Sentencing Law and Policy

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Some related posts:

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

"The Fall of the Presidential Pardon"

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

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

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

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

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

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

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

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

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

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

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

Some related posts:

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

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

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

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

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

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

Some related posts:

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

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

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

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

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

Some related posts:

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

Still awaiting some hope and change on the clemency front

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

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

Some recent related posts:

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

Another public and potent call to reinvigorate the pardon power

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

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

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

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

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

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

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

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

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

Some recent related posts:

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

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

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

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

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

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

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

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

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

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

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

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

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

Even VP Cheney couldn't convince President Bush to grant one more pardon

The New York Daily News has this notable new piece reporting that Dick Cheney made a major (but still failed) final push to get President Bush to pardon Scooter Libby. Here are some of the details:

In the waning days of the Bush administration, Vice President Dick Cheney launched a last-ditch campaign to persuade his boss to pardon Lewis (Scooter) Libby — and was furious when President George W. Bush wouldn't budge.

Sources close to Cheney told the Daily News the former vice president repeatedly pressed Bush to pardon Libby, arguing his ex-chief of staff and longtime alter ego deserved a full exoneration — even though Bush had already kept Libby out of jail by commuting his 30-month prison sentence. "He tried to make it happen right up until the very end," one Cheney associate said.

In multiple conversations, both in person and over the telephone, Cheney tried to get Bush to change his mind.... Several sources confirmed Cheney refused to take no for an answer.  "He went to the mat and came back and back and back at Bush," a Cheney defender said.  "He was still trying the day before Obama was sworn in."

After repeatedly telling Cheney his mind was made up, Bush became so exasperated with Cheney's persistence he told aides he didn't want to discuss the matter any further.  The unsuccessful full-court press left Cheney bitter.  "He's furious with Bush," a Cheney source told The News....

In July 2007, at Cheney's urging, Bush commuted Libby's 30-month prison sentence.  But he also said, "I respect the jury's verdict" and noted that his decision "leaves in place a harsh punishment" for the man often described as "Cheney's Cheney."  Libby was fined $250,000, and as a convicted felon, he has been disbarred from practicing law and cannot vote.

Washington Post urges Prez Obama to do better on clemency

I was pleased to just discover that the Washington Post had this editorial yesterday that echoes my calls for President Obama to make better and more prominent use of his clemency power.  The editorial is headlined "A Need for Mercy: President Obama should not replicate his predecessor's sad track record on pardons," and here are excerpts:

Mr. Bush's legacy on pardons will be shaped largely by what he failed to do. Mr. Bush pardoned 189 inmates and commuted the sentences of 11 others -- the stingiest record compiled by any two-term president since World War II.... Perhaps after the term-ending fiascos of the Clinton administration, which gave us the notorious pardon of fugitive financier Marc Rich, it is not hard to understand why a president might shy away from using the pardon power. Perhaps this explains Mr. Bush's failure to act on a whole host of cases.

President Obama should muster such courage when a failure to act allows the perpetuation of injustices that cannot be remedied elsewhere. Those decisions must be informed by the facts of the case and not governed by the political connections or financial contributions of the applicant. Mercy, as Shakespeare wrote, is the gift twice blessed, but that is true only if it is given freely and only on the merits.

Though President Obama and his team have been busy with other priorities, it remains notable and disappointing that he has now been in office a full three weeks and has not yet used his clemency power.  As P.S.Ruckman has effectively documented here, history shows that the majority of presidents were able to find the time to grant a few clemencies within the first few weeks in office. 

President Abraham Lincoln, who had to deal with a brewing civil war, granted a clemency before the end of his fourth full week in office.  I hope (but do not expect) that President Obama and his team will look to follow in Lincoln's path here and find the time for a few symbolic clemency grants.

Some recent related posts:

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

Taking stock of President George W. Bush's clemency record

Though perhaps not providing the truly final word on the clemency efforts of our 43rd president, former Pardon Attorney Margaret Love has created (and allowed me to post) a terrific review of President George W. Bush's clemency record.  Here are snippets of her effort, which can be downloaded in full below:

The final figures on President Bush’s clemency record establish that he granted fewer pardons and commutations than any two-term president since Thomas Jefferson, and fewer per term than any full-term president since John Adams, with the exception of his father. Statistically, he is tied with his father for the lowest favorable grant rate for pardon petitions (9.8%), and his grant rate for commutations barely registers (.012%). While he pardoned fairly regularly through out his two terms, 76 of his 189 pardons and seven of his eleven commutations were granted in his final year.

President Bush received more clemency petitions than any president since FDR (not counting petitions received pursuant to general grants of amnesty), and he denied more. In eight years, he denied almost 7500 commutation and 1800 pardon requests, three times the number denied by Bill Clinton....

