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November 23, 2009

Governor Ted Strickland grants clemency to 78 persons in Ohio

In this post a few weeks ago, I noted with great dismay and disappointment that Ohio Governor Ted Strickland had failed to act on any of a large number of clemency requests during his three years as the state's chief executive.  I am now pleased to report with excitement that Governor Strickland today made up for lost time by announcing decisions on hundreds of petitions today, and granted clemency to 78 persons.  This Columbus Dispatch article provides the basics: 

Gov. Ted Strickland approved clemency today in 78 criminal cases, including commuting the life sentence of Willie Knighten Jr., convicted for a 1996 murder in Lucas County.

Knighten, 37, is scheduled to be released Tuesday from the Allen County Correctional Institution, officials said.  "The trial and sentencing judge in Mr. Knighten's case determined that his original finding of guilt was in error and that Mr. Knighten has now served 12 years in prison for an offense he likely did not commit," Strickland said in a statement.

Knighten's clemency was among 296 requests decided by Strickland and released today. He approved 78 of them, or 26.3 percent.  Strickland OK'd 33 of 63 cases left over from 2005 and 2006, Gov. Bob Taft's last years in office, and 45 of 233 cases submitted to him in 2007.

In a conference call with reporters, Strickland said he and his legal staff spent more than 1,000 hours reviewing the cases.  "This responsibility to consider commutations is an awesome one," he said. "We take it very seriously. I have looked at every one of these cases early and many of them multiple times as I have asked questions and sought additional information."...

Strickland said in the cases in which he granted pardons after the person served their time, he considered their record outside prison.   "People have become nurses, successful business people, they have obtained master's degree's and bachelor's degrees," he said.  The vast majority of the favorable clemency decisions were pardons for minor, nonviolent offenses....

However, Strickland also approved clemency in a total of 10 cases because of what he called "fundamental injustice" or because the sentence was disproportionate to that of other inmates who committed similar crimes....

The governor has another 403 clemency requests pending from 2008 and this year.

For the true clemency junkies out there, Governor Strickland's office has provided a lot more information about the clemency decisions made today.  Specifically, this official press release describes the process and the particulars of Strickland's actions, and this huge excel spreadsheet goes into case-by-case specifics.

November 23, 2009 at 06:38 PM | Permalink

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Comments

There is no question that clemency is a tool, and one that should be used. Doug, while three years was too long for you, it does appear that the Governor is taking his duties seriously. Do you apologize for your intemperate remarks?

Posted by: federalist | Nov 23, 2009 6:54:54 PM

Does Ohio law prevent the governor from issuing pardons? Commuting the sentence of someone you believe innocent seems like a strange act, even given the baggage normally attached to a pardon.

I've read that one of the Carolina governors has been using the pardon power in only those cases.

Posted by: Soronel Haetir | Nov 23, 2009 7:01:52 PM

wasn't the commutation vs. pardon distinction as issue in the norfolk 4 case? my memory is that they were released, but not pardoned, which seemed similarly illogical if the ground for the action was innocence...

Posted by: Anon | Nov 23, 2009 7:05:36 PM

also, isn't the headline of this post squirelly? it says the governor granted "clemency release" to 78 persons, but it seems that only one person will actually be released immediately, and most of the 78 were released a long time ago. specifically, the article says that "[t]he vast majority of the favorable clemency decisions were pardons for minor, nonviolent offenses" and that "'[i]n every [such] case, these pardons have been granted to individuals who have completed their entire sentence, usually many years ago.'"

Posted by: Anon | Nov 23, 2009 7:15:13 PM

Doug --

I was wondering if you agree with all 78 clemency grants, or whether there is even one in which you think clemency was ill-advised.

It often seems that you think governmental decisions adverse the defendant are erroneous. It struck me as odd to take the view that a significant number of anti-defendant decisions are wrong, while, in this instance covering dozens of cases, 100% of pro-defendant decisions are right.

So is it your view that the decisions here were, in fact, 100% right? If so, it would be the first time in history that the government, or any officer thereof, has been 100% correct.

