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February 10, 2014

New York Times editorial makes pitch for "Mercy in the Justice System"

The New York Times published this notable editorial today calling for a serious fix to the broken federal clemency system.  Here are excerpts:

The constitutional provision that gives the president virtually unlimited authority to grant clemency was not an afterthought.  The founders understood very well that there could be miscarriages of justice even under the rule of law.  By allowing the president to commute unjust sentences or pardon deserving petitioners who had served their time, they sought to ensure that the workings of the courts could be tempered with mercy.

Presidents Jefferson, Madison, Monroe, Lincoln, and Truman viewed the clemency process as a central mission of the office. But the concept of mercy went out of fashion by the 1980s, when the country embarked on a mandatory sentencing craze that barred judges from exercising leniency when it was clearly warranted and placed the justice system almost entirely in the hands of prosecutors.  As a consequence, even first-time offenders were largely viewed as beyond redemption.

These laws drove up the prison population 10-fold and filled the jails with young, low-level drug offenders who were confined far longer than their offenses warranted.  They also created a large and growing class of felons, who are trapped permanently at the margins of society by postprison sanctions — laws that bar them from jobs and housing, strip them of the right to vote and make it difficult for them to obtain essential documents like driver’s licenses.

The perpetual punishment model of justice has had far-reaching consequences.  Politicians stayed as far away from clemency as they could, fearing that voters would view them as soft on crime.  Meanwhile, at the Justice Department, the clemency process — which had been a cabinet-level responsibility — fell under the authority of prosecutors who seemed to view even reasonable lenience as a threat to the prosecutorial order.  The time required to handle clemency applications went from months to years; the backlog grew; the stream of mercy that had once flowed began to dry up.

The clemency system, in other words, is in a state of collapse.  The Justice Department admitted as much last month, when the deputy attorney general, James Cole, asked the criminal defense bar to help the department find suitable candidates for clemency among the many thousands of people who were casualties of the mandatory-sentencing era....

The Justice Department’s sudden interest in the clemency problem is good news, but asking defense lawyers for help is a haphazard approach.  What’s needed is wholesale reform of the department’s pardon office, which has proved itself ineffective and incompetent, partly because the current process relies on the department to evaluate its own work.

One sound idea is to create a clemency review panel outside the Justice Department, perhaps as a part of the executive office.  Mr. Obama could form an advisory board, or reconfigure the pardon office to include defense lawyers, sociologists and other experts who would bring a broader perspective to the issue.  The goal would be to give the president unbiased information that would enable him to exercise fully this important aspect of executive power.

February 10, 2014 at 09:38 PM | Permalink

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Comments

Anyone know the answer? Does the NYT write stuff for the NACDL, or does the NACDL write stuff for the NYT?

Posted by: Bill Otis | Feb 10, 2014 11:25:50 PM

Bill Otis, do you think it the role of a U.S. Attorney to ever exercise mercy? If so, in what circumstances. If not, why not?

Posted by: curious | Feb 10, 2014 11:56:21 PM

The role of the US Attorney is to achieve justice under democratically enacted law. In fulfilling that role, he takes into account extenuating and mitigating circumstances, both in charging and in sentencing recommendations.

Now here's a question for you. Is it ever -- EVER -- the role of the defense lawyer to tell the unvarnished truth about a guilty client (which is most of them)?

Posted by: Bill Otis | Feb 11, 2014 12:02:10 AM

Bill Otis, Isn't a defense lawyer supposed to hold inviolate the secrets of his client--? If so, how can we expect him or her to tell anyone, much less the world, that his client is guilty, even if he is?

Posted by: curious | Feb 11, 2014 12:35:42 AM

curious --

Ya know, now I'm curious about something -- your actual name and what you do.

I don't think you're just curious, if you're curious at all. You've made up your mind that defense lawyers can do what they please, the truth be damned. Is that about it?

As to your question: Look up some law. There are a number of exceptions to client confidentiality requirements. One is if the client tells you at lunch that he's going to assassinate a rival drug dealer tonight, and shows you the gun he's going to do it with. You have an ethical obligation, if you can't talk him out of it, to warn of the danger and attempt to avert it.

Another is a true treasure, and wonderfully emblematic of how self-serving the whole business is. The confidentiality requirement is also suspended when -- guess what! -- there's a fee dispute and the lawyer and the client are going at it.

Is that cute or what?

Here's the question again, since you didn't answer: Is it ever -- EVER -- the role of the defense lawyer to tell the unvarnished truth about a guilty client (which is most of them)?

Yes or no.

Posted by: Bill Otis | Feb 11, 2014 1:48:38 AM

Defense lawyer offers the location of the 8 year old girl's body in exchange for removing the death penalty. Prosecutor declines. Defense lawyer then puts forth the theory at trial that the parents, not his client, murdered the girl. He puts them through days of torment in the trial.

