Clemency: What to Know and Where to Go for More

Because of the complexity and variation in clemency processes across jurisdictions, this section establishes some basics before diving deeper into the latest data and research. 

Definitions

• Clemency: The mechanism by which government executives or independent boards grant relief from a court-ordered sentence or criminal conviction, typically in the form of a pardon or a commutation. 
• Pardon: An act of clemency that forgives a person charged with or convicted of a crime, typically eliminating any remaining penalties and exempting them from any future prosecution or punishment for that offense. Pardons are usually granted after people have completed their sentences. While pardons forgive past convictions, they do not automatically result in expungement or record clearance. 
• Commutation: An act of clemency that reduces either fully or partially the court-ordered sentence a person has received for a criminal conviction. While commutations reduce court-ordered sentences, they do not always result in release from jail or prison, and when they do, constitute an exceedingly small share of total releases.

The process by which clemency applications are considered and relief is granted varies widely depending on the jurisdiction. 

Federal

At the federal level, Article II of the U.S. Constitution vests the President with the power to “grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” Federal regulation charges the Attorney General with providing advice on pardon decisions and the Office of the Pardon Attorney (OPA) in the U.S. Department of Justice (DOJ) with reviewing applications and making recommendations. While the president may act unilaterally, applications typically go through several layers of review at OPA and DOJ before being sent to the president for final consideration. This process has been criticized for its complexity and the potential for bias against clemency since the agency that is tasked with reviewing applications and making recommendations for relief is the same agency that prosecuted the crimes in the first place. Elizabeth Oyer was appointed to serve as Pardon Attorney in April of 2022 and is the first former public defender to serve in that role.

State

At the state level, clemency power is generally vested in one of the following ways: 

1. An independent board has sole authority over clemency decisions.
2. The governor has final authority over clemency decisions with mandatory consultation from a board of pardons.
3. The governor has sole authority over clemency decisions.

Even in the states where the governor has sole authority over clemency decisions, there is typically a pardon board that they consult with as part of their decision-making process. The legislature and judiciary are also frequently involved in the clemency process, either by advising or consenting to pardons or receiving information on the frequency and justifications for granting relief. 

More resources: 

• The Restoration of Rights Project at the Collateral Consequences Resource Center published an extensive guide to pardon policy and practice for the federal system and each state. 
• The Center on the Administration of Criminal Law at New York University compiled an overview of the clemency powers available to each state governor. 

Clemency grant rates fluctuate from one presidential or gubernatorial administration to the next, and vary widely across the states. According to the Restoration of Rights Project, only 17 states engage in a regular clemency process that results in 30 percent or more of applications being granted. The following resources have more information on the frequency and scope of clemency actions at the federal and state levels.

• The Office of the Pardon Attorney maintains a database with federal clemency statistics going back to the McKinley administration in the beginning of the 20th century. 
• The Restoration of Rights Project has a guide to pardon frequency for all 50 states and the District of Columbia. 
• In 2022, the Prison Policy Initiative released a report with detailed information on commutation grants (or the lack thereof) in eight Northeastern states (Connecticut, Maine, Massachusetts, New Hampshire, New York, Pennsylvania, Rhode Island, Vermont). 
• The ACLU released a report about clemency trends in 2022. 
• FWD.us published a 2024 report on clemency and the federal prison population. 

Examples

In addition to these resources, there are numerous examples of categorical or large-scale clemency efforts in recent years that show how executives from both political parties have used their pardon power. 

• In Oregon, Democratic Governor Kate Brown used her clemency power in multiple ways during her two terms in office (2015-2023). She commuted the sentences of 17 people on death row to life without parole and commuted the sentences of 963 people during the COVID-19 pandemic who were close to their release dates or medically vulnerable. Brown’s other acts of clemency include pardoning 63 people, commuting the sentences of 144 people with convictions for violent crimes (including murder) who have demonstrated “extraordinary evidence of rehabilitation,” allowing 73 people convicted of violent crimes as juveniles to apply for parole, and reducing the sentences of people who fought wildfires while incarcerated.
• In 2019, the Oklahoma state legislature passed a bill that made retroactive a voter-approved ballot initiative to reclassify simple drug possession and theft of less than $1,000 from a felony to a misdemeanor. Republican Governor Kevin Stitt subsequently commuted the sentences of 462 people who were sentenced before the law changed and had been recommended for release by the Oklahoma Pardon and Parole Board. Stitt went on to grant 290 pardons and 744 commutations during his first year in office. 