Posted by: Bill Otis | Nov 23, 2009 8:51:53 PM

Some response to comments:

Federalist: What "intemperate remarks" do you want me to apologize for? I said it was disgraceful that so many petition sat unresolved on Strickland's desk for 3 years. I stick by that remark, though I am glad that Strickland has (finally!!) acted on many of these petition.

Anon: you are quite right that using the term "release" was a very poor choice of words in my original headline given the nature of the grants. I have changed the headline accordingly to be more accurate.

Bill: I do not have sufficient information to make judgments on all these grants. But I will say that I agree with your observation that the government is never 100% correct, WHICH IS WHY CLEMENCY IS SO IMPORTANT! Especially because grounds for appeals and collateral attacks are often quite limited (especially if a lawyer has not preserved issues effectively), only robust use of the clemency power can address the (many?) cases in which government error against defendants can be remedied. (Your advocacy for the Libby commutation suggests you agree with this point at least for some types of defendants.)

Meanwhile, Bill, you plainly do not read my posts with an open mind if you think I am always pro-defendant. I am always pro-liberty, which is why I often favor pro-government rulings concerning the death penalty, shaming sanctions, financial penalties and many other non-prison sanctions that do not rely on the deprival of liberty to achieve social ends. What I generally consider wrong are government decisions to deny liberty through incarceration, especially given the huge economic and social costs of keeping people locked in prison.

We can connect these points via statistics related to the 2.5 millions persons currently incarcerated in the US. Even if governments have been 99% correct in deciding what persons need to be locked up, that still leave 250,000 persons who are "wasting" taxpayer dollars by "wrongfully" sitting in a prison cell.

So, Bill, I'll end by asking you to expand on the prison implications of your justified skepticism of the correctness of government decision-making. Just how often do you think the government gets it wrong when it decides a defendant should be incarcerated? And how should we try to "fix" these errors when they lead to persons wrongfully confined?

Posted by: Doug B. | Nov 23, 2009 9:51:08 PM

Now it is official the state with the worst clemency(Pardons) record belongs to the State of North Carolina!! Good Job Bev Perdue you are on track to be far worse than Former Governor Easly.

Posted by: Anon | Nov 23, 2009 10:22:42 PM

One that stands out to me is Lynn Redwine denied pardon for trespassing while Dietra Robinson granted unconditional pardon for theft,aggravated assault? Karen Henderson convicted of felonious assault and abduction yet a trespassing charge is denied. This seems kind of odd am I possibly missing the meaning of trespassing?

Posted by: Anon | Nov 23, 2009 10:48:50 PM

As an advocate for government transparency, I say kudos to the Strickland administration for providing a helpful Excel sheet.

Also, I am certain that Supremacy Claus would like to mention that he hopes all 100 folks will move into the Governor's neighborhood.

Posted by: Justin_Anderson | Nov 24, 2009 1:09:49 AM

Errr.. 78, not 100.

Posted by: Justin_Anderson | Nov 24, 2009 1:10:38 AM

Regarding the comment about the person convicted of trespassing vs. assault, etc., these decisions involve much, much more than the crime for which the person was originally convicted. Governors generally look closely at what's happened in the intervening years since the conviction and, for pardons, the years since the conclusion of the person's sentence. For example, if the person has re-offended, the likelihood of a pardon goes way, way down. Other things governors look at include whether restitution has been paid, whether the person has been employed (or tried to be), whether the person has gotten a GED or college degree, whether the person has become involved in volunteer work, the age at which the offense was committed, the circumstances surrounding the original offense, and many, many other considerations.

Posted by: Bureaucrat | Nov 24, 2009 7:04:05 AM

The government should be subject to torts, to improve its appalling incompetence. Repeal the Eleventh Amendment.

Those subjected to false conviction should be compensated as those subjected to false imprisonment by a private party.

If a released prisoner hurts another, the government should compensate the victim. The government had control of the body and should know the odds of recidivism are high for anyone with three or more convictions.

The Eleventh Amendment was hastily passed to rip off creditors to the states. They wanted their money, and courts agreed they should get it. It should be void for illegality. It should be repealed as unjust, and because it promotes totally irresponsible incompetence by the lawyer run government.

