President, States ‘Underutilize’ Clemency Powers: Report

President Joe Biden and state governors should “make regular and more continuous use” of their power to commute sentences, and not limit them to specific types of crime like drug offenses, says the Prison Policy Initiative (PPI).

“Commutation grants should not be treated as a rare, seasonal, or end-of-term act, but rather should occur with regularity throughout a President or governor’s term of office,” the PPI said, in a report that criticized governments at all levels for “underutilizing” what it called an important tool for reducing mass incarceration.

“The concept of revisiting judgements and forgiving sentences is a longstanding American tradition, enshrined in the Constitution,” the PPI added.

Commutations can result in early release from prison or parole, but not always. Unlike pardons, they do not remove a conviction from an individual’s record, and the criteria used for granting them vary from state to state, and may be different from those used by the federal government.

The PPI’s report coincided with the announcement Tuesday of 75 commutations of federal prisoners, along with three pardons, by the White House—the first since Biden took office.

But the figure was less impressive than it appeared, since many of those granted commutations were already released on home confinement due to the COVID-19 pandemic,” researchers said.

Before Biden’s announcement, only 63 commutations had been issued during the pandemic— all of them by former President Donald Trump, and the majority in his last month in office.

Similarly, a PPI survey of commutations from 2005 through mid-2021 in eight states— New York,. Massachusetts, Connecticut, Vermont, Maine, new Hampshire, Pennsylvania. and Rhode Island—found they were used rarely by state governors.

Collectively, the eight states granted just 210 commutations from 2005 through mid-2021, or about 13 grants a year.

The average total prison population across the eight states during that period was about 130,000; so another way of looking at the figure showed that approximately one out of every 10,000 sentenced and imprisoned individuals in those states was granted a commutation.

‘Executive Inaction’ During the Pandemic

“Almost no states in the sample increased their rate of commutations during the pandemic, at a time when reducing prison populations is critical to save lives,” the PPI said.

The PPI policy paper showed that most U.S. presidents were hesitant to grant commutations in the era of mass incarceration. One exception was Barack Obama, who granted 1,715, although that still represented a small fraction of the number of applications.

A closer look at the record of state commutations and pardons turned up troubling statistics.

Between 2011 and 2017, Maine Gov. Paul LePage granted no commutation and only one pardon:  a dog. In 2017, he granted several “conditional commutations. His successor, current Gov. Janet Mills, still hasn’t granted any.

According to the PPI, her office recently responded to a letter supporting one man’s clemency application with a single sentence: “He needs to pay for what he did.”

That points to a key reason for the reluctance to pardon or commute prisoners, PPI said.

“Politicians fear being seen as ‘soft on crime,’” the report said. “There is an outsized fear of releasing someone who might go on to commit another crime, and an undersized appreciation for the benefits of prison releases.”

In fact, the researchers noted, it is misleading to think of a commutation as a “get-out-of jail-free” card.

“In many cases, commutation does not trigger immediate release but simply reduces a sentence or makes someone parole-eligible,” the paper said. “Throughout American history, there have in fact been many instances of large-scale releases, and recent mass releases have resulted in lower-than average levels of recidivism.”

Under current practice, prisoners must undergo a complicated bureaucratic process, involving several layers of review.

Backlog Growing

As the federal level, the backlog in clemency applications was continuing to grow. As of April 1, 2022, approximately 18,270 applications for federal clemency were pending, of which nearly 15,000 are for a commutation of sentence.

A key needed reform would be to eliminate the backlog by establishing a “strict and short time-limit” for reviewing applications.

That would be a cornerstone of the reforms needed to “change the status quo” and remove the inertia and bureaucratic machinery involved in the process, the PPI paper said..

Its recommendations included:

• • Simplifying the process for applying for commutation;
  •  Making the process more transparent,. So applicants can track progress of their application;
  •  Removing the different standards for granting commutations at various levels of government so they are consistent across states and the federal government; and
  •  Consider all applicants regardless of their crime. (In some jurisdictions only those convicted of “nonviolent” offenses can qualify for commutation.)

The PPI also called on Congress to pass the “FIX Clemency Act,” introduced by Rep. Ayanna Pressley (D-Mass.) which would abolish the federal Office of the Pardon Attorney and replace it with an independent clemency board.

The co-authors of the report were Naila Awan, Director of Advocacy at the Prison Policy Initiative; and Katie Rose Quandt, Senior Editor at the Prison Policy Initiative and a writer/editor at Solitary Watch.

The full survey and tables can be downloaded here.