JUSTICE POLICY CENTER

RE S E AR CH RE P O R T

How Governors Can Use Categorical
Clemency as a Corrective Tool
Lessons from the States
Leah Sakala

Roderick Taylor

Colette Marcellin

November 2020

URBAN

N 5 T I T UT E • E L E VA T E • T H E • D E BA T E

Andreea Matei

::: URBAN
• • • • I N5 T I T UT I

AB O U T T HE U R BA N I NS T I T U TE
The nonprofit Urban Institute is a leading research organization dedicated to developing evidence-based insights
that improve people’s lives and strengthen communities. For 50 years, Urban has been the trusted source for
rigorous analysis of complex social and economic issues; strategic advice to policymakers, philanthropists, and
practitioners; and new, promising ideas that expand opportunities for all. Our work inspires effective decisions that
advance fairness and enhance the well-being of people and places.

Copyright © November 2020. Urban Institute. Permission is granted for reproduction of this file, with attribution to
the Urban Institute. Cover image by Tim Meko.

Contents
Acknowledgments

iv

Foreword from the American Civil Liberties Union

v

Executive Summary
How Governors Can Use Categorical Clemency as a Corrective Tool

viii
1

Executive Categorical Clemency

2

Categorical Clemency Eligibility Based on Offense Categories

2

Categorical Clemency Eligibility Based on Personal Characteristics and Experiences

4

Categorical Clemency Eligibility Based on Systemic Policy Issues

6

Conclusion

7

Appendix. Glossary of Mechanisms for Granting Executive Clemency

8

Notes

10

References

13

About the Authors

14

Statement of Independence

15

Acknowledgments
This report was funded by the American Civil Liberties Union. We are grateful to them and to all our
funders, who make it possible for Urban to advance its mission.
The views expressed are those of the authors and should not be attributed to the Urban Institute,
its trustees, or its funders. Funders do not determine research findings or the insights and
recommendations of Urban experts. Further information on the Urban Institute’s funding principles is
available at urban.org/fundingprinciples.
The authors wish to thank our colleagues Robin Olsen and Azhar Gulaid for their feedback and
assistance with developing this report. We also wish to thank Rachel Barkow, Mark Osler, Mary Price,
and Steve Zeidman for generously sharing their perspectives and expertise with us. Any errors are the
authors’ responsibility alone.

IV

ACKNOWLEDGMENTS

Foreword from the American
Civil Liberties Union
The United States remains in the grip of an unjust, unnecessary, and self-inflicted epidemic of mass
incarceration, the machinery of which only deepens racial inequities and harms that have existed for
hundreds of years. Of the more than 2 million people incarcerated in the United States, more than half—
roughly 1.3 million people—are incarcerated in state prisons across the country. Moreover, the ACLU
knows that there are large groups of people who have been historically, systemically overincarcerated
without any justification: people sentenced to long sentences for drug crimes; people who have served
decades already and have long since passed the time when they may pose a threat to anyone’s safety;
people serving sentences under mandatory-minimum laws or other draconian policies that have been
repealed; and people incarcerated for administrative or minor violations of probation or parole
supervision.
A pressing question for states, and advocates, is whether clemency powers could be an effective
and legal vehicle to correct these systemic excesses and injustices by being issued to grant release to
large groups of similarly situated people. As this report shows, the resounding answer to that question
is yes.
Over the past several years, the ACLU’s Campaign for Smart Justice—an unprecedented, multiyear
effort to reduce the US jail and prison population by 50% and to combat racial disparities in the criminal
legal system—has earned significant victories by fighting for the election of progressive prosecutors and
advancing profoundly impactful ballot initiatives and pieces of legislation. However, people in state
prison often fall beyond the reach of Campaign victories to date: prosecutors have limited jurisdiction
over people in prison, and new laws tend to be only forward looking.
Just as the policies that fuel this crisis were all the product of a governor’s signature, governors can
use that same stroke of a pen to remedy this through their clemency powers. In the United States, it has
long been established that governors have the power to unilaterally end incarceration by commuting
people’s sentences—freeing people with an efficiency unmatched by other government actions.
Unfortunately, today, commutations tend to occur rarely and are often granted to a small handful of
people. For commutations to be an effective response to mass incarceration, governors must use their
commutation powers in new, transformational ways.

FOREWORD FROM THE AMERICAN CIVIL LIBERTIES UNION

V

In order to move governors toward doing just that, the Campaign for Smart Justice launched the
Redemption Campaign: Embracing Clemency in August 2020. The pivotal next step in the Campaign for
Smart Justice, the Redemption Campaign is a nationwide effort to liberate 50,000 people from state
prisons over the next five years by executing state-level campaigns that push governors to use their
existing clemency powers to forcefully confront mass incarceration and racial injustice by granting
categorical commutations to release large groups of people who are unjustifiably imprisoned.
This report from the Urban Institute is a critical foundation for the campaign. Based on a survey of
historical and legal documents, state-level data, and previous clemency examples, Urban reached the
following three main conclusions:
1.

There is deeply rooted legal precedent for executives—governors and presidents—to wield
their executive clemency powers to grant commutations to large categories of people, as
opposed to just a few people on a one-by-one, case-by-case basis.

2.

That precedent, combined with notable examples of individual grants of clemency, provides a
clear model for governors today to use in evaluating, shaping, and executing mass
commutations for people who are trapped in their state’s prisons.

3.

