Monday, September 10, 2018

Another effective examination of ups and down of federal clemency (and the persistence of hope) in modern times

Against the backdrop of almost complete disuse of the federal clemency power (especially the power to commute prison sentences) which had become a modern norm, the clemency activity over the last few years of the Obama Administration and at the start of the Trump Administration have been encouraging.  But this effective extended review of recent developments, with a focus on the case of "Life for Pot" defendant John Knock, highlights that for many downs rather than ups define the reality of all the buzz around clemency.  The article's full headline highlights its themes: "The Prisoners Left Behind: How Barack Obama’s clemency operation failed thousands of drug offenders, some serving long sentences for cannabis crimes, and left them at the mercy of Donald Trump’s whims."  Here is an excerpt:

Knock is one of more than 1,500 drug offenders set to die in federal prison under 1980s-era drug sentencing laws, despite a critical shift in drug punishments since then. Dozens of those lifers are marijuana offenders like him. With no other recourse, Knock had turned to clemency as his best chance at freedom.  Obama’s program was well intentioned but hobbled by poor planning.  Trump has commuted the sentence of just one drug offender so far, but that’s enough to give some inmates a shred of hope.

But those hopes were misplaced. Although President Obama’s program did grant more than 1,700 commutations — more than any other president — clemency experts say bureaucracy and poor planning stifled the program’s ability to free many more. Out of the 13,000 people denied between 2014 and 2017, thousands appeared to be worthy candidates—at least on paper, according to a 2017 analysis by the U.S. Sentencing Commission.... 

But in fact, the commission found that only 3 percent of drug offenders who appeared to meet all of the DOJ’s criteria actually received clemency. Conversely, only 5 percent of the people who did receive clemency appeared to meet all of the criteria. Without much transparency in the review process, several critics now compare it to a “lottery system.” 

“It felt like a lottery, in the sense that if you say you need six criteria to be considered, people are going to take you at your face value,” said Courtney Oliva, executive director of NYU’s Center on the Administration of Criminal Law.  Thousands of other petitions got no response at all. On Obama’s final day in office, 11,000 pending petitions rolled over into President Donald Trump’s administration, leaving thousands of cases still languishing in limbo as inmates looked to another president for mercy....

[I]n early June the president did commute the life sentence of Alice Johnson, who had served twenty years in prison for her role in a large cocaine distribution ring. Before Trump, President Obama had denied Johnson’s requests for clemency three times. 

Trump’s move came at the request of a celebrity, Kim Kardashian West, who visited the White House again this week to discuss criminal justice reform.  Kardashian also said this week she has a second candidate for clemency in mind, a man named Chris Young who is serving a life sentence for cannabis and cocaine convictions.  He was thirty years old when he was sent to prison almost a decade ago. Two days after granting Johnson’s clemency, Trump said he was considering other pardons from a list of 3,000 names. But despite his decision for Alice Johnson, some still doubt the possibility of a wholesale initiative like Obama’s. 

“I think there’s a lot of uncertainty as to what it means because I don’t trust this administration,” said Courtney Oliva. “Assuming we have a normal president again someday, you’re going to want a system that’s not path-dependent on Kim Kardashian.”  But to John Knock and his family, the latest clemency approval has ushered in a surge of optimism.  “How do I feel? Hopeful,” Knock wrote in a letter, days after Johnson’s release. “Obama had seven layers of bureaucracy one had to pass through.  Trump has one.” 

“It’s disruptive to the way the system has always worked,” Knock’s sister Beth Curtis said. “If it is done directly through the White House, and the White House considers petitions that had been carefully vetted by people in the criminal justice community, that’s a very positive thing.”... 

“I still have hope,” Knock said.  Knock’s name is among the several that have been sent directly to senior advisor Jared Kushner, according to Curtis, and Knock’s was sent by “a man who knew John in high school who is a friend of Mike Pence.”

September 10, 2018 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, September 05, 2018

Can Kimme bring "REAL systemic change" to the clemency process? She is with all the right folks at the White House.

After Kim Kardashian West talked Prez Donald Trump to commute the life sentence of a drug offenders (basics here), I am inclined to call her a leading force in modern criminal justice reform. And now, as detailed in this CNN piece, headlined "Kim Kardashian at White House for clemency review session," she is back at the White House preaching the need for systemic reform:

Kim Kardashian West arrived at the White House on Wednesday to discuss sentencing reform and clemency issues with White House officials, two White House officials told CNN. The reality TV star and entrepreneur was not expected to meet with President Donald Trump, one White House official said, though the plans could change.

