Good news in clemency, but far from enough
The bright spot in justice news this week was the announcement that Cyntoia Brown, serving a life sentence in Tennessee for a fatal shooting committed when she was 16, will be released in August to parole supervision, after having been incarcerated for 15 years. Governor Bill Haslam, in his announcement that he will be commuting Brown’s sentence, pointed to her youth at the time of the shooting and her many accomplishments in the time since she was sentenced. [Adam Tamburin and Anita Wadhwani / Tennessean]
Also this week, Governor Jay Inslee of Washington announced a limited initiative to pardon people with marijuana convictions. The state legalized marijuana possession in 2012 and Inslee’s office announced the measure as a way to reconcile past treatment with the current legal landscape. The process for application is, according to the governor’s office, meant to be far simpler than for pardons in general. These pardons are only available, however, to those with no other criminal convictions and to those convicted under state law, not local ordinances. Furthermore, if questioned about a criminal record, people pardoned under this initiative must say they were convicted but subsequently pardoned. [Alex Bruell / The Daily News] The governor’s office estimates that 3,500 people are eligible for the pardons. For those who are not, the regular pardon process is an option. [Jim Brunner and Asia Fields / Seattle Times]
In two roundups at the end of 2018, the Sentencing Law and Policy blog highlighted several instances of governors granting clemency. These include Governor John Hickenlooper of Colorado making the first clemency grants in his eight years in office when he commuted six sentences. The commutations included Curtis Brooks’s sentence. Brooks was sentenced to life without parole in 1997 for his participation as a 15-year-old in a robbery that left one man dead. In 2012, the Supreme Court ruled in Miller v. Alabama that mandatory life without parole sentences for children were unconstitutional, and, four years later in Montgomery v. Louisiana, that its ruling was retroactive. Following that, a new law in Colorado guaranteed new sentences of 40 years to life to most of those sentenced to mandatory life without parole and shorter sentences for those convicted of crimes committed when they were children.
Hickenlooper and Inslee have been floated as potential Democratic presidential candidates, making their clemency decisions interesting for what it reveals about their beliefs in when clemency is necessary and when it is not.
Jerry Brown, as he wrapped up his final term as governor and his long political career, became the rare governor who actually granted clemency on a scale larger than single or double digits. During his first tenure as governor, from 1975-83, Brown granted 404 pardons and a single commutation. This was fewer than his immediate predecessor, Ronald Reagan, who issued 574 pardons and 17 commutations. But after taking office in 2011, Brown issued 1,189 pardons and 152 commutations. [Bob Egelko / San Francisco Chronicle]
The reason, Brown told the San Francisco Chronicle, is twofold. First, in 1975, there were around 25,000 people incarcerated in California and 12 prisons, according to the Chronicle. By 2011, there were 173,000 serving time in prison. (That number dropped to 128,000 after a federal court order to address overcrowding in California prisons.) Second, Brown pointed to the conditions in California prisons that offer so little by way of rehabilitation. [Bob Egelko / San Francisco Chronicle]
But there has been pushback. Under California law, in cases where a person has two or more felony convictions, the state Supreme Court must, by a majority decision, approve a grant of clemency. In March, the court adopted a policy that it would not disallow a governor’s grants, unless they constituted an “abuse of power.” That policy was widely viewed as an effort to let Governor Brown know that his clemency decisions would not be second-guessed, while he prepared for a flood of applications in his final months in office. [Peter B. Collins / Mercury News]
Yet, in the past month, the court has rejected Brown’s decisions in 10 cases, marking the first time since 1930 that the court has so intervened. Writing in the Mercury News, Bay Area radio host Peter B. Collins criticizes the court’s actions, pointing out that according to its own opinion, only an abuse of discretion warrants these actions and the court failed to identify why these grants constituted that. Among the questions the court’s actions raise are: “Why…did the court overrule the governor’s pardon of Borey Ai, who won parole in 2016, and is now subject to mandatory deportation to Cambodia, the nation his parents fled before he was born? Why did the court consider Brown’s reduction of sentences—not immediate releases—for a number of second-degree murder convictions to meet the vague standard of ‘abuse of power’?” [Peter B. Collins / Mercury News]
The end-of-year flurry of activity in various states, while welcome, was simply not enough. In New York, Governor Andrew Cuomo issued only 29 clemency grants last month, focusing, as he has in the past, on those who might be otherwise be targeted for deportation. Though Cuomo’s focus on protecting those at risk of deportation is important, his clemency grants were insufficient, particularly given the fanfare with which he launched a clemency initiative in 2015. [Victoria Law / Rewire.News] Organizers with the #FreeThemNY campaign and advocates for criminalized survivors of sexual violence have also pointed out that even though the state corrections department estimates that two-thirds of women in prison are survivors, Cuomo’s clemency process has largely ignored pardons or commutations for survivors of sexual violence and abuse. [Natalie Pattillo / Pacific Standard]