The Power of Executive Clemency to Promote Systemic Change

by Renato Mariotti, Partner, Thompson Coburn LLP

*Renato Mariotti is a panelist for ACS’s congressional briefing Pardon the Disruption: The Reach, Limits and Effect of Executive Clemency

Usually, people only pay attention to the pardon power when it is the subject of controversy, like the pardon of former Sheriff Joe Arpaio earlier this year. Although pardons are typically thought of as a way to achieve justice in individual cases, executive clemency can be used to promote systematic change in state and federal policy.  For example, on his first day in office, President Carter pardoned civilians who violated the Military Selective Service Act by draft-evasion acts or omissions during the Vietnam War. President Carter intended for this blanket pardon to create reconciliation in the country and “heal the scars of divisiveness.”

More recently, President Obama began a clemency initiative in 2014 that focused on commuting the sentences of or pardoning people who received mandatory-minimum sentences for nonviolent drug offenses during the “War on Drugs.”  Through this initiative, President Obama encouraged people serving lengthy prison terms for nonviolent drug convictions to apply for clemency and prioritized those petitions from individuals convicted of drug trafficking offenses. President Obama’s clemency initiative focused on the fact that these individuals likely would have received considerably lower sentences if they were convicted of the same offense today.  President Obama ultimately commuted the sentences of 1,715 individuals, the vast majority of whom were serving sentences for drug convictions.

While President Obama’s initiative was an important first step, most people convicted of nonviolent drug offenses are convicted of state crimes, not federal crimes.  I believe state governors should adopt a program similar to President Obama’s, inviting clemency petitions from non-violent drug offenders serving state or federal sentences.  Like President Obama, they could invite individuals serving sentences for drug-related convictions to apply for clemency to if they meet the following conditions:

• The individual is currently serving a federal or state sentence for a drug-related offense;
• The individual does not have any felony convictions or arrests, other than ones related to their drug conviction(s);
• The individual does not have a history of violence prior to or during their term of imprisonment;
• The individual has already served more than 25% of their sentence or 10 years, whichever is less; and
• The individual has demonstrated good behavior in prison.

These petitions would then be decided on a case-by-case basis by the Governor’s office.

This policy would benefit state governments and taxpayers that are bearing the cost of imprisoning non-violent drug offenders who would likely be sentenced to significantly lower sentences if sentenced today.

Criminal Justice, Executive Power, National Security and Civil Liberties, Prison Policy/Incarceration