November 26, 2016
Terrific content and context for Prez Obama's clemency work at Pardon Power
Long-time readers know that the blog Pardon Power is a must-read for anyone who cares about clemency policies and practices. Of particular importance and value, P.S. Ruckman's work at Pardon Power consistently provides needed theoretical and historical context for better understanding recent clemency activities rather than falling prey to the the modern media tendency to follow and obsess over the latest "shiny object" of clemency. Great examples of why Pardon Power is a must-read these days as we move into the twilight of the Obama era are these recent posts of note over the holiday weekend:
Though I recommend highly all these posts, the last of the bunch has the most far-reaching and trenchant analysis. Here is how that piece starts and ends:
It seems more than likely that, before he leaves office, President Obama will break Woodrow Wilson's record for commutations of sentence. It is, however, more than a little amazing (if not highly informative) to compare the use of federal executive clemency in the two administrations.
By the time he left the White House, Wilson had granted 1,087 presidential pardons (as well as 226 respites and 148 remissions). Obama, however, has granted a mere 70 pardons, the lowest number granted by any president serving at least one full term since John Adams. It doesn't seem likely that Obama will pass out 1,000 plus pardons between now and the end of the term. But there appears to be little concern about it on any front. So, it is what it is.
Consequently, clemency, for Obama, has meant — for the most part — commutations of sentence, almost exclusively for those convicted of drug offenses. And these grants have — for the most part — been granted late in his second term. Indeed, the Obama administration already features the largest 4th-year clemency surge of any administration in history....
The federal prison population has boomed since Wilson's day. The Obama administration has been receiving record numbers of clemency applications, for years. On top of that, thousands remain in prison who were sentenced under drug laws which have been undone. The merciless neglect of the current clemency system needs to tanked. The process needs to be removed from career prosecutors in the DOJ who are unable / unwilling to process clemency applications in a timely fashion, with an eye toward mercy. The broken system has famously lacked transparency (since 1932) and, today, it even exempts itself FOIA law.
It is time to create a permanent clemency board / commission (a device often used in the states) in the Executive Office of the President of the United States. It is time for mercy to emerge once again as a regular feature of criminal justice. It's not just about numbers. It is about balance, fairness. It is about rehabilitation and restoration. It's about presidents using a power that was given to them ... to use ... not to abuse, or neglect.
So many marijuana reform developments and questions, with so many more on 2017 horizon
Though I blogged a bit in this space about marijuana reform right around the election (see here and here), over the last few weeks I have been content to cover this issues just over at Marijuana Law, Policy & Reform. But this new post about this new article about the thousands of Californians getting sentencing relief thanks to the state's passage of a major marijuana legalization proposition, Prop 64, reminded me that I should be reminding readers about the close links between marijuana reform in particular and sentencing reform in general.
The first post linked below tells the sentencing reform story, and some other postings from my other blog tell a whole lot of other interesting and dynamic stories about the current state and possible future of marijuana reform in the United States:
Mississippi prosecutor to argue old Facebook post helps justify LWOP sentence for juve getaway driver
This local article about a forthcoming sentencing in a Mississippi state case, headlined "Facebook post to be used in sentencing," strikes me as a disconcerting example of the equivocal evidence some prosecutors will highlight in an effort to secure the most extreme of prison sentences even for offenders who seem to be anything but the most extreme of criminals. Here are the details:
Prosecutors will use a Facebook post from 2010 when Gerome Moore was 13 showing him in possession of a handgun and "arguably" displaying gang signs to try to show Moore should be sentenced to life without parole in the January 2015 shooting death of Carolyn Temple in Belhaven. Moore was convicted of capital murder in September, but his sentencing is on hold. A capital murder conviction had meant a mandatory life sentence without the possibility of parole, but a 2012 Supreme Court ruling said judges must consider the unique circumstances of each juvenile offender....
Moore was 17 at the time of the crime. He didn't shoot Temple, but his gun was used. He and at least two others were driving around that evening looking for someone to rob. Prosecutors say they followed Temple's vehicle, a Mercedes, to her boyfriend's house in Belhaven. Once she got out her car and went to the curb to retrieve her boyfriend's garbage can, two of the individuals tried to take her purse. She resisted and one of them shot her. Prosecutors believe Moore stayed in the car and was the getaway driver, although he provided the weapon.
