I. INTRODUCTION: FLOODING OUR PRISONS THEN DAMMING THE PATH TO RELEASE

"Gulf-sized race-based gaps exist with respect to the health, wealth, and well-being of American citizens. They were created in the distant past, but have indisputably been passed down to the present day through the generations." - Justice Ketanji Brown Jackson

Racism has permeated every facet of American life, but it is most remarkable when studying the number of African American men and women herded down the path to incarceration in our country. While African Americans only make up a small fraction of the general U.S. population, we consistently comprise a much higher percentage of persons caged in our jails and prisons. According to the Pew Research Center, “In 2021, there were an estimated 47.2 million people who self-identified as [African American], making up 14.2 percent of the country’s population.” The Bureau of Justice Statistics reported in 2021 that the rate of incarceration for African American adults was 1,850 per 100,000, while it was 410 per 100,000 for white adults. “[African Americans] are incarcerated in state prisons at nearly five times the rate of white Americans.” In some states, the contrast between the numbers of African Americans in the general population, as compared to those who are in prison, is even more astonishing. For instance, in Wisconsin, which “leads the nation in [African American] imprisonment[,] one of every [thirty-six African American] Wisconsinites is in prison.” In 2020, African American individuals made up forty-two percent of the total prison population in Wisconsin. In the same year in the same state, African American people made up only 6.4 percent of the total population. “In [twelve] states, more than half the prison population is [African American] . . . .” In most states, prisoners come from racially segregated and disadvantaged communities.

Incarceration rates in the United States are unprecedented. In 2021, the custody counts of adults in state and federal prisons and local jails was estimated to be 1,767,200 with 171,600 in federal prisons, 959,300 in state prisons, and 636,300 in local jails. It is important to note that it is not just state and federal prisons and jails where people are incarcerated; people are often kept in hidden places like private prisons (contracted to house state and federal prisoners), juvenile correctional facilities, immigration detention centers, and Indian country jails. Beginning in the early 1970’s until recent years, the United States’ prison population grew by an average of 5.8 percent each year. At the close of the Twentieth Century, U.S. prison populations ballooned to 1,933,503 in 2000, nearly six times the incarcerated population two decades prior. This exponential “prison boom,” a product of the “law and order” and “super predator” political rhetoric which expanded through the 1990s, has resulted in the incarceration of thousands of people of color from poor communities who were sentenced to serve decades in prison. This rhetoric was initiated with Barry Goldwater in 1964, and gained traction through the Nixon, Reagan, and Clinton administrations. Even former Texas Governor, Ann Richards, who was a liberal democrat, bragged during her reelection against George W. Bush in 1994 about having added 75,000 prison beds. People of color, particularly African American men, are disproportionately represented in our incarceration rates. Hence, mass incarceration has been titled “the New Jim Crow,” reminiscent of a time when laws were put in place to enforce racial segregation and oppress formerly enslaved people. America has spent over a trillion dollars waging its war on drugs since President Richard Nixon initially launched this campaign over fifty years ago. This policy, which has continued through today, has not made a significant dent in America’s drug problem. But such policies only serve to contribute to the erosion of protection for individual liberties that has resulted from “tough on crime” reforms, including giving law enforcement authority to impose no-knock warrants and odor searches, and requiring that judges adhere to strict mandatory minimum sentencing instructions. The overreliance on incarceration in order to achieve or maintain public safety has been a mere ruse.

Despite the valiant efforts of zealous legal practitioners, jailhouse lawyers, and people filing pro se, only a small fraction of men and women have actually been released from the clutches of mass incarceration and gained their freedom, slowly dripping out of the tightly turned faucet. Decreasing the number of people in our prisons is a racial justice issue and every piece of artillery must be utilized to right the wrongs and reverse the decades of harm inflicted by mass incarceration. “[B]etween 1972 and 2009, the prison population grew an average of 5.8% annually.” Comparatively, the pace of decarceration has been less than half the rate of growth – averaging only 2.3 percent each year. We are getting people out of prison at an appallingly slower pace than we incarcerated them. Whether by fighting for freedom at administrative hearings before paroling authorities, before the courts through the filing of clemency and juvenile lifer petitions, or by seeking clemency from our elected officials (governors and the president), our criminal legal system must reverse course to decrease mass incarceration in order to achieve racial justice and heal communities. Many decisionmakers often perceive people of color as more threatening and dangerous than white people and these decision-makers are often convinced that young African American men are chronic offenders, do not respond to treatment, and are more likely to recidivate. These implicit biases seep into the decision-making process when determining who is granted a second chance at release and allowed to return home versus who is left to linger behind prison walls. The impact of excessive incarceration on African American families is particularly severe. It is estimated that approximately sixty-three percent of African American adults “have had an immediate family member incarcerated and nearly one-third (31%) have had an immediate family member incarcerated for more than one year.”

People who are fighting for liberation through the avenues discussed here – compassionate release, grants of clemency, juvenile lifer sentence reductions, or parole releases – wrestle with the reality that these forms of relief are often illusive and unobtainable. This article examines these realities.

II. COMPASSIONATE RELEASE: AN ILLUSORY PLEA FOR MERCY FOR THE SICK AND DYING

A. The Purpose of Compassionate Release and Tools to Seek It

Compassionate release mechanisms have been established on the federal and state level in order to allow aging or terminally ill people in prison to have an opportunity for release. At best, these mechanisms allow people to die in a setting other than a cold prison cell alone. An individual can petition for early release, after having served a portion of their sentence, for either health reasons (medical parole) or advanced age (geriatric parole). Our prison population is aging. It is estimated that “[b]y 2030, prisons will house more than 400,000 individuals who will be 55 and older, making up nearly one-third of the population.” This reality exists despite the well documented fact that housing older prisoners is more costly for taxpayers and they pose the lowest risk to public safety. As people grow older, their risk of committing crime drops significantly, but many still find themselves caged in prison serving what seem like slow death sentences. Even dying prisoners are shackled to their beds and often denied family bedside visits at the end of life. After the murder of George Floyd at the hands of Minneapolis police officer Derek Chauvin, there were uprisings across the country in protest when we witnessed racist acts of abuse at its worst. But no outcries erupt when men and women die in cold prison cells hidden from public view.

Compassion is not only a sympathetic understanding of another person’s circumstances; it must also include a desire to do something about it. Compassionate release was originally introduced into law by the Sentencing Reform Act of 1984. This was the first statute which created the concept of compassionate release. Compassionate release typically requires showing particularly extraordinary circumstances which could not reasonably have been foreseen by the court at the time of sentencing. The U.S. Sentencing Commission (“USSC”) has established guidelines to determine when such extraordinary and compelling reasons justify compassionate release.

1. Federal Law: Decades of Inaction, A Glimmer of Hope, And A Deadly Pandemic

Federal law permits sentence reductions and early releases for certain categories of prisoners by filing for such release under 18 U.S.C. § 3582 (c)(1)(A), as amended by the First Step Act of 2018 (“First Step Act”). However, for the many incarcerated people who fit these criteria, securing a compassionate release grant is still beyond reach. Originally, only the Bureau of Prisons (“BOP”) could bring a motion in court for an individual’s compassionate release and there was a multi-leveled review process. It was not uncommon for a person to die before their request made its way through the long and convoluted process of reviews by the warden, medical staff, BOP General Counsel, and Director of BOP, and then a ruling by the court.

The array of stories about individuals dying in prison while pleading for mercy when the BOP made the sole decision are disturbing. In 1994, Michael Mahoney was sentenced to a mandatory fifteen years in federal prison for possession of a firearm because he had previously served ten years for several small drug sales to an undercover agent dating back to 1984. Ten years later he was dying from cancer and a myriad of other conditions at the Federal Medical Center (“FMC”) in Lexington, Kentucky. He applied for compassionate release after being diagnosed with Hepatitis C, Non-Hodgkin’s lymphoma, and growing tumors. The warden supported his request, and the U.S. Attorney did not oppose his petition. However, the BOP denied the motion citing the “totality of the circumstances” and his “multiple felony convictions.” The sentencing judge then wrote the BOP director pleading on behalf of Mr. Mahoney. The BOP never responded, and Mahoney died at age forty-nine handcuffed to a prison hospital bed, despite the fact that his family had arranged for hospice care for him.

In 2018 the Sentencing Reform Act was modified when former President Donald Trump signed into law The First Step Act, bipartisan legislation designed to reform federal prisons and sentencing laws in order to reduce recidivism, decrease the federal prison population and maintain public safety. This law is designed to help terminally ill or aging people who pose little or no threat to public safety to seek release. It allows people in prison to seek compassionate release directly in federal court, and it gives sentencing judges the authority to consider these requests once all administrative processes have been exhausted with the BOP or when the BOP failed to act on a compassionate release request within thirty days (whichever came first). As indicated, before this time only the director of BOP could petition the court on behalf of a sick prisoner, which was a rarity. A recent report by The Sentencing Project highlights how prior to the First Step Act, compassionate release was egregiously rare, with the Office of the Inspector General reporting only 3% of petitions were granted in 2016. Additionally, the length of time for BOP to process requests proved deadly, as 5% of the 5,400 applicants for compassionate release in 2014–2017 died during the 4.5 months it took, on average, for their request to be reviewed. In United States v. Ebbers, the court explained the findings from an Office of the Inspector General, which showed that over a six-year period, the BOP filed zero compassionate release motions for non-medical reasons and only twenty-four for medical reasons.

Mr. Ebbers was convicted of securities fraud and sentenced to twenty-five years of imprisonment. After thirteen years in prison, he developed significant health issues at the age of seventy-eight years old. On September 5, 2019, he requested compassionate release.66 Because his case was filed after the passage of the First Step Act, he was able to seek relief independently from the BOP. BOP had denied his initial petition in August 2019, even though Mr. Ebbers suffered from macular degeneration and cardiomyopathy. By the time his motion was granted by the courts, Mr. Ebbers was disoriented, bedridden, and had been moved to a twenty-four-hour nursing care unit at FMC Fort Worth because he needed assistance with daily living. He died within two months of being released.

During the recent COVID-19 pandemic, scores of petitions were filed for incarcerated individuals seeking release based on compassionate relief. The pandemic literally closed the courthouse doors that had been figuratively closed for decades, slowing most daily law operations to a crawl. In response, sole practitioners and law firms, including corporate attorneys, joined the fray and redirected their efforts to represent populations of individuals previously foreign to them. Many were trained by the National Association of Criminal Defense Lawyers (“NACDL”) and began to file motions requesting vulnerable individuals be granted compassionate release and other post-conviction remedies. It is reported that requests for compassionate release surged during the pandemic and 7,014 motions were filed in fiscal year 2020. However, data from the USSC reveals judges rejected over 80% of compassionate release requests filed in that fiscal year. As petitioners were filing individual motions, sometimes with lawyers and sometimes without, federal legislation was being enacted with the intent to provide large-scale relief. Congress passed the Coronavirus Aid Relief and Economic Security Act (“CARES Act”) in March 2020 as a comprehensive response to the COVID-19 pandemic. The Act granted BOP the authority to place prisoners in home confinement based on criteria established by the U.S. Attorney General. It did not free people from prison, it merely changed their security level and location. However, BOP still retains discretion over whether individuals may continue serving their sentences on home confinement or must return to prison. Despite well-coordinated efforts, nearly 2,500 people held in state and federal prisons died of COVID-19 from March 2020 through February 2021, according to an August 2022 report from the Bureau of Justice Statistics. Judges continued to deny requests as people were dying in prisons of COVID. Many federal prisoners were sent to Butner Medical facility in North Carolina, which had hundreds of people locked in who were diagnosed with the virus. An attorney for the ACLU, who filed a lawsuit seeking immediate release for individuals so that the facility could comply with social distancing guidelines, called the prison a “death trap. Many did not survive.