The disappointing shortage of grants at the end of President Bush’s term, like the torrent of irregular pardoning at the end of Clinton’s, is traceable to a chronically dysfunctional pardon advisory system, dominated by the perspective of prosecutors, which can take years to process an application and produces very few favorable recommendations.  The difference in the end-games for the two presidents is attributable to their very different personal inclinations to dispense forgiveness. But neither president was well-served by a Justice Department whose pardon office has become a place where petitions for presidential mercy go to die. If President Obama wants to make the most of his constitutional pardon power as an instrument of government, he will have to ensure that there is a strong and independent program for administering it, with a staff committed to the enterprise and the resources necessary to carry it out.

Download Margy Love's Bush Pardons Profile

Some recent related posts:

• "Compassionate Conservatism, My Ass"
• Inaugural rhetoric about freedom and liberty in prison nation
• Are the Border Agents the only federal offenders for whom President Bush feels compassion?
• ACS issue brief on the pardon power
• More proof politicians are very compassionate toward criminals ... who are fellow politicians
• Commentary on how celebrity status effects clemency commitments
• Few giving the President sentencing thanks
• The sad (unpardonable) state of compassion in the Bush Administration
• Latest FSR issue on "Learning from Libby"

Historical evidence that it is NOT too early to start demanding clemencies from President Obama

Over at the Pardon Power, P.S. Ruckman has two amazing posts here and here detailing for all the Presidents "the number of days between inauguration or the assumption of office (via death or resignation) and their very first pardon as President of the United States."  The data show that President Obama is already on the verge of being behind the historical curve: roughly half of all Presidents granted their first pardons within their first two weeks in office! 

Of course, 100 days is a widely-used marker for the Presidential honeymoon, and the data show that all but eight Presidents granted clemency within the first 100 days.  Disappointingly, even as the federal criminal justice system has grown enormously over the last two decade, three presidents who have been among the slowest in using this power of mercy were President Clinton and both Presidents Bush.  So much for feeling others pain or 1000 points of light or compassionate conservatism from the recent residents on the Oval Office.

As I have suggested before and will say again and again, I will only be a true believer in "hope" and "change" if and when President Obama changes the ugly realities that now surround clemency by starting to use the power to remedy true federal criminal injustices as the Framers intended.

Some recent related posts:

• Is it too early to start demanding President Obama use his clemency power?
• Commentary on how celebrity status effects clemency commitments
• When will President Obama start acting like President Lincoln when it comes to the clemency power?
• Inaugural rhetoric about freedom and liberty in prison nation
• Are the Border Agents the only federal offenders for whom President Bush feels compassion?
• A request for a commutation for Weldon Angelos 
• What might 2009 have in store for . . . executive clemency?  
• What do "our ideals" say about mass incarceration or LWOP for juves or acquitted conduct or the death penalty or GPS tracking or....

When will President Obama start acting like President Lincoln when it comes to the clemency power?

This CNN reporthighlights that President Obama is already moving fast during his second work week, having already "signed a memorandum Monday requiring the Environmental Protection Agency to reconsider an application by California to set more stringent auto emissions and fuel efficiency."  In addition, as detailed at this official page, President Obama has already acted on abortion issues, ethics issues and GITMO/terror war issues.  In light of all this activity, I think it is now no longer too soon to start complaining about the new President's failure to start using his clemency power.

As noted hereby PS Ruckman, President Lincoln was proactive in his use of the clemency power, and there is every reasons for the new President to consider following his lead:

Despite the fact that he was riding thin electoral support and had a Civil War on his hands, Abraham Lincoln took the time and, to some extent, the political risk, to grant pardons to almost 400 individuals in just over four years [which is] more than both George H. W. Bush and George W. Bush combined granted in a full twelve years....

Because President Lincoln frequently provided multiple explanations for his clemency decisions, we know that he considered a wide range of factors in granting these pardons but especially: good behavior during confinement, a penitent disposition, first time offenses and the youth of offenders. Scholars have noted Lincoln "thrived on the hope that each request he granted further educated a portion of the public as to the necessity of a clemency power in the justice system."  With hundreds of thousands of Americans in our prisons, and thousands of applications for clemency piled up in the Department of Justice, we believe the Nation is long over-due for this side of Abraham Lincoln to re-emerge in the White House.

Even a poor math student can figure out that granting 400 pardons in four years work out to an average of 1 or 2 clemency grants each and every week.  FDR, another famed President often mentioned these day, granted, on average, more than 5 clemencies per week throughout all his years in the White House.  So, if President Obama really wants to follow in wise presidential footsteps, he ought to get moving on clemencies ASAP.

