Thursday, October 12, 2017

Big new report provides state-by-state guide to expungement and rights restoration

Report-coverAs detailed in this new post over at the Collateral Consequences Resource Center, the folks at CCRC have just published this big new report on state expungement and rights restoration practices under the title "Forgiving and Forgetting in American Justice: A 50-State Guide to Expungement and Restoration of Rights." This CCRC post provides this account of the new report's coverage and goals:

This report catalogues and analyzes the various provisions for relief from the collateral consequences of conviction that are now operating in each state, including judicial record-sealing and certificates of relief, executive pardon, and administrative nondiscrimination statutes. Its goal is to facilitate a national conversation about how those who have a criminal record may best regain their legal rights and social status.

Given the millions of Americans who have a criminal record, and the proliferation of laws and policies excluding them from a wide range of opportunities and benefits, there is a critical need for reliable and accessible relief provisions to maximize the chances that these individuals can live productive and law-abiding lives after completion of their court-imposed sentences. Whatever their form, relief provisions must reckon with the easy availability of criminal records, and the pervasive discrimination that frustrates the rehabilitative goals of the justice system.

It is not the report’s purpose to recommend any specific approach to relief. Rather, our goal is simply to survey the present legal landscape for the benefit of the policy discussions now underway in legislatures across the country. We are mindful of the fact that very little empirical research has been done to measure outcomes of the various schemes described, many of which are still in their infancy. It is therefore hard to say with any degree of certainty which approach works best to reintegrate individuals with a record into their communities. At the same time, we hope that our description of state relief mechanisms will inform the work of lawyers and other advocates currently working to assist affected individuals in dealing with the lingering burdens imposed by an adverse encounter with the justice system.

The title of the report provides a framework for analyzing different types of relief provisions. For most of our history, executive pardon constituted the principal way that persons convicted of a felony could “pay their debt to society” and regain their rights as citizens. This traditional symbol of official forgiveness was considered ineffective by mid-20th century reformers, who sought to shift responsibility for restoration to the courts. The reforms they proposed took two quite different approaches: One authorized judges to limit public access to an individual’s record through expungement or sealing, and the other assigned judges something akin to the executive’s pardoning role, through deferred dispositions and certificates of relief. These two approaches to restoration have existed side by side for more than half a century and have never been fully reconciled.

Today, with a new focus on reentry and rehabilitation, policy-makers are again debating whether it is more effective to forgive a person’s past crimes (through pardon or judicial dispensation) or to forget them (through record-sealing or expungement). Despite technological advances and now-pervasive background-checking practices, many states have continued to endorse the forgetting approach, at least for less serious offenses and records not resulting in conviction. At the same time, national law reform organizations have proposed more transparent judicial forgiving or dispensing mechanisms. While the analytical model of “forgiving v. forgetting” is necessarily imperfect given the wide variety of relief provisions operating in the states, it seems to capture the basic distinction between an approach that would mitigate or avoid the adverse consequences of past crimes, and an approach that would limit access to information about those crimes.

The report organizes relief provisions into six categories: executive pardon, judicial record-closing, deferred adjudication, certificates of relief, fair employment and licensing laws, and restoration of voting rights. The judgments made about the availability of each form of relief, reflected in color-coded maps, are in many cases necessarily subjective, and we have done our best to explain our approach in each case.

More detailed information about different forms of relief is available from the state-by-state summaries that are the heart of the report. Citations to relevant laws and comparisons of the laws of each state are included in the 50-state charts in Appendices A & B. Up-to-date summaries and charts are available from the Restoration of Rights Project, which additionally includes in-depth discussions of the law and policy in its state-by-state “profiles.” This information is updated by the authors on a real-time basis, and we expect to republish this report from time to time when warranted by changes in the law.

October 12, 2017 in Clemency and Pardons, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered | Permalink | Comments (1)

Tuesday, September 12, 2017

Wishing for comparable efforts to contest severity in light of legal attacks on leniency of Arpaio pardon

The title of this post is my reaction to this Politico article headlined "Legal groups move to challenge Trump's Arpaio pardon."  The article reports on just some of the copious efforts to contest Prez Donald Trump's first use of his clemency authority.  Here are the basics:

Two advocacy groups moved on Monday to challenge Donald Trump’s pardon of controversial former Arizona Sheriff Joe Arpaio, alleging that the president's move was unconstitutional because it undermined the power of the federal judiciary.

A public interest law firm, the Roderick and Solange MacArthur Justice Center, sought to file an amicus brief in an Arizona district court, where Arpaio is seeking to vacate a conviction after Trump granted him a pardon last month. The brief was initially turned down by a judge on procedural grounds.  A second group, the Protect Democracy Project, also filed an amicus brief on Monday arguing that the pardon is unconstitutional....

The [MacArthur Justice Center] brief contends that Trump’s pardon of Arpaio violated the Constitution because “it has the purpose and effect of eviscerating the judicial power to enforce constitutional rights.”  The MacArthur Justice Center lawyers argue that, while broad, presidential pardon power can not be used to undermine the judiciary’s ability to enforce the Bill of Rights or the Fourteenth Amendment.  The Arpaio pardon, the lawyers argue, “eviscerates this Court’s enforcement power...by endorsing Arpaio’s refusal to comply with federal court orders.” The brief also takes issue with the breadth of Trump’s pardon, noting that the “text of the pardon is so broad that it purports to allow Arpaio to run for Sheriff again...and escape criminal liability for future contempt.”

Protect Democracy’s lawyers similarly contend that the pardon violates the separation of powers “because it unconstitutionally interferes with the inherent powers of the Judicial Branch.” They also argue that the pardon goes beyond the president’s power — “We are aware of no case in this Court, the Ninth Circuit or the Supreme Court that has upheld a pardon matching the extraordinary circumstances here, where the contempt is used to enforce court orders protecting the rights of private litigants,” the lawyers write — and violates due process.

This extended post by William Jacobson over at Legal insurrection, headlined "DOJ sides with Joe Arpaio, as groups ask Ct to declare Pardon unconstitutional," rightly notes the uphill battle these arguments face and concludes that "it seems highly unlikely that the court would declare that a pardon which on its face is constitutional is not because it involves contempt of court." It also details and links the four briefs sought to be filed against the Apraio pardon:

I full comprehend all the political and legal reasons why the Arpaio pardon bothers folks, and I will never tell thoughtful advocates that they are wasting their time by filing amicus brief even when the law seems against them.  But, as the title of this post indicated, I still rue the reality that partisan politics so readily energizes a bunch of folks spend lots of time and resources attacking one act of remarkable leniency while so many acts of remarkable severity in our criminal justice systems so rarely engenders even a peep from outside advocates.

September 12, 2017 in Celebrity sentencings, Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

Tuesday, September 05, 2017

US Sentencing Commission releases big new analysis of Prez Obama's 2014 Clemency Initiative

I am excited to see that the US Sentencing Commission has this morning released this big new report titled simply "An Analysis of the Implementation of the 2014 Clemency Initiative." I hope to find the time in the coming days to dig into many of the report's particulars; for now, I can just reprint the text of this USSC overview page about the report and add a few comments:

Report Summary

This report analyzes the sentence commutations granted under the 2014 Clemency Initiative.  It provides data concerning the offenders who received a sentence commutation under the initiative and the offenses for which they were incarcerated.  It examines the extent of the sentence reductions resulting from the commutations and the conditions placed on commutations.  It also provides an analysis of the extent to which these offenders appear to have met the announced criteria for the initiative.  Finally, it provides an analysis of the number of offenders incarcerated at the time the initiative was announced who appear to have met the eligibility criteria for the initiative and the number of those offenders who received a sentence commutation.

Key Findings

The key findings of this report are:

  • President Obama made 1,928 grants of clemency during his presidency.  Of them, 1,716 were commutations of sentence, more commutations than any other President has granted.

  • Of the 1,928 grants of clemency that President Obama made, 1,696 were sentence commutations under the 2014 Clemency Initiative.

  • The commutations in sentence granted through the Clemency Initiative resulted in an average sentence reduction of 39.0 percent, or approximately 140 months.

  • Of the 1,696 offenders who received a commuted sentence under the Clemency Initiative, 86 (5.1%) met all the announced Clemency Initiative factors for consideration.

  • On April 24, 2014, there were 1,025 drug trafficking offenders incarcerated in the Federal Bureau of Prisons who appeared to meet all the announced Clemency Initiative factors.  Of them, 54 (5.3%) received clemency from President Obama.

  • By January 19, 2017, there were 2,687 drug trafficking offenders who had been incarcerated in the Federal Bureau of Prisons when the Clemency Initiative was announced and who appeared to meet all the announced Clemency Initiative factors. Of them, 92 (3.4%) received clemency from President Obama.

Back in 2014 when the clemency initiative was announced and certain criteria emphasized (basics here), I had an inkling that the criteria would end up both over-inclusive and under-inclusive. I figured Prez Obama would ultimately not want to grant clemency to everyone who met the criteria announced and also would want to grant clemency to some who did not meet all the criteria. That said, I am still surprised that only 5% of those prisoners who got clemency meet all the criteria and that only about 5% of those prisoners who met all the criteria get clemency. (Based on a quick scan of the USSC report, it seems the vast majority of those who got clemency had some criminal history, which put most of the recipients outside the stated DOJ criteria.)

These additional insights and data points from the USSC report highlight what really seemed to move a clemency applicant toward the front of the line:

A review of the offenders granted clemency under the Initiative shows that at some point the Clemency Initiative was limited to drug trafficking offenders, as all the offenders who received commutations under the Initiative had committed a drug trafficking offense.  This focus was not identified when the Initiative was announced and no formal public announcement was made later that the Initiative had been limited to drug trafficking offenders....

Almost all Clemency Initiative offenders (95.3%) had been convicted of an offense carrying a mandatory minimum penalty.  Most (89.7%) were charged in such a way that the mandatory minimum penalty that applied in the case was ten years or longer.  Indeed, most of the Clemency Initiative offenders (88.2%) received a sentence of 20 years or longer, or life imprisonment.

In the end, then, it appears the 2014 Clemency Initiative turned out to be almost exclusively about identifying and reducing some sentences of some federal drug offenders subject to long mandatory prison terms. Somewhat disappointingly, this USSC report does not appear to speak to whether and how offenders who received clemency were distinct from the general federal prison population in case processing terms. My own rough research suggests that a great disproportion of those who got clemency were subject to extreme mandatory minimums because they opted to put the government to its burden of proof at trial rather than accept a plea deal. Also, if the goal ultimately was to remedy the worst applications of mandatory minimum sentences, it is not surprising that a lot of clemency recipients had some criminal history that would serve to both enhance the applicable mandatory minimum AND make an otherwise lower-level offender not eligible for statutory safety-valve relief from the mandatory term.

September 5, 2017 in Clemency and Pardons, Data on sentencing, Detailed sentencing data, Offender Characteristics, Offense Characteristics, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9)

Sunday, September 03, 2017

Ohio Gov delays multiple executions while denying clemency for double murderer slated to die later this month

As noted and lamented in this recent Fair Punishment Project report, "Prisoners on Ohio’s Execution List Defined by Intellectual Impairment, Mental Illness, Trauma, and Young Age," as of the end of August 2017, Ohio had scheduled 26 executions to take place between now and 2020.  But as of the start of September 2017, thanks to the clemency/reprieve powers of Ohio Gov John Kasich and as detailed here, Ohio has only 18 executions scheduled to take place between now and 2020 with eight others being pushed back to 2021 and 2022.

The delaying of numerous execution was explained in this press release, which also notes that Gov Kasich has (unsurprisingly) denied clemency for a double murderer still scheduled to be executed on September 13:

Gov. John R. Kasich has denied a request for executive clemency from Gary Otte who was convicted in Cuyahoga County for the 1992 robbery and murder of 61 year-old Robert Wasikowski and 45 year-old Sharon Kostura at their respective apartments in Parma, OH.  The Governor’s decision follows the advice of the Ohio Parole Board, who on February 10, 2017, recommended against clemency for Otte by a vote of 11-0.

Additionally, in consultation with the Ohio Department of Rehabilitation and Correction, the governor updated Ohio’s current execution schedule.  After the U.S. Supreme Court rejected claims by Ohio inmates that the state’s protocol was unconstitutional, allowing the execution of Ronald Phillips to proceed in July, the state reviewed the existing schedule to ensure Ohio would meet the goal of conducting court-ordered executions in a humane and professional manner.

Looking over the revised execution schedule, I surmise that the folks at the Ohio Department of Rehabilitation and Correction were not too keen on having to gear up for an execution scheduled nearly every month for the next two years and so they urged Gov Kasich to set a revised schedule that now has an execution taking place only, roughly, every other month through the next five years.

Notably, there are, as detailed here, another 123 persons on Ohio's death row in addition the the 26 with current execution date. That means that even if Ohio were to keep up the pace of six execution per year going forward after 2022, it would take until 2042 to carry out the sentences only of those currently condemned to die. That reality, in turn, lead me to start speculating about who might be governor of Ohio in a quarter century and whether she might be a proponent or opponent of capital punishment.

September 3, 2017 in Clemency and Pardons, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (11)

Wednesday, August 30, 2017

Recent items of note from the Collateral Consequences Resource Center

As regular readers know, I have made a habit of noting here some posts from the Collateral Consequences Resource Center because the topics covered there are so interesting and get so little attention in the mainstream media (or many other places in the blogosphere).  So are some recent posts of note from CCRC:

August 30, 2017 in Clemency and Pardons, Collateral consequences | Permalink | Comments (1)

More context for contemplating Prez Trump's pardon of Joe Arpaio

Yesterday I noticed two interesting pieces providing some context for Prez Trump's decision last week to make his first use of the clemency power a pardon for Joe Arpaio (basics here).  Here are their headlines, links and leads:

From CNN here, "This chart shows why Trump's pardon of Arpaio was so unusual":

It was an atypical pardon from an atypical president.  When President Donald Trump granted his very first pardon to Arizonan former sheriff Joe Arpaio, he bucked process and precedent by circumventing the Department of Justice's unit dedicated to making recommendations on such requests.  But he also bucked decades of precedent for how recent pardons have nearly always been granted: a majority have come in the last year of a president's term, they usually come in groups of a dozen or more and they cancel convictions averaging more than two decades old.

Trump's pardon of Arpaio marks one of the earliest pardons in a president's term and one of the only pardons granted alone, according to a CNN analysis of Department of Justice data ranging back nearly three decades. And we turned that data into a chart that shows how, historically, this pardon sticks out in all three major areas: numbers of years into a president's term, number of pardons issued at once and time since the conviction or sentencing.

From FiveThirtyEight here, "The Arpaio Pardon Has Plenty Of Precedents … That Got Other Presidents In Trouble":

Was President Trump’s pardon of former Sheriff Joe Arpaio, issued on a Friday night as a deadly hurricane barreled toward the Gulf Coast, unprecedented?  Or just unpopular?

Several political allies and foes immediately condemned the move as inappropriate and an insult to the justice system. But most of the criticized characteristics of Arpaio’s pardon have at least some parallels to previous ones. The number of controversial characteristics of the Arpaio pardon, however, is unusual and raises questions about the political fallout that Trump will face. The Arpaio pardon, in other words, does have historical precedents (as Trump said on Monday) — just not good ones.

Recent prior related posts:

August 30, 2017 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (24)

Monday, August 28, 2017

Lots of commentary and criticism in wake of Prez Trump's Arpaio pardon

There has been no shortage of commentary and criticism of Prez Trump's decision on Friday to make his first use of the clemency power a pardon for Joe Arpaio (basics here). Here is a not-quite-random, not-so-systematic sampling of stories and commentaries:

In accord with a lot of the commentary here, I am troubled by how Prez Trump first decided to use his historic clemency powers.  But, as this Guardian piece usefully highlights, many recent presidents have used their clemency authority in ways seemingly motivated unduly by political commitments rather than purely by concerns about justice and mercy.  I want to believe that the current President is capable and eager to have concerns about justice and mercy impact at least some of his future clemency decisions, but his track record on this front and others certainly does not inspire optimism.

August 28, 2017 in Clemency and Pardons, Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (35)

Friday, August 25, 2017

As he had hinted, Prez Trump decides to make his first use of the clemency power a pardon for Joe Arpaio

As reported here by Politico, "President Donald Trump pardoned attorney former Sheriff Joe Arpaio on Friday."  Here is more:

Arpaio had been convicted of federal contempt. The outspoken immigration opponent has long backed Trump. The president teased a pardon during a campaign rally in Phoenix on Tuesday. The White House cited a lifetime of public service in announcing Apraio's pardon.

I cannot yet find any official White House statement about this action, but I will update this post if and when one appears.

A few prior related posts:

UPDATE: This Reuters piece provides more context on the pardon as well as reaction thereto. Commentor Joe helpfully noticed that the official White House statement appears on the ABC News Twitter feed, and as of early Saturday morning I cannot yet find that statement on the White House website.

August 25, 2017 in Clemency and Pardons, Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (24)

"Jeff Sessions Should Be Screaming Bloody Murder About a Potential Joe Arpaio Pardon"

The title of this post is the headline of this interesting Reason commentary authored by Mike Riggs.  Here are excerpts:

President Donald Trump did not pardon former Maricopa County Sheriff Joe Arpaio at his Arizona rally on Tuesday, but CNN reports that the paperwork and accompanying talking points are ready.  Should he pardon Arpaio at some point in the near future, it would be both completely legal and an affront to everything his attorney general supposedly holds dear.