Kardashian West, who successfully lobbied Trump earlier this summer to commute the sentence of Alice Marie Johnson, a nonviolent drug offender serving a life sentence, returned to the White House on Wednesday for a listening session on clemency issues with White House officials, including the President's son-in-law Jared Kushner.

"Today at the White House, members of the administration are hosting a listening session about the clemency process. The discussion is mainly focused on ways to improve that process to ensure deserving cases receive a fair review," deputy White House press secretary Hogan Gidley said in a statement.

Kardashian West was just one of several prison reform advocates and legal activists at the White House for the listening session on Wednesday, including Van Jones, a CNN political commentator and former adviser to President Barack Obama; Leonard Leo of the Federalist Society; Mark Holden, the general counsel of Koch Industries and Jessica Jackson Sloan, a human rights attorney and prison reform advocate.

Other attendees include Rachel Barkow, Brittany Barnett, Alex Gudich, Shon Hopwood, Paul Larkin, Mark Osler and Kevin Sharp, a former federal judge....

Trump's exercise of that clemency power has so far been on a case-by-case basis and frequently animated by personal loyalty or personal advocacy efforts. The White House is now seeking to create a regular review process for clemency review.

Kardashian West has signaled in recent days that she is taking up another case, appearing on the podcast "Wrongful Conviction" to say that she is now working on the case of Chris Young, who is serving a life sentence related to a drug case due to a mandatory minimum prison sentence.

This report is very encouraging, as is this tweet from Ms. West:

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

September 5, 2018 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Saturday, September 01, 2018

Could Gov Jerry Brown really be tempted to commute all of California's death row on his way out of office?

The question in the title of this post is prompted by this recent Fox News article headlined with a similar question, "Will Jerry Brown commute sentences of every death row inmate in one of his last acts as California governor?". Here are excerpts:

[A]s Jerry Brown’s tenure as governor of California draws to a close in January, capital punishment supporters have raised the specter that he could commute many, if not all, of the sentences.

On March 28, California’s Supreme Court issued an administrative order making it possible for Brown to commute the sentences or grant clemency.

Michele Hanisee, president of the Association of Deputy District Attorneys in Los Angeles County, told the Orange County Register earlier this week that this removes any impediment Brown may have faced. Before that, a governor had to get the approval of the majority of the state Supreme Court in the case of an inmate with two or more felony convictions. “They basically have green-lighted the governor to grant clemency to anyone…and said they won’t interfere,” she said.

California has the largest death row population in the country, but only 13 have been executed since capital punishment was reintroduced to the state in 1978, with the last one occurring in 2006. Appeals that drag out for many years are common. Last year, there were 400 death penalty appeals pending.

Despite its liberal reputation, more than half of California’s residents have expressed support for the death penalty, striking down referenda calling for it to end.

Brown, a former Jesuit seminarian who as a young man demonstrated against capital punishment, made his opposition to it clear during his political campaigns, but also said he’d respect the law regarding it while serving as attorney general and governor.

Asked if the governor was considering commuting death sentences, a spokesperson for Brown told Fox News: “A request for commutation is a serious matter, and every applicant is carefully and diligently vetted. The Governor issued commutations earlier this month… California inmates can petition to have their sentence reduced or eliminated by applying for a commutation of sentence. To be clear, no individuals on death row have received commutations.”...

Kent Scheidegger, an attorney who argued for Proposition 66 – a measure to speed up executions – said that anything is possible as far as Brown and California politics, but he believed the governor would not commute death sentences. “Despite his personal opinion, he said he’d enforce the death penalty,” said Scheidegger, who is legal director of the Criminal Justice Legal Foundation in California. Scheidegger expressed concern about the state high court’s order appearing to give Brown more sway over commuting death sentences, telling Fox News: “That’s worrisome.”

Since executions rarely have been carried out in California and elsewhere, some have called the death penalty symbolic, and pointless. Scheidegger said he disagrees. “It’s important because there are some crimes for which anything less is simply not justice.”

September 1, 2018 in Clemency and Pardons, Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Friday, August 24, 2018

Will Prez Trump deliver on all the clemency "tidal wave" of hopefulness he has engendered?

