AMERICA'S 'PRISON STATE' MENTALITY

When Susan LeFevre was 19, she was arrested for selling drugs to an
undercover officer in Saginaw, Mich. It was 1974, and she was a
first-time offender. She believed that if she pleaded guilty, she
would probably get probation.

She was wrong. After her guilty plea, she was sentenced to 10 to 20
years in state prison.

One year later, LeFevre hopped a fence and fled the prison. She moved
to California and adopted her middle name, Marie. Years passed. She
eventually married and raised three children, dedicating herself to
her family and charitable causes. She never committed another offence.
Her husband and children knew nothing about her youthful conviction or
prison sentence until April, when, 32 years after her escape, she was
arrested and extradited to Michigan.

LeFevre's lawyers have asked the judge to set aside her original drug
sentence, but the local district attorney has filed new charges
against her for escaping prison. If convicted, LeFevre could be
sentenced to an additional five years on top of her drug sentence. It
is almost certain that Michigan Gov. Jennifer Granholm will have to
decide whether to commute LeFevre's sentence.

Supporters of clemency contend that locking up Marie LeFevre would
destroy her family and serve no purpose, as she already has done what
the original sentencing judge urged her to do back in 1975: turn her
life around. Opponents argue that commutation would send the wrong
message and reward LeFevre's escape from prison. Both sides miss the
bigger picture.

Sitting in her cell in Plymouth, Mich., LeFevre is one of two million
Americans behind bars. Many of them, like LeFevre, are nonviolent drug
offenders. The staggering number of American prisoners has made the
United States the world's leading incarcerator; this nation locks up a
greater number of offenders for longer periods than any other nation.
In 1960, approximately 330,000 people were behind bars in the United
States. Today, the number is 2.3 million. Moreover, largely because of
the "war on drugs," the increase in women's incarceration in recent
years has far outstripped the increase in men's, devastating many
families and communities.

How did we scale the soaring peaks of mass incarceration? The decline
of mercy has played a leading role. With the noble intent of bringing
rationality and order to what had often been a chaotic and even
discriminatory system of criminal justice, reformers at every stage of
the justice system have sought to limit the power of discretionary
actors to say no to punitive policies.

Consider: Police departments have instituted mandatory arrest and
"zero tolerance"
policies that have swept up many low-level offenders. Prosecutors'
offices have given
instructions, such as those issued by a series of Republican
attorneys general, to
charge only the most serious provable offences, no matter what the
circumstances. Juries
have convicted defendants on charges without any inkling of the
sentencing consequences.
The ability of sentencing judges to respond to cases on their
individual merits has been
sharply curtailed or destroyed by sentencing guidelines and mandatory
minimum sentences.
And the granting of executive clemency has radically declined, not
just in the Bush
administration but also in governors' offices around the country.

One might think that the courts and the Constitution provide a
safeguard against excessive punishment; after all, the Eighth
Amendment promises protection against "cruel and unusual punishments."
But the Supreme Court has interpreted this provision to require great
deference to state legislatures. The court, for example, has upheld
sentences of 25 years to life and 50 years to life? imposed under
California's "three strikes" law, for repeat offenders who,
respectively, stole three golf clubs from a pro shop and shoplifted
nine videotapes from a Kmart.

An exit strategy from this upward spiral of incarceration lies in
revitalizing the exercise of mercy. Yes, mercy carries the risk of
arbitrariness and discrimination. Soccer moms such as Marie LeFevre
may seem to be more appealing defendants than many others who have
committed nonviolent crimes. But mass incarceration has had an
enormous impact on poor and minority communities. Only by
reconsidering individual cases and questioning the necessity and
desirability of punishment can we turn back from the prison state that
we have become.

Our founding fathers understood the importance of checks and balances,
but no one is checking or balancing the decisions that are causing our
prisons to overflow. By reinvigorating the veto power of actors all
along the justice system, we may save individuals from unnecessarily
destroyed lives. We may save money in these economically trying times.
But most important, we may save ourselves, by preserving the value of
mercy.