By Preston Shipp, Former Prosecutor
My view of the American system of justice is clear — it is overly punitive and in need of correction. My opinion is anything but armchair analysis. I came to this conclusion through my time as a prosecutor — most notably in the case of Cyntoia Brown. Cyntoia was sentenced to more than five decades in prison at the age of 16 for killing a man who she believed was drawing a gun to shoot her. At the time of her sentencing, I believed this punishment was just — but upon reflection, I later advocated for her application for clemency, which was ultimately successful. I know better now than most that for real justice to be realized, her experience with redemption should not be the exception, but the rule.
Why isn’t it?
To begin with, our criminal legal system is adversarial and discourages even basic human connection. As a prosecutor, you’re a representative of the state. Your adversary is a defendant, and the most important information you have about them is that they have been accused of a crime. I was tasked with seeking “justice” for victims and promoting public safety by punishing people who broke the law. In the daily grind of that work, it is easy to forget that the person on the other side of the courtroom is a person, like you. It becomes easy to dehumanize people charged with crimes.
The results of this are devastating. After you have done your job and obtained a conviction, and had the person sentenced, you may well forget that their story had a beginning and a middle, seeing only an end — a resolution you helped fashion for them. You therefore often forget the impact you had in that person’s life, which will long outlast the time you spent prosecuting their case. Additionally, no one knows what the future will hold if and when they are released from incarceration and return to their communities.
In my experience, it’s rare that any single person in the legal system, whether a cop, a prosecutor, or a judge, thinks to check back in on people after their cases conclude.
While releasing people onto parole is a possibility in most jurisdictions, those decisions tend to look backward to determine whether the person has served enough time to satisfy the parole board that they have been sufficiently held accountable or sufficiently punished. On several occasions I have witnessed parole boards deny release to people who had experienced profound rehabilitation because they believed the seriousness of the offense required additional punishment.
This is where clemency is vitally different. In contrast to a system rife with historical bias and wrongheaded or inaccessible processes, it can be actively humanizing and forward-looking.
Clemency presents an opportunity for governors to undo the failures and harms of the system and see people not merely for what they have done, but for who they have become. It is an opportunity to look beyond the punishment for a past wrong to the promise of a meaningful future. It is a moment to reflect on that part of people’s stories that has yet to be told. Unlike the original sentencing court and the parole board, the executive is not constrained by the retributive principles that characterize the American system of punishment. Governors exercising their clemency powers can extend mercy where the system does not. They are free to correct the criminal justice system’s compounding of underlying trauma.
In the case of Cyntoia Brown, I argued before the Tennessee appellate court that her conviction was proper — that she was appropriately tried, convicted, and sentenced to 51 years in prison. I argued that the system did what it was designed to do: inflict punishment without fully regarding the human context in which the harm was caused. As a society that tolerates this system, we are far too eager to say, “We got that person back. Now let’s move on.” Thankfully, in Cyntoia’s case, I later got to know her, to witness her rehabilitation, and was able to argue that she deserved a second chance. Clemency corrected the injustice of a 16-year-old child being tried as an adult and sentenced to 51 years in prison.
The system needs more of that change, and it needs it now.
The criminal legal system is too often steered by a desire for vengeance, which serves no one. Not the defendant, not a victim or their family — whose pain must be acknowledged and heard — and it does not not serve we the people. We must recognize that increasingly harsh sentences have not resulted in lower rates of recidivism or greater public safety, much less healthier communities. In fact, our overly punitive system destabilizes communities and places people at risk. What makes more sense, and what allows us to adopt a more holistic approach, is to create opportunities for a person to grow and thrive and move past the mistakes they made and the hurt they caused.
True justice, in fact and in practice, requires compassion, humility, and the willingness to see where we have been too punitive and how we can address that.
Make no mistake, compassion is not a limiting force. My compassion for one person in no way diminishes my compassion for another. Cultivating compassion — and embracing clemency as a form of compassion — does not undermine our commitment to holding space for victims and their families to grieve, to be angry, and to heal. We can and must expand the parameters of our compassion to also include people who cause harm, and embrace corrective, compassionate policies that allow for their growth, rehabilitation, and redemption. What we can achieve here is not merely a reduction in the number of people in prisons, although that is sorely needed. What we can achieve is redemption.