The indictment of former President Trump by a Fulton County Grand Jury last week has highlighted the independent Georgia State Board of Pardons and Paroles, which will make it next to impossible for a sympathetic governor to pardon Trump if he is convicted for his role in attempting to overturn the 2020 election. On this week’s episode of Now & Then, “Pardons: Politics & Power,” Heather Cox Richardson and Joanne Freeman explored the history of pardons in America, zeroing in on the 1943 reforms by Georgia Governor Ellis Arnall that triggered the creation of the independent Board. Immediately after Arnall helped to create the Board, he was faced with a legal imbroglio involving a famed fugitive that tested the limits of the Board’s authority.
In 1922, Robert Elliott Burns was a penniless World War I veteran suffering from shell-shock and drifting around Georgia. A promising accountant before the War, he fought in five major Western Front battles, was wounded in the neck by shrapnel, and returned home to Brooklyn to find his job gone.
He drifted, aimless and destitute, down to Atlanta. While there, Burns accepted food from two men, who then, allegedly at gunpoint, compelled him to join a grocery store robbery, which netted only $5.80. Police broke up the theft and sentenced Burns to a chain gang for six to ten years. In his first weeks on back-breaking, shackled work detail, Burns was badly fed, physically beaten by guards, and driven to work long hours in railroad construction.
Two months after his sentencing, Burns escaped and fled to Chicago, where he became the successful editor of Greater Chicago Magazine, making a then-impressive salary of $20,000 a year. He married his landlady, but filed for divorce in 1929, at which time she supposedly sold him out to Georgia authorities. Burns went back to Georgia, where he served 14 months on another chain gang before fleeing again.
This time, Burns traveled to New York and decided to come clean to the public at large, penning a wrenching memoir entitled I Am a Fugitive from a Georgia Chain Gang! The book became an unexpected bestseller, and was adapted into a now-iconic 1932 film starring Paul Muni.
Burns soon moved to New Jersey, where Georgia authorities attempted in the early 1930s to extradite him back to Georgia. A national outcry followed, and three successive New Jersey governors turned down extradition requests over the course of the next decade. Burns settled in a suburban home, had three children, and became a much-respected tax adjustment agent.
Meanwhile, Georgia politics were in flux. The law-and-order governorships of the demagogic Eugene Talmadge and the corrupt E.D. Rivers gave way in 1943 to the reform-minded tenure of the 36-year-old Ellis Arnall.
In quick order, Arnall began to transform the state. He abolished the poll tax and lowered the voting age to 18. In October 1943, Arnall also moved toward making less brutal the prison work program that had so plagued Burns; his Georgia Prison-Reform Act banned shackles and onerous work hours for convicts.
Arnall spoke passionately about the need for reform in a speech before the Georgia General Assembly. “In the past we have denied prisoners the treatment any man must have,” he declared. “We have caged them like wild animals. We have let them thirst and hunger. We have chained them. We have forged iron bands upon their legs. We have denied them the solace of religion, and when I think of boys huddled with professional criminals, obtaining no education and no religious instructions, I am disgusted.”
Continuing his flurry of legislation, Arnell pushed a successful bill to reform the pardon system, which both Talmadge and Rivers – as was discussed on Now & Then – had used in bald-faced payola schemes. Instead of the governor dictating pardons, the three-member Georgia State Board of Pardons and Paroles took over the duty, free – at least in theory – from gubernatorial meddling.
“I am never going to bother them any more,” Arnall told the press. “I’m never going to ask the board to pardon or parole a soul.” Within months, however, Arnall was confronted with the Burns case and began to rethink his non-interventionist pardon policy.
In December 1943, the editor of True Detective magazine, which had first serialized Burns’s chain gang narrative, orchestrated a visit by Burns and his family to Arnall at the Governor’s room in the Savoy Plaza Hotel. Arnall was in New York to speak to the Southern Society.
Arnall talked with Burns for over an hour, and penned a letter to the newly-formed Board of Pardons and Paroles. “So convinced am I that this man has become rehabilitated that I am writing a letter to the board,” the Governor began his note.
Arnall made clear that he was not attempting to sway the Board’s decision as Governor, but was rather taking an interest in Burns’s potential pardon as a private Georgian: “I am not writing in my official capacity. I am writing merely as a citizen who is interested in my state.”
The Governor also argued that Burns’s chain gang treatment represented a departed Georgia: “I believe the prison system which Robert Elliott Burns so severely condemned in his book has likewise been condemned by the people of Georgia.”
