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Consider: Police departments have instituted mandatory arrest and 'zero-tolerance' policies that have swept up many low-level offenders. Juries have convicted defendants on charges without any inkling of the sentencing consequences. The ability of sentencing judges to respond to cases on their individual merits has been sharply curtailed or destroyed by sentencing guidelines and mandatory minimum sentences. And the granting of executive clemency has radically declined, not just in the Bush administration but also in governors' offices around the country.
One might think the courts and the Constitution provide a safeguard against excessive punishment; after all, the Eighth Amendment promises protection against 'cruel and unusual punishments.' But the Supreme Court has interpreted this provision to require great deference to state legislatures. The court, for example, has upheld sentences of 25 years to life and 50 years to life - imposed under California's 'three-strikes' law - for repeat offenders who, respectively, stole three golf clubs from a pro shop and shoplifted nine videotapes from a Kmart.
An exit strategy from this upward spiral of incarceration lies in revitalizing the exercise of mercy. Yes, mercy carries the risk of arbitrariness and discrimination

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