The question in the title of this post is prompted by this notable recent article in the Washington Examiner headlined "MLK niece urges clemency 'tidal wave' after giving White House list of names." Here are excerpts: 

Evangelical leader Alveda King says she’s optimistic that President Trump will unleash a “good tidal wave” of clemency after she delivered to the White House a list of nearly 100 prisoners who she wants Trump to release.

The niece of Martin Luther King Jr. participated in an Aug. 1 discussion between Trump and African-American pastors and left behind her list of names with the office of the presidential adviser and son-in-law Jared Kushner.

King, a supporter of Trump and leader of the anti-abortion group Civil Rights for the Unborn, declined to provide a copy of her list, citing the potential sensitivity of clemency decisions, and would not discuss specific details about her interactions at the White House. “I did not, on purpose, count or remember the names, I just submitted the list,” King told the Washington Examiner. “I’m trying to get a good tidal wave, a positive tidal wave, a tidal wave to maybe change things and make things better.”

King wants to see a "jubilee" or mass awarding of clemency and said there are misperceptions about what’s happening behind the scenes. She said it’s her understanding that the White House, through Kushner’s office, is processing recommendations in an orderly manner.

Trump has used his constitutional clemency powers nine times — releasing four inmates, two with pardons, and issuing post-release pardons to five others — almost always at the urging of celebrities or political allies, giving the impression of haphazard grants based on influencer requests.

But King said she believes the White House has in place a process for reviewing a deluge of recommendations following the June release of Alice Johnson, a drug conspiracy convict who Trump released at the urging of reality TV star Kim Kardashian. Trump unleashed tremendous enthusiasm behind bars by releasing Johnson, and then declaring: "There will be more pardons. ... I want to do people that are unfairly treated like an Alice."

There were signs of increasing internal work on clemency applications at about the time Johnson was released. Days earlier, White House counsel Don McGahn called a right-leaning policy advocate and asked him to assemble lists of worthy clemency aspirants. The outside contact gathered names from the CAN-DO Foundation and Families Against Mandatory Minimums and hand-delivered the lists to McGahn and Kushner.

Some policy advocates have urged Trump to create an in-house clemency commission that would supplement the work of the Justice Department’s Office of the Pardon Attorney, which clemency advocates view as ineffectual and biased in favor of prosecutors. But so far, no official in-house review process has been announced....

“It’s not disorder, it’s a very orderly process. … I'm a person who believes in order, and I believe they have a good system in place," King said. "I didn’t try to go in and put a list in the president’s hands. ... You can get it to Jared Kushner’s office, and they will look at it."

Angela Stanton, a former prison inmate, author, and King’s goddaughter, took the lead in assembling King's list. She said that inmates who already served more than 10 years in prison were given priority. “Everybody deserves to get out and everybody deserves a second chance,” Stanton said. “The majority of these people decided to go to trial, and if they had not gone to trial, they would have been home.”

A couple names on the list already were submitted to the White House, such as Michelle West, 25 years into a life sentence for drug-related crimes, and paralyzed inmate Michael Pelletier, 12 years into a life sentence for smuggling Canadian marijuana into Maine.  Others were profiled in a New York University report featuring inmates left behind by an Obama administration push to shorten drug sentences, including Lavonne Roach, a mother of three who is 20 years into a 30-year methamphetamine sentence; Chad Marks, who is more than a decade into a 40-year sentence for drug dealing; David Barren, 10 years into a 30-year cocaine sentence; and Craig Cesal, who since 2003 has been serving a life sentence for marijuana crimes.

The report referenced above is this 36-page document produced by the Center on the Administration of Criminal Law at NYU Law School under the title "The Mercy Lottery: A Review of the Obama Administration’s Clemency Initiative."  I am very pleased to see that report being used to generate a list of good clemency candidate, though I sense that the Trump White House has heard from lots of different folks in lots of different ways about lots of different clemency possibilities.  That reality leads me back to the question in the title of this post: because there is no shortage of good clemency candidates in the federal system, the only thing really holding back a clemency "tidal wave" is the person sitting in the Oval Office.  

August 24, 2018 in Clemency and Pardons, Criminal justice in the Trump Administration, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Wednesday, August 15, 2018

Interesting commutation developments in wake of initiative reform in Oklahoma

This local story, headlined "49 Oklahoma inmates imprisoned for drug crimes asking for commutations; 49 asking state to consider commutations in light of State Question 780," reports on an interesting clemency echo in the wake of a notable ballot initiative passed in Oklahoma in 2016. Here are the details:

Some state inmates serving 10 years to life in prison for what has been described as “low-level” drug crimes have applied for commutations thanks to the help of advocates and law students.