• In Virginia, both the recent Democratic and Republican governors have issued an above-average number of pardons and restored the voting rights of people with old felony convictions. Democratic Governor Ralph Northam issued more than 1,200 pardons before leaving office in 2022 and restored the civil and voting rights of more than 126,000 people who were finished serving their sentences. Less than a year later, Republican Governor Glenn Youngkin restored rights, including the right to vote, serve on a jury, and run for public office, to an additional 800 people. 
• Similarly, both Republican Governor Matt Bevin and Democratic Governor Andy Beshear have used their clemency power in Kentucky to provide relief to people in prison and those with old convictions. Governor Bevin issued more than 700 pardons and commutations during his final weeks in office. Governor Beshear has issued more than 1,700 commutations, most during the first months of the COVID-19 pandemic, and restored civil and voting rights to more than 140,000 people who had finished serving their sentences for a nonviolent offense. 
• At the federal level, President Barack Obama commuted more than 1,700 sentences during his two terms, far more than President Bush before him (less than 200 combined pardons and commutations) and President Trump after him (less than 250 combined pardons and commutations). President Biden has granted 122 commutations (excluding diplomatic exchanges), the vast majority of which were to people who were out of prison on home confinement, and 25 pardons. 
• Clemency has also been used to grant blanket pardons for marijuana convictions at the federal and state levels. In 2022, President Biden issued a blanket pardon for certain federal marijuana possession offenses. Governors in Maryland, Massachusetts, Oregon, Nevada, Washington, Illinois, and Colorado have taken similar actions. Some states, like California, Illinois, and New Jersey, have also pursued record clearing for people with old marijuana convictions that could no longer be handed down under current law. Like most pardons, these actions did not target incarcerated people, but rather people who had already completed their sentences. For more on marijuana-related clemency actions, see this resource from NORML. 

There are also numerous examples of states and governors that have infrequently used their clemency power or have applied it with racially disparate results. According to the Restoration of Rights Project at the Collateral Consequences Resource Center, there are 13 states that have granted few or no pardons in the past 20 years. These jurisdictions deserve extra scrutiny from journalists to uncover the reasons why clemency is not granted more frequently.  

• Following the media maelstrom and political fearmongering that came after Willie Horton’s case in Massachusetts, and the resounding electoral defeat of Democratic presidential candidate Michael Dukakis in 1988, Massachusetts governors granted fewer than 10 commutations between 1991 and 2021. That number ticked up just slightly when Republican Governor Charlie Baker recommended roughly a dozen pardons and commutations before leaving office in 2022. Governor Healey has also used her clemency powers during her first years as governor, if sparingly. 
• While the Alabama Board of Pardons and Paroles has historically granted large numbers of pardons each year, the approval rate fell steeply during the Covid pandemic from as high as 80% in FY2018 to just 27% in FY2021. Since 2019, pardons have also disproportionately been given to white applicants, with fewer than 1 in 5 Black applicants receiving clemency. 
• In North Carolina, governors regularly granted clemency with more than 100 commutations and pardons in each gubernatorial term from 1977-2000. Beginning with the election of former District Attorney Michael Easley in 2000, grants of executive clemency fell sharply and were used almost exclusively for pardons of innocence until the recent creation of the Juvenile Sentence Review Board by Democratic Governor Roy Cooper, which led to commutations of a small number of life without parole or virtual life sentences. 