The number of individuals who were granted release decreased as the pandemic lengthened over months and years. According to a report of monthly compassionate release grants and denials, in October 2019, twenty-two requests for compassionate release were granted and six were denied; in May 2020, 270 compassionate release requests were granted and 582 were denied.86 By September 2020, 254 requests were granted and 1,041 were denied. Individuals who were granted relief tended to be older than those who were denied compassionate release. On April 5, 2023, the U.S. Sentencing Commission approved new guidelines that expanded the ability for individuals serving time on federal sentences to qualify for compassionate release from prison.89 If these revisions merely serve to untangle and clarify the considerations process it is a step in the right direction.

2. State Law: Inefficiencies And Devastating Consequences

Most states have established a mechanism for the aging incarcerated population and those who are battling terminal illness – most are titled compassionate release statutes. Compassionate release challenges are even more difficult on the state level than on the federal level. Forty-nine states and the District of Columbia have medical parole provisions, and twenty-four states and the District of Columbia offer geriatric parole – or release based upon age. “Only Iowa has no specific compassionate release law or regulation.” Most state statutes have strict eligibility requirements and grant compassionate release sparingly, often only when the individual is expected to die within a matter of days or weeks. The definitions and parameters vary among the states and are often vague and inconsistent because they are not usually developed in consultation with medical professionals to define terms such as “terminal illness” or “permanent incapacitation.” Some states require that the individual be within twelve months of death while others require a six-month life expectancy. Unfortunately, few statutes require states to track and report data and statistics for public information. As a result of the lack of reporting requirements, little is known about the basis for requests and reasons for denials. While waiting upon layers of medical review, the individual’s health worsens as they decompensate, conditions become chronic, and they often face imminent death. Some states have exclusions from compassionate release for certain offenses solely based on what is politically popular to the public and the current legislature’s whims. Sex offenders and violent offenders, are often disqualified from seeking such relief.

Such relief is difficult to obtain even for individuals housed in prison medical units or dormitory units designed for the aging population. Older incarcerated people pose little, if any, danger to the public because of their age and low recidivism rates. Nationally, aging people return to prison for new convictions at a rate between five and ten percent, and in some states, it is often far lower. In Maryland, 235 individuals became eligible for release based on the Unger decision, and of those released less than three percent have recidivated. In New York, less than seven percent of formerly incarcerated people over the age of fifty are reconvicted, while in Virginia that number is as low as one percent for those sixty and older. It is worth highlighting that these rates are far lower than national averages for recidivism rates for released individuals, which are typically around forty percent.

Although recidivism rates for geriatric and medical releases is incredibly low, states are still reluctant to grant compassionate release for those who are dying in prison. Pennsylvania’s compassionate release statute is so narrow that “only [thirty-one] people have successfully petitioned for it in [thirteen] years.” Costs of incarceration soar as the population ages and grows sicker. Incarcerated individuals in Pennsylvania with less than a year to live can request transfer from prison to a hospital or long-term care facility. They can also request transfer to a hospice facility if they are terminally ill and unable to walk. Eight people have died since 2016 awaiting a medical transfer hearing. Mr. Frank Rodriquez, who was suffering from late-stage cancer, left prison in August 2017 after spending weeks working on a medical transfer request. He died just two days later in his sister’s home.

While Maryland has both medical and geriatric parole options, approval for such release is scarce. “Between 2015 and 2020, the Maryland Parole Commission approved 86 medical parole applications and denied 253.” Because the Governor must still approve medical parole for lifers (individuals who are serving life sentences in prisons or jails), it is worth noting that the Governor granted nine out of twenty-three medical parole requests from individuals serving life sentences. It is also worth noting that the Maryland Parole Commission only approved seven percent of applications in 2020, at the height of the COVID-19 pandemic. This was the lowest yearly approval rating from 2015– 2020, despite the urgent public health crisis. Maryland passed the Justice Reinvestment Act in 2016, which lowered the age for geriatric eligibility from sixty-five to sixty years old. According to a report from the Justice Policy Institute, there are over 600 individuals “over the age of sixty in Maryland’s prison system who have served at least [fifteen] years” in custody. However, such release is still out of reach for many of them. The review process is time consuming and “Maryland’s medical parole statute [has] criteria that are [incompatible] with those listed in the regulation intended to implement it.” When such inconsistencies exist, the decision-making process may be prolonged as medical staff is unclear about whether they must make an assessment of whether the individual is chronically debilitated or incapacitated or whether the person is terminally ill. In Maryland, no medical examination is required for compassionate release, but a Karnofsky score measuring functional impairment must be done and a recommendation is then sent to the Maryland Parole Commission. Legislation has been introduced before the Maryland General Assembly during the last two sessions to fix this dilemma, but it has not yet been enacted. As this population ages, the onus is on the Department of Public Safety and Correctional Services to provide adequate medical care. The aging population in Maryland is primarily comprised of African American men and women. Nearly eight in ten people who are serving the longest prison terms in Maryland are African American, according to a 2019 Justice Policy Institute report.

The harms from delay and ineffectiveness in this system are real and severe. Mr. Donald Leroy Brown petitioned for a compassionate medical parole release due to his failing health after serving thirty-five years in prison. He requested parole based on his suffering from congestive heart failure and kidney failure, as well as diabetes and high blood sugar, but his petition was denied on June 1, 2020. Mr. Brown fell and broke his hip, which required him to have surgery, which in turn led to a plethora of additional health complications. His health condition worsened, and a second request was made, because like most states, there is no right to appeal a denial in Maryland. He was eventually granted medical parole and was released from prison on June 18, 2020, but Mr. Brown passed away in a nursing home facility on July 6, 2020.

In Illinois, the legislature enacted the Joe Coleman Medical Release Act, which authorized the State Prisoner Review Board to release terminally ill or medically incapacitated people from their prison sentences. It is an uncomplicated straightforward mechanism to review terminally ill and disabled individuals seeking medical release. The bill is named after Joe Coleman who died in prison in October 2019 at eighty-one years old, despite the heroic efforts of his attorney pleading for his release. He was a decorated veteran and family man who succumbed to his battle with prostate cancer while he was serving a life sentence. He had been incarcerated for forty years for a robbery conviction. This legislation serves as a blue print for other states to follow in detangling their convoluted compassionate release statutes.

B. Judicial Failures to Ensure Compassion and Provide Clear Guidance

Courts have wide “discretion in deciding whether to grant or deny a motion for a sentence reduction.” Most applications for compassionate release are denied for various reasons. Failure to exhaust administrative remedies is often a basis for denials from the courts. U.S. law governing imposition of sentences provides in relevant part that:

"The court . . . upon motion of the defendant after the defendant has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant’s behalf or the lapse of 30 days from the receipt of such a request by the warden of the defendant’s facility, whichever is earlier, may reduce the term of imprisonment . . . after considering the factors set forth in section 3553(a) to the extent that they are applicable, if it finds that . . . extraordinary and compelling reasons warrant such a reduction . . . . "

In United States v. Millan, the court found that Mr. Millan met the thirty-day requirement because he had waited thirty days from when the warden received his request, not when his request was submitted.

Other reasons why applications are denied include failure to demonstrate extraordinary and compelling reasons or a finding of danger to the public. The federal statute does not delineate what “extraordinary and compelling” means, so judges are largely left to figure it out on their own. However, the statute does direct judges to consider factors in sentencing laws and guidelines from the USSC. Congress has not altered the U.S. Sentencing Guidelines definition of “extraordinary and compelling reasons.” These guidelines provide that “extraordinary and compelling reasons” exist based on (1) the medical circumstances of the defendant; (2) the age of the defendant; (3) the family circumstances of the defendant; (4) the defendant’s experience as a victim of abuse while in custody; (5) other reasons; or (6) an unusually long sentence. The First Step Act did not revise the substantive criteria for compassionate release—it expanded access to the courts, but it did not change the standard of review.

Many compassionate release petitions are filed pro se with many petitioners arguing that their cases are extraordinary due to medical issues, coronavirus risk, age, or excessive sentences. The U.S. Sentencing Guidelines also mandate that a determination be made that the individual “is not a danger to the safety of any other person or to the community . . . and “the reduction is consistent with this policy statement.” However, very few pro se litigants are privy to these guidelines or the referenced policy statements simply due to their confinement and the limited law library resources available. They merely know that their health is declining as they remain in vulnerable and unsafe institutions.

Recently, courts have been split on whether the U.S. Sentencing Commission guidelines are still relevant under the First Step Act for defining “extraordinary and compelling” under § 3582 (c)(1)(A). For example, in United States v. Cantu, the court found that § 1B1.13 “clearly contradicts” the new § 3582(c)(1)(A) amendments under the First Step Act and that, because Congress changed the statute to expand the use of compassionate release, the guideline “no longer fits with the statute and thus does not comply with the congressional mandate . . . .” In United States v. Bryant, the Eleventh Circuit held that § 1B1.13 applies to – and limits – all § 3582 motions, even those filed by defendants, and held firmly that district courts cannot individually determine when a defendant’s circumstances qualify as “extraordinary and compelling.” The court criticized the seven other circuits which held otherwise – that these guidelines do not apply to pro se filers.

As the pandemic lengthened, the government took the position in their written responses that if an individual did not get vaccinated then they did not deserve compassionate release; and if they were vaccinated, then they were safe where they were, behind the walls. Unfortunately, such was not the case for Mr. Rasheem Hicks. He was forty-two years old and was serving a six-and-a-half-year sentence in the BOP for cocaine and firearm possession. He was vaccinated but contracted the coronavirus and died about two weeks after testing positive. His compassionate release petition, which he filed pro se, was denied, with the court citing his vaccination status in its opinion. He suffered from sickle cell disease, diabetes, and chronic liver disease, which were all cited in his petition. On June 25, 2021, he moved for reconsideration of his motion for compassionate release, but died on August 22, 2021. His case was dismissed as moot after his death.

There have been a few successful challenges seeking court intervention when an individual has been denied compassionate release. Though it was a state case, in People v. Torres, an appellate court in California reversed denial and ordered a grant of compassionate release where the sentencing court found that Mr. Torres met statutory criteria but had been denied release based on other factors. The Court of Appeals of California, Fourth Appellate District held that the trial court abused its discretion when it denied a motion for compassionate release. Mr. Torres was terminally ill, suffered from widespread metastatic pancreatic cancer, and was required to use a wheelchair and a “permanent hard cervical collar to stabilize his neck.” His daughter had arranged to provide in-home hospice care for him if he was released. Both the Department of Corrections and Rehabilitation and the Board of Parole supported his release. The appellate court held that the trial court’s denial of compassionate release based on him not being deserving was improper and that his case met all of the statutory criteria. The decision in this case was an anomaly, and even though Mr. Torres was ultimately successful in court, a year passed between when he first requested compassionate release due to his severe illness in April 2019 and when the appellate court ultimately reversed the lower court’s discretionary denial in April 2020. When Mr. Torres first requested compassionate release, doctors predicted he only had six months to live, yet he spent this time challenging the court’s denial on appeal instead of in home hospice care. Compassionate release denials continue to be unreasonable and court intervention often leaves people seeking such relief with another door slammed in their face.

