Thursday, January 12, 2017
"Mistakes and Justice — Using the Pardon Power to Remedy a Mistake of Law"
The title of this post is the title of this notable new article by Paul Larkin now available via SSRN. Here is the abstract:
American criminal law has never recognized a mistake-of-law defense. The principal rationale for rejecting it has been that the community knows what the criminal law prohibits. That may have been a reasonable rule when there were only a handful of crimes, and each one also violated the contemporary moral code, but that rule makes no sense today, given the use of the criminal law to enforce thousands of sometimes technical, arcane administrative regulations. Clemency, however, may be a perfect vehicle for the implementation of a mistake- or ignorance-of-the-law defense.
Throughout Anglo-American legal history, kings, presidents, and governors have used their pardon power as a vehicle to remedy injustices in the criminal justice system. The conviction of a person for conduct that no reasonable person would have thought to be a crime certainly qualifies as a miscarriage of justice. Presidents and governors should consider using their clemency authority to pardon legitimate cases of mistake or ignorance, which might particularly arise in connection with strict criminal liability or regulatory crimes.
Thursday, January 05, 2017
Marijuana reform and clemency conversations at the state and federal level
Two new lengthy pieces combining news and commentary on the clemency and marijuana fronts further reinforces my view that marijuana reform is a form of sentencing reform. Here are the extended headlines and links to these two interesting reads:
From the Christian Science Monitor here, "Vermont governor pardons 192 marijuana offenders. Will other states do the same?: Vermont Gov. Peter Shumlin pardoned nearly 200 nonviolent offenders convicted of marijuana possession under the state’s old laws. Will other state executives follow his lead?"
From Politico here, "The Big Statement Obama Could Make On Legalizing Pot: Pardoning a 73-year-old marijuana kingpin would please thousands of voters, but probably not the next attorney general."
Prez Obama produces lengthy Harvard Law Review article titled "The President’s Role in Advancing Criminal Justice Reform"
I am intrigued and surprised (and concerned that I will soon be very aggravated) by this lengthy new Harvard Law Review article authored by Barack Obama. In style (because the article runs 50+ pages with 300+ footnotes), the article hints that Prez Obama is interested in going back to being a law professor after he finishes his current gig. In substance, the article's introduction provides this overview:
Part I details the current criminal justice landscape and emphasizes the urgent need for reform. It would be a tragic mistake to treat criminal justice reform as an agenda limited to certain communities. All Americans have an interest in living in safe and vibrant neighborhoods, in raising their children in a country of equal treatment and second chances, and in entrusting their liberty to a justice system that remains true to our highest ideals. We simply cannot afford to spend $80 billion annually on incarceration, to write off the seventy million Americans — that’s almost one in three adults — with some form of criminal record, to release 600,000 inmates each year without a better program to reintegrate them into society, or to ignore the humanity of 2.2 million men and women currently in U.S. jails and prisons and over 11 million men and women moving in and out of U.S. jails every year. In addition, we cannot deny the legacy of racism that continues to drive inequality in how the justice system is experienced by so many Americans.
Part II shows how the President can drive significant reform at the federal level. Working with Congress, my Administration helped secure bipartisan sentencing reform legislation reducing the crack-topowder-cocaine disparity. As an executive branch, we’ve been able to make important changes to federal charging policies and practices, the administration of federal prisons, and federal policies relating to reentry. And through the presidential pardon power, I have commuted the sentences of more than 1000 prisoners. Even though there are important structural and prudential constraints on how the President can directly influence criminal enforcement, these changes illustrate that presidential administrations can and do shape the direction of the federal criminal justice system in lasting and profound ways.
Part III details the approaches that Presidents can take to promote change at the state and local level, recognizing that the state and local justice systems tend to have a far broader and more pervasive impact on the lives of most Americans than does the federal justice system. While the President and the executive branch play a less direct role in these systems, there are still opportunities — as my Administration’s work demonstrates — to advance reform through a combination of federal-local partnerships, the promulgation of best practices, enforcement, federal grant programs, and assembling reform-minded jurisdictions struggling with similar challenges.
Part IV highlights some of the work that remains, focusing on reforms that are supported by broad consensus and could be completed in the near term. These include passing bipartisan criminal justice reform legislation in Congress, adopting commonsense measures to keep firearms out of the hands of those who are a threat to others or themselves, finding better ways to address the tragic opioid epidemic in this country, implementing critical reforms to forensic science, improving criminal justice data, and using technology to enhance trust in and the effectiveness of law enforcement.
I fear I will be aggravated by this article because it will confirm that Prez Obama (or his staff who helped author this article) truly understands the need to major criminal justice reforms and yet so relatively little got achieved on this front during Prez Obama's eight yesr in office. Also, I know I am already going to be troubled by what is not said in this article because a quick word search reveals that the word "marijuana" is not mentioned once even though state-level marijuana reform is by far the biggest criminal justice reform story of the Obama era (which, to the Obama Administration's credit, was in part fueled by his Justice Department's express hands off policy).
January 5, 2017 in Clemency and Pardons, Prisons and prisoners, Purposes of Punishment and Sentencing, Race, Class, and Gender, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (10)
Thursday, December 29, 2016
"Clemency seeker to Obama: please don't forget us"
The title of this post is the headline of this new CNN commentary, authored by Alice Marie Johnson. Here is how it gets started and concludes:
The week before Christmas, President Obama gave a second chance -- in the form of clemency -- to 231 people. I was not among them, but since many of them, like me, were incarcerated on drug-related charges, I feel I know their stories. I am only one of thousands of first-time, non-violent offenders given a mandatory and lengthy prison terms after committing a crime under financial distress.
In 1996, I was given a death sentence without sitting on death row. I was convicted as a first-time nonviolent drug offender to life behind bars in federal prison. Since I went to prison, the laws governing my wrong-doing have changed. If I were convicted again today for the same crime, my life might look very different.
Last month, as I was preparing to put on a short play I wrote, entitled "The Strength To Be," a fellow inmate pulled me aside and gave me the news that the Obama Administration had just started announcing its next slate of clemencies. My mind went racing. What if this could be my chance to be reunited with the outside world, to see my family or what is left of it?
For 20 years I have been incarcerated, and I won't lie, it's hard to keep the hope of freedom alive for that long. But my faith in God has carried me this far. Despite the impending announcement, I knew that the show had to go on. I channeled the uncertainty of my future into my play and danced a duet to Whitney Houston's song, "I Didn't Know My Own Strength."...
I want this part to be clear: I acknowledge that I have done wrong. I made the biggest mistake of my life to make ends meet and got involved with people selling drugs. This was a road I never dreamed of venturing down. I became what is called a telephone mule, passing messages between the distributors and sellers. I participated in a drug conspiracy and I was wrong.
My trial took a toll on my family. At the time of my conviction, I had two children in college and a senior in high school. Bryant, the senior, ended up dropping out of school because of the trial. Tretessa had a good paying job with Motorola and was flying down to support me. Members of the community were at my hearings encouraging me and hoping for the best.
But I was convicted on October 31, 1996 -- and sentenced to life in prison. The day after my oldest son Charles "celebrated" his 20th birthday. It was his first birthday spent away from me. It's hard to imagine that I have now served 20 years of my life sentence for that one mistake. The United States leads the world in incarceration rates, with five percent of the world's incarcerated population and one-quarter of the world's prisoners. I am one of thousands of first-time, nonviolent offenders who were given mandatory lengthy prison terms.
During my two decades in here, I've become an ordained minister and a mentor to young women who are also in prison. And if I get out -- I have a job secured, and plan to continue to help those in prison and work hard to change our justice system. My daughter started a petition to President Obama asking him to grant me clemency, and more than 100,000 people have signed it. It a source of strength and hope for me -- a chance to be free.
The President has made an incredible push at helping to right the wrongs of our criminal justice system. I applaud him and hold out hope for me and thousands of others who face lifelong sentences for nonviolent crimes. But with the historic Obama administration coming to an end, this could be a last chance at freedom for me and for many others -- so I also hope he moves quickly. I hope his administration will process all the applications for clemency currently waiting for the President's review.
No matter what happens, I was not built to break. I will keep writing. I will continue to hold my head high and live a productive life either as a free woman or here behind bars. God has shown me my strength.
Sunday, December 25, 2016
Fulsome (and incomplete) criticisms of Prez Obama's fulsome (and incomplete) clemency efforts
Liliana Segura has this lengthy new Intercept commentary headlined "Obama's Clemency Problem – And Ours." I recommend the full piece and here are some excerpts:
President Obama broke his own remarkable clemency record [last week], granting an unprecedented 231 commutations and pardons in a single day. Headlines and tweets broadcast the historic tally; on the White House website, a bar graph tracks Obama’s record to date, which has dramatically outpaced that of his predecessors. With a total of 1,176 recipients, the White House boasted, Obama has granted clemency “more than the last 11 presidents combined.”
The president certainly deserves credit for making clemency a priority before leaving office.... Those who make the cut are, as the White House put it this week, “individuals deserving of a second chance.” Many have been serving long mandatory minimum sentences for nonviolent drug offenses, crimes for which they have shown remorse. Applications list courses completed, prison jobs maintained, records untarnished by disciplinary write-ups. Last spring, Obama highlighted a handful of men and women who “have made the most of their second chances,” describing their ability to leave prison, get a job, and piece their lives back together as “extraordinary.”
With his legacy and the politics of crime in mind, it makes sense that Obama would be cautious with his commutations, while amplifying the success stories. Yet there’s something disingenuous in the now-familiar rhetoric peddled by the White House with every clemency announcement, which repeatedly tells us we are a “nation of second chances.” Even within the narrow scope of Obama’s clemency initiative — and putting aside his treatment of immigrants and whistleblowers — this is wishful thinking at best. As Obama himself has written in his congratulatory letters to clemency recipients, “thousands of individuals have applied for commutation, and only a fraction of these applications are approved.” Before the latest round of pardons and commutations, Obama had rejected nearly 14,000 clemency applications....
[W]hen it comes to the president’s pardon power — the one place where Obama could directly address the problem — there are few signs of a transformation.
Instead, the White House has promoted a story about exceptionalism: The president has proven exceptionally merciful and the clemency recipients are uniquely deserving — even extraordinary. If the former is true, it is only because we have set the bar so low. As for the latter, it is certainly no small thing to survive — even thrive — while serving some of the harshest prison sentences in the world. But praising such men and women as exceptional diminishes the vast human potential that exists behind bars. As one clemency recipient told me last month, recalling an exchange with the former White House pardon attorney, “I have a list of names of people I would like to see come home. But there are even more people who I’ve never met. To give a list of names would exclude too many people.”...
On the same day activists published their letter exhorting Obama to expand his clemency efforts, the American Civil Liberties Union released a report titled “False Hope: How Parole Systems Fail Youth Serving Extreme Sentences.” Documenting how states routinely deny release to those eligible for parole, the ACLU offers numerous profiles of men and women sent to grow up (and in many cases, to die) in prison, whose efforts to prove their value as adults have been repeatedly rebuffed. The stories are all too familiar. They show how poverty, neglect, trauma, and mental illness factor into the lives of young people arrested for violent crimes. They also show how harshly we continue to punish such youth, first with decades in prison, and then with repeated refusals to grant parole, no matter how much they change in the years that follow — or how much evidence shows that older people “age out” of crime. People of color are seen as even less amenable to rehabilitation. Today, despite the wide rejection of the “superpredator” myth, state parole boards show very little mercy to people serving sentences that grew out of such racist hysteria.
As with Obama’s clemency initiative, the problem is largely political: Nobody wants to be the person to free an individual who might go out and commit another crime, even if it has been decades since the original offense — and even if the sentence was disproportionate to begin with. What’s more, the ACLU notes, by focusing on the original crime, “parole board members may never know about the success stories: people convicted of serious crimes who, once released, have become successful community leaders supporting themselves and their families, who grew up and moved beyond the worst thing they ever did.”
One bright spot of Obama’s clemency initiative has been in these very kinds of success stories — publicized in the press and by the White House itself. But in the absence of a deeper rethinking of what we consider a second chance, such anecdotes are no match for generations of fear mongering that has entrenched fear of violent criminals into our very psyche, even at times when crime has hit historic lows....
Just a few days after the ACLU report on parole, the Washington Post unveiled a front-page, four-part investigative series called Second Chance City, which examined a D.C. law called the Youth Rehabilitation Act. Passed in 1985, the law aimed to give judges discretion in handling juvenile cases — including by circumventing mandatory minimums — to allow deserving young people to avoid harsh punishment and, ultimately, expunge their record. The Post series raised alarm, finding dozens of cases where beneficiaries of the law had gone on to commit new, often violent offenses, and describing the crimes in dramatic detail....
Most counterproductive was the framing of the series, placed squarely as a counterpoint to efforts at prison reform on Capitol Hill. “At a time when the Obama administration and Congress are working to ease ‘mandatory minimum’ sentencing guidelines for non-violent offenses, in part because of concerns that such laws have unjustly imprisoned large numbers of African-Americans,” the authors write, “D.C. law enforcement officials are increasingly concerned about the number of repeat violent offenders on the streets.”
The media should certainly scrutinize attempts at reform, pointing out where they fail. But the Post series was a reminder of how quickly we revert back to old narratives about crime, to convince ourselves that more imprisonment will keep us safe. With the real fights over prison reform happening at the state and local level — over things like the Youth Act — any efforts by the president were always going to be limited. But if the pendulum is to swing back toward a more punitive era, as many fear it will under Trump, Obama must do as much as he can now to preserve the legacy he has carved out.
But beyond Obama — and if we are to make a dent in mass incarceration — Americans must also begin to think much bigger than his administration ever did. We should refuse to let the same government that gave us mandatory minimums define what counts as a “second chance.” We must stop letting our leaders — whether the president or a parole board — divest their responsibility to remedy draconian punishments by placing the burden on people who never should have received them in the first place. Ending mass incarceration will require mercy, but fundamentally it is about justice. And the state has not even begun to account for its own mistakes.
I credit Segura for noting and lamenting that what's most remarkable about Prez Obama's clemency efforts are how non-transformative they are. Despite lots of advocacy from lots of advocates for the development of a new structure for clemency decision-making, Prez Obama has barely tweaked the status quo in order to better discover a few thousand prisoners with extreme prison sentences that could be shortened. Prez Obama merits praise and credit for doing something, but that something is largely a last-minute tweak rather than a timeless transformation.
The story of clemency here is a variation on the broader drug war reality throughout the Obama years. As of 2013, then-AG Eric Holder started talking up a new "Smart on Crime" initiative. But, despite this useful talk and some tweaked approaches to federal prosecutions, Prez Obama's Department of Justice for all eight years of his presidency continued to prosecute, on average, 20,000 new federal drug cases each year even though there is still little evidence that severe federal drug sentences for nonviolent drug offenders help reduce drug crime or violent crimes. (Of course, the prior decade saw on average 25,000 federal drug prosecutions, so the Obama DOJ can claim credit for being a lesser evil.) Running these numbers, if Prez Obama commuted 2000 federal drug sentences each and every year he was in the Oval Office, through the work of his DOJ, he still would be responsible for a net addition of 18,000 federal drug sentences each and every year.
Put simply, at the margins, Prez Obama left federal criminal justice matters somewhat better than he found them. But the federal criminal justice system continues to need a wide array of reforms that go, in my mind, far beyond the margins.
Monday, December 19, 2016
Prez Obama grants another large bunch of commutations as well as a big batch of pardons
Big pre-holiday news on the federal clemency front is reported in this new White House blog posting: "President Obama Grants 153 Commutations and 78 Pardons to Individuals Deserving of a Second Chance." Here are the details as reported by White House Counsel Neil Eggleston:
Today, President Obama granted clemency to 231 deserving individuals — the most individual acts of clemency granted in a single day by any president in this nation’s history. With today’s 153 commutations, the President has now commuted the sentences of 1,176 individuals, including 395 life sentences. The President also granted pardons to 78 individuals, bringing his total number of pardons to 148. Today’s acts of clemency — and the mercy the President has shown his 1,324 clemency recipients — exemplify his belief that America is a nation of second chances.
The 231 individuals granted clemency today have all demonstrated that they are ready to make use — or have already made use — of a second chance. While each clemency recipient’s story is unique, the common thread of rehabilitation underlies all of them. For the pardon recipient, it is the story of an individual who has led a productive and law-abiding post-conviction life, including by contributing to the community in a meaningful way. For the commutation recipient, it is the story of an individual who has made the most of his or her time in prison, by participating in educational courses, vocational training, and drug treatment. These are the stories that demonstrate the successes that can be achieved — by both individuals and society — in a nation of second chances.
Today’s grants signify the President’s continued commitment to exercising his clemency authority through the remainder of his time in office. In 2016 alone, the President has granted clemency to more than 1,000 deserving individuals. The President continues to review clemency applications on an individualized basis to determine whether a particular applicant has demonstrated a readiness to make use of his or her second chance, and I expect that the President will issue more grants of both commutations and pardons before he leaves office. The mercy that the President has shown his 1,324 clemency recipients is remarkable, but we must remember that clemency is a tool of last resort and that only Congress can achieve the broader reforms needed to ensure over the long run that our criminal justice system operates more fairly and effectively in the service of public safety.
This news is sure to bring holiday cheer to all those advocating for Prez Obama to go big on this front before he heads home. These grants now have me thinking Obama may end his time in office with more than 2000 clemency grants.
Some recent (post-Election Day) posts on Prez Obama and clemency:
- How many veterans are among Prez Obama's 944 federal prison commutations? How many more veterans are clemency worthy?
- "Advocates Look To Obama For 'Unprecedented' Action On Federal Prison Sentences"
- Prez Obama grants 79 move commutations, taking his total over 1000 for his administration
- Terrific content and context for Prez Obama's clemency work at Pardon Power
- Will Prez Obama break out of his "clemency rut" and really go bold his last few weeks in the Oval Office?
- At 11th hour, more advocacy for Prez Obama to make big 11th-hour clemency push
- Clemency recipients join chorus urging Prez Obama to go big on clemencies before he goes home
- Anyone eager to predict how many last-month clemencies Prez Obama will grant?
Sunday, December 18, 2016
Anyone eager to predict how many last-month clemencies Prez Obama will grant?
The question in the title of this post is prompted by this lengthy new Wall Street Journal article headlined "Barack Obama Weighs Final Requests for Clemency: President has cut short the sentences of 1,023 inmates, more than the previous 11 presidents combined." Here are excerpts:
Barack Obama, who has granted clemency more often than any president since Lyndon B. Johnson, is expected to perform more acts of mercy during his final weeks in office....
Mr. Obama’s critics, including the incoming attorney general, say his use of clemency for a large class of convicts has been a disturbing power grab. But supporters say a law that reduced drug penalties six years ago created severe injustices for those sentenced before it. They also note that Mr. Obama has granted clemency for a relatively small percentage of the large number of people who have sought it.
