The Forgotten Tradition of Clemency
The governor, attorney general, and chief justice of the state supreme court sat atop a wide dais at the front of the Minnesota Senate hearing room on a warm day in June of 2019. One by one, petitioners for clemency—almost always without a lawyer—came to the podium and made their pitch for a pardon, which would erase many effects of their criminal convictions. One man with a long-ago, minor drug offense told the three officials, who comprise the Board of Pardons, about his 16 years of sobriety and desire to hunt with his son. An immigrant from Laos was supported by his wife, who had been the victim of his crime. Another man sought a pardon so he could adopt a stray dog. When each petitioner finished, the board discussed the case and voted as the petitioner listened intently.
It was the rawest, most transparent, and utterly thrilling legal process I had ever witnessed. It was also, on that day, frustratingly unproductive. A unanimous vote was required to receive clemency, and that did not happen in most of the cases, including some that seemed to me meritorious. Only five out of the 16 Minnesotans presenting a case got a pardon.
One of the vetoed cases was brought by Timothy Morin. When he was 18, in 2004, Morin was part of a plan to steal from a group of teens during a drug deal. Meanwhile, that larger group of teens themselves was planning to attack Morin and his collaborator. According to news reports, a fight broke out, and Morin shot and killed one of the young men. Morin gave up a possible self-defense claim, pleaded guilty to conspiracy to commit aggravated robbery, served his sentence, and eventually straightened out. By the time of his clemency hearing in 2019, he was a business owner, a firefighter, an EMT, a husband, and a father. The parents of the teenager who died in the incident, Shawn Ferber, testified in favor of Morin’s petition. Morin brought his pastor and a local sheriff to support his bid as well. Yet, when the short hearing ended, he’d lost in a 2–1 vote and left dejected.
[Tim Naftali: Trump’s pardons make the unimaginable real]
Reforms to Minnesota’s clemency system followed four years later. They established a commission to conduct some of the hearings, in order to make the system more efficient and fair, and allow a petitioner to receive clemency with a majority vote, provided that the governor is in the majority. The core idea of clemency—the mercy granted to the person presenting themselves to the board—will have more room to breathe.
Minnesota is unusual in its scrutiny and reform of the clemency process. However, the lethargy engulfing clemency in the federal system and too many other states is a threat to an important part of the law. Clemency is the constitutional means to bring balance to criminal justice and has had that role in jurisprudence dating back to the Code of Hammurabi. Urging Americans to ratify a constitution that included the pardon clause, Alexander Hamilton argued that without it, “justice would wear a countenance too sanguinary and cruel.” Federal justice does wear such a countenance, as evidenced by the poorly managed federal prisons still full of those convicted of narcotics offenses. Parole was stripped from the federal system nearly four decades ago. The Framers of the Constitution intended clemency to humanize criminal justice. That is still an imperative.
Clemency hasn’t changed Tim Morin’s life, not yet, but it did change mine. In 2010, I moved from Waco, Texas, to Minnesota, about 1,070 miles straight up I-35. Waco had been good to me: I’d gotten tenure at Baylor University while teaching criminal law and was even the Wacoan of the Year in 2009. But like a lot of migrants, I had a dream of something new. At the University of St. Thomas in Minneapolis, I’d been promised that in addition to teaching my doctrinal classes, I could start a clinic and work with students in preparing clemency petitions for submission to the president. I’m an unlikely advocate for mercy. I began my criminal-law career with an enthusiastic five-year stint as a federal prosecutor in Detroit before turning to teaching. In fact, I recently returned to prosecution on a one-year leave of absence to serve as the deputy Hennepin County attorney in charge of the criminal division. Yet it captivates me, this power of kings that somehow got enshrined in a constitution directed at removing the power of kings. My criminal-justice career has shown me that the system has a lot of rough edges—particularly where unduly harsh sentences confine people who have changed—that were meant to be sanded down with the tool of clemency.