The 49 inmates and those backing their commutation applications are citing recent changes in state law — and Oklahoma’s highest incarceration rate in the nation — as the reason why. “A lot of these are 20-, sometimes 30-year sentences on a crime that if charged now would be a misdemeanor,” said Corbin Brewster, Tulsa County’s chief public defender.

Brewster’s office assisted Oklahomans for Criminal Justice Reform with creating the list of inmates. The coalition of business and community leaders, law enforcement experts and advocates across the state is led by former state House Speaker Kris Steele.

The state Pardon and Parole Board will take the up the first batch of 23 commutation requests — all female inmates — on Monday in Oklahoma City. The rest are scheduled to be considered next month.

The requests for commuted sentences, if recommended by the parole board and approved by the governor, would only reduce the length of the prison terms. Some sentences could be modified to “time served,” but the convictions would remain on the inmate’s record.

Push for commutations is spurred by the passage of State Question 780, which starting July 1, 2017, made nonviolent drug possession offenses and low-level property offenses misdemeanors instead of felonies. Steele led the call for the state question, which was approved in November 2016 by 58 percent of Oklahoma voters.

Eight law school students, working as summer interns for Oklahomans for Criminal Justice Reform, helped choose applicants and interviewed them, said Stephen Galoob, associate professor at the University of Tulsa Law School. Galoob said the effort is aimed at “just making the system work.”

“These are all cases and these are all stories that are really powerful,” he said. “And a lot of what the students are doing is just telling the stories of the people who are in prison for crimes that the people of Oklahoma don’t really think we should be locking people up for.”...

The parole board uses a two-stage process to consider commutations. During the first stage, the board reviews the application before considering whether to pass the request to a second, more thorough review stage. At least a majority vote of the board is needed to forward the commutation request to the governor for final consideration.

The parole board considered 477 commutation requests in fiscal 2018, which ended June 30, said DeLynn Fudge, the agency’s executive director.  The board passed 19 of the requests to the second stage of its review process, of which 10 were forwarded to the governor with a recommendation that they be approved, Fudge said. 

Especially in light of the historical numbers reported in this article, it is especially interesting and exciting to see this follow-up article headlined "Nearly two dozen cases involved in 'commutation campaign' advance to second stage of consideration":

The Oklahoma Pardon and Parole Board voted Monday to advance a group of nearly two dozen people who are being assisted by a commutation campaign to a second stage of review.

August 15, 2018 in Clemency and Pardons, Drug Offense Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, August 01, 2018

Office of Inspector General issues "Review of the Department’s Clemency Initiative"

A couple of helpful readers made sure I did not miss today's release of this big new report from the Justice Department's Office of the Inspector General titled simply "Review of the Department’s Clemency Initiative." Here is just the very start of its "Results in Brief":

We found that the Department did not effectively plan, implement, or manage the Initiative at the outset. However, subsequent actions by Department leadership enabled the Department to not only meet its goal of making recommendations to the White House on all drug petitions received by the deadline of August 31, 2016, but also to make recommendations on over 1,300 petitions received by OPA after the deadline. In total, as a result of the Initiative, the Department made recommendations to the White House on over 13,000 petitions, resulting in 1,696 inmates receiving clemency.

Our review identified several shortcomings in the Department’s planning and implementation of the Initiative. Because of philosophical differences between how the Office of the Deputy Attorney General (ODAG) and OPA viewed clemency, Department leadership did not sufficiently involve OPA in the Initiative’s preannouncement planning. Moreover, despite the Department’s stated commitment to provide OPA with the necessary resources, the Department did not sufficiently do so once the Initiative began.

The Department also did not effectively implement the Initiative’s inmate survey, which was intended to help the Department identify potentially meritorious clemency petitioners. For example, rather than survey only those inmates who likely met the Initiative’s six criteria, the survey was sent to every Federal Bureau of Prisons inmate. As a result, CP 14 and OPA received numerous survey responses and petitions from inmates who clearly did not meet the Initiative’s criteria, thereby delaying consideration of potentially meritorious petitions. We found other problems with the survey, resulting in OIG’s issuance of a Management Advisory Memorandum to the Department, which is attached as an appendix to this report.