In court filings, Assistant District Attorney Randy Harris said, "The cumulative resume of Gerome Moore qualifies him for that exact sentence of life without parole." Harris said Moore's unwillingness to abide by the decent standards of society and to abide by the criminal laws began long Temple's shooting. In addition to the Facebook post, by the time Moore was 17, he would tell investigators he never went riding without his gun, according to Harris. Harris also talked about other crimes Moore was involved in as well as escaping from the Hinds County Detention Center after his arrest. He was later recaptured.
"Truth is that Moore was two months shy of attaining 18 years of age when this capital murder was perpetrated," Harris said. "Had the crime happened merely two months later, this discussion of the propriety of life without parole would not even be taking place as there would be no argument that without parole was an appropriate and legislatively approved sentence."
Moore's attorney, Aafram Sellers, argues his client shouldn't receive a sentence of life without parole. "Clearly, a child who did not actually kill or intend to kill anyone will not be among the uncommon and rare juvenile homicide offenders who might permissibly receive the state's harshest prison sentence," Sellers said.
Sellers said punishment of life in prison without parole would be disproportionate to the sentence of the shooter in the case, Antwain Dukes, who received a sentence of 25 years to serve.
To review, after a robbery went bad and resulted in the shooting of the victim, the robber who actually killed the victim received a sentence of 25 years, but Mississippi prosecutors now want the robber who only sat in the car during the shooting to receive an LWOP sentence. And Mississippi prosecutors are citing to a Facebook post by the defendant at age 13 when arguing an LWOP sentence for the juvenile getaway driver is justified. Hmmm.
November 25, 2016
New talk in New Jersey of bringing back capital punishment a decade after state abolition
The stark pro-capital punishment election results in a number of states, especially in deep blue California, has been a chief reason I now believe that any reports on the death of the death penalty are obviously premature. Another sign of these capital punishment times comes from this new local article headlined "Two N.J. lawmakers call for return of the death penalty." Here are the highlights:
Two New Jersey senators want to bring back the death penalty for what they call the "most heinous acts of murder," including terrorism and attacks on police officers. "These are extreme circumstances that are involved," said Sen. Jeff Van Drew (D., Cape May), who, along with Sen. Steve Oroho (R., Sussex), introduced legislation Monday to revive the death penalty. "But I do believe it's an option that should be there, however seldom used."
The death penalty was abolished in New Jersey in 2007. A state study commission concluded then that it cost more to sentence someone to death than life without parole, that advances in DNA testing had raised doubt about some convictions, and that the death penalty rarely was used. The last execution in New Jersey happened in 1963.... Voters in California, Nebraska, and Oklahoma favored keeping the death penalty when it was put on the ballot this month.
In New Jersey, in addition to fatalities caused by terrorism and the targeting of police officers, Oroho and Van Drew want to make the death penalty an option when a child is killed during a sex crime, multiple people are slain, or an individual already has a previous conviction for murder.
Oroho said he believes the death penalty could dissuade people such as Ahmad Khan Rahami, who is accused of setting off bombs in September in New York City, injuring 29 people, and in Seaside Park, N.J., along the course of a 5K run benefiting injured Marines. A delay in the race start prevented injuries there. The death penalty could not apply the Rahami case because no one was killed, but Oroho said the attacks illustrated the need for capital punishment. "Many people could have lost their lives," he said.
Former Gov. Jon S. Corzine ended capital punishment in 2007 after the New Jersey Death Penalty Study Commission — composed of judges, prosecutors, and others whom the Legislature asked to study the issue — advocated a ban, citing factors such as high costs. Keeping an inmate in New Jersey State Prison's capital-sentence unit cost at least $72,000 per year — $32,000 more than keeping an inmate in the prison's general population, the commission said in its report. The state Office of the Public Defender also estimated in the report that eliminating the death penalty would save $1.4 million annually. The office based that figure on 19 death-penalty cases that existed in 2006, and the costs of pretrial preparation and jury selection.
