Friday, September 16, 2016

Detailing interesting sentencing dynamics in the latest batches of "term" commutations by Prez Obama

091416-Obama-commutations-online_1USA Today has this great new article highlighting an especially interesting aspect of the most recent clemency work by President Obama.  The piece is headlined "For Obama, a shift in clemency strategy," and here are excerpts:

For 126 federal inmates who received presidential clemency last month, the good news might have come with a dose of disappointment. President Obama had granted their requests for commutations, using his constitutional pardon power to shorten their sentences for drug offenses. But instead of releasing them, he left them with years — and in some cases, more than a decade — left to serve on their sentences.

As Obama has begun to grant commutations to inmates convicted of more serious crimes, Obama has increasingly commuted their sentences without immediately releasing them. These are what are known as "term" commutations, as opposed to the more common "time served" commutations, and they represent a remarkable departure from recent past practice. Unlike a full pardon, commutations shorten sentences but leave other consequences of the conviction in place.

A USA TODAY analysis of Obama's 673 commutations shows a marked change in strategy on his clemency initiative, one of the key criminal justice reform efforts of his presidency. Before last month, almost all of the inmates whose sentences were commuted were released within four months, just long enough for the Bureau of Prisons to arrange for court-supervised monitoring and other re-entry programs. But in the last two rounds of presidential clemency in August, 39% of commutations come with a long string attached: a year or more left to serve on the sentence.

The strategy has also allowed Obama to commute the sentences of even more serious offenders. Before last month, 13% of inmates receiving clemency had used a firearm in the offense. For those granted presidential mercy last month, it was 22%. Through lawyers in the Justice Department and the White House Counsel's Office, the president is effectively recalculating the sentences using the federal guidelines in effect today — as opposed to the harsher penalties mandated by Congress in the 1980s and '90s.

While previous presidents have granted term commutations on a case-by-case basis — President Bill Clinton required a Puerto Rican nationalist convicted of seditious conspiracy to serve five more years, and President Richard Nixon made a Washington, D.C. murderer serve another decade — Obama appears to be the first to employ them as a matter of policy. "There are a number of cases where it’s a genuine re-sentencing. It’s unprecedented,” said former pardon attorney Margaret Love, who served under Presidents George H.W. Bush and Clinton. “That signals to me that the power is being used in a way it’s never been used before.”

There may also be a political calculation to the new clemency strategy, reflecting a general understanding that there's no guarantee that a President Hillary Clinton or Donald Trump would continue Obama's signature clemency initiative. While it's not entirely settled, most scholars believe a commutation warrant cannot be revoked by a future president once it's granted, delivered and accepted.

Explaining his philosophy on commutation power at a press conference last month — the day after he set a single-day clemency record by granting 214 commutations — Obama gave the example of an inmate who has already served a 25-year sentence but would have only served 20 if sentenced under today's laws. "What we try to do is to screen through and find those individuals who have paid their debt to society, that have behaved themselves and tried to reform themselves while incarcerated, and we think have a good chance of being able to use that second chance well," he said.

But increasingly, recipients of Obama's mercy are years away from paying their debt to society.

White House Counsel Neil Eggleston, who's the last stop for a clemency application before it goes to the president, acknowledged the change in strategy on Aug. 3, the day Obama issued 214 commutations. "While some commutation recipients will begin to process out of federal custody immediately, others will serve more time," he wrote in a blog post. "While these term reductions will require applicants to serve additional time, it will also allow applicants to continue their rehabilitation by completing educational and self-improvement programming and to participate in drug or other counseling services."

Critics say Obama is no longer reserving his clemency power for extraordinary circumstances, but instead substituting his own judgment for that of Congress and the courts. "To impose these things, and to have the commutation take effect after he leaves office — and even after the presidency of someone who succeeds him — seems inappropriate to me," said Rep. Bob Goodlatte, R-Va., chairman of the House Judiciary Committee.

But Goodlatte also acknowledged that the power to "grant reprieves and pardons for offenses against the United States" is one of the Constitution's most ironclad powers, and amending the Constitution would be difficult....

"He has effectively set himself up as a judge, reviewing thousands of cases where they’ve been prosecuted, convicted, sentenced and appealed beyond the district court level. And he's undercut all that work by commuting their sentences," Goodlatte said. "I think the president is taking a misguided approach to this issue when he tries to set himself up as a super-judge who would oversee the actions of a separate branch of government."

Mary Price, who has represented drug offenders seeking presidential clemency, said the president is the only person who can act under present law. "In our system, there's a heavy emphasis on finality of judgment," said Price, chief counsel for Families Against Mandatory Minimums, which advocates for changes in drug laws. "The court has no jurisdiction to go back and change that sentence." For inmates with one or two years left on their Obama-shortened sentence, the president's clemency could motivating them to prepare for reentry into society, Price said. One drug treatment program gives inmates an additional year off their sentence if they complete it.

While Obama's re-sentencing strategy is a departure from recent practice, experts note that presidents have granted term commutations before. For example, any commutation of the death penalty to life imprisonment would fit the definition of that the Justice Department calls a "term commutation," as opposed to the more typical "time served" commutation.

And if recent presidents haven't done it that way, it's more because they've granted so few commutations to begin with. As the White House is quick to note, Obama has now commuted the sentences of more prisoners than the previous 10 presidents — that's Dwight Eisenhower through George W. Bush — combined. "Is Obama doing it at some unprecedented level? I don't know. Maybe," said P.S. Ruckman Jr., a political scientist who has analyzed data on presidential clemency back to George Washington. "But I am not so sure what to make of that either," he said. "That's what checks and balances are all about."

September 16, 2016 in Clemency and Pardons, Criminal justice in the Obama Administration, Drug Offense Sentencing, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Saturday, September 10, 2016

"Fewer Hands, More Mercy: A Plea for a Better Federal Clemency System"

The title of this post is the title of this timely new paper by Mark Osler now available via SSRN. Here is the abstract:

The constitutional pardon power has generated more controversy than mercy over the past three decades.  Even President Obama, who has pursued a focused clemency initiative, has struggled to meet historical standards.  While changing ideas relating to retribution play a role in this decline, there is another significant factor at play: too much bureaucracy.
Beginning around 1980, a review process has evolved that is redundant and biased towards negative decisions. No fewer than seven levels of review take place as cases course through four different federal buildings, a jagged path that dooms the process.  For years, this bureaucracy stymied even President Obama’s intention to reduce prison populations; the relative success of his clemency initiative came despite this bureaucracy, not because of it, and only after seven and a half years of futility.
This article analyzes the development of this system and the problems it creates before offering solutions based on the experience of state governments and President Ford’s successful use of a Presidential Clemency Board.

September 10, 2016 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Wednesday, August 31, 2016

Clemency advocate explains her view on "How to inspire criminal justice reform"

The title of this post is drawn in part from the headline of this lengthy new CNN commentary authored by Brittany K. Barnett-Byrd, whom CNN describes as "an attorney and criminal justice reform advocate [who] has handled several successful clemency petitions, including the nationally reported cases of Sharanda Jones and Donel Clark."  Here are excerpts from her commentary:

As the daughter of a formerly incarcerated mother, I know that when one person goes to prison, the whole family goes to prison. Mass incarceration has devastated families and communities across America.  The United States makes up nearly 5% of the world's population and almost 25% of the world's prison population.  Today, there are over 2.2 million people incarcerated in this country.

The dramatic growth in incarceration as a result of the failed war on drugs cannot be ignored. At the state level, the number of people in prison for drug offenses has increased tenfold since 1980. In addition, nearly half of all federal prisoners are serving time for drugs.

While the statistics are astonishing, to truly understand the issue, we must look beyond the numbers and see the human capital sacrificed in the name of misguided appeals for law and order.  The human element is rarely addressed but is necessary to inspire and drive the change needed to reform our criminal justice system.

#17061-112. This number was assigned to my client Corey Jacobs 17 years ago when he began serving a life sentence in federal prison for nonviolent drug convictions. Corey had no prior felony convictions.  But with no parole in the federal system, he has been fundamentally condemned to die in prison.

Over two decades ago, Corey, now 47, began dealing drugs with a small group of college friends in Virginia. Though Corey was not a kingpin, he received an essential death sentence largely because three of his co-conspirators testified against him in exchange for reduced sentences.  Due to federal laws, Corey was held accountable for all "reasonably foreseeable" quantities of drugs attributed to the five other people involved in the conspiracy. Absolutely no dimension of his conduct was violent.

Despite facing the grim reality of dying in prison, Corey has worked diligently to prove that he is deserving of a second chance. He has devoted himself to extensive rehabilitative programming, completed three self-improvement residential programs and received over 100 learning certificates that have enhanced his education and personal development....

While there is little doubt that a prison sentence was warranted in Corey's case, he doesn't deserve to die in a cell because of it.  Life in prison without the possibility of parole is, short of execution, the harshest punishment available in America.  It screams that a person is beyond hope, beyond redemption.  It suffocates mass potential as it buries people alive. And, in Corey's case, it is a punishment that does not fit the crime.

Recently, I went to visit Corey in prison to discuss his pending clemency petition.  As I sat in the bleak, cold concrete interior of the attorney-client visiting room, I was struck by Corey's remorse, intelligence and dedication to bettering himself.   I learned Corey is an avid meditator. He mentioned how he once read nature could enhance the meditation experience, but he had not seen a tree in years. The prison yard is surrounded by daunting, gray brick buildings. The rest of our conversation was a blur because I could not move past the fact that he had not seen a tree. A tree.

Though I never imagined that visiting a United States Penitentiary would change the trajectory of my legal career, the state of consciousness I achieved after meeting Corey empowered me.  I no longer wanted to be just a lawyer.  I wanted to use this platform to promote the greater good.  Because of thousands of cases like Corey's, three months ago I resigned from my corporate law job to become a full-time advocate for criminal justice reform....

Last year the Sentencing Reform and Corrections Act of 2015 (S. 2123) was introduced into Congress. This crucial bill would pull back mass incarceration and save taxpayers billions of dollars by reducing mandatory minimums and making the Fair Sentencing Act of 2010 retroactive.  And yet despite unprecedented bipartisan support, it still has not come to the Senate floor for a vote.  We must urge Congress to pass this overdue, life-changing legislation.

But Congress is not the only branch of government beginning to address this injustice. Obama has shown he is committed to reinvigorating the clemency process through his administration's groundbreaking initiative to prioritize clemency applications for individuals like Corey....

Our criminal justice system is tangled in overcrowded prison cells, draconian sentences, shameful sentencing disparities, burdensome incarceration costs and heartbroken children and families.  Reform is desperately needed.  The time is now for the people who hold the levers of power to believe in humanity and to simply do the right thing.  After all, there is nothing more urgent than freedom.

August 31, 2016 in Clemency and Pardons, Drug Offense Sentencing, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Tuesday, August 30, 2016

Continuing his notable clemency momentum, Prez Obama grants 111 more commutations

Chart_082916_commutationsAs reported in this new NPR piece, "President Obama shortened the prison sentences of 111 inmates Tuesday, including 35 people who had expected to spend the rest of their lives in federal custody, authorities told NPR." Here is more about today's exciting clemency news and its context:

Word of the new batch of clemency grants came as the second-in-command at the Justice Department told NPR that lawyers there have worked through an enormous backlog of drug cases and, despite doubts from prisoner advocates, they will be able to consider each of the thousands of applications from drug criminals before Obama leaves office in 2017.

"At our current pace, we are confident that we will be able to review and make a recommendation to the president on every single drug petition we currently have," Deputy Attorney General Sally Q. Yates said.

The early releases apply to mostly non-violent drug offenders who would have received lighter punishments if they committed the same crimes today. The new commutations mean this White House has granted 673 commutations, more than the past 10 presidents combined. Tuesday's grants follow 214 more earlier this month.

In February the new pardon attorney, Robert Zauzmer, asserted that stacks of petitions would not be left on his table next year. But that had long been in doubt. After the Justice Department and the White House launched the initiative for drug offenders about two years ago, white collar criminals, sex predators and violent criminals sent their applications, too. Those petitions flooded volunteer lawyers and officials in the Office of Pardon Attorney. The pardon attorney, Deborah Leff, ultimately resigned after raising alarms about insufficient resources to do the job, which she said could "change the lives of a great many deserving people."

Lawyers working for prisoners said there's still a lot more work for the administration to do. Mark Osler, who led an effort by three dozen law professors and advocates to get the White House to pick up the pace, estimated that 1,500 drug prisoners should win commutations based on the administration's criteria. By his math, that means the president has not yet moved on more than half of the inmates who should win shorter sentences....

In an interview, White House Counsel Neil Eggleston said the president gives each request a special, individualized review, keeping in mind their crimes, their record in prison and whether they merit a second chance, to walk their grandchildren to school or hug their families. Eggleston said the president "doesn't think of it as a number he wants to reach."

"The president's view is that he would like to grant as many worthy petitions as get to his desk and I think he's going to tell me to put worthy petitions on his desk until the last day, and that's what I intend to do," Eggleston said.

Eggleston has this new posting at the White House blog with the chart reprinted here under the heading "President Obama Grants 111 Additional Commutations, the Most Commutations Granted in a Single Month."  Here are excerpts:

Earlier this month, President Obama granted commutation to 214 federal inmates, the most commutations granted in a single day by any President in this nation’s history. With today’s additional 111 grants, the President has commuted the sentences of 325 people in the month of August alone, which is the greatest number of commutations ever granted by a president in a single month. The 325 commutations the President has granted in just one month is more than any president granted in a single year for nearly a century.

Today’s 111 commutation grants underscore the President’s commitment to using his clemency authority to provide a second chance to deserving individuals. To date, President Obama has granted 673 commutations: more commutations than the previous ten presidents combined. More than one-third of the President’s commutation recipients, or 232 individuals, were serving life sentences....

While I expect that the President will continue to grant commutations through the end of this administration, the individualized nature of this relief highlights the need for bipartisan criminal justice reform legislation, including reforms that address excessive mandatory minimum sentences. Only the passage of legislation can achieve the broader reforms needed to ensure our federal sentencing system operates more fairly and effectively in the service of public safety.

August 30, 2016 in Clemency and Pardons, Sentences Reconsidered, Who Sentences? | Permalink | Comments (10)

Friday, August 26, 2016

"Where Recreational Marijuana Is Legal, Should Those in Prison for Weed Crimes Get a Puff, Puff, Pass?"

Marijuana-Pot-arrestThe question in the title of this post is not only one that I have given a lot of thought to in recent years, but also the headline of this recent article from The Root. The piece usefully highlights that California's marijuana legalization initiative to be voted upon in November speaks a bit to this issue.  Here are excerpts from the piece:

Twenty years ago, Rico Garcia was 21 when he got caught up in a marijuana sting in Colorado with a friend who wanted to buy some weed. The seller turned out to be a police informant, and Garcia and his friend were arrested. “The police came and arrested us and said we were selling weed,” says Garcia, now a 41-year-old marijuana advocate who runs Cannabis Alliance for Regulation and Education. “My friend said it was his, but … under Colorado law at the time, 8 ounces was possession with intent and I got a felony.”

Garcia says he was a first-time offender and a public defender got him to agree to accept a plea deal. He didn’t realize the full ramifications of having such a charge on his record. “They said, ‘No jail’ — that’s how they get brown people — and I said, ‘That sounds nice,’” recalls Garcia, who is Puerto Rican. He says he got four years’ probation and was released from it in two years, but the felony is still affecting his life. “You’re pretty much disqualified for housing. … Most who could give you a loan for a car or house give you a different rate or simply won’t lend to you. You can’t own a firearm, even in a pro-gun state; you can’t get any government grants or hold certain occupational licenses.”

Even though medical and recreational use of marijuana is legal under most circumstances in Colorado, Garcia’s felony precludes him from being part of the weed boom the state is enjoying, a problem that plagues many people of color trying to get into the weed business. There’s also a debate about the fate of nonviolent offenders currently incarcerated for weed crimes in states where recreational marijuana is now legal. Some marijuana advocates support the idea of state pardons for offenders incarcerated for such crimes as more states consider legalizing recreational marijuana....

[T]here has been some debate among marijuana advocates over whether lawmakers and voters would support such an effort involving weed crimes because they had to walk such tightropes to get legislation for medical and recreational marijuana approved in the first place. California — where most advocates expect Proposition 64, the Adult Use of Marijuana Act, to pass in November in a state that has had a medical-marijuana program for 20 years — could set a national standard for the fate of nonviolent marijuana offenders caught up in the prison system.

Not only does Proposition 64 reduce the current penalty for selling marijuana for nonmedicinal purposes from up to four years in prison to six months in jail and a fine of up to $500, but it also includes big changes for those previously convicted of marijuana crimes. Those serving sentences for activities that are either legal or subject to lesser penalties under the new measure would be eligible to be resentenced. Plus, those who have already done their time could apply to have their convictions removed from their records....

But the politics surrounding whether nonviolent marijuana users should be pardoned or allowed to have their records expunged completely are complicated. In Colorado, Andrew Freeman says, people can apply to have their felony conviction for a marijuana offense that is no longer illegal under Amendment 64 changed to a misdemeanor. But that stays on your record.

Freedman notes that few of the people still in prison in Colorado for marijuana are there only for a single, nonviolent offense, which would make it easy for them to be released. According to a 2014 report (pdf) by the state’s Department of Corrections, there are only 71 nonviolent marijuana offenders among Colorado’s 20,300 inmates....

Tom Angell at the Brooklyn, N.Y.-based Marijuana Majority breaks it down even further, saying that the pardoning of nonviolent marijuana offenders has been part of a general debate among advocates about what is the best, most comprehensive marijuana-reform proposal that can be put on the ballot and garner the support of voters.

“I think there’s some question as to whether a sufficient number of voters would be skittish about the notion of releasing people from prison en masse,” Angell says. “In an ideal world, we want to release all the marijuana offenders yesterday! We absolutely do. But this is politics and reality, and you can’t let the perfect become the enemy of the good. We need to achieve what is achievable today and build on those victories and keep getting wins on the scoreboard.”

This Root story usefully highlights why folks interested in criminal justice and sentencing reform ought to keep a special eye on discussions and developments with marijuana reform in California this election season. Moreover, as this review of some recent posts from my Marijuana Law, Policy & Reform blog should highlight, I see no shortage of interesting marijuana reform issues that ought to interest criminal justice and civil rights folks:

August 26, 2016 in Clemency and Pardons, Collateral consequences, Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Preparing for pot professing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Sunday, August 21, 2016

After court reversal of broader order, Virginia Gov to restory voting rights to 13,000 former felons on a "case-by-case" basis

This Washington Post article, headlined "Virginia’s McAuliffe to announce restoration of voting rights to 13,000 felons," report on the latest executive clemency move by a Governor eager to restore voting right after getting in trouble with his state's Supreme Court following his first bold effort. Here are the details and context:

Gov. Terry McAuliffe will announce Monday that he has restored voting rights to 13,000 felons on a case-by-case basis after Republicans and state Supreme Court justices last month stopped his more sweeping clemency effort.

McAuliffe’s planned action, confirmed by two people with knowledge of it, comes about a month after the Supreme Court of Virginia invalidated an executive order the Democratic governor issued in April. With that order, McAuliffe restored voting rights to more than 200,000 felons who had completed their sentences. McAuliffe said his original order would move Virginia away from a harsh lifetime disenfranchisement policy that hits African Americans particularly hard.

Republicans, incensed that it covered violent and nonviolent offenders alike, said the move was really a bid to add Democrat-friendly voters to the rolls ahead of November’s presidential elections, when the governor’s close friend and political ally, Hillary Clinton, will be on the ballot. Republicans also found the McAuliffe administration had mistakenly restored rights to 132 sex offenders still in custody and to several convicted murderers on probation in other states.

Contending that the governor had overstepped his authority by restoring rights en masse rather than case by case, GOP legislative leaders took him to court and won. Since 13,000 of the 200,000 felons had already registered to vote, the court ordered the state to once again put their names on its list of banned voters.

Immediately after that ruling, McAuliffe vowed to use an autopen to individually sign orders restoring rights. He promised to do the first 13,000 within a week and all 200,000 within two. “By the end of this week, I will have restored the rights of all 13,000,” McAuliffe declared last month.

Since then, the McAuliffe administration has acknowledged unspecified holdups but declined to provide a new timetable for restoring rights. The first hint came Friday, with the release of McAuliffe’s official schedule. At noon Monday, it said, he will appear at the Civil Rights Memorial on Capitol Square “to make major restoration of rights announcement.” A McAuliffe spokeswoman, Christina Nuckols, declined to provide more information.

