Jurisprudence

The Largest Commutation in U.S. History

Mass clemency has been politically toxic for decades. Is it finally making a comeback?

A family reuniting in Oklahoma after the largest mass commutation in history.
Oklahomans for Criminal Justice Reform

On Monday, Warren Rawls, 35, left prison and headed to Oklahoma City. He was one of 462 Oklahomans returning home that day after the largest single-day commutation in United States history wiped out a collective 1,931 remaining years in prison.

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Rawls was shocked to receive written notification two weeks earlier that he might soon be released, as part of a reform he’d never heard of. On Saturday, he was given confirmation, and on Monday, “They just gave me $50 and said, ‘You don’t have to be here no more.’ It’s crazy.”

Rawls’ release was set into motion back in 2016, when Oklahomans voted yes on a ballot initiative to reclassify simple drug possession as a misdemeanor, rather than a felony, which carries severe lifelong consequences. Then, in May of this year, the state Legislature took the surprising step of making that change retroactive by allowing people to expunge old felonies for possession and making Rawls and more than 800 others behind bars eligible for sentence commutation and early release.

“I still had 3,000 days left. So it was a big, big thing for me,” said Rawls, who had been incarcerated for a little over one year for drug possession. He had an emotional first day of freedom reuniting with his fiancée, “getting to know each other again” after a year of keeping in touch on the phone every day. “She was really surprised,” he said. “She was really happy.” He moved into a sober living facility and is eager to find a job and get his own place. “I need to get back to work, grow up, and start a new beginning for me.”

Monday’s 462-person release reduced the prison population by 1.7 percent—enough to allow Oklahoma to shed its title as the most incarcerated state in the nation.

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On the 2016 ballot, Oklahomans approved proposals to reclassify simple possession and certain low-level property crimes as misdemeanors (meaning no prison time) and to reallocate the savings to substance abuse and mental health services.

“In 2016, the people of our state said, ‘You know what? A person who is charged with simple possession, or who may battle addiction, they don’t need to go to prison,’ ” said Kris Steele, executive director of Oklahomans for Criminal Justice Reform, a nonprofit that wrote the initiatives and gathered more than 200,000 signatures to put them on the ballot. “They shouldn’t be viewed as a prisoner. It’s a health issue, we should treat them more as a patient.”

But people like Rawls, sentenced before the initiatives passed, remained in prison. In May, with a heavy push from Republican Gov. Kevin Stitt, the bipartisan-authored HB 1269 passed on the very last vote of the legislative session.

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Instead of automatically converting convictions to misdemeanors or granting release outright, the bill made people like Rawls eligible for fast-tracked commutations, or sentence reductions from the executive branch. Traditionally, commutation in Oklahoma requires a two-stage application process, including an in-person hearing before the Pardon and Parole Board, where prosecutors, law enforcement, and victims are allowed to protest release.

Of the 814 people in prison for eligible nonviolent drug offenses, the parole board recommended 527 for commutation at a special meeting last Friday. The remaining 287 individuals, who were not recommended for reasons like behavioral infractions or protests from prosecutors, may still apply for commutation via the standard, drawn-out process, but their approval is not guaranteed. Stitt approved all 527 recommendations, although 65 people remain behind bars on additional charges.

Oklahoma’s mass commutation is intended to address the state’s usual punitive response to addiction. Drug possession was the most common reason for Oklahoma prison admission every year from fiscal year 2005 to 2015, resulting in 17,458 prison sentences averaging 19 months. In recent years, 83 percent of female prison admissions were for nonviolent crimes, including 42 percent for drug offenses.

These policies contribute to Oklahoma incarcerating more than 1 percent of its population. It has had the highest female incarceration rate in the nation since 1991, a lead that only widened in recent years.

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Even as limited to nonviolent drug offenders as it is, Oklahoma’s mass commutation is a radical move. After decades of tough-on-crime politics, it’s even more surprising to see the widespread celebration by parole board members, the Department of Corrections, and politicians of both parties. Trump-endorsed Republican Gov. Kevin Stitt shared Facebook videos of the commutation process, stood outside a women’s prison shaking hands as 70 women filed out, and called the day “another mark on our historic timeline as we move the needle in criminal justice reform.”

The public’s support of the 2016 ballot initiative may have helped allay fears of political backlash for Oklahoma’s politicians and parole board members. And of course, mercy is politically safer to extend to those convicted of nonviolent offenses. At a press conference on Friday, speakers repeatedly stressed that those being released were nonviolent. The parole board also announced in a press release that Monday’s commutations saved the state $11.9 million in future incarceration costs.

But before the national trend toward harsher punishment, mass clemency—which includes commutation and pardons—used to be much more common.

“Historically, we have seen large amounts of clemency grants, and it’s really only in the last 40 to 50 years or so that there’s been such a sharp decline,” said NYU law professor and clemency expert Rachel Barkow. “It was a completely normal part of the practice of a governor.
And for all kinds of criminal conduct, too.”

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Thomas Jefferson, for example, granted mass clemency to everyone convicted of opposing the government under the Sedition Act. Ulysses S. Grant pardoned all but the highest-ranking former Confederate soldiers. Up until the era of “War on Crime” politics, presidents and governors regularly granted individual acts of clemency to people convicted of a range of offenses. An NYU School of Law report on clemency in Massachusetts notes that from 1950 to 1980, 84 percent of commutations went to people serving life sentences for first- or second-degree murder.