Thomas F. Kelaher, who was part of the commission and Ocean County's prosecutor at the time, had his office try the death penalty on two Bronx men accused of tying up a mother and her adult son, slitting the mother's throat, and shooting both in the back of the head in a Barnegat home in 2000. Kelaher said more than 200 jurors were interviewed — mostly about whether they supported the death penalty — before 14 were selected. "It took us a long, long time to get to the conclusion of the case, and they never got the death penalty anyway," said Kelaher, who is now mayor of Toms River. Gregory "Shaft" Buttler and Dwayne Gillispie received life sentences instead.
Had they received the death penalty, Kelaher said, appeals likely would have followed and taken up more time and resources. Kelaher called the process "a waste of time." "It never ends," he said.
West Orange Police Chief James P. Abbott, who also was on the death-penalty commission, said that it could take years for someone to be executed, and that trials and appeals cause families to relive the pain of losing a loved one. "To me," Abbott said, the death penalty is "where it belongs — in our past." The justice system, he said, also is subject to human error, which can put the wrong people behind bars.
Van Drew said concrete evidence would be crucial if the death penalty were to return in New Jersey. "DNA proof would be absolutely necessary in some way," he said. "We have to be absolutely sure that this person is guilty."
Because New Jersey has not executed anyone in over 50 years, I do not think formally making the death penalty legal again in the Garden State would actually increase the chances of an execution by any tangible amount. But I do think, for reasons partially explained in this recent post about new non-capital sentencing reforms passed in California and Oklahoma, that sophisticated and shrewd New Jersey advocates for various criminal justice reforms might consider embracing this symbolic call to bring back the death penalty in order to have a strategic "pace car" for other needed New Jersey reforms. Specifically, as the article here suggests, the New Jersey lawmakers advocating bringing back the death penalty might be uniquely willing to have DNA access and/or protections against wrongful convictions included in any bill to bring back capital punishment. Relatedly, this FAQ page about New Jersey corrections suggests as many as 1000 folks are serving life with parole sentences in the state. Perhaps a death penalty bill that specifies the "worst of the worst" killers who will be subject to capital punishment could also include provisions to make the not-so-worst killers more likely to earn parole.
"Intuitive Jurisprudence: Early Reasoning About the Functions of Punishment"
The title of this post is the title of this intriguing new research essay from a group of academics connected to the University of Chicago's Department of Psychology. The piece, authored by Jessica Bregant, Alex Shaw and Katherine Kinzler, has been posted on SSRN with this abstract:
Traditional research on lay beliefs about punishment is often hampered by the complex nature of the question and its implications. We present a new intuitive jurisprudence approach that utilizes the insights of developmental psychology to shed light on the origins of punishment intuitions, along with the first empirical study to test the approach.
Data from 80 child participants are presented, providing evidence that children expect punishment to serve as a specific deterrent, but finding no evidence that children expect punishment to have a general deterrent or rehabilitative effect. We also find that children understand punishment in a way that is consistent with the expressive theory of law and with expressive retributivism, and we present evidence that an understanding of the value of punishment to the social contract develops throughout childhood.
Finally, we discuss the application of the intuitive jurisprudence approach to other important legal questions.
November 24, 2016
Thankful for so much for so many reasons ... including all sorts of 2016 sentencing law and policy developments
Reviewing some past Turkey Day posts, I noticed my wise tendency to just express thanks in this space on this day for giving thanks. For example, this post five years ago started this way: "I have so much to be thankful for on this Thanksgiving 2011, I do not even know where to start. I do know that today is an especially good day to be thankful that most Americans will spend today reflecting on how much they have to be thankful for in this wonderful nation rather than spending so much time complaining about this or that." I now find it funny and fitting that circa 2016 I cannot even remember what folks were spending so much time complaining about on Thanksgiving 2011.
In the wake of a jarring election season and result, I know what most folks are busy complaining about now. But I remain thankful for so much for so many reasons today, and that includes an array of interesting and dynamic sentencing law and policy developments that transpired over the last year. (I will wait until next month to do a few formal 2016-in-review posts about sentencing developments, but I am eager now to assert that I think everyone who follows sentencing law and policy can and should find something encouraging to be thankful for this holiday season.)
