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September 29, 2010

"Correcting Mandatory Injustice: Judicial Recommendation of Executive Clemency"

The title of this post is the title of this notable new note by Joanna Huang in the latest issue of the Duke Law Journal.  Here is the abstract:

P>In 1987, the United States political and social systems lost trust in the judiciary and severely limited its authority by enacting the mandatory Federal Sentencing Guidelines.  During this period, many judges were forced to impose sentences they viewed as unjust.  Trust in the judiciary was restored in 2005, when United States v. Booker made the Sentencing Guidelines advisory.  Despite the increase in judicial discretion, however, judges are still unable to correct sentences imposed during the intervening eighteen years because Bookerdoes not apply retroactively. Unfortunately, the executive and legislative branches are similarly unable to provide adequate remedies. Congressional action is insufficient because it is inflexible, time consuming, and generally nonretroactive. Executive clemency appears more promising due to a flexible and broad nature that allows the president and state governors to pardon or commute sentences at will.  But executives have become unwilling to use their clemency power, making it an inadequate remedy.

This Note proposes a solution that overcomes the limitations of the current system: judicial recommendation of executive clemency.  This solution produces three benefits.  First, it provides judges with a discretionary tool to reduce disproportionate mandatory sentences. Second, it revitalizes the exercise of clemency by giving it additional legitimacy.  Finally, it refocuses clemency grants on the defendant and the facts of the case rather than on political influences.  This Note provides eight illustrative criteria for judicial recommendation of executive clemency that, together, combine the characteristics of three modern cases in which the sentencing judges recommended clemency. This Note seeks to explain how and why each criterion might be important, taking into consideration the goals of judicial discretion, executive clemency, and the criminal justice system overall.

September 29, 2010 at 10:35 AM | Permalink

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Comments

Let's just look at the first three sentences:

"In 1987, the United States political and social systems lost trust in the judiciary and severely limited its authority by enacting the mandatory Federal Sentencing Guidelines."

Actually, the SRA was enacted three years earlier, in 1984. The Guidelines became EFFECTIVE in November 1987. But that's not the point. The point is that the author just glides past the REASON the judiciary lost trust. Hint: It had something to do with the fact that the sentence solemnly announced in court wasn't even close the the sentence that got served. It also had to do with the fact that in the generation before the SRA was adopted, crime had exploded in the United States. Ordinary people became crime victims at a vastly increased rate, while judges snoozed.

"During this period, many judges were forced to impose sentences they viewed as unjust."

They were "forced" to do no such thing, not by the Guidelines. From the getgo, the Guidelines provided for downward departures whenever there existed a mitigating fact of a kind or to a degree the Senentencing Commission (which at the time had a majority of judges) failed adequately to consider. In fact, many departures were granted, and more and more were given as time went on, until, at the time of Booker, about 40% of sentences were downward departures. That rate of departures shows beyond sensible argument that the "mandatory" Guidelines were only so mandatory.

"Trust in the judiciary was restored in 2005, when United States v. Booker made the Sentencing Guidelines advisory."

This is just a bald-faced lie. The political and social systems the author notes at the outset evinced NOT ONE WHIT of additional trust. The Guidelines were rendered advisory BY THE JUDICIARY ITSELF (by one vote in the Supreme Court). The arrogance of this judicial self-help remedy rightly would INCREASE distrust of the judiciary, not reduce it.

Beyond that, however, rendering the Guidelines advisory had absolutely nothing to do with restored trust in the judicial branch, even in the view of the one-vote majority on the SCOTUS. It was adopted as a remedy for the Apprendi/Blakely problem, not as a means to "restore trust." Indeed, if it had any implications for trust in the judiciary, it was that judges were NOT to be trusted, or at least were not to enjoy the same degree of trust that they had before. The point of the Apprendi/Blakely line, upon which the Booker remedy was built, was that JURIES NOT JUDGES were alone to be trusted to find the facts necessary to increase the sentence above the statutory maximum.

Posted by: Bill Otis | Sep 29, 2010 11:18:58 AM

I think Bill's last word should be "minimum." Other than that, he makes a tough argument.

In Booker, Congress put the ball squarely in Congress' court. Either juries get to find the facts upon which to base a sentence, or judges have to have discretion to decide on a just sentence. The Booker remedy appeared, to me, to be a temporary remedy until Congress made its choice, but Congress has not moved. This makes the Booker remedy appear to be permanent. Any thoughts on: 1) why Congress has not acted to create a process of jury fact-finding; or 2) whether greater jury fact-finding and resulting binding Guidelines would be a good idea?

Posted by: Mark | Sep 29, 2010 1:21:07 PM

Bill's points seem quite notable!

My first impression of the piece was confused. It seems to suggest judges are not part of the clemency process. My distinct impression is that they are.