My plan for the federal clemency clinic was to work at it wholesale and retail. One of my first clinic students had been a truck driver for the Marines, and gave me the perfect metaphor for the wholesale side: “Sometimes we had to build the roads before we could drive down them.” That’s the work we threw ourselves into. We pushed the Obama administration to do more and argued for structural change. On the retail side, I sent the students out to prisons across the country to meet with our clients and learn their stories. We submitted dozens of petitions, and some of them were granted.
In the midst of all this, at a Harvard conference I ran into a Fordham University professor named John Pfaff, a fast-talking empiricist whose book, Locked In, rattled the easy assumptions that too many people had made about mass incarceration. When I told him about my federal efforts, he shrugged and said something like, “You live in Minnesota—you should check out what happens in state clemency. That’s where most of the action is.” He was right, and I began to look at what was happening at home.
I started to attend the pardon hearings in that state-Senate chamber, sitting in the back, taking notes. Quickly, I ascertained the process problem with Minnesota’s system. There were two chokepoints: The first was the limited time of the three top officials comprising the Board of Pardons, allowing for only two sets of hearings a year, regardless of the number of petitions. The second was the requirement of unanimity, a problem that popped out with every 2–1 vote and petition denied on a filter applied by just one member of the board.
This May, after my students and I spent years pushing for a change, the Minnesota legislature reformed the process based on a proposal first developed by my clinic. The new law, quickly signed by the governor along with a raft of other criminal reforms, establishes support systems for victims and family members of victims who want to be heard, in addition to removing the unanimity requirement and creating the clemency commission. The hearings will still be as raw and transparent as ever without being bogged down by three top officials’ schedules.
Tim Morin, the firefighter who was denied a pardon in 2019, pushed the bill forward. He testified multiple times in favor of change, sometimes welling up with emotion as he described what it would mean to him. At a hearing before a key House committee, he had to stop and compose himself as he talked about wanting to coach his kids’ sports teams. It was a deeply human moment, and effective. He has reapplied for a pardon, and will have another chance to argue for mercy later this month.
His chances are good, too. On June 28, I went to watch the first hearings under the new rules, where a 2–1 vote that included Governor Tim Walz in the majority would result in a grant of a pardon. All 11 petitioners that morning received a grant and a clean slate. In the hallway afterward, there was crying and hugs, but of a very different inflection than the dejected crying and consoling hugs I saw in that same hallway in 2019.
Meanwhile, the federal process has become a certifiable disaster. There, clemency has withered to the point of uselessness and disrepute after decades of neglect, abuse, and administrative bloat. Petitions go through seven consecutive levels of review, wandering through the deeply conflicted Department of Justice—which sought the sentence in the first place—and the office of the White House Counsel. Not surprisingly, given this sticky muck of bureaucracy, a backlog of more than 16,000 pending petitions has built up—a striking number compared with the fewer than 2,000 pending petitions at the start of Barack Obama’s first term as president or the 452 petitions that President Bill Clinton inherited.
Obama granted more than 1,700 commutations, which, unlike a pardon, shorten a sentence while leaving the conviction standing. But he accomplished this by cranking the broken system hard; he never changed the process. The news since then has been depressing. Donald Trump used clemency largely to reward tough guys, fraudsters, and others he knew or admired, and only a couple hundred of them at that. Joe Biden is the most lackluster user of the pardon power in memory. He has done little beyond granting commutations to people who are already out of prison and pardons to minor marijuana offenders. He has yet to even deny any petitioners by presidential action. An enormous backlog of petitions languishes, ignored.
Minnesotans could convince Biden that a better way exists. On June 22, a week before that most recent session in the Minnesota Senate hearing room, Governor Walz met at the White House with the president to discuss the legislative victories Democrats enjoyed in Minnesota this year. Perhaps next time, Governor Walz can bring along a newly pardoned Morin, and explain how fixing a clemency process can allow a flow of well-earned sweet freedom, as Alexander Hamilton intended.