The story of one US governor’s historic use of clemency: ‘We are a nation of second chances’

https://www.theguardian.com/us-news/2022/sep/28/oregon-governor-kate-brown-clemency

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Kate Brown has granted more commutations or pardons than all of Oregon’s governors from the last 50 years combined

Last October, Kate Brown, the governor of Oregon, signed an executive order granting clemency to 73 people who had committed crimes as juveniles, clearing a path for them to apply for parole.

The move marked the high point in a remarkable arc: as Brown approaches the end of her second term in January, she has granted commutations or pardons to 1,147 people – more than all of Oregon’s governors from the last 50 years combined.

The story of clemency in Oregon is one of major societal developments colliding: the pressure the Covid-19 pandemic put on the prison system and growing momentum for criminal justice reform.

It’s also a story of a governor’s personal convictions and how she came to embrace clemency as a tool for criminal justice reform and as an act of grace, exercising the belief that compassionate mercy and ensuring public safety are not mutually exclusive.

“If you are confident that you can keep people safe, you’ve given victims the opportunity to have their voices heard and made sure their concerns are addressed, and individuals have gone through an extensive amount of rehabilitation and shown accountability, what is the point of continuing to incarcerate someone, other than retribution?” Brown said in a June interview.

Notable clemency acts

When Brown, a Democrat, became governor in Oregon in 2015, she received the power of executive clemency – an umbrella term referring to the ability of American governors and the president to grant mercy to criminal defendants. Clemency includes pardons, which fully forgive someone who has committed a crime; commutations, which change prison sentences, often resulting in early release; reprieves, which pause punishment; and eliminating court-related fines and fees.

During the early months of the Covid-19 pandemic, Brown was one of 18 governors across the US who used clemency to quickly reduce prison populations in the hopes of curbing virus transmission.

She approved the early release of 963 people who had committed nonviolent crimes and met six additional criteria – not enough, according to estimates by the state’s department of corrections, to enable physical distancing, and far less than California, which released about 5,300 people, and New Jersey, which released 40% of its prison population.

But Brown’s clemency acts stand out in other ways. Brown removed one year from the sentences of 41 prisoners who worked as firefighters during the 2020 wildfire season, the most destructive in Oregon history.

She has pardoned 63 people. Most notably, she has commuted the sentences of 144 people convicted of crimes as serious as murder, yet have demonstrated “extraordinary evidence of rehabilitation”.

Democratic and Republican governors in North Carolina, Louisiana, Missouri, Kansas and Ohio have granted clemency for similar reasons. Yet Brown’s numbers are among the highest in the US, and the impact of her decisions are profound: Oregon’s prison population declined for the first time since the passage of the state’s Measure 11 mandatory minimum sentencing law in 1994.

Measure 11 codified mandatory sentences for 16 violent crimes, required juveniles over the age of 15 charged with those crimes to be tried as adults, and ended earned time. Since its passage, Oregon’s prison population tripled to nearly 15,000 people and three new prisons were built.

Brown also stands out for who she grants clemency to. Forty per cent of Brown’s commutations are Black, in response to Black Oregonians being incarcerated at a rate five times higher than their share of the state’s population. Nearly two dozen other clemency recipients were convicted as juveniles. Many were sentenced to life without parole and other lengthy sentences.

‘Eradicating racism and colonialism’

Brown’s acts reflect the governor’s values and beliefs. She accepts research in adolescent development showing people are not fully mature until their mid-20s. She was the first Oregon governor to visit the state’s women’s prison. She believes people are not defined by their worst acts and are capable of redemption. “We are a nation of second chances,” she said.

A voracious reader, she cited books such as Just Mercy, The New Jim Crow, The Other Wes Moore, and Picking Cotton as influences. Before holding elected office, Brown worked as a lawyer representing families and children in the foster care system, as well as people who violated their parole. She says she has always opposed Measure 11 as “a one-size-fits-all approach” that eliminated a judge’s ability to consider “facts and underlying circumstances of individual cases”.

George Floyd’s murder in May 2020 further galvanized her in “eradicating racism and colonialism” in Oregon, she said. (The state’s first constitution made it illegal for Black people to live on or own property in Oregon.)

Brown’s use of clemency is “well within established tradition”, said Rachel Barkow, a professor at NYU School of Law and an expert on clemency.

The use of clemency has been virtually non-existent since the “tough on crime” movement began in the 1980s, coinciding with Willie Horton committing rape while on furlough.

But for much of history, presidents and governors regularly used clemency. Governors cited a prisoner’s “exceptional rehabilitation” or, in exposing wrongful convictions, listed witness recantation, flawed evidence and police misconduct. “For one abuse of the pardon power,” a 1911 Colorado Board of Pardon report noted, “there are a thousand abuses of the convicting power.”

Alexander Hamilton argued in The Federalist Papers that clemency is a necessary check on a justice system capable of leveling excessive punishment. Without clemency, he argued, “justice would wear a countenance too sanguinary and cruel”.