III. CLEMENCY: A DISCRETIONARY MEANS EXPLOITED FOR POLITICAL GAINS

A. Statutory Vesting of Discretion in Political Decision-Makers

Clemency is a mechanism to grant relief from a court-ordered sentence or punishment or to spare such a punishment before it is imposed. It is a useful, though highly discretionary, tool for addressing unfair and excessive sentencing practices. The granting of clemency lies in the hands of elected political figures. For persons who are sentenced in state court, this authority lies with the governor, with one exception. For individuals who are sentenced in the District of Columbia local courts, the President is the only authority who can grant a clemency petition. Clemency includes requests for commutations of sentences (for persons still in custody) or pardons (for persons who have been released from a sentence).

1. Federal Law: A Longstanding Mechanism With a Checkered Past

“The origins of the pardon power in the United States Constitution can be [traced to] English history . . . It first appeared during the reign of King Ine of Wessex in the seventh century.” At the Constitutional Convention in 1787, Alexander Hamilton introduced the pardon power concept in the United States. Article II, Section 2 of the U.S. Constitution provides that the President has the authority to “grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” The U.S. Supreme Court has interpreted this power as “plenary,” meaning that it is extremely broad and not often subject to congressional modification. “In both Ex Parte Garland (1866) and United States v. Klein, 189 (1871) the Court ruled that legislation could not restrict the president’s pardon power.” These two landmark cases gave presidents unfettered control over clemency decisions.

There are different types of clemency that fall under the president’s power, including pardon, amnesty, commutation, and reprieve. A pardon generally applies to individuals who have been released from custody, absolves them from punishment, and restores all civil liberties. Amnesty is the same as the pardon but is extended to an entire group of individuals. Commutation generally applies to individuals who are in custody and reduces their sentences. A reprieve delays imposition of a sentence or punishment, generally after a person has received a conviction. Pardons and commutations are the most commonly issued types of clemency relief. Clemency has been issued by presidents on a fairly consistent basis. Presidents have routinely doled out clemency pardons at the end of the year and often at the end of their terms. George Washington issued the first presidential pardon in 1795 to John Mitchell and Philip Weigel who were involved in the Whiskey Rebellion in Western Pennsylvania and convicted of treason. Thomas Jefferson granted amnesty to citizens convicted under the Alien and Sedition Acts. Abraham Lincoln granted clemency to Confederate Army deserters and spared the lives of 265 Dakota Sioux who had been sentenced to hanging by refusing to sign their death warrants. In 1868, Andrew Johnson pardoned Jefferson Davis, the former President of the Confederacy, which was controversial. Harry Truman surprisingly commuted the death sentence of the man who tried to kill him.

There have been more controversial exercises of this authority. Warren G. Harding commuted sentences of twenty-four political prisoners, including socialist leader Eugene Debs in 1921. “Richard Nixon commuted the sentence of James Hoffa, former president of the International Brotherhood of Teamsters who was convicted for pension fund fraud and jury tampering,” in 1971. The same President Nixon who was responsible for opening the prison floodgates for African Americans would later be pardoned himself in 1974 by President Gerald Ford after the Watergate scandal. Ford pardoned Nixon for all federal crimes he “committed, or may have committed, or taken part in” while in office.208 Nixon was pardoned just weeks after becoming the first and only U.S. president to resign from office. This pardon proved to be a political disaster for President Ford. Additionally, Ford created a special clemency commission that led to clemency for at least 6,000 Vietnam deserter recipients. On his first day in office in 1977, Jimmy Carter pardoned people who evaded signing up for the draft in protest against the Vietnam War before they were charged for their actions. He also commuted G. Gordon Liddy who was sentenced to twenty years for his role in the Watergate break-ins. He would serve only eight years in prison instead. On Christmas Eve 1992, President George H.W. Bush pardoned former Secretary of Defense Caspar Weinberger and others involved in the Iran-Contra scandal, claiming they had fallen victim to “the criminalization of policy differences.” Weinberger and others had been indicted on charges of lying to Congress about selling secret weapons to Iran, the profits of which were used to support U.S.– backed rebels in Nicaragua. Bill Clinton pardoned Roger Clinton, his half-brother, who had been convicted on cocaine drug charges; Patty Hearst, a publishing heiress convicted in a 1974 bank robbery; as well as Susan McDougal, a former Clinton business partner who was involved in the Whitewater scandal. Former Illinois Rep. Dan Rostenkowski was also pardoned by Clinton after his 1996 conviction for mail fraud.

Until the 1980s, commutations were granted regularly, but in recent decades, commutations numbers have been shrinking. A recent exception was President Barack Obama, who granted 1,715 commutations and 212 pardons. By comparison, Ronald Reagan granted thirteen commutations and 393 pardons; George H. W. Bush granted three commutations and seventy-four pardons; William Clinton granted sixtyone commutations and 396 pardons; George W. Bush granted eleven commutations and 189 pardons; and Donald Trump granted ninety-four commutations and 144 pardons. To date, President Biden has granted 111 commutations and nine pardons. Each year, thousands of petitions are received and thousands are closed without presidential action. President Donald Trump granted clemency early on in his presidency. He granted pardons to Bernard B. Kerik, former New York City police commissioner; Michael R. Milken, junk-bond king of the 1980s; Edward J. DeBartolo Jr., former owner of the San Francisco 49ers; and commuted the sentence of former Illinois governor Rod R. Blagojevich for corruption charges. Other celebrity cases in which he issued pardons include Kristian Saucier, a sailor who had been convicted of mishandling Navy secrets, and Alice Marie Johnson, whose case came to his attention by celebrity Kim Kardashian. Trump granted sixteen commutations in the nearly four years before his last month in office, and seventy-eight within the last thirty-one days of his presidency. President Obama issued the most pardons and commutations for a two-term president. In comparison, George W. Bush issued the fewest number of clemency actions for a two-term president, only 200. Most of the individuals who had their sentences commuted by Obama were non-violent drug offenders. It is estimated that President Joe Biden has a current backlog of approximately 17,000 petitions.

According to the Department of Justice statistics, the total number of clemency actions from 1900 to 2017 was 22,485. In recent decades the number of clemency grants and petitions have both declined. Over time, presidents have been slow in utilizing this relief power and the process is multilayered. A clemency petition is considered by the staff of the Pardon Attorney, the Pardon Attorney, the staff of the Deputy Attorney General, the Deputy Attorney General, the staff of the White House Counsel, the White House Counsel, and finally reviewed by the President for the ultimate decision.

Reform is clearly needed as this avenue for relief continues to fall short of its intended purpose; instead, it is often used to fuel the political rhetoric, generally to the disadvantage of African American men and women. Congress has considered some reforms of the clemency process, but so far failed to act. Congresswoman Ayanna Pressley (D-MA) introduced a bill in 2021, H.R. 6234, the Fair and Independent Experts in Clemency Act, also referred to as the “FIX Clemency Act,” to implement a coherent system for analyzing petitions and advising the president on clemency.This bill would create a presidentially-appointed board (akin to those implemented by many states), working outside of the Justice Department, that would analyze clemency petitions and advise the president directly on outcomes. Such legislation is critical to ensure the federal clemency process is fair, reliable, and just.

2. State Law: Models for Reform and Divestment of Executive Authority

Because presidents can only grant clemency relief for federal offenses, state constitutions vest power to grant clemency in the governor, the highest-ranking head of state.239 The clemency petition process is defined differently in each state and the authority is embedded in each state’s constitution. In most cases, the governor has the final authority to grant clemency. In some states, like New York, the governor alone makes this decision. In other states, governor approval is done in conjunction with either approval or advice from a state clemency board. And in other states, like Connecticut, the governor is not involved in the clemency decision making at all. Many states have a Board of Pardons that examines clemency petitions and then submits recommendations to the Governor, who makes the final decision. Clemency Boards act as gate keeper and their approval is necessary for clemency petitions to move forward for consideration. A favorable recommendation causes a written recommendation to be sent to the governor and an unfavorable recommendation ends the process. Some states, such as Alabama and Connecticut, use independent boards established by the governor to grant clemencies. But even with different structures that do not leave clemency solely in one executive official’s hands, in many states, the granting of clemency has nearly ground to a halt.

Since 1997, Massachusetts’s use of commutation has been miniscule. In Massachusetts, a person submits a petition for initial review by the Advisory Board of Pardons, whose eight members are appointed by the Governor. This Board then holds a public hearing and submits a recommendation to the governor in favor of or opposing clemency. The governor then decides whether to grant the clemency requested. If the governor gives a favorable recommendation, that decision is subject to the consent of the Executive Council, composed of eight elected officials. “The Council may consent to clemency only after conducting its own public hearing.” The “[Advisory] Board has averaged [only] one hearing every two years, despite receiving 386 petitions,” since 2005.

Pennsylvania is one of a few states that categorically exclude people serving life sentences from parole consideration and so the only way for a lifer to be released is by clemency. Similarly to the rest of the country, the number of people in prison grew dramatically in Pennsylvania in the 1970s and 1980s, with a disproportionate increase in those sentenced to spend life in prison without the possibility of parole. However, in the 1980s and 1990s as the lifer population increased, the granting of executive clemency came to a “virtual standstill.” A former lifer committed additional crimes in New York in 1994 after having his sentence commuted by Governor Robert Casey. This individual was tagged “Pennsylvania’s Willie Horton” and his case was the impetus for the Board of Pardons changing their state constitution to require a “unanimous” vote, making clemency virtually unobtainable for lifers. Criminal legal policy that is created based on fear and outrage is not sound penal practice.

In New York, former Governor Andrew Cuomo granted zero clemencies during his first term. In October 2015, he announced the creation of a pro bono clemency program, but between 2015 and 2019 only twenty-one commutations were issued. The current governor, Kathy Hochul, granted clemency to ten individuals (nine pardons and one commutation) in December 2021 and announced the formation of a clemency advisory panel just four months after her tenure began on August 24, 2021. She subsequently granted clemency to thirteen individuals (four commutations and nine pardons) in December 2022 and in April 2023 she granted clemency to seven individuals (five pardons and two commutations).

Between 1991 and 1994, the Board of Pardons in Connecticut approved thirty-six pardon applications; for the following nine years, they granted zero. The clemency process ceased entirely in 2019 when the Board would not even accept applications as they waited for new guidelines and instructions. Operations resumed in 2022, but due to political pressure, Connecticut’s Governor stalled the Board’s review in April 2023. Currently, there is, once again, no meaningful opportunity to apply for clemency in the state.

In the nation’s capital, the District of Columbia, the Clemency Board Establishment Act was passed in 2018, but it was not until two years later that the Board became active, drafted regulations and operating procedures, and began meeting regularly. In 2022, the Board finally began to receive and review applications from eligible persons sentenced in D.C. Superior Court. Because D.C. is not a state, the mayor cannot grant clemency; therefore, the Clemency Board reviews applications of people convicted of D.C. Code offenses and determines which applicants to recommend to the President of the United States for clemency. Applications to the Clemency Board are not applications for clemency because an application must be filed with the Department of Justice, Office of Pardon Attorney in order to be considered. Just three people convicted of a D.C. Code offense have received clemency since 1989, one in 2013 by President Obama and two since 2022 by President Biden.