So, I guess the author wants them to recommend clemency more often than they do. But how often do they recommend clemency? I have never seen data on that topic any where. For all I know, they are recommending clemency right and left - or as much as they can. I don't know. I need data.

Finally, the reasons that are offered for the recommendation of clemency have been used by presidents for 200 plus years - often on the recommendation of judges. I know, I have read a few thousand clemency warrants! So, I am not certain if the author is saying judges are not sensitive to those points, or not sensitive enough, or what. Again, I need data.

On the other hand, the piece references my very fine research in the footnotes, so ... way ta go! :-)

Posted by: P. S. Ruckman, Jr. | Sep 29, 2010 2:41:12 PM

While Bill's reactions often seem to be of the knee jerk variety, I experienced what I can only imagine to be the same sense of incredulity as him when I first read the posting. I may not absolutely agree with the last 2 sentences of his first paragraph, but everything else is right on point. This leads me to my two comments - first, there is absolutley nothing prohibiting federal judges from recommending clemency right now, regardless of whether the process is formalized or not. Second, if the law review note is written by a student (as I suspect) there is a SERIOUS lack of experience and/or rditorial oversight at Duke Law review.

Posted by: anon | Sep 29, 2010 7:02:26 PM

I don't usually agree with Bill either, but his points here are excellent. For the author to simply assert that Booker increased trust in the judiciary, without so much as an anecdote for support, isn't scholarship in any meaningful sense of the word.

I suppose only a law student could imagine that judicial recommendations of clemency are anything new. I've seen plenty of them in eighteenth-century cases, although they usually called it "mercy" back then. It sometimes even worked.

In any event, if it were up to me, I'd do away with executive clemency altogether. It's atrophied almost to nonexistence, and at this point it's nothing more than an excuse for legislatures and judges to shirk responsibility for the sentences they (directly or indirectly) impose. Maybe without the theoretical possibility of clemency, we'd see some real Eighth Amendment jurisprudence.

Posted by: azazel | Sep 29, 2010 9:44:42 PM

It is highly unusual for a judge to recommend clemency at sentencing, though of course judges are frequently asked by the Justice Department to weigh in on a clemency case years down the road when relief is being seriously considered. In fact, I know of only three cases where this has ever happened in modern times, the three that Ms. Huang has identified. Judges Sachs, Friedman and Cassell each appear to have recommended clemency at sentencing to signal their moral disagreement with the sentence the law compelled them to impose. In this sense, each recommendation was an act of conscience, though dependent for its realization on sensibility and courage in a coordinate branch of government.

In a time when the federal pardon process has, as Justice Kennedy observed, lost its moral force, it is important to be reminded of how central the Framers thought some dispensing power was to a just system. I must say that I am really mystified at the tone of the comments, which seem to have completely missed this central message of Ms. Huang's thoughtful and well-written article.

I might add that Kenneth Harvey, who Judge Sachs sentenced in 1990 to life in prison but commended for a sentence commutation after 15 years, a recommendation seconded by a panel of the 8th Circuit, has now served almost 21 years in prison. His first clemency petition was denied by President Bush in 2008, and his second petition is now pending before President Obama. Judge Sachs still supports clemency, and the U.S. Attorney has no objection. Under the new crack laws, the applicable mandatory minimum in his case would be 10 years. Having been Pardon Attorney at the time Judge Sachs' recommendation first arrived in the Justice Department, and having agreed last year to help Mr. Harvey in his second clemency effort, of course I hope that President Obama will take seriously his power to dispense mercy in a case that seems so clearly to deserve it.

Margaret Love


Posted by: margy | Sep 29, 2010 11:48:23 PM

It's rare that anyone agrees on this board, so the fact that both sides concur on the opening tone of the article is unusual. If people miss the central message of the article because the opening paragraphs of the article are absurd and inaccurate characterizations, is it a problem with the people, or a problem with the article?

And what is that central message? As anon states, there is nothing stopping judges from recommending at sentencing whether a person should or shouldn't be a candidate for clemency. Is it the point of the paper to remind district court judges of their authority? I would bet they already understand their ability to make nonbinding sentencing recommendations. That seems like a huge waste of time.

Posted by: Bill B. | Sep 30, 2010 5:51:07 PM

I think the conversation is moving well enough, but just to sharpen the focus: If judges can recommend clemency at sentencing, but are not doing so, then might that not suggest they are much more pleased with sentencing outcomes than the author of the piece suggests?

