We have a redemption deficit in this country. While our criminal legal system has seemingly perfected the process of imposing punishment, as a society we remain wholly unprepared to reintegrate people who commit crimes back into our communities. When Kentucky Gov. Matt Bevin granted over 500 clemency applications for pardons and commutations before leaving office in late 2019, the subsequent sensationalist media coverage was emblematic of our societal inability to forgive and make room for redemption. The United States incarcerates people at a rate higher than any other country. Over the last 40 years, our country has increased its prison population by 500%. While the length of prison sentences has increased considerably over the last few decades, the vast majority of those serving sentences in our prisons and jails will eventually come home. The exercise of clemency power—the act of mitigating punishment for a crime by pardon or commutation of a sentence—is one way those sentences can come to an end. The way clemency is used, and the way we talk about it, showcase how far we have to go in divorcing punishment from justice.
Clemency is intrinsic to the foundations of this country. Clemency powers are included in Article 2, Section 2 of the Constitution, which allows the president to grant “reprieves and pardons” for federal offenses. The fact that clemency is placed within the powers of the executive branch is no coincidence: its purpose is to serve as a check and a balance on both the legislative branch who makes the laws, and the judiciary branch which is in charge of sentencing. This country’s founders may not have conceived incarceration’s extreme growth, but they certainly considered the fact that judges and legislators may need their authority kept in check within the criminal justice system.
While the clemency power in federal cases lies with the president, in the state context, the process varies. The vast majority of states use a shared power method where the decisions are split between the governor and an independent board. In the remaining states, pardon powers lie either solely with the governor, or solely with the independent board. The use of these different methods lends to similarly varying results; 19 states granted few to no pardons in the past 20 years, and only 13 states granted a significant percentage of the applications. For any hope of relief from their sentences, applicants for clemency are often required to portray themselves as individuals nearing perfection, and at times that still isn’t enough. Even with the backing of wardens, or at times the families of their victims, some applicants still aren’t granted the pardons or commutations that they seek.
Recently, New York Gov. Andrew Cuomo showcased exactly how difficult those incarcerated in his state have it when applying for governor-issued clemency. Despite asking lawyers to volunteer their time to identify those in New York seeking clemency and assist them in the process beginning in 2017, the governor failed to grant any applications for clemency in 2019, and granted a mere 11 applications for clemency on January 3, 2020. The state of New York had 92,000 people incarcerated in its prisons and jails in 2019.
By granting only the rarest few a reprieve from a legal system more focused on punishment than rehabilitation, the scant use of clemency shores up the nearly insurmountable stigma of criminalization, suggesting that those worthy of redemption are few and far between. A just clemency process would force us to dig into the questions of what it means to be redeemed, and what avenues we can create as a society to support redemption.
Even when clemency powers are used, the media’s reaction showcases just how far we have to go. After outgoing Gov. Bevin granted his pardons, the media coverage referred to the pardons as “controversial,” “a flood of pardons,” and even a “pardoning spree,” suggesting that he was doing something nefarious by exercising the power conferred by his position. Much of the media-driven reactions about Bevin’s use of clemency powers featured deep dives into a small cross section of cases: a man who was convicted of rape of a child, and another man who was convicted of murder. Following the clemency announcement, the newly seated Attorney General Daniel Cameron called for an FBI investigation, and then came bills, and even constitutional measures, by a state senator which would strip the governor of his clemency powers before an election.
Although some of the criticisms of Bevin’s use of his powers—particularly his choice to pardon a man whose family held a fundraiser for his re-election—is focused on the governor himself, the vitriol that shapes the clemency narrative is formed by how we think about people who commit crimes, and what it means to offer them a second chance. When clemency is granted to nearly 600 people, but the news cycle is dominated by the details of the crimes of two people, the lack of belief in redemption for people who commit crimes is palpable. The distrustful way that our society and media discuss clemency and the possibilities of a second chance for those who are accountable for their wrongdoing previews what awaits incarcerated people once they are released.
It is difficult to re-enter a society that has closed and locked its doors. Clemency can and should be used to pick those locks by normalizing the notion that people deserve second chances. To do so, we must collectively learn to talk about clemency as a legitimate check and balance on our criminal legal system, rather than a suspect use of executive power.
