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Executive inaction: States and the federal government fail to use commutations as a release mechanism
Our survey of eight states found an average of one commutation for every 10,000 imprisoned people each year.
by Naila Awan and Katie Rose Quandt
April 2022
- Table of Contents
- Federal commutations
- State commutations
- Why so infrequently used?
- Potential reforms
- Terminology
- State data appendices
- Footnotes
On April 26, 2022, President Joe Biden used his executive powers to commute the federal sentences of 75 people1 — a first step toward addressing his campaign promise to release some individuals “facing unduly long sentences.” While this action is promising and will be life-altering for each of the 75 individuals, it took nearly 100 days into his second year in office for Biden to act on his promise and grant clemency to a single person. What’s more, many of the people receiving commutations are already released on home confinement due to the COVID-19 pandemic, and all were convicted of “nonviolent” drug offenses.
If Biden intends to truly deliver on his promises to enact large-scale criminal justice reform, this set of commutations should merely mark the beginning of a broader initiative. In fact, nothing is holding him back: the President has the power to grant commutations to large categories of people in federal prisons independently — without any action by Congress, the Department of Justice, or another third party. Despite this broad power, most U.S. presidents in the era of mass incarceration have been hesitant to use their powers of commutation.
In 2021, at the request of advocates working on clemency reform in the northeast, we submitted records requests to eight northeastern states3 seeking information about their commutation processes. As our survey of these eight states finds, state executive branches also chronically underuse their commutation powers.4 The states in our sample reported granting just 210 commutations from 2005 through mid-2021,5 for a total average of 13 grants a year across the eight states. For comparison, the average total prison population across these eight states from 2005 to 2020 was about 130,0006 — meaning that each year, this group of states commuted about one out of every 10,000 sentenced and imprisoned individuals. In fact, five of the states each reported granting just five commutations or fewer over the 16.5 years for which we requested data.7 And concerningly, almost no states in the sample increased their rate of commutations during the pandemic, at a time when reducing prison populations is critical to save lives.
Slideshow Swipe to see the results of each state’s record requests. For details, see the appendix tables.
In addition to granting few commutations, most of the states in our sample do not appear to maintain robust data on their commutation systems. Several states did not have access to commutation records for all the years we requested, and others implied in their responses that they do not keep this information in a centralized database, and had to review individual applications in order to fulfill our request.
This lack of transparency and inadequate data keeping makes it difficult or impossible for people who are incarcerated to know if they are even eligible for commutation,8 how the process is being administered, or the current status of their own applications.9 It also prevents advocates from determining where commutation applications are being held up or thrown out, and identifying any characteristics — such as the race, age, sex, or type of offense a person was convicted for — shared by those who are granted (or denied) commutations.
Biden should make regular and more continuous use of his commutation power
President Biden’s recent announcement that he is commuting the sentences of 75 individuals10 is promising, and marks a higher level of action than his recent predecessors had taken at this point in their presidencies. The President should continue to use the federal commutation power to reduce prison sentences for broader categories of people, and states should follow suit.
It is notable, however, that while the President has set a positive precedent by issuing commutations relatively early in his presidency, the impact of these specific commutations may be less than you would expect. None of the sentences commuted will expire immediately,11 and many of the individuals who received commutations were already placed on home confinement during the COVID-19 pandemic. This means that the commutations will have little impact on the number of people held too long in federal prison, whose numbers have only risen during Biden’s tenure in office.12
Further, these commutations were limited to “people who are serving long sentences for non-violent drug offenses.”13 This is certainly not unusual; executives and legislators often seek to avoid political risk by limiting relief to people who have been convicted of “non-violent” crimes. However, this creates carve-outs in the commutation process, reduces the potential impact commutations can have, and prevents them from being a real tool in the fight to end the injustices of mass incarceration.14
Looking past the commutations granted by President Biden and at the operation of the federal clemency process more generally — it is clear that changes to the status quo are necessary. First, there is far too great a backlog in federal clemency applications. Data released on April 1, 2022 showed that approximately 18,270 applications15 for federal clemency are pending, nearly 15,000 of which are for a commutation of sentence. And, until April 2022, all of the 2,415 applications for clemency that had been acted on since the President took office in January 2021 had been administratively closed.16 This means that Biden had taken no action to either grant or deny clemency applications.
Second, in recent decades, and especially since the onset of the era of mass incarceration, relatively few federal applications for clemency have been granted. This is partially due to a complex bureaucratic system: Federal clemency applications are routed through the Office of the Pardon Attorney in the Department of Justice (DOJ), then to the deputy attorney general, then to the White House counsel, and finally to the President. There have been calls to change this system for quite some time, including to remove the inherent conflict of interest that exists with the DOJ, which is tasked with reviewing applications for clemency, being the agency that led the original prosecutions. Advocates also note that the current review structure “includes redundant levels of scrutiny by Department of Justice staff who can unilaterally prevent a clemency application from reaching the President.”
