Gov. Roy Cooper (Photo: Galen Bacharier)
As Governor Roy Cooper prepares to depart the Executive Mansion, criminal justice advocates are urging him to make use of his broadest set of powers: the ability to grant clemency for state crimes.
While the requests vary from calls for the commutation of all death sentences in the state to individual pardons of North Carolinians found to have been wrongfully convicted, a broad spectrum of attorneys and activists are pushing the outgoing governor to do more while he has the ability to do so.
In an October letter, researchers from the Families Against Mandatory Minimums Foundation urged Cooper to “review as many clemency petitions” as possible, with a particular focus on individuals who offended while under the age of 25 and who are currently older than 55 as these populations are more likely to be rehabilitated and less likely to reoffend.
“We hope that you will take our recommendations under strong consideration and use your clemency powers to their fullest extent during your remaining time in office,” the researchers wrote. “Data and evidence show that you can embrace public safety while leading with justice and mercy. These values are not mutually exclusive; rather, they are intrinsically linked.”
The push for Cooper to grant clemency mirrors a national effort encouraging outgoing President Joe Biden to do the same. The president issued the largest single-day grant of clemency in U.S. history earlier this month, commuting the sentences of around 1,500 people who had been under home confinement during the COVID-19 pandemic and were at risk of returning to prison facilities.
Now, all eyes are on Cooper, to see if he takes sweeping action of his own before departing the governorship on Jan. 1.
A justice-minded governor
The first time Gretchen Engel — now the executive director of the Center for Death Penalty Litigation — met Cooper was during his tenure as attorney general. His office was investigating a cross burning at a public housing project.
“I think he actually really cares about racial justice, for example, which is a big issue in the death penalty,” Engel said. “When I first moved here in 1992, I did not imagine that I would ever hear a governor of the state say ‘Black Lives Matter.’”
Cooper said so in June 2020, as racial tensions exploded across the country in mass protests following the murder of George Floyd by a Minneapolis police officer. He subsequently launched the state’s Task Force for Racial Equity in Criminal Justice that year and the Juvenile Sentence Review Board in 2021, the latter of which recommended 11 of the commutations he later approved.
Advocates hope this mindset will lead Cooper to take major action on clemency as he concludes his tenure as governor. Criminal justice reform groups saw his time in office as a moment to prioritize direct advocacy to his office — including a Vigil for Freedom and Racial Justice outside the Executive Mansion each of the past five years and a two-year campaign to commute all death sentences in the state.
“I am proud of the way that he has centered the issues of racial injustice and continued to talk about them when it wasn’t always the popular thing to do,” said Kristie Puckett of Forward Justice, which helps organize the annual vigil. “For a southern governor — and the most winningest Democrat in North Carolina — it’s important that he use his social capital to talk about race.”
After Cooper’s 2020 pronouncement that “Black lives do matter,” the vigil’s response is: “Show us that they matter,” Puckett said.
The Decarcerate Now NC Coalition began this year’s vigil on Dec. 10 and will gather on Jones Street each day until the end of Cooper’s term. Puckett said she hopes to see an announcement from his office on clemency early this week. The previous four years, the vigil was met by commutations or pardons in late December, usually between Dec. 17 and Dec. 21.
While he did not do so prior to his 2020 reelection, Cooper has exercised his clemency powers each year of his second term in office. With 23 pardons and 20 commutations as of Friday, he has made greater use of his clemency powers than any governor since progressive stalwart Jim Hunt, who left office in 2001. He most recently announced six commutations — four recommended by the Juvenile Sentence Review Board — and two pardons of innocence on Nov. 13.
!function(){“use strict”;window.addEventListener(“message”,(function(a){if(void 0!==a.data[“datawrapper-height”]){var e=document.querySelectorAll(“iframe”);for(var t in a.data[“datawrapper-height”])for(var r=0;r<e.length;r++)if(e[r].contentWindow===a.source){var i=a.data[“datawrapper-height”][t]+”px”;e[r].style.height=i}}}))}();
A ‘very expansive’ clemency power
While the North Carolina governorship is known for having some of the most limited constitutional powers in the country — not gaining the ability to veto bills until 1997 — it has substantial latitude in granting clemency.
“It is very expansive as is written in the North Carolina constitution’s powers with regard to executive clemency,” said Jamie Lau, a law professor at Duke University who supervises the Wrongful Convictions Clinic. “That puts quite a bit of power within the executive to take those actions unrestrained from other parts that may check that power within North Carolina’s government.”
That power includes unconditional pardons, pardons of forgiveness, and pardons of innocence. The latter is required to seek compensation from the state for wrongful conviction. The governor’s commutation power can be used for individual convicts or categorically, as Biden did when he commuted the sentences of every person who was part of the COVID-19 home release program.
Some advocates are pushing Cooper to enact categorical commutations before he leaves office, something not seen in the state in the 21st century, which has seen less than 40 total commutations.
In a letter to Cooper’s office, the Decarcerate Now NC Coalition urged categorical clemency to release “the elderly, the ill, and those incarcerated for technical parole violations” as well as all children who are incarcerated. The group also supports the commutation of all death sentences.
Despite the office’s expansive clemency powers, from 2001 until the start of Cooper’s second term, they were seldom unused. Democrat Mike Easley granted just five commutations and five pardons during his eight years in office, while his successor Bev Perdue granted 11 pardons. Republican Pat McCrory granted 10 pardons and commuted one sentence.
