President Obama’s recent announcement that he would commute the sentences of 95 federal prisoners and fully pardon two others is welcome news. So is a holiday press release from New York Governor Andrew Cuomo, who has hitherto been miserly with clemency, but will pardon nonviolent offenses committed by 16 and 17 year olds (who will continue to be automatically tried as adults, a harshness almost unique among the fifty states). But we should see these gestures for what they are: small trickles of clemency where what is demanded is a rushing, roaring pipeline scaled to the globally unprecedented size of our prison population and incarceration rate. We need industrial-scale clemency. Here is why and how.
You’ve probably heard the statistic too many times already: we are 5 percent of the world’s population but home to 25 percent of its prisoners. The land of the free has for decades now been the world’s greatest incarcerator, in both rate and absolute numbers, more likely to lock people up than authoritarian states like China, Russia, Cuba, Egypt, or Iran.
At the federal level—which only accounts for about 12 percent of U.S. prisoners—mild sentencing reform has both bipartisan support and bipartisan resistance in the Senate. Looking to the states, a much hyped “moment” of criminal-justice reform is more than countervailed by the deeply ingrained punitive habits of governors and legislatures across the land, from Massachusetts, whose liberal governor signed a tough “three strikes” law in 2012, to Louisiana, where Bobby Jindal upped penalties for heroin-related offenses.
Whether we admit it or not, we are in quite a spot: our hyper-incarceration is unprecedented in U.S. history. Rectifying this will require changes in policing, a cutting back of what we criminalize, and serious revision of our sentences, which far outstrip their deterrent value. Another part of the solution will have to be clemency on a massive scale: pardons, which all but expunge a criminal record; commutations, which shorten a prison sentence; parole; geriatric and compassionate release; and retroactive sentencing reform.
As of this writing, Obama has issued more commutations than any other president since Lyndon Johnson. But the supply of imprisoned Americans is orders of magnitude greater than it was in Johnson’s day, and Obama has only granted pardons or commutations at the exceedingly stingy rate of one out of 136, in line with the steep plummet in clemency since World War II. The Department of Justice has promised to routinize clemency, issuing new guidelines for nonviolent offenders who have served 10 years already, but the results so far have been bonsai-scaled in comparison to the magnitude of the federal prison population. (One former DOJ attorney, Margaret Colgate Love, has recently questioned the agency’s ability to process clemency effectively given the hardwired structural incentives against mercy in an agency staffed mostly by prosecutors.)
There is more clemency potential in retroactive sentencing reforms, like the “drugs minus two” policy established by the U.S. Sentencing Commission in July of 2014, which bumps nonviolent drug offenders down two levels in the federal sentencing guidelines, reducing federal drug penalties by an average of two years. Twenty-four months is not nothing, but this still leaves federal sentences for nonviolent drug offenses much longer than in most other first-world nations. After a year of processing claims—some 46,000 federal prisoners will be eligible to file for relief, though so far judges have denied one-fourth of all applicants—inmates are starting to trickle out early from federal prisons, with 6,000 released in November and more to come. (“Has Obama set loose a new Willie Horton?” asked a Politico headline in response, an indicator of the lip-smacking media panic around even the mildest reform efforts.) Overall, this reform could reduce the number of federal inmates by a few percentage points but probably not more. A new Senate sentencing reform bill also promises some retroactive sentencing relief, with results likely to be similarly meager.
So much for Washington, which despite much misty-eyed self-congratulation has not shown itself up to the task of scaling back our prison state. Washington’s timidity means less than it first appears however: despite lazy media focus on the federal justice system, the real action is at the state level, which handles most policing, sentencing, and imprisoning.
Alas, here too the general trend has been towards greater stinginess with clemency. Take the example of Minnesota, a state that has, by U.S. standards, a low incarceration rate and arguably the most humane penal system in the country, with perhaps more in common with Denmark and Germany than with Texas and Louisiana. Yet it says something that Mark Dayton, one of the most progressive governors in the country, has a more merciless default setting than virtually all of his executive predecessors from the mid-20th century. Minnesota used to grant pardons and commutations by the barrelful: from 1940-89, the state granted 741 commutations and nearly 90 percent of all pardon applications.