"One of the talking points is that Arpaio served his country for 50 years in the military, the Drug Enforcement Administration and as Arizona's Maricopa County sheriff," CNN's Kaitlan Collins reports, "and that it is not appropriate to send him to prison for 'enforcing the law' and 'working to keep people safe.'"  Arpaio is not facing six months behind bars for "enforcing the law" or "working to keep people safe," any more than drug dealers are sentenced to prison for "making people happy."  Arpaio disregarded a judge's order and was convicted of felony contempt of court.  He did the crime, by his own logic and that of the U.S. Attorney General, and he should now do some time.

But if Trump decides to spare the 85-year-old Arpaio six months of incarceration — we won't know until October if he'll actually serve any time behind bars — he has that power. Yes, it would signal a break with historical precedent, but that's really the only constraint on executive clemency....

If anyone in Trump's orbit should be discouraging him from pardonning Arpaio, it's Sessions.  When Pres. Bill Clinton pardoned financier Marc Rich in the final hours of his presidency, Rich had not even stood trial.  He fled the U.S. in 1983 after being indicted for trading with Iran during the hostage crisis, and spent the rest of his life living comfortably abroad.  During his absence, Rich's family in the U.S. funneled more than a million dollars to the Democratic National Committee, the senatorial campaign of Hillary Clinton, and the Clinton Presidential Library.  When Clinton eventually pardoned him at the behest of Israel's government, the prosecutors who worked to indict Rich were understandably furious, as were many members of Congress.

"From what I've seen, based on the law of bribery in the United States, if a person takes a thing of value for himself or for another person that influences their decision in a matter of their official capacity, then that could be a criminal offense,'' Sen. Jeff Sessions told the New York Times in 2001.  One might think Sessions would feel similarly about the current president rewarding a campaign surrogate with a Get Out of Jail Free card.

Sessions also objected to the clemency initiative, which Obama launched in 2014 and continued through the end of his second term.  This was the most systematic attempt to heal the wounds of a stupid war since President Jimmy Carter pardoned men who evaded the draft for Vietnam.  Sessions, however, declared Obama's efforts to shorten insanely long drug sentences a betrayal of the American justice system.  "To unilaterally determine that a sentence was unjustified simply because the president disagrees with the underlying criminal justice policy is a thumb in the eye of the law enforcement officers, prosecutors, defense attorneys, judges, court and prison personnel who put time and resources into these cases," Sessions said in 2014.

Just a month ago, Sessions said he was committed to holding law-breaking cops accountable.  "Just as I'm committed to defending law enforcement who lawfully have to use deadly force to defend themselves while engaged in their work," he told the National Organization of Black Law Enforcement Executives, "I will also use the power of the office I'm entrusted with to hold any officer responsible who violates the law."

If Arpaio is an exception to Sessions' position on executive clemency and holding criminal cops accountable, I can't wait to hear his explanation.

A few prior related posts:

August 25, 2017 in Clemency and Pardons, Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (11)

Tuesday, August 22, 2017

Missouri Gov halts scheduled execution and appoints Board of Inquiry to investigate innocence claim

As reported in this local article, today just "before Marcellus Williams was to be put to death for the 1998 murder of a former newspaper reporter, Gov. Eric Greitens issued a stay of execution and appointed a board to look into the case." Here is why:

“A sentence of death is the ultimate, permanent punishment,” Greitens said in a statement Tuesday afternoon. “To carry out the death penalty, the people of Missouri must have confidence in the judgment of guilt. In light of new information, I am appointing a Board of Inquiry in this case.”

Williams’ attorneys have been pleading for a stay, arguing that Missouri was on the verge of executing the wrong person. Williams, 48, was sentenced to death in 2001 for killing Felicia Gayle, who had been a reporter with the St. Louis Post-Dispatch. Gayle was stabbed 43 times with a butcher knife in her home. Williams was scheduled to be executed in 2015, but the Missouri Supreme Court stayed his lethal injection, allowing him time to obtain new DNA testing.

DNA testing of the murder weapon, conducted in 2016 and using technology that was not available at the time of the killing, shows Williams is not a match for the male DNA found on the murder weapon.

The Missouri Supreme Court last week turned down his attorneys’ attempt to have the execution stopped. The court did not provide a reason....

Greitens said he would appoint a five-member board that will include retired judges and have the power to subpoena evidence and compel witnesses to testify. The board will look into the case and make a recommendation to the governor as to whether Williams should be executed or have his death sentence commuted....

A spokeswoman for Attorney General Josh Hawley told The Washington Post this week that based on “non-DNA evidence in this case our office is confident in Marcellus Williams’ guilt and plans to move forward.” Among the other evidence cited by Hawley’s office is testimony by Williams’ former cellmate and an ex-girlfriend implicating him in the murder. Some of the victim’s belongings were found in a car Williams drove the day she was killed.

Opponents of the death penalty say Williams’ case should help fuel the push to end the practice in Missouri. “Marcellus Williams’ case is a classic example of the inherent injustice of the death penalty system,” said Zeke Johnson, senior director of programs at Amnesty International USA, “and why it should be altogether abolished.”

Williams was set to face lethal injection at 6 p.m. Tuesday if not for the governor’s order 

Gov. Greitens' full two-page statement is available at this link.

August 22, 2017 in Clemency and Pardons, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (14)

Considering clemency echoes of a possible Arpaio pardon as Prez Trump's first

This new Daily Beast piece, headlined "Donald Trump May Circumvent the Usual Process to Pardon Sheriff Joe Arpaio," provides some notable quotes from notable federal clemency excerpts in reaction to Prez Trump's indication that he is considering a pardon for a high-profile law enforcement official. Here are excerpts:

President Donald Trump has learned about his power to issue pardons.  And in the last week, White House aides have suggested that he use his first one on a controversial choice: Sheriff Joe Arpaio, the schismatic Arizona lawman convicted of contempt of court.

In recent days, speculation has mounted that Trump will follow through on this suggestion at a campaign rally in Phoenix on Tuesday.  Should he do so, it will be a unique moment in modern presidential politics.  Trump will have given the first pardon of his presidency to someone for what appears to be purely political reasons and he will have done so without going through the normal review process.

The possibility has left some clemency advocates feeling a little queasy. “There are literally hundreds of no-name people we’ve never heard of, who will never been in the newspaper, who are not cause célèbres, who have had applications waiting and waiting and waiting,” said P.S. Ruckman, political science professor at Northern Illinois University. “They’re sick to their stomach right now reading about Arpaio getting a potential pardon, that’s breaking their heart.”

Like George W. Bush and Barack Obama before him, Trump has proven stingy with the pardon power granted to the president.  And that’s probably a generous way to put it.  Two hundred days into his presidency, he has yet to pardon anyone.  This isn’t unprecedented. It took Obama more than 600 days to issue a pardon.  He nearly broke the record for fewest pardons, though he granted more clemencies than any other president by shortening the sentences of more than a thousand people....

Ruckman said that most American presidents started pardoning people in their first month in office, and kept pardoning at a regular clip through their administrations.  The drop-off in pardons is a relatively new change.  And while high-profile grants of clemency to political allies get the most press — think Bush’s commutation of Scooter Libby’s sentence or Bill Clinton’s pardon of Democratic mega-donor Marc Rich — the vast majority of people who get pardoned never become household names....

Were Trump to give his first pardon to Arpaio, who endorsed him during the Republican presidential primary, Ruckman argues that it would undercut the populist message from the campaign.  “It would give people the sense that only famous people, cause célèbres, and connected people are going to get pardons from Trump,” Ruckman said.

Sam Morison, an attorney who worked in the Justice Department’s pardon office for more than a decade, predicted Trump will pardon Arpaio when he goes to Arizona, though he added that it would send a terrible message. “He hasn’t even been sentenced yet, he’s just been convicted,” Morison said.  “And he’s not contrite, he doesn’t accept responsibility — quite the opposite. So in that sense, it’s very unusual.  And the only reason he’s getting any traction at all is that he’s a well-known political figure. So it is special pleading of the worst kind.”

Prior related post:

UPDATE: This local report on a speech Tuesday night by Prez Trump provides the latest news on this front via its headline: "Trump didn't pardon Joe Arpaio in Phoenix — but hints that he will."

August 22, 2017 in Celebrity sentencings, Clemency and Pardons, Who Sentences? | Permalink | Comments (3)

Monday, August 21, 2017

NACDL and FAMM launch "State Clemency Project"

Site_logosThis new NACDL press release reports on an exciting new project that provides another example of new and important state-level criminal justice and sentencing work afoot these days.  Here are the details:

The National Association of Criminal Defense Lawyers (NACDL) and Families Against Mandatory Minimums (FAMM), with support from the Foundation for Criminal Justice (FCJ), announce today a major state-focused clemency initiative, the NACDL/FAMM State Clemency Project, a program designed to help to recruit, train, and provide resource support to pro bono attorneys who will assist state prisoners to submit petitions to have their sentences commuted.  Outreach has already begun to several governors' offices across the nation.  And Governor Cuomo of New York has just announced a partnership with the NACDL/FAMM State Clemency Project to develop the necessary processes and procedures to enable volunteer lawyers through the project to help prisoners seeking clemency pursuant to the Governor's initiative. The Project will provide logistical support for the governor's initiative, among other ways, by recruiting and training volunteer lawyers to help prisoners apply for clemency.

"We are committed to provide training and resource support to volunteer lawyers to facilitate a process through which applicants can have access to counsel who can expeditiously submit a petition that makes the case for a second chance," said NACDL Executive Director Norman L. Reimer.  "We want the executive authority to see clearly that many offenders have learned from past mistakes and are ready to safely and productively return home."

"Those individuals who have worked hard to rehabilitate themselves and take responsibility for their mistakes deserve a chance to get out of the penalty box.  Their families, communities, and state will be better off with their release," said FAMM President Kevin Ring.  "We're excited to work with NACDL and Governor Cuomo on this important initiative and we look forward to partnering in other states."

"NACDL is proud to build on its experience as a Clemency Project 2014 founding partner in order to make this state-level clemency project a success," said NACDL President Rick Jones. "As a New York City defense attorney, I am especially pleased that Governor Cuomo is taking the lead in this effort.  Our goal is to provide many hundreds of applicants with qualified counsel who will submit first-rate petitions.  And our hope is that other Governors will launch their own programs, and we pledge to support them. It is long past time to recognize that people can change and that redemption is possible. This program recognizes that fundamental truth."

This project brings NACDL's and FAMM's collective experience as partners of the federal-level Clemency Project 2014 (CP 2014), to state-level clemency efforts. CP 2014, a partnership that also included the American Bar Association, American Civil Liberties Union and the Federal Public and Community Defenders, provided pro bono legal assistance to prisoners seeking to have their sentences commuted under specific criteria set by the White House.

Similarly the NACDL/FAMM State Clemency Project will focus on training lawyers to identify eligible prisoners based on criteria provided participating state executives.  Project staff will work with state agencies to devise the most efficient way to connect applicants to volunteers, provide essential applicant information, and submit well-crafted petitions.  The Project will have a state-based focus that will respond to the criteria for articulated by each governor or state clemency authority, and will rely heavily upon local attorneys, law firms and law clinics.

This link provides the press release from Gov. Cuomo's offices stating "Governor Andrew M. Cuomo today announced a first-in-the-nation partnership between a state and a coalition of legal organizations to expand New York's pro bono clemency program."  And more information about the NACDL/FAMM State Clemency Project with instructions on how to sign up to volunteer can be found here at the project website.  

Kudos to NACDL and FAMM and others involved in this project for building on the wisdom and successes achieved through the federal Clemency Project 2014.  Despite facing an array of challenges, CP14 ended up playing a huge role in helping secure clemency relief for many hundreds of federal prisons.  It would be amazing if this new project can achieve similar successes in a number of states in the months and years ahead.  (For those interested in a review of some recent federal clemency developments, the most recent issue of the Federal Sentencing Reporter has a group of articles curated by Professor Mark Osler looking broadly at Prez Obama's overall clemency initiative.) 

August 21, 2017 in Clemency and Pardons, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Monday, August 14, 2017

More notable talk by Prez Trump about possible use of his pardon authority

As noted in this post from a few weeks ago, Prez Trump earlier this summer got more than a few media members and academic talking about the historic presidential clemency authority when he reportedly starting asking about his whether he could pardon folks potential caught up in the on-going Russia investigation.  Today brings more summer pardon talk from Prez Trump, but with a notably different (though also controversial) target.  This Fox News piece, headlined "Trump 'seriously considering' a pardon for ex-Sheriff Joe Arpaio," provides the details:

President Trump may soon issue a pardon for Joe Arpaio, the colorful former Arizona sheriff who was found guilty two weeks ago of criminal contempt for defying a state judge’s order to stop traffic patrols targeting suspected undocumented immigrants.  In his final years as Maricopa County sheriff, Arpaio had emerged as a leading opponent of illegal immigration.

“I am seriously considering a pardon for Sheriff Arpaio,” the president said Sunday, during a conversation with Fox News at his club in Bedminster, N.J. “He has done a lot in the fight against illegal immigration.  He’s a great American patriot and I hate to see what has happened to him.”  Trump said the pardon could happen in the next few days, should he decide to do so.

Arpaio, 85, was convicted by U.S. District Judge Susan Bolton of misdemeanor contempt of court for willfully disregarding an Arizona judge’s order in 2011 to stop the anti-immigrant traffic patrols. Arpaio had maintained the law enforcement patrols for 17 months thereafter.  The man who built a controversial national reputation as “America’s toughest sheriff” admitted he prolonged his patrols, but insisted he did not intend to break the law because one of his former attorneys did not explain to him the full measure of restrictions contained in the court order.

He is expected to be sentenced on Oct. 5 and could face up to six months in jail.  However, since he is 85 years old and has no prior convictions, some attorneys doubt he will receive any jail time.

Citing his long service as “an outstanding sheriff,” the president said Arpaio is admired by many Arizona citizens who respected his tough-on-crime approach.  Arpaio’s widely publicized tactics included forcing inmates to wear pink underwear and housing them in desert tent camps where temperatures often climbed well past 100 degrees Fahrenheit.  He also controversially brought back chain gains, including a voluntary chain gang for women prisoners.

Civil liberties and prisoner advocates as well as supporters of immigrants’ rights have criticized Arpaio for years, culminating in his prosecution.  He lost his bid for reelection last year. “Is there anyone in local law enforcement who has done more to crack down on illegal immigration than Sheriff Joe?” asked Trump. “He has protected people from crimes and saved lives.  He doesn’t deserve to be treated this way.”

Stopping the flow of undocumented immigrants across the southern U.S. border was a central theme of the president’s campaign. Arpaio endorsed Trump in January 2016. Trump indicated he may move quickly should he decide to issue a presidential pardon. “I might do it right away, maybe early this week. I am seriously thinking about it.”

Trump could decide to await the outcome of an appeal by Arpaio’s lawyers who contend their client’s case should have been decided by a jury, not a judge.  In a statement after the verdict, his attorneys stated, “The judge’s verdict is contrary to what every single witness testified in the case.  Arpaio believes that a jury would have found in his favor, and that it will.”

Reached Monday for reaction to the possible pardon, Arpaio expressed surprise that Trump was aware of his legal predicament. “I am happy he understands the case,” he told Fox News. “I would accept the pardon because I am 100 percent not guilty.”  The former sheriff said he will continue to be a strong supporter of the president regardless of whether he receives a pardon.  But he also voiced concern that a pardon might cause problems for Trump, saying, “I would never ask him for a pardon, especially if it causes heat. I don’t want to do anything that would hurt the president.”

Trump has not granted any pardons so far in his presidency.

While I was putting this post together, I received an email with a link to this ACLU comment on a possible Arpaio pardon.  The comment closes with these notably sharp statements:

ACLU Deputy Legal Director Cecillia Wang had this reaction to media reports that Trump may pardon Arpaio: “President Trump would be literally pardoning Joe Arpaio’s flagrant violation of federal court orders that prohibited the illegal detention of Latinos.  He would undo a conviction secured by his own career attorneys at the Justice Department.  Make no mistake: This would be an official presidential endorsement of racism.”

August 14, 2017 in Celebrity sentencings, Clemency and Pardons, Offender Characteristics, Offense Characteristics, Who Sentences? | Permalink | Comments (8)

Friday, July 21, 2017

Could Prez Trump follow Prez Obama's lead by making notable and significant use of his clemency powers?

The question in the title of this post is my somewhat cheeky effort to put a kind of sentencing spin on the news from the Washington Post that Prez Trump has been "discussing the president’s authority to grant pardons" as part of an effort to limit or undercut special counsel Robert Mueller’s Russia investigation. Here is a bit more:

Trump has asked his advisers about his power to pardon aides, family members and even himself in connection with the probe, according to one of those people. A second person said Trump’s lawyers have been discussing the president’s pardoning powers among themselves.

One adviser said the president has simply expressed a curiosity in understanding the reach of his pardoning authority, as well as the limits of Mueller’s investigation. “This is not in the context of, ‘I can’t wait to pardon myself,’ ” a close adviser said.

Along with a number of other commentators, I have long complained about the failure of modern President's to make robust use of their clemency powers, particularly early in their terms. I have not had exactly these kinds of pardons in mind, but I am still inclined to be grateful whenever a president is giving any attention to his historic clemency powers.

July 21, 2017 in Clemency and Pardons, Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (32)

Thursday, July 06, 2017

Virginia Gov decides claim of delusional disorder does not justify halting scheduled execution of double murderer

As noted in this prior post, tonight's planned execution in Virginia of William Morva has brought renewed attention to the intersection of mental illness and capital punishment. That attention likely played a role in this decision by Virginia Governor Terry McAuliffe to release this statement today explaining his decision not to prevent Morva's execution. Here is how the statement starts and ends:

Over the past several weeks, my staff and I have carefully considered the petition for clemency submitted by William Morva, who was tried, convicted, and sentenced to death for the murder of Montgomery County Deputy Sheriff Corporal Eric Sutphin and hospital security guard Derrick McFarland.  We have also reviewed extensive communications from family members of the victims, law enforcement officials, community leaders, and concerned observers from all over the world.

