By Naila Awan and Katie Rose Quandt  

On April 26, 2022, President Joe Biden used his executive powers to commute the federal sentences of 75 people — a first step toward addressing his campaign promise to release some individuals “facing unduly long sentences.” While this action is promising and will be life-altering for each of the 75 individuals, it took nearly 100 days into his second year in office for Biden to act on his promise and grant clemency to a single person. What’s more, many of the people receiving commutations are already released on home confinement due to the COVID-19 pandemic, and all were convicted of “nonviolent” drug offenses.

If Biden intends to truly deliver on his promises to enact large-scale criminal justice reform, this set of commutations should merely mark the beginning of a broader initiative. In fact, nothing is holding him back: the President has the power to grant commutations to large categories of people in federal prisons independently — without any action by Congress, the Department of Justice, or another third party. Despite this broad power, most U.S. presidents in the era of mass incarceration have been hesitant to use their powers of commutation.

In 2021, at the request of advocates working on clemency reform in the northeast, we submitted records requests to eight northeastern states seeking information about their commutation processes. As our survey of these eight states finds, state executive branches also chronically underuse their commutation powers. The states in our sample reported granting just 210 commutations from 2005 through mid-2021, for a total average of 13 grants a year across the eight states. For comparison, the average total prison population across these eight states from 2005 to 2020 was about 130,000 — meaning that each year, this group of states commuted about one out of every 10,000 sentenced and imprisoned individuals. In fact, five of the states each reported granting just five commutations or fewer over the 16.5 years for which we requested data. And concerningly, 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.

In addition to granting few commutations, most of the states in our sample do not appear to maintain robust data on their commutation systems. Several states did not have access to commutation records for all the years we requested, and others implied in their responses that they do not keep this information in a centralized database, and had to review individual applications in order to fulfill our request.

This lack of transparency and inadequate data keeping makes it difficult or impossible for people who are incarcerated to know if they are even eligible for commutation, how the process is being administered, or the current status of their own applications. It also prevents advocates from determining where commutation applications are being held up or thrown out, and identifying any characteristics — such as the race, age, sex, or type of offense a person was convicted for — shared by those who are granted (or denied) commutations.

Biden Should Make Regular
and More Continuous Use of
His Commutation Power

President Biden’s recent announcementthat he is commuting the sentences of 75 individuals is promising, and marks a higher level of action than his recent predecessors had taken at this point in their presidencies. The President should continue to use the federal commutation power to reduce prison sentences for broader categories of people, and states should follow suit.

It is notable, however, that while the President has set a positive precedent by issuing commutations relatively early in his presidency, the impact of these specific commutations may be less than you would expect. None of the sentences commuted will expire immediately, and many of the individuals who received commutations were already placed on home confinement during the COVID-19 pandemic. This means that the commutations will have little impact on the number of people held too long in federal prison, whose numbers have only risen during Biden’s tenure in office.

Further, these commutations were limited to “people who are serving long sentences for non-violent drug offenses.” This is certainly not unusual; executives and legislators often seek to avoid political risk by limiting relief to people who have been convicted of “non-violent” crimes. However, this creates carve-outs in the commutation process, reduces the potential impact commutations can have, and prevents them from being a real tool in the fight to end the injustices of mass incarceration.

Looking past the commutations granted by President Biden and at the operation of the federal clemency process more generally — it is clear that changes to the status quo are necessary. First, there is far too great a backlog in federal clemency applications. Data released on April 1, 2022 showed that approximately 18,270 applications for federal clemency are pending, nearly 15,000 of which are for a commutation of sentence. And, until April 2022, all of the 2,415 applications for clemency that had been acted on since the President took office in January 2021 had been administratively closed. This means that Biden had taken no action to either grant or deny clemency applications.

