Michael Flournoy and his wife, at home. Photograph: Ali Smith/Ali Smith for The Guardian
The man who is eating in front of me has been out for just a few weeks before in early 2018. He has spent 21 years locked up and is still coming to terms with what freedom feels like. “For the first five years of my incarceration I remembered every day how it felt to be free,” he says. “But as time goes on that fades away.” He’s also catching up with just how much the world has changed. He’s amazed by autocorrect, he mentions while sending a text to his wife.
Clemency, a broad term which can mean either a sentence reduction or a pardon, is a way to correct wrongs in the criminal justice system. These could be errors in individual cases or systemic injustices, such as excessively harsh sentencing doled out under previous laws. It’s also a way to bring more compassion and efficiency into the justice system, by identifying people who have demonstrated they are rehabilitated and for whom incarceration no longer serves any purpose.
It’s not hard to see why Flournoy was granted clemency. “Prison,” he notes, “can be an incubator or a casket” – a place “where you learn to be a better criminal or a place where you transform your thinking, transform your behavior”. He chose the latter path, using his time inside to earn associate’s and bachelor’s degrees from Bard College, a master of arts from the New York Theological Seminary, and certification as an Aids/HIV counselor.
Max Kenner, the founder and executive director of the Bard Prison Initiative (BPI), a program that provides higher education to prisoners, explains that “nothing has been proven to go further in reducing recidivism than education, particularly college education”. Indeed, according to BPI statistics,
97.5% of their graduates who leave prison never go back.
Notably, one of the people who advocated for Flournoy’s release was Carolyn Jones, the shooting victim. The pair corresponded during Flournoy’s incarceration and Jones attended his graduation ceremony and helped with his clemency application, stating in it that she didn’t want to see him rot in prison and would rather he came “home to his family and put to use all the things that he has done with his education”.
Since Flournoy has come home he’s been doing just that – tutoring college students in writing at Brooklyn Public Library. He’s currently reading Mary Wollstonecraft’s A Vindication of the Rights of Women with his students. It’s funny, he says, how much the book speaks to contemporary times.
An underused tool to chip away at mass incarceration
America’s incarceration rate is going down for the first time in decades, but the US still has more people in prison than anywhere else in the developed world.
Recently, clemency has gained support among both conservatives and liberals as a tool to alleviate America’s incarceration problem. While it may seem incongruent that conservatives want to release prisoners early, the appeal is largely clemency’s cost-saving. Mass incarceration is expensive: a
recent report from the Prison Policy Initiative estimates it costs the US $182bn a year.
The major problem with clemency is that it is notoriously opaque and something of a lottery. As Kathrina Szymborski, a lawyer who helped Flournoy with his application pro bono, explains, clemency is often “perceived as being available arbitrarily, or only to those who are politically connected or have caught the attention of the media”.
Last August, however, Cuomo announced a
“first-in-the-nation partnership” between state and national legal organizations which significantly expanded access to pro bono lawyers for qualified clemency candidates. This, Szymborski says, was groundbreaking. An established system like this, “in which every potential applicant has a pro bono attorney, could finally give clemency some legs and allow it to be used as it should be: to advance mercy and fairness”.
But now, a year on from Cuomo’s announcement, it is starting to look like his supposedly groundbreaking initiative might have been an empty gesture – designed to score points with liberals, but not really to be implemented. Since the partnership was put in place, the governor has only
granted two sentence reductions: one to Flournoy and the other to Dominic Dupont, nephew of The Wire actor Michael K Williams.
Cuomo hasn’t granted any in 2018 so far.
As Szymborski acknowledges, “shortening sentences and releasing people from prison is perceived as politically risky”. The spectre of Willie Horton still haunts lawmakers. Horton, who was serving life for murder, raped a woman in 1986 after he was released for the weekend under a furlough program backed by then-Massachusetts governor Michael Dukakis. The furlough program had nothing to do with clemency, but “Willie Horton” became shorthand for “soft on crime”; the incident fatally wounded Dukakis’s presidential ambitions and cast a long shadow on future sentencing reform initiatives.
Releasing people from prison early is particularly risky when it comes to violent offenders. Most of the conversation around clemency – and enthusiasm for it – tends to focus on non-violent offenders, in particular people who are still in prison due to the inequitable, and racist, 100-1 crack-versus-cocaine sentencing disparities handed out during the heyday of the US “war on drugs”.
Obama, for example, granted 1,715 commutations (sentence reductions) during his presidency, mostly for nonviolent drug offenses. But the case for clemency grows more difficult when you talk about violent offenders.
What do you do when it comes to people who are unequivocally guilty of murder?
Should a confirmed killer get a second chance?
In 1997, when he was 17 years old, Michael Crawford shot a man point-blank. A group of older guys he sometimes hung out with stole concert tickets from him and he was trying to get them back. “It wasn’t like it was a planned-out assassination type thing,” Crawford, now 37, tells me over the phone from a correctional facility in upstate New York. “We had a standoff. I was just trying to get out of the situation.”
