By Norman L. Reimer, NACDL Executive Director
January/February 2021 issue of The Champion
March 22, 2021, Intro to Medium Edition: The recent series of stories targeting people for using connections and other resources in an effort to secure clemency for deserving individuals only highlights what is yet another glaring problem in the U.S. criminal legal system — individuals have the right to petition for clemency but no accompanying right to counsel for that purpose, leaving the vast majority of deserving petitioners with virtually no chance of relief. The real problem is not that people of means or connections use those resources to avail themselves of the right to petition for clemency, it is that the overwhelming majority lack the resources to take advantage of that right.
Summary: Until the Sixth Amendment is understood to provide a right to clemency counsel or legislatures provide for counsel at this stage of the legal process, few avenues exist to secure the assistance of counsel for those with limited resources. People with sufficient income will hire lawyers to help them, but everyone should have the same opportunity.
Robert Francis was serving the 19th year of a life sentence for a drug offense. Had he accepted the government’s plea offer, he would be nearing his release date. Instead, he faced the prospect of decades more behind bars despite a near complete transformation and an exemplary record. Lavonne Roach was serving the 23rd year of a 30-year sentence, also for a drug offense. She too was a model prisoner, using her education to tutor fellow prisoners. Had she accepted the government’s plea offer, she would have been set free more than a decade ago. Robert Francis and Lavonne Roach now have three things in common: they were both victims of the trial penalty; they both received commutations in the waning hours of the prior administration; and they were both part of NACDL’s Federal Trial Penalty Clemency Project. The project submitted clemency petitions on behalf of 24 individuals, of whom 14 received commutations, including seven who were serving life sentences. Collectively, these commutations saved 185 years of imprisonment. To read profiles of the 12 other commutations, [visit https://nacdl.org/newsrelease/TrialPenaltyClemencyFirstCommutations].
A great deal has been written in recent weeks about the federal clemency process, its manifest defects, and the dubious exercise of executive clemency power by former President Trump over the course of his term in office. That some presidents and governors have abused the clemency power to benefit friends, supporters, and possibly even worse, to the advantage of those who might conceivably give evidence against them, cannot be denied. Nevertheless, the clemency power is a vital tool to dispense mercy in a system driven by unchecked prosecutorial power, the tyranny of mandatory minimums, and a sentencing regime in which the trial penalty is wielded as bludgeon to punish those who dare to assert the fundamental right to a trial.
NACDL strongly supports use of the executive clemency power on both the federal and state levels as an indispensable tool to address the tyranny of decades of overly harsh sentences disproportionately impacting minority communities and the poor. NACDL also urges presidents and the state clemency authorities, which are usually but not always the governors, to establish broad, but objective, criteria for clemency as well as a routinized process for consideration. But those changes would not be nearly enough to address the problem.
Setting aside the abuse of the clemency power to benefit cronies, another common criticism is that it is disproportionately available to those who can engage counsel and other advocates to make their case. This is a fair criticism. Access to clemency should not be reserved for the wealthy or the well-connected.
Much has been said of those whose direct or indirect access to lobbyists, business leaders, or political or cultural influencers aided in securing relief from former President Trump. But as a society, we do not provide for access to clemency counsel as a right for the countless thousands of incarcerated individuals who lack the resources to hire counsel to assist them in the preparation of a clemency petition. This must change. The U.S. criminal legal system has unjustly engaged in overcriminalization, extremely excessive sentencing, and mass incarceration for several decades. It has a duty to use every available tool to right the ship, and that includes access to clemency counsel for all deserving incarcerated individuals.
With respect to those who seek commutations of their sentences, the public must recognize that there is no constitutional right to appointed counsel to aid in the preparation of a clemency petition. The overwhelming majority of accused persons depend upon government-compensated counsel throughout their cases, but these counsel are seldom authorized or compensated to provide representation beyond a direct appeal. And especially for those who are condemned to lengthy prison terms, only a tiny percentage can afford to hire counsel. That is the reason groups like NACDL have launched clemency and other projects to recruit, train, and support counsel who can provide prisoners with back-end relief. While anyone can apply for clemency, it is extremely difficult for most incarcerated individuals to present a compelling case without the aid of counsel. Naturally, those few with means can and will hire lawyers and advocates to help them make their case. But everyone should have the same opportunity.
NACDL sees this need up close, every day. Its engagement on this issue has been at the ground level, beginning with Clemency Project 2014, a program NACDL co-founded and hosted during the Obama administration to provide pro bono counsel for thousands of clemency applicants when that administration launched its clemency program to provide relief for nonviolent offenders whose sentence would have been lower under current law. To highlight the magnitude of the need, that project received more than 36,000 requests for assistance. The project submitted more than 2,500 petitions, of which 894 were granted, more than half of the 1,715 commutations granted by former President Obama. Three hundred fourteen of these individuals were serving life sentences. This could only have happened because NACDL and its partners recruited and trained more than 3,000 volunteer lawyers to take on clemency cases through the project. But even that massive project could not reach all the deserving cases in the limited time available.
Until the Sixth Amendment to the U.S. Constitution is understood to provide a right to clemency counsel, or legislatures otherwise provide for counsel at this stage of the criminal legal process, there are precious few avenues to secure the assistance of counsel for those with limited resources. NACDL’s Return to Freedom Project,¹ and specifically the project’s clemency initiatives, like the NACDL/FAMM State Clemency Project² and the NACDL Trial Penalty Clemency Project,³ offer one such avenue. These projects recruit, train, and support volunteer lawyers who take on these cases. In each project, however, the number of applicants far exceeds capacity. Thus, while pro bono projects like those NACDL leads can help many people, many more deserving individuals are simply unable to navigate the system to get the relief they should.
With tens, if not hundreds, of thousands of warehoused individuals serving sentences from the “Tough on Crime” and “War on Drugs” era that cry out for commutations, the discussion about clemency reform must urgently extend beyond only modifications to clemency processes. The scope of the continuing human suffering imposed over decades of mass incarceration in the United States requires bold action. NACDL will continue to support pro bono efforts to represent individuals who seek clemency and other back-end relief, but those projects can never fully accommodate the demand. Every qualified individual who has a right to seek release should have access to properly trained and resourced clemency counsel. On the federal, state, and county levels, defense entities, whether public defender offices or appointed counsel, must be available to represent those who have a right to seek their freedom. Every Robert Francis or Lavonne Roach deserves access to a lawyer who can fight for their freedom.
About the Author
Norman L. Reimer is NACDL’s Executive Director and Publisher of The Champion.
© 2021, National Association of Criminal Defense Lawyers. All rights reserved. This article originally appeared in The Champion magazine and is reprinted with permission.