To address these problems, Rep. Ayanna Pressley (D-Mass.) has introduced the Fair and Independent Experts in Clemency (FIX Clemency) Act, H.R. 6234, which would shift the body tasked with reviewing federal clemency applications from the DOJ to a new, independent clemency board that would send recommendations directly to the President and provide greater transparency into the federal clemency process.
However, it is important to note that, regardless of how the clemency process is structured, there are no obstacles to prevent the President from acting unilaterally: The President has the authority to independently grant commutations and other forms of clemency without receiving a recommendation. At the end of the day, the use of federal commutation powers — or lack thereof — is entirely in the hands of the Chief Executive.
Only 138 commutations have been granted since the onset of the COVID-19 pandemic in March 202017 — demonstrating that this tool has not been effectively used to spare lives, reduce the spread of disease, or respond to a pandemic unlike any other in our lifetime. While only about 11% of people incarcerated in the United States are held in federal facilities, more extensive use of commutations by a president could provide an example to the states of how they can more effectively use their own commutation powers.
States also fail to use commutations to respond to the injustices of mass incarceration
States also drastically underutilize this powerful tool. As noted above, the eight states in our survey granted a total of 210 commutations in the 16.5 years from 2005 to mid-2021, an overall average of just 13 grants a year.
The paltry rate at which these states grant commutations has not budged during the pandemic. In fact, between 2020 and mid-2021, only two of the eight states surveyed (New York and Pennsylvania) told us that they granted any commutations. And, Connecticut indicated that its commutation process was paused throughout this entire period.
This lack of urgency is part of a disturbing larger trend: Nationwide, state and federal prisons actually released 10% fewer people in 2020 than in 2019, and on average, we found that state parole boards released fewer people in 2020 than in 2019. (Because of decreased prison admissions, overall prison populations have seen a modest decrease of 15% from pre-pandemic levels, which is not enough to allow for safe social distancing behind bars.)
Because comprehensive data on the commutation process was typically not available on government websites, we had to obtain data through public records requests. Through these requests we found that:
- Massachusetts, Rhode Island, and Vermont do not seem to have granted any commutations from 2005 to mid-2021.18
- In fact, Rhode Island has granted only one commutation or pardon since 1950. In 2011, the governor granted a posthumous pardon to a person who was executed in 1845.
- Our public record responses indicate that New Hampshire granted just one commutation from 2005 to mid-2021, and Connecticut granted just five.19
- Vermont noted that it found no requests for commutations and, as a result, none had been granted.
- None of the eight states provided all of the information we requested, including demographic information of commutation applicants and grantees.
For more information on each state, see our state appendices.
Which pieces of requested information did each state provide about commutations?
| All years from 2005 to Aug. 2021? | Race? | Age? | Sex? | Crime of Conviction? | ||
|---|---|---|---|---|---|---|
| Connecticut | Applications | N | N | N | N | N |
| Grants | N | Y | Y | Y | N | |
| Maine | Applications | Y | N | N | N | N |
| Grants | Y | N | Y | N | Y | |
| Massachusetts | Applications | Y | N | N | N | N |
| Grants† | ||||||
| New Hampshire | Applications | N | N | Y* | Y | N |
| Grants | N | N | Y* | Y | N | |
| New York | Applications | Y | N | N | N | N |
| Grants | Y | N | N | N | N | |
| Pennsylvania | Applications | Y | N | Y | Y* | Y |
| Grants | Y | N | Y | Y* | Y | |
| Rhode Island | Applications† | |||||
| Grants† | ||||||
| Vermont | Applications† | |||||
| Grants† | ||||||
As the table above shows, state commutation processes are opaque. This lack of transparency prevents advocates from effectively determining how the commutation process is being administered, at what point and why applications are being denied, and what interventions would be most effective. The sparse data kept and supplied about state commutation processes also serve as one more indicator that states have deprioritized their commutation processes.
Why are commutations used so infrequently?
Historically, commutations were used much more frequently. In Massachusetts, for example, 218 commutations were granted in the 50s, 60s, and 70s, and 84% of them went to people serving life sentences for murder. Connecticut was still granting regular commutations even more recently: The state granted 36 commutations between 1991 and 1994.
But grants have since slowed down drastically and become exceedingly rare across the country. Massachusetts granted just 29 commutations in the 80s, 90s, 2000s, and 2010s; Connecticut reported granting five from 2016 to mid-2021. Today, commutations are often explicitly reserved for — or in practices, awarded only to — narrowly defined groups, such as people who have served at least half of their sentence or those convicted of “nonviolent” offenses.
Several factors contribute to the current lack of commutations.
