Thursday, January 22, 2015

NACDL explains the massive work behind Clemency Project 2014

Download (1)As noted in this prior post, Senate Judiciary Committee Chair Chuck Grassley last week sent this letter to Attorney General Eric Holder asking a number of questions about the relationship between the Justice Department and outside groups working on "Clemency Project 2014." Though AG Holder has not yet, to my knowledge, late last week one of the key groups involved in Clemency Project 2014 described its work and the broader project.

Specifically, the NACDL on Friday sent around this lengthy news release (which I believe was a joint statement by all of the groups working together on this project) titled "Clemency Project 2014: A Historically Unprecedented and Wholly Independent Volunteer Effort By the Nation's Bar." The release merits a full read for those following closely the current activities surrounding federal clemency, and here is an excerpt:

An army of volunteer lawyers are diligently working on behalf of thousands of prisoners who have requested free legal assistance in drafting and submitting clemency petitions. This unprecedented, wholly independent effort by the bar, facilitated by the organizations which make up Clemency Project 2014, seeks to achieve justice for those prisoners. It reflects these organizations' shared commitment to the highest calling of the legal profession.

At its core, Clemency Project 2014 is a vehicle through which attorneys, responding to the Department of Justice's call for the bar to offer free assistance to potential petitioners, may participate in this important initiative.  The Project has not been delegated any responsibility or authority by the Department of Justice.  The Project expects the Department of Justice to treat these petitions as they would any other well-reasoned petition in making its recommendations to the President, who is the sole authority for granting clemency.  Many prisoners have applied directly to the Department of Justice for clemency without using the lawyers working with Clemency Project 2014, and/or are using counsel they identified and retained outside of the Project.

Since its conception less than a year ago, Clemency Project 2014 created a training and case management infrastructure to prepare an army of volunteer lawyers. Indeed, in just a handful of months, the Project:

  • Provided volunteer support from each of the entities to organize a mechanism for outreach to inmates and attorneys, and to develop a technological infrastructure;

  • Received critical funding from the ACLU and supplemental funding from the Foundation for Criminal Justice to fund and recruit three critical staff positions to oversee the effort;

  • Obtained donated office space and technological infrastructure from the National Association of Criminal Defense Lawyers (NACDL);

  • Enabled Project administrators to efficiently review, sort, and assign prisoner requests, and created and implemented an electronic database to efficiently organize detailed prisoner requests for assistance that at last count numbered more than 26,000;

  • Developed and deployed an extensive, multi-hour legal education training program (available on demand to any interested attorney at no charge) to ensure that all volunteer lawyers, from any practice background, will be equipped with the tools necessary to evaluate and prepare petitions for submission to the Office of Pardon Attorney for its review and consideration;

  • Responded to a legal memorandum issued by the Administrative Office of the Courts that opined that federal public defenders may not provide representation in clemency matters, by recruiting additional volunteer attorneys to fill the void while federal defenders continue to assist in gathering documents on behalf of former clients, and to provide administrative support for the Project;

  • Worked with the Lawyers Committee for Civil Rights Under Law to recruit more than 50 large firms, bringing hundreds of additional lawyers to the process;

  • Established and implemented a multi-tier process to assist volunteer lawyers in identifying potentially eligible applicants and preparing petitions for submission to the Office of Pardon Attorney for consideration....

  • Assigned 5,310 cases to volunteer attorneys;

  • Provided individual notice to several thousand applicants with a sentence of less than ten years, a disqualifying factor under the Justice Department's criteria;

  • Established a website with information for the public, including family members; and

  • Offered ongoing, individual legal support, resource materials, and on demand training to more than 1,500 volunteer attorneys.....

This endeavor has brought in lawyers from vastly diverse practice backgrounds, more than 50 of the nation's largest and most prestigious law firms and law clinics, leading not-for-profit organizations, and the criminal defense bar to answer the call made last year by Deputy Attorney General James Cole before the New York State Bar Association.

Some prior related posts:

January 22, 2015 in Clemency and Pardons, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Thursday, January 15, 2015

"Are Pardons Becoming More Politically Acceptable?"

The question in the title of this post is the headline of this new Governing article. The piece has the subheadline, "Gubernatorial pardons have been in decline since the 1980s, but that appears to be changing as views evolve on rehabilitation and drug offenses." And here are excerpts:

Last Friday, on his last full business day in office, Illinois Gov. Pat Quinn pardoned 232 ex-offenders. That same day, in neighboring Indiana, Gov. Mike Pence issued three pardons -- the first during his two years in office.

Which governor’s actions were standard? Until recently, it would have been easy to pick Pence. For decades now, governors have been sparing with pardons, not wanting to be perceived as lenient and worrying about the political risks that can come with pardoning people who go on to commit further crimes.

But gubernatorial pardons may be about ready to start making a comeback. As part of the broader rethinking of criminal justice strategies, in which concerns about rehabilitation, exonerations and expungement of records have become part of the mix, more governors seem willing to embrace their historic role of offering clemency to those who have earned it.

Quinn offered 43 additional offenders clemency during his last minutes in office on Monday, bringing his career total well above 1,000. Virginia Gov. Terry McAuliffe issued nearly 50 pardons during his first year in office, while California’s Jerry Brown gave out more than 100 on Christmas Eve.

Those sorts of numbers still stand out. The number of gubernatorial pardons has dropped dramatically in recent decades, according to legal experts. Plenty of governors these days only offer a few pardons a year, if that many. But governors offering a regular flow of pardons are no longer the outliers that they would have been just a few years ago. "I do have a sense that people like Quinn represent the future," said P.S. Ruckman Jr., a political scientist at Rock Valley College in Illinois and editor of the Power Pardon blog. "There is kind of a different mindset."

One telltale sign of that, Ruckman points out, is that some new governors, including Larry Hogan of Maryland and Bruce Rauner of Illinois, talked during the campaign last year about the importance of taking the pardon power seriously in office. "That wouldn’t have happened in the 1980s,” Ruckman said....

States that have either independent pardoning boards or entities whose recommendations are necessary for a governor to issue a pardon, such as Connecticut and Georgia, have been more active on the clemency front than governors acting alone. A number of those states routinely grant upwards of 200 pardons per year.

Still, governors from both parties, such as Democrat Andrew Cuomo of New York and Republican Scott Walker of Wisconsin have offered either few or no pardons. There’s still a “political fear quotient” involved in pardoning someone who might go on to commit a heinous crime, noted former Maryland Gov. Bob Ehrlich. "Unfortunately, we only talk about pardon policy when something goes wrong," said Mark Osler, a law professor at the University of St. Thomas in Minnesota.

That’s why governors need to be careful, Ehrlich said, putting regular review processes in place and not bunching up all their decisions at holidays or as they leave office. That's the approach outgoing Arkansas Gov. Mike Beebe has taken, reviewing applications on a monthly basis throughout his tenure. Ehrlich has made pardons something of a personal cause, speaking frequently about the responsibility governors have regarding clemency. He runs a program to delineate best practices at Catholic University and offers advice to incoming governors....

