Sentencing Law and Policy

Fitting complaints about an ugly clemency scoreboard: "Turkeys 2, humans 0"

I am very pleased to see that Molly Gill, who serves as director of the commutations project for Families Against Mandatory Minimums, and this op-ed in today's Washington Post headlined "Turkeys 2, humans 0."  Here are excerpts:

As his daughters and others watched on Wednesday, President Obama followed long-standing tradition and pardoned two turkeys in honor of Thanksgiving Day. The 40-pound Butterballs, Courage and Carolina, were flown to California and will live out their days at Disneyland. Unfortunately, Obama has failed to follow another tradition of sitting presidents: granting clemency to humans....

To be fair, it's not entirely Obama's fault.  The advent of "tough on crime" politics in the 1980s and a few controversial clemencies since then (think Marc Rich and I. Lewis "Scooter" Libby) have made pardoning a political minefield.  Guarding the entrance to that mine field is the Office of the Pardon Attorney.  It reviews clemency requests and sends recommendations to the attorney general, who helps the president make final decisions about which offenders are worthy of mercy. For nearly a century, this review-and-refer system ran smoothly, and presidents typically approved hundreds of petitions for clemency each year -- mostly to run-of-the-mill, politically unconnected people.

But the system has broken down.  The Office of the Pardon Attorney's small staff is overburdened -- this year alone it has received more than 1,200 clemency requests. Beginning with the Clinton administration, the number of clemency applications has soared and shows little sign of dwindling. Applicants report filing their clemency petitions and never receiving a reply.  Applications often sit in the pardon attorney's office for years before they are, inevitably, denied. George W. Bush granted a paltry 200 pardons and commutations -- more than twice the number granted by his father but less than half the number granted by Clinton. Forty years ago, by the end of Lyndon B. Johnson's administration, almost 1,200 people had received the benefit of clemency.  We've come a long way, but not in the right direction.

Obama may have the power to grant clemency, but he can't use that power effectively unless the Office of the Pardon Attorney gives applicants a meaningful review and recommends worthy cases to the White House.

Executive clemency has too many valid and important purposes to disappear through lack of use.  Clemency gives hard-earned second chances to those who have turned their lives around.  It can fix the errors that inevitably crop up in our imperfect criminal justice system. Clemency can show mercy to elderly, sick or dying prisoners who aren't a threat to public safety.  And clemency restores valuable rights to people still struggling to find jobs because of foolish mistakes they made years ago.

None of these praiseworthy objectives can be met until Obama takes a hard look at the pardon system and fixes it. This year, the clemency score is turkeys, 2; humans, zero.  By this time next year, I hope that the clemency score favors more humans than turkeys.

As regular readers know, I share this concern for the lack of use of the clemency power.  But I would say this is fair to call this matter entirely the fault of President Obama and whatever members of his staff advise him on criminal justice matters and related policy issues.  President Obama has found the time to make a number of hard criminal justice choices concerning the closing of GTMO and the trial of terror suspects.  It should take a lot less time, even without any help from the Office of the Pardon Attorney, to find a few cases worthy of some kind of clemency relief from within the thousands of petitions.

Some related posts on federal clemency realities:

• The true sentencing turkeys on this Thanksgiving eve
• Justified complaints that Obama's first pardon will be of a turkey
• "President Barack Obama proving stingy with his pardon power"
• Notable press stories noting Obama's lack of clemency action
• A simple plea for Prez Obama: grant at least a single clemency in your first 100 days
• Historical evidence that it is NOT too early to start demanding clemencies from President Obama
• When will President Obama start acting like President Lincoln when it comes to the clemency power?
• "The Fall of the Presidential Pardon"
• What might 2009 have in store for . . . executive clemency?

The true sentencing turkeys on this Thanksgiving eve

As detailed in this FOXnews piece, President Obama showed his sense of humor when he issued his first turkey pardon this morning:

President Obama hammed it up on Wednesday, pardoning two turkeys Wednesday in a traditional White House ceremony that he joked didn't always end on a positive note. Accompanied by daughters Sasha and Malia, Obama honored a White House holiday tradition that dates to Harry Truman's time as president.

Looking at the turkeys -- Courage and Carolina presented by the National Turkey Federation -- Obama joked that he couldn't fault past presidents from eating turkeys. "That's a good looking bird," he said to laughter. Obama said the turkeys had the interventions of daughters to thank for this year's pardon "because I was planning to eat this sucker."...