McAuliffe will announce that he has restored voting rights to the 13,000 felons, making them free to register once again, according to the two people, who spoke on the condition of anonymity because they were not authorized to disclose his plans. McAuliffe also will lay out his plans for restoring rights to the remainder of the 200,000. A substantial majority of Virginians approve of McAuliffe’s original effort to restore felon rights, although they are closely split on his motivations, according to a new Washington Post poll....

Claire Guthrie Gastañaga, executive director of the American Civil Liberties Union of Virginia, said she would cheer another restoration plan — particularly one that restores rights before October, the registration deadline for voting in November. “We think it’s the right thing to do, and we’re hopeful it will get done in time for people to be able to register before the deadline,” she said.

Del. Robert B. Bell (R-Albemarle), a 2017 candidate for state attorney general who has led the charge against McAuliffe’s order, said he would watch any new restoration efforts closely because of the problems with the original order. “Given that his first order was unconstitutional and included a noncitizen sex offender in Peru, we will certainly want to review whatever he does on Monday very carefully,” Bell said.

Prior related posts:

August 21, 2016 in Clemency and Pardons, Collateral consequences, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0)

Thursday, August 18, 2016

New York Times editorial pushes for "Mercy on Texas’ Death Row" for condemned getaway driver

Today's New York Times has this notable new editorial discussing a notable capital case in Texas under the headline "Rare Chance for Mercy on Texas’ Death Row." Here are excerpts:

When it comes to capital punishment, there is not much official mercy to be found in the state of Texas.  As 537 death row inmates were executed there over the last 40 years, only two inmates were granted clemency.  The last commutation to life in prison occurred nine years ago, when Gov. Rick Perry, despite his formidable tally of 319 executions, chose to make an exception and spare a man convicted of murder under the state’s arcane and patently unfair “Law of Parties.”

This law in effect holds that someone waiting outside at the wheel of a getaway car deserves the same capital punishment as his associate inside who shoots and kills a store clerk.  This is the rough equation that now finds Jeffrey Wood on death row in Texas, 20 years after his involvement in just such a crime.  The actual killer was executed in 2002; Mr. Wood faces execution next Wednesday as a somehow equally culpable party, unless the state commutes his sentence to life in prison.

The Law of Parties has been on trial as much as Mr. Wood has in the arduous criminal justice process in which he faces death. With an I.Q. of 80 and no criminal history, Mr. Wood, who was 22 then, was initially found by a jury to be incompetent to stand trial. But the state persisted, and he was convicted in a slipshod proceeding in which no mitigating evidence or cross-examination was attempted in his behalf during the crucial sentencing hearing....

The theory underpinning the Law of Parties — that an accomplice deserves to die even though he did not kill the victim — has been abandoned as difficult to apply if not unjust in most state jurisdictions in recent decades.  It holds that an accomplice should have anticipated the likelihood of a capital murder and deserves the ultimate penalty.  Since the death penalty was restored in 1976, there have been only 10 executions in six states under accomplice culpability laws, in which defendants did not directly kill the victim, according to Texas Monthly.  Five of them have been in Texas. Jared Tyler, Mr. Wood’s lawyer, who specializes in the state’s death row cases, says he has never seen a sentence of execution “in which there was no defense at all on the question of death worthiness.”

This is just one of many grounds for the clemency that four dozen evangelical leaders have recommended to avoid a gross injustice. The state parole board would have to make this recommendation, with the final decision by Gov. Greg Abbott, who has not granted clemency in 19 executions.

The Law of Parties stands as a grotesque demonstration of how utterly arbitrary capital punishment is. The only true course for justice in Texas is for the law to be scrapped and Mr. Wood’s life to be spared.

UPDATE:  For more interesting and timely coverage of this case, check out this new Texas Tribune article headlined "State Rep. Leach Tries to Stop Jeff Wood Execution."  Here is how the article gets started:

It’s not often that a staunch conservative loses sleep over imposition of the death penalty, but state Rep. Jeff Leach, R-Plano, says he is up nights over the impending execution of Jeff Wood.

The two-term legislator has spent the past week poring over court documents and speaking with the governor’s office and Texas Board of Pardons and Paroles, hoping to prevent what would be the state’s seventh execution of the year. Wood is set to die by lethal injection Aug. 24.  “I simply do not believe that Mr. Wood is deserving of the death sentence,” Leach told the Tribune. “I can’t sit quietly by and not say anything.”

August 18, 2016 in Clemency and Pardons, Death Penalty Reforms, Offense Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Wednesday, August 10, 2016

Reflections from those working hard to get their clients clemency

The National Law Journal has this notable new article headlined "Lawyers Reflect on Clemency Work After Obama Executive Action," and here are excerpts:

When President Barack Obama commuted the sentences last week of 214 nonviolent drug offenders, he changed the lives of many inmates who may never have expected to leave prison.  The action also had a profound impact on defense lawyers involved in pursuing the clemency petitions that the president has now granted.

When criminal defense attorney James Felman calls down to the Cole­man Penitentiary in Florida to inform his clients that their clemency petitions have been granted, he said the experience is sometimes a little awkward. Surrounded by guards in the warden's office­­ — where prisoners are typically brought if they are in trouble or a loved one has died — the inmate may not exactly feel free to celebrate, Felman said. "It's not like they can start dancing," he said.

Felman, a partner at Kynes Markman & Felman in Tampa, saw five of his clients granted clemency on Aug. 3, when President Barack Obama commuted the sentences of 214 inmates — the highest number a president has ever granted in a single day.  The move comes amid a broader effort by the president to reduce sentences for nonviolent drug offenders.  Since 2010, Obama has granted 562 commutations and 70 pardons, more commutations than the last nine presidents combined.

Of Felman's clients to receive clemency last week, all were men convicted on nonviolent drug charges.... "You can't imagine a more rewarding experience as a lawyer," Felman said.

Felman, whose firm has successfully advocated for 12 clemency petitions, served as the chair of the American Bar Association Section of Criminal Justice from 2014 to 2015, and is a member of the steering committee for the Clemency Project 2014, a working group of lawyers who review clemency petitions.  Through the project, inmates who qualify for clemency under the guidelines are assigned a lawyer, who works the case pro bono....

Marjorie Peerce, a New York partner at Ballard Spahr and a member of the project's steering committee, has been involved with the project since its inception, and supervises about 100 lawyers at her firm who work these cases.  She estimated that the project had submitted about 1,500 petitions to the U.S. Office of the Pardon Attorney and had about 4,000 lawyers volunteering, both from criminal defense backgrounds and from unrelated fields. "The private bar really stepped up," Peerce said.  Her firm had three clients granted clemency on Aug. 3, but she declined to discuss their cases specifically.

Sherrie Armstrong, a Washington environmental lawyer at Crowell & Moring, worked on behalf of Stephanie George, who had her life sentenced commuted in December 2013.  Armstrong worked with George's sister to collect recommendation letters, including letters from a community pastor, an interested employer and George's children. Armstrong added that the writing style demanded by these clemency petitions differs from that of her normal style as an environmental lawyer.  "You're not writing for a court.  It's a more persuasive, emotional appeal," she said.

August 10, 2016 in Clemency and Pardons, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Monday, August 08, 2016

Great coverage and analysis of Prez Obama's recent clemency work at Pardon Power

Regular readers and/or hard-core clemency fans know that P.S. Ruckman over at the Pardon Power blog is a must-read whenever President Obama's gets his clemency pen out. Here are just some of many recent posts discussing the historic number of commutations that Prez Obama issued last week (basics here), and responding to some notable recent criticisms of what the Prez is up to:

August 8, 2016 in Clemency and Pardons, Data on sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Broad perspectives on the narrowness of recent federal clemency and sentencing reform efforts

Two of my favorite lawprof colleagues, Erik Luna and Mark Olser, remind me why they are among my favorites through this new Cato commentary titled "Mercy in the Age of Mandatory Minimums." Here are excertps:

Recently, we stood in a backyard eating barbecue with a man named Weldon Angelos.  He was only a few weeks out of federal prison, having been freed some four decades early from a 55-year sentence for selling a small amount of marijuana while possessing firearms.  Weldon was not among the 562 inmates whose sentences were commuted by President Obama, including Wednesday’s historic grant of commutation for 214 nonviolent prisoners. Instead, Weldon’s release was made possible through a negotiated motion by the government that, alas, cannot be replicated in other cases.

For a dozen years, Weldon had been the poster boy of criminal justice reform for liberals and conservatives alike. His liberation is cause for celebration for those who believed the punishment did not fit the crime.  Nonetheless, the Angelos case remains a cautionary tale about both the inherent ruthlessness of “mandatory minimum” terms of imprisonment and the ineffectiveness of the Obama administration’s clemency initiative.

Mandatory minimum laws bar the consideration of facts upon which a sentencing judge would normally rely.  In Weldon’s case, the law compelled a 55-year sentence.  It didn’t matter that Weldon was a first-time offender with no adult record or that he was the father of three young children.  Nor did it matter that he never brandished or used the firearms and never caused or threatened any violence or injury....

Most of all, it did not matter that the sentencing judge — a conservative Bush appointee known for being tough on crime — believed that the punishment was “unjust, cruel, and irrational.”  Ultimately, the judge was bound not only by the mandatory minimum statute but also the Supreme Court’s jurisprudence, which largely acquiesces to prosecutors’ charging decisions while providing almost no check on excessive prison terms.

Absent a doctrinal reversal by the Supreme Court (don’t hold your breath), any meaningful safeguard against misapplication of mandatory minimums will have to come in the form of legislation from Congress or from the president through the application of the clemency power.  As for the former, lawmakers are considering several [reform] bills... [that] are entirely laudable, but they are also quite modest.  Indeed, the Senate bill passed in April expands some mandatory minimum provisions and adds a couple of new ones to the federal code....

The positive aspects of the reform bills should be supported all the same.  Sadly, legislative efforts appear to be mired in an intramural fight among Republicans, as well as hindered by Democratic intransigence toward another worthy reform, namely, a requirement that law enforcement prove a culpable mental state rather than holding defendants strictly liable.  Until lawmakers can agree on a means to prevent draconian sentences, clemency will remain the only remedy for such miscarriages of justice.

Unfortunately, the federal clemency system is also dysfunctional.  Weldon’s petition for clemency was filed in November 2012 — and it then sat, unresolved one way or another, for three-and-a-half years.  The support for the petition was unprecedented, spanning activists, academics and experts from every political camp imaginable.  While Weldon is not wealthy and could not afford high-priced lobbyists or attorneys, the facts of his case drove the story onto the pages of leading news outlets.  Yet nothing happened.  Even when the Obama administration launched the “Clemency Project 2014” and Weldon’s case was accepted into that program, he languished in prison as the petition slogged through the seven vertical levels of review any successful clemency case must navigate.

Clemency is meant for cases like Weldon’s, where the requirements of the law exceed the imperatives of justice.  The fact that a case like his cannot receive clemency from an administration dedicated to expanding the use of this presidential prerogative lays bare the root problem we face — too much process and bureaucracy coursing through a Department of Justice that bears a built-in conflict of interest....

It was thrilling to see Weldon free, eating off of a paper plate in the light of a Utah evening.  He is just one of many, though, and systemic reform of both mandatory minimums and the clemency process should be an imperative for this and the next administration.

August 8, 2016 in Aspects and impact of Sentencing Reform and Corrections Act, Clemency and Pardons, Criminal justice in the Obama Administration, Examples of "over-punishment", Mandatory minimum sentencing statutes, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Wednesday, August 03, 2016

Prez Obama commutes 214 more federal sentences

Commutations_chart_0As reported here by Politico, "President Barack Obama commuted the sentences of 214 people on Wednesday, bringing his total number of commutations to 562." Here is more about this latest encouraging clemency news, with some political context:

The president's biggest batch of commutations comes as Donald Trump touts a "law and order" message. But for advocates of sentencing reform, it's a sign that the administration isn't letting up on the 2014 Justice Department initiative to ease punishments for low-level drug offenders who received long sentences due to mandatory minimums. It includes 67 people who had been facing life sentences.

Obama has granted more commutations than his nine most recent predecessors combined, White House Counsel Neil Eggleston noted in a blog post on Wednesday.  However, he added, “Our work is far from finished. I expect the President will continue to grant clemency in a historic and inspiring fashion.”

While criminal justice reform advocates have cheered the intention behind the initiative, they’ve complained that the pace of commutations has failed to meet expectations and that the process appears arbitrary. Eggleston promised to speed things up this spring, noting new resources for the Pardon Attorney, and in April, Deputy Attorney General Sally Yates wrote to a consortium of defense attorneys helping prisoners to submit applications, urging them to get applications in by May....

This latest batch of commutations comes at a politically sensitive time, just two weeks after Trump stressed a “law and order theme” at the Republican National Convention, with warnings of danger in the streets fueled by attacks on police in Dallas and Baton Rouge.... The focus on policing issues has drawn public attention away from the broader criminal justice reform agenda. Though there is bipartisan support for changes that would reduce mass incarceration, and the House is expected to vote on sentencing reform when it returns in September, advocates acknowledge that prospects for full passage before the election look grim.

The chart reprinted above comes from the White House blog posting by Eggleston, which also includes these statements of note:

Today began like any other for 214 federal inmates across the country, but ultimately became a day I am confident they will never forget. This morning, these individuals received a message from the President: your application for clemency has been granted.

This news likely carries special weight to the 67 individuals serving life sentences – almost all for nonviolent drug crimes – who, up until today, could only imagine what it might be like to once again attend a loved one’s birthday party, walk their child to school, or simply go to the grocery store. All of the individuals receiving commutation today, incarcerated under outdated and unduly harsh sentencing laws, embody the President’s belief that “America is a nation of second chances.”...

To date, President Obama has granted 562 commutations: more commutations than the previous nine presidents combined and more commutations than any individual president in nearly a century. Of those, 197 individuals were serving life sentences. And, today’s 214 grants of commutation also represent the most grants in a single day since at least 1900.....

In each of these cases, the President examines the application on its individual merits. As a result, the relief afforded is tailored specifically to each applicant’s case. While some commutation recipients will begin to process out of federal custody immediately, others will serve more time.

For some, the President believes that the applicant’s successful re-entry will be aided with additional drug treatment, and the President has conditioned those commutations on an applicant’s seeking that treatment. For others, the President has commuted their sentences to a significantly reduced term so they are consistent with present-day sentencing policies. While these term reductions will require applicants to serve additional time, it will also allow applicants to continue their rehabilitation by completing educational and self-improvement programming and to participate in drug or other counseling services. Underlying all the President’s commutation decisions is the belief that these deserving individuals should be given the tools to succeed in their second chance.

The individual nature of the clemency process underscores both its incredible power to change a person’s life, but also its inherent shortcoming as a tool for broader sentencing reform. That is why action from Congress is so important. While we continue to work to act on as many clemency applications as possible, only legislation can bring about lasting change to the federal system. It is critical that both the House and the Senate continue to work on a bipartisan basis to get a criminal justice reform bill to the President's desk.

August 3, 2016 in Clemency and Pardons, Drug Offense Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (11)

Thursday, July 07, 2016

"Can Obama Pardon Millions of Immigrants?"

The question in the title of this post is the headline of this notable New York Times commentary authored by Peter Markowitz. Here are excerpts:

When the history of President Obama’s legacy on immigration is written, he will not go down as the president who boldly acted to protect millions of families from the brutality of our nation’s unforgiving immigration laws. The Supreme Court made sure of that last month, when it deadlocked on the legality of his program to defer the deportation of parents of American citizens and residents. Instead, he will be judged on what he actually did: deport more immigrants than any other president in American history, earning him the moniker “deporter in chief.”

However, President Obama can still act to bring humanity and justice to an immigration system notoriously lacking in both. He can do so by using the power the Constitution grants him — and only him — to pardon individuals for “offenses against the United States.”

The debate over the deportation deferral program has been framed as a question of the division of powers. Both sides agree that Congress is the only entity that gets to define offenses against the United States.... There is one area, however, where the president’s unilateral ability to forgo punishment is uncontested and supported by over a hundred years of Supreme Court precedent: the pardon power. It has been consistently interpreted to include the power to grant broad amnesties from prosecution to large groups when the president deems it in the public interest....

It’s a common assumption that pardons can be used only for criminal offenses, and it’s true that they have not been used before for civil immigration violations. However, the Constitution extends the power to all “offenses against the United States,” which can be interpreted more broadly than just criminal offenses.

A pardon could not achieve everything the deferred deportation program aspired to — notably, it could not deliver work permits. However, it has a certain operational elegance to it that would avoid many of the political battles surrounding the deferral program....

President Obama has plenty of time left to issue such a pardon. There is solid historical and legal precedent for him to do so. And although it would probably bring about legal challenges, opponents could not use the legal system to simply run out the clock, as they have with his deferred deportation program. A deferred deportation program could be undone by a President Trump. Unconditional pardons, in contrast, are irrevocable.

Finally, some would surely argue that a pardon protecting a large category of immigrants from deportation would, just like the deportation deferral program, effectively amount to a repeal of laws enacted by Congress. However, pardons do nothing to alter the law. They protect certain past offenders from punishment and prosecution, but leave the law unchanged as applied to any future violators.

President Obama has deported around 2.5 million people. That is about the same number as were deported in the entire 20th century. His apparent strategy was to demonstrate his bona fides on enforcement in order to persuade recalcitrant Republicans to work with him on immigration reform. It didn’t work. It turns out that you don’t convince people to be more humane on immigration by deporting immigrants hand over fist. We are left with a brutal legacy of millions of families torn apart, many simply for doing what they needed to do to protect and feed their children. President Obama will not be judged on his intentions or his attempts on immigration, but rather on his real impact. This is his last chance to establish a legacy of pragmatic compassion.

July 7, 2016 in Clemency and Pardons, Criminal justice in the Obama Administration, Offender Characteristics, Offense Characteristics, Who Sentences? | Permalink | Comments (2)

Tuesday, June 21, 2016

Open letter from large group of reform advocates urges Prez Obama to "accelerate the process" for granting clemency

As reported in this new USA Today piece, headlined "Experts warn White House that time is running out for clemency initiative," an impressive group signed on to this open letter to Prez Obama discussing his clemency activities.  Here are excerpts from the USA Today reporting providing some pf the leteer's context and content:

Thousands of federal inmates could be eligible to have their sentences reduced under the Obama administration's initiative to free non-violent offenders from prison, but experts are warning the White House that time is running out for the president to take action.

A record-setting number of clemency petitions, lack of resources and a confusion over eligibility have hampered President Obama's plan to use his constitutional pardon power to shorten sentences, particularly for low-level drug offenders serving mandatory minimum sentences.  If those inmates are going to have any hope, President Obama needs to personally intervene in the process, a group of advocates, law professors and attorneys said in a letter to the president Tuesday.

"The initiative has been plagued by bureaucratic inefficiencies that have kept petitions that meet all of your stated criteria from reaching your desk," the letter said.  "We are concerned that as your days in office diminish, the clemency initiative is moving too slowly to meet the goals you set when you announced it in 2014."

The letter was signed by 41 people, led by Julie Stewart of Families Against Mandatory Minimums and including and law professors from Harvard, Yale, Georgetown, Berkeley, Columbia, Northwestern, New York University and others. Also notable: former White House special adviser Van Jones and former U.S. District Judge Nancy Gertner.

In response, the White House said Obama "has demonstrated a commitment to the commutations process not seen by any other president in the modern era."  He's issued more commutations than the past seven presidents combined, written personal letters to clemency recipients and met with recipients to urge society to give them second chances.

"As we have said, the president will continue to issue additional commutations throughout the remainder of his time in office," said Assistant White House Press Secretary Brandi Hoffine.  "The clemency process alone, however, will not address the vast injustices in the criminal justice system resulting from years of unduly harsh and outdated sentencing policies."

Obama has stepped up the pace of commutations in his last year in office, no longer waiting until the end of the year to announce clemency decisions. Obama granted 61 commutations in March, 58 in May and 42 this month — part of what White House Counsel Neil Eggleston said was a deliberate attempt to grant clemency on a more regular basis. In all, Obama has commuted the sentences of 348 people, more than any president since Franklin Roosevelt.  (He's also granted just 70 pardons, fewer than any full-term president since 1800.)

But according to the Office of Pardon Attorney, 11,861 commutation petitions were still pending as of June 6, fueled largely by the Judtice Department's call for more applications from volunteer defense attorneys in 2014. And this isn't the first time there have been warnings of a backlog in the process.  A year ago, former Pardon Attorney Deborah Leff told defense lawyers that "the clock is running," and that petitions weren't coming in quickly enough.  There were questions about the eligibility criteria, and many cases required a complete re-examination of court and prison records.  Then in January, Leff resigned, citing a lack of resources and interference from Deputy Attorney General Sally Quillian Yates that prevented her recommendations from reaching the president's desk.