These trends are a centerpiece of Mr. Obama’s legacy on criminal justice reform. Legislation that would have further reduced sentences for less-serious drug offenders foundered in this fall’s highly charged political climate. But as with other parts of the president’s agenda that were snubbed by Congress—including immigration, gun control and climate policies — Mr. Obama has turned to his executive authority in the absence of more sweeping and durable legislative action. “He’s essentially rejuvenated clemency as a presidential power,” said White House Counsel Neil Eggleston. “But he has never seen it as a replacement for criminal justice reform.”...
Mr. Trump’s pick for attorney general, Alabama Sen. Jeff Sessions, a former chairman of the Senate Judiciary Committee, has described Mr. Obama’s clemency record as an “alarming abuse of the pardon power.” The former prosecutor views the rollback of tough drug sentences as a threat to public safety. Mr. Obama, a former constitutional law professor, sees long, mandatory sentences as damaging excesses from the war on drugs, particularly in the African-American community.
In 2016, Mr. Obama has cut short the sentences of 839 inmates, the most commutations ever granted in a single year, according to the Justice Department, with more possibly on the way. That brings his total to 1,023, or more than the previous 11 presidents combined. Adding Mr. Obama’s 70 pardons, which go further than commutations by wiping out convictions and restoring civil liberties, puts his clemency record just behind Mr. Johnson’s 1,187 grants.
Civil-rights advocates are demanding a more sweeping review that would dent the prison population much faster than the current case-by-case analysis. “We do not know whether the next president will support clemency efforts or criminal justice reform,’ says a late November appeal to President Obama from dozens of groups, including the NAACP Legal Defense and Educational Fund, the Sentencing Project, JustLeadershipUSA and the Brennan Center for Justice. “But we do know that until Jan. 20, you alone have the power to deliver both mercy and justice to those who deserve it.”...
Mr. Obama has received more requests for clemency than any other president, in part because of efforts to encourage inmates to petition for one if they were sentenced before a 2010 law that reduced the disparity between sentences for crack and cocaine offenses. Mr. Sessions spearheaded that legislation, which lightened penalties for crack users, but he opposes applying it to inmates retroactively. So does the nation’s largest police union, the Fraternal Order of Police, which endorsed Mr. Trump.
But in one indicator that Mr. Obama is more cautious than some critics suggest, he has granted 3% of nearly 35,000 requests; only George W. Bush granted a smaller percentage, according to an analysis by the Pew Research Center. Obama also has offered fewer pardons than any president in the past century, though more are expected before he leaves office.
I am tempted to predict that Prez Obama will grant at least a few hundred more prison commutations and also a few hundred pardons before leaving the Oval Office on January 20, 2017. This is a nothing but a blind guess and I have absolutely no insider knowledge here. What I do have is a deep disappointment that Prez Obama did not make any apparent effort to change the structure of the modern federal clemency process, which so many commentators (myself included) have rightly criticized as dysfunctional.
Some recent (post-Election Day) posts on Prez Obama and clemency:
- How many veterans are among Prez Obama's 944 federal prison commutations? How many more veterans are clemency worthy?
- "Advocates Look To Obama For 'Unprecedented' Action On Federal Prison Sentences"
- Prez Obama grants 79 move commutations, taking his total over 1000 for his administration
- Terrific content and context for Prez Obama's clemency work at Pardon Power
- Will Prez Obama break out of his "clemency rut" and really go bold his last few weeks in the Oval Office?
- At 11th hour, more advocacy for Prez Obama to make big 11th-hour clemency push
- Clemency recipients join chorus urging Prez Obama to go big on clemencies before he goes home
UPDATE: In the comments to this post and also in an email to me, sentencing and clemency guru Mark Osler expressed justified frustration over the fact that the WSJ article and its chart fail to give respect to the large number of clemencies that Prez Gerald Ford granted in response to offenses related to evasion of the draft during the Vietnam war. (This Fusion article from May provides an effective review of this oft-forgotten clemency story and its continued relevance in a drug war era.) Mark sent me this update comment of criticism, along with the additional chart here produced by Pardon Power papa P.S. Ruckman.
Complains Prof Osler: "No, Obama has NOT 'granted clemency more often than any president since Lyndon B. Johnson.' And the chart the WSJ used (and you reprinted) is wrong. Neither include the Ford clemency grants. That matters, too --- the streamlined Ford process outside of DOJ, which was successful, was the one Obama rejected in favor of the bureaucracy-laden CP14."
Monday, December 12, 2016
Clemency recipients join chorus urging Prez Obama to go big on clemencies before he goes home
This new Business Insider article, headlined "Prisoners set free by President Obama are urging him to expand his clemency program before he leaves office," reports on the latest interesting pitch to Prez Obama concerning his clemency work. Here are the basics:
The day Ramona Brant walked out of prison after serving 21 years of what was supposed to be a life sentence, she felt an overwhelming mixture of emotions — elation and gratitude for her freedom, and sadness for the inmates she was leaving behind. Many of them had stories like hers. They had in one way or another gotten involved in selling drugs, often through boyfriends or husbands who would eventually testify against them in conspiracy trials. L
ike Brant, many were there to serve decades, or even life sentences without the possibility of parole. “I was not comfortable being free knowing that there were so many people who weren’t free to experience the same opportunities that I was experiencing,” Brant told Business Insider. “I’m not saying I want to go back to prison — what I’m saying is my heart is still with my sisters that I left behind, and my brothers.”
Brant was granted a sentence commutation by President Obama last February, as part of an unprecedented clemency initiative that has now reduced more than 1,000 federal inmates’ sentences. She is one of more than 40 clemency recipients who signed an open letter sent to the president on Monday pleading for mercy for nonviolent drug offenders serving lengthy sentences who have demonstrated clear conduct in prison. “We ask for your immediate intervention for thousands more prisoners who will continue to suffer needlessly unless a broader clemency plan is implemented,” the letter said.
“We have remained largely silent in appreciation of your compassion to many suffering under draconian sentencing laws passed during the crack hysteria of the late 1980s and 1990s. But with only six weeks of your presidency left, we must speak out.”
The letter, also signed by dozens of clemency advocates and former inmates, recommends the president adopt a broad amnesty program in place of the current case-by-case review of inmates’ petitions. It suggests that all nonviolent drug offenders with clear conduct have their sentences reduced to five, 10, or 15 years for first-, second-, and third-time offenders, respectively. It also specifically asks that clemency be granted to female inmates, who the letter argues are more likely than men to be serving lengthy sentences because of drugs their partners or spouses sold, and who make up less than 10% of the inmates to whom Obama has granted clemency....
The Office of the Pardon Attorney, which reviews clemency applications and recommends them to the president, the White House, and the Department of Justice did not immediately respond to Business Insider’s requests for comment on the letter....
Although Deputy Attorney General Sally Yates has previously said “every single drug petition” received before Aug. 31 will be reviewed by the Obama administration, activists and clemency advocates have been urging the president for months to quicken the pace of approvals.
Last month’s presidential election, too, has only added to the pressure. President-elect Donald Trump, who has previously called the inmates released by Obama “bad dudes,” has not expressed interest in continuing his clemency initiative. Nor has Jeff Sessions, Trump’s nominee for Attorney General, who supports harsh drug laws and mandatory minimum sentencing.
It is estimated that at least 2,000 federal prisoners serving nonviolent drug offenses were eligible for sentence reductions under the requirements laid out under Obama’s program, which stipulate that inmates have served at least 10 years of their sentences. Even more could be eligible should the Obama administration consider inmates who have served less than a decade, as it has already done in some cases.
Some recent (post-Election Day) posts on Prez Obama and clemency:
- How many veterans are among Prez Obama's 944 federal prison commutations? How many more veterans are clemency worthy?
- "Advocates Look To Obama For 'Unprecedented' Action On Federal Prison Sentences"
- Prez Obama grants 79 move commutations, taking his total over 1000 for his administration
- Terrific content and context for Prez Obama's clemency work at Pardon Power
- Will Prez Obama break out of his "clemency rut" and really go bold his last few weeks in the Oval Office?
- At 11th hour, more advocacy for Prez Obama to make big 11th-hour clemency push
Sunday, December 11, 2016
Vermont Gov promising to pardon all marijuana offenses on his way out of office
As reported in this local article from Vermont, "before he leaves office, Gov. Peter Shumlin is planning to pardon people who were convicted of possessing up to one ounce of marijuana." Here are the details:
Vermont removed criminal penalties for small amounts of marijuana possession in 2013. Shumlin said in a statement that pardoning the convictions now is "the right thing to do," and he hopes to review as many applications as possible before he leaves office in the new year. [The official statement is here.]
“Decriminalization was a good first step in updating our outmoded drug laws," Shumlin said. "It makes no sense that minor marijuana convictions should tarnish the lives of Vermonters indefinitely.”
The governor will consider pardons for people who have never been convicted of "violent criminal Vermont convictions or felonies," according to a news release. The governor's office believes as many as 10,000 people are eligible for pardons, said James Pepper, a policy adviser and director of intergovernmental affairs for Shumlin....
People interested in a pardon for marijuana possession can apply through the governor's website before Dec. 25 [link here]. The website cautions applicants that their applications may be considered public records and that a pardon "will not necessarily erase a conviction or the record of that conviction."
"If you are requesting a pardon because you believe the pardon will have certain legal consequences for you, you should talk to a lawyer," the governor's website states....
A 2015 Vermont law allows people in certain circumstances to expunge criminal records of acts they committed before age 25 that are no longer criminal, including possession of small amounts of marijuana. Shumlin believes Vermont should legalize recreational marijuana. A legalization bill passed the state Senate this year but did not pass the House of Representatives.
This story provides further reinforcement of my long-standing view that marijuana reform = sentencing reform and that everyone interested in sentencing reform should be a supporter of marijuana reform. And, of course, for more on marijuana law, policy and reform, my other blog has been covering these stories:
Wednesday, December 07, 2016
At 11th hour, more advocacy for Prez Obama to make big 11th-hour clemency push
As regular readers may recall, and as I cannot help but highlight these days, I was aggressively calling for Prez Obama to make significant use of his clemency power from literally his first day in office. This January 20, 2009 post was titled "Is it too early to start demanding President Obama use his clemency power?" and in 2010 I authored this article in the New England Journal on Criminal and Civil Confinement under the title "Turning Hope-and-Change Talk Into Clemency Action for Nonviolent Drug Offenders."
I suppose I should be happy that, with Prez Obama on his way out the door, a lot of other folks are now finally joining this call for action with some urgency. This New York Times editorial, headlined "President Obama’s Last Chance to Show Mercy," is today's example of the clemency chorus now growing. Here are excerpts:
The Constitution gives presidents nearly unlimited authority to grant pardons and commute sentences — decisions that no future administration can reverse. Unfortunately, for most of his presidency, Barack Obama treated mercy as an afterthought. Even as thousands of men and women endured outrageously long sentences for low-level, nonviolent drug offenses as a result of the nation’s misguided drug war, Mr. Obama granted relief to only a tiny handful.
In the last two years, however, Mr. Obama has changed course. In 2014 he directed the Justice Department to systematically review cases of people serving out sentences that would be far shorter had they been convicted under new, more lenient sentencing laws.
While that clemency process has moved far too slowly — beset by both administrative obstacles and bureaucratic resistance — grants have been accelerating throughout 2016. Mr. Obama has now shortened or ended the sentences of more than 1,000 prisoners, and he will most likely be the first president since Lyndon Johnson to leave office with a smaller federal prison population than he inherited.
There are thousands more people deserving of release, but their prospects under the next administration don’t look good. President-elect Donald Trump ran on a “law and order” platform that sounded a lot like the punitive approach that led to exploding prison populations in the first place. His choice for attorney general, Senator Jeff Sessions of Alabama, has fiercely opposed criminal sentencing reform and called Mr. Obama’s grants of clemency an abuse of power. In other words, for many federal inmates, their last hope lies in Mr. Obama’s hands.
Up to now, the president has reviewed clemency requests on a case-by-case basis. With only weeks left in office, Mr. Obama should consider a bolder approach: blanket commutations for those inmates still serving time under an old law that punished possession or sale of crack cocaine far more harshly than powder cocaine — a meaningless distinction that sent disproportionate numbers of young black and Latino men to prison for decades....
The idea of blanket commutations is being pushed by a coalition of criminal-justice reform advocates, including former judges and prosecutors, who urged the president in a letter last week to use his clemency power aggressively while he still can. The group called for the release of thousands more nonviolent offenders in low-risk categories, including elderly inmates, who are the least likely of all to commit new crimes, and those with convictions for drugs other than crack. The coalition argues that it is possible to make these grants in the short time remaining, if the administration is committed to getting it done.
Mr. Trump may well dismantle a lot of Mr. Obama’s legacy, but he can’t touch grants of clemency. Mr. Obama has taken important steps toward unwinding the decades-long imprisonment binge. With much of that progress now at risk, he has only a few weeks left to ensure a measure of justice and mercy for thousands of people.
Monday, November 28, 2016
Now that Prez Obama has granted commutations to more than 1000 federal prisoners (basics here), I suppose I should stop complaining that he has only "talked the talk" about significant sentencing reform. Having granted now a record number of commutations to federal defendants sentenced to decades of imprisonment for mostly nonviolent drug offenses, Prez Obama can and should retire to the golf course with some justified satisfaction that he has created a new clemency legacy over his final few years as Prez.
That said, a few basic numbers about the reality of federal drug prosecutions in the Obama era should temper any profound praise for Prez Obama here. Specifically, Prez Obama was in charge from Jan 2009 to Aug 2010 when the old 100-1 crack/powder ratio was still in place. During that period, using this US Sentencing Commission data as a guide, well over 5000 federal defendants were sentenced under the old crack laws while Prez Obama and his appointees were leading the Justice Department. So, during just Prez Obama's first 1.5 years in office, federal prosecutors sent five times as many drug offenders to federal prison under the old crack laws than Prez Obama has now commuted. Moreover, given that the Fair Sentencing Act of 2010 only reduced the crack/powder unfairness, it is worth also noting that over another 20,000 federal defendants have been prosecuted and sentence under still-disparate/unfair crack sentencing laws from Aug 2010 to Nov 2016 (though crack prosecutions, as this USSC data shows, have declined considerably from 2010 to 2015).
I bring all this up because I will not consider Prez Obama to be a bold and courageous executive leader in the clemency arena unless and until he grants relief to more folks than just over-sentenced nonviolent drug offenders. Helpfully, this new Wall Street Journal commentary authored by Charles Renfrew and James Reynolds provides some distinct clemency fodder for Prez Obama to consider. The piece is headlined "Obama Should Pardon This Iowa Kosher-Food Executive: Prosecutors overstepped, interfered with the process of bankruptcy and then solicited false testimony." Because I have been an advocate for a reduced sentence for Sholom Rubashkin, whose 27-year federal prison sentence has long seemed grossly unfair and unjustified to me, I will not here make the clemency case for him in particular. But this WSJ commentary serves as a useful reminder that there are certainly hundreds — and likely thousands and perhaps tens of thousands — of federal prisoners currently serving excessive federal prison sentences who were involved in criminal activity other than nonviolent drug offenses.
Candidly, I am not optimistic that Prez Obama will use his last seven weeks to get out of the notable "clemency rut" of his Administration's own creation. I say this because I surmise that (1) (1) everyone involved in the Obama Administration's clemency push has been focused almost exclusively on low-level drug prisoners sentenced to a decade or longer, and (2) even the limited group of low-level drug offenders being actively considered still presents tens of thousands of clemency petitions to review. Meanwhile, I suspect and fear, reasonable clemency requests from thousands of other potentially worthy applications are seemingly being rejected out-of-hand or being left for the next Prez to deal with.
I hope Prez Obama proves me wrong in the next seven weeks by granting clemency to some other types of folks seeing executive relief (both in the form of commutations and pardons). But on most criminal justice reform issues, Prez Obama has left me deeply disappointed a lot more than he has pleasantly surprised me.
November 28, 2016 in Clemency and Pardons, Drug Offense Sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)
Saturday, November 26, 2016
Terrific content and context for Prez Obama's clemency work at Pardon Power
Long-time readers know that the blog Pardon Power is a must-read for anyone who cares about clemency policies and practices. Of particular importance and value, P.S. Ruckman's work at Pardon Power consistently provides needed theoretical and historical context for better understanding recent clemency activities rather than falling prey to the the modern media tendency to follow and obsess over the latest "shiny object" of clemency. Great examples of why Pardon Power is a must-read these days as we move into the twilight of the Obama era are these recent posts of note over the holiday weekend:
Though I recommend highly all these posts, the last of the bunch has the most far-reaching and trenchant analysis. Here is how that piece starts and ends:
It seems more than likely that, before he leaves office, President Obama will break Woodrow Wilson's record for commutations of sentence. It is, however, more than a little amazing (if not highly informative) to compare the use of federal executive clemency in the two administrations.
By the time he left the White House, Wilson had granted 1,087 presidential pardons (as well as 226 respites and 148 remissions). Obama, however, has granted a mere 70 pardons, the lowest number granted by any president serving at least one full term since John Adams. It doesn't seem likely that Obama will pass out 1,000 plus pardons between now and the end of the term. But there appears to be little concern about it on any front. So, it is what it is.
Consequently, clemency, for Obama, has meant — for the most part — commutations of sentence, almost exclusively for those convicted of drug offenses. And these grants have — for the most part — been granted late in his second term. Indeed, the Obama administration already features the largest 4th-year clemency surge of any administration in history....
The federal prison population has boomed since Wilson's day. The Obama administration has been receiving record numbers of clemency applications, for years. On top of that, thousands remain in prison who were sentenced under drug laws which have been undone. The merciless neglect of the current clemency system needs to tanked. The process needs to be removed from career prosecutors in the DOJ who are unable / unwilling to process clemency applications in a timely fashion, with an eye toward mercy. The broken system has famously lacked transparency (since 1932) and, today, it even exempts itself FOIA law.
It is time to create a permanent clemency board / commission (a device often used in the states) in the Executive Office of the President of the United States. It is time for mercy to emerge once again as a regular feature of criminal justice. It's not just about numbers. It is about balance, fairness. It is about rehabilitation and restoration. It's about presidents using a power that was given to them ... to use ... not to abuse, or neglect.
Tuesday, November 22, 2016
Prez Obama grants 79 move commutations, taking his total over 1000 for his administration
As reported in this new Washington Post article, headlined "Obama grants 79 more commutations to federal inmates, pushing the total past 1,000," the outgoing President has decided to make some clemency news before turning torward Turkey Day festivities. Here are the basics from the start of this article:
President Obama granted commutations to another 79 federal drug offenders Tuesday, pushing the number of inmates he has granted clemency past 1,000.
Obama’s historic number of commutations was announced as administration officials are moving quickly to rule on all the pending clemency applications from inmates before the end of the year. The Trump administration is not expected to keep in place Obama’s initiative to provide relief to nonviolent drug offenders.
“The President’s gracious act of mercy today with his latest round of commutations is encouraging,” said Brittany Byrd, a Texas attorney who has represented several inmates who have received clemency since Obama’s initiative began in 2014. “He is taking historic steps under his groundbreaking clemency initiative to show the power of mercy and belief in redemption. Three hundred and forty two men and women were set to die in prison. The President literally saved their lives.”
