Because the District of Columbia is not a state, it lacks local control over several key aspects of its own criminal justice system: federal prosecutors handle most local D.C. criminal cases; D.C. residents are sent to federal prisons across the country to serve their time; federal agencies run parole and probation for D.C. residents; and unlike most governors, the D.C. mayor does not have the power to grant clemency.

So advocates for taking back local control cheered when D.C. made strides towards claiming some power over that last process — clemency — in 2018. That year, the D.C. Council passed a law establishing a local clemency board that can weigh in on decisions about pardons (forgiveness for convictions) and commutations (which shorten sentences). Now, nearly four years later, D.C. Mayor Muriel Bowser’s office has published the proposed regulations for that board — and advocates who fought for the board’s creation say that the regulations strip the clemency board of much of the power they thought it would have.

“My fear is that the way the proposed regulations are written, they’re going to take away so much of what the statute promised to do,” says Josephine Ross, a professor at Howard University School of Law who has advised the clemency board and worked with her students at the school’s Reentry Clinic to help design a D.C. clemency application process. The Howard University School of Law’s Reentry Clinic has been circulating a social media toolkit, asking members of the community to weigh in on the proposed regulations before the Mayor’s office stops accepting public comments on Sept. 12.

Prior to the law establishing the D.C. clemency board, people convicted of D.C. Code offenses who wanted to apply for clemency had to do so through the Department of Justice’s Office of the Pardon Attorney. The 2018 law that established the D.C. Clemency Board gave the body the power to come up with a new clemency application process for people from D.C. and send those completed applications directly to both the Department of Justice and the President of the United States, who has the final say over clemency decisions. The law, as published in the D.C. Code, says that “when the Board decides to recommend an application to the President of the United States,” it can “send the application, along with a narrative describing why the Board recommended the application, to the Office of the Pardon Attorney and to the President of the United States.”

But when the proposed regulations for the D.C. Clemency Board were published last month, some people who had advocated for the clemency board and helped come up with ideas for how it would work were surprised to see that the board’s power seemed to be diluted. Instead of having the authority to gather applications and send them to the Department of Justice and the President, the proposed regulations say that the D.C. clemency board can merely offer a recommendation letter to applicants, who must first apply through the Department of Justice. Under the proposed regulation, there is no direct line from the D.C. Clemency Board to the White House.

Ross says she expected the D.C. board to have a role beyond that recommendation letter.

“They’re hoping that the [Office of the Pardon Attorney] looks more kindly on D.C. offenders who get a letter of recommendation,” says Ross. “It’s a bit of a leap of trust. It’s better than not having anything at all, but it’s not what the statute envisioned, and the D.C. board is giving away too much power to the [Office of the Pardon Attorney] really for no reason.”

What Ross would prefer is for the regulations to give the D.C. clemency board the power to directly transmit applications for clemency to the White House as well as to the Department of Justice. She also wants to see the regulations changed to get rid of the requirement that applicants for clemency go through the Department of Justice’s application process before being considered by the D.C. clemency board.

Ward 6 Councilmember Charles Allen, who serves on the D.C. Clemency Board and chairs the D.C. Council’s Committee on the Judiciary and Public Safety, says his office has also requested some changes to the clemency board regulations — including adjustments to the way that its hearings will be run, and to its decision-making process.

But Allen believes going through the Office of the Pardon Attorney’s process was unavoidable, because D.C. can’t prevent the Department of Justice from running its own clemency process for people convicted of D.C. Code offenses.

“It’s not like we could force anybody that they have to go through the [D.C.] clemency board, because from a federal perspective, any D.C. Code offender who is seeking clemency can apply directly through DOJ,” says Allen. “We just know, of course, that system doesn’t work, right? That’s why …. ultimately, when we have statehood, we need to have our own clemency board as well as have the then-governor be able to have those clemency powers.”

Part of the reason why advocates pushed for a local D.C. clemency board is because it’s been nearly impossible for anyone convicted of a crime in D.C. to secure any form of clemency. Just one person convicted of a D.C. Code offense received clemency between 1989 and 2016, according to the most recent analysis from the Council for Court Excellence, which advocates for criminal justice reform in the District. Alfred J. Mack, who was convicted in D.C. Superior Court for unlawful distribution of heroin, was pardoned by President Barack Obama in 2013.

In contrast, governors and states have exclusive power over their system for issuing pardons for state offenses. Nextdoor in Virginia, Gov. Ralph Northam’s administration has granted 604 pardons — more than all nine of the previous governors combined — and his administration has created a new online system that they say will make the process of tracking and granting pardons more efficient and transparent.

