Sentencing Law and Policy

"President Barack Obama proving stingy with his pardon power"

The title of this post is the headline of this little piece today in the Chicago Tribune.  These basics about President Obama's poor clemency track record to date should be familiar to regular readers of this blog:

A lot of things have moved pretty quickly in the Obama administration. Presidential pardons are not among them.  In two and a quarter centuries, only four presidents have been slower than President Barack Obama in exercising their authority of executive clemency -- granting either pardons or commutations of sentences to the convicted -- with thousands of applications pending at the Justice Department.

Some related posts on federal clemency:

• Notable press stories noting Obama's lack of clemency action
• A simple plea for Prez Obama: grant at least a single clemency in your first 100 days
• Historical evidence that it is NOT too early to start demanding clemencies from President Obama
• Still waiting ... and waiting ... and waiting ... on the clemency front
• Another public and potent call to reinvigorate the pardon power
• "Judge urges Obama to cut coke dealer's sentence"
• ACS issue brief on the pardon power
• Latest FSR issue on "Learning from Libby"
• "The Fall of the Presidential Pardon"
• When will President Obama start acting like President Lincoln when it comes to the clemency power?
• What might 2009 have in store for . . . executive clemency?

Notable press stories noting Obama's lack of clemency action

It is sad, annoying and telling that the mainstream American press is now talking about President Obama's failure to pardon the long dead boxer Jack Johnson (see here and here), rather than about his failure to grant a single clemency to a live person more than nine months into his Term.  P.S. Ruckman has this definitive post on this topic, which concludes this way:

The power to forgive is not a matter of sport, and should not be the fodder of publicity hounds or the passing pet project of Hollywood elites.  The clemency power should used to address the real-life punishments and disabilities of the living.  It should not be reduced to (or confused with) a mechanism to mollify the whims of unrelated parties decades after the end of a life -- and, of course, all meaningful punishment and disability.  While it may make members of Congress feel good about themselves to pat each other on the back, after the fact, for a feigned accomplishment, our prisons continue to hold individuals who deserve freedom (or at least a chance at freedom), and our society has citizens who have long since fulfilled the requirements of justice yet continue to feel the sting of punishment.  Mr. President, they deserve your attention first.

Valuably, the media across the pond link the Jack Johnson story to the broader story of President Obama's failure to grant any clemencies to date in this article from The Sunday Times.  Here is one snippet from that piece:

The omission [in exercising the clemency power] may partly be due to a bureaucratic breakdown in the Justice Department, which is responsible for recommending presidential action in clemency cases. Legal scholars also suspect that Rahm Emanuel, Obama’s chief of staff, is implacably imposed to any initiative that might be criticised as softness on crime.

“Pardoning used to be considered a part of the routine housekeeping business of the presidency and hundreds of grants were made every year, without fanfare, to ordinary people,” said Margaret Colgate Love, a lawyer specialising in clemency requests.  “But the system broke down in the Clinton administration and the Justice Department’s pardon office has become a place where petitions for presidential mercy go to die.”

Some related posts on clemency:

• A simple plea for Prez Obama: grant at least a single clemency in your first 100 days
• Historical evidence that it is NOT too early to start demanding clemencies from President Obama
• Still waiting ... and waiting ... and waiting ... on the clemency front
• Another public and potent call to reinvigorate the pardon power
• When will President Obama start acting like President Lincoln when it comes to the clemency power?
• "Judge urges Obama to cut coke dealer's sentence"
• The sad (unpardonable) state of compassion in the Bush Administration
• ACS issue brief on the pardon power
• Latest FSR issue on "Learning from Libby"
• "The Fall of the Presidential Pardon"
• What might 2009 have in store for . . . executive clemency?

Mental illness cited by lawyers as reason to grant clemency to DC sniper

This Washington Post article, which is headlined "Sniper's lawyers ask for clemency, saying he's mentally ill," reports on the efforts by lawyers to prevent the execution of a high-profile capital defendant in Virginia.  Here are the basics:

Attorneys for convicted sniper John Allen Muhammad said their client is mentally ill and they have asked Virginia Gov. Timothy M. Kaine (D) to spare his life.  Thirteen people were shot, 10 fatally, when Muhammad and accomplice, Lee Boyd Malvo, went on a random shooting rampage around the Washington region in 2002.

Muhammad's lawyers said in a statement they asked Kaine on Thursday to commute Muhammad's sentence to life in prison.  They said Muhammad's illness is "illustrated by brain damage, brain dysfunction, neurological deficits as well as his psychotic and delusional behavior."

The defense team said Muhammad's mental illness was exacerbated by his military service in the first Iraq war.  They presented Kaine with audio interviews of attorneys, mental health experts and a witness.

Muhammad, now 48, is scheduled to be executed Nov. 10.  His lawyers said they plan to file an appeal to the U.S. Supreme Court on Nov. 3.  The U.S. Supreme Court has banned executing the mentally ill.

I would be truly shocked if Muhammad was granted clemency, unless perhaps every member of every victim's family supported clemency.  And that itself would be shocking.

Reviewing Texas's recent record on capital clemency

The Houston Chronicle has this new article on capital clemency in Texas, which is headlined "Perry uses clemency sparingly on death row; Governor has never called off an execution on a claim of innocence." Here are some notable snippets:

In nearly nine years as Texas governor, Rick Perry has never spared a life based on a claim of innocence and only once delayed an execution in such a case, according to a Chronicle review of public records, clemency statistics and information from the governor's office.

