Saturday, February 08, 2014

Lethal injection concerns leads Ohio Gov Kasich to postpone next execution for 8 months

As reported in this local article, "unresolved concerns about the drugs used to execute Dennis McGuire last month prompted Gov. John Kasich yesterday to postpone the scheduled March 19 lethal injection of Gregory Lott."  Here is more:

Without comment, Kasich rescheduled Lott’s execution, delaying it for eight months, until Nov. 19.  Kasich spokesman Rob Nichols said the governor wants to give the Ohio Department of Rehabilitation and Correction time to complete its internal review of McGuire’s Jan. 16 execution.  “Gregory Lott committed a heinous crime for which he will be executed,” Nichols added.

It was the second execution that Kasich had postponed in recent months. On Nov. 13, Kasich pushed back Ronald Phillips’ execution to July 2 to give him an opportunity to pursue organ donation to a family member....

Attorneys for Lott, 51, quickly challenged his upcoming execution, arguing that the drugs could cause “unnecessary pain and suffering” in violation of the Eighth Amendment to the U.S. Constitution. A hearing has been scheduled for Feb. 19 in U.S. District Judge Gregory L. Frost’s court.

The next question involves what happens to four other convicted killers scheduled to be put to death before November. They are Arthur Tyler, May 28; Phillips, July 2; William Montgomery, Aug. 6; and Raymond Tibbetts, Oct. 15.

Lott was convicted and sentenced to death for killing John McGrath, 82, by setting him on fire in his Cleveland-area home in 1986. McGrath survived in a hospital for 11 days before dying. Lott came close to execution in 2004, but the U.S. Supreme Court blocked it to give his attorneys time to examine evidence they said had been withheld. “We are very grateful for the governor’s decision,” said Dana C. Hansen Chavis, an assistant public defender from Knoxville, Tenn., who is one of Lott’s attorneys.

Kevin Werner, executive director of Ohioans to Stop Executions, praised Kasich for showing “ leadership and careful consideration” by issuing a reprieve. State Rep. Nickie J. Antonio, D-Lakewood, urged Kasich to “use his executive power to grant a full moratorium on executions until the state can guarantee that humane and constitutional policies will be utilized. Ultimately, I think such guidelines would lead to the abolishment of the use of the death penalty.”

I see little reason why it should take more than a few weeks for the Ohio DRC to conduct a complete review of the execution of Dennis McGuire. In addition, I expect more delay before conducting the next Ohio execution will end up facilitating still more litigation over Ohio's latest execution protocols and its new use of a two-drug execution cocktail.

That all said, I wonder if this delay is primarily designed to give Ohio officials more time to try to secure Ohio's preferred execution drug, pentobarbital, from a compounding pharmacy. Missouri a few weeks ago completed an execution using just a batch of pentobarbital manufactured by a compounding pharmacy, and I suspect Ohio would prefer to find a way to follow that execution approach rather that try again with the two-drug approach use to put down McGuire.

As has been the reality in Ohio for a number of years now, it seems that legal and practical uncertainty will continue to surround the state's efforts to carry out death sentences. But now the next execution date to watch closely will be in May rather than March thanks to Gov. Kasich giving Lott at least eight more months to be alive.

A few recent related posts:

February 8, 2014 in Baze lethal injection case, Clemency and Pardons, Death Penalty Reforms, Who Sentences? | Permalink | Comments (11) | TrackBack

Tuesday, February 04, 2014

Reflecting on Obama Administration's latest "half-way" approach to clemency

Mark Osler authored this effective commentary concerning the recent comments coming from the Department of Justice concerning a new focus on granting clemency.  The piece carries the headline "Only half-way there on mercy," and here are excerpts:

In an extraordinary speech to the New York State Bar Association earlier this week, Deputy Attorney General James Cole did two significant things.

First, he announced that when President Obama used the pardon power in December to commute eight lengthy federal sentences for narcotics trafficking, this was only a “first step,” and that there is “more to be done.”  Second, he outlined how a much more extensive round of commutations might happen.  The first of these was historic, remarkable, and right. The second part is more problematic.

The good news is that this administration, unlike its most recent predecessors, intends to use the pardon power in a vigorous and principled way....

The method Cole outlined to produce more commutations is where the problem lies.  The administration intends to have the Bureau of Prisons spur inmates to seek commutations and then encourage state bar associations to direct their members to prepare petitions for those inmates.

Cole made this appeal to deputize lawyers in a very direct way during his New York speech  — telling the bar association there that “this is where you can help.”  The hope is that, in the end, this will produce a wave of good candidates for commutation.

Unfortunately, this solution doesn’t address the actual problem with federal clemency. No one has suggested that what is broken with the pardon power is that there aren’t enough petitions in the system — to the contrary, there is a backlog of some 3,500 clemency petitions awaiting a decision.

The problem is that the process doesn’t work.  The pipeline is clogged, and the solution can’t be simply to jam more things into it.  The present structure for consideration of these often-complicated petitions has done a terrible job handling the workload it has now; it’s unclear how giving the pardon attorney and the others who consider these petitions even more work is supposed to solve the problem. Increasing the size of the clog does nothing to clear out a pipe....

Critics hailing from such diverse corners as the Heritage Foundation and the American Constitution Society have called for wide-ranging reform of the pardon process.  This might be the time to implement significant changes, such as removing many levels of review and giving the person or committee charged with making recommendations on clemency much more frequent and direct access to the president.

Even if systemic reform of the process isn’t undertaken or doesn’t take immediate effect, a shorter-term solution is available.  Obama could empanel a presidential clemency board for a period of 12 to 18 months to consider the mass of petitions that may be generated through the process Cole described.

This pop-up agency would push through the egg in the snake, make its recommendations, and disband.  Their efforts would be revenue-positive (because of savings in incarceration costs), further an important policy goal that has been embraced by members of both parties and all three branches of government, and avoid the dangers presented when a new, permanent bureaucracy is established. What’s not to like about that?

Some recent and older posts concerning federal clemency practices:

February 4, 2014 in Clemency and Pardons, Criminal justice in the Obama Administration, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Sunday, February 02, 2014

"Citing Catholic faith, family of victim seeks to keep condemned Cleveland killer from lethal injection"

The title of this post is the headline of this interesting recent Cleveland Plain Dealer article highlighting a notable set of voices expressing a faith-based disinterest in completing the next scheduled execution in Ohio.  Here are the details:

Irene Allain and her family want to prevent condemned killer Gregory Lott's execution. And they're relying on their faith to do it. Allain is the daughter of John McGrath, the 82-year-old man Lott is convicted of killing a vicious attack in East Cleveland in July 1986. Nearly 28 years later, Lott is scheduled to die March 19 for the crime.  And Allain and her family are pushing that the sentence be changed from death to life in prison.

"Although it has been difficult for me to come to terms with how my father died, I do not agree with executing Gregory Lott," Allain wrote in an affidavit that Lott's attorneys are using to seek clemency for him. "I am a devout Catholic, as is my family.  I believe that life in prison is a just punishment for Gregory Lott. I believe his death sentence should be commuted to life imprisonment."

