In 1998, at the age of 21, I was sentenced to life without parole plus 320 years for drug-related offenses that were committed mostly in my teens. In 1998, 16 years into my sentence, I received clemency from President Obama after writing a letter to him asking for forgiveness, asking for mercy, asking for understanding that I wasn’t a bad kid, just a kid who made a bad decision. That I wasn’t that person who roamed those streets long ago or the same person who stood in front of the judge and received a life sentence, and as a result I shouldn’t die in prison.
 
President Obama agreed.
 
I was extremely fortunate. Those who sought a commutation of their sentence before Obama’s presidency, when George W. Bush was in office, had a 1 in 1,000 chance of success. While conducting research as I prepared my own clemency application, I learned that only one other person serving life without parole for a drug offense had ever been granted clemency. Because of this, I have always compared my clemency to hitting the lottery. But instead of winning millions of dollars, I won my freedom.
 
Unfortunately, I am just one of the thousands upon thousands of people who after years or even decades in prison, have matured and changed their way of thinking. But because of mandatory minimums and truth in sentencing laws(another supposedly “tough on crime” sentencing scheme that is really just tough on people), and the inaccessibility or unreliability of parole, there are no judicial remedies to acknowledge the transformations of these individuals.
 
However, there is an extraordinary executive power that allows a show of mercy to be made: clemency.
 
Clemency has historically been relied upon in America as an olive branch extended to those unduly harmed by our system of mass punishment. It has been used as a tool to heal people, communities, and our very nation, and in doing so, has engendered reconciliation among its citizens. Clemency is a corrective measure that counteracts some of the effects of a flawed system. But the degree to which it can do so is mirrored by the degree to which it is used. Though it may often be overlooked today, clemency has been a key facet of our republic since its founding.
 
Alexander Hamilton, who played a pivotal role in ratifying the Constitution, saw the value of investing in the office of the presidency the ability to grant clemency to groups during periods of national crisis. Hamilton outlined this in the Federalist Papers: “In seasons of insurrection or rebellion, there are often critical moments, when a well-timed offer of pardon to the insurgents or rebels may restore the tranquility of the commonwealth; and which, if suffered to pass unimproved, it may never be possible afterwards to recall.”
 
Not long after this statement, President George Washington would use his pardon power after the suppression of the Whiskey Rebellion of 1794. The President pardoned two people who were considered leaders of the rebellion and had been sentenced to death. Washington’s legacy was later echoed in President Lincoln’s choice to issue 64 pardons for war-related offenses. They were part of his Proclamation of Amnesty and Reconstruction, his blueprint for the reintegration of the South into Union.
 
In the century that followed, between 1918 and 1920, more than 2,000 people were convicted of sedition and other violations of the Espionage Act for speaking out against the American involvement in World War I. In 1921, President Warren Harding reacted by issuing blanket pardons to all those convicted under the Espionage Act. Still decades later, attempting to bring a close to the era of American conflict in Vietnam, President Jimmy Carter offered a blanket pardon to any American who had dodged the draft during the war.

These are all examples of how Presidents exercised their clemency power during and after periods of war to bring the nation together so that it might move forward in unity. That legacy must be resurrected again today to combat the legacy of another war: the war on drugs and related “tough on crime” policies that have actually been a war on Black and Brown communities.
 
These pervasive modern wars have left about 80 million people in this country with arrest records, 8 million with felony convictions, and more than 2 million people currently in our jails and prisons. With statistics like these, and decades of harsh crime policies in place, we can debate which policies should have been implemented and which shouldn’t have. But one thing is clear: America’s “tough on crime” movement was misguided, ill-advised, and has hurt the communities it intended to help.
 
From former President George Bush to current President Donald Trump, and from Govs. Tom Wolf of Pennsylvania to Kevin Stitt of Oklahoma, elected officials have exercised their clemency power to give individuals back their freedom, many of whom have been in prison for years or decades under “tough on crime” laws enacted in the 1980s.
 
I was one of those fortunate souls, and my release granted me more than freedom. It was a chance at redemption.
 
