Magazine article The American Conservative

The Case for Clemency: To Forgive Prisoners Is Divine-Or as Close as Government Gets

Magazine article The American Conservative

The Case for Clemency: To Forgive Prisoners Is Divine-Or as Close as Government Gets

Article excerpt

You've probably heard the statistic too many times already: we are 5 percent of the world's population but home to 25 percent of its prisoners. The land of the free has for decades now been the world's greatest incarcerator, in both rate and absolute numbers, more likely to lock people up than authoritarian states like China, Russia, Cuba, Egypt, or Iran.

At the federal level--which only accounts for about 12 percent of U.S. prisoners--mild sentencing reform has both bipartisan support and bipartisan resistance in the Senate. Looking to the states, a much hyped "moment" of criminal-justice reform is more than countervailed by the deeply ingrained punitive habits of governors and legislatures across the land, from Massachusetts, whose liberal governor signed a tough "three strikes" law in 2012, to Louisiana, where Bobby Jindal upped penalties for heroin-related offenses.

Whether we admit it or not, we are in quite a spot: our hyper-incarceration is unprecedented in U.S. history. Rectifying this will require changes in policing, a cutting back of what we criminalize, and serious revision of our sentences, which far outstrip their deterrent value. Another part of the solution will have to be clemency on a massive scale: pardons, which all but expunge a criminal record; commutations, which shorten a prison sentence; parole; geriatric and compassionate release; and retroactive sentencing reform.

As of this writing, Obama has issued more commutations than any other president since Lyndon Johnson. But the supply of imprisoned Americans is orders of magnitude greater than it was in Johnson's day, and Obama has only granted pardons or commutations at the exceedingly stingy rate of one out of 136, in line with the steep plummet in clemency since World War II. The Department of Justice has promised to routinize clemency, issuing new guidelines for nonviolent offenders who have served 10 years already, but the results so far have been bonsai-scaled in comparison to the magnitude of the federal prison population. (One former DOJ attorney, Margaret Colgate Love, has recently questioned the agency's ability to process clemency effectively given the hardwired structural incentives against mercy in an agency staffed mostly by prosecutors.)

There is more clemency potential in retroactive sentencing reforms, like the "drugs minus two" policy established by the U.S. Sentencing Commission in July of 2014, which bumps nonviolent drug offenders down two levels in the federal sentencing guidelines, reducing federal drug penalties by an average of two years. Twenty-four months is not nothing, but this still leaves federal sentences for nonviolent drug offenses much longer than in most other first-world nations. After a year of processing claims--some 46,000 federal prisoners will be eligible to file for relief, though so far judges have denied one-fourth of all applicants--inmates are starting to trickle out early from federal prisons, with 6,000 released in November and more to come. ("Has Obama set loose a new Willie Horton?" asked a Politico headline in response, an indicator of the lip-smacking media panic around even the mildest reform efforts.) Overall, this reform could reduce the number of federal inmates by a few percentage points but probably not more. A new Senate sentencing reform bill also promises some retroactive sentencing relief, with results likely to be similarly meager.

So much for Washington, which despite much misty-eyed self-congratulation has not shown itself up to the task of scaling back our prison state. Washington's timidity means less than it first appears however: despite lazy media focus on the federal justice system, the real action is at the state level, which handles most policing, sentencing, and imprisoning.

Alas, here too the general trend has been towards greater stinginess with clemency. Take the example of Minnesota, a state that has, by U.S. standards, a low incarceration rate and arguably the most humane penal system in the country, with perhaps more in common with Denmark and Germany than with Texas and Louisiana. …

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