I had the honor of being asked to sign on to this open letter, and I agree with nearly all of its sentiments.  But, as I stressed in this post a few months ago, I have been clamoring for clemency reform since Prez Obama's first day on the job, and I remain deeply disappointed and troubled that there seems to have been no serious interest or commitment to any kind of structural/institutional reform in this space.  As a result, I did not feel I could comfortable sign this letter because it includes a sentence stating that, in th clemency arena, the signers "believe [Prez Obama's] leadership will bring lasting change to the country and set the table for further reforms in future administrations."

I certainly do not want to unduly criticize Prez Obama's (still very important) efforts in this arena, and I am especially pleased to see this open letter getting press attention.  But, unless Prez Obama does something more than just grant a few hundred more commutations (which is what I am expecting to see in the coming months), I am still going to view his Presidency in terms of a unique missed opportunity to create a criminal justice reform legacy in this historically and constitutionally important arena.

June 21, 2016 in Clemency and Pardons, Criminal justice in the Obama Administration, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Friday, June 03, 2016

Prez Obama commutes 42 more federal prison sentences

Chart_060316_commutations[1]As reported in this AP piece, this afternoon "President Barack Obama is commuting the sentences of 42 people convicted of drug-related offenses." Here is more:

Obama's latest round of clemency brings to 348 the total number of sentences Obama has commuted since taking office. The pace has increased substantially as Obama approaches the end of his presidency. Roughly half of the 42 receiving commutations Friday were serving life sentences. Most are nonviolent offenders, although a few were also charged with firearms violations.

Obama's commutation shortens their sentences, with most of the inmates set to be released October 1.

White House counsel Neil Eggleston says Obama will keep using his clemency power to give deserving individuals a second chance. Obama has pushed to overhaul the criminal justice system but a bipartisan effort has struggled to maintain momentum.

Via this blog post (which provides the graphic reprinted here), Prez Obama's counsel notes that that "President Obama Has Now Commuted the Sentences of 348 Individuals" and highlights that now "the President has commuted the sentences of more individuals than the past 7 presidents combined." Here is more from the blog posting:

Today, the President announced 42 additional grants of clemency to men and women serving years in prison under outdated and unduly harsh sentencing laws. The individuals receiving a presidential commutation today have more than repaid their debt to society and earned this second chance.

To date, the President has commuted the sentences of 348 individuals -- more than the previous seven Presidents combined. He remains committed to using his clemency power throughout the remainder of the Administration to give more deserving individuals that same second chance....

Despite these important efforts, only legislation can bring about lasting change to the federal system. There remain thousands of men and women in federal prison serving sentences longer than necessary, often due to overly harsh mandatory minimum sentences. That is one reason it is critical that both the House and the Senate continue to cooperate on a bipartisan basis to get a criminal justice reform bill to the President's desk.

June 3, 2016 in Clemency and Pardons, Drug Offense Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

"Conservatives should celebrate Obama’s commutations"

Institute_for_Policy_Innovation_1313374The title of this post is the headline of this new Dallas Morning News commatary.  The piece is authored by Tom Giovanetti, president of the Institute for Policy Innovation, a group that explains its focus to be "on approaches to governing that harness the strengths of individual liberty, limited government, and free markets." Here are excerpts:

The White House recently announced that 58 federal inmates, mostly non-violent drug offenders, would have their sentences shortened through commutation.  This brings the total number of commutations during the Barack Obama years to 306, more than any recent administration.  And word out of the White House is that there will be more to come during President Obama’s final months in office.

Many conservatives will be initially inclined to see Obama’s commutations as the act of a liberal who is soft on crime.  But conservatives should celebrate President Obama’s commutations. In fact, as people who prize liberty and individual rights, and who are skeptical about government power, conservatives need to do a rethink on criminal justice.

It’s becoming clear that something has gone very wrong with the justice system in the United States.  Today, the U.S. has the highest incarceration rate in the world.  Too many crimes have been federalized, as opposed to being handled more locally by state and local courts.  Excessive punishments are being meted out for non-violent crimes because of mandatory sentencing requirements.  And it’s dawning on people that the justice system is plagued by the same careerism and corruption that characterize other branches of government....

Taking reasonable discretion away from judges was a mistake, and it caused a shift in power from judges to prosecutors, who can select and “stack” charges involving mandatory minimums.  While judges are appointed or elected to consider both sides of a case, prosecutors are hired to convict.  It should trouble conservatives that the government side of the equation has been awarded such disproportionate power, which has clearly led to abuses.

Consider the case of Weldon Angelos, who at age 24 was arrested in Utah for selling marijuana and possessing a firearm.  Because of stacked charges with mandatory minimums, Federal Judge Paul Cassell had no choice but to sentence him to 55 years in prison.  Judge Cassell has ever since been pleading for a commutation to Angelos’ sentence, pointing out that far worse crimes, such as hijacking, rape, and second-degree murder, have lighter sentences.  But the judge, who clerked for Antonin Scalia, was appointed by President George W. Bush, and who favors the death penalty, was powerless in the face of a prosecutor armed with federal mandatory minimum sentences.

Yes, our justice system should be about public safety first. But all too often it is about careerism, government revenue and corruption.  Stephanos Bibas, professor of law and criminology at the University of Pennsylvania, reminds us that “the criminal justice system and prisons are big-government institutions.  They are often manipulated by special interests such as prison guard’s unions, and they consume huge shares of most states’ budgets.”

Social conservatives should understand the need for criminal justice reform, since we believe that every human life has inherent dignity and value, and we believe in the possibility of redemption.  Non-violent offenders can be punished and make restitution while keeping families intact and offenders productive.  Economic conservatives should recognize that non-violent offenders are better deployed working in the private sector than incarcerated in expensive government facilities.  And libertarians — well, libertarians already get it.

There are many pieces to the justice reform movement, including giving judges more sentencing leeway, eliminating civil asset forfeiture, and prioritizing drug treatment and in-home monitoring of incarceration.  But commuting sentences for non-violent offenders that are far in excess of the crime is a great place to start.

June 3, 2016 in Clemency and Pardons, Criminal justice in the Obama Administration, Elections and sentencing issues in political debates, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Wednesday, May 25, 2016

"Many serving sentences for marijuana offenses deserve clemency"

The title of this post is the headline of this recent San Francisco Chronicle commentary authored by Alex Contreras, a former federal inmate serving a 40-year sentence for drug and gun charges who received clemency from President Obama in December 2015.  Here is the text:

More than 10,000 clemency applicants wake up every day in a federal prison, awaiting an answer from President Obama on whether their lengthy prison sentence will come to an end. Most of them will be crushed when they are eventually denied.  There are a few, however, who will realize the unlikely and overwhelming joy of finally being released. I was one of those rare few whose name was on the list of Obama’s recent clemency grants.  And while I was excited to finally be going home — and extremely grateful to the president — I was also perplexed by those who weren’t on the list.

In speaking about criminal justice reform, Obama has highlighted the injustice of incarcerating marijuana offenders for “long stretches,” and has described marijuana as being “less harmful than alcohol” and a “vice,” not unlike cigarette smoking. He also instructed his Justice Department to not prosecute medical or recreational marijuana sellers who are operating under state law.  But his pool of clemency recipients does not reflect these views.

Out of the 306 clemency grants, less than 3 percent were marijuana offenders, and not one of them was a medical marijuana provider, despite being the most deserving given that they were following state law and the Obama administration is no longer prosecuting them. Some of them are even serving decades in prison.

One such inmate is Ricardo Montes, a Latino serving a harsh mandatory 20-year sentence for operating a medical marijuana dispensary in Modesto under California law.  Montes and his co-defendant received the longest sentences ever doled out to any medical marijuana provider, because — during the aggressive George W. Bush administration — they were charged under a fearsome mandatory minimum statue designed for drug kingpins and dangerous cartels.

Individuals like Montes are even more deserving of clemency than I was.  Yet I fear that men such as Montes will be left to serve the remainder of their lengthy prison terms, while others reap the rewards of the change in the legal landscape of our nation’s marijuana policies. I hope that Obama’s remaining clemency grants will reflect his sensible views regarding marijuana, ensuring that our criminal justice system “keeps its basic promise of equal treatment for all.”

May 25, 2016 in Clemency and Pardons, Drug Offense Sentencing, Examples of "over-punishment", Pot Prohibition Issues, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Tuesday, May 24, 2016

Virginia Republicans go directly to state Supreme Court to try to undo Gov's clemency order restoring vote to former felons

As first reported in this post last month, Gov Terry McAuliffe of Virginia used his executive clemency powers to restore voting rights to more than 200,000 former felons who had been permanently disenfranchised under Virginia's state election laws.  Now, as reported in this Washington Post piece, political opponents are going to court to try to undo this effort to allow more people to participate in democracy.  Here are the details:

Leaders of Virginia’s House and Senate went to the state’s highest court Monday in a bid to reverse Gov. Terry McAuliffe’s sweeping order to restore voting rights to 206,000 felons. Skipping lower courts, they filed a complaint with the Supreme Court of Virginia, contending that McAuliffe (D) exceeded his authority in April when he restored voting rights to felons en masse instead of individually.

The lawsuit — bankrolled by private donors — presents a complex constitutional question with the urgency of presidential election-year politics. Republicans are seeking an expedited review so that reinstated ex-cons who have registered to vote can be stripped from the rolls before November.

Virginia governors have restored felons’ voting rights, but none with anything close to McAuliffe’s scale and speed. “From Patrick Henry and Thomas Jefferson to Tim Kaine and Bob McDonnell, every Governor of Virginia has understood the clemency power to authorize the Governor to grant clemency on an individualized basis only,” said the lawsuit, filed on behalf of House Speaker William J. Howell (R-Stafford), Senate Majority Leader Thomas K. Norment Jr. (R-James City) and four other Virginia voters....

The governor says that his move helps former convicts to fully reenter society. Republicans call it a favor to Democratic presidential front-runner Hillary Clinton, McAuliffe’s close friend and political ally, who could benefit from higher numbers of minority voters in the crucial swing state.

McAuliffe blasted the lawsuit, suggesting that Republicans were trying to hold onto a remnant of the Jim Crow era, since African Americans have been disproportionately affected by felon disenfranchisement. One in four African Americans in Virginia had been banned from voting because of laws restricting the rights of those with convictions.

“Today Republicans filed a lawsuit to preserve a policy of disenfranchisement that has been used intentionally to suppress the voices of qualified voters, particularly African Americans, for more than a century,” McAuliffe said in a written statement. “These individuals have served their time and are now living, raising families and paying taxes in our communities — this suit is an effort to continue to treat them as second-class citizens.”...

The lawsuit, filed by Charles J. Cooper, who ran the Office of Legal Counsel under President Ronald Reagan, pushed back against the claim that felon disenfranchisement was rooted in racism. “Governor McAuliffe has falsely suggested that Virginia’s felon disenfranchisement provision was first introduced into the Constitution after the Civil War for the purpose of disenfranchising African-Americans,” the lawsuit says. “But Virginia has prohibited felons from voting since at least 1830 — decades before African-Americans could vote.”...

McAuliffe’s predecessor, Republican Robert F. McDonnell, simplified and sped up the application process for nonviolent offenders. When he was governor, Democrat Timothy M. Kaine, now a U.S. senator, considered a broader action but opted against it on the advice of his senior counsel, Mark Rubin. “A blanket order restoring the voting rights of everyone would be a rewrite of the law rather than a contemplated use of the executive clemency powers,” Rubin wrote in 2010. “And, the notion that the Constitution of the Commonwealth could be rewritten via executive order is troubling.”

McAuliffe’s order also allows ex-felons to serve on juries, run for public office and apply for restoration of their gun rights. It applies to all ex-felons, including those guilty of violent offenses such as murder and rape — a point emphasized by Republicans. The lawsuit notes that attorneys for a man accused of killing a state police trooper in Dinwiddie County are seeking to have felons whose civil rights were restored added to the pool of eligible jurors for his trial.

The McAuliffe administration notes that felons would still need a judge’s approval before winning back their gun rights and would still be vetted by the jury selection process before being added to such a panel. McAuliffe said that nearly 80 percent of those affected by his order were convicted of nonviolent offenses. Still, Republicans say, that means McAuliffe restored rights to 40,000 violent felons.

Prior related posts:

May 24, 2016 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5)

Saturday, May 21, 2016

DAG Yates spotlights in commencement speech role of Georgia School of Law in clemency achievement

Today, Deputy Attorney General Sally Yates returned to her alma mater, the University of Georgia School of Law, to deliver this Commencement address. Like all good Commencement addresses, the whole piece is a lovely read. But sentencing fans should be especially interested in these closing comments:

I’d like to close by telling you about a recent intersection between the work of some students graduating here today and my work in Washington.  As some of you may know, the Obama Administration has embarked on a clemency initiative designed to address the disproportionately long sentences given to lower-level, non-violent drug offenders who were sentenced under outdated drug laws.  As Deputy Attorney General, I am charged with making a recommendation to President Obama on each petition. One such recent clemency petition was prepared by two of today’s graduates. These students participated in the representation of a man named Steven Boyd.  In 1998, Mr. Boyd was convicted of selling crack and sentenced to life in prison. He had absolutely no history of violence and other than a few small time drug deals, no other criminal history. Yet the harsh mandatory minimum statutes in effect at the time mandated a life sentence.  That’s life with no possibility of parole. The students prepared Mr. Boyd’s petition for clemency and submitted it to the Justice Department.  That petition made its way to my desk and then on to the White House. And just three weeks ago, the president granted Mr. Boyd’s clemency petition. Mr. Boyd served 18 years and paid his debt to society. As a result of your classmates’ hard work and their commitment to their duty as lawyers, Mr. Boyd will be a free man. Your classmates unlocked justice for Steven Boyd.

Each and every one of you has both the capacity and the obligation, in the words of Attorney General Kennedy, to breathe meaning and force into the pursuit of justice.  I hope that you will seize opportunities to right wrongs large and small, that you will stand up for the voiceless and that you will uphold the promise of our country. I hope that you will use the key that you are about to receive to unlock justice.

May 21, 2016 in Clemency and Pardons, Drug Offense Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Sunday, May 08, 2016

Some critical reflections on Prez Obama's clemency efforts and some ideas about what could have been

Late last week, the Washington Post had this lengthy article reviewing the various problems encoutered during President Obama's clemency push over the last few years.  The piece is headlined "Lack of resources, bureaucratic tangles have bogged down Obama’s clemency efforts," and it effectively summarized many of the difficulties previously reported on this blog. Here are excerpts:

In the waning months of his presidency, Obama has made commutations for nonviolent drug offenders a centerpiece of his effort to reform the country’s criminal-justice system. But behind the scenes, the administration’s highly touted clemency initiative has been mired in conflict and held up by a bureaucratic process that has been slow to move prisoner petitions to the president’s desk.

Obama has granted 306 commutations to federal prisoners — more than the past six presidents combined. But as of Friday, 9,115 commutation petitions were pending with little time left to review them. Of these, fewer than 2,000 appear to be eligible for the president’s clemency program, according to a Justice Department official. Thousands more are still being reviewed by outside lawyers.

From the beginning, the program was beset by problems, including a lack of resources and a cumbersome, multilevel review system. The U.S. pardon attorney at the Justice Department makes recommendations that move to the deputy attorney general, who reviews the cases and sends them to the White House counsel, who considers them again before choosing which ones go to Obama.

The pardon attorney became so frustrated that she quit earlier this year and wrote a scathing resignation letter to Deputy Attorney General Sally Q. Yates. Deborah Leff said that despite her “intense efforts” to do her job, the Justice Department had “not fulfilled its commitment to provide the resources necessary for my office to make timely and thoughtful recommendations on clemency to the president.”...

On Thursday, Obama commuted the sentences of 58 prisoners, his second round of clemencies in three months as the program has picked up steam. Administration officials say that they are addressing obstacles that have plagued the clemency initiative. The Justice Department has added lawyers to the pardon office. And White House Counsel Neil Eggleston has promised that many more petitions will be granted in the president’s final eight months.

“The President is deeply committed to the clemency initiative. That is evident not only by the historic number of commutations he’s granted to date, but by his wholesale approach to revamping the way the government approaches commutations,” White House spokeswoman Brandi Hoffine said in a statement. “That change helped spark a long overdue conversation about reforming our criminal justice system, which we hope will result in Congressional action so that many more deserving individuals can benefit from a second chance.”...

An attorney who worked in the pardon office at the same time as Leff said that with petitions flooding in, it was extremely difficult with so few lawyers to sort out complicated drug cases and figure out whether they met the department’s strict criteria. To get more help, Cole reached out to the private bar to set up another layer of lawyers to read applications.

Outside lawyers formed an organization called Clemency Project 2014, which includes Families Against Mandatory Minimums, the American Civil Liberties Union, the American Bar Association and the National Association of Criminal Defense Lawyers. An army of about 4,000 volunteer lawyers from across the country signed up to help in what has become one of the largest pro bono efforts in the history of the American legal profession. Seventy large law firms, more than 500 small firms and solo practitioners, and 30 law schools are involved, according to Cynthia W. Roseberry, the project’s manager. But it took nearly a year for the group to get organized and recruit and train lawyers, many of whom had no experience in criminal law.

An overwhelming 36,000 inmates — about 17 percent of the federal prison population — filled out surveys asking for help from the Clemency Project. Even though the Justice Department had its own backlog, officials there privately complained that the outside Clemency Project lawyers, with their multiple levels of review, were taking too long to send more petitions. That in turn frustrated the Clemency Project attorneys, who said they were working carefully to locate old legal documents, contact prosecutors and judges, look at prison behavior records and try to get pre-sentencing reports and sentencing transcripts. At the same time, they have been weighing risks to public safety....

Some critics say the White House could have avoided many of these headaches by modeling the process after the way President Gerald Ford handled clemencies for Americans who had deserted the Army or failed to show up for the draft during the Vietnam War.  With 600 people working on a special commission to review the cases, Ford granted 14,000 clemencies in one year. Law professor Mark Osler, co-founder of New York University’s Clemency Resource Center, said the initiative also might have gone more smoothly if Obama had moved the pardon attorney’s office into the White House rather than keeping it under career prosecutors who may find it difficult to reverse other prosecutors’ decisions.

This recent Fusion piece, headlined "The bold step President Obama could take to let thousands of federal inmates go free," provides a thorough discussion of the special clemency commission that President Ford had set up to deal with a massive number of Veitnam draft dodgers and desserters and which was able to process tens of thousands of clemency cases in just a year.  Here is how it concludes:

If Obama had appointed a Ford-style clemency board, he could have cut down the bureaucracy to three or four steps: a review by the board’s staff, a review by the board, a review by the White House counsel, a review by the president.

In the last few months, Obama’s advisers have been making the argument that he’s granted “more [clemencies] than the previous six Presidents combined.” But that calculation is false, as it incorrectly ignores the clemencies granted through Ford’s commission. (A White House spokesperson noted that Department of Justice statistics only count the 22 non-Vietnam related clemencies that Ford granted.)

For many recent presidents, clemency has been treated more like an afterthought. Until recently, Obama announced them at the end of each year, before he jets off to Hawaii with his family — a last-minute Christmas gift to a tiny handful of prisoners.

With fewer than 10 months left in office, even if Obama had a change of heart and decided to create a clemency board today, it would almost surely be too late. But [clemency advocates Nkechi] Taifa and Osler say it’s an idea that should be picked up by the next president. “This should not end with the Obama administration,” Taifa said.

“I do not want to delay another day in resolving the dilemmas of the past, so that we may all get going on the pressing problems of the present,” Ford said when he announced his clemency board. If President Obama—or the next president—wants to resolve the past failings of our criminal justice system, then they should also take lessons from one of its rare success stories.

May 8, 2016 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

Thursday, May 05, 2016

Prez Obama commutes 58 more federal drug sentences

As detailed via this terse White House press release, "On May 5, 2016, President Barack Obama granted commutation of sentence to 58 individuals." The release lists the 58 new recepients of executive clemency, and a quick scan reveals that all appear to be drug defendants and most involving cocaine and/or crack.

This press release from NACDL adds these notable particulars: "In his second set of clemency grants in under six weeks, President Barack Obama commuted the sentences of 58 prisoners today, 28 of whom were applicants whose petitions were supported by Clemency Project 2014."

UPDATE:  I just saw that Prez Obama now has this new Medium entry headlined "A Nation of Second Chances." Here are excerpts:

Earlier this spring, I met with a group of individuals whose sentences were commuted either by President Bush, President Clinton, or myself. They were all at different stages of a new chapter in their lives, but each of their stories was extraordinary.