And, speaking of being thankful and 2016 sentencing law and policy developments, I want to remind readers of this Federal Sentencing Reporter call for commentaries. And, just to stir the pot, I will also link to two prior Turkey Day posts that might generate some engaging discussions:
November 23, 2016
"Four predictions about President Trump’s Supreme Court" ... that seem somewhat iffy
The quoted portion of this post title is the headline of this new Washington Post commentary authored by poly-sci professor Kenneth Moffett. But as my addition to the title suggests, I am not too sure about all the predictions. Here are some highlights:
One of President-elect Donald Trump’s most important decisions will be choosing a Supreme Court nominee to replace the late Justice Antonin Scalia. And while Trump has not clearly signaled who he will pick, here are four predictions about the next Supreme Court:
1. Trump will appoint a conservative. What kind of conservative isn’t yet clear. ...
Eight potential Trump appointees have more liberal scores than Scalia, while four are more conservative. Regardless of which side they fall on, eight are clustered pretty close to Scalia, indicating that they would likely be justices in his mold....
The chart suggests that it is virtually certain that Trump will nominate a conservative, most likely one whose preferences are closely aligned with Scalia. Of course, if Trump deviates from his announced list of 21 — not an impossibility given his penchant for surprise — then that may be less certain.
2. The court will get back to hearing its normal caseload.
During the 2015 term, the court heard 69 cases, but only has 48 on the docket in 2016.... [When] a new justice will be confirmed, bringing the court back to full strength. When that happens, the court’s docket will return over the next term or two to the average of where it had been in the previous five terms, around 69 cases.
3. The court is not going to undo affirmative action programs — at least not immediately....
4. The court could move to weaken labor unions and expand gun rights.
For complicated reasons, I am not sure I would make book on most of these predictions. But on a holiday eve, I will just say I would love to hear others' SCOTUS predictions (especially in the sentencing space).
November 22, 2016
Prez Obama grants 79 move commutations, taking his total over 1000 for his administration
As reported in this new Washington Post article, headlined "Obama grants 79 more commutations to federal inmates, pushing the total past 1,000," the outgoing President has decided to make some clemency news before turning torward Turkey Day festivities. Here are the basics from the start of this article:
President Obama granted commutations to another 79 federal drug offenders Tuesday, pushing the number of inmates he has granted clemency past 1,000.
Obama’s historic number of commutations was announced as administration officials are moving quickly to rule on all the pending clemency applications from inmates before the end of the year. The Trump administration is not expected to keep in place Obama’s initiative to provide relief to nonviolent drug offenders.
“The President’s gracious act of mercy today with his latest round of commutations is encouraging,” said Brittany Byrd, a Texas attorney who has represented several inmates who have received clemency since Obama’s initiative began in 2014. “He is taking historic steps under his groundbreaking clemency initiative to show the power of mercy and belief in redemption. Three hundred and forty two men and women were set to die in prison. The President literally saved their lives.”
The White House and the Justice Department were criticized by sentencing reform advocates earlier this year for moving too slowly in granting commutations to inmates serving harsh sentences who met the criteria for clemency. The administration has greatly picked up the pace, but advocates still want them to move faster before time runs out.
“At the risk of sounding ungrateful, we say, “thanks, but please hurry,” said Kevin Ring, vice president of Families Against Mandatory Minimums. “We know there are thousands more who received outdated and excessive mandatory sentences and we think they all deserve to have their petitions considered before the president leaves office. Petitioners are starting to get anxious because they know the president is, in prison parlance, a short-timer.”
On a press call this afternoon (which is available here), Deputy Attorney General Sally Q. Yates delivered remarks that included these sentiments:
As of this morning, President Obama has granted clemency to over 1,000 men and women who were incarcerated under outdated sentencing laws.
The number 1,000 is significant, but it’s important to remember that this is more than a statistic. There are 1,000 lives behind that number, 1,000 people who had been sentenced under unnecessarily harsh and outdated sentencing laws that sent them to prison for 20, 30, 40 years, even life, for nonviolent drug offenses. It's part of my job to review the petitions for each of these individuals, and I've been struck by the common threads woven through many of them — lack of access to education or real economic opportunity, absence of parents, drug addiction, hopelessness. But in these petitions I've also seen something else — remarkable introspection, a real sense of responsibility for their conduct, and a dogged determination not to repeat the mistakes of the past and to ensure that they, and especially their children, chart another path.