Further, the Department experienced challenges in working with external stakeholders to implement the Initiative. For example, the Department did not anticipate that CP 14 attorneys would have challenges in obtaining inmate Pre-sentence Investigation Reports and, as a result, it took almost a year before the Administrative Office of the U.S. Courts allowed CP 14 attorneys to access them, which hampered CP 14’s ability to make timely eligibility determinations. We also found that the Department and CP 14 had very different perspectives regarding CP 14’s role in the Initiative. In particular, while the Department expected CP 14 to focus on identifying and submitting petitions on behalf of inmates who were strong candidates for clemency, CP 14 instead viewed its role as assisting and advocating for any inmate who wished to file a petition. As a result, the Department believes CP 14 took longer to complete its work.

Because I am on the road, I fear I will not have a chance to review and comment on this important and valuable new report. But what I have already read reinforces all my long-standing concerns about the Department of Justice having a central role in the clemency process and my long-voiced contention that all Prez should take clemency powers and possibilities seriously from the very moment they are elected to serve in the Oval Office.

August 1, 2018 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, July 30, 2018

Notable review of capital clemencies by Ohio governors

The AP has this interesting new piece, headlined "Gov. Kasich spares record number of death row inmates," that reviews the current and past Ohio gubernatorial records on the death penalty and capital clemencies. Here are excerpts:

Ohio Gov. John Kasich has finished dealing with executions for the remainder of his time in office following a modern-era record of death penalty commutations.  The Republican governor spared seven men from execution during his two terms in office, including commutations on March 26 and July 20. Kasich allowed 15 executions to proceed, including the July 18 execution of Robert Van Hook for strangling, stabbing and dismembering a man he met in a Cincinnati bar more than 30 years ago.

Not since Democrat Mike DiSalle spared six death row inmates in the early 1960s has an Ohio governor spared so many killers during periods when the state had an active death chamber. DiSalle allowed six executions to proceed. Democratic Gov. Richard Celeste commuted eight death sentences just days before leaving office in 1991, but none of those inmates' executions was imminent....

Kasich's immediate predecessor, Democratic Gov. Ted Strickland, commuted five death sentences and allowed 17 executions during his four-year term. Ohio resumed executions in 1999 under Gov. Bob Taft after a 36-year gap. Taft, a Republican, allowed 20 executions to proceed and spared just one inmate based on concerns raised by DNA evidence not available at the time of trial.

Nationwide, governors have spared 288 death row inmates since the U.S. Supreme Court upheld the constitutionality of capital punishment in 1976, with a handful spared each year over the past decade. That doesn't include mass clemencies in states — such as New Jersey in 2007 — where the death penalty was abolished and entire death rows were emptied.

Sparing inmates is not the political death knell it might have been in decades past, thanks to concerns about innocence raised by DNA testing and the role of severe mental illness on some offenders' behavior. "Kasich's decisions to commute reflect a societal shift away from an unquestioning belief in the value of the death penalty or at least the value in every case," said Lori Shaw, a University of Dayton law professor....

Taft said he's now opposed to capital punishment except in the most severe cases, such as acts of terrorism, multiple victims or the killing of a police officer. He also backs findings of a state Supreme Court commission that recommended against the death penalty for inmates suffering severe mental illness at the time of the crime, and in cases where a homicide was committed during other crimes such as burglaries or robberies. "The climate is a little different in regard to the death sentence today," Taft said. "Governors have more latitude or leeway to consider a number of factors that may not have been considered in prior times."

I noted in this prior post that Gov Kasich's capital record was notable, and I find the comments of former Ohio Gov Taft especially interesting here. (N.B.: the AP needs to fact-check Taft's executions record, as I am pretty sure he presided over 24 executions.)  When Taft says "Governors have more latitude or leeway to consider a number of factors that may not have been considered in prior times," he is not talking about any change in the legal standards or procedures for clemency in Ohio.  Rather, Taft is referencing a purely political evolution that now make it much less politically risky for a Governor to grant lots of capital clemency.

July 30, 2018 in Clemency and Pardons, Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, July 26, 2018

Interesting reflections on modern clemency realities

I flagged in this prior post an interesting star-studded event in DC yesterday discussing federal clemency's past, present and possible future.  This Washington Examiner piece reports on some of the interesting things said at the event under the headline "Alice Johnson recalls 'feeling of betrayal' from Obama, urges working with Trump."  Here are excerpts:

Former prison inmate Alice Johnson said Wednesday she had a "feeling of betrayal" when former President Barack Obama left office with her still behind bars, urging other clemency aspirants to put aside their qualms and work with President Trump to win their release.

