Friday, April 29, 2016
With nine months left in Obama Administration, apparently it is time for a clemency last call
Regular readers know I am a long-time critic of how modern presidents have (failed to) use their historic clemency powers and that I am not an especially big fan of how the Obama Administration and others have approached trying to do things better of late. Another frustrating piece of this story is captured by this new Politico piece headlined "Obama team making last-ditch push on commutations: Top Justice official says non-violent drug offenders are running out of time to apply for reduced sentences." Here are excerpts:
The Obama Administration is pressing hard to keep the clock from running out on thousands of federal drug convicts hoping to get their prison sentences shortened by President Barack Obama before he leaves office in January. Earlier this week, the No. 2 official at the Justice Department pleaded with volunteer lawyers working on those cases to get the commutation applications filed right away.
"Time is of the essence and the inmates who raised their hands for your assistance still need your help," Deputy Attorney General Sally Yates wrote in the unusual letter, dated Monday and obtained by POLITICO. In the message to attorneys working through a consortium known as Clemency Project 2014, Yates noted that the group has set internal deadlines for most cases as soon as Monday of next week and for other cases in mid-May. "I cannot stress how important it is [to] meet those deadlines," Yates wrote. "If those deadlines cannot be met, we need to ensure that inmates have sufficient time to file pro se petitions, and that the Department of Justice has enough time to process and review them."
Obama launched his so-called "Clemency Initiative" in early 2014, seeking to identify thousands who have served long drug-crime sentences that would likely have been shorter under current law. The effort was aimed at granting commutations to those who met certain criteria, such as being non-violent, low-level offenders. The announcement triggered a flood of clemency requests from close to 30,000 inmates — more than 10 percent of the federal prison population. The level of interest swamped the handful of lawyers in the office of the Justice Department's Pardon Attorney and overwhelmed the newly-created Clemency Project.
While the group has said nearly 4,000 attorneys were recruited to prepare applications, the process has been a tough slog, slowed by bureaucratic hurdles in obtaining paperwork and the reliance on lawyers who usually have no prior experience seeking clemency. Yates' letter to the Clemency Project lawyers says they have submitted "more than 850 petitions" thus far. That's a dramatic increase from the roughly 30 the group's lawyers had handed in about a year ago, but still far short of the number likely to yield the thousands of commutations some Obama administration officials expected at the outset.
The applications are also backlogged at the Justice Department, which had more than 11,000 commutation requests of all types pending at the end of March, according to Justice's website. In January, the Justice Department official who'd overseen the effort since the spring of 2014 resigned, complaining of a lack of resources and that her recommendations were not always being relayed to the White House. "The Department has not fulfilled its commitment to provide the resources necessary for my office to make timely and thoughtful recommendations on clemency to the president," Pardon Attorney Deborah Leff wrote in her resignation letter, obtained by USA Today through a Freedom of Information Act request.
White House Counsel Neil Eggleston said at a POLITICO Playbook Breakfast earlier this month that the Pardon Attorney's office has gotten a boost in resources and that some of the concerns Leff raised have been addressed. "The pardon attorney's office has a little more resources, which is good, and I have regular dealings with the pardon attorney directly, so to the extent that Ms. Leff was complaining about that, that was solved. Actually, it was solved before she left,” Eggleston said. “And so I think that we're moving forward in a pretty good way here."...
Last year, Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) questioned whether the Justice Department had essentially outsourced its role in the process to the Clemency Project 2014 lawyers. A Justice Department official rejected that idea at the time, saying that the volunteer project — backed by the American Civil Liberties Union, the National Association of Criminal Defense Lawyers and others — was "completely separate" from Justice.
However, Yates' letter this week highlights the Clemency Project's internal deadlines and thanks the group for having "screened out ... 20,000 ineligible applicants." Critics, noting that Obama has granted commutations to some applications who did not appear to meet all the criteria, have expressed concern that some of those prisoners may have compelling cases for commutations but will be dissuaded from applying by having been screened out. In addition, in a less-noticed portion of Leff's letter, she said she had "been instructed to set aside thousands of petitions for pardon and traditional commutation."
I have got tired of being tired of hearing these stories of too many clemency applicants and too little ability to procees them all. But I will continue to note (and lament) all this, and continue to hope that Prez Obama will vindicate all the energies and excitement advocates devoted to these matters by granting at least a few hundred more commutations and some significant number of pardons before he passes on the keys to the Oval Office next January.