Consistent with the three previous petitions for commutation of a capital sentence that I have reviewed, I have evaluated Mr. Morva’s submission for evidence that he has been subjected to a miscarriage of justice at any phase of his trial that could have impacted the verdict or his sentence.  After extensive review and deliberation, I do not find sufficient cause in Mr. Morva’s petition or case records to justify overturning the will of the jury that convicted and sentenced him.

There is no question that, in a carefully orchestrated effort to escape custody while awaiting trial for burglary, robbery and firearms charges, Mr. Morva brutally attacked a deputy sheriff, stole his firearm and used it to murder Mr. McFarland, who was unarmed and had his hands raised as he was shot in the face from a distance of two feet.  The next day, Mr. Morva murdered Corporal Sutphin by shooting him in the back of the head.

Mr. Morva’s petition for clemency states that he suffers from a delusional disorder that rendered him unable to understand the consequences of his actions.

That diagnosis is inconsistent with the findings of the three licensed mental health professionals appointed by the trial court, including an expert psychiatrist who is Board-Certified in both Psychiatry and Forensic Psychiatry.  Two of these three experts were called by Mr. Morva’s own legal team.  These experts thoroughly evaluated Mr. Morva and testified to the jury that, while he may have personality disorders, he did not suffer from any condition that would have prevented him from committing these acts consciously and fully understanding their consequences....

I have determined that Mr. Morva was given a fair trial and that the jury heard substantial evidence about his mental health as they prepared to sentence him in accordance with the law of our Commonwealth.  In short, the record before me does not contain sufficient evidence to warrant the extraordinary step of overturning the decision of a lawfully empaneled jury following a properly conducted trial.

I personally oppose the death penalty; however, I took an oath to uphold the laws of this Commonwealth regardless of my personal views of those laws, as long as they are being fairly and justly applied. Thus, after extensive review and deliberation consistent with the process I have applied to previous requests for commutation, I have declined Mr. Morva’s petition. I have and will continue to pray for the families of the victims of these terrible crimes and for all of the people whose lives have been impacted.

UPDATE: This Reuters article suggests that Morva's execution was completed without difficulty Thursday night.

July 6, 2017 in Clemency and Pardons, Death Penalty Reforms, Offender Characteristics, Who Sentences? | Permalink | Comments (11)

Tuesday, June 06, 2017

A timely call for "Reorganizing the Federal Clemency Process"

Paul Larkin, who has written a number of recent notable article on clemency noted here and here, now has this new "Legal Memorandum" at The Heritage Foundation titled ""Reorganizing the Federal Clemency Process."  Here its abstract and "Key Points":

The President relies on the Department of Justice to filter out ineligible applicants and recommend from the remainder which ones should receive clemency, but the department suffers from an actual or apparent conflict of interest.  One proposed remedy would be for Congress to create an independent advisory board like the U.S. Sentencing Commission to review every clemency application and offer the President its recommendations.  A better alternative would be for the President to move the Office of the Pardon Attorney into the Executive Office of the President and use the Vice President as his principal clemency adviser.  The Vice President can offer the President several benefits in the clemency decision- making process that no one else in the government possesses.

Key Points:

Prior related posts:

June 6, 2017 in Clemency and Pardons, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Thursday, April 27, 2017

Does acceptance of a commutation moot a prisoner's collateral legal challenge to a prison sentence he is still serving?

The complicated question in the title of this post is the issue addressed in a complicated set of opinions issued by various members of the en banc Fourth Circuit as the full court dismissed as moot the long-running case of Raymond Surratt in US v. Surratt, No. 14-6851 (4th Cir. April 21, 2017) (available here).  As the latest opinion in Surratt reveals, I was involved in this case as an amicus, but I had largely forgotten that fact given that the Surratt panel opinion, as noted here, was decided nearly two years ago and oral argument before the en banc Fourth Circuit took place more than a year ago. 

I surmise that the en banc Fourth Circuit was deeply divided on the procedural and substantive issues that the complicated Surratt case presented and that a mootness ruling served as a convenient way to dispose of a hard case thanks to the deus ex machina of Prez Obama's grant of clemency to Raymond Surratt.  I am surely biased in this view because I served as an amicus in the case, but also because I think these passages from Judge Wynn's dissent make a pretty solid case against mootness:

Here, there is no dispute that if we vacate Petitioner’s commuted sentence and remand for resentencing, Petitioner will likely face a sentence shorter than that imposed by the commutation. In particular, whereas the President commuted Petitioner’s life sentence to 200 months’ imprisonment, Petitioner’s applicable Guidelines range is 120 to 137 months, less than his time-served.  Accordingly, Petitioner has a continuing “concrete interest” — namely, his liberty — in having us vacate his current sentence and remand for resentencing under the applicable Guidelines.  We and other courts have found arguably substantially less significant interests adequate to preclude mootness. See, e.g., Townes v. Jarvis, 577 F.3d 543, 547 (4th Cir. 2009) (holding that the petitioner’s release from prison did not moot his collateral challenge to his sentence because a favorable appellate decision could “affect the length of his parole”); Richards v. United States, 212 F.2d 453, 454 (D.C. Cir. 1954) (holding that defendant’s collateral challenge to the lower end of his sentencing range was not moot, even though defendant had already served more than that lower end, because “there is some possibility” that having a longer minimum sentence “may in some indirect way affect him adversely in the future”).

I am not alone in my view that an injustice continues by declaring this matter now moot. Indeed, the Seventh Circuit, the only circuit that appears to have squarely addressed the issue, refused to find mootness in analogous circumstances, holding that a petitioner may collaterally challenge his original sentence, notwithstanding that the challenged sentence was commuted during the course of litigating that collateral challenge, when the commuted sentence exceeds the mandatory minimum the petitioner would face if he prevailed on his collateral challenge.  See Simpson v. Battaglia, 458 F.3d 585, 595 (7th Cir. 2006); Madej v. Briley, 371 F.3d 898, 899 (7th Cir. 2004).  In Simpson, for example, after the petitioner filed a habeas petition challenging his death sentence, the Governor of Illinois commuted the petitioner’s sentence from death to life imprisonment without parole. 458 F.3d at 595.  Like the government does here, the State argued that the commutation rendered the petitioner’s collateral challenge to his sentence nonjusticiable, and therefore moot, because of the petitioner’s decreased sentence and “the executive nature of his confinement.” Id.  The Seventh Circuit rejected both arguments, explaining that because the petitioner would face a mandatory minimum of 20 years’ imprisonment if he prevailed on his collateral attack, as opposed to the life sentence imposed by the Governor, “it [wa]s possible for [the petitioner] to obtain relief, and his sentencing claims [we]re not moot.” Id. Put differently, “[a] full remedy for the constitutional shortcoming at the original sentencing hearing entails allowing [the petitioner] to seek that lower sentence now.” Id. (second alteration in original) (quoting Madej, 371 F.3d at 899).

I presume Raymond Surratt could opt to seek Supreme Court review of the Fourth Circuit's decision that his collateral challenge to his old/new sentence is moot. But, ironically, the Fourth Circuit's mootness claim may arguably get stronger in the very process of cert review, at least functionally if not legally, because Surratt likely will have finished serving his 200 months in federal prison by the time the Supreme Court could get around to taking up and hearing Surratt's challenge to the Fourth Circuit's mootness conclusion.

April 27, 2017 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (13)

Thursday, April 20, 2017

Virginia Gov commutes death sentence of defendant who has claimed innocence in murder-for-hire crime

As reported in this new Washington Post piece, "Virginia Gov. Terry McAuliffe (D) has commuted the death sentence of Ivan Teleguz, a 38-year-old man who was set to be executed Tuesday in the murder-for-hire of his former girlfriend." Here is more:

Teleguz has maintained his innocence in the 2001 slaying of 20-year-old Stephanie Yvonne Sipe in Harrisonburg.  His lawyers have argued that two key witnesses have recanted their testimony, calling his guilt into question.  Multiple courts have deemed those recantations unreliable, and the man who killed Sipe has never wavered in saying that Teleguz paid him to commit the murder.

McAuliffe said Thursday that while he believes Teleguz is guilty, the sentencing phase of his trial was “terribly flawed and unfair.”  Teleguz will now serve life in prison without a chance of parole.

In their clemency petition, attorneys for Teleguz stressed that jurors were falsely told that Teleguz also was involved in a Pennsylvania murder — but that purported killing never occurred. Prosecutors pointed to testimony of that supposed crime as evidence that Teleguz “solves problems” with murder.  “The jury acted on false information,” McAuliffe said.

In making his decision, McAuliffe said he reviewed over 6,000 pages of documents, including letters from Sipe’s family.  He called her relatives before his news conference Thursday afternoon.  “My heart aches for the family of Stephanie Sipe,” he said, “but the Virginia Constitution and our sacred values of due process under law require me to act.”

McAuliffe personally opposes the death penalty, citing his Catholic faith. But this marks the first time he has commuted a death sentence.  As governor, he has presided over three executions, and at the behest of correctional officials he has pushed for more secrecy in the lethal injection process....

Teleguz’s plea for a commutation attracted high-profile support, including from billionaire Richard Branson and former Maryland governor Robert L. Ehrlich, Jr.

Investigators and Sipe’s family, however, are confident of Teleguz’s guilt.  “There's no doubt in my mind that he hired these people to kill my sister,” Sipe's sister, Jennifer Tilley, told the Harrisonburg television station WHSV last week.  “And it blows my mind, it really does, that he is still trying to fight and plead for his life.”...

The last time a Virginia governor commuted a death sentence was in 2008, when then-Gov. Timothy M. Kaine (D) stopped the execution of triple murderer Percy L. Walton. Kaine commuted Walton’s sentence to life in prison without parole, saying that Walton was mentally incompetent and that putting him to death would be unconstitutional.

Prior related post:

April 20, 2017 in Clemency and Pardons, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5)

Thursday, April 13, 2017

"Three Reasons Why Virginia May Execute an Innocent Man"

The title of this post is the headline of this notable new commentary authored by LawProf Cara Drinan.  Here are excerpts:

In 2006, a jury convicted Ivan Teleguz of hiring someone to kill Stephanie Sipe, his ex-girlfriend and the mother of his child. Now, more than a decade later, Virginia is scheduled to execute Teleguz on April 25, 2017, and there is substantial evidence suggesting that Teleguz is innocent.

How is that possible in the United States – the land of the free, where a poor person is entitled to legal counsel and a criminal defendant has numerous chances to be heard in court? Actually, it happens with some ease, and in part, it happens because of conscious choices we have made about our legal system. There are at least three reasons for this counter-intuitive reality.

1. Prosecutors, Not Judges or Juries, Resolve Most Criminal Cases in America ...

Teleguz’s case demonstrates this phenomenon well. There was no physical evidence connecting him to the murder of Ms. Sipe; the prosecution’s case was based on the testimony of three witnesses. Since his trial, two of those witnesses have recanted their testimony and have admitted that they lied when they implicated Teleguz in exchange for favorable treatment from the government. The Commonwealth repeatedly told the third witness, Ms. Sipe’s actual killer, that he would face the death penalty unless he “cooperated” with them by agreeing to testify against Teleguz in Ms. Sipe’s murder and sticking to that story. Not surprisingly, he did just that and he is serving out a life sentence while Teleguz faces imminent death.

2. The Myth of the Right to Counsel ...

Teleguz suffered at the hands of a broken system. Counsel in death penalty cases are held to a heightened standard of performance, and as part of that standard, they are expected to conduct extensive, careful investigation to prepare for the sentencing phase of the trial. Teleguz’s trial counsel was far from diligent, and as a result, the jury heard evidence that Teleguz was involved in another arranged murder. This evidence persuaded the jury to vote for the death penalty. Here’s the wrinkle: not only was Teleguz not involved in such a crime, the crime never happened. Years after his trial, that fact came to light, and the government has now acknowledged that the alleged prior murder did not happen. But the jury verdict stands.

3. Not So Appealing Appeals Process ...

Surely, the multi-layered appellate process would ferret out an error of this magnitude and provide a remedy? Not necessarily. In 1996, Congress passed the Antiterrorism and Effective Death Penalty Act (“AEDPA”) and in the process “gutted the federal writ of habeas corpus, which a federal court can use to order the release of someone wrongly imprisoned.” Today, the American appellate process is an intricate web of procedural rules, and, in fact, "we have purposefully designed our system of appellate review to examine almost everything but factual guilt or innocence."

That might be defensible if we could be confident in the accuracy of our criminal justice system, but we can’t be. Since 1989, there have been more than 2,000 exonerations in the United States.  In 2015 alone, 58 people were exonerated of homicide convictions. Like many of those individuals, Teleguz has consistently maintained his innocence. Today there is new evidence to support that claim that no court has fully examined.

In the next few days, Governor Terry McAuliffe can’t do much about prosecutorial overreach, problems with indigent defense, and the complex appellate process.  But he can recognize that, because of these systemic failures, there is substantial doubt about Teleguz’s guilt. Governor McAuliffe should grant clemency and stop Teleguz’s execution.

This recent AP article, headlined "Conservatives urge Virginia governor to spare inmate's life," highlights that it is not only a law professor urging Gov McAuliffe to act in this capital case.

UPDATE: A commentor has usefully noted that the Fourth Circuit opinion in this case, which is available here, provides a different perspective on this case and Teleguz's claims of innocence.

April 13, 2017 in Clemency and Pardons, Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (21)

Thursday, April 06, 2017

Arkansas Parole Board recommends clemency for one of eight condemned scheduled for execution later this month

As reported in this AP piece, the "Arkansas Parole Board on Wednesday recommended that Gov. Asa Hutchinson alter the state's unprecedented execution schedule and grant mercy to a death row inmate who directed the torture and murder of a teenager more than two decades ago." Here is more:

Jason McGehee, 40, is one of eight inmates scheduled to die in four double executions this month. Hutchinson, who is not bound by the board's finding that McGehee should have his sentence cut to life without parole, can intervene at any time before the execution begins on April 27. The Republican governor not said when he will make a decision.

Until Wednesday, the state Parole Board had rejected every death row clemency request presented to it since 1990.

With a key lethal injection drug expiring at the end of the month, the Arkansas Department of Correction hopes to execute eight men in a 10-day period beginning April 17. Only Texas has executed that many inmates in a month, doing it twice in 1997. Seven executions in a month would still be a record for Arkansas.

Prosecutors say McGehee, who had just turned 20, directed the fatal assault of Johnny Melbourne Jr., a 15-year-old who had told police about a northern Arkansas theft ring. In voting 6-1 in favor of McGehee's clemency request, the Parole Board considered letters and testimony from the judge from McGehee's trial, a former Correction Department chief, members of McGehee's family and the victim's father.

"The death of John Melbourne, Jr. was the tragic result of a group-dynamic gone wrong," retired Circuit Judge Robert McCorkindale wrote, according to documents released by the state Parole Board. McGehee was one of several people who participated in the attack, but was the only defendant sentenced to death, and the retired judge called it "an excessive punishment."

Former Department of Correction Director Ray Hobbs told the panel at a 40-minute hearing Friday that McGehee had become a model prisoner. "He still has value that can be given to others if his life is spared," Hobbs said.

Linda Christensen, the inmate's aunt, said in an affidavit filed with the board that McGehee suffered psychological abuse as a teenager, such as when his stepfather killed the boy's dog after the dog fought with another dog for food. The stepfather "got up and kicked Dusty in the side with his cowboy boots as hard as he could," Christensen wrote. "He lay and suffered and the kids had to watch him die slowly. ... Jason was never the same after that."

Melbourne's father had asked the board to reject McGehee's clemency request. "John didn't have this. Even though he was begging for his life and was hurting. He didn't have this and he begged for his life too. He didn't have y'all," the elder Melbourne said.

Board Chairman John Felts voted against clemency. He said McGehee's death sentence wasn't excessive considering the inmate had orchestrated the Aug. 19, 1996, attack. The boy was beaten and tortured at a house in Harrison, then bound and driven to an abandoned farmhouse outside Omaha, a town in northern Arkansas. He was later strangled while his hands were tied with an electrical cord.

April 6, 2017 in Clemency and Pardons, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8)

Sunday, February 19, 2017

Front-line advocate's response to interview with former White House Counsel Neil Eggleston about Prez Obama clemency efforts

Regular readers know I am always eager to provide a forum for responses and respectful criticisms of sentencing-related activities and comments by public officials.  In that vein, I am pleased to provide here the sharp commentary sent my way by Beth Curtis, a prisoner advocate who runs the website Life for Pot.  Beth sent an extended commentary my way under the heading "Responding to: The Man Who Ran Obama’s Clemency Machine"; she was inspired to write by the recent Marshall Project interview with former White House Counsel Neil Eggleston about Prez Obama's clemency efforts (noted here).   

Beth's full commentary is available for download below, and here is a snippet to highlight why the full piece is worthy of time and attention:

For the first five years of Obama’s presidency the federal prison population grew by 13,000 incarcerated people. In 2013, the population was 214,149, the highest incarceration rate in history.

Criminal justice organizations, prisoner advocacy groups, criminal defense attorneys, law school clinics, prisoner’s families and various other lobbying groups started the drum beat for sentencing reform and an initiative of Presidential Clemency. Finally in 2013 Eric Holder announced that there would be a clemency initiative that could mean 10,000 or more acts of mercy for incarcerated people who would not be a threat if they were released.

