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Amy Klobuchar has a plan to reverse the war on drugs — and doesn’t need Congress to do it

Klobuchar’s clemency reform plan, explained.

Sen. Amy Klobuchar (D-MN) announces her bid for the presidency on February 10, 2019.
Sen. Amy Klobuchar (D-MN) announces her bid for the presidency on February 10, 2019.
Stephen Maturen/Getty Images

Before she joined the US Senate, Amy Klobuchar spent much of her career locking people up as the prosecutor for Hennepin County, Minnesota. But if she’s elected president, the Democrat has vowed to enact reforms within a month that could free thousands, if not tens of thousands, of people from federal prisons — and she won’t even need Congress to do it.

Klobuchar’s plan would tap into one of the president’s few nearly absolute powers: the ability to grant pardons and commutations to any federal prison inmate. This is the power that President Donald Trump used last year when, after meeting with Kim Kardashian West, he commuted the life sentence of Alice Johnson, a great-grandmother in prison for drug trafficking. It’s the power that Trump has reportedly considered for former staff caught in the Russia investigation.

And now Klobuchar wants to use that power, much as President Barack Obama did toward the end of his term, to roll back mass incarceration and the war on drugs. By setting up a new system for clemency as soon as possible, she aims to release thousands of people with overly long prison sentences who’ve shown signs of rehabilitation.

In a CNN op-ed, Klobuchar laid out her plan to set up a bipartisan clemency advisory board that would give recommendations on who deserves a presidential pardon or commutation. The board would include people who advocate for criminal justice reform, as well as victim advocates and law enforcement.

“A diverse, bipartisan clemency advisory board — one that includes victim advocates as well as prison and sentencing reform advocates — could look at this from a different perspective,” she wrote. “And a criminal justice reform advocate in the White House will ensure that someone is advising the president on criminal justice reform.”

The big advantage to the idea is it’s something Klobuchar, or anyone else in the Oval Office, could do on her own. “No matter where the Senate or House goes, clemency is a great area for a president to use for criminal justice reform,” Rachel Barkow, a New York University law professor and expert on clemency, told me.

The hope is this would significantly speed up and balance the clemency process. Today, clemency applications have to get through seven steps, and they largely work through the US Department of Justice. Under Klobuchar’s proposal, reformers would have a voice, and the process could come down to as little as two steps: the board, then the president.

Other presidential candidates have mentioned the president’s clemency powers, like Sen. Cory Booker (D-NJ) saying he would “absolutely” consider mass pardons or commutations for marijuana offenses, and Sen. Kamala Harris (D-CA) saying she would pardon low-level drug offenders.

What Klobuchar is promising, though, goes way further. Instead of leaving the use of these powers to the whim of several federal agencies and the president, her plan would create a structure that could benefit thousands, if not tens of thousands, of people in prison today.

The current clemency process is a mess

Mark Osler, a former federal prosecutor who’s now a legal scholar and law professor at the University of St. Thomas in St. Paul, Minnesota, describes the current clemency process as a bit of a mess.

Today, a clemency application has to make it through seven major steps: a staffer at the Office of the Pardon Attorney (in the Justice Department), then the pardon attorney, then a staffer for the deputy attorney general, then the deputy attorney general, then a staffer at the White House Counsel’s Office, then the White House counsel, and then, finally, the president. A petition typically must clear all these steps for someone to get a pardon or commutation (although, as Trump has shown, the president can act unilaterally).

“The problem with the system we’ve got now is it’s vertical,” Osler said. “You got one person making a decision, passing it on to the next person who makes a decision, passing it on to another person who makes a decision. And there’s seven levels of review like that.”

Klobuchar’s proposal would set up an advisory board that would talk through clemency petitions together. The board could make a recommendation to the president, who could accept or deny the proposal. (Klobuchar’s staff told me she would likely agree to the vast majority of the recommendations, since they would be heavily vetted by the advisory board.)

The main goal would be to allow prison inmates, particularly those serving long sentences for nonviolent drug crimes, an early reprieve. At the state level, the majority of people held in prison are violent offenders. But at the federal level — where around 12 percent of the US prison population is — almost half of people in prison are in for drug crimes. A board would predominantly target those drug offenders who have proven rehabilitation in prison, though it could also include some people who committed more serious crimes if they prove to be rehabilitated, Klobuchar’s staff said.