A bold, transformational shift in how clemency is used—to a point where mass commutations
are regularly achieved across the country—is a meaningful and necessary antidote to this
nation’s mass incarceration crisis.

These findings confirm what the Campaign for Smart Justice observed through its work and, more
importantly, learned in centering and elevating the voices, experiences, and expertise of formerly
incarcerated people who had received commutations. Urban’s findings, therefore, lend further
credence to two guiding principles.
The first is that governors have a responsibility to lead the fight to slash the nation’s incarcerated
population by 50 percent. That bold goal requires a powerful response to decades’ worth of mass
incarceration in state prisons. However, traditional case-by-case, post-conviction review processes are
wholly inadequate to serve as that systemic response—these processes simply cannot tackle the
enormity of the challenge before us. That means that to liberate the thousands of people trapped by
unjustifiably long, overly punitive state prison sentences, a governor’s granting clemency is the best tool
available to ensure timely release and a pathway to hope and healing. Second, that the power to
immediately release thousands of people rests in the hands of a single actor—as opposed to being
dependent upon a legislative body and process—makes it all the more important because it offers an
expedient, readily deployable tool in the fight to end mass incarceration. Urban’s research also helped

VI

FOREWORD FROM THE AM ERICAN CIVIL LIBERTIES UNION

reaffirm the now well-established research consensus that reducing incarceration does not undermine
public safety and that it can actually drive economic justice and the stability communities need to thrive.
Categorical commutations are also broadly supported by the public. People feel that communities
are better served by releasing people who are not a threat to safety. An ACLU-commissioned Bully
Pulpit Interactive poll found that a majority of voters—62 percent—believe that reducing the prison
population would strengthen communities by reuniting families and saving taxpayer dollars that can be
reinvested into the community. And overall, 80 percent of voters—86 percent of Democrats, 81 percent
of Independents, and 73 percent of Republicans—support achieving those population reductions by a
governor’s issuing broad, categorical commutations to release some people.
In sum, issuing categorical commutations is possible, supported by historical precedent, and
demanded by the public. Furthermore, it presents governors an opportunity to positively affect the lives
of thousands of their constituents and be key, positive players in justice reform. As the Urban Institute’s
research has confirmed, we can, and must, replace the architecture of mass punishment with a roadmap
to redemption by using clemency as a corrective tool.
Udi Ofer
Deputy National Political Director
Director, Justice Division
American Civil Liberties Union
Dylan Hayre
Justice Division Campaign Strategist
American Civil Liberties Union

FOREWORD FROM THE AMERICAN CIVIL LIBERTIES UNION

VII

Executive Summary
Governors in most states have executive clemency authority that allows them to change
the terms of someone’s criminal justice system involvement, including by issuing
pardons or by granting commutations to adjust the sentences of people in prison.
Though many clemency deliberations are independent case-by-case assessments, in
some cases, governors can also extend clemency eligibility categorically to groups of
people in prison to mitigate structural issues or accomplish larger reform goals. In this
report, we provide a high-level overview of state executive categorical clemency and
offer examples of how state governors have used this strategy as a corrective tool to
address problems in the criminal justice system.

VIII

EXECUTIVE SUMMARY

How Governors Can Use Categorical
Clemency as a Corrective Tool
Policymakers have increasingly prioritized addressing mass incarceration in recent years. The United
States has the highest imprisonment rate in the world (Walmsley 2018), yet evidence overwhelmingly
shows that imprisonment largely fails to advance public safety goals,1 while creating lasting negative
consequences for people, families, and communities.2 Furthermore, the US criminal justice system
perpetuates systemic racism,3 particularly harming Black, Latinx, and Native American people (The
Sentencing Project 2018).4 A majority of US states have engaged in criminal justice reform efforts in
recent years (Harvell et al. 2016; Porter 2020). In particular, reducing the number of people in US
prisons (i.e., decarceration) has been a central goal of efforts led by governments5 as well as advocates
and activists.6 Many strategies to reduce prison populations or otherwise adjust sentencing practices
are based on policy reforms, such as legislation and ballot initiatives. However, it can take years for such
strategies to effect change, and even when enacted, many reforms do not apply retroactively to people
who have already been sentenced.
In many states, governors can use executive clemency authority to consider sentence adjustments or
release for people in prison.7 Governors often grant executive clemency as an act of compassion or mercy
extended on a case-by-case basis. However, they can also use clemency as a corrective tool to advance
larger reform goals by broadening eligibility categorically to groups of people. In this report, we provide a
high-level overview of state executive categorical clemency and examples of how governors have used it
to address problems in the justice system and advance or reinforce reform and decarceration goals.

