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Clemency Can Correct Injustices and Restore Dignity. Why Don’t Governors Use It More?

Millions are serving unjust sentences or struggling with permanent marks on their records. Pardons, expungements and commutations can provide a second chance for an individual, a family and a community.

A prison building as seen through a chainlink fence.
Last month, the Texas Board of Pardons and Paroles reversed its unanimous vote to recommend a posthumous gubernatorial pardon for George Floyd. The pardon would have erased a 2004 conviction for a minor drug offense — a conviction that resulted from an arrest by a disgraced former narcotics officer who has since been accused of crimes including federal charges of falsifying documents.

The board’s explanation was that its prior recommendation was marked by “procedural errors.” By reversing course, the board created a roadblock in the pursuit of dignity for George Floyd. But its action is emblematic of so much more: A national failure to use clemency as a tool to correct injustices.

Under the Texas Constitution, the governor has the authority to grant clemency only to those the board has recommended for pardon or commutation. However, this is not the case in most states: Most governors have broad, if not unilateral, clemency powers, yet they rarely use these powers to create justice for people like George Floyd. Yet Americans believe in the power of clemency: 74 percent agree that “we have a responsibility to correct the unjust sentencing laws of the past that keep too many people in prison for too long,” and majorities across the political spectrum support the use of clemency.

Our prisons and jails hold hundreds of thousands of people serving egregious sentences for drug possession and other nonviolent offenses. There are millions more with permanent marks on their records, despite having completed their sentences. Commutations provide an opportunity for people to return to their communities. Expungements free millions of people from the barriers to re-entry that come with a criminal record. Pardons provide an opportunity for forgiveness, reconciliation and dignity. Broad acts of clemency have the power to correct for the racial disparities we know are endemic to our criminal legal system.

But despite having the power to correct so many harms, few governors and other state officials have exercised their clemency powers with the care and consideration required. There are exceptions that inspire, including Republican Gov. Asa Hutchinson of Arkansas, who has provided clemency relief to approximately 900 people convicted of a variety of offenses, allowing them the opportunity to meaningfully re-establish their lives and their futures. In Illinois, Democratic Gov. J.B. Pritzker granted 11,000 pardons for low-level marijuana offenses in 2019, and Oregon’s Democratic governor, Kate Brown, has granted more than 1,000 commutations. Behind each of these pardons, expungements or commutations lies a second chance for an individual, for a family and for a community.

As a member of the American Civil Liberties Union’s Redemption Campaign and as someone who has seen firsthand the impacts of incarceration on my own family members, I know how important these second chances are — and have seen how people change the course of their lives.

The particularly egregious injustice of denying a pardon to George Floyd ignores our shared values of forgiveness and redemption. This denial is an abdication of duty by the Board of Pardons and Paroles, and a refusal to responsibly and justly apply our laws. Regular and proactive clemency determinations are critical to ensuring that our criminal legal system reflects these values.

Governors and other state officials have discretionary authority similar to that of a prosecutor or judge to influence for the better the outcomes of those who are justice-involved. It is time for those officials to embrace their clemency powers and provide relief for the harms of policy decisions that have led to mass incarceration and unjust criminalization. We call on them to embrace the power of redemption.

Tara Stutsman is a campaign strategist for the American Civil Liberties Union and a member of the ACLU’s Redemption Campaign, a nationwide effort to engage elected officials in using their clemency powers in new and transformational ways. Before joining the ACLU, she served as a legislative aide to U.S. Sen. Jeff Merkley of Oregon.

Governing’s opinion columns reflect the views of their authors and not necessarily those of Governing’s editors or management.
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