The use of clemency power has not always trickled down to people who lack popularity or notoriety. Atrophy and misuse often reflect the attitude of decision-makers when common folk seek such relief. The case of sixty-five-year-old Mr. Crosley Green is just one troubling example. He was convicted for a murder in 1989. Resulting from the carjacking of Charles Flynn and his ex-girlfriend Kim Hallock. He was sentenced to death by an all-white jury and subsequently resentenced to life in prison due to an error in the sentencing phase of the trial. After more than thirty years in prison, he was awarded a new trial in 2018 when the Eleventh Circuit Court of Appeals overturned his conviction based on a Brady violation. Prosecutors withheld notes from a meeting with first responders who said they believed Green was innocent. The two officers with the Brevard County Sheriff’s office said they believed that Hallock herself was responsible. The court acknowledged the withheld information should have been turned over to the defense team. “Green was released from prison to house arrest in April 2021 pending the ruling [from] the Eleventh Circuit."The state of Florida appealed the court’s decision, and the conviction was reinstated. Green appealed to the U.S. Supreme Court, but it declined to hear his case in February 2023. Despite his stellar institutional record during his prior incarceration and his exemplar compliance with house arrest conditions, he was ordered back to prison in April 2023 after two years of freedom. In June 2023 Mr. Green learned he would not be eligible for parole until 2054, if he survives in prison to be ninety-seven years old. His only real hope now is clemency from Florida Governor Ron DeSantis.

Several states increased the use of clemency, particularly during the pandemic. Governor Kevin Stitt, Republican governor of Oklahoma, granted clemency to over 1,000 people in 2019. He granted an additional 450 commutations in 2020 during the height of the pandemic. Governor Jay Inslee (Democrat) of Washington also responded to the pandemic crisis by granting commutations to over 1,100 people. Kentucky Governor Andy Beshear (Democrat) also issued commutations for over 500 incarcerated folks who were considered to be at high risk for contracting COVID-19. While these governors are to be commended, these numbers still remain relatively low as compared to how rapidly the numbers swelled under the powerful tide of mass incarceration growth. An active clemency board does not mean that a state is soft on crime, but that it recognizes human beings are capable of change and that punishment for an offense should not be perpetual.

B. Judicial Recognition of This Critical Remedy And Our Failure to Provide It

In 1976, the Supreme Court emphasized the continuing significance of clemency review. In Gregg v. Georgia, the Court held that a system of capital punishment without executive clemency “would be totally alien to our notions of justice.” In 1998, the U.S. Supreme Court issued a major decision in an attempt to clarify clemency procedures. In Ohio Adult Parole Authority v. Woodard, the Court unanimously dismissed the claim that the Ohio clemency procedures violated an individual’s constitutional rights. Mr. Woodard was on death-row and was seeking relief, but because the process included an interview, he claimed that it violated his Fifth Amendment right to remain silent. Unfortunately, the Court determined that his claims were found to be without merit and that giving an individual the option of voluntarily participating in an interview as part of the clemency process was not a violation. The Supreme Court was sharply divided on the central question of whether clemency must comply with “due process of law.”

In 2010, Justice Anthony Kennedy brought up the scarcity of clemency grants in Dillon v. United States. He asked, “[a]nd were there-how many commutations last year? None. And how many commutations the year before? Five. Does this show that something is not working in the system?"

Yet, the availability of clemency, even in name only, has provided justification for the Court to narrow other pathways to review convictions and sentences. Chief Justice Rehnquist noted in Herrera v. Collins that “clemency . . . is the historic remedy for preventing miscarriages of justice where judicial review has been exhausted.” Mr. Herrera was executed three months after the Court’s ruling when thenGovernor of Texas Ann Richards only promised to study recommendations from advocates. These advocates had asked her “to develop mechanisms so that [persons] alleging miscarriages of justice would receive full and fair clemency hearings.”

Even when courts have tried to instill greater accountability and fairness in clemency processes, the Supreme Court has rejected these efforts. In Dumschat v. Connecticut Board of Pardons, the district court ruled that due process obligated the Board to provide an explanation whenever it denied a clemency application for someone serving a life sentence. However, the Supreme Court reversed this decision in Connecticut Board of Pardons v. Dumschat, and ruled that the Board did not violate a prisoner’s due process rights when it failed to give him reasons for not commuting his sentence. Mr. Dumschat was serving a life sentence and had filed several applications for commutation. They had all been rejected by the Connecticut Board of Pardons without explanation. The Court found that no explanation was required, therefore depriving Mr. Dumschat of any constitutional remedy for the clear harm he continues to suffer.

Grants of clemency are administrative decisions that tend to be political in nature. The path to seek such relief should be available to every deserving individual without insurmountable obstacles.

IV. JUVENILE LIFER: THE SLOW UNDOING OF CHILDREN’S CONDEMNATION

A. The Supreme Court Speaks and the States Listen

1. Federal Law: A Long Overdue Yet Imperfect Protection for Children Against Cruel and Unusual Punishment

Until the last two decades, nothing in the U.S. Constitution was interpreted to preclude inflicting the harshest of punishments upon children who were convicted of serious offenses. Until the early 2000s, our criminal legal system meted out death sentences to children, both those sentenced to be executed by the state and those sentenced to die in prison, often automatically, by serving life without parole. The youngest recorded person to be sentenced to death was George Stinney, Jr., an African American boy sentenced and convicted by an all-white jury at the age of fourteen for allegedly raping and killing two young girls in South Carolina in 1944. He was executed on June 16, 1944 by electrocution. The number of children executed at the hands of the Klan and other white supremacists groups that took the law into their own hands, often with at least willful disregard from the state, may never be fully known.

The concept of condemning a sixteen-year-old child to die in prison for an offense they most likely committed as a product of significant trauma defining their short life should be unconscionable to anyone who grapples with this reality. When a child commits a violent act, or is present for the commission of that act and deemed as culpable, it is our systems of neglect, abuse, and trauma that are to blame. For far too long, we have callously classified these children as permanently irredeemable and avoided reckoning with the cycles of systemic racism, oppression, poverty, and violence that lead to each tragedy that occurs with their offense and incarceration. Among the most devastating impacts from opening the floodgates to mass incarceration are the generations of young African American boys who have been caught in this current and swept into the cages where they remain to this day.

A series of U.S. Supreme Court cases have now recognized the difference between juvenile and adult offenders, including the lack of maturity, an undeveloped sense of responsibility, vulnerability to peer pressure, and the inability to fully understand the consequences of one’s actions. For these reasons, the Supreme Court ruled that the Eighth Amendment precludes execution of a juvenile who was under the age of eighteen at the time of the crime, prevents sentencing a juvenile to life imprisonment without the possibility of parole for non-homicidal crimes, and forbids the imposition of a mandatory sentence of life without parole for juvenile offenders even in homicide cases. Courts recognize that children are constitutionally different from adults in their level of culpability when it comes to sentencing. Further, research confirms that an adolescent’s greater potential for rehabilitation is a result of this continued development and means that “the vast majority of juvenile offenders, even those who commit serious crimes, grow out of antisocial activity as they transition into adulthood.” In a brief supporting the case of Mr. Miller himself, the American Psychological Association argued:

"Because of their developmental immaturity, adolescents are more susceptible than adults to the negative influences of their environment, and their actions are shaped directly by family and peers in ways that adults’ are not. . . . Yet, precisely because of their legal minority, juveniles lack the freedom to remove themselves from those negative external influences."

In 2012, the Supreme Court decided Miller v. Alabama, and held that unless a rare circumstance was present, juvenile life without parole sentences were unconstitutional. Citing Graham v. Florida, Justice Kagan noted that every state “must provide ‘some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.’” In 2016, the Court decided Montgomery v. Louisiana and found that the Miller decision applied retroactively to cases before 2012. These decisions limit the ability of courts to sentence juveniles to life sentences moving forward and also allow individuals who are serving such sentences to have a meaningful opportunity to get back in court, demonstrate rehabilitation, and fight for resentencing and possibly their freedom.

Since this series of rulings, dozens of individuals have had the chance to argue for release and many have been resentenced, while others wait or fight to have their sentences reviewed. Some have won their freedom, including Mr. Joe Ligon, believed to be the oldest and the longest-serving juvenile lifer to date. Mr. Ligon was found guilty in Pennsylvania Court of two counts of first-degree murder and sentenced to life without parole when he was fifteen years old. He was eighty-three years old when he was released in February 2021 after serving sixty-eight years in prison. Mr. Ligon is African American.

The racial disparities for persons serving juvenile lifer sentences are astounding. “Sixty-two percent of people serving JLWOP [(juvenile life sentences without parole)], among those for whom racial data are available, are African American,” though African American youth make up only roughly fifteen percent of the U.S. juvenile population. These statistics are shockingly disproportionate. The race of the victim also factors in and furthers the discriminatory harm inflicted on African American children. While twenty-three percent of juvenile arrests for murder involve an African American suspected of killing a white person, forty-three percent of those convicted are sentenced to JLWOP. Concurrently, “white juvenile offenders with [African American] victims are only about half as likely (3.6%) to receive a JLWOP sentence [compared] to their proportion of arrests for killing [an African American] (6.4%).” Furthermore, most of the children that come into the criminal legal system bring with them a history of trauma and systemic failures. A significant percentage of youth entering the criminal legal system, estimated to be as high as seventy-nine percent in girls and forty-seven percent in boys, have experienced abuse or neglect. Most of these children are held in state facilities. The Federal Bureau of Prisons reports that there are only twelve children under the age of eighteen currently housed in BOP facilities, but the number of individuals who were sentenced as children and have now served decades in prison is greater. According to the Campaign for the Fair Sentencing of Youth, twenty-three federal juvenile lifers have been resentenced with most of them receiving a shorter sentence. This is a move in the right direction and a path for relief for the states to follow.

2. State Law: Retroactive Application Begins to Make A Dent

“Since 2012, thirty-three states and the District of Columbia have changed their [sentencing] laws for people under eighteen convicted of homicide.” Once the Supreme Court laid down the law, national and local advocates across the country drafted legislation, testified before the legislators, and celebrated the passage of new local statutes giving individuals sentenced as children a second chance. Twenty-eight states have banned LWOP for children under eighteen; some states also eliminated LWOP for felony murder or re-wrote penalties that were struck down by the Court in Graham. “In nine additional states, no one is serving life without parole for offenses committed before age [eighteen].” Following the logic of these decisions, many states and the District of Columbia passed local legislation and established a threshold age of eighteen or younger at the time of the offense to petition for release. The District of Columbia and Washington State have increased the age to twenty-five and twenty-one, respectively, based on the understanding of neuroscience and complete brain development. Data from the Campaign for the Fair Sentencing of Youth showed, as of June 2022, that half of the 2,800 people serving juvenile life without parole in the U.S. have been resentenced or had their sentences changed since 2012.

“Starting in 2017, the state of Pennsylvania responded to [the] Supreme Court ruling[s] and released 271 people who were sentenced to life behind bars before they were [eighteen].” At the time, Pennsylvania prisons held the most “juvenile lifers” of any state in the country—over 500 people. In both West Virginia and the District of Columbia, local statutes allow an individual to petition for release after serving fifteen years. Maryland, Nevada, New Jersey, and Virginia allow for the possibility of release after twenty years of imprisonment.