The White House and the Justice Department were criticized by sentencing reform advocates earlier this year for moving too slowly in granting commutations to inmates serving harsh sentences who met the criteria for clemency. The administration has greatly picked up the pace, but advocates still want them to move faster before time runs out.
“At the risk of sounding ungrateful, we say, “thanks, but please hurry,” said Kevin Ring, vice president of Families Against Mandatory Minimums. “We know there are thousands more who received outdated and excessive mandatory sentences and we think they all deserve to have their petitions considered before the president leaves office. Petitioners are starting to get anxious because they know the president is, in prison parlance, a short-timer.”
On a press call this afternoon (which is available here), Deputy Attorney General Sally Q. Yates delivered remarks that included these sentiments:
As of this morning, President Obama has granted clemency to over 1,000 men and women who were incarcerated under outdated sentencing laws.
The number 1,000 is significant, but it’s important to remember that this is more than a statistic. There are 1,000 lives behind that number, 1,000 people who had been sentenced under unnecessarily harsh and outdated sentencing laws that sent them to prison for 20, 30, 40 years, even life, for nonviolent drug offenses. It's part of my job to review the petitions for each of these individuals, and I've been struck by the common threads woven through many of them — lack of access to education or real economic opportunity, absence of parents, drug addiction, hopelessness. But in these petitions I've also seen something else — remarkable introspection, a real sense of responsibility for their conduct, and a dogged determination not to repeat the mistakes of the past and to ensure that they, and especially their children, chart another path.
The President has given these 1,000 individuals that opportunity. And while we are a nation of laws, and those who violate those laws must be held accountable, we are also a nation of second chances. The mission of the Justice Department not only supports but demands that we do everything in our power to ensure that our criminal justice system operates fairly. In this case, that means reducing disproportionate sentences imposed under out-of-date laws. And we are privileged to serve a President who has not only taken on this responsibility himself, but who has given us the chance to fulfill our core charge to seek justice....
And a lot of work has gone into the clemency initiative to get us to this historic announcement today. Since the initiative was announced in 2014, thousands of petitions have been submitted and reviewed by the hard working attorneys in the Office of the Pardon Attorney, my office, the Office of the Deputy Attorney General, and the White House to identify nonviolent drug offenders whose sentences would be significantly lower if they were sentenced today. While we are proud of the progress we’ve made so far, as I have said before, our work is still not done. We will continue to make recommendations on clemency applications until the end of the Administration, fulfilling the goals we set more than two and a half years ago when we launched the clemency initiative.
Tuesday, November 15, 2016
"Advocates Look To Obama For 'Unprecedented' Action On Federal Prison Sentences"
The title of this post is the headline of this astute new BuzzFeed News article that flags some issues and raises various questions that I have been thinking a lot about ever since last Wednesday around 2am. Here are highlights:
In recent months, President Obama has stepped up the pace of federal clemency — issuing three large batches of commutations in the month before the presidential election. The White House has regularly pushed those numbers as evidence that Obama has done more than his predecessors to address unfairness he has criticized in criminal sentencing.
But now that he is due to be replaced by Donald Trump, who ran in part by saying he would be a “law and order” president, leading advocates of the clemency process say it is the time for Obama to step up and do more. “[I]f President Obama believes these sentences are unjust, it is his constitutional responsibility to fix them,” Rachel Barkow, a member of the United States Sentencing Commission and NYU law professor, told BuzzFeed News this week....
To that end, the group, co-founded by Van Jones, will be in Washington this week, holding a series of events — including a vigil in front of the White House on Monday evening — urging Obama to take “unprecedented” action on clemency in the coming months.
Mark Osler, a law professor at the University of St. Thomas School of Law, acknowledged that time is short. “I think there will be — and should be — a sense of urgency,” he said on Friday. “I think the clearest thing is to find efficiencies — find ways to look at more people over these last weeks in a way that’s consistent and effective, in terms of evaluation. And that means, probably, looking at categories of people and identifying them specifically.”
Specifically, he pointed to “people who did not get the benefit of the Fair Sentencing Act in 2010” — which addressed cocaine-to-crack sentencing disparities in federal law, but was not retroactive. As such, Osler explained, many people “were stuck with a life sentence or the 10-year mandatory [minimum]” who could not receive that sentence today....
There has, though, been an election — one that likely will reflect at least somewhat different values on criminal justice issues, Osler acknowledged. “It’s fair to say that those people within this administration are very aware that the amount of care that they give to criminal law — and the excesses of criminal law — probably won’t be reflected in the next administration,” he said. Nonetheless, Osler said that Obama’s two elections more than suffice as a rationale for why Obama should continue pressing forward with the Clemency Project in his final months in office. “He’s the elected president until January 20, 2017,” he said. “I don’t think you sit back and don’t make full use of every day that you have.”
Barkow put it in similarly broad terms — but with a historical context. “Clemency is critical to an effective federal criminal justice system,” Barkow noted, pointing out that Alexander Hamilton wrote in The Federal Papers about the important role clemency plays in the American system. “The President has only a couple months to reach everyone. The fate of these people and their loved ones rests in his hands, and one of his lasting legacies can be to reaffirm Hamilton’s view that both ‘humanity and good policy’ require the broad use of the pardon power.”
In addition to my adoration for Rachel Barkow's always-timely Hamilton reference (and how it made me think of one of my favorite songs), I especially like Mark Osler's discussion of both the challenges and justifications for Prez Obama going bold on clemency over the next two months. For reasons I have explained in this Veterans Day post, I would especially love to see Prez Obama go bold in granting clemency for any and all veterans serving distinctly long federal sentences or still burdened by a federal conviction long after any public safety rationales for continued punishment have been extinguished.
Sing along with me Prez Obama and fellow clemency fans (with apologies to Lin-Manuel Miranda):
Prez Washington:I wanna talk about [clemency righting]I want to warn against partisan fightingPick up a pen, start writingI wanna talk about what I have learnedThe hard-won wisdom I have earned...The people will hear from meOne last timeAnd if we get this rightWe’re gonna teach ‘em how to say GoodbyeYou and I—
Mr. President, they will say you’re weak
No, they will see we’re strong
Your position is so unique
So I’ll use it to move them along
Why do you have to say goodbye?
Prez Washington:If I say goodbye, the nation learns to move onIt outlives me when I’m goneLike the scripture says:“Everyone shall sit under their own vine and fig treeAnd no one shall make them afraid.”They’ll be safe in the nation we’ve madeI wanna sit under my own vine and fig treeA moment alone in the shadeAt home in this nation we’ve madeOne last time
Friday, November 11, 2016
The question in the title of this post are inspired by today's national holiday, Veterans Day. Here are some general data thoughts/realities as part of an effort to try to answer these questions:
1. According to these latest BJS statistics, we can reasonably estimate that at least 5% of the current federal prison population are veterans. The BJS report starts by noting that "In 2011–12, an estimated 181,500 veterans (8% of all inmates in state and federal prison and local jail excluding military-operated facilities) were serving time in correctional facilities." But a variety of demographic realities would suggest that veterans are probably underrepresented among the types of prisoners serving time in federal prison.
2. So, to answer my first question based on this working estimate of at least 5%, we should expect that nearly 50 of the 944 federal prisoner commutations by Prez Obama have been to veterans. But this is really a statistical guess because there could be direct or indirect reasons why veteran status made a candidate more likely to garner Prez Obama's attention or why the pool of long-sentenced drug offenders now only getting clemency these days are less likely to include veterans.
3. And, to answer my second question based on this working estimate of at least 5%, we should expect that nearly 10,000 veterans make up of current federal Bureau of Prisons population which totals over 191,000. If we were to entertain the supposition that only 1 out of every 100 current veteran federal prisoners are likely to be good candidates for clemency, that would still mean 100 current federal prisoners would now be commutation-worthy. (And, if we want to think about all veterans with a federal conviction who might seek or merit a pardon, there could well be thousands of good veteran clemency candidate worth thinking about on this Veterans Day.)
Though the day is still young, I am not expecting that Prez Obama will celebrate his last Veterans Day in the Oval Office by making a special effort to grant commutations or pardons to a special list of veterans. But Prez-Elect Trump, who made taking care of the vets a consistent campaign theme, perhaps might be encouraged by sentencing reform advocates to plan to celebrate his future Veterans Days in the Oval Office by looking to use his clemency powers in this kind of special and distinctive way. After all, a key slogan for this day is to "honor ALL who served," not just those who stayed out of trouble after serving.
Some very old prior related posts:
- Thinking about sentenced troops on Veterans Day
- How many vets, after serving to secure liberty, are now serving LWOP sentences?
- My amicus effort to support our troops
- Should prior military service reduce a sentence?
- How about a few clemency grants, Prez Obama, to really honor vets in need on Veterans Day?
- Are special jail facilities for veterans (and other special populations) key to reducing recidivism?
November 11, 2016 in Clemency and Pardons, Criminal justice in the Obama Administration, Criminal justice in the Trump Administration, Offender Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)
Thursday, November 10, 2016
"Revitalizing the Clemency Process"
The title of this post is the title of this recent lengthy article authored by Paul Larkin which is available via SSRN (and which I hope someone can now put on the required reading list for the Trump transition team). Here is the abstract:
St. Anselm once asked how a perfectly just God could also be merciful, since perfect justice and almighty grace could not seemingly coexist. Fortunately, the criminal justice system does not need to answer that question, one that has proven inscrutable for theologians and philosophers, because its assumptions do not apply to our system. An earthly judicial system will never be able to administer justice perfectly and cannot disburse mercy even approaching the quality of the divine. But the clemency power can try to achieve as much of an accommodation between those two goals as any human institution can. Unfortunately, however, our recent span of presidents, attuned more to political than humanitarian considerations and fearing the electoral wrath of the voters for mistaken judgments, have largely abandoned their ability to grant clemency in order to husband their political capital for pedestrian undertakings. Far worse, others have succumbed to the dark side of “the Force,” have used their power shamefully, and have left a stain on clemency that we have yet to remove.
We now have reached a point where that taint can be eliminated. There is a consensus that the clemency process can and should be reformed. The problem lies not in the power itself, but in the process by which cases are brought to the President for his review and maybe in the people we have elected to make those decisions. The Office of the Pardon Attorney should be transferred from the Department of Justice to the Executive Office of the President, and the President should select someone to fill that position. That revision to the clemency process should help us see a return of the necessary role that clemency can play in a system that strives to be both just and merciful.
Friday, November 04, 2016
Another week and another big batch of clemencies from Prez Obama
As this new USA Today article highlights, "President Obama's decision to grant 72 more commutations Friday — just before getting on Air Force One for a two-city campaign tour of North Carolina — shows how far he's gone in his efforts to "reinvigorate" the pardon process." Here is more:
Just a year ago, it might have been unthinkable for a president to use his constitutional power to shorten sentences so close to an election, regardless of who's on the ballot. "Commutations a week before an election? That's a wow factor of 10!" said P.S. Ruckman Jr., a political scientist who has studied, among other things, the timing of presidential clemency.
Obama has now granted 170 commutations in just the past eight days, bringing the total for his presidency to 944. It's the largest number of commutations in any single year in history, and represents an exceptional "surge" in the president's clemency power in his last year.
"What President Obama has done for commutations is unprecedented in the modern era." White House Counsel Neil Eggleston said in a statement. "The president is committed to reinvigorating the clemency authority, demonstrating that our nation is a nation of second chances, where mistakes from the past will not deprive deserving individuals of the opportunity to rejoin society and contribute to their families and communities."
Most of Obama's pardons have been through his clemency initiative, which seeks to reduce the long mandatory-minimum sentences meted out under sentencing guidelines from the late 1980s through the 2000s....
The frequency with which Obama is now granting commutations has encouraged some advocates who had been urging the president to "vastly increase the pace" of the effort. "The Obama administration has said it was committed to ever more grants, and it seems quite clear that the president’s actions are matching his words," said Cynthia Roseberry, the manager for Clemency Project 2014, a coalition of lawyers working on commutation cases to present to the president....
Of the 72 commutations granted Friday, 17 were for inmates serving life sentences.
Thursday, November 03, 2016
"A Proposal to Restructure the Clemency Process — The Vice President as Head of a White House Clemency Office"
The title of this post is the title of this interesting new essay authored by Paul Larkin and now available via SSRN. Here is the abstract:
The need for reconsideration of the federal clemency process is a real one, and there is a consensus that the Justice Department should no longer play its traditional doorkeeper role. Using the vice president as the new chief presidential clemency adviser offers the president several unique benefits that no other individual can supply without having enjoyed a prior close personal relationship with the chief executive.
Whoever is sworn into office at noon on January 20, 2017, as the nation’s 45th President should seriously consider using as his principal clemency adviser the person who was sworn into the vice presidency immediately beforehand. The president, clemency applicants, and the public might just benefit from that new arrangement.
Thursday, October 27, 2016
Prez Obama grants sentence commutations to 98 more federal offenders
As reported in this new USA Today article, "President Obama granted 98 more commutations to federal inmates Thursday, bringing the total for this year to 688 — the most commutations ever granted by a president in a single year." Here is more:
In all, he's now shortened the sentences of 872 inmates during his presidency, more than any president since Woodrow Wilson. The actions were part of Obama's extraordinary effort to use his constitutional power to rectify what he sees as unduly harsh sentences imposed during the "War on Drugs." Through a clemency initiative announced in 2014, he's effectively re-sentenced hundreds of non-violent drug dealers to the sentences they would have received under today's more lenient sentencing guidelines....
But while Obama's commutation grants get most of the attention, he's also been quietly denying a record number of commutations at the same time — a function of the unprecedented number of applications submitted through the clemency initiative. On Oct. 6, for example, the White House announced that Obama granted 102 commutations. It wasn't until a week later that the Justice Department updated its clemency statistics to reveal that he had denied 2,917 commutation petitions on Sept. 30.
Some advocates for inmates say there's not enough transparency about why some get clemency while others wait. "We want answers for the families who are still waiting for their clemency," said Jessica Jackson Sloan, national director of the pro-clemency group Cut 50. "There needs to be more communication about why people are being denied."
As of Oct. 7, Obama has granted just 5.5% of commutation applications — still more than many of his predecessors. President George W. Bush granted just 0.1% of commutation applications that reached his desk, but was more generous with full pardons at this point in his presidency.
"While there has been much attention paid to the number of commutations issued by the president, at the core, we must remember that there are personal stories behind these numbers," White House Counsel Neil Eggleston wrote on the White House web site. "These are individuals -- many of whom made mistakes at a young age — who have diligently worked to rehabilitate themselves while incarcerated." Eggleston said 42 of the inmates who had received commutations were serving life sentences.
Sixty-three of the inmates granted presidential mercy on Thursday will still have two years or more to serve on their sentences, part of a recent White House strategy of issuing deferred "term" commutations instead of the more common time-served commutations. The longest of those: David Neighbors, a 34-year-old man from Evansville, Ind., whose 2008 life sentence for cocaine trafficking Obama commuted to 30 years. That means he has up to 22 more years left to serve.
And 42 of the commutations granted Thursday have strings attached. As part of an increasing practice of attaching conditions to his commutations, Obama required inmates with a documented history of drug use to enroll in a residential drug treatment program before being released.
The full statement from White House Counsel Neil Eggleston is available at this link, which is also the source for the graphic reprinted above.
Tuesday, October 18, 2016
Oregon Gov pledges to continue moratoriaum on executions if elected to a new term
As reported in this local article from Oregon, headlined "Brown to maintain death penalty moratorium," the chief executive in the Beaver State is promising not to execute those laws calling for excutions of condemned murderers. Here are the details:
The governor plans to continue a state moratorium on capital punishment that would extend through her upcoming term if elected, a spokesman said Monday morning. "Gov. Kate Brown has made clear her personal opposition to the death penalty and her support of the current moratorium on Oregon executions," spokesman Bryan Hockaday told The Oregonian/OregonLive.
Former Gov. John Kitzaber announced the moratorium two weeks before the scheduled 2011 execution of Gary Haugen, who then sought to speed his execution after waiving all appeals. After Brown took over the state's top office in February 2015, she said she would continue the stoppage of public executions until further study.
"Gov. Brown directed her General Counsel to conduct a review of the policy and practical implications of Oregon's capital punishment law," Hockaday said. "Though no executions are imminent, Gov. Brown will continue the death penalty moratorium, because after thoroughly researching the issues, serious concerns remain about the constitutionality and workability of Oregon's capital punishment law." Hockaday declined to immediately release, pending a records request, any study or records related to how the governor made her decision.
Reasons for her decision include the "uncertainty of Oregon's ability to acquire the necessary execution drugs required by statute," Hockaday said by email. "Looking nationally, America is on the verge of a sea change both by legislation and, more profoundly, through court decisions. The past few years have already seen a major shift in the landscape on capital punishment law, and Gov. Brown expects more changes are on the horizon."
Oregon voters approved the death penalty in 1984, and the state and U.S. Supreme Courts have repeatedly upheld its legality. Oregon's death row has 34 prisoners, all of whom stay in their cells 23 hours a day. In the past five decades, the state executed two men -- both in the 1990s. Those men had essentially volunteered for the death penalty after waiving their rights to appeal before their deaths.
Clatsop County District Attorney Josh Marquis, an outspoken supporter of the death penalty in Oregon, a month ago met with Brown counsel Ben Souede about the issue. After hearing the news Monday, Marquis said he was seething. "If she really believes the death penalty is so wrong, then she should have the guts to commute all those sentences," Marquis said.
If she were to take that extraordinary step, Marquis said about six or seven prisoners on death row could be released to the public within a year because they would qualify for an immediate parole hearing. He said those prisoners were sentenced after voters approved the death penalty and before the state adopted life sentences without parole in the early 1990s.
No executions may be imminent, Marquis argued, but at least three cases are pending in Oregon where defendants face aggravated murder charges, which bring a death penalty sentencing option if convicted. Brown's announcement could make it easier for defense attorneys to persuade jurors not to impose the death penalty, he said.
Saturday, October 15, 2016
Federal inmate refuses Prez Obama's commutation
This USA Today article, headlined "Obama grants clemency to inmate — but inmate refuses," reports on a notable response by one federal inmate to receiving clemency. Here are the interesting details and some historical context:
When President Obama announced a program to grant executive clemency to drug offenders given long mandatory sentences, Arnold Ray Jones did what more than 29,000 federal inmates have done: He asked Obama for a presidential commutation. And then, after it arrived on Aug. 3, he refused to accept it.
Jones’ turnabout highlights the strings that come attached to an increasing number of Obama’s commutations: In this case, enrollment in a residential drug treatment program — which has been a condition of 92 of Obama commutation grants. Jones is the first to refuse that condition.
If Jones had agreed to complete the the program, he would be out in two years. He still has six years left on his original 2002 sentence for drug trafficking, but Jones may be counting on getting time off for good behavior, which would have him released in April 2019 — eight months longer than if he had accepted the commutation. Jones, 50, is in a low-security federal prison in Beaumont, Texas.
The unusual rejection came to light last week, when Obama commuted the sentences of 102 more federal inmates. With the 673 previous commutations granted, the total should have been 775 — but the White House accounting had only 774. At about the same time, the Department of Justice updated its online record of Obama's commutations and updated Jones' entry with the notation: "condition declined, commutation not effectuated."
