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April 1, 2009

A message for Prez Obama and his legal team from his favorite Justices

The most interesting jurisprudential aspect of today's Supreme Court decision in Harbison (basics here) is probably the splitting (and spitting) among the more conservative justices about how best to interpret 18 U.S.C. § 3599.  But while experts in the academy reflect on the statutory interpretation dissensus in Harbison, I hope that policy-makers in the White House reflect on the clemency consensus reflected in this paragraph toward the close of the majority's opinion:

The Government’s arguments about §3599’s history and purposes are laced with the suggestion that Congress simply would not have intended to fund clemency counselfor indigent state prisoners because clemency proceedings are a matter of grace entirely distinct from judicial proceedings.  As this Court has recognized, however,“[c]lemency is deeply rooted in our Anglo-American tradition of law, and is the historic remedy for preventing miscarriages of justice where judicial process has been exhausted.”  Herrera v. Collins, 506 U. S. 390, 411–412 (1993) (footnote omitted).  Far from regarding clemency as a matter of mercy alone, we have called it “the ‘fail safe’ in our criminal justice system.” Id., at 415.

As regular readers know, I have long been troubled by the failure of modern Presidents to make serious and sensible use of their clemency power, especially during a period in which thousands of federal defendants can and have made reasonable requests for the exercise of this "historic remedy."  And, given all the campaign talk of hope and change (and asserted concern for offender reentry and unjust sentencing disparities), I have been especially disappointed that President Obama is now closing in on the back end of his first 100 days in office without having yet granted a single clemency.

Sadly, I have to doubt that this effective little dicta in Harbison will finally get the new President and his legal team moving in the right direction when it comes to the use of the clemency power.  Still, one can at least hope that the sound clemency sentiments expressed by the Justices in Harbison will echo in some other branches.

Some related posts:

April 1, 2009 at 06:14 PM | Permalink


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Wow, Doug, that's a stretch . . . .

Posted by: federalist | Apr 1, 2009 6:16:51 PM

FWIW, my take is that Obama (like Clinton, if to a lesser extent) has made a strategic decision that he is not going to be outflanked/demagogued (sp?) on criminal justice issues if he can help it. He may do use some political capital on judges, which has a relation to criminal justice, but otherwise I don't think he wants to use his capital on a Webb-style, realistic evaluation of the criminal justice system. I think he will have Holder and others quietly roll back the excesses of the Bush years, but otherwise keep his head way down on these issues while he deals with the economy, the wars, health care, etc.

Posted by: Anon | Apr 1, 2009 7:30:22 PM

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