Wednesday, September 16, 2020


YLS '90: Me!

I've been devoting Wednesdays on the blog to profiling my classmates in the Yale Law class of 1990.

This week, I think I will finally get around to profiling myself. And that is pretty much summed up in this video about me and IPLawGuy:

Also, last week Megan Willome asked if I could explain what I meant when I said that some of my work is "The Guilty Project." This seems like a good time to do that.

Most people are familiar with the Innocence Project, which has worked for decades to free people who were wrongly convicted. I have great admiration for that work and the people who do it. Their tools are litigation and proving innocence, a difficult and crucial task so long as our system is imperfect (which it always will be). 

In clemency work, my task is different. Only very rarely is the basis for clemency that the convicted person is innocent. Rather, the basis most often is that the sentence is too long-- that they either were over-sentenced in the first place or have been rehabilitated (and sometimes both). They were guilty but oversentenced.

While innocence work has profound joy associated with it-- I can only imagine what it is like to prove that someone did not commit a crime and watch them walk free-- clemency work has a different set of emotions that go with it.

First, it means something that as part of clemency the petitioner does take responsibility for their actions. That can allow for a healing; clemency really is the oldest form of restorative justice. It can be remarkable to work with people through that process of becoming accountable and still believing (rightly) that they should be released from prison. 

In addition, the virtue of mercy is at the heart of clemency in a way that it is not involved in innocence work-- after all, justice, not mercy, is a better description of that correction.

The other reason I feel so strongly about clemency has to do with numbers. Relatively few people are convicted but innocent, but a huge number of people in our retributive society have been over-sentenced. Their imprisonment is making nothing better: it isn't improving them, it is not preventing crime, and it is not sending anyone a message about anything. It's a waste of money and, worse, the freedom we prize as a nation. We love liberty, and that means we should limit liberty as little as possible.

I'm happy with my guilty project. Because that guilt is in the past, and all of us have a future. I want to show the full lives of incarcerated people, beyond those few moments that have defined them in the eyes of the state.  In a quiet way, it can be whole and real and deeply fulfilling. 

Thank you, this is exactly what I hoped you'd elaborate on.
If the Democrats take back the Senate, maybe we can insert some sentencing language into the next Trademark Statute Revision.
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