Justin is, of course, right on target. I love it when the lawyer or rent seeking psychologist in office coddle criminals who will live in other people's neighborhoods.

Posted by: Supremacy Claus | Nov 24, 2009 7:13:28 AM

Professor Berman: "rulings concerning the death penalty, shaming sanctions, financial penalties and many other non-prison sanctions that do not rely on the deprival of liberty to achieve social ends"

me: wait a second, you're saying that killing someone doesn't result in a depravation of liberty while keeping someone in prison does? Would you also consider torture or corporal punishmnt to be not a depravation of liberty and thus preferrable to putting someone in prison or jail? Or is merely intentionally inflicting pain beyond the pale while intentionally killing someone is okay?

Posted by: virginia | Nov 24, 2009 11:22:43 AM

In this blog's Nov. 15th post (which is the first link in this post), the case of Bradley Tapp is discussed, which made me interested in its outcome. The Ohio Parole Board gave him a unanimous recommendation for clemency.

I looked at the spreadsheet linked in this post and did not see his case, although maybe I overlooked it. Does anyone know if his case was acted on, and if so, what the outcome was?

Posted by: DEJ | Nov 24, 2009 12:07:19 PM

Doug --

"I'll end by asking you to expand on the prison implications of your justified skepticism of the correctness of government decision-making. Just how often do you think the government gets it wrong when it decides a defendant should be incarcerated?"

The only way I can assess that is through the prism of my own experience (anything else would be a guess). I was head of appeals in the USAO for 18 years. In that time, there was not a single convicted defendant I thought was innocent, not one. Indeed, the defendants themselves very, very seldom challenged factual guilt.

Now that does not fully answer your question, which went as well to the government's decision about incarceration.

The catch is it wasn't the "government's" decision, at least not that of the executive branch, which was my employer. It was the court's decision (i.e., sentencing).

A prison sentence is obviously wrong only where (1) the defendant is innocent, or (2) the offense of conviction does not provide for a prison term. Beyond that, whether there should be incarceration, and for how long, are matters of opinion. Because opinion on this subject varies widely, I was (and remain) a fan of mandatory guidelines to cabin the wild variations in what judges would do. But that became history with Booker, Gall and Kimbrough.

Accordingly, there is no way I can say how often I thought the government got it "wrong" when it incarcerated a defendant, because there is no settled definition of "wrong." Indeed, this whole blog is a testament to the breadth of disagreement on that question.

I can say that I was not grossly offended by the prison sentences I saw being handed down. But that may have been because of an outlook I have that few on this site share, to wit, the view that the criminal was always free ab initio to choose another way of living (i.e., get an honest job like everybody else). Having elected instead to go for the quick buck by dealing drugs or carjacking or what have you, he assumed the risk of incarceration. That was his choice, and now his problem, not mine.

"And how should we try to 'fix' these errors when they lead to persons wrongfully confined?"

Again, except as regards people who are factually innocent, there is no broadly accepted definition of "wrongly confined," making it tricky to answer that question.

There are cases in which some sentences strike me as excessive, yes. Libby's was one of them, as you correctly point out. I thought Madoff's was also excessive and amounted to judicial showboating, since no one lives 150 years. I think prison terms for first-time, personal-use, possession-only marijuana offenses are inappropriate; on the other hand, in my experience, the USAO never asks for prison in such cases, and the judges wouldn't go along with such a request even if it were made. (The actual punishment for an offense like that, during my tenure as an AUSA, was a $50 fine, which was less than for a lot of traffic infractions).

As a general matter, I am not opposed to the consideration of clemency by the executive branch. Indeed, during my time in White House Counsel's Office, that was one of my areas of responsibility. But I think the executive's use of that power should be circumspect, lest it undermine the legislature's right and power to determine the range and nature of punishment, and the judiciary's right to assign the particular sentence in any given case. But mindful, as you remind us, of the fallibility of human beings, in truly exceptional cases, executive use of clemency is both authorized by the Constitution and, IMHO, fully appropriate.

