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July 23, 2018

A father's perspective on clemency and its potential (and limits)

A helpful reader alerted me to this interesting new commentary authored by John Owen, headlined "A father's plea for mercy for his imprisoned daughter."  Here are excerpts:

President Donald Trump’s recent pardons and commutations have spotlighted, once again, the importance of executive clemency to soften the harshness of our criminal justice system.  President Abraham Lincoln was famous for preferring mercy over “strict justice.”  In fact, he used his clemency power so liberally, his attorney general had to assign someone to shadow him to record the names of all those he pardoned or commuted, according to author Margaret Love....

That’s how executive clemency is supposed to work.  It operates outside our rule of law, but it also respects it. It is the personal prerogative of the leader and so, inevitably, can be arbitrary.  It is also a message to our branches of government and to our society to mitigate our desire for vengeance with compassion....

I have spent the past nine years grieving the almost 20-year sentence imposed on my daughter, Mary Anne Locke, for her low-level, non-violent role in a meth distribution conspiracy.  She was ordered to report to federal prison in 2009, six weeks after she had a Cesarean section.  Along with her baby, she left behind a loving husband and two other children.

Mary Anne did not have an easy life, and I accept the role I played in that.... In her early teens, Mary Anne found drugs and men who were themselves substance abusers and also physically violent....  She relapsed at age 28, triggered by personal tumult, as well as health problems for which she was prescribed amphetamines. It was around this time that she became involved with the head of the meth conspiracy charged in her federal case. He gave her an unlimited supply of meth and, in return, embroiled her in a supportive capacity in his drug distribution activities.

Pregnant with her second child in 2007, Mary Anne again disavowed the drug lifestyle.  The indictment in her federal case was handed down in 2008, when she was pregnant with her third child, after two years of sobriety and a wonderful marriage with her then husband, who had no connection with her drug activities. She cooperated fully upon arrest, at considerable risk to herself.

Imagine our family’s devastation when she was sentenced to 234 months, or 19.5 years.  Murderers get less time. Although nationally, statistics indicate that defendants with her characteristics would receive an almost 50 percent reduction of their applicable guideline, the judge gave her just a 20 percent reduction.  Mary Anne was not the kingpin or organizer. She never engaged in or threatened any violence.  She played a supportive role to fund her addiction.  She had never spent more than a night in custody.  She is precisely the kind of low-level player deserving of leniency.

Rather, her sentence was driven by the charging decisions of the prosecutors she faced and the particular sentencing philosophy of her judge.  This judge has been critiqued as one of the harshest in the country.  In fact, she is the only sitting judge to have been subject to a commutation by Trump (the 27-year sentence of Sholom Rubashkin).  Moreover, today, not only would another judge give Mary Anne an almost 50 percent reduction of her applicable guideline, Mary Anne’s sentencing guideline would be substantially lower....

Needless to say, Mary Anne has served the top end of that guideline.  And she has done so with distinction.  She has been an exemplary prisoner — discipline-free, who has worked and studied consistently throughout her sentence, completing her final year in a three-year college program in office administration.  Don’t get me wrong.  Mary Anne broke the law and deserved punishment.  But her lengthy sentence violates any basic notions of justice and proportionality.  She deserves mercy.

She applied for clemency before President Barack Obama, and has again applied before President Trump.  She was represented in both applications by the Clemency Project at the University of Minnesota Law School.  I am a lifelong Republican. I am, however, forever grateful to Obama for bringing executive clemency back to its roots — to address systemic unfairness, while also acknowledging the humanity of each person behind bars.  I am also buoyed by Trump’s recent clemency decisions, and his pronouncements that he plans to use it even more expansively.

But nothing beats a legislative solution that grants my daughter — and the thousands of prisoners like her — a “second look” at the severity and fairness of their sentence, in a public proceeding, with a judge and an advocate.

July 23, 2018 at 05:30 PM | Permalink

Comments

If you follow an American male with a stopwatch, he spends an average of 7 minutes a day with his children. Those children are more likely in the care of another female, either that wonderful father's mother or his new girlfriend. Hopefully these ladies are normal.

Are these children better off in the care of normal women, or should their mother be released? She is a drug addict and drug dealer. Is exposing children to a person with the character associated with those activities good or bad for the children? It is not a straight forward question to answer. Her prison sentence may spare them the traumas and damages associated with her lifestyle.

