It’s Time to Make the Clemency System Less Opaque
Michael Holmes tries his best to sound upbeat when discussing his bid for freedom. Now 18 years into a federal life sentence for selling crack and marijuana in McKinney, Texas, the 43-year-old Holmes is waiting to hear if he’ll be granted a commutation, an act of presidential clemency that represents his last real shot at ever returning home. He notes that the political climate is unusually ripe for such a happy outcome: President Obama, who wrote in May that “it just doesn’t make sense to require a nonviolent drug offender to serve 20 years,” has commuted more prison sentences than his nine predecessors combined, while House Speaker Paul Ryan has resolved to address the harm caused by a generation’s worth of draconian sentencing for nonviolent crimes. Holmes also touts his exemplary behavior behind bars: “I’m a cook in the officers’ dining room,” he says by phone from a medium-security prison in Arkansas. “You know you have to be a well-trusted person to do that, to be allowed to handle the officers’ food.”
But there are moments when Holmes can’t help but voice a tinge of despair. His principal co-defendant had his own life sentence commuted in 2013, and Holmes is baffled as to why he has yet to receive similar mercy. Nor does he have any clue when the White House might finally get around to deciding on his commutation petition, one of over 20,000 still pending. “My thing is, when my co-defendant got out, why didn’t I get [clemency] the year after, or the year after?” he says. “The frustration I’ve been going through, it’s just so…dang.”
Such bewilderment is the norm among federal clemency applicants, for the process is notoriously opaque. Once an inmate mails in the standard seven-question petition, they seldom hear another meaningful word for years. There’s no way to track a petition’s progress through the numerous layers of review, and thus no way to spot where bottlenecks occur or to seek redress if government attorneys make mistakes. And since the White House never explains the reasoning behind its clemency decisions, no one really understands why a handful of lucky applicants end up favored over thousands of others.
“You’re just dropping something into a hole and seeing if it comes out somewhere else,” says Mark Osler, a former federal prosecutor and a professor at the University of St. Thomas School of Law. “You don’t know what the hurdles are that you’re supposed to jump over, or even where they’re located.” This dearth of transparency makes the clemency system less compassionate than it should be. But there’s a simple fix that can cast crucial sunshine on the process: place much more of its data online, so that it can be crunched by the families and activists who are coping with the destructive excesses of the War on Drugs.
There’s a strong historical precedent for this sort of openness: For close to half-century prior to 1933, the reasons for each act of presidential clemency, as well as the names of the officials who endorsed the decision, were published in the attorney general’s annual report. The practice was halted solely as a cost-cutting measure: Short on cash in the midst of the Great Depression, the Justice Department stopped printing any information that wasn’t required by law. But the data didn’t return once the economic crisis passed, largely due to the wishes of the Office of the Pardon Attorney, the Justice Department division that evaluates each clemency petition before sending it to the White House. The OPA maintained that resuming the in-depth explanations would embarrass “a large number of persons whose convictions had not been a matter of wide publication.”
That argument holds little water in this era of ubiquitous bandwidth: All federal criminal records are now just a few clicks away thanks to databases like PACER, which archives hundreds of millions of indictments, affidavits, judgments, and other legal documents for criminal and civil cases. Yet the OPA continues to resist calls for greater transparency by portraying itself as a champion of privacy rights. In response to a 2009 lawsuit that merely sought the names of applicants who’d been denied clemency, for example, the OPA claimed that releasing even that very basic information would stigmatize the failed petitioners. (The OPA lost the case.) The White House also remains opposed to opening up the clemency process to public scrutiny, for a number of reasons: “Making public where a petition is in the process could create false and misleading expectations,” asserts a senior Obama administration official, who spoke on condition of anonymity. “Where a petition is at, at any moment in time, does not necessarily reveal when, or if, the President will act on a given petition.”
But many advocates of clemency reform believe that the OPA and White House also have less altruistic reasons for wanting to preserve the black-box nature of the process. “It would be worthwhile to have statements about why cases are denied or granted, but they’re reluctant to do that because doing so will make them accountable,” says Osler. “If there’s a case where the facts are known, a hundred other people with the same circumstances will ask questions.” The clemency gatekeepers’ wish to avoid answering those questions strikes Osler as hypocritical: As he points out, federal prosecutors constantly harp on the need for criminal defendants to accept accountability for their actions, yet their colleagues who run the federal clemency system refuse to do likewise.
Just as PACER and other legal online services have assuaged legitimate privacy concerns by making sure that sensitive documents are redacted or sealed, an online clemency-monitoring system could easily safeguard confidential information. Part of the system should consist of a secure site that only prisoners and their loved ones can access to keep tabs on individual petitions. This would at least give them a sense that their plights had not been forgotten, as well as let them pinpoint and perhaps even respond to unjust delays—for example, if the original prosecutor or judge fails to reply to an OPA request for comment in a timely fashion.
But the centerpiece of the system should be a digital version of what was abandoned in 1933: a public database filled with details and statistics about each successful clemency bid. By analyzing the minutiae of hundreds of recent commutations, we could start to discern patterns in how and why clemency is granted. Perhaps we would discover that the White House tends to be moved by cases in which the prisoner was walloped with a particular kind of sentencing enhancement; that certain types of letters of support are valued over others; or that much depends on the specific language that applicants use to answer the vague seventh question on the petition (“State your reasons for seeking commutation of sentence”). This information would be invaluable to petitioners who are desperate for inklings of how to state their cases in the most effective manner possible. (The vast majority of clemency applicants write their own petitions.)
Adding transparency to the clemency process could also allay longstanding suspicions that prejudice and corruption play outsized roles in determining who gets to go free. “I believe profoundly that if they made the justifications for clemency public, the whole topic would be less controversial,” says P.S. Ruckman Jr., a political scientist at Northern Illinois University and the author of a forthcoming book about clemency. “Right now we’re kind of feeling around in the dark, and that invites all sorts of speculation.” Michael Holmes, for example, wonders if he’d already have been released if he was Hispanic like his liberated co-defendant, rather than African-American. Only a mass of hard data, accessible to all, can dispel such innuendo—or perhaps confirm that troubling inequities do exist and need to be rectified.
The federal government is not accustomed to paring back its secrecy without a fight, and it will be wary of the notion of exposing the executive branch to additional scrutiny by making the clemency process significantly more transparent. But if politicians from both left and right are sincere in their declarations that too many lives have been ruined by reckless incarceration, they must understand that more digital openness can only aid their cause. Their stated goal, after all, is not to keep Holmes and thousands of other nonviolent offenders in perpetual limbo, but rather to speed their journeys home.