Friday, June 3, 2016

Editorial: "Broad" Approach to Clemency

Marc Mauer, Nancy Gertner, and Jonathan Simon have a piece at The Hill calling for "broad use" of the clemency power ... now! In their view, President Obama's effort with respect to clemency in drug cases "is encouraging but still quite modest." They are also concerned that Clemency Project 2014 "will fall far short of expectations" because it (and the DOJ) have been "woefully slow."

The authors suggest a "route" that might have "a much more substantial impact" - the application of clemency "in categories of offenses." The suggestion echos that of the Editor's in a recent University of St. Thomas Law Journal article:
... in an era of mass incarceration with over four thousand offenses in the U.S. criminal code and increasing concerns about overcriminalization, it seems appropriate that a newly created clemency board can constantly remind itself that the clemency power can be appropriately exercised for classes of persons. Amnesties (or group pardons) are a great American tradition dating back to George Washington, and a clemency board should always explore the possibility and appropriateness of such grants, in addition to individual grants. This approach to clemency is quite common worldwide ... (Vol. 12, Issue 3, 2016). See full article here
The authors reference Gerald Ford's conditional amnesty for convicted draft resisters and Jimmy Carter's granting of pardon to "all such persons whether or not they had been convicted, and without the requirement for service." Today, there are "several offense categories" for which "there would be substantial consensus" re clemency

The most "obvious" would be "individuals serving federal prison terms for crack cocaine offenses who were sentenced before 2010."  Another opportunity for "categorical clemency" would be cases where offenses within a short time frame are "stacked." See full article here.

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