During that same period, officials in other death penalty states granted clemency for humanitarian reasons at least 200 times — 171 based on questions of innocence in Illinois alone.

Texas has executed 200 convicts under Perry's watch, but he has spared just one condemned man's life in a case in which he was not compelled to do so by the U.S. Supreme Court.  In that case, the inmate Perry saved in 2007 was not a killer but the admitted driver of a getaway car, condemned alongside the triggerman in a joint trial under Texas' tough “law of parties.”...

Clemency — the use of executive power to reduce, forgive or delay a sentence — is considered the last fail-safe in the death penalty review process nationwide.  Yet in Texas, it is almost never granted.  In fact, at least 50 of the past 200 executions were carried out without any clemency board review at all, a Chronicle analysis of state execution and parole board statistics shows.  Other death row inmates' final pleas for mercy were rejected for arriving after the board's deadline....

In Texas, alone among the states that use parole boards for execution cases, the board never meets to review applications from the condemned. Instead, its members vote via fax. Efforts to reform the process have been unsuccessful....

Paddy Burwell, a retired Exxon geophysicist who served on the parole board from 1999-2005, recalled several troubling death row reviews when he said he received subtle pressure from other members to vote against clemency. “I don't think they care whether a person is guilty or not guilty,” Burwell said.

Charting the uncertain future for death row inmates left behind after New Mexico repeal

This interesting local article from New Mexico, which is headlined "Uncertain Fates: NM’s next governor could commute death sentences," discusses the uncertainty that surrounds the fate of the two condemned murderers that were left on death row even after New Mexico repealed its death penalty earlier this year. Here is how it starts:

And you thought capital punishment was dead. Although the New Mexico Legislature voted to repeal the death penalty in March, the new law doesn’t impact the two men currently on death row or any others who could be sentenced to death for crimes committed before July 2009.

Gov. Bill Richardson told reporters at the bill signing that he wouldn’t use his pardon power to commute the remaining sentences, and so death-penalty opponents looked to the New Mexico Supreme Court for relief.

In May, the court’s justices entertained the idea of finishing what the Legislature started, during oral arguments in the case of accused deputy-killer Michael Astorga. They, too, left the issue hanging when they quashed Astorga’s appeal, without explanation, on Sept. 17.

This volleys the death penalty into the voters’ court: The next governor will have the power to commute the sentences of those left on death row.

"Pa. lifers seeking clemency in wake of US ruling"

The title of this post is the headline of this new AP article discussing litigation and other developments surrounding possible clemency grants for those serving life sentences in Pennsylvania.  Here are excerpts:

Tyrone Werts earned a college degree, counseled at-risk teenagers, organized an anti-crime summit, sold Girl Scout cookies, and once prevented the rape of a teacher — all while serving a life sentence for second-degree murder and robbery.

Regarded as a model prisoner for nearly 35 years, Werts, 57, will appear before the state Board of Pardons on Thursday to ask for a commutation of his sentence. He and another inmate, William Fultz, also 57, are the first lifers to go before the board since a federal judge ruled in June that thousands of Pennsylvania inmates sentenced to life should have an easier path toward clemency....

Werts' backers are pinning their hopes on a June 11 ruling by U.S. District Judge A. Richard Caputo, who said the pardons board may not apply the tougher 1997 standard to inmates who committed their crimes before 1997 because the U.S. Constitution forbids ex post facto punishment.  The decision — the latest ruling in a 12-year-old lawsuit filed by the Pennsylvania Prison Society — could affect more than 3,000 of the 4,868 lifers in the state's prisons.  The pardons board has appealed.

The 1997 amendment requires that inmates sentenced to life must receive a unanimous vote of the five-member pardons board before the governor may consider their commutation request — giving a single board member the power to block any inmate's bid.  Before then, lifers needed only a majority vote to get their case before the governor.

Opponents of the referendum argue it deprives lifers of any meaningful chance to win clemency. Pennsylvania leads the nation in the number of inmates serving life sentences who were juveniles when they committed their crimes.  It's also one of only six states in which a life sentence automatically means life without parole — so commutation is the only way lifers who have already spent decades behind bars can get out of prison.

Backstory and reaction to denial of capital clemency in Ohio

As detailed in this post, yesterday Ohio Governor Ted Strickland denied clemency for death row defendant Jason Getsy despite the state parole board's recommendation for mercy based in part on the fact that Getsy was the only one of multiple persons involved in the crime sentenced to death.  This local article about the decision details some input Strickland received and reactions:

"Justice won today," said Trumbull County Prosecutor Dennis Watkins, who worked feverishly to persuade the governor to ignore the board's recommendation.  "He made the decision to kill.  This case is as bad as it gets," Watkins said. "This was just evil."

The prosecutor helped coordinate a petition drive that produced at least 2,000 signatures in favor of death, including 150 to 200 from the local General Motors plant.  There was even a signature and a petition circulated by a juror who heard the Getsy case in the courtroom of Judge W. Wyatt McKay and found the then-19-year-old defendant guilty as charged and then recommended the death penalty to the judge, who later imposed it.

There were countless e-mails sent to the governor through his deputy counsel Jose Torres and letters from prosecutors across the state backing Watkins and his warning that freeing Getsy from the death penalty would set a dangerous precedent in many court proceedings. A police chiefs association also backed Watkins.

Finally, Watkins also got an endorsement from Ohio Attorney General Richard Cordray, who in a last minute letter to Strickland said that Getsy "is not the kind of individual who is deserving of special mercy in the clemency process.