BOX 1

Methodology
Our research team used the following methods to compile the information in this report:
◼

reviews of academic journal and law review articles

◼

web searches for relevant news coverage

◼

reviews of research documents and other materials published by government agencies and
nongovernmental organizations, including legal assistance providers, research institutions, and
advocacy organizations

◼

telephone interviews with four experts in executive clemency

Executive Categorical Clemency
Executive clemency refers to the authority held by the president and most governors to modify the
terms of someone’s criminal justice system involvement, including through pardons or sentence
commutation. If someone is in prison, clemency can result in their release, a sentence reduction leading
to earlier release, or a sentence modification (e.g., commuting a death penalty sentence to life without
parole, or granting or expediting eligibility to be considered for parole). Many states’ governors have
authority to use executive clemency to address problems in the justice system and advance state
reform goals,8 and categorical clemency is one way they can exercise this power. Categorical clemency
refers to clemency eligibility or grants issued to certain groups based on shared circumstances, as
opposed to eligibility or grants issued on an individualized case-by-case basis. Governors can offer
eligibility or grants to groups based on various criteria, including their offenses, personal
characteristics, and experiences. They can also base categorical clemency eligibility on determinations
about systemic policy issues.
Importantly, states have authority to determine their own clemency structures and processes,
meaning decisionmaking structures vary from state to state. This variation impacts the level of
clemency authority a governor has. In some states governors have exclusive clemency authority,
whereas in others a separate entity, such as a parole board, makes clemency determinations. Others use
a mixed model in which authority is shared between the governor and another entity.9 Although
structures vary, governors in many states have broad clemency authority that enables them to extend
categorical clemency eligibility, and governors in other states can work with clemency granting entities
to propose new clemency processes and criteria to determine eligibility for categorical clemency
consideration.10

Categorical Clemency Eligibility Based on Offense
Categories
Governors can extend categorical clemency eligibility to groups of people based on their offenses,
sometimes in conjunction with larger reform efforts. Recently, several governors have exercised their
executive clemency power to apply reforms and other legal changes retroactively. Such actions are
designed to ensure that people do not continue to be imprisoned for convictions that are no longer
eligible for prison sentences, or carry criminal records for behavior that is no longer criminalized.

2

HOW GOVERNORS CAN USE CATEGORICAL CLEMENCY AS A CORRECTIVE TOOL

One example of categorical commutation eligibility resulted from the retroactive application of
Oklahoma’s 2016 drug and property offense reforms. In 2016, State Question 780 asked Oklahoma
voters whether they would approve of recategorizing certain felonies, such as drug possession and
minor property crimes, as misdemeanors, and it passed by a 16 percent margin. In 2019, House Bill
1269 established an accelerated, single-stage commutation docket to review the sentences of people in
prison for offenses that had been reclassified as misdemeanors, effectively applying the law
retroactively.11 This process, which featured collaboration between the governor, legislature, and
Pardon and Parole Board, allowed 527 people to have their sentences commuted and 462 people to be
released from state prisons in 2019.12 Oklahoma’s referendum, state legislative action, and subsequent
commutations released hundreds of people from state prison who had been convicted of offenses that
were recategorized.
In addition to commutations, governors can grant pardons to groups of people who have been
convicted of specific types of offenses. For example, in 2019, Governor J. B. Pritzker pardoned 11,017
low-level marijuana convictions a day before an Illinois law legalizing marijuana use (House Bill 1438)
took effect.13 According to state officials, approximately 116,000 convictions for possession of 30
grams or less of marijuana were eligible to be pardoned under the law at the time it was enacted.14
Similarly, in 2019, several years after Washington legalized recreational marijuana, Governor Jay Inslee
created an expedited pardon petition process for people convicted of a single minor marijuana
possession offense, saying, “[We] should not be punishing people for something that is no longer
illegal.”15 Colorado has also followed suit. In October 2020, Colorado governor Jared Polis issued an
executive order that pardoned more than 2,700 convictions of possession of an ounce or less of
marijuana that were issued before the state legalized personal marijuana use in 2012 through
Amendment 64.16 The executive order followed legislation passed in June 2020 designed to make
Colorado’s cannabis industry more equitable, including by granting streamlined pardon powers to the
governor for people convicted of possession of up to two ounces of marijuana.17

BOX 2

Offering Release Consideration for People Sentenced Under Felony Murder Laws
Some governors take a more limited approach to respond to concerns about offense-specific sentencing
policy. As of January 2020, Pennsylvania governor Tom Wolf had commuted life sentences for 19
people—more than his four predecessors combined—including several sentenced under the state’s
felony murder law. This law holds all parties involved in certain felony offenses that lead to a death
culpable regardless of their role or intent, and dictates a life sentence without the possibility of parole.a
Several states have reformed or abolished felony murder laws because of concerns about

HOW GOVERNORS CAN USE CATEGORICAL CLEMENCY AS A CORRECTIVE TOOL

3

disproportionality and unfair application, whereas others are still considering reform.b While the
Pennsylvania state legislature considers broader reform to felony murder laws, Governor Wolf is using
executive clemency to provide relief to some people sentenced under that law who would otherwise
face life in prison.c
a

“Commutation of Life Sentences (1971 - Present),” Pennsylvania Board of Pardons, as of January 7, 2020,
https://www.bop.pa.gov/Statistics/Pages/Commutation-of-Life-Sentences.aspx; An-Li Herring, “Prison Sentences Being
Commuted Amid Concerns Over PA's Harsh 'Felony-Murder' Law,” WESA 90.5, September 10, 2019,
https://www.wesa.fm/post/prison-sentences-being-commuted-amid-concerns-over-pas-harsh-felony-murder-law#stream/0.
b
Cheryl Corley, “Juvenile Justice Groups Say Felony Murder Charges Harm Children, Young Adults,” NPR, November 14, 2019,
https://www.npr.org/2019/11/14/778537103/juvenile-justice-groups-say-felony-murder-charges-harm-children-young-adults.
c
Herring, “Prison Sentences Being Commuted Amid Concerns Over PA’s Harsh ‘Felony-Murder’ Law.”