Currently, most of the steps for a clemency petition before it reaches the president involve the Department of Justice, whose prosecutors secured people’s sentences in the first place.

“It’s hard to imagine a stronger conflict of interest than leaving the idea of clemency to the people who had asked for the sentences in the first place,” Osler, who supports Klobuchar’s presidential bid, said. “And I say that as someone who was a prosecutor. … What does it feel like to me to have someone tell me that I put someone in prison for too long? I’m going to be defensive about that, probably.”

Klobuchar has not decided on how exactly the board would be structured, her staff said. But the idea would be to ensure that different voices are represented — actual reformers, former prison inmates, crime victim advocates, and law enforcement. Osler and Barkow, who have worked together for years on clemency, argue this is the right way to go.

The board would also aim to be bipartisan. This is important, Osler and Barkow said, not just because it brings different perspectives to the table but also because it could give political cover to what can be some fairly controversial decisions.

Osler pointed to a previous bipartisan advisory board as proof that this can work: After the Vietnam War, then-President Gerald Ford set up a board to grant clemency to thousands of people who dodged the draft — not exactly the most popular individuals at the time. It was an intensive process, using computerized data — innovative at the time — and hundreds of attorneys.

“The funny thing is people don’t remember it,” Osler said. “And that’s because, politically, it was managed pretty well.”

One recommendation, made by Barkow: The board should closely cover outcomes. Citing research that longer prison sentences lead to higher recidivism rates, she argued that people who receive clemency will likely have lower reoffending rates than those who don’t. That could provide a defense from bad media and publicity if someone given clemency gets out and commits another crime, but it’s only possible if the board does a good job tracking data.

This is one thing the president can do unilaterally

The board’s biggest advantage, though, is it’s something President Klobuchar could do all on her own.

For years, Congress has been working on criminal justice reform issues. That culminated in late 2018 with the First Step Act, which Congress approved and President Trump signed into law. But it’s unclear if Congress will take a next step in the coming years. After all, the First Step Act, as mild as most of its reforms were, took years of activism and on-the-ground work by dozens of senators; a further-reaching second step will likely take even more.

A clemency advisory board could be set up entirely by Klobuchar or any other president. Klobuchar’s staff told me it may require some funding, but that could likely be pulled from administrative budgets that wouldn’t require congressional approval. One hiccup may be what to do with the existing Office of the Pardon Attorney — because that could require congressional approval — but an advisory board could work even if the Office of the Pardon Attorney remains in place.

For all this, the board could have a fairly broad impact, not just for people currently in prison but for future defendants as well.

“Clemency is a way that the president can signal to prosecutors where she is at,” Osler said. “When President Obama started to grant clemency to narcotics traffickers serving very long sentences, it sent a signal to prosecutors that this is not what we want to do.” He added, “While clemency doesn’t directly affect, for example, statutes, it is important signaling to how prosecutors use their discretion. And how prosecutors use their discretion is kind of the whole ball game.”

But as Osler acknowledged, there are limits. Clemency reform wouldn’t totally end long prison sentences written into law, including mandatory minimums for drug offenses. It couldn’t improve conditions in prisons. It couldn’t put more spending on education and rehabilitation programs in prison. It also likely couldn’t fully overcome political constraints on releasing people from prison, especially since the president will make the final decision.

And just like a president can unilaterally set up an advisory board, a future president could unilaterally dismantle it.

The board also couldn’t address local and state criminal justice systems, since the president can only grant clemency for federal crimes. But the local and state levels are a huge part of the US prison system, with state facilities holding more than 87 percent of prison inmates. To put this into context: If President Klobuchar pardoned every person in federal prison today, it would push down America’s overall incarcerated population from about 2.1 million to about 1.9 million — leaving the US with a higher prison population rate than every nation but El Salvador.

In her CNN op-ed, Klobuchar acknowledges some of the limitations, calling for reforms that Congress would need to approve. One idea, her staff told me, would create financial incentives for states that reform their criminal justice systems, and penalties for states that don’t. Klobuchar’s staff acknowledged that similar financial incentives haven’t worked well in the past, but they hope that adding a penalty — say, the potential loss of major grants for states that don’t implement reforms — could be more effective.

Short of that kind of legislation passing through Congress, though, clemency reform could help chip away at mass incarceration without the approval of any senator or representative.

Longer prison sentences don’t work to prevent crime

So why is reversing mass incarceration necessary? Simply put: The research suggests it’s not making America any safer, while costing a lot both socially and economically.