Disciplinary Counsel of California: no case against either defense nor prosecution lawyer.

Posted by: Supremacy Claus | Feb 11, 2014 2:27:42 AM

SC --

The facts you describe illustrate why reform is needed in the canons of ethics.

At present, the defense lawyer does nothing the canons describe as unethical when he stages this tormenting charade. Indeed, he would be applauded for creative and zealous advocacy. If the grieving parents of the girl get the salt rubbed in their wounds so that counsel can be more cleverly deceptive, well, hey, look, stuff happens.

You gotta remember what's important here. The important thing is that the defense lawyer preserve his preening self-righteousness no matter what. The parents, well, they'll get over it. They probably have another kid anyway.

Posted by: Bill Otis | Feb 11, 2014 2:38:20 AM

I recently resolved a case involving a cartel slave (confirmed kidnap victim "drafted" into cartel service or his family would die in front of him). The US' original offer was a 10-year mandatory minimum, and alleged Guidelines of 360 months to life if we blew trial. Only after I told the AUSA that I would be moving to recuse him as a witness to the cartel's threats (he himself had been pulled from the case for a time when reports arrived that the cartel knew which basketball league he coached his kids in) did we get the marginally just offer of 28 months served and no resistance to our efforts with Immigration. Oh, and the inviolate, un-Mirandized statement to a police interpreter was finally recognized as imperfect.

Deception and preening self-righteousness are not just at the defense table, Mr. Otis.

Posted by: Jay Hurst | Feb 11, 2014 7:38:23 AM

I guess when you're running out of field, you move the goalposts. It wasn't five days ago that Mr. Otis was pointing to executive clemency

To quote his comment (to a post about Rand Paul calling for reform) as to whether forgiveness has a place in our justice system: "It does. It's called executive clemency. For those who think it's underused, call the White House."

This editorial is calling the White House, so now Bill complains about the NACDL instead. Why not, rather, engage the central point, which is that clemency -- which, like the death penalty, is in the Constitution, and thus must have been important to the framers -- has turned into a farce?

Posted by: JoeR | Feb 11, 2014 10:26:41 AM

JoeR --

To suggest that those who think clemency may be underused in the present Administration is hardly to endorse its gushing, wholesale expansion, which is obviously what the NYT (and the NACDL, to the extent they're different) are after.

But you already knew that.

Still, I'll give you credit. You didn't call me a fascist or sadist. You're thus a step ahead of what is starting to pass for "argument" from the pro-defense side.

Posted by: Bill Otis | Feb 11, 2014 11:47:36 AM

Bill Otis: Do you favor making the Fair Sentencing Act retroactive to reduce the sentences of the thousands of Federal drug inmates still serving very long "Old Law" crack sentences?

Posted by: Jim Gormley | Feb 11, 2014 12:13:16 PM

Jay Hurst --

I can't believe you are actually using that story to (supposedly) illustrate the "preening and self-righteous" character of the prosecution. It doesn't even start to do that. What it actually does is illustrate how sick and evil the drug trade is.

Let's take it from the top. Your client's superiors in the cartel implicitly (but unmistakably) threatened the prosecutor and his kids.

Let's stop right there.

1. Do you approve of that?

2. Could you tell me how that makes THE PROSECUTOR look bad in any way whatever?

3. What does this tell us about the alleged harmlessness of drugs and trafficking in drugs?

OK, back to your story: You employ this threat as part of your litigation strategy. Specifically, you enlist it to tell the AUSA that you'll move to remove him as a witness.

Had I been the AUSA, my response would have been to recuse myself as the prosecuting attorney, get another AUSA to take over the case, and then appear as a witness anyway. The defense would be free to make any motion it cared to about that.

(There is something missing from your account of this case, because every lawyer knows that you cannot be a witness in a case you're presenting. But I take your account as it's given).

You then say that you got (and impliedly you took) the "marginally just offer" of 28 months to be served and no "resistance to our efforts with immigration." You conclude that this all shows "deception and preening self-righteousness are not just at the defense table."

With all respect, your story makes no sense. First, why is it marginally just, or just at all, for your client to serve over two years if he was, as you say, a forced slave of the cartel, not a willing participant? Second and much more important, why does ANYTHING in this story show deception, preening or anything else illicit about the prosecutor's character?

But your last line is worth repeating nonetheless (emphasis added): "Deception and preening self-righteousness are not JUST at the defense table, Mr. Otis."

Thank you for the admission -- the first I have seen -- that deception and self-righteousness exist among defense lawyers.

P.S. SC's story of the defense lawyer who grilled a murdered little girl's parents as if they were suspects -- after he had offered in plea bargaining to disclose the location of the girl's corpse -- shows something a good deal worse than mere deception and self-righteousness. It shows a cynical callousness bordering on inhuman cruelty. Do you have any problem with it? Why or why not?