“One thing that will be interesting to watch is that President Obama” -- who has issued the fewest pardons of any president since Dwight Eisenhower -- “has a clemency project that may or may not result in hundreds of sentences being commuted,” said Osler. “Maybe that will embolden some of these more liberal governors as well.”

January 15, 2015 in Clemency and Pardons, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Tuesday, January 13, 2015

Senator Grassley queries DOJ concerning its work with Clemency Project 2014

Josh Gerstein has this notable new piece up at Politico headlined "Grassley questions Obama commutation drive," about a notable new inquiry directed to Attorney General Holder concerning the Obama Administration's (quirky?) efforts to ramp up its clemency activities. Here are excerpts:

New Senate Judiciary Committee Chairman Sen. Chuck Grassley is questioning the arrangements surrounding President Barack Obama's drive to shorten the sentences of some drug convicts.

In a letter sent Tuesday to Attorney General Eric Holder, the Iowa Republican asks for information about the relationship between the Justice Department and "Clemency Project 2014" — a consortium of outside groups formed in response to calls from administration officials to help federal prisoners prepare applications for the clemency effort.

"I am unaware of any time in history in which the Department of Justice has delegated any of these core attributes of presidential power to private parties beholden to no one, and who have their own agendas that may not coincide with the President's," Grassley wrote in the letter (posted here). "When private parties are wrongly given the ability to exercise any role in that public trust, then both the fairness of the pardon process and the appearance of its fairness are jeopardized."

Grassley's letter draws in large part on a POLITICO story last week which said that the new effort is struggling with more than 25,000 requests from inmates and that lawyers involved in the project have suggested applicants which route their clemency petitions through the project will stand a better or faster chance of favorable action than those who submit applications independently. The project—run by the American Civil Liberties Union, the American Bar Association, Families Against Mandatory Minimums and the National Association of Criminal Defense Lawyers— is also screening applications and weeding out those it considers unmeritorious under criteria the Justice Department set forth last April.

"Please tell me what formal arrangements exist between the Department and the Clemency Project 2014 to coordinate the processing of pardon applications, including what direction Clemency Project lawyers are given, what actions they take for the Department, and, how, if at all, Department of Justice lawyers consider the work product provided by these organizations or follow their recommendations," Grassley wrote. The senator also asks if anyone in the Justice Department is aware of statements suggesting those who submit applications through the project will have "superior access to the Department's pardon process."...

Grassley's letter refers to "pardon applicants," but the petitions prisoners are submitting are actually requests for commutations — a form of executive clemency that serves to shorten a prisoner's sentence.

The president can grant a commutation to anyone for virtually any reason. However, such applications are traditionally routed through the Justice Department's Office of the Pardon Attorney, which prepares recommendations and sends them to the department's No. 2 official, who forwards them to the White House.

The new commutation drive the Justice Department announced last year is aimed largely at paring back the sentences of convicts sent to prison for long terms relating to trafficking in crack cocaine. Those prisoners tend to be disproportionately minority as compared to those convicted of handling powdered cocaine. A law Obama signed in 2010 reduced that disparity for defendants sentenced after that time, but it was not retroactive.

The full Grassley letter is quite interesting, and not just because it gives some grief to Obama Administration about how it appears to be approaching its latest clemency push.  The letter asked a host of hard questions about what exactly DOJ and Clemency Project 2014 are up to, while also asserting in a final paragraph that "[j]ustice in the award of presidential pardons requires a transparent, fair process." And, unsurprisingly, the letter does not mention the sad reality that presidential clemency actions of the last two presidents have involved nothing resembling a "transparent, fair process."    

Among other notable aspects of this letter, Senator Grassley's obvious interest in these matter suggests that clemency issues are likely to be raised in some way during the upcoming confirmation hearings for AG Holder's replacement.  

January 13, 2015 in Clemency and Pardons, Criminal justice in the Obama Administration, Drug Offense Sentencing, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Saturday, January 10, 2015

Should honoring vets and PTSD call for commuting a death sentence?

The question in the title of this post is prompted by this Reuters story headlined "Vietnam veteran in Georgia pleads to be spared the death penalty." Here are excerpts:

Lawyers for a decorated Vietnam War veteran due to be executed in Georgia next week say his life should be spared because he was suffering from a combat-related mental disorder when he killed a sheriff’s deputy in 1998.

Andrew Brannan's guilt is not disputed. He shot Laurens County Deputy Sheriff Kyle Dinkheller, 22, nine times during a traffic stop, a scene caught on tape by the deputy's patrol car camera.

Defense attorneys argue Brannan, 66, should not be put to death for behavior they say is linked to post-traumatic stress disorder triggered by his combat service. On Monday, they will ask the state Board of Pardons and Paroles to commute Brannan's sentence to life in prison without parole. “Commuting his sentence would honor his very meritorious service to this country,” said Brian Kammer, one of Brannan’s lawyers. “We should not be executing those we sent into harm’s way and who were deeply wounded, physically and mentally.”...

Brannan received Army commendations and a Bronze Star for his service as an officer, Kammer said. He was on full Army disability for PTSD and had been diagnosed with bipolar disorder before killing Dinkheller, the lawyer said.

Brannan, who had no prior criminal record, was driving 98 miles per hour on a Georgia highway when Dinkheller pulled him over in January 1998, according to court records. The video recording showed Brannan stepping out of his truck, cursing and telling the deputy to shoot him....

Brannan pleaded not guilty by reason of insanity at his trial. Some experts testified that during the shooting he suffered a flashback from combat, but a court-appointed psychiatrist said Brannan was sane and may have killed the deputy because he believed the officer was being disrespectful.

Brannan's execution is scheduled for Tuesday. He would be the first person put the death in the United States this year.

I am inclined to assert that this offender's decorated service on behalf of our nation as well as his undisputed mental problems indisputably means that Brannan is not one of the "worst of the worst" killers. For that reason, I would be inclined to support this defendant's commutation request.

Do others agree?

Some older related posts:

January 10, 2015 in Clemency and Pardons, Death Penalty Reforms, Offender Characteristics, Sentences Reconsidered | Permalink | Comments (21) | TrackBack

Monday, January 05, 2015

Extraordinary review of messiness of Prez Obama's clemency push

Josh Gerstein has this extraordinary Politico piece which provides a terrific (and disconcerting) review of the Obama Administration's recent clemency activities.  The lengthy piece is a must-read for lots of reasons. It is headlined "Obama's drug-sentencing quagmire: Justice Department turns to ACLU, others to prepare thousands of commutation requests," and here is how it starts:

President Barack Obama’s sweeping plan to commute the sentences of nonviolent drug offenders who were caught up in the disparities in laws governing crack and powder cocaine is lagging, burdened by vague guidelines, lack of Justice Department resources and the unusual decision to invite advocacy groups like the ACLU to help screen applications, according to lawyers close to the process.

In the year since the Justice Department encouraged inmates to apply to cut short their sentences, more than 25,000 prisoners have come forward.  But when Obama announced his annual commutations last month, only eight were given.  That reflects deeper problems in the government’s process for reviewing sentences and determining which ones are, indeed, overly long because of the crack-powder distinction, according to those familiar with the system.