"Getsy's request for clemency should be evaluated based on his own culpability, and not based on what evidence was available to be presented or how it may have been interpreted in a co-defendant's case.  We feel strongly that this is not a justifiable basis for commuting the death sentence on the facts of this case and we believe the precedent set by the Parole Board here would be detrimental to Ohio's system of justice," Cordray wrote. 

The board earlier last month voted 5-2 for a rare reprieve after being convinced by Getsy's attorneys that their client didn't deserve death since the older co-defendant, John Santine, who planned the murder and hired Getsy and others didn't get the death penalty.

Strickland said in his statement Friday morning: "Substantial attention has been focused on the different sentences imposed upon Mr. Getsy and his co-defendant, Mr. Santine.  Mr. Getsy and Mr. Santine had different roles in the murder.  The fact that Mr. Santine was not sentenced to death is not, by itself, justification to commute Mr. Getsy's sentence.  Mr. Getsy's sentence was based on his conduct and based upon our review, which included consideration of the differing Santine and Getsy sentences.  I do not believe executive clemency is warranted.  Although my decision is inconsistent with the recommendation of the majority of the members of the Parole Board, I appreciate and respect their thoughtful consideration and review of this difficult case."

Attorney John Shultz, one of a three-member defense team that represented Getsy at trial, questioned the governor's decision: "I'm not shocked, but I am disappointed.  When he (Strickland) ran for office he said he was opposed to the death penalty.  He succumbed to the pressure of prosecutors and police chiefs.  The governor is wishy-washy.  I'm not saying he (Getsy) doesn't deserve to be punished. But, we have Charles Manson still out there and Getsy gets executed? That's what's on my mind today," Shultz said.

Some recent related posts:

• Ohio governor rejects parole board recommendation of capital clemency
• Ohio board recommends clemency in capital case based on co-defendant disparity
• Debate heating up over recommended capital clemency in Ohio
• "A new Texas? Ohio's death penalty examined"
• Ohio — aka the Texas of the north — setting busy execution schedule
• Ohio — aka the northern Texas — executes again

Ohio governor rejects parole board recommendation of capital clemency

As detailed in this new AP report, "Ohio Gov. Ted Strickland has denied clemency for the triggerman in a 1995 murder-for-hire scheme, overriding the state parole board's recommendation for mercy."   As regular readers may recall from posts here and here, the parole board had recommended clemency based in part on the fact that the defendant, Jason Getsy, was the only one of the persons involved in this crime sentenced to death

This related local story reveals that Ohio's attorney general apparently made a pitch to the governor to deny clemency because, according to the Ohio AG, co-defendant disparity was not a sound basis for granting clemency:

Trumbull County prosecutor Dennis Watkins received a five-page opinion from [Ohio Attorney General Richard] Cordray, detailing the reasons he believes Getsy should not be granted clemency.

In the report, Cordray wrote that the Ohio parole board's conclusion that Getsy's sentence should be commuted to reflect the sentence given to his accomplice is not legally sound. "Just because a case involves multiple defendants does not mean that all of them are equally culpable on the facts," the report states.

Cordray wrote that the case against Getsy was stronger than the one against accomplice John Santine, noting that Getsy confessed to being the shooter. "The purpose of executive clemency is to grant mercy where it is warranted, and to correct injustices that cannot be or are not corrected by the judicial branch," Cordray wrote.

Cordray said Getsy was not subject to an injustice. "Getsy's request for clemency should be evaluated based on his own culpability, and not based on what evidence was available to be presented or how it may have been interpreted in a co-defendant's case," the report said.

Some recent related posts:

• Ohio board recommends clemency in capital case based on co-defendant disparity
• Debate heating up over recommended capital clemency in Ohio
• "A new Texas? Ohio's death penalty examined"
• Ohio — aka the Texas of the north — setting busy execution schedule
• Ohio — aka the northern Texas — executes again

Governor Kaine grants conditional pardon to three of the "Norfolk Four"

This Washington Post article, headlined "3 of 'Norfolk 4' Conditionally Pardoned in Rape, Killing," provides the details on a notable state pardon grant issued in a high-profile case out of Virginia.  Here is how the article starts:

Three members of the "Norfolk 4" -- sailors serving life in prison for a 1997 rape and murder -- should walk free by Friday after Virginia Gov. Timothy M. Kaine granted them conditional pardons Thursday for crimes to which they all had confessed.

The pardons of Danial Williams, 37; Derek Tice, 39; and Joseph Dick, 33, culminated a four-year campaign for clemency based on the sailors' claims that they were coerced into falsely admitting their involvement, that the details they provided were wrong and that there was no physical evidence linking them to the crime. A fourth sailor, Eric Wilson, 33, served more than eight years in prison and has been released. He was not pardoned.

Kaine (D) said he was simply reducing the remaining three sailors' sentences to time served and not declaring their innocence. Kaine said he decided that the men "have not conclusively established their innocence and therefore that an absolute pardon is not appropriate."

While the case against the sailors was pending in 1999, another man confessed to the slaying, and his DNA matched the genetic evidence left at the scene. He later pleaded guilty, was sentenced to life in prison and said he acted alone. But Norfolk police and prosecutors continued to press their case against the four sailors and obtained guilty pleas or convictions for each of them.

The men were convicted in the slaying of Michelle Moore-Bosko, 18, of Pittsburgh, who had recently moved to Norfolk and secretly married her longtime boyfriend, William Bosko. Her parents, Jack and Carol Moore, were adamantly opposed to clemency and, after listening to the defendants' confessions, continue to think they are guilty.