Tuesday, April 26, 2016
Virginia Gov explains his big decision to use his clemency power to restore franchise
I noted in this post last Friday that Governor Terry McAuliffe of Virginia used his executive clemency power to restore voting rights to more than 200,000 former felons. Since then, I came across this Medium piece in which the Gov explains his actions. Here are excertps:
We are all familiar with Virginia’s long history of discrimination at the ballot box, culminating in the 1902 constitution establishing a poll tax, literacy and knowledge tests, and broader restrictions on individuals with felony convictions.
The 1965 Voting Rights Act eliminated many of those barriers. However, Virginia continued to enforce one of the most restrictive laws in the country regarding the restoration of voting and civil rights for individuals who have been convicted of felonies but who complete their sentences and probation or parole. Over the last two years, our administration has worked tirelessly to simplify the restoration process. We restored the rights of more than 18,000 Virginians, which is more than the past 7 governors combined over their full four-year terms.
We worked to reform the process by reducing the waiting period for more serious offenders from five years to three, classifying all drug-related convictions as non-violent, shortening the application for more serious offenders from 13 pages to one page, removing a requirement that individuals pay their court costs before they can have their rights restored, and ensuring that a notation will be included in an individual’s criminal record designating that his or her rights have been restored.
While I am proud of the progress we have achieved, I wasn’t satisfied to leave so many men and women in our Commonwealth barred from full citizenship. [On Friday] we restored the voting and civil rights of more than 200,000 Virginians who have served their time and completed supervised release.
This action means that these disenfranchised Virginians will immediately regain the right to register to vote, to run for office and to serve on a jury. It means that these Virginians, who have served their sentences and returned to live in our communities, will no longer be second class citizens who must jump through onerous hoops to have a voice in our society. And it means that Virginia can close a difficult chapter in our history and open a new one where, instead of building barriers to the ballot box, we work together to break them down.
Some have suggested this action was politically motivated, or that it is wrong to restore the rights of felons who have committed more serious crimes, even if they have served their sentences. I would encourage those critics to meet with some of the men and women whose rights we have restored throughout my term. Who have reentered society seeking a second chance and who have waited years, sometimes decades, to become whole members of our society again. And who have broken down in tears as I signed their restorations on “the best day of their lives.”
If we are going to build a stronger Virginia, we must open doors to participation in civic life for people who return to society seeking a second chance. We must welcome them back and offer the opportunity to build a better life by taking an active role in our democracy. I believe it is time to cast off Virginia’s troubling history of injustice and embrace an honest, clean process for restoring the rights of these men and women.
Prior related posts:
- Virginia Governor, bolding using his executive clemency authority, restores voting rights to over 200,000 former felons!!
Friday, April 22, 2016
Virginia Governor, bolding using his executive clemency authority, restores voting rights to over 200,000 former felons!!
Virginia today is surely a state for lovers of voting rights in light of this remarkable news via the New York Times: "Gov. Terry McAuliffe of Virginia used his executive power on Friday to restore voting rights to more than 200,000 convicted felons, circumventing his Republican-run Legislature." Here is more:
The action overturns a Civil War-era provision in the state’s Constitution aimed, he said, at disenfranchising African-Americans. The sweeping order, in a swing state that could play a role in deciding the November presidential election, will enable all felons who have served their prison time and finished parole to register to vote. Most are African-Americans, a core constituency of Democrats, Mr. McAuliffe’s political party.
Amid intensifying national attention over harsh sentencing policies that have disproportionately affected African-Americans, governors and legislatures around the nation have been debating — and often fighting over — moves to restore voting rights for convicted felons.
In Kentucky, Gov. Matt Bevin, a newly elected Republican, recently overturned an order enacted by his Democratic predecessor that was similar to the one Mr. McAuliffe signed Friday. In Maryland, Gov. Larry Hogan, a Republican, vetoed a measure to restore voting rights to convicted felons, but Democrats in the state legislature overrode him in February; an estimated 44,000 former prisoners who are on probation are now eligible to register to vote as a result.
“There’s no question that we’ve had a horrible history in voting rights as relates to African-Americans — we should remedy it,” Mr. McAuliffe said Thursday, previewing the announcement he made on the steps of Virginia’s Capitol, just yards from where President Abraham Lincoln once addressed freed slaves. “We should do it as soon as we possibly can.”