Take Phillip Emmert. When he was 27, Phillip made a mistake. He was arrested and convicted for distributing methamphetamines and received a 27-year sentence. So, by the time he was released, he’d have spent half his life behind bars. Unfortunately, while in prison, his wife was paralyzed in an accident. So while he was in prison, Phil learned everything he could about fixing heating and air conditioning systems — so he could support his wife when he got out. And after his sentence was commuted by President Bush, he was able to do just that. Today, he’s gainfully employed. He’s a caregiver for his wife, an active father, and a leader in his community.

Like so many nonviolent offenders serving unduly harsh sentences, Phillip is not a hardened criminal. He’s taken responsibility for his mistakes. And he’s worked hard to earn a second chance.

Today, I commuted the sentences of an additional 58 individuals just as deserving as Phillip — individuals who can look to him as inspiration for what is possible in their lives.

As President, I’ve been working to bring about a more effective approach to our criminal justice system, particularly when it comes to drug crimes. Part of that effort has been to reinvigorate our commutations process, and highlight the individuals like Philip who are doing extraordinary things with their second chances. To date, I will have commuted 306 individual sentences, which is more than the previous six presidents combined....

As a country, we have to make sure that those who take responsibility for their mistakes are able to transition back to their communities. It’s the right thing to do. It’s the smart thing to do. And it’s something I will keep working to do as long as I hold this office.

May 5, 2016 in Clemency and Pardons, Criminal justice in the Obama Administration, Drug Offense Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (23)

Friday, April 29, 2016

With nine months left in Obama Administration, apparently it is time for a clemency last call

Regular readers know I am a long-time critic of how modern presidents have (failed to) use their historic clemency powers and that I am not an especially big fan of how the Obama Administration and others have approached trying to do things better of late.  Another frustrating piece of this story is captured by this new Politico piece headlined "Obama team making last-ditch push on commutations: Top Justice official says non-violent drug offenders are running out of time to apply for reduced sentences."  Here are excerpts:

The Obama Administration is pressing hard to keep the clock from running out on thousands of federal drug convicts hoping to get their prison sentences shortened by President Barack Obama before he leaves office in January.  Earlier this week, the No. 2 official at the Justice Department pleaded with volunteer lawyers working on those cases to get the commutation applications filed right away.

"Time is of the essence and the inmates who raised their hands for your assistance still need your help," Deputy Attorney General Sally Yates wrote in the unusual letter, dated Monday and obtained by POLITICO. In the message to attorneys working through a consortium known as Clemency Project 2014, Yates noted that the group has set internal deadlines for most cases as soon as Monday of next week and for other cases in mid-May.  "I cannot stress how important it is [to] meet those deadlines," Yates wrote. "If those deadlines cannot be met, we need to ensure that inmates have sufficient time to file pro se petitions, and that the Department of Justice has enough time to process and review them."

Obama launched his so-called "Clemency Initiative" in early 2014, seeking to identify thousands who have served long drug-crime sentences that would likely have been shorter under current law. The effort was aimed at granting commutations to those who met certain criteria, such as being non-violent, low-level offenders. The announcement triggered a flood of clemency requests from close to 30,000 inmates — more than 10 percent of the federal prison population. The level of interest swamped the handful of lawyers in the office of the Justice Department's Pardon Attorney and overwhelmed the newly-created Clemency Project.

While the group has said nearly 4,000 attorneys were recruited to prepare applications, the process has been a tough slog, slowed by bureaucratic hurdles in obtaining paperwork and the reliance on lawyers who usually have no prior experience seeking clemency. Yates' letter to the Clemency Project lawyers says they have submitted "more than 850 petitions" thus far. That's a dramatic increase from the roughly 30 the group's lawyers had handed in about a year ago, but still far short of the number likely to yield the thousands of commutations some Obama administration officials expected at the outset.

The applications are also backlogged at the Justice Department, which had more than 11,000 commutation requests of all types pending at the end of March, according to Justice's website. In January, the Justice Department official who'd overseen the effort since the spring of 2014 resigned, complaining of a lack of resources and that her recommendations were not always being relayed to the White House. "The Department has not fulfilled its commitment to provide the resources necessary for my office to make timely and thoughtful recommendations on clemency to the president," Pardon Attorney Deborah Leff wrote in her resignation letter, obtained by USA Today through a Freedom of Information Act request.

White House Counsel Neil Eggleston said at a POLITICO Playbook Breakfast earlier this month that the Pardon Attorney's office has gotten a boost in resources and that some of the concerns Leff raised have been addressed. "The pardon attorney's office has a little more resources, which is good, and I have regular dealings with the pardon attorney directly, so to the extent that Ms. Leff was complaining about that, that was solved. Actually, it was solved before she left,” Eggleston said. “And so I think that we're moving forward in a pretty good way here."...

Last year, Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) questioned whether the Justice Department had essentially outsourced its role in the process to the Clemency Project 2014 lawyers. A Justice Department official rejected that idea at the time, saying that the volunteer project — backed by the American Civil Liberties Union, the National Association of Criminal Defense Lawyers and others — was "completely separate" from Justice.

However, Yates' letter this week highlights the Clemency Project's internal deadlines and thanks the group for having "screened out ... 20,000 ineligible applicants."  Critics, noting that Obama has granted commutations to some applications who did not appear to meet all the criteria, have expressed concern that some of those prisoners may have compelling cases for commutations but will be dissuaded from applying by having been screened out.  In addition, in a less-noticed portion of Leff's letter, she said she had "been instructed to set aside thousands of petitions for pardon and traditional commutation."

I have got tired of being tired of hearing these stories of too many clemency applicants and too little ability to procees them all. But I will continue to note (and lament) all this, and continue to hope that Prez Obama will vindicate all the energies and excitement advocates devoted to these matters by granting at least a few hundred more commutations and some significant number of pardons before he passes on the keys to the Oval Office next January.

April 29, 2016 in Clemency and Pardons, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4)

Tuesday, April 26, 2016

Virginia Gov explains his big decision to use his clemency power to restore franchise

I noted in this post last Friday that Governor Terry McAuliffe of Virginia used his executive clemency power to restore voting rights to more than 200,000 former felons.  Since then, I came across this Medium piece in which the Gov explains his actions. Here are excertps:

We are all familiar with Virginia’s long history of discrimination at the ballot box, culminating in the 1902 constitution establishing a poll tax, literacy and knowledge tests, and broader restrictions on individuals with felony convictions.

The 1965 Voting Rights Act eliminated many of those barriers.  However, Virginia continued to enforce one of the most restrictive laws in the country regarding the restoration of voting and civil rights for individuals who have been convicted of felonies but who complete their sentences and probation or parole.  Over the last two years, our administration has worked tirelessly to simplify the restoration process.  We restored the rights of more than 18,000 Virginians, which is more than the past 7 governors combined over their full four-year terms.

We worked to reform the process by reducing the waiting period for more serious offenders from five years to three, classifying all drug-related convictions as non-violent, shortening the application for more serious offenders from 13 pages to one page, removing a requirement that individuals pay their court costs before they can have their rights restored, and ensuring that a notation will be included in an individual’s criminal record designating that his or her rights have been restored.

While I am proud of the progress we have achieved, I wasn’t satisfied to leave so many men and women in our Commonwealth barred from full citizenship.  [On Friday] we restored the voting and civil rights of more than 200,000 Virginians who have served their time and completed supervised release.

This action means that these disenfranchised Virginians will immediately regain the right to register to vote, to run for office and to serve on a jury.  It means that these Virginians, who have served their sentences and returned to live in our communities, will no longer be second class citizens who must jump through onerous hoops to have a voice in our society.  And it means that Virginia can close a difficult chapter in our history and open a new one where, instead of building barriers to the ballot box, we work together to break them down.

Some have suggested this action was politically motivated, or that it is wrong to restore the rights of felons who have committed more serious crimes, even if they have served their sentences.  I would encourage those critics to meet with some of the men and women whose rights we have restored throughout my term.  Who have reentered society seeking a second chance and who have waited years, sometimes decades, to become whole members of our society again.  And who have broken down in tears as I signed their restorations on “the best day of their lives.”

If we are going to build a stronger Virginia, we must open doors to participation in civic life for people who return to society seeking a second chance.  We must welcome them back and offer the opportunity to build a better life by taking an active role in our democracy.  I believe it is time to cast off Virginia’s troubling history of injustice and embrace an honest, clean process for restoring the rights of these men and women.

Prior related posts:

April 26, 2016 in Clemency and Pardons, Collateral consequences, Reentry and community supervision, Who Sentences? | Permalink | Comments (0)

Friday, April 22, 2016

Virginia Governor, bolding using his executive clemency authority, restores voting rights to over 200,000 former felons!!

Virginia today is surely a state for lovers of voting rights in light of this remarkable news via the New York Times: "Gov. Terry McAuliffe of Virginia used his executive power on Friday to restore voting rights to more than 200,000 convicted felons, circumventing his Republican-run Legislature."  Here is more:

The action overturns a Civil War-era provision in the state’s Constitution aimed, he said, at disenfranchising African-Americans. The sweeping order, in a swing state that could play a role in deciding the November presidential election, will enable all felons who have served their prison time and finished parole to register to vote. Most are African-Americans, a core constituency of Democrats, Mr. McAuliffe’s political party.

Amid intensifying national attention over harsh sentencing policies that have disproportionately affected African-Americans, governors and legislatures around the nation have been debating — and often fighting over — moves to restore voting rights for convicted felons.

In Kentucky, Gov. Matt Bevin, a newly elected Republican, recently overturned an order enacted by his Democratic predecessor that was similar to the one Mr. McAuliffe signed Friday. In Maryland, Gov. Larry Hogan, a Republican, vetoed a measure to restore voting rights to convicted felons, but Democrats in the state legislature overrode him in February; an estimated 44,000 former prisoners who are on probation are now eligible to register to vote as a result.

“There’s no question that we’ve had a horrible history in voting rights as relates to African-Americans — we should remedy it,” Mr. McAuliffe said Thursday, previewing the announcement he made on the steps of Virginia’s Capitol, just yards from where President Abraham Lincoln once addressed freed slaves. “We should do it as soon as we possibly can.”

The action, which Mr. McAuliffe said was justified under an expansive legal interpretation of his executive clemency authority, goes far beyond what other governors have done, experts say, and will almost certainly provoke a backlash from Virginia Republicans, who have resisted measures to expand felons’ voting rights. It was planned in secrecy, and came amid an intensifying national debate over race, voting and the criminal justice system. There is no way to know how many of the newly eligible voters in Virginia will register, but Mr. McAuliffe said he would encourage all to do so. “My message is going to be that I have now done my part,” he said.

The Republican Party of Virginia quickly issued a statement accusing Mr. McAuliffe of “political opportunism” and “a transparent effort to win votes.”

“Those who have paid their debts to society should be allowed full participation in society,” said the statement, issued by the party chairman, John Whitbeck. “But there are limits.” He said the governor was wrong to issue a blanket restoration of rights, even to those who “committed heinous acts of violence.”

Only two states — Maine and Vermont — have no voting restrictions on felons. Of the remaining 48, 12 states disenfranchise felons after they have completed probation or parole, said Marc Mauer, executive director of the Sentencing Project, a Washington policy organization that advocates restoring felons’ voting rights. Virginia is one of four states — the others are Kentucky, Florida and Iowa — that impose the harshest restrictions. The Sentencing Project says one in five African-Americans in Virginia is disenfranchised....

Mr. Mauer called Mr. McAuliffe’s decision a stunning development, and one that will have lasting consequences because it will remain in effect at least until January 2018, when Mr. McAuliffe leaves office. It covers those convicted of violent crimes, including murder and rape. “This will be the single most significant action on disenfranchisement that we’ve ever seen from a governor,” Mr. Mauer said, “and it’s noteworthy that it’s coming in the middle of this term, not the day before he leaves office. So there may be some political heat but clearly he’s willing to take that on, which is quite admirable.”

Advocates who have been working with the governor say they are planning to fan out into Richmond communities Friday afternoon to start registering people. Until now in Virginia, felons were allowed to apply to have their voting rights restored, but the process could be cumbersome and those who have committed violent crimes faced a waiting period. That will be eliminated by Mr. McAuliffe’s action. “That is a huge deal,” said Tram Nguyen, an executive director of the New Virginia Majority, an advocacy group. “We talk about needing to raise up your voice so that we can impact policy makers, and these people are saying to us, ‘We don’t have a voice, no one is going to listen to us, we don’t even have our right to vote.’ ”

Experts say that with the stroke of his pen, Mr. McAuliffe has allowed convicted felons to begin registering to vote, and that their voting rights cannot be revoked — even if a new governor rescinds the order. But the move could expose the governor to accusations that he is playing politics; he is a longtime friend of — and top fund-raiser for — Hillary Clinton, the likely Democratic nominee for president, and former President Bill Clinton....

The order builds on steps the governor has previously taken to restore voting rights to 18,000 Virginians since the beginning of his term, and he said he believed his authority to issue the decision was “ironclad.” Professor A. E. Dick Howard of the University of Virginia School of Law, who was the principal draftsman of a revised Constitution adopted by Virginia in 1971, agreed, and said the governor had “ample authority.” But Professor Howard, who advised Mr. McAuliffe on the issue, said the move might well be challenged in court. The most likely argument, he said, is that the governor cannot restore voting rights to an entire class of people all at once. “I’m assuming that the complaint will be that he has to act one pardon at a time, one person at a time, that he’s not permitted to act wholesale,” Professor Howard said. “I think the language of the Constitution and the theory of the pardoning power all point to the same conclusion — that he can.”

Virginia’s Constitution has prohibited felons from voting since the Civil War; the restrictions were expanded in 1902, as part of a package that included poll taxes and literacy tests. In researching the provisions, advisers to the governor turned up a 1906 report quoting Carter Glass, a Virginia state senator (and later, a member of Congress who was an author of the 1933 Glass-Steagall Act that regulated banks) as saying they would “eliminate the darkey as a political factor in this State in less than five years, so that in no single county of the Commonwealth will there be the least concern felt for the complete supremacy of the white race in the affairs of government.”

Mr. McAuliffe, who took office in 2014 and campaigned to restore voting rights to felons, said that he viewed disenfranchisement as “a remnant of the poll tax” and that he had been “trying to figure out what more I can possibly do.” He has been working with his legal team for months to live up to his campaign promise. His action Friday will not apply to felons released in the future; the governor’s aides say Mr. McAuliffe intends to issue similar orders on a monthly basis to cover more people as they are released. “People have served their time and done their probation,” Mr. McAuliffe said. “I want you back in society. I want you feeling good about yourself. I want you voting, getting a job, paying taxes. I’m not giving people their gun rights back and other things like that. I’m merely allowing you to feel good about yourself again, to feel like you are a member of society.”

The official statement and executive order can be found at this link.

As long-time readers may recall, I have long been an advocate for letting even prisoners vote (as noted here), and thus I have long opposed any and all form of felon disenfranchisement. Throw in the fact that there is evidence to suggest that former offenders who vote are less likely to recidivate, and I am quite pleased about what Gov. McAuliffe had the courage (and political savvy) to do here.  Perhaps this action by a sitting Gov not far from the US capital will inspire the President to see what bold useful work can be done through bold use of clemency authority.

April 22, 2016 in Clemency and Pardons, Collateral consequences, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Monday, April 11, 2016

Has anyone calculated trial rates — or other notable features — of 248 offenders getting Obama commutations?

The question in the title of this post represents my not-so-direct effort to encourage any and all hard-core sentencing researchers — as well as folks involved with Clemency Project 2014 and the St. Thomas Federal Commutation Clinic and the NYU Clemency Resource Center  and the CUA Clemency Project — to consider taking a deep dive into case processing realities and all sorts of other offense and offender features of the 248 federal prisoners who have now had their lengthy prison sentences commutted by President Obama.  The focus on trial rates in my title query is based to my (educated) speculation that those prisoners who have so far received commutations may have opted to have their guilt tested at trial at a rate quite different from the bulk of convicted federal offenders.   

Roughly speaking, only about three out of every hundred convicted federal offenders now have their guilt estabished at trial; all the others admit guilt though a plea.  (This chart from the US Sentencing Commission provides these data details on guilty pleas and trial rates for the last five fiscal years.)  But my own limited experiences seeking to challenge some extreme federal sentences have often involved federal defendants who exercised their rights to trial.  Consequently, I would be quite surprised if it turns out that only around 10 of the 248 federal prisoners whose lengthy prison sentences have been commutted by President Obama had gone to trial.

Unfortunately, this official list of "Commutations Granted by President Barack Obama" does not indicate if the offenders' sentences were imposed after a plea or a trial.  Nevertheless, with so many institutions and individuals now so interested in looking at the modern exercise of federal clemency, I am hopeful someone has started or will soon start trying to figure out if there are some distinct and distinctively important features of those cases now garnering the attention of President Obama.

April 11, 2016 in Clemency and Pardons, Data on sentencing, Second Amendment issues | Permalink | Comments (5)

Tuesday, April 05, 2016

More reflections and criticisms of clemency work past, present and future

I reprinted here over the weekend a lovely and positive report by Lisa Rich about all the activity emerging from the White House last week on the important topic of clemency.  Thanks to Mark Osler, I have now learned that Thursday's extended "White House Briefing on Life After Clemency" can be watched in full via YouTube here. Here is how the event is described:

Building on the President's efforts to make our criminal justice system more fair by granting clemency to men and women sentenced under outdated sentencing rules, the briefing brings together academics, advocates and Administration officials seeking to remove obstacles to successful reentry. The briefing provides a collaborative environment to discuss and share ideas on the President's clemency initiative and ways to improve paths to reentry.

Critically, not everyone is having warm feelings about the work of Prez Obama and his administration's work to date in this arena.  In particular, Mark Osler followed up his participation in the White House briefing with this New York Times op-ed headlined "Obama’s Clemency Problem." Here are excerpts:

In the spring of 2014, the Obama administration announced an initiative to consider granting clemency to thousands of federal prisoners serving what Mr. Obama called “unjust” sentences for low-level drug crimes.  Federal prisoners were notified of the project, and more than 30,000 responded by submitting surveys to begin the process.

Despite the relatively high number of commutations that Mr. Obama has now granted, there are still more than 9,000 pending commutation cases, many of the sort singled out in the 2014 initiative as potentially worthy. So why has the president acted on so few?  Typically, a reluctance to exercise the pardon power is a result of political timidity.  But in this case, the Obama administration already took the political risk two years ago when it announced the clemency initiative.

The problem here is that too many cases can’t be adequately considered by the president because of a sluggish and often intransigent review process.  Clemency petitions undergo no fewer than seven levels of review, four of them within the Department of Justice.  Within the Justice Department, clemency petitions run not only through the Office of the Pardon Attorney but also through the office of the deputy attorney general.

When the pardon attorney, Deborah Leff, resigned in January, she complained in her letter of resignation that meritorious clemency cases had been thwarted by those above her. She noted in particular that some of her own recommendations had been overruled by the deputy attorney general, Sally Quillian Yates.  It is not an incidental fact that Ms. Yates is a career prosecutor.  When the Department of Justice reviews clemency cases, the opinions of prosecutors in the district of conviction are solicited and given considerable weight. But prosecutors are the wrong people for the task of vetting clemency cases.

I was a federal prosecutor for five years.  In that job, deciding someone’s fate is a necessary but difficult emotional commitment.  The prospect of being wrong — and a clemency initiative like Mr. Obama’s can feel like a judgment that prosecutors were wrong — can be a lot to bear.  We should not be surprised if, when it comes to Mr. Obama’s clemency initiative, prosecutors systematically resist what is, in effect, an indictment of their work.

President Obama can and should fix this problem with a simple executive order that places the Office of the Pardon Attorney in the White House, rather than at the bottom of the institutional structure at the Department of Justice.  An empowered pardon attorney (or perhaps a pardon board, as we find in many states) would then report directly to the president.  That would allow an independent but thorough review of clemency petitions free from the influence of career prosecutors.

And while Professor Osler is concerned about the slow and cumbersome process for considering clemency requests, this letter to AG Loretta Lynch authored by Senator Richard Shelby highlights that others are troubled by some of the few offenders who have already received sentence commutations.  Here is how Senator Shelby's letter gets started:

I am writing to you in response to yesterday’s announcement that President Barack Obama granted sentence commutations to 61 individuals. I have strong concerns that 12 of these 61 individuals were convicted of one, if not more, firearm-related offenses. These include:

  • Seven convictions of possession of a firearm in furtherance of a drug trafficking crime;
  • Four convictions of possession of a firearm by a felon; and
  • Two convictions of use of a firearm in furtherance of a drug trafficking offense.

