In her final days in office, former Democratic Gov. Jennifer Granholm considered the final few commutation and pardon petitions that remained on her desk.

As a student attorney in the University Law School’s Innocence Clinic, I nervously awaited her decision on our client, Thomas Cress — an innocent man of limited mental capacity who was wrongfully convicted of murder in 1986. But it seemed that I was among the few worried about the innocent lives that could be saved by Granholm’s last-minute decisions.

The story in the local press was much different. When the Detroit Free Press reported that Granholm was more liberal with the use of her pardon power than her recent predecessors (179 commutations and counting: Granholm exits as most merciful Michigan governor in decades, 12/20/2010), she was criticized for politicizing and short-circuiting the system. People were outraged, but that’s because they weren’t told the whole story.

There’s certainly something icky about executive pardons: Why should any one person, be it a governor (state convictions) or the president (federal convictions), be able to play God by setting aside (commutation) or erasing entirely (pardon) a judicial determination of guilt? But the problem is that Michigan’s penal system, like many other states across the country, is much more “icky” and necessitates back-door solutions like executive pardons.

This state has been run for decades by a legislature that embraced the old school, tough-on-crime mentality. One result of this mentality was prisons becoming overcrowded by mostly nonviolent offenders who would have been better off in rehabilitation. But, there’s an even bigger problem here: Michigan’s penal system over time has abandoned lines of demarcation between different crimes based on different levels of culpability.

Consider the following: Amanda Knox, the American woman convicted in December 2009 of a gruesome murder and sexual assault in Italy, received 26 years in prison. (Knox insists she’s innocent, and if so, even a day in prison is too much, but that’s not relevant here.) The Italian system, while concluding that Knox is a killer of the most unspeakable sort, still only sentenced her to 26 years. Thus, even stone-cold killers have the chance to reform themselves in prison and emerge one day to reclaim their lives.

On the other hand, in Michigan, a person can be sentenced the same as a first-degree murderer — automatic life in prison without parole — even if he was not the murderer. Accomplices, even those who weren’t at the crime scene, can receive the same sentence as the person who pulled the trigger. A robber, who may not even have been armed, can be charged with felony murder (and sentenced to life without parole) if the person he was robbing incidentally dies. This is all quite problematic.

I’m not saying that accomplices and robbers are not culpable: They deserve to pay for their crimes. What I am saying is that they are less culpable than those who actually pull the trigger intending to kill, and it’s crucial that our justice system recognize that. One of the most basic tenets of criminal legal theory is that different levels of culpability must be punished differently, or else we risk incentivizing the worst in criminal behavior. Michigan’s system, unfortunately, has blurred such basic lines of demarcation.

And so it’s that prisons are filled with people serving life sentences regardless of whether they are cold-blooded killers, or something far less culpable than that. Put that together with the hundreds of thousands of people imprisoned for petty, nonviolent drug offenses, and you have an unfair system and very crowded prisons costing a cash-strapped state far more than it can afford to spend.

In light of all that, to criticize Granholm’s pardons and commutations is to miss the point entirely. Perhaps a handful of her 179 plus pardons and commutations were questionable on some level. But she took seriously the small role she can play in correcting a vastly flawed system, and I applaud her for that.

A real solution can come only from the legislature, which must amend the criminal code to reflect a logical understanding of crime, not just a blatantly political system that throws people away. Above all, judges must have the freedom to decree individual sentences for individual people, as opposed to having their hands tied by mandatory minimums.

All this doesn’t even begin to address the innocent people who are imprisoned and are denied meaningful recourse, but such serious reconsiderations of policy and philosophy are the first step. Short of that, Michigan is just a prison state, whose leaders can’t be bothered to do what’s best for all of us.

Imran Syed can be reached at galad@umich.edu.

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