Governors can increase the use of their executive authority clemency as a corrective tool in order to reduce mass incarceration in the United States, an Urban Institute report suggests.
New legislative reforms passed to reduce the number of people incarcerated in the country do not have the language to allow the application of such laws to be applied retroactively, the report explained. A governor’s ability to adjust a sentence or release people from prison can serve as a remedy toward decarceration, the report says.
“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,” Urban Institute reported. “Governors can extend categorical clemency eligibility to groups of people based on their offenses, sometimes in conjunction with larger reform efforts.”
The report cites, for example, Oklahoma’s drug and property offense reforms passed in 2016 by a voter margin of 16%. In 2019, Illinois’s governor pardoned 11,017 marijuana convictions determined to be a low-level offense. The following day the state legalized marijuana.
“In October 2020, Colorado Gov. Jared Polis issued an executive order that pardoned more than 2,700 convictions for possession of an ounce or less of marijuana that were issued before the state legalized personal marijuana use in 2012,” the Urban Institute found.
According to the report, several states have also abolished or changed their felony murder laws, citing concerns over their disproportionate and unfair use. Other states are reportedly considering these same reforms.
As a form of targeted relief, the California Legislature passed Assembly Bill 1437, which changed the state’s felony murder law in 2018. Then-Gov. Jerry Brown signed the bill into law and it became effective in 2019.
“Another category of people who have received targeted consideration for clemency comprises people convicted as youth,” the report stated. “In 2007, Colorado Gov. Bill Ritter established the Juvenile Clemency Advisory Board to review clemency requests from people tried and sentenced as adults when they were minors.”
The study found that one in five people incarcerated in New York are serving a “virtual life sentence,” defined as time a person is not likely to complete based on their life expectancy. Because of that, some supporters have called for clemency to be applied to the elderly.
In 2017, California passed Assembly Bill 1448, the Elderly Parole Program, which created state Penal Code Section 3055. This allowed prisoners 60 years of age or older, who’d served 25 years or longer on their current sentence, to appear before the parole board. In 2020, the statute was modified under AB 3234, which lowered the requirement to 50 years old or older and 20 years or longer time served.
“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,” the study noted.
The report stated executive clemency is a tool governors may use to extend mercy and spread the practice of compassionate release to improve reforms being made in the criminal justice system. “Targeted relief,” the report said, can be directed retroactively to people sentenced prior to reforms. In doing so, such relief supports reentry and reduces the collateral consequences of incarceration by calming difficult access to housing, and reduces barriers to achieving education and employment for formerly incarcerated people returning to society.
Common corrective tools available to governors are amnesty, which can be used before a prosecution. Commutations can reduce a sentence. Pardons can forgive those convicted of a crime or who have been exonerated because they are innocent. Remission can reduce or remove fines or restitution. Reprieves or respites can postpone a sentence temporarily.
“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,” the report concluded.