First, politicians fear being seen as “soft on crime.” There is an outsized fear of releasing someone who might go on to commit another crime, and an undersized appreciation for the benefits of prison releases. (A longstanding challenge for criminal justice reform is that it is difficult to quantify the fiscal, familial, and community benefits of people returning to their homes and communities.) This fear is particularly unfounded because in many cases, commutation does not trigger immediate release but simply reduces a sentence or makes someone parole-eligible. Throughout American history, there have in fact been many instances of large-scale releases, and recent mass releases have resulted in lower-than average levels of recidivism.20
Second, politicians and the public frequently misunderstand clemency’s place in American history. Individuals on both sides of the political aisle have expressed hesitancy in revisiting the sentencing decisions of judges.21 But the concept of revisiting judgements and forgiving sentences is a longstanding American tradition, enshrined in the Constitution and core to the country’s (and states’) founding. Clemency is a foundational, basic legal principle, praised by Alexander Hamilton and the first Supreme Court Chief Justice, John Marshall.
Finally, as discussed above, clemency is hindered by understaffing, conflicts of interest and complicated, bureaucratic systems. Allocating insufficient staff to review commutation applications can result in long delays processing applications.22 At the federal level, and in many states, the offices involved in the original prosecution of a person’s case are involved in clemency determinations. Additionally, applications for clemency can be complicated or require obtaining materials that an incarcerated person does not have in their immediate possession. And because of the lack of visibility into clemency processes, individuals who are incarcerated often do not know they are eligible to apply for clemency and may not be able to access information on the status of their application.
Potential reforms
Commutations can grant relief to individuals impacted by the criminal legal system and serve as a tool in decarceration efforts. However, commutation powers are widely underutilized, even by chief executives (such as the President of the United States and governors of some states) who have the power to act unilaterally.
In order to more effectively and consistently use commutation powers at the federal and state level, a number of reforms should be adopted, including:
- Congress should pass the FIX Clemency Act. This bill would, among other things, eliminate the Office of the Pardon Attorney at the U.S. Department of Justice and create an independent board of experts23 who would provide the President with recommendations on who should receive clemency.
- Act unilaterally to provide relief when possible. The President of the United States and when applicable, state governors, should use their power to grant commutations to swiftly provide relief and aid decarceration efforts.
- Conduct regular, affirmative outreach to those individuals who qualify for commutations. States and the federal government should ensure incarcerated individuals are provided accessible materials explaining the commutation process, conduct regular outreach to individuals who qualify to apply for a commutation of that fact,24 supply such individuals with applications for a commutation, and provide free assistance in completing these applications and navigating the process.
- Use the clemency power to grant mass commutations. Rather than relying on a case-by-case review, categorical commutations should be granted. Categorical commutations can be used to adjust sentences or release people who: (a) were sentenced under laws that have since been repealed or for crimes that have been reclassified, or (b) share certain personal characteristics (i.e., current age or age at time of conviction) or experiences (i.e., survivors of sex or labor trafficking).25
- Simplify commutation applications. Applications should be made as simple and straightforward as possible. The government should be responsible for gathering information that it maintains, such as official court documents.
- Expeditiously process, review, and act on commutation applications. Commutation grants should not be treated as a rare, seasonal, or end-of-term act, but rather should occur with regularity throughout a President or governor’s term of office. Applications should not remain pending for long periods of time, but rather a strict and short time-limit should be established within which review must take place.26 An adequate number of people must be assigned the responsibility of reviewing these applications in order to meet these limits.
- When a group must approve a commutation application, do not require unanimous consent or set different vote requirements based on the crime of conviction. In some states, action can only be taken to a grant commutation if a board or council first vote to approve it. Applications should move forward on a majority vote and applicants should not need to obtain a different number of votes — i.e., majority versus unanimous — based on the crime of conviction.27
- Equally consider all people who qualify for relief, regardless of their crime of conviction. Whether a person was convicted of a “violent” or “non-violent” crime,28 their application should be equally considered.29 Qualified individuals should not be denied relief purely based on their crime of conviction.
- Increase transparency. The many ways in which the commutation process lacks transparency need to be addressed. For example:
- Applicants should be able to easily obtain information regarding where their application is in the process,
- Individuals whose applications are denied should receive written confirmation with the reasons for denial specified, and
- Data should be made publicly available that provides an effective picture of how the commutation process is operating.30
Understanding the terminology
Amnesty. Amnesty is essentially the same as a pardon, but is applied to a class of individuals, such as people who evaded the draft during the Vietnam War.
Commutation. A commutation amends a court-imposed sentence. Commutations can serve a number of functions; for example, a commutation can result in a person being released from incarceration early, early termination of parole, or changes in sentencing, such as changing a death sentence to life imprisonment or life imprisonment to life on parole.
Conditional commutations. Conditional commutations are commutations that are dependent on compliance with a set of conditions.
Conditional pardon. A conditional pardon can release a person from the conditions of their sentence (or rights forfeit as a result of the person’s conviction), subject to conditions.