Categorical Clemency Eligibility Based on Personal
Characteristics and Experiences
In addition to granting clemency based on offenses, governors also grant clemency based on mitigating
personal characteristics or experiences. These include factors that may not have been accounted for
earlier in the justice system process (e.g., victimization experiences), may be subject to new legal
requirements (e.g., people convicted as minors), or may be new characteristics to consider (e.g., elderly
people in prison). Executive clemency allows governors to take such characteristics into account and
provide categorical eligibility to be considered for relief.
For example, survivors of violence, particularly survivors of human trafficking and gender-based
violence, often face criminalization and incarceration. 18 In 2020, Texas governor Greg Abbott created a
clemency application for survivors of human trafficking and domestic violence and launched a public
awareness campaign to inform survivors that they can apply to receive a full pardon. 19 If granted, the
pardon allows for release and criminal-record clearing, mitigating some of the barriers to reentry that
people with commuted sentences often face.20
Another category of people who have received targeted consideration for clemency comprises
people convicted as youth. In 2007, Colorado governor Bill Ritter established the Juvenile Clemency
Advisory Board to review clemency requests from people tried and sentenced as adults when they were
minors.21 In the years since, Colorado governors have granted commutations and pardons to several
people convicted as minors,22 particularly since 2016, when the US Supreme Court retroactively
extended its 2012 ruling that automatic life-without-parole sentences for youth are unconstitutional. 23
The state then passed legislation providing new sentences of 40 years to life to most people convicted

4

HOW GOVERNORS CAN USE CATEGORICAL CLEMENCY AS A CORRECTIVE TOOL

as minors (including those convicted of felony murder), legislation that the Colorado Supreme Court
affirmed in 2018.24

BOX 3

The Story of Cyntoia Brown-Long
High-profile cases involving disproportionate punishment in conjunction with mitigating factors have
raised broader awareness about how clemency can be used as a corrective tool, and spurred
government leaders to respond. Cyntoia Brown-Long was serving a life sentence in Tennessee for the
murder and robbery of a man who solicited her for sex in 2004, when she was being trafficked at 16
years old; she would not have been eligible for parole until her late 60s. In late 2017, Brown-Long’s
name and clemency case went viral after celebrities including Rihanna and Kim Kardashian West shared
her story.a Facing immense public pressure, the Tennessee Board of Parole announced it would hold a
hearing on Brown-Long’s case—a rare move, considering less than two percent of clemency applicants
in Tennessee had their cases heard by the parole board in FY 2017–2018 (BOP 2018). In early 2019,
Governor Bill Haslam commuted Brown-Long’s sentence to a summer 2019 release and 10 years of
supervised parole.b Brown-Long is now an advocate for criminal justice reform, noting, “There's nothing
special about me…I can't tell you how many Cyntoia Browns [are] still in prison.”c
a

Natalie Neysa Alund, “#FREECYNTOIABROWN goes viral following Rihanna's Instagram post,” The Tennessean, November 21,
2017, tennessean.com/story/news/2017/11/21/freecyntoiabrown-goes-viral-rihanna-kimkardashian/884742001/; Kimberlee
Kruesi, “Cyntoia Brown granted clemency from life sentence after Kim Kardashian West pushes for release,” The Globe and Mail,
January 7, 2019, https://www.theglobeandmail.com/world/article-cyntoia-brown-granted-clemency-after-kim-kardashianpushes-for-release/.
b
Christine Hauser, “Cyntoia Brown Is Granted Clemency After 15 Years in Prison,” New York Times, January 7, 2019,
https://www.nytimes.com/2019/01/07/us/cyntoia-brown-clemency-granted.html.
c
“Cyntoia Brown-Long to Lester Holt on her release from prison: 'There's nothing special about me',” NBC News, October 14,
2019, https://www.nbcnews.com/news/us-news/cyntoia-brown-long-lester-holt-her-release-prison-there-s-n1065296.

In addition, several state and national organizations advocate for granting clemency to older
people, noting their lower recidivism rates and higher medical risks and health care costs. For example,
in New York, roughly one in five people in prison are serving either life sentences or “virtual life
sentences,” which are sentences that are likely longer than the number of years remaining in their
lives.25 This has inspired calls for the governor to grant clemency to older people in prison. 26 Some
advocates call for clemency to be applied based on both age and time served—for example, to people
who have reached the age of 50 and have served at least 25 years in prison.27 Most recently, the
COVID-19 pandemic has led to widespread demands that elderly people and others who are most
vulnerable to severe health consequences be released. 28

HOW GOVERNORS CAN USE CATEGORICAL CLEMENCY AS A CORRECTIVE TOOL

5

Governors can also extend clemency eligibility to people who face systemic discrimination in the
justice system based on their identity. For example, in February 2020, California governor Gavin
Newsom issued an executive order to initiate a new clemency effort designed explicitly to remedy
systemic inequities regarding the criminalization of lesbian, gay, bisexual, transgender, and queer
(LGBTQ+) people.29 The order stated that pardons would be considered for people convicted under
laws directly criminalizing LGBTQ+ people (such as a sodomy law repealed in 1975) and those
convicted for offenses like vagrancy and loitering that have been applied disproportionately to arrest,
convict, and incarcerate LGBTQ+ people.30 Although this new initiative was first applied through a
posthumous pardon issued to civil rights champion Bayard Rustin,31 it offers a framework for using
gubernatorial clemency power to address systemic, categorical discrimination in the justice system.

