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Why Aren’t Democratic Governors Pardoning More Prisoners?

It's one of the most effective tools for reducing mass incarceration, but few are taking advantage of it.

Andrew Burton/Getty Images

Christmas is often described as the season of mercy, forgiveness, and redemption. For a handful of prisoners each year, that description has even greater meaning. Governors traditionally use the holiday season as a thematic backdrop for pardons, and last month was no different.

Michigan Governor Rick Snyder issued one for Lukasz Niec, a legal immigrant who faced deportation by ICE for two misdemeanor convictions when he was a teenager in the early 1990s. Tennessee’s Bill Haslam pardoned seven people in the state’s prisons and reduced the sentences of four others. Arkansas’ Asa Hutchinson wiped away 14 people’s convictions and reduced a prisoner’s sentence to make him immediately eligible for parole.

Governors in most states have the power to pardon or commute sentences, either at their sole discretion or with some level of input from a commission. Since most convictions occur at the state level, some governors can wield even greater influence on criminal justice than the president can. But most governors rarely use this power, and few have made it a mainstay of their tenure in office—a major missed opportunity for justice and the public good.

Some outgoing governors were particularly resistant. New Mexico Governor Susana Martinez, a former prosecutor, issued only three pardons during her two terms in office and added new restrictions to deter applicants. Florida Governor Rick Scott turned the state’s clemency system into a hopeless slog. Wisconsin Governor Scott Walker issued no pardons during his eight years in power, and in one of his final official acts, he signed a bill requiring state officials to keep a list of pardoned people who commit subsequent crimes and the governor who pardoned them.

All three of those governors hail from the Republican Party, which traditionally favored tough-on-crime policies. But even Democratic governors can be stingy. New York Governor Andrew Cuomo made headlines last month when he pardoned 22 immigrants who faced deportation or couldn’t apply for citizenship because of previous state convictions. The pardons gave Cuomo a chance to cast himself as a leading figure in the Democratic resistance to President Trump. But with almost 200,000 New Yorkers in prison, probation, or parole, issuing fewer than two dozen pardons is hardly a courageous act.

Pardoning incarcerated people or commuting their sentences largely fell out of vogue during the tough-on-crime era at both the state and federal level. Harry Truman issued more than 1,900 pardons during his tenure, while Dwight D. Eisenhower handed out more than 1,100 throughout his eight years in office. That number fell even as prison populations exploded in the 1980s and 1990s: George H. W. Bush, Bill Clinton, and George W. Bush collectively issued fewer than 700 pardons during their quarter-century in power. Though comparable figures for the nation’s governors aren’t readily available, they’ve reportedly shown a similar aversion to clemency since the 1960s.

What would it look like if governors pursued a more aggressive approach to their clemency powers? Jerry Brown, California’s outgoing governor, carved out a model of sorts. The state’s longtime leader spent his fourth and final term in office setting a national benchmark for clemency: The Times of San Diego reported that Brown has pardoned at least 1,332 inmates since 2011, quadrupling the number issued by the preceding four governors combined. The burst of activity is particularly stark compared to his two immediate predecessors, Arnold Schwarzenegger and Gray Davis, who respectively issued fifteen and zero pardons.

Those who have received pardons from Brown cut a broad swath, ranging from a couple that lost their home in the devastating Camp Fire last month to five Cambodian-born immigrants who feared deportation by the Trump administration. In a slate of Christmas Eve pardons, the governor also ordered new DNA tests for Kevin Cooper, a death-row inmate who says that local police framed him for a quadruple homicide in the 1980s. For Brown, there’s a self-redemptive element at play. He previously served as California’s governor from 1975 to 1983, right at the cusp of the nation’s turn toward harsher sentencing laws and mass incarceration.

Solid-blue states aren’t the only ones where governors have made bold use of their clemency powers. Terry McAuliffe, a moderate Democrat who led Virginia from 2014 to 2018, initially tried to restore voting rights to almost 200,000 former felons with a single executive order in 2016. After the state supreme court struck down his sweeping order later that year, McAuliffe began to issue them on a person-by-person basis, restoring the franchise to more than 173,000 citizens by the time he left office. Ralph Northam, his successor, has continued the clemency program on a rolling basis as prisoners return to society.

Issuing mass pardons may not be as politically feasible in some states as it is in California and Virginia. So where could a more apprehensive governor begin? Perhaps the most prudent place would be the swelling numbers of elderly prisoners who were condemned to spend their dying years behind bars. In a December 2017 report, the Vera Institute for Justice found that roughly 10 percent of prisoners in state custody in 2013—roughly 131,000 people—were more than 55 years old. Demographic trends are expected to raise that figure to 30 percent by 2030. Multiple states already have compassionate-release programs for elderly or dying prisoners; governors could fast-track pardon and commutations to accelerate the process.

Death row is another area where governors could be more aggressive. Thirty states currently authorize the death penalty, but only a handful of states regularly carry out executions. The growing difficulty in obtaining legal injection drugs, the decline in public support, and the expensive appellate process have made it a costly, burdensome proposition. The result, as a federal judge in California put it in 2014, is better understood as “life in prison, with the remote possibility of death.” Rather than continue to spend exorbitant sums on legal challenges and new execution methods, a governor could turn prisoners’ de facto life-without-parole sentences into actual ones.

There’s already precedent for this: As he left office in 2003, Illinois Governor George Ryan shuttered the state’s 167-person death row in one fell swoop. The governor best positioned to deliver such a blow today is Jerry Brown. More than 700 prisoners are on death row in California, by far the nation’s largest, even though the state hasn’t executed anyone since 2006. But Brown’s clemency spree has left the state’s death row at San Quentin State Prison largely untouched. While he has shown pardons to be a powerful tool for criminal justice reformers, he has left plenty of work for his successor to do.