Decades of research show that long prison sentences do not deter crime and even old criminal convictions contribute to financial stressors like unemployment or loss of income, housing insecurity, and difficulty accessing public benefits or higher education. In more recent years, researchers have also found that reducing incarceration and clearing criminal records results in positive outcomes for the individual and the community at large. While much of this research focuses on policy changes resulting from court rulings or legislation, there is a growing literature on executive clemency. Below are a few themes that emerge from this research. 

People who are released from prison through executive clemency or similar actions have very low recidivism rates. 

• An analysis of recidivism outcomes for 442 people who received commutations from Oklahoma Governor Kevin Stitt found that 5 percent had been reincarcerated after 2 years, far below national average of 32%. / 1 /
• In response to the COVID-19 pandemic, the CARES Act passed Congress with near unanimous support and was signed into law in March 2020. Among other provisions, the law authorized the Bureau of Prisons (BOP) to release people in federal prison to home confinement if they met certain eligibility criteria. According to BOP, more than 13,000 people have been released under the CARES Act and 99.8% of them had not been rearrested for a new crime as of May 2023. / 1 /  / 2 /
  
• People released from prison through Oregon Governor Kate Brown’s COVID-19 clemency program had lower two-year recidivism rates than people who were released without having their sentence shortened through commutation, despite having been convicted of more serious offenses and being assessed as having a higher risk to recidivate. / 1 /

As with any policy change that reduces incarceration, acts of executive clemency can reduce prison spending and lower taxpayer burdens at the state and federal level. 

• In Maryland, a court ruling in 2012 that led to the release of 188 people with life sentences who had spent at least 30 years in prison for murder and other violent offenses is projected to save the state $185 million in taxpayer spending without negatively impacting public safety. To date, only two percent of people released because of the Unger decision have been convicted of a new crime. / 1 /
• The actions taken by Gov. Beshear in 2020 to reduce incarceration during the COVID-19 pandemic have resulted in significant cost savings for Kentucky taxpayers. In FY 2021 alone, the state legislature was able to appropriate $42 million less to the Kentucky Department of Corrections because of the prison population reductions that resulted from executive clemency. / 1 /
• According to the Niskanen Center, continuing to utilize the home confinement program established under the CARES Act could result in savings of more than $100 million in federal prison spending each year. / 1 /

Restoring rights to people through pardons and other acts of executive clemency improves their lives and results in positive outcomes for their communities. 

• Based on research showing that wages increase by roughly 25 percent within two years of people receiving an expungement, The Economy League estimated that pardons issued in Pennsylvania between 2008-2018 increased earnings by more than $16 million as of December 2019. / 1 /  / 2 /
• Research has shown that the restoration of voting rights is associated with lower recidivism rates and that people who vote after having their records cleared feel that civic participation allows them to fully reintegrate after a criminal conviction. / 1 / 

Media coverage of clemency often focuses on outlier cases. Most famously, the Lawrence Eagle-Tribune published more than 175 stories about Willie Horton and the furlough program (which bears many similarities to executive clemency) that allowed for his temporary release from prison. That coverage won a 1988 Pulitzer Prize, the case became a major issue in the 1988 presidential election, and politicians across the country subsequently limited prison releases through furlough, parole, and clemency in fear of political reprisal. The impact of this kind of media coverage is clear, but the purpose of it is not. Those dozens of stories did not expose an inherently flawed system (99% of people granted furlough in Massachusetts that year returned without incident) or uncover a pattern of abuse, bias or corruption. These same dynamics are still in play with executive clemency today, despite the research and evidence cited above.

For journalists who are interested in taking a new approach to clemency coverage, we recommend the following.

Cover clemency petitions and denials, not just grants. 

