Friday, April 20, 2012

Doug Berman: Judicial Review and Clemency Power

Douglas Berman, of Ohio State University, is speaking at the St. Thomas School of Law, Commutation of Sentence symposium. Berman holds there is no such thing as a bad clemency grant. There is no clemency grant that we should ever be sorry about. Judges should not review clemency grants. Prof. Berman does not care what biases or misperceptions may have guided a clemency decision. After all, selective enforcement of law is a form of clemency, and it is a form of clemency that we have come to expect.  Witness the public response when there are attempts to limit that clemency (cameras at intersections). We have a system of law that invites / legitimizes discretion, on the front end and the back end of the decision making process. Judges should review failure to act in clemency cases. They can be encouraged by having injustices called to their attention, even if they reject our cases. Courts appear to be interested in opportunities to review apparently unjust denials. Strategic litigation may be the path to change.

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