As the debate over the death penalty simmers in Ohio, most recently sparked by the drawn-out execution of Dennis McGuire earlier this month, McGrath's family members highlight the issue from a different perspective.  And they aren't alone.  A growing number of families of victims are urging courts to avoid using the death penalty as a punishment.

"There is an automatic assumption that victims' families want the death penalty, but that has been challenged in the past five to 10 years," said Scott Bass, the executive director of Murder Victims' Families for Reconciliation. "There is a rising number of victims' families who don't want the death penalty. For many, the death penalty adds 20 to 30 years to the trial. It prolongs the agony for families."

But not all families believe that. Take the relatives of Joy Stewart, the pregnant woman who was brutally attacked and killed by McGuire.  Her family, in a statement to reporters at the execution, said they have forgiven McGuire, "but that does not negate the need for him to pay for his actions. It's time -- past time -- for him to pay for what he did to my sister."

In the case of Lott, it is clear that McGrath's family wants him to remain in prison. "I don't want to put my imprimatur on a man's execution,'' said Jack McGrath, a grandson. "Much of this is because of my Roman Catholic faith.  When I first learned of this in 1986, I almost thought of taking matters into my own hands.  But time has healed our wounds. I don't believe in the death penalty because of my faith."...

In a letter to prosecutors before his trial, Lott admitted to the slaying and pleaded for a deal that would spare him the death penalty.  "I am ready and willing to go to court any day or time and take the 30 years," Lott wrote to prosecutors. "I beg that you would let me plead guilty to the murder.  I am very sorry and remorseful for what happened to Mr. McGrath.''

But the deal never came. Months later, a three-judge panel convicted him and him sentenced to die.  Lott's execution date has been pushed back twice after legal challenges, including one that accused Carmen Marino, then an assistant Cuyahoga County prosecutor, of failing to turn over evidence to defense attorneys.  A federal judge in 2007 rejected Lott's appeal.  Following other appeals, he was given a new execution date....

Jack McGrath, the grandson of the man Lott killed, said he has thought a good deal about revenge and spoke with a Catholic priest.  "Twenty-eight years ago, I felt very much like that," he said. "But there comes a point when you say to yourself, 'Can this guy be forgiven?' What has happened has happened. It's not my place to judge."

This story is substantively interesting because it involves family members of a murder victim making a forceful faith-based pitch for clemency. But it is also practically so interesting because it could give Ohio Governor John Kasich a very reasonable basis to grant the condemned murderer here a commutation to LWOP and thereby prevent the next six week being filled with huge legal fights over Ohio's two-drug execution protocol. Of course, those legal fights are inevitable whenever Ohio gets close to another execution, but the Gov and other Ohio officials might find it quite beneficial to have a few more months to gear up for these fights without a March execution date looming.

February 2, 2014 in Clemency and Pardons, Death Penalty Reforms, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (15) | TrackBack

Friday, January 31, 2014

Professor/practitioner perspective on DAG Cole's puzzling clemency conversation

Nearly everyone I know invested in the modern debate over federal clemency policies and practice have been intrigued and puzzled by the clemency comments made by Deputy Attorney General James Cole yesterday at the New York State Bar Association Annual Meeting (basis here and here). Helpfully, Professor Mark Osler agreed to write up his thoughts for posting here in order to provide a thoughtful perspective on that DAG Cole's comments might mean and portend:

Since starting a federal commutations clinic a few years ago, I’ve become fascinated by the clemency process. For those of us who care deeply about the constitutional pardon power, the speech by Deputy Attorney General Jim Cole in New York was a bombshell. In short, Cole announced that President Obama’s grant of eight commutations in December was just a “first step,” and that “there was more to be done.”  This isn’t subtle signaling; it is a bold and admirable announcement that the administration plans to use the pardon power systemically to address over-incarceration in narcotics cases. This is great news for those serving such sentences, sure, but it also is a remarkable moment for the pardon power itself, which has not played such an important and principled role in the justice system for decades.

There are some open questions, though. Cole said the December commutations were a “first step,” and outlined generally what the second step will be — an apparent move to funnel many more cases through the existing process. Cole described three parts of this process. First, the Bureau of Prisons will advise inmates of their right to petition for clemency and then direct inmates who respond to bar associations that are willing to help prepare petitions. Second, bar associations will then coordinate the preparation of these petitions. Third, a member of Cole’s staff will coordinate all of this.

If it works, this will result in a flood of petitions being sent to the federal pardon attorney, a DOJ functionary. Therein lies the rub. The pardon attorney, and the rest of the process between the pardon attorney and the President, has hardly been a model of efficiency. In December, those eight commutations and thirteen pardons that were granted were dwarfed by what currently clogs the pipeline — over 3,500 petitions for clemency are currently unresolved. Presumably, these new petitions will take their place at the bottom of that large pile.

At best, this will all work out somehow — there might be a plan to improve the process that we don’t know about. At worst, Cole is waving more traffic onto a jammed freeway, without first clearing the wrecks and opening the exit ramps.

Generating more clemency petitions is a good thing, but it needs to be accompanied by an administration plan to process and grant more petitions. Gerald Ford did this efficiently by creating a Presidential Clemency Board, which evaluated thousands of clemency petitions from Vietnam-era draft evaders and Army deserters. Ford’s Board did this in exactly one year, at low cost. That model should be used here. If the freeway isn’t moving, adding more cars won’t help much.

January 31, 2014 in Clemency and Pardons, Criminal justice in the Obama Administration, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Thursday, January 30, 2014

Deputy AG Cole's remarkable remarks to the NYSBA

Via an early New York Times article, I have already reported here on some of the clemency comments delivered today byDeputy Attorney General James Cole at the New York State Bar Association Annual Meeting.  But i have now had a chance to review the whole text of the speech delivered by Deputy AG Cole, which can be accessed here, and anyone interested in federal sentencing policy and reform should read the whole text.  Here are just a few sections that really caught my attention as a sentencing geek:

I want to talk with you today about the crisis we have in our criminal justice system. A crisis that is fundamental and has the potential to continue to swallow important efforts in the fight against crime. This crisis is the crushing prison population....

Over half of the federal prison population is there for drug offenses.  Some are truly dangerous people, who threaten the safety of our communities and need to be taken off the streets for a long time.  But others are lower level drug offenders, many with their own drug abuse issues, who fall into the all too common vicious cycle of drug abuse, crime, incarceration, release — and then the cycle repeats.

In addition, there is a basic truth that dollars are finite. Every dollar we spend at the Department of Justice on prisons — and last year we spent about $6.5 billion on prisons - is a dollar we cannot spend supporting our prosecutors and law enforcement agents in their fight against violent crime, drug cartels, public corruption, financial fraud, human trafficking, and child exploitation, just to mention a few.  In other words, if we don’t find a solution to the federal prison population problem, public safety is going to suffer.

Recognizing this dynamic, the Justice Department has been working hard to come up with solutions to stem the tide....

All of these Departmental efforts recognize the need for a broader, smarter approach to criminal justice.  We believe these efforts enhance our ability to protect our communities and maximize public safety.  These efforts not only ensure that we continue to be “smart on crime” from a limited resource perspective, but they also help to ensure that federal laws are enforced fairly.