Obama also noted that two other turkeys were donated to a D.C. charity. "So today, all told, I believe it's fair to say that we have saved or created four turkeys," he joked, alluding to his $787 billion economic stimulus package that has drawn criticism for the number of jobs the White House has claimed it has created.

Relatedly, as this NPR feature shows, the White House found the time to put together a funny video called "One Lone Turkey" that explains how a single turkey is going to get a second chance.  Though I am disinclined to be grumpy about this quaint new Presidential traditional, this AP article headline highlights why I cannot find this event too much of a laughing matter: "Obama's first pardon: A turkey named 'Courage'." 

I was hoping that President Obama and others in the White House would try to find a few real persons to make thankful this week with real-world clemency decisions.  As I have noted, in many prior posts President Obama is already historically slow in using his clemency power as he approaches the end of a full year in office without one single clemency grant.  Moreover, as this official webpage reveals, it appears that President Obama has over 3,000 requests for pardons and commutations sitting unresolved on his Oval Office desk.

So, one true sentencing turkey on this Thanksgiving eve is President Obama and criminal justice members of his White House team, none of whom seem to concerned with the fact that the President has now shown more concern about justice for terrorists and mercy for turkeys than for any others impacted by harshness of the modern the federal criminal system.

But I also think that the media, public policy groups and the left side of the blogosphere also merit some turkey awards this Thanksgiving eve.  Save for an effective commentary noted here yesterday, I have seem precious little recent media discussion of the failure of President Obama to bring any hope or change to federal clemency stinginess.  And lots of criminal justice groups and bloggers, who I think should be making a big stink about Obama's first pardon being a turkey, all seem to be conspicuously silent on this matter so far.

Some related posts on federal clemency realities:

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

Justified complaints that Obama's first pardon will be of a turkey

I am pleased to see that Debra Saunders has this new commentary in the San Francisco Chronicle lamenting the fact that the first use of the pardon power by President Obama will be for a turkey:

On Wednesday, President Obama will issue the White House's standard hokey pardon of a Thanksgiving turkey.  It goes with the job.  That's good news for the lucky turkey, but not much help for the many nonviolent first offenders languishing in federal prisons because, nine months into office, Obama has yet to exercise his presidential pardon power.

According to political science Professor P.S. Ruckman Jr. of Rock Valley College in Illinois, Obama, a former constitutional law professor, has taken longer to use the executive pardon and commutation power than all but four presidents -- George Washington, John Adams, Bill Clinton and George W. Bush.

Obama hasn't pardoned a single ex-offender, even though about 1,200 people have asked for pardons because they have turned their lives around, expressed remorse for their crimes and now want to wipe the criminal slate clean of long-past offenses for which they paid the penalty.

Nor has Obama commuted the sentence of any of the 2,000 or so federal inmates seeking sentence reductions -- many because of draconian federal mandatory minimum sentences. "We had certainly hoped that by now President Obama would have used the pardon power," said Molly Gill of the sentencing-reform group Families Against Mandatory Minimums. "We are a little bit surprised and a little bit disappointed."...

[T]he new president doesn't seem eager to use his unfettered pardon power to correct sentencing injustices for the politically unconnected. Look at Obama's choice for attorney general, Eric Holder. When Holder worked for the Clinton administration, Ruckman noted, "he wouldn't take the time, energy or effort to make it a regular feature of government."...

When you think about it, the pardon petition is the rare Washington exercise that encourages politically unconnected people to petition their president for relief. But like Bush and Clinton before him, Obama seems to be hoarding this power. It's as if Team Obama sees justice as perk, not an equal right.

As regular readers know, I am a lot more than a "little bit disappointed" about President Obama's failure to make any use of his historic clemency powers.  The Obama Administration has obvious spent a lot of time and a lot of political capital seeking to ensure that suspect terrorists at GITMO get treated fairly, but it has yet to find the time or the inclination to make even a single symbolic gesture toward justice or mercy for the thousands of low-level non-violent federal defendants who can make a strong case for clemency attention.  

Perhaps someone needs to start a new advocacy campaign with this slogan: "President Obama, justice and mercy should not only be for terrorists and turkeys."

