Sentencing Law and Policy

Judge Walton expresses concerns about commutation for Scooter Libby

Reminding me of an issue that I wish would get a lot more play on the campaign trail, this article from the Milwaukee Journal-Sentinel makes clear than not everyone has forgotten the special sentencing justice that Scooter Libby received last summer.  The article is headlined, "Libby judge says Bush sent wrong signal: Walton worries about perception of inequality in justice," and here is how it starts:

When President Bush erased the prison term of I. Lewis "Scooter" Libby, he reinforced some Americans' perception that status can affect justice, according to the judge who sentenced Libby.

In commuting the 2 1/2 -year prison term of Vice President Dick Cheney's former chief of staff, Bush called U.S. District Judge Reggie B. Walton's sentence excessive, given Libby's "exceptional public service" and lack of criminal history.

Walton, whom Bush nominated to the District of Columbia bench, acknowledged Tuesday that Bush's decision was part of the system, but he also said it fed some people's notion that justice isn't equal.  "The president has that authority and exercised it, and that has to be respected," said Walton, who is to speak Thursday in Milwaukee at a literacy event. "The downside is there are a lot of people in America who think that justice is determined to a large degree by who you are and that what you have plays a large role in what kind of justice you receive. . . . It is crucial that the American public respect the rule of law, or people won't follow it."

Some related posts:

• Bush's reasons for Libby's commutation ... will others now see similar compassion from Bush and his Justice Department?
• Reflections on "Bush the merciful"
• Scooter Libby drops appeal ... is a holiday pardon on the way?
• Few giving the President sentencing thanks
• The sad (unpardonable) state of compassion in the Bush Administration
• Editorial on presidential pardon practices
• Pardon politics and the 2008 campaign
• ACS issue brief on the pardon power
• Latest FSR issue on "Learning from Libby"

A new batch of uneventful pardons from President Bush

As detailed in this AP story, "President Bush pardoned 15 people Tuesday and commuted the prison sentence of another."  Here's more from the AP account (which also includes a list of those pardonees): 

Bush has been stingy about handing out such reprieves. With about nine months left in his administration, he has granted 157 pardons. That's less than half as many as Presidents Clinton or Reagan issued during their time in office. Both were two-term presidents.  Most of those on Bush's most recent pardon list were convicted of white-collar or drug offenses.

One name notably absent from the list was star pitcher Roger Clemens. The FBI is investigating whether Clemens lied to Congress about steroid use. An attorney for his trainer has predicted Clemens will be pardoned because of his friendship with the Bush family.

I suspect the Pardon Power blog will have some comments on this latest batch of pardons before long.

Federal prisoner provides clemency test for a compassionate conservative

This AP story provides the latest news on the heart-wrenching story of the Yeagers first discussed here.  Here are the details:

A federal inmate is asking President Bush for clemency so he can be with his daughter, who's dying of brain cancer in Lincoln.  Jason Yaeger is in a federal prison in Yankton, South Dakota, serving four years on methamphetamine charges. He's scheduled to be released next year.

But that may be too late for 10-year-old Jayci, who is too weak to respond when her father talks to her on the phone. Yaeger says he's not trying to get out of his sentence. He says the request for clemency is a last resort after the warden refused to move him to a Council Bluffs halfway house, as well as Yaeger's request for a furlough.

He's also filed a court injunction, asking for an immediate transfer to the halfway house, where he's scheduled to be transfered in August.

Might the ugly Clinton pardons start getting some campaign traction?

As I have noted previously, P.S. Ruckman over at Pardon Power is doing a great job keeping track of how the Bill Clinton's ugly clemency record could be a big issue in Senator Clinton's presidential campaign.  Here are some notable recent posts on this topic:

• Campaign 08: Pardons for Clinton Library Money?
• Campaign 08: Pardon the Vetting, Mrs. Clinton
• Comment: Defending FALN Pardons?!

The first post linked above discusses this new USA Today article, headlined "Archivists block release of Clinton papers."  Here are excerpts from this lengthy article:

Federal archivists at the Clinton Presidential Library are blocking the release of hundreds of pages of White House papers on pardons that the former president approved, including clemency for fugitive commodities trader Marc Rich.  The archivists' decision, based on guidance provided by Bill Clinton that restricts the disclosure of advice he received from aides, prevents public scrutiny of documents that would shed light on how he decided which pardons to approve from among hundreds of requests....

The decision to withhold the records could provide fodder for critics who say that the former president and his wife, Sen. Hillary Rodham Clinton, now seeking the Democratic presidential nomination, have been unwilling to fully release documents to public scrutiny.  Officials with the presidential campaign of Sen. Barack Obama, D-Ill., criticized Hillary Clinton this week for not doing more to see that records from her husband's administration are made public....

In January 2006, USA TODAY requested documents about the pardons under the Freedom of Information Act (FOIA). The library made 4,000 pages available this week. However, 1,500 pages were either partially redacted or withheld entirely, including 300 pages covering internal White House communications on pardon decisions, such as memos to and from the president, and reports on which pardon requests the Justice Department opposed....

Former president Clinton issued 140 pardons on his last day in office, including several to controversial figures, such as commodities trader Rich, then a fugitive on tax evasion charges. Rich's ex-wife, Denise, contributed $2,000 in 1999 to Hillary Clinton's Senate campaign; $5,000 to a related political action committee; and $450,000 to a fund set up to build the Clinton library.

The president also pardoned two men who each paid Sen. Clinton's brother, Hugh Rodham, about $200,000 to lobby the White House for pardons — one for a drug conviction and one for mail fraud and perjury convictions, according to a 2002 report by the House committee on government reform.

