Osler's Razor

This week, I drove up to Pine County, which is between Minneapolis and Duluth. Pine County is the boyhood home of Baylor Law prof Larry Bates. It is also the home (since 1933) of the Sandstone Federal Correctional Institution, which was where I was headed.

I receive mail from prisoners all over the country. I answer most of it, and sometimes begin a continuing correspondence with a few prisoners. One of those has been Luke Keller, who is incarcerated at Sandstone. In a letter to him about something else, I off-handedly suggested that I would be happy to come up to the prison and discuss clemency. A few days later, I heard from prison officials that they thought this was a good idea. I booked the date.

Over the years, I have talked about clemency at Harvard, Yale, Penn, Stanford, the White House (seven times there!) and a lot of other places from Alaska to Atlanta. But never, until now, had I given a talk about clemency in a prison. And that is awful-- it really is the one place I should have been giving talks all along. Clemency is about people who are or have been incarcerated, after all-- and those are the people who have a real need for the information I have about how the system works, who gets fair consideration and when the window might open.

I have been going into prisons and jails for about 23 years now, for one reason or another, going back to my days as a prosecutor. Never before, though, had I gone into a prison to teach.

They capped attendance for my talk at 100, since that was all the room there was in the chapel. A lot of the people in the room were older men serving very long sentences, who have longer to go. Their behavior in prison, their movement towards rehabilitation, had been exceptional enough to earn them a spot in this low-security facility.

The hardest thing to tell them was this: clemency is a very long shot, and for some of them it is no shot at all. To get it, you have to genuinely accept responsibility for the crime you were convicted of, and it is important to have a life trajectory towards the good, something that is very hard to fake. There really is (unless you are on Fox News) no short cut or trick or chance occurrence that was going to save any of them; those things are almost exclusively reserved for the rich and famous.

I saw, too, for the first time the true cruelty of how clemency is being used. Men saw their only hope as being to somehow reach reality star Kim Kardashian, who successfully implored the president to release Alice Johnson. That, I told them sadly, is a sample size of one, held up against the 13,000+ pending petitions on which there seems to be no movement. Celebrities won't save them-- only a better system and the will within a president to do right will offer that chance (and even then, it will only be a chance). I know that I will keep trying to make that happen.

There were men that I knew, or knew of. Shon Hopwood's cellmate was there, and people I had corresponded with, and a few with kids who are students at my school. They all told me their stories. There was, too, Stephen Spears, whose case I had taken to the Supreme Court (where we prevailed after a series of setbacks). We had never met; my heart stopped when he introduced himself.  I was supposed to be there for an hour for the lecture, but it turned into two and a half hours pretty quickly.

I left with a sadness I can't shake. The Framers of the Constitution intended clemency to be a sharp, shiny tool in the president's hand, wielded with conscience and precision in the service of mercy. Instead, it has become a clumsy club clutched tightly by the Department of Justice and segment producers at Fox News. Something elegant and soulful has been made ugly and cloddish. It is a small part of the world, but an important one, and it is the one that I know.

There is much more to do.