Mark Osler is Putting the Soul Back into the Constitution

“A narrative is like a room on whose walls a number of false doors have been painted; while within the narrative, we have many apparent choices of exit, but when the author leads us to one particular door, we know it is the right one because it opens.”

~ John Updike

It comes as no surprise to some that our current federal clemency system is utterly and completely broken. As I type this, nearly 14,000 clemency petitions are waiting to be read, each one attached to a real human being who has followed directions, assembled the necessary documents, and who waits, sometimes for years, to hear if they might one day be free.

In fact, a federal prisoner filing a clemency with The Justice Department is almost like tossing it into a black hole. And there is no right to an attorney at that stage, leaving prisoners floundering in a feabile attempt to articulate a compelling case for clemency.  

But there is a man who is trying to revolutionized the broken clemency process: Mark Osler.

While there have been many advocates for clemency reform to come forward over the years, one man may have actually found the silver bullet and is now teaching young law students how they can use this silver bullet to assist those inmates serving life sentences for non-violent drug offenses.

Mark Osler, a lawyer and professor at the University of St. Thomas, has been called by many a “brilliant narrator.” In fact, in a recent interview, one of his law students explained how Osler is teaching his students about the power of narrative to shape a clemency petition and the opinions of those who read them. “He’s incredibly gifted at taking the facts of the case and finding the thread that is effective in persuading the decision-maker that this person deserves mercy.”

And that’s what Osler’s years of advocacy for clemency reform have all been about: the principles of human dignity. 

A Shocking Abuse of Presidential Power

Osler has been working diligently over the past decade to bring awareness of the need for judicial reform to the forefront. His writings on clemency and narcotics policy have appeared in the New York Times, the Washington Post, the Atlantic, and in law journals at Harvard, Stanford, the University of Chicago, Northwestern, Georgetown, Ohio State, UNC, William and Mary and Rutgers. Osler also authored a new casebook in 2018 called “Contemporary Criminal Law.”

Senior U.S. District Judge Mark Bennett, with whom Osler has collaborated on several pieces, said Osler’s “DNA and fingerprints are all over” the current push for presidential sentence commutations. “Mark has done more to urge a national movement for clemency and push the [Obama] administration than anybody I’m aware of in the United States,” Bennett said.

But there was a time when Osler was on the other side of this issue. After graduating from Yale law School and joining the Department of Justice, Osler found himself prosecuting low-level drug offenders. The long sentences that were often handed out troubled him greatly. Some defendants are still in prison “because I put them there,” Osler has stated publicly.

The idea of getting involved in clemency reform first came to Osler about the time he was leaving the DOJ to begin his new life in academia at Baylor Law School. Having worked under President Clinton for years, Osler was dismayed when, on Clinton’s last day in office, he issued a pardon to fugitive financier Marc Rich. It turns out Rich’s wife had made large donations to Clinton’s campaigns and to the Clinton Library. Even the New York Times called it “a shocking abuse of presidential power.”

“It was granting privilege to the privileged, and so much of what we had been doing was impoverishing the impoverished,” Osler remembered.

And from that moment on, things changed for Osler. He began advocating for prisoners who had been handed harsh sentences for non-violent drug offenses. Soon, Osler won the landmark Spears v. United States decision in the U.S. Supreme Court, which gave judges the ability to reject the cruel 100-to-1 sentencing ratio for crack versus powder cocaine. 

Before leaving Baylor, Osler took on the unjust prosecution in Texas of people accused of drug crimes, a story which was later depicted in the film “American Violet.”

From these experiences, a novel idea was born…

Moving the Boulder

After leaving Baylor, Osler came to the University of St. Thomas and established the first-in-the-nation clemency clinic, where his students would spend time sorting through requests from prisoners, choosing which to represent. It’s a bit like Sophie’s Choice: who goes free, who doesn’t. But Osler wants his students to know the agonizing decisions many legal aid attorneys are faced with on a daily basis. He and his students also often discuss clemency news and historically significant events, including history they themselves have made.

“Because they are part of moving that boulder, they see the ability to change things,” Osler has said. And change things they are doing. In 2016, Osler and some of his students at the time received word that six of the clients whose cases they had worked on during their time in the clemency clinic were going to be released from prison. 

Besides his own clemency clinic, Osler has also helped to install additional clinics, or at least clemency efforts, in other law schools, including Harvard. The work Osler is doing with law students cannot be overemphasized. He’s not just teaching hopeful young lawyers the nuts and bolts of the federal sentencing process in this country; he’s showing them how to immerse themselves in their clients’ stories so they can craft a narrative that persuades minds and hearts. 

Showing Mercy

At the end of the day, Osler is working tirelessly not just to reform an unjust system, but to change the way those in charge think about the human beings behind bars. Back in 2016, as Osler addressed a room full of Obama administration officials, attorneys, and human rights activists at a White House press conference, he made a striking point by holding up a 1,700-year-old Roman coin bearing the image of the goddess of mercy. Osler said, “What this means is that, millennia ago, clemency – mercy – wasn’t just a personal value we were supposed to show to each other. It was supposed to be part of the state, part of the government, part of justice, part of what identified the entire society.”

While nearly 2000 prisoners had had their sentences commuted during the Obama administration, Osler was very vocal about the fact that it wasn’t enough. For every prisoner that is freed, there are literally thousands of others whose sentences do not fit their crimes, and who will rot in jail. 

For Osler, it’s not a numbers game so much as it is a need for a return to human dignity. His efforts, and the efforts of his clemency clinic students, are really about one thing, “We’re putting that piece of the soul back in the Constitution of the United States.”

The Dream Team

Mark Osler gets it. He sees the human side of the criminal justice system. He's part of my criminal justice warriors dream team, outliers who are shaking up the status quo: Miangel Cody, Brittany K. Barnett, Jessica Jackson, Amy Povah, and Kim Kardashian. He's the only man who made it. Sorry men. 

A Man of God

It's one thing to profess Christianity. But it's another matter entirely to live it. Mark practically applies the biblical principles of compassion and mercy and helping the weak, devoting much of his life to unraveling injustice. His career isn't as much about the law as it is about justice. I cannot overstate how profound and rare this is, as most people in law are callous and impervious to the human toll.

As one article states, "Professor Mark Osler was named the Ruthie E. Mattox Chair of Preaching at First Covenant Church in Minneapolis on July 8. He will preach a few times a year at the historic church, which sits at 810 S. 7th St. in downtown Minneapolis, across the street from the Minnesota Vikings stadium."

The article goes on to detail that "[t]he chair was named for Ruthie E. Mattox, a lifelong member of the church who has dedicated her life to humanitarian work. The chair is appointed to an individual who has demonstrated a commitment to bridging their Christian faith to real life and doing so courageously on behalf of others."

What's more, “Osler’s position with the church is a complement to his legal and academic work, and to the mission of the University of St. Thomas School of Law, which is dedicated to integrating faith and reason in the search for truth through a focus on morality and social justice."

It's safe to say that Mark Osler practices what he preaches.  There's a thought: apply biblical principles to administering justice.