For one, the research and experts suggest more incarceration only plays a small role in fighting crime. A 2015 research review by the Brennan Center for Justice estimated that more incarceration — and its abilities to incapacitate or deter criminals — explained about 0 to 7 percent of the crime drop since the 1990s, although other researchers estimate it drove 10 to 25 percent of the crime drop since the ’90s.

But there’s a case that longer prison sentences in particular — the kinds of sentences that would be reduced by a clemency advisory board — are particularly ineffective and maybe even counterproductive.

The core point here is what’s known as the age-crime curve. It shows that people tend to age out of crime. In their mid-to-late teens and early 20s, people are much, much likelier to commit a crime than they are in their 30s and especially 40s and on.

Here’s the age-crime curve for robbery in 2014, taken from Marc Mauer and Ashley Nellis’s The Meaning of Life: The Case for Abolishing Life Sentences:

A chart showing the age-crime curve. Marc Mauer and Ashley Nellis/The Meaning of Life: The Case for Abolishing Life Sentences

As the chart makes clear, a person’s propensity to commit a crime — in this case, a robbery — is at its highest around 20 years old. But it drops quickly after that. In his 30s, a person’s chances of committing a robbery drop to 25 percent of what they were at 20. In his 40s, the chances drop to less than 12.5 percent. In his 60s, the risk nearly vanishes.

There are exceptions, like lifelong serial killers. But they’re few and far between.

Virtually no one in criminology disputes the age-crime curve. Nancy La Vigne, the vice president of justice policy at the Urban Institute, previously told me it’s “pretty well established in the literature.”

This shouldn’t come as a surprise to most people, particularly those already in their 30s, 40s, or above. Think about how likely you were as a teen to break the law, with underage drinking, using illegal drugs, shoplifting, getting into fights, and so on. Now think about how likely you are to do that today, assuming you’re older. Regardless of whether you got caught in your teen years, you are likely an embodiment of the age-crime curve.

Other evidence suggests long prison sentences are ineffective. In 2017, David Roodman of the Open Philanthropy Project conducted an extensive review of the research on longer prison sentences. He concluded that “tougher sentences hardly deter crime, and that while imprisoning people temporarily stops them from committing crime outside prison walls, it also tends to increase their criminality after release. As a result, ‘tough-on-crime’ initiatives can reduce crime in the short run but cause offsetting harm in the long run.”

In short, longer prison sentences can actually make people more likely to commit crimes in the long term.

At the same time, locking people up for long periods of time is very costly. There’s the actual financial cost of putting people in prison, which the Prison Policy Initiative estimated at $182 billion for the US in 2017. There’s also the social cost of people being ripped away from their families and communities; as one example, the New York Times calculated in 2015 that for every 100 black women not in jail or prison in America, there are only 83 black men — what amounts to 1.5 million “missing” men who can’t be there for their kids, family, or community while incarcerated.

Klobuchar is trying to show she’s a criminal justice reformer

For Klobuchar, clemency reform is one way to show she’s serious about reforming the criminal justice system — addressing one of the major criticisms of her campaign so far.

Although she supported the First Step Act and other reforms in recent years, she’s been criticized for work earlier in her career as the top prosecutor for Hennepin County, Minnesota. As prosecutor in the late 1990s and 2000s, she ran what local newspapers at the time dubbed a “tough-on-crime platform,” and she pursued tougher prison sentences for even “‘small’ crimes,” including nonviolent offenses.

In doing so, Klobuchar fit the mold of the prosecutor back then. With crime rates starting to come down only in the 1990s after decades of murder and violent crime waves, Democrats and Republicans competed to see who could be “tougher” on crime — and both parties as a result took part in escalating the war on drugs and mass incarceration. As just one example, President Bill Clinton signed a 1994 crime law, which was partly written by then-Sen. Joe Biden, that encouraged prison construction and imposed longer prison sentences.

But in recent years, particularly with the emergence of movements like Black Lives Matter, criminal justice reform has become more accepted and expected in the Democratic Party — and so records like Klobuchar’s have started to haunt candidates trying to get the presidential nomination.

With clemency reform, Klobuchar is trying to show that she’s changed with the times.

“It is actually a very effective litmus test for a presidential candidate and how seriously they are taking criminal justice reform,” Barkow said, “because this is something they can do on day one and make a difference.”

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