Pardon Power has a lot more on Governor Kaine's clemency action and reactions thereto.

"Judge urges Obama to cut coke dealer's sentence"

The title of this post is the headline of this effective new piece by Josh Gerstein now up at Politico.  Here is how it starts:

A federal judge is calling attention to President Obama's uncertain stance on executive clemency by making a rare judicial plea for a presidential commutation of a drug convict. In an opinion issued Wednesday, U.S. District Court Judge Paul Friedman urged President Barack Obama to reduce the 27-year sentence Friedman imposed on Byron McDade back in 2002 after a jury found him guilty of conspiring to distribute more than five kilos of cocaine.

"Twenty-seven years is a very long time," Friedman wrote. "None of Mr. McDade's former co-defendants or co-conspirators received more than a seven-and-one-half year sentence. While each of them pled guilty and provided substantial assistance to the government by testifying against Mr. McDade (and some provided assistance in other ways), this sentence is disproportionate."

Friedman said that when McDade was sentenced, federal sentencing guidelines required the 324-month term. Those guidelines became advisory as the result of a Supreme Court decision in 2005, but Friedman said he had no authority to re-open McDade's sentence even though someone sentenced after him for the same offense may have gotten a much shorter term.

However, in an unusual move, the judge made a public appeal to Obama to use his constitutional power to shorten the convict's sentence. "The Court urges the President to consider executive clemency for Mr. McDade and to reduce Mr. McDade's sentence to fifteen years in prison followed by...supervised release," the judge wrote.

Judge Friedman's full opinion in US v. McDade is available at this link.  Here is more of what Judge Friedman had to say at the close of the opinion to explain his concerns with the sentence the defendant is serving:

Indeed, had Mr. McDade not exercised his constitutional right to a jury trial and instead pled guilty, the likely sentence under even a mandatory Guideline regime would have been approximately 168 months, approximately half the sentence the Court was required to impose after Mr. McDade was found guilty at trial.  Had the Sentencing Guidelines been advisory in 2002, or if Booker were retroactive now, the Court would vary substantially from the Guideline sentence of 324 months.  This Court, however, is without authority to reduce Mr. McDade’s sentence at this juncture.

As regular readers know, President Obama's failure to grant even a single clemency through now his second 100 days in office should keep McDade from expecting too much in response to Judge Friedman's call for presidential action.  Nevertheless, I think it is useful (and could eventually be consequential) for judges to vocally express concerns with particular sentencing outcomes they may be obliged by law to impose or uphold.

Some related posts on clemency:

• A simple plea for Prez Obama: grant at least a single clemency in your first 100 days
• Historical evidence that it is NOT too early to start demanding clemencies from President Obama
• Still waiting ... and waiting ... and waiting ... on the clemency front
• Another public and potent call to reinvigorate the pardon power
• When will President Obama start acting like President Lincoln when it comes to the clemency power?
• The sad (unpardonable) state of compassion in the Bush Administration
• ACS issue brief on the pardon power
• Latest FSR issue on "Learning from Libby"
• "The Fall of the Presidential Pardon"
• What might 2009 have in store for . . . executive clemency?

Ohio board recommends clemency in capital case based on co-defendant disparity

In the federal sentencing system, defendants often point to lesser sentences given to co-defendants in order to argue for lower sentences themselves.  As detailed in this local state capital sentencing story, the concept of co-defendant disparity this week prompted the Ohio parole board to make a recommendation of clemency for a defendant slated to be executed in August. Here are the basics:

The triggerman in a 1995 murder-for-hire scheme should be spared execution because other members of the plot were just as guilty, the Ohio Parole Board said Friday in a rare ruling in favor of mercy.  The board ruled 5-2 in favor of clemency for Jason Getsy, 33, scheduled to be executed Aug. 18 for the murder of 68-year-old Ann Serafino, of Hubbard.

Getsy was also convicted of the attempted murder of Serafino's son, Charles, who was the target of the scheme. Getsy and other participants did not expect Ann Serafino to be home the night of the shooting.

The board singled out the life sentence for John Santine, who initiated and organized the crime, saying Santine appeared to be just as guilty as Getsy. Santine, 48, is serving a sentence of 35 years to life. "In imposing a death sentence, it is imperative that we have consistency and similar penalties imposed upon similarly situated co-defendants," the parole board said.

The board noted that prosecutors downplayed Santine's influence during Getsy's trial but made that influence the primary theory behind the crime during Santine's trial. Two board members voted against clemency, saying nothing requires a comparison of Getsy's sentence to that of Santine. "So, because Santine was not given the sentence that some think he deserves, we should recommend a change in Getsy's sentencing that some think he deserves?" said board members Ellen Venters and Bobby Bogan.

Trumbull County Prosecutor Dennis Watkins denounced the decision, calling Getsy a cold-blooded murderer who bragged about killing Ann Serafino. "It's not fair and it undermines a just verdict, in this particular case, an actual killer who maliciously killed a woman in her home in execution style," Watkins said....

Gov. Ted Strickland, who has the final say, will review the case thoroughly, spokeswoman Allison Kolodziej said Friday.

A three-judge panel of the 6th U.S. Circuit Court of Appeals threw out Getsy's sentence in 2006 as arbitrary. The full 6th Circuit reinstated the sentence in 2007 in a divided 8-6 ruling.

Favorable clemency recommendations are rare in Ohio, which has executed 30 men since 1999, with another execution likely Tuesday.

