by Chad Marks
Alexander Hamilton once described the reasons for the existence of clemency as those of humanity and good policy. Both clemency and parole reflect a commitment to the ancient value of mercy, but many prosecutors use their power to block mercy from becoming a reality.
Prosecutors across the nation have blocked or discouraged state boards and governors from granting applications for clemency or parole. There is an inherent conflict of interest that exists when a prosecutor who prosecuted a case lends his or her feelings on whether a prisoner should be granted clemency or parole. How many prosecutors would step in and say they believe in a second chance for the person they prosecuted? Not many.
For example, Alfred Brown, who had spent nearly 39 years in prison before he appeared before the parole board, met this fate. At the age of 16, Brown murdered his parents and sister—undoubtedly, a serious crime that came with serious consequences. In fact, he was sentenced to life at the time of the offense. That was changed when the U.S. Supreme Court ruled life without parole for juveniles is unconstitutional. That change was based on facts — that juveniles’ brains are not fully developed and therefore, along with other factors, prevent them from making rational choices like the average adult brain.
John Doherty, the man who prosecuted the then-16-year-old Brown showed up at his parole hearing telling the board of commissioners that if he were released he knew Brown would “kill again.” Here, the prosecutor’s influence worked as parole was denied. Almost 40 years later, Doherty somehow claimed to know that Brown would kill again, despite the fact he had never known him as an adult.
Leon Cannizzaro, a district attorney in the Orleans Parish, spoke some wise words that other prosecutors should pay heed to when dealing with cases like Brown’s. He said, “We’re basically guessing on these cases.... I think this is an unfair call for the district attorney.”
On the federal side, clemency petitions go through the Department of Justice as part of the review process. Career prosecutors are tasked with deciding whether to push a clemency request forward. Asking career prosecutors to reverse other prosecutors’ decisions is like pulling teeth.
Former White House counsel Greg Craig unsuccessfully lobbied in 2009 to stop letting prosecutors make these type of decisions. Craig wanted to create an expert commission answerable to the White House, not allow the DOJ to continue screening candidates requesting a second chance to reclaim their lives. And he wanted to do so for good reason.
The power of prosecutors should not be used to obstruct those seeking parole or clemency, but it often is.
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