More remembering of the Clinton pardon ugliness

Thanks to this post at Pardon Power, I see another commentary today recalling the pardon scandal that Bill Clinton created his last day as president.  Though this op-ed, titled "Remembering and then forgetting the Clintons," covers a range of issues, and these excerpts highlight the pardon story:

Before Bill and Hillary jetted to their new New York home following George W. Bush's inauguration, he told supporters and former administration officials at a crowded Andrews Air Force Base hangar, "We are not going anywhere!"... The thought at the time was that he who would be free of the White House's trappings and scandals and could help propel the Democrats back to power as the majority party in Congress. 

But, when presented with a fresh start, Clinton made no use of it.  The same clouds of scandal and controversy, which cast shadows over HIS entire presidency set in at the beginning of his post-presidency.  Clinton garnered unwanted publicity for a greedy duo of mini-scandals first, by lifting several thousands of dollars of White House furniture and his pursuance of a high-priced office in a palatial New York City high-rise. 

Then there was his pardon of fugitive-financier Marc Rich, who had been on the run for evading millions of dollars in taxes and doing business with the Iranian government while it held American hostages? There was an indissoluble link between the pardon and the millions of dollars given to the Clintons by Rich's ex-wife, Denise, through campaign contributions, donations to the presidential library and even personal gifts. Despite his assurances at the time to the contrary, the pardon had all the appearances of a quid pro quo.  Clinton was on his own, calling friendly reporters and opinion-makers trying to explain his pardon.

Democrats, who had defended all of Clinton's intolerable actions in office, openly castigated the former president. Daily, Democratic members of Congress made the rounds on the 24-hour cable news channels to express their disgust for Clintons' departing actions.  Even The New York Times reported at the time that the Clinton/Rich scandal had a dramatic impact on the Democratic Party's fund-raising efforts. Various donors, who were being hit up at the time for campaign cash, cited the "cash for pardons" scandal as a key factor in their decision not to give.

Shortly after he left office Democrats just wanted Clinton to go away, because — they'd had enough.  Just last week, Hillary all but guaranteed that her husband wouldn't be the source of scandal in her White House if she was elected president. How could she be so confident?  She can't control him when he's out on the campaign trail.

Some recent related posts:

• When will the various Clinton clemency scandals become a campaign issue?
• "McNamee's Lawyer Predicts Clemens Pardon"
• The sad (unpardonable) state of compassion in the Bush Administration
• Will the new US Pardon Attorney "scandal" garner any serious attention?
• Editorial on presidential pardon practices
• Pardon politics and the 2008 campaign

When will the various Clinton clemency scandals become a campaign issue?

The suggestion of a posible presidential pardon for Roger Clemens (basics here) has yet again caused justice, politics and clemency power to come into focus in a high-profile setting.  However, this long opinion piece from yesterday's Wall Street Journal, titled "The Clintons' Terror Pardons," has me wondering why the many ugly stories surrounding Bill Clinton's troublesome clemency record has not (yet) become a big campaign issue.  Here are snippets from the opinion piece, which is quite potent:

While the pardon scandals that marked Bill and Hillary Clinton's final days in office are remembered as transactions involving cronies, criminals and campaign contributors, the FALN clemencies of 1999 should be remembered in the context of the increasing threat of domestic and transnational terrorism that was ramping up during the Clinton years of alleged peace and prosperity....

It was within that context that the FBI gave its position on the FALN clemencies -- which the White House succeeded in keeping out of news coverage but ultimately failed to suppress -- stating that "the release of these individuals will psychologically and operationally enhance the ongoing violent and criminal activities of terrorist groups, not only in Puerto Rico, but throughout the world."  The White House spun the clemencies as a sign of the president's universal commitment to "peace and reconciliation" just one year after Osama bin Laden told his followers that the United States is a "paper tiger" that can be attacked with impunity.

It would be a mistake to dismiss as "old news" the story of how and why these terrorists were released in light of the fact that it took place during the precise period when Bill Clinton now claims he was avidly engaged, even "obsessed," with efforts to protect the public from clandestine terrorist attacks. If Bill and Hillary Clinton were willing to pander to the demands of local Hispanic politicians and leftist human-rights activists defending bomb-makers convicted of seditious conspiracy, how might they stand up to pressure from other interest groups working in less obvious ways against U.S. interests in a post-9/11 world?...

The FALN clemencies provide a disturbing example of how the abuse or misuse of presidential prerogative, under the guise of policy, can be put in service of the personal and private activities of the president's spouse -- and beyond the reach of meaningful congressional oversight.

"McNamee's Lawyer Predicts Clemens Pardon"

This AP story has the same headline as this post.  Here are the details of another example of everything coming back to sentencing and politics:

One of Brian McNamee's lawyers predicted that Roger Clemens will be pardoned by President Bush, saying some Republicans treated his client harshly because of the pitcher's friendship with the Bush family.  Lawyer Richard Emery made the claims Thursday, a day after a congressional hearing broke down along party lines.

Many Democrats were skeptical of Clemens' denials that he used performance-enhancing drugs and Republicans questioned the character of McNamee, the personal trainer who made the accusations against the seven-time Cy Young Award winner.  "It would be the easiest thing in the world for George W. Bush given the corrupt proclivities of his administration to say Roger Clemens is an American hero, Roger Clemens helped children," Emery said in a telephone interview. "It's my belief they have some reason to believe they can get a pardon."

During Wednesday's session before the House Committee on Oversight and Government Reform, Clemens repeated his denials under oath, which could lead to criminal charges if federal prosecutors conclude he made false statements or obstructed Congress. 

Emery cited Bush's decision last year to commute the 2 1/2-year prison sentence of I. Lewis "Scooter" Libby, his vice president's former top aide. Libby was convicted in the case of the leaked identity of a CIA operative.  During the hearing, Clemens cited his friendship with Bush's father, President George H.W. Bush, a baseball fan who regularly attends Houston Astros' games. Clemens said he was on a recent hunting trip when the elder Bush called with words of support. "They have some belief that even if he's prosecuted, he will never have to serve jail time or face a trail," Emery said. "This is a charade we're going through."