Categorical Clemency Eligibility Based on Systemic
Policy Issues
Governors also use clemency categorically in response to problems with the criminal justice system
itself that are not necessarily related to the offenses or personal characteristics of the people being
considered. A key example concerns people facing the death penalty. Governors have granted
clemency to people with death sentences for reasons ranging from moral opposition to proven errors
and racial disparities in the death penalty’s application, commuting death sentences to other types of
sentences. Several governors have granted clemency to people on death row in tandem with enacting
legislation to repeal the death penalty. For example, Colorado governor Jared Polis in 2020, Illinois
governor Pat Quinn in 2011, and New Jersey governor Jon Corzine in 2007 granted clemency to every
person facing the death penalty in their respective states in conjunction with signing repeal bills.32
Maryland governor Martin O’Malley took similar action in 2015, applying the state’s 2013 repeal of the
death penalty retroactively to the four people who had received a death sentence before the repeal and
were still on death row.33 Governors in several other states have granted clemency to several or all
people on death row in the past few decades, both before and after the US Supreme Court revived the
constitutionality of the death penalty in 1976.

BOX 4

Historical Use of Clemency to Advance Reform
Recent examples align with a longer history of states using clemency power to advance reform and
decarceration. A National Governors Association survey of 36 states’ self-reported clemency grants

6

HOW GOVERNORS CAN USE CATEGORICAL CLEMENCY AS A CORRECTIVE TOOL

between 1981 and 1986 found that several states reported making grants in relation to legislative
changes (NGA 1988). States have also used clemency as a tool to reduce prison overcrowding. A 1980
report found that at least 10 states had “used clemency on a regular basis as a means of prison
population control.”a For example, from 1979 to 1980, Maryland’s governor granted pardons and
commutations to 1,142 people in prison, avoiding a potential court order to reduce the prison
population.b Furthermore, the National Governors Association survey found that West Virginia and
Wyoming reported “crowding” as a reason for clemency decisions (NGA 1988).
Although cross-state data on executive clemency grants are limited, sources suggest an overall
decline in recent decades (Barkow 2009; BOP 2017; Kaplan and Mayhew 2019). Today, though some
states (e.g., Arkansas, Connecticut, Nebraska) use clemency more often, they are in the minority.c
Clemency use varies significantly across states and within states over time, shaped by factors such as
changes in administration, shifts in clemency approval structures and policies, and high-profile events.d
Some experts note some states have a “culture of clemency” that can be reinforced and influenced by
structural factors, and note that a governor’s ideology and perception of political risk can have a
significant impact.e However, as the examples of categorical clemency in this report illustrate, a growing
number of governors are using their executive clemency authority categorically to address injustice.
a

Findings summarized in NGA (1988, 3).
See NGA (1988, 3). See appendix for a glossary of clemency definitions.
c
Maggie Clark, “Governors’ Pardons Are Becoming a Rarity,” Governing, February 8, 2013,
https://www.governing.com/news/state/sl-governors-balance-politics-with-pardons.html.
d
See, for example, Notterman (2019a, 2019b).
e
Mindy Fetterman, “Move Is on to Make End-of-Year Pardons Less Random,” Stateline, Pew Charitable Trusts, January 6, 2016,
https://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2016/01/06/move-is-on-to-make-end-of-year-pardonsless-random.
b

Conclusion
Executive clemency, which many governors can use to extend compassion and mercy and advance
reform goals, is a fundamental part of checks and balances in most state criminal justice systems. The
historical record demonstrates that governors have used clemency to address various systemic policy
issues, and recent examples show how they can extend clemency eligibility categorically to groups of
people. Executive categorical clemency can provide targeted relief in anticipation of broader reforms
and can also be applied retroactively to ensure policy changes are extended to people convicted or
sentenced before reform. Lastly, clemency grants can be paired with supports for people who receive
them, such as reentry planning or record clearing processes, to facilitate their long-term success. For
example, efforts to strengthen reentry supports and mitigate the collateral consequences of felony
convictions can complement clemency initiatives by improving access to education, housing, and
employment for people returning home from prison (Weissman 2018).

HOW GOVERNORS CAN USE CATEGORICAL CLEMENCY AS A CORRECTIVE TOOL

7

Appendix. Glossary of Mechanisms
for Granting Executive Clemency
There are different kinds of executive clemency that many governors can use alone or in conjunction
with clemency, pardon, and parole boards depending on the state’s decisionmaking structures. Common
kinds of executive clemency include the following:
When amnesty is granted, legal remembrance of the offense is eliminated (Aksikas and

◼

Andrews 2016), often before prosecution occurs.34 Amnesty has historically been authorized
by the president after wars, rebellions, or civil disorders (NGA 1988), and has also been used
for immigration offenses. (Though less common, governors can also grant amnesty at the state
level [NGA 1988].) Notable examples include former president Jimmy Carter granting amnesty
in 1977 to some people who evaded the draft for the Vietnam War,35 and former president
Ronald Reagan signing the Immigration Reform and Control Act of 1986, which made
undocumented immigrants who arrived in the US before 1982 eligible for amnesty.36
Commutation, or the modification or reduction of a sentence, can be granted by a president or

◼

governor. A president or governor can choose to commute a sentence for many reasons,
including because an incarcerated person is of old age or has an illness, and/or because of a
determination that the sentence is harsher than in similar cases. When a person’s sentence is
commuted the conviction remains on their record, so they may still face associated
consequences, such as lacking the right to vote because of felony disenfranchisement. They
may also be liable for any fines or restitution that were imposed.37
A president or governor can issue a pardon to essentially forgive a person charged with or