Posted by: Bill Otis | Feb 11, 2014 12:22:37 PM

JoeR --

Errata: My first sentence should read: "To suggest that clemency may be underused in the present Administration is hardly to endorse its gushing, wholesale expansion, which is obviously what the NYT (and the NACDL, to the extent they're different) are after."

I apologize for the error.

Posted by: Bill Otis | Feb 11, 2014 12:27:23 PM

Jim Gormley --

I am in favor of the straightforward application of 1 USC Sec. 109, and of the Sixth Circuit's en banc holding in the Blewett case, available at: http://www.ca6.uscourts.gov/opinions.pdf/13a0336p-06.pdf

Now I have a question for you. Do you believe the law should encourage, or discourage, trafficking in crack?

Posted by: Bill Otis | Feb 11, 2014 12:39:43 PM

I'm with you about this bill!

"P.S. SC's story of the defense lawyer who grilled a murdered little girl's parents as if they were suspects -- after he had offered in plea bargaining to disclose the location of the girl's corpse -- shows something a good deal worse than mere deception and self-righteousness. It shows a cynical callousness bordering on inhuman cruelty. Do you have any problem with it? Why or why not?"

if I had been those parents the Defense Attorney would have much bigger problems then an ethics violation. Trying to figure out how to get his brain to work with a 9mm slug in it would be a much bigger problem.

Posted by: rodsmith | Feb 11, 2014 12:41:51 PM

Bill--

"As to your question: Look up some law. There are a number of exceptions to client confidentiality requirements. One is if the client tells you at lunch that he's going to assassinate a rival drug dealer tonight, and shows you the gun he's going to do it with. You have an ethical obligation, if you can't talk him out of it, to warn of the danger and attempt to avert it."

Just to correct the record, avoiding death or serious bodily injury falls under the permissive disclosure ethics rules, not the mandatory ones. At least with the ABA and among the jurisdictions I'm familiar with.

Not that I agree with this stance, and I certainly would err on the side of disclosure in that situation...but just saying...

"SC's story of the defense lawyer who grilled a murdered little girl's parents as if they were suspects -- after he had offered in plea bargaining to disclose the location of the girl's corpse -- shows something a good deal worse than mere deception and self-righteousness. It shows a cynical callousness bordering on inhuman cruelty."

I don't know, Bill...is this really improper? Yes, the tactic disgusts me...and this is why I'm not a criminal defense lawyer. But as I see it, the job of the defense lawyer is to show that there is reasonable doubt (or put more accurately, that the prosecution cannot prove their case BRD). Sometimes failure to investigate certain persons, or follow up on certain leads, is grounds for reasonable doubt. Sometimes evidence suggesting that someone else did it (even if that evidence isn't conclusive) is grounds for reasonable doubt. The point of our system is for both sides to present their best case, using selective evidence, and let the jury figure out the truth.

At the very least, it's a gray area, and one in which reasonable people can come out completely differently.

Posted by: Res ipsa | Feb 11, 2014 12:44:28 PM

rodsmith --

I'll be interested to see if any of the defense lawyers here have any view of that episode other than that the lawyer was Fulfilling the Highest Aspirations of the Profession and the Parents Were Nothing But Human Garbage Anyway, Not to Mention Their Scuzzy Daughter.

Posted by: Bill Otis | Feb 11, 2014 12:51:06 PM

Res ipsa --

The question is not whether it's improper. I have already conceded that, under existing canons, it is not improper.

The question is whether the canons should be reformed so that it IS improper.

To put it another way: Should the canons governing lawyers allow them to do what in any other context would be universally regarded as cruel, contemptible, dishonest and disgusting?

Would you answer that question yes or no?

Posted by: Bill Otis | Feb 11, 2014 1:13:09 PM

Bill--

If by your question you mean, would I desire that ethics codes be amended to prevent the example SC used, then yes.

The problem I have is that extreme cases tend to make bad law. SC's case, in my judgment, is an easy one, because I know who did it (hell, I even know where the body is). But it's also not the typical situation. But what if I believe that my client probably committed a murder, but I don't know that for certain (and the client denies it...because of course the police got the wrong guy, right?)--can I try to pin it on others?

All by way of saying...if we're going to preserve an adversarial system in criminal law (which, by its nature, deals with very sensitive and disgusting stuff), we have to be careful what we label as conduct that could cost someone their license.

Posted by: Res ipsa | Feb 11, 2014 4:09:51 PM

Res ipsa --

Fair enough. This topic deserves a great deal more discussion than either of us can give it in this setting.

Posted by: Bill Otis | Feb 12, 2014 12:39:45 PM

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