IRS Special Agent Jeff Novitzky attended the hearing and watched from the second row. Novitzky has been a part of the BALCO prosecution team that secured an indictment against Barry Bonds on charges of perjury and obstruction of justice. Bonds testified before a grand jury in 2003 and denied that he knowingly used performance-enhancing drugs.  Emery praised Clemens' lawyers, Rusty Hardin and Lanny Breuer, as knowledgeable and said the prospect of a pardon was the only explanation that allowed the pitcher to repeat his denials under oath.  "It's the only reason lawyers worth their salt would allow their client to run into the buzzsaw of Jeff Novitzky and the potential prosecution, tampering and lying to a federal official," Emery said.

Some recent related posts:

• Should Roger Clemens now be indicted for perjury?
• The sad (unpardonable) state of compassion in the Bush Administration
• Will the new US Pardon Attorney "scandal" garner any serious attention?
• Editorial on presidential pardon practices
• Pardon politics and the 2008 campaign
• ACS issue brief on the pardon power
• Latest FSR issue on "Learning from Libby"

Editorial on presidential pardon practices

This editorial in today's San Francisco Chronicle, titled "Bush fumbles on pardons," keeps the spotlight on the recent ugly news from the US Pardon Attorney's Office.  Here are snippets:

President Bush always has had a reputation for being tight in his exercise of the presidential pardon.  Oddly, the pardon is the one area in which his power is absolute — a president essentially can pardon or commute the sentence of any felon for any reason — yet this is the rare executive power Bush has chosen to underutilize.  So much for his compassionate conservatism.

Last Monday, a New York Times opinion piece written by George Lardner, an associate at the Center for the Study of the Presidency, reported that Roger Adams, the Department of Justice Pardon Attorney under President Clinton and Bush, had been transferred to a new DOJ position.  The transfer followed a December 2007 Inspector General's audit that found that Adams had acted improperly when he described a drug convict seeking a pardon as "about as honest as you could expect from a Nigerian."

It remains unclear whether Adams is a major factor behind the meager number of pardons issued by Bush, who has issued a stingy 142 pardons and — even stingier — a mere five sentence commutations since assuming office in 2001.  Ultimately, the responsibility lies with a president who has shown no interest in freeing offenders convicted of often draconian federal mandatory-minimum sentences — unless the offender is the convicted lying and justice-obstructing former White House aide, Lewis "Scooter" Libby.

It's true that Bill Clinton tarnished the pardon process by issuing 140 last-minute pardons without proper review — to such unworthies as billionaire fugitive Marc Rich, who was hiding in Switzerland following a 51-count, 1983 indictment for tax evasion, racketeering and illegal trading.  Bush has erred in freeing few prisoners despite the record number of felons in federal prison....

In his last year in office, George W. Bush has an opportunity to show Americans outside his narrow voter base that he believes his rhetoric and wants to help all American families....  [Hundreds of] Americans are serving excessive sentences for low-level crimes.  The mercy that freed Libby is beyond their reach, and that is wrong.

Some recent related posts:

• The sad (unpardonable) state of compassion in the Bush Administration
• More detail on the US Pardon Attorney scandal
• Will the new US Pardon Attorney "scandal" garner any serious attention?
• Should never granting a pardon be a point of political pride?
• Pardon politics and the 2008 campaign
• ACS issue brief on the pardon power
• Latest FSR issue on "Learning from Libby"

UPDATE:  Writing here at his blog Pardon Power, P.S. Ruckman justifiably and forcefully criticizes this Chronicle editorial for not criticizing the Clinton Administration more for its poor pardon record.  Here are excerpts:

Marc Rich?  Are you kidding me?  You are writing an editorial on the pardon power, non-violent drug offenders and the Clinton administration and you mention Marc Rich?  Why not mention that fact that Clinton — like Bush — also "freed few prisoners despite the record number of felons in federal prison" (see this CJCJ article on Clinton's "prison legacy") and — even worse — pardoned his own half-brother (Roger Clinton), who was convicted on drug related charges?!...

[W]hat is worse?  Bill Clinton publicly asserting these supposed beliefs about the severity of federal sentencing and then doing nothing about it?  Or, President Bush not doing as much as the Chronicle would have him do?... Shame on Mr. Clinton.  Shame on Mr. Clinton's brother. Shame on Hillary Clinton's brother.  Thank goodness Mrs. Clinton was completely unaware of everything all the while!

Meanwhile, just forget about Marc Rich, Chronicle.  He was nothing!

Providing a positive spin on the pardon attorney scandal

Former US Pardon Attorney Margaret Colgate Love sent me this e-mail which suggests good might come from the latest disturbing news from the US Pardon Attorney's Office:

It occurred to me that the ugly situation in the Pardon Attorney's Office, as reported in the New York Times op-ed piece by George Lardner and in Tuesday's AP piece, has at least one silver lining: It offers an opportunity to restore the Justice Department's pardon program to its historical role as the source of fair and impartial advice about clemency cases.  That act would be the most valuable pardon legacy any president has left for three decades, and it would more than redeem President Bush's otherwise undistinguished pardoning record.

Since the late 1970's, when Jimmy Carter's attorney general Griffin Bell delegated responsibility for making clemency recommendations to the chief operating officer of the Justice Department, the pardon program has lost whatever independence and integrity it once enjoyed within the Department. In recent years, it has functioned primarily to ratify the results achieved by prosecutors, not to provide any real possibility of revising them. As a result, it has lost its capacity to serve and protect the presidency -- as demonstrated by the fiasco at the end of the Clinton admnistration. Now, in selecting a new pardon attorney, the attorney general has an opportunity to consider whether the present administrative arrangement is a desirable one. More particularly, he can decide whether to maintain the office's subservience to the prosecutorial agenda, or to appoint a person genuinely willing and able to do what the 1887 report to Congress, quoted by Lardner, proposed: "to accord to the convict all that he may be fairly entitled to have said in his favor."  Whatever the outcome of the selection process, the exercise itself should give rise to a much-needed discussion of the role of pardon in today's justice system.