Posted by: P.S. Ruckman, Jr. | Sep 30, 2010 8:42:59 PM

I don't think I am breaking confidence or anything, but the author of the piece just sent me a nice e-mail and, among other thing, answered the question I posed above as follows:

"The majority of judges could very well be satisfied. The note is not meant to suggest that most judges are unhappy with the sentencing outcomes. As the 2009 US Sentencing Commission’s statistics show, 56.8% of sentences are within the guidelines range. While this infers nothing dispositive about what percentage of judges were pleased/displeased with the sentences pre-Booker, I think we can at least infer that during the pre-Booker period, a number of judges would have varied if they were able to."

Posted by: P.S. Ruckman, Jr. | Sep 30, 2010 10:56:03 PM

Professor Ruckman --

The author's e-mail to you falls well short:

She now maintains, "The majority of judges could very well be satisfied. The note is not meant to suggest that most judges are unhappy with the sentencing outcomes." But that is scarcely what one would take away from the second sentence in her abstract, which states, "During this period, many judges were forced to impose sentences they viewed as unjust." As best, what she's doing here is scampering through the running room she created for herself by a shrewd, if slippery, use of "most" and "many."

She then says, "As the 2009 US Sentencing Commission’s statistics show, 56.8% of sentences are within the guidelines range. While this infers [sic -- she means "implies"] nothing dispositive about what percentage of judges were pleased/displeased with the sentences pre-Booker, I think we can at least infer that during the pre-Booker period, a number of judges would have varied if they were able to."

Gads, where to start. As I have noted, in pre-Booker practice, judges most certainly WERE able to depart from the Guidelines. All they needed to do was supply a reason that some pertinent fact about the case fell outside the heartland. As I also mentioned, departures pre-Booker were given a fat 40% of the time. That means that within-range sentences were given 60% of the time, which is only very slightly different from the 56.8% figure she gives now. Indeed, if the author knew even the first thing about how sentencing actually works, she would know that the foremost objection among the defense bar to current practice is how LITTLE it varies from pre-Booker (i.e., mandatory guidelines) practice.

Lastly, her focus is a little odd. The question is not whether judges were "pleased/displeased" with pre-Booker sentences. The more relevant inquiry is whether the the Guidelines, either pre- or post-Booker, operate in a way that allows the imposition of just sentences. Assuming arguendo that the judges' "pleasure" about their own outcomes is a rough measure of whether they thought the sentences were just, the very statistics the author provides show that judges are pretty much as "pleased" now as they were before.

Posted by: Bill Otis | Oct 1, 2010 8:43:35 AM

Accepting that it's a rare instance when a judge makes a recommendation at sentencing. Would it also not be rare that a prisoner should be considered for clemency immediately after sentencing, and thus require an immediate recommendation?

It is highly unusual for a district court judge to say, "This conduct should not be a crime, but it is;" or "I should not have to impose this sentence, but I do;" and recommend immediate executive clemency.

The current system suggest some parity -- with rare circumstances being dealt with through rare recommendations. In addition, it doesn't take much common sense to see that the recommendation might be drastically altered by events during service of the sentence. A recommendation made at the pronouncement of the sentence should not be given much weight; while an informed recommendation, concurrent with the petition, would carry much more weight.

I'm going to suggest that the better system is already in place. Even setting aside the gross generalizations in the opening paragraph -- which is never good in any type of essay -- the argument position is untenable. In my opinion, the entire work fails.

I've never worked for DOJ Pardon. I don't know how often they seek a judicial recommendation. I don't know what post-sentencing information they provide the district court judge to aid in the decision. I would hope that they seek a recommendation in every case, and that they provide adequate post-sentencing information for judges to make an informed decision.

I'm not really interested in more debate about this particular theory. But I would be more interested in knowing more about the processes of DOJ Pardon. It seems to be much more relevant.

Posted by: Bill B. | Oct 1, 2010 10:33:09 AM

I AM A RANCH WOMEN. MY FAMILY ARE RODEO COWBOYS AND COW GIRLS WORKING TIMED EVENTS.I HAVE A SON IN PRISON . WHO HAS MENTAL ILLNESS THAT HAS BEEN PROVEN BY TEST, DOCTORS, MENTAL HEALTH DOCTORS, BUT HE PLED GUILTY,WHEN HE WAS ARRESTED HE KEPT TELLING ME BY PHONE I WILL BE OUT OF JAIL IN 3 WEEKS WELL WE AS A FAMILY RAN OUT OF MONEY FIGHTING HIS CASE LETS JUST SAY WE SOLD THE FARM AND SPENT EVERY DIME ON THIS CASE AND WE BELIEVE IN HIM. AND WE ARE STANDING BY HIM.BUT WE ARE NOT GETTINH ANY WHERE. TO MUCH IS INVOLVED. WOULD MAKE I GOOD BOOK BAB. UTAH

Posted by: Beverly A. Bluemel | Oct 8, 2010 9:52:30 PM

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