In April 2021 the Maryland General Assembly enacted the Juvenile Restoration Act (“JRA”). It was the twenty-fifth state to enact local compliance legislation. This law prohibits courts from imposing sentences of life without parole on children in Criminal Procedure Article § 6-235, and outlines the court processes for filing motions, getting hearings, and the decision-making factors in Criminal Procedure Article § 8-110. The science of adolescent brain development and the low rate of recidivism for older persons led Maryland to enact the JRA. Many individuals were immediately eligible to pursue meaningful relief after having spent decades behind bars. In Maryland, “people who have served at least [twenty] years of a sentence for a crime committed when they were under the age of [eighteen are allowed] to file a motion asking the circuit court to reduce their sentence.” The JRA instructs the sentencing court to “reduce such a sentence if, after a hearing, it finds that (a) ‘the individual is not a danger to the public’ and (b) ‘the interests of justice will be better served by a reduced sentence.’” This determination is to be based on a weighing of several factors that importantly look beyond the static factors of a person’s offense and include the conditions of their childhood and record of rehabilitation during their incarceration. Other state statutes are similarly drafted to provide for review of factors that led to the Court’s determination that children are constitutionally different for sentencing purposes. Approximately 200 individuals incarcerated in Maryland were immediately eligible for reconsideration when the JRA passed, and this number increases daily as more individuals reach the twenty-year statutory threshold for reconsideration.

The Decarceration Initiative of the Maryland Office of the Public Defender coordinates training and case assignment to law firms, law school clinics, sole practitioners, and others who have agreed to provide pro bono representation to eligible individuals. Social workers, reentry coordinators, and other specialists become a part of the defense team, as the reintegration challenges are multi-layered given the extensive time that these individuals have been incarcerated. Many of the individuals who have re-entered society are residing with family, while others have been afforded transitional housing. Almost all have connected with organizations that provide holistic re-entry services in order to have the necessary support during the reintegration period. As of publication, there have been ninety-six total rulings on JRA petitions from Maryland circuit courts, sixty-two of which were granted in full or in part, and thirty-four of which were denied. In four cases, the sentences were reduced but the individual has more time to serve, and in seven cases the courts denied the motion. In one case the individual was deemed ineligible for filing and in another case “the individual was released on parole after the motion was filed but before the hearing.” This individual was still allowed to benefit from the JRA when the court modified the sentence to place the individual on probation instead of being on parole. In most of the cases I have personally participated in where an individual is granted release pursuant to the JRA in Maryland, individuals are placed on probation instead of being on parole for the remainder of their lifetime.

Such is the case for Mr. B, who was represented by the law school clinic directed by the author of this article. Mr. B was exposed to unspeakable turbulence, trauma, and neglect when he was a young child. His first exposure to domestic violence was when he was nine months old, when his father knocked him off a highchair in the middle of a fight with his mother. His mother was a chronic alcoholic, who subjected him to physical and verbal abuse for the entirety of his childhood. One of his earliest memories was hiding under a table with a broomstick to protect himself from his mother. By the age of nine years old, he was scared enough of his mother that he tried to run away several times. Eventually, the police and social services investigated his home, which led to his placement in foster care due to the hard environment of the home. Unfortunately, foster care offered him no reprieve. Foster care was cruel and harsh, just like home, and within six month he was returned to his mother, who had been required to attend alcoholics anonymous and receive psychiatric counseling. Neither her drinking nor abuse stopped. Mr. B was seventeen years old when he committed a horrible crime and was sentenced as an adult to life in prison when he was just a child. Even at the time of sentencing, the sentencing judge stated that he was still a member of society who had potential, who could be a productive member of society. Mr. B went on to prove his productivity during the thirty-five years that he was in prison. He earned fourth level honor tier status and acted as a mentor for younger prisoners. He obtained his G.E.D., completed college courses, and received recognition as a meritorious scholar upon earning his associate degree. He was a faith leader in the community, and even the warden spoke of his rehabilitation and supported his release. After thirty-five years and two months in prison, he was released in January 2023, with five years of probation and entered transitional housing because his family no longer lives in the state. He has obtained a driver’s license for the first time in his life, has a full-time job which allows him to travel around the state, and he has complied with all the conditions of his release.

While opportunities for juvenile offenders to seek relief are a necessary and long overdue development, this currently leaves behind the even greater number of people who were convicted of serious offenses shortly after turning eighteen. Distinguishing between a young person who committed an offense just shy of their eighteenth birthday and one who committed an offense a few weeks after creates an arbitrary barrier to relief. This barrier disregards the same science about brain development that led to the Supreme Court’s recent cases on juvenile sentencing and enactment of laws such as the JRA. Advocates in Maryland, like many other states, are championing to raise the age of applicability to age twenty-five, when experts agree that the brain fully develops. Neuroscientists agree that the frontal cortex of the brain is not fully developed until closer to age twenty-five or twenty-six, meaning that the lessened ability to understand risks, higher susceptibility to peer-influence, and decreased capacity for decision-making continues into early adulthood. In the District of Columbia, which has followed the science and increased the age of eligibility to twenty-four, many more individuals who would otherwise be ineligible have filed petitions for resentencing, and some have been released.

Efforts to expand reconsideration to provide a second chance for those who committed offenses as emerging adults, now having served decades in prison, are essential to lessen the racially disparate impact of mass incarceration. A 2019 report by the Justice Policy Institute documented how over half of individuals serving the longest prison terms (ten plus years) in Maryland were incarcerated as emerging adults (stage between adolescence and young adulthood)—eighty-two percent of whom are African American. Overall, forty-one percent of the people serving long sentences in Maryland are African American men who were convicted as emerging adults.

B. Challenges in State Law Implementation and A Red Alert in Shifting Tides

Despite the well-documented purpose for enacting the JRA and statutory requirements, Maryland circuit courts have not been consistent in how these hearings are conducted, the issuing of the decisions, and the weighing of the factors in determining eligibility for relief. From my experience working with clients filing JRA motions, courts have been inconsistent in expounding on their reasons for denials. Even if a court acknowledges the individual’s childhood trauma, their rehabilitation and maturity during incarceration, and their status as a model prisoner engaged in educational and vocational programming, judges have still concluded that the person is a danger to the public and denied the motion on those grounds. Here, we examine three Maryland cases in which defendants appealed denials of their motions for relief.

Julian Andrew Johnson is twenty-four years into serving fifty years in prison, consecutively, for four separate offenses committed when he was sixteen years old. None of these offenses resulted in a death—they constituted a variety of robbery, burglary, assault, reckless endangerment, and handgun charges. Shortly after Maryland enacted the JRA in 2021, Mr. Johnson filed a motion seeking to reduce his sentences. However, the circuit court reviewing his motion held that Mr. Johnson was not even eligible for relief under this statute because he did not serve more than twenty years for a single offense. Mr. Johnson had multiple convictions for different cases and the sentences ranged from five to fifteen years in prison. None of the sentences, individually, were for more than twenty years, but they aggregated to a near life sentence combined that would not provide for his release until he reached his seventies. The court adopted a very narrow interpretation of the word “offense” and “sentence” in CPA § 8-110. It interpreted “offense” as meaning a specific violation of a law that would be charged in a single count and “sentence” as meaning the punishment imposed on a single count. Defense argued that the court should read “sentence” as referring to the aggregate sentence imposed for all counts in a case and that ignoring the legislative intent of the JRA would lead to ridiculous results based on the structure of an individual’s sentence.

Mr. Johnson appealed this basis for denying his motion to the Appellate Court of Maryland, which ruled in May 2023 that the district court erred in failing to consider consecutive sentences for the same offense as being over twenty years, but upheld the lower court’s determination that an individual serving multiple sentences for various offenses that combined far exceed the statutory requirement for eligibility cannot seek to reduce those sentences under the Act. The upshot of this ruling is that people who are serving de facto life sentences for less serious offenses are rendered ineligible for relief despite their indisputably diminished culpability. This undermines the purpose of the JRA to provide a second chance for individuals who commit offenses as children and demonstrate their rehabilitation through serving at least twenty years in prison, regardless of their sentence structure.

On December 13, 1989, John Paul Sexton was sentenced to life in prison for an offense committed when he was sixteen. Mr. Sexton had a relatively stable childhood, but shortly after he started working as a teenager, he became influenced by older men at his job and developed an addiction to cocaine. Mr. Sexton resorted to whatever he could to feed his addiction, which tragically resulted in his involvement in a robbery-turned-homicide. After having served over three decades in prison, Mr. Sexton filed a motion seeking a reduction in his sentence under the JRA, citing his exemplary record of rehabilitation including education, joining victims’ awareness efforts, and training service dogs through America’s Vet Dogs. Yet the circuit court reviewing Mr. Sexton’s case denied his motion purely on the basis that he was also eligible for parole. The circuit court held that Mr. Sexton’s sentence was not inappropriate and that whether he had exhibited behavior that entitled him to a release is a parole board decision and not the court’s decision to make. The court concluded that because his sentence was parole eligible, the parole board should be the deciding authority. Defense argued that the court applied the wrong legal standard in denying the motion and that the intent of the legislature in passing CPA 8-110 was to give rehabilitation to non-dangerous individuals, who had served at least twenty years in prison for a crime committed when they were children, an opportunity for relief by the courts.

Like many state paroling authorities, the Maryland Parole Commission is an ineffective system and the process for being granted parole is replete with roadblocks, which result in standard and repeated denials. Persons serving life sentences have historically been denied parole after numerous hearings by the Maryland Parole Commission and by the Governor. For decades, and across administrations, Maryland governors had a consistent policy to deny parole to anyone serving a life sentence. Finally, in 2021, the Maryland General Assembly removed the Governor, and the political influences that come with their review, from the decision-making process for lifers.

Maryland’s courts have made it clear that a judge cannot shift their responsibility to decide an issue to another entity, even where the entity may have specialized knowledge or experience in the field. In Whittlesey v. State, the court held that a judge may not delegate the decision of whether a defendant should be shackled during a proceeding before a jury to courtroom security personnel. In Miller v. Bosley, the court held that a judge cannot abdicate his or her responsibility to review an order to ensure that a sufficient basis for the recommended order exists. In Dingle v. State, the court held that two-part voir dire questions were improper because they “usurped” the trial judge’s responsibility to determine the fitness of the individual potential juror.

The Appellate Court of Maryland recently reversed the lower court’s decision in Mr. Sexton’s case. Not only did it hold that the circuit court erred by deferring to the parole board when it had no discretion to do so, but it also emphasized how this failure to give effect to the JRA undermined the legislature’s intent, and as a result, the will of the people in Maryland that speak through its actions:

"The plain language of CP § 8-110 makes clear that the General Assembly authorized and, indeed, required the circuit court to consider the factors listed in subsection (d) to determine whether to grant or deny a motion to reduce the sentence and to issue its decision in writing. There is no mention of parole in CP § 8-110, nor anything to suggest that the Parole Commission’s authority takes precedence over the circuit court’s authority. There is also no provision in CP § 8-110 that permits the circuit court simply to defer to the Parole Commission or to pass to that body the question of whether an inmate is entitled to a reduction of sentence under JUVRA. “[A] trial judge who encounters a matter that falls within the realm of judicial discretion must exercise [that judge’s] discretion in ruling on the matter,” and “[t]hat exercise of discretion must be clear from the record.” Gunning v. State, 347 Md. 332, 351 (1997) (citations and emphasis omitted)."

In Derrick Adams v. Maryland, the circuit court, being heavily influenced by the nature of the crime, denied Adams’s JRA motion. The court found that the nature of the crime was “shockingly violent,” horrific, and that it was a crime of opportunity. This decision seems to go against the intent of the legislation in providing a meaningful opportunity to demonstrate maturity and rehabilitation, regardless of the offense, if the individual was sentenced when they were a child and has been in prison for more than twenty years. Mr. Adams plead guilty to a first-degree sexual offense charge when he was seventeen years old, in 1993. The defense argued that the Appellate Court of Maryland should be guided by the factors set forth in Davis v. State and must consider all of the statutory factors and not give greater weight to any one particular factor. The Davis case examined the factors the court must consider when transferring the case of a child charged as an adult to juvenile court, and the court provided guidance for circuit courts to consider such factors so they remain faithful to the intent of the General Assembly. The court explained that circuit courts should consider the factors and that they are not “in competition with each other.” Instead, they are “necessarily interrelated and, analytically, they all converge on amenability to treatment.” It was clearly the legislative intent to give children a second chance if they have demonstrated maturity and rehabilitation.