Second, in recent decades, and especially since the onset of the era of mass incarceration, relatively few federal applications for clemency have been granted. This is partially due to a complex bureaucratic system: Federal clemency applications are routed through the Office of the Pardon Attorney in the Department of Justice (DOJ), then to the deputy attorney general, then to the White House counsel, and finally to the President. There have been calls to change this system for quite some time, including to remove the inherent conflict of interest that exists with the DOJ, which is tasked with reviewing applications for clemency, being the agency that led the original prosecutions. Advocates also note that the current review structure “includes redundant levels of scrutiny by Department of Justice staff who can unilaterally prevent a clemency application from reaching the President.”

To address these problems, Rep. Ayanna Pressley (D-Mass.) has introduced the Fair and Independent Experts in Clemency (FIX Clemency) Act, H.R. 6234, which would shift the body tasked with reviewing federal clemency applications from the DOJ to a new, independent clemency board that would send recommendations directly to the President and provide greater transparency into the federal clemency process.

However, it is important to note that, regardless of how the clemency process is structured, there are no obstacles to prevent the President from acting unilaterally: The President has the authority to independently grant commutations and other forms of clemency without receiving a recommendation. At the end of the day, the use of federal commutation powers — or lack thereof — is entirely in the hands of the Chief Executive.

Only 138 commutations have been granted since the onset of the COVID-19 pandemic in March 2020 — demonstrating that this tool has not been effectively used to spare lives, reduce the spread of disease, or respond to a pandemic unlike any other in our lifetime. While only about 11% of people incarcerated in the United States are held in federal facilities, more extensive use of commutations by a president could provide an example to the states of how they can more effectively use their own commutation powers.

States Also Fail to Use Commutations to Respond
to the Injustices of Mass Incarceration

States also drastically underutilize this powerful tool. As noted above, the eight states in our survey granted a total of 210 commutations in the 16.5 years from 2005 to mid-2021, an overall average of just 13 grants a year.

The paltry rate at which these states grant commutations has not budged during the pandemic. In fact, between 2020 and mid-2021, only two of the eight states surveyed (New York and Pennsylvania) told us that they granted any commutations. And, Connecticut indicated that its commutation process was paused throughout this entire period.

This lack of urgency is part of a disturbing larger trend: Nationwide, state and federal prisons actually released 10% fewer people in 2020 than in 2019, and on average, we found that state parole boards released fewer people in 2020 than in 2019. (Because of decreased prison admissions, overall prison populations have seen a modest decrease of 15% from pre-pandemic levels, which is not enough to allow for safe social distancing behind bars.)

Because comprehensive data on the commutation process was typically not available on government websites, we had to obtain data through public records requests. Through these requests we found that:

Massachusetts, Rhode Island, and Vermont do not seem to have granted any commutations from 2005 to mid-2021.

In fact, Rhode Island has granted only one commutation or pardon since 1950. In 2011, the governor granted a posthumous pardon to a person who was executed in 1845.

Our public record responses indicate that New Hampshire granted just one commutation from 2005 to mid-2021, and Connecticut granted just five.

Vermont noted that it found no requests for commutations and, as a result, none had been granted.

None of the eight states provided all of the information we requested, including demographic information of commutation applicants and grantees.

As the table above shows, state commutation processes are opaque. This lack of transparency prevents advocates from effectively determining how the commutation process is being administered, at what point and why applications are being denied, and what interventions would be most effective. The sparse data kept and supplied about state commutation processes also serve as one more indicator that states have deprioritized their commutation processes.

Why Are Commutations Used So Infrequently?

Historically, commutations were used much more frequently. In Massachusetts, for example, 218 commutations were granted in the 50s, 60s, and 70s, and 84% of them went to people serving life sentences for murder. Connecticut was still granting regular commutations even more recently: The state granted 36 commutations between 1991 and 1994.

But grants have since slowed down drastically and become exceedingly rare across the country. Massachusetts granted just 29 commutations in the 80s, 90s, 2000s, and 2010s; Connecticut reported granting five from 2016 to mid-2021. Today, commutations are often explicitly reserved for — or in practice, awarded only to — narrowly defined groups, such as people who have served at least half of their sentence or those convicted of “nonviolent” offenses.

Several factors contribute to the current lack of commutations.