Some recent related posts:

• Is it too early to start demanding President Obama use his clemency power?
• Commentary on how celebrity status effects clemency commitments
• Inaugural rhetoric about freedom and liberty in prison nation
• Are the Border Agents the only federal offenders for whom President Bush feels compassion?
• A request for a commutation for Weldon Angelos 
• What might 2009 have in store for . . . executive clemency?  
•  What do "our ideals" say about mass incarceration or LWOP for juves or acquitted conduct or the death penalty or GPS tracking or....

Commentary on how celebrity status effects clemency commitments

I am pleased to see this notable new commentary about Orrin Hatch's celemency commitments by Rebecca Walsh in today's Salt Lake Tribune. Here are highlights:

After reading People and Us magazine, I know that I'd serve more time for a DUI than Paris Hilton or Nicole Richie. Justice is usually softer for celebrities.

Weldon Angelos just isn't a big enough star.  He's the forgotten Utah hip-hop producer serving 55 years for carrying a gun while selling 24 ounces of marijuana. Condemned by minimum-mandatory sentencing guidelines, Angelos also has been forsaken by his elected representative -- music-loving Sen. Orrin Hatch.

Hatch called "the appropriate people" at the Department of Justice when he learned of rapper John Forte's plight: A record producer who worked on The Fugees' Grammy-winning album "The Score," Forte was arrested in 2000 at Newark airport with 31 pounds of liquid cocaine.  He was sentenced to another minimum-mandatory sentence of 14 years....

Despite his love for rap producers, Hatch is unmoved by Angelos' story: The 29-year-old father of two young children was caught selling three 8-oz. baggies of pot in a series of stings.  His first offense.  In exchange for reduced sentences, informants testified he brandished a gun.  Angelos disputes their stories.  When he wouldn't plead guilty, prosecutors tacked on additional gun charges, ratcheting his sentence up....

His attorneys aren't asking for a pardon, just reasonable punishment.  Angelos has served five years. He's likely to die before he leaves prison.  Bush left office this week without acting on his request for clemency.

Hatch could lobby the new president, but he won't.  He doesn't seem bothered by his own haphazard, fame-driven intervention policy.  Angelos is a drug user, the senator argues, but Forte was not.  The difference between $1.4 million in liquid cocaine and $1,050 in marijuana seems just as lost on Hatch as it was on prosecutors.

Of course, I am biased in this matter because I am one of the attorneys for Weldon hoping to secure "reasonable punishment" through executive clemency (and I am quoted in this commentary).  But, biased or not, I am hopeful that the new President will not need Senator Hatch's input to understand reasons why clemency for Weldon Angelos would be justified. 

After all, this new President said in his Inaugural Address that our country was built on " the noble idea passed on from generation to generation:  the God-given promise that all are equal, all are free, and all deserve a chance to pursue their full measure of happiness."  Given that Weldon has already spent five years in federal prison for offenses that usually net a first-offender less than a year in jail, I continue to hope that the new President will seek to operationalize in the criminal justice system his grand rhetoric about equality, freedom and providing even persons who (like him) got involved in drugs when young another "chance to pursue their full measure of happiness."

Some recent related posts:

• Is it too early to start demanding President Obama use his clemency power?
• Inaugural rhetoric about freedom and liberty in prison nation
• Are the Border Agents the only federal offenders for whom President Bush feels compassion?
• A request for a commutation for Weldon Angelos 
• What might 2009 have in store for . . . executive clemency?  

"Compassionate Conservatism, My Ass"

The title of this post is the title of this impassioned critiqueby Jacob Sullum of former President George W. Bush's pitiful record on clemency grants in the wake of his decision earlier this week to make the Border Agents the only recipients of executive grace.  Of course, I share Jacob's frustration, and I hope he will join me in urging President Obama to make up for his predecessor's failing by granting some (perhaps many) clemencies in the days and weeks ahead.

Though President Obama has now been in office only about 30 hours, he has had time to halt the GTMO trials.  Though I am not yet ready to start complaining about his failure to use his clemency power, I continue to hope there will be at least one or two symbolic clemency gestures in the days ahead to show that the new President really means for the criminal justice system what he said in his Inaugural Address about our commitment to placing "hope over fear," about the need to "choose our better history," and about the importance of rejecting "as false the choice between our safety and our ideals."

Some recent related posts:

• Is it too early to start demanding President Obama use his clemency power?
• Inaugural rhetoric about freedom and liberty in prison nation
• Are the Border Agents the only federal offenders for whom President Bush feels compassion?
• A request for a commutation for Weldon Angelos 
• What might 2009 have in store for . . . executive clemency?  

Informed perspectives on the closing clemencies of the Bush Administration

Former pardon attorney Margaret Colgate Love sent me this little commentary via e-mail to wrap up President Bush's decision to wrap up the exercise of his clemency power with two final commutations to Border Patrol agents Ignacio Ramos and Jose Alonso Compean:

I think it is significant that the Pardon Attorney apparently never weighed in on the Border Patrol agent cases (and evidently was never asked to weigh in), though the cases have been a clemency "item" for several years.  This, together with the botched Toussie grant and the more than 4000 denials in the past 12 months, confirms for me that the Justice Department pardon program has ceased to serve any useful function.  If these final grants provide the occasion for a top-to-bottom review of the clemency system, Bush will have done us all a favor.

