Wednesday, July 18, 2018

Texas completes eighth execution of 2018 despite complaints about clemency process

This Texas Tribune article, headlined "Texas executes Chris Young, who fought the state parole board in a final appeal," reports on the latest lethal injection and litigation in the Texas capital system.  The subheadline summarizes the heart of the story: "The death row inmate claimed that the parole board likely rejected his clemency petition because he was black. The argument highlighted a long-standing criticism of clemency in Texas." Here are excerpts from a lengthy piece:

In his final fight before his execution Tuesday evening, Chris Young targeted Texas’ secretive clemency process.

On Friday, the Texas Board of Pardons and Paroles unanimously rejected Young’s clemency petition — often the final check in the death penalty process before an inmate is sent to the death chamber.  Hours later, Young’s lawyers filed suit against the board members, claiming that they likely voted against a recommendation to reduce his sentence or halt his execution because he is black.

The appeal was a long shot, and one he ultimately lost in federal court Tuesday, hours before the state put him to death for the 2004 robbery and murder of Hasmukh Patel at Patel's San Antonio store.  At 6:13 p.m., Young, 34, was injected with a fatal dose of compounded pentobarbital and pronounced dead 25 minutes later....

Though unsuccessful, the late filing highlighted a long-established criticism of Texas clemency — the reasoning for the board’s decision is unknown to the public, and individual members usually cast their votes remotely without comment or a hearing.  Though members must certify that they do not cast their votes because of the inmate’s race, they also don’t have to give any reason for their decision....

Young was 21 when he entered Patel’s San Antonio store in 2004 and fatally shot Patel during an attempted robbery, according to court records. He was convicted of capital murder and sentenced to death in 2006.

In his recent petition to the parole board asking for a sentence of life instead of death, his lawyers cited his growth in prison — they claim he prevented both an inmate’s assault on a guard and a suicide and that he eased racial tensions on death row — and the fact that Patel’s son, Mitesh, also pleaded for the state to spare his father’s killer.

They tried to draw comparisons between Young and another young man whose life was recently spared by the board and Gov. Greg Abbott — Thomas Whitaker, who was convicted in the planned deaths of his family in 2003, killing his mother and brother and wounding his father in a plot to get inheritance money....

The state responded to Young’s allegations of racial discrimination in court Sunday, claiming Young’s case for clemency was “far weaker” than Whitaker’s.  Assistant Attorney General Stephen Hoffman highlighted factors left out of Young’s petition, including an alleged sexual assault just before Patel’s murder, previous misdemeanor convictions and disciplinary reports from death row.  The response also notes that, unlike Young, Whitaker wasn’t the triggerman in his relatives’ murders....

Since 1998, a Texas governor has spared the life of someone facing imminent execution only three times, according to data obtained from the parole board. In the same two decades, there have been more than 400 Texas executions....

Abbott’s predecessor, Republican Rick Perry, chose to reduce a death sentence to life in prison for only one inmate (U.S. Supreme Court decisions forced him to reduce other sentences) in his 14-year tenure.  He also rejected board recommendations in at least two other cases.  The Whitaker clemency was the first and only board recommendation under Abbott so far.

Because of the minuscule success rate of these cases and the secrecy that surrounds the process, attorney groups and several lawmakers have criticized Texas clemency procedures in capital cases for decades.  In 1998, U.S. District Judge Sam Sparks called it “extremely poor and certainly minimal.” Sparks railed on how the public is kept from the board’s dealings and said no member fully reads the petitions, stating “a flip of the coin would be more merciful than these votes.”...

But for Young, the attempt to draw parallels between himself and Whitaker seemingly fell flat with the members of the parole board.  Instead of being moved off death row to another prison, he was sent to the death chamber, becoming the eighth person executed in Texas this year, and the 13th in the nation.

July 18, 2018 in Clemency and Pardons, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Thursday, July 12, 2018

"The Quest to Get a Pardon in the Trump Era: ‘It’s Who You Know’"

The title of this post is the headline of this notable new New York Times piece documenting various realities that are well-known to those who have been paying attention to the clemency activities of recent Presidents.  Here are excerpts from a terrific piece worth reading in full:

Few constitutional powers lie so wholly at the whims of the president as the power to pardon. No details need to be worked out beforehand and no agency apparatus is needed to carry a pardon out.  The president declares a person officially forgiven, and it is so.

A layer of government lawyers has long worked behind the scenes, screening the hundreds of petitions each year, giving the process the appearance of objectivity and rigor. But technically — legally — this is unnecessary.  A celebrity game show approach to mercy, doling the favor out to those with political allegiance or access to fame, is fully within the law.

The show isn’t new.  Absolving political allies is a notorious if decades-old practice, and Bill Clinton was hardly sticking to procedure when he included friends, family and the well-connected in his last-minute clemency spree.  But Mr. Trump is not waiting for the last minute.

On Tuesday, he issued more pardons, this time for two Oregon ranchers who had been serving sentences for arson on federal land. Interior Secretary Ryan Zinke was apparently among the ranchers’ strongest supporters.  Mr. Trump has said he is considering pardons for Martha Stewart, the lifestyle guru, and Rod Blagojevich, the former governor of Illinois, and people whose cases are championed by professional football players.  He has rebuffed questions as to whether he was planning to pardon any of his own associates — or himself, for that matter.

Pardon seekers have been watching all this.  Having once put their hopes in an opaque bureaucratic process, they are now approaching their shot at absolution as if marketing a hot start-up: scanning their network of acquaintances for influence and gauging degrees of separation from celebrity.  What’s the best way to get a letter to Sean Hannity, the Fox News host and close Trump ally?  How hard would it be to pull aside Robert Jeffress, the prominent Trump-backing pastor, after a church service?

“It’s who you know now,” said Weldon Angelos, whose cause for clemency has been supported by politicians, judges and celebrities. At the consent of prosecutors, Mr. Angelos was released from prison in 2016, after serving a quarter of a 55-year sentence on a drug-related conviction. Now he is seeking a full pardon.  “Everyone’s now trying to get their names out there, to get some buzz,” he said. “That’s the strategy I’m seeing”

Self-promotion in pursuit of forgiveness comes naturally to some and strikes others as absurd.  But there is broad agreement on one point. The standard, procedural route to presidential clemency — a process that has become ever more impenetrable — has hardly been a portrait of justice itself...

Clemency petitions go through the Office of Pardon Attorney in the Justice Department, a system set up more than a hundred years ago to lessen the risks and hassles of leaving an entire nation’s pleas for compassion to one person.  For decades, the process worked smoothly, and hundreds of clemency grants were issued each year. President Dwight D. Eisenhower alone granted over 1,000 pardons.

But starting about 40 years ago, “the prosecutors really got a hold of the process,” said Margaret Love, who was the Pardon Attorney from 1990 to 1997, and now represents clemency applicants. “They became increasingly hostile to the pardon power.”  Even as laws have grown harsher, the number of pardons has dwindled significantly. “It is so secretive and the standards are so subjective,” Ms. Love said.  “They operate like a lottery. Except a lottery is fair.”

In 2014, the Obama administration set up a clemency initiative that led to 1,715 sentence commutations, by far the most of any president.  Still, this accounted for only about 5 percent of the commutation petitions submitted during his two terms. As for full pardons, the Obama administration was stingier than most of its predecessors. The traditional clemency process, as a pardon attorney described in her 2016 resignation letter, remained sidelined and backlogged.

“The process,” wrote Luke Scarmazzo of his attempt at clemency in the Obama years, “was a bureaucratic nightmare.”  In 2008 Mr. Scarmazzo was sentenced to more than two decades in prison for running a medical marijuana dispensary in California. He and his co-defendant, Ricardo Montes, spent months working on an application, but in the end Mr. Montes received a commutation, while Mr. Scarmazzo did not.  Now, “instead of support from career politicians and judges, we’re seeking support from celebrities and influential social icons,” Mr. Scarmazzo wrote in an email from prison.  “We’re less focused on pleasing the D.O.J. bureaucracy and more focused on grabbing the attention of the Oval Office.”

Much of the recent focus on clemency has either been on those, like Ms. Johnson, who are seeking release from prison, or on the famous pardon recipients like Dinesh D’Souza, the conservative provocateur, and I. Lewis Libby Jr., the former aide to Dick Cheney.  But there are countless people living quietly and whose time in the criminal justice system is years in the past, but who, because of the ever-expanding tally of consequences for felony convictions, feel permanently confined.

July 12, 2018 in Clemency and Pardons, Criminal justice in the Trump Administration, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Tuesday, July 10, 2018

President Donald Trump pardons Oregon ranchers convicted of arson, and subject to mandatory minimum terms, who prompted protests over federal lands

As reported in this article from The Hill, headlined  "Trump pardons Oregon ranchers at center of 40-day standoff," Prez Trump has used his pardon pen yet again for another set of high-profile and politically notable defendants.  Here are the details:

President Trump on Tuesday pardoned a pair of Oregon ranchers whose arson conviction became a focus for opponents of federal government land ownership. Dwight Hammond, 76, and his son Steven Hammond, 49, were convicted in 2012 and sent to prison on arson charges. They had set a series of fires on their ranch that spread to federal land.

The Hammonds’ case became the inspiration for the 40-day armed occupation of the Malheur National Wildlife Refuge in 2016. The organizers wanted to protest federal land ownership. The Hammonds distanced themselves from the violent occupiers and didn't endorse the action. One of the occupiers, Robert LaVoy Finicum, died, and a handful pleaded guilty to charges related to the occupation. But brothers Ammon and Ryan Bundy, the accused leaders of the occupation, were not convicted.

In a statement Tuesday announcing the pardon, White House press secretary Sarah Huckabee Sanders emphasized uncertainties in the case and the prison terms and fines the Hammonds had already paid. “The evidence at trial regarding the Hammonds’ responsibility for the fire was conflicting, and the jury acquitted them on most of the charges,” the White House said.  “The Hammonds are devoted family men, respected contributors to their local community, and have widespread support from their neighbors, local law enforcement, and farmers and ranchers across the West. Justice is overdue for Dwight and Steven Hammond, both of whom are entirely deserving of these Grants of Executive Clemency.”

Both men are currently in prison on five-year sentences, thanks in part to a 1996 anti-terrorism law that imposed a mandatory minimum sentence on certain crimes on federal land.  The length of their prison terms, in part, fueled outrage at their convictions.

Federal judge Michael Robert Hogan originally gave the Hammonds reduced sentences in 2012, arguing that the mandatory minimums were unjust. But the Obama administration appealed, and federal Judge Ann Aiken in 2015 imposed the full five-year sentences.  “This was unjust,” Sanders said in her statement.  Dwight Hammond has served about three years of his sentence and Steven Hammond has served about four of his, and Trump’s pardon will set them free.

Rep. Greg Walden (R-Ore.), who represents the area that includes the Hammonds’ ranch, cheered Trump’s pardon as a win against federal overreach. “Today is a win for justice, and an acknowledgment of our unique way of life in the high desert, rural West,” he said in a statement. “As ranchers across eastern Oregon frequently tell me, the Hammonds didn’t deserve a five year sentence for using fire as a management tool, something the federal government does all the time.”

I suspect some folks on the left will attack this latest act of clemency as another politicized action for the benefit of the Trump base.  But I still recall this story and 2016 post about the Hammonds case, "Excessive federal sentencing and strict mandatory minimums at center of armed 'militia' occupation in Oregon," which highlights how much the perceived injustice here is linked to mandatory minimums and excessive federal sentencing terms.  Though I remain chary about expecting Prez Trump to become as ambitious in his use of his clemency pen as was Prez Obama at the tail end of his time in office, the federal sentencing severity that sounds this latest pardons makes me just a hint more hopeful that Prez Trump will at least somewhat deliver on all his big clemency talk.

A few of many recent related posts about recent Trumpian clemency activity:

July 10, 2018 in Clemency and Pardons, Criminal justice in the Trump Administration, Mandatory minimum sentencing statutes, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Wednesday, July 04, 2018

Hey Prez Trump, how about honoring Independence Day by using your clemency power to give some more Americans more liberty?

It is now been nearly a month since Prez Donald Trump commuted the life sentence of Alice Johnson at the behest of Kim Kardashian West (basics here).  Immediately thereafter, there were reports here of "a growing list of potential pardons or commutations under consideration by President Donald Trump" and Prez Trump himself said: "We have 3,000 names.  We’re looking at them.  Of the 3,000 names, many of those names have been treated unfairly."  A week later it was reported Prez Trump will be "pardoning a lot of people — pardons that even Obama wouldn't do" and reported that Mrs. West had "assembled a large legal team and was pursuing clemency for several other nonviolent offenders."  And, as posts here and here highlighted, plenty of folks have been taking up the President's call to put forward worthy clemency candidates.

I have been more than a bit worried that all the buzz about all sorts of clemency action may be a lot of talk that may not be followed by a lot of action.  But, as the title of this post is meant to suggest, I think Independence Day — when we celebrate a great document that starts by stressing the "unalienable Rights [of] Life, Liberty and the pursuit of Happiness" — would be a fitting day for Prez Trump to help, through grants of clemency, at least a few more persons enjoy "Life, Liberty and the pursuit of Happiness."  

I am not yet going to get cynical about Prez Trump's clemency chatter because I am eager to hold out hope that he might have a desire to best Prez Obama's record-setting clemency numbers. But, as regular readers know, I am ever eager to criticize leaders who "talk the talk" but then fail to "walk the walk."  Today strikes me as a great time for the bold clemency walk to get started.

A few of many recent related posts about recent Trumpian clemency activity:

July 4, 2018 in Clemency and Pardons, Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (3)

Thursday, June 21, 2018

"N.F.L. Players to Trump: Here’s Whom You Should Pardon"

The title of this post is the headline of this op-ed in today's New York Times authored by Doug Baldwin, Anquan Boldin, (former OSU Buckeye) Malcolm Jenkins and Benjamin Watson. I recommend the piece in full, and here are extended excerpts:

President Trump recently made an offer to National Football League players like us who are committed to protesting injustice. Instead of protesting, he suggested, we should give him names of people we believe were “unfairly treated by the justice system.”  If he agrees they were treated unfairly, he said, he will pardon them.

To be sure, the president’s clemency power can be a valuable tool for redressing injustice.  Just look at Alice Johnson, age 63, who was serving a life sentence for a nonviolent drug conviction until her sentence was commuted by President Trump.  He should be commended for using his clemency power in that case.

But a handful of pardons will not address the sort of systemic injustice that N.F.L. players have been protesting.  These are problems that our government has created, many of which occur at the local level.  If President Trump thinks he can end these injustices if we deliver him a few names, he hasn’t been listening to us.

As Americans, it is our constitutional right to question injustices when they occur, and we see them daily: police brutality, unnecessary incarceration, excessive criminal sentencing, residential segregation and educational inequality.  The United States effectively uses prison to treat addiction, and you could argue it is also our largest mental-health provider. Law enforcement has a responsibility to serve its communities, yet this responsibility has too often not met basic standards of accountability....

President Trump could help.  He could use his powers, including the clemency power, to make a real dent in the federal prison population.  People like Alice Johnson, for example, should not be given de facto life sentences for nonviolent drug crimes in the first place.  The president could stop that from happening by issuing a blanket pardon for people in that situation who have already served long sentences.

Of the roughly 185,000 people locked up in federal prisons, about 79,000 are there for drug offenses of some kind — and 13.5 percent of them have sentences of 20 years or more.  Imagine how many more Alice Johnsons the president could pardon if he treated the issue like the systemic problem it is, rather than asking professional football players for a few cases.

There is also a systemic problem in federal prison involving the elderly, who by next year will make up 28 percent of the federal prison population. Releasing these prisoners would pose little to no risk to society.  And yet from 2013 to 2017, the Bureau of Prisons approved only 6 percent of roughly 5,400 “compassionate release” applications.  About half of those applications were for people who had been convicted of nonviolent fraud or drug offenses.  Of those denied release, 266 died in custody. 

President Trump could order the release of any drug offender over the age of 60 whose conviction is not recent.  That would be the morally right thing to do.

Apart from using the pardon power, there are policies the president and the attorney general could implement to help.  For instance, they could eliminate life without parole for nonviolent offenses.  Currently, more than half of those sentenced to die in federal prison are there for nonviolent offenses, and 30 percent of people sentenced to life (or de facto life) are there for a nonviolent drug crimes. Compare that with the state level: Only 2 percent of those sentenced to life (or de facto life) are there for drug offenses....

President Trump, please note: Our being professional athletes has nothing to do with our commitment to fighting injustice.  We are citizens who embrace the values of empathy, integrity and justice, and we will fight for what we believe is right.  We weren’t elected to do this.  We do it because we love this country, our communities and the people in them. This is our America, our right.

We intend to continue to challenge and encourage all Americans to remember why we are here in this world.  We are here to treat one another with the kindness and respect every human being deserves. And we hope our elected officials will use their power to do the same.

A few of many recent related posts about recent Trumpian clemency activity:

June 21, 2018 in Clemency and Pardons, Criminal justice in the Trump Administration, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Wednesday, June 20, 2018

Is Gov Cuomo soon to have a worse record than Prez Trump on the clemency front?

The question in the title of this post is prompted by this new piece at The Appeal headlined "Cuomo The Merciless: New York's Democratic governor has granted only a trickle of commutations, fewer than many of his Democratic and Republican predecessors."  Here are excerpts: 

In 2015, New York’s governor, Andrew Cuomo, announced the creation of an Executive Clemency Bureau to identify people in the state’s prison system who might be worthy of commutation.  The announcement sparked hope among the system’s approximately 50,000 prisoners, their families, and advocates that they might soon rejoin their families....

Cuomo encouraged attorneys and law firms to donate pro bono hours to help incarcerated people prepare their petitions.  Many heeded the call and devoted significant time and resources to helping dozens of people imprisoned across the state. But these efforts have not proved fruitful.

In December 2016, Cuomo had granted only seven commutations.  One was to Judith Clark, a former Weather Underground member initially sentenced to 75 years to life; her commutation allowed her to appear before the parole board immediately instead of waiting until 2056.  (Clark was denied parole and remains in prison.)  Another commutation granted an immediate release to Valerie Seeley, a domestic violence survivor sentenced to 19 years to life for the fatal stabbing of her abusive boyfriend in 1998, an act that she has always maintained was in self-defense.

About one year later, Cuomo’s office announced more commutations — this time, it was only to two men. He has not granted any clemencies since then.  His office did not respond to The Appeal’s queries about the possibility of future commutations.  Cuomo has, however, issued a greater number of pardons to those who have already served their time. He has granted 140 pardons to adults who were convicted of nonviolent felonies as 16- and 17-year-olds, thus expunging their felony records.  He also granted pardons to 18 others who might face deportation because of a criminal record.