The piece includes lots of interesting and notable comments by various unnamed lawyers discussing how the President, the Justice Department, and the Clemency Project 2014 are handling matters. Here are excerpts with some of these quotes:

With so many thousands of petitions pending, the tiny number of commutations announced during the Christmas season prompted a new round of skepticism about the administration’s capacity to ease onerous drug sentencing.

“This is paltry,” said one lawyer familiar with the process. “It is very disappointing.”

“I’d be shocked if it skyrockets to 100 before [Obama] leaves office,” another added....

[DOJ] officials encouraged the groups forming the Clemency Project to recruit and train private attorneys to prepare applications. The organizations have instituted their own screening effort to try to determine if prisoners meet the criteria and to make sure the private lawyers spend time on meritorious cases....

Some liberal-leaning lawyers and clemency advocates ... say the private consortium has taken on an outsize, quasi-official role in the process and has an inherent conflict of interest: Project organizers want to get the strongest possible applications to the Justice Department, which may mean abandoning prisoners whose cases fall into a gray area.

“It bothers me that you have a group of private citizens who have an under-the-table deal with the deputy attorney general to help him do his job and the promise is, ‘We’re going to put your guys at the front of the list,’” one lawyer involved said.  “Instead of dealing with a process that’s already opaque and bureaucratic and too slow, they’ve added this additional layer that’s even more opaque and bureaucratic and too slow.”...

One benefit to the administration of its current approach of working with outside groups is that it could mute criticism from advocates wrapped up in the effort — at least as long as there seems to be a prospect of a meaningful wave of commutations.  “They’ve co-opted all the people who would usually be critics,” said one lawyer close to the project.  “You have that dynamic in play, and I’m not sure that’s a good thing.”

The Clemency Project groups insist their involvement hasn’t silenced them.

Though I am not too concerned about clemency critics being co-opted through the Clemency Project, I am concerned about what will be a poor allocation of pro bono lawyering efforts if 1,500 lawyers spend months and years working on clemency applications for thousands of offenders if Prez Obama ends up granting commutations to only a few hundred prisoners. I genuinely believe that an army of 1,500 lawyers working on aggressive for months and years on federal sentencing litigation — perhaps in marijuana cases or attacking some extreme mandatory minimums through habeas actions or other means — could produce jurisprudential development that could end up helping many more than a few hundred defendants.

January 5, 2015 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9) | TrackBack

"Is Obama Finally Ready To Dial Back The War On Drugs?"

Meme1The title of this post is the headline of this lengthy Forbes piece by Jacob Sullum, which provides preview of sorts of of some of the biggest federal criminal justice issues to keep an eye on in the year to come. The piece merits a full read, and here are excerpts:

Some critics of the war on drugs — a crusade that Obama had declared “an utter failure” in 2004 — predicted that he would improve in his second term.  Safely re­elected, he would not have to worry that looking soft on drugs would cost him votes, and he would finally act on his avowed belief that the war on drugs is unjust and ineffective.  As Obama embarks on the third year of his second term, it looks like the optimists were partially right, although much hinges on what he does during the next two years.  Here are some of the ways in which Obama has begun to deliver on his promises of a more rational, less punitive approach to psychoactive substances:

Marijuana Legalization. Although the federal government cannot stop states from legalizing marijuana, it can make trouble for the ones that do by targeting state­licensed growers and retailers.  Under a policy announced in August 2013, the Justice Department has declined to do so, reserving its resources for cannabis operations that violate state law or implicate “federal law enforcement priorities.”...

Federal Marijuana Ban.... Contrary to the impression left by the president, the executive branch has the authority to reschedule marijuana without new legislation from Congress. In September, a few days before announcing that he planned to step down soon, Holder said whether marijuana belongs in the same category as heroin is “certainly a question that we need to ask ourselves.” Since the Controlled Substances Act empowers Holder to reclassify marijuana, it would have been nice if he had asked that question a little sooner. Still, Holder was willing to publicly question marijuana’s Schedule I status, something no sitting attorney general had done before.

Sentencing Reform.  Obama supports the Smarter Sentencing Act, which would make the 2010 crack penalty changes retroactive, cut the mandatory minimums for certain drug offenses in half, and loosen the criteria for the “safety valve” that allows some defendants to escape mandatory minimums.  Beginning last year, Holder has repeatedly criticized our criminal justice system as excessively harsh. Under a new charging policy he established last year, hundreds of drug offenders could avoid mandatory minimums each year....

Clemency.  After a pitiful performance in his first term, Obama has signaled a new openness to clemency petitions.  Last April an unnamed “senior administration official” told Yahoo News the administration’s new clemency guidelines could result in “hundreds, perhaps thousands,” of commutations.  Obama’s total so far, counting eight commutations announced a few weeks ago, is just 18, but he still has two years to go....

A few months ago, Obama chose former ACLU attorney Vanita Gupta, a passionate critic of the war on drugs who emphasizes its disproportionate racial impact (a theme Obama and Holder also have taken up), to head the Justice Department’s Civil Rights Division.  A year before her appointment, Gupta had criticized Holder’s moves on drug sentencing as an inadequate response to mass incarceration.  The previous month, she had endorsed marijuana legalization. The next two years will show whether Gupta’s appointment is a sop to disappointed Obama supporters or a signal of bolder steps to come.

If Obama actually uses his clemency power to free thousands, or even hundreds, of drug war prisoners, that would be historically unprecedented, and it would go a long way toward making up for his initial reticence.  He could help even more people by backing sentencing reform, which has attracted bipartisan support in Congress.  And having announced that states should be free to experiment with marijuana legalization, he could declare the experiment a success....

If none of those things happens, Obama’s most significant drug policy accomplishment may be letting states go their own way on marijuana legalization.  Even if our next president is a Republican drug warrior, he will have a hard time reversing that decision, especially given the GOP’s lip service to federalism.

This piece reviews some important basics, though hard-core sentencing fans know that there is a lot more the Obama Administration could be doing to radically reshape the battlefield in the modern federal drug war.

On the marijuana front, for example, DOJ could (and I think should) play an significant role defending Colorado as it gears up a response to the recent Supreme Court suit brought Nebraska and Oklahoma attacking its marijuana reform efforts. In addition, DOJ could (and I think should) be willing to interpret broadly the recent provisions enacted by Congress precluding it from using funds to interfere with state medical marijuana reform efforts.

On the broad drug war front, Prez Obama and DOJ could not only support the Smarter Sentencing Act but even try to give renewed life to the Justice Safety Valve Act. The JSVA, which Senator Rand Paul introduced and robustly promoted, would effectively reform the operation of all mandatory minimum sentencing provisions. Also Prez Obama and DOJ, especially in light of renewed concerns about racial biases in criminal justice systems, could (and I think should) return to the issue of crack sentencing reform. Specifically, given the apparent success of the Fair Sentencing Act of 2010, which only reduced the crack-powder disparity from the ridiculous 100-1 ratio to a ghastly 18-1, the Prez ought to get behind what I would call the Fully Fair Sentencing Act to eliminate any and all crack-powder sentencing disparity completely.

