as now,” she said.
The federal level also is seeing a widening gap between pardons granted and pardons denied, based on the Department of Justices statistics. Recent presidents have seen some of the highest rates of clemency applications, Ms. Love added.
While earlier American presidents would sometimes grant hundreds of pardons in one swoop, more recent White House residents have done much fewer. George W. Bush granted just 189 pardons, while Barack Obama, nearly two years into his term, has granted just nine.
Mr. Richardson welcomed comments from the public about the petition until Sunday, as stated on a Web page devoted specifically to the Billy the Kid case.
Ms. McGinn said serving justice is at the heart of the petition.
“If the governor makes a promise to a good man or to a bad man, you have to keep your promise,” said Ms. McGinn, who said the moral uprightness of all involved parties, including the authority that prosecuted Billy the Kid, is questionable.
An effort was made in 2001 to pardon the notorious outlaw, but then-Gov. Gary E. Johnson, a Republican, rejected it. One of his spokesmen told reporters back then that “the purpose of a pardon is to restore somebodys civil rights - as Billy the Kid is deceased, he is not in need of restoration of his rights.”
Mr. Richardson expressed interest in the Kids case publicly as early as 2003.
“As someone who is fascinated with New Mexico’s rich history, I’ve always been intrigued by the story of Billy the Kid - and, in particular, the alleged promise of a pardon he was given by Territorial Gov. Lew Wallace,” Mr. Richardson said in a statement last week.
Public opinion seems to oppose a pardon grant. In an informal online El Paso Times poll with nearly 600 participants as of Sunday afternoon, 44 percent opposed a pardon, while just 21 percent approved it. The remainder of the participants indicated they were either undecided or indifferent.
Ms. McGinn, who began working on research for the petition six months ago and filed it on Dec. 14, said she isnt surprised public opinion is against Billy the Kid, as he has 129 years of history painting him as a bad character.
“Whoever wins the war writes the history,” she said.
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