The only time he’d ever shot a gun before, he says, was into a phonebook, messing around. But that night, he closed his eyes, pulled the trigger, and the man in front of him, Akai Block, crumpled to the ground.
As a kid, Crawford’s favourite game used to be “playing church”. But when he was 13 his mother died and his life started going off-kilter. His dad wasn’t in the picture and he bounced around various houses, eventually being taken in by a local Christian pastor who repeatedly sexually abused him. (The pastor, Troy Brown, is now in prison for molesting multiple vulnerable young men.) Crawford fled the abuse and ended up on the streets.
After the shooting, Crawford panicked. He had no one to really turn to and was afraid to turn himself in, so he went on the run. “For money, I committed little crimes here and there,” he says. Some of those crimes weren’t so little. Once the police left him alone in a car while they searched a suspected drug house. The police had left the keys in the ignition, so Crawford, a skinny kid, crawled through the partition and drove off the car. “I got the idea from a movie, I think.
He got away with that but was finally arrested after trying to carjack someone outside a nightclub and getting into a high-speed chase. “That’s when everything else came up,” Crawford said. He was charged with the murder of Block a few months later.
Here he is talking about realizing what his action caused:
When the case eventually came to trial he was found guilty of felony murder and armed robbery. He was given a sentence of 22 years to life. Crawford was only 17 at the time of his crimes but was tried as an adult; his age wasn’t something the sentencing judge had to consider. If he committed the same crime today it is likely he would receive more lenient treatment.
“I had no idea what 22 years looked like,” Crawford says. “I had never seen that in experience.” The sentence was longer than the time he’d spent on earth.
Crawford has now been in prison for over 19 years. When he entered the system he was a high school drop-out. Now he has a GED and, like Flournoy, he has earned an associate’s degree and a bachelor’s degree through the Bard Prison Initiative and a master’s degree from the New York Theological Seminary. Funding for prison education programs was cut in the 1990s and it’s not that easy to get an education while incarcerated. Programs like Bard Prison Initiative are the exception, not the rule, and Crawford had to transfer to a different facility five hours away in order to take part.
As well as pursuing educational opportunities, Crawford is a certified HIV/AIDS peer counselor, a sighted guide for blind prisoners, and coaches other inmates on anger management. And he crochets: Crawford is part of Needle Wizards, a group that knits clothes and teddy bears for cancer patients and homeless shelters. “Being in prison, you have a fraction of society who feel you should be ostracized and nothing good can come out of you,” he says. Crocheting “affords us a chance to shed a different light on what a prisoner can do with their time if they’re allowed the opportunity”.
Crawford is actually one of the reasons Michael Flournoy is a free man today. The two struck up a friendship when Flournoy was facilitating a course on AIDS education Crawford was attending.
At that time Flournoy had resigned himself to the fact that he was in prison for at least 25 years and shouldn’t even bother trying to shorten his sentence. Crawford, however, had filed for clemency and convinced Flournoy to do the same. Seeing Flournoy get clemency was bittersweet for Crawford, who has a job offer waiting
for him when he gets out, at the church he attended in early childhood. He was happy for his friend but it was hard not to feel left behind. An uncertain future for clemency
The purpose of clemency is not to open the prison gates and let people out, but ensure, as Alexander Hamilton put it
back in 1788, that justice doesn’t “wear a countenance too sanguinary and cruel”.
When Cuomo first announced his clemency initiative, he had a chance to significantly change the arbitrary way in which clemency has always been implemented in America. He had an opportunity to transition clemency from an unpredictable gift bestowed by a governor in a good mood to an ingrained part of the legal system. Politicians across the country watched carefully to see what Cuomo would do.
Cuomo has done very little. While lawyers like Szymborski have worked hard to identify over 1,700 potential applicants for clemency, Cuomo’s office seems to just be sitting on these applications. “I know [Cuomo] has many extremely qualified candidates in front of him who pose no risk to public safety,” Szymborski says. “By reducing their sentences, the governor will be saving taxpayers $60,000 per year per person released … [and will] set an example for governors around the country who are interested in addressing mass incarceration.”
As Cuomo prevaricates, tough-on-crime politicians look to set the clock back on criminal justice reform, despite an
embarrassment of evidence that mass incarceration doesn’t make America safer. During a speech in Nashville earlier this year, the attorney general, Jeff Sessions, criticized the fact that the federal prison population has dropped in recent years, adding: “We’ve got some space to put some people. We need to reverse a trend that suggested that criminals won’t be confronted seriously with their crimes.”
It is unclear if or how Cuomo plans to move his clemency initiative forward. (The governor’s office refused several requests for comment.) His office is expected to grant the next round of pardons and sentence reductions in November. What he does then could move the needle on clemency forward, or back.
Like Crawford, we must simply wait and see.