And embedded in this issue of fairness is the consideration of sentence reductions for those who, at an earlier time, encountered severe and inflexible sentencing laws.

This brings me to another issue I want to address with you today and ask for your help. The issue is executive clemency, particularly commutation of sentence.  Commutation of sentence is an extraordinary remedy that is rarely used.  But it may be available in certain circumstances, including when an individual has a clean record in prison, does not present a threat to public safety, and has been sentenced under out-of-date laws that have since been changed, and are no longer seen as appropriate.

As I said earlier, our prisons include many low-level drug offenders.  Now, let there be no mistake, even the low-level drug offenders cause harm to people through their criminal actions and many need to be incarcerated. I don’t want to minimize the impact of their behavior.  Our prosecutors worked diligently, along with law enforcement agents, to collect evidence and charge these defendants, and then fairly and effectively obtained their convictions. T hey were properly held accountable for their criminal conduct. However, some of them, because of the operation of sentencing laws on the books at the time, received life sentences, or the equivalent of a life sentence, for limited conduct. For our criminal justice system to be effective, it needs to not only be fair; but it also must be perceived as being fair.  These older, stringent punishments, that are out of line with sentences imposed under today's laws, erode people’ s confidence in our criminal justice system....

[A]side from legislation, the President also has the ability to take executive action to positively impact the criminal justice system. A little over a month ago, the President commuted the sentences of 8 men and women who were sentenced under severe — and out of date — mandatory minimum sentencing laws....

But the President’s grant of commutations for these 8 individuals is only a first step. There is more to be done, because there are others like the eight who were granted clemency. There are more low-level, non-violent drug offenders who remain in prison, and who would likely have received a substantially lower sentence if convicted of precisely the same offenses today. This is not fair, and it harms our criminal justice system.

To help correct this, we need to identify these individuals and get well-prepared petitions into the Department of Justice. It is the Department’s goal to find additional candidates, who are similarly situated to the eight granted clemency last year, and recommend them to the President for clemency consideration.

This is where you can help. We are looking to the New York State Bar Association and other bar associations to assist potential candidates for executive clemency. We envision that attorneys will assist potential candidates in assembling effective and appropriate commutation petitions — ones which provide a focused presentation of the information the Department and the President need to consider — in order to meaningfully consider clemency for similarly situated petitioners. You each can play a critical role in this process by providing a qualified petitioner — one who has a clean record in prison, does not present a threat to public safety, and who is facing a life or near-life sentence that is excessive under current law — with the opportunity to get a fresh start.  We anticipate that the petitioners potentially eligible for consideration would include: non-violent, low-level drug offenders who were not leaders of — nor had any significant ties to — large-scale organizations, gangs, or cartels. We would also look for petitions from first-time offenders or offenders without an extensive criminal history.

January 30, 2014 in Clemency and Pardons, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack

"White House Seeks Drug Clemency Candidates" ... like Weldon Angelos and Chris Williams?

WeldonThe title of this post is drawn the headline of this notable new New York Times article, which includes these excerpts:

The Obama administration, in its effort to curtail severe penalties in low-level drug cases, is taking the unprecedented step of encouraging defense lawyers to suggest inmates whom the president might let out of prison early.

Speaking at a New York State Bar Association event Thursday, Deputy Attorney General James M. Cole said the Justice Department wanted to send more names to White House for clemency consideration.  “This is where you can help,” he said, in remarks the Justice Department circulated in advance.  Prison officials will also spread the word among inmates that low-level, nonviolent drug offenders might be eligible to apply for clemency.  

The clemency drive is part of the administration’s effort to undo sentencing discrepancies that began during the crack epidemic decades ago. Offenses involving crack, which was disproportionately used in black communities, carried more severe penalties than crimes involving powder cocaine, which was usually favored by affluent white users....

“There are more low-level, nonviolent drug offenders who remain in prison, and who would likely have received a substantially lower sentence if convicted of precisely the same offenses today,” Mr. Cole said. “This is not fair, and it harms our criminal justice system.”

Like lots of lousy crime and punishment reporting, this piece fails to highlight the important realities that (1) any and every federal defendant is "eligible to apply for clemency," but that the Obama Administration (like prior administrations) is historically disinclined to bother to consider seriously any of these applications, and (2) according to this official accounting, there are currently over 3,500 pending pardon and commutation applications at the White House right now.

I am pleaed that a DOJ official is now talking about defense lawyers suggesting inmates whom the president might let out of prison early, but I sense that defense lawyers are doing this a-plenty.  In addition, the US Sentencing Commission surely has a list of all the persons who would benefit from the FSA if it were made fully retroactive.   The White House already has plenty of information (and so many ways to readily find additional information) concerning who could and should sensibly be considered for clemency relief.  The problem is not information, but the courage to walk the walk (rather than just talk the talk) about correcting excessively harsh prison sentencing politicies and practices that are "not fair ... [and] harm our criminal justice system.”

As the rest of the title of this post is meant to highlight, good candidates for clemency are not only crack dealers.  Especially in light of recent reform of state marijuana laws, I think one can validly argue that there are constitutional problems with the sentences being served by federal marijuana offenders like Weldon Angelos and Chris Williams, both of who are current serving lengthy prison terms for doing essentially what is now being done by dozens of licensed marijuana  marijuana dealers every hour of every day in Denver.  Constitutional arguments aside, I think both should quickly go to the very top of the White House clemency list ASAP, especially if Prez Obama really believes what he says about marijuana being really no more harmful than alcohol.

January 30, 2014 in Clemency and Pardons, Drug Offense Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack

Tuesday, January 14, 2014

Clemency's consequences: "Clarence Aaron, almost free"

The title of this post is drawn from the headline of this notable new commentary  by Debra Saunders, who is described as the "San Francisco Chronicle's token conservative columnist." Because the piece is so moving (and pretty short), I am reprinting a lot of it:

Last month, President Obama did a good deed commuted the sentence of eight crack cocaine offenders, including Clarence Aaron, a first time nonviolent drug offender sentenced to life without parole.  Readers may have thought Aaron would be home by Christmas; instead the Dec. 18 order prompted the Bureau of Prisons to move Aaron to a minimum-security camp [and then to a halfway house]....  He is set for supervised release on April 17.

I had been a bit worried about what would happen to Clarence in prison as he awaited release.  At first, when he got the news, he didn’t tell other inmates. But it was on TV, and everyone found out.  Rather than stoke resentment, his commutation brought hope to inmates who had given up. “The atmosphere of the whole institution, it changed,” Clarence told me. “Everybody was happy… a lot of people walking around with that spark in the eye.”

When he got moved to a minimum-security camp, it was the same thing. “People knew I was coming to the camp before I knew I was coming to the camp.” And: “They were amazed to hear how God’s hand works.”

It was not easy in prison.  Clarence faced what was essentially a death sentence — life in prison until he died — among repeat felons serving shorter time. “The first day I got into prison,” Clarence told me, “I said, ‘What put me in this bad position?’”  His admittedly criminal actions started with money problems.  So he got a job in prison and started saving money.  He put together a plan for his future.  He studied the Bible, took college courses, followed the rules....