Some related posts on federal clemency realities:

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

Governor Ted Strickland grants clemency to 78 persons in Ohio

In this post a few weeks ago, I noted with great dismay and disappointment that Ohio Governor Ted Strickland had failed to act on any of a large number of clemency requests during his three years as the state's chief executive.  I am now pleased to report with excitement that Governor Strickland today made up for lost time by announcing decisions on hundreds of petitions today, and granted clemency to 78 persons.  This Columbus Dispatch article provides the basics: 

Gov. Ted Strickland approved clemency today in 78 criminal cases, including commuting the life sentence of Willie Knighten Jr., convicted for a 1996 murder in Lucas County.

Knighten, 37, is scheduled to be released Tuesday from the Allen County Correctional Institution, officials said.  "The trial and sentencing judge in Mr. Knighten's case determined that his original finding of guilt was in error and that Mr. Knighten has now served 12 years in prison for an offense he likely did not commit," Strickland said in a statement.

Knighten's clemency was among 296 requests decided by Strickland and released today. He approved 78 of them, or 26.3 percent.  Strickland OK'd 33 of 63 cases left over from 2005 and 2006, Gov. Bob Taft's last years in office, and 45 of 233 cases submitted to him in 2007.

In a conference call with reporters, Strickland said he and his legal staff spent more than 1,000 hours reviewing the cases.  "This responsibility to consider commutations is an awesome one," he said. "We take it very seriously. I have looked at every one of these cases early and many of them multiple times as I have asked questions and sought additional information."...

Strickland said in the cases in which he granted pardons after the person served their time, he considered their record outside prison.   "People have become nurses, successful business people, they have obtained master's degree's and bachelor's degrees," he said.  The vast majority of the favorable clemency decisions were pardons for minor, nonviolent offenses....

However, Strickland also approved clemency in a total of 10 cases because of what he called "fundamental injustice" or because the sentence was disproportionate to that of other inmates who committed similar crimes....

The governor has another 403 clemency requests pending from 2008 and this year.

For the true clemency junkies out there, Governor Strickland's office has provided a lot more information about the clemency decisions made today.  Specifically, this official press release describes the process and the particulars of Strickland's actions, and this huge excel spreadsheet goes into case-by-case specifics.

Texas Gov Perry considering rare capital clemency recommendation

This new AP article, which is headlined "Texas governor to decide condemned killer's fate," reports on a notable new death penalty development in Texas:

The fate of a man facing execution Thursday evening for his role in a fatal robbery is in the hands of Gov. Rick Perry after the state parole board recommended that the death sentence be commuted to life in prison.

The Texas Board of Pardons and Paroles made the rare recommendation Wednesday for 34-year-old Robert Lee Thompson, who was not the triggerman in the fatal shooting of a Houston convenience store clerk. The shooter, Sammy Butler, was convicted and received life in prison.

Perry is not required to follow the recommendation of the board, whose members he appoints. "The governor has received the board's recommendation but has not made a decision," spokeswoman Allison Castle said Wednesday....

The parole board's 5-2 vote Wednesday came in response to a petition from McCann, who argued that the case was similar to that of Kenneth Foster, also convicted and sentenced to die under the law of parties.

Perry two years ago commuted Foster's sentence to life. Foster became only the second inmate since Texas resumed carrying out executions in 1982 who won a recommendation from the parole board as his execution loomed. In the first case, in 2004, Perry rejected the board's recommendation and mentally ill prisoner Kelsey Patterson was executed.

Perry's explanation for commuting Foster's sentence was that Foster and his co-defendant were tried together on capital murder charges for a slaying in San Antonio. In Thompson's case, he and Butler were tried separately for the shooting death of 29-year-old Mansoor Bhai Rahim Mohammed.

UPDATE:  As detailed in this new AP piece, "Robert Lee Thompson was executed Thursday evening for his part in a fatal Houston store holdup after the Texas governor rejected a parole board's recommendation to spare him because he wasn't the gunman."  As the piece also notes, "Thompson was the 23rd inmate executed this year in Texas and the second this week."

The shameful state of clemency in the Buckeye state (and in the United States)

This notable new article from my own Columbus Dispatch, which is headlined "Clemency requests piling up," documents the shameful state of clemency in the state of Ohio.  Here are some of the sorry details of what is going on (or, should I say, not going on) in the Buckeye state:

When her father went to prison nearly 10 years ago, Amberley Tapp was a precocious girl of 7 with hair of golden ringlets and a sunny disposition living in a nice home in Delaware, Ohio.  Fast forward to 2009, to an angst-ridden 16-year-old with deep, sad eyes who cries frequently and sometimes feels as if she can't breathe.

