Cynthia W. Roseberry, Acting Director, ACLU Justice Divison 

Yesterday, Oregon Gov. Kate Brown commuted the state’s entire death row. The death penalty in Oregon, as around the country, is unjust, unfair, and racially biased. Gov. Brown joins a bipartisan group of past and current governors who have used their clemency power to address systemic injustice.

“[T]he death penalty is immoral,” Gov. Brown said in her announcement. “It is an irreversible punishment that does not allow for correction; is wasteful of taxpayer dollars; does not make communities safer; and cannot be and never has been administered fairly and equitably.”

The death penalty is a stain on American democracy and represents the worst excesses of the American legal system. Capital punishment normalizes harsh sentences, perpetuates racial disparities, and wastes enormous financial resources on a punishment that is inhumane and fails to prevent violence and harm.

Until the death penalty is abolished, clemency is a powerful gubernatorial tool to correct injustice. The commutation of a state’s entire death row is emblematic of how powerful a governor’s use of clemency can be, and follows other significant clemency actions taken this year.

In October, President Biden pardoned thousands of people with federal convictions for marijuana possession. He called on governors to follow his lead.

Just before Thanksgiving, Oregon Gov. Brown did just that. She issued pardons for more than 47,000 Oregonians with marijuana possession convictions under an outdated state law. In addition to sealing their criminal records, the governor will forgive $14 million in related fines and fees.

ASSOCIATED PRESS

President Biden and Gov. Brown are setting an example of using categorical clemency: instead of granting clemency on a case-by-case basis, they have granted clemency to a large group of people who fit certain criteria. The ACLU has long called for a categorical approach to clemency as it allows executives to address the harms of mass incarceration and the war on drugs at scale.

At the ACLU, we launched a nationwide campaign in 2020 to liberate 50,000 people from federal and state prisons by urging executives to use their existing clemency powers for justice, and to reverse the harm of the war on drugs.

Executive clemency is a foundational principle of this nation. The U.S. Constitution grants the president clemency power, and as state executives, governors have long possessed this power as well. Clemency is a routine part of the office of the president and the governor. Not only is it routine, it’s morally right and politically popular — most voters support clemency to correct injustices of the criminal legal system.

Since most of the 2.3 million people incarcerated in United States are in state prisons, clemency from governors will have the greatest impact and begin to unravel injustice in the criminal legal system.

In the case of marijuana pardons, clemency by governors should include commutations and expungements. States that legalized marijuana have already taken action to pardon or expunge marijuana convictions.

State-level pardons and expungements will begin to confront the harm of the war on drugs and begin to make amends for the lives that have been derailed or ruined by excessive sentences for marijuana and other drug convictions.

Although more than half of the states and the District of Columbia have legalized or decriminalized marijuana, police still make hundreds of thousands of arrests for marijuana possession annually, with Black people accounting for a quarter of all drug arrests (not just for marijuana).

Black people are 3.64 times more likely to be arrested than white people for marijuana offenses, even though Black and white people use marijuana at similar rates. These numbers don’t begin to quantify the true toll of these policies on individual lives, families, and communities. That toll is incalculable.

As a federal public defender, I witnessed the direct harm of marijuana prosecutions on hundreds of people and their loved ones. First, the arrest separates the person from their family, causing emotional harm. Next, bail exacts a financial toll on the family both because of the financial burden, and because of lost wages following the arrest. Lastly, the conviction creates lifelong obstacles to housing, employment, education, and more.

We must expect and demand more from our leaders, who have the power to begin to mend the damage caused by decades of misguided and harmful sentences and policies. And our leaders must use this power in a way that is inclusive, bold, and restores justice to people’s lives. This must include providing clemency regardless of citizenship status.

President Biden’s marijuana pardon applies to citizens and permanent residents. But as has been reported, thousands of our immigrant neighbors have been arrested and convicted over the years near the U.S.-Mexico border for marijuana possession under federal law. For immigrants, marijuana possession can result in deportation or family separation.

In 2016, the U.S. Sentencing Commission documented 1,967 arrests for federal marijuana possession at the border — accounting for 91.5 percent of all federal marijuana possession arrests that year. Of those arrested at the border, 94 percent were “noncitizens.” That same year, 99 percent of those arrested for marijuana possession near the border had “little or no prior criminal history,” but almost all served a federal prison sentence.

The president can and should extend marijuana pardons to immigrants and work to ensure that those who receive pardons do not continue to suffer immigration consequences. Governors can provide leadership to the president and to each other by including immigrants in their clemency orders. Everyone — including immigrants — should have a true second chance.

Clemency exists because we get things wrong as a nation — our governments adopt ruinous policies and harm the people they govern. The death penalty is always racist, arbitrary, and wrong. The death penalty has normalized harsh sentences — which drive mass incarceration and disproportionately harm communities of color, especially Black communities. Clemency is one way our elected leaders can provide a modicum of delayed justice for thousands of people they are meant to serve and send a powerful message: no person is disposable.

