Clemency is the highest chevron in the ranks of justice. Traditionally, its hallmarks have been leniency and forgiveness. But it is more than noblesse oblige, it is a constitutional prescription for the inequities of a fallible due process.1 As Justice William Rehnquist observed in Herrera v. Collins, 506 U.S. 390, 415 (1993), clemency is the “‘fail safe’ in our criminal justice system.”2 Indeed, the central facets of this safeguard, fairness and forgiveness, are at the heart of the U.S. House Judiciary Committee’s current investigation into the clemency advisory process and its administration.

Clemency (mercy), pardon (absolution), commutation (substitution), amnesty (forgetting), and reprieve (suspension) are drawn from the language of compassion. And today, they operate in a scheme of constitutional rights that overarches and subsumes notions of mercy and leniency. Thus, it is the constitutional architecture of clemency that provides the basis of relief for the wrongly convicted as well as the rehabilitated.

The federal executive authority (U.S. Const. Art. II §2) and similar embodiments of clemency inscribed in state constitutions offer petitioners their last full measure of justice.3 Indeed, the U.S. Supreme Court has described the clemency power in terms of “mercy” and “justice.” Their decisions over the past century have illustrated that these once separate ideas have fused into an equitable path for alleviating the harshness of procedural default and assuring fairness in an imperfect legal system.4

Discretionary Justice

Mindful of prosecutorial and judicial discretion, Justice Anthony Kennedy described the special role of executive clemency in his dissenting opinion in Dretke v. Haley, 541 US 386, 399 (2004):

The rigors of the penal system are thought to be mitigated to some degree by the discretion of those who enforce the law. (citation omitted). The clemency power is designed to serve the same function. Among its benign if too-often ignored objects, the clemency power can correct injustices that the ordinary criminal process seems unable or unwilling to consider. These mechanisms hold out the promise that mercy is not foreign to our system. The law must serve the cause of justice.5

In New York, the scope of discretion in criminal adjudication narrows as it proceeds from the prosecutor’s charging decision to the judge’s option to dismiss in the “furtherance of justice” (N.Y. CPL §170.40; N.Y. CPL §210.40) to an appellate court’s authority to review cases in the “interests of justice” (N.Y. CPL §470.15(6)). Then there are the state (N.Y. CPL Art. 440; N.Y. CPLR Art. 70) and federal (28 U.S.C. §2254) post-conviction pathways. Once all of them have run their course, clemency is the last chance for relief.

Clemency as embodied in the state’s charter (N.Y. Const. Art. 4, §4) is administered through statutes and regulations (N.Y. Exec. Law §15-19, N.Y. Corr. Law §§261-266, and N.Y. Department of Corrections and Community Supervision Dir. 6901) that permit relief for the convicted and the incarcerated.6 This executive prerogative can be exercised to vindicate individual claims of innocence, mitigate harsh sentencing laws, and rectify unfair trials and pleas.7

Systemic Reform

Pardons and commutations have been made in advance of or coextensively with sea changes in policy areas such as compassionate release (N.Y. Exec. Law §§259-r, 259-s; N.Y. DOCCS Dir. 4304); drug law resentencing (2004 N.Y. Laws Ch. 738; 2005 N.Y. Laws Ch. 643; 2009 N.Y. Laws Ch. 56); and sentence reduction for domestic violence victims (N.Y. S5436-2011).8

In 2010, Governor David Patterson established a temporary Immigration Pardon Panel (expiring Oct. 1, 2010) to solicit petitions from persons who faced deportation due to prior convictions. His office’s review of more than 1,000 applications revealed that “Federal immigration laws are often inflexible, arbitrarily applied, and excessively harsh, resulting in the deportation of individuals who have paid the price for their crimes and are now making positive contributions to our society. These pardons represent an attempt to achieve fairness and justice for deserving individuals caught in the web of these laws.”9

In preceding years, Governor George Pataki granted pardons to alleviate severe sentences under the Rockefeller Drug Laws and for defendants who had been victims of domestic violence.10

Realigning Justice

No penal law can be drawn so narrowly that it affords individualized justice. Laws defining crime and punishment cast a wide net and result in unintended consequences.11 Clemency can focus on the uniqueness of each petitioner in a way that criminal law and procedure cannot. And such a remedy requires attention to assure its fair administration.

