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Friday, March 04, 2005

Judges must not grant clemency

Michelle Malkin relates the case of a judge who gave a rapist probation on the grounds that he is an important brain researcher. (Too important for prison?) She doesn't like it:
... that shouldn't matter in a court of law. McIntosh did the crime; he should do some time.
Absolutely right, and the reason is because exceptions to equal due process are the exclusive prerogative of the executive branch in the form of the power to grant clemency.

Judges have leeway to assess a criminal's proper punishment according to the three due process grounds for punishment: deterrence, incapacitation, and retributive justice. Thus for example, if it seems that some basically harmless person made a criminal but not malicious mistake, incapacitation would not be a big concern. He isn't very likely to do it again. In the McIntosh case, however, there is was pre-meditation (it was a "date rape" drug attack). That brings it up to the par of recidivism. Simply Kimberly notes the aggravating circumstance and concludes: "He belongs in prison."

Deterrence, incapacitation and retribution all call for substantial punishment in this case, implying that the judge has granted clemency on the basis of the convict's other value to society. The judge even admitted that this other value was his grounds for leniency (again quoting Malkin):
In explaining his decision, Means said he "factored in McIntosh's important work with stroke victims and brain injuries," according to the Daily News.
Judges who grant clemency are violating the separation of powers. The main reason the executive is allowed grant unequal procedural justice is to achieve a more perfect equal justice, by granting mercy in the rare case where procedure has arrived at a clearly unjust result, but the door is left open for the executive to consider other value to society as well. That door is not left open to judges. Equal procedural justice is the foundation of the rule of law.

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