Pardon. A pardon has the power to release a person with a conviction history of punishment, and restore civil rights that were forfeit upon conviction, such as the right to vote, serve as a juror, hold public office, and bear arms. It can be granted prior to charge or conviction, or following a conviction.
Reprieve. A reprieve delays punishment for someone convicted of a crime. In some states reprieves are granted when an applicant is experiencing a medical emergency or in instances of a family emergency. They also may be used to delay an execution.
Reprieve or remission of fines and forfeitures. A reprieve or remission of fines or forfeitures is when an executive reduces or removes a fine or forfeiture attached to a person’s sentence.
Appendices
Connecticut appendix
Connecticut granted five commutations from 2016 to mid-2021, resulting in a 2.2% grant rate among applicants. Most people who applied in that time frame were deemed ineligible (for example, 98% of applicants were deemed ineligible in 2018).
Concerningly, Connecticut’s Board of Pardons and Paroles recently took a nearly two-year pause in processing commutation applications while it revamped the program, which coincided with much of the COVID-19 pandemic. The state began accepting applications again in the summer of 2021.
Following the revamp, Connecticut’s new commutation policies seem somewhat promising in their attention to people serving long sentences: Applicants must have already served 10 years and cannot be within two years of parole eligibility. And since becoming active again, the Board commuted one sentence in late 2021 and 11 in early 2022, all for people serving long sentences for offenses committed under the age of 25.
More information on the state’s commutation process is available on the Connecticut Board of Pardons and Paroles website.
Commutation applications and grants since 2016 in Connecticut
| Year | Applications | Ineligible | Denied | Granted | Sex/Age/ Race of Grantees |
|---|---|---|---|---|---|
| 2016 | 37 | 26 | 1 | 3 | F/27/Asian F/35/Black M/50/Black |
| 2017 | 85 | 83 | 0 | 0 | |
| 2018 | 101 | 99 | 1 | 1 | M/24/White |
| 2019 | 1 | 0 | 0 | 1 | M/55/Asian |
| 2020 | Commutation process suspended | ||||
| 2021 (through Sept. 20) | Commutation process suspended for part of year/ No data provided | ||||
Maine appendix
Few commutation petitions are submitted in Maine, and very few are granted; even in 2020, during the onset of a pandemic, only six people submitted petitions, of which zero were granted. Since 1995, just two commutations have been granted in response to a petition — a 2% grant rate.
From 2005 to mid-2021, 24 people received commutations in Maine, the majority of which were a batch of 17 “conditional commutations” awarded in May 2017, which then-Gov. Paul LePage pitched as a way to fill holes in the workforce. These individuals, who were recommended by the department of corrections, were released with what the governor’s office called “stringent conditions,” including a work requirement. This set of conditional commutations, while small and with complicated requirements, show that clemency does not need to be awarded on a completely individual basis. (Prior to the 2017 conditional commutations, LePage had not granted commutation to a single person since taking office in 2011 — but had pardoned a dog.)
Current Gov. Janet Mills has not granted any commutations since taking office; her office recently responded to a letter supporting one man’s clemency application with a single sentence: “He needs to pay for what he did.” (That applicant was since released under a new state law that broadens early release criteria.)
More information on the state clemency process is available on the Maine Pardon Board website.
Commutation applications and grants since 2005 in Maine
| Year | Applications | Granted in response to application | Granted with no application having been submitted |
|---|---|---|---|
| 2005 | 16 | 0 | 0 |
| 2006 | 6 | 0 | 0 |
| 2007 | 5 | 0 | 0 |
| 2008 | 12 | 1 | 0 |
| 2009 | 9 | 0 | 0 |
| 2010 | 11 | 1 | 0 |
| 2011 | 3 | 0 | 0 |
| 2012 | 0 | 0 | 0 |
| 2013 | 1 | 0 | 0 |
| 2014 | 1 | 0 | 0 |
| 2015 | 3 | 0 | 0 |
| 2016 | 3 | 0 | 0 |
| 2017 | 1 | 0 | 21 |
| 2018 | 4 | 0 | 1 |
| 2019 | 11 | 0 | 0 |
| 2020 | 6 | 0 | 0 |
| 2021 (through Aug. 20) | 2 | 0 | 0 |
Maine produced data on the 24 individuals who received commutations since 2005. For each of these individuals, the state provided the year of birth, court of conviction, category of offense, issuing governor, and the date on which the commutation was issued. If you would like access to this information, please contact us and we can provide the document, with personal identifiable information redacted.
Massachusetts appendix
Massachusetts did not provide data on any commutation grants in response to our request (instead only providing the number of requests each year from 2005 to mid-2021, which amounted to 475 petitions). We did not find evidence of any commutation grants in Massachusetts from 2005 through mid-2021. In fact, a 2021 Boston Globe editorial noted that in the preceding six years, the Massachusetts Parole Board held just one commutation hearing.
