Correcting Mandatory Injustice: Judicial Recommendation of Executive Clemency

In 1987, the United States political and social systems lost trust in the judiciary and severely limited its authority by enacting the mandatory Federal Sentencing Guidelines. During this period, many judges were forced to impose sentences they viewed as unjust. Trust in the judiciary was restored in 2005, when United States v. Booker made the Sentencing Guidelines advisory. Despite the increase in judicial discretion, however, judges are still unable to correct sentences imposed during the intervening eighteen years because Booker does not apply retroactively. Unfortunately, the executive and legislative branches are similarly unable to provide adequate remedies. Congressional action is insufficient because it is inflexible, time consuming, and generally nonretroactive. Executive clemency appears more promising due to a flexible and broad nature that allows the president and state governors to pardon or commute sentences at will. But executives have become unwilling to use their clemency power, making it an inadequate remedy. This Note proposes a solution that overcomes the limitations of the current system: judicial recommendation of executive clemency. This solution produces three benefits. First, it provides judges with a discretionary tool to reduce disproportionate mandatory sentences. Second, it revitalizes the exercise of clemency by giving it additional legitimacy. Finally, it refocuses clemency grants on the defendant and the facts of the case rather than on political influences. This Note provides eight illustrative criteria for judicial recommendation of executive clemency that, together, combine the characteristics of three modern cases in which the sentencing judges recommended clemency. This Note seeks to explain how and why each criterion might be important, taking into consideration the goals of judicial discretion, executive clemency, and the criminal justice system overall

Money, Politics, and Impartial Justice

A centuries-old controversy asks whether judicial elections are inconsistent with impartial justice. The debate is especially important because more than 90 percent of the United States\u27 judicial business is handled by state courts, and approximately nine in ten of all state court judges face the voters in some type of election. Using a stunning new data set of virtually all state supreme court decisions from 1995 to 1998, this paper provides empirical evidence that elected state supreme court judges routinely adjust their rulings to attract votes and campaign money. I find that judges who must be reelected by Republican voters, especially in partisan elections, tend to decide cases in accord with standard Republican policy: they are more likely to vote for businesses over individuals, for employers in labor disputes, for doctors and hospitals in medical malpractice cases, for businesses in products liability cases and tort cases generally, and against criminals in criminal appeals. Judicial behavior is correspondingly liberal for judges facing reelection by Democrats. Moreover, I find evidence that judges change their rulings when the political preferences of the voters change. In addition, my analysis finds a strong relationship between campaign contributions and judges\u27 rulings. Contributions from pro-business groups, pro-labor groups, doctor groups, insurance companies, and lawyer groups increase the probability that judges will vote for the litigants favored by those interest groups. The results suggest that recent trends in judicial elections-elections becoming more contested, competitive, and expensive-may have upset the delicate balance between judicial independence and accountability. I discuss various policy solutions for reforming states\u27 systems

Are Appointed Judges Strategic Too?

The conventional wisdom among many legal scholars is that judicial independence can best be achieved with an appointive judiciary; judicial elections turn judges into politicians, threatening judicial autonomy. Yet the original supporters of judicial elections successfully eliminated the appointive systems of many states by arguing that judges who owed their jobs to politicians could never be truly independent. Because the judiciary could function as a check and balance on the other governmental branches only if it truly were independent of them, the reformers reasoned that only popular elections could ensure a truly independent judiciary. Using a data set of virtually all state supreme court decisions from 1995-1998, this Article provides empirical support for the reformers\u27 arguments; in many cases, judges seeking reappointment vote even more strategically than judges seeking reelection. My results suggest that, compared to other retention methods, judges facing gubernatorial or legislative reappointment are more likely to vote for litigants from the other government branches. Moreover, judges increasingly favor government litigants as their reappointments approach, which is consistent with the judges voting strategically to avoid reappointment denials from the other branches of government. In contrast, when these judges are in their last term before mandatory retirement, the effects disappear; without retention concerns, these judges are no more likely to vote for government litigants than other judges. My empirical evidence suggests that elective systems are not the only systems that produce bias; appointive systems also threaten judicial independence

A Pilot Study: The Effects of Group Exercise On Fatigue and Quality of Life During Cancer Treatment

Fatigue affects 60-100% of all cancer patients, is difficult to manage, and can have a profound impact on everyday functioning and quality of life. Though seemingly counterintuitive, exercise has emerged as a promising intervention for the management of cancer related fatigue (CRF). Current research predominantly involves individual, home-based exercise programs with few studies exploring other modes of exercise delivery. The purpose of this pilot study was to determine if participation in a structured group exercise program (SGEP) was a feasible intervention for adult oncology patients receiving cancer treatment and to test the impact of a SGEP on reducing CRF and improving quality of life (QOL). This unique study integrated the known benefits of exercise with the powerful effects of group dynamics in a group of adult oncology patients with mixed cancers, at various stages of treatment. Using a pretest and posttest one-group design, findings showed a significant decrease in bodily pain (p=0.0118); subscale scores for physical role, vitality, and social function increased, but did not yield statistical significance. No difference was found in reported fatigue. A post-program questionnaire identified themes of support, learning from shared information, and usefulness of having an exercise program serve concurrently as an informal support group. The findings of this pilot study provide encouraging data that suggests a SGEP is feasible, safe, and well tolerated by adult oncology patients receiving cancer treatment, and may have positive effects on CRF and QOL

Clues for consequentialists

In an influential paper, James Lenman argues that consequentialism can provide no basis for ethical guidance, because we are irredeemably ignorant of most of the consequences of our actions. If our ignorance of distant consequences is great, he says, we can have little reason to recommend one action over another on consequentialist grounds. In this article, I show that for reasons to do with statistical theory, the cluelessness objection is too pessimistic. We have good reason to believe that certain patterns of action will tend to have better consequences, and we have good reason to recommend acting in accordance with strategies based on those advantageous patterns. I close by saying something about the strategies that this argument should lead us to favour.</jats:p