The White House and the Justice Department declined to talk about the specifics of the case. But inmate records that Jones submitted as part of his court case show that he used crack cocaine weekly in the year before his arrest, and that drug treatment programs he's completed in the past have been unsuccessful. The Bureau of Prisons describes its Residential Drug Abuse Program as its most intensive treatment program, where offenders are separated from the general population for nine months while participating in four hours of community-based therapy programs each day.
Jones' mother said Thursday that she was excited about the news of Obama's commutation and wasn't aware that it was rejected. "I don’t know about him declining or anything. I'm looking for my son to come home," said Ruth Jones, of Lubbock, Texas.
Unlike pardons, which represent a full legal forgiveness for a crime, commutations can shorten a prison sentence while leaving other consequences intact. And as Obama has increased his use of commutations in his last year in office, he's also gotten more creative in adapting the power to fit the circumstances of each case. Unlike the more common "time served" commutations, which release a prisoner more or less immediately, many of his commutations since August have been "term" commutations, which have left prisoners with years left to serve on their sentences.
At the same time, Obama has also begun to attach drug treatment as a condition of many of those commutations, beginning with Jones' class of 214 inmates on Aug. 3 — the single largest grant of clemency in a single day in the history of the presidency.
That day, White House Counsel Neil Eggleston — who advises the president on commutation applications — explained the new drug treatment condition in a blog post on the White House web site. "For some, the president believes that the applicant’s successful re-entry will be aided with additional drug treatment, and the president has conditioned those commutations on an applicant’s seeking that treatment," Eggleston wrote. "Underlying all the president’s commutation decisions is the belief that these deserving individuals should be given the tools to succeed in their second chance."
Since Aug. 3, 22% of the commutations Obama has issued have required drug treatment.
Conditional pardons and commutations have been part of presidential clemency almost since the beginning. Presidents have used that power to induce prisoners to join the military, leave the United States or even — in the case of President Warren Harding's pardon of socialist Eugene Debs — that the clemency recipient travel to Washington to meet him. President Bill Clinton imposed conditions in 34 cases, usually insisting on drug testing....
But even with conditions, it's extremely rare for a recipient to reject clemency outright once it's granted. P.S. Ruckman Jr., a political scientist who has cataloged 30,642 presidential clemency actions dating back to President George Washington, has found just 16 clemency warrants returned to the president unaccepted.
Take President Herbert Hoover's 1930 commutation of Romeo Forlini, an Italian man serving a seven-year sentence after being caught by the Secret Service selling fraudulent Italian bonds. That commutation was granted "on condition that he be deported and never return to the United States." Forlini rejected that condition, and two weeks later Hoover granted him a full, unconditional pardon. "There's a guy who played his cards right," Ruckman said. (Alas, Forlini was arrested in New York in 1931 trying to pull off a similar scam on an undercover detective.)
Thursday, October 06, 2016
Prez Obama commutes 102 more federal prison sentences
I just saw via various news sources that President Obama issued 102 more commutations this afternoon. This blog post by the White House counsel reports the basics, and here is how it gets started:
Today, President Obama granted commutations to another 102 individuals who have demonstrated that they are deserving of a second chance at freedom. The vast majority of today’s grants were for individuals serving unduly harsh sentences for drug-related crimes under outdated sentencing laws. With today’s grants, the President has commuted 774 sentences, more than the previous 11 presidents combined. With a total of 590 commutations this year, President Obama has now commuted the sentences of more individuals in one year than in any other single year in our nation’s history.
While he will continue to review cases on an individualized basis throughout the remainder of his term, these statistics make clear that the President and his administration have succeeded in efforts to reinvigorate the clemency process. Beyond the statistics, though, are stories of individuals who have overcome the longest of odds to earn this second chance. The individuals receiving commutation today are mothers and fathers, sons and daughters, and in some cases grandparents. Today, they and their loved ones share the joy of knowing that they will soon be reunited.
Tuesday, October 04, 2016
On eve of VP debate, a deep dive into "Tim Kaine’s Long, Conflicted History With The Death Penalty"
BuzzFeed News reporter Chris Geidner (who just happens to be one of my favorite former students) did some important yeoman's work recently by looking closely at Democratic VP candidate's long professional engagement with capital punishment. The subheadline of BuzzFeed's lengthy report highlights its themes: "As a lawyer, the Democratic vice presidential nominee took cases defending death-row inmates, arguing that parts of Virginia’s death penalty process made the system 'shockingly unequal.' When he was governor, however, he allowed executions to proceed, even when some of those issues were raised again." I recommend the piece in full, and here is how it gets started:
In 2005, Tim Kaine faced a tight race for governor. He was running against Jerry Kilgore, then the state’s attorney general, and Kilgore was hitting him hard on the death penalty.
Two decades earlier, Kaine had arrived in Virginia a new lawyer who immediately called up the ACLU and asked how he could help. When he was asked to take over a death penalty appeal, he initially turned it down — but then changed his mind, believing that he had to put his principles to work. “The essence of human life is probably suffering and pain,” he would tell the Richmond Times-Dispatch, discussing the death penalty and his Catholicism. “The thing that redeems that is the presence of God in every person.”
Kaine took on representation of Richard Whitley — sentenced to death for a brutal murder in 1980 — and spent more than two years trying, ultimately unsuccessfully, to stop his execution. For Kaine, it wasn’t just about making sure an adversarial system worked properly — he called the death penalty in America “outrageous” in the extensive interview with the Times-Dispatch. Whitley was just the first of a handful of death row inmates that Kaine would try to keep from execution over the course of 15 years, working on behalf of the kind of convicted murderers whose stories do not make for sympathetic coverage.
And, in 2005, Kilgore reminded voters of just that. His campaign produced television ads that featured the family members of people killed in Virginia. In one, the wife of a police officer killed by “a drug dealer illegally in this country” who was on death row, expressed a concern that Kaine would put in place a death penalty moratorium. In another, the father of the man killed by one of the death row inmates who Kaine had represented said that Kaine’s death penalty opposition was so extreme that the would-be governor wouldn’t support the death penalty for Adolf Hitler.
Kaine had made a decision early on in his campaign that the response would be to reiterate his personal opposition to the death penalty, to explain that the position was informed by his Catholic faith, and then to say that he would follow the law and enforce the death penalty as governor. When the attack ads ran, the response ad had already been prepared. The attack didn’t appear to do any damage in the long run, and it may even have turned some voters against Kilgore because the ads were seen as unfair — or even as attacking Kaine’s faith. Kaine ultimately won the race on Election Day, 52%-46%, and took office on Jan. 14, 2006.
Less than three months later, Kaine would be faced with the convergence of two threads in his life — his work as a capital defense lawyer and his promise to enforce the death penalty — when he received a petition seeking executive clemency for Dexter Lee Vinson on April 13, 2006. Vinson was scheduled to be executed two weeks later, and his lawyers, including those from the Virginia Capital Representation Resource Center, held out hope that the new governor would take action to halt the scheduled execution.
In the clemency petition, obtained by BuzzFeed News, the lawyers wrote, “If this execution is carried out as scheduled, troubling questions about whether Vinson is innocent of the crimes for which he will be put to death will remain unresolved.” Specifically, the lawyers wrote, “The unique combination of newly discovered evidence, undeveloped evidence, and singular circumstances of Vinson’s case rattle the confidence the Commonwealth must have before taking an irremediable action like execution.”
Kaine denied clemency to Vinson and his execution took place on April 27, 2006, the first of 11 executions that took place under Kaine’s governorship. In that time, Kaine only commuted one death sentence, that of Percy Walton, who faced the death penalty for three murders. In 2008, Kaine concluded Walton was not mentally competent to face execution and commuted his sentence to life in prison.
“What I told Virginians was, ‘I’m against the death penalty, but I’ll uphold the law,’ and I did that,” Kaine said this June in a C-SPAN interview about his life and career. Of considering, and ultimately rejecting, most of the clemency petitions that came before him, he said, “Very, very difficult — the hardest thing in public life I’ve had to do was that. … I grappled with the cases, but only gave relief to people who I felt had made a case that they were entitled to clemency.”
Over the course of the past three decades, Tim Kaine’s experience with the death penalty is far more complex and nuanced than that of any other major party candidate for the presidency or vice presidency in the modern era of the death penalty. Kaine has represented multiple people on death row, seeking to highlight what he has described as a “shockingly unequal” system, and he also has governed one of the few states that has continued to carry out executions regularly over the past decade.
The questions Kaine raised as a defense lawyer were mostly related to process — from the time given for federal court review of cases and the rules that Virginia state courts had for review of capital cases to the quality of the lawyers provided to criminal defendants in those cases and the way those lawyers carried out that defense — but that process, as Kaine said at the time, is sometimes the difference between life and death. “If you had enough money to pay” for a top-tier criminal defense attorney at trial, he said at the time of Whitley’s execution, “you’re not going to get the death penalty.”
And yet, a decade later, in his four years as governor, Kaine found himself in the position of denying clemency requests in cases where those and other similar issues were being raised by people facing execution under his watch.
Friday, September 16, 2016
Detailing interesting sentencing dynamics in the latest batches of "term" commutations by Prez Obama
USA Today has this great new article highlighting an especially interesting aspect of the most recent clemency work by President Obama. The piece is headlined "For Obama, a shift in clemency strategy," and here are excerpts:
For 126 federal inmates who received presidential clemency last month, the good news might have come with a dose of disappointment. President Obama had granted their requests for commutations, using his constitutional pardon power to shorten their sentences for drug offenses. But instead of releasing them, he left them with years — and in some cases, more than a decade — left to serve on their sentences.
As Obama has begun to grant commutations to inmates convicted of more serious crimes, Obama has increasingly commuted their sentences without immediately releasing them. These are what are known as "term" commutations, as opposed to the more common "time served" commutations, and they represent a remarkable departure from recent past practice. Unlike a full pardon, commutations shorten sentences but leave other consequences of the conviction in place.
A USA TODAY analysis of Obama's 673 commutations shows a marked change in strategy on his clemency initiative, one of the key criminal justice reform efforts of his presidency. Before last month, almost all of the inmates whose sentences were commuted were released within four months, just long enough for the Bureau of Prisons to arrange for court-supervised monitoring and other re-entry programs. But in the last two rounds of presidential clemency in August, 39% of commutations come with a long string attached: a year or more left to serve on the sentence.
The strategy has also allowed Obama to commute the sentences of even more serious offenders. Before last month, 13% of inmates receiving clemency had used a firearm in the offense. For those granted presidential mercy last month, it was 22%. Through lawyers in the Justice Department and the White House Counsel's Office, the president is effectively recalculating the sentences using the federal guidelines in effect today — as opposed to the harsher penalties mandated by Congress in the 1980s and '90s.
While previous presidents have granted term commutations on a case-by-case basis — President Bill Clinton required a Puerto Rican nationalist convicted of seditious conspiracy to serve five more years, and President Richard Nixon made a Washington, D.C. murderer serve another decade — Obama appears to be the first to employ them as a matter of policy. "There are a number of cases where it’s a genuine re-sentencing. It’s unprecedented,” said former pardon attorney Margaret Love, who served under Presidents George H.W. Bush and Clinton. “That signals to me that the power is being used in a way it’s never been used before.”
There may also be a political calculation to the new clemency strategy, reflecting a general understanding that there's no guarantee that a President Hillary Clinton or Donald Trump would continue Obama's signature clemency initiative. While it's not entirely settled, most scholars believe a commutation warrant cannot be revoked by a future president once it's granted, delivered and accepted.
Explaining his philosophy on commutation power at a press conference last month — the day after he set a single-day clemency record by granting 214 commutations — Obama gave the example of an inmate who has already served a 25-year sentence but would have only served 20 if sentenced under today's laws. "What we try to do is to screen through and find those individuals who have paid their debt to society, that have behaved themselves and tried to reform themselves while incarcerated, and we think have a good chance of being able to use that second chance well," he said.
But increasingly, recipients of Obama's mercy are years away from paying their debt to society.
White House Counsel Neil Eggleston, who's the last stop for a clemency application before it goes to the president, acknowledged the change in strategy on Aug. 3, the day Obama issued 214 commutations. "While some commutation recipients will begin to process out of federal custody immediately, others will serve more time," he wrote in a blog post. "While these term reductions will require applicants to serve additional time, it will also allow applicants to continue their rehabilitation by completing educational and self-improvement programming and to participate in drug or other counseling services."
Critics say Obama is no longer reserving his clemency power for extraordinary circumstances, but instead substituting his own judgment for that of Congress and the courts. "To impose these things, and to have the commutation take effect after he leaves office — and even after the presidency of someone who succeeds him — seems inappropriate to me," said Rep. Bob Goodlatte, R-Va., chairman of the House Judiciary Committee.
But Goodlatte also acknowledged that the power to "grant reprieves and pardons for offenses against the United States" is one of the Constitution's most ironclad powers, and amending the Constitution would be difficult....
"He has effectively set himself up as a judge, reviewing thousands of cases where they’ve been prosecuted, convicted, sentenced and appealed beyond the district court level. And he's undercut all that work by commuting their sentences," Goodlatte said. "I think the president is taking a misguided approach to this issue when he tries to set himself up as a super-judge who would oversee the actions of a separate branch of government."
Mary Price, who has represented drug offenders seeking presidential clemency, said the president is the only person who can act under present law. "In our system, there's a heavy emphasis on finality of judgment," said Price, chief counsel for Families Against Mandatory Minimums, which advocates for changes in drug laws. "The court has no jurisdiction to go back and change that sentence." For inmates with one or two years left on their Obama-shortened sentence, the president's clemency could motivating them to prepare for reentry into society, Price said. One drug treatment program gives inmates an additional year off their sentence if they complete it.
While Obama's re-sentencing strategy is a departure from recent practice, experts note that presidents have granted term commutations before. For example, any commutation of the death penalty to life imprisonment would fit the definition of that the Justice Department calls a "term commutation," as opposed to the more typical "time served" commutation.
And if recent presidents haven't done it that way, it's more because they've granted so few commutations to begin with. As the White House is quick to note, Obama has now commuted the sentences of more prisoners than the previous 10 presidents — that's Dwight Eisenhower through George W. Bush — combined. "Is Obama doing it at some unprecedented level? I don't know. Maybe," said P.S. Ruckman Jr., a political scientist who has analyzed data on presidential clemency back to George Washington. "But I am not so sure what to make of that either," he said. "That's what checks and balances are all about."
September 16, 2016 in Clemency and Pardons, Criminal justice in the Obama Administration, Drug Offense Sentencing, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)
Saturday, September 10, 2016
"Fewer Hands, More Mercy: A Plea for a Better Federal Clemency System"
The title of this post is the title of this timely new paper by Mark Osler now available via SSRN. Here is the abstract:
The constitutional pardon power has generated more controversy than mercy over the past three decades. Even President Obama, who has pursued a focused clemency initiative, has struggled to meet historical standards. While changing ideas relating to retribution play a role in this decline, there is another significant factor at play: too much bureaucracy.
Beginning around 1980, a review process has evolved that is redundant and biased towards negative decisions. No fewer than seven levels of review take place as cases course through four different federal buildings, a jagged path that dooms the process. For years, this bureaucracy stymied even President Obama’s intention to reduce prison populations; the relative success of his clemency initiative came despite this bureaucracy, not because of it, and only after seven and a half years of futility.
This article analyzes the development of this system and the problems it creates before offering solutions based on the experience of state governments and President Ford’s successful use of a Presidential Clemency Board.
Wednesday, August 31, 2016
Clemency advocate explains her view on "How to inspire criminal justice reform"
The title of this post is drawn in part from the headline of this lengthy new CNN commentary authored by Brittany K. Barnett-Byrd, whom CNN describes as "an attorney and criminal justice reform advocate [who] has handled several successful clemency petitions, including the nationally reported cases of Sharanda Jones and Donel Clark." Here are excerpts from her commentary:
As the daughter of a formerly incarcerated mother, I know that when one person goes to prison, the whole family goes to prison. Mass incarceration has devastated families and communities across America. The United States makes up nearly 5% of the world's population and almost 25% of the world's prison population. Today, there are over 2.2 million people incarcerated in this country.
The dramatic growth in incarceration as a result of the failed war on drugs cannot be ignored. At the state level, the number of people in prison for drug offenses has increased tenfold since 1980. In addition, nearly half of all federal prisoners are serving time for drugs.
While the statistics are astonishing, to truly understand the issue, we must look beyond the numbers and see the human capital sacrificed in the name of misguided appeals for law and order. The human element is rarely addressed but is necessary to inspire and drive the change needed to reform our criminal justice system.
#17061-112. This number was assigned to my client Corey Jacobs 17 years ago when he began serving a life sentence in federal prison for nonviolent drug convictions. Corey had no prior felony convictions. But with no parole in the federal system, he has been fundamentally condemned to die in prison.
Over two decades ago, Corey, now 47, began dealing drugs with a small group of college friends in Virginia. Though Corey was not a kingpin, he received an essential death sentence largely because three of his co-conspirators testified against him in exchange for reduced sentences. Due to federal laws, Corey was held accountable for all "reasonably foreseeable" quantities of drugs attributed to the five other people involved in the conspiracy. Absolutely no dimension of his conduct was violent.
Despite facing the grim reality of dying in prison, Corey has worked diligently to prove that he is deserving of a second chance. He has devoted himself to extensive rehabilitative programming, completed three self-improvement residential programs and received over 100 learning certificates that have enhanced his education and personal development....
While there is little doubt that a prison sentence was warranted in Corey's case, he doesn't deserve to die in a cell because of it. Life in prison without the possibility of parole is, short of execution, the harshest punishment available in America. It screams that a person is beyond hope, beyond redemption. It suffocates mass potential as it buries people alive. And, in Corey's case, it is a punishment that does not fit the crime.
Recently, I went to visit Corey in prison to discuss his pending clemency petition. As I sat in the bleak, cold concrete interior of the attorney-client visiting room, I was struck by Corey's remorse, intelligence and dedication to bettering himself. I learned Corey is an avid meditator. He mentioned how he once read nature could enhance the meditation experience, but he had not seen a tree in years. The prison yard is surrounded by daunting, gray brick buildings. The rest of our conversation was a blur because I could not move past the fact that he had not seen a tree. A tree.
Though I never imagined that visiting a United States Penitentiary would change the trajectory of my legal career, the state of consciousness I achieved after meeting Corey empowered me. I no longer wanted to be just a lawyer. I wanted to use this platform to promote the greater good. Because of thousands of cases like Corey's, three months ago I resigned from my corporate law job to become a full-time advocate for criminal justice reform....
Last year the Sentencing Reform and Corrections Act of 2015 (S. 2123) was introduced into Congress. This crucial bill would pull back mass incarceration and save taxpayers billions of dollars by reducing mandatory minimums and making the Fair Sentencing Act of 2010 retroactive. And yet despite unprecedented bipartisan support, it still has not come to the Senate floor for a vote. We must urge Congress to pass this overdue, life-changing legislation.