These cases and those from other jurisdictions evidence the courts moving towards stricter interpretation of the statute and closer scrutiny when making decisions regarding resentencing. Despite growing guidance from the Appellate Court of Maryland about the JRA’s purpose, Maryland circuit courts continue to deny JRA petitions, despite having all or most of the listed statutory factors weigh in favor of the petitioner cases in high proportions. And federal constitutional rights may not provide a backstop for this regression. The Supreme Court’s new conservative super-majority reversed course in April 2021, ruling by a 6-3 vote that a judge need not make a finding of “permanent incorrigibility” before sentencing a juvenile offender to life without parole. In Jones v. Mississippi, the high court deviated from rules establishing more leniency for juvenile offenders, even those convicted of murder. Brett Jones was fifteen years old when he stabbed his grandfather to death during a fight. He was convicted of murder and a Mississippi judge sentenced him to life without parole in 2004. Jones was twentytwo years old when he petitioned for resentencing. He had already served seven yearsin prison. During this time in prison, he had earned his GED and a record as a model prisoner. His attorneys argued at his resentencing hearing that he had been rehabilitated, but the judge again sentenced him to life without parole even though he did not make a finding that Jones was so incorrigible that he had no hope of rehabilitation. Jones’s lawyer appealed to the Supreme Court, arguing that Jones should have a chance because he has shown that he is capable of rehabilitation. Justice Brett Kavanaugh, writing for the majority said: “[a]s this case again demonstrates, any homicide, and particularly a homicide committed by an individual under 18, is a horrific tragedy for all involved and for all affected.” Yet, the majority still put a dent in the advancements made with Miller and Montgomery, as Donald Ayer, a former prosecutor and deputy attorney general in Republican administrations stated, “[i]t’s like the wind was blowing one way and now it’s blowing in the opposite direction.” Ironically, Ayer joined other former prosecutors and judges, including two former Republican U.S. Attorneys General, and filed a brief in support of Jones. In her dissent, Justice Sonia Sotomayor wrote that the Court’s decision in Jones was “an abrupt break from precedent” and “distorts Miller and Montgomery beyond recognition.” We can only hope that this is not a sign of a changing tide.

V. PAROLE: A PROCESS PLAGUED BY OPACITY, IMPLICIT BIAS, AND LITTLE DUE PROCESS

A. Broken Parole Systems Contribute to Hopelessness

There is no constitutional right to parole, but it is often the one way out for many who have been sentenced to lengthy incarceration periods. While parole is not constitutionally guaranteed, it is a critical part of a person’s rehabilitation and the corrections management process used to help ease prison overcrowding. However, the policies and practices of many administrative paroling authorities result in parole becoming as unobtainable as winning a million-dollar lottery. These policies, often inconsistent and opaque, frequently result in unfair decisions and practices. Paroling authorities determine who gets released on parole, the conditions of parole supervision, and whether a person should be returned to prison for an alleged violation of their parole conditions.

Parole originates from the French word paraula. It means speech, spoken word or promise. When someone leaves prison before the expiration of their sentence, they give their “word” or promise that they will abide by conditions of parole. The basic theory of parole is that release should be granted as a kind of reward for good conduct in the institution, usually when a person has completed the minimum sentence, minus any good time credits earned, and when the board is convinced of reformation of the individual’s soul. Some of the factors that paroling authorities examine when making determinations about who should be granted parole include the nature of the offense, educational and vocational programming, institutional behavior, risk assessment scoring, statements from the victim or victim representative, and expressions of remorse from the individual. Medical and mental health evaluations are also reviewed during the decision-making process. Experienced professionals using risk assessment software often demonstrate inherent biases when diagnosing African American individuals who are up for parole consideration. They are often viewed as more threatening and often receive higher scores during evaluations for risk assessments. Unlike judicial tribunals, parole boards are governed by minimal procedural safeguards in comparison to other critical steps in the criminal legal process. Parole board members must practice fairness and impartiality in making such decisions, but the impact of implicit and express biases combined with the lack of safeguards in these systems often undermine this aspiration.

Given the disproportionate number of African Americans and Latinos affected by the criminal legal system, the decision-making process of parole highlights disparate treatment of these groups. Research examining the parole process has primarily focused on release decisions and examined the effect of race and ethnicity on how long offenders have to wait for parole. Such research has found that African Americans served significantly longer periods of time awaiting parole in comparison to White offenders. It is worth noting that “nearly half (48.3%) of people serving life sentences with the possibility of parole are [African American] . . . .” When a person is released from incarceration on parole, the duration of their supervision is typically what would have been their full sentence. Therefore, someone who is sentenced to life continues to remain on strict state supervision for the rest of their life, even if released from prison, unless they are resentenced. Excessive supervision subjects individuals to even more restrictive, often unnecessary challenges that outlive any useful purpose.

1. Federal Law: The Abolition of Federal Parole

Federal parole was initially established through legislation in the U.S. in June 1910. In Washington, D.C., a single Board of Parole was created legislatively in 1930, which consisted of three members serving full time. These three members were appointed by the office of the Attorney General. The Board was expanded in 1950, to members appointed by the President with the advice and consent of the Senate for six-year staggered terms. In October 1972, the Board began a pilot reorganization which established five regions of the country. In 1976, the Parole Commission and Reorganization Act “re-titled the Board of Parole as the United States Parole Commission and established it as an independent agency within the Department of Justice.” The U.S. Parole Commission is the paroling authority for persons convicted of federal offenses and still operates even though parole was abolished in 1984 in the federal system under the Comprehensive Crime Control Act. This legislation also originally scheduled the Parole Commission for abolition. Parole was abolished in the federal system in an attempt to increase consistency in federal sentencing and because of concerns of unpredictable sentencing outcomes. Since parole was abolished, the U.S. Parole Commission has been reauthorized numerous times by Congress.

The U.S. Parole Commission currently has jurisdiction over D.C. Code offenders, military prisoners, old law federal prisoners who were sentenced before parole was abolished, and treaty transfer prisoners. Since the National Capital Area Revitalization Act was signed into law by President Bill Clinton in 1997, the number of cases over which the Parole Commission has authority has been shrinking, except for D.C. Code offenders.

2. State Law: Exponential Barriers to Seeking Release and Arbitrary Denials

Most states have a statutorily established state-wide paroling authority. One exception is that persons who are sentenced in the District of Columbia are under the authority of the U.S. Parole Commission, along with federal offenders. State paroling authorities and the U.S. Parole Commission take several factors into consideration when determining whether to grant a person parole release. Some of these factors include the original offense, institutional behavior, statements from the victim, participation in rehabilitative programs, and release planning. Many states also use a risk assessment instrument to rate each individual to determine whether they pose a low or high risk of recidivism if released. While risk assessments are not mandated by law, many jurisdictions apply such risk assessments for individuals serving life sentences. Maryland is one such state. In 2021, seventy-one percent of the parole denials in Maryland were African American petitioners and twenty-four percent were white. Parole release decisions should not be based solely on static factors when determining an individual’s future risk to the community, but based on dynamic criteria, which more accurately predict possibility for change.

The parole process should not be confusing and opaque. Yet, there is considerable inconsistency in the operation, eligibility criteria, administration, and organization of paroling authorities across the country. Some states have autonomous panels with administrative support from a department of corrections or a community corrections agency. In some states, they “may be a part of the executive branch of state government.” Decision-makers have access to a wide array of information, some of which is not privy to the individual facing parole consideration. Some states outright exclude certain offenses from parole eligibility, which contradicts the basic intent of parole. As long ago as 1910, “Professor Mittermaier suggested that parole should be an integral part of [any person’s] sentence” and should not be reserved for “exceptional cases.” He put forth that “the period of parole should not be made equal only to the remainder of the sentence but should last until reformation is assured.” Most states look to good institutional behavior as a significant factor when making parole release decisions. Needless to say, parole decisions are highly subjective and often tempered by social and political trends.

“Sixteen states have abolished or severely curtailed discretionary parole,” and have transitioned to determinate parole sentencing schemes. In these states parole is not guaranteed but left up to the subjectivity of various state decision makers. Other states have adopted a system of presumptive parole, where release on parole is guaranteed once certain conditions are met. In a report grading the parole systems in all fifty states, only one state received a B- rating (Wyoming), five states received C’s (Hawaii, Michigan, Mississippi, New Jersey and Utah) and eight states received D’s (Maryland, Montana, Nevada, New Hampshire, New York, South Dakota, Vermont and West Virginia). The rest of the states failed with an F or F-. These grades were based on assessments of the fairness and equity of each state’s parole system, including:

• Whether the state’s legislature allows the parole board to offer discretionary parole to most people sentenced today;

• The opportunity for the person seeking parole to meet face-to-face with the board members and other factors about witnesses and testimony;

• The principles by which the parole board makes its decisions;

• The degree to which the staff help every incarcerated person prepare for their parole hearing; and

• The degree to which the parole board is transparent in the way it incorporates evidence-based tools.

Common challenges individuals impacted by parole board actions face are the lack of transparency in understanding the parole process, the subjective nature of the decision-making process, and the frequent denials without explanation. Sometimes hearings are open to the public, such as in Washington, Oregon, Florida, and Alabama. In other states, including New Mexico, New Jersey, Pennsylvania, and Wisconsin, they are closed. When the public is closed out of administrative and judicial hearing processes, transparency and accountability are often lacking. In Maryland, if a victim appears to testify at a parole hearing for a lifer, then the parole hearing is open; however, if the victim chooses not to appear or cannot be located, the hearing is a closed hearing. Additionally, a person may have counsel representation for a parole hearing; however, counsel is not permitted to be present at the actual hearing if the hearing is closed. The only opportunity for the representative to advocate for their client is during a thirty-minute meeting with a commissioner in advance of the hearing that their client will have at a later date. If the hearing is open, the attorney is allowed to attend, but is not allowed to speak on behalf of their client.

Even those who are ultimately granted parole seem to never escape the intensive surveillance and government intrusion into their lives as they reenter society and navigate compliance with parole conditions. “An estimated one in sixty-six [(862,100)] adult U.S. residents were under community supervision at the end of 2020[,]” an increase of 1.3 percent from January 1 of that year. “While parole is an important mechanism for reducing the overall prison population,” and rewarding individuals who have earned the opportunity for release, the process remains opaque. The population returning home is disproportionately composed of African Americans, who often come from, and must return to, some of America’s poorest, most under-resourced, and most racially segregated urban neighborhoods. For many people of color, this conditional liberation can be overwhelming and challenging. Upon release, returning citizens have to navigate myriad obstacles including long waiting lines to obtain social services or exclusion from government programs due to their conviction, interruptions with obtaining and maintaining employment, family reunification challenges, learning new technology, and finding stable housing. Having to balance these challenges with routine visits with supervision officers and compliance with strict terms of supervision compounds roadblocks to re-entry. This runaround exacerbates the stress of poverty, breeds distrust of state authorities, and fosters hopelessness, which in some cases precipitates recidivism. Failure to follow the strictest requirements could land a person back in prison. Technically, those who have been released on parole are still prisoners because they are still serving a sentence and, even outside of prison walls, live every day with the overwhelming threat that the most minor slip-up could land them back in a cell.

