Revitalizing clemency, at the federal and state level
A thirst for punishment and the political payoff of pushing for draconian sentencing has given the United States an unmatched incarceration crisis. Reversing it and repairing the harms it has caused requires many strategies. One crucial tool is executive clemency. President Barack Obama issued a record number of commutations, but his actions were still severely restricted by a process centralized in the Department of Justice. As was explored in a recent edition of the Daily Appeal, it is important that presidential candidates commit to revitalizing clemency.
Last month, Democratic presidential candidate Senator Amy Klobuchar laid out a plan for clemency reform, describing the criminal justice system as “broken” with “racial disparities at every level.” [Amy Klobuchar / CNN] In a piece published yesterday, Vox’s German Lopez analyzed Klobuchar’s pledge “to enact reforms within a month that could free thousands, if not tens of thousands, of people from federal prisons—and she won’t even need Congress to do it.” The proposal, Lopez writes, “would tap into one of the president’s few nearly absolute powers”: the ability to grant pardons and commutations to anyone in federal prison. [German Lopez / Vox]
Klobuchar committed to one of the primary recommendations of experts on the issue: taking the pardon process out of the Department of Justice. Significantly, Klobuchar, a former prosecutor, emphasized the importance of the clemency process not being driven by prosecutors. As Mark Osler, whose scholarship with fellow law professor Rachel Barkow informed Klobuchar’s proposal, told Lopez: “It’s hard to imagine a stronger conflict of interest than leaving the idea of clemency to the people who had asked for the sentences in the first place. … And I say that as someone who was a prosecutor.” [German Lopez / Vox]
Klobuchar’s plan targets those convicted of nonviolent drug offenses, but her staff told Lopez that she would be open to commutations for those convicted of more serious offenses, given evidence of rehabilitation. It is important that she means this. Other presidential candidates have also focused their clemency commitments on non-violent drug offenses and that is insufficient. The federal prison population is only around 12 percent of all people in prison. Although the percentage of people incarcerated on nonviolent offenses—about 50 percent— is much higher in the federal system than in the state systems, limiting serious consideration of clemency to those convicted of nonviolent drug offenses means significantly limiting any proposal’s scope. [German Lopez / Vox]
Beyond the numbers, it avoids reckoning with two important issues—decades of excessive sentences for violent crimes and the role of mercy even in cases where people have done wrong, including by wronging others.
At the state level, governors also need to be challenged to use their clemency power expansively. The Center on the Administration of Criminal Law at New York University School of Law released the first report of its State Historical Clemency Project, focused on Pennsylvania. The report is revealing about the particular political and structural factors that led to the “demise of clemency” in Pennsylvania while the state’s prisons swelled with people serving life sentences. It also sheds light on the factors that contribute to the disuse of clemency nationally and steps that can revitalize executive use of this power. [State Historical Clemency Project]
Pennsylvania is distinctive in many ways. Anyone convicted of first- or second-degree murder (including felony murder, which does not require intent to kill) faces a life sentence. And Pennsylvania is one of only five states where all life sentences are without parole. The result is that Pennsylvania has the nation’s second-highest number of people sentenced to die in prison: 5,400. (Only Florida, with twice the state population, has more.) More than two-thirds of these people are Black, in a state where Black people are only 11 percent of the population. More than half were younger than 25 when they received life sentences. [Abolitionist Law Center]
Until 1980, several dozen life sentences were commuted each year in Pennsylvania. The tough-on-crime politics of the era that followed took their toll on clemency. In 1994 things went further downhill after Reginald McFadden, whose life sentence was commuted after 25 years in prison, was arrested within days of release for two murders and a rape. The lieutenant governor, who was chairperson of the Board of Pardons and had voted in favor of McFadden’s sentence commutation, went on to lose his race for governor. [State Historical Clemency Project]
A constitutional amendment in 1997 permanently altered the process to make clemency for people serving life nearly impossible. Previously, the Board of Pardons recommended a petition for the governor to consider if a majority of its five members voted in favor. The amendment required a unanimous vote in all cases of sentence commutation for people sentenced to life or the death penalty. It also replaced the “Member of Bar” on the board with a crime victim or family member of a victim. [State Historical Clemency Project]
The results speak for themselves: “Between 1967 and 1994, over 360 life sentences were commuted. Since 1994, only 10 have been commuted.” [State Historical Clemency Project]
But recently there have been some modest positive developments.
Governor Tom Wolf, now serving his second term, has commuted four sentences since December. The board’s recommendations have also benefited from support from Philadelphia District Attorney Larry Krasner. Pennsylvania’s previous lieutenant governor was outspoken toward the end of his term about how the clemency process was “broken” and the new lieutenant governor, John Fetterman, has championed criminal justice reform. Fetterman recently appointed Brandon Flood as secretary to the board. Flood was formerly incarcerated and received a pardon from the governor in the weeks before his appointment. The board also recently eliminated its clemency application fee, leading to a spike in applications.