But Congress is not the only branch of government beginning to address this injustice. Obama has shown he is committed to reinvigorating the clemency process through his administration's groundbreaking initiative to prioritize clemency applications for individuals like Corey....
Our criminal justice system is tangled in overcrowded prison cells, draconian sentences, shameful sentencing disparities, burdensome incarceration costs and heartbroken children and families. Reform is desperately needed. The time is now for the people who hold the levers of power to believe in humanity and to simply do the right thing. After all, there is nothing more urgent than freedom.
Tuesday, August 30, 2016
Continuing his notable clemency momentum, Prez Obama grants 111 more commutations
As reported in this new NPR piece, "President Obama shortened the prison sentences of 111 inmates Tuesday, including 35 people who had expected to spend the rest of their lives in federal custody, authorities told NPR." Here is more about today's exciting clemency news and its context:
Word of the new batch of clemency grants came as the second-in-command at the Justice Department told NPR that lawyers there have worked through an enormous backlog of drug cases and, despite doubts from prisoner advocates, they will be able to consider each of the thousands of applications from drug criminals before Obama leaves office in 2017.
"At our current pace, we are confident that we will be able to review and make a recommendation to the president on every single drug petition we currently have," Deputy Attorney General Sally Q. Yates said.
The early releases apply to mostly non-violent drug offenders who would have received lighter punishments if they committed the same crimes today. The new commutations mean this White House has granted 673 commutations, more than the past 10 presidents combined. Tuesday's grants follow 214 more earlier this month.
In February the new pardon attorney, Robert Zauzmer, asserted that stacks of petitions would not be left on his table next year. But that had long been in doubt. After the Justice Department and the White House launched the initiative for drug offenders about two years ago, white collar criminals, sex predators and violent criminals sent their applications, too. Those petitions flooded volunteer lawyers and officials in the Office of Pardon Attorney. The pardon attorney, Deborah Leff, ultimately resigned after raising alarms about insufficient resources to do the job, which she said could "change the lives of a great many deserving people."
Lawyers working for prisoners said there's still a lot more work for the administration to do. Mark Osler, who led an effort by three dozen law professors and advocates to get the White House to pick up the pace, estimated that 1,500 drug prisoners should win commutations based on the administration's criteria. By his math, that means the president has not yet moved on more than half of the inmates who should win shorter sentences....
In an interview, White House Counsel Neil Eggleston said the president gives each request a special, individualized review, keeping in mind their crimes, their record in prison and whether they merit a second chance, to walk their grandchildren to school or hug their families. Eggleston said the president "doesn't think of it as a number he wants to reach."
"The president's view is that he would like to grant as many worthy petitions as get to his desk and I think he's going to tell me to put worthy petitions on his desk until the last day, and that's what I intend to do," Eggleston said.
Eggleston has this new posting at the White House blog with the chart reprinted here under the heading "President Obama Grants 111 Additional Commutations, the Most Commutations Granted in a Single Month." Here are excerpts:
Earlier this month, President Obama granted commutation to 214 federal inmates, the most commutations granted in a single day by any President in this nation’s history. With today’s additional 111 grants, the President has commuted the sentences of 325 people in the month of August alone, which is the greatest number of commutations ever granted by a president in a single month. The 325 commutations the President has granted in just one month is more than any president granted in a single year for nearly a century.
Today’s 111 commutation grants underscore the President’s commitment to using his clemency authority to provide a second chance to deserving individuals. To date, President Obama has granted 673 commutations: more commutations than the previous ten presidents combined. More than one-third of the President’s commutation recipients, or 232 individuals, were serving life sentences....
While I expect that the President will continue to grant commutations through the end of this administration, the individualized nature of this relief highlights the need for bipartisan criminal justice reform legislation, including reforms that address excessive mandatory minimum sentences. Only the passage of legislation can achieve the broader reforms needed to ensure our federal sentencing system operates more fairly and effectively in the service of public safety.
Friday, August 26, 2016
"Where Recreational Marijuana Is Legal, Should Those in Prison for Weed Crimes Get a Puff, Puff, Pass?"
The question in the title of this post is not only one that I have given a lot of thought to in recent years, but also the headline of this recent article from The Root. The piece usefully highlights that California's marijuana legalization initiative to be voted upon in November speaks a bit to this issue. Here are excerpts from the piece:
Twenty years ago, Rico Garcia was 21 when he got caught up in a marijuana sting in Colorado with a friend who wanted to buy some weed. The seller turned out to be a police informant, and Garcia and his friend were arrested. “The police came and arrested us and said we were selling weed,” says Garcia, now a 41-year-old marijuana advocate who runs Cannabis Alliance for Regulation and Education. “My friend said it was his, but … under Colorado law at the time, 8 ounces was possession with intent and I got a felony.”
Garcia says he was a first-time offender and a public defender got him to agree to accept a plea deal. He didn’t realize the full ramifications of having such a charge on his record. “They said, ‘No jail’ — that’s how they get brown people — and I said, ‘That sounds nice,’” recalls Garcia, who is Puerto Rican. He says he got four years’ probation and was released from it in two years, but the felony is still affecting his life. “You’re pretty much disqualified for housing. … Most who could give you a loan for a car or house give you a different rate or simply won’t lend to you. You can’t own a firearm, even in a pro-gun state; you can’t get any government grants or hold certain occupational licenses.”
Even though medical and recreational use of marijuana is legal under most circumstances in Colorado, Garcia’s felony precludes him from being part of the weed boom the state is enjoying, a problem that plagues many people of color trying to get into the weed business. There’s also a debate about the fate of nonviolent offenders currently incarcerated for weed crimes in states where recreational marijuana is now legal. Some marijuana advocates support the idea of state pardons for offenders incarcerated for such crimes as more states consider legalizing recreational marijuana....
[T]here has been some debate among marijuana advocates over whether lawmakers and voters would support such an effort involving weed crimes because they had to walk such tightropes to get legislation for medical and recreational marijuana approved in the first place. California — where most advocates expect Proposition 64, the Adult Use of Marijuana Act, to pass in November in a state that has had a medical-marijuana program for 20 years — could set a national standard for the fate of nonviolent marijuana offenders caught up in the prison system.
Not only does Proposition 64 reduce the current penalty for selling marijuana for nonmedicinal purposes from up to four years in prison to six months in jail and a fine of up to $500, but it also includes big changes for those previously convicted of marijuana crimes. Those serving sentences for activities that are either legal or subject to lesser penalties under the new measure would be eligible to be resentenced. Plus, those who have already done their time could apply to have their convictions removed from their records....
But the politics surrounding whether nonviolent marijuana users should be pardoned or allowed to have their records expunged completely are complicated. In Colorado, Andrew Freeman says, people can apply to have their felony conviction for a marijuana offense that is no longer illegal under Amendment 64 changed to a misdemeanor. But that stays on your record.
Freedman notes that few of the people still in prison in Colorado for marijuana are there only for a single, nonviolent offense, which would make it easy for them to be released. According to a 2014 report (pdf) by the state’s Department of Corrections, there are only 71 nonviolent marijuana offenders among Colorado’s 20,300 inmates....
Tom Angell at the Brooklyn, N.Y.-based Marijuana Majority breaks it down even further, saying that the pardoning of nonviolent marijuana offenders has been part of a general debate among advocates about what is the best, most comprehensive marijuana-reform proposal that can be put on the ballot and garner the support of voters.
“I think there’s some question as to whether a sufficient number of voters would be skittish about the notion of releasing people from prison en masse,” Angell says. “In an ideal world, we want to release all the marijuana offenders yesterday! We absolutely do. But this is politics and reality, and you can’t let the perfect become the enemy of the good. We need to achieve what is achievable today and build on those victories and keep getting wins on the scoreboard.”
This Root story usefully highlights why folks interested in criminal justice and sentencing reform ought to keep a special eye on discussions and developments with marijuana reform in California this election season. Moreover, as this review of some recent posts from my Marijuana Law, Policy & Reform blog should highlight, I see no shortage of interesting marijuana reform issues that ought to interest criminal justice and civil rights folks:
August 26, 2016 in Clemency and Pardons, Collateral consequences, Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Preparing for pot professing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)
Sunday, August 21, 2016
After court reversal of broader order, Virginia Gov to restory voting rights to 13,000 former felons on a "case-by-case" basis
This Washington Post article, headlined "Virginia’s McAuliffe to announce restoration of voting rights to 13,000 felons," report on the latest executive clemency move by a Governor eager to restore voting right after getting in trouble with his state's Supreme Court following his first bold effort. Here are the details and context:
Gov. Terry McAuliffe will announce Monday that he has restored voting rights to 13,000 felons on a case-by-case basis after Republicans and state Supreme Court justices last month stopped his more sweeping clemency effort.
McAuliffe’s planned action, confirmed by two people with knowledge of it, comes about a month after the Supreme Court of Virginia invalidated an executive order the Democratic governor issued in April. With that order, McAuliffe restored voting rights to more than 200,000 felons who had completed their sentences. McAuliffe said his original order would move Virginia away from a harsh lifetime disenfranchisement policy that hits African Americans particularly hard.
Republicans, incensed that it covered violent and nonviolent offenders alike, said the move was really a bid to add Democrat-friendly voters to the rolls ahead of November’s presidential elections, when the governor’s close friend and political ally, Hillary Clinton, will be on the ballot. Republicans also found the McAuliffe administration had mistakenly restored rights to 132 sex offenders still in custody and to several convicted murderers on probation in other states.
Contending that the governor had overstepped his authority by restoring rights en masse rather than case by case, GOP legislative leaders took him to court and won. Since 13,000 of the 200,000 felons had already registered to vote, the court ordered the state to once again put their names on its list of banned voters.
Immediately after that ruling, McAuliffe vowed to use an autopen to individually sign orders restoring rights. He promised to do the first 13,000 within a week and all 200,000 within two. “By the end of this week, I will have restored the rights of all 13,000,” McAuliffe declared last month.
Since then, the McAuliffe administration has acknowledged unspecified holdups but declined to provide a new timetable for restoring rights. The first hint came Friday, with the release of McAuliffe’s official schedule. At noon Monday, it said, he will appear at the Civil Rights Memorial on Capitol Square “to make major restoration of rights announcement.” A McAuliffe spokeswoman, Christina Nuckols, declined to provide more information.
McAuliffe will announce that he has restored voting rights to the 13,000 felons, making them free to register once again, according to the two people, who spoke on the condition of anonymity because they were not authorized to disclose his plans. McAuliffe also will lay out his plans for restoring rights to the remainder of the 200,000. A substantial majority of Virginians approve of McAuliffe’s original effort to restore felon rights, although they are closely split on his motivations, according to a new Washington Post poll....
Claire Guthrie Gastañaga, executive director of the American Civil Liberties Union of Virginia, said she would cheer another restoration plan — particularly one that restores rights before October, the registration deadline for voting in November. “We think it’s the right thing to do, and we’re hopeful it will get done in time for people to be able to register before the deadline,” she said.
Del. Robert B. Bell (R-Albemarle), a 2017 candidate for state attorney general who has led the charge against McAuliffe’s order, said he would watch any new restoration efforts closely because of the problems with the original order. “Given that his first order was unconstitutional and included a noncitizen sex offender in Peru, we will certainly want to review whatever he does on Monday very carefully,” Bell said.
Prior related posts:
- Virginia Governor, bolding using his executive clemency authority, restores voting rights to over 200,000 former felons!!
- Virginia Gov explains his big decision to use his clemency power to restore franchise
- Lots of discussion of felon disenfrachisement after Virginia Gov boldly restores voting rights
- Virginia Republicans go directly to state Supreme Court to try to undo Gov's clemency order restoring vote to former felons
- Split Virginia Supreme Court deems unconstitutional mass effort by Gov to restore felon voting rights
Thursday, August 18, 2016
New York Times editorial pushes for "Mercy on Texas’ Death Row" for condemned getaway driver
Today's New York Times has this notable new editorial discussing a notable capital case in Texas under the headline "Rare Chance for Mercy on Texas’ Death Row." Here are excerpts:
When it comes to capital punishment, there is not much official mercy to be found in the state of Texas. As 537 death row inmates were executed there over the last 40 years, only two inmates were granted clemency. The last commutation to life in prison occurred nine years ago, when Gov. Rick Perry, despite his formidable tally of 319 executions, chose to make an exception and spare a man convicted of murder under the state’s arcane and patently unfair “Law of Parties.”
This law in effect holds that someone waiting outside at the wheel of a getaway car deserves the same capital punishment as his associate inside who shoots and kills a store clerk. This is the rough equation that now finds Jeffrey Wood on death row in Texas, 20 years after his involvement in just such a crime. The actual killer was executed in 2002; Mr. Wood faces execution next Wednesday as a somehow equally culpable party, unless the state commutes his sentence to life in prison.
The Law of Parties has been on trial as much as Mr. Wood has in the arduous criminal justice process in which he faces death. With an I.Q. of 80 and no criminal history, Mr. Wood, who was 22 then, was initially found by a jury to be incompetent to stand trial. But the state persisted, and he was convicted in a slipshod proceeding in which no mitigating evidence or cross-examination was attempted in his behalf during the crucial sentencing hearing....
The theory underpinning the Law of Parties — that an accomplice deserves to die even though he did not kill the victim — has been abandoned as difficult to apply if not unjust in most state jurisdictions in recent decades. It holds that an accomplice should have anticipated the likelihood of a capital murder and deserves the ultimate penalty. Since the death penalty was restored in 1976, there have been only 10 executions in six states under accomplice culpability laws, in which defendants did not directly kill the victim, according to Texas Monthly. Five of them have been in Texas. Jared Tyler, Mr. Wood’s lawyer, who specializes in the state’s death row cases, says he has never seen a sentence of execution “in which there was no defense at all on the question of death worthiness.”
This is just one of many grounds for the clemency that four dozen evangelical leaders have recommended to avoid a gross injustice. The state parole board would have to make this recommendation, with the final decision by Gov. Greg Abbott, who has not granted clemency in 19 executions.
The Law of Parties stands as a grotesque demonstration of how utterly arbitrary capital punishment is. The only true course for justice in Texas is for the law to be scrapped and Mr. Wood’s life to be spared.
UPDATE: For more interesting and timely coverage of this case, check out this new Texas Tribune article headlined "State Rep. Leach Tries to Stop Jeff Wood Execution." Here is how the article gets started:
It’s not often that a staunch conservative loses sleep over imposition of the death penalty, but state Rep. Jeff Leach, R-Plano, says he is up nights over the impending execution of Jeff Wood.
The two-term legislator has spent the past week poring over court documents and speaking with the governor’s office and Texas Board of Pardons and Paroles, hoping to prevent what would be the state’s seventh execution of the year. Wood is set to die by lethal injection Aug. 24. “I simply do not believe that Mr. Wood is deserving of the death sentence,” Leach told the Tribune. “I can’t sit quietly by and not say anything.”
Wednesday, August 10, 2016
Reflections from those working hard to get their clients clemency
The National Law Journal has this notable new article headlined "Lawyers Reflect on Clemency Work After Obama Executive Action," and here are excerpts:
When President Barack Obama commuted the sentences last week of 214 nonviolent drug offenders, he changed the lives of many inmates who may never have expected to leave prison. The action also had a profound impact on defense lawyers involved in pursuing the clemency petitions that the president has now granted.
When criminal defense attorney James Felman calls down to the Coleman Penitentiary in Florida to inform his clients that their clemency petitions have been granted, he said the experience is sometimes a little awkward. Surrounded by guards in the warden's office — where prisoners are typically brought if they are in trouble or a loved one has died — the inmate may not exactly feel free to celebrate, Felman said. "It's not like they can start dancing," he said.
Felman, a partner at Kynes Markman & Felman in Tampa, saw five of his clients granted clemency on Aug. 3, when President Barack Obama commuted the sentences of 214 inmates — the highest number a president has ever granted in a single day. The move comes amid a broader effort by the president to reduce sentences for nonviolent drug offenders. Since 2010, Obama has granted 562 commutations and 70 pardons, more commutations than the last nine presidents combined.
Of Felman's clients to receive clemency last week, all were men convicted on nonviolent drug charges.... "You can't imagine a more rewarding experience as a lawyer," Felman said.
Felman, whose firm has successfully advocated for 12 clemency petitions, served as the chair of the American Bar Association Section of Criminal Justice from 2014 to 2015, and is a member of the steering committee for the Clemency Project 2014, a working group of lawyers who review clemency petitions. Through the project, inmates who qualify for clemency under the guidelines are assigned a lawyer, who works the case pro bono....
Marjorie Peerce, a New York partner at Ballard Spahr and a member of the project's steering committee, has been involved with the project since its inception, and supervises about 100 lawyers at her firm who work these cases. She estimated that the project had submitted about 1,500 petitions to the U.S. Office of the Pardon Attorney and had about 4,000 lawyers volunteering, both from criminal defense backgrounds and from unrelated fields. "The private bar really stepped up," Peerce said. Her firm had three clients granted clemency on Aug. 3, but she declined to discuss their cases specifically.
Sherrie Armstrong, a Washington environmental lawyer at Crowell & Moring, worked on behalf of Stephanie George, who had her life sentenced commuted in December 2013. Armstrong worked with George's sister to collect recommendation letters, including letters from a community pastor, an interested employer and George's children. Armstrong added that the writing style demanded by these clemency petitions differs from that of her normal style as an environmental lawyer. "You're not writing for a court. It's a more persuasive, emotional appeal," she said.
Monday, August 08, 2016
Great coverage and analysis of Prez Obama's recent clemency work at Pardon Power
Regular readers and/or hard-core clemency fans know that P.S. Ruckman over at the Pardon Power blog is a must-read whenever President Obama's gets his clemency pen out. Here are just some of many recent posts discussing the historic number of commutations that Prez Obama issued last week (basics here), and responding to some notable recent criticisms of what the Prez is up to:
Broad perspectives on the narrowness of recent federal clemency and sentencing reform efforts
Two of my favorite lawprof colleagues, Erik Luna and Mark Olser, remind me why they are among my favorites through this new Cato commentary titled "Mercy in the Age of Mandatory Minimums." Here are excertps:
Recently, we stood in a backyard eating barbecue with a man named Weldon Angelos. He was only a few weeks out of federal prison, having been freed some four decades early from a 55-year sentence for selling a small amount of marijuana while possessing firearms. Weldon was not among the 562 inmates whose sentences were commuted by President Obama, including Wednesday’s historic grant of commutation for 214 nonviolent prisoners. Instead, Weldon’s release was made possible through a negotiated motion by the government that, alas, cannot be replicated in other cases.
For a dozen years, Weldon had been the poster boy of criminal justice reform for liberals and conservatives alike. His liberation is cause for celebration for those who believed the punishment did not fit the crime. Nonetheless, the Angelos case remains a cautionary tale about both the inherent ruthlessness of “mandatory minimum” terms of imprisonment and the ineffectiveness of the Obama administration’s clemency initiative.
Mandatory minimum laws bar the consideration of facts upon which a sentencing judge would normally rely. In Weldon’s case, the law compelled a 55-year sentence. It didn’t matter that Weldon was a first-time offender with no adult record or that he was the father of three young children. Nor did it matter that he never brandished or used the firearms and never caused or threatened any violence or injury....