Minnesota’s clemency process began to tighten in the 1970s, only to be choked off further in the 1980s. From 2000-10, the number of pardons plummeted. In the past quarter-century, Minnesota has not issued a single commutation.
The barriers to mercy are dug deeply into American politics and intellectual culture. At the same time there is a rich tradition of clemency in this country, which can and should be tapped into.
In the United States, our civic religion is the Rule of Law—we have no monarchy, and we are less tribalist than more ethnically and religiously homogeneous nation-states. Instead the highest symbol of our nation is a legal document, with its own legalistic cult and rituals. To be sure, the rule of law is in many ways an ideal of rational order and equality without favoritism. But a spillover effect is the tendency to treat all legal codes as if they were handed down from Mount Sinai, no matter how unreasonable or cruel they may be.
Devotion to the Rule of Law has an ugly side in resentment of executive acts of mercy, at the level of practice and high theory. Immanuel Kant, often thought of as a Birkenstock-wearing human-rights guy, was one of the most vicious retributivists in the history of moral philosophy, an implacable opponent of royal clemency. In 1764, Milanese philosophe Cesare Beccaria argued that the same crimes must carry the same punishment regardless of the perpetrator’s rank or station, no exceptions—a radical proposition for its time. This sounds unobjectionable, but this Enlightenment universalism has had harsh ramifications in the American context where, combined with Puritan moral panics and the authoritarian heritage of slavery and Jim Crow, it has frequently made for a justice system with a tendency to degrade and “level down” to an egalitarian level of misery.
Overall, the thrust of American legalism militates against executive clemency, which seems to many a kind of short circuit, a deus ex machina, an insult to the rule of law, smelling of elitism and monarchical whims. When Republican Governor George Ryan of Illinois commuted the state’s death-row inmates to serving life sentences in 2003, his act was condemned not just by the drive-time angry brigade but by tweedy law profs who saw it as a coup d’état against the principles of law itself. (And it has to be said, occasionally this image of executive mercy as sleazy end-run around the justice system is correct: think of Bill Clinton granting a full pardon to felonious oil trader Marc Rich, whose ex-wife had been a major Democratic fundraiser.)
But in the face of this hostility to the pardon power there is a great counter-tradition of American clemency. At the founding of the country, executive power was seen not as a violation of our self-image as a “nation of laws not men” but as a necessary and healthily legitimate part of any popular government. As Hamilton wrote in Federalist 74: “the benign prerogative of pardoning should be as little as possible fettered.” Without pardon power, “justice would wear a countenance too sanguinary and cruel.” Justice John Marshall also upheld clemency as “an act of grace, proceeding from the power entrusted with the execution of the laws.” (It is very hard to not lapse into religious language when discussing the pardon power.)
U.S. history turns out to be generously littered with acts of mass clemency. In the 1930s, Mississippi Governor Mike Conner went to Parchman Farm, the state penitentiary, and held impromptu “mercy courts” that freed dozens of African-American prisoners, in an act that entered national folklore—as did Texas Governor Pat Neff’s pardon in 1925 of Huddie “Lead Belly” Ledbetter, who issued his clemency request in song. In the 20th century, Governors Lee Cruce of Oklahoma, Winthrop Rockefeller of Arkansas, and Toney Anaya of New Mexico all commuted their states’ death rows down to zero upon leaving office.
Among presidents, according to political scientist P.S. Ruckman Jr’s excellent blog Pardon Power, Abraham Lincoln granted clemency every single month of his administration as an act of mercy and a canny political strategy. Woodrow Wilson, though a teetotaler himself, pardoned hundreds convicted of booze-related infractions to signal his disapproval of Prohibition. (Many of these examples are drawn from Marie Gottschalk’s new book Caught: The Prison State and the Lockdown of American Politics, the best single-volume overview of the ongoing crisis in American criminal justice.)
Today, even as clashing currents push at the same time for greater mercy and greater harshness, an affinity for the pardon power has trespassed wantonly over the country’s regional, ideological, and partisan divides. Recent governors who have pardoned and commuted with magnanimity include Arkansas Republican Mike Huckabee (1,058 pardons in his 10 years in office), California Democrat Jerry Brown (83 pardons on last Easter Sunday alone) and Michigan Democrat Jennifer Granholm (182 commutations in her two terms). Haley Barbour pardoned 203 prisoners at the end of his second term as the Republican governor of Mississippi, an act that briefly became a national non-scandal eagerly covered by the national media sniffing around for gotchas. (Thank you, o “liberal” media.)