Some recent related posts:

• The sad (unpardonable) state of compassion in the Bush Administration
• More detail on the US Pardon Attorney scandal
• Will the new US Pardon Attorney "scandal" garner any serious attention?
• Should never granting a pardon be a point of political pride?
• Pardon politics and the 2008 campaign
• ACS issue brief on the pardon power
• Latest FSR issue on "Learning from Libby"

More detail on the US Pardon Attorney scandal

This new AP story, headlined "Pardon Attorney Moved After Racism Claim," provides more details on the ugliness in the Office of the US Pardon Attorney.  Here are excerpts:

The Justice Department attorney responsible for recommending presidential pardons has been transferred out of his office following accusations of mismanagement and racism.

Roger Adams, who served as the government's pardon attorney for over a decade, told internal Justice Department investigators he probably has "some faults, but racial prejudice is not one of them."  But the department's inspector general concluded otherwise, finding that Adams acted improperly in describing a drug convict applying for a pardon as "about as honest as you could expect for a Nigerian." "Unfortunately, that's not very honest," Adams allegedly told a co-worker, according to the inspector general's December 2007 report.

The inspector general's office said it did not find reason to doubt the accuracy of the statement after its own interview with Adams. "We believe that Adams' comments — and his use of nationality in the decision-making process — were inappropriate," the report concluded.  "We were extremely troubled by Adams' belief that an applicant's 'ethnic background' was something that should be an 'important consideration' in a pardon decision."

The investigation also concluded that Adams threatened to transfer or otherwise retaliate against staffers who complained about his management style to the inspector general, which is the Justice Department's internal watchdog.... Adams recently left his post as pardon attorney voluntarily and now works in the general counsel's office at the Justice Department's management division, agency spokesman Erik Ablin said Tuesday in a statement....

The inspector general's report describes a poisonous work environment — apparently felt by both Adams and his staff — in the pardon attorney's office.  The heavily edited report was spurred by complaints in June 2007 from unnamed Justice employees, some of whom apparently kept notes over the years detailing conversations they had with Adams.

It should not be overlooked — indeed, I think it should be stressed — that Adams became the US Pardon Attorney during the Clinton Administration and was serving in this role at the time of President Bill Clinton's troublesome set of last day pardons.  Reports were that President Clinton completely circumvented the Pardon Office when issuing his last-day pardons, though I suspect the subsequent brouhaha over the Clinton pardons surely impacted the environment and day-to-day work of that office even as the White House changed hands.

Some recent related posts:

• The sad (unpardonable) state of compassion in the Bush Administration
• Will the new US Pardon Attorney "scandal" garner any serious attention?
• Should never granting a pardon be a point of political pride?
• Pardon politics and the 2008 campaign
• ACS issue brief on the pardon power
• Bush's reasons for Libby's commutation ... will others now see similar compassion from Bush and his Justice Department?
• Reflections on "Bush the merciful"
• Few giving the President sentencing thanks

Will the new US Pardon Attorney "scandal" garner any serious attention?

As I had predicted and feared, buzz about Super Tuesday has totally eclipsed the new story suggesting scandalous behavious by the now-resigned former US Pardon Attorney Roger Adams.  Fortunately, FAMM is unlikely to let this story go away without a bit more attention, as evidenced by this new FAMM press release.  Here are excerpts:

Today, FAMM calls on Congress to immediately investigate the breakdown at the Office of the Pardon Attorney and ask Attorney General Michael Mukasey how he intends to fix it.... [George] Lardner’s piece [in the New York Times] was triggered by a report produced at the end of a seven-month investigation by the Justice Department’s inspector general regarding alleged mismanagement.  Lardner’s piece described the pardon office as being in complete disarray.  According to the pardon attorney’s official reports, there is a backlog of 2,501 clemency petitions still “pending” in the bureaucratic mill as of January 1, 2008.

This is a tragedy because many prisoners seeking clemency are serving truly excessive sentences that benefit no one.  For example:

• Barbara Scrivner has served over 12 years of a 30-year sentence. She played a minor, addiction-driven role in her husband’s methamphetamine ring. In prison, she has beaten her drug addiction, is earning a bachelor’s degree from a Christian college, and counsels young people on the dangers of drug abuse. Meanwhile, her own teenage daughter is growing up without a mother.
• Marty Sax is a decorated Vietnam veteran and first-time, nonviolent offender. He has served almost 15 years of a 20-year sentence for his part in a marijuana conspiracy. He has been a model prisoner. Even the judge who sentenced him, the FBI agent, and an attorney who helped prosecute Marty agree that he has served too much time.

“All Americans—even those in prison—are entitled to a government that takes them seriously and responds to their needs,” says [FAMM's Molly] Gill. “The Office of the Pardon Attorney is not doing this, and all of us should be asking why.”

Not suprisingly, P.S. Ruckman at his blog Pardon Power has a distinct take on the Lardiner piece, which concludes with these astute insights:

[T]here has never been a single reason in the world for anyone anywhere to think George W. Bush would be anything but extremely stingy with pardons.  His administration came on the heels of a first-class clemency controversy (Clinton).  Bush is a Republican and a former governor. As a governor, he set records for stinginess with pardons and knew what it was like to experience sharp criticism for use of the clemency power....

Bush may or may not grant a "big bunch" of pardons before he leaves. But, if he does, he certainly wouldn't be the first President to do so. That would be George Washington.  And, if he (Bush) does grant a few, just how many would constitute a "bunch" will be entirely debatable.  The only thing that seems clear to me is that Bush is in something like a no-win situation with his critics.  And the expectations and calls for reform of the clemency process have been much greater during his administration than they ever were during the administration of Bill Clinton.  In my mind, that says something in and of itself.

The sad (unpardonable) state of compassion in the Bush Administration

Writing in today's New York Times, George Lardner has this potent op-ed headlined "Begging Bush's Pardon." Here are a few excerpts from a piece that deserves a full read and lots of attention even while other political matters are making bigger headlines:

The first rule for handling requests for presidential pardons was set down in a report to Congress in 1887, during Grover Cleveland’s first term in office.  It said they were to be sent to the attorney general’s “pardon clerk” for “his prompt and appropriate attention.”

Just as important, according to the report, was that the petitioners were to be given a fair shake.  They were almost always convicted criminals, but that didn’t mean they were all guilty as charged or deserving of the harsh punishments that had been inflicted on them. And so, the pardon attorney in those days was under instructions to “accord to the convict all that he may be fairly entitled to have said in his favor.”  The attorney general, thus provided with “an impartial representation” of the case, was to tell the president what he thought should be done.

Today’s Justice Department seems to have nothing but contempt for those principles.  The Bush White House has seemingly never heard of them.  Thousands of petitioners for clemency have been waiting for years for a ruling, some since before Bill Clinton left office.  Thousands of others have been rejected out of hand, largely because preparing a fair report of what might be said in their favor would take too much time and cost too much money....

The sorry state of the system became apparent last month with the abrupt resignation of the pardon attorney, Roger Adams....  His departure came on the heels of a seven-month investigation of alleged mismanagement by the Justice Department’s inspector general. While Mr. Adams has disputed the findings, a heavily censored report of the investigation, provided to me on Friday under the Freedom of Information Act, found that he made “highly inappropriate” racial remarks concerning a Nigerian petitioner and threatened retaliation against employees who dared complain about other aspects of his work....

Being over-free with pardons has hardly been George W. Bush’s problem. He has granted only 142 pardons, four commutations and one remission (to I. Lewis Libby Jr., the former White House aide) since taking office seven years ago.  President Bush has denied more than 40 requests for every one granted. (President Clinton, by comparison, granted one in seven requests.)...

Oddly, it seems that the White House, in fact, wanted to say yes more often. In early 2006, several Justice Department officials insist, Harriet Miers explicitly asked the pardon attorney for more recommendations that the White House could act on favorably. Mr. Adams, according to one official present at the meeting, replied that he would need a bigger staff to handle the workload. Favorable reports do take more time, requiring F.B.I. background reports, the views of prosecutors and judges if willing to give them, and other opinions like those of prison officials.  Typically, it takes a year to 18 months at best before a positive recommendation can be sent to the White House.  Denials, however, are almost automatic if that is what the Justice Department recommends.

Still, Mr. Adams’s talk of a need for more help rings somewhat hollow. He usually had a staff of six lawyers including himself to handle pardon requests. In the late 1980s, by contrast, the pardon attorney had three lawyers besides himself to process petitions and, under President Ronald Reagan, they saw 406 requests granted, almost three times as many as the current administration. Despite the supposed constitutional restraints on the president’s war-making and lawmaking powers, widely skirted in recent years, his authority to grant pardons is complete, except in cases of impeachment.

But it looks as if it will take a new president devoted to addressing cases of what Alexander Hamilton called “unfortunate guilt” to restore it to its original vigor. Pending appointment of a permanent replacement, the acting pardon attorney is Helen Bollwerk, a former federal prosecutor who has been Mr. Adams’s deputy the last two years. Ms. Bollwerk is not likely to preside over a renaissance. She arrived in the pardons office with a duplicate of a Monopoly “Get Out of Jail” card that had a red-circle-and-slash “no” symbol over it. It’s said that this was a gag her fellow workers in the United States attorney’s office had given her, but there are thousands of pardon petitioners who aren’t laughing.

As regular readers know, I have done lots and lots of posts on the pardon power, on the Libby commutation, on the Bush record and on pardons and the 2008 campaign.  Here is an abridged list of some of these prior posts:

On the pardon power and modern politics:

• Should never granting a pardon be a point of political pride?
• Pardon politics and the 2008 campaign
• ACS issue brief on the pardon power
• Bipartisan call for commuting border agent sentences
• Another bipartisan call for President Bush to commute border agent sentences
• Latest FSR issue on "Learning from Libby"
• Presidential pot to kettle: "your clemency decision is so black"
• Clemency and Pardons category index

On the Bush clemency record:

• Bush's reasons for Libby's commutation ... will others now see similar compassion from Bush and his Justice Department?
• Reflections on "Bush the merciful"
• Few giving the President sentencing thanks
• A new batch of Bush pardons and a crack commutation
• Shouldn't the turkeys have been named Scooter and Libby?
• Scooter Libby drops appeal ... is a holiday pardon on the way?
• Latest FSR issue on "Learning from Libby"

I suspect that P.S. Ruckman at his blog Pardon Power will join me in closely following the fall-out from this significant sentencing story.  I hope that lots of others will focus on this important story, too, though I fear it will get lost in all the buzz now about Super Sunday and Super Tuesday and a super-sized federal budget.

Thoughtful Eighth Circuit ruling on commutation procedures and ex post facto claim

An interesting ruling came from the Eighth Circuit on Friday concerning legal claims surrounding cummutation procedures.  The full opinion in Snodgrass v. Robinson, No. 07-1463 (8th Cir. Jan 11, 2008) (available here), has lots of nuance.  Here is how it starts:

State prisoner Sherryl Ann Snodgrass filed suit alleging that the Iowa Board of Parole (“the Board”), the Board’s members, and the governor of Iowa violated her constitutional rights by applying laws and regulations governing sentence commutation requests even though the laws were passed after her conviction. She alleges these acts violated the ex post facto clause of the United States Constitution and caused a deprivation of her Fifth and Fourteenth Amendment due process rights.  U.S. Const. Art. I, § 10, cl. 1; Amend. V; Amend. XIV, § 1.  The district court1 granted a motion to dismiss, finding commutation by the governor in Iowa to be an act of grace unrestricted by substantive laws or rules.  The district court concluded that the speculative possibility of a lost opportunity for a commutation could not serve as the basis for a state’s ex post facto violation and that Snodgrass had no liberty interest in an act of grace by the governor. Accordingly, the district court held Snodgrass had not stated a cause of action for any constitutional violations.  We affirm.

Notable (split-the-difference?) capital commutation in Ohio

As detailed in this news report, Ohio death row defendant "John Spirko will not be executed for the 1982 murder of Betty Jane Mottinger. But he'll never get out of prison, either."  Here more from the news report:

Citing the lack of physical evidence in the 1982 murder and what he described as "slim residual doubt" about Spirko's guilt, Ohio Gov. Ted Strickland said today that executing the death-row inmate would be "inappropriate."  Instead, Strickland commuted Spirko's sentence to life in prison without parole.

Spirko attorney Tom Hill said today that Spirko was relieved at the governor's decision to spare him from lethal injection. But Hill, who as Spirko's lawyer has described the evidence of Spirko's actual innocence as overwhelming, expressed disappointment that Strickland did not pardon his client outright, or commute his sentence to time already served and release him.

Governor Strickland's statement in support of this commutation is available at this link.  Here are key passages from that statement:

John Spirko was convicted, by a jury, of a heinous murder.  At times, when he wasn't denying having committed the murder, he appears to have admitted doing so.  Ohio and federal trial, appellate and supreme courts reviewed his conviction and upheld it.  Alibi claims and claims regarding evidentiary weaknesses, including more recently developed theories and interpretations of evidence, were considered by those courts and rejected.  In addition, Governor Taft and I granted Mr. Spirko, collectively, seven reprieves to allow for the analysis of DNA related to the case.  Once completed, these DNA tests neither exonerated Mr. Spirko nor implicated him or anyone else....

Nonetheless, I have concluded that the lack of physical evidence linking him to the murder, as well as the slim residual doubt about his responsibility for the murder that arises from careful scrutiny of the case record and revelations about the case over the past 20 years, makes the imposition of the death penalty inappropriate in this case....

Based on [my] review, I have decided to commute Mr. Spirko's sentence to life imprisonment without the possibility of parole.

So, apparently my state's Governor is not convinced Spirko was wrongly convicted.  And yet, Gov. Strickland was concerned enough about his guilt that he does not want the state of Ohio to carry out the sentence a jury imposed and that numerous courts have affirmed.  And yet, despite these concerns about guilt, the Governor believe he should sentence Spirko to spending the rest of his days on earth confined to a small cage.

For a host of political reasons, I understand Gov. Strickland's interest in splitting the difference here.  If Spirko is in fact innocent, this commutation is a grave injustice to him; if Spirko is in fact guilty, this commutation is a grave injustice to the victims of his crime and the legal system.  So, I am not sure if Solomon would be proud of embarrassed by such a baby-splitting decision.

Pardon politics and the 2008 campaign

As all political junkies breathlessly await tonights results from Iowa, I figure it is a good time to speculate about whether there will be continued attention to pardons and other clemency issues as the 2008 campaign unfolds.  Of course, the go-to place for a pardon focus is P.S. Ruckman's blog, and here has these notable recent posts focused on the Republican candidates' kerfufling over clemency issues:

• Huckabee and Pardons. Some Interesting Issues
• Romney: The New Eisenhower?
• More Romney and Pardons
• Romney's Pardon Expert: Chuck Norris

Relatedly, there are some quite notable defendants whose possible pardon could readily create campaign political debates.  Lewis Libby, of course, comes to mind.  Also, as detailed in this new commentary, folks are still calling for pardons for the former Border Agents.  Here is the start of that commentary: "Before leaving the White House, President Bush should do the right thing and pardon the two Border Patrol agents who were sentenced to lengthy prison terms for shooting a fleeing drug smuggler — a case that's been called a 'prosecutorial travesty.'"  I wonder if and when during a debate the candidates will be asked if they will grant a pardon to the Border Agents if Prez Bush fails to do so before leaving office.

NY commentary assails "Ebenezer Spitzer"

Especially in the wake of the clemency debate between Republican candidates Romney and and Huckabee, I found interesting this local commentary assailing New York Governor Elliot Spitzer's early clemency record.  Here is how the commentary starts:

A Quinnipiac University poll released before Christmas indicated that nearly half of New York voters—47 percent—believed that Gov. Eliot Spitzer could become a ‘kinder, gentler governor’  With Spitzer’s approval rating at it’s lowest level ever, almost two thirds of the populace dissatisfied with his job performance, Spitzer had a chance over the holidays to improve his position with the voters with the granting of executive clemencies.

But, as the scandal of Troopergate continues to dog him with allegations now surfacing that his office may have intentionally purged e-mails and subpoenas issued commanding his presence before a Senate investigations committee, Spitzer gained himself even more criticism with his failure to grant any executive clemencies this year.

Instead of improving his image and working to become a “kinder, gentler governor”, it’s was “Bah Humbug!” for Spitzer who apparently decided to be more like Ebenezer Scrooge and The Grinch Who Stole Christmas, supporting the poll findings that 30 percent of voters don’t think it’s possible for Spitzer to lighten up.

Some recent related posts:

• Should never granting a pardon be a point of political pride?
• Republican Kentucky Gov. grants many pardons and commutations
• A new batch of Bush pardons and a crack commutation
• ACS issue brief on the pardon power

Hunting, pardons and a Second Amendment claim?

This local article from North Carolina has me thinking again about whether a few felons might have a viable constitutional claim if (when?) the Supreme Court decides that the Second Amendment protects an individual right to keep and bear arms.  Here are excerpts from the article:

As a boy, Gary Don Holt would roam the woods with his father and uncles, hunting for rabbits.  It's been more than two decades since he had the chance. Arrested for marijuana possession in Onslow County in 1986, Holt is a convicted felon and must stay away from guns. When his father dies, he'll have to ask his sister to hold on to a family heirloom he has been promised: a shotgun passed from father to son for generations.

Holt's felony at the age of 21 has robbed him of much over the years: jobs, jury duty, promotions.  Of all he's missed, not being able to hunt is one of the biggest sacrifices. Holt's father is getting old, and he'd like to shoot at critters in the woods with him once more. Holt, a supervisor at a furniture warehouse in High Point, turned to Gov. Mike Easley to make that happen. Twice, he's asked Easley for a pardon. Twice, Easley has turned him down.

"It was like a sledgehammer hitting me," Holt said. "I've turned out so good. I thought there was no way he could turn me down."  Easley has heard pleas like Holt's before. Each year, a dozen or so would-be hunters beg Easley for pardons. Though a pardon wouldn't clean their records, it would give back certain privileges such as the ability to possess a firearm.

Among the recent requests: A Duplin County Boy Scout leader who sold marijuana in college wants the chance to hunt with his teenage son. A Dunn man who said he accidentally shot his girlfriend to death wants to hunt with his children.  A 68-year-old homebuilder in Alamance County accused of taking indecent liberties with a girl wants to hunt one last time.

Easley has the power to forgive each one but is frugal with his pardons. Since he took office in 2001, he has pardoned five people, each one a man who had received prison time for crimes that another man committed....

"I feel like I'm still doing time for the crime, for 21 years," Holt said. "Don't you get to be done at some point?"  When police arrested him in 1986, Holt said he was immature and smoked pot recreationally. He would give it away to friends.  Holt said one of the friends informed on him to get a break on a pending criminal charge.  Holt agreed to plead guilty and was put on probation. He said he had no idea the implications of a felony conviction.  "I thought it was a slap on the wrist," Holt said. "I was just grateful I wasn't going to prison."

Since then, Holt has put himself through community college and has become a certified emergency medical technician.  He teaches martial arts to police officers for free and coaches his 9-year-old daughter's basketball team. His sisters, a colleague, friends and even his ex-wife wrote letters to the governor vouching for his good character. "I feel I'm more than responsible to have a gun," he said.

Without a pardon, hunting is too big a risk. Federal law prohibits felons from owning, using or even handling any type of gun. 

As I have suggested in some prior posts about the Second Amendment, I think a felon like Holt might have a viable constitutional defense to a criminal prosecution for going hunting if the Supreme Court ultimately holds that the Second Amendment protects an individual right to keep and bear arms subject only to reasonable regulation in the name of public safety. 

In this context, consider the analogy to other Bill of Rights freedoms: does anyone dispute that Gary Don Holt still has a robust right to free speech and to the free exercise of his religion despite his status as a felon?   Why should his Second Amendment right to keep and bear arms (assuming it is an individual right and not a collective right) be afforded so much less protection that his First Amendment right unless and until the government can reasonably show he poses a clear threat to public safety?

Some related posts:

• SCOTUS takes up DC Second Amendment case ... predictions?
• A Second Amendment problem with Peltier?

Should never granting a pardon be a point of political pride?

As documented here, now running in Iowa is a TV spot from the campaign of Mitt Romney that attacks Mike Huckabee for being soft on meth offenses and for granting over 1000 pardons and commutations while Governor of Arkansas.  The ad also states, as an apparent point of pride, that former Governor Romney "never pardoned a single criminal."  Interestingly, the Huckabee campaign has issued this official response to the ad, which includes this notable discussion of clemency issues:

Some Governors are content to simply deny the vast majority of clemency applications without bothering to consider their merit. Governor Huckabee, however, believed that respect for the legal process required that he give them the consideration for which they were entitled....

Very rarely does the public oppose a clemency because almost all are granted for minor offenses, involve reductions in fines, or reduced prison sentences that were longer than the average for a particular crime....

Before the mainstream use of background checks, most people could have some youthful arrest, change their lives and become good, tax-paying citizens without that earlier arrest coming back to haunt them. Governor Huckabee found during his time in office that each year the number of people needing clemency to clear their record increased. Denying their request prevented them from continuing to earn a good living and pay taxes. The majority of the clemency requests he granted were for this reason.

I find the effort of the Romney campaign to make political hay out of clemency issues especially interesting in light of the significant Republican call for pardons for Lewis Libby and for the Border Agents.  Also, the ad indirectly suggests that Romney hopes to bring more attention to Huckabee's "Willie Horton" problem in the form of Wayne Dumond, the rapist paroled in Arkansas when Huckabee was governor who murdered a woman after being released (background here and here).

As I have suggested before, various crime and punishment issues will surely play some role in the heated 2008 Presidential campaign.  I am hopeful (though not especially optimistic) that excessive tough-on-crime demagoguery by particular candidates will backfire as the general public becomes more informed and balanced in their understanding of a range of criminal justice issues.

Republican Kentucky Gov. grants many pardons and commutations

Perhaps inspired by his party's leader, as detailed in this local Kentucky story, just "before vacating his office, Gov. Ernie Fletcher pardoned or commuted the sentences of 101 people, including several convicted of murder."  Here's more details from the press account:

Among those given relief by the outgoing governor are a man on Death Row, a county judge-executive who hasn't been convicted of a crime and the son of a state lawmaker. The highest-profile case Fletcher changed was the death sentence of Jeffrey Devan Leonard of Louisville.

Leonard was convicted of stabbing a store clerk in 1983. Fletcher reduced his sentence to life without parole. In his commutation, Fletcher said Leonard was not provided adequate representation by his attorney, Fred Radolovich, who has admitted he didn't even know Leonard's name during the trial. "We're not going to execute somebody who clearly was denied a basic right," said David Fleenor, the governor's general counsel. "We're not saying he's a good person."

Fletcher said he spent "hours and hours over the last few days" weighing the merits of the requests of individuals whose cases filled 10 bankers boxes. "None of those decisions that we have to make are easy but I feel like I can lay my head down and say we've done our very best to carry out the duties of the governor till our last day," he said.

In all, he announced 84 pardons and three commutations of prison sentences yesterday. On Sunday, he announced his intention to pardon nine women who sustained years of domestic abuse before killing, or trying to kill, the abusive man in their life.  He also commuted the sentences of five others who committed crimes after enduring domestic abuse.

Fayette County Commonwealth's Attorney Ray Larson said prosecutors around the state are upset with Fletcher's actions, which undermine the state's legal system. "I think it's a disgrace; It's shameful," Larson said.  "Why do you go through the process" of a trial? Larson said he is particularly upset that Fletcher's legal team did not bother to contact the prosecutors, victims or survivors in many of the cases.

This lengthy companion piece, headlined "Pardons without political pattern: Fletcher issues most in the past 30 years," suggests that concerns about individualized justice and not other goals drove the decision: "in this case, it's possible, experts and observers say, that Fletcher's troubled tenure and practically extinct political future simply allowed him to use one of the governor's greatest powers to do what he thought was right."

A new batch of Bush pardons and a crack commutation

As detailed in this AP story, the White House has just announced that "President Bush granted pardons Tuesday to carjackers, drug dealers, a moonshiner and an election-laws violator but not to I. Lewis "Scooter" Libby."  Also conspicuously absent from the list of 29 convicts granted a pardon are former Border Agents Compean and Ramos.  As the AP story details, "[n]early all of those to win pardons this year were small-time crooks who at most were imprisoned for five years.  Many of them never served time at all, and instead were fined or put on probation." 

Fascinatingly, the single commutation in this batch of clemency grants (official list here) was to a defendant sentenced to nearly 20 years on a crack offense and still serving that sentence.  It is quite an amazing bit of timing that one of a tiny handful of Bush commutations was granted to a crack defendant on the very same day that the US Sentencing Commission made its reduced guidelines retroactive and the day after the Kimbrough ruling.  Amazing times and a December to remember.

Coincidentally, it seems, the folks at The Huffington Post here have started a "I'll Be Freed For Christmas 2008 George W. Bush Pardon Pool."

Some related posts:

• Scooter Libby drops appeal ... is a holiday pardon on the way?
• Bipartisan call for commuting border agent sentences
• Another bipartisan call for President Bush to commute border agent sentences
• Few giving the President sentencing thanks
• ACS issue brief on the pardon power
• Latest FSR issue on "Learning from Libby"

Scooter Libby drops appeal ... is a holiday pardon on the way?

As very well covered by various bloggers here and here and here, the legal teams for I. Lewis "Scooter" Libby has announced that Libby has decided to drop his appeals of his convictions.  For a variety of reasons, I do not find this news especially surprising simply as a matter of economics and practicalities given that, even if his appeal was successful, Libby still could have faced an unpleasant retrial.

What is interesting is the timing of this announcement.  TalkLeft here speculates on a pardon this holiday season, though I do not know why President Bush would not be content to wait until the traditional lame duck clemency season next year.  Then again, maybe Scooter is upset that, because of federal felon-in-possession laws, he will not able able to go hunting this season (or any other) unless and until he gets a pardon.

Another possibility is that Libby, after learning that the latest issue of the Federal Sentencing Reporter is all about his case (details here; available on-line here), decided he needed more time to reflect on the lessons to be drawn from his case.

Another bipartisan call for President Bush to commute border agent sentences

As detailed in this Washington Times article, "Rep. Bill Delahunt, Massachusetts Democrat who heads the subcommittee on international organizations, human rights and oversight" has called upon President Bush to "immediately commute the prison sentences of two former U.S. Border Patrol agents convicted in the shooting of a drug-smuggling suspect."  This story from CNSNews.com provides more details on the bipartisan calls for a commutation in this case:

Two Democrats and one Republican introduced a House resolution Thursday calling for the release of two jailed ex-Border Patrol agents by Christmas.  The former agents, Ignacio Ramos and Jose Compean, were sentenced to 11 and 12 years respectively in federal prison for shooting and wounding a suspected illegal alien drug smuggler in the rear.

"President Bush can correct a gross miscarriage of justice with the stroke of a pen," said Rep. William Delahunt (D-Mass.), who co-sponsored a resolution to commute the sentences of the two men. "This resolution will put Congress on the record demanding that he do just that," Delahunt continued. "I hope that the president will allow these men to see their families in time for Christmas."  Delahunt was joined by Reps. Silvestre Reyes (D-Texas) and Dana Rohrabacher (R-Calif.) in sponsoring the legislation....

Last month, the suspected drug smuggler, Osvaldo Aldrete-Davila was arrested for attempting to smuggle additional drugs into the country even while he had legal immunity because of the earlier case, in which he testified against the two Border agents.

Some prior posts about the Border Agents case:

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

Few giving the President sentencing thanks

It has become something of a holiday tradition on this blog to lament President George Bush's stingy clemency record.  Helpfully, this strong article in the Los Angeles Times — which is entitled "Clemency bids backing up for Bush; More than 3,000 petitions by federal inmates are pending; The president acted on only 18 in fiscal 2007" — provides extra gravy and stuffing for the story this year.  Here are snippets:

The federal clemency system is approaching gridlock as a surge in applications for pardons and commutations has resulted in the largest and most persistent backlog of cases in recent history, according to federal data obtained by the Los Angeles Times....

The backlog has grown sharply in recent months. After acting on several hundred petitions each year since 2001, Bush closed only 18 cases in fiscal 2007, which ended Sept. 30.  The last action Bush took was to commute the 30-month prison term of former White House aide I. Lewis "Scooter" Libby in July....

Critics say the lack of action on clemency applications reflects an abandonment by Bush of the discretion he holds under the Constitution to commute sentences. Bush has granted 113 pardons and commuted four sentences since taking office. That is the lowest number of any president since World War II, except for President George H.W. Bush, who granted 74 pardons and three commutations in his one term.  The critics also said the backlog raises questions about whether the Justice Department is up to the task of assessing petitions in an orderly and fair way.

P.S. Ruckman provides effective coverage of this story and other related clemency issues at his blog.