◼

convicted of a crime. Pardons are typically granted after a person has completed their sentence,
but it is possible for a person to be pardoned while serving a sentence or even before being
convicted (e.g., when former president Gerald Ford pardoned former president Richard
Nixon).38 A pardon usually requires that a person accept responsibility for the crime they were
convicted of, so some people refuse to submit a petition for pardon because they wish to
maintain their innocence. Pardons can be issued on an absolute, limited, conditional, or
unconditional basis, meaning a pardon can have conditions attached, restore a limited number
of rights, or restore all rights. However, a pardon does not usually remove the offense from a
person’s record because accepting the pardon “[carries] an imputation of guilt” (NGA 1988, 4).

8

APPENDIX

◼

Some governors have the ability to issue a pardon of innocence or an exoneration that
removes an offense from a person’s criminal record and subsequently restores their rights. For
example, the governor of Tennessee has the power to exonerate a person, resulting in the
restoration of their citizenship rights and expungement of their criminal records. In addition,
the governor of North Carolina can issue a pardon of innocence if a convicted person is later
found innocent (Novak 2016).

◼

A remission is a reduction or full removal of fines or restitution imposed on a person.
Remissions usually cannot interfere with the rights of third parties, meaning that if a person
already paid a fine and it is still with the courts, it is possible that they can be refunded, but if
they paid restitution to a victim, they may not be able to get that payment back (Novak 2016).

◼

Presidential or gubernatorial reprieves or respites temporarily postpone punishments for
someone convicted of an offense. Reprieves can be used to delay the beginning of incarceration
or shorten the period of incarceration. They can also be used when a person is facing the death
penalty.39 Common reasons for reprieves to be granted are when new evidence is discovered,
an appeal was filed late, there was an error in the process, a governor or president is opposed to
the death penalty, or the imposed sentence was harsher than similar cases. 40 Reprieves expire,
but they can lead to commutations or other outcomes, including preventing executions in some
cases.

APPENDIX

9

Notes
1

See, e.g., Roodman (2017), Nagin, Cullen, and Jonson (2009), and Harding and coauthors (2019).

2

See, e.g., Mauer and Chesney-Lind (2002).

3

See, e.g., the list of studies compiled by Radley Balko in
https://www.washingtonpost.com/graphics/2020/opinions/systemic-racism-police-evidence-criminal-justicesystem/.

4

Roxane Daniels, “Since you asked: What data exists about Native American people in the criminal justice
system?,” Prison Policy Initiative, April 22, 2020, https://www.prisonpolicy.org/blog/2020/04/22/native/.

5

See, e.g., the Illinois State Commission on Criminal Justice and Sentencing Reform. The congressionally created
Justice Reinvestment Initiative, run through the Department of Justice, has also facilitated several states
achieving significant reductions in their prison populations.

6

See, e.g., Movement for Black Lives 2020 policy platform (available at https://m4bl.org/policy-platforms/endjails-prisons-detention/), the ACLU Campaign for Smart Justice, and Just Leadership USA.

7

“Clemency” is a broad term that encompasses various specific release mechanisms—such as pardons,
commutations, or exonerations—that vary from state to state. See the appendix for a glossary of clemency types.

8

See, e.g., Simon (2016).

9

In a few states, clemency authority varies depending on the situation. For example, under Alabama Code, section
15-22-36(a), an independent board has the authority to decide most clemency petitions, but only the governor
has the authority to grant clemency in capital cases. In California, the governor ultimately decides who is granted
clemency, but when someone has received more than one felony conviction, the parole board must be consulted
and the majority of state supreme court justices must recommend clemency. See the Collateral Consequences
Resource Center’s “50-State Comparison Pardon Policy & Practice” at http://ccresourcecenter.org/staterestoration-profiles/50-state-comparisoncharacteristics-of-pardon-authorities-2/ (accessed March 14, 2020).

10

“50-State Comparison Pardon Policy & Practice,” Collateral Consequences Resource Center, accessed March
14, 2020, http://ccresourcecenter.org/state-restoration-profiles/50-state-comparisoncharacteristics-ofpardon-authorities-2/.

11

Darla Slipke, “Pardon and Parole Board recommends commutation for another 149 people eligible for singlestage docket,” The Oklahoman, January 16, 2020, https://oklahoman.com/article/5652434/pardon-and-paroleboard-recommends-commutation-for-another-149-people-eligible-for-single-stage-docket.

12

Julie Conley, “Largest Sentence Commutation in US History: Nearly 500 Inmates Walk Free After Oklahoma
Voters Demand Reform,” Common Dreams, November 4, 2019,
https://www.commondreams.org/news/2019/11/04/largest-sentence-commutation-us-history-nearly-500inmates-walk-free-after-oklahoma.

13

Ray Sanchez, “Illinois governor pardons more than 11,000 people for low-level pot offenses,” CNN, December
31, 2019, https://www.cnn.com/2019/12/31/us/illinois-governor-marijuana-conviction-pardons/index.html.

14

Sanchez, “Illinois governor pardons more than 11,000 people.”

15

Associated Press, “Washington Gov. Inslee to pardon thousands convicted of marijuana possession,” NBC News,
January 4, 2019, https://www.nbcnews.com/storyline/legal-pot/washington-gov-inslee-pardon-thousandsconvicted-marijuana-possession-n954981.