As Gov. Brown has shown, executive clemency means choosing mercy over retribution, and redemption over damnation.

By Xavier Persad, ACLU Senior Policy Counsel, National Political Advocacy Department and Rotimi Adeoye, ACLU Communications Strategist 

In the days and weeks after the 2020 presidential election, outright lies peddled on the national stage about the validity and security of state-administered elections proliferated. Politicians and political commentators spread and amplified falsehood after falsehood, baselessly alleging that the election was stolen through widespread fraud simply because their candidate of choice lost. Despite the fact that these allegations were proven false time and time again, and rejected by scores of state and federal courts, growing segments of the population became adherents to this “Big Lie.” This culminated in the devastating and unprecedented January 6 attacks on our Capitol that attempted to prevent a duly-elected president from assuming office.

One of the lasting threats galvanized by the “Big Lie” is election denialism — baselessly casting doubt on or refusing to accept the outcome of free, fair, and secure elections. In the face of ample evidence of the legitimacy of the 2020 election outcome, election deniers continue to try to undermine faith in our electoral process and democracy through baseless allegations of election fraud for personal and political gain. Alarmingly, many extreme election deniers secured candidacies for key state and federal positions that would give them direct control or influence over election administration and policy.

It became clear as we approached the 2022 midterm elections that democracy itself — in addition to so many of our civil liberties — was at stake and on the ballot. Nearly 200 candidates on the ballot outright denied the 2020 presidential results through rhetoric or actions, and many more cast doubts on the 2020 election results. This included U.S. Senate candidates in Arizona and Nevada; U.S. House candidates in almost every state; gubernatorial candidates in Pennsylvania, Michigan, and Arizona; and secretary of state candidates in Arizona, Michigan, and Nevada, just to name a few.

Now, with most of the results of the midterm elections in, there is no doubt that the American people took firm stances against election denialism and voted to protect our democracy in the most vital races.

Election deniers that vied to be the next secretary of state — a position that involves directly overseeing state and local elections — lost their races in key battleground states, including in Arizona, Minnesota, and Nevada. The ACLU and our state affiliates made a substantial investment in educating voters about the vital role of secretaries of state and where candidates stood on protecting voting rights and democracy.

Two of the most fervent and vocal election deniers running for governor lost their races in Arizona and Pennsylvania. Pennsylvania is especially important because its governor appoints the secretary of state.

Although this election season was an important step towards restoring democracy, the fight is far from over. While some of the most extreme election deniers failed in vital competitive races, many election deniers were elected, particularly to the U.S. House of Representatives and statehouses around the country. As we turn our focus toward the 2024 elections and beyond, Congress must enact bipartisan reforms to the Electoral Count Act before this Congress ends to ensure that electoral votes tallied by Congress accurately reflect each state’s popular vote for president. And we must continue to fight for federal voting rights legislation to address voter suppression efforts, fully restore the Voting Rights Act of 1965, and expand access to the ballot.

American Civil Liberties Union

ACLU Comment on House Vote of the Electoral Count Act

Moreover, as state legislative sessions approach, we expect to see continued state-level efforts to interfere with free and fair elections and restrict access to the ballot box. We have seen this before: In 2021 alone, over 400 bills with voter suppression provisions were introduced in states around the country. These suppression efforts included restricting vote by mail, limiting early voting, making it more difficult to register to vote, implementing stricter voter ID requirements, enacting problematic voter purge rules, making it harder for voters with disabilities to cast a ballot, and threatening election officials and voters with new or increased criminal penalties.

Just this year, at least seven states enacted 10 laws to make voting more difficult by creating new hurdles to voting by mail (including limiting drop boxes and permanent absentee voting) and making it more difficult to register to vote (including through documentary proof of citizen requirements and limiting Election Day registration). Additionally, at least 12 laws that jeopardize the nonpartisan nature of elections or aim to intimidate election officials and voters with new civil or criminal penalties were enacted in 2022.

While we continue to fight back against attacks on voting rights and the integrity of our elections, we are doubling down on our proactive efforts to increase access to the ballot box and safeguard our democracy. In states such as New Mexico, we will build on progress made this session to push for comprehensive voting rights legislation that restores the voting rights of people convicted of felonies and makes it easier for Indigenous voters to exercise their right to vote.

In Connecticut, following the success of a ballot measure that removed a constitutional restriction on early in-person voting, the legislature has an opportunity to enact strong, accessible early in-person voting legislation. In Michigan, we will build on this midterm’s electoral successes by working to expand Election Day registration locations, automatic voter registration opportunities, and youth voting rights. We will also advocate for the adoption of the National Popular Vote Compact in states that have yet to enact it to move us closer to our ideal of one person, one vote in presidential elections, and we will advocate for the few remaining states that do not utilize voting machines with paper trails for all elections to do so.

Voting rights and protecting our democracy has always been a top priority for the ACLU. Our ACLU affiliates and our millions of supporters stand ready to continue this fight. We invite you to join us in upholding our democracy and ensuring that each and every voice — and vote — counts.