In addition, there are lots and lots of old and new insights worthy of consideration at Pardon Power.

Are the Border Agents the only federal offenders for whom President Bush feels compassion?

I have soooo many reactions to the commutation of the extreme mandatory sentences of former Border Patrol agents Ignacio Ramos and Jose Alonso Compean (basics here).  As regular readers know, I am generally opposed to long mandatory prison terms imposed pursuant to 924(c), and the long mandatory terms for Ramos and Compean were especially troublesome given that, had they been willing to forego their rights to claim innocence at trial, they would not have likely gotten more than months in prison as part of a plea deal.  Thus, on the merits (and for reasons detailed more fully in lots of prior posts), I am pleased by the news that the Border Agents will be getting out of federal prison soon.

But I am very displeased by the reports coming from the White House that this latest commutation grant by President Bush is to be the final act of clemency during his administration.  This Newsweek piecereports that specifically that "White House press spokesman Tony Fratto told Newsweek 'you should not expect any more' pardons and commutations from Bush before he leaves office Tuesday.  Another senior official, who requested anonymity discussing sensitive matters, confirmed that no more pardons would be granted."

So, a President who claimed to be a compassionate conservative, could only find two defendants to whom to show compassion on his way out the door and managed to commute the sentence of only 11 federal offenders (including his pal Scooter Libby) over his eight years in office.  This despite the fact that there are now well over than 200,000 individuals in federal prison facilities, thousands of whom have been subject to extreme mandatory sentences on par or even more severe than those given to the Border Agents.

In short, this final act of clemency by President Bush will leave me with the annoying feeling that, even when he did something praiseworthy, he often did far too little of a good thing.

Some prior posts about the Border Agents case:

• Bipartisan call for commuting border agent sentences
• Reports on Senate hearing on Border Agent case
• The furor over border agents' long sentences
• Equal justice or just the realities of ratting out?
• Using the border agent case as a catalyst for federal sentencing reform
• Harsh border agent sentences producing half-truths

Some recent (and not-so-recent) related clemency posts:

• What might 2009 have in store for . . . executive clemency?
• A request for a commutation for Weldon Angelos
• Will Prez Bush become merciful again as his term concludes?
• More proof politicians are very compassionate toward criminals ... who are fellow politicians
• Who do you want President Bush to pardon?
• Few giving the President sentencing thanks
• The sad (unpardonable) state of compassion in the Bush Administration
• ACS issue brief on the pardon power
• Latest FSR issue on "Learning from Libby"

President Bush commutes sentences of Border Agents

CNN has the news here, and I hope to have time for comments later today.

UPDATE: Here is more press coverage from the New York Times and the AP and Bloomberg.

I found this (official?) announcement issued through a press release by the Department of Justice. No official word appears yet on the White House website.

MORE: Additional major press coverage on the commutation is collected here at How Appealing.

Lots of clemency news and notes

The coming week ought to be an exciting one for clemency fans, as I think we can and should expect President Bush to do one last batch of clemencies on his way out of office.  I heard a rumor that some clemencies will be announced as early as Monday (perhaps to give the President a final day to take back any mistakes).  I have not heard any rumors about who might be on the final clemency list, but the Pardon power has this great list of cases to watch.

For anyone eager to get up to speed on clemency law, the Congressional Research Service, has produced this effective new CRS Report titled, "An Overview of the Presidential Pardoning Power."  The document is only six pages, but provides just about everything one needs to know about federal clemency legal issues. 

For some anticipatory excitement about possible players, clemency/sports fans should check out this piece at ESPN, headlined "Will Bush throw a pardon to Clemens?".  Also, highlighting why these issues should stay hot even after Tuesday, Jason Flom at the Huffington Post has this effective new commentary titled "New Year, New Administration, More Clemency."

Some recent (and not-so-recent) related posts:

• What might 2009 have in store for . . . executive clemency?
• A request for a commutation for Weldon Angelos
• President Bush tries to take back one notable (and noted) pardon grant!?!?!
• Will Prez Bush become merciful again as his term concludes?
• More proof politicians are very compassionate toward criminals ... who are fellow politicians
• Who do you want President Bush to pardon?
• President-elect Obama already getting pressure to pardon the border agents
• Few giving the President sentencing thanks
• The sad (unpardonable) state of compassion in the Bush Administration
• ACS issue brief on the pardon power
• Latest FSR issue on "Learning from Libby"

UPDATE:  Over at Politco, Josh Gerstein has this new piece headlined "10 Bush pardons to watch for."