What does Clarence want to do first?  His “baby sister” Stephanie died of cancer in 2005. With his mother Linda, Clarence wants to visit her grave.  Later he wants to get a job, and get the documents he needs to obtain a driver’s license.

Where does he want to be in five years?  He wants a family and he wants to be established with a “meaningful career.”  Are you bitter? I ask.  He answers: “No, actually I’m not.  I’m happy.  This is a new day for me.  My Commander in Chief gave me a new life.”

January 14, 2014 in Clemency and Pardons, Drug Offense Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Monday, January 06, 2014

Lamenting the "ghosts ... still serving time under [crack] sentences that would not have been imposed under the new law"

Linda Greenhouse has this notable new op-ed in the New York Times headlined "Crack Cocaine Limbo." Here are excerpts:

President Obama earned a rare moment of bipartisan acclaim last month when he commuted the sentences of eight long-serving federal prisoners. Their crack cocaine offenses had resulted in the harsh penalties mandated by a sentencing formula that Congress repudiated when it passed the Fair Sentencing Act of 2010. The old formula, under which possession of a quantity of crack earned the same sentence as possession of 100 times that quantity of powdered cocaine, was “now recognized as unjust,” the president said.

But there were ghosts at last month’s party: thousands of federal inmates still serving time under sentences that would not have been imposed under the new law. Most are black. As is widely recognized, crack has been the cocaine of choice for African-American users and dealers even as white offenders choose powder. The racially disparate impact of the old law, which dates from the crack-cocaine panic of the mid-1980s with its now-discredited theory that crack was many times more dangerous, made reform a civil rights priority.

These prisoners remain in drug-sentencing limbo. When Congress passed the Fair Sentencing Act, which reduced the crack-to-powder sentencing ratio from 1:100 to 1:18, it was silent on retroactivity. The Supreme Court granted limited relief two years ago, ruling that those who committed their crimes before the law took effect in August 2010 but who were not sentenced until later could retroactively get the new law’s benefit....

Senators Richard J. Durbin, Democrat of Illinois, and Mike Lee, Republican of Utah, introduced a bill last summer to authorize judges to grant relief to pre-2010 prisoners on a case-by-case basis. But the Smarter Sentencing Act, as its sponsors call it, has yet to move toward a vote....

Society made a judgment, expressed in a bipartisan political consensus, that disparities of this kind were irrational and racially inequitable. Passage of the Fair Sentencing Act was preceded by years of debate, including pleas by federal judges who hated what the law made them do. Gradually, insight emerged. Keeping a known and finite group of people locked in a system acknowledged to be irrational is irrationality itself.

January 6, 2014 in Clemency and Pardons, New crack statute and the FSA's impact, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack

Tuesday, December 31, 2013

"President Obama, the merciless?"

The title of this post is the headline given to this notable new CNN commentary piece authored by P.S. Ruckman Jr., who runs the always great Pardon Power blog.  Here are excerpts:

This month, one of the least merciful presidents in the history of the United States granted 13 pardons and eight commutations of sentence.  The grants moved President Barack Obama's overall mark past the administrations of John Adams (who served only one term), William H. Harrison (who died of pneumonia after serving only 30 days), James Garfield (who was fatally wounded by an assassin after serving only four months) and George Washington.

The New York Times complained that, when it came to the pardon power, there was just "no excuse" for Obama's "lack of compassion" and encouraged him to "do much more." The American Civil Liberties Union called the pardons "a step" and hoped the President would "continue to exercise his clemency powers."  Meanwhile, the Cato Institute, a libertarian think tank, lamented the "drought" of pardons in the Obama administration and called the recent grants "mingy and belated."  Conservative columnist Debra Saunders wrote that it was "about time" Obama acted, and even tossed out the possibility/hope that he might "do it again soon."...

No one is clamoring for violent criminals to be yanked out of prisons and tossed into the streets to wreak havoc on society.  No one is lusting for the considered judgment of judges and juries to be whimsically overturned by politicians leaving office and, in the process, sidestepping accountability.

But, increasingly, there is recognition that budgets are tight, and prisons are both overcrowded and expensive.  The recidivism of those who spend time in prisons and exit without anything like serious rehabilitation is also costly.  Congress' recent recognition of the failure (if not outright unjust nature) of sentencing laws appears, to many, as still yet another indicator that there is consensus regarding the status of the so-called war on drugs: It has not worked out very well....

The pardon power will always carry an inherent political "risk," because no one can perfectly predict the future behavior of recipients and everyone's judgment can be second-guessed, if not mischaracterized.  Informed persons know Mike Huckabee did not "pardon" Maurice Clemmons and Michael Dukakis did not "pardon" Willie Horton.  But, of course, executives cannot always survive political storms with the support and encouragement of informed persons.

Nonetheless, the Founding Fathers considered the pardon power an integral part of our system of separation of powers and checks and balances.  Its presence in the Constitution is premised on the notion that Congress and the Courts are not always perfect.  Anyone care to disagree? It simply follows that, if the pardon power is being neglected or abused, then government is not doing what it was meant to do.

Alexander Hamilton furthermore noted, in the Federalist Papers, that the criminal codes of nations have an almost natural tendency toward over-severity.  For that reason, he argued, there should be easy access to mercy. Yes, you read that right, "easy access," or, in other words, something very different than what is going on in the Obama administration.

The fortunate thing is, presidents and governors can very easily minimize the political "risk" of pardoning by granting pardons regularly, consistently, throughout terms, as opposed to, very questionably, at the "last minute." While Christmas pardons may make some feel warm and fuzzy, they also send a message that is more counterproductive than anything.  They seem to say mercy is an afterthought, or worse, a gift, that may or may not be deserved.

The fact of the matter is the majority of individual acts of executive clemency in our lifetime have been pardons, which simply restored the civil rights of the recipients.  No one was sprung from jail.  Violent criminals were not tossed into the streets.  Judges and juries were not overturned.  Recipients have typically committed minor offenses, many involving no incarceration whatsoever, and usually, many years if not decades before pardon.  FBI background checks documented they had integrated back into society as law-abiding productive members.  Their pardons were not "gifts" so much as they were well deserved recognition.

Have these pardons been high-wire maneuvers?  Have they required presidents to spend precious political capital?  Not at all.  Obama has granted 52 pardons to date.  There is a much better than average chance that readers cannot name a single recipient.  George W. Bush granted almost 200.

So, why can't Obama restore the civil rights of more applicants?  Why doesn't he?  There is no obvious answer to that question, save lack of care and concern.  Where is the President who said his religion teaches him the importance of redemption and second chances?  Where is the hope?

