A MERCILESS JUSTICE

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, Ms. 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
offense. 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.

Ms. 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, Ms. 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 her 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 Ms. LeFevre's escape from prison.

Both sides miss the bigger picture.

Sitting in her cell in Plymouth, Mich., Ms. LeFevre is one of 2
million Americans behind bars. Many of them, like Ms. 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 U.S. 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. 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 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.