The President has given these 1,000 individuals that opportunity. And while we are a nation of laws, and those who violate those laws must be held accountable, we are also a nation of second chances. The mission of the Justice Department not only supports but demands that we do everything in our power to ensure that our criminal justice system operates fairly. In this case, that means reducing disproportionate sentences imposed under out-of-date laws. And we are privileged to serve a President who has not only taken on this responsibility himself, but who has given us the chance to fulfill our core charge to seek justice....
And a lot of work has gone into the clemency initiative to get us to this historic announcement today. Since the initiative was announced in 2014, thousands of petitions have been submitted and reviewed by the hard working attorneys in the Office of the Pardon Attorney, my office, the Office of the Deputy Attorney General, and the White House to identify nonviolent drug offenders whose sentences would be significantly lower if they were sentenced today. While we are proud of the progress we’ve made so far, as I have said before, our work is still not done. We will continue to make recommendations on clemency applications until the end of the Administration, fulfilling the goals we set more than two and a half years ago when we launched the clemency initiative.
"Trump will not pursue charges against Clinton, aide says"
The title of this post is the headline of this new FoxNews piece, which reports these details:
President-elect Donald Trump will not pursue charges against Hillary Clinton relating to the Clinton foundation or the former secretary of state’s use of a private email server, former Trump campaign manager Kellyanne Conway said Tuesday.
In an interview with MSNBC’s Morning Joe, Conway said that while Clinton “has to face the fact that a majority of Americans don’t find her to be honest and trustworthy,” it would be a good thing if Trump can “help her heal.” "I think when the President-elect, who's also the head of your party…tells you before he's even inaugurated he doesn't wish to pursue these charges, it sends a very strong message, tone, and content,” she said.
The move is a significant break from Trump’s campaign rhetoric, which included a warning that if he were president he’d get his attorney general to appoint a special prosecutor to investigate her behavior. In the second presidential debate he quipped to Clinton that if he was president: “you’d be in jail.” Cries of “lock her up” were a common feature at Trump’s campaign rallies....
Trump's decision not to pursue charges against Clinton would not prevent congressional Republicans from opening investigations and referring them to the Justice Department for charges. Trump expanded on his decision at a meeting with reporters at the New York Times Tuesday afternoon, telling them "I think it would be very very divisive for the country" to prosecute the Clintons, although he hadn't taken it off the table entirely.
Though I am 99.9% certain nobody will fully understand the full basis for my first two reactions here, I will share them anyway: (1) I am a tiny bit disappointed, and (2) I hope congressional Republicans will at least do some investigation into the deleted emails and/or into pay-to-play with the Clinton Foundation while Hillary Clinton was serving as Secretary of State.
UPDATE: Kent over at Crime & Consequences has this post on this topic under the title "Amnesty for Hillary."
November 21, 2016
"Four Ways Drug Policy Reformers Must Play It Smart Under the Trump Administration"
The title of this post is the headline of this notable new commentary by Bill Piper, which gets started this way:
I began working, advocating and lobbying for federal-level drug policy reform in Washington, DC in the last year of Bill Clinton’s presidency. I’ve continued to do so ever since: I was a loyal soldier in the war against the War on Drugs through eight years of George W. Bush and then eight years of Barack Obama. But now, with the election of Donald Trump, it feels like the work during those three presidencies was just basic training—the real challenge is just beginning.
Like many people, I’m still trying to wrap my mind around the very idea of Donald Trump as president. But what’s certain is that drug policy reformers are going to have to play it smart in the new era, and I do have some initial thoughts.
First, we’re in uncharted territory. We have never had a president like this—so far removed from establishment norms, openly promoting white supremacy, believing in and promoting wacko conspiracy theories. Complicating matters, he doesn’t seem to have fixed positions, rarely gives specifics and contradicts himself often. No one knows for sure what exactly to expect, but we should assume the worst.
His administration, which looks set to be staffed by drug-war extremists, could go after state marijuana laws. Instead of just opposing sentencing reform, they could push for new mandatory minimums. They might demonize drugs and drug sellers to build support for mass deportations and a wall. Trump’s law-and-order rhetoric could fundamentally alter the political environment, nationally and locally.
Right now there is a bipartisan consensus in favor of reducing incarceration—that consensus is in danger. We could be set back decades if we’re not careful. We need to rethink a lot of what we’ve been planning and think about how we message. And it’s more important than ever that we support our allies in other movements and stand strong for racial justice. We need to re-learn how to play defense.