December 31, 2013 in Clemency and Pardons, Who Sentences? | Permalink | Comments (7) | TrackBack

Wednesday, December 25, 2013

Astute commentary concerning meager crack clemency mercy finally shown by Prez Obama

In part because long-overdue and still meager grants of clemency by President Obama garnered so much MSM attention, I have not blogged much more about the Prez's decision to commute a few crack sentences last week (basics here).  But especially on this holy day, I thought it useful to provide links to a few subsequent piece of commentary that effectively highlight why a lot more use of the clemency power is still needed and justified for mercy to even be even a glimmer of hope for the tens of thousands of non-violent offenders still serving the harsh sentences that the federal criminal justice system too regularly hands out:

December 25, 2013 in Clemency and Pardons, Drug Offense Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Thursday, December 19, 2013

Clemency christmas miracle?: Prez Obama communiting 8 pre-FSA crack sentences and granting 13 pardons

ALittleChristmasMiracleAs reported in this new article from the New York Times, "President Obama, expanding his push to curtail severe penalties for drug offenses, is expected on Thursday to commute the sentences of eight federal inmates who were convicted of crack cocaine offenses. Each inmate has been imprisoned for at least 15 years, and six were sentenced to life in prison."  Here is more about this interesting and exciting news:

It would be the first time retroactive relief was provided to a group of inmates who most likely would have received significantly shorter terms if they had been sentenced under current drug laws, sentencing rules and charging policies. Most of the eight would be released in 120 days.

In a statement prepared for release when the commutations are announced, Mr. Obama said that each of the eight men and women had been sentenced under what is now recognized as an “unfair system,” including under a 100-to-1 sentencing disparity between crack and powder cocaine offenses that was significantly reduced by the Fair Sentencing Act of 2011.

“If they had been sentenced under the current law, many of them would have already served their time and paid their debt to society,” Mr. Obama said. “Instead, because of a disparity in the law that is now recognized as unjust, they remain in prison, separated from their families and their communities, at a cost of millions of taxpayer dollars each year.”

The recipients include several high-profile inmates who have received news media attention as examples of the effects of earlier tough-on-crime drug sentencing policies, in which the quantities of crack involved sometimes resulted in severe punishments. Many of them were young at the time of their offense and were not accused of violence.

Clarence Aaron of Mobile, Ala., for example, was sentenced to three life terms in prison for his role in a 1993 drug deal, when he was 22. Mr. Aaron’s case has been taken up by congressional critics of draconian sentencing and by civil rights groups, and has received significant media attention. Last year, the Justice Department’s inspector general issued a report criticizing the department’s pardon office for mishandling his clemency petition.

Margaret Love, a former Justice Department pardon lawyer who represents Mr. Aaron, said she received a call informing her of the decision on Thursday morning and called her client, who along with his family was “very grateful.”

“He was absolutely overcome,” she said. “Actually, I was, too. He was in tears. This has been a long haul for him, 20 years. He just was speechless, and it’s very exciting.”

Mr. Obama, who has made relatively little use of his constitutional clemency powers to forgive offenses or reduce sentences, is also expected to pardon 13 people who completed their sentences long ago. Those cases involved mostly minor offenses that resulted in little or no prison time, in line with previous pardons he has issued.

But the eight commutations opened a major new front in the administration’s criminal justice policy intended to curb soaring taxpayer spending on prisons and to help correct what the administration has portrayed as unfairness in the justice system. Recipients also include Reynolds Wintersmith, of Rockford, Ill., who was sentenced in 1994 to life in prison for dealing crack when he was 17, and Stephanie George of Pensacola, Fla., who received a life sentence in 1997, when she was 27, for hiding a boyfriend’s stash of crack in a box in her house. In both cases, the sentencing judges criticized the mandatory sentences they were required to impose by federal law at the time, calling them unjust.

In December 2012, The New York Times published an article about Ms. George’s case and the larger rethinking of the social and economic costs of long prison terms for nonviolent offenders. Mr. Obama mentioned the article in an interview with Time magazine later that day and said he was considering asking officials about ways to do things “smarter.”

Around that time, a senior White House official said, Mr. Obama directed Kathryn Ruemmler, his White House counsel, to ask the Justice Department to examine pending clemency petitions to assess whether there were any in which current inmates serving long sentences would have benefited from subsequent changes to sentencing laws and policy. The deputy attorney general, James M. Cole, returned the eight cases with positive recommendations from the department about six weeks ago, the official said....

Legislation pending in Congress, including a bill co-sponsored by Senators Richard J. Durbin, Democrat of Illinois, and Mike Lee, Republican of Utah, would make the Fair Sentencing Act retroactive for some offenders, and it would build into the system a process for inmates to apply to a judge for case-by-case review of whether a reduced sentence would be appropriate. The Obama administration supports that bill, the White House said, as a more orderly and regular way to ensure individualized analysis in addressing the broader inmate population.

According to the group Families Against Mandatory Minimums, about 8,800 federal inmates sentenced for crack offenses before the Fair Sentencing Act would be eligible to apply for a reduced sentence were the bill to become law. “Commuting the sentences of these eight Americans is an important step toward restoring fundamental ideals of justice and fairness,” Mr. Obama said. “But it must not be the last. In the new year, lawmakers should act on the kinds of bipartisan sentencing reform measures already working their way through Congress. Together, we must ensure that our taxpayer dollars are spent wisely, and that our justice system keeps its basic promise of equal treatment for all.”

I am quite pleased Prez Obama is finally, finally, finally using his constitutional clemency powers in a truly consequential and meaningful way, and I am especially pleased that there are now eight more defendants (and families) who get some relief from the unfair 100-1 pre-FSA crack sentences that nobody ever seeks to defend substantively. However, the numbers reported above highlight that for every new bit of post-FSA fairness achieved by these commutations, a thousand other defendants (and families) must continue to live with the consequences of a reform that has been interpreted only to prevent future injustices and not fix past ones.

More broadly, though I do not want to turn a praiseworthy act by Prez Obama into an excuse for more criticism, there is a cynical voice in my head that is not only eager to fault the limited reach of this new round of clemency, but also its timing. Perhaps intentionally, these grants could (and perhaps should) be marginalized as just a holiday tradition, not as a bold statement of executive priorities. Even more worrisomely, as there is on-going talk of statutory sentencing reforms in Congress, these grants might provide some basis for opponents of broader reforms to contend that truly troublesome cases can and should be just handled and remedied by the executive branch.

Better summing up my cynicism is a response to this news from Professor Mark Osler: "Good news... But just one lifeboat off the titanic. With no structural change, the ship is still sinking."

December 19, 2013 in Clemency and Pardons, Criminal justice in the Obama Administration, Drug Offense Sentencing, New crack statute and the FSA's impact, Who Sentences? | Permalink | Comments (13) | TrackBack

Friday, December 13, 2013

How can and should Ohio's justice system deal with merciful elderly aggravated murderer?

John-Wise-web_20120807105809_640_480I suspect many folks engaged in debates over the wisdom of mandatory minimum sentencing provisions at least feel comfortable with the suggestion that persons convicted of first-degree murder ought to always be mandated to serve at least decades in prison.  Indeed, many folks who advocate for the abolition of the death penalty do so by suggesting mandatory LWOP is the right alternative sentence for those deemed the worst kinds of killers under state homicide laws.  Though lots of folks (myself included) are troubled by mandatory long prison terms for lower-level drug or gun offenses, lots of folks (myself included) are much less troubled by some mandatory prison requirements in the sentencing rules for how the justice system responds to the very worst intentional violent crimes.

But the provocative question in the title of this post is prompted by a sentencing story developing today in Ohio, which is explained in this AP report headlined "John Wise, attorney to seek clemency from governor in wife's hospital killing." Here are the details:

A man convicted of fatally shooting his ailing wife in her hospital bed will seek clemency from the governor after his sentencing Friday, even if the judge follows a prosecutor's recommendation for a lighter punishment because of the unique circumstances of the case.

John Wise, 68, has said he shot his debilitated wife out of love in August 2012 after she suffered an aneurysm and appeared to be in pain at an Akron hospital. Mercy is not a defense to a murder charge in Ohio. Wise, of Massillon, was convicted on charges including aggravated murder with a firearm specification, which could carry a life sentence.

Summit County Prosecutor Sherri Bevan Walsh called Wise's actions illegal and dangerous but said the case warrants sentencing leniency.  She has recommended that Wise be sentenced on a lesser crime and get a six-year term. "In light of the unique facts of this case, a shorter prison sentence is just," she said in a statement.

Whatever the sentence, the defense will pursue clemency from the governor and "will be seeking public support from those who sympathize with John and this situation," defense attorney Paul Adamson said in an email.

Judge Mary Margaret Rowlands in Akron has told attorneys the sentence must fit within legal limits. Neither side found previous case law to support the prosecutor's suggestion that the judge could sentence Wise to six years behind bars for manslaughter, a charge that wasn't among the counts against him but is considered a lesser included offense, Adamson said.

With charges merged for sentencing, it's also possible Wise could get a six-year term if the prosecution asks the judge to sentence him for felonious assault, one of three charges on which he was convicted. April Wiesner, a spokeswoman for the prosecutor, wouldn't say Thursday whether the office intends to pursue that option.

As my first-year Crim Law students know well, "Aggravated Murder" is Ohio's term for first-degree murder and Ohio sentencing law expressly provides that "Whoever is convicted of or pleads guilty to aggravated murder in violation of section 2903.01 of the Revised Code shall suffer death or be imprisoned for life...." Consequently, I am not aware of a sound legal basis for the prosecutor or judge in this case to recommend or impose any sentence other than an LWOP term for the aggravated murder charge. I surmise that the local prosecutor here may be asking for the judge not to sentence on that charge or to have it reduced or dismissed in some way before sentencing.

Ironically, I think the defendant and his lawyer here might want the sentencing judge to feel compelled to impose LWOP and thereby heighten the argument for some kind of clemency relief from Gov. Kasich. If the defendant here gets "only" six years in prison, I suspect it would be much easier for the Governor to leave such a sentence in place and conclude that justice for this murderer has already been tempered by mercy.  Indeed, I am inclined to think that the prosecutor here has decided only to seek a six-year prison term for an aggravated murderer because she hope to bring a function end to this case at sentencing today rather than have to deal with a compelling clemency case if John Wise were to get an LWOP sentence.

UPDATE:  This new AP report indicates that this aggravated murderer somehow received a sentence of only six years' imprisonment, as prosecutors had recommended:

An Ohio man convicted of fatally shooting his ailing wife in her hospital bed was sentenced Friday to six years in prison and plans to seek clemency from the governor....

The sentence issued by Summit County Court of Common Pleas Judge Mary Margaret Rowlands was in line with prosecutors' recommendation that the Massillon man receive a lighter punishment than the minimum 23 years on his most serious conviction, an aggravated murder count.

Holding a cane and wearing a striped jail outfit, Wise remained seated during the hearing. He made a brief statement, choking up as he apologized to his family and his son. He also thanked the prosecutors and the court.

Prosecutors said the case warranted leniency, but they emphasized that Wise's actions were illegal. "It is not our intention to minimize what happened. You cannot bring a loaded gun into a hospital and shoot someone," Summit County Prosecutor Sherri Bevan Walsh said in a statement after the sentencing.

In court, Assistant Prosecutor Brian LoPrinzi told the judge: "We believe that although his motive may have been pure, he was wrong."

Wise's attorney, Paul Adamson, said they will pursue clemency from the governor and create an online petition for supporters to sign. He called the shooting "an aberrational act" for Wise. "I've never represented a finer man," Adamson told the judge. The prosecutor's office said it would oppose any reduction in Wise's punishment.

Among those at the sentencing was Liz Flaker, one of the jurors who convicted Wise after he pursued an insanity defense. She said the jurors, who deliberated for several hours, took two votes. The first was 9-3 in favor of conviction; the second was unanimous. "There was really no split, per se, but I think there were a couple of people that kind of wavered on ... thinking was he insane or was he not insane," Flaker said. "I think the way the law was written for the state of Ohio is a little bit hazy."

Prosecutors had recommended that Wise be sentenced to six years for manslaughter, a charge that wasn't among the counts against him but is considered a lesser included offense. After neither side found previous case law to support that unusual suggestion, the prosecution instead asked the judge to sentence Wise under his felonious assault conviction with a firearms specification, and the judge did so. Wise also was convicted of aggravated murder with a firearm specification and murder, which could have led to a life sentence.

Police say Wise calmly walked into the hospital room on Aug. 4, 2012, and shot his wife of 45 years at her bedside. She died the next day. Wise told police he intended to kill himself, too, but the weapon jammed.

December 13, 2013 in Clemency and Pardons, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack

Wednesday, November 27, 2013

"20% Of Obama’s Pardons Have Gone To Turkeys"

Presidential-pardonsThe title of this post is the fitting headline devised by Andrew Sullivan for this post from The Dish. The post links to this longer lament of the entire turkey pardon ritual by Brad Plummer, which winds down this way:

It's a mockery of the presidential pardon, which is an all-too neglected issue. Maybe this isn't surprising, since the turkey pardon was basically invented as a way of mocking presidential pardons. Still, it's worth mentioning.

After tomorrow, Obama will have "pardoned" 10 turkeys in all (turkeys that, as best we can tell, haven't actually committed any crimes). By contrast, he will have only pardoned or commuted the sentences of 40 actual living human beings.

The latter is a record low for modern-day presidents.  At the same point in his presidency, Ronald Reagan had pardoned 313 people.  Harry Truman had pardoned 1,537 people.

Last year, Sam Morrison, an official who spent 13 years in the Justice Department's Office of the Pardon Attorney before retiring in 2010, described the prevailing attitude toward pardons this way: "They tend to view any grant of clemency not as a good thing, as a criminal justice success story, but almost as a defeat — that you're taking away something from what some good prosecutor achieved." (The Justice Department disputed this characterization.)

Over at National Journal, Ron Fournier pointed out that, at the bare minimum, Obama could grant clemency to all the people still serving extra time in prison under the old crack-sentencing guidelines — guidelines that Obama himself opposed as excessive and which Congress reduced for all new prisoners in 2010.  So far, however, there's no sign that the White House will do this.

Of course, comparing Prez Obama's pitiful clemency record to the records of prior presidents like Ronald Reagan or Harry Truman is quite unfair — to Reagan and Truman. The federal criminal justice system and the federal prison population (not to mention the negative consequences of a federal record) were all much, much smaller when Reagan and Truman were President, and thus the number of federal offenders and prisoners formally seeking clemency was much lower. Indeed, these official clemency statistics reveal that Prez Obama gets about 10 times as many formal commutation requests than Prez Reagan got each year (which, is not so surprising given that the federal prison population is nearly 10 times larger now than it was when Reagan first became President).

