Presidential Hopefuls Should Pledge to Roll Back Mass Incarceration Using Clemency

This is the fourth installment in the series The Contenders 2020: Criminal Justice in the Race for President. It was published as part of the Feb. 28 Daily Appeal . 

This week, a group including advocates, professors, a former judge, and Alice Johnson––the grandmother whose prison sentence was commuted by President Trump last year––wrote a letter to the president. In it, they praise Trump for signing the First Step Act, but note that it “primarily addresses future sentencing,” and “does little to correct the unjust nature of past sentences that have left many behind bars for far longer than their crimes warranted.” They urge the president to make “full use of the pardon power for as many deserving individuals as possible … by reforming the structure of the federal clemency process.”

The authors urge Trump “to make lasting reforms to the clemency process by removing its administration from the Department of Justice.” There is no law that requires that clemency be overseen by the DOJ. “The Constitution grants the clemency power solely to the president,” they write. “While DOJ should be able to comment on clemency petitions, there is an obvious conflict of interest when the same agency responsible for prosecuting individuals is asked to supervise their petitions for clemency.”

But for any president serious about criminal justice reform, taking the clemency process away from the agency that prosecuted the cases is only a starting point. All presidential candidates looking to prove their criminal justice bona fides should commit to a robust and consistent clemency practice that works to bring our prison population in line with current approaches, away from the discredited, tough-on-crime thinking of the 1990s.

“Many will be uncomfortable with the thought of such an untamed thing within our system of criminal justice,” writes professor Mark Osler, one of the letter’s authors, in a separate essay published this week. But this is what the Constitution contemplates: The “fear in creating presidential powers was tyranny, but clemency is uniquely ill-suited to the purposes of a tyrant.” He argues that “we must embrace” clemency as a “tool of mercy,” which “requires a more consistent and committed public attention than we have given it.” Until the 1980s, many presidents granted clemency throughout their terms, and often generously. Alexander Hamilton argued that without a way to pardon people, “justice would wear a countenance too sanguinary and cruel.”

George Washington set an example of mercy when, after quelling the Whiskey Rebellion, he pardoned its two leaders who had been convicted of treason and sentenced to death. In his seventh address to Congress in 1795, Washington said, “the misled have abandoned their errors, and pay the respect to our Constitution and laws, [and] these circumstances have induced me to pardon … . For though I shall always think it a sacred duty to exercise with firmness and energy the constitutional powers with which I am vested, yet it appears to me no less consistent with the public good than it is with my personal feelings to mingle in the operations of Government every degree of moderation and tenderness which the national justice, dignity, and safety may permit.”

Osler and law professor Rachel Barkow of New York University have put together a list of clemency reforms they want to see from presidential candidates:

1. Have a plan to fix the clemency process by removing the process from Department of Justice prosecutors and instead creating a bipartisan and diverse clemency advisory board.

2. Make a pledge to use the presidential pardon power to grant commutations to those serving excess sentences, including:

• • those serving sentences that would not be given today because of changes in the First Step Act;

  • those serving decades-long sentences for drug offenses;

  • those who played lesser roles in the offense but received lengthy sentences because of conspiracy laws;

  • those penalized by prosecutors for refusing to plead guilty;

  • those who have shown exceptional rehabilitation while incarcerated;

  • parents of young children who played a major caregiving role before incarceration.

4. Pledge to grant pardons to those who have shown rehabilitation to ease their re-entry and limit the collateral consequences of their convictions

5. Place a special focus on those serving sentences for marijuana distribution, given that it’s been legalized in so many places.

Ramping up clemency is something that governors should be promising in their campaigns as well. Even progressive governors often dole out a handful of commutations and pardons toward the end of their terms. That is insufficient. “Executives should consider using commutation in a broad, sweeping manner to remedy some of the extremes of the punitive turn that led to mass incarceration,” according to the Prison Policy Initiative. “Many executives have the power to shorten the sentences of large numbers of incarcerated individuals or to release them altogether.” Even without comprehensive data on the exact numbers, it is clear that commutation is used far less today than in the past. The Prison Policy Initiative suggests “following the unique strategies of President Gerald Ford, who granted clemency to tens of thousands of men for evading the Vietnam War.”

Clemency decisions are usually made by governors, sometimes in conjunction with a board appointed by the governor. In Oklahoma, which recently overtook Louisiana as the nation’s top incarcerator, the pardon and parole board has recently had a change of attitude. Board members received training on how best to use the hearing time, focusing on current decisions more than past ones. The board’s “job is to consider where a person is at, what they have been doing while incarcerated, what their plans are for successful community integration… and what resources they will need to move forward positively,” said former Oklahoma House Speaker Kris Steele, who is now on the board. It has made a difference. In fiscal year 2017, only 16 commutations were granted, an approval rate of less than half of 1 percent. The following year, 19 applications were granted. But already in the current fiscal year, 106 commutations have been approved—an increase of 563 percent. “We are beginning to understand and make better decisions based on facts, data and research rather than emotion, fear and anger,” Steele said.