Opposing Mass Commutation is Supporting Mass Incarceration
December 15, 2024
On December 12, Joe Biden granted a mass commutation to 1,500 people who were already serving their sentences at home. Over the course of about 3 years, because of COVID-19, Donald Trump’s DOJ released around 13,000 people from federal prisons to home confinement. They were all deemed “low-risk” and not serving time for so-called “violent” crimes. While many of those people finished their terms, over 2,500 of them risked being returned to prison once the COVID pandemic was deemed over. The people whose sentences Biden commuted were from this group, narrowed even further to those with no violations within the last year.
Because it was a blanket commutation of 1,500 people, that means there were some people that …well, aren’t great. One of the more upsetting commutations was that of Michael Conahan, an ex-judge who was sentenced in 2011 to over 17 years for sending young people to for-profit jails/ boot camps while earning a profit. According to prosecutors, he received around $2.8 million. Over 2,300 kids suffered, many very young. Many kids were guilty of extremely regular kid behavior, like stealing DVDs, making fun of an assistant principal, and trespassing in a vacant building. Some of them committed suicide. Conahan and his accomplices racked up multiple complaints that led nowhere for over 5 years. All those years, prosecutors did nothing. The operator of the private facility was not charged and the company was not shut down. (Around 2011, the kids’ convictions were vacated and a class action was filed.)
In 2020, Conahan was released to home arrest because of COVID; he’s 72 and his sentence was due to end in 2026. It doesn’t sound like the victims were told (because it was a blanket commutation) which perhaps made it feel that much worse. And, to be clear, my point here is that I don’t really care about Conahan. He was part of a class of people with commuted sentences. Any such action is going to have, well, people that all kinds of groups will find objectionable. (I also have a strong suspicion that the media has seized on a handful of people to fuel the outrage machine, ignoring the facts that 1) everyone here was sentenced years if not decades ago and 2) people in prison have generally committed crimes.)
Clemency is one of the oldest powers presidents and governors have. There are two types of clemency: the pardon, which basically erases a criminal conviction; and commutation, which reduces a sentence, usually for people serving long terms. The president’s clemency power is in the Constitution, and it is exercised—at least in non-Trump administrations—through the Office of the Pardon Attorney, which is within the Department of Justice. (There have been critiques of the way the system is set up which you can read about here.) Governors can use their clemency powers to commute sentences and pardon people convicted of state crimes, which represent the bulk of people serving time in prison.
Presidents and governors used to use clemency powers much more than they do now. Because clemency powers are pure executive privilege, they often carried the stench of racism and paternalism. In the Jim Crow south, for example, governors used their clemency power to release Black men convicted of violent crimes against Black men and women (not whites) at the behest of white patrons, often business owners who wanted their best workers returned to society. As Reiko Hillyer recently wrote, “In the Jim Crow South, gubernatorial mercy was the velvet glove of racism.”
Even still, clemency is the most direct way to release people from prison. In 2012, the then-governor of Mississippi Haley Barbour gave clemency to over 200 people, all convicted of felonies. Around two dozen has committed manslaughter or murder; some were men who has worked in the state capital as trustees. Barbour got a lot of negative press even though most of these pardons were for people who had completed their sentence; he defended himself by saying pardons were a “Mississippi tradition.” And let’s be clear; Barbour was no woke lib. A journalist described him as “a beefy southerner who kept a confederate flag autographed by Jefferson Davis in his office.” (He was also a one-time tobacco lobbyist.)
As a result of this kind of political pressure, from all sides, clemency became much rarer over time, more of a one-off, and far from enough to create meaningful decarceration. Most of this stems from increased pressure to look tough-on-crime. Executives feared that granting someone clemency would put them at risk of looking soft. Plus, media always raised fears that those released from prison might reoffend. As a result, people are reluctant to use clemency power, and, when they do, they look for zero controversy individuals.