Those of us with incarcerated loved ones who had sentences that would assure that they would die behind bars now had a reason for hope. We felt an overwhelming sense of gratitude to the President and all who were involved in the decision and the process that would lead to our loved ones freedom. We could hope to have our family member in our daily lives again. The hope was an ache, but we knew this President had compassion. It was not to be.

The lack of commitment became apparent almost immediately. I have the web site Life for Pot and the nonviolent marijuana offenders that I advocate for waited patiently for their evaluation by cp-14. Surprisingly some were rejected, and others accepted to the project and were told they would be assigned an attorney. Those fortunate inmates who were assigned an attorney would sometimes just receive a notification that they were represented and hear nothing more. We urged them to submit their own and wait.

This is not just a passing interest for me. I have a 69 year old brother, John Knock, who has two life sentences for a nonviolent marijuana conspiracy. He has been incarcerated for 20 years and never had an infraction. His prison resume is impeccable. He is a first time offender. On January 18, his clemency petition was denied by President Obama.

These are the numbers that tell you about the mercy and compassion of the Clemency Initiative. The promise was 10,000 or more. 1,715 Commutations granted – we could only find 39 for nonviolent marijuana only offenders. The rest were denied or left pending.

Over 18,000 petitions for commutation were denied. Over 4,000 petitions for commutation we closed without action. Over 8,000 petitions for commutation were left pending in the Pardon Attorney’s office for the next administration.

I must reject Mr. Eggleston’s assertion that he had better information and insight than the attorneys, advocates, or families about who was a good candidate for release. He asserts that he and President Obama looked over all the applicants and rejected all but 1,715.

Apparently Mr. Eggleston and President Obama based their denials on secret information. That implies that all the nonviolent marijuana offenders that I know who were denied should remain in prison till they die because Mr. Eggleston and President Obama have special information unknown to anyone else? What are the secrets that gave them confidence to make this Sophie’s Choice? They missed the point of Clemency. It is not a legal process but a Constitutional Power given to the President to be compassionate and merciful. In this endeavor they failed miserably.

These assertions made by Mr. Eggleston have tainted the character and behavior of all they left behind. I can only believe this was done in order to in order to burnish the administrations legacy of compassion at the expense of those they left behind without hope.

There is one secret that most of us know that the White House and the Pardon Attorney did not address. That secret is that most nonviolent offenders who receive sentences of life without parole were charged with conspiracy and went to trial. A conspiracy charge does not require definitive evidence, but only the testimony of those testifying for a plea or for part of the forfeiture. If you exercise your sixth amendment right to trial you receive the trial penalty. This charge allows the Prosecutor to tell the story.

In the spring of 2016 at a White House Briefing, it was obvious to many of us that the promise of clemency was waning and The Administration was pivoting to reentry as the major emphasis for time and money.

The White House would not pay attention to any effort to expedite the clemency project by granting clemency to categories of inmates. Many individuals and groups implored them to take this approach so that they would not fail the thousands who placed their trust in their concept of mercy. The White House and Justice Department did not seem to even understand the concept as it had been used in the past. Heals were dug in, and fates were sealed.

Download FEBRUARY 2017 CLEMENCY FAILURE

UPDATE:  For those unable to get download to work (which may be my fault, as I am working from the road), here is a link to Beth's site with her full commentary.

Prior related post:

February 19, 2017 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Wednesday, February 15, 2017

Interesting Q&A about Prez Obama's clemency efforts with former White House counsel Neil Eggleston

DownloadThe Marshall Project has this notable new piece that reviews Prez Obama's clemency work via an interview with former White House counsel Neil Eggleston. The piece is headlined "The Man Who Ran Obama's Clemency Machine: 'He felt strongly that this was a gift, and the gift had to be earned.'" Here are excerpts:

From one angle, former President Barack Obama was the most merciful president in U.S. history, granting commutations to more than 1,700 federal prisoners.... But his final tally was also far below earlier expectations, given that former Attorney General Eric Holder once speculated that the final number of clemency grants could reach 10,000 — one of every 19 federal prisoners. Obama also received more petitions for clemency than any recent president.

Blame has been passed around, much of it centering on the bureaucracy that emerged to handle the deluge of potential cases, as well as the role federal prosecutors played in the process. In the end, attorneys who felt they had submitted strong cases to the president often wondered why they lost. “In granting so many fewer petitions than originally projected, the administration may have done more to exacerbate the arbitrariness of the sentencing regime writ large than to remedy it,” one of those attorneys, Sean Nuttall, wrote recently at The Marshall Project.

One key figure in the process was Neil Eggleston, who served as White House counsel from April 2014 through the end of Obama’s term. We asked him to discuss the process from the inside....

How closely did President Obama look at each of the applications for clemency he received? And what did you learn about him based on how he handled them?

I would give him memos on the cases, and he would spend a long time on each one. For a significant number, he was fine with my recommendation. For others, he would say: “Why are you recommending this person to me? Look at his conduct in prison, look at his prior convictions. I’m uncomfortable that this guy is going to take advantage of a second chance.”

Or the alternative: There were times when the deputy attorney general may have recommended in favor of a commutation, and I recommended against it, and [Obama] would call me in and ask: “Why don’t you agree with this one?” Or he’d say: “Look there’s this prior conviction, I’m troubled by it, can you get me more information?”

He was really into the details. There were two parts to the way he thought. The first was he just thought a lot of these sentences from the 90’s and 2000’s were excessive. But he also felt very strongly about the idea of rehabilitation and second chances. It wasn’t enough that the person had just gotten too lengthy a sentence. He also wanted make sure these were people who would benefit from a second chance. So if someone didn’t do any programming, got into fights, had a lot of infractions, etc., I think the president was concerned they would be unlikely to do anything but go back to their life of crime when they got out. He felt strongly that this was a gift, and the gift had to be earned.

One common criticism of the process was that there were arbitrary outcomes, that two people with similar cases could be granted and denied clemency.

I think the thing the outside commentators didn’t really understand was that I had more information about these people than others did, including, frankly, their lawyers. I had records of how they performed in prison, and information about their prior crimes. And when people say there was arbitrariness it’s because they didn’t know factors that I knew. All 1,700 went through me and the small group of lawyers underneath me. And ultimately I didn’t want people in jail thinking to themselves, “How can this be?” So is there some arbitrariness? Humans making decisions will not always be perfect. But I reject the notion that there was arbitrariness....

Were you afraid that a single heinous crime by one of these released men or women would derail the whole program?

We never mentioned the words “Willie Horton.” But the answer is yes — very much so. The president wanted to make sure these were people who would take advantage of their second chances, but part of that was making sure they wouldn’t go back to jail. In the letter the president sent to released prisoners, he wrote to them that their choices “will also influence...the possibility that others in your circumstances get their own second chance in the future.” He was saying: “If you mess up, I may not be able to give clemency to other people.” It’s pretty explicit....

One criticism was that it was strange to have prosecutors — from the same department who got these sentences in the first place — weigh in on clemency decisions. Did you think about this?

I think that criticism was completely misguided and based on some sort of theoretical, potential problem. The fact is that Deputy Attorney General Sally Yates, a 27-year Department of Justice prosecutor out of Atlanta, was a very strong supporter of this initiative. Loretta Lynch, too. The people who criticized their involvement did so on a theoretical conflict — not an actual conflict. It’s just not true.

That suggests the Department of Justice under incoming Attorney General Jeff Sessions could rapidly go in another direction and oppose the use of clemency.

I know Sessions publicly opposed our initiative. I hope that I’m wrong, but I worry that given his comments, this will not be pursued by the new administration. It’s going to require them to decide this is something they want to continue. I hope they do.

February 15, 2017 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (16)

Sunday, February 12, 2017

Looking at Ohio Gov Kasich's clemency record and those of his predecessors

This local article, headlined "Kasich stays conservative with pardons," discusses how my Governor has recently used his clemency powers. Here are the details:

Gov. John Kasich used his executive clemency power a little more in 2016 than in previous years, but remains the most conservative governor in 30 years in granting commutations, pardons and reprieves for criminal sentences.

Kasich, a Republican now in his seventh year as governor, approved 18 of 526 requests for clemency last year, slightly more than 3 percent. He approved just two of 244 requests in 2014. The 18 cases approved last year included one in which the Florida man seeking clemency for a 41-year-old Ohio crime died after filing the application; Kasich approved the pardon posthumously.

Statistics obtained by The Dispatch from a public-records request made annually to the governor's office do not include death-penalty cases, such as those granted on Friday when Kasich granted reprieves to move back eight scheduled executions in response to a court order.

In six years in office, Kasich approved 86 of 2,291 requests to reach his desk, about one in 26.

Ohio governors have nearly unlimited clemency power in criminal cases after the Ohio Adult Parole Authority has made a recommendation in a case. The governor does not have to agree with the parole board's decision, but he did in all 13 cases he approved last year.

The clemencies approved by Kasich were all for old, mostly non-violent crimes. All were pardons, which is "an act of grace or forgiveness that relieves the person pardoned from some or all of the ramifications of lawful punishment," according to the Ohio Department of Rehabilitation and Correction....

Kasich agreed with the parole board in all but eight of 526 cases last year. In the eight cases, he denied clemency where the parole board recommended it.

In the three decades that Ohio has tracked gubernatorial clemency, governors have used the power in different ways, sometimes reflecting personal, political or ideological persuasions.  Ted Strickland, a Democrat who preceded Kasich as governor, approved 20 percent of 1,615 clemency requests that he handled between 2007 and 2011.  Most cases involved low-level, nonviolent offenses, but he commuted five death-penalty sentences to life in prison without parole....

Republicans George V. Voinovich, governor from 1991 to '98, and Bob Taft (1999-2007) each approved less than 10 percent of the clemency requests received.  James A. Rhodes, a Republican, approved 17.5 percent of clemencies in 1982, his last year in office.

Democrat Richard F. Celeste, governor from 1983 to 1991, touched off a legal battle in the final days of his second term when he commuted the death sentences of eight men and granted clemency to 25 female prisoners who were victims of battered-woman syndrome.  As a result of Celeste's actions, the General Assembly changed the law to require governors to have a recommendation from the parole board before making a clemency decision.

February 12, 2017 in Clemency and Pardons, Who Sentences? | Permalink | Comments (0)

Saturday, February 11, 2017

Ohio Gov forced to delay scheduled executions yet again due to lethal injection ltigation

As this local article reports, "Gov. John Kasich has delayed eight scheduled executions because of continuing litigation over lethal injection drugs." Here are the details:

The governor used his executive clemency authority to reschedule the executions, beginning with Ronald Phillips who was to be put to death on Wednesday for the 1993 rape and murder of three-year-old Sheila Marie Evans. Phillips will now be executed on May 10, under the revised schedule.

The delays follow the Jan. 26 decision by U.S. District Court Magistrate Judge Craig Merz barred the state's use of a three-drug protocol, declaring it unconstitutional, and blocked the pending execution of Phillips and two other inmates. The state has appealed the ruling to the 6th U.S. Circuit Court of Appeals.

"While Ohio is confident its appeal will ultimately be successful ... the appellate court's scheduling will not allow the matter to be resolved in time to allow the state to move forward with its current execution dates," Kasich's office said in a statement this morning. "Accordingly, these delays are necessary to allow the judicial process to come to a full resolution, and ensure that the state can move forward with the executions."

Merz's lengthy order cited problems with executions in other states with the use of midazolam, one of the three drugs in Ohio's protocol, along with rocuronium bromide and potassium chloride.

Ohio hasn't had an execution since Jan. 16, 2014, when Dennis McGuire choked, gasped and struggled against his restraints for much of the 26 minutes it took for him to die. Midazolam was one of the drugs used to execute McGuire.

The revised schedule after Phillips [includes] Gary Otte, moved to June 13 from March 15 [and] Raymond Tibbetts, moved to July 26 from April 12.

Ever since Ohio announced it had acquired execution drugs and had a new execution protocol in early Fall 2016, I have been expecting and sort-of predicting that Ohio would finally find a way to get its machinery of death back up and running again in 2017. Given some prior Sixth Circuit and Supreme Court rulings, I continue to think Ohio will be able to complete some executions this year. But, of course, lethal injection litigation can be like Forrest Gump's box of chocolates: you never quite know what you are gonna get.

February 11, 2017 in Baze and Glossip lethal injection cases, Clemency and Pardons, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5)

Wednesday, January 25, 2017

Horrific aftermath for one Obama commutation recipient

This local article from Michigan, headlined "Ex-gang member 'executed' after Obama commutes sentence," reports on how one recipient of Obama's clemency push quickly became of victim of violent crime.  Here are the details:

Police say two masked gunmen with assault-style rifles entered a federal halfway house Monday night with a specific goal: the "execution" of a man recently released from prison at the behest of former President Barack Obama.

Demarlon C. Thomas, a former member of Saginaw's Sunny Side Gang who had his 19-year prison sentence commuted by Obama in November, was slain by one of the gunmen around 9:40 p.m. Monday, Jan. 23, at Bannum Place, the federal halfway house located at 2200 Norman St., Michigan State Police Lt. David Kaiser said.

Thomas, 31, was shot in the head and numerous other times by one of the gunmen as his partner corralled at gunpoint some of the other 23 people in the house, Kaiser said.  "One person watched over a group of them while another subject located the victim and executed him," Kaiser said. "They were looking for this person."

No one else was injured, and it's unknown at this time what security measures the halfway house had in place, Kaiser said. No suspects are in custody.

Thomas was among 79 people across the country who had their sentences commuted by Obama on Nov. 22, 2016. Obama commuted Thomas' sentence to expire on March 22, 2017, or about eight years before his initial release date....

Thomas was arrested in one of the biggest drug busts in the history of Saginaw. In 2008, he was sentenced to 19 years in prison for the distribution of five grams or more of cocaine as part of the three-year federal investigation called "Operation Sunset." In all, "Operation Sunset" saw 29 convictions in federal court and 10 in state court and effectively brought about the end of the Sunny Side Gang, which operated on Saginaw's South Side.

January 25, 2017 in Clemency and Pardons | Permalink | Comments (9)

Thursday, January 19, 2017

Prez Obama wraps up his clemency work with 330 more commutations on his final full day in office

As reported here via USA Today, "President Obama commuted the sentences of 330 more federal inmates Thursday, capping an unprecedented clemency effort that has now released 1,715 prisoners — more than any other president in history."  Here is more:

The clemency grants announced on Obama's last full day in office set a one-day record. "Proud to make this one of my final actions as President.  America is a nation of second chances, and 1,715 people deserved that shot," Obama tweeted Thursday.

The clemency initiative, which began in 2014, was targeted at drug dealers who received mandatory-minimum sentences during the War on Drugs from the 1980s to the 2000s. But the effort ultimately fell far short of the 10,000 clemency grants former attorney general Eric Holder predicted when the initiative began. And while Obama set a record for granting commutations, he also set a record for denials.  As of the end of 2016, he had denied 14,485 petitions and closed another 4,242 without action — an overall grant rate of 5.9%, a couple of percentage points higher than many of his predecessors.

"The president set out to reinvigorate clemency, and he has done just that," White House counsel Neil Eggleston said in a statement.

It's unclear how big of a backlog in clemency cases President-elect Donald Trump will inherit.  But Justice Department officials had promised to give an up-or-down determination on every clemency initiative case it received by August.  “I’m proud to say we kept that promise," Deputy Attorney General Sally Q. Yates said in a statement. "This undertaking was as enormous as it was unprecedented, and I am incredibly grateful to the teams of people who devoted their time and energy to the project since its inception."

Obama's final list of clemency grants included no more full pardons, meaning his final pardon tally will stand at 212 — fewer than any modern president except Presidents George H.W. Bush and George W. Bush. (It was the younger Bush who gave Obama this advice in the limo ride to the Capitol on his Inauguration Day eight years ago. "Announce a pardon policy early on, and stick to it.")

The grants on Thursday also did not include any of the more high-profile political cases, like former Illinois governor Rod Blagojevich, former Detroit mayor Kwame Kilpatrick, and former congressman Chaka Fattah, all serving time on corruption charges.

With Thursday's action, the Clemency Project 2014 also closes its doors.  The coalition of defense attorneys who had agreed to help inmates with their cases says it completed work on all the applications it received. "Of course we'd be delighted to continue, but we have to wait to see whether the next president says whether he will or will not pursue this," he said.

This NBC News coverage of the final grants and the recent history of Obama's clemency initiative closes with a useful account of its ups and downs:

Obama's clemency grants came in large batches, hundreds at a time, accompanied by statements that framed his effort as a bid to become the most merciful president of all time. But his denials were even more voluminous. The effect on applicants and their lawyers was like an emotional roller coaster.

On Wednesday, sandwiched between Obama's two ballyhooed clemency announcements, the Justice Department quietly released the names of more than 2,000 applicants who'd been denied.

James Felman, a Florida defense lawyer who represents dozens of inmates who applied for clemency, celebrated Tuesday when he learned that four had received commutations. On Wednesday, he learned that a dozen others had been denied, and he mourned. On Thursday, Felman was elated again, this time for four more clients who were on Obama's list. A dozen of Felman's clients still have heard nothing. Three are serving life sentences.

And then there's the matter of reform. Advocates point out that clemency does nothing to change policies that led to mass incarceration. Efforts to ease those laws beyond the 2010 changes have stalled in Congress.

Felman, who won commutation for 44 total clients, called Obama's initiative "the single most gratifying professional experience I've ever undertaken." He added: "I have so much gratitude for the president for having the courage and fortitude for doing this. But we know this is not a substitute for reforming the laws that got us here, and we still haven't accomplished that."