Every year, incarcerated people and their loved ones make the case for individual and collective acts of clemency. These clemency campaigns are often representative of larger trends in the criminal legal system and offer journalists a unique lens on a system that can often seem overwhelmingly large and complex. Here are a few current examples:

• Incarcerated people and their families, along with a number of organizations like the ACLU, FAMM, FWD.us, and the National Council for Incarcerated and Formerly Incarcerated Women and Girls, are advocating for President Biden to take a number of clemency actions before he leaves office, including: 
• Commuting the sentences of the 40 men who remain on federal death row in advance of a second Trump administration that is expected to ramp up new death sentences and executions.
• Pardoning or commuting the sentences of the people recommended for clemency by the Office of the Pardon Attorney. Advocates are particularly focused on 1) people serving sentences that would not be handed down today (i.e. sentences handed down during the height of the crack-powder cocaine sentencing disparity, drug sentences handed down before drug law reforms in the First Step Act passed, other drug sentences with significant racial disparities, people serving “old law” sentences), 2) people on home confinement as a result of the COVID-era CARES Act legislation, 3) women, and 4) people over the age of 50. 
• At the state level, people are calling for outgoing governors in North Carolina, Missouri, and Indiana to use their clemency powers, including by commuting the sentences of people on death row, prior to leaving office. 

While clemency can be exercised at any point, governors often wait until the final days of their term, and many leave office without granting many (or any) pardons or commutations. Journalists have the opportunity to treat the denial of clemency as the newsworthy event that it is. Here are a few ideas for framing.

• Find out whether governors in neighboring states have exercised their clemency power recently (see above for examples in Oregon, Oklahoma, Virginia, and Kentucky) and consider what the impact on your state would be if your governor took similar action.
• Seek out people and groups advocating for clemency in your community and ask them what their priorities are. 
• Identify groups of people serving sentences that would no longer be allowed under current law and consider the impact of granting those people clemency. (We can help with this!)
• Investigate how clemency could be used to address overcrowding in your state prisons. This is especially relevant in the many states that have been struggling for years to hire and maintain the number of staff needed to operate their prisons.

Provide context for individual acts of clemency

While individual acts of clemency might be newsworthy, especially when they are granted to family members or political allies, these stories often miss the broader point: that clemency is one of many mechanisms for sentence reduction and record clearing, most of which are given far less scrutiny. The following are relevant factors to include in your reporting about clemency: 

• The length of time a person spends in prison is determined by a series of decisions, many of which contain a high degree of discretion and are alarmingly arbitrary, beginning with the charging decision made by the police officer, the plea deal negotiated by the prosecutor, the awarding of earned or good-time credits by prison officials, eligibility for and decisions about release by a parole board, and whether the governor/president is in a clemency-granting mood. 
• Commutations constitute an exceedingly small share of the people released from prison at the state and federal level. In 2023, there were 41,174 releases from federal prison. In that same year, President Biden commuted just 32 prison sentences. An analysis by the Prison Policy Initiative found that governors in eight states commuted the sentence of just one out of every 10,000 people in prison from 2005 to 2020. 
• Almost everyone is going to get out of prison. The Justice Department estimates that 95% of people in state prison will eventually get out. Commutations typically change the release date by a matter of degrees, not whether or not release is possible. 
• Commutations are usually granted to people who have already served a long prison sentence. An analysis of federal clemency actions from 2001 to 2012 conducted by the RAND Corporation found that the average age of clemency recipients was 54 years old and 80% had been incarcerated for 10 years or more including over half who had been in prison for more than 20 years. 
• The vast majority of pardons and commutations occur after a lengthy review process. At the federal level, clemency applications must go through seven layers of review at the Department of Justice before recommendations are sent to the White House for further vetting and approval. There are also significant checks and balances at the state level. Clemency decisions are made following review by an independent board in six states and the governor shares clemency power with a pardon board or must seek their counsel in an additional 41 states. In many cases, clemency decisions occur only after consultation with the prosecuting attorney or sentencing judge, and state legislatures frequently require the parole board or governor to report on all clemency grants. See here for a description of the pardon process in all 50 states.
• Clemency used to be normal and now it’s not. Apart from a meaningful clemency initiative sparked by federal sentencing reforms during the Obama administration, federal commutations have become much less frequent since the Nixon administration. The same is true at the state level. For example, clemency rates in New York, North Carolina, and California declined dramatically after the rise of mass incarceration. The number of pardons and commutations granted prior to the 1980s are even more significant than they may seem, given how much smaller the prison population was at that time.