Petitioning for Mercy: Clemency and Mitigation in Theory and Practice

<p></p>&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; They say ev'ry man needs protection, <br> &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; They say ev'ry man must fall. <br> &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; Yet I swear I see my reflection <br> &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; Some place so high above this wall. <br> &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; I see my light come shining <br> &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; From the west unto the east. <br> &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; Any day now, any day now, <br> &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; I shall be released&nbsp; <br> &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; (Bob Dylan 1967. I shall be released) <br> <br> &nbsp; &nbsp; &nbsp; Bob Dylan’s iconic ballad “I shall be released” conveys the longing and hope of countless incarcerated people who, every year, apply to the President or governor of their state for clemency.&nbsp; Yet this yearning largely goes unrequited.&nbsp; One of the few studies that attempted to investigate the total (state and federal) number of clemencies granted found that of the 38.6 million applications submitted between 2000 and 2014, only 7,366 or 0.02 percent were granted.&nbsp; There have been significant declines in clemency grant rates of individuals with death sentences since 1973 despite the increasing evidence of wrongful convictions.&nbsp;&nbsp; <br> &nbsp; &nbsp; &nbsp; The yawning gaps between the appeals for clemency and the denial of these pleas suggest a need to re-examine the exercise of mercy in the current criminal legal system.&nbsp; The practices of mercy, or lack thereof, must be situated within the punitive culture of the United States criminal legal system.&nbsp; Not only does the country incarcerate more people than any other developed nation, but it also imposes longer sentences.&nbsp;&nbsp; <br> &nbsp; &nbsp; &nbsp; This article examines the meaning of mercy as an act of clemency.&nbsp; It also addresses the ways that leniency operates—or not—within the criminal legal system through statutory opportunities for sentencing mitigation. Both types of relief rely on mercy, defined variously as “kind or forgiving treatment of someone who could be treated harshly.” These paradigms of mercy offer a framework to consider transformative strategies that may serve to remedy the excesses of punishment. At the same time, in this paper we demonstrate that leniency functions within asymmetrical power relationships as a facet of the criminal legal system by which to nullify the compassionate, and the possibility of forgiving treatment. <br> &nbsp; &nbsp; The complexity of issues related to punishment and mercy as theory, but more importantly, as practiced, makes the topic of this article challenging to fully capture.&nbsp; The authors write this article collaboratively as individuals with and without formal legal training to strengthen our analysis with the inclusion of a coauthor who has experienced first-hand the ways that mercy affects those who have been punished.&nbsp; The perspective and analysis offered by a person who has engaged in the clemency process and who has drafted proposed legislation that would affect sentencing based upon his understanding of the nature of punishment that deprives individuals of hope.&nbsp; These insights demonstrate the contradiction and tensions that make difficult judgment about mercy. <br> &nbsp; &nbsp;&nbsp;&nbsp; &nbsp;&nbsp;&nbsp; &nbsp;&nbsp;&nbsp; &nbsp; &nbsp;&nbsp; &nbsp;&nbsp;