In August 2014, the Department of Justice announced its rubric for considering federal inmates for the President’s new initiative for executive clemency. Part of these criteria included: non-violent individuals who would not pose a threat to public safety if released; low-level offenders without significant ties to large-scale criminal organizations, gangs, or cartels; inmates who do not have a significant criminal history; and those who have no history of violence prior to, or during, their current term of imprisonment.

By my count, the President has commuted the sentences of over 200 of these “non-violent” federal inmates, of which 33 were convicted of firearm-related offenses.  I am troubled by the nature of the firearm-related convictions and the fact that some individuals are previously convicted felons who continued to commit crimes.  This announcement clearly demonstrates that the Administration is not following its own selection criteria.  Frankly, I am left wondering why the President and the Justice Department consider individuals who carry guns to drug deals as “non-violent”.

April 5, 2016 in Clemency and Pardons, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Sunday, April 03, 2016

A more positive spin on clemency developments and more positive aspects

LisaRichRegular readers may grow somewhat tired of hearing me kvetch about President Obama being much more willing to talk the talk than walk the walk when it comes to criminal justice reform generally and clemency developments in particular. For that reason (and others), I invited always sunny Lisa Rich to provide for blogging her sunny perspective on clemency events that transpired at the White House last week. Here is what she was kind enough to send my way for posting:

A somewhat sentimental post by Lisa A. Rich, former director of Legislative & Public Affairs at the U.S. Sentencing Commission and current director of the Texas A&M School of Law Residency Externship Program in Public Policy:
Last Week, I had the privilege of joining not only the tireless advocates of the Justice Roundtable and White House staff but over two dozen recipients of clemency spanning four presidencies during the Justice Roundtable and White House Briefings on “Life After Clemency.”
Personally, it was a joy to see all of the people — Nkechi Taifa, Mark Osler, Cynthia Rosenberry, Jesselyn McCurdy, Julie Stewart, Margy Love, and so many others who have been working tirelessly to answer the Obama Adminstration’s call to action on clemency.  I am in awe of the ceaseless dedication these advocates demonstrate every day in their pursuit of hope and justice for those human beings who deserve a chance to be something so much more than a statistic in our cycle of mass incarceration. These advocates and those for whom they do their jobs are the role models I discuss in my classes and they are the ones who inspire me to be better.
But more than my personal connection with those I miss because I am no longer living in D.C., the events over these past three days were important for two reasons.  First, all of us, including the President and White House staff saw and heard what hope is all about.  We heard from clemency recipients about heartache, mistake, and loss being turned into determination, faith, and commitment.  We heard people who genuinely want to make their communities and their lives better, stronger, and happier.  I am delighted that policymakers inside and outside of Washington are taking the opportunity to get to know these people — as people, not numbers, not workload, not files on a desk.
Second, I was pleased that two of my students were in the audience — and in fact had been given the opportunity to be involved in preparing for these events.  As part of Texas A&M School of Law’s new externship program in public policy, these students got to see policymaking in action from start to finish; they got to see firsthand the effects of both good and bad policy decisions.  Their experiences may not seem all that different from the hundreds of law students who go to D.C. and elsewhere each semester to partake in policy but it actually was a defining moment for me and them.  These students are the future policymakers and advocates.  To me, the events of these past three days were not just about hope for those impacted by outdated laws and poor decision making, but hope that the next generation of lawyers, policymakers, and advocates being trained by the brilliant people who participated in these events will learn from our mistakes; that they will engage in sound decision making based on evidence and best practices; that they will carry on the work done so well by so many. As an advocate and a teacher that is what hope is all about.

April 3, 2016 in Clemency and Pardons, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (14)

Friday, April 01, 2016

GOP frontrunners Donald Trump and Ted Cruz author joint letter urging Prez Obama to commute tens of thousands more federal sentences!

April-Fool-5Apologies to those who clicked through based on the headline of this post to discover that this headline is my lame attempt to bring a timely sentencing spin to April Fools Day. 

As I was thinking about what to post on this special day for silliness and pranks, it dawned on me that whomever does eventually become the GOP candidate for President probably would be eager to have Prez Obama commute tens of thousands of prison sentences before the election... so that he could thereafter blame any and all future crimes on the current President and every other Democrat currently in office or running for office.  This reality, I think, helps explain why Prez Obama has still been so stingy with his clemency grants to date despite so much talk about a big clemency push.

Indeed, in light of Prez Obama's grant of only 61 more commutations earlier this week (details here), I am inclined to predict that we will only see, at most, a few dozen more clemency grants before the November election.  But once the election is completed, I think it is entirely unpredictable what Prez Obama might do in the clemency arena.  Prez Bill Clinton issued a large number of last-day clemencies, including a notorious pardon to campaign funder and fugitive Marc Rich, and the controversy that created likely led the Prez George W. Bush only granting a few lame-duck clemencies.

Ironically, if a fellow Democrat is elected in November, I suspect Prez Obama will be inclined to grant fewer lame-duck clemencies: he likely will not wish to create any unique challenges or controversies when a member of his own party takes over his position in the Oval Office, and he likely will be hopeful that a successor from his party will continue his visible clemency push.  In contrast, if a Republican wins in November, I would expect Prez Obama to grant more clemencies so that he could in this way burnish his claim to have lived up to his "hope and change" campaign mantra in the criminal justice arena.

Finally, while focused on the intersection of April Fools Day and the 2016 campaign, am I crazy to imagine that GOP frontrunner Donald J. Trump might give a big speech today to announce that his entire campaign was just a massive prank and the most amazingly extended form of performance art in American political history?

April 1, 2016 in Campaign 2016 and sentencing issues, Clemency and Pardons, Who Sentences? | Permalink | Comments (8)

Wednesday, March 30, 2016

Prez Obama commutes the sentence of 61 more federal drug offenders

As reported in this Washington Post piece, "President Obama commuted the sentences of 61 inmates Wednesday, part of his ongoing effort to give relief to prisoners who were harshly sentenced in the nation’s war on drugs." Here is more on this notable clemency news:

More than one-third of the inmates were serving life sentences. Obama has granted clemency to 248 federal inmates, including Wednesday's commutations.  White House officials said that Obama will continue granting clemency to inmates who meet certain criteria set out by the Justice Department throughout his last year....  Since the Obama administration launched a high-profile clemency initiative, thousands more inmates have applied.  Another 9,115 clemency petitions from prisoners are still pending....

But sentencing reform advocates said that many more prisoners are disappointed they have not yet heard from the president about their petitions. “Sixty-one grants, with over 10,000 petitions pending, is not an accomplishment to brag about,” said Mark Osler, a law professor at the University of St. Thomas in Minnesota and an advocate for inmates petitioning for clemency.  “I know some of those still waiting, men who were grievously over-sentenced, who have reformed themselves, and never had a record of violence.  My heart breaks for them, as their hope for freedom — a hope created by the members of this administration — slips away.”

The White House has argued that broader criminal justice reform is needed beyond the clemency program. “Despite the progress we have made, it is important to remember that clemency is nearly always a tool of last resort that can help specific individuals, but does nothing to make our criminal justice system on the whole more fair and just,” said White House counsel W. Neil Eggleston. “Clemency of individual cases alone cannot fix decades of overly punitive sentencing policies.  So, while we continue to work to resolve as many clemency applications as possible — and make no mistake, we are working hard at this — only broader criminal justice reform can truly bring justice to the many thousands of people behind bars serving unduly harsh and outdated sentences.”

Among those granted clemency on Wednesday was Byron Lamont McDade, who had an unusual advocate in his corner.  The judge who sent McDade to prison for more than two decades for his role in a Washington-area cocaine conspiracy personally pleaded McDade’s case for early release. U.S. District Judge Paul L. Friedman said McDade’s 27-year punishment was “disproportionate” to his crime, but that he had no choice but to impose the harsh prison term in 2002 because of then-mandatory sentencing guidelines. Over the years, the judge had urged the Bureau of Prisons and the White House to reduce McDade’s sentence to 15 years.  He received no response until now....

On Thursday, the White House will hold an event called Life after Clemency that will include former inmates and their attorneys, along with some prison reform advocates. The president’s senior adviser, Valerie Jarrett, is meeting with advocates, former inmates and family members of prisoners Wednesday at the White House for an event about women and the criminal justice system.

This White House Press release provides basic details on the full list of 61 offenders who today learned that they now have a "prison sentence commuted to expire on July 28, 2016." Many of those listed appear to have been involved in a crack offense, though other drug cases sentenced both before and after Booker can be found in the group.  Notably, this NACDL press release reports that "25 of [these 61 offenders] were applicants whose petitions were supported by Clemency Project 2014."  This White House blog post authored by White House counsel W. Neil Eggleston provides more details and context concerning these grants:

Today, the President announced 61 new grants of commutation to individuals serving years in prison under outdated and unduly harsh sentencing laws.  More than one-third of them were serving life sentences.  To date, the President has now commuted the sentences of 248 individuals more than the previous six Presidents combined. And, in total, he has commuted 92 life sentences.

Underscoring his commitment not just to clemency, but to helping those who earn their freedom make the most of their second chance, the President will meet today with commutation recipients from both his Administration and the previous administrations of Presidents George W. Bush and Bill Clinton.  During the meeting, the commutation recipients will discuss their firsthand experiences with the reentry process and ways that the process can be strengthened to give every individual the resources he or she needs to transition from prison and lead a fulfilling, productive life. 
 
Building on this conversation, tomorrow the White House will host a briefing titled Life After Clemency with advocates, academics, and Administration officials to discuss and share ideas on the President’s clemency initiative and ways to improve paths to reentry. In addition to officials from the White House and the Department of Justice, experts, academics, and commutation recipients will share their expertise and insights on returning to society after years behind bars.  To watch the briefing live, tune in tomorrow, Thursday, March 31, at 2:00 PM EDT at www.whitehouse.gov/live.

March 30, 2016 in Clemency and Pardons, Criminal justice in the Obama Administration, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9)

Tuesday, March 29, 2016

Still more ugly details on the still ugly realities of the federal clemency process

Regular readers are probably tired of hearing me complain regularly about the failure of the Obama Administration to fix the many problems surrounding the modern federal clemency process.  But this new USA Today article, headlined "Former administration pardon attorney suggests broken system in resignation letter: Former Pardon Attorney Deborah Leff said she was unable to talk to the White House about pardons," provides still more grist for my clemency kvetching mill. Here is how the piece starts:

The Obama administration instructed Justice Department attorneys to neglect applications for presidential pardons to give priority to the Justice Department's initiative to release low-level offenders from prison, the former pardon attorney said in her resignation letter early this year. That inaction was one of several issues that former Pardon Attorney Deborah Leff cited in her letter, which was obtained by USA TODAY after making a Freedom of Information Act request. Leff resigned in January after less than two years as the official responsible for making clemency recommendations for the president.

Her resignation letter suggests a broken and bureaucratic process at odds with President Obama's own aim to exercise his pardon power "more aggressively" in the final months of his presidency. Leff wrote that the administration's focus on the clemency initiative at the expense of traditional pardons and commutations "means that the requests of thousands of petitioners seeking justice will lie unheard."

"This is inconsistent with the mission and values to which I have dedicated my life, and inconsistent with what I believe the department should represent," she wrote.

It's the job of the U.S. pardon attorney to investigate all of those cases and make a recommendation to the deputy attorney general, who then forwards it to the White House Counsel's Office and, ultimately, the president. Because the pardon attorney advises the president on sensitive cases, the process is cloaked in secrecy, and officials rarely discuss the process publicly. So Leff's letter offers a rare glimpse into how the pardon office works in the Obama administration. Unlike in previous administrations, where pardon office staffers and the White House had routine conversations, Leff said she was denied "all access to the White House Counsel's Office," which is the last step for a pardon application before being approved or denied by the president.

She said Deputy Attorney General Sally Quillian Yates had overruled her recommendations in an increasing number of cases — and that in those cases, the president was unaware of the difference of opinion. "I believe that prior to making the serious and complex decisions underlying clemency, it is important for the president to have a full set of views," she said.

And she said the Justice Department had not made good on its promise to put the required resources behind the clemency initiative. That initiative, part of a broader push for sentencing reform, was designed to use the president's constitutional pardon power to release federal inmates who would have received shorter sentences had they been sentenced under today's more lenient guidelines. It applies mostly to non-violent drug offenders serving sentences of 10 years or more, with good behavior while in prison.

March 29, 2016 in Clemency and Pardons, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

Tuesday, March 15, 2016

Another disconcerting report about the failings of the Obama clemency initiative and Clemency Project 2014

USA-JUSTICE-CLEMENCYRegular readers know that, ever since Prez Obama and his Aministration started talking up efforts to get serious about using clemency powers, I have been regularly expressing concerns about how structurally peculiar and procedurally belabored the new (and now not-so-new) clemency push has been.  Here are just a few of my prior related posts on this front:

Still more reason for concern has now emerged via this new Reuters article headlined "Obama's prisoner clemency plan faltering as cases pile up." Here are excerpts:

In April 2014, the administration of President Barack Obama announced the most ambitious clemency program in 40 years, inviting thousands of jailed drug offenders and other convicts to seek early release and urging lawyers across the country to take on their cases.

Nearly two years later the program is struggling under a deluge of unprocessed cases, sparking concern within the administration and among justice reform advocates over the fate of what was meant to be legacy-defining achievement for Obama.

More than 8,000 cases out of more than 44,000 federal inmates who applied have yet to make it to the U.S. Department of Justice (DOJ) for review, lawyers involved in the program told Reuters. That is in addition to about 9,000 cases that are still pending at the DOJ, according to the department's own figures.

Only 187 inmates have had their sentences commuted, far below the thousands expected by justice reform advocates and a tiny fraction of the 2.2 million people behind bars in the United States, which has the world's highest incarceration rate....

A senior DOJ official told Reuters it is calling on the lawyers' group -- Clemency Project 2014 -- to simply hand over the outstanding cases without further vetting, saying it is not working fast enough. So far, the group estimates it has handed over around 200 cases.

But criminal justice experts say the administration itself should bear much of the blame. The idea to tap pro-bono attorneys to help vet the cases originated with the DOJ, and critics say it should have prepared its own staff to handle the large volume of applications. “It’s unfair to criticize the volunteer group that you asked to help,” said Rachel Barkow, a criminal law professor at New York University who has studied clemency in U.S. prisons. She estimates that about 1,500 prisoners should be eligible for commutation, saying the 187 granted so far does not "fulfill the promise of the program."...

The delays have left prisoners like Linda Byrnes, 69, in limbo. “I thought clemency was for people like me,” Byrnes told Reuters through an electronic messaging system from a federal prison in Alderson, West Virginia. Byrnes, who has spent 20 years in prison for distributing marijuana and has two years left on her sentence, was recently diagnosed with mouth cancer and has yet to hear whether she has been assigned a lawyer after submitting her application to Clemency Project in August 2014....

Clemency Project 2014 said it does not comment publicly on the individuals it represents. The group vets the applications, writes the petitions and sends them to the Justice Department’s Office of the Pardon Attorney, which oversees all pardons and sentence commutations and makes recommendations for the president's approval.

So far, 25,000 of 34,000 applications received by Clemency Project have been rejected for failing to meet the basic criteria - no record of violence, no significant ties to a gang or drug cartel, good behavior in prison and completion of at least 10 years of sentence. About 10,000 inmates did not go through the Clemency Project and either applied directly to DOJ or through a paid attorney. "It really would be a sad state of affairs if individuals who had asked for a lawyer weren't considered in time because their petitions never reached the pardon attorney's office," a DOJ official told Reuters on the condition of anonymity.

A large number of mostly unqualified applications, a shortage of lawyers and the complexity of the cases have slowed progress, said Cynthia Roseberry, project manager for Clemency Project 2014. "There are a lot of gray areas," said Roseberry, who estimates it takes 30 days for one lawyer to review one case on average. "We've got to unpack each of these applicants to see specifically what factors affect them... and so that takes a little more time."

This includes finding pre-sentencing reports for each case, determining if the person would have received a shorter sentence under current law and reviewing prison behavior records. Roseberry said the group was unaware of any request from the Justice Department to hand over the pending applications. Roseberry said the group's initially slow pace has picked up in recent months....

Roseberry said about 3,000 applicants still need to be assigned to a lawyer, and that it was not certain whether the group will be able to submit all of the applications it has received before Obama leaves office. The group has more than 570 law firms and 30 law schools contributing to the effort.

Some rejected prisoners and those who have yet to hear a decision say they believe they would have had a better chance if they had sent their clemency petition directly to the government.

Josie Ledezma was sentenced to life for conspiracy to transport cocaine and applied for clemency through Clemency Project 2014. She said she did not hear from them for six months and later learned that her assigned lawyer had shut down her legal practice. In January, nearly one year after applying, she was told Clemency Project 2014 could not help her and encouraged her to apply directly. “I wrote back and asked what was it that made me not qualify, but never got a response,” Ledezma told Reuters through an electronic messaging service for federal prisoners.

March 15, 2016 in Clemency and Pardons, Drug Offense Sentencing, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Sunday, March 13, 2016

Anyone dare to predict how many sentence commutations to expect from Prez Obama in coming weeks?

The biggest on-going guessing game involving Prez Obama these days concerns whom he will name to the open Supreme Court seat. But this Washington Post article, headlined "President Obama expected to grant more clemencies to federal prisoners in coming weeks," provide fodder for the distinct guessing game set forth in the title of this post (which may be fun for sentencing fans and is surely nerve-racking for prisoners). Here are excerpts from the article:

President Obama is expected to grant clemency to another group of drug offenders in the coming weeks, part of his ongoing effort to provide relief to inmates in federal prisons who were sentenced to harsh terms in the nation’s war on drugs.

The White House will also be holding an event on March 31 called “Life after Clemency,” that will include former inmates and their attorneys, along with some prison reform advocates. The White House gathering, which is not open to the press, will focus on one of the president’s centerpiece criminal-justice initiatives and will include a discussion on “ways to improve paths to reentry,” according to the invitation. Spokeswomen from the White House and the Department of Justice declined to comment....

In the spring of 2014, former Attorney General Eric H. Holder Jr. — who called mandatory-minimum drug sentences “draconian” — launched an initiative to grant clemency to certain nonviolent drug offenders in federal prison. To qualify, prisoners had to have served at least 10 years of their sentence, and have no significant criminal history and no connection to gangs, cartels or organized crime. They must have demonstrated good conduct in prison. And they also must be inmates who probably would have received a “substantially lower sentence” if convicted of the same offense today.

Since then, Obama has commuted the sentences of 184 federal inmates, including 95 prisoners he granted clemency to in December.  Another 9,115 clemency petitions from prisoners are pending before the Obama administration. It is unclear how many of them are still being reviewed in the U.S. Pardon Attorney’s office or how many are pending in the office of Deputy Attorney General Sally Yates or the White House Counsel’s office because that information is not publicly available.

The Justice Department’s former pardon attorney, Deborah Leff, stepped down in January because she was frustrated by a lack of resources to process clemency petitions and recommend which ones should be sent to the White House. The new pardon attorney, longtime federal prosecutor Bob Zauzmer, said that his goal — whether he gets more needed resources or not — is “to look at every single petition that comes in and make sure an appropriate recommendation is made to the president.”

Responding to my own dare, I will predict that Prez Obama will commute around 90 sentences and do so in the days following his naming of a Supreme Court nominee.  I suspect based on his December grants that Prez Obama is generally disinclined to commute more than 100 sentences at one time.  And I imagine he will get a kick out of doing something like a big clemency grant that might otherwise be controversial but likely will not be (and will probably not get all that much medial attention) in the wake of a SCOTUS nominee.

March 13, 2016 in Clemency and Pardons, Who Sentences? | Permalink | Comments (6)

Sunday, February 28, 2016

"With Marijuana Legal, Why Are People Still Doing Life For Weed?"

Thie question in the title of this post is the headline of this article from The Kind (as well as a question that really does not have a satsfactory answer).  Here are excerpts: 

At least 30 people are currently serving life without parole for non-violent marijuana-related offenses. Save extraordinary events, they will die in prison. Overturning a law does not exonerate the people who were convicted of breaking the law when it was in effect. This means that even if marijuana is legalized tomorrow, those serving time for marijuana-related offenses will not be released.

“Most people don’t believe it,” says Beth Curtis, founder of Life for Pot, an organization that spotlights people who are serving life without parole for non-violent marijuana-only offenses.

One person who is scheduled to remain in jail until they die is Curtis’s brother, John Knock. “Twenty years ago I received a phone call informing me that my youngest brother had been indicted for a marijuana conspiracy in Florida,” Curtis explains on her site. “Our lives have never been the same.”...