Since responding to this public records request, Massachusetts granted commutations to two people in February 2022, making them parole eligible. These were the first commutations granted by Gov. Charlie Baker, and appear to be the first in the state since at least 2005.
More information on the state clemency process is available on the Massachusetts Pardons and Commutations website.
Commutation applications and grants since 2005 in Massachusetts
| Year | Applications | Grants* |
|---|---|---|
| 2005 | 20 | 0 |
| 2006 | 17 | 0 |
| 2007 | 62 | 0 |
| 2008 | 53 | 0 |
| 2009 | 38 | 0 |
| 2010 | 39 | 0 |
| 2011 | 26 | 0 |
| 2012 | 25 | 0 |
| 2013 | 21 | 0 |
| 2014 | 75 | 0 |
| 2015 | 12 | 0 |
| 2016 | 16 | 0 |
| 2017 | 12 | 0 |
| 2018 | 11 | 0 |
| 2019 | 11 | 0 |
| 2020 | 29 | 0 |
| 2021 (through Aug. 13) | 8 | 0 |
There has been recent advocacy seeking to increase the use of clemency in Massachusetts, including by organizations like Families for Justice as Healing, as well as in a 2021 report from the Massachusetts Bar Association Clemency Task Force, which suggested principles the Board could adopt.
New Hampshire appendix
Only 10 requests for commutations have been submitted in New Hampshire since 2010, and the last time a person received a commutation was in 2010.
A copy of the New Hampshire clemency application is available here.
Commutation applications and grants since 2010 in New Hampshire
| Year | Applications | Grants | Sex / Age of Applicants |
|---|---|---|---|
| 2010 | 2 | 1 | M / 60 (approved) F / 60 (denied) |
| 2011 | 1 | 0 | M / 28 (denied) |
| 2012 | 1 | 0 | F / 62 (denied) |
| 2013 | 1 | 0 | M / 57 (denied) |
| 2014 | 0 | 0 | |
| 2015 | 0 | 0 | |
| 2016 | 0 | 0 | |
| 2017 | 0 | 0 | |
| 2018 | 3 | 0 | M / 72 (denied) F / 50 (denied) F / 68 (denied) |
| 2019 | 1 | 0 | F/ 33 (denied) |
| 2020 | 1 | 0 | F / 42 (denied) |
| 2021 (through Aug. 30) | 0 | 0 |
New York appendix
New York has granted commutations to 37 out of 14,735 applications since 2005, for an overall grant rate of 0.3% (assuming there have been no grants awarded independent of an application). The highest percentage of applications granted in a year was 0.75% in 2018. Even at the onset of a pandemic, New York approved just 12 of the 2,184 applications received in 2020 (0.55%) and 0 of the 642 requests received through mid-2021. It was reported that Gov. Hochul granted one individual clemency in December 2021, after these records were received.
More information on the state clemency process is available on the New York State website.
Commutation applications and grants since 2005 in New York
| Year | Applications | Grants |
|---|---|---|
| 2005 | 190 | 1 |
| 2006 | 180 | 0 |
| 2007 | 248 | 0 |
| 2008 | 279 | 2 |
| 2009 | 190 | 1 |
| 2010 | 1209 | 2 |
| 2011 | 449 | 0 |
| 2012 | 297 | 0 |
| 2013 | 266 | 0 |
| 2014 | 408 | 0 |
| 2015 | 515 | 3 |
| 2016 | 4775 | 7 |
| 2017 | 949 | 2 |
| 2018 | 928 | 7 |
| 2019 | 1026 | 0 |
| 2020 | 2184 | 12 |
| 2021 (through Aug. 9) | 642 | 0 |
There is a robust movement to reform the clemency process in New York. The campaign New Yorkers for Clemency, which was initiated by Release Aging People from Prison (RAPP), calls for clemency to be used more frequently and inclusively (including across demographics and across categories of offenses), as well as for the process to be more transparent.
Pennsylvania appendix
Pennsylvania provided the most robust data out of the eight states. Historically, Pennsylvania has granted very few commutations — just seven from 2005 to 2018. The state has awarded more commutation grants in recent years, including 117 in the first eight months of 2021.
More information on the clemency process is available on the Pennsylvania Board of Pardons website, and Let’s Get Free, a program of the Women and Trans Prisoner Defense Committee has a commutation support kit.