Most of all, it did not matter that the sentencing judge — a conservative Bush appointee known for being tough on crime — believed that the punishment was “unjust, cruel, and irrational.” Ultimately, the judge was bound not only by the mandatory minimum statute but also the Supreme Court’s jurisprudence, which largely acquiesces to prosecutors’ charging decisions while providing almost no check on excessive prison terms.
Absent a doctrinal reversal by the Supreme Court (don’t hold your breath), any meaningful safeguard against misapplication of mandatory minimums will have to come in the form of legislation from Congress or from the president through the application of the clemency power. As for the former, lawmakers are considering several [reform] bills... [that] are entirely laudable, but they are also quite modest. Indeed, the Senate bill passed in April expands some mandatory minimum provisions and adds a couple of new ones to the federal code....
The positive aspects of the reform bills should be supported all the same. Sadly, legislative efforts appear to be mired in an intramural fight among Republicans, as well as hindered by Democratic intransigence toward another worthy reform, namely, a requirement that law enforcement prove a culpable mental state rather than holding defendants strictly liable. Until lawmakers can agree on a means to prevent draconian sentences, clemency will remain the only remedy for such miscarriages of justice.
Unfortunately, the federal clemency system is also dysfunctional. Weldon’s petition for clemency was filed in November 2012 — and it then sat, unresolved one way or another, for three-and-a-half years. The support for the petition was unprecedented, spanning activists, academics and experts from every political camp imaginable. While Weldon is not wealthy and could not afford high-priced lobbyists or attorneys, the facts of his case drove the story onto the pages of leading news outlets. Yet nothing happened. Even when the Obama administration launched the “Clemency Project 2014” and Weldon’s case was accepted into that program, he languished in prison as the petition slogged through the seven vertical levels of review any successful clemency case must navigate.
Clemency is meant for cases like Weldon’s, where the requirements of the law exceed the imperatives of justice. The fact that a case like his cannot receive clemency from an administration dedicated to expanding the use of this presidential prerogative lays bare the root problem we face — too much process and bureaucracy coursing through a Department of Justice that bears a built-in conflict of interest....
It was thrilling to see Weldon free, eating off of a paper plate in the light of a Utah evening. He is just one of many, though, and systemic reform of both mandatory minimums and the clemency process should be an imperative for this and the next administration.
August 8, 2016 in Aspects and impact of Sentencing Reform and Corrections Act, Clemency and Pardons, Criminal justice in the Obama Administration, Examples of "over-punishment", Mandatory minimum sentencing statutes, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)
Wednesday, August 03, 2016
Prez Obama commutes 214 more federal sentences
As reported here by Politico, "President Barack Obama commuted the sentences of 214 people on Wednesday, bringing his total number of commutations to 562." Here is more about this latest encouraging clemency news, with some political context:
The president's biggest batch of commutations comes as Donald Trump touts a "law and order" message. But for advocates of sentencing reform, it's a sign that the administration isn't letting up on the 2014 Justice Department initiative to ease punishments for low-level drug offenders who received long sentences due to mandatory minimums. It includes 67 people who had been facing life sentences.
Obama has granted more commutations than his nine most recent predecessors combined, White House Counsel Neil Eggleston noted in a blog post on Wednesday. However, he added, “Our work is far from finished. I expect the President will continue to grant clemency in a historic and inspiring fashion.”
While criminal justice reform advocates have cheered the intention behind the initiative, they’ve complained that the pace of commutations has failed to meet expectations and that the process appears arbitrary. Eggleston promised to speed things up this spring, noting new resources for the Pardon Attorney, and in April, Deputy Attorney General Sally Yates wrote to a consortium of defense attorneys helping prisoners to submit applications, urging them to get applications in by May....
This latest batch of commutations comes at a politically sensitive time, just two weeks after Trump stressed a “law and order theme” at the Republican National Convention, with warnings of danger in the streets fueled by attacks on police in Dallas and Baton Rouge.... The focus on policing issues has drawn public attention away from the broader criminal justice reform agenda. Though there is bipartisan support for changes that would reduce mass incarceration, and the House is expected to vote on sentencing reform when it returns in September, advocates acknowledge that prospects for full passage before the election look grim.
The chart reprinted above comes from the White House blog posting by Eggleston, which also includes these statements of note:
Today began like any other for 214 federal inmates across the country, but ultimately became a day I am confident they will never forget. This morning, these individuals received a message from the President: your application for clemency has been granted.
This news likely carries special weight to the 67 individuals serving life sentences – almost all for nonviolent drug crimes – who, up until today, could only imagine what it might be like to once again attend a loved one’s birthday party, walk their child to school, or simply go to the grocery store. All of the individuals receiving commutation today, incarcerated under outdated and unduly harsh sentencing laws, embody the President’s belief that “America is a nation of second chances.”...
To date, President Obama has granted 562 commutations: more commutations than the previous nine presidents combined and more commutations than any individual president in nearly a century. Of those, 197 individuals were serving life sentences. And, today’s 214 grants of commutation also represent the most grants in a single day since at least 1900.....
In each of these cases, the President examines the application on its individual merits. As a result, the relief afforded is tailored specifically to each applicant’s case. While some commutation recipients will begin to process out of federal custody immediately, others will serve more time.
For some, the President believes that the applicant’s successful re-entry will be aided with additional drug treatment, and the President has conditioned those commutations on an applicant’s seeking that treatment. For others, the President has commuted their sentences to a significantly reduced term so they are consistent with present-day sentencing policies. While these term reductions will require applicants to serve additional time, it will also allow applicants to continue their rehabilitation by completing educational and self-improvement programming and to participate in drug or other counseling services. Underlying all the President’s commutation decisions is the belief that these deserving individuals should be given the tools to succeed in their second chance.
The individual nature of the clemency process underscores both its incredible power to change a person’s life, but also its inherent shortcoming as a tool for broader sentencing reform. That is why action from Congress is so important. While we continue to work to act on as many clemency applications as possible, only legislation can bring about lasting change to the federal system. It is critical that both the House and the Senate continue to work on a bipartisan basis to get a criminal justice reform bill to the President's desk.
Thursday, July 07, 2016
"Can Obama Pardon Millions of Immigrants?"
The question in the title of this post is the headline of this notable New York Times commentary authored by Peter Markowitz. Here are excerpts:
When the history of President Obama’s legacy on immigration is written, he will not go down as the president who boldly acted to protect millions of families from the brutality of our nation’s unforgiving immigration laws. The Supreme Court made sure of that last month, when it deadlocked on the legality of his program to defer the deportation of parents of American citizens and residents. Instead, he will be judged on what he actually did: deport more immigrants than any other president in American history, earning him the moniker “deporter in chief.”
However, President Obama can still act to bring humanity and justice to an immigration system notoriously lacking in both. He can do so by using the power the Constitution grants him — and only him — to pardon individuals for “offenses against the United States.”
The debate over the deportation deferral program has been framed as a question of the division of powers. Both sides agree that Congress is the only entity that gets to define offenses against the United States.... There is one area, however, where the president’s unilateral ability to forgo punishment is uncontested and supported by over a hundred years of Supreme Court precedent: the pardon power. It has been consistently interpreted to include the power to grant broad amnesties from prosecution to large groups when the president deems it in the public interest....
It’s a common assumption that pardons can be used only for criminal offenses, and it’s true that they have not been used before for civil immigration violations. However, the Constitution extends the power to all “offenses against the United States,” which can be interpreted more broadly than just criminal offenses.
A pardon could not achieve everything the deferred deportation program aspired to — notably, it could not deliver work permits. However, it has a certain operational elegance to it that would avoid many of the political battles surrounding the deferral program....
President Obama has plenty of time left to issue such a pardon. There is solid historical and legal precedent for him to do so. And although it would probably bring about legal challenges, opponents could not use the legal system to simply run out the clock, as they have with his deferred deportation program. A deferred deportation program could be undone by a President Trump. Unconditional pardons, in contrast, are irrevocable.
Finally, some would surely argue that a pardon protecting a large category of immigrants from deportation would, just like the deportation deferral program, effectively amount to a repeal of laws enacted by Congress. However, pardons do nothing to alter the law. They protect certain past offenders from punishment and prosecution, but leave the law unchanged as applied to any future violators.
President Obama has deported around 2.5 million people. That is about the same number as were deported in the entire 20th century. His apparent strategy was to demonstrate his bona fides on enforcement in order to persuade recalcitrant Republicans to work with him on immigration reform. It didn’t work. It turns out that you don’t convince people to be more humane on immigration by deporting immigrants hand over fist. We are left with a brutal legacy of millions of families torn apart, many simply for doing what they needed to do to protect and feed their children. President Obama will not be judged on his intentions or his attempts on immigration, but rather on his real impact. This is his last chance to establish a legacy of pragmatic compassion.
Tuesday, June 21, 2016
Open letter from large group of reform advocates urges Prez Obama to "accelerate the process" for granting clemency
As reported in this new USA Today piece, headlined "Experts warn White House that time is running out for clemency initiative," an impressive group signed on to this open letter to Prez Obama discussing his clemency activities. Here are excerpts from the USA Today reporting providing some pf the leteer's context and content:
Thousands of federal inmates could be eligible to have their sentences reduced under the Obama administration's initiative to free non-violent offenders from prison, but experts are warning the White House that time is running out for the president to take action.
A record-setting number of clemency petitions, lack of resources and a confusion over eligibility have hampered President Obama's plan to use his constitutional pardon power to shorten sentences, particularly for low-level drug offenders serving mandatory minimum sentences. If those inmates are going to have any hope, President Obama needs to personally intervene in the process, a group of advocates, law professors and attorneys said in a letter to the president Tuesday.
"The initiative has been plagued by bureaucratic inefficiencies that have kept petitions that meet all of your stated criteria from reaching your desk," the letter said. "We are concerned that as your days in office diminish, the clemency initiative is moving too slowly to meet the goals you set when you announced it in 2014."
The letter was signed by 41 people, led by Julie Stewart of Families Against Mandatory Minimums and including and law professors from Harvard, Yale, Georgetown, Berkeley, Columbia, Northwestern, New York University and others. Also notable: former White House special adviser Van Jones and former U.S. District Judge Nancy Gertner.
In response, the White House said Obama "has demonstrated a commitment to the commutations process not seen by any other president in the modern era." He's issued more commutations than the past seven presidents combined, written personal letters to clemency recipients and met with recipients to urge society to give them second chances.
"As we have said, the president will continue to issue additional commutations throughout the remainder of his time in office," said Assistant White House Press Secretary Brandi Hoffine. "The clemency process alone, however, will not address the vast injustices in the criminal justice system resulting from years of unduly harsh and outdated sentencing policies."
Obama has stepped up the pace of commutations in his last year in office, no longer waiting until the end of the year to announce clemency decisions. Obama granted 61 commutations in March, 58 in May and 42 this month — part of what White House Counsel Neil Eggleston said was a deliberate attempt to grant clemency on a more regular basis. In all, Obama has commuted the sentences of 348 people, more than any president since Franklin Roosevelt. (He's also granted just 70 pardons, fewer than any full-term president since 1800.)
But according to the Office of Pardon Attorney, 11,861 commutation petitions were still pending as of June 6, fueled largely by the Judtice Department's call for more applications from volunteer defense attorneys in 2014. And this isn't the first time there have been warnings of a backlog in the process. A year ago, former Pardon Attorney Deborah Leff told defense lawyers that "the clock is running," and that petitions weren't coming in quickly enough. There were questions about the eligibility criteria, and many cases required a complete re-examination of court and prison records. Then in January, Leff resigned, citing a lack of resources and interference from Deputy Attorney General Sally Quillian Yates that prevented her recommendations from reaching the president's desk.
I had the honor of being asked to sign on to this open letter, and I agree with nearly all of its sentiments. But, as I stressed in this post a few months ago, I have been clamoring for clemency reform since Prez Obama's first day on the job, and I remain deeply disappointed and troubled that there seems to have been no serious interest or commitment to any kind of structural/institutional reform in this space. As a result, I did not feel I could comfortable sign this letter because it includes a sentence stating that, in th clemency arena, the signers "believe [Prez Obama's] leadership will bring lasting change to the country and set the table for further reforms in future administrations."
I certainly do not want to unduly criticize Prez Obama's (still very important) efforts in this arena, and I am especially pleased to see this open letter getting press attention. But, unless Prez Obama does something more than just grant a few hundred more commutations (which is what I am expecting to see in the coming months), I am still going to view his Presidency in terms of a unique missed opportunity to create a criminal justice reform legacy in this historically and constitutionally important arena.
Friday, June 03, 2016
Prez Obama commutes 42 more federal prison sentences
As reported in this AP piece, this afternoon "President Barack Obama is commuting the sentences of 42 people convicted of drug-related offenses." Here is more:
Obama's latest round of clemency brings to 348 the total number of sentences Obama has commuted since taking office. The pace has increased substantially as Obama approaches the end of his presidency. Roughly half of the 42 receiving commutations Friday were serving life sentences. Most are nonviolent offenders, although a few were also charged with firearms violations.
Obama's commutation shortens their sentences, with most of the inmates set to be released October 1.
White House counsel Neil Eggleston says Obama will keep using his clemency power to give deserving individuals a second chance. Obama has pushed to overhaul the criminal justice system but a bipartisan effort has struggled to maintain momentum.
Via this blog post (which provides the graphic reprinted here), Prez Obama's counsel notes that that "President Obama Has Now Commuted the Sentences of 348 Individuals" and highlights that now "the President has commuted the sentences of more individuals than the past 7 presidents combined." Here is more from the blog posting:
Today, the President announced 42 additional grants of clemency to men and women serving years in prison under outdated and unduly harsh sentencing laws. The individuals receiving a presidential commutation today have more than repaid their debt to society and earned this second chance.
To date, the President has commuted the sentences of 348 individuals -- more than the previous seven Presidents combined. He remains committed to using his clemency power throughout the remainder of the Administration to give more deserving individuals that same second chance....
Despite these important efforts, only legislation can bring about lasting change to the federal system. There remain thousands of men and women in federal prison serving sentences longer than necessary, often due to overly harsh mandatory minimum sentences. That is one reason it is critical that both the House and the Senate continue to cooperate on a bipartisan basis to get a criminal justice reform bill to the President's desk.
"Conservatives should celebrate Obama’s commutations"
The title of this post is the headline of this new Dallas Morning News commatary. The piece is authored by Tom Giovanetti, president of the Institute for Policy Innovation, a group that explains its focus to be "on approaches to governing that harness the strengths of individual liberty, limited government, and free markets." Here are excerpts:
The White House recently announced that 58 federal inmates, mostly non-violent drug offenders, would have their sentences shortened through commutation. This brings the total number of commutations during the Barack Obama years to 306, more than any recent administration. And word out of the White House is that there will be more to come during President Obama’s final months in office.
Many conservatives will be initially inclined to see Obama’s commutations as the act of a liberal who is soft on crime. But conservatives should celebrate President Obama’s commutations. In fact, as people who prize liberty and individual rights, and who are skeptical about government power, conservatives need to do a rethink on criminal justice.
It’s becoming clear that something has gone very wrong with the justice system in the United States. Today, the U.S. has the highest incarceration rate in the world. Too many crimes have been federalized, as opposed to being handled more locally by state and local courts. Excessive punishments are being meted out for non-violent crimes because of mandatory sentencing requirements. And it’s dawning on people that the justice system is plagued by the same careerism and corruption that characterize other branches of government....
Taking reasonable discretion away from judges was a mistake, and it caused a shift in power from judges to prosecutors, who can select and “stack” charges involving mandatory minimums. While judges are appointed or elected to consider both sides of a case, prosecutors are hired to convict. It should trouble conservatives that the government side of the equation has been awarded such disproportionate power, which has clearly led to abuses.
Consider the case of Weldon Angelos, who at age 24 was arrested in Utah for selling marijuana and possessing a firearm. Because of stacked charges with mandatory minimums, Federal Judge Paul Cassell had no choice but to sentence him to 55 years in prison. Judge Cassell has ever since been pleading for a commutation to Angelos’ sentence, pointing out that far worse crimes, such as hijacking, rape, and second-degree murder, have lighter sentences. But the judge, who clerked for Antonin Scalia, was appointed by President George W. Bush, and who favors the death penalty, was powerless in the face of a prosecutor armed with federal mandatory minimum sentences.
Yes, our justice system should be about public safety first. But all too often it is about careerism, government revenue and corruption. Stephanos Bibas, professor of law and criminology at the University of Pennsylvania, reminds us that “the criminal justice system and prisons are big-government institutions. They are often manipulated by special interests such as prison guard’s unions, and they consume huge shares of most states’ budgets.”
Social conservatives should understand the need for criminal justice reform, since we believe that every human life has inherent dignity and value, and we believe in the possibility of redemption. Non-violent offenders can be punished and make restitution while keeping families intact and offenders productive. Economic conservatives should recognize that non-violent offenders are better deployed working in the private sector than incarcerated in expensive government facilities. And libertarians — well, libertarians already get it.
There are many pieces to the justice reform movement, including giving judges more sentencing leeway, eliminating civil asset forfeiture, and prioritizing drug treatment and in-home monitoring of incarceration. But commuting sentences for non-violent offenders that are far in excess of the crime is a great place to start.
June 3, 2016 in Clemency and Pardons, Criminal justice in the Obama Administration, Elections and sentencing issues in political debates, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)
Wednesday, May 25, 2016
"Many serving sentences for marijuana offenses deserve clemency"
The title of this post is the headline of this recent San Francisco Chronicle commentary authored by Alex Contreras, a former federal inmate serving a 40-year sentence for drug and gun charges who received clemency from President Obama in December 2015. Here is the text:
More than 10,000 clemency applicants wake up every day in a federal prison, awaiting an answer from President Obama on whether their lengthy prison sentence will come to an end. Most of them will be crushed when they are eventually denied. There are a few, however, who will realize the unlikely and overwhelming joy of finally being released. I was one of those rare few whose name was on the list of Obama’s recent clemency grants. And while I was excited to finally be going home — and extremely grateful to the president — I was also perplexed by those who weren’t on the list.
In speaking about criminal justice reform, Obama has highlighted the injustice of incarcerating marijuana offenders for “long stretches,” and has described marijuana as being “less harmful than alcohol” and a “vice,” not unlike cigarette smoking. He also instructed his Justice Department to not prosecute medical or recreational marijuana sellers who are operating under state law. But his pool of clemency recipients does not reflect these views.
Out of the 306 clemency grants, less than 3 percent were marijuana offenders, and not one of them was a medical marijuana provider, despite being the most deserving given that they were following state law and the Obama administration is no longer prosecuting them. Some of them are even serving decades in prison.
One such inmate is Ricardo Montes, a Latino serving a harsh mandatory 20-year sentence for operating a medical marijuana dispensary in Modesto under California law. Montes and his co-defendant received the longest sentences ever doled out to any medical marijuana provider, because — during the aggressive George W. Bush administration — they were charged under a fearsome mandatory minimum statue designed for drug kingpins and dangerous cartels.