In this case, my suspicion (I have no inside knowledge) is that Biden wanted to commute this group of people who were already home (and whom he had threatened to send back to prison before) and posed basically no risk. He wanted to look generous because he has been very stingy with clemency, and this is a group of people Biden has played politics with before. As recently as 2023, Congress (led by Marsha Blackburn) had threatened to send some of these people BACK to prison, even though most of them, reasonably, thought that they were home for good. (Biden ended up, at the time, issuing a rule that let the Bureau of Prisons deal with it, which, unshockingly, ended up with nothing being done.)
It’s upsetting to see someone getting what feels like an unearned break, and I am not here to excuse what Conahan did (or anyone). It was terrible and would have been regardless of the outcome of his trial. Had the Biden administration done individual review, however, there would have been many more objections made by many more groups of people. (Alas, abolitionist are not often called upon to make these choices; they are often done by the same prosecutors who put people in prison in the first place.)
My main critique of these commutations is that they were, in the words of law professor Rachel Barkow, “the easiest, lowest hanging fruit for a presidential grant because they are out, they are law-abiding.” I agree. It looks like a lot of commutations when, in fact, it’s people already at home. There are so many more people who deserve clemency. There are political prisoners like Leonard Peltier, as well as those who are who are older. There are the people on federal death row who need to have their sentences commuted (which includes Dylann Roof and Dzhokhar Tsarnaev). There are also, to be honest, just reams of people who are de facto excluded from clemency and many other reforms because they have committed crimes considered “violence.” (Another problem with relying on the criminal legal system for justice – stealing a purse is always treated as more serious than defrauding or even poisoning the water of an entire city.)
Clemency is an overall good thing used all too infrequently. I want to reduce prison populations. I want to encourage public officials to have grace towards those who have committed crimes, even bad ones. I want a world where all people are treated with dignity, even when they have done something that hurt people. Blanket commutations are useful because they serve as a release valve for a group of people. They aren’t reviewed individually because …well, that’s sort of the point. If you opt to review the members of the class, you have to review them all. This takes time. It also means that there will be many, many more objections to many more people, and very few people will be released.
Right now, not only are we facing a president Donald Trump, who plans to execute everyone on federal death row, but we also will have a Department of Justice that works for Trump. He’s made it very clear that the DOJ will go after student protestors, nonprofits, journalists, and immigrants. Most states have also retrenched past criminal system reforms. In North Carolina, where I live, young people who are 16 and 17 can be automatically tried as adults, reversing reforms. In Louisiana, children are regularly held in adult facilities and the current governor wants to prosecute more teenagers as adults and ensure that they spend more time in prison. The only juvenile facility in Virginia has been holding kids past their release date and keeping youth inside because of “inadequate staffing.” Rather than release young people, they just treat them cruelly.
In particular, the incarceration of young people serves no purpose. It’s cruel. The disparities are vast. And many young people suffer their whole lives from being incarcerated.
It is really hard to think about forgiving people who have done great harm. The criminal legal system brings nothing close to justice. And there are still some types of crimes that people are much less willing to forgive. I encourage people to read Roxanna Asgarian’s piece in The New Republic about how victims of childhood sexual abuse are rethinking carceral approaches. And I ask that everyone consider how we can think about a world where we rely less on vengeance and more on mutual aid. All I know for certain is that keeping an old ex-judge on home confinement for a maximum of two more years, at the cost of keeping 1499 other law-abiding people in the carceral system is exactly the logic of mass incarceration. It ignores the harm of injustice. It prizes the spectacle of punishment.
Sometimes, we make compromises; we take the best that’s possible. (This is what I was told regarding voting for Kamala Harris.) As compromises go, a 1499-to-1 ratio strikes me as pretty good. And if that isn’t a good compromise for you, I ask why you aren’t speaking up for the 1.2 million people being brutalized in the penal system right now. Why aren’t there stories about those people every day and the pardons, appeals, and grace they have been denied?