16

Full and Unconditional Pardon: Individuals Convicted of Possession of One Ounce or Less of Marijuana,
Executive Order C 2020 004 (2020); Lindsey Bartlett, “Colorado Governor pardons 2,732 Low-Level Marijuana

10

NOTES

Convictions,” Forbes, October 1, 2020, https://www.forbes.com/sites/lindseybartlett/2020/10/01/coloradogovernor-pardons-2732-low-level-marijuana-convictions/?sh=40bb990e2017.
17

Social Equity Licensees In Regulated Marijuana, Colorado H.B. 20-1424 (2020).

18

Vaidya Gullapalli, “Women in Jail and the Criminalization of Survivors,” The Appeal, October 30, 2019,
https://theappeal.org/women-in-jail-and-the-criminalization-of-survivors/.

19

Ed Sterling, “Governor establishes clemency application for certain survivors,” The Kingsville Record, February 26,
2020, http://www.kingsvillerecord.com/opinion/governor-establishes-clemency-application-for-certainsurvivors/article_0fccbab0-58f6-11ea-ab85-4bad01f8d686.html.

20

Sterling, “Governor establishes clemency application for certain survivors.”

21

“Gov. Ritter Establishes Juvenile Clemency Board,” Colorado Governor’s Office, August 29, 2007,
https://www.njjn.org/uploads/digital-library/resource_555.pdf.

22

E.g., Kieran Nicholson, “Hickenlooper orders clemency for 33 Colorado offenders, including 7 men convicted of
murder,” Denver Post, December 21, 2018, https://www.denverpost.com/2018/12/21/hickenlooper-clemencypardons/.

23

Andrea Dukakis, “State Supreme Court Ruling Another Step Toward Release of Inmates Sentenced to Life as
Juveniles,” Colorado Public Radio, October 4, 2018, https://www.cpr.org/show-segment/state-supreme-courtruling-another-step-toward-release-of-inmates-sentenced-to-life-as-juveniles/.

24

Dukakis, “State Supreme Court Ruling Another Step Toward Release of Inmates.”

25

David Brand, “Clemency advocates call on Cuomo to release long-serving inmates,” Queens Daily Eagle,
December 21, 2019, https://queenseagle.com/all/release-older-inmates-rally-cuomo.

26

Brand, “Clemency advocates call on Cuomo to release long-serving inmates.”

27

“Know More: Executive Clemency,” Restore Justice Foundation, accessed March 13, 2020,
https://restorejustice.org/know-more-executive-clemency/.

28

Justine Coleman, “ACLU calls on Justice Department, Bureau of Prisons to release inmates vulnerable to
coronavirus,” The Hill, March 28, 2020, https://thehill.com/policy/healthcare/public-global-health/488244-aclucalls-on-justice-department-federal-bureau-of.

29

State of California Executive Department, Executive Order N-24-20 (2020).

30

“Taking on Historic Homophobia in Justice System, California Governor Newsom Launches Process for
Pardoning People Prosecuted for Being Gay,” Office of Governor Gavin Newsom, February 5, 2020,
https://www.gov.ca.gov/2020/02/05/taking-on-historic-homophobia-in-justice-system-california-governornewsom-launches-process-for-pardoning-people-prosecuted-for-being-gay/.

31

Jill Cowan, “Bayard Rustin, Gay Civil Rights Leader, Is Pardoned in California,” New York Times, February 5, 2020,
https://www.nytimes.com/2020/02/05/us/bayard-rustin-pardon.html.

32

“Notable Grants of Clemency,” Death Penalty Information Center, accessed March 13, 2020,
https://deathpenaltyinfo.org/facts-and-research/clemency/notable-grants-of-clemency; John Herrick,
“Colorado Abolishes the Death Penalty,” Colorado Independent, March 23, 2020,
https://www.coloradoindependent.com/2020/03/23/colorado-abolishes-death-penalty/.

33

John Wagner, “On Last Full Day, O’Malley Issues Orders Commuting Four Death-Row Sentences,” Washington
Post, January 20, 2015, https://www.washingtonpost.com/local/md-politics/on-last-full-day-omalley-issuesorders-commuting-four-death-row-sentences/2015/01/20/0d22c2f4-a10f-11e4-b146577832eafcb4_story.html.

NOTES

11

34

“Amnesty,” West's Encyclopedia of American Law, accessed June 25, 2020, https://legaldictionary.thefreedictionary.com/amnesty.

35

Andrew Glass, “President Carter pardons draft dodgers, Jan. 21, 1977,” Politico, January 21, 2018,
https://www.politico.com/story/2018/01/21/president-carter-pardons-draft-dodgers-jan-21-1977-346493.

36

NPR Staff, “A Reagan Legacy: Amnesty for Illegal Immigrants,” National Public Radio, July 4, 2010,
https://www.npr.org/templates/story/story.php?storyId=128303672.

37

“Frequently Asked Questions,” US Department of Justice, accessed March 14, 2020,
https://www.justice.gov/pardon/frequently-asked-questions.

38

Laura M. Holson, “‘No One Could Believe It’: When Ford Pardoned Nixon Four Decades Ago,” New York Times,
September 8, 2018, https://www.nytimes.com/2018/09/08/us/politics/nixon-ford-pardon-watergate.html.