Posted by: Bill Otis | Nov 24, 2009 12:36:39 PM

A few more responses:

Virignia: I see state killing (and state torture and corporal punishment) to be categorically different types of depravations than imprisonment. I see all sorts of pros and cons to all sorts of different types of deprivation, and I do not mean to be making a blanket pitch for one type of punishment over all others. That said, I do think that deprivation of liberty should be viewed as uniquely disconcerting in a country that, in Lincoln's words, was "conceived in Liberty." Also, imprisonment is a punishment that is uniquely expensive and seems uniquely criminogenic, and it is for all these reasons that I start with an inherent bias against imprisonment.

Bill: I am trying to put aside factual guilt concerns, and I am glad to hear you think government gets it close to 99.99% right on the guilt/innocence front. (Keep in mind, though, even if this is one arena in which the government does get it right 99.99% of the time, this would still mean a few thousand innocent persons are stuck in prison wrongfully.)

I share your view that it is tricky to make a judgments about who among the guilty is "wrongfully confined," but then I am puzzled that you are so ready to cite Lewis Libby and Bernie Madoff as your examples of felons who fit this mold. These two well-educated and well-to-do criminals surely made a choice to commit crimes and thus, in your words, "assumed the risk of incarceration." Moreover, given the terrific lawyers that Libby and Madoff could hire, doesn't the fact that they were over-punished suggest to you think this may be a pervasive problem.

Put another way, Bill: Do you really believe that the criminal justice system only tends to over-punish rich, white, well-educated men with great lawyers? Unless you think it is likely that ONLY rich, white, well-educated men with great lawyers get over-punished, the very fact that you think Libby and Madoff got a raw deal should make you much more open-minded to the idea that hundreds and thousands (and perhaps hundreds of thousands) of other less prominent defendants have also be the victim of a criminal justice system that is eager to over-punish and that has folks like you defending government near-perfection in this (and only this) setting.

Posted by: Doug B. | Nov 24, 2009 1:09:22 PM

I am a lot closer to Doug's side on clemency than Bill's. I certainly think that clemency for stale criminal convictions ought to be granted often (with computerization etc., a 20 year old conviction has a much bigger effect on someone's life than it did 20-30 years ago, and clemency practices should be updated to deal with that reality). And with respect to incarcerated people, clemency, judiciously used, can help optimize the use of that scarce resource, the prison bed. I support extremely harsh sentences for serious crimes. I think that a good clemency system has to be a part of that.

I part company with Doug on his extreme judgmentalism for those who disagree. I also think that Doug's blatant race card playing is pretty weak here too.

Posted by: federalist | Nov 24, 2009 1:34:55 PM

federalist: what is your definition of "extreme judgmentalism"? I find this a funny and potentially useful term, but I want to understand what it means.

As for "blatant race card playing," I guess I will plead guilty, but I felt compelled to just note the fact that Bill makes reference only to two rich, white, well-educated men with great lawyers as examples of persons who were subject to excessive prison terms. Statistics suggest that lots of poor, dark-skinned, poorly-educated men with flawed lawyers are processed by the criminal justice system, and I am just wondering if Bill (or you, federalist) think certain types of defendants are more or less likely to be subject to over-punishment.

Posted by: Doug B. | Nov 24, 2009 3:41:48 PM

"I part company with Doug on his extreme judgmentalism for those who disagree."

Are you being serious?

Posted by: JC | Nov 24, 2009 3:45:55 PM

Doug --

"...I am glad to hear you think government gets it close to 99.99% right on the guilt/innocence front."

What I actually said was that, in my experience, which is the only thing upon which I can rely in dealing with a question like this, the government was ONE HUNDRED PERCENT correct. In 18 years as an AUSA, I never had a case in which I thought a factually innocent person had been convicted.

Neither did the Fourth Circuit, I might add.

"Moreover, given the terrific lawyers that Libby and Madoff could hire, doesn't the fact that they were over-punished suggest to you think this may be a pervasive problem."

I thought Libby was overpunished, yes. Technically, I thought Madoff was "overpunished" as well, but only technically. A proper sentence for him would have effectively put him away for life anyway, so I saw no need for the judicial showboating.