For instance, questions about the patterns in granting pardons have inspired a review of presidential clemency practices that highlight its importance.12 The U.S. House Judiciary Committee has submitted questions to Attorney General Eric Holder regarding his pledge to reevaluate the advisory process. Their submission included this telling comment: “We can all agree that no system is perfect. The legal system is no exception. There are mistakes. The Constitution gives the president a role in fixing such mistakes.”13

Moreover, Douglas Berman, professor at Moritz College of Law, concerned about changes in federal sentencing laws, recommended adding this point:

In light of your [Justice] Department’s advocacy for crack and powder cocaine sentences to be equalized, as well as the passage of the Fair Sentencing Act in 2010, has any effort been made to give special attention or review to any commutation petitions filed by persons still serving very long crack sentences who may be able to make an especially convincing claim that their continued incarceration is unfair and serves no continued valid purpose?14

Clemency policies should be appropriate to the diverse grounds upon which such relief might be granted, i.e., for those wrongly convicted, wrongly sentenced, or seeking fundamental fairness and humane treatment.

In a discerning study of clemency’s history and practices, Daniel Kobil, professor at Capital University Law School, formulated a set of standards for measuring “justice-enhancing” petitions:

1. Substantial doubt of guilt;

2. Diminished mental capacity, retardation, intoxication, or minority;

3. Disparate sentencing: proportionality;

4. Disparate sentencing: special circumstances;

5. Sentencing that is unrelated to desserts;

6. Crimes committed out of necessity, coercion, or adherence to moral principles;

7. Crimes in which the offender has suffered enough.15

In the offing, there is a proposal for the country’s first law school clinic devoted to pardon practice. Former Maryland Governor Robert Ehrlich, who developed the plan, described its aims in the contemporary language of clemency: “[A] pardons program would help disadvantaged applicants and give law school students experience dealing with people seeking a second chance, fostering ‘a sense of fairness and justice.’”16

Sentences are not cast in ember. “Society changes. Knowledge accumulates. We learn, sometimes, from our mistakes.”17 The continuing development ofstandards and institutional resources in the clemency arena are only the start. Evolution in moral intuition and general knowledge demand revisiting the policies underlying punishment and imprisonment by all quarters of the justice system.

For example, the Supreme Court in Pepper v. United States, 131 S. Ct. 1229, 1241-1243 (2011), found that rehabilitation, along with its corollary a reduced risk of recidivism, is such an important component of the sentencing framework that it should be relevant even in a resentencing proceeding. This approach has resonance for clemency petitioners who have run the gamut of post-conviction pathways and can never again be sentenced in a court of law.

At the same time, Justice Kennedy, writing for the majority in Brown v. Plata, 131 S. Ct. 1910, 1928 (2011), expressed the core value behind fair treatment of the incarcerated: “Prisoners retain the essence of human dignity inherent in all persons. Respect for that dignity animates the Eighth Amendment prohibition against cruel and unusual punishment.” This is the reason that our system of laws and punishments has bulwarks. Prison is not society’s safety net, dignity and fairness are.

Indeed, the executive is entrusted by the constitution with the authority to rectify legal and human errors, mitigate excessive sentences and acknowledge the personhood of the incarcerated by offsetting their debts to society.

Conclusion

In a society where laws are drafted and enforced by imperfect human beings, no conviction can be carved in stone and no penalty should outlive the sentence. The quest for justice, like the search for truth, is never ending. Bias, misconduct, and human error ensure that in order for the administration of law to be fair, its remedies must be timeless.

Shedding the language of compassion, clemency can now be heard in the register of constitutional argot where mercy becomes equity; leniency, proportionality; and forgiveness, fairness.

Clemency is not a shibboleth but the living essence of fairness. In fact, New York’s Penal Law §1.05(6) expressly includes rehabilitation, reentry and reintegration among its general purposes. Against this background, it is the last opportunity for fairness in the “land of the second chance.”18

For a remedy fabricated from the building blocks of compassion, “mercy” should be viewed as the willingness to do “justice.” In human terms, the executive has the power to appreciate the dignity of petitioners when the limits of law and suffering have been reached. And in these punishing times, access to justice should be available to the nth degree.