The push to curb Covid-19 via clemency eclipsed another, growing movement. In August 2020, the American Civil Liberties Union launched a campaign urging governors to use clemency as a “corrective tool” to mass incarceration.

‘We’ve educated her’

Brown slowly became emboldened due to the work of a progressive lawyer and the legal clinic she directs.

Aliza Kaplan, a lawyer and professor of lawyering at Lewis & Clark Law School, founded the Criminal Justice Reform Clinic in 2015 to provide pro bono legal services to criminal defendants. By then, Kaplan was well-known in criminal justice circles for co-founding the New England Innocence Project and working as the deputy director of the National Innocence Project. In 2011, she moved to Oregon to join Lewis & Clark. Within years, in addition to starting the clinic, she helped launch an innocence project, an organization challenging bad forensic evidence, and another within the public defender’s office assisting people after their incarceration.

“I don’t want to live in a world where we can’t believe people change and redemption isn’t possible,” Kaplan said. “That’s too cruel of a world for me.”

The clinic launched its clemency project in 2016. Knowing Brown’s legal background, Kaplan and Venetia Mayhew, the project’s first staff attorney, decided that the first applicants would be women, people convicted as juveniles, and those convicted of violent crimes and serving long prison sentences – people who, Kaplan said, “committed horrible crimes but have transformed”.

Mayhew interviewed clients at Oregon’s prisons, wrote applications and oversaw clinic students assigned to applications. Clients “understood they had to talk about the crime and what they are most ashamed of”, Mayhew said. “It was all about building trust. I spent time with them, got to know them.” At the same time, Kaplan took members of Brown’s staff to Oregon’s prisons to meet clients and other prisoners.

The clinic’s applications are unique. They are narratives, drawn from interviews, trial records, police reports, and prison records, telling the story of a client’s life from childhood up to the crime, their trial, incarceration and work to change. “It’s not about blaming their history or background, it’s part of understanding who they are,” Kaplan said. “The legal system leaves out a lot of the personal stuff.” The applications include photos, the applicant’s résumé, and letters from family, friends, correction officers, employers and volunteers.

The clinic’s early efforts were hit or miss. During her first three years in office, Brown granted two pardons and one commutation. “It was heartbreaking,” Mayhew remembered. “I felt like a snake oil salesman, peddling hope.”

In 2018, Brown’s numbers ticked up: she granted three commutations to people convicted as juveniles.

In 2019, Kaplan and Mayhew published an article built from Mayhew’s research of every Oregon governor’s clemency acts, proving clemency was not rare: governors regularly released up to a third of Oregon’s prison population, recognized rehabilitation and corrected wrongful convictions.

That year, Brown commuted a murder conviction for the first time, in the case of a woman sentenced to a mandatory minimum of 25 years, a sentence both the judge and prosecutor thought too harsh.

After that, Brown’s clemency numbers shot up: in 2020, she granted 65 pardons and commutations; in 2021, she granted 36.

Brown approves approximately 7% of the applications her office receives. The clinic’s success rate is far higher: 45 of 179 applications have been approved (an additional 116 are pending; 18 have been denied).

Each application tells an individual story. Collectively, they exposed systemic inequities: of people who were exposed to drugs as children, endured child abuse, neglect and sexual abuse, or became inescapably entrenched in gangs.

“We’ve educated her,” Kaplan reflected. “But she already had it in her.”

Making the world a better place

Over time, Brown and her legal counsel have created a six-month process to winnow out all but the 10% of applications that reach Brown’s desk.

Brown’s decisions, she said, do not result from satisfying a checklist, but a “totality of circumstances”. Applicants’ expressions of accountability and remorse are critical. “It’s not just ‘I understand, and I regret, and I feel remorse’,” Brown said. “How is that lived? What are the actions to show that?”

She values a “lifetime commitment” to community service, inspired by her mother’s decades of volunteering for the American Cancer Society. It is proof applicants “understand what they have done and are committed to making the world a better place”, Brown argued.

Brown also gives a lot of weight to applicants’ plans post-release.

“They want him to succeed if she grants it,” Kaplan said. Kaplan spoke via telephone with a clinic alumna, now working as a public defender, on an early June afternoon. Brown’s counsel requested a more detailed release plan – a strong sign the application is moving forward.

The application was open on Kaplan’s laptop. Beyond her laptop, taped to a window in her office, a piece of paper reads “Imagine”. Another, at her office entrance, says “Empathy”.

Leaning forward toward the phone, Kaplan rattled off potential questions: family he could live with, jobs he wants to apply for, exercise. “The more detail, the more we can show what his life could be like,” she said.

A release plan, submitted in July, included information about plans to join a gym to work out and play pickup basketball games for stress relief, living with two relatives, and applying for jobs at a nearby ferry.