Individuals like Montes are even more deserving of clemency than I was. Yet I fear that men such as Montes will be left to serve the remainder of their lengthy prison terms, while others reap the rewards of the change in the legal landscape of our nation’s marijuana policies. I hope that Obama’s remaining clemency grants will reflect his sensible views regarding marijuana, ensuring that our criminal justice system “keeps its basic promise of equal treatment for all.”
Tuesday, May 24, 2016
Virginia Republicans go directly to state Supreme Court to try to undo Gov's clemency order restoring vote to former felons
As first reported in this post last month, Gov Terry McAuliffe of Virginia used his executive clemency powers to restore voting rights to more than 200,000 former felons who had been permanently disenfranchised under Virginia's state election laws. Now, as reported in this Washington Post piece, political opponents are going to court to try to undo this effort to allow more people to participate in democracy. Here are the details:
Leaders of Virginia’s House and Senate went to the state’s highest court Monday in a bid to reverse Gov. Terry McAuliffe’s sweeping order to restore voting rights to 206,000 felons. Skipping lower courts, they filed a complaint with the Supreme Court of Virginia, contending that McAuliffe (D) exceeded his authority in April when he restored voting rights to felons en masse instead of individually.
The lawsuit — bankrolled by private donors — presents a complex constitutional question with the urgency of presidential election-year politics. Republicans are seeking an expedited review so that reinstated ex-cons who have registered to vote can be stripped from the rolls before November.
Virginia governors have restored felons’ voting rights, but none with anything close to McAuliffe’s scale and speed. “From Patrick Henry and Thomas Jefferson to Tim Kaine and Bob McDonnell, every Governor of Virginia has understood the clemency power to authorize the Governor to grant clemency on an individualized basis only,” said the lawsuit, filed on behalf of House Speaker William J. Howell (R-Stafford), Senate Majority Leader Thomas K. Norment Jr. (R-James City) and four other Virginia voters....
The governor says that his move helps former convicts to fully reenter society. Republicans call it a favor to Democratic presidential front-runner Hillary Clinton, McAuliffe’s close friend and political ally, who could benefit from higher numbers of minority voters in the crucial swing state.
McAuliffe blasted the lawsuit, suggesting that Republicans were trying to hold onto a remnant of the Jim Crow era, since African Americans have been disproportionately affected by felon disenfranchisement. One in four African Americans in Virginia had been banned from voting because of laws restricting the rights of those with convictions.
“Today Republicans filed a lawsuit to preserve a policy of disenfranchisement that has been used intentionally to suppress the voices of qualified voters, particularly African Americans, for more than a century,” McAuliffe said in a written statement. “These individuals have served their time and are now living, raising families and paying taxes in our communities — this suit is an effort to continue to treat them as second-class citizens.”...
The lawsuit, filed by Charles J. Cooper, who ran the Office of Legal Counsel under President Ronald Reagan, pushed back against the claim that felon disenfranchisement was rooted in racism. “Governor McAuliffe has falsely suggested that Virginia’s felon disenfranchisement provision was first introduced into the Constitution after the Civil War for the purpose of disenfranchising African-Americans,” the lawsuit says. “But Virginia has prohibited felons from voting since at least 1830 — decades before African-Americans could vote.”...
McAuliffe’s predecessor, Republican Robert F. McDonnell, simplified and sped up the application process for nonviolent offenders. When he was governor, Democrat Timothy M. Kaine, now a U.S. senator, considered a broader action but opted against it on the advice of his senior counsel, Mark Rubin. “A blanket order restoring the voting rights of everyone would be a rewrite of the law rather than a contemplated use of the executive clemency powers,” Rubin wrote in 2010. “And, the notion that the Constitution of the Commonwealth could be rewritten via executive order is troubling.”
McAuliffe’s order also allows ex-felons to serve on juries, run for public office and apply for restoration of their gun rights. It applies to all ex-felons, including those guilty of violent offenses such as murder and rape — a point emphasized by Republicans. The lawsuit notes that attorneys for a man accused of killing a state police trooper in Dinwiddie County are seeking to have felons whose civil rights were restored added to the pool of eligible jurors for his trial.
The McAuliffe administration notes that felons would still need a judge’s approval before winning back their gun rights and would still be vetted by the jury selection process before being added to such a panel. McAuliffe said that nearly 80 percent of those affected by his order were convicted of nonviolent offenses. Still, Republicans say, that means McAuliffe restored rights to 40,000 violent felons.
Prior related posts:
- Virginia Governor, bolding using his executive clemency authority, restores voting rights to over 200,000 former felons!!
- Virginia Gov explains his big decision to use his clemency power to restore franchise
- Lots of discussion of felon disenfrachisement after Virginia Gov boldly restores voting rights
Saturday, May 21, 2016
DAG Yates spotlights in commencement speech role of Georgia School of Law in clemency achievement
Today, Deputy Attorney General Sally Yates returned to her alma mater, the University of Georgia School of Law, to deliver this Commencement address. Like all good Commencement addresses, the whole piece is a lovely read. But sentencing fans should be especially interested in these closing comments:
I’d like to close by telling you about a recent intersection between the work of some students graduating here today and my work in Washington. As some of you may know, the Obama Administration has embarked on a clemency initiative designed to address the disproportionately long sentences given to lower-level, non-violent drug offenders who were sentenced under outdated drug laws. As Deputy Attorney General, I am charged with making a recommendation to President Obama on each petition. One such recent clemency petition was prepared by two of today’s graduates. These students participated in the representation of a man named Steven Boyd. In 1998, Mr. Boyd was convicted of selling crack and sentenced to life in prison. He had absolutely no history of violence and other than a few small time drug deals, no other criminal history. Yet the harsh mandatory minimum statutes in effect at the time mandated a life sentence. That’s life with no possibility of parole. The students prepared Mr. Boyd’s petition for clemency and submitted it to the Justice Department. That petition made its way to my desk and then on to the White House. And just three weeks ago, the president granted Mr. Boyd’s clemency petition. Mr. Boyd served 18 years and paid his debt to society. As a result of your classmates’ hard work and their commitment to their duty as lawyers, Mr. Boyd will be a free man. Your classmates unlocked justice for Steven Boyd.
Each and every one of you has both the capacity and the obligation, in the words of Attorney General Kennedy, to breathe meaning and force into the pursuit of justice. I hope that you will seize opportunities to right wrongs large and small, that you will stand up for the voiceless and that you will uphold the promise of our country. I hope that you will use the key that you are about to receive to unlock justice.
Sunday, May 08, 2016
Some critical reflections on Prez Obama's clemency efforts and some ideas about what could have been
Late last week, the Washington Post had this lengthy article reviewing the various problems encoutered during President Obama's clemency push over the last few years. The piece is headlined "Lack of resources, bureaucratic tangles have bogged down Obama’s clemency efforts," and it effectively summarized many of the difficulties previously reported on this blog. Here are excerpts:
In the waning months of his presidency, Obama has made commutations for nonviolent drug offenders a centerpiece of his effort to reform the country’s criminal-justice system. But behind the scenes, the administration’s highly touted clemency initiative has been mired in conflict and held up by a bureaucratic process that has been slow to move prisoner petitions to the president’s desk.
Obama has granted 306 commutations to federal prisoners — more than the past six presidents combined. But as of Friday, 9,115 commutation petitions were pending with little time left to review them. Of these, fewer than 2,000 appear to be eligible for the president’s clemency program, according to a Justice Department official. Thousands more are still being reviewed by outside lawyers.
From the beginning, the program was beset by problems, including a lack of resources and a cumbersome, multilevel review system. The U.S. pardon attorney at the Justice Department makes recommendations that move to the deputy attorney general, who reviews the cases and sends them to the White House counsel, who considers them again before choosing which ones go to Obama.
The pardon attorney became so frustrated that she quit earlier this year and wrote a scathing resignation letter to Deputy Attorney General Sally Q. Yates. Deborah Leff said that despite her “intense efforts” to do her job, the Justice Department had “not fulfilled its commitment to provide the resources necessary for my office to make timely and thoughtful recommendations on clemency to the president.”...
On Thursday, Obama commuted the sentences of 58 prisoners, his second round of clemencies in three months as the program has picked up steam. Administration officials say that they are addressing obstacles that have plagued the clemency initiative. The Justice Department has added lawyers to the pardon office. And White House Counsel Neil Eggleston has promised that many more petitions will be granted in the president’s final eight months.
“The President is deeply committed to the clemency initiative. That is evident not only by the historic number of commutations he’s granted to date, but by his wholesale approach to revamping the way the government approaches commutations,” White House spokeswoman Brandi Hoffine said in a statement. “That change helped spark a long overdue conversation about reforming our criminal justice system, which we hope will result in Congressional action so that many more deserving individuals can benefit from a second chance.”...
An attorney who worked in the pardon office at the same time as Leff said that with petitions flooding in, it was extremely difficult with so few lawyers to sort out complicated drug cases and figure out whether they met the department’s strict criteria. To get more help, Cole reached out to the private bar to set up another layer of lawyers to read applications.
Outside lawyers formed an organization called Clemency Project 2014, which includes Families Against Mandatory Minimums, the American Civil Liberties Union, the American Bar Association and the National Association of Criminal Defense Lawyers. An army of about 4,000 volunteer lawyers from across the country signed up to help in what has become one of the largest pro bono efforts in the history of the American legal profession. Seventy large law firms, more than 500 small firms and solo practitioners, and 30 law schools are involved, according to Cynthia W. Roseberry, the project’s manager. But it took nearly a year for the group to get organized and recruit and train lawyers, many of whom had no experience in criminal law.
An overwhelming 36,000 inmates — about 17 percent of the federal prison population — filled out surveys asking for help from the Clemency Project. Even though the Justice Department had its own backlog, officials there privately complained that the outside Clemency Project lawyers, with their multiple levels of review, were taking too long to send more petitions. That in turn frustrated the Clemency Project attorneys, who said they were working carefully to locate old legal documents, contact prosecutors and judges, look at prison behavior records and try to get pre-sentencing reports and sentencing transcripts. At the same time, they have been weighing risks to public safety....
Some critics say the White House could have avoided many of these headaches by modeling the process after the way President Gerald Ford handled clemencies for Americans who had deserted the Army or failed to show up for the draft during the Vietnam War. With 600 people working on a special commission to review the cases, Ford granted 14,000 clemencies in one year. Law professor Mark Osler, co-founder of New York University’s Clemency Resource Center, said the initiative also might have gone more smoothly if Obama had moved the pardon attorney’s office into the White House rather than keeping it under career prosecutors who may find it difficult to reverse other prosecutors’ decisions.
This recent Fusion piece, headlined "The bold step President Obama could take to let thousands of federal inmates go free," provides a thorough discussion of the special clemency commission that President Ford had set up to deal with a massive number of Veitnam draft dodgers and desserters and which was able to process tens of thousands of clemency cases in just a year. Here is how it concludes:
If Obama had appointed a Ford-style clemency board, he could have cut down the bureaucracy to three or four steps: a review by the board’s staff, a review by the board, a review by the White House counsel, a review by the president.
In the last few months, Obama’s advisers have been making the argument that he’s granted “more [clemencies] than the previous six Presidents combined.” But that calculation is false, as it incorrectly ignores the clemencies granted through Ford’s commission. (A White House spokesperson noted that Department of Justice statistics only count the 22 non-Vietnam related clemencies that Ford granted.)
For many recent presidents, clemency has been treated more like an afterthought. Until recently, Obama announced them at the end of each year, before he jets off to Hawaii with his family — a last-minute Christmas gift to a tiny handful of prisoners.
With fewer than 10 months left in office, even if Obama had a change of heart and decided to create a clemency board today, it would almost surely be too late. But [clemency advocates Nkechi] Taifa and Osler say it’s an idea that should be picked up by the next president. “This should not end with the Obama administration,” Taifa said.
“I do not want to delay another day in resolving the dilemmas of the past, so that we may all get going on the pressing problems of the present,” Ford said when he announced his clemency board. If President Obama—or the next president—wants to resolve the past failings of our criminal justice system, then they should also take lessons from one of its rare success stories.
Thursday, May 05, 2016
Prez Obama commutes 58 more federal drug sentences
As detailed via this terse White House press release, "On May 5, 2016, President Barack Obama granted commutation of sentence to 58 individuals." The release lists the 58 new recepients of executive clemency, and a quick scan reveals that all appear to be drug defendants and most involving cocaine and/or crack.
This press release from NACDL adds these notable particulars: "In his second set of clemency grants in under six weeks, President Barack Obama commuted the sentences of 58 prisoners today, 28 of whom were applicants whose petitions were supported by Clemency Project 2014."
UPDATE: I just saw that Prez Obama now has this new Medium entry headlined "A Nation of Second Chances." Here are excerpts:
Earlier this spring, I met with a group of individuals whose sentences were commuted either by President Bush, President Clinton, or myself. They were all at different stages of a new chapter in their lives, but each of their stories was extraordinary.
Take Phillip Emmert. When he was 27, Phillip made a mistake. He was arrested and convicted for distributing methamphetamines and received a 27-year sentence. So, by the time he was released, he’d have spent half his life behind bars. Unfortunately, while in prison, his wife was paralyzed in an accident. So while he was in prison, Phil learned everything he could about fixing heating and air conditioning systems — so he could support his wife when he got out. And after his sentence was commuted by President Bush, he was able to do just that. Today, he’s gainfully employed. He’s a caregiver for his wife, an active father, and a leader in his community.
Like so many nonviolent offenders serving unduly harsh sentences, Phillip is not a hardened criminal. He’s taken responsibility for his mistakes. And he’s worked hard to earn a second chance.
Today, I commuted the sentences of an additional 58 individuals just as deserving as Phillip — individuals who can look to him as inspiration for what is possible in their lives.
As President, I’ve been working to bring about a more effective approach to our criminal justice system, particularly when it comes to drug crimes. Part of that effort has been to reinvigorate our commutations process, and highlight the individuals like Philip who are doing extraordinary things with their second chances. To date, I will have commuted 306 individual sentences, which is more than the previous six presidents combined....
As a country, we have to make sure that those who take responsibility for their mistakes are able to transition back to their communities. It’s the right thing to do. It’s the smart thing to do. And it’s something I will keep working to do as long as I hold this office.
Friday, April 29, 2016
With nine months left in Obama Administration, apparently it is time for a clemency last call
Regular readers know I am a long-time critic of how modern presidents have (failed to) use their historic clemency powers and that I am not an especially big fan of how the Obama Administration and others have approached trying to do things better of late. Another frustrating piece of this story is captured by this new Politico piece headlined "Obama team making last-ditch push on commutations: Top Justice official says non-violent drug offenders are running out of time to apply for reduced sentences." Here are excerpts:
The Obama Administration is pressing hard to keep the clock from running out on thousands of federal drug convicts hoping to get their prison sentences shortened by President Barack Obama before he leaves office in January. Earlier this week, the No. 2 official at the Justice Department pleaded with volunteer lawyers working on those cases to get the commutation applications filed right away.
"Time is of the essence and the inmates who raised their hands for your assistance still need your help," Deputy Attorney General Sally Yates wrote in the unusual letter, dated Monday and obtained by POLITICO. In the message to attorneys working through a consortium known as Clemency Project 2014, Yates noted that the group has set internal deadlines for most cases as soon as Monday of next week and for other cases in mid-May. "I cannot stress how important it is [to] meet those deadlines," Yates wrote. "If those deadlines cannot be met, we need to ensure that inmates have sufficient time to file pro se petitions, and that the Department of Justice has enough time to process and review them."
Obama launched his so-called "Clemency Initiative" in early 2014, seeking to identify thousands who have served long drug-crime sentences that would likely have been shorter under current law. The effort was aimed at granting commutations to those who met certain criteria, such as being non-violent, low-level offenders. The announcement triggered a flood of clemency requests from close to 30,000 inmates — more than 10 percent of the federal prison population. The level of interest swamped the handful of lawyers in the office of the Justice Department's Pardon Attorney and overwhelmed the newly-created Clemency Project.
While the group has said nearly 4,000 attorneys were recruited to prepare applications, the process has been a tough slog, slowed by bureaucratic hurdles in obtaining paperwork and the reliance on lawyers who usually have no prior experience seeking clemency. Yates' letter to the Clemency Project lawyers says they have submitted "more than 850 petitions" thus far. That's a dramatic increase from the roughly 30 the group's lawyers had handed in about a year ago, but still far short of the number likely to yield the thousands of commutations some Obama administration officials expected at the outset.
The applications are also backlogged at the Justice Department, which had more than 11,000 commutation requests of all types pending at the end of March, according to Justice's website. In January, the Justice Department official who'd overseen the effort since the spring of 2014 resigned, complaining of a lack of resources and that her recommendations were not always being relayed to the White House. "The Department has not fulfilled its commitment to provide the resources necessary for my office to make timely and thoughtful recommendations on clemency to the president," Pardon Attorney Deborah Leff wrote in her resignation letter, obtained by USA Today through a Freedom of Information Act request.
White House Counsel Neil Eggleston said at a POLITICO Playbook Breakfast earlier this month that the Pardon Attorney's office has gotten a boost in resources and that some of the concerns Leff raised have been addressed. "The pardon attorney's office has a little more resources, which is good, and I have regular dealings with the pardon attorney directly, so to the extent that Ms. Leff was complaining about that, that was solved. Actually, it was solved before she left,” Eggleston said. “And so I think that we're moving forward in a pretty good way here."...
Last year, Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) questioned whether the Justice Department had essentially outsourced its role in the process to the Clemency Project 2014 lawyers. A Justice Department official rejected that idea at the time, saying that the volunteer project — backed by the American Civil Liberties Union, the National Association of Criminal Defense Lawyers and others — was "completely separate" from Justice.
However, Yates' letter this week highlights the Clemency Project's internal deadlines and thanks the group for having "screened out ... 20,000 ineligible applicants." Critics, noting that Obama has granted commutations to some applications who did not appear to meet all the criteria, have expressed concern that some of those prisoners may have compelling cases for commutations but will be dissuaded from applying by having been screened out. In addition, in a less-noticed portion of Leff's letter, she said she had "been instructed to set aside thousands of petitions for pardon and traditional commutation."
I have got tired of being tired of hearing these stories of too many clemency applicants and too little ability to procees them all. But I will continue to note (and lament) all this, and continue to hope that Prez Obama will vindicate all the energies and excitement advocates devoted to these matters by granting at least a few hundred more commutations and some significant number of pardons before he passes on the keys to the Oval Office next January.
Tuesday, April 26, 2016
Virginia Gov explains his big decision to use his clemency power to restore franchise
I noted in this post last Friday that Governor Terry McAuliffe of Virginia used his executive clemency power to restore voting rights to more than 200,000 former felons. Since then, I came across this Medium piece in which the Gov explains his actions. Here are excertps:
We are all familiar with Virginia’s long history of discrimination at the ballot box, culminating in the 1902 constitution establishing a poll tax, literacy and knowledge tests, and broader restrictions on individuals with felony convictions.