39

Brandon Sample, “Reprieves Definition – Reprieves Meaning & Legal Government Definition,” Brandon Sample:
Attorney at Law, December 29, 2018, https://clemency.com/reprieve-definition.

40

Sample, “Reprieves Definition”; Carla Marinucci, “Newsom takes his case against death penalty to national
stage,” Politico, last updated March 15, 2019,
https://www.politico.com/states/california/story/2019/03/14/newsom-takes-his-case-against-death-penaltyto-national-stage-914806.

12

NOTES

References
Aksikas, Jaafar, and Sean Johnson Andrews, eds. 2016. Cultural Studies and the 'Juridical Turn': Culture, Law, and
Legitimacy in the Era of Neoliberal Capitalism. Routledge.
Barkow, Rachel. 2009. “The Politics of Forgiveness: Reconceptualizing Clemency.” Federal Sentencing Reporter 21
(3): 153–59.
BOP (Tennessee Board of Parole). 2017. Annual Report — 2017-2018. Nashville: Tennessee Board of Parole.
Harding, David J., Jeffrey D. Morenoff, Anh P. Nguyen, Shawn D. Bushway, and Ingrid A. Binswanger. 2019. “A
Natural Experiment Study of the Effects of Imprisonment on Violence in the Community.” Nature Human
Behavior 3: 671–77.
Harvell, Samantha, Jeremy Welsh-Loveman, Hanna Love, Julia Durnan, Joshua Eisenstat, Laura Golian, Edward
Mohr, et al. 2016. Reforming Sentencing and Corrections Policy: The Experience of Justice Reinvestment Initiative
States. Washington, DC: Urban Institute.
Kaplan, Aliza B., and Venetia Mayhew. 2019. “The Governor’s Clemency Power: An Underused Tool to Mitigate the
Impact of Measure 11 in Oregon.” Lewis & Clark Law Review 23 (4): 1,285–1,329.
Mauer, Marc, and Meda Chesney-Lind, eds. 2002. Invisible Punishment: The Collateral Consequences of Mass
Imprisonment. New York: The Free Press.
Nagin, Daniel S., Francis T. Cullen, and Cheryl Lero Jonson. 2009. “Imprisonment and Reoffending.” Crime and
Justice 38: 115–200.
NGA (National Governors Association). 1988. Guide to Executive Clemency among the American States. Washington,
DC: The National Governors Association Center for Policy Research.
Notterman, Ben. 2019a. “The Demise of Clemency for Lifers in Pennsylvania.” New York: NYU School of Law,
Center on the Administration of Criminal Law, State Historical Clemency Project.
———. 2019b. “Willie Horton’s Shadow: Clemency in Massachusetts.” New York: NYU School of Law, Center on the
Administration of Criminal Law, State Historical Clemency Project.
Novak, Andrew. 2016. Comparative executive clemency: the constitutional pardon power and the prerogative of mercy in
global perspective. London, GBR: Routledge.
Porter, Nicole. 2020. “Top Trends in State Criminal Justice Reform, 2019.” Washington, DC: The Sentencing
Project.
Roodman, David. 2017. The Impacts of Incarceration on Crime. San Francisco: Open Philanthropy.
Simon, Jonathan. 2016. “Amnesty Now! Ending Prison Overcrowding through a Categorical Use of the Pardon
Power.” University of Miami Law Review 70: 444–88.
The Sentencing Project. 2018. Report to the United Nations Special Rapporteur on Contemporary Forms of Racism,
Racial Discrimination, Xenophobia, and Related Intolerance: Regarding Racial Disparities in the United States Criminal
Justice System. Washington, DC: The Sentencing Project.
Walmsley, Roy. 2018. “World Prison Population List Twelfth Edition.” London, GBR: Institute for Crime & Justice
Policy Research.
Weissman, Marsha. 2018. Lessons for Sentencing Reform and Reentry: A Case Study of Project New Opportunity. New
York: Center for Community Alternatives.

REFERENCES

13

About the Authors
Leah Sakala is a senior policy associate at the Urban Institute’s Justice Policy Center. She has over a
decade of justice policy research and reform experience, and her work focuses on reducing
incarceration and correctional control and building community-based systems for safety, healing, and
accountability.
Roderick Taylor is a former research analyst at the Justice Policy Center. He worked on projects
related to gender-based violence, human trafficking, behavioral health, and state criminal justice
reform.
Colette Marcellin is a research assistant at the Justice Policy Center, where she works on projects
related to criminal and juvenile justice reform, behavioral health, and trauma-informed programs.
Andreea Matei is a research analyst at the Justice Policy Center. Her work focuses on public defense,
prosecutorial reform, state criminal justice reform, and alternatives to incarceration for youth and
young adults.

14

ABOUT THE AUTHORS

STATEMENT OF INDEPENDENCE
The Urban Institute strives to meet the highest standards of integrity and quality in its research and analyses and in
the evidence-based policy recommendations offered by its researchers and experts. We believe that operating
consistent with the values of independence, rigor, and transparency is essential to maintaining those standards. As
an organization, the Urban Institute does not take positions on issues, but it does empower and support its experts
in sharing their own evidence-based views and policy recommendations that have been shaped by scholarship.
Funders do not determine our research findings or the insights and recommendations of our experts. Urban
scholars and experts are expected to be objective and follow the evidence wherever it may lead.

:URBAN
NSTITUTE •ELEVATE•THE•DEBATE

500 L’Enfant Plaza SW
Washington, DC 20024
www.urban.org