The telling failure to make serious use of the clemency power in Maryland

This Washington Post article, headlined "O'Malley Puts the Brakes on Clemency in Md.: Governor Prepares to Clear 7, His First Such Cases, and Remains Far Behind Ehrlich's Pace," highlights how a governor who has been eager to end the death penalty has not show eagerness to use his clemency power. Here are some details:

During his four years as governor of Maryland, Robert L. Ehrlich Jr. (R) drew national notice for the aggressive use of his executive clemency powers, pardoning or commuting the sentences of 249 convicts, including several serving life sentences for murder. His successor, Gov. Martin O'Malley, has quietly but abruptly reversed that trend.

Nearly 2 1/2 years into his term, O'Malley is preparing to grant his first pardons, to seven people convicted years ago of such crimes as petty theft and disorderly conduct. Those cases were advertised Friday, as required by law, in a legal newspaper. O'Malley's only previous acts of clemency were releasing two prisoners who were in advanced stages of AIDS. Both were required to return if their conditions improved.

O'Malley (D), a former mayor of Baltimore, said he views clemency requests as less pressing than his other public-safety priorities, including expanding a state DNA database used to solve crimes. "I suppose my orientation from being a big-city mayor and having seen the violence on our streets is more of a tough-on-crime orientation," he said. "You probably won't see me doing as many of these as past governors."

In an interview, Ehrlich declined to comment directly on O'Malley's approach but said he received little criticism for his more expansive approach. "The criminal justice system has flaws, and it's the job of the governor, when appropriate, to correct those flaws," Ehrlich said. "When you try to make the system better, you don't get much criticism."

The state's last Democratic governor, Parris N. Glendening, was loath to commute life sentences, a view O'Malley said he shares. Glendening did pardon 134 former convicts during his eight years in office....

In Maryland, Ehrlich drew praise from some unlikely sources for his prolific use of clemency powers. Shortly before leaving office in January 2007, Ehrlich issued a statement citing the number of "good people who make mistakes in life" whom he had been able to help.

During his tenure, Ehrlich granted 228 pardons to former convicts and rejected applications from 211 others. Perhaps more noteworthy were 15 commutations of sentences of current prisoners, including five serving life sentences for murder.... Ehrlich also released six prisoners for medical reasons....

O'Malley, an opponent of capital punishment, said he would review death penalty sentences "on a case-by-case basis" with the possibility of commuting them to life without parole. He did not elaborate, but aides said such decisions are not likely to be made anytime soon.

Maryland has had a de facto moratorium on capital punishment since December 2006, when the state's highest court ruled that lethal injection procedures had not been properly adopted. O'Malley reiterated his plans to introduce new regulations "shortly," now that the legislature has failed to heed his call to repeal the death penalty in each of the past three legislative sessions....

Governors have typically pardoned more former convicts in the latter part of their terms, but O'Malley is well behind the paces of Glendening and Ehrlich. By the end of his second year in office, Glendening had approved 25 applications. By the end of his second year, Ehrlich had approved 63, a figure that grew to 127 by the end of his third year.

The number of applications pending in Maryland has grown to 663, up from 274 when O'Malley took office, according to parole officials. Regardless of how many of those are approved, O'Malley said his administration should do a better job of addressing the backlog. "People at least deserve an answer," he said.

I call Governor O'Malley's failings here "telling" because this story represents, in my view, how anti-death-penalty advocacy distorts and harms other parts of the criminal justice system.  I think it is fair to suggest that Governor O'Malley, because he has been investing so much time, energy and political capital on eliminating the death penalty in Maryland, has been unable or unwilling to invest needed time, energy and political capital on his clemency duties.

A simple plea for Prez Obama: grant at least a single clemency in your first 100 days

As evidenced by this Politico feature and this New York Times article, there is already no shortage of buzz and analysis of President Obama's first 100 days.  Let me add my meta-punditry with a spin on the plea that titles this post: media pundits and especially public policy groups that work on sentencing reforms should be calling out President Obama if (and when?) the record of his first 100 days in office does not include a single grant of clemency. 

As this chart from PS Ruckman shows, from the era of Thomas Jefferson through Ronald Reagan, only 3 of 38 US presidents failed to grant any clemencies during their first 100 days.  And yet, while the federal criminal justice system has grown by staggering amounts over the last two decades (see USSC data here), only clemency pleas by cronies seemed to get serious and quick attention from the last three Presidents.  I keep hoping that President Obama's promise of hope and change would apply to this historically important presidential prerogative, but my hope seems ever more false as each week goes by without any mention of these realities.

It will be a sad and telling commentary of the emptiness of the rhetoric of hope and change if President Obama was not able to find — or lacked the interest and courage to try to find — even a single case in the massive federal criminal justice system meriting some kind of clemency relief during his first 100 days in office.  And it will be an even sadder and more telling commentary on the emptiness of modern political and social debate if prominent media pundits and public policy groups — many of whom rightly criticized President Bush for his failure to show compassion toward many requesting clemency — continue to fail to even note President Obama's continued failings in this regard.

I sincerely hope that, as part of the 100-day plans, the Obama team might have at least one single (and thus necessarily symbolic) clemency up its sleeves.  But I am not optimistic that we will see even a single clemency grant by Wednesday or that any prominent media pundits or public policy groups — on either the left or the right — will vocally criticize President Obama in this arena.

