During my five years as a federal prosecutor, I sent a lot of people to prison. Many of them needed to be in prison, for our safety and to give them a chance to be better. Some did not. Once they were sentenced, though, I did not think much about them. Like the rest of society, the prison door slamming shut marked a breaking point: They were no longer a part of society. There was nothing, really, to worry about.
Since then, some good people have challenged my thinking. There has been a broad reexamination of how we use prisons led by people from the left and right alike. The First Step Act, signed by President Trump last December, was promoted by an unlikely cast including 17 Republican and 16 Democratic co-sponsors in the Senate and both the Charles Koch Foundation and the NAACP (among dozens of others). In a divided political world, it was an unusual and welcome moment.
A part of the First Step Act that appealed to both sides was an innovative component that enhanced and incentivized participation in re-entry programs. And that focus does something important: It breaches the wall between us and prisoners and makes us consider the fact that nearly all of those in prison will return to our communities. It forces us — as we should — to look beyond the slamming of that prison door. Opposition to such programs has traditionally been rooted in a sense of retribution; that is, we will deny whatever we can to those who have committed crimes. That mindset, though, has created terrible recidivism as people emerge from prison into a world where it’s challenging to the point of desperation to find a job or a place to live once employers and landlords learn of one’s criminal record.
I receive mail from prisoners all over the country. I answer most of it and sometimes begin a continuing correspondence with a few prisoners. One of those has been Luke Keller, who is incarcerated at Sandstone Federal Correctional Institution, which is in the piney woods between Minneapolis and Duluth. In a letter to him about something else, I off-handedly suggested that I would be happy to come up to the prison and discuss clemency. A few days later, I heard from prison officials who thought this was a good idea. I walked through those prison doors last week.
Over the years, I have talked about clemency at Harvard, Yale, Penn, Stanford, the halls of Congress, the White House and a lot of other places from Alaska to Atlanta. But never, till now, had I given a talk about clemency in a prison. And that is something I regret — it really is the one place I should have been giving such talks all along. Clemency is about people who are or have been incarcerated, after all — and those are the people who have a real need for the information I have about how the system works, who gets fair consideration and when the window might open. I have been going into prisons and jails for some 23 years now for one reason or another, going back to my days as a prosecutor. Never before, though, had I gone into a prison to teach.
They capped attendance for my talk at 100, since that was all the room there was in the chapel. A lot of the people in the room were older men serving very long sentences who have longer to go. Their behavior in prison, their movement toward rehabilitation, had been exceptional enough to earn them a spot in this low-security facility.
The longest of shots
The hardest thing to tell them: Clemency is a very long shot. For some of them it is no shot at all. To get it, you must genuinely accept responsibility for the crime you were convicted of, and it is important to have a life trajectory toward the good, something that is very hard to fake. There really is (unless you’re on Fox News) no short cut or trick or chance occurrence that is going to save any of them; these things are almost exclusively reserved for the rich and famous.
I saw, too, for the first time the true cruelty of how clemency is being used. Men saw their only hope as being to somehow reach reality star Kim Kardashian, who successfully implored the president to release Alice Johnson. That, I told them, is a sample size of one, held up against the 13,000-plus pending petitions on which there seems no movement. Celebrities won’t save them — only their own truths (if worthy), a better system and the will within a president to do right will offer them that chance.
There were men in the audience that I knew, though I didn’t know I would find them in that prison. Federal prisoners are frequently shuffled around the country between institutions. Some of them were people I had corresponded with; a few have kids who are students at my school. Many told me their stories. There was Stephen Spears, whose case I had taken to the Supreme Court with the help of then-Baylor Law student Dustin Benham (now a professor at Texas Tech). Spears and I had never met; my heart stopped when he introduced himself. I was supposed to be there for an hour for the lecture, but my time turned into two and a half hours pretty quickly.
I left with a sadness I can’t shake. The Framers of the Constitution intended clemency to be a sharp, shiny tool in the president’s hand, wielded with conscience and precision in the service of mercy. Instead, it has become a clumsy club clutched tightly by the Department of Justice and segment producers at Fox News. Something elegant and soulful has been made ugly and cloddish. It is a small part of the world but an important one, and it is the one that I know.
Someone I respect very much — a former prisoner himself — told me to feed the hungry, heal the sick, clothe the poor and visit those in prison. Slowly, slowly, I am coming to understand what that means.