Roy Cooper may become the first North Carolina governor in more than 40 years to complete a term without granting clemency to a single person, which includes sentence commutations and pardons of forgiveness or innocence.
Three faculty at the Duke Law Center for Criminal Justice and Professional Responsibility wrote a strong editorial this week calling on Cooper to change course. They also criticized his office for recently stopping the release of updated information on who and how many people are seeking clemency.
While at NC Policy Watch, the Governor's Office denied then reporter Melissa Boughton (the Duke Center for Science and Justice's current Senior Communications Specialist) a public records request seeking all applications and requests for commutations and pardons made over the past three and a half years. They also denied requests for clemency and pardon denial letters and copies of any policies, procedures or guidelines that outline the Administration's process in reviewing and approving or denying clemency and pardon requests.
"The law and the courts have held that clemency records are not public records," Cooper's press office wrote in an email earlier this month. "If a requester chooses to disclose that he or she has filed a clemency request, we can confirm that a specific request for commutation or pardon is pending with our office."
The press office did not cite a public records law exemption, and instead said their decision "rests on the holding in the case of News & Observer Publishing Company v. Easley, 182 N.C. App. 14, 641 S.E. 2d 698 (2007)."
Pending clemency and pardon applications are still listed the governor's website, but the information hasn't been updated in about two years. Lau said Wednesday the Governor's refusal to provide the names of those seeking clemency is contrary to the practice of prior governors and bad public policy.
"It is an effort to avoid accountability for failing to exercise his authority to pardon innocent individuals who have had their convictions vacated by the courts and other deserving individuals who have demonstrated rehabilitation or where subjected to excessive sentences," he said. "It also denies the public of an opportunity to provide input on clemency candidates, which prevents the Governor from having full information about individuals under consideration."
Lau, along with Theresa Newman, and James E. Coleman Jr., make a strong case for the release of information in their editorial.
This is a step backwards from transparency. It is also bad policy from a governor who claims he wants to eliminate racism in the criminal justice system.
Clemency represents the state’s opportunity to show mercy or to correct past injustices. The 30,000 incarcerated people in North Carolina include many individuals worthy of consideration, including Ronnie Long. Long is a client of Duke Law School’s Wrongful Convictions Clinic, which we direct. He is a Black man who has served 44 years in prison after being convicted of raping a white woman by an all-white jury in a trial that involved significant misconduct. Long has always maintained his innocence and refused pre-trial plea offers that would have had him home in a few years.
Long is just one example. Since January, we have worked with partner organizations to identify incarcerated people who clearly demonstrate rehabilitation. We interviewed people incarcerated who admit their guilt, are remorseful, and have spent decades trying to improve themselves and atone for past wrongdoings. Some have degrees and technical certificates, and many hold jobs outside prison that put them in contact with the community. Many have had no disciplinary infractions during their incarceration. In short, these people were worthy of the governor’s consideration even before the pandemic created an urgency to reduce prison populations to protect against the spread of COVID-19.
The governor also has the power to grant pardons of innocence to those who were wrongly convicted. These North Carolinians spent time in prison before a court overturned their convictions. Now they need a gubernatorial pardon to achieve full freedom. Without that, their arrests and years in prison remain barriers to finding employment and housing.
This worthy pool of candidates deserves Governor Cooper’s attention. And his decision-making process also deserves more sunlight.
First, the public deserves to know who is seeking clemency. We cannot know if the governor is carrying out the will of the people if he hides from view information that every governor in recent memory made public. Also, failure to release these names robs the public of the ability to provide comments on candidates under consideration for clemency. Public notice is the only way to ensure that the governor has all available information when making these decisions, including information from members of the public, not just law enforcement officers and prosecutors (who often haven’t interacted with the offenders in decades and aren’t aware of their rehabilitation or worthiness for clemency).
Finally, as the governor has repeatedly acknowledged in recent weeks, racial disparities in our state’s criminal justice system constitute a festering wound. The governor’s failure to grant clemency to deserving applicants, many of whom are racial minorities, calls his sincerity into question. In North Carolina, Black people make up approximately 55 percent of the incarcerated population, despite comprising only 22 percent of the state’s total population. The governor could take steps to address this disparity now, and not wait for recommendations from his new task force, which are not due until December 1, 2020, after the November election.
Actions speak louder than words. If the governor is serious about addressing problems in the criminal justice system, including past racism against people of color, he should not take the state backwards by hiding the clemency process from the public. Instead, he should invite clemency requests, expedite reviews, welcome public feedback and pardon or commute the sentences of worthy individuals.