Clemency is not and should not be viewed as a tool used by officials who are “soft on crime.” Instead, it is a tool whose use signals an official’s wisdom about our nation and the nature of our mass punishment system, whose roots lie in slavery but whose functions are present in the lives of too many people today. These punishments that may have appeared necessary and just at one time, but their lie has been exposed: Putting too many people in prison for too long does not keep people safe, and it certainly does harm to the loved ones of those who are incarcerated.
 
In a 2003 speech, former Supreme Court Justice Anthony Kennedy referred to pardon power as a necessity to ensure justice is administered and adjusted over time:
 
“A people confident in its laws and institutions should not be ashamed of mercy. The greatest of poets remind us that mercy is ‘mightiest in the mightiest. It becomes the throned monarch better than his crown.’ I hope more lawyers say to chief executives, ‘Mr. President,’ or ‘Your Excellency, the Governor, this young man has not served his full sentence, but he has served long enough. Give him what only you can give him. Give him another chance. Give him a priceless gift. Give him Liberty.’”
 
I know personally that when the gift of clemency is given to a person, it reverberates throughout our souls that we are not only a nation of opportunity, but also of second chances, of mercy and hope — even for those who may have done wrong — even for those in prison. For as Justice Kennedy said in his closing remarks on clemency, “[S]till, the prisoner is a person. Still he or she is part of the family of humankind.”

Jason Hernandez

My view of the American system of justice is clear — it is overly punitive and in need of correction. My opinion is anything but armchair analysis. I came to this conclusion through my time as a prosecutor — most notably in the case of Cyntoia Brown. Cyntoia was sentenced to more than five decades in prison at the age of 16 for killing a man who she believed was drawing a gun to shoot her. At the time of her sentencing, I believed this punishment was just — but upon reflection, I later advocated for her application for clemency, which was ultimately successful. I know better now than most that for real justice to be realized, her experience with redemption should not be the exception, but the rule.
 
Why isn’t it?
 
To begin with, our criminal legal system is adversarial and discourages even basic human connection. As a prosecutor, you’re a representative of the state. Your adversary is a defendant, and the most important information you have about them is that they have been accused of a crime. I was tasked with seeking “justice” for victims and promoting public safety by punishing people who broke the law. In the daily grind of that work, it is easy to forget that the person on the other side of the courtroom is a person, like you. It becomes easy to dehumanize people charged with crimes.
 
The results of this are devastating. After you have done your job and obtained a conviction, and had the person sentenced, you may well forget that their story had a beginning and a middle, seeing only an end — a resolution you helped fashion for them. You therefore often forget the impact you had in that person’s life, which will long outlast the time you spent prosecuting their case. Additionally, no one knows what the future will hold if and when they are released from incarceration and return to their communities.
 
In my experience, it’s rare that any single person in the legal system, whether a cop, a prosecutor, or a judge, thinks to check back in on people after their cases conclude.
 
While releasing people onto parole is a possibility in most jurisdictions, those decisions tend to look backward to determine whether the person has served enough time to satisfy the parole board that they have been sufficiently held accountable or sufficiently punished. On several occasions I have witnessed parole boards deny release to people who had experienced profound rehabilitation because they believed the seriousness of the offense required additional punishment.
 
This is where clemency is vitally different. In contrast to a system rife with historical bias and wrongheaded or inaccessible processes, it can be actively humanizing and forward-looking.
 
Clemency presents an opportunity for governors to undo the failures and harms of the system and see people not merely for what they have done, but for who they have become. It is an opportunity to look beyond the punishment for a past wrong to the promise of a meaningful future. It is a moment to reflect on that part of people’s stories that has yet to be told. Unlike the original sentencing court and the parole board, the executive is not constrained by the retributive principles that characterize the American system of punishment. Governors exercising their clemency powers can extend mercy where the system does not. They are free to correct the criminal justice system’s compounding of underlying trauma.
 