January 19, 2017 in Clemency and Pardons, Drug Offense Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (17)

Noting that two death row inmates were among the latest batch of commutations by Prez Obama

I am intrigued and a bit surprised that there has not been more media attention surrounding the fact that two of the persons granted clemency by Prez Obama earlier this week were murderers on federal death row.   This posting at the Death Penalty Information Center reports on the basics, with also interesting links to some clemency materials:

On January 17, 2017, President Barack Obama commuted the death sentences of Abelardo Arboleda Ortiz, a federal death row prisoner, and Dwight Loving, a military death row prisoner. The two men were among 209 commutations and 64 pardons announced by the White House on the 17th.

Ortiz's lawyers sought clemency from the President on the grounds that Ortiz was intellectually disabled, his right to consular notification under the Vienna Convention had been violated, he did not himself commit the murder and was not in the room when it occurred, and he had been denied effective assistance of counsel at trial. Loving's attorneys argued for clemency on the basis of ineffective assistance of counsel, racial and gender bias in the selection of members of his court-martial, and Supreme Court rulings that called into question the constitutionality of the process by which the military imposes the death penalty.

In Loving's clemency petition, his lawyers state, "Issues of command influence, racial discrimination, and improper panel voting procedures – which were ignored by the courts based on technical legal evidentiary rules – will forever overshadow Loving’s death sentence. Executing him [will] not promote justice or ensure good order and discipline any more than a sentence of life imprisonment."

Ortiz's lawyers said they were "incredibly grateful" to President Obama for the commutation. In a statement, Amy Gershenfeld Donnella said, "Mr. Arboleda Ortiz’s case highlights several of the glaring problems that plague the federal system no less than state systems: dreadful lawyering by defense counsel; disproportionate sentencing even among co-defendants; significant racial, economic and geographic disparities in the choice of those who will be tried capitally; and procedural constraints that make it virtually impossible to correct a conviction or sentence imposed, even in violation of the Constitution, when new evidence comes to light." His case, she said, "epitomizes the broken federal death penalty system." Although federal law and the U.S. Constitution both prohibit using the death penalty against persons who are intellectually disabled, Ortiz's trial lawyer never investigated his intellectual disability, Donnella said. As a result, the jurors made their decision on life or death "in a complete vaccuum" and "an intellectually disabled person of color with an IQ of 54 who was never able to learn to read, write, or do simple arithmetic, and could not even tie his shoes until he was ten years old" was sentenced to die.

Both Ortiz and Loving will now serve sentences of life in prison without the possibility of parole.

This new Marshall Project piece, headlined "How Obama Disappointed on the Death Penalty: Two commutations this week was less than many had hoped for," discusses these two clemencies while also suggesting that they provide only a little succor to the capital abolitionist community.

January 19, 2017 in Clemency and Pardons, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Wednesday, January 18, 2017

Some attacks and some defenses of Prez Obama's decision to commute sentence of Chelsea Manning

Because I have not spent a lot of time reviewing the many distinctive and seemingly unique facts relating to Chelsea Manning's offenses and personal history, I really do not have strong opinions about Prez Obama's notable decision to commute her sentence from 35 years down to roughly 7.  But it does seem that a lot of other folks have strong views, and here is a mini-round up of criticisms and defenses:

January 18, 2017 in Celebrity sentencings, Clemency and Pardons, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

Tuesday, January 17, 2017

Prez Obama issues clemency to 273 more individuals (209 commutation and 64 pardons) and Chelsea Manning among those getting a commuted sentence

Moments after I blogged about the New York Times criticizing Prez Obama on his pardon efforts, this news emerges from the White House:

Today, 273 individuals learned that the President has given them a second chance.  With today’s 209 grants of commutation, the President has now commuted the sentences of 1,385 individuals — the most grants of commutation issued by any President in this nation’s history.  President Obama’s 1,385 commutation grants — which includes 504 life sentences — is also more than the total number of commutations issued by the past 12 presidents combined.  And with today’s 64 pardons, the President has now granted a total of 212 pardons.

Today, 209 commutation recipients — including 109 individuals who had believed they would live out their remaining days in prison — learned that they will be rejoining their families and loved ones, and 64 pardon recipients learned that their past convictions have been forgiven.  These 273 individuals learned that our nation is a forgiving nation, where hard work and a commitment to rehabilitation can lead to a second chance, and where wrongs from the past will not deprive an individual of the opportunity to move forward.  Today, 273 individuals — like President Obama’s 1,324 clemency recipients before them — learned that our President has found them deserving of a second chance.

There is at least one high-profile recipient of a commutation today, as this FoxNews headline reveals:

"Obama commutes Chelsea Manning's sentence for leaking Army documents":

The White House said that Manning is one of 209 inmates whose sentences Obama is shortening. Obama is also pardoning 64 people, including retired Gen. James Cartwright, who was charged with making false statements during a probe into disclosure of classified information. Most of the other people receiving commutations were serving sentences for nonviolent drug offenses.

Manning is more than six years into a 35-year sentence for leaking classified government and military documents to the anti-secrecy website WikiLeaks. Her sentence is now set to expire May 17.

January 17, 2017 in Clemency and Pardons, Sentences Reconsidered, Who Sentences? | Permalink | Comments (25)

NY Times editorial rightly notes Prez Obama's clemency failings, especially with respect to pardons

This New York Times editorial, headlined "Mr. Obama, Pick Up Your Pardon Pen," properly laments the fact that Prez Obama has used his clemency power much more for commutations than for pardons, and it even takes some astute shots at the Prez for how his has gone about his commutations.  Here is some of the criticism:

For more than four decades, Sala Udin lived under the shadow of a federal firearms conviction, the result of a search by the Kentucky police who found an unloaded shotgun in the trunk of his car in 1970.

Mr. Udin, who had been a Freedom Rider during the civil rights era, carried the gun for protection as he drove around the South.  After eight months in prison, he lived an exemplary life, serving on the Pittsburgh City Council and playing a role in the city’s redevelopment.  But when President Obama visited Pittsburgh in 2009, Mr. Udin wasn’t allowed to meet him: His criminal record prevented such an encounter.

Last month, Mr. Obama issued Mr. Udin a pardon — one of just 148 pardons the president has granted during his two terms in office.  It is an abysmally low number for a president who has stressed his commitment to second chances and the importance of helping convicted people re-enter society.

The White House has been trumpeting Mr. Obama’s use of his clemency power in the last two years, especially his nearly 1,200 commutations of prison sentences, more than the last several presidents combined.  Most of these inmates were serving outrageously long terms, including life without parole, for nonviolent drug crimes. Commuting those sentences is meaningful progress, even if Mr. Obama could and should have started much earlier and released thousands more deserving people.

But when it comes to the other type of executive clemency — pardons — Mr. Obama hasn’t been an improvement over his predecessors. Unlike a commutation, which shortens or ends a prison sentence, a pardon is an act of forgiveness granted to someone who has completed a sentence. Pardons remove the stigma of conviction and restore the right to hold office, to vote, to obtain certain business licenses and to own a gun — all activities that can be denied those with criminal records.

The reluctance to grant pardons makes even less sense than a reluctance to give out commutations, since the sentences have already been served and there is no public safety concern. In both cases, the trouble rests with the people acting as the gatekeepers of mercy. The clemency process is run out of the Justice Department, where career prosecutors have little interest in reversing the work of their colleagues. It’s a recipe for intransigence, dysfunction and injustice on a mass scale....

There is a better way. In both liberal and conservative states, from Delaware and Connecticut to Nebraska and Georgia, the pardon process is more predictable and transparent. Some states require independent boards to make pardon recommendations to the governor; others hold regularly scheduled public hearings. All take the executive’s job of granting mercy seriously, which makes those grants both more fair and more common.

On Mr. Obama’s first Inauguration Day, in 2009, President George W. Bush gave him a good piece of advice: Pick a pardon policy and stick with it. Perhaps President-elect Donald Trump will learn from Mr. Obama’s failure to heed that wisdom.

Though this is an effective editorial, it might also have noted that federal law lacks any mechanism for getting a criminal record sealed or expunged and thus a Presidential pardon is the only method for a former federal offenders to get his record cleaned. This reality makes pardon practice all that much more important at the federal level, though it also should at some point prompt federal lawmakers to consider creating a needed statutory mechanism for record sealing or expungement as exists in so many states.

January 17, 2017 in Clemency and Pardons, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Monday, January 16, 2017

After reviewing tens of thousands of requests, Obama Administration reportedly finds a few hundred more prisoners worthy of clemency

Anyone hoping Prez Obama would go out of office this week with a huge clemency bang will likely be disappointed to see this new Washington Post report headlined "Obama to commute hundreds of federal drug sentences in final grants of clemency."  I have been assuming Obama would make news with a few hundred more grants, but I know some advocates were hoping there would be perhaps thousands of commutations as Obama heads for the Oval Office exit.  Here instead is what we can expect after seemingly a whole lot of work by a whole lot of lawyers and DOJ officials:

Justice Department officials have completed their review of more than 16,000 clemency petitions filed by federal prisoners over the past two years and sent their last recommendations to President Obama, who is set to grant hundreds more commutations to nonviolent drug offenders during his final days in office.

“Everyone has killed themselves here to get the final recommendations to the president,” Deputy Attorney General Sally Q. Yates said in an interview. “We were in overdrive. We were determined to live up to our commitment. It was 24-7 over the Christmas break.” U.S. Pardon Attorney Robert A. Zauzmer has not taken a day off since Yates brought him on in February 2016 to sift through the backlog of thousands of petitions. From her home in Atlanta, Yates said she reviewed hundreds of petitions during the holidays.

As President-elect Donald Trump prepares to take office, Justice officials worry that his administration will dismantle Obama’s clemency initiative, which has resulted in the early release of 1,176 drug offenders who were sentenced under the severe mandatory minimum laws passed in the 1980s and 1990s during the nation’s “war on drugs.” More than 400 were serving life sentences. Yates said Obama will grant “a significant” number of commutations this week, but would not specify a number. Several people close to the process said it will be several hundred.

Those officials also fear that the next attorney general may undo new criminal justice policies. Then-Attorney General Eric H. Holder Jr. put in place a policy three years ago to reserve the most severe drug-offense penalties for high-level or violent drug traffickers — and no longer charge low-level, nonviolent drug offenders with crimes that impose severe mandatory minimum sentences. Justice Department data indicate that prosecutors are now focusing on more-serious drug cases, and there have been fewer charges that carry mandatory sentences.

Neither Trump nor his attorney general-nominee, Sen. Jeff Sessions (R-Ala.), has said what actions might be taken on drug charging policy or clemency, but during his campaign, Trump criticized Obama’s initiative to grant commutations. “Some of these people are bad dudes,” he said. “And these are people who are out, they’re walking the streets. Sleep tight, folks.”...

At several points during the past two years, it appeared that Obama’s clemency initiative might have been derailed, partly by a lack of resources but also by a cumbersome review process. After Holder and then-Deputy Attorney General James Cole began the effort in the spring of 2014, thousands of inmates applied. To help them with their petitions, 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.

About 4,000 volunteer lawyers signed up to help in what has become one of the largest pro bono efforts in the history of the legal profession in the United States. Once the lawyers submitted the petitions, the U.S. pardon attorney made recommendations to the deputy attorney general, who reviewed the cases and sent them to the White House counsel, who also reviewed them before choosing which ones went to Obama.

When Yates arrived at Justice in the spring of 2015, the clemency program was overwhelmed and bogged down. Advocates criticized the inefficient process and urged the Obama administration to pick up the pace for the inmates waiting for relief from unfair sentences. “There wasn’t an apparatus set up,” Yates said. “When I arrived, they were doing the best they could . . . but we didn’t really have a playbook.”

Early last year, more than 9,000 clemency petitions were pending, and the pardon attorney at the time was so frustrated that she quit.  Yates brought on Zauzmer, a longtime federal prosecutor, who prioritized applications so that Justice lawyers could focus on inmates who met the criteria: Inmates had to have served at least 10 years; had no significant criminal history; no connection to gangs, cartels or organized crime; and probably would have received a “substantially lower sentence” if convicted today.

“These are big decisions that you’re making,” Yates said, alluding to the public-safety risks and the need to provide a “sophisticated analysis” to the president. “If it’s to let someone out of prison early, earlier than what their original sentence was, you’ve got to be careful about those decisions,” she said. “There’s lots of people whose current offense or conviction is a nonviolent drug offense . . . but you have to look at their past as well and at their criminal history.  You have to look at their conduct [in prison].”

Not all inmates who have been granted clemency will be released immediately or even in a number of months. Last summer, the Obama administration began granting clemency to some inmates by reducing their sentences; in some cases, they will remain in prison for years.  At the end of August, Yates announced that she would review and give Obama a recommendation on every petition from a drug offender that was still in the department’s possession at that time — about 6,195 petitions.  She did that, and included several hundred petitions received through Sept. 15, after her cutoff date.  She also reviewed petitions that came in as late as Nov. 30 from drug offenders serving life sentences. By last Friday, the final number of petitions reviewed was 16,776. “Sally deserves a lot of credit,” Holder said in an interview. “She set this goal of looking at every drug-clemency petition, and they accomplished that.”

I want to give DAG Yates and Pardon Attorney Zauzmer lots and lots of credit for all their efforts, and I will also give some credit to Prez Obama for ultimately making clemency an 11th hour priority.  But given that Prez Obama set of modern record for fewest clemencies during his first term in office, and especially because he leaves in place the same troublesome clemency process that has contributed to problems in the past, I will still look at Obama's tenure largely as an opportunity missed.  

January 16, 2017 in Clemency and Pardons, Criminal justice in the Obama Administration, Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

Questioning a new term of supervised release after Prez Obama commutes a life sentence

This new article at The Fix highlights an interesting legal issue that has arisen in the wake of Prez Obama's decision to commute a drug offenders life sentence.  Here are the particulars (with a few edits for keeping the legal terminology accurate):

When Jimmy Walden was granted clemency by President Obama, it was the happiest day of his life.  Walden was locked up on May 19, 2008 and given a life sentence under federal sentencing guidelines for a very minor drug offense in Tennessee.  On August 4, 2016, Walden received an Executive Grant of Clemency commuting his total trial sentence of imprisonment to expire on August 3, 2018.  He was ecstatic, but then he got a letter from the court informing him that they wanted to impose a 10-year term of supervised release. The court hadn’t deemed it necessary at the time due to Walden’s life sentence, but since he was getting out, his judge now wanted to impose [supervised release], which in effect is another sentence.

“I was arrested in September 2007.  My case was possession with attempt to distribute crack cocaine and marijuana,” Walden tells The Fix from Federal Correctional Institution, Jesup in Georgia. “They arrested me and wanted me to tell. I refused and went to trial. They found me not guilty of count one and guilty of counts two to five.  They gave me life from enhancing me because of my priors.”

The two priors were for very small amounts of crack. Walden got caught with 1.3 grams the first time and .5 grams the second time. He was charged with possession with intent to sell. He was sentenced to probation in both cases.  But the federal government used those two priors to trigger the career criminal statute and sentenced Walden to life. He was effectively doing life for around 50 grams of crack cocaine.  That’s why Obama pardoned him, because he was serving a disproportionate sentence....

But at the same time he was getting congratulated on his presidential commutation, he received a disconcerting letter from the sentencing court saying that even though his judge omitted to sentence him to [supervised release] at his original sentencing, the judge now wanted to impose a term of supervised release on Walden once he was released. The judge went back and did a re-do, issuing an order that would amend a judgement that was final nine years ago. If Walden tried to get back in court on some issue and change his sentence, he’d be time barred by the court — but it seems the court can do as it pleases when it comes to drug war prisoners, while those unjustly incarcerated must follow the rules....

For some clarity on the matter, The Fix reached out to some clemency experts — P.S. Ruckman Jr., a professor of political science who runs the Pardon Power blog, and Margaret Love, the former pardon attorney under former President Bill Clinton — to get their opinions on the legalities involved with pardons and what the courts can or can’t do in this situation. “The president has the power to grant commutations of sentence, with or without conditions,” Ruckman tells The Fix....  “Presidents have commuted sentences on the condition that prisoners never drink again, that they live with their parents, that they leave D.C., that they join the army, that they leave the United States and never return, etc. In the past, prisoners have refused attached conditions and chosen to remain in prison.  My understanding is that this was a conditional pardon.”

If 10 years [supervised release] was one of the conditions of clemency like attending the Bureau of Prisons’ Residential Drug Abuse Program was then Walden has to accept it as part of the clemency grant or stay in prison like Ruckman said. No one would do that, but if the 10 years supervised release wasn’t a condition of the grant of clemency, then the court shouldn’t have any right to impose it. That would be illegal.

“I understand that the president’s commutation order did not mention a term of supervised release,” Margaret Love tells The Fix. “In any case, the pardon power does not authorize the president to impose a new sentence (which is what a term of supervised release is). The court's power to amend the original judgment to impose a new sentence of supervised release at this point, or to impose any conditions on his release, seems highly doubtful. At this point the court has no power to impose a term of supervised release, effectively a new sentence.”...

Pursuant to Rule 36, the court sent notice to Walden that it intends to amend the Judgment and Commitment Order to correct the Court's omission of failing to impose mandatory terms of supervised release as required by the statute. The court intends to order that all terms of supervised release run concurrently for a net effective term of 10 years of supervised release. The court also intends to impose the Standards Conditions of Supervision that have been adopted by his Court. The court appointed a public defender and informed Walden that he could object to the imposition of the term of supervised release.