Johnson, who Trump freed last month from a drug-related life sentence, spoke at a gathering of clemency advocates at George Washington University, saying her case should give hope to others. "From what everyone was saying, the Obama administration would be the one that would set you free, but I was still not set free. So to put your faith in a man was not a good thing to do," Johnson said.

"And not only was I left behind, but many others were left behind also," Johnson said. "There was a feeling of betrayal because I had so much hope that I was going to come out." Johnson, who addressed the gathering before a series of panels, and then again as a panelist, said she thinks there was a divine purpose in her wait. "It didn't happen for a reason. It happened for this time in history so that you will know that hearts can change, so that you will know that you should never stop fighting either, that you are not to look at what administration is in power, who is in office," she said....

Panelists at the clemency-themed event at points debated the merits of former President Barack Obama's late-second-term spree of prison commutations, which went overwhelmingly to drug convicts, a large share of whom were convicted for crack cocaine.  "The initiative missed a ton of people," said Rachel Barkow, a law professor and member of the U.S. Sentencing Commission. Barkow argued that a major flaw was relying on the Justice Department, saying that prosecutors are disinclined to recognize mistakes. "The deputy attorney general was saying 'no' in a lot of these cases," she said.

Roy Austin, a White House official in the Obama administration, defended Obama's late-term commutation push, saying "I'm biased, [but] we got it pretty dang right." Austin said he "loves" Trump's openness to recommendations from influential people, but that "the problem is that that's helping too few," and lacks a standardized process to ensure fairness.

Van Jones, an early-term Obama adviser who helps lead the clemency campaign #Cut50, offered positive views on the Trump administration, saying that at first "I was hopeless on election night" about clemency. "He took one step and got positive feedback," Jones said about Johnson's release, Trump's second prison commutation and his first for a drug convict.

Trump's subsequent invitation for professional athletes to submit the names of people worthy of clemency — an offer with few respondents — was "a remarkable development," Jones said. "He literally ran out of the White House saying, 'I want to do more.'"...

Several panelists discussed ideas for moving the vetting work of the Office of the Pardon Attorney out of the Justice Department, to streamline clemency applications and remove a possible conflict of interest.

Amy Povah, a Clinton clemency recipient who leads the CAN-DO Foundation, said that she's optimist about the Trump administration. "I think we have a huge opportunity because of [Johnson's] case, and I hope the Trump administration does something historic," Povah said.

Mark Holden, general counsel of Koch Industries, said clemency transcends the typical conservative-liberal divide in politics. "These are fundamental liberty issues," he said, arguing that Johnson's case "shocks the conscience" regardless of political affiliation.

I sincerely want to be as optimistic and hopeful as Amy Povah about Prez Trump doing something historic in this arena.  But all of his clemency chatter needs to become clemency action before too long if he wants to avoid creating a "feeling of betrayal" among a whole lot of federal prisoners now surely eager to benefit from all his encouraging talk.

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

July 26, 2018 in Clemency and Pardons, Criminal justice in the Obama Administration, Criminal justice in the Trump Administration, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Monday, July 23, 2018

Notable discussion of clemency's past, present and possible future in DC on July 25

As detailed in this press release, an impressive and diverse collection of experts will be speaking about clemency this week at the George Washington University Law School. Here are a few details about the event from the release:

Criminal Justice Reform Advocates to Hold Forum on July 25 to Discuss Clemency in the Trump Era, Featuring Commutation Recipient Alice Johnson & Bipartisan Clemency Advocates

What: Justice Roundtable will host a forum on July 25, 2018 from 11:30 am to 2:00 pm to explore clemency for drug offenses, focusing on its use in the Bush, Clinton and Obama presidencies, how it is being handled during the Trump presidency and concrete ways it can be enhanced today and beyond.

