Pubdate: Sun, 14 Sep 2008
Source: Dallas Morning News (TX)
Copyright: 2008 The Dallas Morning News, Inc.
Contact: http://www.dallasnews.com/cgi-bin/lettertoed.cgi
Website: http://www.dallasnews.com/
Details: http://www.mapinc.org/media/117
Author: Carol Steiker
Note: Carol S. Steiker is a professor at Harvard Law School whose 
area of specialty is criminal justice. Last year, she argued a death 
penalty case before the Supreme Court, winning her argument and 
overturning a Texas death sentence.

A MERCILESS JUSTICE

When Susan LeFevre was 19, she was arrested for selling drugs to an 
undercover officer in Saginaw, Mich. It was 1974, and she was a 
first-time offender. She believed that if she pleaded guilty, she 
would probably get probation.

She was wrong. After her guilty plea, she was sentenced to 10 to 20 
years in state prison.

One year later, Ms. LeFevre hopped a fence and fled the prison. She 
moved to California and adopted her middle name, Marie. Years passed. 
She eventually married and raised three children, dedicating herself 
to her family and charitable causes. She never committed another 
offense. Her husband and children knew nothing about her youthful 
conviction or prison sentence - until April, when, 32 years after her 
escape, she was arrested and extradited to Michigan.

Ms. LeFevre's lawyers have asked the judge to set aside her original 
drug sentence, but the local district attorney has filed new charges 
against her for escaping prison. If convicted, Ms. LeFevre could be 
sentenced to an additional five years on top of her drug sentence. It 
is almost certain that Michigan Gov. Jennifer Granholm will have to 
decide whether to commute her sentence.

Supporters of clemency contend that locking up Marie LeFevre would 
destroy her family and serve no purpose, as she already has done what 
the original sentencing judge urged her to do back in 1975: turn her 
life around. Opponents argue that commutation would send the wrong 
message and reward Ms. LeFevre's escape from prison.

Both sides miss the bigger picture.

Sitting in her cell in Plymouth, Mich., Ms. LeFevre is one of 2 
million Americans behind bars. Many of them, like Ms. LeFevre, are 
nonviolent drug offenders. The staggering number of American 
prisoners has made the United States the world's leading 
incarcerator; this nation locks up a greater number of offenders for 
longer periods than any other nation. In 1960, approximately 330,000 
people were behind bars in the U.S. Today the number is 2.3 million. 
Moreover, largely because of the "war on drugs," the increase in 
women's incarceration in recent years has far outstripped the 
increase in men's, devastating many families and communities.

How did we scale the soaring peaks of mass incarceration? The decline 
of mercy has played a leading role. With the noble intent of bringing 
rationality and order to what had often been a chaotic and even 
discriminatory system of criminal justice, reformers at every stage 
of the justice system have sought to limit the power of discretionary 
actors to say no to punitive policies.

Consider: Police departments have instituted mandatory arrest and 
"zero-tolerance" policies that have swept up many low-level 
offenders. Juries have convicted defendants on charges without any 
inkling of the sentencing consequences. The ability of sentencing 
judges to respond to cases on their individual merits has been 
sharply curtailed or destroyed by sentencing guidelines and mandatory 
minimum sentences. And the granting of executive clemency has 
radically declined, not just in the Bush administration but also in 
governors' offices around the country.

One might think the courts and the Constitution provide a safeguard 
against excessive punishment; after all, the Eighth Amendment 
promises protection against "cruel and unusual punishments." But the 
Supreme Court has interpreted this provision to require great 
deference to state legislatures. The court, for example, has upheld 
sentences of 25 years to life and 50 years to life - imposed under 
California's "three-strikes" law - for repeat offenders who, 
respectively, stole three golf clubs from a pro shop and shoplifted 
nine videotapes from a Kmart.

An exit strategy from this upward spiral of incarceration lies in 
revitalizing the exercise of mercy. Yes, mercy carries the risk of 
arbitrariness and discrimination.

Soccer moms such as Marie LeFevre may seem to be more appealing 
defendants than many others who have committed nonviolent crimes. But 
mass incarceration has had an enormous impact on poor and minority 
communities. Only by reconsidering individual cases and questioning 
the necessity and desirability of punishment can we turn back from 
the prison state that we have become.

Our Founding Fathers understood the importance of checks and 
balances, but no one is checking or balancing the decisions that are 
causing our prisons to overflow.

By reinvigorating the veto power of actors all along the justice 
system, we may save individuals from unnecessarily destroyed lives. 
We may save money in these economically trying times. But most 
important, we may save ourselves - by preserving the value of mercy.
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MAP posted-by: Richard Lake