 In 2008 she launched LifeForPot.com, which currently features 30 or so inmates with life or de facto life sentences (e.g., someone who is 50 years old and gets 50 years). Most of Curtis’s advocacy takes place offline, primarily through writing and sending information about individuals to congress, congressmen, and various groups that might take up the cause. “Actually a lot of people have,” she says. “Now when you Google ‘life for pot’, lots of stuff comes up. When I first started, it was just my site.”...

Without retroactive legislation, inmates serving life without parole for weed can only be released through clemency, in the form of a pardon or sentence commutation from the president (on the federal level) or from the governor (on the state level). (Group pardons are rare, but not entirely unprecedented.)

Out of the 95 sentence commutations granted by President Barrack Obama in December, two were serving life for marijuana-related crimes: Billy Dekel and Charles Cundiff.

Beth Curtis says she’s been advocating for both of them for years and plans to visit them once they’re out. Another inmate on Curtis’s radar, Larry Duke, was freed last March under a compassionate release program for inmates over 65.  While Curtis was elated by the three inmates’ release, she notes that Obama would need to seriously ramp up the number of commutations to make a meaningful dent in the population.

“These people need clemency to get any relief,” she says. “And for the old guys, it’s kind of important that it happens pretty soon. Their runway is a lot shorter. Not that the younger people shouldn’t be released also, but dying in prison is a particularly horrendous thought.  “Obama said that through clemency there would be thousands released,” Curtis adds. “I hope that that’s true. I hope and pray that that’s true.”   

Cross-posted at Marijuana Law, Policy and Reform

February 28, 2016 in Clemency and Pardons, Drug Offense Sentencing, Pot Prohibition Issues | Permalink | Comments (5)

Wednesday, February 24, 2016

What does (closet libertarian?) GOP front-runner Donald Trump now really think about the drug war and criminal justice reform and Prez clemency?

Based on his personal and professional history, as well as a number of his prior positions on a range of social and economic issues, I have long assumed the essential political views and commitments of Donald Trump to be what might be called "pragmatic libertarianism."  I say that in part because most successful private businessmen in the United States, in addition to being generally pragmatic, tend to have at least some hint of a libertarian streak on at least some issues (e.g., think of the Koch brothers or Peter Lewis).  More to the point, as I have flagged in prior posts here and  on my marijuana reform blog, Donald Trump once embraced the libertarian view that full legalization would be the only way to "win" the drug war.

But, of course, Donald Trump the Presidential candidate has sounded far more authoritarian than libertarian on the campaign trail, especially with respect to domestic issues.  He conveniently says that he has now changed his mind about abortion and thus now is pro-life rather than pro-choice.  He also has expressed in vaious ways disaffinity for marijuana legalization (though his position seems to get more and more nuanced as time goes on, as highlighted in posts here and here from my marijuana reform blog).  Then again, to the extent a single idea summarizes Trump's modern politics, it would seem to be "anti-establishment"; I think it is accurate to describe The Establishment, on both the left and the right, to be quite statist and generally anti-libertarian.  

I say all this not to claim that Donald Trump is the most libertarian candidate still with a serious chance to become President (although this might be true).  Rather, I say it in order to try to figure out whether, when and how the candidate now seemingly most likely to represent the GOP on the national stage for the bulk of 2016 will articulate his latest thinking about federal criminal justice issues ranging from statutory sentencing reform of mandatory minimum sentences for drug offenders to federal responses to state marijuana legalization to the robust use of federal clemency powers.  

Obviously, how the last five or six US presidents have approached these federal criminal justice issues, both politically and practically, has had a huge impact on the nature and reach of our nation's federal and state criminal justice systems.   Before I can even figure out whether I should be terrified by the prospect of a President Trump, I really am eager to hear more about his current thoughts on these important criminal justice fronts.  Critically, not only would Trump's discussion now of these issues help me better understand long-term what would a President Trump might actually do, I think they could have a big short-term impact on the work of the current Congress and the current President (and even the current Supreme Court) in these areas.

With apologies for my (silly?) Prez Trump musings in the wake of his latest "yuge" win in Nevada, I am eager to hear lots of thought from lots on readers on this political and legal front.

February 24, 2016 in Clemency and Pardons, Federal Sentencing Guidelines, Pot Prohibition Issues, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (9)

Monday, February 22, 2016

Highlighting that, despite lots of talk and a little action, Prez Obama remains a clemency grinch

Over at his blog Pardon Power, political scientist PS Ruckman does a terrific job tracking and placing in historical context the latest date concerning the use of presidential clemency powers.  And these three recent posts highlight effectively that, despite lots of talk from the Obama Administration about a big clemency initiative, the current President the most notable story to date concerning Obama's clemency record is how stingy it is:

As long-time readers know, I have been urging Prez Obama to live up to his hope and change rhetoric in this arena since the day he was inaugurated seven year ago, as highlighted by these two posts from January 20, 2009: Inaugural rhetoric about freedom and liberty in prison nation and Is it too early to start demanding President Obama use his clemency power?.  (The extensive comments to the second of these posts are especially interesting to review with the benefit of seven years of political hindsight.)  In addition, way back in 2010, I authored this law review article titled "Turning Hope-and-Change Talk Into Clemency Action for Nonviolent Drug Offenders," which closed with this recommendation:

President Obama 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, my vision and goals here are meant to be fairly basic.  The idea is for President Obama 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.

I have reprinted this suggestion here because, though I made the pitch in print more than half a decade ago, it still strikes me as timely and relevant to the on-going discussions about federal criminal justice reform.  Indeed, given this latest data marshalled by PS Ruckman and the seemingly limited success and limited basis for optimism as of February 2016 surrounding "Clemency Project 2014," I think Prez Obama and the rest of the federal criminal justice reform discussion might benefit now more than ever from the creation of some form of a "Clemency Commission" headed by a "clemency czar."  And, especially with US District Judge John Gleeson now only a few weeks away from stepping off the federal bench, there is an obvious candidate for the ideal first clemency czar.

As regular readers (and my students know), I could go on and on and on about this subject and especially about President Obama's unique missed opportunity to create a criminal justice reform legacy in this historically and constitutionally important arena.  But rather than repeat myself, I will just link to just a few of my prior Obama-era posts while starting to wonder in the wake of recent election results whether President Hillary Clinton or President Donald Trump might have the interest and ability to really bring hope and change to a very sorry modern federal clemency history.

Just a few of many recent and older posts concerning the modern ugly realities of federal clemency:

February 22, 2016 in Clemency and Pardons, Criminal justice in the Obama Administration, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (12)

Wednesday, February 10, 2016

Paul Cassell, the former federal judge who sentenced Weldon Angelos to 55 years, writes directly to Prez Obama to support his clemency petition

As reported in this Washington Post article, headlined "Former federal judge to President Obama: Free the man I sentenced to 55 years in prison," former US District Judge (and now Prof) Paul Cassell has now written directly to the President to urge him to "swiftly commute his sentence." Regular readers likely know a lot about the story of Weldon Angelos, whom I once helped represent as he pursued collateral appeals, and the Post article provides some of the details and context behind his current push for clemency:

Calling the sentence “one of the most troubling that I ever faced in my five years on the federal bench,” Paul G. Cassell, now a professor at the University of Utah’s law school, said the mandatory minimum sentence he was required to impose on Angelos was one of the chief reasons he chose to step down as a judge.

“I write you as the judge who sentenced Weldon Angelos to a 55-year mandatory minimum prison term for non-violent drug offenses,” Cassell wrote to Obama. “It appears to me that Mr. Angelos meets all of the criteria for a commuted sentence.” Cassell was appointed to the bench in 2002 by former President George W. Bush.

In December, Obama granted clemency to 95 drug offenders as part of his continuing effort to give relief to drug offenders who were harshly sentenced in the nation’s war on drugs. But Angelos, who is behind bars at the Federal Correctional Institution at Mendota, was not on the president’s list. The president has commuted the sentences of 184 federal inmates, more individuals than the past five presidents combined. But sentencing reform advocates say that hundreds — and potentially thousands — of inmates who meet the Obama administration’s criteria for clemency, including Angelos, are still behind bars....

Angelos, the son of a Greek immigrant and the 36-year-old father of three, is one of the nation’s most famous nonviolent drug offenders and a symbol of the severe mandatory sentences. His case has been widely championed, including by Utah’s Republican Sen. Mike Lee, former FBI Director Bill Sessions, the group Families Against Mandatory Minimums and conservative billionaire Charles Koch. “Judge Cassell’s letter articulates well the grave injustice involved in Weldon’s prison sentence,” said Mark Holden, general counsel and senior vice president of Koch Industries,” who has urged attention to the Angelos case.

Like many inmates, Angelos has missed being with his children as they grew up. His 18-year-old son, Anthony, was six when he was sent to prison. His son, Jesse, was 4. His 13-year-old daughter, Meranda, was an infant. In an interview, Angelos said he had hoped the president would grant him clemency in time for him to see Anthony graduate from high school in June.

Angelos was sentenced to 55 years without the possibility of parole after he sold marijuana to a police informant three times in 2002, each time charging $350. Prosecutors alleged that Angelos, the founder of Utah hip-hop label Extravagant, was a gang member and a drug dealer. Angelos denied the allegations and declined a plea bargain offered by prosecutors. Angelos never used or pulled a gun, but the informant later testified in court that he saw one in Angelos’s car during the first buy. He said that during the second buy, Angelos was wearing an ankle holster holding a firearm. Officers later searched his home and found a gun.

The sentence Angelos received as a nonviolent first-time offender fell under a law called 924(c). Federal drug laws require 5- to 30-year mandatory minimum sentences for possessing, brandishing or discharging a gun during a drug-trafficking crime. For each subsequent gun conviction, there is a mandatory sentence of 25 years that must be served consecutively. This is often referred to as “gun stacking,” which is why Angelos received 55 years without parole. He received five years for the gun in the car; 25 years for the second gun charge, having one in an ankle strap; and another 25 years for a third firearms charge, the gun police found in his home. He got one day for the marijuana.

In 2004, when Cassell sentenced Angelos, he wrote a lengthy opinion, comparing Angelos’s sentence (738 months) with the guideline sentences for the kingpin of three major drug trafficking rings that caused three deaths (465 months), a three-time aircraft hijacker (405 months), a second-degree murderer of three victims (235 months) and the rapist of three 10-year-olds (188 months).

Related prior posts providing some Angelos case history:

February 10, 2016 in Clemency and Pardons, Drug Offense Sentencing, Examples of "over-punishment", Gun policy and sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

Wednesday, February 03, 2016

DOJ announces appointment of new Acting Pardon Attorney

This DOJ press release reports that the "Justice Department announced today that Robert A. Zauzmer will become the new Acting Pardon Attorney effective immediately."  Here is more about this important new person in an important new DOJ position:

Zauzmer, the Chief of Appeals in the U.S. Attorney’s Office of the Eastern District of Pennsylvania, has been a key player in the department’s implementation of both the 2013 Smart on Crime initiative and the U.S. Sentencing Commission’s retroactive sentence reductions.

“Bob’s long-standing commitment to criminal justice reform and his knack for devising and implementing the department’s sentencing reduction policies made him a natural choice to serve as Pardon Attorney,” said Deputy Attorney General Sally Q. Yates. “Bob also shares my unwavering dedication to the president’s clemency initiative. Given his experience and dedication, I am confident that Bob will hit the ground running.”

“As someone who has been part of the criminal justice system for more than 25 years, I have long been troubled by the imposition of disproportionately lengthy sentences, even as long as life imprisonment, that were imposed on low-level drug offenders on the basis of laws and policies that have since been changed,” said Zauzmer. “I have dedicated much of the past decade to assisting in the efforts to right some of those unfairly long sentences, and it is my profound honor to aid the president in using his clemency power to continue to restore the sense of proportionality and fairness that is at the heart of our justice system.”

As part of his efforts on behalf of the department, Zauzmer has testified multiple times before the U.S. Sentencing Commission on sentencing guideline issues, including the retroactive application of reductions in drug sentences. He also trained federal prosecutors nationwide on how to apply retroactivity in a way that provides relief to all eligible inmates in the most efficient manner possible. From 2012 to 2014, Zauzmer served as a member of the Attorney General’s Advisory Committee (AGAC), working closely with Attorney General Loretta E. Lynch and Deputy Attorney General Yates at a time that they served as chair and vice-chair, respectively, of the AGAC....

In December 2013, President Obama directed the department to prioritize applications for clemency from inmates who were sentenced under outdated policies and would have received a lesser sentence under current policies and laws. Since the clemency initiative was announced in April 2014, the president has granted 187 commutations, more than the last five presidents combined.

UPDATE: This new NPR piece, headlined "New Pardon Chief In Obama Justice Department Inherits A Huge Backlog," has some interesting quotes from the new Acting Pardon Attorney:

Robert Zauzmer, 55, has worked since 1990 at the U.S. attorney's office in the Eastern District of Pennsylvania. Justice Department leaders said Zauzmer represented a "natural choice" for the pardon job, in part because of his experience training prosecutors all over the country in how to evaluate prisoners' requests for early release.  "There were many occasions over the years where I saw these sentences of 20, 30 years, life imprisonment imposed on low-level offenders based on mandatory sentencing laws that troubled me," Zauzmer told NPR in an interview this week.

"Prosecutors are very knowledgeable about these cases and about the laws and about the need to do justice," he added.  "They are passionate about this, and they are dedicated to doing the right thing and correcting any erroneous sentences that need to be corrected, and I am equally passionate about it."

His first task?  Making sure that thousands of prisoner petitions are reviewed and worthy candidates are forwarded to the White House for action before the end of the Obama presidency, whether the applications come from trained lawyers or from inmates themselves.  "We're going to consider every petition," he said.  Zauzmer declined to offer a deadline but said stacks of petitions are "not going to be left on my table."

"I need to make sure that every system is in place that's necessary to review every case and make sure everybody gets a fair shake," Zauzmer said.  "There's a lot to do, but we have an excellent staff there, and I'm going to give it everything I have."...

But in the interview, the new acting pardon attorney cast some doubt on the idea of a mass clemency. "So I don't think we will ever get to a point where we will say, let's just take this basket of people and do mass clemency," Zauzmer said.  "We will look at these cases individually to make sure that we're not creating an undue risk to public safety, and that requires an individual assessment."

And Zauzmer pointed out that he is quite familiar with those case-by-case looks. He said the White House had already shortened the prison terms of six inmates from his district in Pennsylvania, including the case of David Padilla, who had been serving life behind bars.  "He was a classic example of someone who committed crimes, did bad things, admits it, has served almost 20 years in prison and should not be serving a life sentence," he said. "A life sentence does not possibly match the kind of criminal conduct that he was involved in."

February 3, 2016 in Clemency and Pardons, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

Wednesday, January 27, 2016

New York Times editorial highlights "Mr. Obama’s Pardon Problem"

Today's New York Times includes this notable editorial about the Obama Administration's recent clemency efforts and the need to revamp the entire way in which federal clemency has been approached in modern times. Here is how it begins:

The sudden resignation of the federal pardon attorney, Deborah Leff, an Obama appointee, is the latest evidence that until the clemency process is pried from the grip of the Justice Department, it will remain broken.

The pardon attorney’s office, which operates out of the Justice Department, is responsible for reviewing thousands of petitions for pardons and sentence commutations and for making recommendations for clemency to the president. The president’s power to grant mercy in these cases is nearly unlimited, but for most of his time in office, Mr. Obama, like his recent predecessors, has exercised this power only rarely.

Since 2014, Mr. Obama has focused more attention on this issue. To overhaul the notoriously backlogged pardon office, he announced new standards encouraging tens of thousands of federal prisoners to request reductions of their inordinately long drug sentences.  And he hired Ms. Leff to replace Ronald Rodgers, whose incompetent tenure included a finding by the Justice Department’s inspector general that in 2008 he hid information from President George W. Bush in recommending the denial of a clemency petition.

Ms. Leff’s appointment was a promising sign that the dysfunctional pardon process would be repaired.  But her tenure didn’t last long.  On Jan. 15, barely one year after she was formally appointed, she abruptly announced she would step down at the end of this month, saying only that the work of the office should “move ahead expeditiously and expand.”

As she leaves, more than 10,000 clemency petitions are waiting for review. While the pardon office, which has 10 lawyers, has remained virtually the same size it was 20 years ago, the number of petitions has increased almost sevenfold. The department recently announced plans to hire 16 new lawyers, but this would still be far below the number needed to process the backlog.

The lack of resources is only part of a deeper problem, which is that the pardon office is caught in an incurable institutional conflict.  The deputy attorney general has authority to review the pardon attorney’s clemency recommendations, and federal prosecutors generally have little interest in revisiting or undoing the department’s convictions.  As one former pardon attorney put it, the prosecutors are “determinedly and irreconcilably hostile” to clemency.

January 27, 2016 in Clemency and Pardons, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Thursday, January 21, 2016

"Why hasn’t President Obama granted clemency to a single Latina inmate?"

The question in the title of this post is the headline of this recent Fusion commentary authored by Jason Hernandez. Here are excerpts from his commentary:

Last month, President Obama announced a new series of pardons and commutations for federal prisoners, just like he has for the past three years, just before the First Family leaves for their Christmas vacation.  Since he took office, Obama has commuted the sentences of 184 federal prisoners, many of whom were sentenced to life without parole for nonviolent drug crimes....

On December 19, 2013, I was one of the people he chose. At the time, I was serving a life sentence for a nonviolent drug crime.  In total, I spent 17 years behind bars for a crime committed at age 21.  I was the first Latino man to receive clemency from President Obama, and I will be eternally grateful that he gave me a second chance.

But I’m baffled that of the 184 individuals who have received his mercy in the last seven years, not one has been a Latina.  Latinas make up about 17% of the U.S. population and 33% of the women’s federal prison population.  They are three times more likely to go to prison than white women.  And the number of Latinos sent to federal prison nearly quadrupled between 1991 and 2007.  There’s no shortage of worthy Latina candidates for a presidential clemency.

Take, for example, Elisa Castillo, a 56-year-old grandmother who unknowingly smuggled cocaine on tour buses from Mexico to Houston.  Because she had no information to negotiate a plea bargain with, she was indicted for conspiracy, went to trial, and received life without parole.

Then there’s Rita Becerra, who was arrested because of her involvement with her boyfriend’s drug dealing.  Rita cooperated with the prosecution against her boyfriend, but because he cooperated too, he got just nine years and Rita 27 years — she has been in prison over 20 years.  And Josephine Ledezma, who in 1992 was sentenced to life without parole for a nonviolent drug crime: she is now 57 and has been in prison 24 years.

President Obama has urged members of Congress to reform our broken criminal justice system and spoken eloquently about racial disparities in sentencing.  One might want to blame him for failing to help incarcerated Latinas like these women, but the Latino community shoulders the blame as well.  To my great disappointment, Latino groups like the National Council of La Raza or LULAC have not only remained silent about the president’s failure to commute the sentence of a single Latina, but also haven’t done enough to highlight the abuses of the War on Drugs more generally. This is a disgrace.

The War on Drugs should be called the War on Minorities.  Harsh drug sentencing has deeply hurt the black and hispanic communities, especially our children.  Studies show our drug policies have done more harm than good by breaking up families and decimating communities of color.  Brown lives matter, too.

January 21, 2016 in Clemency and Pardons, Drug Offense Sentencing, Offender Characteristics, Race, Class, and Gender, Sentences Reconsidered | Permalink | Comments (4)

Wednesday, January 20, 2016

Disconcerting backstory apparently explains quick departure of DOJ's Pardon Attorney

I had seen news late last week that the Justice Department’s relatively new pardon attorney had announced she was resigning her post, and this new Washington Post article about the departure provides some of the backstory. The piece is headlined "Attorney overseeing clemency initiative leaving in frustration," and here are excerpts:

The Justice Department’s pardon attorney — charged with overseeing the review of clemency petitions from federal inmates — is stepping down at the end of January because she is frustrated by a lack of resources for one of the president’s centerpiece criminal-justice initiatives, according to people close to her.

The departure of Deborah Leff, who has been in her role since 2014, comes as the Obama administration struggles to process a backlog of more than 9,000 pending clemency petitions. As the president approaches the end of his second term, time is running out for his high-profile effort to offer clemency to certain nonviolent federal drug offenders harshly sentenced in the nation’s war on drugs.  

The Justice Department said it is confident that Leff’s departure will not delay the administration’s clemency initiative, and it hopes to find a replacement quickly.  Justice spokeswoman Emily Pierce also said the department is asking Congress to more than double the number of lawyers assigned to the pardon office, from 22 to 46.

Leff could not be reached for comment but released a statement saying that she has known President Obama for more than 20 years and that she thinks “his commitment to reinvigorating the clemency process — and the promise that holds for justice — can change the lives of a great many deserving people.” But Leff added: “It is essential that this groundbreaking effort move ahead expeditiously and expand.”