Where: George Washington University Law School, Moot Court Room 2000 H Street NW, Washington, DC

When: 11:30 am to 2:00 pm; Wednesday, July 25, 2018

Here is how the clemency panel discussion is structured and scheduled speakers:

What it Was

  • Roy Austin, former White House Domestic Policy Council
  • Rachel Barkow, Commissioner U.S. Sentencing Commission
  • Jason Hernandez, sentence commutation by President Obama
  • Amy Povah, Director CAN-DO Foundation & Clinton commutee

What it Is

  • Mark Holden, General Counsel, Koch Industries
  • Van Jones, political commentator, host of The Van Jones Show
  • Brittany Barnett, founder Buried Alive Project, Attorney for Alice Johnson
  • Alice Marie Johnson, sentenced commutation by President Trump

What it Can Be

  • Mark Osler, Professor & Distinguished Chair, Univ. of St. Thomas Law School
  • Paul Larkin, Senior Fellow, Meese Center, Heritage Foundation
  • Ebony Underwood, founder, We Got Us Now
  • Andrea James, Natl Council Incarcerated & Formerly Incarcerated Women & Girls

July 23, 2018 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

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

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

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

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

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

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

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

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

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

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

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

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

July 23, 2018 in Clemency and Pardons, Drug Offense Sentencing, Offender Characteristics, Race, Class, and Gender, Sentences Reconsidered, Who Sentences | Permalink | Comments (16)

Sunday, July 22, 2018

"Setting the Record Straight: The Pardon Power is Part of the Rule of Law"

The title of this post is the headline of this commentary at Just Security authored by Sam Morison, who worked for many years as a staff attorney in the Office of the Pardon Attorney.  I recommend the piece in full, and here are excerpts: 

Writing from the perspective of a former federal prosecutor, Barbara McQuade decried President Donald Trump’s most recent exercise of the pardon power, which supposedly poses a grave threat to “anyone who is committed to our legal institutions, particularly federal law enforcement.”  The remedy for such alleged abuse of discretion, she suggests, is to rely on the good judgment of the Office of the Pardon Attorney (OPA), the agency within the Justice Department that for many years has supervised the provision of advice to the president in clemency matters.  The default standard for making such decisions, she further suggests, is contained in the U.S. Attorney’s Manual, according to which a “petitioner should be genuinely desirous of forgiveness rather than vindication.”

This has now become a familiar refrain among the president’s critics.  But while reasonable minds might differ about the substantive merits of the president’s clemency decisions to date, McQuade’s critique exhibits both a remarkably impoverished view of the pardon power and an exaggerated confidence in the legitimacy of the extant advisory process....

[T]he president has both a right and a duty to exercise the pardon power because of his own constitutional concerns about a law or because of policy objections to enforcement of the law in a particular context.  This principle was established as early as 1804, when upon taking office President Thomas Jefferson pardoned those who had been convicted under the Alien and Sedition Acts, which he believed to be unconstitutional.  Similarly, President Woodrow Wilson granted dozens of pardons to persons convicted of liquor-related offenses under the Volstead Act, because of his constitutional objections to the law.

More recently, President Ronald Reagan granted pardon to former FBI agents Mark Felt and Edward Miller while their cases were still pending on appeal, on the grounds that they had not acted with criminal intent, but rather in a “good-faith belief that their actions were necessary to preserve the security interests of our country.”  President George H.W. Bush pardoned the so-called Iran-Contra defendants, after indictment but prior to trial, based on his conclusion that the independent counsel’s prosecution had constituted the “criminalization of policy differences.”  Prior to leaving office, President Clinton pardoned or commuted the sentences of numerous persons convicted in independent counsel investigations that had dogged his administration for basically the same reason.  And President George W. Bush commuted the prison sentence of Lewis Libby, his vice president’s former chief of staff, after his conviction was affirmed but before he reported to prison.  Bush reasoned that even if Libby had committed perjury in the context of a highly politicized grand jury investigation, a prison sentence would be excessively harsh punishment.

Granted over a period of more than 200 years, the common thread that ties these disparate acts of executive clemency together is the intersection of law and politics.  In each case, the president made the judgment that partisan considerations had improperly influenced either the legislative or the judicial process, thereby undermining the moral legitimacy of strictly enforcing the letter of the law.

When the president exercises the pardon power for this reason, it is not an idiosyncratic exception to the normal operation of the federal criminal justice system.  To the contrary, it is an integral part of the system of checks and balances embedded in the Constitution.  As Justice Oliver Wendell Holmes wrote for a unanimous Court, a pardon “is not a private act of grace from an individual happening to possess power. It is a part of the Constitutional scheme. When granted it is the determination of the ultimate [executive] authority that the public welfare will be better served by inflicting less than what the judgment fixed.”  In this context, then, a pardon is a public act of grace, taken by the president in his official capacity as the chief executive, to preserve the integrity of the federal criminal justice system.

