Wednesday, September 29, 2010

Scholarship: Judicial Recommendations of Clemency

Joanna M Huang, a law student at Duke University, has written a piece entitled, "Correcting Mandatory Injustice: Judicial Recommendation of Executive Clemency." (60 Duke Law Journal 131, 2010). Huang suggests that, for 18 years mandatory minimum sentencing forced judges to impose sentences which they believed unjust. In 2005, the Supreme Court's Booker decision eased the tension by rendering the guidelines "advisory." Booker, however, does not apply retroactively. Huang, therefore, recommends that judges (who, so far as we know, have always had the opportunity to contribute to the clemency process) play a more proactive role by explicitly recommending clemency at sentencing (as opposed to years later, when clemency applications are filed).

Huang then offers guidelines for judges to recommend clemency (in cases of miscarriage of justice, unusually  lengthy sentences, the commission of non-violent crimes, disproportionate sentences, first time offenses, youthfulness, consideration for dependents, etc.). These are, of course, are among the reasons that presidents have granted pardons for hundreds of years - many times with the explicit recommendation of the sentencing judge.

What the piece cries out for, of course, is data. How often do judges recommend clemency at sententing and/or support clemency applications? If judicial recommendations of clemency are rare at sentencing, why? Is it possible that judges are more satisfied with sentencing outcomes than Huang would suggest? If not, what on earth has prevented them from speaking out? Is a law review article the only thing between them and doing so? When judges do speak in favor of clemency at sentencing and/or support applications, are the odds of a grant of clemency in any way affected? When judges recommend clemency, do they reference any of the suggestions made by Huang? If so, to what degree? See complete article here. See also the discussion at Sentencing Law and Policy here.

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