January 5, 2015 in Clemency and Pardons, Drug Offense Sentencing, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Pot Prohibition Issues, Race, Class, and Gender, Who Sentences? | Permalink | Comments (1) | TrackBack

Wednesday, December 31, 2014

Outgoing Maryland Gov commutes final four state death sentences to life

As reported in this CNN article, "Outgoing Maryland Gov. Martin O'Malley took the state's last four inmates off death row Wednesday, commuting their sentences to life in prison without parole in one of his final acts in office."  Here is more:

The move comes as the Democrat considers a run for president — a long-shot bid that many Democrats only expect to gain steam if Hillary Clinton opts not to run.

O'Malley's office announced the move in a release Wednesday morning, noting that the state's legislature had abolished the death penalty with a law that took effect in May 2013 and that the state's courts and attorney general have questioned whether the state has legal authority to carry out death sentences that were already imposed.

"In the final analysis, there is one truth that stands between and before all of us," O'Malley said in a statement.  "That truth is this — few of us would ever wish for our children or grandchildren to kill another human being or to take part in the killing of another human being. The legislature has expressed this truth by abolishing the death penalty in Maryland."

The four inmates whose sentences were commuted are Vernon Lee Evans Jr. and Anthony Grandison Sr., who were convicted of the 1983 contract killing of two witnesses scheduled to testify in a federal drug trial; Heath William Burch, convicted of killing an elderly neighbor couple in 1995; and Jody Lee Miles, convicted of robbing and shooting a theater manager in 1997.

O'Malley said in the statement that he'd met with the families of the victims of the four convicted killers whose sentences he commuted, and said they would suffer through "the additional torment of an un-ending legal process."

"In my judgment, leaving these death sentences in place does not serve the public good of the people of Maryland — present or future," O'Malley said.

Prior relates posts:

December 31, 2014 in Clemency and Pardons, Death Penalty Reforms, Who Sentences? | Permalink | Comments (2) | TrackBack

More notable new posts from the Collateral Consequences Resource Center

Because topics covered at the Collateral Consequences Resource Center are so interesting and get little attention in the mainstream media (or many other places in the blogoshere), I plan to continue noting in this space all the the notable posts regularly appearing at CCRC.  Here are a bunch more posts of notes from CCRC of as 2014 is winding down:

December 31, 2014 in Clemency and Pardons, Collateral consequences, Who Sentences? | Permalink | Comments (2) | TrackBack

Wednesday, December 17, 2014

President Obama (aka clemency grinch) grants a few holiday pardons and commutations

GrinchFollowing the holiday script he first wrote with a few clemency grants last year the week before Christmas (as reported in this prior post), President Obama this afternoon granted 20 clemencies in the form of 8 commutations and 12 pardons.  This AP story provides the basics and some background:

President Barack Obama on Wednesday cut short prison time for eight drug convicts as part of his new initiative to reduce harsh sentences under outdated guidelines, a step that could lead to a vast expansion of presidential clemency in his final two years in office.

The president also is pardoning 12 convicts for a variety of offenses.  But the commutations are particularly significant because they are the first issued under new guidelines announced earlier this year designed to cut costs by reducing the nation's bulging prison population and grant leniency to nonviolent drug offenders sentenced to double-digit terms....

The White House said the eight new commutations Obama granted were for prisoners who likely would receive a substantially lower sentence today and would have already served their time.  For example, they include Barbara Scrivner, who was sentenced to 30 years in 1995 when she was 27 years old for a minor role in her husband's meth ring. Obama ordered her sentence to expire June 12, while others will expire April 15.

Administration officials say they expect Obama to grant more clemency petitions in his final two years in office under the changed policy he ordered from the Justice Department. The White House said 6,561 people already have applied in the past year, compared to 2,370 the year before. "I think there is an awareness out there that this president is interested in granting clemency on these kinds of matters," White House counsel Neil Eggleston said in an interview.

The clemency policy changes aren't limited to drug offenders, who comprise about half of the roughly 216,000 federal prisoners, but the criteria makes it clear they are the main target. To be eligible, inmates must have already been behind bars for at least 10 years, have a nonviolent history, have no major criminal convictions, have a good behavior record in prison, and be serving a sentence that, if imposed today, would be substantially shorter than what they were given at the time....

In his first term, Obama commuted just one drug sentence and pardoned 39 people, causing prisoner advocates to accuse him of being too stingy with his power. Obama aides said it was because he wasn't receiving more positive recommendations from the Office of the Pardon Attorney so he directed the Justice Department to improve its clemency recommendation process and recruit more applications from convicts.

Deputy Attorney General James Cole, who in April announced the clemency policy changes, said the sentence commutations reflect a "commitment to bring fairness to our criminal justice system."

"While all eight were properly held accountable for their criminal actions, their punishments did not fit their crimes, and sentencing laws and policies have since been updated to ensure more fairness for low-level offenders," he said in a statement....

The White House noted Obama now has commuted 18 sentences, compared to 11 under President George W. Bush and three in the first six years of the Clinton presidency. Clinton eventually commuted 61, most in a controversial action on his last day in office.

The full list of the lucky receipients of this act of presidential grace can be found here via the White House.  And this link provide the full text of Deputy AG Cole's statement about these clemency grants.  I expect the folks who follow the ins-and-outs of clemency even more closely than I do will have a lot to say in the days ahead about what might be special about the folks on this clemency list.

Though I do not want to criticize the President too much on a day in which he finally saw fit to make some minor use of his constitutional clemency authority, I will still think of him as a clemency grinch until he begins more regularly granting commutations to a whole lot more offenders still stuck serving severe (and now repealed) crack sentences.  There are, I believe, thousands of federal prisoners still serving time for crack offenses based on the old 100-1 crack/powder ratio, and there are surely many thousands more low-level drug offenders arguably just as deserving of clemency consideration.  President Obama would have to grant eight commutations every single day over the two years remaining in his presidency to even start to make a serious dent in federal prison population.

December 17, 2014 in Clemency and Pardons, Drug Offense Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Monday, December 01, 2014

Making the case (again) for fixing the federal clemency process

Over the holiday weekend, Professors Rachel Barkow and Mark Osler renewed their call for reform of the federal clemency process through this Washington Post opinion piece.  Here are excerpts from the start and end of the piece:

In the run-up to Thanksgiving, it was a sure thing that a turkey would get an efficient reprieve from President Obama. But that’s only because the turkey did not have to go through the normal pardon process. If it had, it would likely have waited more than four years and have had several layers of government bureaucrats nit-picking its case. The federal clemency process — for humans, at least — is broken, and Obama should act now to fix it for the benefit of his and future administrations.

Since the 1980s, presidents have utterly failed to use their constitutional pardon power as a systemic check on federal laws and prosecutors that go too far. As a series of ProPublica reports published in The Post revealed in 2011, recent presidents grant pardons and commutations rarely and arbitrarily, largely giving relief only when it is requested by members of Congress or other influential people. Obama has been among the worst of the lot....

What is broken is no mystery. The key gatekeepers for this process are in the Justice Department — the same agency that prosecutes federal crimes. Unsurprisingly, the department has been reluctant to second-guess its own decisions and rarely recommends that the White House approve a clemency petition. Moreover, each petition must pass through as many as seven levels of review prior to approval, and many of those doing the reviewing (such as the deputy attorney general and the White House counsel) have plates already full with other duties....

