Retribution and Redemption in the Operation of Executive Clemency

In this Article, my goal is to raise doubts about the adequacy of the neo-retributive theory of clemency and stimulate reappraisal and development of what I will call the redemptive perspective. To this end I will present an exposition and critique of neo-retributive theory of clemency

You Can\u27t Get There from Here: Elderly Prisoners, Prison Downsizing, and the Insufficiency of Cost Cutting Advocacy

The prison population in the United States has peaked and begun to recede, reversing more than 30 years of growth. Mass incarceration is yielding to the imperative to reduce state budgets in recessionary times. As states turn away from the extravagant use of prison for nonviolent offenders, the percentage of the prison population serving long and life sentences for violent felonies will increase. By 2009 one in eleven prisoners were lifers. These are the prisoners growing old and dying in prison. High cost elderly prisoners who have aged out of crime should be good candidates for cost saving measures such as compassionate release, parole, and release through community corrections programs. This impression does not withstand scrutiny. Two thirds of elderly prisoners have been convicted of violent crimes; one quarter has been convicted of sexual offenses. Programs to reduce prison costs have indeed gained ground but they are designed for a very different population. The offender who is well positioned to avoid or leave prison as a result of cost savings policies is a young nonviolent offender; The majority of states have succeeded in reducing prison admissions by diverting nonviolent offenders to drug and other treatment programs and reducing prison terms for low level offenders. A threshold condition for diversion or release is low risk of violent offending. Implicitly these low risk nonviolent offenders are also promoted as criminals who can rehabilitate and reintegrate into the community. The majority of compassionate release programs either exclude prisoners who were convicted of violent crimes or require that the prisoner be incapacitated to the extent that he or she poses no threat to public safety. Yet even prisoners who meet these standards are rarely released. Arguing for cost cutting release of the fast growing legion of elderly prisoners is much less easily buttressed with soothing claims about the happy coincidence of lower costs and public safety. Even if, and it is big if, exaggerated fear of further predations were successfully addressed, the advocate of cost cutting reform cannot answer demands for retribution without venturing beyond the discourse of the tough on crime\u27 era. For thirty years the political class has shunned the previously commonly invoked criminal justice values of second chances -- the redemptive values of rehabilitation, reintegration, and mercy. The sickest and oldest prisoners are largely beyond second chances for productive citizenship. Whether released or incarcerated their care will be borne by the public purse. Elder care is not free. This Article focuses on the subclass of old prisoners who are beyond any prospect for productive citizenship because of age and ill health and are in need of elder care. The argument of this Article is that in order to capture the savings that release (and efficient carceral care) of elderly prisoners would bring, politicians and policy advocates will have to relearn to speak the language of humane criminal justice values, prominently mercy

Equality of the Damned: The Execution of Women on the Cusp of the 21st Century

This article explores why women are rarely executed and examines the execution of four women in the Post-Furman Era, focusing on the execution of Karla Faye Tucker

Some Questions About Gender and the Death Penalty

No capital punishment statute classifies by gender, but it is arguable that gender bias infects the administration of capital punishment because the discretion of prosecutors, juries and judges is employed to the advantage of female murderers. Prior to Furman, capital punishment statutes typically gave sentencing authorities untrammelled discretion to mete out life or death. Although sentencing discretion has been substantially reduced in the modern death penalty regime, it remains arguable post-Furman that the sparseness of women on death row testifies to the discriminatory use of capital sentencing discretion. However, in light of the recent decision in McCleskey v. Kemp, in which the Supreme Court finally took up the question of racial discrimination in the application of the death penalty, it appears that even in the face of convincing evidence of gender disparity, male offenders could not expect to successfully challenge the death penalty on the grounds that males are disproportionately selected for death

Staying Alive: Executive Clemency, Equal Protection, and the Politics of Gender in Women\u27s Capital Cases

In this Article, I will review the matrix in which executive decisions in women\u27s capital clemency cases are made, a matrix supplied by modern equal protection law, the nature and scope of the clemency power, gender politics, and contemporary death row. I will then conduct two thought experiments. Each invented case tests the relevance of gender in legally and politically acceptable contemporary clemency decisions. The goal is to understand the politics and law of granting or denying that very rare boon-commutation of sentence - to a female death row prisoner. The exercise offers support for two conclusions. In the age of formal equality, women cannot be granted clemency simply because they are women. The rhetoric of chivalry is untenable for the contemporary executive. A governor who is courageous and rhetorically skillful, however, can sometimes successfully defend the commutation of the death sentence of a woman as a proper use of the power to grant mercy, done for her sake, the class she exemplifies, the conscience of the governor, and the public

Generalizing Gender: Reason and Essence in the Legal Thought of Catherine Mackinnon

Catharine MacKinnon\u27s work has been a shaping force in the development of feminist legal theory as well as on the course of legal reform. Although few feminist scholars accept her views on gender and sexuality in their entirety, her preeminent contribution to feminist legal theory is generally acknowledged. MacKinnon\u27s most signal legal reform success has been in identifying sexual harassment as a form of sex discrimination prohibited by federal employment law. More recently, attended by greater controversy and less material success, she has been active in the feminist antipornography campaign. This chapter has two objectives. The first is simply the journeywoman task of understanding MacKinnon\u27s theory of gender and especially the methodology she employs. The second objective is to defend an aspect of MacKinnon\u27s methodology that has of late come under political and philosophical attack. She has been accused of gender essentialism, a vice that is variously defined but is most commonly understood to mean treating the concept of gender as a transcultural and transhistorical universal. The price of gender essentialism, according to its critics, is the imposition of false uniformity on the disparate experience of women of different classes, races, ethnicities, and sexual orientations. Privileged white intellectuals read their own experience as that of women as such. In doing so we falsify the experience of those whom we call sisters but whose voices we ignore. In my view, these deplorable consequences do not necessarily overtake the theorist who seeks to generalize about gender. The impulse that animates MacKinnon\u27s work, the desire to formulate a theory that speaks from and to the experience of all women, should not be easily relinquished. Generalizing about gender, at least in the modest form in which it is done by this bold theorist, need not be philosophically or politically pernicious.https://digitalrepository.unm.edu/law_facbookdisplay/1024/thumbnail.jp

A Modest Proposal: The Aged of Death Row Should Be Deemed Too Old to Execute

My exploration of the case for an Eighth Amendment bar against executing the long-serving elderly will begin with a review of the representation of the elderly on America’s death rows and a survey of the very limited avenues of relief currently available to them on the basis of age. I will then discuss the attribution problem by asking at whose door should “fault” for long delays between condemnation and consummation of a capital sentence be laid—the prisoner, the state, or the working through of due process? For many jurists, attribution of fault is critical to resolving the question of whether the long serving of any age should be permitted to exit death row alive. I will then argue that the long-serving elderly should be relieved of both death row confinement and the continuing threat of execution