Osler's Razor

Americans believe in freedom. It’s in the songs we sing, the pledge of allegiance, and the political slogans both parties rely on. Yet there are only a few among us who fight for actual liberty. That group includes soldiers, public defenders, free speech activists, and those who take risks on behalf of others. It also includes Jason Hernandez. This book—painstakingly written from experience, study, and discussion—lays out the key tools that can lead to freedom through the Constitutional device of clemency.

Clemency is the wild thing of the Constitution: it is unrestrained by checks and balances, resting instead within the soul and conscience of the president. The Constitution’s pardon power allows the president to grant two primary forms of clemency: a pardon (which removes some of the effects of conviction) or commutation (which shortens a sentence). There have been and will be presidents who are brave enough to use the pardon power to free those who are incarcerated for irrationally long sentences. Sadly, the number of people serving those sentences in our country is much too large.

The good news is that American citizens and our leaders are coming to see that fact. The recognition by both Republicans and Democrats that we incarcerate too many people for too long has finally become a majority view, and the movement is now towards a more reasonable and humane system of criminal justice. That means that no matter who is serving as president, clemency will hopefully become a primary tool for reducing incarceration and right-sizing sentences that are far too long.

Jason Hernandez did something remarkable: he wrote himself to freedom. He prepared his own commutation petition and then bolstered it with a follow-up letter to President Barack Obama (who, in fact, read the letter). Jason was one of the first people to have his sentence commuted by Obama. He knows how clemency works because he has both earned his own freedom and helped others do the same. In this book, he gives specific and worthwhile directions on how those in prison can follow his path. While clemency is never guaranteed and is still too rarely granted to even the most deserving petitioners, this book can help readers avoid the most dangerous traps and greatly increase their chances of success.

In 2011, I started the first law school clinic in the country focused on federal commutations. Since then, my students and I have prepared dozens of clemency petitions and corresponded with hundreds of people in prison. In 2015, New York University professor Rachel Barkow and I set up a pop-up law office to prepare clemency petitions during the Obama administration’s clemency initiative, and worked with hundreds more. I have also gone into federal prisons to talk about clemency—how it works and what it means. Through all of this, I have seen the depth of the tragedy in our criminal justice system and the waste of human potential. Still, I couldn’t write the book that Jason has. I have never had to work two hours to afford one stamp and an envelope, or draft a document on a broken typewriter, or wait in line to make a phone call, or suffer any of the other unnecessary indignities that those in prison must push past. Jason does know all of that, and it is woven within the rhythm and wisdom of this book.

For those who read this book and succeed, I ask for a commitment: When you are in freedom, take inspiration from Jason and the many formerly incarcerated individuals who have came out and helped others succeed. Join us in trying to change the clemency system as a whole so it can work to free more people who have proven themselves deserving. Stand with us to revive this forgotten part of the Constitution. It’s a good fight, and we need you.