If we are honest, we all have an agenda. My own agenda is shaped by a passage my mom taught me, Micah 6:8. It teaches that what God requires is that we seek justice, love mercy, and "walk humbly with our God."
As a former prosecutor who now teaches future prosecutors, I struggle with the imperatives to seek both justice and mercy. If justice is treating people alike, and mercy is giving unearned grace, the two are in tension. To move towards one is to move away from the other. I don't know how to reconcile these directives, other than to walk humbly. In the end, the best I can do is this: Criminal law must not exclude either justice or mercy. There must be at least some place for both.
Identifying areas where mercy is excluded is depressingly easy. There is the death penalty, of course, and life without parole sentences for juveniles. Perhaps worst of all, the mercy function built into our Constitution, the pardon power, appears to be broken, even in the hands of a president who is both a Constitutional Law professor and a believer in the truths of Micah 6:8.
In an effort to address the pardon power issue, I started the nation's first federal clemency clinic. My St. Thomas students go to prison and visit our clients, developing their narrative to become part of a strong petition for early release. On a tiny budget and with the time we can spare, we find out hard truths and tell them to the president.
Because I run this clinic, I receive dozens of letters from prisoners seeking help. I was gone this summer (teaching in Rome) and they piled up on my desk, white rectangular envelopes with neat penciled-in addresses on the front and return addresses in those remote corners where we warehouse men and women: Victorville, California; Florence, Colorado; Alderson, West Virginia; Bastrop, Texas.
Inside each, laid out in painstaking handwriting, is a story. It is always a tragic story. They are from men, and sometimes women, who are in prison for very long terms and have exhausted their appeals. They have no more hope through the courts, so they write to me. They think I will know a way to get them out of prison after 20 or 27 or 35 years for a narcotics case almost no one else remembers. It is emotionally draining to read these stories. Sometimes, I sit and stare at a letter, not wanting to open it and let that tragedy out. Instead, I look at the neat row of stamps, purchased with prison wages of 45 cents an hour.
Last spring, my mentor and friend, Dr. Joanne Braxton of William and Mary, invited me to her school to give a sermon in the Wren Chapel. The next day, we sat in her office and she pulled something from her desk and laid it carefully on the table, her fingers resting on top of it like the gem that it was. It was a gift, a paperback edition of Ernest J. Gaines's "A Lesson Before Dying."
I waited until I was in a calm, quiet place to read it, surrounded by tall pines. The story is about a man condemned to die, in a time when black Americans saw Joe Louis as the kind of hero we find hard to imagine anymore, a man who carried the dreams of a people on his broad back.
The part of the book that stopped me cold, as Professor Braxton knew it would, was this:
And my mind went back to that cell uptown, then to another cell, somewhere in Florida. After reading about the execution there, I had dreamed about it over and over and over. As vividly as if I were there, I had seen that cell, heard that boy crying while being dragged to that chair, "Please, Joe Louis, help me. Please help me. Help me." After he had been strapped in the chair, the man who wrote the story could still hear him cry "Mr. Joe Louis help me, Mr. Joe Louis help me!
I sat in the woods, stunned. I know that when I get those letters, I am about as much good to most of them as the great Joe Louis was to the long-dead prisoner crying out to him.
Still, maybe there is a chance. A chance that if we keep pressing, something will change, the pipeline of clemency will open again, even if only to allow a trickle to pass through. Perhaps I can win at wholesale, through advocacy, what I cannot give them at retail. Maybe.
So, I will continue to open those white envelopes, read the words "I hope that you can help me," and try to find a way to grace.