Clemency for Our Children

Authors

Anthony C. Thompson, New York University School of Law

Abstract

This Article proposes the use of the executive's clemency power to pardon or commute the sentences of a class of petitioners: children sentenced to life without the possibility of parole (LWOP). The history of executive clemency reveals that the intent behind this unique power was to offer the executive branch a final check in the criminal justice system to redress errors or to enhance fairness. The clemency power - exercised through pardons or commutations - allows the executive branch either to absolve individuals of wrongdoing given an assessment of the circumstances or to redress the relative disparity or undue severity of particular sentences. This Article contends that juveniles sentenced to life sentences without the possibility of parole, as a class of petitioners, fall squarely within the reach of this power and warrant an exercise of state executives' clemency.

Recent cognitive and developmental research reveals that children lack the cognitive ability to understand fully the implications of their choices and their acts. The United States Supreme Court has acknowledged critical differences in the way that children process decisions and "make the choice" to engage in unlawful conduct. In the recent decision of Graham v. Florida the Court examined the sentencing of juveniles in non-homicide cases and held that children should not be sentenced to LWOP in such cases. Given that and the research findings that support that conclusion, the United States Supreme Court in Roper v. Simmons outlawed the imposition of the death penalty against juvenile offenders, noting that their decision-making processes fundamentally differ from those of mature adults. When the state opts to condemn a juvenile to incarceration for the rest of his life without the possibility of parole - essentially sentencing him to death behind bars - the same concerns ought to apply. Yet, the United States Supreme Court has gone to great lengths to make the illogical argument that the same considerations that led it to conclude the unconstitutionality of an imposition of the ultimate penalty on a juvenile - the death penalty - do not apply to a life sentence without the possibility of parole.

Against that backdrop, this Article posits that state executives should exercise their clemency power to correct the fundamental unfairness that now results. This Article proposes three justifications for the use of the clemency power to redress this harm to juvenile offenders. First, the Article asserts that the use of clemency in cases where juveniles have been sentenced to LWOP fits within the conventional view of clemency - its exercise constitutes an act of mercy. The executive's authority operates as a safety valve to redress fundamental errors after exhaustion of all other remedies. Second, the Article asserts that clemency is not just an act of mercy; it constitutes a political act. Although the political dimension of the power is often criticized, it is a legitimate rationale for its exercise and should be acknowledged and guided. Third, the Article discusses how clemency is required to address an inherently illogical conclusion that results from Supreme Court ruling. Where the highest court has issued a criminal justice decision that creates a fundamentally illogical or inconsistent conclusion in its ruling, the state executive power has an obligation to intervene and redress that inconsistency.

Disciplines

Criminal Law | Criminal Procedure | Law

Recommended Citation

Anthony C. Thompson, Clemency for Our Children, 32 Cardozo L. Rev. 2641 (2011).
Available at: https://larc.cardozo.yu.edu/clr/vol32/iss6/28