In the case of Cyntoia Brown, I argued before the Tennessee appellate court that her conviction was proper — that she was appropriately tried, convicted, and sentenced to 51 years in prison. I argued that the system did what it was designed to do: inflict punishment without fully regarding the human context in which the harm was caused. As a society that tolerates this system, we are far too eager to say, “We got that person back. Now let’s move on.” Thankfully, in Cyntoia’s case, I later got to know her, to witness her rehabilitation, and was able to argue that she deserved a second chance. Clemency corrected the injustice of a 16-year-old child being tried as an adult and sentenced to 51 years in prison.
 
The system needs more of that change, and it needs it now.
 
The criminal legal system is too often steered by a desire for vengeance, which serves no one. Not the defendant, not a victim or their family — whose pain must be acknowledged and heard — and it does not not serve we the people. We must recognize that increasingly harsh sentences have not resulted in lower rates of recidivism or greater public safety, much less healthier communities. In fact, our overly punitive system destabilizes communities and places people at risk. What makes more sense, and what allows us to adopt a more holistic approach, is to create opportunities for a person to grow and thrive and move past the mistakes they made and the hurt they caused.
 
True justice, in fact and in practice, requires compassion, humility, and the willingness to see where we have been too punitive and how we can address that.
 
Make no mistake, compassion is not a limiting force. My compassion for one person in no way diminishes my compassion for another. Cultivating compassion — and embracing clemency as a form of compassion — does not undermine our commitment to holding space for victims and their families to grieve, to be angry, and to heal. We can and must expand the parameters of our compassion to also include people who cause harm, and embrace corrective, compassionate policies that allow for their growth, rehabilitation, and redemption. What we can achieve here is not merely a reduction in the number of people in prisons, although that is sorely needed. What we can achieve is redemption.

Preston Shipp, Former Prosecutor, Campaign for the Fair Sentencing of Youth

The Trump administration is advocating for a new hierarchy of rights that would elevate religion and property over basic human rights. Secretary of State Mike Pompeo is leading this dangerous endeavor through his Commission on Unalienable Rights, which published a 60-page draft report and initiated a two week public comment period following the proposal. Sec. Pompeo then delivered a preposterous speech to support the ideological initiative. The commission and its glossy report are designed to lend a veneer of legitimacy to an endeavor that is both dangerous and a waste of taxpayer money — at a time when the government should be focusing on responding to the public health and economic crisis.

This commission isn’t fooling anyone. Its main purpose is to weaken international human rights protections and propose a new, politically-charged framework of rights that elevates a specific vision of religious freedom and ignores well-established, globally accepted norms. This was already evident last year, when we warned that the commission would diminish the progress made to advance the universal rights of women and LGBTQ people, as well as socioeconomic rights, especially of vulnerable and historically marginalized populations. 

The report asserts that the United States should “vigorously champion human rights in its foreign policy,” and that “America can only be an effective advocate for human rights abroad if she demonstrates her commitment to those same rights at home.” Yet the report is stunningly silent about the racist policies and xenophobic rhetoric of the Trump administration, which have been widely condemned by international human rights bodies. It also fails to account for the Christian favoritism that Pompeo has displayed time and time again, implying that there is a hierarchy even among religious groups. 

A hierarchy of rights is inconsistent with human rights law and our constitutional framework. The report presents a selective and revisionist history, emphasizing the “primacy of the American political tradition” and the founding era of American history. The result is a crude and erroneous attempt to constrain the notion of the U.S. Constitution as a living document. As the ACLU has repeatedly stated, “There is an obligation to adapt fundamental principles of liberty and equality to the needs of an evolving social culture.” It seems that the 11 members of the commission have missed the fact that our constitutional rights are evolving, not static. 

Sec. Pompeo’s commission ignores the bedrock principle that all human rights have equal status, and they are not hierarchical. The consistent refrain in the report, and from Sec. Pompeo, is that “[f]oremost among the unalienable rights that government is established to secure … are property rights and religious liberty.” This is in fact a new and novel hierarchy of rights, designating religious freedom and property rights as the most important. This is a political and ideological decision that contravenes international law, and ignores lived experiences and structural inequities. It’s also counterproductive to democratic participation and fundamental freedoms because it excludes certain types of people from all human rights, including people living at or near the poverty line, such as low-wage workers.   