It’s easy to envision a better method. As in countless other areas of law, from communications and securities regulation to establishing sentencing guidelines, a dedicated agency comprising experts could address the problem efficiently and effectively. The president should appoint a bipartisan commission of Democrats and Republicans with expertise in criminal law to consider all applications and track data on recidivism and other outcomes. The agency can work with the president’s reentry council to coordinate prisoners’ transitions back to civil society. And because the commission would be politically balanced, the president would not need to worry about being exposed to Willie Horton-style attacks, should a convict commit some new crime after being freed; these will be cases that people of all political stripes agreed deserved relief. President Gerald Ford used this device in 1974 when he created a temporary board to quickly process about 21,000 Vietnam-era draft evasion and deserter cases. One reason we know the Ford plan was a political success is because so few people remember it.

With a small but dedicated staff, such an agency would shrink the relevant levels of review to just three. There is a simple reason that states almost uniformly use such boards rather than the federal approach of sending the review through layers of prosecutors: It works.

Such a common-sense reform would provide the president with a lasting legacy that his successors would surely appreciate: a pardon process that works not just for turkeys on Thanksgiving but for everyone, all year long.

Just a few of many recent and older posts concerning federal clemency practices:

December 1, 2014 in Clemency and Pardons, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Wednesday, November 26, 2014

Nearly a year into clemency initiative, turkeys remain more likely to get Prez Obama pardon than people

MaccheeseAs detailed in this AP story, headlined "Obama Defends Legal Authority — to Pardon Turkeys," there was much jocularity at the White House today as President Obama continued the White House tradition of giving executive grace to a couple of feathered friends:

President Barack Obama has issued an executive action that some of his Republican opponents may be hard-pressed to disagree with — sparing Thanksgiving turkeys from the dinner table.

In the spirit of the holiday, Obama on Wednesday took "action fully within my legal authority, the same kind of action taken by Democrats and Republican presidents before me," to pardon the National Thanksgiving Turkey, a 49-pound bird named Cheese. He also spared an alternate turkey, a 47-pounder named Mac. Both came from Cooper Farms in Oakwood, Ohio.

"If you're a turkey, and you're named after a side dish, your chances of escaping Thanksgiving dinner are pretty low," Obama said at the annual event, which drew international media coverage. He was accompanied by his daughters, Malia and Sasha, who declined his invitation to pet the birds. "No," Malia said....

"So these guys are well ahead of the curve. They really beat the odds," he said of Mac and Cheese. Obama last week announced a series of highly anticipated executive actions immigration that have left Republicans crying "fowl."

Joking about his poultry action, Obama said: "I know some will call this amnesty. But don't worry. There's plenty of turkey to go around." Later Wednesday, Obama took his family to a neighborhood food pantry to donate a pair of turkeys "that didn't make the cut."...

At the pardoning ceremony, Obama referenced news reports that questioned the wisdom of the turkey pardon tradition and said "it is a little puzzling that I do this every year." But Obama said he enjoys the tradition because "with all the tough stuff that swirls around in this office, it's nice once in a while just to say 'Happy Thanksgiving,' and this is a great excuse to do it."

Presidents as far back as Abraham Lincoln spared turkeys, according to the White House. President George H.W. Bush granted the first turkey pardon in November 1989.

At the risk of being a holiday party pooper, I cannot help but note that it has now been a full 10 months since the Obama Administration publicly announced (as detailed here) that it was eager to identify low-level, nonviolent drug offenders for possible clemency relief. Since that time, however, the President has granted clemency to a grand total of one prisoner and now to two turkeys.  Thus, as I have said often in the past and will continue to say unless things change dramatically, President Obama's clemency record to date to be not merely disappointing, but truly disgraceful.  

A few of many recent and older posts concerning federal clemency practices:

November 26, 2014 in Clemency and Pardons, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5) | TrackBack

Tuesday, November 25, 2014

Can and should out-going Maryland Gov commute death sentences to ensure LWOP after state's capital repeal?

The question in the title of this post is prompted by this Baltimore Sun article discussing the interesting procedural and practical issues now surrounding the fate of Maryland's death row prisoners and the decisions facing the out-going Maryland Governor who signed the law repealing the state's death penalty.  Here are excerpts from the article:

A western Maryland woman whose parents were killed by a man on death row urged Gov. Martin O'Malley in a phone conversation Monday not to commute the man's sentence. The conversation came days after The Baltimore Sun reported that O'Malley had reached out to two relatives of people killed by men on death row — moves that fueled speculation that, with two months left in office, the governor may be poised to take action on the death penalty cases.

"I said, 'Don't touch this [case], let it go back to court, let the judges decide,'" said Mary Francis Moore, 71, whose father and his wife were killed in 1995 by Heath William Burch. Moore said that in their roughly 15-minute phone conversation, O'Malley did not say what his plans were. But they discussed what might happen to Burch in light of another inmate's appeal. Maryland Attorney General Douglas F. Gansler has joined the appeal, arguing that the state no longer has the authority to execute anyone.

O'Malley "talked about the possibility that if it did go back to court, that these guys would get out, that they would only get life," not life without possibility of parole, Moore said. Moore said she concluded the conversation by asking O'Malley "to pray about it." The governor told her, she said, "I hope we meet some day."...

O'Malley has largely refused to discuss the fate of the men who were already sentenced to death when he and the General Assembly repealed the death penalty last year. The repeal did not apply to them.

Maryland's governor has broad power to pardon or reduce an inmate's sentence, but the authors of the death penalty repeal law included language spelling out that he could change a death sentence to life without parole — even if that sentence did not exist when the inmate committed his crime. Two men on death row commited their crimes before 1987, when Maryland lawmakers established the sentence of life without parole.

Sen. Brian E. Frosh, a proponent of repeal and the attorney general-elect, said Monday that a court would not be able to resentence an inmate to a penalty that did not exist at the time he was convicted, but the governor can.

Advocates on both sides of the issue have been watching to see whether O'Malley might commute the sentences of the four men remaining on death row....

Moore said she "begged" O'Malley not to grant Burch clemency, though he never clearly said he was considering that. She thinks Burch should be put to death. "I asked him, 'What are you going to do, governor?' I asked him two or three times, 'What are your plans?'"...

"The last thing I said to him was, 'I want you to really think about this, and I want you to pray about it, because I want you to do the right thing,'" she said. "The right thing to me is leave it alone."

Even before the death penalty repeal, the status of Maryland's death row inmates had been up in the air since 2006 when the state's regulations for executions were thrown out by a court. They were never replaced. Lawyers from the attorney general's office are scheduled to argue Dec. 8 before a state appellate court that Maryland can't issue new regulations now that capital punishment has been abolished.

An appeal by another death row inmate, Jody Lee Miles, faces an uncertain outcome in the courts. But Gansler has noted O'Malley's authority to commute death sentences to life without parole. Governors in Illinois and New Jersey commuted the existing death sentences in their states after the repeal of capital punishment....

Dorothy Atkinson, whose son was killed by Miles in 1997, said she, too, was contacted by the governor's office about a meeting.... Though Atkinson believes Miles deserves to be executed, she submitted a letter to O'Malley two weeks ago, asking him to commute Miles' sentence to spare her family from the ordeal of further legal wrangling.