Whether it's a pervasive problem is, again, strictly a matter of opinion, there being no settled definition of what OVERpunished means. And, again, this is why we need mandatory guidelines. And I do not claim that my view of the Madoff and Libby cases is more than subjective. The same is true, of course, of anyone else's opinion, including those who sit on the bench.

"Do you really believe that the criminal justice system only tends to over-punish rich, white, well-educated men with great lawyers?"

I think it tends not to overpunish at all. The actual evidence shows that leniency is all over the place. Downward departures (or variences) are given in nearly 40% of federal cases. In the remainder, the huge majority of defendants are given sentences at or near the rock bottom of the guidelines. And it's not just at sentencing that cases (and potential punishments) get whittled down. It happens not infrequently that the AUSA will dismiss counts where the bang isn't worth the buck (or the court will). Factual determinations that lead to the determination of the range ALL THE TIME give the defense the benefit of a doubt, and these factual determinations are effectively unappealable by the government.

Of course there are very unusual cases in which there is overpunishment. I have opinions about two of them, Libby and Madoff, not because I prefer rich white men (nor do I condemn them), but because they were extremely prominent cases that made the news day after day. Libby was chief of staff to the Vice President, and Madoff was arguably the biggest swindler in history. There were political points to be scored by sticking it to them, which in my view may have accounted for the excessiveness of the sentences. But most sentencings in federal cases are just so much routine. Few people outside the parties care about them; indeed few people know about them. That includes me.

It was the prominence of the two cases, not the race or gender of the defendants, that led me to comment on them. Neither in my time in the government, nor now, do I know or care to know about race and gender. What interests me is behavior.

The bottom line, Doug, is that you tend to focus on what you regard as too much incarceration, and I tend to focus on what I regard as too much crime. That is, I suppose, why you wound up teaching law and I wound up at the USAO.

Posted by: Bill Otis | Nov 24, 2009 5:50:27 PM

Bill, in your effort to attack Strickland's grants at the start of this thread, you stated that government never gets it 100% right, but now you say government under your watch did get guilt/innocence 100% right. I am impressed and amazed how much better government got during our debate.

I am also amazed and disappointed that despite the fact that the US has the highest incarceration rate/population in all of the world, you still lament that "leniency is all over the place." Sad, but I suppose understandable in light of your professional commitments.

Posted by: Doug B. | Nov 24, 2009 10:49:28 PM

Doug --

"Bill, in your effort to attack Strickland's grants at the start of this thread, you stated that government never gets it 100% right, but now you say government under your watch did get guilt/innocence 100% right. I am impressed and amazed how much better government got during our debate."

I would be too, if that's what I said. What I actually said was, "In 18 years as an AUSA, I never had a case in which I thought a factually innocent person had been convicted."

I, of course, am not the government. I was one of about 3000 AUSA's who worked for the government. For me to say that I never handled a case in which a factually innocent man was convicted deos not make a claim, or purport to make a claim, about the experience of the entire federal government, much less the 50 state governments.

Nor did I "attack" Strickland's clemency grants. I ASKED about them, admittedly with an undertow of skepticism. Since you certainly seemed to be enthusiastic in supporting them, I asked whether you had doubts about even one. You said that you had not gone through them, and thus were not in a position to claim from direct knowledge that all of them were correct.

"I am also amazed and disappointed that despite the fact that the US has the highest incarceration rate/population in all of the world, you still lament that 'leniency is all over the place.' Sad, but I suppose understandable in light of your professional commitments."

I wouldn't say anything I thought was false regardless of my "professional commitments" -- whatever you may think they are. Just for the record, I have not been an AUSA for ten years, and have not been an officer of the federal (or any other) government for two and a-half years.

I would also note that you don't dispute the evidence I offered to illustrate the sprawling leniency I see, to wit, that downward departures (or variances) are given in nearly 40% of federal cases, and that of the remainder, the huge majority are at or near the rock bottom of the guidelines. Leniency is a fair and accurate term to describe that set of circumstances.

Posted by: Bill Otis | Nov 25, 2009 12:14:46 AM

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