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We should be doing far more rehabilitation and far less incarceration. (Photo: Josh Rushing/cc/ACLU of Louisiana)

The ACLU on Wednesday announced state-level blueprints that aim to end mass incarceration. (Photo: Josh Rushing/cc/ACLU of Louisiana)

Our Leaders Can Save Lives With the Stroke of a Pen

The gubernatorial and executive power of clemency is vastly underused. That needs to change, now.

The single action of a governor or president can reset people’s lives and send them on a journey of liberation and healing. This should be done more often in every state.

“This is a very strange feeling, tomorrow’s the first day of the rest of my life. The depression can be gone. You’re free to do what you want to do. You don’t have this hanging over you anymore.”

– Michael McCloud, granted clemency by Kansas Gov. Laura Kelly in July after serving 27 years in prison.

In most states, governors have the unilateral power to liberate people from incarceration or the sentence of supervision with a stroke of their pen. A governor can save people from a sentence of death, free people from a sentence of incarceration, and even liberate people from the burden of parole or probation. The power of commutations — reducing or eliminating sentences — can correct for racial bias, prosecutor misconduct, and wrongful convictions in the criminal legal system. More importantly, governors can do what state legislatures have failed to do — retroactively apply relief to people serving sentences that legislatures have deemed harsh, unnecessary, or discriminatory.

In recent weeks, multiple governors have led by example in using this transformative power, exercising their executive clemency powers to commute the sentences of incarcerated people. In Oregon, Gov. Kate Brown commuted the sentences of 41 incarcerated people who, while serving their sentences, bravely fought wildfires that torched over 4,000 residences and more than 1 million acres across the state. In Kansas, Gov. Laura Kelly commuted the sentences of five incarcerated people, the single most commutations in an executive action by a Kansas governor in 15 years.

Republican and Democratic governors commuted the sentences of a total of 164 incarcerated people in 2021. That number pales in comparison to the 2,437 commutations sparked in response to the COVID-19 pandemic in 2020. Just three out of 50 governors account for nearly 80 percent of all 2,601 commutations since 2020. Kentucky’s Democratic Gov. Andy Beshear has commuted 832 sentences, Oklahoma’s Republican Gov. Kevin Stitt has commuted 764 sentences, and Washington’s Democratic Gov. Jay Inslee has commuted 471 sentences. Yet these numbers are misleading: the large majority of Gov. Beshear’s and Gov. Inslee’s commutations in response to the COVID-19 pandemic were for people already on track to complete their sentences within a few months of each respective governor issuing their orders.

Despite the overwhelming failure on the part of governors to meet the moment and save the lives of incarcerated people from COVID-19 through large scale releases, we did see some governors break tradition and begin viewing their use of executive clemency authority as a normal and reasonable solution to underlying problems in their prisons and jails. A stroke of a governor’s pen brought harsh and unjust sentences to life, and the same stroke of a governor’s pen can end those sentences for thousands of people. We need every governor — and President Biden — to embrace their power to set people free.

Across the country, voters recognize the need for criminal justice reform, and a vast majority of voters across partisan lines support governors in using their clemency powers to liberate people and confront racial injustice. Eighty-six percent of Democrats, 81 percent of Independents, and 73 percent of Republicans support governors shortening the sentences of incarcerated people through clemency, according to a poll commissioned by the ACLU. The public support for the use of executive clemency should motivate the federal government as the Biden administration debates whether or not to send 4,000 people in federal custody on home confinement back to prison. Governors and the executive branch of the federal government have unique power when it comes to ending mass incarceration. We applaud the recent efforts of Gov. Kelly and Gov. Brown, but they could and should issue more commutations, more often. State governors and the president should heed the will of the people, and take action.

© 2021 ACLU
Melvin Medina

Melvin J. Medina

Melvin Medina is the National Campaign Strategist with the American Civil Liberties Union.

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