Clemency: A Remedy in Need of Revival

, New York Law Journal

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Last Christmas marked another season without any grants of clemency in New York. So it is that an ancient remedy rooted in law and tradition is sinking into obscurity here and across most of the country. Still, in a society that values fairness there is a duty to do justice. And that obligation does not end with the courts. Recent proposals to breathe new life into the federal pardon system might reawaken the dormant clemency power in all jurisdictions.

The pardon or commutation can rectify a wrongful conviction, balance a disproportionate sentence, recognize the fruits of rehabilitation or address systemic problems within the operation of justice.1 But the president and the governors exhibit inconsistency in the administration of clemency among themselves and with their predecessors. Some grant pardons and commutations regularly, even generously, while others do so grudgingly. And finally there are executives who deny or ignore them entirely.2

Whether pardons and commutations can be dispensed uniformly depends on the philosophy of the executives, the system for processing petitions, and the state of criminal justice, all of which play a role in the operation of the clemency apparatus.

Obiter Dicta

According to the National Registry of Exonerations, 15 people convicted in New York State have been exonerated since 2011.3 And in that same period of time no pardons have been granted.4 This handful of individuals does not scratch the surface of unsuccessful petitioners who are still struggling to find justice in New York and nationwide.

Interestingly, a bridge between the courthouse and the executive chamber sometimes appears in judicial dicta.

For instance, in Smith v. Mahoney, 596 F.3d 1133, 1154 (9th Cir. 2010), the U.S. Court of Appeals for the Ninth Circuit reviewed and then denied the legal claims of Ronald Smith, convicted of murder and sentenced to death in Montana. But in the final paragraph of the majority opinion, they made this recommendation:

By all accounts, Smith has reformed his life. He has developed strong relationships with various members of his family and has taken advantage of the educational opportunities offered by the prison that houses him. He has expressed deep regret for his deplorable actions. However, consideration of these issues is beyond our jurisdiction in this case. Clemency claims are committed to the wisdom of the executive branch.

His petition for clemency remains in political limbo.5

Thus, in the sub silentio of court decisions judges sometimes tee up meritorious cases6 for an executive review that too often turns out to be problematic.

At present, many executives distance themselves from their chief equitable authority. Some put their faith in the infallibility of convictions and sentences. Others recoil at the perception that they might be misusing the pardon power.

Behind the veil of prerogative and procedure, clemency has been stripped of its redemptive moorings. The pardon power is no longer the fructifying of due process but the withering of hope.

Modern clemency culture has become secular, political and capricious. But its antecedents originated in the ancient creeds and moral codes of humanity. Thus, clemency's overlooked foundations might be a catalyst for its resurrection.

Deontological Clemency

The pardon power in its aspects of grace and compassion was founded in religious doctrine that wended its way into our laical constitution. To be sure, justice and mercy draw their vitality from the same moral wellspring.

According to Mark William Osler, professor at the University of St. Thomas School of Law, Christian culture represents the ultimate second chance power espousing the virtues of "mercy, redemption, and reconciliation."7

He further noted that echoes of these values appeared in the Hamiltonian notion of an unbridled clemency prerogative. It was intended to soften the cruelty of penal laws and to permit the executive to be the "dispenser of mercy." Osler went on to observe that "cultural Christianity" culminating in "acts of grace" suffused constitutional principles in the final incarnation of the federal pardon power.

Perhaps this is why clemency grants are often associated with the Christmas season or other propitious times.8

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