Saturday, September 6, 2014

Federal Judge: Consider Clemency

A favorite tune of the unlearned is to suggest that clemency decisions "overturn the decisions of judges and juries." Would that such persons read this story in the The Blade.  Judge Jeffrey Sutton, a federal appeals court judge (U.S. 6th Circuit Court of Appeals in Cincinnati), and two of his colleagues recently considered the case of Gregory Esparza.

Esparza, in 1983, committed robbery and killed an East Toledo carryout clerk and got away with $110. He was 21 years old at the time. Esparza confessed to his sister and an inmate and was sentenced to death. On appeal, however, he argued that his defense "failed to offer enough evidence of his troubled childhood to persuade the jury to spare him the death penalty." The Blade reports, "The appeals court found his arguments unconvincing."

Judge Sutton, however, noted that the governor might give a “serious look” at granting Esparza clemency - presumably a commutation of sentence, from death, to life in prison:
“Today’s decision is not necessarily the end of the road for Esparza ... Among other things, he has the right to file a clemency application with the governor to reduce his sentence from death to life in prison. In light of the many uninvited difficulties in his childhood, this application may be worth a serious look.” 
In doing so, Sutton recognized what many fail to understand. Clemency powers were created, in part, so that the state might consider factors which the law may have ignored, or overlooked. The rules of evidence are, sometimes, strict. The direction of trials can be manipulated by lawyers desirous of victory. The net effect: trials are not - and never have been - perfect. Thus, the failure to utilize clemency powers is an assertion of what we all know to be false: judges, juries, trial processes are not perfect. They do not always consider all of the relevant facts. Even when they accurately follow the nuances of the rules, the big picture - justice - can be lost.

At common law, murder was murder. There were no distinctions (first degree, second, manslaughter, etc.) Nor were considerations given for juvenile offenders, or the insane. These considerations and exceptions were taken in to consideration by - and eventually developed into law via - the pardon power. The law may have considered the nine year old who accidentally pushed a sibling off of a stair case a "murderer," but an executive with the power to pardon (and a more keen sense of justice) knew better - as do you and I.

Today, the pardon power continues to provide these services, where executives care to use it.

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