Ken Strutin is director of legal information services at the New York State Defenders Association.

Endnotes:

1. See Gavriel B. Wolfe, “I Beg Your Pardon: A Call for Renewal of Executive Clemency and Accountability in Massachusetts,” 27 Boston College Third World L.J. 417, 422-426 (2007).

2. Accord People v. Cole, 1 Misc.3d 531, 537-539 (Sup. Ct. Kings Cty 2003).

3. See generally Kathleen “Cookie” Ridolfi and Seth Gordon, “Gubernatorial. Clemency. Powers. Justice or Mercy?” Crim. Just., Fall 2009, at 26.

4. See Kathleen Ridolfi, “Not Just an Act of Mercy: The Demise of Post-Conviction Relief and a Rightful Claim to Clemency,” 24 N.Y.U. Rev. L. & Soc. Change 43, 52-61 (1998).

5. 541 U.S. at 399. See ABA Justice Kennedy Commission Reports with Recommendations 64-75 (2004).

6. See generally Joel Cohen, “Petitions for Clemency—Don’t Rule Them Out,” New York Law Journal, March 6, 1989, at 30, col.5; Richard A. Brown, “How Executive Clemency Operates in New York,” NYLJ, June 23, 1983, at 1, col. 3; Chp 35 “Getting Out Early Conditional & Early Release” in a Jailhouse Lawyer’s Manual (Colum. Hum. Rts. L. Rev 9th ed. 2011) (sect. H).

7. See generally Glenn A. Garber and Angharad Vaughan, “Actual-Innocence Policy, Non-DNA Innocence Claims,” NYLJ, April 4, 2008, at 4.

8. See, e.g., “Paterson Grants Clemency to Convicted Legislator,” North Country Gazette, Sept. 15, 2009; William Glaberson, “Pataki Grants Clemency to 4 in Prison,” N.Y. Times, Dec. 25, 2002, sect. B, at 1.

9. See Rick Karlin, “Paterson Pardons Immigrants, Guards Against Deportation, Capitol Confidential,” Dec. 6, 2010. See also “Paterson Pardons 24 to Stop Deportations,” CBS NY, Dec. 24, 2010; Procedure for Seeking a Pardon to Relieve Deportation Consequences (NY).

10. See Jennifer Gonnerman, “Campaigning for Clemency,” Village Voice, Dec. 22, 1998, at 40; Richard Perez-Pena, “4 First-Time Drug Offenders Granted Clemency by Pataki,” N.Y. Times, Dec. 24, 1999, sect. B, at 4.

11. See, e.g., “Mandatory Minimum Ensnares Law-Abiding Marine,” Wash. Times, Jan. 16, 2012, sect. B, at 3. See generally Gregory S. Schneider, “Sentencing Proportionality in the States” <http://www.arizonalawreview.org/pdf/54-1/54arizlrev241.pdf> 54 Ariz. L. Rev. 241, 269 (2012).

12. See “Fairer Presidential Pardons,” Los Angeles Times, Feb. 6, 2012.

13. P.S. Ruckman, Jr., Representative Questions Holder re Pardons, Pardon Power Blog, Jan. 26, 2012.

14. Douglas A. Berman, “House Judiciary Member Asks AG Holder Good (and Overdue) Questions on Pardon Process,” Sent. L and Pol., Jan. 26, 2012.

15. Daniel T. Kobil, “The Quality of Mercy Strained: Wresting the Pardoning Power from the King,” 69 Tex. L. Rev. 569, 624-633 (1991). See also “The Role of Mercy” 30-34 App. (Tex. Appleseed 2005); “Smart on Crime: Recommendations for the Administration and Congress” 228 (Const. Proj. 2011).

16. Dafna Linzer, “Ex.-Md. Governor Erhlich Plans Law School Clinic, Training Program for Felons Seeking Pardons,” Wash. Post, March 5, 2012. See also “Federal Commutation Clinic at School of Law the First in the Nation,” U. St. Thomas News Serv., Sept. 12, 2011.

17. Graham v. Florida, 130 S.Ct. 2011, 2036 (2010) (Stevens, J. concurring).

18. See President George W. Bush, State of the Union Address (Jan. 20, 2004).