People familiar with the legal system for D.C. Code offenses guess that there are a few reasons why it’s nearly impossible for people from D.C. to get clemency for non-federal offenses. (Washington D.C. residents who have been convicted of federal crimes — particularly those with close relationships to Presidents — have had better luck in recent years.)

James Zeigler, the founder of the Second Look Project, which represents people from D.C. who were given long prison sentences when they were young, says one of those reasons is that most people from D.C. who are incarcerated for long periods of time are there for offenses categorized as violent.

“If you go further back [in history], you find this is not always the case, but in recent history and certainly under Obama and the more recent presidents, clemency is almost exclusively something that is available to people who are guilty of nonviolent offenses. Under Obama especially, you had a lot of nonviolent drug offenders,” says Zeigler. But “there are simply almost no people serving lengthy D.C. Code sentences for D.C. Code offenses that were not convicted of violent crimes.”

Zeigler says that because of policies like mandatory minimums across the country, it is not uncommon to see people imprisoned for extremely long sentences for nonviolent federal drug offenses. But because of the way that sentences have been handed down for local crimes in D.C. Superior Court, people convicted of local D.C. offenses tend to only be serving extreme sentences for serious violent crimes.

Nationally, pardons for violent crimes are a more difficult political sell. But part of the reason why advocates have been seeking more local control of clemency is that they believe a locally accountable clemency board will be more responsive to the politics and opinions of D.C. residents, who have supported measures to reduce lengthy sentences and offer forgiveness for past crimes. The D.C. Council has passed two major resentencing laws in recent years that offer a route to freedom for people given lengthy prison sentences when they were under the age of 25. Zeigler says that though not everyone in D.C. supported those laws, he has found that many residents are supportive of forgiveness.

“So many of the people serving lengthy sentences in D.C.. are serving them for offenses committed in the 1990s … which is a time that was acutely bad for the District of Columbia. It was the murder capital and everything else that went along with that, and I think there is among Washingtonians, from what I’ve seen, a real recognition of the degree to which so many of these kids and young people — both the ones who are victims of violent crime and the ones who were the perpetrators of the crime but were [also] often victims themselves — were the collateral damage or victims of these broader institutional and systemic failures that that plagued the District during that time,” says Zeigler.

Ross, from Howard University School of Law, agrees.

“They commit crimes when they’re young, partly because it’s the only avenue around … but it doesn’t mean you’re a violent person later,” says Ross. “The idea that people change — I think we really understand that when it’s our own family members. When it’s strangers, we tend to think that people are not going to change. But they do.”

Ross also added that another potential deterrent for D.C. clemency applicants is the nature of the process, which isn’t particularly accessible for people convicted of D.C. crimes. For example, the DOJ form that people are required to fill out asks which District court they were convicted in — a question that doesn’t apply to people convicted in D.C. Superior Court.

Many local advocates for decarceration and other changes to the criminal justice system say that D.C. needs to prioritize taking back local control wherever it can. That’s why in addition to paying attention to clemency, many advocates have been pushing the District to prioritize the creation of a more locally-accountable parole process.

A spokesperson from Bowser’s office did not respond to DCist/WAMU’s request for comment on the regulations. When the legislation that created the D.C. clemency board was under consideration by the D.C. Council, Bowser’s administration supported it, but said it did not go far enough to ensure local control.

“The Executive supports the bill’s intent of providing inmates and rehabilitated returning citizens with a means to reduce their sentence or clear their criminal record,” testified then-Deputy Mayor for Public Safety and Justice Kevin Donahue. “If passed by the Council, the Mayor will support the legislation. However, we need to be more ambitious.”

Instead, Donahue testified, the Bowser administration wanted to pursue other routes to full clemency power for D.C. — like a bill introduced by Del. Eleanor Holmes Norton that would grant D.C. clemency power and, of course, statehood.

Norton’s bill, District of Columbia Home Rule Clemency Act, has never received a Congressional hearing.

For Ross, reasserting a degree of local control that would give the city more immediate power over clemency is a matter of racial justice.

“96% of people serving D.C. felony sentences are Black,” she says. “So we have a particular issue in D.C. about mass incarceration and who’s incarcerated and who’s incarcerated for too long.”

And while clemency is relatively rare, Zeigler says it could be one piece of a broader series of policy changes aiming to reduce the District’s high incarceration rate.

“We need to be taking a real kind of long and hard look at the people who are currently incarcerated, figuring out who doesn’t need to be there anymore, who can be released safely and who’s ready to come home,” says Zeigler. “And I think the more mechanisms we have by which that can be done, the better.”