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North Carolina’s Clemency Process is a ‘Black Box,’ Advocates Say

Even with the recent creation of the Juvenile Sentence Review Board, the governor’s process for granting clemency remains unclear.

Governor Roy Cooper.Photo by Peter Zay/Getty Images

“One of the things about being imprisoned as a juvenile is that you don’t get to mature in a context where you get to be a kid,” Chris Jacobs said. In 1995, when Jacobs was 16, he was convicted of armed robbery and first-degree murder and received a life sentence that carried with it no opportunity for parole. “Your youth is lost to yourself and to society. Because you are treated like an adult, you have to act like an adult.” Now, at 42, Jacobs has spent more years of his life incarcerated than not.

But in the 26 years since he committed his crime, he says he has transformed from the kid he was into an engaged member of his community: He is in his senior year of a bachelor’s degree in pastoral ministry and crisis counseling with a 4.0 GPA. He tutors his peers and works as a writing consultant. He belongs to many clubs within the prison. Last year, he got engaged to his girlfriend.

“Nothing I’ve said is meant to diminish my personal culpability or the degree to how wrong my crime was,” Jacobs said. “But I wish we had a more restorative focus. And that people incarcerated were viewed as citizens whose participation in society has been interrupted, and we are going to take the necessary steps to rehabilitate them and welcome them back when they are prepared to do so.”

In North Carolina, Jacobs is one of 94 individuals who have been sentenced to life without parole for crimes they committed as children.* In April, Governor Roy Cooper signed an executive order, which created an advisory board to review the sentences of those charged as children in criminal court. The review board was formed under the recommendation of the governor’s Task Force for Racial Equity in Criminal Justice. Now, incarcerated individuals like Jacobs, who previously had little hope of ever leaving prison, are being given a chance to have their sentences reviewed and possibly receive clemency.

The executive order comes on the heels of pressure from a coalition of activists who stood vigil outside of the governor’s mansion last year to demand that he use clemency to decarcerate individuals imprisoned by the state. At the beginning of the 58-day vigil, despite having the authority to do so, Cooper had not yet granted any clemencies during his first term as governor––and was on track to be the first North Carolina governor in more than four decades to not grant clemencies.

Cooper has since granted pardons of innocence to six men who were wrongfully convicted.

However, even with the recent creation of the review board focused on juvenile sentencing, it has been difficult for advocates of reform to learn more about how and whether Cooper plans to use his clemency power, and what that process might look like.

“The clemency process in North Carolina is a black box,” said Jamie Lau, a professor of law at Duke University and supervising attorney at the school’s Wrongful Convictions Clinic. According to Lau, Cooper’s office does not make public the list of people who are seeking clemency—a change from prior administrations. Further, it has also been difficult to obtain any information about the considerations or processes of how the governor might decide who receives clemency.

Lau hopes that the new Juvenile Sentence Review Board could offer a more systematic and defined process for cases to be reviewed, especially in light of more contemporary understandings of adolescent brain development.

“The risk-taking that occurs by juveniles is not necessarily a result of some irreparable corruption, as the court did call it, but oftentimes, immaturity, because they don’t have a fully formed prefrontal cortex that regulates decision making and helps improve judgment,” Lau said.

In the last decade, Supreme Court decisions like Miller v. Alabama and Montgomery v. Louisiana have challenged juvenile life without parole by using similar developmental arguments. But Lau and others also say that sentencing review boards like this are necessary also to address the racism of the criminal legal system. “The governor has enormous power to immediately reduce some of the disparities in the criminal justice system,” Lau said. “The quickest way to address them is not through a task force, not through new legislation, but through taking action through your clemency power.”

According to Ben Finholt, director of the Just Sentencing Project at North Carolina Prisoner Legal Services, approximately 1,000 people were incarcerated in North Carolina as of last fall for crimes they committed as children. Over 80 percent of those incarcerated are people of color, and most are not eligible for parole—though the new juvenile sentencing review board could change that.

“This was an attempt to address the number of kids we’ve got in prison, and the number of kids of color we have in prison, in particular, and the fact that they serve pretty long sentences—much longer on average than white kids do,” Finholt said.

Finholt played a key role in the establishment of this new sentencing review board, and hopes that the board will begin to rectify what he sees as deeply dysfunctional juvenile and parole systems in North Carolina.

“The juvenile justice system in North Carolina is worse than everywhere in the country,” Finholt said.“You can go into court as a 6-year-old in North Carolina. The age of jurisdiction for criminal court in North Carolina for juvenile matters is 6. We have sentenced multiple 13-year-olds to long sentences, including a 13-year-old who got sentenced to life.”

Even if someone is eligible for parole, the process is difficult to navigate. In 2015, a federal court found the parole process for people convicted as children in North Carolina to be unconstitutional. Many commissioners are responsible for upwards of 90 parole decisions each day because the state requires post-release supervision of the vast majority of people convicted of felonies, which means each application may not get much time for review. Now, the parole commission is required to, at least, have a video meeting with all people convicted as children, but the process remains opaque to those seeking parole, according to Finholt.

Cooper’s executive order coincides with a legislative push to consider eliminating life without parole sentences for those who are convicted as children. In a recent meeting on the bill, a member of the North Carolina Conference of District Attorneys read aloud the grisly details of a murder committed by a child over 10 years ago in a testimony opposing the bill.

“I am always struck by the willingness to let the exceptions to the rule drive policy,” Finholt said. “We have to say we’re not going to make this a hopeless situation for people. We’re not going to let the worst folks drive policy. We’re going to practice what we preach when it comes to forgiveness and rehabilitation. Because otherwise it’s just a totally broken system.”

*Correction: An earlier version of this article misstated the number of people in North Carolina who have been sentenced to life without parole for crimes they committed as children.