Revitalizing the Clemency Process

The Golden Anniversary of Mass Incarceration in America

“…Natural experiments to examine the effects of truth-in-sentencing laws in two states (Kuziemko, 2016; MacDonald, 2021) converged in their findings, concluding that such laws dissuade inmates from participating in rehabilitative programs and render them more violent toward detention officers and fellow inmates and more prone to reoffending and returning to prison. Relatedly, more energy should be devoted to early release for inmates who pose little risk to public safety and for those who deserve clemency because of age or terminal illness (Larkin, 2016). More attention should be paid to “the creation and expansion of post conviction review processes in which long-term prisoners have the opportunity to show that they are safe to release” (Beckett, 2022, p. 21).…”

Clemency

“…If clemency is designed to serve the ends of justice, that could account for giving a minister of justice or other legal experts a greater role and using a more bureaucratized structure for making decisions. If clemency is seen as political in nature, that may be the basis for advocating to have other political actors besides the chief executive play a role in whether it can be issued (Kobil 1991, Larkin 2016. On the other hand, if it looks like politics is playing too central a role and leading to favoritism or clemency's desuetude, then it may mean that a more insulated board is the right model for clemency determinations (Barkow & Osler 2015, Novak 2016.…”

“…Why, then, have grants of clemency fallen so dramatically in America if the need for its use is at an all-time high? The disconnect can largely be explained by politics (Larkin 2016). The past several decades have been characterized by a tough-on-crime politics that has led to ever-harsher punitive approaches and a reluctance by any politician to appear as if they are coddling anyone engaged in crime.…”

Making sense of the victim’s role in clemency decision making

“…Second, seeing that retributive clemency is sometimes awarded for the changing impact of punishment on the offender over time (Rapaport, 2001: 987), the growing, continuing, or diminishing harm suffered by the victim as the result of the crime is surely just as relevant, even if that victim has already provided input at earlier stages such as sentencing and parole. In these circumstances, victims’ input into the process need not invariably lead to a more punitive outcome (Beck, 2007: 83–84; Larkin, 2016: 879). A victim who is no longer suffering from the effects of the crime may provide such information to the clemency decision maker in an indirect attempt to sway the executive towards mercy.…”

“…Notably, none of the national or sub-national jurisdictions surveyed above exactly replicate these six recommendations. This is not at all surprising, given that victims have generally been brought into clemency decision-making structures in common law jurisdictions as a matter of political convenience, rather than through sound theoretically and empirically grounded policy (Barkow, 2009: 155–156; Giannini, 2015: 120–121; Larkin, 2016: 878; Novak, 2016a: 122). Nevertheless, the procedures of the Parole Board of Canada are presently commensurate with recommendations 2, 3 and 6, forming arguably the closest fit.…”