Posted by: David Behar | Jul 23, 2018 9:24:28 PM

Apparently, a purveyor of a crack house in E. St. Louis with a violent history was more worthy of clemency. Such is the caprice of Barack Obama. Speaking of apparent disparities in clemencies granted by Obama, compare and contrast the clemency granted to the Puerto Rican terrorist and the clemency denial regarding Leonard Peltier. Peltier had a smaller body count--but he did kill FBI agents--of course, Obama's thwart Trump strategy required help from FBI Director Comey--hmmmmmm.

But let's look at this:

https://www.ajc.com/news/youth-second-chance-another-family-tragedy/E1jgzjHXPceQz6OdWlVEjN/

This case exemplifies why lenience is so dangerous. Doug always yaps about showing a commitment to freedom by releasing criminals. How much freedom does Christian Broder have?

Posted by: federalist | Jul 24, 2018 6:59:06 AM

“I don’t want anybody else to be held at gunpoint by this man,” the judge said in court when a prosecutor objected to her plan, according to the transcript. “I want to end it. You’re interested in punishment. I’m interested in rehabilitation and community safety for the future, because he is going to get out, and I want him to be a positive influence in the community.”

That's a quote from the judge in the Myrick case. Why in the world would we give arrogant judges like Ms. Downs the power to grant lenience to thugs?

Posted by: federalist | Jul 24, 2018 7:34:16 AM

Judge Linda Reade is a callous female fellow of Judge Julia Gibbons. To Gibbons, I sent the following letter on learning she had ordered a LIFE sentence for Alice Johnson. BTW, I loved that photo of Reade at a social occasion, distended liver observable to all, with drink in hand. No, alcohol abuse doesn't affect her-- no way, no how.

Judge Gibbons:

I had hoped the day would arrive when Federal Judges would be hoisted on their petards
for their aggressive, sadistic sentencing of human beings, and their celebratory passion
in hammering people with the Sentencing Guidelines (passed by America's over-compensated political lemmings).

In your case---"with all due respect"--sonorously intoned I would imagine by many U.S. prosecutors, you sentenced a woman
Alice Johnson, to life without parole, away from her family, past any hope of childbearing years, and simply put, without any hope whatsoever,
puts you into a category I hope one day soon to see: the Hall of Shame. You set no example for women.

I used to wonder whether, or how much, judges were themselves self-medicated and/or drank to oblivion. That habit
was not criminal--too many politicians equally addicted, but "drug" possession by poor blacks and rural
whites-- now those were the true criminals and the real crimes. You were among the unblemished living in glass houses.

For shame. May it besmirch your legacy eternally, whatever that may be.

I led a trek of a Chicago-area cemetery, Graceland, last weekend, that may give you pause.
Located there is a tombstone for Chief Justice Melville Fuller. It's very discreet, and his name is inscribed below that of his wife.
He is not listed nor named in the official Graceland Cemetery map, but intrepid me found it.
Fuller's diminished heritage never ceases to amaze the lawyers and historians who accompany me, but it should serve as a lesson
to those who forget the humanity of people appearing before them.

Posted by: FluffyRoss | Jul 24, 2018 10:26:05 AM

That Myrick case is ugly, federalist, and I am especially curious about the role and responsibility of the (seemingly somewhat shady) diversion program that he was sent to after time in juve: http://fox5atlanta.com/news/i-team/i-team-teen-accused-in-murder-of-wedding-guest-had-no-issue-in-prison-diversion-program

That said, I am eager to have you explain why you think the quote by the judge about "rehabilitation and community safety" somehow makes her "arrogant." I believe Georgia had juvenile justice reform enacted in 2013 that called for judges to seek to put more juve offenders into community-based programs rather than prison. I do not know the details of the law well, but I know juve justice systems have long emphasized rehabilitation over punishment for even the most serious of juve offenders. You can disagree with the spirit or substance of juve justice laws and even disagree with how they were applied in this case, federalist. But calling the judge arrogant for doing what laws encourage her to do seems quite misguided.

Posted by: Doug B | Jul 24, 2018 11:30:33 AM

The arrogance drips from the page.

First of all, her casual denigration of the prosecutor coupled with the ivory tower lecturing is off-putting. Judges have no business talking to prosecutors in that manner.--as the prosecutor is in no position to defend him or herself. The judge acted like she knew best, and clearly she did not.