Indeed, if we focus on only commutations, President Obama's record looks even more revolting.  As Jacob Sullum notes here at Forbes, Obama has only commuted a single federal prison sentence.  Thus, as the Forbes headline states, "Judging From His Clemency Record, Obama Likes Turkeys 10 Times As Much As People."

November 27, 2013 in Clemency and Pardons, Criminal justice in the Obama Administration, Scope of Imprisonment, Who Sentences? | Permalink | Comments (6) | TrackBack

Tuesday, November 26, 2013

Can Prez Obama be trusted to live up to clemency reform promises?

Perhaps the only thing I have grown to dislike about Thanksgiving in modern times is all the pomp and circumstance (and the lame-stream media's attention) given to the silly tradition of having the President pardon a turkey.  Regular readers kow that this silly tradition is distinctly galling of late given the Obama Administration's truly disgraceful record on granting clemency to real humans rather than tasty animals.  Fortunately, this new article at The National Journal is covering the real story with reference to the well-known case of (my former client) Weldon Angelos under the headline "Will Obama Pardon This Man (and Many Like Him) or Just a Turkey?: The White House is considering clemency reform, sources say, after compiling a historically unmerciful record." Here is how this piece starts:

President Obama on Wednesday will pardon a Thanksgiving turkey. Which makes this a good time to ask why a liberal constitutional lawyer who bemoans the bloated prison system and proclaims that "life is all about second chances" is -- on the matter of clemency -- one of the stingiest presidents in U.S. history? Put another way: If a turkey deserves a second chance, why not Weldon Angelos?

Angelos was sentenced in 2004 to 55 years' imprisonment for possessing a firearm in connection with selling small amounts of marijuana. He didn't brandish or use a weapon, nor did he hurt or threaten to injure anybody. And yet the father of young children and an aspiring music producer was given an effective life sentence because of a draconian federal law requiring mandatory minimum sentences.

Even the judge on his case, Paul G. Cassell, found the sentence "cruel and irrational." While urging Obama to reduce Angelos's punishment, the Republican-appointed judge wrote, "While I must impose the unjust sentence, our system of separated powers provides a means of redress."

More than almost any president, Obama has failed to exercise that "means of redress" inscribed in the Constitution, the presidential clemency. But that may be changing. The White House is considering a broad range of clemency reforms.

One reason I am among the majority of Americans who now, according to the latest polling, thinks is Obama is not honest or trustworthy is because we have been hearing from this White House vague talk about clemency reform for years now and yet have not seen one whit of action on this front despite mountains of evidence (and lots of talk from Attorney General Holder) that reform is badly needed and long overdue.

Long-time readers likely recall that I blogged and complained a lot about these issues during the first few years of the Obama Administration when I still believed that this President meant what he said and said what he meant. But in recent years I have concluded that this Prez is in this context happy and generally eager to talk the talk without ever walking the walk.

I certainly will continue to hold out hope that we may eventually see this White House develop "a broad range of clemency reforms," and I remain (naively?) optimistic that the Obama team will do at least a little something (at least for show) on this front come mid-November 2014 or 2016. But I have long been tired of the talk and too long been waiting for action to really from the current Administration, and I instead like spending my time imagining what a President Rand Paul might be willing and able to do with the historic constitutional power of clemency.

Some recent and a few older posts concerning federal clemency practices:

November 26, 2013 in Clemency and Pardons, Scope of Imprisonment, Who Sentences? | Permalink | Comments (9) | TrackBack

Thursday, November 14, 2013

Some early reactions to Gov. Kasich's surprise decision delay execution to explore organ donation

Ohio Gov. John Kasich's decision to postponed today's scheduled execution of child-killer Ronald Phillips in order to determine if he can donate his organs prior to (or during?) his execution (reported here), has already, not surprisingly, generated considerable attention and has prompted a number of follow-up questions.  Here is some of the early buzzing and queries drawn from today's media headlines:

My own questions include whether (or really when) all the other condemned persons on on Ohio's death row will also offer to donate their organs if (and perhaps only when) their other legal appeal fail and they are only days from a scheduled execution.

Recent related post:

November 14, 2013 in Clemency and Pardons, Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (6) | TrackBack

"Misconstruing Graham & Miller"

The title of this post is the title of this notable new piece by Cara Drinan now up at SSRN. Here is the abstract:

In the last three years the Supreme Court has decreed a sea change in its juvenile Eighth Amendment jurisprudence. In particular, in its Graham v. Florida and Miller v. Alabama rulings, the Court struck down a majority of the states’ juvenile sentencing laws, outlawing life without parole for juveniles who commit non-homicide offenses and mandating individualized sentencing for those children who commit even the most serious crimes.  An examination of state laws and sentencing practices, however, suggests that the Graham and Miller rulings have fallen on deaf ears.  After briefly describing what these two decisions required of the states, in this Essay, I outline the many ways in which state actors have failed to comply with the Court’s mandate. Finally, I map out a path for future compliance that relies heavily upon the strength and agility of the executive branch.

November 14, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Clemency and Pardons, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Wednesday, November 13, 2013

"Kasich postpones execution of inmate who wants to donate organs"

The title of this post is the headline of this breaking news story reporting some surprising news coming from Ohio this afternoon.  Here are details:

In an unprecedented move, Gov. John Kasich has postponed the execution of Akron child-killer Ronald Phillips scheduled for Thursday to determine if his organs can be harvested. It has been rescheduled for July 2, 2014.

In a statement released this afternoon, Kasich halted Phillips’ execution “so that medical experts can assess whether or not Phillips’ non-vital organs or tissues can be donated to his mother or possibly others.”

“Ronald Phillips committed a heinous crime for which he will face the death penalty. I realize this is a bit of uncharted territory for Ohio, but if another life can be saved by his willingness to donate his organs and tissues then we should allow for that to happen,” Kasich said.

Phillips, 40, was sentenced to die for the 1993 beating, rape and murder of three-year-old Sheila Marie Evans, the daughter of his girlfriend at the time. The governor said if Phillips “is found to be a viable donor to his mother or possibly others awaiting transplants of non-vital organs, such as kidneys, the procedures would be performed and then he would be returned to Death Row to await his new execution date.”

Phillips asked earlier this week if he could donate his organs to his mother or others, but the Ohio Department of Rehabilitation and Correction rejected his request.

Wowsa. I have to catch my breath and think about this a lot before I am sure how to react. While I do so, I look forward to hearing reactions from both the pro and anti death penalty crowd in the comments.

November 13, 2013 in Clemency and Pardons, Death Penalty Reforms, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (11) | TrackBack

Monday, November 11, 2013

How about a few clemency grants, Prez Obama, to really honor vets in need on Veterans Day?

On Veterans Day, I always find myself thinking about veterans who, after serving our country in the military and thereby supporting of our nation's commitment to liberty and freedom, return home and discover the hard way that these constitutional values are not always paramount in our modern criminal justice systems.  This Daily Beast piece, headlined "From PTSD to Prison: Why Veterans Become Criminals," highlights that there are now probably hundreds of thousand of veterans in America's prison and jails:

In 2008 the RAND Corporation surveyed a group of veterans six months after their return. It found that almost one in five had either PTSD or major depression. In recent years rates of substance abuse and suicide among veterans have also ticked steadily upward.