A former trial lawyer, senior television producer and president of the Public Welfare Foundation, Leff was highly respected by sentencing reform advocates. “She never got the staffing she needed,” said one friend. “She was very frustrated.” Other people close to Leff said that she was passionate about making the clemency initiative work but had been unhappy for quite some time about not having enough resources.

Obama has commuted the sentences of 184 federal inmates. White House Counsel Neil Eg­gleston said in December that Obama has commuted the sentences of more individuals than the past five presidents combined and that the president will grant more commutations and pardons this year. But advocates of sentencing reform are disappointed that the clemency process has not moved more quickly and that more of the thousands who have submitted clemency petitions have not had their sentences commuted....

A senior Justice Department official said that the clemency initiative is of the highest priority for the department and that those involved have been working tirelessly to move petitions along as quickly as they can with a limited budget and legal restrictions....

“To lose the head of the office that’s running the clemency initiative is concerning,” said Kevin Ring, vice president of Families Against Mandatory Minimums. “We hope she is replaced by someone who is as dedicated, smart, passionate and committed as she was to getting these petitions through.”

Pierce said the department has been constrained by law in terms of how many resources and how much of its budget it can devote to the clemency initiative. Pierce said the department has “provided additional funds to the pardon office within the confines of our budget and has detailed dozens of additional full- and part-time attorneys over the course of the clemency initiative.” Despite the constraints, a Justice official said that lawyers are reading each of the thousands of clemency petitions that have been submitted and have prioritized the ones that best meet the new criteria set out by the administration....

Justice officials said that they expect to name a replacement before Leff leaves Jan. 31. “A new pardon attorney will be named in the near future and we expect the work of the pardon attorney’s office to continue apace as we identify and vet potential candidates for the president’s clemency priorities,” Pierce said. “The Justice Department is dedicated to the goals of the clemency initiative and is steadfastly committed to doing all it can to ensure fairness in the criminal-justice system.”

I find this story disconcerting because it seems to me just another manifestation of the problems Prez Obama has himself created by having ignored his clemency powers during his first six years in office and then deciding he should try to make up for lost time on his way out of the Oval Office.  I had (foolishly?) hoped Prez Obama would have been a lot smarter in this important space in the wake of the ugly last-day clemency doings of Prez Clinton back in 2001 and especially with out-going Prez Bush telling in-coming Prez Obama on Inauguration Day 2009 that clemency matters should garner his attention.  But here we are seeing, yet again, that by ignoring these matters until essentially the last minute, Prez Obama's record in this space will be marked by various missteps and frustrations (although I remain hopeful that even his "last-minute" efforts will still result in a notable improvement on the work of many of his recent predecessors in the clemency arena).

January 20, 2016 in Clemency and Pardons, Criminal justice in the Obama Administration, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Thursday, January 07, 2016

Deep dive into notable state-level clemency developments

This notable new Stateline piece, headlined "Move Is on to Make End-of-Year Pardons Less Random," reports on some notable new developments in state clemency practices. I recommend a full read of the piece for clemency fans, and here are excerpts:

Barry Beach in Montana got one.  Gabrielle Cecil in Louisville got one.  And actor Robert Downey Jr. in California got one.  They won the holiday-time clemency lottery and, in the past two months, had their sentences commuted or pardoned.

Beach’s 100-year sentence for murder was shortened to time served, 30 years.  Cecil’s life sentence for killing her abusive partner was forgiven.  And “Iron Man” actor Downey, whose felony drug conviction in the 1990s led to nearly a year in jail, got a pardon for good behavior.  They’re the lucky ones.

Only 15 states, including Arkansas and California, grant frequent and regular pardons, to more than 30 percent of applicants, according to the Collateral Consequences Resource Center, a nonprofit that promotes public discussion of the lasting effects of conviction.  The largest group — 21 states, including Kansas, Kentucky and Tennessee, as well as the District of Columbia —provided few or no pardons in the past 20 years.  Nine states have a regular pardon process but grant clemency to just a small percentage of those who ask for it, and five states — Louisiana, Maine, New Mexico, Ohio and Wisconsin — grant pardons only infrequently, depending on the governor.

But several governors and state legislatures have moved in recent months to make the clemency process easier and pardons more frequent, reflecting a growing consensus that harsh mandatory minimum sentences have left too many Americans behind bars.  “I do see a wave of mercy rolling across the country,” said P.S. Ruckman Jr., who teaches political science and runs a clemency blog, pardonpower.com.  “Over the last 10 years, governors erred on the side of caution, and did nothing” to grant clemency or pardons, Ruckman said.  “Increasingly that mindset is changing.”...

Yet despite the flurry of activity, the use of clemency and pardons by governors to ease long sentences or restore civil rights to people who have served their time remains largely a matter of chance.  Your odds of getting a pardon or having your sentence commuted to, for example, time served, depend completely on what state you’re convicted in and, most importantly, on who the governor is.  “It’s wholly dependent on what the governor wants to do, who the governor is, and how safe, politically, the governor feels,” said former Maryland Gov. Bob Ehrlich, a Republican who granted 228 pardons during his time in office.

Ehrlich now campaigns for regular clemency through a partnership with the law school at Catholic University in Washington, D.C., where students help inmates prepare clemency petitions to governors or the president.  “It’s all subjective factors. They should not play into it, but they do,” Ehrlich said....

In the states, sporadic changes in legislation have begun to streamline the process for getting clemency, and some high-profile governors are starting to address the issue:

  • New York: Democratic Gov. Andrew Cuomo said in October he would create a “clemency project” to identify prisoners who qualify for clemency, and he commuted sentences for two people and pardoned two others. The New York Times called it a "drastic turnaround" in a state whose governors have granted few pardons over the past four decades.
  • Illinois: In November, Republican Gov. Bruce Rauner granted clemency to 10 people while denying 200 other requests. But the governor said he now is working through a backlog of 1,200 petitions from previous administrations.
  • Montana: A new law took effect Oct. 1 that lets the governor grant clemency, even if the state board of pardons and paroles denies it. That allowed Democratic Gov. Steve Bullock to cut the 100-year murder sentence of Barry Beach to time served.

Some states like Arkansas, Connecticut and Delaware have a “culture of clemency,” said Margaret Love, the U.S. pardon attorney under Presidents George H.W. Bush and Bill Clinton. “Some states have a pretty good system, but most rely on the character of the particular governor.”

January 7, 2016 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Monday, January 04, 2016

"Mr. Obama’s Trickle of Mercy"

The title of this post is the headline of this recent New York Times editorial.  Here is an excerpt:

After seven years in office, Mr. Obama has issued a total of 184 commutations and 66 pardons — more grants, as the White House wasted no time in pointing out, than the last six presidents combined. But that’s a pitifully low bar, since Mr. Obama’s most recent predecessors all but abandoned the practice.

Mr. Obama knows this is a far deeper problem than can be solved by a few dozen grants.  There are 9,000 applications for commutations that have not been acted on.  The administration solicited applications like these in 2014 as part of a sweeping clemency initiative aimed at federal inmates who have served at least 10 years of a sentence that would be shorter today because the law has changed.  To be eligible, prisoners must also have been convicted of a low­level, nonviolent offense, have no “significant” criminal history, and have behaved while behind bars.

At the time, the initiative seemed a big step toward reversing some of the gravest injustices of the nation’s decades­long drug war, most obviously for the thousands of inmates still serving time for crack cocaine offenses that are punished far less harshly today.

Less than two years later, however, the vast majority of applications remain in limbo.  A coalition of volunteer defense lawyers working alongside the Justice Department has struggled to get basic information on applicants.  The department itself is hopelessly mired in bureaucratic tangles and institutional conflicts of interest.

By the administration’s own estimates, as many as 10,000 people could be released under the new criteria, former Attorney General Eric Holder Jr. told The Washington Post this month.  So why is Mr. Obama continuing to make grants in the single or double digits?

One reason is the Justice Department; the clear solution is to run the process directly out of the White House.  The president may also be wary of undercutting a package of bipartisan sentencing reforms making its way through Congress.  But that legislation is far from a done deal, and may be on even shakier ground now that one of the leading Republican presidential candidates, Senator Ted Cruz, rejects reforms he previously supported.

Regardless of what Congress does, the presidential power of mercy is explicit in the Constitution, it is virtually unlimited, and presidents once used it far more freely to correct injustices. It is a “tool of public morality,” as one former federal prosecutor put it.  If Mr. Obama truly wants to reinvigorate this moribund process, he has a year left to do it. The job requires only two things: a pen and the political will.  There is no question that Mr. Obama has the pen.

A few recent related posts:

January 4, 2016 in Clemency and Pardons, Drug Offense Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Monday, December 28, 2015

"It’s Time for Obama to Go Big on Pardons"

The title of this post is the headline of this notable recent New Yorker commentary authored by Jeffrey Toobin. Here are excerpts:

The orderly mind of Barack Obama appears to recoil at the vulgar world of pardons.  The President is a consummate rationalist, a believer in systems and order.  Pardons, in contrast, rely exclusively on the whim of the grantor. This Presidential power is descended from the concept known in Great Britain as the royal prerogative of mercy — three words that seem almost guaranteed to offend this President, singularly or especially aligned together.

But President Obama is starting to come around on pardons, or at least on commutations. (A commutation allows a convict to leave prison at a designated date; a pardon can also involve an end to a prison sentence but bestows a broader restoration of rights, like the right to vote or own a firearm.)  Last week, the President announced that he had commuted the sentences of ninety-five federal prisoners and granted two pardons.  In seven years, Obama has now issued a hundred and eighty-four commutations, more than his last six predecessors combined, but only sixty-one pardons, which is far less than most recent Presidents.... Obama is moving in the right direction, but he has a long way to go.  There are roughly two hundred thousand people in federal prison in the United States.  Do they all belong there?  Should only a few dozen have their sentences shortened?

Those questions answer themselves, as Obama himself knows.  He has made the reduction of mass incarceration one of the touchstones of his final years in office. As he said, in a recent speech to the N.A.A.C.P. national convention, “Mass incarceration makes our country worse off, and we need to do something about it.” No one can stop the President from doing at least that.  Since 2011, Obama has been stymied by the Republican Congress from undertaking major legislative initiatives, but the pardon power is absolute and unfettered.  The President can pardon everyone, and anyone, he chooses.

Obama is a democrat as well as a Democrat, and surely something in him rebels at exercising absolute power on a grand scale.  One problem with pardons is that Presidents have considered them in secret, springing the decisions on the public only after they have been made.  In high-profile cases, like Gerald Ford’s pardon of Richard Nixon or Bill Clinton’s pardon of the fugitive financier Marc Rich, the political repercussions have been disastrous. But Obama could avoid this problem with some innovation — and sunshine.  Over the last year of his Presidency, his Administration should publish the names of people being considered for pardons.  In this way, members of the public can make their views known about the wisdom (or lack thereof) of letting each individual out of prison.  All Presidents and governors (who also have pardon power) are haunted by the possibility that they might release someone who goes on to commit horrible crimes. (Former Governor Mike Huckabee of Arkansas pardoned several people who did just that.)

This public airing might well save Obama from making some poor choices, but it will also guarantee him a measure of political protection.  Opponents of pardons will be able to speak now, or they’ll forever have to hold their peace.  If Republicans offer blanket objections to broad pardons, they’ll be demonstrating that they simply want more people in prison, regardless of the costs in dollars, public safety, or lost lives.

Most importantly, this process could allow the President to end or reduce the sentences of many more prisoners than he has done so far.  Obama could make the case for pardons or commutations on an individual-by-individual basis, or he could establish a broader rule — that, say, every nonviolent drug offender with just a single conviction, or possession of a certain quantity of drugs, would be eligible....

Obama should be considering action on this vast scale. When it comes to mass incarceration, he has been content so far to work around the fringes. He has asked Congress to consider reducing sentences for certain crimes.  He has told Attorney General Loretta Lynch to restrict the use of solitary confinement in federal prisons.  These are worthy, modest goals.  But the pardon power, with its roots in the monarchy, allows a President to go big — and that’s exactly how Obama should go.

P.S. Ruckman at Pardon Power is not especially impressed by Toobin's work here, as evidence by this recent posting about this commentary headlined "Toobin: Still the Worst of the Worst."

A few very recent related posts:

December 28, 2015 in Clemency and Pardons, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8)

Thursday, December 24, 2015

Highlighting how Chrismas clemency cheer brings a lump of coal for those left off Prez Obama's list

This Washington Post article, headlined "Obama’s clemency list brings joy to the lucky and anguish to the disappointed," notes the sadness felt by federal prisoners and their families when certain names fail to appear on the latest list of commutations. Here are excerpts from a lengthy piece that gives special attention to the (in)famous case of Weldon Angelos:

The president wants to use his clemency power to undo past injustices, and on Friday, in the largest single-day grant of his presidency, he signed 95 commutations.  They brought joy to families across the country.

“God be the Glory,” said Sharanda Jones, a 48-year-old Texas woman who was sentenced to life in prison without parole for a cocaine offense. She was a first-time, nonviolent offender. “I am overjoyed.”

But for thousands of other prisoners, who may also meet the president’s criteria, their exclusion was a hard blow.  “It was a great day for those who won the lottery and one more disappointment for everyone in the pipeline who should be on the list,” said Amy Povah, a former inmate and the founder of the Can-Do Foundation, a clemency advocacy group.

criminal justice reform advocates of an irrationally severe system.  He was sentenced in 2004 to a mandatory 55 years in prison without the possibility of parole after he was arrested for selling marijuana in three separate transactions with a Salt Lake City police informant, while possessing a firearm.  Angelos never used or pulled out the gun, but the informant testified that he saw a gun when he made the buys, and that triggered a statute referred to as “gun stacking,” which forced the judge to give him a long sentence.

Angelos’s case has been widely championed, including by Families Against Mandatory Minimums and conservative billionaire Charles Koch.  Former U.S. District Court judge Paul G. Cassell, who was appointed by President George W. Bush, has called the sentence he imposed on Angelos “unjust, cruel and even irrational.”  Mark Holden, general counsel and senior vice president of Koch Industries, said the failure to commute Angelos’s sentence Friday was “disappointing and devastating for Weldon and his family.”

“Think of anything in your life that you’ve waited for,” Holden said.  “Everything else pales in comparison to this. ​​ It is unclear why Angelos failed to get clemency.  A Justice Department spokeswoman said that officials do not discuss individual clemency petitions. Another official noted that the department is processing them “as thoroughly and expeditiously as we can.”

Each of the four times that the president has announced his commutations has been difficult for Angelos, but this time cut the deepest.  And it’s not because it came around the holidays. It’s because this group of inmates will be released on April 16.  “If I had been given clemency this time,” Angelos, a father of three, said in an interview at the Federal Correctional Institution at Mendota, “I would have been out for my oldest son’s graduation from high school in June.”

When he came in from the track, Angelos called his sister, Lisa.  She had heard he wasn’t on the list, and she was crying.  While talking to her, he looked up and saw Obama on the prison television set making his official announcement at his end-of-year news conference.  “I felt like someone had punched me in the stomach,” he said.

Similar scenes were playing out in other federal prisons, said Angelos’s lawyer, Mark Osler, a law professor at the University of St. Thomas in Minnesota and a co-founder of New York University’s Clemency Resource Center.  He represents nine clients who are seeking clemency. “I dreaded the phone ringing,” Osler said in a blog post he called “Sunday Reflection:  The sad call”: “I looked at the screen and it said what I feared it would: ‘Unknown,’ which is how calls from prison always come up. I let it ring once, twice, three times before pressing ‘answer.’ . . . And each time I talked to them about what had happened, how I did not know how they picked the lucky ones.  They told me, in heavy voices, what they would miss: a son’s graduation, the last days of a mother in fading health.  And each time I hung up and sat in silence.”

White House Counsel W. Neil Eggleston said last week that Obama, who has granted 184 clemencies, has already commuted the sentences of more individuals than the past five presidents combined.  “We expect that the president will grant more commutations and pardons to deserving individuals in his final year in office,” Eggleston added.

But clemency advocates say that Obama has put himself in a different position than previous presidents. Instead of granting a moment of mercy to an inmate — much like the odds of being struck by lightning — Obama’s Justice Department set out eight specific clemency criteria, including having served at least 10 years, having no significant criminal history prior to conviction and demonstrating good behavior in prison.  And he raised the hopes of thousands who believed they could qualify. “What the president announced was a categorical grant to people who met those eight criteria,” Osler said. “If it’s a categorical grant, we should be seeing consistency.”

I suspect there may well be a cruel irony to the decision not to have (my former pro bono client during his 2255 efforts) Weldon Angelos on the lastest list of commutation: I think Prez Obama and his advisors might reasonably fear that granting clemency to Angelos now could undercut some urgency in Congress to continue pressing forward with statutory sentncing reform. GOP Senator Mike Lee has often mentioned the Angelos case in his advocacy for federal sentencing reform, and the stacking of mandatory minimums that resulted in Angelos' extreme sentence would be fixed in the reform bills that have been slowly moving through Congress.

I suspect Prez Obama is especially eager to see Angelos get relief from a duly enacted law, and I remain hopeful that Angelos will appear on a clemency list before this time next year if Congress in 2016 proves unable to reform the problematic provision that led to Angelos receiving a mandatory 55 years for a few minor marijuana sales. In the meantime, I hope Weldon, his family and all those advocating on his behalf might get a glimmer of comfort from the possibility that Angelos' continued incarceration may actually foster continued congressional reform efforts which would benefit thousands of fellow federal prisoners.

December 24, 2015 in Clemency and Pardons, Offense Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Tuesday, December 22, 2015

"To forgive prisoners is divine — or as close as government gets"

The title of this post is the sub-headline of this notable new commentary published by the American Conservative and authored by Chase Madar under the main headline "The Case for Clemency."  I recommend the lengthy piece in full, and here are excerpts:

President Obama’s recent announcement that he would commute the sentences of 95 federal prisoners and fully pardon two others is welcome news.  So is a holiday press release from New York Governor Andrew Cuomo, who has hitherto been miserly with clemency, but will pardon nonviolent offenses committed by 16 and 17 year olds (who will continue to be automatically tried as adults, a harshness almost unique among the fifty states).  But we should see these gestures for what they are: small trickles of clemency where what is demanded is a rushing, roaring pipeline scaled to the globally unprecedented size of our prison population and incarceration rate. We need industrial-scale clemency.  Here is why and how....

At the federal level — which only accounts for about 12 percent of U.S. prisoners — mild sentencing reform has both bipartisan support and bipartisan resistance in the Senate.  Looking to the states, a much hyped “moment” of criminal-justice reform is more than countervailed by the deeply ingrained punitive habits of governors and legislatures across the land, from Massachusetts, whose liberal governor signed a tough “three strikes” law in 2012, to Louisiana, where Bobby Jindal upped penalties for heroin-related offenses.

Whether we admit it or not, we are in quite a spot: our hyper-incarceration is unprecedented in U.S. history.  Rectifying this will require changes in policing, a cutting back of what we criminalize, and serious revision of our sentences, which far outstrip their deterrent value.  Another part of the solution will have to be clemency on a massive scale: pardons, which all but expunge a criminal record; commutations, which shorten a prison sentence; parole; geriatric and compassionate release; and retroactive sentencing reform.

As of this writing, Obama has issued more commutations than any other president since Lyndon Johnson.  But the supply of imprisoned Americans is orders of magnitude greater than it was in Johnson’s day, and Obama has only granted pardons or commutations at the exceedingly stingy rate of one out of 136, in line with the steep plummet in clemency since World War II. The Department of Justice has promised to routinize clemency, issuing new guidelines for nonviolent offenders who have served 10 years already, but the results so far have been bonsai-scaled in comparison to the magnitude of the federal prison population....

So much for Washington, which despite much misty-eyed self-congratulation has not shown itself up to the task of scaling back our prison state.  Washington’s timidity means less than it first appears however: despite lazy media focus on the federal justice system, the real action is at the state level, which handles most policing, sentencing, and imprisoning.  Alas, here too the general trend has been towards greater stinginess with clemency. 

Take the example of Minnesota, a state that has, by U.S. standards, a low incarceration rate and arguably the most humane penal system in the country, with perhaps more in common with Denmark and Germany than with Texas and Louisiana.  Yet it says something that Mark Dayton, one of the most progressive governors in the country, has a more merciless default setting than virtually all of his executive predecessors from the mid-20th century.  Minnesota used to grant pardons and commutations by the barrelful: from 1940-89, the state granted 741 commutations and nearly 90 percent of all pardon applications.  Minnesota’s clemency process began to tighten in the 1970s, only to be choked off further in the 1980s. From 2000-10, the number of pardons plummeted. In the past quarter-century, Minnesota has not issued a single commutation.

