The Case of the Speluncean Explorer and Judges Asking The Executive for Clemency

December 3rd, 2013

Whenever I teach The Case of the Speluncean Explorers, I always explain that the things the judges do in that case really happen. The students usually don’t believe me, until I point out at various junctures during the year how judges do it. Often it is subtle. Other times, it is not. Such as requests for executive pardons.

Recall that in Speluncean, Chief Justice Truepenny found no exception to the murder statute, but asked the Chief Executive to grant clemency to the cannibals.

In a case like this the principle of executive clemency seems admirably suited to mitigate the rigors of the law, and I propose to my colleagues that we follow the example of the jury and the trial judge by joining in the communications they have addressed to the Chief Executive.

Does stuff like this actually happen? Yeah.

In a National Journal piece which faults President Obama for failing to use his pardon power (Doug Berman has more on that front), Ron Fournier relates this story:

Angelos¬†was sentenced in 2004 to 55 years’ imprisonment for possessing a firearm in connection with selling small amounts of marijuana. He didn’t brandish or use a weapon, nor did he hurt or threaten to injure anybody. And yet the father of young children and an aspiring music producer was given an effective life sentence because of a draconian federal law requiring mandatory minimum sentences.

Even the judge on his case, Paul G. Cassell, found the sentence “cruel and irrational.” While urging Obama to reduce Angelos’s punishment, the Republican-appointed judge wrote, “While I must impose the unjust sentence, our system of separated powers provides a means of redress.”

Speluncean! Judge Cassell has no discretion under the guidelines to make an exception, so he imposes a sentence he knows is not just, hoping the executive will pardon the defendant.

And Cassell is no bleeding heart. He is a leading proponent for victim rights. Certainly not a softy for defendants. It’s fascinating how the principles in this fictional case always pop up in the most difficult of situations.