An analysis by Lau and colleague Ben Finholt suggests that this turn coincides with a shift in the national political environment toward “tough on crime” policies, epitomized by President Bill Clinton and the 1994 Crime Bill. As politicians feared the electoral cost of being perceived as “soft on crime,” grants of pardons and commutations plummeted.
With that in mind, the George Floyd protests and the national reckoning on criminal justice they provoked — prompting Cooper’s own major actions in that area — could represent another turning point for clemency in North Carolina.
A ticking clock on the death penalty
The death penalty has been on hold in North Carolina since 2006 — frozen by legal battles over the manner and method of executions as well as the Racial Justice Act — but observers fear the conservative state Supreme Court could allow executions to resume in the near future.
Cooper was attorney general at the time of the state’s last execution. Now, activists are hoping he clears the state’s death row before the hold on executions is lifted by commuting all 136 death sentences in the state to prison terms — perhaps the most sweeping grant of clemency asked of him.
“We believe that he is listening and paying attention and we also believe that he is a very thoughtful person that proceeds with a great deal of intention,” said Noel Nickle, the Coalition for Alternatives to the Death Penalty’s executive director. “What he has done previously in office indicates to us that racial equity is important to him.”
North Carolina’s death row is disproportionately Black, with 75 Black inmates, 51 white inmates, 6 who are American Indiana or Alaska Native, and 4 who are Asian or Asian American. That disparity is why opponents of the death penalty say race is a major factor in determining death sentences in the state — the crux of the legal battle against it.
Should those claims fail, however, more than 30 inmates in the state could see their executions proceed rapidly, having exhausted all other avenues for relief. That ticking clock is the backdrop for the pressure campaign on Cooper’s office.
Members of the coalition have met with Cooper’s office several times over the past two years, both online and in-person, during which time Nickle said they’ve seemed receptive. “It is now time for him to act,” Nickle said.
While such an act would be unprecedented in North Carolina’s history, Governor Kate Brown of Oregon granted clemency to all 17 inmates on the state’s death row in 2022, commuting their sentences to life without possibility of parole. She also granted more than 47,000 pardons for minor marijuana offenses during her time in office.
Nickle also pointed to the cases of Glen Edward Chapman and Alfred Rivera, who were exonerated from death row after wrongful convictions but would see their lives greatly improved by pardons of innocence. She also cited the non-death row cases of Michael Parker, who was wrongfully convicted of sexual abuse and has since been exonerated, and James Richardson and Charles McNeair, who she said remain wrongfully incarcerated. The latter two cases were also raised by the Decarcerate Now NC Coalition.
For Andre Smith, a practicing Buddhist who lost his son to murder before becoming a board member of CADP, it’s about a commitment to the ideal that any death is wrong.
“Don’t do it in my name,” Smith said of the death penalty. “I’ve never asked you to this for me.”
Smith met with Cooper’s office on two occasions alongside delegations from the CADP and said he appreciated that the staff was “actually listening” and took their effort seriously. He sought to appeal to them using the governor’s identity as a man of faith.
“This is beyond politics, we’re talking about a human life. And I think what’s required is compassion, and not to use politics as a reason to not do the compassionate thing,” Smith said. “He’s Christian so therefore, I know that he knows the right thing to do according to religious principles.”
An ‘inherently political’ act
The biggest obstacle some advocates see to action around clemency is the fear of political fallout.
Since the 1988 presidential race, in which the George H.W. Bush campaign weaponized the escape of convicted murderer Willie Horton against his opponent Michael Dukakis to great success, political strategists have been on constant watch for missteps on criminal justice to undercut their opponents.
Biden’s latest grant of clemency, for example, drew backlash after it was reported it included Michael Conahan, a Pennsylvania judge who took bribes in exchange for harsher sentences against juvenile defendants in what became known as a “kids for cash scheme.”
Puckett, the Forward Justice organizer, said evidence of Cooper’s political considerations around clemency could be found in the fact that he did not grant any pardons or commutations before his successful reelection in 2020. She speculated that this might have been to help ensure not only his own reelection, but also to avoid provoking attacks on Democrats down the ballot.
While Cooper’s time in the governorship is coming to an end, few expect him to disappear from North Carolina politics. He is one of the top names being floated to mount a challenge to Republican Senator Thom Tillis in 2026 on the Democratic side, and alluded to future plans in his farewell address when he told a crowd in Rocky Mount, “We’re not done. I’m not done.”
“Clemency is inherently political because it’s a single elected official who has through their constitutional authority the power to act, so I think that’s a significant consideration,” said Lau, the Duke Law professor. “I hope that, whatever [Cooper’s] aspirations might be, that it’s seen as a positive to exercise mercy on behalf of the state and to articulate the reasons why it’s important to take these actions.”
Matthew Charles, an advisor for Families Against Mandatory Minimums, said his group wrote to Cooper because his last term in office was concluding and he had previously taken positive action on criminal justice reform, pointing to the Juvenile Sentence Review Board.
“Oftentimes the governor is the last chance or last opportunity that some people may have to be able to be released, because many states don’t have second chance looks,” Charles said.
Puckett said she views Cooper as a “shrewd politician” who has done “as much as he thought he could do and continue to win.” While she would like to see bolder action in the final days of his term, she appreciates that he has prioritized criminal justice reform in his time in office.
“I’m an advocate to my heart — I’m going to always say he could have went further,” Puckett said. “But I am deeply appreciative of the relief that he has brought to the people that he has issued pardons to and commuted sentences of.”