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.
Joanna M. Huang,
Correcting Mandatory Injustice: Judicial Recommendation of Executive Clemency,
60 Duke Law Journal
Available at: http://scholarship.law.duke.edu/dlj/vol60/iss1/2