First, politicians fear being seen as “soft on crime.” 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. (A longstanding challenge for criminal justice reform is that it is difficult to quantify the fiscal, familial, and community benefits of people returning to their homes and communities.) This fear is particularly unfounded because in many cases, commutation does not trigger immediate release but simply reduces a sentence or makes someone parole-eligible. 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.

Second, politicians and the public frequently misunderstand clemency’s place in American history. Individuals on both sides of the political aisle have expressed hesitancy in revisiting the sentencing decisions of judges. But the concept of revisiting judgements and forgiving sentences is a longstanding American tradition, enshrined in the Constitution and core to the country’s (and states’) founding. Clemency is a foundational, basic legal principle, praised by Alexander Hamilton and the first Supreme Court Chief Justice, John Marshall.

Finally, as discussed above, clemency is hindered by understaffing, conflicts of interest and complicated, bureaucratic systems. Allocating insufficient staff to review commutation applications can result in long delays processing applications. At the federal level, and in many states, the offices involved in the original prosecution of a person’s case are involved in clemency determinations. Additionally, applications for clemency can be complicated or require obtaining materials that an incarcerated person does not have in their immediate possession. And because of the lack of visibility into clemency processes, individuals who are incarcerated often do not know they are eligible to apply for clemency and may not be able to access information on the status of their application.

Potential Reforms

Commutations can grant relief to individuals impacted by the criminal legal system and serve as a tool in decarceration efforts. However, commutation powers are widely underutilized, even by chief executives (such as the President of the United States and governors of some states) who have the power to act unilaterally.

In order to more effectively and consistently use commutation powers at the federal and state level, a number of reforms should be adopted, including:

Congress should pass the FIX Clemency Act. This bill would, among other things, eliminate the Office of the Pardon Attorney at the U.S. Department of Justice and create an independent board of experts who would provide the President with recommendations on who should receive clemency.

Act unilaterally to provide relief when possible. The President of the United States and when applicable, state governors, should use their power to grant commutations to swiftly provide relief and aid decarceration efforts.

Conduct regular, affirmative outreach to those individuals who qualify for commutations. States and the federal government should ensure incarcerated individuals are provided accessible materials explaining the commutation process, conduct regular outreach to individuals who qualify to apply for a commutation of that fact, supply such individuals with applications for a commutation, and provide free assistance in completing these applications and navigating the process.

Use the clemency power to grant mass commutations. Rather than relying on a case-by-case review, categorical commutations should be granted. Categorical commutations can be used to adjust sentences or release people who: (a) were sentenced under laws that have since been repealed or for crimes that have been reclassified, or (b) share certain personal characteristics (i.e., current age or age at time of conviction) or experiences (i.e., survivors of sex or labor trafficking).

Simplify commutation applications. Applications should be made as simple and straightforward as possible. The government should be responsible for gathering information that it maintains, such as official court documents.

Expeditiously process, review, and act on commutation applications. 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. Applications should not remain pending for long periods of time, but rather a strict and short time-limit should be established within which review must take place. An adequate number of people must be assigned the responsibility of reviewing these applications in order to meet these limits.

When a group must approve a commutation application, do not require unanimous consent or set different vote requirements based on the crime of conviction. In some states, action can only be taken to a grant commutation if a board or council first vote to approve it. Applications should move forward on a majority vote and applicants should not need to obtain a different number of votes — i.e., majority versus unanimous — based on the crime of conviction.

Equally consider all people who qualify for relief, regardless of their crime of conviction. Whether a person was convicted of a “violent” or “non-violent” crime, their application should be equally considered. Qualified individuals should not be denied relief purely based on their crime of conviction.

Increase transparency. The many ways in which the commutation process lacks transparency need to be addressed. For example:

Applicants should be able to easily obtain information regarding where their application is in the process,

Individuals whose applications are denied should receive written confirmation with the reasons for denial specified, and

Data should be made publicly available that provides an effective picture of how the commutation process is operating

This article was originally published by Prison Policy Initiative on its website in April 2022. It is reprinted here with permission. Find the original report as well as additional charts and footnotes at prisonpolicy.org

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