Then in 1986, Willie Horton raped a woman and assaulted her fiancé after taking flight while on a weekend furlough from the Massachusetts prison where he was serving a life sentence for first-degree murder. Then-Gov. Michael Dukakis was widely criticized for having vetoed a bill that would have excluded people like Horton from the furlough program. The NYU report notes that clemency suffers from the “Willie Horton effect”—the “tendency to reflexively overhaul a criminal justice policy after a single violent crime.” For the past several decades, presidents and governors have feared releasing someone who might go on to commit another crime.

Barkow noted that when clemency does occur today, it is often reserved for “sympathetic” cases, such as children, domestic violence survivors who retaliated against their abusers, or those convicted of low-level drug offenses like in Oklahoma. Similarly, President Barack Obama’s clemency initiative—one rare recent example of mass clemency—targeted people serving outdated and disproportionately extreme sentences for nonviolent offenses.

“If you really want to get robust clemency, governors have to accept the fact it will never be risk-free. It just won’t,” said Barkow. “And so what they really need to do is explain to constituents why it’s worth doing.”

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Outside Oklahoma, some governors are cautiously moving back in the direction of the historic approach to clemency. In California, Gov. Gavin Newsom granted clemency to 21 people convicted of violent offenses in September; his predecessor, Jerry Brown, pardoned 1,332 people over eight years, more than four times the previous four governors combined. And in Pennsylvania, commutations are being used to undercut extremely long sentences, particularly to people convicted of violent crimes as children.

Barkow expects that in coming years, the criminal justice reform movement will begin to put more political pressure on governors to exercise their power of clemency. “The other hope is that, as governors get experience actually granting clemency, they’ll see it’s a pretty meaningful thing that they can do. They can completely transform someone’s life.”

At the federal level, she said a new president could enact major reforms to the federal clemency system on Day 1 by taking the power of recommendation out of the hands of federal prosecutors. In fact, most major Democratic presidential candidates have promised to create an executive clemency committee outside the Department of Justice, including Elizabeth Warren, Bernie Sanders, Pete Buttigieg, Kamala Harris, Amy Klobuchar, and Cory Booker. (Joe Biden promises to use clemency widely but does not mention reforming the process.)

Barkow noted, however, “I think the wildcard is always, if they have another priority, and they think this in any way will detract from their achieving that other priority, clemency always ends up on the back burner.”

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The clemency grant can be just the beginning of a difficult journey, as people returning home face barriers in housing, employment, and access to services.

The 462 newly returned Oklahomans still have felonies on their records for offenses that would be misdemeanors today—as do about 60,000 others throughout the state. The retroactivity bill did not clear drug possession felonies automatically; it simply made them expungable. But expungement fees cost about $340, according to the think tank Oklahoma Policy Institute, in addition to required payment of all court debt and often, a $500 to $1,500 attorney consultation.

Rawls has no plans to look into the expungement process. He has remaining court debt and right now is just focused on finding a job.

Leading up to release day, nonprofits and philanthropic foundations collaborated with the Department of Corrections to hold “transition fairs” inside 28 prisons, where soon-to-be released people could meet with organizations that provide housing, employment, case management, and other reentry services, and to provide individuals with reinstated driver’s licenses or state-issued IDs before their discharge.

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“The resources are getting a lot better,” said Rawls. “I was in prison a couple times, and I’ve always just had to get back to doing what I was doing, and ended with me back in prison. So I’ve got to do something a little different.” This time around, he was connected to the Education and Employment Ministry, a reentry nonprofit that helped him secure clothes and a bus pass, and that he hopes will help him find employment.

And there are others who have helped light a path forward. Johnna Davidson was 2½  years into a drug sentence when she was contacted by Project Commutation, a collaboration of Oklahomans for Criminal Justice Reform, the Tulsa County Public Defender’s Office, University of Tulsa law students, and other community organizations.

The state Legislature had not yet passed the retroactivity bill, and the reform organizations aimed to help 30 people with drug felonies petition the Pardon and Parole Board for commutation.

With Project Commutation’s assistance, Davidson went home in December, two years earlier than she expected. “It was like, ‘I’m out! Is this really happening right now?’ ” she recalled. “It was a little overwhelming, but it was good, too.”

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She found work as a welder and spent six months in a sober living facility before moving into her own apartment. She relishes spending time with her four kids (ages 7 through 20), talking to them on the phone without a time limit, and “not having an officer telling me to stop hugging them. And just being able to hold them. … I’ve been able to restore those relationships, and just—I’m grateful.”

Davidson hopes that Oklahoma is shifting how it treats addiction. “It’s emotional, physical, sexual, mental abuse—it’s inner struggles that makes you want to use, to self-medicate,” she said. “Depression, anxiety, things like that.”

Her advice to people like Rawls? “Get plugged into meetings, or church, or something that will help them stay sober, and not go back to the same environment,” she said. “Just stay around positive, supportive people and don’t get discouraged. It’s a process. Everything’s not going to happen overnight.”