“I objected,” Walden says.  “The point is I have remained in zero trouble inside prison. The president gave me clemency because he believed in me.  The judge now wants to add 10 years supervised release onto my sentence after my sentence has been final for over nine years. This is a violation of due process. As an inmate I have no legal way to get back into court. They had their chance at sentencing.  I disagree with this reasoning and I have filed a statement that I object to this addition with my attorney.  This is an interesting situation. Many people seem interested in the outcome.  It is illegal and should be brought to the public's attention.”

Even Walden’s public defender wasn’t sure about the legalities involved in this case, “I am currently reaching out to defenders across the nation to see if they have input on whether this is permissible post-grant of clemency,” she wrote him. Currently the public defender is in the process of making a supplement to the objections that Walden has. Plus other prisoners who received clemency grants from Obama have not received letters from their judge and court attempting to amend a judgment that is already final. Walden is ready to get on with his life without [supervised release] hovering over his head.

“I would like to drive trucks after getting my CDL license,” Walden says. “I thank God for another chance. I have this desire to drive trucks and see the country at the same time. Perhaps I will have a chance to speak to younger people and explain to them how unwise choices have consequences. I can stop youth from making the same mistakes I have. I am blessed that Obama came into office and helped me, or I’d be just another number serving life behind bars. There may not always be a President Obama around to give people another chance. I will definitely take the opportunity to prove to people like the President-elect that some people are deserving of a second chance.  I would certainly not want to mess up someone down the line from getting the same relief as me.”

The legal issue here strikes me as an interesting mix of functionalities and technicalities.  There was, of course, no functional reason for the sentencing judge to impose any term of supervised release at initial sentencing when imposing an LWOP sentence. But now that a commutation has resulted in an offender getting released after serving less than a decade, there now is a functional reason for imposing at least some SR term (which would have been a required part of the sentence had the defendant been sentenced to less than LWOP).  But, technically, I think there is a forceful argument that if the Prez did not include the addition of an SR term in his clemency grant, then it is improper for the original sentencing judge to now add that on to the defendant's original (now commuted) sentence.

Notably, the White House clemency page reports that the "1,176 men and women" who have had their prison sentences commuted by Prez Obama includes "395 individuals who were serving life sentences." Thus there are literally hundreds of individuals who could have this kind of post-commutation issue arise (although I doubt all sentencing courts are going to be as proactive as the court that added 10 years of supervised release to Walden's sentence).

January 16, 2017 in Clemency and Pardons, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (20)

Thursday, January 12, 2017

"Mistakes and Justice — Using the Pardon Power to Remedy a Mistake of Law"

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

American criminal law has never recognized a mistake-of-law defense. The principal rationale for rejecting it has been that the community knows what the criminal law prohibits.  That may have been a reasonable rule when there were only a handful of crimes, and each one also violated the contemporary moral code, but that rule makes no sense today, given the use of the criminal law to enforce thousands of sometimes technical, arcane administrative regulations.  Clemency, however, may be a perfect vehicle for the implementation of a mistake- or ignorance-of-the-law defense.

Throughout Anglo-American legal history, kings, presidents, and governors have used their pardon power as a vehicle to remedy injustices in the criminal justice system.  The conviction of a person for conduct that no reasonable person would have thought to be a crime certainly qualifies as a miscarriage of justice.  Presidents and governors should consider using their clemency authority to pardon legitimate cases of mistake or ignorance, which might particularly arise in connection with strict criminal liability or regulatory crimes.

January 12, 2017 in Clemency and Pardons, Offense Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Thursday, January 05, 2017

Marijuana reform and clemency conversations at the state and federal level

Two new lengthy pieces combining news and commentary on the clemency and marijuana fronts further reinforces my view that marijuana reform is a form of sentencing reform.  Here are the extended headlines and links to these two interesting reads:

January 5, 2017 in Clemency and Pardons, Marijuana Legalization in the States, Pot Prohibition Issues, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Prez Obama produces lengthy Harvard Law Review article titled "The President’s Role in Advancing Criminal Justice Reform"

I am intrigued and surprised (and concerned that I will soon be very aggravated) by this lengthy new Harvard Law Review article authored by Barack Obama.  In style (because the article runs 50+ pages with 300+ footnotes), the article hints that Prez Obama is interested in going back to being a law professor after he finishes his current gig.  In substance, the article's introduction provides this overview: 

Part I details the current criminal justice landscape and emphasizes the urgent need for reform.  It would be a tragic mistake to treat criminal justice reform as an agenda limited to certain communities.  All Americans have an interest in living in safe and vibrant neighborhoods, in raising their children in a country of equal treatment and second chances, and in entrusting their liberty to a justice system that remains true to our highest ideals.  We simply cannot afford to spend $80 billion annually on incarceration, to write off the seventy million Americans — that’s almost one in three adults — with some form of criminal record, to release 600,000 inmates each year without a better program to reintegrate them into society, or to ignore the humanity of 2.2 million men and women currently in U.S. jails and prisons and over 11 million men and women moving in and out of U.S. jails every year.  In addition, we cannot deny the legacy of racism that continues to drive inequality in how the justice system is experienced by so many Americans.

Part II shows how the President can drive significant reform at the federal level.  Working with Congress, my Administration helped secure bipartisan sentencing reform legislation reducing the crack-topowder-cocaine disparity.  As an executive branch, we’ve been able to make important changes to federal charging policies and practices, the administration of federal prisons, and federal policies relating to reentry.  And through the presidential pardon power, I have commuted the sentences of more than 1000 prisoners.  Even though there are important structural and prudential constraints on how the President can directly influence criminal enforcement, these changes illustrate that presidential administrations can and do shape the direction of the federal criminal justice system in lasting and profound ways.

Part III details the approaches that Presidents can take to promote change at the state and local level, recognizing that the state and local justice systems tend to have a far broader and more pervasive impact on the lives of most Americans than does the federal justice system.  While the President and the executive branch play a less direct role in these systems, there are still opportunities — as my Administration’s work demonstrates — to advance reform through a combination of federal-local partnerships, the promulgation of best practices, enforcement, federal grant programs, and assembling reform-minded jurisdictions struggling with similar challenges.

Part IV highlights some of the work that remains, focusing on reforms that are supported by broad consensus and could be completed in the near term.  These include passing bipartisan criminal justice reform legislation in Congress, adopting commonsense measures to keep firearms out of the hands of those who are a threat to others or themselves, finding better ways to address the tragic opioid epidemic in this country, implementing critical reforms to forensic science, improving criminal justice data, and using technology to enhance trust in and the effectiveness of law enforcement.

I fear I will be aggravated by this article because it will confirm that Prez Obama (or his staff who helped author this article) truly understands the need to major criminal justice reforms and yet so relatively little got achieved on this front during Prez Obama's eight yesr in office. Also, I know I am already going to be troubled by what is not said in this article because a quick word search reveals that the word "marijuana" is not mentioned once even though state-level marijuana reform is by far the biggest criminal justice reform story of the Obama era (which, to the Obama Administration's credit, was in part fueled by his Justice Department's express hands off policy).

January 5, 2017 in Clemency and Pardons, Prisons and prisoners, Purposes of Punishment and Sentencing, Race, Class, and Gender, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (10)

Thursday, December 29, 2016

"Clemency seeker to Obama: please don't forget us"

The title of this post is the headline of this new CNN commentary, authored by Alice Marie Johnson.  Here is how it gets started and concludes:

The week before Christmas, President Obama gave a second chance -- in the form of clemency -- to 231 people. I was not among them, but since many of them, like me, were incarcerated on drug-related charges, I feel I know their stories.  I am only one of thousands of first-time, non-violent offenders given a mandatory and lengthy prison terms after committing a crime under financial distress.

In 1996, I was given a death sentence without sitting on death row. I was convicted as a first-time nonviolent drug offender to life behind bars in federal prison.  Since I went to prison, the laws governing my wrong-doing have changed.  If I were convicted again today for the same crime, my life might look very different.

Last month, as I was preparing to put on a short play I wrote, entitled "The Strength To Be," a fellow inmate pulled me aside and gave me the news that the Obama Administration had just started announcing its next slate of clemencies.  My mind went racing. What if this could be my chance to be reunited with the outside world, to see my family or what is left of it?

For 20 years I have been incarcerated, and I won't lie, it's hard to keep the hope of freedom alive for that long.  But my faith in God has carried me this far.  Despite the impending announcement, I knew that the show had to go on. I channeled the uncertainty of my future into my play and danced a duet to Whitney Houston's song, "I Didn't Know My Own Strength."...

I want this part to be clear: I acknowledge that I have done wrong. I made the biggest mistake of my life to make ends meet and got involved with people selling drugs.  This was a road I never dreamed of venturing down.  I became what is called a telephone mule, passing messages between the distributors and sellers.  I participated in a drug conspiracy and I was wrong.

My trial took a toll on my family.  At the time of my conviction, I had two children in college and a senior in high school. Bryant, the senior, ended up dropping out of school because of the trial.  Tretessa had a good paying job with Motorola and was flying down to support me.  Members of the community were at my hearings encouraging me and hoping for the best.

But I was convicted on October 31, 1996 -- and sentenced to life in prison. The day after my oldest son Charles "celebrated" his 20th birthday.  It was his first birthday spent away from me. It's hard to imagine that I have now served 20 years of my life sentence for that one mistake.  The United States leads the world in incarceration rates, with five percent of the world's incarcerated population and one-quarter of the world's prisoners.  I am one of thousands of first-time, nonviolent offenders who were given mandatory lengthy prison terms.

During my two decades in here, I've become an ordained minister and a mentor to young women who are also in prison.  And if I get out -- I have a job secured, and plan to continue to help those in prison and work hard to change our justice system.  My daughter started a petition to President Obama asking him to grant me clemency, and more than 100,000 people have signed it.  It a source of strength and hope for me -- a chance to be free.

The President has made an incredible push at helping to right the wrongs of our criminal justice system.  I applaud him and hold out hope for me and thousands of others who face lifelong sentences for nonviolent crimes.  But with the historic Obama administration coming to an end, this could be a last chance at freedom for me and for many others -- so I also hope he moves quickly.  I hope his administration will process all the applications for clemency currently waiting for the President's review.

No matter what happens, I was not built to break. I will keep writing. I will continue to hold my head high and live a productive life either as a free woman or here behind bars.  God has shown me my strength.

December 29, 2016 in Clemency and Pardons, Drug Offense Sentencing, Prisons and prisoners, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Sunday, December 25, 2016

Fulsome (and incomplete) criticisms of Prez Obama's fulsome (and incomplete) clemency efforts

Liliana Segura has this lengthy new Intercept commentary headlined "Obama's Clemency Problem – And Ours."  I recommend the full piece and here are some excerpts:

President Obama broke his own remarkable clemency record [last week], granting an unprecedented 231 commutations and pardons in a single day. Headlines and tweets broadcast the historic tally; on the White House website, a bar graph tracks Obama’s record to date, which has dramatically outpaced that of his predecessors. With a total of 1,176 recipients, the White House boasted, Obama has granted clemency “more than the last 11 presidents combined.”

The president certainly deserves credit for making clemency a priority before leaving office....  Those who make the cut are, as the White House put it this week, “individuals deserving of a second chance.”  Many have been serving long mandatory minimum sentences for nonviolent drug offenses, crimes for which they have shown remorse.  Applications list courses completed, prison jobs maintained, records untarnished by disciplinary write-ups. Last spring, Obama highlighted a handful of men and women who “have made the most of their second chances,” describing their ability to leave prison, get a job, and piece their lives back together as “extraordinary.”

With his legacy and the politics of crime in mind, it makes sense that Obama would be cautious with his commutations, while amplifying the success stories. Yet there’s something disingenuous in the now-familiar rhetoric peddled by the White House with every clemency announcement, which repeatedly tells us we are a “nation of second chances.” Even within the narrow scope of Obama’s clemency initiative — and putting aside his treatment of immigrants and whistleblowers — this is wishful thinking at best.  As Obama himself has written in his congratulatory letters to clemency recipients, “thousands of individuals have applied for commutation, and only a fraction of these applications are approved.” Before the latest round of pardons and commutations, Obama had rejected nearly 14,000 clemency applications....

[W]hen it comes to the president’s pardon power — the one place where Obama could directly address the problem — there are few signs of a transformation.

Instead, the White House has promoted a story about exceptionalism: The president has proven exceptionally merciful and the clemency recipients are uniquely deserving — even extraordinary.  If the former is true, it is only because we have set the bar so low. As for the latter, it is certainly no small thing to survive — even thrive — while serving some of the harshest prison sentences in the world. But praising such men and women as exceptional diminishes the vast human potential that exists behind bars.  As one clemency recipient told me last month, recalling an exchange with the former White House pardon attorney, “I have a list of names of people I would like to see come home. But there are even more people who I’ve never met.  To give a list of names would exclude too many people.”...

On the same day activists published their letter exhorting Obama to expand his clemency efforts, the American Civil Liberties Union released a report titled “False Hope: How Parole Systems Fail Youth Serving Extreme Sentences.” Documenting how states routinely deny release to those eligible for parole, the ACLU offers numerous profiles of men and women sent to grow up (and in many cases, to die) in prison, whose efforts to prove their value as adults have been repeatedly rebuffed.  The stories are all too familiar.  They show how poverty, neglect, trauma, and mental illness factor into the lives of young people arrested for violent crimes.  They also show how harshly we continue to punish such youth, first with decades in prison, and then with repeated refusals to grant parole, no matter how much they change in the years that follow — or how much evidence shows that older people “age out” of crime.  People of color are seen as even less amenable to rehabilitation. Today, despite the wide rejection of the “superpredator” myth, state parole boards show very little mercy to people serving sentences that grew out of such racist hysteria.

As with Obama’s clemency initiative, the problem is largely political: Nobody wants to be the person to free an individual who might go out and commit another crime, even if it has been decades since the original offense — and even if the sentence was disproportionate to begin with.  What’s more, the ACLU notes, by focusing on the original crime, “parole board members may never know about the success stories: people convicted of serious crimes who, once released, have become successful community leaders supporting themselves and their families, who grew up and moved beyond the worst thing they ever did.”

One bright spot of Obama’s clemency initiative has been in these very kinds of success stories — publicized in the press and by the White House itself. But in the absence of a deeper rethinking of what we consider a second chance, such anecdotes are no match for generations of fear mongering that has entrenched fear of violent criminals into our very psyche, even at times when crime has hit historic lows....

Just a few days after the ACLU report on parole, the Washington Post unveiled a front-page, four-part investigative series called Second Chance City, which examined a D.C. law called the Youth Rehabilitation Act.  Passed in 1985, the law aimed to give judges discretion in handling juvenile cases — including by circumventing mandatory minimums — to allow deserving young people to avoid harsh punishment and, ultimately, expunge their record.  The Post series raised alarm, finding dozens of cases where beneficiaries of the law had gone on to commit new, often violent offenses, and describing the crimes in dramatic detail....

Most counterproductive was the framing of the series, placed squarely as a counterpoint to efforts at prison reform on Capitol Hill. “At a time when the Obama administration and Congress are working to ease ‘mandatory minimum’ sentencing guidelines for non-violent offenses, in part because of concerns that such laws have unjustly imprisoned large numbers of African-Americans,” the authors write, “D.C. law enforcement officials are increasingly concerned about the number of repeat violent offenders on the streets.”

The media should certainly scrutinize attempts at reform, pointing out where they fail. But the Post series was a reminder of how quickly we revert back to old narratives about crime, to convince ourselves that more imprisonment will keep us safe. With the real fights over prison reform happening at the state and local level — over things like the Youth Act — any efforts by the president were always going to be limited.  But if the pendulum is to swing back toward a more punitive era, as many fear it will under Trump, Obama must do as much as he can now to preserve the legacy he has carved out.

But beyond Obama — and if we are to make a dent in mass incarceration — Americans must also begin to think much bigger than his administration ever did. We should refuse to let the same government that gave us mandatory minimums define what counts as a “second chance.” We must stop letting our leaders — whether the president or a parole board — divest their responsibility to remedy draconian punishments by placing the burden on people who never should have received them in the first place. Ending mass incarceration will require mercy, but fundamentally it is about justice.  And the state has not even begun to account for its own mistakes.

I credit Segura for noting and lamenting that what's most remarkable about Prez Obama's clemency efforts are how non-transformative they are. Despite lots of advocacy from lots of advocates for the development of a new structure for clemency decision-making, Prez Obama has barely tweaked the status quo in order to better discover a few thousand prisoners with extreme prison sentences that could be shortened. Prez Obama merits praise and credit for doing something, but that something is largely a last-minute tweak rather than a timeless transformation.

The story of clemency here is a variation on the broader drug war reality throughout the Obama years. As of 2013, then-AG Eric Holder started talking up a new "Smart on Crime" initiative. But, despite this useful talk and some tweaked approaches to federal prosecutions, Prez Obama's Department of Justice for all eight years of his presidency continued to prosecute, on average, 20,000 new federal drug cases each year even though there is still little evidence that severe federal drug sentences for nonviolent drug offenders help reduce drug crime or violent crimes. (Of course, the prior decade saw on average 25,000 federal drug prosecutions, so the Obama DOJ can claim credit for being a lesser evil.) Running these numbers, if Prez Obama commuted 2000 federal drug sentences each and every year he was in the Oval Office, through the work of his DOJ, he still would be responsible for a net addition of 18,000 federal drug sentences each and every year.

Put simply, at the margins, Prez Obama left federal criminal justice matters somewhat better than he found them. But the federal criminal justice system continues to need a wide array of reforms that go, in my mind, far beyond the margins.

December 25, 2016 in Clemency and Pardons, Drug Offense Sentencing, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Monday, December 19, 2016

Prez Obama grants another large bunch of commutations as well as a big batch of pardons

Big pre-holiday news on the federal clemency front is reported in this new White House blog posting: "President Obama Grants 153 Commutations and 78 Pardons to Individuals Deserving of a Second Chance." Here are the details as reported by White House Counsel Neil Eggleston:

Today, President Obama granted clemency to 231 deserving individuals — the most individual acts of clemency granted in a single day by any president in this nation’s history. With today’s 153 commutations, the President has now commuted the sentences of 1,176 individuals, including 395 life sentences. The President also granted pardons to 78 individuals, bringing his total number of pardons to 148. Today’s acts of clemency — and the mercy the President has shown his 1,324 clemency recipients — exemplify his belief that America is a nation of second chances.

The 231 individuals granted clemency today have all demonstrated that they are ready to make use — or have already made use — of a second chance. While each clemency recipient’s story is unique, the common thread of rehabilitation underlies all of them. For the pardon recipient, it is the story of an individual who has led a productive and law-abiding post-conviction life, including by contributing to the community in a meaningful way. For the commutation recipient, it is the story of an individual who has made the most of his or her time in prison, by participating in educational courses, vocational training, and drug treatment. These are the stories that demonstrate the successes that can be achieved — by both individuals and society — in a nation of second chances.

Today’s grants signify the President’s continued commitment to exercising his clemency authority through the remainder of his time in office. In 2016 alone, the President has granted clemency to more than 1,000 deserving individuals. The President continues to review clemency applications on an individualized basis to determine whether a particular applicant has demonstrated a readiness to make use of his or her second chance, and I expect that the President will issue more grants of both commutations and pardons before he leaves office. The mercy that the President has shown his 1,324 clemency recipients is remarkable, but we must remember that clemency is a tool of last resort and that only Congress can achieve the broader reforms needed to ensure over the long run that our criminal justice system operates more fairly and effectively in the service of public safety.

This news is sure to bring holiday cheer to all those advocating for Prez Obama to go big on this front before he heads home.  These grants now have me thinking Obama may end his time in office with more than 2000 clemency grants.

Some recent (post-Election Day) posts on Prez Obama and clemency:

December 19, 2016 in Clemency and Pardons, Criminal justice in the Obama Administration, Drug Offense Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8)

Sunday, December 18, 2016

Anyone eager to predict how many last-month clemencies Prez Obama will grant?

NA-CM807_CLEMEN_9U_20161217145706The question in the title of this post is prompted by this lengthy new Wall Street Journal article headlined "Barack Obama Weighs Final Requests for Clemency: President has cut short the sentences of 1,023 inmates, more than the previous 11 presidents combined." Here are excerpts:

Barack Obama, who has granted clemency more often than any president since Lyndon B. Johnson, is expected to perform more acts of mercy during his final weeks in office....

Mr. Obama’s critics, including the incoming attorney general, say his use of clemency for a large class of convicts has been a disturbing power grab. But supporters say a law that reduced drug penalties six years ago created severe injustices for those sentenced before it. They also note that Mr. Obama has granted clemency for a relatively small percentage of the large number of people who have sought it.

These trends are a centerpiece of Mr. Obama’s legacy on criminal justice reform. Legislation that would have further reduced sentences for less-serious drug offenders foundered in this fall’s highly charged political climate. But as with other parts of the president’s agenda that were snubbed by Congress—including immigration, gun control and climate policies — Mr. Obama has turned to his executive authority in the absence of more sweeping and durable legislative action. “He’s essentially rejuvenated clemency as a presidential power,” said White House Counsel Neil Eggleston. “But he has never seen it as a replacement for criminal justice reform.”...

Mr. Trump’s pick for attorney general, Alabama Sen. Jeff Sessions, a former chairman of the Senate Judiciary Committee, has described Mr. Obama’s clemency record as an “alarming abuse of the pardon power.” The former prosecutor views the rollback of tough drug sentences as a threat to public safety. Mr. Obama, a former constitutional law professor, sees long, mandatory sentences as damaging excesses from the war on drugs, particularly in the African-American community.

In 2016, Mr. Obama has cut short the sentences of 839 inmates, the most commutations ever granted in a single year, according to the Justice Department, with more possibly on the way. That brings his total to 1,023, or more than the previous 11 presidents combined. Adding Mr. Obama’s 70 pardons, which go further than commutations by wiping out convictions and restoring civil liberties, puts his clemency record just behind Mr. Johnson’s 1,187 grants.

Civil-rights advocates are demanding a more sweeping review that would dent the prison population much faster than the current case-by-case analysis. “We do not know whether the next president will support clemency efforts or criminal justice reform,’ says a late November appeal to President Obama from dozens of groups, including the NAACP Legal Defense and Educational Fund, the Sentencing Project, JustLeadershipUSA and the Brennan Center for Justice. “But we do know that until Jan. 20, you alone have the power to deliver both mercy and justice to those who deserve it.”...

Mr. Obama has received more requests for clemency than any other president, in part because of efforts to encourage inmates to petition for one if they were sentenced before a 2010 law that reduced the disparity between sentences for crack and cocaine offenses. Mr. Sessions spearheaded that legislation, which lightened penalties for crack users, but he opposes applying it to inmates retroactively. So does the nation’s largest police union, the Fraternal Order of Police, which endorsed Mr. Trump.

But in one indicator that Mr. Obama is more cautious than some critics suggest, he has granted 3% of nearly 35,000 requests; only George W. Bush granted a smaller percentage, according to an analysis by the Pew Research Center. Obama also has offered fewer pardons than any president in the past century, though more are expected before he leaves office.

I am tempted to predict that Prez Obama will grant at least a few hundred more prison commutations and also a few hundred pardons before leaving the Oval Office on January 20, 2017.  This is a nothing but a blind guess and I have absolutely no insider knowledge here.  What I do have is a deep disappointment that Prez Obama did not make any apparent effort to change the structure of the modern federal clemency process, which so many commentators (myself included) have rightly criticized as dysfunctional.

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Some recent (post-Election Day) posts on Prez Obama and clemency:

UPDATE:  In the comments to this post and also in an email to me, sentencing and clemency guru Mark Osler expressed justified frustration over the fact that the WSJ article and its chart fail to give respect to the large number of clemencies that Prez Gerald Ford granted in response to offenses related to evasion of the draft during the Vietnam war. (This Fusion article from May provides an effective review of this oft-forgotten clemency story and its continued relevance in a drug war era.)  Mark sent me this update comment of criticism, along with the additional chart here produced by Pardon Power papa P.S. Ruckman.

Complains Prof Osler: "No, Obama has NOT 'granted clemency more often than any president since Lyndon B. Johnson.'   And the chart the WSJ used (and you reprinted) is wrong.  Neither include the Ford clemency grants. That matters, too --- the streamlined Ford process outside of DOJ, which was successful, was the one Obama rejected in favor of the bureaucracy-laden CP14."

December 18, 2016 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (10)

Monday, December 12, 2016

Clemency recipients join chorus urging Prez Obama to go big on clemencies before he goes home

This new Business Insider article, headlined "Prisoners set free by President Obama are urging him to expand his clemency program before he leaves office," reports on the latest interesting pitch to Prez Obama concerning his clemency work.  Here are the basics:

The day Ramona Brant walked out of prison after serving 21 years of what was supposed to be a life sentence, she felt an overwhelming mixture of emotions — elation and gratitude for her freedom, and sadness for the inmates she was leaving behind. Many of them had stories like hers. They had in one way or another gotten involved in selling drugs, often through boyfriends or husbands who would eventually testify against them in conspiracy trials. L

ike Brant, many were there to serve decades, or even life sentences without the possibility of parole. “I was not comfortable being free knowing that there were so many people who weren’t free to experience the same opportunities that I was experiencing,” Brant told Business Insider. “I’m not saying I want to go back to prison — what I’m saying is my heart is still with my sisters that I left behind, and my brothers.”

Brant was granted a sentence commutation by President Obama last February, as part of an unprecedented clemency initiative that has now reduced more than 1,000 federal inmates’ sentences. She is one of more than 40 clemency recipients who signed an open letter sent to the president on Monday pleading for mercy for nonviolent drug offenders serving lengthy sentences who have demonstrated clear conduct in prison. “We ask for your immediate intervention for thousands more prisoners who will continue to suffer needlessly unless a broader clemency plan is implemented,” the letter said.

“We have remained largely silent in appreciation of your compassion to many suffering under draconian sentencing laws passed during the crack hysteria of the late 1980s and 1990s. But with only six weeks of your presidency left, we must speak out.”

The letter, also signed by dozens of clemency advocates and former inmates, recommends the president adopt a broad amnesty program in place of the current case-by-case review of inmates’ petitions. It suggests that all nonviolent drug offenders with clear conduct have their sentences reduced to five, 10, or 15 years for first-, second-, and third-time offenders, respectively. It also specifically asks that clemency be granted to female inmates, who the letter argues are more likely than men to be serving lengthy sentences because of drugs their partners or spouses sold, and who make up less than 10% of the inmates to whom Obama has granted clemency....

The Office of the Pardon Attorney, which reviews clemency applications and recommends them to the president, the White House, and the Department of Justice did not immediately respond to Business Insider’s requests for comment on the letter....

Although Deputy Attorney General Sally Yates has previously said “every single drug petition” received before Aug. 31 will be reviewed by the Obama administration, activists and clemency advocates have been urging the president for months to quicken the pace of approvals.

Last month’s presidential election, too, has only added to the pressure. President-elect Donald Trump, who has previously called the inmates released by Obama “bad dudes,” has not expressed interest in continuing his clemency initiative. Nor has Jeff Sessions, Trump’s nominee for Attorney General, who supports harsh drug laws and mandatory minimum sentencing.

It is estimated that at least 2,000 federal prisoners serving nonviolent drug offenses were eligible for sentence reductions under the requirements laid out under Obama’s program, which stipulate that inmates have served at least 10 years of their sentences. Even more could be eligible should the Obama administration consider inmates who have served less than a decade, as it has already done in some cases.

Some recent (post-Election Day) posts on Prez Obama and clemency:

December 12, 2016 in Clemency and Pardons, Criminal justice in the Obama Administration, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Sunday, December 11, 2016

Vermont Gov promising to pardon all marijuana offenses on his way out of office

As reported in this local article from Vermont, "before he leaves office, Gov. Peter Shumlin is planning to pardon people who were convicted of possessing up to one ounce of marijuana." Here are the details:

Vermont removed criminal penalties for small amounts of marijuana possession in 2013. Shumlin said in a statement that pardoning the convictions now is "the right thing to do," and he hopes to review as many applications as possible before he leaves office in the new year. [The official statement is here.]

“Decriminalization was a good first step in updating our outmoded drug laws," Shumlin said. "It makes no sense that minor marijuana convictions should tarnish the lives of Vermonters indefinitely.”

The governor will consider pardons for people who have never been convicted of "violent criminal Vermont convictions or felonies," according to a news release.  The governor's office believes as many as 10,000 people are eligible for pardons, said James Pepper, a policy adviser and director of intergovernmental affairs for Shumlin....

People interested in a pardon for marijuana possession can apply through the governor's website before Dec. 25 [link here]. The website cautions applicants that their applications may be considered public records and that a pardon "will not necessarily erase a conviction or the record of that conviction."

"If you are requesting a pardon because you believe the pardon will have certain legal consequences for you, you should talk to a lawyer," the governor's website states....

A 2015 Vermont law allows people in certain circumstances to expunge criminal records of acts they committed before age 25 that are no longer criminal, including possession of small amounts of marijuana. Shumlin believes Vermont should legalize recreational marijuana. A legalization bill passed the state Senate this year but did not pass the House of Representatives.

This story provides further reinforcement of my long-standing view that marijuana reform = sentencing reform and that everyone interested in sentencing reform should be a supporter of marijuana reform. And, of course, for more on marijuana law, policy and reform, my other blog has been covering these stories:

December 11, 2016 in Clemency and Pardons, Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (1)

Wednesday, December 07, 2016

At 11th hour, more advocacy for Prez Obama to make big 11th-hour clemency push

As regular readers may recall, and as I cannot help but highlight these days, I was aggressively calling for Prez Obama to make significant use of his clemency power from literally his first day in office.  This January 20, 2009 post was titled "Is it too early to start demanding President Obama use his clemency power?" and in 2010 I authored this article in the New England Journal on Criminal and Civil Confinement under the title "Turning Hope-and-Change Talk Into Clemency Action for Nonviolent Drug Offenders."

I suppose I should be happy that, with Prez Obama on his way out the door, a lot of other folks are now finally joining this call for action with some urgency.  This New York Times editorial, headlined "President Obama’s Last Chance to Show Mercy," is today's example of the clemency chorus now growing. Here are excerpts:

The Constitution gives presidents nearly unlimited authority to grant pardons and commute sentences — decisions that no future administration can reverse. Unfortunately, for most of his presidency, Barack Obama treated mercy as an afterthought. Even as thousands of men and women endured outrageously long sentences for low-level, nonviolent drug offenses as a result of the nation’s misguided drug war, Mr. Obama granted relief to only a tiny handful.

In the last two years, however, Mr. Obama has changed course. In 2014 he directed the Justice Department to systematically review cases of people serving out sentences that would be far shorter had they been convicted under new, more lenient sentencing laws.

While that clemency process has moved far too slowly — beset by both administrative obstacles and bureaucratic resistance — grants have been accelerating throughout 2016. Mr. Obama has now shortened or ended the sentences of more than 1,000 prisoners, and he will most likely be the first president since Lyndon Johnson to leave office with a smaller federal prison population than he inherited.

There are thousands more people deserving of release, but their prospects under the next administration don’t look good. President-elect Donald Trump ran on a “law and order” platform that sounded a lot like the punitive approach that led to exploding prison populations in the first place. His choice for attorney general, Senator Jeff Sessions of Alabama, has fiercely opposed criminal sentencing reform and called Mr. Obama’s grants of clemency an abuse of power. In other words, for many federal inmates, their last hope lies in Mr. Obama’s hands.

Up to now, the president has reviewed clemency requests on a case-by-case basis. With only weeks left in office, Mr. Obama should consider a bolder approach: blanket commutations for those inmates still serving time under an old law that punished possession or sale of crack cocaine far more harshly than powder cocaine — a meaningless distinction that sent disproportionate numbers of young black and Latino men to prison for decades....

The idea of blanket commutations is being pushed by a coalition of criminal-justice reform advocates, including former judges and prosecutors, who urged the president in a letter last week to use his clemency power aggressively while he still can.  The group called for the release of thousands more nonviolent offenders in low-risk categories, including elderly inmates, who are the least likely of all to commit new crimes, and those with convictions for drugs other than crack.  The coalition argues that it is possible to make these grants in the short time remaining, if the administration is committed to getting it done.

Mr. Trump may well dismantle a lot of Mr. Obama’s legacy, but he can’t touch grants of clemency.  Mr. Obama has taken important steps toward unwinding the decades-long imprisonment binge.  With much of that progress now at risk, he has only a few weeks left to ensure a measure of justice and mercy for thousands of people.

December 7, 2016 in Clemency and Pardons, Criminal justice in the Obama Administration, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Monday, November 28, 2016

Will Prez Obama break out of his "clemency rut" and really go bold his last few weeks in the Oval Office?

Now that Prez Obama has granted commutations to more than 1000 federal prisoners (basics here), I suppose I should stop complaining that he has only "talked the talk" about significant sentencing reform.  Having granted now a record number of commutations to federal defendants sentenced to decades of imprisonment for mostly nonviolent drug offenses, Prez Obama can and should retire to the golf course with some justified satisfaction that he has created a new clemency legacy over his final few years as Prez.

That said, a few basic numbers about the reality of federal drug prosecutions in the Obama era should temper any profound praise for Prez Obama here.  Specifically, Prez Obama was in charge from Jan 2009 to Aug 2010 when the old 100-1 crack/powder ratio was still in place.  During that period, using this US Sentencing Commission data as a guide, well over 5000 federal defendants were sentenced under the old crack laws while Prez Obama and his appointees were leading the Justice Department.  So, during just Prez Obama's first 1.5 years in office, federal prosecutors sent five times as many drug offenders to federal prison under the old crack laws than Prez Obama has now commuted.  Moreover, given that the Fair Sentencing Act of 2010 only reduced the crack/powder unfairness, it is worth also noting that over another 20,000 federal defendants have been prosecuted and sentence under still-disparate/unfair crack sentencing laws from Aug 2010 to Nov 2016 (though crack prosecutions, as this USSC data shows, have declined considerably from 2010 to 2015). 

I bring all this up because I will not consider Prez Obama to be a bold and courageous executive leader in the clemency arena unless and until he grants relief to more folks than just over-sentenced nonviolent drug offenders.  Helpfully, this new Wall Street Journal commentary authored by Charles Renfrew and James Reynolds provides some distinct clemency fodder for Prez Obama to consider.  The piece is headlined "Obama Should Pardon This Iowa Kosher-Food Executive: Prosecutors overstepped, interfered with the process of bankruptcy and then solicited false testimony."  Because I have been an advocate for a reduced sentence for Sholom Rubashkin, whose 27-year federal prison sentence has long seemed grossly unfair and unjustified to me, I will not here make the clemency case for him in particular.  But this WSJ commentary serves as a useful reminder that there are certainly hundreds — and likely thousands and perhaps tens of thousands — of federal prisoners currently serving excessive federal prison sentences who were involved in criminal activity other than nonviolent drug offenses.

Candidly, I am not optimistic that Prez Obama will use his last seven weeks to get out of the notable "clemency rut" of his Administration's own creation.  I say this because I surmise that (1) (1) everyone involved in the Obama Administration's clemency push has been focused almost exclusively on low-level drug prisoners sentenced to a decade or longer, and (2) even the limited group of low-level drug offenders being actively considered still presents tens of thousands of clemency petitions to review.  Meanwhile, I suspect and fear, reasonable clemency requests from thousands of other potentially worthy applications are seemingly being rejected out-of-hand or being left for the next Prez to deal with.

I hope Prez Obama proves me wrong in the next seven weeks by granting clemency to some other types of folks seeing executive relief (both in the form of commutations and pardons).  But on most criminal justice reform issues, Prez Obama has left me deeply disappointed a lot more than he has pleasantly surprised me.

November 28, 2016 in Clemency and Pardons, Drug Offense Sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

Saturday, November 26, 2016

Terrific content and context for Prez Obama's clemency work at Pardon Power

DebLong-time readers know that the blog Pardon Power is a must-read for anyone who cares about clemency policies and practices.  Of particular importance and value, P.S. Ruckman's work at  Pardon Power consistently provides needed theoretical and historical context for better understanding recent clemency activities rather than falling prey to the the modern media tendency to follow and obsess over the latest "shiny object" of clemency.  Great examples of why Pardon Power is a must-read these days as we move into the twilight of the Obama era are these recent posts of note over the holiday weekend:

Obama's 1,000th Commutation: Hold the Fireworks.

Obama Could (Should) Go EPIC.

Obama's Legacy: Institutional Change v. An "Example"

Turkey "Pardons." Why?

Obama: Breaking Records in a Broken System

Though I recommend highly all these posts, the last of the bunch has the most far-reaching and trenchant analysis. Here is how that piece starts and ends:

It seems more than likely that, before he leaves office, President Obama will break Woodrow Wilson's record for commutations of sentence.  It is, however, more than a little amazing (if not highly informative) to compare the use of federal executive clemency in the two administrations.

By the time he left the White House, Wilson had granted 1,087 presidential pardons (as well as 226 respites and 148 remissions). Obama, however, has granted a mere 70 pardons, the lowest number granted by any president serving at least one full term since John Adams.  It doesn't seem likely that Obama will pass out 1,000 plus pardons between now and the end of the term.  But there appears to be little concern about it on any front. So, it is what it is.

Consequently, clemency, for Obama, has meant — for the most part — commutations of sentence, almost exclusively for those convicted of drug offenses.  And these grants have — for the most part — been granted late in his second term.  Indeed, the Obama administration already features the largest 4th-year clemency surge of any administration in history....

The federal prison population has boomed since Wilson's day.  The Obama administration has been receiving record numbers of clemency applications, for years. On top of that, thousands remain in prison who were sentenced under drug laws which have been undone.  The merciless neglect of the current clemency system needs to tanked.  The process needs to be removed from career prosecutors in the DOJ who are unable / unwilling to process clemency applications in a timely fashion, with an eye toward mercy.  The broken system has famously lacked transparency (since 1932) and, today, it even exempts itself FOIA law.

It is time to create a permanent clemency board / commission (a device often used in the states) in the Executive Office of the President of the United States.  It is time for mercy to emerge once again as a regular feature of criminal justice.  It's not just about numbers.  It is about balance, fairness.  It is about rehabilitation and restoration.  It's about presidents using a power that was given to them ... to use ... not to abuse, or neglect.

November 26, 2016 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

Tuesday, November 22, 2016

Prez Obama grants 79 move commutations, taking his total over 1000 for his administration

Download (22)As reported in this new Washington Post article, headlined "Obama grants 79 more commutations to federal inmates, pushing the total past 1,000," the outgoing President has decided to make some clemency news before turning torward Turkey Day festivities. Here are the basics from the start of this article:

President Obama granted commutations to another 79 federal drug offenders Tuesday, pushing the number of inmates he has granted clemency past 1,000.

Obama’s historic number of commutations was announced as administration officials are moving quickly to rule on all the pending clemency applications from inmates before the end of the year. The Trump administration is not expected to keep in place Obama’s initiative to provide relief to nonviolent drug offenders.

“The President’s gracious act of mercy today with his latest round of commutations is encouraging,” said Brittany Byrd, a Texas attorney who has represented several inmates who have received clemency since Obama’s initiative began in 2014. “He is taking historic steps under his groundbreaking clemency initiative to show the power of mercy and belief in redemption. Three hundred and forty two men and women were set to die in prison. The President literally saved their lives.”

The White House and the Justice Department were criticized by sentencing reform advocates earlier this year for moving too slowly in granting commutations to inmates serving harsh sentences who met the criteria for clemency. The administration has greatly picked up the pace, but advocates still want them to move faster before time runs out.

“At the risk of sounding ungrateful, we say, “thanks, but please hurry,” said Kevin Ring, vice president of Families Against Mandatory Minimums. “We know there are thousands more who received outdated and excessive mandatory sentences and we think they all deserve to have their petitions considered before the president leaves office. Petitioners are starting to get anxious because they know the president is, in prison parlance, a short-timer.”

On a press call this afternoon (which is available here), Deputy Attorney General Sally Q. Yates delivered remarks that included these sentiments:

As of this morning, President Obama has granted clemency to over 1,000 men and women who were incarcerated under outdated sentencing laws.

The number 1,000 is significant, but it’s important to remember that this is more than a statistic. There are 1,000 lives behind that number, 1,000 people who had been sentenced under unnecessarily harsh and outdated sentencing laws that sent them to prison for 20, 30, 40 years, even life, for nonviolent drug offenses. It's part of my job to review the petitions for each of these individuals, and I've been struck by the common threads woven through many of them — lack of access to education or real economic opportunity, absence of parents, drug addiction, hopelessness.  But in these petitions I've also seen something else — remarkable introspection, a real sense of responsibility for their conduct, and a dogged determination not to repeat the mistakes of the past and to ensure that they, and especially their children, chart another path.

The President has given these 1,000 individuals that opportunity. And while we are a nation of laws, and those who violate those laws must be held accountable, we are also a nation of second chances.  The mission of the Justice Department not only supports but demands that we do everything in our power to ensure that our criminal justice system operates fairly. In this case, that means reducing disproportionate sentences imposed under out-of-date laws. And we are privileged to serve a President who has not only taken on this responsibility himself, but who has given us the chance to fulfill our core charge to seek justice....

And a lot of work has gone into the clemency initiative to get us to this historic announcement today. Since the initiative was announced in 2014, thousands of petitions have been submitted and reviewed by the hard working attorneys in the Office of the Pardon Attorney, my office, the Office of the Deputy Attorney General, and the White House to identify nonviolent drug offenders whose sentences would be significantly lower if they were sentenced today.  While we are proud of the progress we’ve made so far, as I have said before, our work is still not done.  We will continue to make recommendations on clemency applications until the end of the Administration, fulfilling the goals we set more than two and a half years ago when we launched the clemency initiative.

November 22, 2016 in Clemency and Pardons, Criminal justice in the Obama Administration, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5)

Tuesday, November 15, 2016

"Advocates Look To Obama For 'Unprecedented' Action On Federal Prison Sentences"

The title of this post is the headline of this astute new BuzzFeed News article that flags some issues and raises various questions that I have been thinking a lot about ever since last Wednesday around 2am. Here are highlights:

In recent months, President Obama has stepped up the pace of federal clemency — issuing three large batches of commutations in the month before the presidential election. The White House has regularly pushed those numbers as evidence that Obama has done more than his predecessors to address unfairness he has criticized in criminal sentencing.

But now that he is due to be replaced by Donald Trump, who ran in part by saying he would be a “law and order” president, leading advocates of the clemency process say it is the time for Obama to step up and do more. “[I]f President Obama believes these sentences are unjust, it is his constitutional responsibility to fix them,” Rachel Barkow, a member of the United States Sentencing Commission and NYU law professor, told BuzzFeed News this week....

To that end, the group, co-founded by Van Jones, will be in Washington this week, holding a series of events — including a vigil in front of the White House on Monday evening — urging Obama to take “unprecedented” action on clemency in the coming months.

Mark Osler, a law professor at the University of St. Thomas School of Law, acknowledged that time is short. “I think there will be — and should be — a sense of urgency,” he said on Friday. “I think the clearest thing is to find efficiencies — find ways to look at more people over these last weeks in a way that’s consistent and effective, in terms of evaluation. And that means, probably, looking at categories of people and identifying them specifically.”

Specifically, he pointed to “people who did not get the benefit of the Fair Sentencing Act in 2010” — which addressed cocaine-to-crack sentencing disparities in federal law, but was not retroactive. As such, Osler explained, many people “were stuck with a life sentence or the 10-year mandatory [minimum]” who could not receive that sentence today....

There has, though, been an election — one that likely will reflect at least somewhat different values on criminal justice issues, Osler acknowledged. “It’s fair to say that those people within this administration are very aware that the amount of care that they give to criminal law — and the excesses of criminal law — probably won’t be reflected in the next administration,” he said. Nonetheless, Osler said that Obama’s two elections more than suffice as a rationale for why Obama should continue pressing forward with the Clemency Project in his final months in office. “He’s the elected president until January 20, 2017,” he said. “I don’t think you sit back and don’t make full use of every day that you have.”

Barkow put it in similarly broad terms — but with a historical context. “Clemency is critical to an effective federal criminal justice system,” Barkow noted, pointing out that Alexander Hamilton wrote in The Federal Papers about the important role clemency plays in the American system. “The President has only a couple months to reach everyone. The fate of these people and their loved ones rests in his hands, and one of his lasting legacies can be to reaffirm Hamilton’s view that both ‘humanity and good policy’ require the broad use of the pardon power.”

In addition to my adoration for Rachel Barkow's always-timely Hamilton reference (and how it made me think of one of my favorite songs), I especially like Mark Osler's discussion of both the challenges and justifications for Prez Obama going bold on clemency over the next two months. For reasons I have explained in this Veterans Day post, I would especially love to see Prez Obama go bold in granting clemency for any and all veterans serving distinctly long federal sentences or still burdened by a federal conviction long after any public safety rationales for continued punishment have been extinguished.

Sing along with me Prez Obama and fellow clemency fans (with apologies to Lin-Manuel Miranda):

Prez Washington:

I wanna talk about [clemency righting]
I want to warn against partisan fighting
Pick up a pen, start writing
I wanna talk about what I have learned
The hard-won wisdom I have earned...
The people will hear from me
One last time
And if we get this right
We’re gonna teach ‘em how to say Goodbye
You and I—

Sec. Hamilton:

Mr. President, they will say you’re weak

Prez Washington:

No, they will see we’re strong

Sec. Hamilton:

Your position is so unique

Prez Washington:

So I’ll use it to move them along

Sec. Hamilton:

Why do you have to say goodbye?

Prez Washington:

If I say goodbye, the nation learns to move on
It outlives me when I’m gone
Like the scripture says:
“Everyone shall sit under their own vine and fig tree
And no one shall make them afraid.”
They’ll be safe in the nation we’ve made
I wanna sit under my own vine and fig tree
A moment alone in the shade
At home in this nation we’ve made
One last time

November 15, 2016 in Clemency and Pardons, Criminal justice in the Obama Administration, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Friday, November 11, 2016

How many veterans are among Prez Obama's 944 federal prison commutations? How many more veterans are clemency worthy?

Veterans-day-20131The question in the title of this post are inspired by today's national holiday, Veterans Day.  Here are some general data thoughts/realities as part of an effort to try to answer these questions:

1.  According to these latest BJS statistics, we can reasonably estimate that at least 5% of the current federal prison population are veterans.  The BJS report starts by noting that "In 2011–12, an estimated 181,500 veterans (8% of all inmates in state and federal prison and local jail excluding military-operated facilities) were serving time in correctional facilities."  But a variety of demographic realities would suggest that veterans are probably underrepresented among the types of prisoners serving time in federal prison. 

2. So, to answer my first question based on this working estimate of at least 5%, we should expect that nearly 50 of the 944 federal prisoner commutations by Prez Obama have been to veterans.  But this is really a statistical guess because there could be direct or indirect reasons why veteran status made a candidate more likely to garner Prez Obama's attention or why the pool of long-sentenced drug offenders now only getting clemency these days are less likely to include veterans. 

3. And, to answer my second question based on this working estimate of at least 5%, we should expect that nearly 10,000 veterans make up of current federal Bureau of Prisons population which totals over 191,000.  If we were to entertain the supposition that only 1 out of every 100 current veteran federal prisoners are likely to be good candidates for clemency, that would still mean 100 current federal prisoners would now be commutation-worthy.  (And, if we want to think about all veterans with a federal conviction who might seek or merit a pardon, there could well be thousands of good veteran clemency candidate worth thinking about on this Veterans Day.)  

Though the day is still young, I am not expecting that Prez Obama will celebrate his last Veterans Day in the Oval Office by making a special effort to grant commutations or pardons to a special list of veterans.  But Prez-Elect Trump, who made taking care of the vets a consistent campaign theme, perhaps might be encouraged by sentencing reform advocates to plan to celebrate his future Veterans Days in the Oval Office by looking to use his clemency powers in this kind of special and distinctive way.  After all, a key slogan for this day is to "honor ALL who served," not just those who stayed out of trouble after serving.

Some very old prior related posts: 

November 11, 2016 in Clemency and Pardons, Criminal justice in the Obama Administration, Criminal justice in the Trump Administration, Offender Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Thursday, November 10, 2016

"Revitalizing the Clemency Process"

The title of this post is the title of this recent lengthy article authored by Paul Larkin which is available via SSRN (and which I hope someone can now put on the required reading list for the Trump transition team).  Here is the abstract:

St. Anselm once asked how a perfectly just God could also be merciful, since perfect justice and almighty grace could not seemingly coexist.  Fortunately, the criminal justice system does not need to answer that question, one that has proven inscrutable for theologians and philosophers, because its assumptions do not apply to our system.  An earthly judicial system will never be able to administer justice perfectly and cannot disburse mercy even approaching the quality of the divine.  But the clemency power can try to achieve as much of an accommodation between those two goals as any human institution can.  Unfortunately, however, our recent span of presidents, attuned more to political than humanitarian considerations and fearing the electoral wrath of the voters for mistaken judgments, have largely abandoned their ability to grant clemency in order to husband their political capital for pedestrian undertakings.  Far worse, others have succumbed to the dark side of “the Force,” have used their power shamefully, and have left a stain on clemency that we have yet to remove.

We now have reached a point where that taint can be eliminated.  There is a consensus that the clemency process can and should be reformed.  The problem lies not in the power itself, but in the process by which cases are brought to the President for his review and maybe in the people we have elected to make those decisions.  The Office of the Pardon Attorney should be transferred from the Department of Justice to the Executive Office of the President, and the President should select someone to fill that position.  That revision to the clemency process should help us see a return of the necessary role that clemency can play in a system that strives to be both just and merciful.

November 10, 2016 in Clemency and Pardons, Criminal justice in the Obama Administration, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8)

Friday, November 04, 2016

Another week and another big batch of clemencies from Prez Obama

As this new USA Today article highlights, "President Obama's decision to grant 72 more commutations Friday — just before getting on Air Force One for a two-city campaign tour of North Carolina — shows how far he's gone in his efforts to "reinvigorate" the pardon process." Here is more:

Just a year ago, it might have been unthinkable for a president to use his constitutional power to shorten sentences so close to an election, regardless of who's on the ballot. "Commutations a week before an election? That's a wow factor of 10!" said P.S. Ruckman Jr., a political scientist who has studied, among other things, the timing of presidential clemency.

Obama has now granted 170 commutations in just the past eight days, bringing the total for his presidency to 944. It's the largest number of commutations in any single year in history, and represents an exceptional "surge" in the president's clemency power in his last year.

"What President Obama has done for commutations is unprecedented in the modern era." White House Counsel Neil Eggleston said in a statement. "The president is committed to reinvigorating the clemency authority, demonstrating that our nation is a nation of second chances, where mistakes from the past will not deprive deserving individuals of the opportunity to rejoin society and contribute to their families and communities."

Most of Obama's pardons have been through his clemency initiative, which seeks to reduce the long mandatory-minimum sentences meted out under sentencing guidelines from the late 1980s through the 2000s....

The frequency with which Obama is now granting commutations has encouraged some advocates who had been urging the president to "vastly increase the pace" of the effort. "The Obama administration has said it was committed to ever more grants, and it seems quite clear that the president’s actions are matching his words," said Cynthia Roseberry, the manager for Clemency Project 2014, a coalition of lawyers working on commutation cases to present to the president....

Of the 72 commutations granted Friday, 17 were for inmates serving life sentences.

November 4, 2016 in Clemency and Pardons, Criminal justice in the Obama Administration, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5)

Thursday, November 03, 2016

"A Proposal to Restructure the Clemency Process — The Vice President as Head of a White House Clemency Office"

The title of this post is the title of this interesting new essay authored by Paul Larkin and now available via SSRN. Here is the abstract:

The need for reconsideration of the federal clemency process is a real one, and there is a consensus that the Justice Department should no longer play its traditional doorkeeper role. Using the vice president as the new chief presidential clemency adviser offers the president several unique benefits that no other individual can supply without having enjoyed a prior close personal relationship with the chief executive.

Whoever is sworn into office at noon on January 20, 2017, as the nation’s 45th President should seriously consider using as his principal clemency adviser the person who was sworn into the vice presidency immediately beforehand. The president, clemency applicants, and the public might just benefit from that new arrangement.

November 3, 2016 in Clemency and Pardons, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)