Commutation applications and grants since 2005 in Pennsylvania
| Year | Applications | Grants |
|---|---|---|
| 2005 | 70 | 0 |
| 2006 | 90 | 0 |
| 2007 | 85 | 0 |
| 2008 | 59 | 0 |
| 2009 | 44 | 0 |
| 2010 | 41 | 2 |
| 2011 | 65 | 0 |
| 2012 | 43 | 0 |
| 2013 | 15 | 0 |
| 2014 | 44 | 0 |
| 2015 | 34 | 1 |
| 2016 | 38 | 1 |
| 2017 | 69 | 0 |
| 2018 | 154 | 3 |
| 2019 | 162 | 15 |
| 2020 | 287 | 4 |
| 2021 (through Aug. 26) | 280 | 117 |
Rhode Island appendix
Rhode Island did not inform us of any commutation grants. In response to our records request it was stated that the only pardon granted since 1950 was a posthumous 2011 grant to someone who was executed in 1845.
The state did not provide the number of pending petitions, claiming that this information is exempt from release.
Vermont appendix
In response to our record request, the Office of the Governor noted: “The Vermont Constitution and statutes do not address commutations.” The Office further noted that “While we believe this power is inherent in the Governor’s pardon power, we get requests for pardons but not commutations… Accordingly, Governor Scott has not granted any commutations.”
While the Vermont statutes provide that people who are incarcerated may apply for pardons, the pardon application guidelines state that “A pardon will not be considered for a person who is currently incarcerated or under sentence except in very unusual circumstances.” Our independent research failed to produce any articles or press releases that suggest that any commutations (or pardons to incarcerated people) have been granted in recent years.
Footnotes
In addition to using his federal clemency powers to commute 75 sentences, Biden also granted pardons to three people. ↩
The commutation process does not exist in a vacuum. Considering the data in this report alongside other information available about the specific federal and state criminal legal systems (such as their sentencing policies and parole grant rates) can help advocates determine where to prioritize efforts. ↩
We submitted public record requests to Connecticut, Maine, Massachusetts, New Hampshire, New York, Pennsylvania, Rhode Island, and Vermont. Because data on clemency is often not available on state websites or easily accessible, the Prison Policy Initiative wanted to make this information available for broader use. Of course, we recognize that there are important differences between each state, and our inclusion of these states (and exclusion of others) does not imply that these states have comparable justice or commutation systems, or that they can be meaningfully compared based on commutation outcomes alone. Please see How can I get data on the commutation process in my state? for more information on making a similar request in your state. ↩
Each state has a distinctive commutation system, which fits within that state’s unique criminal legal system, including its differing sentencing structures and parole policies. In many states, the governor holds the power to grant commutations unilaterally, but depending on the state, the decision may first require recommendation by a board or members of the legislature, or lie entirely in the hands of an independent board. ↩
States provided data that typically covered a timeframe up to August 2021, though the exact cut-off date for records varied by state. Several states did not provide application and grant data going back to 2005:
- The Vermont Governor’s Office noted that they found no requests for commutations in their records, and directed us to the Secretary of State’s Archivist for any records predating January 1, 2017 (in other words, it had almost no records from the prior administration). However, the Secretary of State directed us back to the Governor’s Office.
- We did not receive data from Connecticut from the years prior to 2016. The state noted: “We do not have information for the entire time frame you have requested and will only be able to provide limited information.”
- New Hampshire stated that its data prior to 2010 was “not consistent or not available.”
- Massachusetts provided us with the number of commutation petitions received each year, but no data on the number of commutations granted.
An internet search for information on commutations granted in these four states in the requested time period did not produce any results. ↩
This total is based on the jurisdictional population sentenced to more than one year in the eight states (i.e., not including anyone held pretrial or serving short jail sentences). This reflects the general population of people who are held under state authority. We used population data through 2020, because 2021 data were not yet available from the Bureau of Justice Statistics at the time of publication. ↩
Despite the eight states’ underwhelming use of commutations, we have seen some minor encouraging increases in its use in some of these states, in the nearly one year since states responded to our records request — something we hope to see more of. In the time period since states sent us their responses in mid-2021, we know that New York commuted at least one sentence in late 2021, Massachusetts commuted two sentences in 2022, and Connecticut commuted one in 2021 and 11 in 2022. ↩
For example, the Vermont Governor’s Office noted in response to our records request:
“The Vermont Constitution and statutes do not address commutations. While we believe this power is inherent in the Governor’s pardon power, we get requests for pardons but not commutations. We have reviewed our pardon request files and found no requests for commutations.” Of course, if Vermont were to advertise that commutations are available, or conduct outreach to individuals incarcerated in state prison, the Governor would almost certainly start receiving applications for commutation. ↩
For example, New Yorkers for Clemency state:
“In 2014, after former Governor Cuomo launched a clemency initiative, thousands of incarcerated people and their families submitted clemency applications. Since then, most of those people have never received a response from the executive branch about the nature of their application. There is no public information about who in the Governor’s office is responsible for reviewing clemency applications or how applications are processed and evaluated. There is also no publicly available data provided documenting the number of clemency applications submitted, responded to, granted, or denied. This leaves many incarcerated people and their families in a state of despair.” ↩
Since Biden assumed office, advocates have called for him to use his commutation power. For example, The National Council for Incarcerated and Formerly Incarcerated Women and Girls spearheaded a campaign to push President Biden to grant clemency to 100 women in his first 100 days in office, and the American Civil Liberties Union has a petition asking the President to “grant clemency to 25,000 people, namely those serving sentences longer than those handed out today, nonviolent drug offenders, and the elderly.”
