A Gendered Model of Clemency: The Washington Case

• In Event: Bias and Discrimination in the Criminal Legal System and Beyond

Abstract

An enduring quality of the clemency power has been the disproportionate rate at which it is granted to women. This remains true for those sentenced to death and to terms of incarceration, and internationally, federally, and locally. This disproportionality has been theorized as both state paternalism and compensation for overly-harsh sentences given to women for crimes of violence. Washington State is an outlier to this trend, disproportionately granting clemency to men. Relying on nearly three decades of video-taped clemency hearings and clemency petitions, this paper investigates how gender is constructed through mercy and how mercy is constructed through the construction of gender. Through an analysis that considers Washington State as an instructive outlier, this paper constructs a gendered model of clemency which argues that the demands of legal rationality have led clemency decision makers to emphasize purportedly gender-neutral factors, such as remorse and accountability, in such a way that they undermine, neglect, or perceive gendered narratives as eroding one’s deservingness of mercy.

Author

• Delaney Mosca, University of California, Irvine