Second of all, when confronted with evidence that Myrick was actually NOT a positive influence, she refused to consider the fact that she might be wrong.

As for "the law"--from what you describe, it sounds hortatory. And is 2 1.2 years enough for an armed robbery? You seem to think so.

This judge is responsible for the death. Let's start by getting that right.

Posted by: federalist | Jul 24, 2018 8:45:51 PM

I am struggling to see what you call "ivory tower lecturing" given that prioritizing "rehabilitation and community safety" over "punishment" is so fundamental to so much of juvenile justice in both law and practice. That said, the facts do show that the judge was wrong to have faith in the Vision Unlimited program as a means to achieve rehabilitation or community safety. Based on what I have read about Myrick, I have a hard time seeing why and how a judge concluded he could be safely released when he was.

Posted by: Doug B | Jul 24, 2018 9:29:05 PM

She lectured the prosecutor in personal terms: "You're interested in punishment." But she, the enlightened judge was interested in "community safety for the future." As if the prosecutor were some mindless drone . .. . . perhaps, Doug, in your ivory tower, you cannot see the arrogance and condescension dripping from the transcript.

Seems to me that the judge was interested in virtue-signaling while the prosecutor was interested in community safety. And the judge was too arrogant to admit she was wrong about Myrick when his instagram posts came to light.

1. Do you support the reduction of Myrick's sentence to 2 1/2 years?

2. Will you concede that armed robbery, when committed by juveniles, is in grave danger of escalation given juveniles' weaker ability to control impulses?

3. Willl you concede that the "You're interested in punishment" was rude and unbefitting a judge?

4. Will you concede that the victim's death was entirely preventable.

5. Will you concede that if we, as a society, are going to take chances on juveniles, that court supervision has to be better than what happened here.

6. Will you concede that, because juvenile's brains are still developing, juvenile armed robbery is especially dangerous to innocent victims?

And if you will not concede, please explain why.

Posted by: federalist | Jul 25, 2018 7:52:41 AM

federalist, you are right that I do not see "arrogance and condescension dripping from the transcript," but rather only see a judge stating on the record that she is "interested in rehabilitation and community safety" rather than "punishment." As I have been trying to you explain, that reflects a long-standing approach to juvenile justice adopted by legal systems throughout the nation for many decades. See, e.g., Kent v. US, 383 U.S. 541, 554 (1966) (explaining that with juvenile adjudications "the objectives are to provide measures of guidance and rehabilitation for the child and protection for society, not to fix criminal responsibility, guilt and punishment")

You may see "arrogance and condescension dripping" from the judge asserting that the prosecutor was embracing the wrong legal philosophy at sentencing. But without knowing applicable Georgia law well (and without seeing a full transcript), I am disinclined to jump to that conclusion. Still, I am prepared to jump to some other conclusions in light of your questions:

1. No.

2. Depends on the role of a juvenile in the armed robbery (e.g., leader vs. hanger-on, brought/brandished gun, etc), but I share your general instinct that it is critical for a judge in this situation to assess whether a juve offender seems likely to escalate or de-escalate his criminal behaviors.

3. No. If the Georgia law says "punishment" is not a proper or primary goal in this context, explaining to a prosecutor why his sentencing proposal is being rejected in these terms seems like a reasonable comment from a judge. (If, in contrast, applicable law says "punishment" is a proper/primary goal, this the statement is unreasonable.) This is why I keep stressing the need to understand applicable Georgia law before jumping to any conclusions about that statement.

4. Yes. (And this is why the judge made a mistake based on her own avowed commitments: her disposition obviously did not successfully advance rehabilitation and community safety.)

5. Yes. (And this is why I want to know a lot more about this Visions Unlimited program that somehow had a representative, speaking on the record, assuring the judge that it could achieve rehabilitation and community safety for this offender.)

6. I think all forms of armed robbery (and really all forms of gun activity) can be "especially dangerous to innocent victims." I would love to see data on whether juve armed robbery results in more harm than adult armed robbery. Are you aware of any such data?

Posted by: Doug B | Jul 25, 2018 11:08:40 AM

Neither punishment nor rehab is effective to lower the crime rate. The rewards of crime are too great. The culture of crime is too compelling, once on the street. It is like being an Israeli in Iran or a an owner of the law on a rent seeking law blog. You will change before the surroundings will change.

