Updated on January 14, 2021
Selective Mercy – Clemency and the Holiday Season
Michael is a 3L at the University of Kansas School of Law. He earned his undergraduate degree in philosophy and political science from the University of Kansas and a master’s degree in international relations from the London School of Economics and Political Science. Outside of law school, Michael enjoys hammocking, hiking, and hanging out with dogs.
President Trump’s recent pardons of Roger Stone, Paul Manafort, Charles Kushner, and four former military contractors drew headlines, but the President is not the only executive wielding pardon power. In December 2020, multiple Governors granted clemency in the lead up to the holiday season. For example, Missouri’s Governor Parson pardoned 24 individuals and commuted four sentences and Michigan’s Governor Whitmer commuted four sentences of individuals convicted of nonviolent drug crimes.
One of these individuals was Michael Thompson, “Michigan’s longest-serving nonviolent offender” who had recently shown symptoms of COVID-19. He was sentenced to 42-62 years “after he was convicted of selling three pounds of marijuana to an undercover informant.” Governor Whitmer’s commutations follow a recognizable pattern of granting clemency to non-violent drug offenders with severe sentences. Currently, a disproportionate number of Black and Latino prisoners are serving time as drug offenders. This has led some to suggest that the pardon power should be used more vigorously to remediate unjust sentencing.
As Thompson’s case shows, this imperative is heightened during the COVID-19 pandemic. The ACLU of Kansas has implemented a project in this vein. It “began filing clemency applications for early release on behalf of individuals incarcerated in the Kansas Department of Corrections’ overcrowded and ill-equipped facilities amidst the COVID-19 pandemic.” It filed 97 clemency applications by the end of December, but zero of applications have received a decision. This should not surprising because Kansas rarely grants pardons.
Perhaps is time for executives to begin taking the pardon power more seriously. If this occurs, each executive must make their own moral calculation to determine types of crimes and persons they believe have experienced a miscarriage of justice.
 Maggie Haberman & Michael S. Schmidt, Trump Gives Clemency to More Allies, Including Manafort, Stone and Charles Kushner, N.Y. Times (Dec. 23, 2020), https://www.nytimes.com/2020/12/23/us/politics/trump-pardon-manafort-stone.html; Michael Safi, Trump Pardons Blackwater Contractors Jailed for Massacre of Iraq Civilians, The Guardian (Dec. 23, 2020, 4:32 AM), https://www.theguardian.com/world/2020/dec/23/trump-pardons-blackwater-contractors-jailed-for-massacre-of-iraq-civilians.
 Jaclyn Driscoll, Missouri Governor Releases Names of 24 Inmates Pardoned, St. Louis Pub. Radio (Dec. 23, 2020, 4:58 PM), https://news.stlpublicradio.org/government-politics-issues/2020-12-23/missouri-governor-releases-names-of-24-inmates-pardoned; Beth LeBlanc, Whitmer Grants Clemency to 4, Including State’s ‘Longest Serving Non-Violent Offender’, The Det. News (Dec. 22, 2020, 2:43 PM), https://www.detroitnews.com/story/news/local/michigan/2020/12/22/whitmer-commutes-sentences-4-serving-time-drug-crimes/4012766001/.
 LeBlanc, supra note 2.
 Isis Simpson-Mersha, Man Who Served 20 Years in Marijuana Case has Sentenced Commuted by Governor, mlive.com (Dec. 23, 2020), https://www.mlive.com/news/flint/2020/12/man-who-served-20-years-in-marijuana-case-has-sentenced-commuted-by-governor.html.
 See Tara O’Neill Hayes & Margaret Barnhorst, Incarceration and Poverty in the United States, Am. Action F. (June 30, 2020), https://www.americanactionforum.org/research/incarceration-and-poverty-in-the-united-states/ (“Of people in prison for drug offenses, nearly 80 percent in federal prison and 60 percent in state prisons are Black or Latino, despite historical data showing that, on average, Whites are just as, if not more, likely to use illicit drugs.”).
 See, e.g., Maddy Gates, Rethinking the Use of the Clemency Power, Harv. C.R.– C.L. L. Rev. (Feb. 12, 2020), https://harvardcrcl.org/rethinking-the-use-of-the-clemency-power/.
 See Clemency Project, ACLU of Kansas, https://www.aclukansas.org/en/campaigns/clemency-project#:~:text=Starting%20May%202020%2C%20the%20ACLU,amidst%20the%20COVID%2D19%20pandemic (last visited Jan. 14, 2021).
 See 50-State Comparison: Pardon Policy & Practice, Restoration of Rts. Project (May 2020), https://ccresourcecenter.org/state-restoration-profiles/50-state-comparisoncharacteristics-of-pardon-authorities-2/ (outlining each state’s pardon policy).