Barbour’s immediate predecessor had issued one single pardon; his successor strangled the clemency process with new restrictions. And other recent governors have distinguished themselves with their appalling miserliness: Texas Republican Rick Perry appointed a clemency board of tough-on-crime hardcases, then rejected two-thirds of their pardon and commutation endorsements. Deval Patrick, two-term Democratic governor of Massachusetts, issued a total of four pardons and one commutation—the first in 17 years for that state, washed down with new clemency guidelines designed to streamline the process for future executives. But even this meager step was too much for his moderate GOP successor, Charlie Baker, who upon taking office moved to undo the guidelines. Wisconsin Republican Scott Walker hasn’t issued a single pardon or commutation, and New York Democrat Andrew Cuomo is scarcely less tightfisted.
Even surprising and hopeful developments in state-level clemency can go belly-up with the slightest change in the political climate. In 2014’s gubernatorial race in Maryland, Republican Larry Hogan campaigned on using his executive clemency more generously than his opponent would. This embrace of the pardon power, and from a Republican, was an exciting indicator not just for Maryland but for the national future of clemency. In his first year in office Hogan has granted no pardons or commutations—will he follow through on his gutsy pledge? Or will he, terrified by minor rioting in Baltimore and a decidedly non-minor homicide spike in that city, revert to the law-and-order tough talk that has marked GOP and much Democratic politicking for nearly half a century?
Reversing course on hyper-incarceration and clemency will be a generational project, and an Augean one at that. Judges and prosecutors are not the most self-effacing career group, and many would sooner eat their Civil Procedure books than admit error. Even with DNA evidence and a verified confession exonerating the five youths convicted of raping and assaulting the “Central Park jogger” in 1989, former prosecutor Linda Fairstein still insists she got the right culprits. But for most people, clemency in cases of judicial and prosecutorial error is a no brainer: the law’s finality should not come at the expense of justice.
The type of clemency we need today, however, is to remedy a problem several orders of magnitude larger, admitting not legal or judicial error but political or legislative disaster. A rushing, roaring clemency pipeline would be an explicit recognition that the various state and federal tough-on-crime policies, virtually all of which passed with broad bipartisan support, were dead wrong.
There is plenty of blame to pass around here. The legislative confiscation of judicial discretion in sentencing was initially supported by the left as a way of preventing judges from imposing their class and race prejudices on convicts. But be careful of what you wish for: the mandatory minimums were not a lenient leveling down but a draconian increase in sentence length across the board. Federal parole has essentially been abolished, and across the 50 states, “truth in sentencing” laws have restricted if not eradicated parole. (For most of the 20th century, “life” sentences really meant a sentence of less than 15 years; even in hardline Louisiana, lifers were customarily released after 10 years and six months until the 1970s, though this is when parole was seen not as an existential threat to society but rather as a normal and healthy part of the Rule of Law.) Repeat-offender “three strikes” laws have lengthened sentences for many petty crimes, resulting in brutal grotesqueries like a life sentence for shoplifting three belts from a department store.
Obama’s Department of Justice has loosened the mandatory sentencing criteria imposed on federal judges—but again, federal cases only account for one-eighth of the nation’s total prisoners.
Our criminal justice system is the most politicized in the industrialized world: can this defect be exploited to work in favor of clemency? Dreamers like to imagine that fiscal pressures will by themselves reform criminal justice, but this is to ignore history: the expansion of our prison population began in a time of austerity, the 1970s. It is also to ignore economic facts: the average cost of maintaining a prisoner is typically much higher than the marginal cost. Only by shrinking the incarcerated population enough to shut down entire prisons can any significant savings be realized.
Our incarcerated population is also aging rapidly, and though older prisoners have far lower recidivism rates, few states are availing themselves of geriatric release. For instance, Virginia in 2012 granted geriatric release to less than 1 percent of about 800 prisoners eligible, according to the state parole board. Meanwhile, as the Virginian Pilot reported, “during the same period, 84 inmates died in state prisons.” Running high-security nursing homes is neither compassionate nor fiscally sound—another reason to restore and expand clemency.