I believe that, at least in some jurisdictions, convicted defendants are able to formally refuse to except a grant of clemency. Consequently, I am not entirely sure Gov O'Malley can ensure through a commutation decision that some of the death row prisoners get an LWOP sentence nor that a commutation decision will ensure there is no further legal wrangling over these cases. That said, the procedural and practical issues arising in this setting perhaps provide a strong reason for the out-going Gov to do exactly what the victims' families now request in each case whether that involves a request for commutation or a request to leave this matter to the state courts.

November 25, 2014 in Clemency and Pardons, Death Penalty Reforms, Procedure and Proof at Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Thursday, November 06, 2014

How might election results (and subsequent sparring) impact Prez Obama's clemency plans?

In this prior post, I wondered aloud "How might election results impact replacing Eric Holder as Attorney General?."  Since then, I have turned to thinking about, as the title of this post highlights, whether and how the Republican electorial success this election cycle might impact the President's thinking and plans about finally making some real use of his clemency powers.

As regular readers know, I consider President Obama's clemency record to date to be not merely disappointing, but truly disgraceful.  That said, earlier this year, Deputy AG Cole and others talked up a new DOJ effort to identify worthy clemency candidates so that the President might start to do better.  From the get-go, I have been concerned that all the talk of new clemency developments might prove to be just another example of the Obama Administration being real good at "talking the talk" and not nearly so good at really "walking the walk."  Indeed, until President Obama starts seriously and consistently using his clemency power, I remain deeply fearful that the so-called Clemency Project 2014 could prove to be much ado about nothing (or about very little relief for very few).

With these realities as backdrop, I have no sense at all whether the consequential political developments of the last few days will have little, some or much impact on whatever Prez Obama had in mind with respect to clemency.  Does anyone else have any insights or even wild speculations on this front?

A few of many recent and older posts concerning federal clemency practices:

November 6, 2014 in Clemency and Pardons, Criminal justice in the Obama Administration, Elections and sentencing issues in political debates, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5) | TrackBack

Friday, October 17, 2014

ProPublica urges next AG to "Fix Presidential Pardons"

The title of this post is drawn from the headline of this strong new piece from the Editor-in-Chief of ProPublica. The full headline and subheadline provides the basics: "For the Next Attorney General, a Modest Suggestion: Fix Presidential Pardons; More than two years ago, a ProPublica series showed that white applicants were far more likely to receive clemency than comparable applicants who were black. Since then, the government has spent hundreds of thousands of dollars on a study, but the pardons system remains unchanged." And here are a few excerpts from a piece that is styled as an open letter to the next Attorney General:

Dear Possible Attorney General Nominees (You Know Who You Are),...

More than two years ago, ProPublica reporters Dafna Linzer and Jennifer LaFleur revealed that white applicants were nearly four times as likely to receive a presidential pardon as were comparable African Americans. The story appeared on the front page of The Washington Post, our publishing partner. I know, I know, this seems improbable but LaFleur spent many months doing a statistical analysis that eliminated every other factor we could imagine that might explain this disparity. We sent our findings and methodology to several leading experts in the field. All agreed that race was the only factor driving the vast difference. We published our methodology and you can read it here. Linzer's reporting on the pardons process suggested that it was far more subjective than you might have thought. We wrote about how race creeps into decision-making even when no one is overtly biased. It's worth a look.

Given the starkness of these findings, we at ProPublica thought, naively, that your predecessor and his boss would move immediately to address this problem. As I'm sure you're aware, a president's authority to grant pardons is one of the only unchecked powers in our constitutional system of checks and balances. When it comes to pardons, President Obama can do whatever he wants.

We were told by several political insiders that the pardon stories did not prompt reform because of their timing. They appeared in late 2011, just as the president was gearing up for what was expected to be a bruising campaign for a second term. It was not considered the politically ideal moment for the nation's first African-American president to make the justice system fairer for people of color. And so the government did what it so often does in such circumstances: It commissioned a study to see if our findings were correct....

If history is any guide, you'll be getting a tsunami of pardon requests in the last months of the administration. It might be nice to have come up with some serious reforms by then to fix a process that is so demonstrably flawed. There are lots of ideas about what could done, from setting up an independent pardons commission to taking the pardons office out of the Justice Department.

Good luck with the confirmation hearings. And remember, two years can fly by a lot quicker than you'd ever imagine....

Best Regards,

Stephen Engelberg/Editor in Chief, ProPublica

October 17, 2014 in Clemency and Pardons, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (4) | TrackBack

Saturday, August 30, 2014

Could capital reprieve cost Colorado Gov his office?

The question in the title of this post is prompted by this lengthy Denver Post article, headlined "Colorado's pro-death penalty voters could make Hickenlooper pay." Here are excerpts:

The cold-blooded murders of three teenagers and a manager late one night in a Chuck E. Cheese restaurant in Aurora two decades ago has taken center stage in the political theater of this year's race for governor. Gov. John Hickenlooper has weathered political blows from the right since May 2013,when he granted the killer, Nathan Dunlap, a reprieve on his death sentence.

Hickenlooper's actions then reignited the hot topic over the weekend after Todd Shepherd of The Complete Colorado presented audio of Hickenlooper suggesting to a CNN film crew, in an interview for a segment of a documentary series set to air the evening of Sept. 7, that he could grant Dunlap clemency if he were to lose his re-election bid in November.

Besides reintroducing a wedge issue — capital punishment — that has a perception of marshaling Republican voters, the incumbent Democrat gave fresh life to Republicans' campaign narrative that Hickenloooper doesn't make forceful decisions. Republican nominee Bob Beauprez has repeatedly vowed on the campaign trail to execute Dunlap — an applause line for GOP voters....

Polling last April indicated Colorado voters support the death penalty 2-to-1. "This is a big issue," Owen Loftus, spokesman for the Colorado Republican Committee, said of the death penalty. "He's making it a bigger issue. The question of whether Gov. Hickenlooper is going to enforce justice or not — that gives people pause."...

When he ran for governor four years ago, Hickenlooper was vocal about being pro-capital punishment. His decision-making around the issue in 2013 has left some in his own party, and nearly everyone who opposes him, questioning his rationale.

The governor explained in his Dunlap decision that he believed Colorado's capital punishment system was "imperfect and inherently inequitable." The arguments began anew last weekend when news surfaced that Hickenlooper raised the possibility of clemency — which no Colorado governor has ever granted in a death penalty case. The governor reiterated his evolution on the issue this month when he told a television news reporter he opposes the death penalty....

Paul Teske, dean of the school of public affairs at the University of Colorado Denver, questioned whether Hickenlooper would lose any voters he might have had otherwise. "It could have a small influence, but the voters who are likely to be motivated by this issue probably weren't going to vote for Hickenlooper anyway," he said. But it could fit into a larger narrative. "I think Republicans will pair this with the gun issue to say that Hickenlooper is soft on public safety."