If the application makes it to Brown’s desk, it will receive thorough consideration. She is known to read the applications carefully. “They’re incredibly extensive,” the governor said.

“How do you plan to deal with your sobriety?” Brown said at an interview with one of the clinic’s clients in 2020. “What kind of job do you want to get?”

When the interview ended, Brown granted the client clemency.

Everyone present began crying, Kaplan remembered.

Inspiring hope

Brown says her clemency acts are “part and parcel” of recent criminal justice reforms in Oregon.

In 2020, Brown supported the end of non-unanimous jury decisions in criminal cases when she signed on to a brief, written by Kaplan, urging such a move in the US supreme court case Ramos v Louisiana. In doing so, she opposed her own state justice department. (Oregon and Louisiana were the two states left using such juries, which convict criminal defendants without a unanimous vote and have racist origins.)

In recent years, the Oregon legislature passed laws redefining aggravated murder and restricting death penalty eligibility, broadening expungement and allowing district attorneys and defendants to petition to change a prison sentence.

In 2019, legislation gutting Measure 11’s provisions relating to juvenile offenders passed, in recognition of supreme court rulings, based on decades of research in adolescent development, ending harsh sentences for people under 18.

Brown made that law retroactive when, last October, she signed the executive order commuting the sentences of 73 juvenile offenders. They “are capable of tremendous transformation”, Brown wrote, citing research in adolescent development.

It wasn’t the first time clemency was used to make a law retroactive: in 1974, the legislature passed a new criminal code, and the then-governor, Tom McCall, commuted the sentences of 48 people to prevent “disparity” and “unequal treatment”.

Brown’s executive order prompted a firestorm of media coverage. The fiercest response came from Kevin Mannix, a lawyer, former Republican state legislator, and author of Measure 11. Representing two district attorneys and three crime victims, Mannix sued Brown in January, attempting to overturn the group commutations related to Covid-19, the firefighters and the executive order.

“The governor is not the super legislature,” Mannix argued in a June interview. He said the “process” dictates the governor not “decide on a broad brush”, and that “the victim is heard and the district attorney is heard”.

Mannix thinks “there may be individual cases” where prisoners show rehabilitation. “I don’t want to say no one is capable of rehabilitation,” he said. But those convicted of violent crimes, he believes, should be “incapacitated” and “taken off the streets”.

The lawsuit and local media coverage galvanized criticism from district attorneys that Brown’s decisions lack transparency and that she is disregarding crime victims. State law requires district attorneys to keep victims apprised of defendants’ appeals, as well as submit statements to the governor’s office in response to clemency applications.

Brown has acknowledged victims of violent crime are “traumatized – sometimes violently and irreparably”. Her office recently hired a victim’s advocate to work directly with victims. Her clemency reports also reveal that not all victims oppose clemency: some are neutral, while others are supportive. Victims opposed to clemency “have been given more attention in the press”, said Mary Zinkin, founder and executive director of the Portland-based Center for Trauma Support Services. “They do not represent all crime survivors.”

Due to the controversy, Kaplan and Mayhew regularly receive hate mail. Soon afterward, Kaplan received a thank you card signed by the dozens of inmates at a men’s prison. Kaplan and her colleagues, one wrote, “is inspiring a lot of hope inside these walls”.

‘Prison cleaned me up’

Brown’s office has received more than 2,100 clemency applications since 2020 –100 times more than five years ago.

In January, Kaplan and her students wrote a “step-by-step guide” to clemency that circulates in the prisons. And there are more lawyers than ever telling their stories; clemency is now a major part of pro bono work at four large law firms, and more than a half-dozen lawyers – graduates of Lewis & Clark or mentored by Mayhew, now in private practice – represent dozens of clemency cases.

“People just see that word ‘murderer’,” said Patty Butterfield. “But did that person [Brown] is letting out change their life in prison? Did they clean up their act?”

Butterfield received clemency in April 2020. Butterfield was 74 years old – one of the oldest people in Oregon’s prison system. She had served 23 years for shooting her abusive boyfriend during a fight, injuries which later killed him.

In prison, she maintained a spotless disciplinary record and became a mother figure to younger female prisoners. “I changed my life,” Butterfield said. “Prison cleaned me up, gave me a sense of worth again.”

She began crying as she recalled Mayhew calling to tell her she had been granted clemency. She now lives in central California with friends, who have given her free rein of the garden. “I love doing yard work here,” she said.

In March, a county judge upheld Brown’s Covid-19 and firefighter commutations but halted the parole hearings for the juvenile offenders. Brown appealed, the Oregon court of appeals heard oral argument in June, and, in early August, issued a 44-page opinion entirely rejecting Mannix’s case. Mannix has asked the Oregon supreme court to review the decision. The court has not yet indicated whether it will.

The recent controversy does not dissuade Brown, who leaves office in January, from continuing to grant clemency. She said: “I have the ability to make these decisions” – just like all governors before her.