While the Administration itself offered assurances in May 2021 that the President was prepared to use his clemency powers, it took nearly a year for the President to follow through with this promise. Until April 26, 2022, President Biden’s executive clemency powers had been used to provide relief in only two instances — to turkeys named Peanut Butter and Jelly. ↩
The vast majority of sentences commuted are set to expire on April 26, 2023, with some expiring a year after that. Further, each person who received a commutation will have to serve the full term of supervised release ordered at sentencing (ranging from 3 to 20 years), and the fines and restitution set at sentencing remain unchanged. ↩
Recent data published by the Vera Institute of Justice noted that from 2020 to 2021, there were increases in the year-end count of the number of people detained in federal prisons (3.6%), as well as those detained by the U.S. Marshals Service (1%) and U.S. Immigration and Customs Enforcement (33.7%). The increase in numbers could be, in part, due to the suspension of jury trials and grand jury proceedings during parts of the pandemic, leading to COVID-related court backlogs. ↩
In his statement, President Biden noted that many of these individuals “would have received a lower sentence if they were charged with the same offense today, thanks to the First Step Act.” ↩
Our report Reforms without Results provides more details on why “violent” offenses should not be carved out from criminal justice reforms. ↩
This number and the others reflected in this section were obtained from a spreadsheet the Department of Justice maintains that provides details on the number of applications for pardons and commutations that are pending or, from 1989 to present, have been granted, denied, or administratively closed. The spreadsheet, at the time of publication, had been last updated on April 1, 2022. The numbers reflected in the spreadsheet do not always match those provided on the Office of the Pardon Attorney’s webpage. ↩
2,337 of the applications that were administratively closed were seeking commutation of sentence. As noted by the Office of the Pardon Attorney, applications that are administratively closed are closed without presidential action because “(1) an applicant withdraws their application from consideration, (2) an applicant repeatedly fails to respond to a request by the Pardon Attorney for required information, (3) an applicant dies before a decision is made on their request, (4) we learn that the applicant is no longer a resident of the United States during the course of our review, (5) an applicant is released from Federal prison during the processing of a commutation petition that seeks only the reduction of his/her prison sentence, or (6) we learn that the applicant has not yet exhausted all legal remedies or has pending litigation.” Information on the reason an application was administratively closed is not publicly available. ↩
Before Biden’s April 26, 2022 commutations, only 63 had been issued during the pandemic. All of these had been issued by Trump, with 61 commutations granted between December 23, 2020 and January 19, 2021 — nearly a year after the onset of the pandemic and immediately prior to Trump vacating office. ↩
Although this occurred outside the time range of our requests, for the first time in many years, Massachusetts granted commutations to two people in February 2022, making them eligible for parole. ↩
New Hampshire did not provide data prior to 2010, and Connecticut did not provide data prior to 2016. Although this happened outside of the time range of our requests, Connecticut granted commutations to one person in November 2021 and 11 people in January 2022, bringing many of these individuals close to parole eligibility. ↩
For example, a recent report from the Oregon Criminal Justice Commission indicates that the 266 individuals whose sentences were first commuted in response to the COVID-19 pandemic had lower one-year recidivism rates than is typical among those released. A 2012 case, Unger v Maryland, led to the release of 192 people who had served more than 30 years in Maryland prisons; after five years, this cohort had a recidivism rate of just 3%. And a 2020 report that looked at 174 Philadelphians who were released from 2017 through 2019, after being resentenced from life-without-parole sentences they received as children, found that just two had been reconvicted of a new crime by the end of 2019. ↩
For example, in an Office of the Inspector General report looking back at the Obama administration's clemency initiative the OIG noted that, according to one former Deputy Attorney General, the Office of the Pardon Attorney “was minimally involved in planning the initiative, which may have been due to philosophical differences” about whether pardons or commutations should be prioritized. According to the report, "his impression was that [the Office of the Pardon Attorney] viewed commutations as extraordinary and thought that the judge had imposed a prison sentence so there was nothing more to be done about it." ↩
During Obama’s clemency initiative, for example, additional staff were added to handle the massive number of applications. Because the staffing levels have since decreased, if the Biden administration is going to make a meaningful dent in the approximately 15,000 pending federal commutation applications, a similar commitment is needed. ↩
These experts would include a person who was formerly incarcerated, a person who has been directly impacted by crime, a person who currently serves (or previously served) in a federal defender organization, and a representative from the Department of Justice. ↩
The Obama Administration’s Clemency Initiative involved affirmative outreach to incarcerated individuals. While the Initiative hit some stumbling blocks — such as reaching out to many people who did not meet the six criteria that were being prioritized, thereby giving them false hope and slowing down the review of clemency applications — it did show that large-scale, affirmative outreach can have positive results. ↩