The sole effective and mature purpose of sentencing is incapacitation. It went up after mandatory guidelines. Common law crime decreased 40%. Decarceration succeeded in lowering the prison population by 3%. Murder went up by 10-15% in many major cities.

I thought, juveniles were more impetuous, according to the Supreme Court. By definition their age makes them more dangerous, but less culpable, than adults committing armed robbery.

Posted by: David Behar | Jul 26, 2018 6:56:53 PM

Aaaaahh the Berman fog.

Let's recap.

First, it's telling that Professor Berman's even interested in defending the judge from my attacks. She inexplicably refuses to revoke probation and all Doug can worry about is that meanie federalist called her"arrogant."

Second, the judge told the prosecutor what the prosecutor was thinking. So now she's a mind-reader? She denigrated the prosecutor's motivation and acted as if she cared more about public safety than the prosecutor. If you can't see the imperiousness and condescension, well, I guess you're just blind.

Third, the reference to Georgia law is a nice try. Georgia law clearly allowed the long sentence. And the prosecutor was making an argument that was based on incapacitation.

Fourth, how much freedom does the victim have in this case? Hmmm. That would be none.

Posted by: federalist | Jul 26, 2018 10:16:11 PM

federalist, you asked why "arrogant judges like Ms. Downs" are given power to send juvenile offenders to a diversion program. I said I was curious about the seemingly suspect diversion program, and then asked why you were calling the judge arrogant when it seemed she was (perhaps) seeking to faithfully apply Georgia law. I am not defending the judge; just trying to understand the basis for your particular attacks on her. She made a deadly mistake, but one I see as based on a misguided hope Myrick could be rehabilitated. Perhaps you think it arrogant for the judge to pursue that end, but I generally do not think it arrogant for a judge to seek to follow applicable laws.

Meanwhile, you call this judge, based on a single phrase in newspaper quote from a transcript, arrogant, rude, imperious and condescending. That seems to me to be a whole lot to take from a single phrase. Seeking your explanation was not, I do not think, a way to call you a meanie, rather it just provided for me another window into how you see the world and the judiciary.

And, indeed, the mistake made by the judge here cost the victim his freedom, and that is a tragedy and one that I am sad was not avoided.

Posted by: Doug B | Jul 27, 2018 9:53:23 AM

Doug, it is presumptuous to tell person what that person is thinking . . .. how you don't see that is beyond me.

Posted by: federalist | Jul 27, 2018 3:16:59 PM

Being presumptuous is not the same as being "arrogant," federalist. That semantic niggle aside, I have not seen the whole transcript, and it seems possible that the prosecutor could have said something to the effect of "the defendant needs to be punished for _____."

Would you still consider the judges's statement "You’re interested in punishment" to be arrogant, rude, imperious, condescending and presumptuous if the prosecutor had talked about being interesting in punishment for the defendant prior to that statement?

Again, my point is not to defend the substance of the judge's decision, but rather to suggest we need to see the whole transcript before labeling her attitude based on one phrase. Interestingly, according to this local article, the judge here was an Assistant District Attorney for 13 years before becoming a judge, and had some problems with the operation of her old office: https://www.ajc.com/news/local/downs-unlikely-run-for-fulton-after-commission-ruling/pfn04o3Sf4OKJT2u2JIo4N/?icmp=np_inform_variation-test. Perhaps you have read the judge's mind/statement properly, as it is certainly plausible that she believed she knew what prosecutors were thinking based on her own long history as a prosecutor.

Posted by: Doug B. | Jul 27, 2018 5:00:50 PM

Her presumptuousness--i.e., reading the prosecutor's mind and then telling the prosecutor what his/her motivation is, is arrogant. And yeah, I would. A judge is supposed to be patient etc. Her comment presupposes a superior knowledge, when he whole thing is a crapshoot, and is an exercise in virtue-signaling--which is off-putting as hell.

And, when confronted with irrefutable evidence that the kid was dangerous, she ignored the pleas to incapacitate him.

And someone died.

Posted by: federalist | Jul 27, 2018 9:26:55 PM

https://www.11alive.com/article/news/local/brookhaven/chief-judge-diversion-program-release-statements-about-teen-accused-in-brookhaven-murder/85-577835291

And look at the judges defending each other and passing the buck. Wow.

Posted by: federalist | Jul 27, 2018 9:34:27 PM

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