Denver pollster Floyd Ciruli said Hickenlooper can only blame himself for repeatedly reviving an issue that repeatedly hurts him. The issue was part of Hickenlooper's tipping point in 2013, Ciruli said, when he granted Dunlap the reprieve, helping drive down his approval ratings from results above and just below 60 percent to the low 40s.

"It was the first issue that clearly put him on the wrong side of the public," Ciruli said. "He had been a pretty popular governor up to that point in his first term, and it handed a very good issue to the Republicans to hammer him with. But it had kind of gone away. But now (since the CNN interview) he's reopened it."

By saying he might grant clemency if he loses, Hickenlooper didn't portray himself as a thoughtful leader, the pollster said. "Speaking in a hypothetical about what if he loses, what he might do, that comes across as politically manipulative," Ciruli said.

A Quinnipiac University poll in February indicated Coloradans by a 36 percent to 28 percent margin disapproved of Hickenlooper's handling of the Dunlap case. Meanwhile, 63 percent favored keeping the death penalty while 28 percent supported abolishing it. "There has been strong, unwavering support for the death penalty and a sense that the governor's 'not on my watch' position on the issue could hurt him on Election Day," said Tim Malloy, assistant director of the Quinnipiac's polling operation.

Colorado has three [defendants on death row]. Colorado has executed only one person in the last 47 years, kidnapper, rapist and murderer Gary Lee Davis, who was put to death in 1997.

August 30, 2014 in Clemency and Pardons, Death Penalty Reforms, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (1) | TrackBack

Sunday, August 24, 2014

"Clemency and the Unitary Executive"

The title of this post is the title of this notable new paper by Rachel Barkow now available on SSRN. Here is the abstract:

President Obama’s use of enforcement discretion to achieve important domestic policy initiatives — including in the field of criminal law — have sparked a vigorous debate about where the President’s duty under the Take Care Clause ends and legitimate enforcement discretion begins.  But even with broad power to set enforcement charging policies, the President controls only the discretion of his or her agents at the front-end to achieve policy goals.  What about enforcement decisions already made, either by his or her own agents or actors in previous administrations, with which the President disagrees?  The Framers anticipated this issue in the context of criminal law and vested the President with broad and explicit back-end control through the constitutional pardon power.  But while centralized authority over enforcement discretion at the front-end has grown, the clemency power finds itself falling into desuetude.

This Article explores the fall of the clemency power and argues for its resurrection as a critical mechanism for the President to assert control over the executive branch in criminal cases.  While clemency has typically been referred to as an exercise of mercy and even analogized to religious forgiveness, it also serves a more structurally important role in the American constitutional order that has been all but overlooked.  It is a critical mechanism for the President to control the executive department.  Those in favor of a unitary executive should encourage its more robust employment.  But even critics of unitary executive theory should embrace clemency as a mechanism of control because, whatever the merits of other unitary executive claims involving military power or oversight over administrative agencies, clemency stands on different footing.  It is explicitly and unambiguously grounded in the Constitution’s text, and it comes with an established historical pedigree.  It is also a crucial checking mechanism given the landscape of criminal justice today.  The current environment of overbroad federal criminal laws and excessive charging by federal prosecutors has produced a criminal justice system of unprecedented size and scope with overcrowded and expensive federal prisons and hundreds of thousands of individuals hindered from reentering society because of a federal record.  Clemency is a key tool for addressing poor enforcement decisions and injustices in this system, as well as checking disparities in how different United States Attorneys enforce the law.

August 24, 2014 in Clemency and Pardons, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack

Friday, August 22, 2014

"It’s Time to Overhaul Clemency"

The title of this post is the headline of this recent New York Times editorial.  Though I wish the headline was something more like "Prez Obama sucks for failing to overhaul clemency during his six years on the job," I am glad to see the Grey Lady again spotlighting the Obama Administration's conspicuous failings to date in this arena.  Here are excerpts: 

On Jan. 20, 2009, in his last moments as president, George W. Bush gave Barack Obama a hard-earned bit of wisdom: whatever you do, he said, pick a pardon policy and stick with it.

It was sage advice, yet, more than five years later, President Obama has not heeded it. As a result, as one former pardon attorney has said, the clemency power is “the least respected and most misunderstood” power a president has. Yet it is granted explicitly by the Constitution as a crucial backstop to undo an unjust conviction or to temper unreasonably harsh punishments approved by lawmakers. It also can restore basic rights, like the right to vote, that many people lose upon being convicted.

In the past, presidents made good use of it, but as tough-on-crime policies became more popular, the number of grants fell dramatically. Judging by the numbers, Mr. Obama, who has, so far, granted just 62 clemency petitions, is the least merciful president in modern history.

The Obama administration took a stab at remedying the situation in April when it replaced its feckless pardon attorney and announced that it would consider granting clemency to thousands of low-level drug offenders serving what Mr. Obama called “unjust” sentences. The effort, dubbed Clemency Project 2014, was a promising start, but it has already run into significant hurdles, most recently a ruling barring hundreds of federal public defenders from assisting inmates in filing their petitions.

Even if the project succeeds, it is a one-time fix that fails to address the core reasons behind the decades-long abandonment of the presidential power of mercy. A better solution would be a complete overhaul of the clemency process. First and foremost, this means taking it out of the hands of the Justice Department, where federal prosecutors with an inevitable conflict of interest recommend the denial of virtually all applications. Instead, give it to an independent commission that makes informed recommendations directly to the president.

That proposal, which has been made before, gets new attention in an upcoming article in the University of Chicago Law Review by two law professors, Rachel Barkow and Mark Osler. Such a commission’s membership, the authors write, must be politically balanced and have a wide range of perspectives, including those of prosecutors, defense lawyers, judges, inmates, academics, officials from corrections and law enforcement, and victims’ rights advocates....

In several states that already have such commissions — such as Pennsylvania, South Carolina and Alabama — clemency decisions are more transparent, more predictable, and much more frequent than in the federal system.

Mr. Obama’s failure to wield the pardon power more forcefully is all the more frustrating when considered against the backdrop of endless accusations that he is exercising too much executive authority, sometimes — his critics say — arbitrarily if not illegally. In this case, he should take advantage of a crucial power that the Constitution unreservedly grants him.

A few of many recent and older posts concerning federal clemency practices:

August 22, 2014 in Clemency and Pardons, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Friday, August 15, 2014

"Restructuring Clemency: The Cost of Ignoring Clemency and a Plan for Renewal"

The title of this post is the title of this notable and timely new article by Rachel Barkow and Mark Osler.  Because I admire and respect the work of both these folks so much, I am going to make sure I read this joint-effort even on a sunny summer Friday afternoon.  Here is the abstract:

Over the past three decades, the pardon power has too often been ignored or used to create calamities rather than cure them.  Our most recent Presidents seem to realize the system is not working only at the end of their time in office, when they feel safe in giving grants but become aware of the fact that the system does not produce many recommendations for doing so even when asked.  As a key constitutional power, clemency deserves to be more than an afterthought to a presidential term.

