15 Jul MERCY

JULY 2022 MERCY

We thought we would take the time in this issue to talk about one of the most fundamental concepts long embedded in the fabric of our government: the concept of mercy. Mercy is a concept that some may think is better discussed in houses of worship, but mercy is a critically important tool in government and in the world of criminal justice. Mercy is a virtue that can be instilled at home, at work, and at school at a very young age.

Mercy, of course, isn’t a novel concept. In Roman mythology, Clementia was the goddess of mercy and redemption. One of the oldest Roman coins bore the word “Clementia.” The actual currency of the Romans celebrated the virtue of mercy, revealing that mercy was not simply a concept to them but was a foundational part of government.

In modern society, the virtue of mercy is not always so visibly extolled. Clemency, however, is meant to play a fundamental role in our criminal justice system. The framers of the U.S. Constitution clearly cared about mercy: they bestowed upon the President of the United States the broad power to pardon crimes and commute (reduce) criminal sentences.

We often hear about the individuals who were pardoned by the President because they were white-collar fraudsters or politicos who happened to be well-connected and well-funded, but there certainly is a better use and more fundamental role for clemency in our government. Let me tell you a story to illustrate that role.

In 2015, I represented a 47-year-old man, J.S., who was serving his seventeenth year in federal prison. Back in 1999, J.S. was sentenced to life in federal prison for his participation in as a “runner” in a small-scale crack cocaine conspiracy on the streets of Detroit where he grew up. J.S. had never committed a violent offense in his life, but the sentencing scheme in 1999 used his prior low-level narcotics convictions to enhance his sentence to life imprisonment. Years later, both Republicans and Democrats in Congress would act to “fix” the draconian and discriminatory sentencing disparities for crack cocaine that overwhelmingly affected non-white men like J.S.  That bipartisan legislation, however, did not alter previously imposed life sentences affecting prisoners like J.S. So J.S. remained imprisoned for life, long after Congress recognized and “corrected” the flaws in the system.

Mindful of the President’s underutilized clemency powers, the clinic I ran at NYU Law School petitioned then President Barack Obama to release J.S. and other similarly situated nonviolent federal offenders who remained imprisoned under these laws, many of whom were black men aged 50 and older with no immediate hope for release. Citing the President’s unitary power of clemency, we did not argue that J.S. was innocent. We argued instead that he was deserving of mercy.  President Obama agreed and commuted the sentence of J.S. and 96 other individuals we represented to time-served. To my knowledge, none of these individuals has re-offended.

J.S. wrote to me not long after his release from prison. Having reconnected with his family and having secured a job through his church, he told me that the clemency process “was the first signal in my entire life that my life mattered.”   That is the power of mercy.

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