How Governors Can Use Categorical Clemency as a Corrective Tool is an insightful report that provides numerous examples of how categorical commutations have been used across the U.S. ↩
The Pennsylvania Board of Pardons website states that, due to increased background checks since 9/11, “it is taking approximately 2 1/2 years from receipt of an application until the Board members merit review the application to determine if a hearing will be granted. If a hearing is granted, it will be heard at the next scheduled session.” If an “application is recommended to the Governor, there is no time frame for the Governor to act.” ↩
For example, in Pennsylvania, the majority of individuals only need to receive a majority vote from the Board of Pardons for their application to be recommended to the governor, but individuals who have been sentenced to life or death must receive a unanimous vote in order for their application to be recommended. It appears that this majority vote requirement was not always in place, as Pennsylvania advocates like Let’s Get Free are advocating that the Board of Pardons “return” the “vote requirement for a recommendation of commutation for a lifer to 3 out of 5 votes, rather than the unanimous vote requirement.” ↩
As the fourth myth in Mass Incarceration: The Whole Pie 2022 explains, the distinction between “violent” and “nonviolent” crime is dubious. A wide range of crimes designated as “violent” involve no physical harm. “Violent” and “nonviolent” simply cannot be used as simple substitutes for serious and non-serious. Excluding people convicted of “violent” crimes from being truly considered for a commutation guts the potential impact real clemency reform could have in responding to mass incarceration. ↩
State laws frequently require applicants to have served specific amounts of time. For example:
- In Maine, a person is only qualified to apply for a commutation of sentence after they “have served at least one half of the[ir] original sentence (not including ‘good time’), or a minimum of one year of a sentence, whichever is… longer.
- In New York, a person can apply for a commutation if their minimum term of imprisonment is greater than one year, they’ve served at least half of their term, and they are not parole-eligible within one year of the date on which their application is submitted.
It is clear the states already made policy decisions in setting forth these time requirements and, if a person meets the requirements, their crime of conviction should not stand as an impediment to their application being fairly considered. ↩
Data could include: the number of applications pending, the average length of time it takes for a determination to be made on an application, the number of applications submitted, the number of applications automatically closed, the number of applications that receive a hearing, the number of applications on which a recommendation is made, and the number of applications on which the governor or chief executive acted. In addition, demographic breakdowns should be provided for each step that indicate, among other things, the sex, race, age, length of time served, and crime of conviction or category of crime. ↩
Acknowledgements
The authors would like to thank Emile DeWeaver for conducting the record requests off of which this report is built. The authors also thank our colleagues Wendy Sawyer and Peter Wagner for the graphics used in this report and their editorial guidance. Lastly, the Prison Policy Initiative thanks our individual donors, who give us the resources and the flexibility to quickly turn our insights into new movement resources.
About the authors
Naila Awan is the Director of Advocacy at the Prison Policy Initiative. Naila directs our work helping other organizations and individuals strengthen their campaigns to end mass incarceration, including our newly-released Advocacy Toolkit with guides to accessing public records, securing and organizing data, and more. Before joining the Prison Policy Initiative, Naila worked for multiple civil rights organizations and served on the legislative staff for Congresswoman Tammy Baldwin.
Katie Rose Quandt is the Senior Editor at the Prison Policy Initiative, as well as a journalist and writer/editor at Solitary Watch. Her most recent major report is Building exits off the highway to mass incarceration, a guide to understanding criminal justice “diversion” programs designed for local policymakers and the general public. Katie Rose has also written several briefings focused on health behind bars, including the effects of incarceration on mental health and coronavirus vaccines behind bars.
About the Prison Policy Initiative
The non-profit, non-partisan Prison Policy Initiative was founded in 2001 to expose the broader harm of mass criminalization and spark advocacy campaigns to create a more just society. The organization is known for its visual breakdown of mass incarceration in the U.S., as well as its data-rich analyses of how U.S. states vary in their use of punishment. Alongside reports like these, the organization leads the nation’s fight to keep the prison system from exerting undue influence on the political process (a.k.a. prison gerrymandering) and plays a leading role in protecting the families of incarcerated people from the predatory prison and jail telephone industry and the video calling industry.
Recommended Reading:
Advocacy Toolkit
Resources, tips, and best practices to help advocates working to end mass incarceration.
50 state incarceration profiles
All of our recent reports about prison/jail growth, racial disparities, and more, re-organized by state.
Mass Incarceration: The Whole Pie
The U.S. incarcerates over 1.9 million people, more than any other country. Where are they locked up and why? Read our report.