The use of the pardon power is a necessary element in a fully-functioning system of criminal law.  Recent presidents, however, have largely ignored this powerful tool, even as some have sought to expand the power of the office in other ways.  This essay seeks both to describe the costs of this trend and to propose important structural reforms to reverse it.  Specifically, we advocate for the creation of an independent commission with a standing, diverse membership.  While this commission should have representation from the Department of Justice and take the views of prosecutors seriously, the commission itself should exist outside the Department and its recommendations should go directly to the White House.  This new model of clemency should also pay attention to data both to create uniform standards and to focus the use of the pardon power on policy as a management tool.  An emphasis on data will also help the new pardon commission make evidence-based decisions about risk and reentry.  It is time to view clemency reform as a priority for the office of the presidency no matter who holds the position.  This is the time to create a better machine of mercy.

August 15, 2014 in Clemency and Pardons, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5) | TrackBack

Sunday, July 27, 2014

Defender hiccup or major headache for Clemency Project 2014?

The question in the title of this post is prompted by this new article from Al Jazeera America headlined "Federal defenders potentially excluded from historic clemency drive." Here are excerpts:

Six months after the Justice Department called on defense lawyers to help it identify and vet candidates for its clemency drive, there is concern that the federal defenders — whom the DOJ invited in as key partners — might never have been authorized to participate in the first place. This could leave the initiative without the manpower it needs.

A high portion of the potential pool of inmates is represented by the federal defenders, and they have been critical in the formation and operation of Clemency Project 2014, a coalition of defense lawyers and advocates created in the wake of the DOJ’s call. (The vast majority of those prosecuted in federal courts receive court-appointed lawyers; in districts where there is a federal defenders’ office, they generally handle 60 percent of those cases.)

"Federal defenders include some of the best courtroom and appellate advocates in the United States. Having them work with the Clemency Project 2014 has been important to the work we are doing,” said Mark Osler, director of the Federal Commutations Clinic at the University of St. Thomas in Minnesota, who has been training lawyers for the Clemency Project. “Losing them as a part of the coalition would be a significant challenge.”

The courts appoint federal defenders — under the Criminal Justice Act — to represent indigent defendants in federal judicial proceedings, a service paid for by the public. Now the courts’ highest authority is considering whether those appointments can extend to representing clients in their petitions to the president for mercy, a process conducted wholly in the executive branch....

In February, the Justice Department invited representatives from a select group of its traditional rivals — the National Association of Criminal Defense Lawyers, the American Civil Liberties Union, Families Against Mandatory Minimums and the federal defenders — to a series of meetings to discuss how the process might be structured. (A conservative organization, Judicial Watch, is currently suing the Justice Department to make those discussions public.)

The criteria that eventually emerged called for inmates who were nonviolent, low-level drug offenders without significant ties to large-scale criminal organizations. They would also have to have served at least 10 years of their prison sentences, not have a significant history of crime or violence and have demonstrated good conduct in prison.

While the Justice Department will ultimately decide which inmates to recommend to the president for clemency, it is the defense bar that has been tasked by the government with most of the upfront work, including identifying worthy candidates, recruiting and training the vast numbers of pro bono attorneys needed to assist the effort, preparing the petitions and vetting which petitions reach the Justice Department’s Office of the Pardon Attorney....

Cynthia W. Roseberry, the newly appointed head of the Clemency Project 2014, a former federal defender herself, said that “we look forward to continuing our collaboration with the federal defenders,” and that she remained confident that the project has the resources to identify all prisoners who meet the criteria for clemency and to ensure they have access to counsel at no cost....

The federal defenders declined to comment on internal discussions relating to when, if ever, consideration was given to whether they were statutorily authorized to participate in such a broad clemency effort. Kathy Nester, the federal public defender for the district of Utah and the defenders’ representative on the Clemency Project 2014 steering committee, referred to standing orders by judges in six districts already appointing defenders, saying it was evidence that the work logically falls to them. (At the time of publication, the administrative office of the courts was only able to confirm that there were four such standing orders.)

“It was a federal public defender's office that submitted the successful clemency petition in the case of Ezell Gilbert late last year,” said Nester, referring to one of the eight inmates whose sentences President Barack Obama commuted in December 2013. “This was done at the urging of [the Justice Department] and federal judges who had reviewed the case. Defenders have approached the clemency project with a good faith belief that we are supposed to take positions that are in the best interest of our clients, and that this historical opportunity for relief from unreasonable sentences would certainly fall within that mission.”

Similarly, in June, a federal defender motion in Cleveland asked for a court appointment to do clemency petitions, noting that it was the deputy attorney general, not the inmates themselves, who had requested that the defense bar seek clemency for qualified inmates. In response, the DOJ asked the court to defer appointing the defenders until the administrative office of the U.S. courts makes its decision as to whether the defenders are authorized to do such work. Neither the department nor the U.S. Attorney’s office in Cleveland would say whether this was now a department-wide position....

The more than 20,000 federal inmates who have taken up the DOJ on its invitation and asked Clemency Project 2014 to review their cases now await those who set these wheels in motion to sort it all out.

I sincerely hope there does not end up being major difficulties with federal defenders working on clemency petitions for federal inmates. And however these administrative issues get worked out, it will remain the case that there are just far too many federal prisoners who could benefit from experienced defense lawyers and far too few lawyers able to provide all the legal help needed.

July 27, 2014 in Clemency and Pardons, Criminal justice in the Obama Administration, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Thursday, July 10, 2014

Georgia Board of Pardons and Paroles grants execution eve clemency to witness killer

As reported in this Atlanta Journal-Constitution article, "hours before he was to be executed for a murder 23 years ago, Tommy Lee Waldrip was granted clemency." Here are the details:

The state Board of Pardons and Paroles made the rare decision to commute a condemned man’s sentence to life without parole Wednesday even as state and federal courts had turned down his appeals. Waldrip’s execution was set for 7 p.m. Thursday for the murder of Keith Evans, a college student who was about to testify against Waldrip’s son in a re-trial of an armed robbery case.

The board’s decision came several hours after members heard pleas for mercy from relatives, friends and Waldrip’s lawyers, and then from prosecutors and members of the Evans family who wanted the execution carried out.

The board does not give a reason for its decision. Members vote individually and only the chairman, who collects the ballots, knows how each one decided. The decision required a simple majority, three out of five members.

But one issue raised before the board was that the sentences for Waldrip, his son and Waldrip’s brother, all convicted of murdering Evans on April 13,1991, were not proportional. Prosecutors did not seek the death penalty against Howard Livingston, Waldrip’s brother, but they did in the cases against Tommy Lee Waldrip and his son John Mark Waldrip. The three men were tried separately. Only Tommy Lee Waldrip was sentenced to die. John Mark Waldrip and Livingston are serving life sentences....

This was the fifth time since 2002 that the board has commuted the sentence of a death row inmate. The most recent one was on April 12, 2012, when the board commuted the death sentence of Daniel Greene.

Notably, one of the recent cases in which the Georgia Board of Pardons and Paroles refused to grant clemency was the high-profile Troy Davis case. Notably, for those focused on racial dynamics in this context, it is perhaps notable that Tommy Lee Waldrip is white and that Daniel Greene is black. Ergo, since Troy Davis was denied clemency, the Georgia Board of Pardons and Paroles has granted clemency to one black and one white convicted murderer.

July 10, 2014 in Clemency and Pardons, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack