It is definitely a time for a little mercy. Mercy is all we have when justice fails us.
Justice frequently functions like a lottery. That is a hard reality to swallow for someone who has taught for more than 30 years in a law school and now leads one. Too often my students see how a similar defendant represented by a different lawyer or in front of a different judge can mean the difference between incarceration and freedom. The randomness of justice had a particularly cruel outcome for Patty Prewitt, a 71-year-old grandmother serving a life sentence. Simply put, if she were tried today, she would not be in prison.
We’ve learned a lot about our justice system since Prewitt’s trial in 1985. We know today how an investigation tainted by tunnel vision — the singular focus on building a case against a particular individual while ignoring evidence that points away from guilt — can result in an innocent person going to jail. We know today that salacious allegations about a woman’s sex life to paint her as someone who should be punished can have an unduly prejudicial effect on a jury’s decision to convict. We know today that unrecorded interrogations can enable unscrupulous police officers to give false or misleading testimony about a defendant’s statements at a crucial moment. To prevent wrongful convictions resulting from such testimony, recordings of interrogations are now required in Missouri. These are just a few of the troubling errors that led to Patty Prewitt’s conviction.
So, how do we correct this? Court seems like the obvious place. But pointing out errors like these is not enough to even get in front of a judge, let alone secure a client’s freedom. Prioritizing finality, our judicial system sets an extremely high bar for post-conviction innocence claims. Countless compelling cases are procedurally barred from even being considered by a judge. So where does one go?
We go to you, Gov. Parson. The constitutional power of clemency is designed to address what the courts cannot. It is the one place where arguments of equity, fairness and, above all, mercy are always permissible. Clemency can correct the randomness of justice.
I am fortunate to have written multiple successful clemency petitions. My clients are all flourishing and are crime-free. Gov. Parson recently granted several clemency petitions, but there are still thousands of people awaiting his mercy.
Patty Prewitt is one of them. As a professor at Washington University decades ago, I met Patty when she performed in a Prison Performing Arts production of “A Midsummer Night’s Dream.” Little did I know that she would become a part of my life — a person my children asked about every Christmas when clemency decisions were often announced, a person who I could count on to support a fellow prisoner who I knew was about to get bad news and needed a mother’s care, a person whose continued incarceration has plumbed the depth of my naivete as I learned more and more information supporting her innocence.
Patty has been a model prisoner for more than 34 years; has four devoted children waiting to welcome her home; and the support of religious leaders, legislators from both parties and citizens across Missouri. As the former head of the Missouri Department of Corrections has said in support of her release, “Despite her life sentence, Patty has accomplished more, given more and touched the lives of more individuals than many of us outside prison will ever achieve.”
Patty’s continued incarceration is emblematic of the problems in our justice system. For years, I made sure students in my law clinic worked on her case. They, like myself, were shocked at the failure of governor after governor to act on her clemency petition. One of my students, Brian Reichart, was so moved that after he graduated, he took over the case and has been working tirelessly to get her released. The clemency petition he helped draft and submit over a decade ago is still pending, now in front of Gov. Parson. And yet he goes on, doing his best for Patty Prewitt. The problem is that his best is not enough. He does not have the power to grant clemency. Only Gov. Parson does. I urge the governor to remind us that heads of governments have the power to do good, to use their power to exercise mercy and grant Patty Prewitt’s petition for clemency.
Jane H. Aiken is dean of Wake Forest School of Law and was the William Van Cleve Professor of Law at Washington University in St. Louis from 1996-2006. She lives in Winston-Salem, North Carolina.