Meanwhile, a unanimous recommendation by the Ohio Parole Board that Bradley Tapp, Amberley's father, be granted executive clemency sits on Gov. Ted Strickland's desk.  It has company: 712 pending clemency applications in other cases, some dating to 2005.

In nearly three years in office, Strickland, a former congressman, prison psychologist and Methodist minister, has delayed executions several times and twice commuted the death penalty.  But he has not acted on any other clemency requests, a break with the practices of past governors....

Tapp, 45, who is serving a 14-year sentence for two second-degree felony counts of assault, has twice been recommended for clemency by the Ohio Parole Board. The charges resulted from a drunken encounter he had with two Delaware County homeowners in September 1999. Tapp's victims suffered serious but not life-threatening injuries.

Judge Henry S. Shaw of Delaware County Common Pleas Court threw the book at him. Now retired, Shaw has twice since said he regrets the harsh sentence, calling it "manifest injustice." Former Gov. Bob Taft rejected Tapp's clemency plea without comment in November 2005.

Strickland's predecessors, going back to Gov. James A. Rhodes, rejected the vast majority of clemency requests they received, but they usually handled several hundred cases each year to prevent a backlog like the one Strickland now faces.

Strickland spokeswoman Amanda Wurst said he is now reviewing requests submitted before 2008, including some carried over from the Taft administration.  "Once the governor has completed his review process he will begin reviewing 2008 clemency requests," she said.  "Mr. Tapp's request was made in 2008, so his request will be reviewed as a part of the 2008 clemency-request review process." Wurst said there is no "set time for an announcement."...

Amberley acknowledges that her father "did something stupid" and deserved punishment.  But she said he's done his time -- more time, in fact, than some murderers.  "All the governor has to do is look on his desk ... to take 30 seconds of his life to sign a piece of paper," she said.  "I don't think he even realizes how much a family is being tortured. I want him to care about Ohio's justice system.  Right now, he's showing he doesn't care."

This article captures the sorry state of disrepair into which the historic power of clemency has fallen. It would be bad enough if Governor Strickland was to denied all clemency requests during his nearly three years in office; the fact that these requests all sit upon his desk unaddressed is especially iniquitous.  Gov Strickland and his staff have surely had more than enough time to establish a general policy for dealing with clemency requests and to start applying that policy to the hundreds of cases that have been awaiting a decision for many years.  But rather than have the courage to grant or deny clemency requests, Gov Strickland is content to just let these requests (and the many humans impacted thereby) rot away from neglect.

Of course, Gov. Strickland might now say that he is just taking a cue from the current leader of his party and his country, President Barack Obama.  As I have previously noted, Prez Obama is already historically slow in using his clemency power as he approaches the end of a full year in office without a single clemency grant.  Indeed, as this official webpage reveals, it appears that Obama has over 3,000 requests for pardons and commutations siting unresolved on his Oval Office desk.

Some related posts on federal and state clemency realities:

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

Virginia Gov Kaine denies clemency for DC sniper

This CNN report provides the latest news on the high-profil execution due to take place in Virigina tonight:

Virginia Gov. Tim Kaine denied a last-minute clemency request Tuesday for John Allen Muhammad, the mastermind behind the 2002 sniper attacks that terrorized the the nation's capital and its suburbs.

The denial leaves Muhammad, 48, scheduled to die Tuesday evening by lethal injection at a state prison near Jarratt, Virginia.

Governor Kaine's full statement can be accessed at this link, and here is the key concluding section:

Muhammad's trial, verdict, and sentence have been reviewed by state and federal courts, including the Supreme Court of Virginia, United States District Court for the Eastern District of Virginia, the United States Court of Appeals for the Fourth Circuit, and the United States Supreme Court.  Having carefully reviewed the petition for clemency and judicial opinions regarding this case, I find no compelling reason to set aside the sentence that was recommended by the jury and then imposed and affirmed by the courts.  Accordingly, I decline to intervene.

"President Barack Obama proving stingy with his pardon power"

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

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

Some related posts on federal clemency:

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

Notable press stories noting Obama's lack of clemency action

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

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

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

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

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

Some related posts on clemency:

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

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

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

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

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

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

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

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

Reviewing Texas's recent record on capital clemency

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Backstory and reaction to denial of capital clemency in Ohio

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

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

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

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

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

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

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

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

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

Some recent related posts:

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

Ohio governor rejects parole board recommendation of capital clemency

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

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

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

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

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

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

Some recent related posts:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Some related posts on clemency:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Some related posts:

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