Some related posts:

• Historical evidence that it is NOT too early to start demanding clemencies from President Obama
• How about some targeted clemency grants to save $100 million of federal tax dollars?
• Another public and potent call to reinvigorate the pardon power
• When will President Obama start acting like President Lincoln when it comes to the clemency power?
• Still waiting ... and waiting ... and waiting ... on the clemency front
• Are the Border Agents the only federal offenders for whom President Bush feels compassion?
• "Compassionate Conservatism, My Ass"
• The sad (unpardonable) state of compassion in the Bush Administration
• ACS issue brief on the pardon power
• Latest FSR issue on "Learning from Libby"
• "The Fall of the Presidential Pardon"
• What might 2009 have in store for . . . executive clemency?

"The Fall of the Presidential Pardon"

The title of this post is the title of this effective piece on modern federal clemency realities sent my way by a helpful reader.  Here are a few lengthy excerpts from a lengthy article that justifies a full read:

Although all recent presidents have granted few pardons, Bush's rate was exceptionally low. He tied with his father for the lowest-ever percentage of granted pardons (conviction reversals) — 9.8 percent — and he granted an astonishingly tiny number of requested commutations (shortened sentences): 0.012 percent....

[A]lthough Bush disappointed some guilty crony hopefuls with his meager list of pardons and commutations, he disappointed a far greater number of long-serving prisoners with no other hope of release.  An ever-growing percentage of the US's 2.3 million prisoners — including more than half of the 200,000 inmates in federal prison - are drug offenders, many of them charged on vague counts of "conspiracy."  Since parole was abolished on the federal level in 1987, drug prisoners serving drastic sentences are told to apply for a presidential pardon: It's their only option....

With the stingy-pardoning Bush era in the past, many nonviolent lifers see the advent of the Obama presidency as a ray of hope.  His message of change and his immediate action toward closing the military prison at Guantanamo Bay are optimistic signs for Danielle Metz, a first-time nonviolent offender serving three life sentences plus 20 years for cocaine conspiracy.... As the Obama administration comes into its own, federal prisoners and justice policy experts alike are hoping he'll resurrect the presidential pardon, returning it to its intended place as a critical piece of the grand puzzle of the judicial system....

Although there have been a smattering of clemency grants for drug offenders in recent years, they don't add up to a policy statement disavowing the drug war — in fact, they may do the opposite, according to Tom Murlowski of the November Coalition, a nonprofit organization that combats drug war injustice.  Murlowski points to President Clinton, who commuted the sentences of 22 drug offenders on his last day in office, following up on a handful of previous drug-related clemency grants.

"There were thousands of cases as deserving, or more so, than the few that got released, and most of those drug offenders released were those that had some solid media support behind them — they had virtually all been featured in mainstream media in some way," Murlowski told Truthout.  "Our fear was that, when these few stories were featured and, ultimately commuted, it sent the erroneous message that these were isolated cases of drug war injustice, when the reality was a systemic injustice as a result of fundamentally flawed policies."...

Another little-noted factor has contributed to the dearth of recent pardons: The Office of the Pardon Attorney has long been underfunded and understaffed.  Clemency and pardon requests go through several steps before they reach the president — they must be investigated by government agencies, then reviewed by the pardon attorney, the attorney general and finally the president — and qualified support personnel at each of these levels is essential.

According to Marc Mauer, executive director of The Sentencing Project, more pardons might be granted if the department was simply funded adequately. "There's been a huge backlog under the [Bush] administration, which is basically a resource issue; not providing sufficient staff to review applications," Mauer told Truthout.

Instead of prompting more hires, the backlog has perpetuated a shoddy, negligent review process, according to former Pardon Attorney Love.  "These cases are not getting fully reviewed," Love told Truthout.  "It seems like the main objective of the current pardon attorney is to manage the backlog by getting rid of cases as soon as he can; turning them around at the door.  I've heard he's not even getting the pre-sentence report in most cases."

Compounding the situation, the pardon attorney in office for the past 10 years was known for discriminatory behavior, and was recently removed from office following accusations of racism.  A report by the department's inspector general stated that Pardon Attorney Roger Adams described a drug offender requesting a pardon as "about as honest as you could expect for a Nigerian.... Unfortunately, that's not very honest."

According to the inspector general's report, "Adams' comments — and his use of nationality in the decision-making process — were inappropriate." Considering most long-serving drug offenders are minorities, Adams's behavior calls into question the handling of the entire pardon evaluation process in recent years.

Some related posts:

• Historical evidence that it is NOT too early to start demanding clemencies from President Obama
• Washington Post urges Prez Obama to do better on clemency
• Another public and potent call to reinvigorate the pardon power
• When will President Obama start acting like President Lincoln when it comes to the clemency power?
• Still waiting ... and waiting ... and waiting ... on the clemency front
• Are the Border Agents the only federal offenders for whom President Bush feels compassion?
• "Compassionate Conservatism, My Ass"
• The sad (unpardonable) state of compassion in the Bush Administration
• ACS issue brief on the pardon power
• Latest FSR issue on "Learning from Libby"
• What might 2009 have in store for . . . executive clemency?

A message for Prez Obama and his legal team from his favorite Justices

The most interesting jurisprudential aspect of today's Supreme Court decision in Harbison (basics here) is probably the splitting (and spitting) among the more conservative justices about how best to interpret 18 U.S.C. § 3599.  But while experts in the academy reflect on the statutory interpretation dissensus in Harbison, I hope that policy-makers in the White House reflect on the clemency consensus reflected in this paragraph toward the close of the majority's opinion:

The Government’s arguments about §3599’s history and purposes are laced with the suggestion that Congress simply would not have intended to fund clemency counselfor indigent state prisoners because clemency proceedings are a matter of grace entirely distinct from judicial proceedings.  As this Court has recognized, however,“[c]lemency is deeply rooted in our Anglo-American tradition of law, and is the historic remedy for preventing miscarriages of justice where judicial process has been exhausted.”  Herrera v. Collins, 506 U. S. 390, 411–412 (1993) (footnote omitted).  Far from regarding clemency as a matter of mercy alone, we have called it “the ‘fail safe’ in our criminal justice system.” Id., at 415.