A certain number of veterans suffering from mental-health issues will, invariably, end up in jail or prison. After Vietnam, the number of inmates with prior military service rose steadily until reaching a peak in 1985, when more than one in five was a veteran. By 1988, more than half of all Vietnam veterans diagnosed with PTSD reported that they had been arrested; more than one third reported they had been arrested multiple times. Today veterans advocates fear that, unless they receive proper support, a similar epidemic may befall soldiers returning from Iraq and Afghanistan.

No one knows how many veterans are incarcerated, but the most recent survey, compiled by the Department of Justice’s Bureau of Justice Statistics in 2004, found that nearly one in 10 inmates in U.S. jails had prior military service. Extrapolated to the total prison population, this means that approximately 200,000 veterans were behind bars.

As the title of this post highlights, I would like to see President Obama go beyond the usual symbolic gestures and use his historic clemency powers to salute at least a few veterans in federal prison with commutations that would create just a bit more physical liberty and honor a few more veterans with pardons that would free offenders from the enduring collateral consequences of a federal criminal conviction.

This effective recent op-ed by Mark Osler, headlined "Clemency is a task for people and institutions of faith; It should also be a task for the president, but he seems unwilling or unable to use his powers," starts by noting why, sadly, I am not expecting the President to step up to the clemency plate today or anytime soon:

President Obama is, by a wide margin, the stingiest president in modern times in his use of the pardon power.  He seems unwilling or unable to use this simple constitutional tool, even as both conservative and progressive commentators are criticizing the federal government’s overincarceration of nonviolent offenders.  A simple way to alleviate that problem would be to commute (shorten) the most egregious of these sentences using the pardon power.

Some recent and a few older posts concerning federal clemency practices:

November 11, 2013 in Clemency and Pardons, Offender Characteristics, Who Sentences? | Permalink | Comments (2) | TrackBack

Sunday, October 13, 2013

Lethal uncertainty: Mizzou Gov postpones execution due to novel drug concerns

As reported in this AP piece, headlined "Missouri gov. halts 1st US execution by propofol," the Show Me State has decided to delay its efforts to show whether a new drug might be used successful to executed condemned murderers. Here are the details:

Missouri Gov. Jay Nixon on Friday halted what was to have been the first U.S. execution to use the popular anesthetic propofol, following threats from the European Union to limit the drug's export if it were used for that purpose.

Nixon also ordered the Missouri Department of Corrections to come up with a different way to perform lethal injections without propofol, the leading anesthetic used in America's hospitals and clinics. Nearly 90 percent of the nation's propofol is imported from Europe.

"As governor, my interest is in making sure justice is served and public health is protected," Nixon said in a statement. "That is why, in light of the issues that have been raised surrounding the use of propofol in executions, I have directed the Department of Corrections that the execution of Allen Nicklasson, as set for October 23, will not proceed."

Nixon, a Democrat and staunch supporter of the death penalty, did not specifically mention the EU threat in his brief statement. Nixon was Missouri's longtime attorney general before he was first elected governor in 2008. During his 16 years as attorney general, 59 men were executed.

The leading propofol maker, Germany-based Fresenius Kabi, and anesthesiologists had warned of a possible propofol shortage that could impact millions of Americans if any executions took place.

In a statement, Fresenius Kabi applauded Nixon's move. "This is a decision that will be welcomed by the medical community and patients nationwide who were deeply concerned about the potential of a drug shortage," said John Ducker, CEO of Fresenius Kabi USA. The company said propofol is administered about 50 million times annually in the U.S....

Drug makers in recent years have stopped selling potentially lethal pharmaceuticals to prisons and corrections departments because they don't want them used in executions. That has left the nearly three dozen death penalty states, including Missouri, scrambling for alternatives. Missouri altered its execution protocol in April 2012 to use propofol. The drug gained some level of infamy in 2009 when pop star Michael Jackson died of a propofol overdose.

Nixon's decision also leaves uncertain the execution scheduled for next month for another convicted killer, Joseph Franklin. Soon after Nixon's announcement, Missouri Attorney General Chris Koster filed a motion with the Missouri Supreme Court to vacate the Oct. 23 execution date for Nicklasson and to set a new date "soon after" Franklin's execution date of Nov. 20. A spokeswoman for Koster declined comment.

In addition to concerns raised about how the EU would respond to the execution, Missouri's decision to use propofol prompted a lawsuit filed on behalf of nearly two dozen death row inmates claiming use of the unproven execution drug could result in pain and suffering for the condemned man.

Koster, a Democrat, and Republican Missouri state Sen. Kurt Schaefer have suggested that if the state can't execute by lethal injection it consider going back to the gas chamber, something that hasn't been used since the 1960s. Missouri no longer has a gas chamber but Schaefer recently wrote to Nixon, urging him to consider funding construction of a new one in his next fiscal year budget.

The corrections department on Wednesday agreed to return a shipment of propofol to Louisiana-based distributor Morris & Dickson Co. The company distributes propofol made in Europe by Fresenius Kabi and told the corrections department in November that its shipment was a mistake. Corrections spokesman David Owen said Wednesday that Missouri had a remaining supply of propofol, all of it domestically made. But Fresenius Kabi spokesman Matt Kuhn said even the use of domestically produced propofol in an execution could prompt the EU to impose export controls.

Meanwhile, Mercer Medical, a Kent, Wash.-based third-party vendor, said Friday in a news release it has asked for the 400 milliliters of propofol it sold to the corrections department in June be returned at the request of the manufacturer, Hospira. The website for Hospira says it is headquartered in Lake Forest, Ill....

Nicklasson's attorney, Jennifer Herndon, said she was pleased with the delay, but expects the state to move quickly to revise its execution protocol. "They're pretty anxious to execute people so I would think that the state would put something forward sooner rather than later," Herndon said.

October 13, 2013 in Baze lethal injection case, Clemency and Pardons, Death Penalty Reforms, Who Sentences? | Permalink | Comments (10) | TrackBack

Thursday, September 19, 2013

"Rethinking the Timing of Capital Clemency"

The title of this post is the title of this notable new paper by Adam Gershowitz which now is available via SSRN.  Here is the abstract:

This article reviews every capital clemency over the last four decades.  It demonstrates that in the majority of cases, the reason for commutation was known at the conclusion of direct appeals — years or even decades before the habeas process was concluded.  Yet, when governors or pardon boards actually commuted the death sentences, they typically waited until the eve of execution, with only days or hours to spare.

Leaving clemency until the last minute sometimes leads to many years of unnecessary state and federal habeas corpus litigation.  This article documents nearly 300 years of wasted habeas corpus review.  Additionally, last-minute commutations harm the victims’ families by delaying closure for years.  And placing clemency at the very end of the process creates an information cascade that makes it harder for governors to grant clemency in meritorious cases.  This article therefore argues for a threshold clemency determination in capital cases at the conclusion of direct review, before any state or federal habeas litigation has begun.

September 19, 2013 in Clemency and Pardons, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack