The idea of clemency has been around since before there were printing presses. And when our country took shape this article of faith found a home in the charters of the nation and the states. For more than two centuries, ink-stained paper petitions have wended their way to presidents and governors pleading for mercy and asking for justice. But in an increasingly paperless society, these stories are being told through the new template of online media.
The Internet is providing new information streams for client advocacy rooted in the print world, and inmate letters and newspaper stories have established patterns that can carry over to the new media. So it is that the virtues of technology might illuminate the values of clemency.
Clemency 1.0: Words on a Page
In 1987, Anthony Faison and Charles Shepherd had been arrested for the homicide of a New York livery cab driver based principally on eyewitness testimony.1 Convicted of murder and attempted robbery, their journey through the appellate system became a lesson in obviation.
As described in Shepherd v. Keane, 1998 U.S. Dist. Lexis 2857 (E.D.N.Y. Feb. 18, 1998), their combined appeals, CPL 440 motions, and federal habeas writs seemingly racked up every reason for denial—claims procedurally barred, failure to preserve errors, exculpatory evidence available at time of trial, evidence not exculpatory enough, and more.
Reams of motions, affidavits and transcripts were finally unpersuasive. Meanwhile Anthony Faison had begun an intense letter writing campaign.
For 13 years, Mr. Faison wrote to everyone and anyone who might potentially help or give ear to claims of innocence. His indefatigable letter writing discipline culminated in 62,000 letters, one of which opened a path to freedom.2
That letter was received by Michael Race, a private investigator and former NYPD detective, who was willing to revisit the case, and led to a lawyer, Ronald Kuby, willing to relitigate it.3 The result was an eyewitness recantation, a third-party confession, and an overdue exoneration and monetary settlement for Faison and Shepherd.4
It took 62,000 cold calls from the other side of the digital divide for Faison to find justice. Indeed, for people behind bars it is typically a daunting effort to reach someone in a position to do something.
Apart from of the content, there is a watermark pressed into each letter from an incarcerated person that is a plea for justice. While not every correspondence is asking for clemency, all of them combined point to the need for help to achieve some measure of fairness.
And if one were to turn this letter writing approach around, a single message would arrive in the hands of thousands of readers at the same time.
Periodically, journalists elevate issues in the public mind to advance the interests of justice. On such occasions, they are speaking to the many about the unspoken hardships of the few.
Changes in federal immigration laws have widened the window for deportation and narrowed the avenues of relief, leaving much turmoil in their wake. But when public focus shifted to the human consequences of deportation, a few government executives began to take notice.
Qing Hong Wu had been brought to America as young child; later as a prosperous adult he applied for citizenship.5 Before he realized it he found himself in a detention cell on track for deportation to China. Although he had been convicted of crimes in his youth, Qing had turned his life around and became an exemplar of rehabilitation and personal success.
His dilemma had been explored in a series of New York Times articles,6 and Qing’s request for relief was supported by the sentencing judge and the prosecutor.
Only a pardon from former Governor David Paterson kept his life from collapsing into disarray. Cases like Qing’s inspired the creation of the governor’s short-lived Immigration Clemency program to protect eligible deportees with criminal records.7
A decade earlier, the state of Georgia, acknowledging the difficulties facing non-citizens convicted of crimes, had created systemic relief for this same class of offenders.8 Like New York, the impetus for development of a clemency program was a series of news articles that put a human face on the issue.
These examples illustrate how print letters and news articles have been powerful agents of action and reform through their ability to focus attention on social justice.9 Drawing on these precedents, the multimedia world can expand the boundaries of advocacy.
2.0: Gutenberg to Zuckerberg
The Internet is the information autobahn that connects people and moves ideas. Thus, the addition of social media applications in mobile environments has created a platform that can amplify pleas for justice with stentorian force.
Through the advent of technological promotion, solitary prayers for clemency can be translated into online petitions, broadcast emails, YouTube videos and postings to millions on Facebook and Twitter.
