The Pandemic Spurred Governors to Grant Clemency, But Advocates Say It Isn’t Enough

Originally published in The Appeal on May 24, 2021.
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As the COVID-19 pandemic began last year, advocates pushing for the release of incarcerated people to contain the disease’s spread in prisons led to U.S. governors—especially Democrats—facing new pressures to use their executive clemency power to commute sentences.

Although specific clemency powers vary from state to state, governors hold immense sway over the fate of the 1.3 million incarcerated individuals held in state prisons. Hundreds of thousands of these people have been incarcerated over the last several decades as a result of America’s tough-on-crime sentencing policies and many of them are ineligible for parole. Even among states that have eased sentencing rules in the last few years, many have not made their reforms retroactive.

Advocates in Oregon have been pushing their Democratic governor, Kate Brown, to use her clemency powers to commute sentences. Measure 11, a mandatory-minimum sentencing statute that lawmakers passed in 1994, has fueled the state’s incarceration crisis. Nearly half of the state’s 12,000 prisoners were sentenced under the statute—and those who remain in prison are left with little hope for release outside of the governor’s discretion. Even subsequent reforms to Measure 11, like a bill that Brown signed in 2019, have not been retroactive

During the first six months of the pandemic, Brown commuted the sentences of at least 123 people, including 10 who were medically vulnerable to COVID-19. But she denied many other requests.

Some advocates feel Brown has been too cautious in releasing prisoners en masse during the pandemic. “She was very, very completely rigid about it, I think she decided it wasn’t politically feasible,” said Tara Herivel, an attorney in Portland who has been assisting with hundreds of habeas corpus cases during the pandemic. “It takes a bold governor to release people … and she didn’t find it important to be.”

A spokesperson for the governor did not respond to requests for comment. But as The Appeal previously reported, Brown granted 20 pardons, approved six conditional commutations and denied 240 commutation applications between July 1, 2015, and Feb. 14, 2020. Three other applications were closed during that period because the applicants died. 

Aliza Kaplan, who directs the Criminal Justice Reform Clinic at Lewis & Clark Law School in Portland, told The Appeal she believes Brown should be credited for using her clemency powers over the years and that the pandemic helped create some new urgency within Brown’s office. One challenge, Kaplan notes, is that clemency is now viewed less as a tool for forgiveness and rehabilitation. “Governors have become afraid of using their power because of politics, but that’s never what the clemency power was intended for,” she said.

In Illinois, governors have virtually unfettered power to commute sentences, and they can issue mass clemency orders. In 2003, as he was leaving office, Republican Governor George Ryan used his clemency powers to commute the sentences of all 167 people on Illinois’s death row. In 2019, the current governor, J.B. Pritzker, a Democrat, pardoned over 11,000 people with low-level marijuana convictions one day before a state law legalizing marijuana, including retroactively, was set to take effect.

Although Pritzker issued thousands of pardons during that year, his first in office, he commuted just three sentences, according to A Bridge Forward, a Chicago-based law firm that represents those seeking to clear their criminal records. (A spokesperson for the governor did not respond to requests for comment on clemency statistics.) But Pritzker ramped it up in 2020, granting at least 38 commutation requests, and dismissed objections from Senate Republicans. 

“I think COVID was not the overriding reason, but it did get the governor to take a serious look at people who were petitioning for commutation and he has been willing to make decisions that don’t necessarily make everyone happy,” said Ina Silvergleid, the founder of A Bridge Forward.

In Louisiana, advocates are also hoping Democratic Governor John Bel Edwards uses his clemency powers to try to correct for decades of overly harsh sentencing in a state with one of the nation’s highest rates of incarceration and people serving life without parole.

Edwards, who ran for office on a platform of criminal justice reform, also issued commutations during the pandemic. He commuted the sentences of 36 people in 2020, more than the 34 he extended in his entire first term. (Edwards’s Republican predecessor, Bobby Jindal, granted just three commutations over his eight years in office, and ignored roughly 700 clemency recommendations from the state’s Pardons and Parole board.)

“Clemency is something the governor takes very seriously,” said Edwards spokesperson Shauna Sanford, adding that he granted 279 commutations and pardons between Oct. 10, 2016, and March 9, 2021.

“He’s signed more than his predecessor but at a rate that we’d like to see increase,” said Kerry Myers, the deputy director of Louisiana Parole Project, which provides legal representation and residential re-entry services to parole eligible persons sentenced to life. There is precedent in Louisiana for issuing commutations at a faster clip: Throughout his first two terms in office between 1972 and 1980, Democratic Governor Edwin Edwards signed 945 commutations, and another 335 during his non-consecutive third term.

Just 5 percent of the roughly 4,600 people sentenced to life in Louisiana are eligible for parole, according to the Sentencing Project—meaning commutations or pardons are the only hope of release for the remaining 95 percent of incarcerated people.

But Myers agrees with Kaplan, from the Criminal Justice Reform Clinic, that politics is one hurdle slowing commutations. “We have a Democratic governor and a Republican attorney general with gubernatorial aspirations,” he said. “If Edwards starts signing large quantities of commutations at once, we know his opponents will make it a political issue, even if public safety is not a factor.”

In California too, advocates suspect fear of political backlash has slowed the number of commutations granted by Democratic Governor Gavin Newsom. Danella Debel, a spokesperson for Newsom, told The Appeal that the governor has commuted one sentence so far this year, 55 in 2020, and 23 in 2019. “The Governor regards clemency as an important part of the criminal justice system that can incentivize accountability and rehabilitation, increase public safety by removing counterproductive barriers to successful reentry, correct unjust results in the legal system and address the health needs of incarcerated people with high medical risks,” she said in an email.

But only about 10 percent of those released from California prisons between July and November 2020 were age 55 and older, a group of people who are at higher risk of dying from COVID-19 and have the lowest rate of recidivism after release. And with nearly 100,000 people still incarcerated, the number of people granted clemency in California has had little effect on the nation’s second-largest state prison population.

Earlier this year, the American Civil Liberties Union launched a national campaign to encourage governors and the president to exercise their clemency powers more aggressively and release 50,000 individuals held in federal and state prisons. The Redemption Campaign is focused on governors issuing categorical clemency, like releasing older incarcerated individuals or those who would be serving a lesser sentence if convicted today.

Advocates are also working to help governors feel less politically nervous about embracing clemency. Polling commissioned by the ACLU and released last August found that 86 percent of Democrats, 81 percent of independents, and 73 percent of Republicans support reducing prison populations and offering incarcerated people a path toward redemption with clemency.

In Washington State, Democratic Governor Jay Inslee granted eight commutations in 2019, 437 in 2020, and 25 so far in 2021, according to Mike Faulk, Inslee’s spokesperson. The vast majority of the 2020 commutations were granted in April, in a blanket order extending to individuals who were not incarcerated on violent, serious, or sex offenses and who were within 75 days of their earned release date.

Faulk told The Appeal that Inslee, unlike advocates and organizations like the ACLU, does not see clemency as a tool necessary to reduce mass incarceration, and that such an effort must be tackled on the legislative level and with buy-in from other public institutions, such as law enforcement and prosecutors. 

“Clemency existed before the era of mass incarceration; and, further, mass incarceration can most definitely be resolved without the use of the governor’s clemency authority,” Faulk said in an email.  

Still many advocates nationwide are sounding a different drum, emphasizing that clemency is integral to any strategy to correct for past harms of harsh sentencing. 

“If people want to end mass incarceration,” said Kaplan, “I can’t think of a better tool than governors granting commutations.”