The 1965 Voting Rights Act eliminated many of those barriers. However, Virginia continued to enforce one of the most restrictive laws in the country regarding the restoration of voting and civil rights for individuals who have been convicted of felonies but who complete their sentences and probation or parole. Over the last two years, our administration has worked tirelessly to simplify the restoration process. We restored the rights of more than 18,000 Virginians, which is more than the past 7 governors combined over their full four-year terms.
We worked to reform the process by reducing the waiting period for more serious offenders from five years to three, classifying all drug-related convictions as non-violent, shortening the application for more serious offenders from 13 pages to one page, removing a requirement that individuals pay their court costs before they can have their rights restored, and ensuring that a notation will be included in an individual’s criminal record designating that his or her rights have been restored.
While I am proud of the progress we have achieved, I wasn’t satisfied to leave so many men and women in our Commonwealth barred from full citizenship. [On Friday] we restored the voting and civil rights of more than 200,000 Virginians who have served their time and completed supervised release.
This action means that these disenfranchised Virginians will immediately regain the right to register to vote, to run for office and to serve on a jury. It means that these Virginians, who have served their sentences and returned to live in our communities, will no longer be second class citizens who must jump through onerous hoops to have a voice in our society. And it means that Virginia can close a difficult chapter in our history and open a new one where, instead of building barriers to the ballot box, we work together to break them down.
Some have suggested this action was politically motivated, or that it is wrong to restore the rights of felons who have committed more serious crimes, even if they have served their sentences. I would encourage those critics to meet with some of the men and women whose rights we have restored throughout my term. Who have reentered society seeking a second chance and who have waited years, sometimes decades, to become whole members of our society again. And who have broken down in tears as I signed their restorations on “the best day of their lives.”
If we are going to build a stronger Virginia, we must open doors to participation in civic life for people who return to society seeking a second chance. We must welcome them back and offer the opportunity to build a better life by taking an active role in our democracy. I believe it is time to cast off Virginia’s troubling history of injustice and embrace an honest, clean process for restoring the rights of these men and women.
Prior related posts:
- Virginia Governor, bolding using his executive clemency authority, restores voting rights to over 200,000 former felons!!
Friday, April 22, 2016
Virginia today is surely a state for lovers of voting rights in light of this remarkable news via the New York Times: "Gov. Terry McAuliffe of Virginia used his executive power on Friday to restore voting rights to more than 200,000 convicted felons, circumventing his Republican-run Legislature." Here is more:
The action overturns a Civil War-era provision in the state’s Constitution aimed, he said, at disenfranchising African-Americans. The sweeping order, in a swing state that could play a role in deciding the November presidential election, will enable all felons who have served their prison time and finished parole to register to vote. Most are African-Americans, a core constituency of Democrats, Mr. McAuliffe’s political party.
Amid intensifying national attention over harsh sentencing policies that have disproportionately affected African-Americans, governors and legislatures around the nation have been debating — and often fighting over — moves to restore voting rights for convicted felons.
In Kentucky, Gov. Matt Bevin, a newly elected Republican, recently overturned an order enacted by his Democratic predecessor that was similar to the one Mr. McAuliffe signed Friday. In Maryland, Gov. Larry Hogan, a Republican, vetoed a measure to restore voting rights to convicted felons, but Democrats in the state legislature overrode him in February; an estimated 44,000 former prisoners who are on probation are now eligible to register to vote as a result.
“There’s no question that we’ve had a horrible history in voting rights as relates to African-Americans — we should remedy it,” Mr. McAuliffe said Thursday, previewing the announcement he made on the steps of Virginia’s Capitol, just yards from where President Abraham Lincoln once addressed freed slaves. “We should do it as soon as we possibly can.”
The action, which Mr. McAuliffe said was justified under an expansive legal interpretation of his executive clemency authority, goes far beyond what other governors have done, experts say, and will almost certainly provoke a backlash from Virginia Republicans, who have resisted measures to expand felons’ voting rights. It was planned in secrecy, and came amid an intensifying national debate over race, voting and the criminal justice system. There is no way to know how many of the newly eligible voters in Virginia will register, but Mr. McAuliffe said he would encourage all to do so. “My message is going to be that I have now done my part,” he said.
The Republican Party of Virginia quickly issued a statement accusing Mr. McAuliffe of “political opportunism” and “a transparent effort to win votes.”
“Those who have paid their debts to society should be allowed full participation in society,” said the statement, issued by the party chairman, John Whitbeck. “But there are limits.” He said the governor was wrong to issue a blanket restoration of rights, even to those who “committed heinous acts of violence.”
Only two states — Maine and Vermont — have no voting restrictions on felons. Of the remaining 48, 12 states disenfranchise felons after they have completed probation or parole, said Marc Mauer, executive director of the Sentencing Project, a Washington policy organization that advocates restoring felons’ voting rights. Virginia is one of four states — the others are Kentucky, Florida and Iowa — that impose the harshest restrictions. The Sentencing Project says one in five African-Americans in Virginia is disenfranchised....
Mr. Mauer called Mr. McAuliffe’s decision a stunning development, and one that will have lasting consequences because it will remain in effect at least until January 2018, when Mr. McAuliffe leaves office. It covers those convicted of violent crimes, including murder and rape. “This will be the single most significant action on disenfranchisement that we’ve ever seen from a governor,” Mr. Mauer said, “and it’s noteworthy that it’s coming in the middle of this term, not the day before he leaves office. So there may be some political heat but clearly he’s willing to take that on, which is quite admirable.”
Advocates who have been working with the governor say they are planning to fan out into Richmond communities Friday afternoon to start registering people. Until now in Virginia, felons were allowed to apply to have their voting rights restored, but the process could be cumbersome and those who have committed violent crimes faced a waiting period. That will be eliminated by Mr. McAuliffe’s action. “That is a huge deal,” said Tram Nguyen, an executive director of the New Virginia Majority, an advocacy group. “We talk about needing to raise up your voice so that we can impact policy makers, and these people are saying to us, ‘We don’t have a voice, no one is going to listen to us, we don’t even have our right to vote.’ ”
Experts say that with the stroke of his pen, Mr. McAuliffe has allowed convicted felons to begin registering to vote, and that their voting rights cannot be revoked — even if a new governor rescinds the order. But the move could expose the governor to accusations that he is playing politics; he is a longtime friend of — and top fund-raiser for — Hillary Clinton, the likely Democratic nominee for president, and former President Bill Clinton....
The order builds on steps the governor has previously taken to restore voting rights to 18,000 Virginians since the beginning of his term, and he said he believed his authority to issue the decision was “ironclad.” Professor A. E. Dick Howard of the University of Virginia School of Law, who was the principal draftsman of a revised Constitution adopted by Virginia in 1971, agreed, and said the governor had “ample authority.” But Professor Howard, who advised Mr. McAuliffe on the issue, said the move might well be challenged in court. The most likely argument, he said, is that the governor cannot restore voting rights to an entire class of people all at once. “I’m assuming that the complaint will be that he has to act one pardon at a time, one person at a time, that he’s not permitted to act wholesale,” Professor Howard said. “I think the language of the Constitution and the theory of the pardoning power all point to the same conclusion — that he can.”
Virginia’s Constitution has prohibited felons from voting since the Civil War; the restrictions were expanded in 1902, as part of a package that included poll taxes and literacy tests. In researching the provisions, advisers to the governor turned up a 1906 report quoting Carter Glass, a Virginia state senator (and later, a member of Congress who was an author of the 1933 Glass-Steagall Act that regulated banks) as saying they would “eliminate the darkey as a political factor in this State in less than five years, so that in no single county of the Commonwealth will there be the least concern felt for the complete supremacy of the white race in the affairs of government.”
Mr. McAuliffe, who took office in 2014 and campaigned to restore voting rights to felons, said that he viewed disenfranchisement as “a remnant of the poll tax” and that he had been “trying to figure out what more I can possibly do.” He has been working with his legal team for months to live up to his campaign promise. His action Friday will not apply to felons released in the future; the governor’s aides say Mr. McAuliffe intends to issue similar orders on a monthly basis to cover more people as they are released. “People have served their time and done their probation,” Mr. McAuliffe said. “I want you back in society. I want you feeling good about yourself. I want you voting, getting a job, paying taxes. I’m not giving people their gun rights back and other things like that. I’m merely allowing you to feel good about yourself again, to feel like you are a member of society.”
The official statement and executive order can be found at this link.
As long-time readers may recall, I have long been an advocate for letting even prisoners vote (as noted here), and thus I have long opposed any and all form of felon disenfranchisement. Throw in the fact that there is evidence to suggest that former offenders who vote are less likely to recidivate, and I am quite pleased about what Gov. McAuliffe had the courage (and political savvy) to do here. Perhaps this action by a sitting Gov not far from the US capital will inspire the President to see what bold useful work can be done through bold use of clemency authority.
Monday, April 11, 2016
Has anyone calculated trial rates — or other notable features — of 248 offenders getting Obama commutations?
The question in the title of this post represents my not-so-direct effort to encourage any and all hard-core sentencing researchers — as well as folks involved with Clemency Project 2014 and the St. Thomas Federal Commutation Clinic and the NYU Clemency Resource Center and the CUA Clemency Project — to consider taking a deep dive into case processing realities and all sorts of other offense and offender features of the 248 federal prisoners who have now had their lengthy prison sentences commutted by President Obama. The focus on trial rates in my title query is based to my (educated) speculation that those prisoners who have so far received commutations may have opted to have their guilt tested at trial at a rate quite different from the bulk of convicted federal offenders.
Roughly speaking, only about three out of every hundred convicted federal offenders now have their guilt estabished at trial; all the others admit guilt though a plea. (This chart from the US Sentencing Commission provides these data details on guilty pleas and trial rates for the last five fiscal years.) But my own limited experiences seeking to challenge some extreme federal sentences have often involved federal defendants who exercised their rights to trial. Consequently, I would be quite surprised if it turns out that only around 10 of the 248 federal prisoners whose lengthy prison sentences have been commutted by President Obama had gone to trial.
Unfortunately, this official list of "Commutations Granted by President Barack Obama" does not indicate if the offenders' sentences were imposed after a plea or a trial. Nevertheless, with so many institutions and individuals now so interested in looking at the modern exercise of federal clemency, I am hopeful someone has started or will soon start trying to figure out if there are some distinct and distinctively important features of those cases now garnering the attention of President Obama.
Tuesday, April 05, 2016
More reflections and criticisms of clemency work past, present and future
I reprinted here over the weekend a lovely and positive report by Lisa Rich about all the activity emerging from the White House last week on the important topic of clemency. Thanks to Mark Osler, I have now learned that Thursday's extended "White House Briefing on Life After Clemency" can be watched in full via YouTube here. Here is how the event is described:
Building on the President's efforts to make our criminal justice system more fair by granting clemency to men and women sentenced under outdated sentencing rules, the briefing brings together academics, advocates and Administration officials seeking to remove obstacles to successful reentry. The briefing provides a collaborative environment to discuss and share ideas on the President's clemency initiative and ways to improve paths to reentry.
Critically, not everyone is having warm feelings about the work of Prez Obama and his administration's work to date in this arena. In particular, Mark Osler followed up his participation in the White House briefing with this New York Times op-ed headlined "Obama’s Clemency Problem." Here are excerpts:
In the spring of 2014, the Obama administration announced an initiative to consider granting clemency to thousands of federal prisoners serving what Mr. Obama called “unjust” sentences for low-level drug crimes. Federal prisoners were notified of the project, and more than 30,000 responded by submitting surveys to begin the process.
Despite the relatively high number of commutations that Mr. Obama has now granted, there are still more than 9,000 pending commutation cases, many of the sort singled out in the 2014 initiative as potentially worthy. So why has the president acted on so few? Typically, a reluctance to exercise the pardon power is a result of political timidity. But in this case, the Obama administration already took the political risk two years ago when it announced the clemency initiative.
The problem here is that too many cases can’t be adequately considered by the president because of a sluggish and often intransigent review process. Clemency petitions undergo no fewer than seven levels of review, four of them within the Department of Justice. Within the Justice Department, clemency petitions run not only through the Office of the Pardon Attorney but also through the office of the deputy attorney general.
When the pardon attorney, Deborah Leff, resigned in January, she complained in her letter of resignation that meritorious clemency cases had been thwarted by those above her. She noted in particular that some of her own recommendations had been overruled by the deputy attorney general, Sally Quillian Yates. It is not an incidental fact that Ms. Yates is a career prosecutor. When the Department of Justice reviews clemency cases, the opinions of prosecutors in the district of conviction are solicited and given considerable weight. But prosecutors are the wrong people for the task of vetting clemency cases.
I was a federal prosecutor for five years. In that job, deciding someone’s fate is a necessary but difficult emotional commitment. The prospect of being wrong — and a clemency initiative like Mr. Obama’s can feel like a judgment that prosecutors were wrong — can be a lot to bear. We should not be surprised if, when it comes to Mr. Obama’s clemency initiative, prosecutors systematically resist what is, in effect, an indictment of their work.
President Obama can and should fix this problem with a simple executive order that places the Office of the Pardon Attorney in the White House, rather than at the bottom of the institutional structure at the Department of Justice. An empowered pardon attorney (or perhaps a pardon board, as we find in many states) would then report directly to the president. That would allow an independent but thorough review of clemency petitions free from the influence of career prosecutors.
And while Professor Osler is concerned about the slow and cumbersome process for considering clemency requests, this letter to AG Loretta Lynch authored by Senator Richard Shelby highlights that others are troubled by some of the few offenders who have already received sentence commutations. Here is how Senator Shelby's letter gets started:
I am writing to you in response to yesterday’s announcement that President Barack Obama granted sentence commutations to 61 individuals. I have strong concerns that 12 of these 61 individuals were convicted of one, if not more, firearm-related offenses. These include:
- Seven convictions of possession of a firearm in furtherance of a drug trafficking crime;
- Four convictions of possession of a firearm by a felon; and
- Two convictions of use of a firearm in furtherance of a drug trafficking offense.
In August 2014, the Department of Justice announced its rubric for considering federal inmates for the President’s new initiative for executive clemency. Part of these criteria included: non-violent individuals who would not pose a threat to public safety if released; low-level offenders without significant ties to large-scale criminal organizations, gangs, or cartels; inmates who do not have a significant criminal history; and those who have no history of violence prior to, or during, their current term of imprisonment.
By my count, the President has commuted the sentences of over 200 of these “non-violent” federal inmates, of which 33 were convicted of firearm-related offenses. I am troubled by the nature of the firearm-related convictions and the fact that some individuals are previously convicted felons who continued to commit crimes. This announcement clearly demonstrates that the Administration is not following its own selection criteria. Frankly, I am left wondering why the President and the Justice Department consider individuals who carry guns to drug deals as “non-violent”.
Sunday, April 03, 2016
A more positive spin on clemency developments and more positive aspects
Regular readers may grow somewhat tired of hearing me kvetch about President Obama being much more willing to talk the talk than walk the walk when it comes to criminal justice reform generally and clemency developments in particular. For that reason (and others), I invited always sunny Lisa Rich to provide for blogging her sunny perspective on clemency events that transpired at the White House last week. Here is what she was kind enough to send my way for posting:
A somewhat sentimental post by Lisa A. Rich, former director of Legislative & Public Affairs at the U.S. Sentencing Commission and current director of the Texas A&M School of Law Residency Externship Program in Public Policy:
Last Week, I had the privilege of joining not only the tireless advocates of the Justice Roundtable and White House staff but over two dozen recipients of clemency spanning four presidencies during the Justice Roundtable and White House Briefings on “Life After Clemency.”
Personally, it was a joy to see all of the people — Nkechi Taifa, Mark Osler, Cynthia Rosenberry, Jesselyn McCurdy, Julie Stewart, Margy Love, and so many others who have been working tirelessly to answer the Obama Adminstration’s call to action on clemency. I am in awe of the ceaseless dedication these advocates demonstrate every day in their pursuit of hope and justice for those human beings who deserve a chance to be something so much more than a statistic in our cycle of mass incarceration. These advocates and those for whom they do their jobs are the role models I discuss in my classes and they are the ones who inspire me to be better.
But more than my personal connection with those I miss because I am no longer living in D.C., the events over these past three days were important for two reasons. First, all of us, including the President and White House staff saw and heard what hope is all about. We heard from clemency recipients about heartache, mistake, and loss being turned into determination, faith, and commitment. We heard people who genuinely want to make their communities and their lives better, stronger, and happier. I am delighted that policymakers inside and outside of Washington are taking the opportunity to get to know these people — as people, not numbers, not workload, not files on a desk.
Second, I was pleased that two of my students were in the audience — and in fact had been given the opportunity to be involved in preparing for these events. As part of Texas A&M School of Law’s new externship program in public policy, these students got to see policymaking in action from start to finish; they got to see firsthand the effects of both good and bad policy decisions. Their experiences may not seem all that different from the hundreds of law students who go to D.C. and elsewhere each semester to partake in policy but it actually was a defining moment for me and them. These students are the future policymakers and advocates. To me, the events of these past three days were not just about hope for those impacted by outdated laws and poor decision making, but hope that the next generation of lawyers, policymakers, and advocates being trained by the brilliant people who participated in these events will learn from our mistakes; that they will engage in sound decision making based on evidence and best practices; that they will carry on the work done so well by so many. As an advocate and a teacher that is what hope is all about.
Friday, April 01, 2016
GOP frontrunners Donald Trump and Ted Cruz author joint letter urging Prez Obama to commute tens of thousands more federal sentences!
Apologies to those who clicked through based on the headline of this post to discover that this headline is my lame attempt to bring a timely sentencing spin to April Fools Day.
As I was thinking about what to post on this special day for silliness and pranks, it dawned on me that whomever does eventually become the GOP candidate for President probably would be eager to have Prez Obama commute tens of thousands of prison sentences before the election... so that he could thereafter blame any and all future crimes on the current President and every other Democrat currently in office or running for office. This reality, I think, helps explain why Prez Obama has still been so stingy with his clemency grants to date despite so much talk about a big clemency push.
Indeed, in light of Prez Obama's grant of only 61 more commutations earlier this week (details here), I am inclined to predict that we will only see, at most, a few dozen more clemency grants before the November election. But once the election is completed, I think it is entirely unpredictable what Prez Obama might do in the clemency arena. Prez Bill Clinton issued a large number of last-day clemencies, including a notorious pardon to campaign funder and fugitive Marc Rich, and the controversy that created likely led the Prez George W. Bush only granting a few lame-duck clemencies.
Ironically, if a fellow Democrat is elected in November, I suspect Prez Obama will be inclined to grant fewer lame-duck clemencies: he likely will not wish to create any unique challenges or controversies when a member of his own party takes over his position in the Oval Office, and he likely will be hopeful that a successor from his party will continue his visible clemency push. In contrast, if a Republican wins in November, I would expect Prez Obama to grant more clemencies so that he could in this way burnish his claim to have lived up to his "hope and change" campaign mantra in the criminal justice arena.
Finally, while focused on the intersection of April Fools Day and the 2016 campaign, am I crazy to imagine that GOP frontrunner Donald J. Trump might give a big speech today to announce that his entire campaign was just a massive prank and the most amazingly extended form of performance art in American political history?