If applied equitably, clemency power can begin to fix damage caused by a broken system
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America leads the world in incarceration, with 2.3 million people in jail and prison — since 1970 there has been a 700 percent increase in incarceration. The United States spends over $80 billion on incarceration each year on a brutal and costly response to violations or possible violations that traumatize incarcerated people and hurt families and communities. The mass incarceration crisis is largely split along racial lines — the imprisonment rate among black men is nearly six times that of white men and the incarceration rate of black women is almost double that of white women.

More people now understand that mass incarceration is not the answer to increase public safety and recognize the need for meaningful criminal justice reform. This understanding has led to new reforms, but much more is necessary to heal the harm inflicted by the failed war on drugs which was specifically aimed at communities of color.

Despite this push for reform, tens of thousands of people remain incarcerated because of the system’s failure to release them long after they have served substantial time in prison, been rehabilitated, and are ready to return to their communities. Although it should not be the lone response to overincarceration, the United States Constitution’s Article II clemency power is a useful and powerful tool to begin to immediately correct the horror of unnecessarily long sentences.

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The Article II discretionary power belongs to the executive, who has broad discretion in the exercise of this power. It is precisely because this power is vested in the executive that there is a heightened need for the appearance and substance of fairness and justice. This is the foundation of our faith in our democracy.

This power must not be exercised with incarcerated persons in the same manner as it is used for turkeys in November, sparingly and reserved for a lucky few who are called to the attention of the executive because of connection, financial status, or celebrity. The average person should be assured that their petition for clemency will not require more than evidence of the need for mercy under the circumstances.

Without this assurance, the least fortunate among us, and specifically those against whom the war on drugs and over policing are aimed, suffer under a caste system from which they can never emerge given the myriad of collateral consequences of conviction. They are required to watch from the cages, in which they have been placed, as others who have been incarcerated for the same acts are released. And in the case of marijuana convictions, they’re forced to watch them go on to profit from the very acts for which the disfavored masses serve out their sentences.

During Clemency Project 2014, there were more than 36,000 applicants for clemency. Thousands of family members called, emailed, sent mail, and personally appeared in our office in hopes that their loved ones would be lucky enough to be granted clemency. One mother called me every week to pray with me for the release of those suffering under long sentences. I was also contacted by judges, probation officers, defense lawyers, law professors, and some prosecutors who sought to bring to our attention someone languishing in prison with hope for their release. Sadly, some of the petitions were denied while many remain unanswered, leaving the petitioners and the many interested parties without answers, wondering where is the justice, where is the fairness in the secret deliberations on the applications for liberty.

The clemency process must be completely independent of the system employed to incarcerate millions of people. A first step is an independent commission with representation from all stages of the criminal justice system, including those who are formerly incarcerated, prosecutors, defense lawyers, corrections experts, and members of the public with appropriate resources to review the inevitable deluge of petitions from the masses. Independence would ensure that one actor could not put a thumb of the scales of justice, as is the case in our current system, where the same person who prosecuted the case in the Department of Justice has this power.

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This commission would promulgate clear and equitable criteria for release. Applicants would have notice of the evidence necessary to successfully support a petition for clemency. Newly incarcerated persons would have an incentive to immediately work to achieve necessary rehabilitation. The general public would understand and believe that the system is just and broadly available, and not reserved for a privileged few under a secret process. 

Paramount among the criteria would be the consideration of anyone suffering under a sentence because of a failure to retroactively apply reform. If we, the people, determine that we are no longer willing to seek incarceration for certain acts, then those who were previously incarcerated for those acts must go free in order for equal justice under the law to have meaning. Categorical clemency could be granted, for example, to those serving enhanced sentences where the penalty no longer applies and for those serving long sentences because of a trial penalty after electing to exercise their constitutional right to trial. Although there is a mechanism for compassionate release, it is underutilized and when employed, release is often denied. The clemency commission could be used to clear this backlog of the elderly or inform who deserves to be released.

The executive has the opportunity to remove the scourge of mass incarceration from our justice system. That scourge informs one in three black boys born today that they can expect to be incarcerated. That scourge prevents $80 billion from being spent on their education because it is being spent to incarcerate. When historians look back on what we did during our watch, let them record that we were enlightened; may they extol the virtue of our quest for equal justice for all and may they marvel at the expediency with which it was achieved.

Cynthia Roseberry is the deputy director of the ACLU’s Justice Division.