As regular readers know, I have long been troubled by the failure of modern Presidents to make serious and sensible use of their clemency power, especially during a period in which thousands of federal defendants can and have made reasonable requests for the exercise of this "historic remedy."  And, given all the campaign talk of hope and change (and asserted concern for offender reentry and unjust sentencing disparities), I have been especially disappointed that President Obama is now closing in on the back end of his first 100 days in office without having yet granted a single clemency.

Sadly, I have to doubt that this effective little dicta in Harbison will finally get the new President and his legal team moving in the right direction when it comes to the use of the clemency power.  Still, one can at least hope that the sound clemency sentiments expressed by the Justices in Harbison will echo in some other branches.

Some related posts:

• Is it too early to start demanding President Obama use his clemency power?
• Historical evidence that it is NOT too early to start demanding clemencies from President Obama
• Washington Post urges Prez Obama to do better on clemency
• Another public and potent call to reinvigorate the pardon power
• Inaugural rhetoric about freedom and liberty in prison nation
• Are the Border Agents the only federal offenders for whom President Bush feels compassion?
• "Compassionate Conservatism, My Ass"
• When will President Obama start acting like President Lincoln when it comes to the clemency power?
• Still awaiting some hope and change on the clemency front
• Still waiting ... and waiting ... and waiting ... on the clemency front

Still waiting ... and waiting ... and waiting ... on the clemency front

President Obama is about to begin his third month in office still without having made any use (or any mention) of his clemency powers.  As I spotlighted in a post here a few weeks ago, P.S. Ruckman in this post has documented that the new guy "is already among the slowest presidents to tend to this constitutional duty."  As Ruckman has noted, the vast majority of Presidents have used their clemency power within their first month in office.

Disappointingly, President Obama is following the more recent trend of more recent presidents to wait a long time before getting serious about clemencies.  But, as I have said before and will keep on saying, the failure of modern presidents to use their clemency powers actively is especially troubling because the federal criminal justice system in now so much larger (and also so much harsher) than during any other period in American history. 

I am not holding my breath while hoping that President Obama will bring needed change to the modern presidential tendency to ignore clemency concerns.  But I will keep bringing up this issue periodically.  And I also will readily and repeatedly call out others for not calling out President Obama on this front.  As detailed in some prior posts linked below, many were quick to condemn former President Bush for failing to use his clemency power robustly.  These same voices can and should be raised to complain about President Obama's clemency record unless and until he starts doing better on this front.

Some related posts:

• Is it too early to start demanding President Obama use his clemency power?
• Historical evidence that it is NOT too early to start demanding clemencies from President Obama
• Washington Post urges Prez Obama to do better on clemency
• When will President Obama start acting like President Lincoln when it comes to the clemency power?
• Another public and potent call to reinvigorate the pardon power
• Inaugural rhetoric about freedom and liberty in prison nation
• Are the Border Agents the only federal offenders for whom President Bush feels compassion?
• "Compassionate Conservatism, My Ass"
• Few giving the President sentencing thanks
• The sad (unpardonable) state of compassion in the Bush Administration
• Latest FSR issue on "Learning from Libby"
• Taking stock of President George W. Bush's clemency record
• What might 2009 have in store for . . . executive clemency? 

Still awaiting some hope and change on the clemency front

President Obama is about to begin his sixth week in office still without having made any use of his clemency powers.  P.S. Ruckman in this post notes that this means the new guy "is already among the slowest presidents to tend to this constitutional duty."  As Ruckman notes, the vast majority of Presidents have used their clemency power within their first month in office.

As I have said before and as I will surely say again, the failure of modern presidents to use their clemency power actively is especially troubling because the federal criminal justice system in now so much larger than during any other period in American history.  Especially in light of the potent new Pew Center report documenting the scope and costs of modern criminal justice control throughout the United States (details here and here), it would be especially valuable and important for President Obama to get moving with at least a few symbolic clemencies to back up his oft-stated commitment to hope and change.

Some recent related posts:

• Is it too early to start demanding President Obama use his clemency power?
• Historical evidence that it is NOT too early to start demanding clemencies from President Obama
• Washington Post urges Prez Obama to do better on clemency
• When will President Obama start acting like President Lincoln when it comes to the clemency power?
• Another public and potent call to reinvigorate the pardon power
• Inaugural rhetoric about freedom and liberty in prison nation
• Taking stock of President George W. Bush's clemency record
• What might 2009 have in store for . . . executive clemency? 

Another public and potent call to reinvigorate the pardon power

Just appearing at The National Law Journal is former US pardon attorney Margaret Colgate Love's latest call to get the presidential pardon power working properly again.  This latest piece, which is co-authored with another former pardon attorney, John Stanish, is titled simply "Reinvigorate the Power."  Here are excerpts:

Pardons are granted only at the end of a president's term, so goes the conventional wisdom. In reality, most presidents have hit the ground running where pardoning is concerned.  The best of them have made strategic use of this most personal power from the very beginning to advance their policy goals.

For example, in his first year in office, Abraham Lincoln issued 80 grants of pardon to ordinary citizens, in addition to his more famous grants to soldiers. By his second term he had pardoned 365 civilians. Lincoln encouraged a high degree of public participation in his clemency decision-making process, even disclosing the reasons for each grant.  A pardon scholar notes that Lincoln "thrived on the hope that each request he granted further educated a portion of the public to the necessity of a clemency power in the justice system."

Other exemplary occupants of the Oval Office were similarly forgiving early on. In their first year, Theodore Roosevelt issued 128 grants, Franklin Roosevelt 167 and Truman 107....

The disappointing trickle of grants at the end of Bush's term, like the torrent of irregular grants at the end of Clinton's, was the product of a chronically dysfunctional pardon advisory system in the Justice Department, a system now dominated by prosecutors that produces few favorable recommendations.... [N]either president was well-served by a Justice Department whose pardon office has become a place where petitions for presidential mercy go to die....

It is unfortunate that the pardon power has become essentially unusable, for it has never been more critical to the fair and efficient operation of the criminal justice system.  Harsh no-parole sentences mean that many people remain in prison long after any just purpose is served by their continued incarceration, and all leave prison permanently burdened with disabling collateral consequences that almost guarantee their return to crime.  Pardon, once the justice system's fail-safe, has not served that function for many years....

During the campaign, Obama expressed concern about the number of African-American men in prison, and declared his intention to eliminate the disparity in sentences for crack and powder cocaine.  This policy goal, recommended for many years by the U.S. Sentencing Commission but stubbornly resisted by Congress, could be advanced by a few judicious grants of clemency to crack defendants who have served many years in prison and have been recommended for release by the prosecutor or the sentencing judge....

In a perfectly just system of laws there is no need for pardon. Ours falls far short of that.  Justice Anthony M. Kennedy has observed that "a people confident in its laws and institutions should not be ashamed of mercy."  We hope that Obama is of like mind, and that he will take steps to reinvigorate the pardon power by shoring up the system for administering it.

Regular readers know that I have been beating the drum for President Obama to start making use of his pardon power within hours of his taking the oath.  As the second month of the Obama presidency begins, we have already seen no shortage of bold action by the new President to address perceived injustices (closing GTMO) and to help those in need due to imperfect decisions (various bailouts).  I sincerely hope that just a little dusting of hope and change will come to the federal criminal justice system sooner rather than later.  As Love and Stanish suggest, just a few strategic clemencies could go a very long way in this regard.

Some recent related posts:

• Is it too early to start demanding President Obama use his clemency power?
• Historical evidence that it is NOT too early to start demanding clemencies from President Obama
• Washington Post urges Prez Obama to do better on clemency
• When will President Obama start acting like President Lincoln when it comes to the clemency power?
• Inaugural rhetoric about freedom and liberty in prison nation
• Taking stock of President George W. Bush's clemency record
• Are the Border Agents the only federal offenders for whom President Bush feels compassion?
• "Compassionate Conservatism, My Ass"
• A request for a commutation for Weldon Angelos 
• What might 2009 have in store for . . . executive clemency? 

More back-story on President Bush's resistance to concluding clemencies

The New York Times has this new story with more on Dick Cheney major (failed) final push to get President Bush to pardon Scooter Libby (basics here).  Among the notable aspects of this Times coverage are indications that President Bush was "frustrated by a deluge of last-minute pardon requests from other quarters."  Here is some of this reporting:

Two former White House officials familiar with the thinking of both men said that Mr. Bush had been generally overwhelmed and surprised by the last-minute lobbying for pardons, but that he had believed he owed it to Mr. Cheney to listen to him as he made one last case for Mr. Libby over the course of several long discussions.

Sharing details of the private talks on the condition of anonymity, the former officials said Mr. Bush had not been comfortable going further than his initial commutation of Mr. Libby’s prison sentence in 2007....

Former White House officials said that Mr. Bush had seriously weighed Mr. Cheney’s arguments but that it was always a long shot that Mr. Bush would pardon Mr. Libby. He was well known to avoid revisiting decisions, and did not grant pardons easily. “He was very stingy with pardons,” said Andrew H. Card Jr., his former chief of staff.

Kenneth L. Adelman, another Bush supporter turned critic who has called for a pardon for Mr. Libby, said he believed “Bush got it in his head that he did not want to leave office like Clinton did,” a reference to the disputed pardons that President Bill Clinton issued in his final hours.

Border agents, whose sentences were commuted by President Bush, released from prison

CNN provide this update on the latest development in an oft-blogged case involving two former federal border agents.  Here are the basics:

Two former U.S. Border Patrol agents -- whose cases became flashpoints in the controversy over border security -- were released early from prison Tuesday, one of their attorneys and a congressman said. The agents were convicted in 2006 of shooting and wounding an unarmed illegal immigrant and then covering it up.

President George W. Bush issued commutations for both men during his final days in office last month. Ignacio Ramos and Jose Compean had received 11- and 12-year prison sentences, respectively.

Some prior posts about the Border Agents case and the clemency grant by President Bush:

• Bipartisan call for commuting border agent sentences
• Reports on Senate hearing on Border Agent case
• The furor over border agents' long sentences
• Equal justice or just the realities of ratting out?
• Using the border agent case as a catalyst for federal sentencing reform
• Harsh border agent sentences producing half-truths
• Are the Border Agents the only federal offenders for whom President Bush feels compassion?
• "Compassionate Conservatism, My Ass"