The Supreme Court outlined due process requirements for revoking parole in Morrisey v. Brewer, recognizing the individual liberties at stake with the risk of sending someone back to prison arbitrarily. However, far too often revocation sends individuals back to prison indiscriminately. Fourteen percent (more than 80,000) of all state prison admissions are for technical parole violations – these individuals did not commit any new offenses. For example, individuals are returned to prison for failure to pay monthly supervision fees, a condition for which compliance is made exponentially more difficult with the numerous barriers to jobs for returning citizens. At no time should a non-criminal violation subject someone on parole to reincarceration, and no one should bear the cost of their supervision. This contradicts the basic theory of parole, and this author proposes that procedural safeguards, including the right to counsel, should be mandatory during the revocation hearing process.

This back end sentencing and returning people to jail for minor administrative violations contributes to mass incarceration. While most people believe much of the rise of mass incarceration comes from traditional criminal proceedings, the reality is that a significant portion of the current prison population is incarcerated due to technical parole violations. Individuals are also kept on supervision way beyond it serving any redeemable purpose. Extensive supervision periods serve no purpose and often frustrate individuals’ ability to start their lives anew.

Just as the front-end gates to mass incarceration have inflicted generational harm on African Americans, this back-door re-incarceration process furthers racial injustice. Data from the National Corrections Reporting Program has shown that “[African American] parolees were significantly more likely to receive a revocation for a new offense, as well as, a technical offense, compared to successfully completing parole supervision.” The guidelines and actuarial devices used to measure “dangerousness” typically do not favor people of color. Remedying the decades of the racially disparate harm of mass incarceration requires both preventing African Americans from being swept into the prison system at such astonishingly high rates and ensuring that relief mechanisms such as parole do not leave behind those who have experienced the greatest harm.

B. Judicial Recognition But Failure to Protect Individuals’ Liberty Interests

In Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, the Supreme Court, for the first time, examined whether individuals have due process rights in parole proceedings. The general belief was that individuals had no constitutionally protected interest in parole since it was a grace extended by the states. Practices and procedures that are not mandated in statutes or regulations do not create liberty interests when it comes to parole. But, the Nebraska statute at issue in Greenholtz was mandatory and indicated that a person shall be granted parole unless one of four designated reasons for not doing so existed. The Court found that a liberty interest did not arise from the Nebraska statute, despite any expectation of release by incarcerated individuals. However, the Court emphasized that, in other cases, the unique structure and language of state statutes must be reviewed to determine if they create a liberty interest in being paroled.

Courts have found mandatory language in other statutes. The Ninth Circuit Court of Appeals held that a Guam statute, providing that a prisoner could be released on parole after serving two-thirds of his sentence, created a constitutionally protected liberty interest based on the “shall” language of the statute. In Williams v. Missouri Board of Probation and Parole, the Eighth Circuit Court of Appeals found that the “when” and “shall” language in Missouri’s statute gave the same entitlement as Nebraska’s “shall” and “unless” language. Furthermore, in Waston v. DiSabato, the District Court of New Jersey found that New Jersey’s “shall…unless” language created a liberty interest in release. Finally, in Bohannan v. Texas Board of Criminal Justice, the Texas Court of Appeals held that the mandatory language in the statute (that a prisoner shall be released unless certain factors are found) created a presumption, and thus a constitutionally protected expectation, of release. Many state statutes now contain a combination of mandatory and discretionary language. Building on Morrissey’s recognition of a liberty interest related to parole revocation, the Court in Greenholtz expanded the possibility of constitutionally protected liberty interests in the conditional context. In parole revocation proceedings, persons have already been released from custody and have an interest in maintaining their liberty, whereas a person who is seeking parole grant is already in custody and is merely seeking early release through an act of kindness from the board.

As explained above, statutes in some states have been held to create a liberty interest. However, in other states there is no liberty interest in obtaining parole. Federally, a person in custody who is still eligible for parole and has substantially observed institutional rules must be released unless the Parole Commission determines that one or more reasons for denial are present. Even if the state statute creates certain procedural protections, they are usually very limited. The courts have held that parole conditions do not violate the Constitution unless they significantly infringe on substantial constitutional rights. In some states, a formal hearing is not required. Additionally, it is not unconstitutional for states to arbitrarily permit parole for some but deny parole for others. States may also impose special requirements on particular offenses or types of offenders as long as the requirements have a rational basis.

Most state statutes outline parole procedures, including hearing notification to the individual, notice to the public or to victims (or victim representatives), in person appearance, the presentation of evidence, and access to file and disclosure of other information. There are also no, or very little, restrictions on what a board may consider when making the parole release decision. They can even consider allegations for which the individual was not convicted. Parole boards often base a denial on the seriousness of the individual’s original offense, a factor that will not change despite decades of rehabilitation and exemplary records while incarcerated, and courts have found such a basis to be permissible. Denial of parole based on the seriousness of the offense alone does not constitute double jeopardy, even though this practice is logically indistinguishable from an original trial and sentencing. In Averhart v. Tutsie, an individual was denied parole five times based on the seriousness of his offense. The only limitation parole boards face is that they may not overtly base a denial on unconstitutional considerations such as race or whether the individual has asserted their constitutional rights.

Boards may face Equal Protection challenges if decisions are deemed to be discriminatory and have no rational basis. They also may not base denials on erroneous or inaccurate information. However, since there is no right to review one’s file before or during a parole hearing, it can be difficult for the person to actually know the information upon which the board is basing its decision. Parole Boards can also change their policies on how much time a person must serve before becoming parole eligible. Courts have held that such changes may violate ex post facto laws if such changes are applied retroactively to offenses committed before the law was changed, reduce the frequency of parole consideration, and are not merely procedural changes.

Except in the parole revocation or prison disciplinary context, where there is a clear liberty interest, most courts have held that there is no right to counsel in parole hearings. Some states do not permit lawyers at parole hearings at all. Many state statutes follow the federal statute, which allows for representation of the individual’s choosing. This could be a fellow detainee or a licensed attorney. But even in states that do allow counsel, the right to counsel is not guaranteed. Given the educational challenges many prisoners face before and during incarceration, some may not be able to sufficiently navigate the steps of the parole process independently. Questions of who would bear the expense of such representation and whether the presence of an attorney would alter the dynamics of the hearing itself, making it more adversarial, are some of the issues raised during the discussion of whether attorneys should be integrated into the parole grant process. The benefits of securing attorney representation should not be left only to those who can afford to pay for such an asset. The role of an attorney may often make the difference in whether a person secures their freedom or not. Every person deserves a fair chance regardless of their ability to pay.

VI. CONCLUSION: AN URGENT CALL TO REDIRECT THE SHIFTING TIDES TOWARDS DECARCERATION

After the civil war, the color of prisons in America has changed from white to Black. African Americans continue to be disproportionately overrepresented in our criminal legal system and the speed with which individuals are released is deliberate and measured. The ripple effects of this nation’s pseudo wars and initiatives, including the 1968 Omnibus Crime Control and Safe Streets Act, the war on drugs, the 1994 Crime Bill and mandatory sentencing schemes have served only to flood our prisons with people of color. Righting these wrongs through the mechanisms currently available are mere drops in the bottomless bucket, but impactful, nonetheless.

Our criminal legal system must make meaningful all avenues of relief to every deserving individual and correct centuries of race-based disproportionate harm. Compassionate release must be afforded to elderly and dying incarcerated individuals and not thwarted by confusing and convoluted statutes that make them ineffective. Politics must not be allowed to sidetrack opportunities for meaningful clemency releases based on notoriety or celebrity status. Not only must we abandon the tradition of sentencing children to die in prison, but we must also allow every person sentenced as a child to get back in court to demonstrate maturity, transformation, and rehabilitation. Parole considerations must incorporate greater due process and less bias in decision-making. Practices must change and all newly enacted criminal justice policies must be accompanied by a racial impact analysis. These are critical steps to redirect the tide of mass incarceration and speed up the painfully slow drip of decarceration. The speed with which we liberate eligible people from prison cells must be greater than, or at least equivalent to, the flood that sent them there in the first place.

Summary

This article discusses the need for decarceration in the United States, focusing on the disproportionate impact of mass incarceration on African Americans. It explores various avenues for relief, such as compassionate release, clemency, juvenile lifer sentence reductions, and parole, highlighting their limitations and proposing solutions.

I. INTRODUCTION: FLOODING OUR PRISONS THEN DAMMING THE PATH TO RELEASE

African Americans are disproportionately incarcerated in the United States, despite comprising a smaller fraction of the general population. This disparity is a reflection of systemic racism that has permeated every facet of American life. The "prison boom" of the late 20th century, fueled by "law and order" rhetoric and "tough on crime" policies, resulted in the incarceration of thousands of people of color from disadvantaged communities. This has been termed "the New Jim Crow," reminiscent of the Jim Crow era, as it continues to perpetuate racial inequality through criminal legal system practices. The overreliance on incarceration for achieving public safety has proven to be a mere ruse, failing to address the root causes of crime and disproportionately impacting communities of color.

II. COMPASSIONATE RELEASE: AN ILLUSORY PLEA FOR MERCY FOR THE SICK AND DYING

Compassionate release mechanisms, designed to provide release for aging or terminally ill prisoners, are often ineffective and inaccessible. Despite the growing aging prison population and the increasing cost of incarcerating older prisoners, compassionate release remains a rare occurrence. The federal compassionate release process, originally limited to the Bureau of Prisons (BOP), was slow and inefficient, often resulting in death before release. The First Step Act of 2018 expanded access to compassionate release by allowing prisoners to file petitions directly in court. However, judges continue to deny a majority of compassionate release requests, often citing failure to exhaust administrative remedies or a perceived risk to public safety. While the COVID-19 pandemic led to a surge in compassionate release petitions, the process remains slow and often ineffective.

State-level compassionate release statutes are similarly plagued by inefficiencies and arbitrary denials. While many states have medical parole and geriatric parole provisions, they are often narrowly defined, inconsistently implemented, and riddled with procedural hurdles. Furthermore, states often exclude certain offenses from compassionate release eligibility, based on public perception or political whim, perpetuating disparities in access to justice. The consequences of these shortcomings are devastating, as many individuals die in prison while awaiting release or experience prolonged suffering due to delayed medical care.

III. CLEMENCY: A DISCRETIONARY MEANS EXPLOITED FOR POLITICAL GAINS

Clemency, a discretionary power vested in elected officials to grant relief from punishment, has been utilized with inconsistency and often for political gains. While presidents have the authority to grant clemency for federal offenses, this power has been exercised sparingly in recent decades, with a preference for pardoning celebrities or those with political connections. This underscores the need for reform to ensure a fairer and more equitable clemency process.

State clemency processes also vary significantly, with some states relying solely on the governor's discretion while others utilize clemency boards to provide recommendations. However, even with these variations, the granting of clemency has become increasingly rare, leaving many individuals without a viable pathway to relief. This decline in clemency grants is a reflection of a broader shift toward harsher sentencing practices and a reluctance to acknowledge the possibility of rehabilitation for individuals convicted of serious offenses.

IV. JUVENILE LIFER: THE SLOW UNDOING OF CHILDREN’S CONDEMNATION

The U.S. Supreme Court's landmark rulings in Miller v. Alabama and Montgomery v. Louisiana have recognized the constitutional difference between adult and juvenile offenders and prohibited mandatory life without parole sentences for those under eighteen at the time of the offense. This has led to a gradual shift in sentencing practices and a growing recognition of the need for rehabilitation for juvenile offenders. However, significant disparities remain, with African American youth disproportionately affected by these sentences.