Despite Arnall’s passionate defense of Burns, the Board immediately refused to hear Burns’s case, citing a regulation that the fugitive had to return to Georgia to be considered for any sort of pardon or clemency.
For the next two years, Burns put off returning to Georgia to face the Board, fearful that they would rule against him and that he would be returned to prison. On November 1st, 1945, however, Burns took the risk, traveling to Atlanta to formally face the Pardons and Paroles Board.
Burns visited Arnall at the Governor’s office before reporting to the Board. In full view of the press, Burns told Arnall, “I’ve come because of my faith in you as a great executive. I have watched your career and the wonderful reforms you have instituted to remove the old system of chain gangs that I knew.”
Arnall appeared before the Board as Burns’s counsel, again ostensibly in his capacity as a private citizen. “I am not asking you to take this action solely for the sake of Burns, although that is worthy enough,” Arnall told the Board. “I am asking it for the reputation of Georgia. If you act favorably, the people of America will know we have a modern system of crime and punishment in Georgia.”
The Governor also highlighted the uniqueness of his action and reminded the Board that he would be impartial in the future: “I have never appeared before the board with such a request and I shall probably never do so again.”
The Board was not able to entirely pardon Burns for his crime, citing that he had admitted to the hold-up. They did, however, agree to commute Burns’s sentence. For the first time in over 20 years, Burns was a free man. “I give you my pledge that you will not be sorry for the action you have taken,” Burns told the Board.
Burns headed to a nationwide radio broadcast at Atlanta’s WAGA studio, where he offered advice for others facing adversity: “Time is a great healer. For an individual, a group, or a state, if they have patience to wait and tend to their knitting, everything will come out all right.”
Not everyone was happy with Burns’s road to freedom and Arnall’s advocacy. An incensed Georgian named W.O. Strickland wrote a sarcastic letter to the Atlanta Constitution suggesting that Arnall run for president with Burns as his running mate. Strickland imagined “an Arnall plank in which he shall promise to have enacted penal laws in each of the 48 states giving him authority to pardon Burns and all escaped convicts, who will write books condemning all penal institutions.”
Arnall’s decision to go to bat for Burns also set up a brutal racial double-standard over the following months – and highlighted the double-edged sword inherent in Arnall’s promise to not intervene again in the Board’s decisions.
Herman Powell, a Black man, had been convicted of killing a white woman in a car accident on a wet road during a storm in 1942. There was no evidence of criminal negligence in the crash, but Powell was nonetheless sentenced to life in prison by an all-white jury – a legal result unthinkable for a white defendant.
Powell managed to tunnel out of the county jail where he was held after sentencing, and escaped to Newark. He was eventually found by police and incarcerated for two years. In early 1946, a New Jersey Supreme Court judge agreed to extradite Powell, who threatened suicide when confronted with the prospect of returning to Georgia.
Burns, back and free in New Jersey, contributed to Powell’s defense fund and initially appeared willing to appear at rallies in favor of the fugitive.
Arnall, however, was uncomfortable with Burns’s involvement. The Governor stated that he would be “deeply disappointed” if Burns more forcefully intervened.
Burns was open in his disappointment. He told the press, “I’m still grateful to Gov. Arnall. But I thought the Governor was interested in justice and not just in my face. I have no quarrel with Georgia. Innocent men are convicted in every state. But if this man is getting the same deal I did, then Georgia hasn’t cleaned itself up a bit.”
As 1946 progressed, Arnall continually reassured Powell’s defenders that the prisoner “need not fear,” and announced, “Georgia assures that Herman Powell’s person and rights will be fully protected.”
But Arnall did not offer to act as counsel for Powell or to meet with him, a far cry from his Burns advocacy. Publicity surrounding the case soon petered out, and the Pardon and Paroles Board seemingly did not hear the case. Powell was sent back to the chain gang, with his first possibility for parole in 1953. Devastated, Powell took ill in early 1947, and participated in a violent escape plot several months later. His ultimate fate is unclear.
The disparate treatments of Burns and Powell, then, highlighted the inherent stickiness of Arnall’s involvement with a Board that he had designed to be independent of his influence. And today, as Georgia provides a bulwark against the potential pardons surrounding Trump’s other indictments, the Board’s sensitive balancing act between seeking justice and remaining independent remains a central dynamic in the former president’s legal fate.
For more on Governor Arnall’s reforms and the emergence of the Georgia State Board of Pardons and Paroles, read Harold P. Henderson’s 1991 The Politics of Change in Georgia A Political Biography of Ellis Arnall.
And head to the Twitter account of Now & Then Editorial Producer David Kurlander for supplemental archival threads on each Time Machine piece: @DavidKurlander.
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