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Polis Grants Clemency

Copyright © 2024 by Ari Armstrong
January 3, 2024

In a perfect world, executive leaders never would need to use their clemency powers. In our world, judges within the criminal legal system often sentence people to prison for unjustly long periods of time, and sometimes sentence people to prison for no good reason whatsoever. Of course, the power of clemency opens up the possibility of executive leaders excusing people of their crimes, as Trump pardoned political supporters and people convicted of war crimes. On the whole, though, clemency serves as an important safety-valve.

Jesse Paul and Sandra Fish have the details on Jared Polis's recent clemency actions.

Based on the information provided by Paul and Fish, Polis's decisions seem pretty good.

Here is one of the cases:

Gordon L. Johnston, 47, who was sentenced to 64 years in prison after being convicted in 2012 on three drug charges. He will be granted parole Jan. 15, 2026. His original estimated parole date was 2039.

I was curious about this, so I found an article by Allison Sherry with more detail. Consider some of the details:

By 1999, he [Johnston] had been arrested for a third felony, a crack possession charge. He went to prison for a few years, and by 2006 he had successfully completed parole in Missouri. He moved to Colorado. . . .

But he fell on hard times again. . . . Johnston went back to selling drugs—this time it was ecstasy.

He was eventually arrested again and when he was in Arapahoe County court in May 2011, prosecutors offered him a plea bargain of 4 to 8 years in prison, if he waived his preliminary hearing. Johnston agreed to that and his attorneys filed a motion seeking the identity of a confidential informant. Ultimately, another prosecutor withdrew that original offer and instead pushed towards a trial and added a habitual sentence enhancer, according to his petition for clemency.

In 2010, Johnston was sentenced to 64 years in prison for the nonviolent offense—that enhancer added by prosecutors, plus the fact he went to trial, meant a mandatory sentence of four times the maximum prison term that otherwise could have been imposed, his lawyer said.

This case well-illustrates the deep moral rot within today's criminal legal system. No decent person can deny that a 64-year prison sentence for a nonviolent offense is grotesque overpunishment (even presuming for the moment that any punishment at all is warranted for such an "offense") and a blatant violation of the Constitution's prohibition of "cruel and unusual punishments." This is not an ambiguous case. The prosecutors who promoted that sentence, and the judge who allowed it, are moral degenerates who very obviously violated their oaths to uphold the Constitution. And any judge who lets pass an obviously unjust "mandatory minimum" sentence imposed by a legislature, in disregard of the Bill of Rights, is a moral coward unworthy of the bench.

Pause on the detail that the minimum sentence at play was 4 years and the imposed sentence was 64 years—sixteen times longer. This illustrates the near-total arbitrariness of criminal sentencing. Far too often, calling the status quo a "justice" system is a farce.

My only question for Polis is how come he did not release Johnston from prison previously or at least immediately.

Here is another case that is not as obvious, but clemency still seems justifiable:

David R. Carrillo, 49, was part of a group of teens convicted in the fatal June 28, 1993, shooting of 17-year-old Chris Romo in Pueblo. Carrillo, who was 19 at the time of the shooting, didn’t pull the trigger, but he was sentenced to life in prison without the possibility of parole for his role in the killing, which authorities said was gang-related. . . .

Polis pointed out how all of the others convicted in the murder have been released from prison, including the shooter, Carrillo's younger brother, Anthony, who received parole in 2019 after serving 25 years behind bars. Carrillo was one of two charged in the case who didn't take a plea deal and went to trial, according to The Pueblo Chieftain.

Murder is the most serious crime. Still, Carrillo was only 19 at the time, when male brains aren't even fully developed. And apparently he has fully reformed.

Here is another non-obvious case: "Bradley A. Erickson, 45, who was sentenced to 44 years in prison after being convicted in 2013 of theft. He will be eligible for parole in 2025 instead of 2028."

In this case, George Brauchler plausibly argues that Polis made a mistake:

Bradley Erickson is a career criminal who brazenly perpetrated dozens of burglaries throughout the metro area, many of which occurred during the day time. Before his Polis-shortened prison sentence, Erickson had been incarcerated previously—for a burglary case. He was paroled. And then committed another burglary. Back to prison. Paroled again. Then, he perpetrated acts of domestic violence and stole a car. Erickson was incarcerated again for possessing a weapon as a previously convicted felon. And he was convicted of escape. Each of these convictions took place before he was charged with 77 felony counts listing 33 separate victims for his dozens of metro area burglaries.

That is a serious list of crimes. One can reasonably wonder whether Erickson, upon release, will just go on committing more crimes. But there seems to be some confusion surrounding the nature of the clemency. Paul and Fish suggest that the sentence was reduced by just a few years; Brauchler says Polis's action involved a "reduction of [Erickson's] sentence by 75%."

Brauchler is considering the maximum possible sentence, not the minimum possible sentence absent clemency. In his letter to Erickson, Polis notes, "As of the date of this letter, you have served over 10 years of your 44-year sentence." It's unclear to me, absent clemency, how long Erickson actually would have spent in prison.

When considering clemency, we're going to come across some cases that are clearly unjustified, some that are clearly justified, and some that are rationally arguable. And the boundaries can be fuzzy. Moreover, even if clemency clearly is warranted, the executive actor still faces the risk that the person released might commit some crime. Still, if it's warranted, it's warranted, and the executive in question should act. If the standard were complete certainty that no one ever would commit another crime, then the only possible sentence would be life in prison without parole—absurd.

Brauchler, hardly a softie on crime, has some nice things to say about Polis:

I applaud Polis' willingness to use his constitutional powers in this area throughout his time in office, instead of waiting until the end of his term, when the political ramifications for such a decision are diminimus. That takes guts we have not seen from governors throughout the U.S.

Overpunishment is unjust. Kudos to Polis for recognizing that.

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