While many states have responded to the Supreme Court's rulings by enacting legislation that provides opportunities for resentencing, the implementation of these laws has been inconsistent, and courts often continue to deny relief, emphasizing the nature of the crime and the perceived risk to public safety. Additionally, the Supreme Court's recent decision in Jones v. Mississippi further erodes the progress made in recognizing the unique vulnerabilities of juvenile offenders, highlighting a potential shift back toward harsher sentencing practices for young offenders.

V. PAROLE: A PROCESS PLAGUED BY OPACITY, IMPLICIT BIAS, AND LITTLE DUE PROCESS

Parole, intended to provide a pathway to reintegration for individuals who have served a portion of their sentence, is plagued by opaqueness, implicit biases, and a lack of due process. The discretionary nature of parole decisions, combined with the often arbitrary criteria used by parole boards, perpetuates inequalities and undermines the principle of rehabilitation.

While federal parole was abolished in 1984, state parole systems continue to present significant challenges for individuals seeking release. These challenges include a lack of transparency in the decision-making process, subjective criteria, arbitrary denials, and the overuse of risk assessment tools that often perpetuate implicit biases. Furthermore, the lengthy periods of parole supervision and the harsh consequences of technical violations contribute to recidivism and perpetuate the cycle of mass incarceration.

VI. CONCLUSION: AN URGENT CALL TO REDIRECT THE SHIFTING TIDES TOWARDS DECARCERATION

The article concludes with an urgent call for a systemic shift toward decarceration. It emphasizes the need for meaningful reform of existing relief mechanisms, such as compassionate release, clemency, juvenile lifer sentence reductions, and parole, to ensure equity and effectiveness. It also underscores the need for greater transparency, accountability, and due process in these systems to address the disproportionate impact of mass incarceration on African Americans.

The article calls for a comprehensive approach to decarceration that includes preventing the unnecessary incarceration of individuals, particularly those from disadvantaged communities, and providing meaningful pathways to reintegration for those who have been incarcerated. It urges a commitment to racial justice and a recognition of the human capacity for change to ensure a more equitable and just criminal legal system.

Summary

The United States has a long history of mass incarceration, with African Americans being disproportionately represented in the prison population. This article examines the various mechanisms available for seeking release from prison, including compassionate release, clemency, juvenile life without parole sentences, and parole.

I. INTRODUCTION: FLOODING OUR PRISONS THEN DAMMING THE PATH TO RELEASE

The United States has an unprecedented rate of incarceration, with African Americans being incarcerated at nearly five times the rate of white Americans. This disparity is a result of a variety of factors, including the "war on drugs," mandatory minimum sentencing laws, and implicit biases in the criminal justice system.

II. COMPASSIONATE RELEASE: AN ILLUSORY PLEA FOR MERCY FOR THE SICK AND DYING

Compassionate release is a mechanism for allowing aging or terminally ill people in prison to have an opportunity for release. However, obtaining compassionate release is often difficult, with many petitions being denied.

A. The Purpose of Compassionate Release and Tools to Seek It

Compassionate release was originally introduced by the Sentencing Reform Act of 1984. The U.S. Sentencing Commission has established guidelines to determine when compassionate release is warranted.

1. Federal Law: Decades of Inaction, A Glimmer of Hope, And A Deadly Pandemic

Federal law permits sentence reductions for certain categories of prisoners under 18 U.S.C. § 3582 (c)(1)(A), as amended by the First Step Act of 2018. However, securing a compassionate release grant is still difficult for many incarcerated people.

2. State Law: Inefficiencies And Devastating Consequences

Most states have compassionate release statutes, but they often have strict eligibility requirements and grant release sparingly. The lack of reporting requirements makes it difficult to assess the effectiveness of these statutes.

III. CLEMENCY: A DISCRETIONARY MEANS EXPLOITED FOR POLITICAL GAINS

Clemency is a mechanism for granting relief from a court-ordered sentence or punishment. It is a discretionary tool that lies in the hands of elected officials.

A. Statutory Vesting of Discretion in Political Decision-Makers

The President has the authority to grant clemency for federal offenses, while governors have the authority to grant clemency for state offenses.

1. Federal Law: A Longstanding Mechanism With a Checkered Past

The President's clemency power is "plenary," meaning it is extremely broad and not subject to congressional modification. However, the clemency process is often criticized for being opaque and politically motivated.

2. State Law: Models for Reform and Divestment of Executive Authority

Many states have Boards of Pardons that examine clemency petitions and submit recommendations to the governor. However, in many states, the granting of clemency has nearly come to a standstill.

IV. JUVENILE LIFER: THE SLOW UNDOING OF CHILDREN’S CONDEMNATION

The Supreme Court has recognized that juvenile offenders are different from adult offenders and that the Eighth Amendment prohibits certain sentences for juveniles.

A. The Supreme Court Speaks and the States Listen

1. Federal Law: A Long Overdue Yet Imperfect Protection for Children Against Cruel and Unusual Punishment

A series of Supreme Court cases have limited the ability of courts to sentence juveniles to life without parole. These decisions allow individuals serving such sentences to have a meaningful opportunity to seek resentencing and possibly their freedom.

2. State Law: Retroactive Application Begins to Make A Dent

Following the Supreme Court's rulings, many states have passed local legislation to give individuals sentenced as children a second chance.

V. PAROLE: A PROCESS PLAGUED BY OPACITY, IMPLICIT BIAS, AND LITTLE DUE PROCESS

Parole is a critical part of the corrections management process, but it is often plagued by opacity, implicit bias, and little due process.

A. Broken Parole Systems Contribute to Hopelessness

Parole boards determine who gets released on parole, the conditions of parole supervision, and whether a person should be returned to prison for an alleged violation of their parole conditions.

1. Federal Law: The Abolition of Federal Parole

Federal parole was abolished in 1984 under the Comprehensive Crime Control Act.

2. State Law: Exponential Barriers to Seeking Release and Arbitrary Denials

Most states have a state-wide paroling authority. The parole process is often criticized for its subjectivity and lack of transparency.

VI. CONCLUSION: AN URGENT CALL TO REDIRECT THE SHIFTING TIDES TOWARDS DECARCERATION

The United States needs to take meaningful steps to address the problem of mass incarceration and reduce the racially disparate harm inflicted by the criminal justice system. This includes making compassionate release more accessible, reforming the clemency process, providing greater opportunities for juvenile lifers, and ensuring that parole is fair and equitable.

Summary

The United States has a long history of racial disparities in its criminal justice system, particularly in terms of incarceration rates. African Americans, despite making up a small percentage of the population, are consistently overrepresented in prisons and jails. This disparity is largely due to the "war on drugs" and other "tough on crime" policies, which have disproportionately impacted people of color.

I. INTRODUCTION: FLOODING OUR PRISONS THEN DAMMING THE PATH TO RELEASE

This high incarceration rate has been called “the New Jim Crow,” reflecting the way that mass incarceration has come to replace Jim Crow laws as a system of racial oppression. Despite the significant number of people in prison, releasing them has been much slower than the rate of incarceration. This article examines various mechanisms for seeking release, including compassionate release, clemency, juvenile life without parole, and parole, and argues that these mechanisms are often ineffective and racially biased.

II. COMPASSIONATE RELEASE: AN ILLUSORY PLEA FOR MERCY FOR THE SICK AND DYING

Compassionate release is a mechanism designed to allow terminally ill or aging prisoners to be released from prison. While federal law allows for compassionate release, the process is often slow and bureaucratic, leading to many prisoners dying in prison while awaiting release. The First Step Act, which was passed in 2018, aimed to expand access to compassionate release, but its impact has been limited. State laws also often have strict eligibility requirements and grant compassionate release sparingly. As a result, many individuals with severe medical conditions are denied compassionate release and are forced to die in prison.

III. CLEMENCY: A DISCRETIONARY MEANS EXPLOITED FOR POLITICAL GAINS

Clemency is a powerful tool for addressing unfair or excessive sentencing practices, but it is often used for political gain rather than for justice. Presidents and governors have broad discretion to grant clemency, but in recent decades, the number of clemency grants has decreased significantly. While some states have implemented clemency boards to review clemency petitions and advise elected officials, the process is still opaque and susceptible to political influence.

IV. JUVENILE LIFER: THE SLOW UNDOING OF CHILDREN’S CONDEMNATION

In recent years, the Supreme Court has recognized that children are constitutionally different from adults and cannot be sentenced to life without parole for crimes committed before the age of eighteen. While many states have changed their laws to comply with these rulings, the process of resentencing juvenile lifers is slow and often fraught with challenges. The racial disparities in juvenile life sentences are staggering, with African Americans being disproportionately represented.

V. PAROLE: A PROCESS PLAGUED BY OPACITY, IMPLICIT BIAS, AND LITTLE DUE PROCESS

Parole is a mechanism for reducing the overall prison population, but the process is often opaque, biased, and inefficient. While some states have adopted more transparent parole systems, many have not. Individuals on parole are subject to strict supervision and can be returned to prison for technical violations. This process disproportionately impacts African Americans and contributes to mass incarceration.

VI. CONCLUSION: AN URGENT CALL TO REDIRECT THE SHIFTING TIDES TOWARDS DECARCERATION

Addressing the racial disparities in the criminal justice system requires more than just reducing the overall prison population. It requires ensuring that all avenues for release are made meaningful for all individuals, and that they are not hampered by bureaucratic processes and implicit biases. The authors call for an urgent shift towards decarceration, with a focus on providing compassionate release for the sick and elderly, granting clemency based on justice and not politics, ensuring that juvenile lifers have meaningful opportunities for release, and making the parole system more equitable and transparent.

Summary

This article discusses the various ways that African Americans are disproportionately incarcerated in the United States and the obstacles to getting released from prison.

I. INTRODUCTION: FLOODING OUR PRISONS THEN DAMMING THE PATH TO RELEASE

Black people are locked up in jail and prison at much higher rates than white people, even though they make up a much smaller percentage of the population. This is because of racism in the legal system. In some states, almost half of the people in prison are Black.

II. COMPASSIONATE RELEASE: AN ILLUSORY PLEA FOR MERCY FOR THE SICK AND DYING

The government has programs that allow sick or old people in prison to get released, but these programs are not used very often and they can be hard to use. One program, called compassionate release, is meant to help people who are too sick to stay in prison. But people often die in prison while they wait for their requests to be approved.

III. CLEMENCY: A DISCRETIONARY MEANS EXPLOITED FOR POLITICAL GAINS

Another way to get released from prison is through clemency, which is when the president or a governor forgives a crime. The president has a lot of power to decide who gets clemency. But often the president only gives clemency to people who are famous or powerful.

IV. JUVENILE LIFER: THE SLOW UNDOING OF CHILDREN’S CONDEMNATION

The Supreme Court has made some changes in the law so that children who commit crimes cannot be sentenced to life in prison without a chance to get out. But many states are still slow to change their laws, and many children are still in prison for crimes they committed when they were young.

V. PAROLE: A PROCESS PLAGUED BY OPACITY, IMPLICIT BIAS, AND LITTLE DUE PROCESS

Parole is another way that people can get released from prison. But many state parole boards make decisions that are not fair, and Black people are often denied parole more often than white people.

VI. CONCLUSION: AN URGENT CALL TO REDIRECT THE SHIFTING TIDES TOWARDS DECARCERATION

To fix the problem of mass incarceration, we need to make it easier for people to get released from prison. We also need to make sure that the laws are fair and that they don’t discriminate against Black people.