Kathrina Szymborski oversees the pro-bono commutation efforts at the law firm Patterson Belknap Webb & Tyler, which has donated the equivalent of $1.5 million in pro-bono hours to clemency applicants.  She and her colleagues rejoiced when one client, 42-year-old Michael Flournoy, who had served 21 years of a 25-to-50-year sentence, received clemency in December 2017.  But, she told The Appeal, “we have many deserving clients whose applications are still pending. Our clients are dedicated and hard-working, so they continue to gather letters of support, receive stellar job reviews, and complete rehab and educational programs.  They’re trying to be part of society and enrich their communities as best they can from where they are, some by mentoring other prisoners, others by writing articles for publication in various newspapers and magazines. We feel that they’ve served their time and their further incarceration serves no purpose, so we find the lack of action on these applications disappointing.”

While Szymborski notes that her clients remain hopeful, Cuomo’s lack of action has disillusioned others. Steve Zeidman is the director of the Criminal Defense Clinic at the CUNY School of Law as well as Clark’s attorney. While the clinic is working with about 25 people on clemency applications, he has received hundreds of requests for help.  “For so many people, clemency offered the hope that after decades of punishment their quantifiable and undeniable evidence of personal growth and transformation would be recognized,” he told The Appeal, “that they would be given the chance to live outside the prison walls.  As I have now been told on several occasions by those who have had their hopes of clemency reduced to pipe dreams, false hope is cruel; it is worse than no hope.”

I am more than a bit concerned that all the recent clemency talk coming from the White House could turn out to be the source of false hope, especially as Prez Trump gets consumed by other matters.  But among the many reasons I am rooting so hard for Prez Trump to keep using his clemency pen is because it should then become even easier for advocates to urge Governors to keep up the clemency pace.

June 20, 2018 in Clemency and Pardons, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Saturday, June 16, 2018

Paul Manifort has bail revoked ... and has not (yet) gotten rescued from jail by Prez Trump's clemency pen

As detailed in this CNN piece, a very prominent federal defendant grew the number of Americans incarcerated yesterday when he had his bail revoked and was taken immediately to jail:

Former Trump campaign chairman Paul Manafort will await his trial for foreign lobbying charges from jail.  Two weeks after special counsel Robert Mueller's prosecutors dropped new accusations of witness tampering on him, US District Judge Amy Berman Jackson on Friday revoked Manafort's bail, which had allowed him to live in his Alexandria, Virginia, apartment under house arrest.

The order marked an end to almost eight months of attempts by Manafort to lighten his house arrest restrictions after he was charged and pleaded not guilty to foreign lobbying violations. "The harm in this case is harm to the administration of justice and harm to the integrity of the court's system," Berman Jackson told Manafort in court.

The judge emphasized to Manafort how she could not make enough rulings to keep him from speaking improperly with witnesses, after he had used multiple text messaging apps and called a potential witness on an Italian cellphone.  "This is not middle school. I can't take his cellphone," she said of Manafort.  "I thought about this long and hard, Mr. Manafort. I have no appetite for this."

Manafort also entered a not guilty plea to two additional charges levied against him last week, of witness tampering and conspiracy to obstruct justice. In total, he faces seven criminal charges in DC federal court. Three US marshals led Manafort out of the packed courtroom into the prisoner holding area immediately after the judge's ruling. He was not placed in handcuffs. Before he disappeared through the door, he turned toward his wife and supporters and gave a stilted wave.

Minutes later, a marshal returned to give Manafort's wife, Kathleen, still standing in the courtroom's front row, his wallet, belt and the burgundy tie he wore Friday. Court marshals held Manafort in the bowels of the courthouse for several hours following the hearing as they considered how to keep him protected from other inmates behind bars. He arrived about 8 p.m. at the Northern Neck Regional Jail in Warsaw, Virginia, 90 miles south of Washington.

In a tweet, President Donald Trump said the decision to revoke Manafort's bail was "tough," although he referred to it as a "sentence."

I cannot help but recall in this context the decision by Prez George W. Bush, made just under 11 years ago as reported here, to commute the entire prison sentence of I. Lewis "Scooter" Libby to spare him from having to serve his 30 month prison term after his conviction in the CIA leak case.  Notably, Prez Bush's clemency grant came down just a few hours after the DC Circuit refused to allow Libby to remain free on bail during the appeal of his conviction and sentence.  In other words, as soon as Libby was subject to spending even an hour incarcerated, Prez Bush was moved to act to keep him free.  Paul Manafort, notably, has not (yet) gotten the presidential consideration as he has now already spent one (of likely many) nights in jail without even yet having been convicted of anything.  

June 16, 2018 in Clemency and Pardons, Criminal justice in the Trump Administration, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (8)

Thursday, June 14, 2018

"Kim Kardashian West pushes White House for more drug sentence commutations"

Because the Supreme Court decided this morning not to decided any of the five remaining criminal law cases on its docket for this Term, I am left to blogging some more about clemency developments.  On that front, the breaking news came through the Today show, which led to this NBC News article with the headline that I have used for the title of this post.  Here are excerpts from the article (with emphasis added):

Kim Kardashian West has given the White House reports on several other nonviolent criminal offenders for possible commutation after she persuaded President Donald Trump to commute the sentence of Alice Marie Johnson, she told "Today" in an exclusive joint interview with Johnson.

Kardashian West said she "saw compassion" when she met with Trump, who as recently as March promised to "seek the death penalty against drug traffickers, where appropriate under current law." "I saw a different side," Kardashian West said Wednesday. "And I think that this is just the beginning of something greater. ... The reality is people change their mind."...

Kardashian West, the star of several reality TV shows and the wife of music superstar Kanye West, visited Trump at the White House with her attorney in late May to plead for Johnson's release, pointing to corrections officers' assessment of her as a model prisoner who became an ordained minister...

In the interview — during which the two women met in person for the first time — Kardashian West said she had assembled a large legal team and was pursuing clemency for several other nonviolent offenders — whose cases she said she has forwarded to the White House for review. "This is like, 'OK, we did this,'" Kardashian West said. "Let's open up this conversation."

Johnson said that because of Kardashian West's advocacy, "the Red Sea has opened" for possible leniency for nonviolent drug offenders, a campaign she said she intends to be part of. "I plan on continuing to magnify this issue," Johnson said. "I'm just an example, but I'm not the only one.

"There are so many others like me whose faces are not here, who are not sitting next to a war angel, who deserve clemency as much as I did and who deserve another chance in life," she said. "And I can't stop. I can't stop."

Regular readers are likely tired of seeing me recall that, way back in 2010, I urged Prez Obama to structurally change the federal clemency system in this law review article.  At the end of that article, I urged the President "to seriously consider creating some form of a 'Clemency Commission' headed by a 'clemency czar' ... [in the form of] an expert body, headed by a special designated official, who is primarily tasked with helping federal officials (and perhaps also state officials) improve the functioning, transparency, and public respect for executive clemency. "  I will be the first one to say that I could never have expected, eight years later during a Donald Trump presidency, that we would have a  Kim Kardashian West emerging as a de facto "clemency czar" serving with a "large legal team" operating as a de facto "Clemency Commission."

Simply put, we live in interesting times.

A few of many recent related posts about recent Trumpian clemency activity:

June 14, 2018 in Clemency and Pardons, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

Wednesday, June 13, 2018

Another notable report on clemency suggesting Prez Trump will be "pardoning a lot of people — pardons that even Obama wouldn’t do"

Vanity Fair is not usually my go-to source for sentencing news, but this new piece includes both White House gossip and a closing paragraph that suggest a lot of sentence news with be forthcoming from that building. The full headline of the piece reveals some of the gossip: "“He Hate, Hate, Hates It”: Sessions Fumes As Kushner Gets Pardon Fever; With Kim Kardashian and liberals like Van Jones, the princely Trump son-in-law is trying to reset his reputation. But not everyone in the administration is happy about it."   And here are the most sentencing-specific parts of the piece:

In recent months, Kushner has cultivated a close relationship with CNN host and criminal-justice reform advocate Van Jones. “Jared is obsessed with Van,” one Trump adviser said. Kushner invited Jones to the White House multiple times and the two communicate frequently, Jones told me. “Jared and I have 99 problems but prison ain’t one,” Jones said. “I’ve found him to be effective, straightforward, and dogged.” Jones has lavished praise on Kushner publicly. In January, Jones wrote a CNN op-ed headlined, “Kushner’s effort to sway Trump on prison reform is smart.”

The Kushner-Jones alliance has infuriated some Republican members of the administration, especially Attorney General Jeff Sessions. “He hate, hate, hates it,” a person close to Sessions said. But Sessions, who is hanging on for survival amidst frequent Trump attacks, has no power to move against Kushner. Sources say Trump may even like that Sessions is outraged because Trump is looking for anything that will get Sessions to quit so he can appoint an attorney general who isn’t recused in the Russia investigation. (The White House did not respond to a request for comment.)

Jones told me Trump liked the positive media coverage that followed his pardon of Alice Johnson at the urging of Kardashian and Kushner. “Trump was pleasantly surprised,” Jones said. “I hope the president feels encouraged to do more.”

One person who recently spoke with Kushner said the president’s son-in-law is gearing up for a big pardon push. The source said Kardashian gave Kushner a list of people to pardon, some of whom are hip-hop artists. “They’re going to be pardoning a lot of people—pardons that even Obama wouldn’t do,” the person said.

A few of many recent related posts about recent Trumpian clemency activity:

June 13, 2018 in Clemency and Pardons, Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (1)

Monday, June 11, 2018

"Trump asks for clemency names and lists promptly arrive at White House"

The title of this post is the headline of this notable new article in the Washington Examiner.  Here are excerpts (with one line stressed for commentary):

President Trump told reporters Friday that he wanted to give clemency to more people treated unfairly by the legal system, particularly cases involving people like Alice Johnson, who he released from a life sentence for drug dealing at the request of Kim Kardashian West.  "I want to do people that are unfairly treated like an Alice," he said before boarding a Marine helicopter on the South Lawn of the White House. Hours later, lists of additional names were hand-delivered to the West Wing.

White House counsel Don McGahn and presidential adviser and son-in-law Jared Kushner sat down for separate meetings with a right-leaning policy advocate who handed them lists of dozens of inmates serving long sentences, according to a person involved in the discussions.

McGahn invited the advocate about a week earlier, requesting names, and seemed to react favorably to the case of Chris Young, a 30-year-old from Tennessee with a life sentence since age 22 for a drug conspiracy, the source said. The sentencing judge called Young's penalty "way out of whack," but said he had no choice.

Young’s name was supplied to the advocate by his attorney Brittany Barnett, who also represented Johnson. Dozens of additional names were supplied by the CAN-DO Foundation, which championed Johnson, as well as Families Against Mandatory Minimums. Topping a list of 20 marijuana inmates assembled by CAN-DO were Michael Pelletier and John Knock, who are serving life sentences for smuggling marijuana and unsuccessfully requested clemency from former President Barack Obama.

Pelletier, a paralyzed inmate, received a life sentence for smuggling pot from Canada into Maine, jurisdictions where the drug is now legal or soon will be. Knock’s sentence inspired his sister Beth Curtis to create the advocacy website LifeforPot.com documenting similar cases. "I will die in prison if President Trump does not commute my sentence," Pelletier recently told the Washington Examiner. "Sometimes, I wonder if I'm dead already because I'm living in hell.”

A list of 17 women and six men prepared by CAN-DO was topped by drug-conspiracy convict Michelle West and mail-fraud inmate Connie Farris, women who recently expressed optimism about Trump’s clemency moves, saying they hoped to rejoin their families....

The advocate who brought lists to the White House received the impression that officials may be considering setting up an internal clemency commission to circumvent or supplement the work of the Justice Department’s Office of the Pardon Attorney.

In his remarks Friday morning, Trump claimed he was reviewing 3,000 names of clemency aspirants and invited football players who claim unfairness in the legal system to submit more names.  It’s unclear if Trump actually has a list of 3,000 names.  It’s possible he was referring to the about 3,000 clemency applications — for pardons and commutations combined — that the Office of the Pardon Attorney received during his administration.  But the OPA, which clemency advocates consider slow and biased, has about 11,000 open cases that rolled over from Obama.

Although Trump referred to a clemency-reviewing “committee” on Friday, a White House official said that clemency petitions currently are being reviewed through the standard process, featuring the pardon attorney's office. There's some indication that's the case. Before Trump issued his second pardon to former Navy sailor Kristian Saucier, for example, the OPA abruptly reopened Saucier's case and sent him a detailed personal questionnaire.

“The White House will continue to review pardons and make decisions on a rolling basis,” the official said. “The White House and the Department of Justice receives thousands of clemency applications per year. The Office of the Pardon Attorney at the Department of Justice and the Deputy Attorney General review these applications in order to make recommendations to the White House on potential pardons."...

Amy Povah, the leader of the CAN-Do Foundation, said she’s pleased with Trump’s recent emphasis on clemency. So far, Trump has issued two prison commutations and five pardons, but the quickening pace is giving aspirants hope. “I have always felt that President Trump would be interested in clemency if he understood the fundamental problem with the Office of the Pardon Attorney being controlled by DOJ,” Povah said. “It's a conflict of interest for DOJ to have final say, which is why some of the best cases never made it to the White House during the Obama administration, like Alice Johnson.”

Margaret Love, who served as U.S. pardon attorney between 1990 and 1997, said she’s also optimistic. “It’s great news that the president may be interested in considering additional cases involving harsh prison sentences,” Love told the Washington Examiner. “President Obama’s clemency program was a good start but he left many deserving cases behind.”

As regular readers may recall, way back in 2010, I urged Prez Obama to structurally change the federal clemency system in this this law review article titled "Turning Hope-and-Change Talk Into Clemency Action for Nonviolent Drug Offenders."  I that article I suggested, as a number of commentators have, that the President set up some kind of "Clemency Commission" that would be apart from the work and workings of the Justice Department.  It seems that Prez Obama did not really heed my clemency commission advice (though he ended up doing some good clemency work at the very tail end of his Presidency).  Here is hoping maybe Prez Trump will engineer some needed structural changes. 

A few of many recent related posts about recent Trumpian clemency activity:

June 11, 2018 in Clemency and Pardons, Criminal justice in the Trump Administration, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Sunday, June 10, 2018

Former US Pardon Attorney explains why "Trump’s pardons are really not out of the ordinary"

Margaret Colgate Love, who served as U.S. pardon attorney from 1990 to 1997, has this terrific recent Washington Post piece headlined "Trump’s pardons really aren’t out of the ordinary." Here is how it starts and ends:

President Trump’s newfound enthusiasm for his pardon power has evoked consternation among his critics, in part because he appears to have bypassed the Justice Department’s pardon advisory program.  But having managed that program for almost a decade during the first Bush and Clinton administrations, and represented applicants for pardon and sentence commutation in the 20 years since, I find much of this criticism unwarranted.

There is nothing surprising or necessarily alarming about Trump’s embrace of this broad executive power — even if it has been unconventional.  His grants to date, at least as he explains them, represent a classic and justifiable use of the pardon power to draw attention to injustice and inefficiency in the law.  While many may disagree with the president’s choices, each of them speaks to some widely acknowledged dysfunction in the criminal-justice system.

Moreover, each of his grants has some precedent in recent pardon practice. His most recent grant, to Alice Marie Johnson, a woman serving a life sentence for involvement in drug trafficking, carries on President Barack Obama’s program of sentence commutations. Even his pardon of former Maricopa County, Ariz., sheriff Joe Arpaio last summer echoes President Ronald Reagan’s decision to fulfill a campaign promise by preemptivelypardoning two FBI officials who had approved illegal surveillance of domestic terrorists.

In sum, Trump’s grants to date send a message that business as usual in the criminal-justice system will not be tolerated.  That is how the pardon power was designed to work by the framers of the Constitution.

But while Trump’s pardons are hardly unique, the process that produced them is troublesome.  Trump appears to be relying exclusively on random, unofficial sources of information and advice to select the lucky beneficiaries of his official mercy.  This makes a mockery of the pardon power’s historical operation as part of the justice system, manifested by its administration by the Justice Department since the Civil War.  President Bill Clinton similarly avoided the ordinary pardon review process at the end of his presidency, depriving his grants of legitimacy and threatening long-term damage to his reputation....

As a [reform] model, the federal government might consider Delaware’s clemency system, in which an official board chaired by the lieutenant governor serves as gatekeeper to the governor’s pardon power. This board and its small staff have produced hundreds of recommendations each year, mostly accepted by the governor.  Significantly, the Delaware attorney general’s role is strictly one of an advocate.

While the president’s pardoning options could not be limited without a constitutional amendment, the many practical and political virtues of a Delaware-like management system should encourage presidential compliance.  Congress might even offer a record-sealing benefit for cases that go through the regular process, as South Dakota’s legislature did several years ago after hundreds of “secret” gubernatorial pardons came to light.  This would not only lend greater credibility to specific grants but could also allow pardons to play a more effective role in regulating the operation of the justice system and encouraging law reform.

There are many reasons to be guardedly grateful that Trump has taken an interest in this time-honored constitutional power.  But now we must encourage him to use it more responsibly for the benefit of those who have no friends in high places, if not for the benefit of his own legacy.

A few of many recent related posts about recent Trumpian clemency activity:

June 10, 2018 in Clemency and Pardons, Criminal justice in the Trump Administration, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Friday, June 08, 2018

Prez Trump now says he is looking at "3,000 names" for possible clemency and will seek more names from NFL players

Another day, another round of clemency craziness thanks to Prez Trump.  These two new headlines about what Prez Trump said today account for the new craziness: 

Here is a little context from the Reuters piece (with one phrase highlighted):

U.S. President Donald Trump said on Friday he is considering pardoning some 3,000 people “who may have been treated unfairly,” including late heavyweight boxing champion Muhammad Ali.

“We have 3,000 names. We’re looking at them.  Of the 3,000 names, many of those names have been treated unfairly,” Trump told reporters on the White House lawn before he departed for a Group of Seven summit in Canada. In some cases, their sentences are “far too long,” he said.

Trump said he was considering a pardon for Ali, who died in 2016. The boxer refused to be inducted into the U.S. Army in 1967, claiming conscientious objector status, and was sentenced to five years in prison. He never went to prison while his case was under appeal and in 1971 the U.S. Supreme Court overturned the conviction.... It was unclear why Trump would be considering a pardon, given that Ali’s conviction was overturned.

Trump also said he will reach out to National Football League players who have been urging criminal justice reforms for their recommendations of people who have been treated unfairly.

The peculiar discussion of Ali and the olive branch of sorts to NFL players is sure to garner the most attention, but the statement by Prez Trump that some federal defendants get sentences that are "far too long" strikes me as most interesting and perhaps consequential. Specifically, in the on-going debate over federal statutory sentencing and prison reforms, this comment leads me to wonder (and hope) that Prez Trump might be convinced to be support of some statutory sentencing reforms before too long, if not now.

June 8, 2018 in Clemency and Pardons, Who Sentences? | Permalink | Comments (6)

Thursday, June 07, 2018

Any suggestions for Prez Trump's "growing list of potential pardons or commutations"?

The question in the title of this post is prompted by this ABC News article headlined "Trump’s ‘solo act’ push for presidential pardons likely to grow, WH officials say." Here are excerpts:

The White House has been working to prepare documents for a growing list of potential pardons or commutations under consideration by President Donald Trump, two senior administration officials told ABC News Thursday. "You don't want to be the person empty-handed when he's asking," one of the officials said. "Need to be ready when the boss is ready to go.”

Officials describe the push for pardons as "a solo act," pointing directly to Trump’s pushing for more and more names. White House aides believe Trump is grasping for names he knows like Martha Stewart and former Illinois Gov. Rod Blagojevich, sources told ABC News, while the aides lobby the president to consider also more unknown Americans who have been behind bars for nonviolent crimes.

The sources said they expect the president's list to grow in the coming weeks. "He's doing it his way and he likes seeing how quick the process has been," one of the sources said. The White House, as ABC News has reported, has been going around the Department of Justice, which is usually heavily involved in such cases.

I sincerely doubt Prez Trump or his aides read this blog and its comments, but one never knows.  So, dear readers, with Prez Trump reportedly "pushing for more and more names," let's give him more and more names.

Especially in light of modern marijuana reforms, I hope someone points Prez Trump and his aides to the Life for Pot site which has detailed lists of Nonviolent Inmates (over 62) Serving​ Life without Parole for Marijuana and Inmates(under 62) Serving ​Sentences of Life without Parole in Federal Prison for Marijuana.  And I cannot help but view John Knock as the first among equals on that list, in part because of the amazing work his sister has done to bring attention to his story and those of other similarly over-sentenced federal defendants.

The amazing Shon Hopwood and FAMM's Kevin Ring has been championing the cause of Matthew Charles (discussed in this recent post), so I am hopeful that his name is already on the radar of folks at the White House.   But I know there are thousands, likely tens of thousands, of persons who can make a reasonable case for receiving clemency in the form of a commutation or pardon.  I welcome names to be listed and cases to be made in the comments.   

UPDATE: This Washington Post WonkBlog piece spotlights a ready source for clemency candidates. The piece is headlined "It’s not just Alice Marie Johnson: Over 2,000 federal prisoners are serving life sentences for nonviolent drug crimes," and it starts this way:

On the advice of Kim Kardashian, President Trump on Wednesday commuted the prison term of Alice Marie Johnson, a 63-year-old great-grandmother, who in 1996 was sentenced to life without parole in federal prison on nonviolent drug and money laundering charges.

It's a somewhat surprising move coming from Trump, a president who has publicly called for executing drug dealers. But Jordan's case underscores how many nonviolent drug offenders are serving life terms in federal prison. According to federal corrections data analyzed by the Sentencing Project, a criminal-justice-reform group, as of 2016 1,907 federal inmates were serving life sentences for drug offenses, which are by definition nonviolent (more on that below).

An additional 103 offenders found guilty of those crimes were serving “virtual life sentences,” which the Sentencing Project defines as sentences of 50 years or more. Under federal law, there is no possibility of parole for crimes committed after Nov. 1, 1987.

June 7, 2018 in Clemency and Pardons, Criminal justice in the Trump Administration, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Wednesday, June 06, 2018

Kimme’s accomplishment: Prez Trump commutes LWOP sentence of Alice Johnson!!

Only a week after an in-person meeting with Prez Trump, Kim Kardashian West can and should be credited with getting President Donald Trump to do something bold and consequential with his clemency power.  This official White House statement explains:

Today, President Donald J. Trump granted a commutation to Alice Marie Johnson, a 63-year-old great-grandmother who has served almost 22 years in Federal prison for a first-time criminal offense.

Ms. Johnson has accepted responsibility for her past behavior and has been a model prisoner over the past two decades.  Despite receiving a life sentence, Alice worked hard to rehabilitate herself in prison, and act as a mentor to her fellow inmates.  Her Warden, Case Manager, and Vocational Training Instructor have all written letters in support of her clemency.  According to her Warden, Arcala Washington-Adduci, “since [Ms. Johnson’s] arrival at this institution, she has exhibited outstanding and exemplary work ethic. She is considered to be a model inmate who is willing to go above and beyond in all work tasks.”

While this Administration will always be very tough on crime, it believes that those who have paid their debt to society and worked hard to better themselves while in prison deserve a second chance.

I give Prez Trump a lot of credit for now moving beyond seemingly politically-motivated clemencies on to seemingly celebrity-motivated clemencies.  Excitingly, this CNN report today, headlined "Exclusive: Trump considers dozens of new pardons," reports that the Trump Administration "has prepared the pardoning paperwork for at least 30 people," which means we might soon get a lot more than just political-celebrity-buzz-worthy grants. 

As we anticipate even more clemency action, I hope someone makes sure to tell Prez Trump that he is now still 1713 commutations (including 567 LWOP sentences) behind President Barack Obama's modern records.  As this accounting highlights, Prez Obama, after a slow start, became the modern pace setter for federal clemency.  Here is hoping that Prez Trump will look to break Prez Obama's record.

Especially amusing among the stories covering all these clemency developments is this new Splinter piece (which predates the grant to Ms. Johnson).  It is titled "Donald Trump is Reportedly Torn Between Kim Kardashian and John Kelly," and it starts this way:

Picture if you will a befuddled Donald Trump. On one shoulder is a tiny Kim Kardashian angel. A tiny John Kelly devil is perched on the other. Both Kelly and Kardashian begin whispering their advice into the president’s ears.

That, essentially, is what is apparently taking place at the White House, as Trump mulls a pardon for 63-year-old Alice Johnson—a great-grandmother currently serving out a life sentence in prison for a non-violent drug-related conviction—following Kardashian’s high profile oval office visit in late May.

Oh how I wish I had the computer graphics skills to turn this imagined Kimme/Kelly shoulder debate into the gif that keeps on giving, especially now that we know how it turned out.

A few of many recent related posts about Trumpian clemency activity:

June 6, 2018 in Clemency and Pardons, Criminal justice in the Trump Administration, Drug Offense Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (21)

Tuesday, June 05, 2018

Prez Trump reportedly "obsessed" with pardons and "may sign a dozen or more in the next two months"

The latest dispatch from inside the Beltway on the clemency front comes in the form of this juicy new Washington Post article headlined "Trump fixates on pardons, could soon give reprieve to 63-year-old woman after meeting with Kim Kardashian." The entire article is a must-read, and here are just a few highlights:

President Trump has become fixated on his ability to issue pardons, asking his aides to compile a list of candidates and stirring dissent in the West Wing with his mercurial and seemingly celebrity-driven decisions.

Trump is telling aides that he is now strongly considering pardoning Alice Marie Johnson, a 63-year-old woman serving a life sentence for a nonviolent crime, after meeting with Kim Kardashian last week to discuss her case — a move being resisted by his chief of staff and a top White House lawyer....

A White House official who, like others, spoke on the condition of anonymity said Trump is “obsessed” with pardons, describing them as the president’s new “favorite thing” to talk about. He may sign a dozen or more in the next two months, this person added.

“It’s all part of the show,” said veteran Republican consultant Ed Rollins, a former strategist for a pro-Trump super PAC. “It’s not a rational or traditional process but about celebrity or who they know, or who he sees on ‘Fox & Friends.’ He’s sending the message, ‘I can do whatever I want, and I could certainly pardon someone down the line on the Russia probe.’ ”

The pardon for Johnson could come soon, with the paperwork being finalized Tuesday morning, according to a person familiar with the discussions. Trump’s aides and associates see Kardashian’s celebrity imprimatur as crucial and alluring to the president. But the potential pardon of Johnson has caused consternation in the West Wing, with top advisers — including chief of staff John F. Kelly and White House counsel Donald McGahn — disturbed by the process, according to two people familiar with the discussions.

Kelly has reviewed Johnson’s background and her 1996 conviction — she was sentenced to life in prison on drug possession and money laundering charges — and is not convinced she deserves a pardon, an administration official said. And McGahn has also argued against the possible pardon as an unnecessary action by the president, a second official said.

Jared Kushner, the president’s son-in-law and senior adviser who helped arrange the meeting with Kardashian in the Oval Office last week, has heavily pushed for a pardon for Johnson within the West Wing, these officials said. Kushner attended the meeting between Trump and Kardashian, and having recently had his security clearance reinstated, has been described as newly emboldened by White House aides.

A White House spokesperson said the administration had no current announcements to make on pardons and declined to discuss the specifics of ongoing deliberations....

Trump’s pardons so far have been scattershot, driven by television segments, celebrities, friends and White House advisers who have pressed their cases for pardons that include controversial Sheriff Joe Arpaio, conservative commentator Dinesh D’Souza and Lewis “Scooter” Libby, former chief of staff to Vice President Richard B. Cheney. He also posthumously pardoned heavyweight boxing champion Jack Johnson in May, after being lobbied by actor Sylvester Stallone....

Trump has begun asking friends who else he should pardon, according to an adviser who frequently speaks to the president, and some have offered suggestions. The president has asked McGahn to prepare a list of other pardons for him to consider, administration officials said.

Some people seeking pardons are now making their case on Fox News, the president’s favorite channel, knowing he may be watching. Patti Blagojevich, the former governor’s wife, appeared on “Justice with Judge Jeanine” Saturday night.... On Monday, the wife of former Trump foreign policy adviser George Papadopoulos went on Fox News’ “Tucker Carlson Tonight” and for the first time said she believed Trump should pardon her husband, who pleaded guilty in October to lying to the FBI about Russia contacts during the campaign. Papadopoulos is awaiting sentencing on the felony charge....

The White House is also now weighing whether to grant a presidential pardon to two ranchers from eastern Oregon, Dwight and Steven Hammond, whose 2016 imprisonment on arson charges inspired the 41 day-armed occupation of the Malheur National Wildlife Refuge. Ranching and farming groups, as well as some militia adherents, have pushed for clemency to send a signal that federal officials won’t engage in overreach out West.

The Hammonds’ supporters argue that the two men, originally convicted in 2012 on two counts of arson, shouldn’t have been forced to serve jail time on two separate occasions. While they would have normally served a mandatory minimum sentence of five years, U.S. District Judge Michael Hogan initially gave Dwight Hammond three months and his son Steven a year and a day behind bars. But the government won an appeal over the Hammonds’ sentence in 2015, so they were resentenced to serve out the remaining years of a five-year minimum.

Prior recent related posts about Trumpian clemency activity:

June 5, 2018 in Clemency and Pardons, Criminal justice in the Trump Administration, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5)

Is all the recent Trump clemency action creating (unhealthy?) excitement among federal prisoners?

The question in the title of this post is prompted by this lengthy Washington Examiner article headlined "Alan Dershowitz says anyone can get clemency from Trump, as buzz builds behind bars." Here are excerpts:

President Trump issued his first prison commutation after lunch with Alan Dershowitz. The men talked about Mideast politics before Trump "asked me what else was on my mind, and I told him.  I took advantage of the moment,” the longtime Harvard law professor recalled.

Dershowitz told the president about Sholom Rubashkin, a kosher meatpacking executive who was seven years into a 27-year prison sentence for financial crimes. Not long after, Rubashkin in December became the first — and so far only — person Trump released from prison. "You have to appeal to his sense of injustice," said Dershowitz, who often says on TV that Trump is treated unfairly in special counsel Robert Mueller’s Russia probe. "He feels he is now being subject to injustice, and so he's very sensitive to injustices."

Trump's approach to clemency, exhibited with a flurry of recent statements and official actions, is markedly different from his recent predecessors, generating enormous excitement among inmates.  Dershowitz believes just about anyone has a shot at bending Trump's ear, even though most successful cases have been pushed by well-connected advocates.   "I think if you write a letter to the president and you set down the case in a compassionate way, I think his staff knows that he's looking for cases of injustice. But you have to write it in a compelling way,” he said. “They have to write something that will catch the attention of someone on the president's staff."

So far, Trump has issued one prison commutation and five pardons.  But the pace is quickening.  Last week, he posthumously pardoned boxer Jack Johnson at the behest of “Rocky” actor Sylvester Stallone, saying Johnson’s early 1900s conviction was a race-motivated injustice.  On Wednesday, Trump met in the Oval Office with celebrity Kim Kardashian, who lobbied him to release Alice Johnson, a grandmother jailed for life since 1996 on drug-dealing charges.  Early on Thursday, Trump tweeted that he would pardon conservative author Dinesh D'Souza, who pleaded guilty in 2014 to a campaign-finance felony. Hours later, Trump told reporters he was considering pardoning celebrity chef Martha Stewart and former Gov. Rod Blagojevich, the Illinois Democrat who allegedly tried to sell President Barack Obama's Senate seat.

Although Johnson has not been given clemency, she remains optimistic.  “I'm feeling very hopeful after speaking with Kim about how well the meeting went with President Trump,” Johnson said in an email from prison Friday, facilitated by her longtime supporter Amy Povah, who leads the CAN-DO Foundation....  “I have strong reason to believe that President Trump is going to surprise many people,” said Povah...

Dershowitz said there's a method to the apparent madness of Trump’s clemency grants, which are a sharp break from the early-term stinginess of his recent predecessors. "You have to make him say to himself, 'There but for the grace of God go I, or other people I identify with.' He has to feel the injustice. It's not enough to get online with hundreds of other people showing a law was misapplied. There has to be a sense of gut injustice,” he said....

If there’s anyone who would know Trump’s thinking on clemency, it’s Dershowitz. In addition to pushing Rubashkin’s release, he was consulted by Trump in advance of the recent pardons of D'Souza and I. Lewis "Scooter" Libby, a former aide to Vice President Dick Cheney who was convicted in 2007 but never imprisoned for making false statements. “I said I thought they were both injustices, that there was a whiff of politics around the decision to prosecute D’Souza, and that I did not think Scooter Libby had committed perjury — I thought there was just a difference in recollection,” Dershowitz said.

"When I made the appeal on behalf of Rubashkin, I said, 'You are a businessman, you understand what happens when the government and prosecutors manipulate the system and lower the value of your company in order to increase the value of losses and increase the sentence.' As soon as I said that, he said, 'I get that. I get that. I've been there,’” Dershowitz said. "He immediately glommed onto it because he understood the business implications of it ... there wouldn't have been any losses, or minor losses, but because the government drove the price down, it drove the sentencing guidelines way up."...

“I've always thought President Trump would step up and finish the job that President Obama started but never completed,” said Michelle West, a clemency aspirant in prison for drug-related crimes since 1994. “My daughter, Miquelle West, went to the Obama White House for a clemency summit. In our wildest dreams we never thought that I would be passed over considering she was invited to attend.” West said in an email relayed by Povah that “my daughter was 10 when I went to prison and I pray President Trump will consider me worthy of a second chance.”

Crystal Munoz, 11 years into a 20-year sentence for dealing marijuana, said that she, too, was hopeful, sending Povah the draft of a letter for Trump. Munoz, 38, gave birth to her youngest child in prison.  Connie Farris, a 73-year-old inmate jailed for mail fraud, said "I will never, never give up hope that our president will start releasing women such as myself and others. Please President Trump hear our cry." Farris, seven years into a 12-year sentence, said her husband of 53 years suffers from muscular dystrophy and needs her support.

Although there’s significant hope stemming from Trump’s unconventional approach, there’s also some skepticism that everyday inmates can win a presidential reprieve. “The problem is, the president’s process is a little haphazard, it seems, and a little ad hoc. And then you have this completely Byzantine dead-end of a process at the Justice Department,” said Kevin Ring, president of Families Against Mandatory Minimums.

“I think people are encouraged that he’s going around the Justice Department to look at deserving cases, but it’s not clear that anybody has the ability to get in front of him — so sort of good news, bad news,” he said.  Ring said Dershowitz’s contention that anyone can win clemency with a letter is “a little naive.”  

“There are people who buy lottery tickets every Friday and they’re optimistic because they don’t know the odds. And when people see a winner, that gives them hope,” he said.

Like Kevin Ring, I am a bit concerned to hear that there may be "enormous excitement among inmates" given Prez Trump's clemency record to date.  He has only commuted a single sentence so far, and I have no reason to believe he has plans to start issuing dozens (let along hundreds) of additional commutations anytime soon.  Political realities has seemed to be influencing all of Prez Trump's clemency work to date, and precious few federal prisoner have political forces in their favor.  I sure hope Prez Trump will, as Amy Povah put it, "surprise many people," but I think hopes ought to be tempered for now.

Prior recent related posts about Trumpian clemency activity:

June 5, 2018 in Clemency and Pardons, Collateral consequences, Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (7)

Saturday, June 02, 2018

"Pardon System Needs Fixing, Advocates Say, but They Cringe at Trump’s Approach"

The title of this post is the title of this lengthy new New York Times article.  I recommend it in full, and here are excerpts:

For those who view the Justice Department’s pardon system as slow and sclerotic, with its backlog of more than 11,000 cases, they need only look to the case of Matthew Charles.  Mr. Charles was sentenced in 1996 to 35 years in prison for selling crack cocaine. In prison, he took college classes, became a law clerk and taught fellow inmates.  He was released early, in 2016, and began rebuilding his life, volunteering at a food pantry and even falling in love.

Last month, Mr. Charles was sent back to prison after a federal court determined that he did not technically qualify for early release. His lawyers plan to ask the Justice Department to commute the rest of his sentence, and he appears to fall within its guidelines for clemency. But with nearly 9,000 petitioners for a commutation ahead of him, it could take years for federal law enforcement officials to decide his fate.

Cases like Mr. Charles’s make some criminal justice reform advocates say they would welcome a reform-minded president willing to bypass the system and more boldly wield the constitutional power to grant pardons.

Now they have one in President Trump, who has pardoned five people in his first 17 months in office and bypassed the Justice Department’s recommendation system to do so. This week, he pardoned Dinesh D’Souza, the conservative commentator who pleaded guilty in 2014 to violating campaign finance law. Mr. D’Souza responded on Twitter by claiming victory over what he viewed as a political prosecution and by mocking Preet Bharara, the former United States attorney in Manhattan whose office prosecuted the case.

But by choosing to pardon political supporters whose cases largely failed to meet the basic guidelines for pardons, Mr. Trump could turn a slow and imperfect system into an unequal and unjust one, both liberal and conservative advocates warn, in which those with fame, money or access to the president’s ear are first in line to receive clemency.

“A more regular and robust use of presidential clemency, and a willingness to go around the Justice Department process, would be applauded by many,” said Kevin Ring, a conservative public policy expert and the president of Families Against Mandatory Minimums. “The issue is whether the president will still apply standards and meritocracy. Will he weigh the injustices and mete out justice to reflect the needs of a situation? That doesn’t seem to be the case.”...

The pardon office has a reputation for slow decision making, in part because of the time needed to carefully vet a case. Of the backlog of 11,203 pardon and commutation cases, only 2,876 have been filed since Mr. Trump became president. A lack of resources has also bogged down the process, according to officials involved. The previous pardon attorney, Deborah Leff, resigned because she said she could not get the resources necessary to meet Mr. Obama’s goal to prioritize petitions that would shorten sentences for nonviolent drug offenders....

Advocates who want to see the pardon system overhauled generally support its guidelines for granting pardons and commuting sentences. In general, felons wait five years after conviction or release to petition for a pardon. They must show evidence of rehabilitation and demonstrate that they have led responsible and productive lives after release for a significant period of time. The recommendations of officials including federal prosecutors and judges are also taken into consideration.

“A president that circumvents this system is not necessarily a bad idea,” said Shon Hopwood, Mr. Charles’s lawyer. “Legal scholars have argued for years that it’s inappropriate to have the office of the pardon attorney at the Justice Department. It asks the people who grant pardons and clemency to correct their colleagues, the prosecutors who put people in prison.”

Some regular readers may recall that, way back in 2010, I urged Prez Obama to structurally change the federal clemency system in this this law review article titled "Turning Hope-and-Change Talk Into Clemency Action for Nonviolent Drug Offenders." Here is a snippet from that piece (updated for Trumpian times):

President [Trump] ought to seriously consider creating some form of a "Clemency Commission" headed by a "clemency czar."...  Though a "Clemency Commission" headed by a "clemency czar" could be created and developed in any number of ways, ... [the] basic idea is for President [Trump] to create a special expert body, headed by a special designated official, who is primarily tasked with helping federal officials (and perhaps also state officials) improve the functioning, transparency, and public respect for executive clemency. Though the structure, staffing, and mandates of a Clemency Commission could take many forms, ideally it would include personnel with expertise about the nature of and reasons for occasional miscarriages of justice in the operation of modem criminal justice systems — persons who possess a deep understanding that, in the words of James Iredell, "an inflexible adherence to [severe criminal laws], in every instance, might frequently be the cause of very great injustice."

The Clemency Commission could and should study the modem causes of wrongful conviction, "excessive" sentences, and overzealous prosecutions, and then make formal and public recommendations to the President and other branches about specific cases that might merit clemency relief or systemic reforms that could reduce the risk of miscarriages of justice.  In addition, the Commission could be a clearinghouse for historical and current data on the operation of executive clemency powers in state and federal systems.  It could also serve as a valuable resource for offenders and their families and friends seeking information about who might be a good candidate for receiving clemency relief. Though the creation of a Clemency Commission would be an ambitious endeavor, the effort could pay long-term dividends for both the reality and the perception of justice and fairness in our nation's criminal justice system.

Prior recent related posts about Trumpian clemency activity:

June 2, 2018 in Clemency and Pardons, Criminal justice in the Trump Administration, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Thursday, May 31, 2018

Prez Trump suggests to reporters there will be more episodes of "Celebrity Clemency"

1527789503108I often come to think of Prez Trump as Huckster-in-Chief or Showman-in-Chief, and his TV salesman tendencies shine through when he teases his own presidential plans like a radio host hoping to keep you tuned in to the next segment.  This morning, as blogged here, the tease was on Twitter in the form of a promise to "be giving a Full Pardon to Dinesh D’Souza."  This afternoon, as detailed in this Fox News piece, the tease was delivered to reporters on Air Force One about more grants of clemency to more high-profile federal felons:

President Trump said Thursday he was considering pardoning or commuting the sentences of Martha Stewart and former Illinois Gov. Rod Blagojevich, following his announcement earlier in the day of a full pardon for conservative filmmaker Dinesh D’Souza. The president’s comments came during a gaggle with reporters on Air Force One enroute to Houston, Texas.

Trump called the former governor’s sentence on corruption charges “really unfair” and added that “plenty of other politicians could have said a lot worse.” The president said that Blagojevich said something dumb, but that "lots of politicians" do.

“I’ll tell you another one … there’s another one that I’m thinking about. Rod Blagojevich -- 18 years in jail for being stupid and saying things that every other politician, you know that many other politicians say,” Trump told reporters. “And if you look at what he said, he said something to the effect like 'what do I get' … stupid thing to say.”

The former Democratic governor, who was a contestant on Trump's "Celebrity Apprentice" in 2010, began his 14-year prison sentence in 2012 after being convicted of corruption. Blagojevich's scheduled release date is in 2024. Blagojevich was governor of Illinois from 2003 to 2009, when he was impeached and convicted on corruption charges over allegations he took bribes for political appointments—including to the open U.S. Senate seat of former President Barack Obama.

Trump suggested he was more interested in “curtailing his sentence” than a full pardon. “I am seriously thinking about – not pardoning – but I am seriously thinking of a curtailment of Blagojevich," Trump said....

“And there are others. I think to a certain extent Martha stewart was harshly and unfairly treated. And she used to be my biggest fan in the world … before I became a politician," Trump said. "But that’s ok I don’t view it that way.”

Stewart was convicted in 2004 of obstructing justice and lying to the government as part of an insider trading case. At the time, former FBI Director James Comey was the federal prosecutor who charged Stewart.

I noted in this post yesterday that Kim Kardashian on Wednesday afternoon was at the White House to speak in person with Jared Kushner and Prez Trump about her interest in seeing a clemency grant for Alice Marie Johnson, a grandmother serving LWOP for non-violent drug offense.  I closed that post by saying "it would be something for Kimme to get clemency relief for a single federal defendant; it would be something special if she could secure clemency relief for a number of individuals." For the record, I was not thinking about Martha Stewart or Rod Blagojevich or Dinesh D’Souza when I made that statement. But, jokes aside, this trio might want to send a thank you note to Kimme because it seems she did something to get Prez Trump's clemency juices flowing.  Now let's all hope these juices flow to the benefit of some non-elites ASAP.

A few prior related posts:

May 31, 2018 in Celebrity sentencings, Clemency and Pardons, Sentences Reconsidered, Who Sentences? | Permalink | Comments (10)

Prez Trump meets with Kim Kardashian to discuss clemency ... and then tweets that he "Will be giving a Full Pardon to Dinesh D’Souza"

I have an inkling that years from now lots of academics may be able to get PhDs based on a robust analysis of President Trump's tweeting. And the last 24 hours would make for an especially interesting account of Prez Trump's various perspectives on criminal justice matters.  Here are just a few Trumpian tweet highlights:

"Great meeting with @KimKardashian today, talked about prison reform and sentencing."

"'The recusal of Jeff Sessions was an unforced betrayal of the President of the United States.' JOE DIGENOVA, former U.S. Attorney."

"Not that it matters but I never fired James Comey because of Russia! The Corrupt Mainstream Media loves to keep pushing that narrative, but they know it is not true!"

"Will be giving a Full Pardon to Dinesh D’Souza today. He was treated very unfairly by our government!"

This CNBC article provides some context for this latest (political) act of Presidential clemency in the last of these linked tweets:

President Donald Trump said Thursday he plans to issue a pardon to Dinesh D'Souza, a prominent conservative commentator and filmmaker who was convicted of making an illegal campaign contribution....

D'Souza pleaded guilty in 2014 to reimbursing two of his associates after directing them to contribute $10,000 each to the 2012 Senate campaign of Wendy Long. He also admitted that he knew what he was doing violated the law.

Then-U.S. attorney Preet Bharara announced D'Souza's conviction at the time. "Dinesh D'Souza attempted to illegally contribute over $10,000 to a Senate campaign, wilfully undermining the integrity of the campaign finance process," Bharara said. "Like many others before him, of all political stripes, he has had to answer for this crime -- here with a felony conviction."...

D'Souza was sentenced to spend an eight-hour day each week in community service as part of a five-year probationary term, according to the Southern District of New York. He also has to attend weekly counseling sessions and pay a $30,000 fine.

Texas Sen. Ted Cruz, an ally of both Trump and D'Souza, applauded Trump's decision in a tweet of his own....

The president has used his pardon power five other times since taking office, including the controversial pardoning of former Sheriff Joseph Arpaio in August 2017.

Though I am always pleased to see any president make robust use of his clemency powers, I find disconcerting the obvious affinity Prez Trump has for using this power for the benefit of prominent political allies.  I am surely naive to hope that Kim Kardashian could have explained to Prez Trump how it could be politically valuable for him to start granting clemency to a bunch of just "regular people" that he claims to care about so much.   As I see it, there are lots of federal felons other than Dinesh D'Souza who have been "treated very unfairly by our government!" Perhaps Prez Trump will see and act on that reality eventually. 

May 31, 2018 in Clemency and Pardons, Criminal justice in the Trump Administration, Sentences Reconsidered, Who Sentences? | Permalink | Comments (10)

Wednesday, May 30, 2018

As Kim Kardashian heads to White House, I hope she advocates for many federal offenders excessively sentenced

Donald-Trump-Body-Shame-Kim-KardashianIn this post earlier this month I asked, "Might Kim Kardashian West actually convince Prez Trump to grant clemency to federal drug offender?" The post was prompted by the news that "Kim Kardashian West and President Donald Trump’s son-in-law and senior adviser Jared Kushner have spoken over the phone about a possible presidential pardon for Alice Marie Johnson, a 62-year-old great-grandmother serving a life sentence for a nonviolent drug offense."  This Vanity Fair article now reports that Kimme (who still has more Twitter followers than Prez Trump) is now headed to the White House to speak in person with Kushner and Prez Trump about a clemency grant.  Here are the details:

After months of back-channel talks between Kim Kardashian and Jared Kushner, the high priestess of reality television is coming to the White House.  By late afternoon on Wednesday, Secret Service agents will wave Kardashian and her attorney through the southwest appointment gate to the West Wing, where they will meet Kushner to discuss prison reform before he walks with them to sit down with President Donald Trump, likely in the Oval Office, along with White House counsel.  According to a person familiar with the meeting, Kardashian plans to ask Trump to pardon a woman serving a life sentence without parole for a first-time drug offense.  (White House staffers have joked about who will get to accompany her to the West Wing, and what they should wear for the occasion. The White House did not immediately respond to requests for comment.)...

Kardashian, a more recent prison reform evangelist, appears to be approaching the White House meeting with equal seriousness.  She will not be bringing the camera crew for her reality show, Keeping Up with the Kardashians, nor will she bring a publicist or her sisters, according to the person familiar with the situation.  (Her husband, Kanye West, who recently tweeted a photo of his red Make America Great Again hat, will not be present either, though there have been talks about him making a White House appearance of his own at a later, to-be-determined date.)  Instead, Kardashian hopes to make a legal argument to President Trump for why he should pardon Alice Johnson, a 62-year-old great-grandmother serving a life sentence without parole for a first-time drug offense.  More than 21 years after Johnson went to prison, Kardashian came across Johnson’s story on Twitter earlier this year and reached out to Ivanka, who connected her to Kushner, according to the source. In an interview earlier this month, Kardashian said that, if given the opportunity, she would “explain to [Trump] that, just like everybody else, we can make choices in our lives that we’re not proud of and that we don’t think through all the way.”...

The Kushner-Kardashian summit marks something of a turning point for the First Son-in-Law. It will be Kushner’s first major act since he was granted a permanent, top-level security clearance last week, after more than a year of negative headlines about why his clearance had been delayed and then downgraded. Among White House tea-leaf readers, the news was received as evidence that perhaps Kushner’s legal exposure in Robert Mueller’s investigation might not be as severe as many had believed it to be, and gave credence to the idea that his standing in the West Wing might be somewhat restored. Those in Ivanka and Kushner’s social orbit in New York joked with each other about how much money they stood to lose on various bets they had made over when Kushner would be indicted by Mueller.

But Kushner and Ivanka are not focused on the chatter, or their old friends in New York — at least not on Wednesday. They plan to host Kardashian for dinner at their home after her presidential sit-down, a private evening with the most famous sibling of America’s other First Family.

I somewhat doubt that Kimme will "make a legal argument to President Trump," but I am hoping somebody (perhaps even Jared Kushner) has thought to urge Ms. Kardashian to talk about excessively sentenced federal defendants beyond Alice Marie Johnson.  In a prior post, I noted that the CANDO website has a detailed list of Top 25 Women who deserve clemency from federal prison.  And the Life for Pot site has its own detailed lists of Nonviolent Inmates (over 62) Serving​ Life without Parole for Marijuanha and Inmates(under 62) Serving ​Sentences of Life without Parole in Federal Prison for Marijuana.  Notably, over the weekend, Ms. Kardashian did tweet here about the story of Matthew Charles (discussed in this recent post).  

It would be something for Kimme to get clemency relief for a single federal defendant; it would be something special is she could secure clemency relief for a number of individuals.  

Prior related post:

May 30, 2018 in Clemency and Pardons, Examples of "over-punishment", Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

Sunday, May 27, 2018

Interesting accounting of clemency's continued decline in New Mexico

Cover-2-Gov-Pardon-Box1-771x796This past week I came across this terrific lengthy local article looking in-depth at clemency realities in one state. The piece's headlined reveals its essential finding: "Analysis: Pardons have plummeted in New Mexico under Gov. Martinez." Here are excerpts:

SFR and New Mexico In Depth have assembled what is perhaps the most complete picture ever of how recent New Mexico governors have used their constitutional power of executive clemency.  That includes pardons, for people who have served their time, and commutations, in which sentences are reduced for those still incarcerated.

A court victory in a public records lawsuit filed by SFR enabled this close examination, which found, among other things, that Ellis resides in an overwhelming majority: She has asked Martinez for a pardon—and didn’t receive one.

An analysis of hundreds of pages of documents and multiple spreadsheets by the news organizations shows that Martinez has granted just three pardons — an act that clears what are, in most cases, decades-old crimes from people’s criminal records — since taking office.  More significantly, the analysis reveals a drastic drop in the number of people even requesting clemency under Martinez, compared to the previous two administrations.

Former two-term governors Gary Johnson and Bill Richardson fielded more than 1,000 clemency applications each; Martinez has received roughly 250 applications for mercy in her seven and half years as governor, according to records turned over by the state.  Johnson, then a Republican and now a Libertarian, granted nearly 9 percent of pardon applications between 1995 and 2003, the analysis found.  Richardson, a Democrat who served from 2003 through 2010, had a 7 percent pardon grant rate.

Martinez: 1 percent.

Johnson commuted two women’s sentences, and Richardson gave one woman a commutation.  Martinez has not granted any commutation requests, the records show.

The meager grant rate for Martinez, a former district attorney in Las Cruces who is approaching the end of her second and final term, fits with her govern-as-prosecutor style on criminal justice issues — including her ongoing push to reinstate the death penalty, calls for increased sentences for a host of crimes and even coming around to support Trump’s border wall idea.

The precipitous decline in applications surprised a pair of longtime New Mexico criminal defense lawyers who have decades of experience in post-conviction work.  Both concede, however, that they’ve told prospective clients not to bother with clemency applications until there’s a new governor, given Martinez’ rhetoric since she took office in 2011.  One of the lawyers, Mark Donatelli of Santa Fe, calls Martinez’ clemency record an “abuse of power in the sense of not using the powers that are granted to her by the Legislature and our constitution.”

Mark Osler, a professor at the University of St. Thomas in Minnesota whose scholarship, writing and teaching have focused on clemency nationwide, says he’s not aware of any other states that have seen applications fall off the cliff as they have here. He called Martinez’ stinginess with clemency a “dereliction of duty.”

“Pardons, which effectively are a restoration of rights, are meant to be part of the system; they’re included in state constitutions, and we don’t throw constitutions together casually,” Osler says. “There’s something deeply troubling about kicking part of the system out from under people.”

Donatelli and Margaret Strickland, president of the New Mexico Criminal Defense Lawyers Association, say pardons are especially important in New Mexico, which does not allow expungement — the wiping clean of some criminal records after a certain period of time — even for misdemeanors. In the internet age, when arrest records are a mouse-click away, a pardon could go miles toward landing someone a job.

Martinez, however, has granted pardons to three people who are at or near retirement age.  Their crimes: welfare fraud; breaking and entering; and larceny. The governor has denied at least 65 applications for clemency outright; she deemed at least another 71 “ineligible” for various reasons and, in 32 cases, her office did not provide a disposition or an explanation for where the applications stand.

Some of the pardon files Martinez’ office provided are incomplete, leaving a question mark hovering over the disposition of some 85 cases, some of which the governor appears not to have acted on.  The data leaves other questions, too.  It appears the state does not track the race, ethnicity, age or even gender of those who have applied for pardons. Nor is there an indication of how many applicants had the assistance of a lawyer.

What is clear, however, is that people have sought clemency for crimes ranging from first-degree murder — automatically ineligible for pardons here, by law — to rape, armed robbery, writing worthless checks and drug possession charges that are no longer felonies in New Mexico.  And although Martinez has turned away a higher percentage of applicants than her predecessors, the vast majority of those who have filled out a pardon application during the past 24 years have come away empty-handed.

Martinez has steadfastly refused to discuss her pardon record, going so far as to spend hundreds of thousands of dollars of state money on a private lawyer to keep secret the records that underpin this story.  She remained silent through multiple requests for comment on the findings by SFR and NMID....

During her first four-year term, Martinez put more requirements in place for applying for pardons, a process that already forced applicants to have a high school diploma and to wait various lengths of time after their convictions before applying. She has barred pardons for a host of crimes, including misdemeanors, multiple DWIs and sexual offenses.

New Mexico is one of 29 states where the power of executive clemency is vested in the governor alone, according to a scholarly paper published by the American Bar Association in 2009. New Mexico state law allows for its Parole Board to advise the state’s chief executive on pardons.  And the governor does frequently seek Parole Board input; the SFR and NMID analysis shows the Parole Board weighed in on 134 requests under Johnson, 259 requests under Richardson and at least 68 requests under Martinez.

In 13 cases, Martinez went against the Parole Board’s recommendation. Such was the case with Bruce Gillis, who in 1974 was convicted of a fourth-degree felony for distributing marijuana.  Gillis told Martinez in a letter that he was 20 years old, “immature and irresponsible,” and pleaded guilty to the charge at the advice of a lawyer, but later turned his life around.  The Parole Board recommended a pardon. Martinez denied it.

Generally, in states where pardon power isn’t invested in a single person, rates of successful pardon applications are higher, says Osler, the Minnesota law professor.  For example, Georgia and South Carolina, where parole boards have ultimate authority over pardons, issue pardons at higher rates than Vermont, Minnesota and New Mexico, three states where the governor has complete control.  “You tend to see fewer granted when the executive has absolute power, because it becomes a political concern,” he says.

May 27, 2018 in Clemency and Pardons, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Thursday, May 24, 2018

Prez Trump posthumously pardons boxer Jack Johnson

As reported in this new CNN piece, "President Donald Trump on Thursday granted a posthumous pardon to boxer Jack Johnson on the advice of actor Sylvester Stallone."  Here is more:

"Today I've issued an executive grant of clemency, a full pardon, posthumously, to John Arthur 'Jack' Johnson ... The first African-American heavyweight champion of the world, a truly great fighter. Had a tough life," Trump said.  Trump was joined in the Oval Office by Stallone, current heavyweight champion Deontay Wilder, and Johnson's great-great niece Linda Bell Haywood, among others.

"We have done something today that was very important, because we righted a wrong," Trump said. "Jack Johnson was not treated fairly, and we have corrected that, and I'm very honored to have done it." Last month, Trump said he was considering the pardon....

Johnson, the first African-American world heavyweight boxing champion, was convicted in 1913 under the Mann Act for taking his white girlfriend across state lines for "immoral" purposes.  The Mann Act purported to prevent human trafficking for the purpose of prostitution, but critics have argued it was applied inconsistently to criminalize African Americans and those with dissenting political views. 

Johnson was convicted by an all-white jury in less than two hours and was imprisoned for a year.  The sentence and imprisonment destroyed the boxing career of the "Galveston Giant."  He died in 1946.

Stallone called Johnson an "inspirational character." "It's incredible that you've done this," the "Rocky" star told the President....

In 2016, then-Sen. Harry Reid, D-Nevada, and Sen. John McCain, R-Arizona, along with Reps. Peter King, R-New York, and Gregory Meeks, D-New York, petitioned the Obama administration to grant a pardon to Johnson. The bipartisan group of lawmakers sent a letter to the White House asking that the pardon be given in honor of the 70th anniversary of the boxer's death. "While it is unfortunate that this unjust conviction was not corrected during the boxer's lifetime, a posthumous pardon today represents the opportunity to reaffirm Jack Johnson's substantial contributions to our society and right this historical wrong," the letter said.

In March 2017, Sen. Cory Booker, D-New Jersey, joined with McCain, King and Meeks to reintroduce a resolution urging Johnson's pardon. "Despite this resolution passing both chambers of Congress several times in recent years, no pardon has been issued to date," McCain said in a statement at the time. "I hope President Trump will seize the opportunity before him to right this historical wrong and restore a great athlete's legacy."

In an era in which there are so many living people subject to excessive sentences and unfair convictions and collateral consequences, I am generally not a huge fan of posthumous pardons. But these kinds of actions reveal that a chief executive knows and is willing to acknowledge mistakes and injustices in the operation of the justice system, and (one hopes) they can serve as a precursor to more meaningful use of the clemency power on behalf of people still alive to benefit from it.

This USA Today article from last month provides an interesting review of two previous exampled of posthumous Prez pardons: "Bill Clinton and the Buffalo soldier" and "George W. Bush and the godfather of the Israeli air force"

May 24, 2018 in Clemency and Pardons, Sentences Reconsidered, Who Sentences? | Permalink | Comments (12)

Wednesday, May 02, 2018

Might Kim Kardashian West actually convince Prez Trump to grant clemency to federal drug offender?

Download (11)The question in the title of this post is not satire, but a serious inquiry based on this extended Mic report headlined "Kim Kardashian West has talked to White House about pardoning nonviolent drug offender."  Here are excerpts from the report:

Kim Kardashian West and President Donald Trump’s son-in-law and senior adviser Jared Kushner have spoken over the phone about a possible presidential pardon for Alice Marie Johnson, a 62-year-old great-grandmother serving a life sentence for a nonviolent drug offense.

The telephone calls, according to a source with knowledge of the conversations, have taken place over the course of the past several months and have picked up in intensity over the last several days.

A representative for Kardashian West confirmed to Mic that she has been in communication with the White House and is working to bring Johnson’s case to the president’s desk. The source with knowledge of the conversations also told Mic that Johnson’s case has been reviewed by White House attorneys.

Johnson, who has been in federal prison since October 1996, has captured international attention from criminal reform activists — and Kardashian West.  Kardashian West first learned about Johnson’s case from a Mic video [available here] published in October.  Kardashian West shared it on Twitter, and the video has since been viewed more than 8 million times.

Shortly after, Kardashian West became involved in trying to free Johnson, who was convicted for her role facilitating communications in a drug trafficking case. In November, Kardashian West enlisted a team of lawyers, including her Los Angeles-based attorney Shawn Holley, to advocate for Johnson’s release.

The two women also have communicated, with Johnson expressing her gratitude toward Kardashian West for her support in a November letter. Still, it appears the only clear path for Johnson’s release would be a presidential pardon or clemency — which could come at odds with Trump’s recent proposal to impose the death penalty for certain drug dealers.

In her October op-ed, Johnson told Mic she became involved in drug trafficking as a way to make ends meet following a particularly rough period in her life: She lost her job at FedEx, where she had worked for 10 years, due to a gambling addiction; she got divorced; and then her youngest son died in a motorcycle accident. “I felt like a failure,” Johnson said. “I went into a complete panic and out of desperation, I made one of the worst decisions of my life to make some quick money. I became involved in a drug conspiracy.”

Johnson was arrested and sentenced to life in prison, with no opportunity for parole. As of May 2018, she has spent over two decades behind bars. For criminal justice reform advocates, Johnson’s case serves as a glaring example of why America’s sentencing laws need reform.

Johnson was one of six prisoners featured in the ACLU’s campaign to end mass incarceration. She has also participated in Skype conversations at top universities including Yale and New York University, as well as at companies such as Google, where Mic first became aware of her story. One of Johnson’s daughters, Tretessa Johnson, told Mic in a video in November that her mother is remorseful and has been a model prisoner during her time behind bars....

President Barack Obama granted clemency to 231 individuals in December 2016, many of whom had similar drug-related charges. Johnson was not one of them. “When the criteria came out for clemency, I thought for sure — in fact, I was certain that I’d met and exceeded all of the criteria,” Johnson told Mic. “Oh my goodness, I had so much support.”

Now, her hope rests with Trump. News of Kushner and Kardashian West’s conversations comes on the heels of multiple reports in recent months that Kushner has been working to pass a bipartisan criminal justice reform bill in Congress, co-sponsored by Doug Collins (R-Ga.) and Hakeem Jeffries (D-N.Y.), among others.

For a lot more information about Alice Marie Johnson, check out all the materials assembled here at the CANDO website where she is listed #1 on this list of Top 25 Women who deserve clemency from federal prison.

May 2, 2018 in Celebrity sentencings, Clemency and Pardons, Drug Offense Sentencing, Who Sentences? | Permalink | Comments (11)

Tuesday, May 01, 2018

Should Prez Trump grant clemency to former Illinois Gov. Rod Blagojevich?

The question in the title of this post is prompted by this notable new commentary authored by Kristen McQueary for the Chicago Tribune. Here are excerpts:

Former Illinois first lady Patti Blagojevich is back in the spotlight, pulling every lever to convince President Donald Trump to award clemency to her imprisoned husband. In several media interviews, she has tried to build camaraderie with Trump by painting former Gov. Rod Blagojevich as a victim of FBI targeting and an overzealous prosecution.

That is sure to get Trump’s attention. But the better play might be appealing to Trump’s inside knowledge of the swamp — the trading of favors and campaign contributions between politicians and special interest groups. Trump knows it well. He was part of it. “Nobody knows politicians better than I do,” Trump said during a meeting with the Tribune Editorial Board in June 2015, shortly after he announced his candidacy for president. He was in town to speak to the City Club of Chicago and the editorial board invited him to stop by. He did, along with son Donald Jr.

During the meeting, we asked him about Blagojevich, who by then had been in prison for three years. The two had met on the set of “Celebrity Apprentice” in 2010 while the former governor’s corruption case was winding through the courts.

Here’s what Trump said then: “It was good having him on. I found him to be, I can only speak for myself, I found him to be a very nice guy. Not sophisticated. Had little knowledge of computers and things and you know we found that out … We found him to be very nice,” Trump said. “Now, he was under a lot of pressure at that point.

“I think that’s an awfully tough sentence that he got for what supposedly he did,” Trump said. “Because what he did is what politicians do all the time and make deals.”

Boom. What politicians do all the time. That has been the most compelling defense of Blagojevich throughout his controversial arrest, double trial and convictions. The feds placed two bugs and six wiretaps on his home telephone, his campaign office phone and his cellphone, and also bugged his friends and chief of staff. How many other politicians would end up in prison if the government listened to their conversations?

Yes, at two trials Blagojevich was rightfully found guilty on a total of 18 corruption counts for, among other things, trying to trade an Illinois U.S. Senate seat appointment for personal gain. Blagojevich deserved to go to prison. He lied to the FBI about a firewall that he claimed existed between his campaign fund and his government responsibilities. He tried to shake down campaign donors by withholding legislation they sought from state government....

Blagojevich has served six years of a 14-year sentence. Isn’t that enough?

Trump could grant him clemency and consider time served as punishment enough for what Blagojevich plotted. Remember, prosecutors arrested him before any transactions occurred.  They got him primarily on intent, not completion.  They also indicted Blagojevich’s brother to squeeze him but dropped the charges for the second trial, an admission that perhaps they were overzealous in their pursuits....

Trump knows the swamp.  He was the real estate mogul with a fat checkbook before he was president of the United States.  Plenty of politicians courted him and vice versa.  Will he look sympathetically on a fellow swamp thing?  He might.  He should.

Some of many older related posts on the Blagojevich case:

May 1, 2018 in Clemency and Pardons, Offense Characteristics, Sentences Reconsidered, White-collar sentencing, Who Sentences? | Permalink | Comments (2)

Wednesday, April 25, 2018

After four high-profile clemencies, Prez Trump issues a bunch of denials

As reported in this USA Today piece, "President Trump has denied clemency for 180 people who had applied for pardons and commutations through formal Justice Department channels — even as he's short-circuited that process to pardon political allies."  Here is more (with one line emphasized):

The denials, decided last week, represent the first movements in the Justice Department's clemency caseload since Trump was inaugurated last year, according to the Office of the Pardon Attorney.  Among those denied clemency: Anthony Calabrese, a 57-year-old reputed mob hit man from Chicago convicted of three robberies and sentenced to 62 years in prison. He had requested compassionate release after being diagnosed with terminal cancer.

One White House official, speaking on condition of anonymity because officials were not authorized to comment publicly, said the denials were "routine" and that no accompanying clemency grants were expected in the near future.  The official said the cases did not meet the president's "high standards" for clemency.

That kind of clemency housekeeping is common.  The last three presidents — Bill Clinton, George W. Bush and Barack Obama — all denied hundreds of applications in their first two years before granting their very first pardons and commutations....

Last week's denials included 82 applications for pardons and 98 for commutations. Pardons represent a full legal forgiveness for a conviction, restoring civil rights taken away by a felony conviction.  Commutations shorten a prison sentence but leave the other consequences intact.

Based on Prez Trump's grants of clemency to date (all linked below), it seems that his "high standards" for clemency are closely linked to his political interests and affinities.  I suppose I should be pleased that Prez Trump and his team are finally starting to address the many thousands of pending clemency petitions, but I am troubled (though not surprised) to learn that no "regular" defendants have yet been thought worthy of the President's grace.

Recent related posts:

April 25, 2018 in Clemency and Pardons, Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (0)

Thursday, April 19, 2018

NY Gov Cuomo restores voting rights to parolees via executive order

Restoring_Voting_Rights_to_NYers_on_ParoleAs reported in this local article, New York's "Gov. Cuomo on Wednesday signed an executive order granting parolees the right to vote in New York." Here is more:

Cuomo announced the signing at the annual convention of Rev. Al Sharpton's National Action Network. He decried the state's current law blocking those who have been released from prison but are still on parole from voting, saying it didn't square with the goals of parole and re-entry.  "At the same time, we're saying we want you a part of society, we want you to get back into the community," he said.

Cuomo said he had proposed legislation to grant voting rights to parolees, but it was shot down by the State Senate — leading him to argue the state needs a new Legislature. But Cuomo said he wouldn't wait that long.  "I'm unwilling to take no for an answer," he said.  "I'm going to make it law by executive order and I announce that here today."

Cuomo signed the executive order later Wednesday afternoon.  There are about 35,000 New Yorkers on parole who could not vote, the governor’s office said.  The executive order will restore the right to vote upon release from incarceration, his office said, citing a disproportionate impact of disenfranchisement on communities of color and links between civic engagement and reduced recidivism.

Fourteen other states and the District of Columbia restore voting rights upon release....

Cuomo’s office pointed to other criminal justice reforms he’s enacted, including raising the age of criminal responsibility and naming the attorney general as a special prosecutor for police-related deaths, arguing he’s long cared about the issue.

Republicans, meanwhile, ripped the order. A "dumbfounded" Senate Majority Leader John Flanagan (R-Suffolk County) blasted it as “illegal and horrific public policy.”... Flanagan said that those on parole, including murderers and rapists, are still serving out their sentences and should not be entitled to their voting rights. He said he would not be surprised if a lawsuit is filed seeking to block the order and accused Cuomo of trying to "expand the universe of people who are eligible to vote."

Dutchess County Executive Marcus Molinaro, the front-runner for the GOP gubernatorial nomination, ... accused Cuomo of being a dictator. "Just months before an election, with the stroke of his pen, Andrew Cuomo, plans to restore the voting rights for cop killer Herman Bell and Palm Sunday killer Chris Thomas and calls it 'justice',” he said. “But if the dictator of a third world nation threw open it's prison doors and granted voting rights to the criminals right before a reelection, we all would be appalled.”...

The New York Civil Liberties Union praised the executive order, but also said Albany should push forward with legislation on same-day voter registration and early voting.

Gov. Cuomo's office issued this press release yesterday with this link to his executive order.  The press releases stressed additional points in support of Gov. Cuomo's decision:

Parole voting restrictions have a disproportionate impact on New Yorkers of color, with African Americans and Hispanic New Yorkers comprising 71 percent of the population so disenfranchised. Civic engagement is linked to reduced recidivism and this action will promote access to the democratic process and improve public safety for all New Yorkers. The executive order is available here. "I am issuing an executive order giving parolees the right to vote. It is unconscionable to deny voting rights to New Yorkers who have paid their debt and have re-entered society," Governor Cuomo said. "This reform will reduce disenfranchisement and will help restore justice and fairness to our democratic process. Withholding or delaying voting rights diminishes our democracy."

This executive action will reverse New York's current disenfranchisement of individuals released from prison who are under post-release community supervision. New York joins fourteen other states and the District of Columbia that restore the right to vote upon release from incarceration. There are roughly 35,000 individuals currently on parole in New York who cannot vote. These individuals are participants in society at large, despite the limitations placed on them by parole conditions. They work, pay taxes, and support their families, and they should be permitted to express their opinions about the choices facing their communities through their votes, just as all citizens do.

Additionally, the current law keeping people on parole supervision from voting is internally inconsistent with New York's approach to voting for people serving sentences of probation. People on probation never lose the right to vote, but many county election officials are unclear about the distinction between those on parole and those on probation, often resulting in illegal disenfranchisement. A 2006 Brennan Center study reported that one-third of all New York counties incorrectly barred people on probation from registering to vote, while another third of all counties illegally made individuals show proof of their voter eligibility status.

April 19, 2018 in Clemency and Pardons, Collateral consequences, Race, Class, and Gender, Who Sentences? | Permalink | Comments (6)

Friday, April 13, 2018

Prez Donald Trump officially pardons Scooter Libby

Today the White House issued this "Statement from the Press Secretary Regarding the Pardon of I. “Scooter” Lewis Libby." Here is what it says:

Today, President Donald J. Trump issued an Executive Grant of Clemency (Full Pardon) to I. “Scooter” Lewis Libby, former Chief of Staff to Vice President Richard Cheney, for convictions stemming from a 2007 trial. President George W. Bush commuted Mr. Libby’s sentence shortly after his conviction. Mr. Libby, nevertheless, paid a $250,000 fine, performed 400 hours of community service, and served two years of probation.

In 2015, one of the key witnesses against Mr. Libby recanted her testimony, stating publicly that she believes the prosecutor withheld relevant information from her during interviews that would have altered significantly what she said. The next year, the District of Columbia Court of Appeals unanimously reinstated Mr. Libby to the bar, reauthorizing him to practice law. The Court agreed with the District of Columbia Disciplinary Counsel, who stated that Mr. Libby had presented “credible evidence” in support of his innocence, including evidence that a key prosecution witness had “changed her recollection of the events in question.”

Before his conviction, Mr. Libby had rendered more than a decade of honorable service to the Nation as a public servant at the Department of State, the Department of Defense, and the White House. His record since his conviction is similarly unblemished, and he continues to be held in high regard by his colleagues and peers.

In light of these facts, the President believes Mr. Libby is fully worthy of this pardon. “I don’t know Mr. Libby,” said President Trump, “but for years I have heard that he has been treated unfairly.  Hopefully, this full pardon will help rectify a very sad portion of his life.”

I sure hope that Prez Trump might think to use his pardon powers for lots of other persons that he doesn't know that he may "have heard [were] treated unfairly" by our federal criminal justice system. So far, only a quite unrepresentative sample of four men have gotten clemency relief from this President.

April 13, 2018 in Clemency and Pardons, Criminal justice in the Trump Administration, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9)

Prez Trump reportedly to pardon Scooter Libby

According to this ABC News piece, "President Donald Trump is poised to pardon Scooter J. Libby, the former chief of staff to Vice President Dick Cheney, according to sources familiar with the president’s thinking." Here is more:

The president has already signed off on the pardon, which is something he has been considering for several months, sources told ABC News.

The move would mark another controversial pardon for Trump and could raise questions as an increasing number of the president’s political allies have landed themselves in legal jeopardy. The White House has repeatedly said that no pardons are currently on the table for people caught up in the Russia investigation....

Libby was convicted in 2007 of lying to the FBI and obstruction of justice in the investigation into the leak of the identity of Valerie Plame, a former covert CIA operative. Then-President George Bush commuted Libby's 30-month sentence, sparing him prison time, but didn't pardon him.

After Libby claimed that he couldn't have been the source of the leak, multiple people came forward to testify that they learned of Plame's identity from Libby prior to when Libby said he had first received the information. At trial, Libby claimed to have simply forgotten he actually learned about the identity from Cheney a month before he said he had.

Since the conviction, Libby has since had his law license restored and former Virginia Gov. Bob McDonnell restored his voting rights in 2013. Many conservatives have been urging a pardon for Libby, including attorneys Joe diGenova and his wife, Victoria Toensing.

I am sincerely not sure what to say about this news, other than that I am tempted to go back and read some of the article I helped assemble for this October 2007 issue of the Federal Sentencing Reporter titled "Learning from Libby." I suppose I should be excited by the efforts of Prez Trump to make old issues of FSR great again.

April 13, 2018 in Clemency and Pardons, White-collar sentencing, Who Sentences? | Permalink | Comments (8)

Monday, March 26, 2018

Ohio Gov. Kasich commutes yet another death sentence

As reported in this FoxNews piece, the Governor of Ohio commuted yet another death sentence today.  Here are some details explaining why (with an emphasis on a final fact in the article):

Ohio Gov. John Kasich Monday spared a condemned killer who was set to die April 11 for fatally shooting a woman more than three decades ago during a robbery after questions were raised about discrepancies in the case and the fairness of the trial.

The Republican governor's release said his decision followed the report and recommendation of the Ohio Parole Board, which voted 6-4 on March 16 in favor of clemency for death row inmate William Montgomery. Kasich had no additional comment, his spokesman Jon Keeling said.

Montgomery was sentenced to die for the 1986 shooting of Debra Ogle during a robbery in the Toledo area. In its ruling, the parole board concluded that commuting Montgomery's sentence to life without the possibility of parole was warranted, which is what Kasich did....

The board majority noted that two jurors said after the trial they had difficulty understanding the law, and one juror was permitted to remain on the jury despite exhibiting "troubling behavior and verbalizations" that raised questions over fitness. The majority also cited concerns that a police report in which witnesses said they saw Ogle alive four days after Montgomery is alleged to have killed her was never presented to the defense.

A federal judge and a panel of the 6th U.S. Circuit Court of Appeals ruled Montgomery deserved a new trial based in part on the missing report. But the full 6th Circuit rejected that argument. The witnesses later said they mistook Ogle's sister for the missing woman.

"The failure to disclose that report coupled with the issues described above relative to Montgomery's jurors raise a substantial question as to whether Montgomery's death sentence was imposed through the kind of just and credible process that a punishment of this magnitude requires," the parole board said on March 16....

Since taking office, Kasich has allowed 13 executions to proceed and has now spared six inmates.

The 21-page Ohio Parole Board recommendation for clemency is available at this link.

This capital commutation, as noted in the article, is the sixth granted by Gov Kasich.  That now exceeds the number of capital commutations by his predecessor, Ted Strickland, though Gov Strickland's did five capital clemency grants in a single term while Gov Kasich has needed two terms to get best Strickland's number.  And I believe Ohio Gov Richard Celeste still hold the state's modern record as he commuted eight death sentences as he was leaving office in 1991.

March 26, 2018 in Clemency and Pardons, Death Penalty Reforms, Who Sentences? | Permalink | Comments (3)

Sunday, March 11, 2018

"'A Day Late and a Dollar Short': President Obama's Clemency Initiative 2014"

The title of this post is the title of this notable new paper by Paul Larkin now available via SSRN.  Here is its abstract:

Over his last two years in office, President Barack Obama used his Article II Pardon Clause power to commute the sentences imposed on more than 1,700 drug offenders. In a 2017 law review article, he congratulated himself for reinvigorating the federal clemency process. His clemency initiative, however, was hardly the unqualified success that he claims.

Obama waited far too long before undertaking his effort. He should have started it in 2010, rather than in 2014.  That would have allowed the thousands of clemency decisions he made to be handled at a more reasonable pace and probably more accurately.  He also should have issued a general conditional commutation order rather than undertake a case-by-case re-examination of the sentence each clemency applicant received. That would have allowed district court judges, who are far better than any president could be at making sentencing decisions, to resentence each offender.  Finally, he should have reformed the clear structural defect in the federal clemency process.  The Department of Justice controls the clemency application process even though, as the agency that prosecuted every clemency applicant, the department suffers from an actual or apparent conflict of interest.  In sum, Obama could have done far more by doing far less or by doing something far different than by acting as the Resentencer-in-Chief.

March 11, 2018 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Saturday, March 10, 2018

Prez Trump issues his second pardon; Kristian Saucier, whom prosecutors sought imprisoned for six years, served year for taking photos in classified sub room

I am pleased to report that President Donald Trump is continuing to make use of his clemency power during the first part of his first term.  A relatively high-profile case is yet again the subject of his activity, as reported in this Politico article headlined "Trump pardons sailor in submarine photos case." Here are the details:

President Donald Trump has pardoned a Navy submariner sentenced to prison for taking photos inside the classified engine room of a nuclear submarine, the White House announced on Friday.

Petty Officer First Class Kristian Saucier pleaded guilty in May 2016 to two felony counts, one for unlawful retention of national defense information and another for obstruction of justice, for taking cellphone pictures inside the Navy vessel and later destroying his own equipment upon learning he was under investigation.

“The president has pardoned Kristian Saucier, a Navy submariner,” White House press secretary Sarah Huckabee Sanders announced at a briefing with reporters. The Justice Department later confirmed the move. Sanders added that “the president is appreciative of Mr. Saucier's service to the country.”

The move marked just the second pardon Trump has granted since entering office, with the first extended in August to Joe Arpaio, the former Arizona sheriff who was convicted of criminal contempt of court in a case involving his tactics targeting undocumented immigrants.

Saucier was sentenced to 12 months in prison for mishandling classified information. Critics have cited the episode to allege a double standard in how low- and high-ranking U.S. officials handle sensitive material. The president brought the case back into public view in January, when he compared the treatment of Saucier with that of his former electoral opponent Hillary Clinton and her top campaign officials....

Prosecutors had sought a much steeper sentence for the former Navy machinist, calling for him to face six years in prison, but the judge gave a more lenient sentence, a point the White House highlighted in announcing his pardon. “The sentencing judge found that Mr. Saucier’s offense stands in contrast to his commendable military service,” Sanders noted.

Though I would like to see Prez Trump issuing many more clemency grants, particularly in lower-profile cases, I remain quite pleased that Prez Trump is continued to use his clemency powers more during his first three years in office than did the last three presidents combined.

Related post on prior clemency grants:

March 10, 2018 in Clemency and Pardons, Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (7)

Friday, February 23, 2018

Only one of three planned executions completed: Florida carries out death sentence, Texas Gov commutes at last minute, and Alabama misses deadline

As noted in this prior post, yesterday there were executions scheduled in Alabama, Florida and Texas. If all three had been carried out, it would have marked first time in eight years that three killers were all executed on the same day. But, and the press stories below detail, only Florida completed its planned execution:

Texas: "Gov. Greg Abbott commutes death sentence minutes before Bart Whitaker's scheduled execution":

Kent Whitaker was praying when he got the news: The governor had spared his son. In an unexpected last-minute decision, Gov. Greg Abbott granted clemency to the Sugar Land man slated for execution Thursday, just minutes before he was to be strapped to the gurney in Huntsville.

Thomas "Bart" Whitaker was sent to death row for targeting his own family in a 2003 murder-for-hire plot aimed at landing a hefty $1 million inheritance.

Florida: "Eric Branch's last words target governor, AG: 'Let them come down here and do it'":

Convicted murderer Eric Branch used his final moments before he was executed to make a political statement, falling into unconsciousness as he shouted "murderers" between blood-curdling screams on the execution gurney.

The state of Florida carried out the execution of Branch, 47, on Thursday evening at the Florida State Prison in Raiford — roughly 335 miles from where he abducted, sexually assaulted and killed University of West Florida student Susan Morris as she was leaving a night class in January 1993.

Branch, who was on death row for nearly 25 years, was pronounced dead of a lethal injection at 6:05 p.m. Central Standard Time.

Alabama: "Execution of Alabama inmate Doyle Lee Hamm called off"

Doyle Lee Hamm survived his date with the executioner Thursday, as Alabama was unable to begin the procedure before the death warrant expired at midnight.

It was after 11:30 p.m. when word came that the execution had been called off. Alabama Department of Corrections Commissioner Jeff Dunn said medical personnel had advised officials that there wasn't enough time to ensure that the execution could be conducted in a humane manner. However, Dunn declined to detail the exact medical factors behind the decision, and said he didn't want to characterize them as a problem.

Hamm, 61, was convicted of killing Cullman hotel clerk Patrick Cunningham in January 1987. Recent appeals in his case involved the question of whether cancer had left him healthy enough to be executed without excessive suffering. His advocates had argued that his veins were in such bad shape that it wouldn't be possible for the state to carry out its lethal injection protocol cleanly.

One of Hamm's attorneys, Bernard Harcourt, was among those waiting outside death row at Holman Correctional Facility near Atmore. Afterward, via Twitter, he speculated that "they probably couldn't find a vein and had been poking him for over 2 1/2 hours."

Also worth noting is that the Alabama inmate's appeals to the Supreme Court generated some comments from some Justices detailed in this order: Justice Breyer issued a short statement respecting the denial of a stay which spoke to the defendant's lengthy time on death row; Justice Ginsburg issued a dissent, which Justice Sotomayor joined, expressing concerns "about how Hamm’s execution would be carried out."  Since the execution was not carried out, it will be interesting to see now if and when courts get asked again to scrutinize Alabama's execution plans and protocols.

February 23, 2018 in Baze and Glossip lethal injection cases, Clemency and Pardons, Death Penalty Reforms, Sentences Reconsidered | Permalink | Comments (2)

Thursday, February 22, 2018

How many of the executions scheduled today in Alabama, Florida and Texas will be completed?

The question in the title of this post is prompted by this Reuters article which begins, "Alabama, Florida and Texas plan to execute inmates on Thursday and if carried out, it would be the first time in eight years that three people on death row have been executed on the same day."  Here is more about what could be a busy day in both courts and execution chambers:

But in each state there are reasons why the executions could be halted, including an unprecedented clemency recommendation in Texas, where all three of this year’s U.S. executions have been carried out.

In Florida, questions were raised about holding an execution based on a majority, not unanimous, jury decision. In Alabama, lawyers have said the death row inmate is too ill to be executed.

Alabama plans to execute Doyle Hamm, 61, at 6 p.m. local time for the 1987 murder of motel clerk Patrick Cunningham.

Hamm’s lawyers have said he has terminal cancer, adding years of intravenous drug use, hepatitis C, and untreated lymphoma have made his veins unstable for a lethal injection. However, a court-appointed doctor examined Hamm on Feb. 15 and found he had “numerous accessible and usable veins in both his upper and lower extremities,” according to court filings.

Texas plans to execute Thomas Whitaker, 38, for masterminding a 2003 plot against his family in which his mother Tricia, 51, and brother Kevin, 19, were killed.  His father Kent Whitaker was shot in the chest and survived.  The father, 69, a devout Christian and retired executive, has said he forgives his son and his family does not want him to be executed. In a clemency petition, he said if the death penalty is implemented, it would make his pain worse.

On Tuesday, the Texas paroles board in a unanimous decision recommended clemency, largely based on the request of a victim’s forgiving family.  Republican Governor Greg Abbott has final say, and has not yet announced if he plans to halt the execution.

Florida plans to execute Eric Branch, 47, for the 1993 murder of University of West Florida student Susan Morris. Lawyers for Branch appealed to the U.S. Supreme Court on arguments including that the court has previously blocked a Florida provision that allows executions for a non-unanimous jury decision and it should do so again in this case.

February 22, 2018 in Baze and Glossip lethal injection cases, Clemency and Pardons, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9)

Wednesday, February 21, 2018

Texas board recommends clemency for condemned killer for first time in over a decade

As reported in this local article, headlined "In rare move, Texas parole board recommends clemency for death row inmate Thomas Whitaker," the state which executes the most murderers in modern times is the locale for a rare clemency recommendation for the next scheduled to die. Here are the details:

In an exceedingly rare move, the Texas Board of Pardons and Paroles voted Tuesday to recommend a lesser sentence for a death row inmate facing execution.

The board voted unanimously in favor of clemency for Thomas Bartlett Whitaker, a man who is set to die on Thursday evening. The decision now falls on Gov. Greg Abbott, a Republican who can approve or deny the recommendation to change Whitaker’s death sentence to life in prison. The last time the board recommended clemency for a death row inmate was in 2007.

Abbott said at a political rally Tuesday night that he and his staff would base his decision on the facts, circumstances and law. “Any time anybody's life is at stake, that's a very serious matter,” Abbott said. “And it deserves very serious consideration on my part.”

Whitaker, 38, was convicted in the 2003 murders of his mother and 19-year-old brother as part of a plot to get inheritance money. His father, Kent Whitaker, was also shot in the attack but survived and has consistently begged for a life sentence for his son.

“Victims’ rights should mean something in this state, even when the victim is asking for mercy and not vengeance,” Kent Whitaker said at a press conference at the Texas Capitol just before the board’s vote came in.

Keith Hampton, Thomas Whitaker's lawyer, choked up when announcing to the family and the press that the board had recommended clemency. Kent Whitaker's wife cried out and grabbed Whitaker, who let out a sob and held his head in his hands. “Well, we’re going to the governor’s office right now,” Hampton said.

In December 2003, Thomas Whitaker, then 23, came home from dinner with his family knowing that his roommate Chris Brashear was waiting there to kill them, according to court documents. When they entered the house, Brashear shot and wounded Thomas’ father and killed his mother, Patricia, and 19-year-old brother, Kevin. Suspicion turned toward Whitaker in the murder investigation the next June, and he fled to Mexico, according to court documents. He was arrested more than a year later, and his father begged the Fort Bend County District Attorney’s Office not to seek the death penalty.

Whitaker offered to plead guilty to two life sentences, but the prosecution rejected the offer, saying Whitaker wasn’t remorseful and was being manipulative, court records show. They sought the death penalty, and in March 2007, they got it. Brashear was given a life sentence.

Fred Felcman, the original prosecutor in the case, said Tuesday that the parole board made its decision only because of the father’s forgiveness and seemingly didn't take into account the large number of other people affected by the murders, including the victims, the county, the jury and Patricia’s family. He said the board also disregarded testimony from psychiatrists and their own investigators who said Whitaker was manipulative. “I’m trying to figure out why [the board members] think they should commute this, and why the governor should even give it a second thought,” said Felcman, who is first assistant district attorney at Fort Bend County....

Attached to Whitaker’s petition to the board were letters from former prison guards and at least seven death row inmates who thought the condemned man deserved the lesser sentence of life in prison. Kent Whitaker said Tuesday that the guards said he was never a threat, and one said he’d be an asset in general population.

Death row inmates attested to Whitaker’s helpful presence in a prison environment, saying he encouraged them to better themselves, helped those with mental illness and could easily calm inmates down. William Speer, who has been on death row since 2001 for a prison murder, wrote in 2011 that the prison system needs more men like Whitaker to keep other inmates calm. “Of all the people I have met over the years Thomas Whitaker is the person I believe deserves clemency the most,” Speer wrote, according to the petition. “He is one of the best liked inmates on this farm by the guards and other inmates, and he has worked the hardest to rehabilitate himself.”...

Despite the board’s surprise recommendation on Tuesday afternoon, Whitaker was still scheduled for execution on Thursday after 6 p.m. If Abbott rejects the recommendation and the Supreme Court justices dismiss his appeals, he will become the fourth man executed in Texas — and the nation — in 2018. There are three other executions scheduled in Texas through May.

Prior related post:

February 21, 2018 in Clemency and Pardons, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Tuesday, February 20, 2018

Notable account of a notable juror whose note had a notable impact on a scheduled Ohio execution

Prior posts here and here discussed a letter from a former juror in an Ohio capital case that prompted Governor John Kasich to grant a reprieve based on mitigating evidence that the juror said would have changed his vote at the penalty phase.  This story is told in full form in this new local article, headlined "This man stopped a Cincinnati killer's execution. Here's why he did it." Here are excerpts:

Ross Geiger isn’t some kind of activist when it comes to the death penalty. He’s never organized a candlelight vigil or stood outside a prison protesting an execution. He wants to be clear about that. “Everybody thinks I’m a crusader or something,” Geiger said. “They think I have no sympathy for the victims. That’s just not true.”

Yet Geiger did something last week that anti-death penalty activists rarely do. He stopped an execution. Earlier this year, the Loveland man wrote a letter to Gov. John Kasich because he was worried about the case of Raymond Tibbetts, a Cincinnati man who beat to death his wife, Sue Crawford, and stabbed to death his landlord, Fred Hicks, on the same day in 1997.

Geiger’s letter carried weight with Kasich, who delayed Tibbetts’ Feb. 13 execution until at least October, because Geiger served on the jury that convicted Tibbetts and recommended his death sentence....

Records related to Tibbetts’ clemency case with the parole board showed far more detail about Tibbetts’ background than was presented at the trial, Geiger said. He’d been abused as a child, put into foster care as a toddler and endured years of abuse and neglect, along with his siblings, the records showed.

At the trial, the jurors heard from a psychiatrist who’d examined Tibbetts, but no other witnesses. No family members. No other mental health professionals. None of the people Geiger found in the clemency paperwork. “I was astounded by the amount of material that was available (for the trial) that I never saw,” Geiger said. “There was an obvious breakdown in the system.”

The more he thought about it, Geiger said, the more upset he got. “The state had a duty to give me access to the information I needed to make the best decision I could,” he said. “It’s like if you have to take a big test, but you were deprived of the textbook.”

Geiger thought a long time about what he should do. He’s not a rabble rouser by nature. He’s raised two kids in suburban Cincinnati and works in the financial world. He considers himself a libertarian and said he was a rock-solid Republican at the time of the trial. He said he’s not opposed to the death penalty and he doesn’t believe he’s second-guessing the decision he made as Juror No. 2 in Tibbetts’ case. Given what he knew at the time, he said, the decision he made was correct.

But now he believes there is more he should have known. “I don’t really view it as changing my mind because the information wasn’t available at the time I was asked to make the decision,” Geiger said. “Based on the information available now, I don’t think justice was served in the case of Tibbetts.”

The appeals courts did not agree. A divided U.S. 6th Circuit panel ruled against Tibbetts, concluding any evidence the jurors didn’t hear would have been insufficient to change their minds about Tibbetts’ “moral culpability for such a brutal and horrific crime.” Prosecutors also have dismissed Geiger’s concerns. They say trials can’t be retried over and over every time a juror has second thoughts about a decision.

Kasich isn’t necessarily convinced, either. His reprieve gives the parole board time to reconsider clemency, but guarantees nothing. The execution still is set for Oct. 17.

Asked how he’d feel if Tibbetts died on that day, Geiger struggled to answer. He said he believes he did his job 20 years ago at the trial, and he believes he’s doing the right thing now by speaking up. “My motivation in writing that letter wasn’t to save an individual’s life,” Geiger said. “My prime motivation was to point out the errors.

“If we are going to trust the state to be our agents to execute people, then the state has a duty to get it right.”

Prior related posts:

February 20, 2018 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Monday, February 19, 2018

"Conservatives urge Trump to grant pardons in Russia probe"

The title of this post is the headline of this lengthy new Politico article.  Here are excerpts:

After months of criticizing special counsel Robert Mueller’s Russia probe, President Donald Trump’s supporters are issuing increasingly bold calls for presidential pardons to limit the investigation’s impact.  “I think he should be pardoning anybody who’s been indicted and make it clear that anybody else who gets indicted would be pardoned immediately,” said Frederick Fleitz, a former CIA analyst and senior vice president at the conservative Center for Security Policy.

The pleas for mercy mainly extend to the four former Trump aides who have already been swept up in the Russia probe: former campaign manager Paul Manafort, former deputy campaign manager Rick Gates, former national security adviser Michael Flynn and former campaign foreign policy adviser George Papadopoulos.  But they don’t stop there.

“It’s kind of cruel what’s going on right now and the president should put these defendants out of their misery,” said Larry Klayman, a conservative legal activist. “I think he should pardon everybody — and pardon himself.”

Klayman and Fleitz spoke before Mueller indicted thirteen Russian nationals on Friday for staging an elaborate 2016 election interference operation in the United States. Democratic leaders said the hard evidence of Russian meddling underscores the importance of letting Mueller’s investigation run its course....

Trump’s lawyers and aides insist it’s premature to discuss even the possibility of pardons. “There have been no pardon discussions at the White House,” Ty Cobb, the White House attorney who leads the president’s official response to the Russia investigation, told POLITICO on Friday just hours before Mueller’s latest indictment was released.

After the Washington Post reported in July that Trump had tasked his aides with researching his pardon powers, Trump dismissed the story — while also making clear his view of the law. “While all agree the U. S. President has the complete power to pardon, why think of that when only crime so far is LEAKS against us. FAKE NEWS,” Trump tweeted....

Trump has issued one pardon since taking office, to the controversial Arizona Sheriff Joe Arpaio, who was facing criminal contempt of court charges for defying a court order to stop profiling Latinos.  That August action, in the face of strong political opposition, makes some conservatives think that Trump would be willing to defy his critics again. “He did it for Sheriff Joe, so I’m thinking he would do it for other circumstances as well,” [Tom] Fitton said.

There has been little sign of Congressional Republican support for the idea of pardons. In the days after Flynn pleaded guilty, South Carolina Senators Lindsey Graham and Tim Scott both urged Trump not to pardon Flynn. Scott said it is important to have accountability and “a process that is clear and transparent.”

Pardons would also come at a high political cost, former George W. Bush White House spokesman Ari Fleischer said. “It’d just raise even more questions about Donald Trump if he pardons those closest to him because people will think he’s trying to protect himself.”

“You should let justice run its course,” he added.

Even some conservatives who support pardons in principle are wary of the severe political backlash they are certain to trigger.  Mike Cernovich, a conservative activist who has been affiliated with the alt-right but rejects that label, said he believes the moment for pardons has passed and that Trump needs to wait until after the November mid-term elections.  “If the Democrats take over, pardon everyone,” Cernovich said.  “They’re coming for you anyway.  They have their nuke with impeachment. You have your nuke with pardons.  And then settle in for an interesting two years.”

February 19, 2018 in Clemency and Pardons, Who Sentences? | Permalink | Comments (7)

Wednesday, February 14, 2018

Notable advocate for clemency on behalf of next condemned to die in Texas

According to this Death Penalty Information Center page, Alabama, Florida and Texas all have executions scheduled for February 22.  This new Los Angeles Times story, headlined "Texas father seeks clemency for son who tried to kill him," discusses the notable person making a notable pitch for clemency for the killer scheduled to be executed.  Here are excerpts:

In a week, Thomas "Bart" Whitaker, 38, is scheduled to be executed for plotting a 2003 attack that left his mother and brother dead and almost killed his father. That father, Kent Whitaker, is doing everything he can to halt the execution. Inspired by his Christian faith and his son's repentance, the 69-year-old retired construction firm comptroller hopes to have his son's sentence commuted.  "The death penalty in this case is the wrong punishment," he said.

Kent Whitaker forgives his son. He paid for lawyers to fight the death sentence at trial in 2007, and got down on his knees and begged prosecutors to seek a life sentence.

Texas is known for capital punishment, executing more inmates than any other state in the country — three this year, seven last year. But Kent Whitaker notes that it is also a victims' rights state, meaning his wishes should be taken into account. "Juries routinely defer to victims in cases to spare the life of a killer," he said.

Thomas Whitaker's last chance is a clemency petition filed with the seven-member Texas Board of Pardons and Paroles, which makes a recommendation to the governor by majority vote.  Clemency is rare.  One of Whitaker's attorneys won it for another convicted murderer, Kenneth Foster, hours before he was scheduled to die in 2007, based on arguments drawn from Scripture.  Parole board members in Texas are bound by their consciences, not the law, and some told the lawyer afterward that his biblical arguments had influenced their votes.

So in Thomas Whitaker's clemency petition, his attorney cited the Old Testament story of Cain, who after murdering his brother Abel was marked — but not killed — by God. He also cited the New Testament parable of the prodigal son, forgiven and accepted by his father after he strayed because he repented. "You have a collision between two interests. Every one of those board members is a death penalty supporter. A nd every one of them is there to protect victims' interests. They have to decide if it is more important to execute Thomas Whitaker or spare Kent Whitaker," attorney Keith Hampton said.

Board members don't confer about clemency: They send their votes to the state individually. Condemned inmates and their families can request to meet a member of the board, but it's not guaranteed.   Last week, board member James LaFavers, a former Amarillo detective, met Whitaker's son on death row. They spent two hours talking. On Tuesday, the chairman of the board, former Lubbock County Sheriff David Gutierrez, met with Kent Whitaker, his new wife and brother in Austin for half an hour.  The chairman didn't ask any questions, just listened as Kent Whitaker made his case for clemency. He said his son had been a model prisoner for 11 years, that the family had asked prosecutors not to seek the death penalty at trial and "it ought to mean something when a victim asks for mercy."

Thomas Whitaker has confessed to plotting the murder of his family. His father believes he has reformed behind bars. Prosecutors disagree.

Whitaker was a troubled teenager.  After he was arrested for breaking into his high school with friends to steal computers, his parents sent him to a private Christian school, then Baylor University and Sam Houston State University. But he stopped attending.  The night of the attack, the family went out to dinner to celebrate his graduation, unaware that it was a lie — he had missed too many classes....

As they entered their house in the Houston suburb, an accomplice shot them, fatally wounding his mother, Tricia, 51, and 19-year-old brother, Kevin. A bullet passed just inches from Kent Whitaker's heart. Thomas Whitaker was shot in the arm to make it appear he too was a victim.  He then called 911.  It would be years before he admitted his role in the crime. A thousand people attended the funeral at the largest church in the family's conservative suburb, Sugar Land — including Thomas Whitaker. "He sat there smiling, acting as victim, knowing that he killed them," prosecutor Fred Felcman said.  Shortly before Whitaker was to be charged in 2004, he fled to Mexico, where he was caught a year later.

Felcman argued at trial that Whitaker planned to kill his family for a million-dollar inheritance. He had two accomplices — the gunman, who pleaded guilty in exchange for a life sentence, and a getaway driver, who got 15 years in prison. Although Whitaker was not the triggerman, Felcman argued, he "was the ringleader. He literally led his family back to be assassinated."

Felcman said Kent Whitaker has been used by his son. "Most people have a conscience so they don't try to manipulate people outright. He does," Felcman said.  The prosecutor has tried 13 capital cases. About half resulted in death sentences. "There's certain crimes you have to forfeit your life for," he said, in part because it's the will of the people. "As soon as Bart Whitaker gets executed I will feel safer, and there are other people who feel that way, too."...

If the board doesn't grant clemency, Whitaker plans to attend his son's execution. When his son looks out of the glassed-in chamber, he wants him to see a caring face among the crowd. Kent Whitaker already has nightmares about what he will witness.   "I hope the board will focus on how this execution will affect those of us who are living," he said. "We've all worked hard to get past our grief, and we're all going to be thrown back into that, realizing that Bart's gone too, that he was the last member of my immediate family. It looks like I'm going to be victimized all over again. What kind of justice is that?"

February 14, 2018 in Clemency and Pardons, Death Penalty Reforms, Offense Characteristics, Purposes of Punishment and Sentencing, Sentences Reconsidered, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (2)

Thursday, February 08, 2018

Ohio Gov Kasich issues reprieve days before scheduled execution so clemency process can consider new juror letter

In this post last week, I asked via the post title "Are Governors considering capital clemency inclined to give great weight to capital jurors calling for a commutation?".  This question was prompted by the release of a letter from a a former juror in an Ohio capital case urging Governor John Kasich to grant a reprieve based on mitigating evidence that he said he had neverand that would have changed his vote at the penalty phase.

Today I just learned of a partial answer to my question in this new press report headlined "Kasich issues temporary reprieve for condemed killer." Here are the interesting details:

Gov. John Kasich on Thursday issued a temporary reprieve for Raymond Tibbetts, a Cincinnati man who was scheduled to be executed Tuesday.

“Kasich issued the reprieve in light of a letter he received on January 30 from a juror on Tibbetts’ case,” a statement from the governor’s office said. “Because the Ohio Parole Board issued its report and recommendation without considering the letter, Kasich has asked the board to convene a hearing for the purpose of considering the letter and the issue it raises.”

In his letter, the juror said that he would not have voted 20 years ago to execute Tibbetts, who killed his wife and an elderly man, if he’d known the extent to which Tibbetts was abused as a child.

Kasich reset the execution for Oct. 17.

UPDATE: A helpful reader showed me this link with Gov Kasich's full statement, as well as this local article which includes the prosecutor's reaction to this reprieve:

Hamilton County Prosecutor Joe Deters, whose office sought a death sentence for Tibbetts, said he understands the governor's decision to delay, but he believes the original sentence should stand.

"It's pretty serious business when you're going to execute someone," Deters said. "It's frustrating for a lot of people, but the reality is this: If the governor has questions, it's his job to stop it.

"Would I have done something different? Maybe. But I don't know what he knows, and he's the governor."

February 8, 2018 in Clemency and Pardons, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Friday, February 02, 2018

Are Governors considering capital clemency inclined to give great weight to capital jurors calling for a commutation?

In my sentencing class, we have been talking about all the different players in the sentencing drama, and those stories often come into especially sharp relief as we move into our capital punishment unit.  And, coincidentally, after an execution in Texas last night, Ohio has the next scheduled execution in the US so that my students can have a front-row seat concerning all the players that become involved in the sentencing drama as a death sentence gets ever closer to being carried out.

Against that backdrop, the question in the title of this post arises as a result of the news, reported at the end of this article: Ohio "Governor Kasich has faced calls in recent weeks to spare Tibbetts because attorneys say he suffered from opioid addiction.  On Thursday, a former juror in Tibbetts’ capital murder trial wrote a letter urging Kasich to grant him a reprieve.  The juror said he has since seen mitigating evidence that he had never seen at trial and he would not have recommended the death penalty if he heard about Tibbetts’ history of abuse and addiction."

The full text of the intricate four-page letter from juror Ross Allen Geiger to Ohio Gov Kasich is available at this link.  It makes for an interesting read, and here an excerpt:

All of these things lead me to one conclusion and that is that the system was and seems to be today very flawed in this case.  The State of Ohio (through Hamilton County) called on me to fulfill a civic duty one that included an unenviable task of possibly recommending death for another man.  I fulfilled this duty faithfully. Governor, if we are going to have a legal process that can send criminals to death that includes a special phase for mitigation shouldn’t we get it right?  Shouldn’t the officers of the court (primarily the defense attorneys) treat the life or death phase with great attention to detail and the respect it deserves?

In conclusion, Tibbets is guilty and has forfeited forever his right to freedom.  If the death penalty is reserved for the “worst of the worst”, that is murderers that truly have no potential for redemption, then I ask you to grant mercy to Tibbets.  Based on what I know today I would not have recommended the death penalty....

February 2, 2018 in Clemency and Pardons, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5)

US District Judge finds unconstitutional Florida's process to restore voting rights to disenfranchised felons

As reported in this local press article, "Florida routinely violates the constitutional rights of its citizens by permanently revoking the "fundamental right" to vote for anyone convicted of a felony, a federal judge ruled Thursday." Here is more about this notable ruling:

U.S. District Judge Mark Walker said the Florida "scheme" unfairly relies on the personal support of the governor for citizens to regain the right to vote. In a strongly-worded ruling, he called the state's defense of voter disenfranchisement "nonsensical," a withering criticism of Gov. Rick Scott, the lead defendant in the case.

"Florida strips the right to vote from every man and woman who commits a felony," Walker wrote. "To vote again, disenfranchised citizens must kowtow before a panel of high-level government officials over which Florida's governor has absolute veto authority. No standards guide the panel. Its members alone must be satisfied that these citizens deserve restoration … The question now is whether such a system passes constitutional muster. It does not."

Walker wrote: "If any one of these citizens wishes to earn back their fundamental right to vote, they must plod through a gauntlet of constitutionally infirm hurdles. No more. When the risk of state-sanctioned viewpoint discrimination skulks near the franchise, it is the province and duty of this Court to excise such potential bias from infecting the clemency process."

The judge condemned a system that he said gives "unfettered discretion" to four partisan politicians, and cited as proof a comment Scott made at one hearing when he said: "We can do whatever we want."

Scott's office issued a statement late Thursday, hinting at an appeal. "The discretion of the clemency board over the restoration of felons' rights in Florida has been in place for decades and overseen by multiple governors," said a statement attributed to Scott's communications director, John Tupps. "The process is outlined in Florida's Constitution, and today's ruling departs from precedent set by the United States Supreme Court."...

Scott was the principal architect of the current system that requires all felons to wait at least five years after they complete their sentences, serve probation and pay all restitution, to apply for right to vote and other civil rights. Scott and the Cabinet, meeting as a clemency board, consider cases four times a year, and usually fewer than 100 cases each time. It can take a decade or longer for a case to be heard, and at present the state has a backlog of more than 10,000 cases.

Scott imposed the restrictions in 2011, soon after he was elected, with the support of three fellow Republicans who serve on the Cabinet, including Agriculture Commissioner Adam Putnam, now a leading candidate for governor. Scott's actions in 2011 reversed a policy under which many felons, not including murderers and sex offenders, had their rights restored without application process and hearings. That streamlined process was instituted in 2007 by former Gov. Charlie Crist, then a Republican and now a Democratic member of Congress. "We've known this policy was unjust, and today a federal judge confirmed it's also a violation of constitutional rights," Crist wrote on Facebook....

Walker's decision came nine days after the state approved a ballot measure that, if passed in November, would automatically restore the voting rights of about 1.2 million felons, not including convicted murderers and sex offenders. That proposal will appear as Amendment 4 on the Nov. 6 ballot in Florida.

A leader of the initiative is Desmond Meade of Orlando, a law school graduate of Florida International University and a convicted felon waiting to have his rights restored. Meade said the judge's decision validated the work of more than a million Florida voters who signed petitions that helped get the measure on the ballot. "The system is broken, and now we know not only is it broken, but the courts are saying it's unconstitutional," Meade said.

Walker, who was appointed by President Barack Obama, ruled that Florida's lifetime ban on the right to vote violates the First and Fourteenth amendments to the U.S. Constitution, which are the guarantees of freedom of expression, due process and equal protection under law. Throughout his 43-page ruling, Walker cited the arbitrariness of Florida's system. Felons routinely have been denied their voting rights because they have received speeding tickets or failed to pay child support.

"So the state then requires the former felon to conduct and comport herself to the satisfaction of the board's subjective — and frankly, mythical — standards," Walker wrote. "Courts view unfettered governmental discretion over protected constitutional rights with profound suspicion."...

The judge gave both sides in the case until Feb. 12 to file briefings on how to permanently remedy the constitutional deficiencies in Florida's system. Scott and Cabinet members are scheduled to hear the next round of clemency petitions in March.

District Judge Walker's 43-page opinion is available in full at this link.  Because I am a fan of expanding the franchise as much as possible, I am always pleased to see a ruling that has the potential effect of broadening voting rights and remedies.  But because Florida's restoration procedures are styled as a form of clemency and court have historically be chary about finding constitutional problems with or limits on clemency powers, I am unsure if this ruling will withstand likely appeals.

February 2, 2018 in Clemency and Pardons, Collateral consequences, Sentences Reconsidered, Who Sentences? | Permalink | Comments (19)

Monday, December 25, 2017

Christmas season clemency headlines

President Trump only granted a single commutation this holiday season (details here), but the stories linked below document that a good number of state offenders in a good number of states were able to enjoy an extra merry Christmas thanks to Governors exercising their clemency powers:

Though I suspect this is not a comprehensive accounting of recent clemency actions by Governors, I still cannot help but notice that four of five Governors making holiday headlines with their clemency actions are Republicans.

December 25, 2017 in Clemency and Pardons, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Friday, December 22, 2017

Reviewing the "hope and skepticism" engendered by Prez Trump's Rubashkin commutation

As reported in this prior post, Prez Trump made some minor modern clemency history by commuting the 27-year prison sentence of Sholom Rubashkin. This NBC News piece, headlined "Trump’s first commutation met with hope and skepticism," provides some context and commentary on this decision:

After President Donald Trump commuted the 27-year sentence of Sholom Rubashkin, a former kosher meatpacking plant CEO convicted of financial fraud, prison reform advocates on Thursday immediately perked up.

Trump, they said, did something not even President Barack Obama — a strong proponent for reform — had done: commuted a sentence during his first year in office. It wasn't until 2011 when Obama — three years into his first term — commuted the sentence of a federal prisoner, although he had pardoned nine people a year before.

"I'm extremely excited about this and am very optimistic that Trump is going to surprise people," said Amy Povah, the founder of CAN-DO, a nonprofit that advocates clemency for federal prisoners convicted of drug crimes.  "I communicate with a lot of prisoners, and I guarantee you they woke up to renewed hope."

Still, the number of commutations that could roll out under the Trump administration remains unknown.  With so much at stake, some fighting for criminal justice reform are asking whether the Rubashkin case is a precursor of things to come — or just a rare one-off.  Neither the White House nor the Justice Department immediately responded to requests for comment Thursday....

Rubashkin had the support of both Democrats and Republicans in Washington for his commutation.  Notably, a push for the Obama administration to take action fell on deaf ears. That was even as Obama moved swiftly later in his final term to begin commuting sentences.  Obama granted clemency to 1,715 federal prisoners — more than any other U.S. president in history. The vast majority had been sentenced under mandatory minimum laws that were enacted in the 1980s and ’90s to address the scourge of drugs....

Kevin Ring, the president of Families Against Mandatory Minimums, said he's concerned that the bar might be set too high for inmates seeking commutations — given that Rubashkin's case was high-profile enough to attract the interest of lawmakers, including House Minority Leader Nancy Pelosi, D-Calif., and Sen. Orrin Hatch, R-Utah.  He also questioned if certain types of prisoners — those not associated with white-collar crimes like Rubashkin — would benefit from clemency.  "Most are just families who don't wield any political influence," Ring said.....

In recent days, House Speaker Paul Ryan, R-Wis., has suggested Congress could tackle criminal justice reform in the next year.  That's important to Holly Harris, the executive director of the U.S. Justice Action Network, a lobbying group with advocates from the left and right.

She said a bipartisan bill in the House, the Prison Reform and Redemption Act, which would allow certain prisoners to serve the end of their sentences in halfway homes or home confinement, could be a catalyst in overhauling the system.  "Voters are very well educated and realize that one-size sentencing doesn't work," Harris said.  "The president of the United States has sent a really positive signal" with the release of Rubashkin.

While Trump ran as the "law and order" candidate, his lack of specifics on the criminal justice issue, apart from how it relates to immigration and national security, could end up going beyond what Obama started and result in sweeping change, Povah added.  "We know that he's an outsider, and I don't think he always necessarily cares what's conventional," she said.  "So I kind of hope that that can benefit people."

Recent related post:

December 22, 2017 in Clemency and Pardons, Criminal justice in the Trump Administration, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Wednesday, December 20, 2017

"President Trump Commutes Sentence of Sholom Rubashkin"!?!?!

The title of this post is the headline of this press release from the White House this evening.  Here are the details:

Today, President Donald J. Trump commuted the prison sentence of Sholom Rubashkin, an action encouraged by bipartisan leaders from across the political spectrum, from Nancy Pelosi to Orrin Hatch.

Mr. Rubashkin is a 57-year-old father of 10 children.  He previously ran the Iowa headquarters of a family business that was the country’s largest kosher meat-processing company.  In 2009, he was convicted of bank fraud and sentenced thereafter to 27 years in prison.  Mr. Rubashkin has now served more than 8 years of that sentence, which many have called excessive in light of its disparity with sentences imposed for similar crimes.

This action is not a Presidential pardon.  It does not vacate Mr. Rubashkin’s conviction, and it leaves in place a term of supervised release and a substantial restitution obligation, which were also part of Mr. Rubashkin’s sentence.

The President’s review of Mr. Rubashkin’s case and commutation decision were based on expressions of support from Members of Congress and a broad cross-section of the legal community. A bipartisan group of more than 100 former high-ranking and distinguished Department of Justice (DOJ) officials, prosecutors, judges, and legal scholars have expressed concerns about the evidentiary proceedings in Mr. Rubashkin’s case and the severity of his sentence.  Additionally, more than 30 current Members of Congress have written letters expressing support for review of Mr. Rubashkin’s case.

Because I have some personal history working on this case, I am not inclined to comment at great length beyond wanting to here praise President Trump for bringing some (non-political?) attention to his historic clemency powers through this grant. I also will link to some prior posts about this long-controversial case.

Some of many prior posts on the Rubashkin case:

December 20, 2017 in Clemency and Pardons, Criminal justice in the Trump Administration, Sentences Reconsidered, Who Sentences? | Permalink | Comments (18)

Monday, November 20, 2017

Hasn't Prez Trump has already pardoned a turkey before this week's traditional ceremony?

69684e46-ba40-4d95-b4e1-301af475e2e7The question in the title of this post was prompted, with a tongue in check, by an email I received this evening with the subject-line "Vote: Which Turkey Should President Trump Pardon?."  The email came with the picture reprinted here, as well as the following text and link:

Tomorrow, President Donald J. Trump will pardon the National Thanksgiving Turkey in a ceremony in the Rose Garden. This year, the President will celebrate the 70th anniversary of the National Thanksgiving Turkey presentation, as he reflects on our Nation’s rich Thanksgiving traditions and wishes American families a safe and healthy holiday.  Vote here.

Clicking through to the link brought up pictures of the turkeys named Drumstick and Wishbone, but I kept thinking there should be other voting options.  Prez Trump has, of course, already pardoned one person earlier this year, and there has been plenty of talk about other possible pardons.

Notably, around this time back in 2009, I had a couple of posts lamenting that Prez Obama had failed to use his clemency powers in any way before it became time for him to participate in the traditional turkey pardon spectacle (a few of these posts are linked below).  In fact, as revealed in this DOJ Pardon Attorney statistics page, Prez Obama and Prez Bush and Prez Clinton all started their presidencies with two full years in which they failed to use their historic clemency powers in any way.

But Prez Trump is unlike his predecessors in so many ways, and his use of the pardon power is yet another example.  Specifically, as folks must surely recall, Prez Trump pardoned attorney former Sheriff Joe Arpaio back in August.  It now appears that either Drumstick and Wishbone will be next, and then who knows.

Posts from 2009 about the last, first Prez Thanksgiving pardon event:

November 20, 2017 in Clemency and Pardons, Who Sentences? | Permalink | Comments (1)

Friday, October 20, 2017

Federal judge rules that Prez pardon for Joe Arpaio does not call for vacating his contempt conviction

As reported in this Politico piece, a "federal judge has ruled that President Donald Trump's pardon of former Arizona Sheriff Joe Arpaio ends his prosecution for criminal contempt of court, but does not wipe out the guilty verdict she returned or any other rulings in the case."   The full (and short) ruling is available at this link, and here is more about it:

In her order Thursday, Phoenix-based U.S. District Court Judge Susan Bolton rejected arguments from Arpaio's lawyers and Justice Department prosecutors that the longtime Maricopa County sheriff was entitled to have all rulings in the case vacated, including the guilty verdict the judge delivered in July after a five-day trial.

“The power to pardon is an executive prerogative of mercy, not of judicial recordkeeping," Bolton wrote, quoting an appeals court ruling. "To vacate all rulings in this case would run afoul of this important distinction. The Court found Defendant guilty of criminal contempt. The President issued the pardon. Defendant accepted. The pardon undoubtedly spared Defendant from any punishment that might otherwise have been imposed. It did not, however, 'revise the historical facts' of this case."

Arpaio, known for his tough stance against illegal immigration and for humiliating treatment of prisoners, was charged with contempt for defying another federal judge's order aimed at preventing ethnic profiling of Latinos. Trump pardoned the 85-year-old Arpaio in August while he was awaiting sentencing. The official White House statement stressed Arpaio's history of public service, but the president indicated in earlier remarks that he considered the ex-sheriff's conviction unfair because he was found guilty "for doing his job." Trump also said Arpaio should have received a jury trial, something courts have said is not required if no penalty of more than a year in jail is sought.

Arpaio's attorneys filed an appeal Thursday evening that will take the issue to the San Francisco-based 9th Circuit Court of Appeals. "We will challenge that order," Arpaio lawyer Jack Wilenchik told POLITICO shortly after the judge's ruling was handed down. He said Bolton had jumbled the facts regarding a key precedent: the case of a Tyson Foods lobbyist who was pardoned by President Bill Clinton after being convicted of giving illegal gifts to Agriculture Secretary Mike Espy.

The battle over the guilty verdict and other rulings is largely symbolic since the prosecution, the defense and the judge all appear to agree Arpaio's prosecution is over and he cannot be punished for the conduct that led to the case. Arpaio's attorneys argue it is unfair for the verdict to remain on the book since the pardon effectively wipes out Arpaio's ability to appeal that decision. However, some ethics-in-government groups and Democratic lawmakers urged the judge to reject the pardon altogether as an unconstitutional intrusion by the executive branch into the judiciary branch's ability to ensure that its orders are enforced.

A few prior related posts:

October 20, 2017 in Clemency and Pardons, Collateral consequences, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (6)

Thursday, October 12, 2017

Big new report provides state-by-state guide to expungement and rights restoration

Report-coverAs detailed in this new post over at the Collateral Consequences Resource Center, the folks at CCRC have just published this big new report on state expungement and rights restoration practices under the title "Forgiving and Forgetting in American Justice: A 50-State Guide to Expungement and Restoration of Rights." This CCRC post provides this account of the new report's coverage and goals:

This report catalogues and analyzes the various provisions for relief from the collateral consequences of conviction that are now operating in each state, including judicial record-sealing and certificates of relief, executive pardon, and administrative nondiscrimination statutes. Its goal is to facilitate a national conversation about how those who have a criminal record may best regain their legal rights and social status.

Given the millions of Americans who have a criminal record, and the proliferation of laws and policies excluding them from a wide range of opportunities and benefits, there is a critical need for reliable and accessible relief provisions to maximize the chances that these individuals can live productive and law-abiding lives after completion of their court-imposed sentences. Whatever their form, relief provisions must reckon with the easy availability of criminal records, and the pervasive discrimination that frustrates the rehabilitative goals of the justice system.

It is not the report’s purpose to recommend any specific approach to relief. Rather, our goal is simply to survey the present legal landscape for the benefit of the policy discussions now underway in legislatures across the country. We are mindful of the fact that very little empirical research has been done to measure outcomes of the various schemes described, many of which are still in their infancy. It is therefore hard to say with any degree of certainty which approach works best to reintegrate individuals with a record into their communities. At the same time, we hope that our description of state relief mechanisms will inform the work of lawyers and other advocates currently working to assist affected individuals in dealing with the lingering burdens imposed by an adverse encounter with the justice system.

The title of the report provides a framework for analyzing different types of relief provisions. For most of our history, executive pardon constituted the principal way that persons convicted of a felony could “pay their debt to society” and regain their rights as citizens. This traditional symbol of official forgiveness was considered ineffective by mid-20th century reformers, who sought to shift responsibility for restoration to the courts. The reforms they proposed took two quite different approaches: One authorized judges to limit public access to an individual’s record through expungement or sealing, and the other assigned judges something akin to the executive’s pardoning role, through deferred dispositions and certificates of relief. These two approaches to restoration have existed side by side for more than half a century and have never been fully reconciled.

Today, with a new focus on reentry and rehabilitation, policy-makers are again debating whether it is more effective to forgive a person’s past crimes (through pardon or judicial dispensation) or to forget them (through record-sealing or expungement). Despite technological advances and now-pervasive background-checking practices, many states have continued to endorse the forgetting approach, at least for less serious offenses and records not resulting in conviction. At the same time, national law reform organizations have proposed more transparent judicial forgiving or dispensing mechanisms. While the analytical model of “forgiving v. forgetting” is necessarily imperfect given the wide variety of relief provisions operating in the states, it seems to capture the basic distinction between an approach that would mitigate or avoid the adverse consequences of past crimes, and an approach that would limit access to information about those crimes.

The report organizes relief provisions into six categories: executive pardon, judicial record-closing, deferred adjudication, certificates of relief, fair employment and licensing laws, and restoration of voting rights. The judgments made about the availability of each form of relief, reflected in color-coded maps, are in many cases necessarily subjective, and we have done our best to explain our approach in each case.

More detailed information about different forms of relief is available from the state-by-state summaries that are the heart of the report. Citations to relevant laws and comparisons of the laws of each state are included in the 50-state charts in Appendices A & B. Up-to-date summaries and charts are available from the Restoration of Rights Project, which additionally includes in-depth discussions of the law and policy in its state-by-state “profiles.” This information is updated by the authors on a real-time basis, and we expect to republish this report from time to time when warranted by changes in the law.

October 12, 2017 in Clemency and Pardons, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered | Permalink | Comments (1)

Tuesday, September 12, 2017

Wishing for comparable efforts to contest severity in light of legal attacks on leniency of Arpaio pardon

The title of this post is my reaction to this Politico article headlined "Legal groups move to challenge Trump's Arpaio pardon."  The article reports on just some of the copious efforts to contest Prez Donald Trump's first use of his clemency authority.  Here are the basics:

Two advocacy groups moved on Monday to challenge Donald Trump’s pardon of controversial former Arizona Sheriff Joe Arpaio, alleging that the president's move was unconstitutional because it undermined the power of the federal judiciary.

A public interest law firm, the Roderick and Solange MacArthur Justice Center, sought to file an amicus brief in an Arizona district court, where Arpaio is seeking to vacate a conviction after Trump granted him a pardon last month. The brief was initially turned down by a judge on procedural grounds.  A second group, the Protect Democracy Project, also filed an amicus brief on Monday arguing that the pardon is unconstitutional....

The [MacArthur Justice Center] brief contends that Trump’s pardon of Arpaio violated the Constitution because “it has the purpose and effect of eviscerating the judicial power to enforce constitutional rights.”  The MacArthur Justice Center lawyers argue that, while broad, presidential pardon power can not be used to undermine the judiciary’s ability to enforce the Bill of Rights or the Fourteenth Amendment.  The Arpaio pardon, the lawyers argue, “eviscerates this Court’s enforcement power...by endorsing Arpaio’s refusal to comply with federal court orders.” The brief also takes issue with the breadth of Trump’s pardon, noting that the “text of the pardon is so broad that it purports to allow Arpaio to run for Sheriff again...and escape criminal liability for future contempt.”

Protect Democracy’s lawyers similarly contend that the pardon violates the separation of powers “because it unconstitutionally interferes with the inherent powers of the Judicial Branch.” They also argue that the pardon goes beyond the president’s power — “We are aware of no case in this Court, the Ninth Circuit or the Supreme Court that has upheld a pardon matching the extraordinary circumstances here, where the contempt is used to enforce court orders protecting the rights of private litigants,” the lawyers write — and violates due process.

This extended post by William Jacobson over at Legal insurrection, headlined "DOJ sides with Joe Arpaio, as groups ask Ct to declare Pardon unconstitutional," rightly notes the uphill battle these arguments face and concludes that "it seems highly unlikely that the court would declare that a pardon which on its face is constitutional is not because it involves contempt of court." It also details and links the four briefs sought to be filed against the Apraio pardon:

I full comprehend all the political and legal reasons why the Arpaio pardon bothers folks, and I will never tell thoughtful advocates that they are wasting their time by filing amicus brief even when the law seems against them.  But, as the title of this post indicated, I still rue the reality that partisan politics so readily energizes a bunch of folks spend lots of time and resources attacking one act of remarkable leniency while so many acts of remarkable severity in our criminal justice systems so rarely engenders even a peep from outside advocates.

September 12, 2017 in Celebrity sentencings, Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

Tuesday, September 05, 2017

US Sentencing Commission releases big new analysis of Prez Obama's 2014 Clemency Initiative

I am excited to see that the US Sentencing Commission has this morning released this big new report titled simply "An Analysis of the Implementation of the 2014 Clemency Initiative." I hope to find the time in the coming days to dig into many of the report's particulars; for now, I can just reprint the text of this USSC overview page about the report and add a few comments:

Report Summary

This report analyzes the sentence commutations granted under the 2014 Clemency Initiative.  It provides data concerning the offenders who received a sentence commutation under the initiative and the offenses for which they were incarcerated.  It examines the extent of the sentence reductions resulting from the commutations and the conditions placed on commutations.  It also provides an analysis of the extent to which these offenders appear to have met the announced criteria for the initiative.  Finally, it provides an analysis of the number of offenders incarcerated at the time the initiative was announced who appear to have met the eligibility criteria for the initiative and the number of those offenders who received a sentence commutation.

Key Findings

The key findings of this report are:

  • President Obama made 1,928 grants of clemency during his presidency.  Of them, 1,716 were commutations of sentence, more commutations than any other President has granted.

  • Of the 1,928 grants of clemency that President Obama made, 1,696 were sentence commutations under the 2014 Clemency Initiative.

  • The commutations in sentence granted through the Clemency Initiative resulted in an average sentence reduction of 39.0 percent, or approximately 140 months.

  • Of the 1,696 offenders who received a commuted sentence under the Clemency Initiative, 86 (5.1%) met all the announced Clemency Initiative factors for consideration.

  • On April 24, 2014, there were 1,025 drug trafficking offenders incarcerated in the Federal Bureau of Prisons who appeared to meet all the announced Clemency Initiative factors.  Of them, 54 (5.3%) received clemency from President Obama.

  • By January 19, 2017, there were 2,687 drug trafficking offenders who had been incarcerated in the Federal Bureau of Prisons when the Clemency Initiative was announced and who appeared to meet all the announced Clemency Initiative factors. Of them, 92 (3.4%) received clemency from President Obama.

Back in 2014 when the clemency initiative was announced and certain criteria emphasized (basics here), I had an inkling that the criteria would end up both over-inclusive and under-inclusive. I figured Prez Obama would ultimately not want to grant clemency to everyone who met the criteria announced and also would want to grant clemency to some who did not meet all the criteria. That said, I am still surprised that only 5% of those prisoners who got clemency meet all the criteria and that only about 5% of those prisoners who met all the criteria get clemency. (Based on a quick scan of the USSC report, it seems the vast majority of those who got clemency had some criminal history, which put most of the recipients outside the stated DOJ criteria.)

These additional insights and data points from the USSC report highlight what really seemed to move a clemency applicant toward the front of the line:

A review of the offenders granted clemency under the Initiative shows that at some point the Clemency Initiative was limited to drug trafficking offenders, as all the offenders who received commutations under the Initiative had committed a drug trafficking offense.  This focus was not identified when the Initiative was announced and no formal public announcement was made later that the Initiative had been limited to drug trafficking offenders....

Almost all Clemency Initiative offenders (95.3%) had been convicted of an offense carrying a mandatory minimum penalty.  Most (89.7%) were charged in such a way that the mandatory minimum penalty that applied in the case was ten years or longer.  Indeed, most of the Clemency Initiative offenders (88.2%) received a sentence of 20 years or longer, or life imprisonment.

In the end, then, it appears the 2014 Clemency Initiative turned out to be almost exclusively about identifying and reducing some sentences of some federal drug offenders subject to long mandatory prison terms. Somewhat disappointingly, this USSC report does not appear to speak to whether and how offenders who received clemency were distinct from the general federal prison population in case processing terms. My own rough research suggests that a great disproportion of those who got clemency were subject to extreme mandatory minimums because they opted to put the government to its burden of proof at trial rather than accept a plea deal. Also, if the goal ultimately was to remedy the worst applications of mandatory minimum sentences, it is not surprising that a lot of clemency recipients had some criminal history that would serve to both enhance the applicable mandatory minimum AND make an otherwise lower-level offender not eligible for statutory safety-valve relief from the mandatory term.

September 5, 2017 in Clemency and Pardons, Data on sentencing, Detailed sentencing data, Offender Characteristics, Offense Characteristics, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9)

Sunday, September 03, 2017

Ohio Gov delays multiple executions while denying clemency for double murderer slated to die later this month

As noted and lamented in this recent Fair Punishment Project report, "Prisoners on Ohio’s Execution List Defined by Intellectual Impairment, Mental Illness, Trauma, and Young Age," as of the end of August 2017, Ohio had scheduled 26 executions to take place between now and 2020.  But as of the start of September 2017, thanks to the clemency/reprieve powers of Ohio Gov John Kasich and as detailed here, Ohio has only 18 executions scheduled to take place between now and 2020 with eight others being pushed back to 2021 and 2022.

The delaying of numerous execution was explained in this press release, which also notes that Gov Kasich has (unsurprisingly) denied clemency for a double murderer still scheduled to be executed on September 13:

Gov. John R. Kasich has denied a request for executive clemency from Gary Otte who was convicted in Cuyahoga County for the 1992 robbery and murder of 61 year-old Robert Wasikowski and 45 year-old Sharon Kostura at their respective apartments in Parma, OH.  The Governor’s decision follows the advice of the Ohio Parole Board, who on February 10, 2017, recommended against clemency for Otte by a vote of 11-0.

Additionally, in consultation with the Ohio Department of Rehabilitation and Correction, the governor updated Ohio’s current execution schedule.  After the U.S. Supreme Court rejected claims by Ohio inmates that the state’s protocol was unconstitutional, allowing the execution of Ronald Phillips to proceed in July, the state reviewed the existing schedule to ensure Ohio would meet the goal of conducting court-ordered executions in a humane and professional manner.

Looking over the revised execution schedule, I surmise that the folks at the Ohio Department of Rehabilitation and Correction were not too keen on having to gear up for an execution scheduled nearly every month for the next two years and so they urged Gov Kasich to set a revised schedule that now has an execution taking place only, roughly, every other month through the next five years.

Notably, there are, as detailed here, another 123 persons on Ohio's death row in addition the the 26 with current execution date. That means that even if Ohio were to keep up the pace of six execution per year going forward after 2022, it would take until 2042 to carry out the sentences only of those currently condemned to die. That reality, in turn, lead me to start speculating about who might be governor of Ohio in a quarter century and whether she might be a proponent or opponent of capital punishment.

September 3, 2017 in Clemency and Pardons, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (11)

Wednesday, August 30, 2017

Recent items of note from the Collateral Consequences Resource Center

As regular readers know, I have made a habit of noting here some posts from the Collateral Consequences Resource Center because the topics covered there are so interesting and get so little attention in the mainstream media (or many other places in the blogosphere).  So are some recent posts of note from CCRC:

August 30, 2017 in Clemency and Pardons, Collateral consequences | Permalink | Comments (1)