What is needed is a restoration of the kind of clemency that was once the everyday norm in this country, expanded to meet the needs of our enormous 21st-century prison population. There will surely be stentorian howling that industrial-scale clemency is the invasive hand of overweening government power. These fault-finders ought to be reminded that our incarceration regime is on a scale rarely seen in human history: our only competitors are third-century BC “legalist” China; the late, off-the-rails Roman Empire; and the Soviet Union from 1930-55. Routinized clemency on a grand scale will be necessary to tame this beast.
To say that mass incarceration is an issue best addressed by the legislature, not by the executive, is theoretically correct. But procedural rectitude should not be taken to the point of sadism, ignoring the tens of thousands of harshly sentenced prisoners who are already stuck halfway through the penal snake’s digestive tract. Besides, this would hardly be the first time that elected officials have used the pardon power as a tool to alter policy. To give one more glorious example, on Christmas Day in 1912, Governor George Donaghey of Arkansas pardoned 360 state prisoners as a condemnation of the state’s brutal and corrupt “convict leasing” system, making national headlines and dealing a death blow to the corrupt practice.
The time is as ripe as it will ever be for industrial-scale clemency. Even with an 11 percent average increase in homicides in big American cities for 2015 so far (bringing the nation back to 2012 murder levels), violent crime is as low as it’s been since the early 1960s. (By the way, killings of on-duty law enforcement officers in 2015 are, contrary to the claims of a “Ferguson Effect,” down from the year before.) The conventional wisdom on criminal-justice reform is rapidly shifting: it would be too much to say that this has become new “common sense” for the millions of Americans who do not read magazine think pieces, but the emerging intellectual consensus would not have been imaginable five years ago.
One expert on clemency I consulted whose voice needs to be heard is Jason Hernandez, a Texan whose life sentence was commuted in 2013 by Obama. Hernandez was one of over 3,000 Americans sentenced to life without chance of parole for a nonviolent crime. When I talked to Hernandez, he unsurprisingly had nice things to say about the fledgling revival of American clemency, and he was not persuaded by proceduralist carping that that clemency taints our legal system by introducing inconsistency. After all, Hernandez observed, our drug laws are hardly enforced consistently across this country’s class and ethnic landscape.
He has a point: the most rigorous studies show that between 60 percent and 80 percent of the racial disparity in incarceration is accounted for by offending patterns. These studies do not quite back up the dominant left-of-center view that interprets American penal overkill almost exclusively through the lens of race. But this finding still leaves 20 percent to 40 percent of the immense racial disparities in our penal system as stemming from prejudices that accumulate from arrest to sentencing to parole hearing, and that is substantial.
Hernandez was given his life sentence for selling crack cocaine in part because federal law mandated a much harsher sentence for crack than for powder cocaine from which it is made, a differential with stark racial consequences. (This disparity was in 2010 narrowed from 100-to-1 to 18-to-1.) Hernandez’s supplier, though a bigger wheel in the drug trade, got a sentence of 12 years, as he was providing just the powder.
Hernandez is a realist. “I’ll be honest with you. There are a few people in prison who deserve to be there—but that being said, I met some of the finest people I’ve ever met in my life inside. They made a bad decision. Something needs to be done, and even a lot of Republicans are now reckoning with this problem.” Hernandez now works two jobs, as a welder and a restaurant cook, in the Dallas area and is a persuasive media voice for increased clemency.
How we proceed with clemency is not just about how we treat thousands of prisoners like Jason Hernandez, it is about how we treat ourselves. According to Shakespeare’s most famous courtroom speech, mercy “blesseth him that gives and him that takes: ‘Tis mightiest in the mightiest: it becomes the throned monarch better than his crown.” With an expansion of the pardon power, we have the opportunity to rule ourselves as monarchs, with all the magnanimity and grace that implies. Or we can remain a nation of vindictive jailers that lectures the rest of the world about freedom.
Chase Madar is an attorney in New York and the author of The Passion of Bradley Manning: The Story Behind the Wikileaks Whistleblower.