The New York Times reported on Friday, July 3, 2015, that President Barack Obama is expected to commute the sentences of dozens of nonviolent drug offenders during the next few weeks. Many see it as an effort to address the over-sentencing that became a politically expedient “tough on crime” stance during the height of drug prohibitionism.
The Department of Justice has created guidelines for clemency petitions under the direction of deputy attorney general, James M. Cole, otherwise famous as the author of the “Cole memorandum.” The initiative looks for nonviolent inmates who have served more than 10 years in prison, have behaved well while incarcerated and would not have received as lengthy a sentence under today’s revised sentencing rules.
Pardons, which forgive crimes, and grants of clemency, which reduce penalties, can be politically controversial. Presidents typically exercise that power only in the waning days of an administration. Presidents can also exercise this power only with respect to federal crimes. Most drug convictions happen under state law. Is there any relief on the horizon for nonviolent drug offenders over-sentenced in state courts?
The following thought experiment begins with a two-step process. Step one looks at governors who have similar pardon powers within their own states. More specifically, it looks at governors who are term-limited and thus may be politically fearless unless they suffer from further political aspirations. There are approximately 20, at least until more of them decide to run for President.
Step two looks at states that have at least decriminalized marijuana, so that sentencing results would likely be different today than in the past. There is very little overlap between the two lists, perhaps because term limits are more prevalent in the South where efforts to decriminalize have moved more slowly.
On the basis of this rough sort alone, three governors stand out: Gov. Jack Markell of Delaware, who is term-limited as of the end of 2017, and Govs. John Hickenlooper of Colorado and Jerry Brown of California, both of whom are term-limited as of the end of 2019.
The pardon and clemency process is in full swing in Delaware. Gov. Markell has signed more than 1,500 pardons, including in cases involving drug convictions. This is more than any previous Delaware governor. He has also granted clemency in at least one high-profile death penalty case.
In Delaware the governor cannot grant a pardon or clemency unless he receives a recommendation from the Board of Pardons. In recent years, the board has considered about 50 cases each month, and recommends favorably about 85 percent of the time. The governor, in turn, grants over 90 percent of the cases recommended by the board. The board is now accepting applications for 2016 hearings.
Gov. Jerry Brown is a C&E (Christmas and Easter) pardoner, having granted more than 500 since he took office in 2011. The 105 granted on Christmas Eve 2014 were mostly for people who have been convicted of nonviolent drug offenses and burglary more than a decade ago. The 63 granted this April included more than 40 for individuals convicted on charges of possessing, selling or manufacturing controlled substances, including marijuana.
The California Board of Parole review process is similar to that conducted in Delaware. It should be noted, however, that executive clemency is available only to those who have been discharged from parole or probation for at least ten years.
Colorado stands in stark contrast. Since taking office in 2011, Gov. Hickenlooper has not granted any petitions for pardons or sentence reductions. As of January 2015, the Denver Post reported that the Executive Clemency Advisory Board had never met. Unlike Gov. Markell, Gov. Hickenlooper can review and grant pardons without the advice of the board. Approximately 150 applications have been submitted.
Prior to his re-election in 2014, Hickenlooper reportedly suggested that he might grant the clemency petition of death row inmate, Nathan Dunlap, if he lost. Rarely is the political calculation so obvious. Although the situation seems ripe in terms of changing law, the possibility of drug offense pardons or clemency in Colorado may not mature until closer to the end of Hickenlooper’s term, unless he has continued political aspirations.
Pardons and clemency, at both the federal and state level, are hardly a complete answer to the havoc wrecked on the lives of young Black and Hispanic men and the communities that lost them for years. But it’s a start.