For instance, last year there was a successful clemency campaign on behalf of an Ohio woman convicted of two felonies for tampering with school records, albeit for the benefit of her daughters. Three nonprofit organizations collected 165,000 petition signatures and sent them to the governor.10
In spite of a unanimous Parole Board recommendation against relief, Gov. John Kasich granted clemency by reducing the felonies to misdemeanors.11 The online petition appears on Change.org, which has also posted a step-by-step guide called “How an Online Petition Works: The Ins and Outs of Successful Internet Petitions.”
Essentially, social media and online communications can bring awareness to a case and build support for relief.12 Still, people are the best “push technology.”
Law school projects and advocacy groups are transforming social justice through social media, and this new lawyering technique is becoming a staple of education and practice.
At the University of Pennsylvania Law School, the Penn Program on Documentaries & the Law recognized the profound role that the visual medium has for conveying a message and created a program for educating law students in the “art of visual legal advocacy.” And for defendants facing the most serious penalties, they developed the Clemency Video Project, which includes an archive of DVD petitions along with guides for producing them.
In addition, the Michigan Women’s Justice & Clemency Project has a unique collection of Selected Films on clemency, prison conditions and incarcerated life, and the M. E. Grenander Department of Special Collections & Archives at the State University of New York at Albany created a Finding Aid for the Capital Punishment Clemency Petitions Collection, Circa 1985-Ongoing, with downloadable documents.
With sufficient resources and technological savvy, a clemency petition written in the age of 2.0 can become a multimedia Brandeis brief that educates as well as persuades. Still, push technology needs a human hand to guide it.
The 50-Hour Solution
The increasing importance of wrongful conviction and post-conviction work in the law school curricula13 suggests that clemency ought to be among the signature issues for clinic aspirants.14 Indeed, New York’s groundbreaking pre-admission pro bono requirement, 22 NYCRR §520.16, will harvest 50-hours from every entrant into the legal profession that can be banked towards justice.
These 50-hours can open new opportunities for attorneys, clinics and non-profits to leverage law student labor in aiding the “poor and unrepresented,”15 which should include those seeking clemency and post-conviction relief. “While most of the required pro bono work entails civil legal services, [Chief Judge Jonathan] Lippman said donating time to providers of criminal legal services would be acceptable.”16
Without a right to counsel, those without counsel must write. Fighting for fairness, the incarcerated hold fast and with scant resources file CPL 440 motions, habeas corpus petitions, Art 78s and federal civil rights actions. Under such conditions relief is rare and victory redefined as an opportunity to be heard.
Just this term, the U.S. Supreme Court in Millbrook v. United States, No. 11-10362 granted certiorari to a pro se federal prisoner who wrote his petition in pencil like Clarence Earl Gideon a half century earlier.17 But the small number of successes does not offset the insurmountable odds routinely facing lawyerless pro se petitioners in federal and state courts.
Most letters from prisoners seeking assistance go unanswered. Still, the lawyers, law clinics and advocacy groups inclined to do this work would be empowered if they discovered 10,000 law students queuing up outside their offices.
The foundations of justice can be built on the persistence of the pro se as well as the passion of the pro bono.18 Hopefully, the new pro bono threshold for the New York bar will catalyze much needed services for the “poor and unrepresented” behind bars.
Clemency is the lathe of justice. It can provide transparency about the administration of our laws, the dispensation of mercy and the elasticity of hope. And in an Information Age these petitions will speak to audiences across the world and beyond time.
Once, it seemed that the momentum of history waxed in favor of justice and mercy. But the engine of equity has ground to a halt.19 And when our legal process at last leaves no room for pardons and commutations, we can stop writing history books. For posterity will have nothing to learn from us.
Every inmate letter is a voice trying to be heard above the din of confinement, the politics of tough on crime policies and the hurdles of self-representation. Their pleas offer a glimpse into the very core of justice and form an indelible picture of our times.
History, future history is being written and digitized today. Our progeny will know this generation better than any that has gone before by virtue of the virtual record we leave behind. The legacy of the justice system should be its legitimacy, and that legacy depends as much on the message as on the medium.
Ken Strutin is director of legal information services at the New York State Defenders Association.
1. See Sean Gardiner, “The Wronged Men Series: Part Two: Lost and Found,” Newsday, Dec. 9, 2002, at A06.
2. See Larry McShane, “Among His 62,000 Letters, Wrongly Jailed Inmate Writes One That Leads to Freedom,” Assoc. Press, Aug. 25, 2001.