We must reject any proposal that prioritizes religious liberty over equal rights and human dignity. All too often, religion has been invoked to sanction violence and discrimination against people of color, including those of African descent and Indigenous peoples, women and girls, and LGBTQ people. A recent report by the United Nations Special Rapporteur on freedom of religion and belief documents how this dynamic has taken place in all regions of the world. The Special Rapporteur concluded that “[i]nternational law is clear that the manifestation of religion or belief may be limited by States in situations where doing so is necessary to protect the fundamental rights of others, including the right to non-discrimination and equality, a principle upon which all human rights, including the right to freedom of religion or belief depends.” 

While religious freedom must be protected and faith organizations are entitled to autonomy, such deference should be extended within a holistic conception of rights grounded in the universality, indivisibility, and interdependence of the full range of human rights. 

The right to property has long been wielded as a justification for atrocities committed against people of African descent and Indigenous peoples in the U.S. The report attempts to wash over most historical rights violations, though it curtly acknowledges slavery as a wrong. In an effort to further rationalize its rights hierarchy, the authors link property rights to freedom from slavery: “…only by becoming property owning citizens could former slaves exercise economic independence and so fully enjoy their unalienable rights.” 

While the report acknowledges that historically states’ rights have been invoked to prevent freedom and justice for enslaved people, it fails to mention that this has also been true for Indigenous peoples. This practice continues to this day, despite the latest U.S. Supreme Court decision in Mcgirt v. Oklahoma regarding tribal lands in Oklahoma.

The commission’s report asserts that economic and social rights are best compatible with America’s founding principles when they serve as “minimums that enable citizens to exercise their unalienable rights, discharge their responsibilities, and engage in self-government.” The commission bizarrely concludes that guaranteeing a basic social safety net and fundamental human rights such as the right to health, education, and housing, would “curtail freedom — from the rights of property and religious liberty to those of individuals to form and maintain families and communities.” 

Additionally, the report sets up the premise that social and economic rights create a “clash of claims” with other rights like religious liberty. If anything, the correct interpretation is that social and economic rights are complementary and enabling rights. People cannot exercise freedom — political or otherwise — if their social and economic rights are in jeopardy.   

While the report rightly considers the Universal Declaration of Human Rights (UDHR) as a foundational document for the modern international human rights framework, it fails to mention that the U.S. has continuously undermined the UDHR by ignoring and selectively enforcing basic universal rights. Different groups throughout American history, including Indigenous peoples, enslaved African people, and women, among others, have all suffered from America’s double-standard and failure to practice what it preaches. 

Notably, the U.S. is one of a handful of nations that has not yet ratified the Convention on the Elimination of All Forms of Discrimination against Women, and is the only country in the world that has yet to ratify the Convention on the Rights of the Child. More importantly, the report glosses over the government’s failure to uphold its legal obligations under ratified treaties including the International Covenant on Civil and Political Rights and the International Convention on the Elimination of All Forms of Racial Discrimination. Ongoing poverty, and racial disparities in health and economics, are some of the clearest indicators of the impact of failing to prioritize rights on equal footing. 

Last week, the ACLU joined 230 human rights organizations, faith-based groups, activists, academics, former senior U.S. government officials, and others to object to the commission’s mandate as well as the fundamentally flawed analysis and recommendations contained in the report. As the coalition letter concludes, the report “undermines American commitments to human rights and provides cover for those who wish to narrow certain categories of rights protections, resulting in a weakening of the international human rights system and its protections in the process.” 

At a time when the Trump administration is resorting to authoritarian measures to suppress Black Lives Matter protests, and failing to protect our basic human rights during the COVID-19 crisis, we must fight any attempt to shake the foundations of our global humanity. Pompeo’s ideologically motivated initiative aims to quash equal protection of human rights and dignity, and we must reject it.

Jamil Dakwar, Director, ACLU Human Rights Program