The only remaining question is who should exercise effective control over this broad discretionary power, a democratically elected president or a small cadre of anonymous bureaucrats in the Office of the Pardon Attorney (OPA)?  Having served as a staff attorney in OPA for more than a decade, I can say with some confidence that the office does not view its role as a neutral arbiter.  Instead, OPA’s institutional function is to protect the Justice Department’s prosecutorial prerogatives by churning out a steady stream of almost uniformly negative advice, regardless of the merits of any particular case.  This is problematic because in the normal course, the only information the president receives about a case is whatever the Justice Department chooses to tell him.  And in my entire tenure at OPA, I am not aware of a single instance in which a federal prosecutor acknowledged that one of her cases might have been affected by “undue harshness or evident mistake.”

There is no reason to believe that this situation has fundamentally changed, given the Justice Department’s inherent conflict of interest in each of these cases. In effect, the Justice Department’s advisory record amounts to the assertion that the federal criminal justice system is essentially perfect — injustices never occur, sentences are never excessive, circumstances never change, and mercy is never appropriate.  No disinterested person really believes this. Accordingly, if Trump insists in going it alone, as McQuade complains, the Justice Department has no one but itself to blame.

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

July 22, 2018 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, July 18, 2018

Texas completes eighth execution of 2018 despite complaints about clemency process

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thursday, July 12, 2018

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, July 10, 2018

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

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

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

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

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

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

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

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

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

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

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

Wednesday, July 04, 2018

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

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

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

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

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

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

Thursday, June 21, 2018

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Wednesday, June 20, 2018

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

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

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

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

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

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

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

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

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

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

Saturday, June 16, 2018

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

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

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

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

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

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

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

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

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

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

Thursday, June 14, 2018

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

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

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

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

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

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

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

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

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

Simply put, we live in interesting times.

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

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

Wednesday, June 13, 2018

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

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

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

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

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

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

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

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

Monday, June 11, 2018

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Sunday, June 10, 2018

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

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

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

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

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

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

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

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

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

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

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

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

Friday, June 08, 2018

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

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

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

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

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

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

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

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

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

Thursday, June 07, 2018

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

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

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

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

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

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

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

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

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

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

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

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

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

Wednesday, June 06, 2018

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

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, June 05, 2018

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Prior recent related posts about Trumpian clemency activity:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Prior recent related posts about Trumpian clemency activity:

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

Saturday, June 02, 2018

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Prior recent related posts about Trumpian clemency activity:

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

Thursday, May 31, 2018

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

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

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

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

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

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

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

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

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

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

A few prior related posts:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Wednesday, May 30, 2018

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

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

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

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

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

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

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

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

Prior related post:

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

Sunday, May 27, 2018

Interesting accounting of clemency's continued decline in New Mexico

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

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

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

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

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

Martinez: 1 percent.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thursday, May 24, 2018

Prez Trump posthumously pardons boxer Jack Johnson

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

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

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

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

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

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

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

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

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

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

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

Wednesday, May 02, 2018

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, May 01, 2018

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

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

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

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

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

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

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

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

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

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

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

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

Some of many older related posts on the Blagojevich case:

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

Wednesday, April 25, 2018

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

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

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

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

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

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

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

Recent related posts:

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

Thursday, April 19, 2018

NY Gov Cuomo restores voting rights to parolees via executive order

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Friday, April 13, 2018

Prez Donald Trump officially pardons Scooter Libby

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

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

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

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

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

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

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

Prez Trump reportedly to pardon Scooter Libby

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

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

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

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

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

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

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

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

Monday, March 26, 2018

Ohio Gov. Kasich commutes yet another death sentence

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

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

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

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

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

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

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

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

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

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

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

Sunday, March 11, 2018

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

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

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

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

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

Saturday, March 10, 2018

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

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

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

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

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

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

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

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

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

Related post on prior clemency grants:

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

Friday, February 23, 2018

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thursday, February 22, 2018

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

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

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

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

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

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

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

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

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

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

Wednesday, February 21, 2018

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Prior related post:

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

Tuesday, February 20, 2018

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Prior related posts:

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

Monday, February 19, 2018

"Conservatives urge Trump to grant pardons in Russia probe"

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

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

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

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

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

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

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

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

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

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

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

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

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

Wednesday, February 14, 2018

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thursday, February 08, 2018

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

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

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

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

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

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

Kasich reset the execution for Oct. 17.

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

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

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

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

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

Friday, February 02, 2018

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

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

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

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

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

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

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