3. See Ronald L. Kuby, “The State Owes These Men 14 Years of Innocence, Newsday,” June 27, 2002, at A44.
4. See Michael Wilson, “State to Give 2 Wrongly Convicted Men $1.65 Million Each,” Newsday, Jan. 16, 2003, at 9; “The Wronged Man Series: Part Three: In Their Corner, Newsday,” Dec. 10, 2002, at A07; Nancie L. Katz, “15 Years for Ex-Con in ’87 Slay,” N.Y. Daily Post, Feb. 13, 2002, at 9.
5. See Margaret Colgate Love, “The Quality of Mercy in New York: A Different Kind of State Challenge to Federal Immigration Policy,” ACS Blog, Oct. 28, 2010.
6. See Nina Bernstein, “Judge Keeps His Word to Immigrant Who Kept His,” The New York Times, Feb. 19, 2010, at A1; Nina Bernstein, “Paterson Rewards Redemption With a Pardon,” The New York Times, March 7, 2010, at A29; Nina Bernstein, “For a Pardoned Detainee, Released but Not Told Why, a Lonely, Happy Trip Home,” The New York Times, March 11, 2010, at A27; Nina Bernstein, “After Governor’s Pardon, an Immigrant Is Sworn in as a Citizen,” The New York Times, May 29, 2010, at A20.
7. See Nora V. Demleitner, “Using the Pardon Power to Prevent Deportation: Legitimate, Desirable, or Neither in a Federal System?,” 12 Loy. J. Pub. Int. L. 365, 366-67 (2011); Stacy Caplow, “Governors! Seize the Law: A Call to Expand the Use of Pardons to Provide Relief from Deportation” (SSRN 2012).
8. See Elizabeth Rapaport, “The Georgia Immigration Pardons: A Case Study in Mass Clemency,” 13 Fed’l Sent’g Rptr. 184 (2000-2001).
9. See, e.g., “Unjustly Accused: Dogged Journalism Can Make a Difference,” Pittsburgh Post-Gazette, Sept. 15, 2012.
10. See “Activists Back Akron Mom in School-Switching Case,” Columbus Dispatch, Feb. 7, 2011.
11. See Aaron Marshall, “Akron Mom’s Felony Convictions for School Residency Lies Reduced to Misdemeanors,” The Plain Dealer, Sept. 7, 2011.
12. See Kenneth Mallory, “Can Technology Save an Innocent Man from Death Row?,” Broadband & Social Justice, Sept. 15, 2011.
13. See generally Stephanie Roberts Hartung, “Legal Education in the Age of Innocence: Integrating Wrongful Conviction Advocacy into the Legal Writing Curriculum” (SSRN 2012); Douglas Colbert, “Clinical Professors’ Professional Responsibility: Preparing Law Students to Embrace Pro Bono,” 18 Geo. J. on Poverty L. & Pol’y 309 (2011).
14. See generally Ken Strutin, “Clemency Clinics: A Blueprint for Justice,”LLRX.com, June 17, 2012.
15. See generally Report of the Pro Bono Task Force (LSC 2012)(“Using Pro Bono Lawyers to Assist Pro Se Litigants” at 12).
16. Joel Stashenko, “Lippman Announces Specifics of Pro Bono Requirement,” N.Y.L.J., Sept. 19, 2012.
17. See Jesse J. Holland, “Court Grants Appeals from 2 People Without Lawyers,” Seattle Times, Sept. 25, 2012.
18. See, e.g., John O’Brien, “Lawyer’s 16 Years of Doggedness Pay Off in Syracuse Murder Case, Syracuse Post-Standard,” Oct. 21, 2012 (discussing Rivas v. Fischer, 687 F.3d 514 (2d Cir. 2012)).
19. See Jim Dwyer, “Lessons in DNA and Mercy,” The New York Times, Dec. 30, 2011, at A17; Jimmy Vielkind,” Power to Pardon Remains Unused,” Albany Times Union, Dec. 30, 2011, at A3; Jim Dwyer, “Contemplating Official Mercy: No Small Task,” The New York Times, Dec. 28, 2011, at A18.