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The People Have Spoken: Clemency Appointments Should Follow the Will of the People

Executive Clemency, the process of granting a modified or revised prison sentence at the behest of the Office of the President of the United States, continues to be a largely overlooked and underutilized path toward reversing punitive mass incarceration despite the fact that there remains bi-partisan and majority support for this powerful conduit.

It is a well-known fact that our American prison system remains filled with people serving lengthy draconian sentences, many being decades-long, and often for non-violent, behavioral, or addiction-driven infractions. According to NYU law professor Rachel Barkow, “Clemency is a key tool for addressing poor enforcement decision and injustices.”

If we consider the will of the people as represented through their elected officials, the very impetus behind the concept of a Republic, then statistically, prison reform and population reduction is inevitable and should trigger mass commutations. A recent survey conducted by The Appeal suggests that 67% of likely voters, including 75% of Democrats, 68% of Independents, and 56% of Republicans support commuting people with chronic illnesses that require long-term care. In that same light, a nearly identical finding exists in favor of commutation for those prisoners 55 and older. Studies show that 41% of prisoners within the Federal Bureau of Prisons are now over 50 years of age, and the aging population of inmates within the prison system over the previous 50 years has risen by a resounding 4,400%.

According to The Appeal, commutations “can efficiently reduce this over-incarceration while also redressing racial injustice that pervades the criminal legal system, including in sentencing.”

Empirical findings show that individuals commit fewer crimes as they progress in age. Statistically, those over the age of 60 have been involved in fewer than 2% of all violent crimes. In addition, research shows that those serving a term of imprisonment begin to deteriorate socially after only two years of incarceration, and studies suggest that these same individuals deteriorate criminally after five years of incarceration.

The fact is that longer prison sentences have been shown to have no effect on discouraging individuals from committing a crime. Lengthy draconian sentences do nothing to reduce the likelihood that someone will commit another crime after they are released. It is highly unlikely that a bank robber would pause at the door of a bank just before his robbery to consider the significance of a mandatory minimum sentence over a sentence without a mandatory minimum. These considerations do not play a part in criminal rationalization as most criminals believe they will simply not be caught. Studies suggest that longer sentences and mandatory minimums play no role as a criminal deterrent. These concepts have proven to be a resounding failure, yet sentences have continued to increase over the previous 40 years.

With the current prison population across the country exceeding two million individuals, and now encompassing more prisoners than the combined prison populations of the top five largest nation states in the world, the U.S. prison population has reached a tipping point and continues to contribute significantly to the destruction of the family nucleus. Prison has resulted in greater societal damage than societal contribution. If we need a place to separate violent offenders from a vulnerable society, swift and effective rehabilitation should take precedence. Unfortunately, our prisons are filled with non-violent offenders whose lives are forever upended by and through a system of disenfranchisement. We could take a lesson from the Netherlands, a nation that upon releasing its prisoners assures that all prison and felony records are sealed thus granting their returning prisoners a true second chance at life.

The fact is, the President of the United States has at his disposal the single most powerful prison reform initiative ever introduced in this country, that of commutation. With one signature, this President can counter the racial, aging, and mental health disparities that exist behind our prison walls. Commutation is a solution by the people, of the people, and for the people—both free and imprisoned. 



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