The barriers to mercy are dug deeply into American politics and intellectual culture.  At the same time there is a rich tradition of clemency in this country, which can and should be tapped into.... Devotion to the Rule of Law has an ugly side in resentment of executive acts of mercy, at the level of practice and high theory.... Overall, the thrust of American legalism militates against executive clemency, which seems to many a kind of short circuit, a deus ex machina, an insult to the rule of law, smelling of elitism and monarchical whims....  (And it has to be said, occasionally this image of executive mercy as sleazy end-run around the justice system is correct: think of Bill Clinton granting a full pardon to felonious oil trader Marc Rich, whose ex-wife had been a major Democratic fundraiser.)

But in the face of this hostility to the pardon power there is a great counter-tradition of American clemency.  At the founding of the country, executive power was seen not as a violation of our self-image as a “nation of laws not men” but as a necessary and healthily legitimate part of any popular government. As Hamilton wrote in Federalist 74: “the benign prerogative of pardoning should be as little as possible fettered.”  Without pardon power, “justice would wear a countenance too sanguinary and cruel.”...

U.S. history turns out to be generously littered with acts of mass clemency.  In the 1930s, Mississippi Governor Mike Conner went to Parchman Farm, the state penitentiary, and held impromptu “mercy courts” that freed dozens of African-American prisoners, in an act that entered national folklore — as did Texas Governor Pat Neff’s pardon in 1925 of Huddie “Lead Belly” Ledbetter, who issued his clemency request in song.  In the 20th century, Governors Lee Cruce of Oklahoma, Winthrop Rockefeller of Arkansas, and Toney Anaya of New Mexico all commuted their states’ death rows down to zero upon leaving office.  Among presidents, according to political scientist P.S. Ruckman Jr’s excellent blog Pardon Power, Abraham Lincoln granted clemency every single month of his administration as an act of mercy and a canny political strategy.  Woodrow Wilson, though a teetotaler himself, pardoned hundreds convicted of booze-related infractions to signal his disapproval of Prohibition....

Reversing course on hyper-incarceration and clemency will be a generational project, and an Augean one at that. Judges and prosecutors are not the most self-effacing career group, and many would sooner eat their Civil Procedure books than admit error.... But for most people, clemency in cases of judicial and prosecutorial error is a no brainer: the law’s finality should not come at the expense of justice.   The type of clemency we need today, however, is to remedy a problem several orders of magnitude larger, admitting not legal or judicial error but political or legislative disaster.  A rushing, roaring clemency pipeline would be an explicit recognition that the various state and federal tough-on-crime policies, virtually all of which passed with broad bipartisan support, were dead wrong....

Our incarcerated population is also aging rapidly, and though older prisoners have far lower recidivism rates, few states are availing themselves of geriatric release. For instance, Virginia in 2012 granted geriatric release to less than 1 percent of about 800 prisoners eligible, according to the state parole board. Meanwhile, as the Virginian Pilot reported, “during the same period, 84 inmates died in state prisons.” Running high-security nursing homes is neither compassionate nor fiscally sound—another reason to restore and expand clemency.

What is needed is a restoration of the kind of clemency that was once the everyday norm in this country, expanded to meet the needs of our enormous 21st-century prison population.  There will surely be stentorian howling that industrial-scale clemency is the invasive hand of overweening government power.  These fault-finders ought to be reminded that our incarceration regime is on a scale rarely seen in human history: our only competitors are third-century BC “legalist” China; the late, off-the-rails Roman Empire; and the Soviet Union from 1930-55.  Routinized clemency on a grand scale will be necessary to tame this beast.

To say that mass incarceration is an issue best addressed by the legislature, not by the executive, is theoretically correct.  But procedural rectitude should not be taken to the point of sadism, ignoring the tens of thousands of harshly sentenced prisoners who are already stuck halfway through the penal snake’s digestive tract.  Besides, this would hardly be the first time that elected officials have used the pardon power as a tool to alter policy.  To give one more glorious example, on Christmas Day in 1912, Governor George Donaghey of Arkansas pardoned 360 state prisoners as a condemnation of the state’s brutal and corrupt “convict leasing” system, making national headlines and dealing a death blow to the corrupt practice.

The time is as ripe as it will ever be for industrial-scale clemency . Even with an 11 percent average increase in homicides in big American cities for 2015 so far (bringing the nation back to 2012 murder levels), violent crime is as low as it’s been since the early 1960s....  How we proceed with clemency is not just about how we treat thousands of prisoners..., it is about how we treat ourselves. According to Shakespeare’s most famous courtroom speech, mercy “blesseth him that gives and him that takes: ‘Tis mightiest in the mightiest: it becomes the throned monarch better than his crown.” With an expansion of the pardon power, we have the opportunity to rule ourselves as monarchs, with all the magnanimity and grace that implies. Or we can remain a nation of vindictive jailers that lectures the rest of the world about freedom.

December 22, 2015 in Clemency and Pardons, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Monday, December 21, 2015

Pennsylvania Supreme Court upholds Gov Wolf's execution moratorium

As reported in this local press article, Pennsylvania's "Gov. Wolf acted within his constitutional authority to temporarily halt the execution of a convicted murderer from Philadelphia, the state Supreme Court ruled on Monday."  Here is more from the article about this notable ruling from the top court in the Keystone State:

In a unanimous decision, the high court said Wolf had the power to delay the death sentence for Terrance Williams until a legislative task force issued its final report on the future of capital punishment in Pennsylvania.  The ruling doesn't apply to Wolf's broader moratorium on the death penalty, but represented a victory for the governor in the broader and contentious battle over the future of executions in the commonwealth.

Wolf announced the reprieve for Williams in February, saying he would shelve all executions until after the report was issued.  That decision that was challenged by Philadelphia District Attorney Seth Williams and prosecutors from other counties, who argued, among other things, that the governor's position unlawfully meddled with the jury's decision in the case.

But in a 33-page decision written by Justice Max Baer, the court said, "we disagree with the Commonwealth's suggestion that the reprieve unconstitutionally altered a final judgment of this Court; rather, the execution of the judgment is merely delayed."

The court was careful to say it was not considering whether Wolf's overall moratorium was legal; instead, it said, it was weighing specifically whether the governor could delay the execution of Williams, a former quarterback at Germantown High School who was convicted for the 1984 killing of Amos Norwood, a 56-year-old church volunteer. "Future challenges to reprieves granted by Governor Wolf will have to await independent examination based upon our holdings herein," the court wrote....

Wolf issued a brief statement saying he was pleased by the court's ruling. When he announced the decision earlier this year, he called the death penalty "ineffective, unjust, and expensive."  A report from the task force studying if the death penalty can be legally and effectively administered in Pennsylvania was initially due two years ago. But its deadline has been extended.

Shawn Nolan, Terrance Williams' attorney, said Monday that he had not yet shared the news with his client but was pleased with the decision. "We have been saying all along that it was constitutional what the governor did," he said. "We're gratified that the Supreme Court made a unanimous decision."

Williams' case is also scheduled to go before the U.S. Supreme Court in February. In that appeal, Nolan is arguing that former Pennsylvania Supreme Court Justice Ronald D. Castille should have recused himself from hearing appeal in the case because he was Philadelphia's district attorney when Williams was sentenced to death.

Cameron Kline, spokesman for the Philadelphia District Attorney's Office, said that prosecutors respected the decision even though they had argued for another outcome.

The ruling of the Pennsylvania Supreme Court today in Pennsylvania v. Williams is comprised by  this majority opinion and this concurring opinion.

Prior related posts:

December 21, 2015 in Clemency and Pardons, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (11)

NY Gov Cuomo moves ahead with significant clemency effort for youthful offenders and others

635603709893412683-cuomoAs reported in this official press release, titled "Governor Cuomo Offers Executive Pardons to New Yorkers Convicted of Crimes at Ages 16 and 17," the top elected official in New York today announced a major new clemency initiative.  Here are just some of the details from the press release:

Governor Cuomo announced that he will use his pardon power to alleviate the barrier of a criminal conviction for people convicted of non-violent crimes committed when they were minors, and who have since lived crime-free for 10 or more years. This action, the first of its kind in the nation, advances the principles from his Raise the Age Campaign, which calls upon New York to join 48 other states in recognizing that 16 and 17 year old children do not belong in the adult court system.

The Governor’s action acknowledges that people can and do move beyond the mistakes of their youth, However, their adult criminal records can make it hard for them to find work, get admitted to college, find a place to live, and become licensed in certain occupations. The Governor chooses today to use his Constitutional pardon power to remove the bars created by state law that are associated with these convictions, and allow deserving individuals to move forward with their lives....

By pardoning New Yorkers who have reached this milestone crime-free, the Governor is helping people who present little danger to the public. Moreover, the pardon will be conditional, meaning that if a person defies the odds and is reconvicted, it will be withdrawn.

The Governor’s action will affect a significant number of lives. Of 16 and 17 year olds who committed misdemeanors and non-violent felonies since such records have been tracked by the state, approximately 10,000 have not been reconvicted after at least 10 years. Annually, approximately 350 people convicted as 16 and 17 year olds of misdemeanors and non-violent felonies remain conviction-free after 10 years. In addition to lifting the burden on these individuals themselves, their families will also feel the positive impact of this action. Now a son or daughter, husband or wife, father or mother will be better equipped to help their loved ones as they find it easier to attain employment, go to school, find housing, and work in licensed professions....

Agency staff will make a recommendation to the Governor to grant a pardon if:

The person was 16 or 17 at the time they committed the crime for which they were convicted.

At least 10 years have passed since the person was either convicted of the crime, or released from a period of incarceration for that crime, if applicable.

The person has been conviction-free since that time.

The person was convicted of a misdemeanor or a non-violent felony.

The person was not originally convicted of a sex offense.

The person is currently a New York State resident.

The person has paid taxes on any income.

The person is a productive member of his or her community, meaning that the individual is working, looking for work, in school or legitimately unable to work.

In addition to this general invitation to apply, the Administration will do targeted outreach to candidates for the pardon, starting with the most recent cohort of potentially eligible individuals, those convicted in the year 2004. Administrative staff will review the cohort and will attempt to contact those convicted of qualifying crimes committed while they were 16 or 17 and who have stayed conviction-free. They will be informed of their initial eligibility for a pardon and invited to apply, using the website. Once the 2004 cohort has been contacted, the process will be repeated for individuals convicted in 2003, and further back until outreach has been made to all potential candidates.

The Governor’s action reinforces his commitment to alleviating barriers for people with criminal convictions, exemplified by his creation of the Council of Community Reintegration and Reintegration in 2014, and his acceptance and implementation of 12 recommendations for executive action from that Council in September of this year. These executive actions included adopting new anti-discrimination guidance for New York-financed housing, and adopting “fair chance hiring” for New York State agencies....

With assistance from the National Association of Criminal Defense Lawyers, representatives from the Governor’s Office have developed a comprehensive training program and will begin working with these associations to train volunteer attorneys via webinar in early 2016. Although individuals may apply for clemency without the assistance of an attorney, assistance from a pro bono attorney will enhance the quality of an inmate’s application and present his or her best case to the Governor. The New York County Lawyers Association, New York State Bar Association, New York City Bar Association, the Legal Aid Society, and the New York State Association of Criminal Defense Lawyers will prepare petitions for sentence commutations and the Bronx Defenders will provide post-petition legal services with respect to benefits, housing, and employment, for successful petitioners. The trainings, delivered via webinar with accompanying materials, will walk volunteer attorneys associated with the collaborating legal organizations through each step of being assigned a case, communicating with their client, and preparing a strong petition.

Today Governor Cuomo also granted clemency relief to two individuals who have demonstrated rehabilitation and made positive strides in their lives since their criminal convictions. These individuals were granted clemency relief in the interests of justice and rehabilitation. The clemencies granted today are in addition to the four the Governor granted several weeks ago.

December 21, 2015 in Clemency and Pardons, Offender Characteristics, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Saturday, December 19, 2015

An early set of takes on Prez Obama's clemency work to date

As first reported in this post (with has already generated an interesting set of comments), yesterday Prez Obama granted commutations of prison sentences to 95 federal inmates.  And, as stressed in this posting from the White House blog, this development means that Prez Obama has now granted has now granted 184 commutations total -- more than the last five presidents combined."  I think it is justifiable that the Obama Administration is now inclined to crow about its clemency record with respect to commutations, although it remains notable that Prez Obama has still granted precious few pardons and is still well behind even the commutation pace set by Republican predecessors like Calvin Coolige and Herbert Hoover.

Helpfully, P.S. Ruckman over at Pardon Power is already hard at work providing lots of historical context (and other types of contexts) for assessing what Prez Obama has done in this space only 24 hours since this latest grant.  Here are his recent postings, all of which merit checking out:

December 19, 2015 in Clemency and Pardons, Data on sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (18)

Friday, December 18, 2015

Prez Obama commutes 95 federal prison sentences and grants 2 pardons

As reported in this official White House press release, this afternoon "President Barack Obama granted commutations of sentence to 95 individuals and pardons to two individuals."  The release has a list of all the recipients of these clemency actions and their crimes and sentences, and I am hopeful I will have time (and help) in the days ahead to assess whether there is any unique elements to these latest clemency actions.  For now, I can just say huzzah and reprint part of this notable press release titled "Clemency Project 2014 Welcomes Commutation of 95 Federal Prison Sentences":

In his first clemency grants since July, President Barack Obama commuted the sentences of 95 prisoners today, 27 of whom were applicants whose petitions were supported by Clemency Project 2014.

"While it is my hope that President Obama will increase the use of his clemency power going forward, one can only be happy for each and every of today's grantees and their loved ones." said Cynthia W. Roseberry, project manager for Clemency Project 2014. "Clemency Project 2014's unprecedented army of volunteer lawyers has been steadfast in its efforts to meet the Project's commitment to ensure that every applicant who appears to meet the criteria has a volunteer lawyer to prepare and submit a timely clemency petition. We are determined to do our part to make clemency a cornerstone of the Obama legacy."

"We take President Obama at his word that there is no ceiling on the number of commutations he will grant before leaving office. And so while we are grateful for every single commutation, there are many hundreds more who deserve relief. We urge the President to confound the skeptics by making 2016 an historic year for clemency grants," said Norman L. Reimer, executive director of the National Association of Criminal Defense Lawyers, a partner organization in Clemency Project 2014.

December 18, 2015 in Clemency and Pardons, Sentences Reconsidered, Who Sentences? | Permalink | Comments (24)

Monday, December 14, 2015

Reviewing and reflecting on persistent problems with the federal clemency process

The recent Washington Post article about criminal justice reform efforts during the second term of the Obama Administration (discussed here) hinted that we could expect to see Prez Obama grant a significant number of additional prison commutations in the coming weeks.  But this effective new Marshall Project piece by Bill Keller, headlined "The Bureaucracy of Mercy: Why hasn’t President Obama freed more prisoners? Maybe that’s the wrong question," reviews why federal clemency procedures and practices have been persistently disappointing for those who believe there is a need for much more than sporadic grants of executive mercy. I recommend the lengthy article in full, and here is how it starts and ends:

As the two presidents, one incoming and the other outgoing, shared a limo to the inauguration in January 2009, President Bush had some advice for President-elect Obama: “Announce a pardon policy early on, and stick to it.” Bush had been stunned by a final-days flood of appeals for clemency on behalf of friends and former colleagues convicted of federal crimes.

“I came to see a massive injustice in the system,” Bush recalled in his memoir, “Decision Points.” “If you had connections to the president, you could insert your case into the last-minute frenzy. Otherwise, you had to wait for the Justice Department to conduct a review and make a recommendation.”

As he approaches his own last-minute frenzy, President Obama has embraced criminal justice reform —especially the problem of over-incarceration — as a major cause of his administration.

“Over the course of this year, I’ve been talking to people all across the country about reforming our criminal justice system to be fairer, to be smarter, to be more effective,” he said in a speech in November.

And yet Obama’s clemency record so far — counting commutations and pardons — lags behind every recent president except George H.W. Bush, who had only a single term. On pardons, which give ex-inmates a better chance to get jobs, find housing, vote and generally live normal lives, Obama is the stingiest president since John Adams — 64 granted so far, fewer than three percent of the petitions filed....

But to many advocates of reform, the numbers miss the larger point: after navigating the multi-stage process of CP14, applicants still had to pass through the Department of Justice, where the main job is to lock people up, not let people out.  Between prosecutors and defenders, says David Patton, head of the Federal Defenders of New York, there is “a difference in role and perspective.” Prosecutors, he said, are “less able to see things through the eyes of our clients, or through the eyes of anyone other than the prosecutor.”

“In some sense, by recommending that a sentence be reduced you are taking a position that is, in all likelihood, contrary to what DOJ took at the sentencing proceeding,” he said.

Top officials at the Justice Department publicly discount the idea that the department’s culture is hostile to clemency. “We’re not the Department of Prosecutions,” Deputy Attorney General Sally Yates told The Washington Post in May.

Various clemency advocates have different suggestions for change: an independent commission; restoring a federal parole board, which was abolished in the 1980’s, and having it handle commutations; or plucking the pardon attorney’s office from the Department of Justice and locating it in the White House. What they all have in common is reducing the role of the Justice Department.  “I would want prosecutors to weigh in on every case,” said Rachel Barkow, a New York University law professor and member of the U.S. Sentencing commission. ”But I wouldn’t want them to be a veto point, where they could just make a case go away. And that’s what it is right now.”

Margaret Colgate Love, a clemency lawyer who spent 20 years in the Justice Department and was the department’s pardon attorney from 1990 to 1997, agreed: “It’s hopeless, you can’t reform it in the department.”

But Love argues that the focus on presidential clemency is misplaced. Intended as a remedy for individual cases of injustice, she says, executive clemency should not be a tool to reduce prison populations.

Other vehicles exist for more systemic reform, she notes. The U.S. Sentencing Commission, an independent agency of the judicial branch, has found 46,000 inmates eligible for earlier release by making new sentencing guidelines for certain drug crimes retroactive. A bill inching through Congress would do the same for some 6,500 people locked up during the national panic over crack cocaine.

Love says that when she hears speculation about moving thousands of people through the clemency process she wonders, “How could anybody who had half a brain imagine that clemency could be used to deal with even a thousand cases? It’s never been done.”

Her prescription is to empower the Bureau of Prisons to identify prisoners ready for commutation and take those cases directly to a judge. “Wardens know who ought to be out, and who not,” she said. “Why should we be putting the president in the position of vouching for a whole bunch of people who did pretty serious crimes, many of them, and have been in prison for many years?”

No one expects any of these reforms to be enacted in the year Obama has left. Which will give him something to pass on to his successor at the next inauguration.

December 14, 2015 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

Tuesday, December 08, 2015

Kentucky gov issues hundreds of pardons and a few commutations on way out of office

As reported in this local piece, outgoing Kentucky Governor "Steve Beshear Monday night granted 201 pardons and six commutations to people sentenced for a range of offenses, including 10 women sentenced for violent crimes they committed after suffering years of domestic violence."  Here is more:

Throughout his eight years in office, the Democratic governor said he received more than 3,400 requests for pardons that were reviewed over several months by him and his staff. “I spent many long days weighing the merits and circumstances of individual cases before making my final decisions,” Beshear said in a statement. “The pardon authority afforded me by Section 77 of the Kentucky Constitution isn’t something I take lightly. We are talking about action that impacts the lives of so many individuals.”

Beshear noted that his predecessor, Republican Ernie Fletcher, received more than 1,000 pardon requests and granted just over 100 pardons during his four years in office.

Of the commutations of sentence or full pardons to 10 women who suffered domestic violence, Beshear said, “These 10 women — some of whom are currently incarcerated and some of whom have already been released from institutions — were recommended to me for consideration for full pardons after an extensive joint review by the Department for Public Advocacy and the Kentucky Domestic Violence Association. After further review of those files, I determined that some of the pardon requests should be granted, while others merited a commutation of sentence.”...

Beshear, a former attorney general, also pardoned several individuals convicted of drug offenses. He said their requests “described with candor their mistakes with drugs and highlighted their efforts to stay sober and become productive members of their communities.”

Beshear added: “Throughout my administration, I have worked tirelessly with legislative leaders, local officials and advocates to wipe out the tragic impacts that substance abuse and addiction have had on the people of the commonwealth.

“A significant part of that strategy has been a focus on treatment to help these individuals have a fighting chance at staying clean and turning their lives around. After carefully considering the details of each of these cases, I am convinced that these individuals deserve a second chance at life with a clean record.”

December 8, 2015 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)