The action, which Mr. McAuliffe said was justified under an expansive legal interpretation of his executive clemency authority, goes far beyond what other governors have done, experts say, and will almost certainly provoke a backlash from Virginia Republicans, who have resisted measures to expand felons’ voting rights. It was planned in secrecy, and came amid an intensifying national debate over race, voting and the criminal justice system. There is no way to know how many of the newly eligible voters in Virginia will register, but Mr. McAuliffe said he would encourage all to do so. “My message is going to be that I have now done my part,” he said.
The Republican Party of Virginia quickly issued a statement accusing Mr. McAuliffe of “political opportunism” and “a transparent effort to win votes.”
“Those who have paid their debts to society should be allowed full participation in society,” said the statement, issued by the party chairman, John Whitbeck. “But there are limits.” He said the governor was wrong to issue a blanket restoration of rights, even to those who “committed heinous acts of violence.”
Only two states — Maine and Vermont — have no voting restrictions on felons. Of the remaining 48, 12 states disenfranchise felons after they have completed probation or parole, said Marc Mauer, executive director of the Sentencing Project, a Washington policy organization that advocates restoring felons’ voting rights. Virginia is one of four states — the others are Kentucky, Florida and Iowa — that impose the harshest restrictions. The Sentencing Project says one in five African-Americans in Virginia is disenfranchised....
Mr. Mauer called Mr. McAuliffe’s decision a stunning development, and one that will have lasting consequences because it will remain in effect at least until January 2018, when Mr. McAuliffe leaves office. It covers those convicted of violent crimes, including murder and rape. “This will be the single most significant action on disenfranchisement that we’ve ever seen from a governor,” Mr. Mauer said, “and it’s noteworthy that it’s coming in the middle of this term, not the day before he leaves office. So there may be some political heat but clearly he’s willing to take that on, which is quite admirable.”
Advocates who have been working with the governor say they are planning to fan out into Richmond communities Friday afternoon to start registering people. Until now in Virginia, felons were allowed to apply to have their voting rights restored, but the process could be cumbersome and those who have committed violent crimes faced a waiting period. That will be eliminated by Mr. McAuliffe’s action. “That is a huge deal,” said Tram Nguyen, an executive director of the New Virginia Majority, an advocacy group. “We talk about needing to raise up your voice so that we can impact policy makers, and these people are saying to us, ‘We don’t have a voice, no one is going to listen to us, we don’t even have our right to vote.’ ”
Experts say that with the stroke of his pen, Mr. McAuliffe has allowed convicted felons to begin registering to vote, and that their voting rights cannot be revoked — even if a new governor rescinds the order. But the move could expose the governor to accusations that he is playing politics; he is a longtime friend of — and top fund-raiser for — Hillary Clinton, the likely Democratic nominee for president, and former President Bill Clinton....
The order builds on steps the governor has previously taken to restore voting rights to 18,000 Virginians since the beginning of his term, and he said he believed his authority to issue the decision was “ironclad.” Professor A. E. Dick Howard of the University of Virginia School of Law, who was the principal draftsman of a revised Constitution adopted by Virginia in 1971, agreed, and said the governor had “ample authority.” But Professor Howard, who advised Mr. McAuliffe on the issue, said the move might well be challenged in court. The most likely argument, he said, is that the governor cannot restore voting rights to an entire class of people all at once. “I’m assuming that the complaint will be that he has to act one pardon at a time, one person at a time, that he’s not permitted to act wholesale,” Professor Howard said. “I think the language of the Constitution and the theory of the pardoning power all point to the same conclusion — that he can.”
Virginia’s Constitution has prohibited felons from voting since the Civil War; the restrictions were expanded in 1902, as part of a package that included poll taxes and literacy tests. In researching the provisions, advisers to the governor turned up a 1906 report quoting Carter Glass, a Virginia state senator (and later, a member of Congress who was an author of the 1933 Glass-Steagall Act that regulated banks) as saying they would “eliminate the darkey as a political factor in this State in less than five years, so that in no single county of the Commonwealth will there be the least concern felt for the complete supremacy of the white race in the affairs of government.”
Mr. McAuliffe, who took office in 2014 and campaigned to restore voting rights to felons, said that he viewed disenfranchisement as “a remnant of the poll tax” and that he had been “trying to figure out what more I can possibly do.” He has been working with his legal team for months to live up to his campaign promise. His action Friday will not apply to felons released in the future; the governor’s aides say Mr. McAuliffe intends to issue similar orders on a monthly basis to cover more people as they are released. “People have served their time and done their probation,” Mr. McAuliffe said. “I want you back in society. I want you feeling good about yourself. I want you voting, getting a job, paying taxes. I’m not giving people their gun rights back and other things like that. I’m merely allowing you to feel good about yourself again, to feel like you are a member of society.”
The official statement and executive order can be found at this link.
As long-time readers may recall, I have long been an advocate for letting even prisoners vote (as noted here), and thus I have long opposed any and all form of felon disenfranchisement. Throw in the fact that there is evidence to suggest that former offenders who vote are less likely to recidivate, and I am quite pleased about what Gov. McAuliffe had the courage (and political savvy) to do here. Perhaps this action by a sitting Gov not far from the US capital will inspire the President to see what bold useful work can be done through bold use of clemency authority.
Monday, April 11, 2016
Has anyone calculated trial rates — or other notable features — of 248 offenders getting Obama commutations?
The question in the title of this post represents my not-so-direct effort to encourage any and all hard-core sentencing researchers — as well as folks involved with Clemency Project 2014 and the St. Thomas Federal Commutation Clinic and the NYU Clemency Resource Center and the CUA Clemency Project — to consider taking a deep dive into case processing realities and all sorts of other offense and offender features of the 248 federal prisoners who have now had their lengthy prison sentences commutted by President Obama. The focus on trial rates in my title query is based to my (educated) speculation that those prisoners who have so far received commutations may have opted to have their guilt tested at trial at a rate quite different from the bulk of convicted federal offenders.
Roughly speaking, only about three out of every hundred convicted federal offenders now have their guilt estabished at trial; all the others admit guilt though a plea. (This chart from the US Sentencing Commission provides these data details on guilty pleas and trial rates for the last five fiscal years.) But my own limited experiences seeking to challenge some extreme federal sentences have often involved federal defendants who exercised their rights to trial. Consequently, I would be quite surprised if it turns out that only around 10 of the 248 federal prisoners whose lengthy prison sentences have been commutted by President Obama had gone to trial.
Unfortunately, this official list of "Commutations Granted by President Barack Obama" does not indicate if the offenders' sentences were imposed after a plea or a trial. Nevertheless, with so many institutions and individuals now so interested in looking at the modern exercise of federal clemency, I am hopeful someone has started or will soon start trying to figure out if there are some distinct and distinctively important features of those cases now garnering the attention of President Obama.
Tuesday, April 05, 2016
More reflections and criticisms of clemency work past, present and future
I reprinted here over the weekend a lovely and positive report by Lisa Rich about all the activity emerging from the White House last week on the important topic of clemency. Thanks to Mark Osler, I have now learned that Thursday's extended "White House Briefing on Life After Clemency" can be watched in full via YouTube here. Here is how the event is described:
Building on the President's efforts to make our criminal justice system more fair by granting clemency to men and women sentenced under outdated sentencing rules, the briefing brings together academics, advocates and Administration officials seeking to remove obstacles to successful reentry. The briefing provides a collaborative environment to discuss and share ideas on the President's clemency initiative and ways to improve paths to reentry.
Critically, not everyone is having warm feelings about the work of Prez Obama and his administration's work to date in this arena. In particular, Mark Osler followed up his participation in the White House briefing with this New York Times op-ed headlined "Obama’s Clemency Problem." Here are excerpts:
In the spring of 2014, the Obama administration announced an initiative to consider granting clemency to thousands of federal prisoners serving what Mr. Obama called “unjust” sentences for low-level drug crimes. Federal prisoners were notified of the project, and more than 30,000 responded by submitting surveys to begin the process.
Despite the relatively high number of commutations that Mr. Obama has now granted, there are still more than 9,000 pending commutation cases, many of the sort singled out in the 2014 initiative as potentially worthy. So why has the president acted on so few? Typically, a reluctance to exercise the pardon power is a result of political timidity. But in this case, the Obama administration already took the political risk two years ago when it announced the clemency initiative.
The problem here is that too many cases can’t be adequately considered by the president because of a sluggish and often intransigent review process. Clemency petitions undergo no fewer than seven levels of review, four of them within the Department of Justice. Within the Justice Department, clemency petitions run not only through the Office of the Pardon Attorney but also through the office of the deputy attorney general.
When the pardon attorney, Deborah Leff, resigned in January, she complained in her letter of resignation that meritorious clemency cases had been thwarted by those above her. She noted in particular that some of her own recommendations had been overruled by the deputy attorney general, Sally Quillian Yates. It is not an incidental fact that Ms. Yates is a career prosecutor. When the Department of Justice reviews clemency cases, the opinions of prosecutors in the district of conviction are solicited and given considerable weight. But prosecutors are the wrong people for the task of vetting clemency cases.
I was a federal prosecutor for five years. In that job, deciding someone’s fate is a necessary but difficult emotional commitment. The prospect of being wrong — and a clemency initiative like Mr. Obama’s can feel like a judgment that prosecutors were wrong — can be a lot to bear. We should not be surprised if, when it comes to Mr. Obama’s clemency initiative, prosecutors systematically resist what is, in effect, an indictment of their work.
President Obama can and should fix this problem with a simple executive order that places the Office of the Pardon Attorney in the White House, rather than at the bottom of the institutional structure at the Department of Justice. An empowered pardon attorney (or perhaps a pardon board, as we find in many states) would then report directly to the president. That would allow an independent but thorough review of clemency petitions free from the influence of career prosecutors.
And while Professor Osler is concerned about the slow and cumbersome process for considering clemency requests, this letter to AG Loretta Lynch authored by Senator Richard Shelby highlights that others are troubled by some of the few offenders who have already received sentence commutations. Here is how Senator Shelby's letter gets started:
I am writing to you in response to yesterday’s announcement that President Barack Obama granted sentence commutations to 61 individuals. I have strong concerns that 12 of these 61 individuals were convicted of one, if not more, firearm-related offenses. These include:
- Seven convictions of possession of a firearm in furtherance of a drug trafficking crime;
- Four convictions of possession of a firearm by a felon; and
- Two convictions of use of a firearm in furtherance of a drug trafficking offense.
In August 2014, the Department of Justice announced its rubric for considering federal inmates for the President’s new initiative for executive clemency. Part of these criteria included: non-violent individuals who would not pose a threat to public safety if released; low-level offenders without significant ties to large-scale criminal organizations, gangs, or cartels; inmates who do not have a significant criminal history; and those who have no history of violence prior to, or during, their current term of imprisonment.
By my count, the President has commuted the sentences of over 200 of these “non-violent” federal inmates, of which 33 were convicted of firearm-related offenses. I am troubled by the nature of the firearm-related convictions and the fact that some individuals are previously convicted felons who continued to commit crimes. This announcement clearly demonstrates that the Administration is not following its own selection criteria. Frankly, I am left wondering why the President and the Justice Department consider individuals who carry guns to drug deals as “non-violent”.
Sunday, April 03, 2016
A more positive spin on clemency developments and more positive aspects
Regular readers may grow somewhat tired of hearing me kvetch about President Obama being much more willing to talk the talk than walk the walk when it comes to criminal justice reform generally and clemency developments in particular. For that reason (and others), I invited always sunny Lisa Rich to provide for blogging her sunny perspective on clemency events that transpired at the White House last week. Here is what she was kind enough to send my way for posting:
A somewhat sentimental post by Lisa A. Rich, former director of Legislative & Public Affairs at the U.S. Sentencing Commission and current director of the Texas A&M School of Law Residency Externship Program in Public Policy:
Last Week, I had the privilege of joining not only the tireless advocates of the Justice Roundtable and White House staff but over two dozen recipients of clemency spanning four presidencies during the Justice Roundtable and White House Briefings on “Life After Clemency.”
Personally, it was a joy to see all of the people — Nkechi Taifa, Mark Osler, Cynthia Rosenberry, Jesselyn McCurdy, Julie Stewart, Margy Love, and so many others who have been working tirelessly to answer the Obama Adminstration’s call to action on clemency. I am in awe of the ceaseless dedication these advocates demonstrate every day in their pursuit of hope and justice for those human beings who deserve a chance to be something so much more than a statistic in our cycle of mass incarceration. These advocates and those for whom they do their jobs are the role models I discuss in my classes and they are the ones who inspire me to be better.
But more than my personal connection with those I miss because I am no longer living in D.C., the events over these past three days were important for two reasons. First, all of us, including the President and White House staff saw and heard what hope is all about. We heard from clemency recipients about heartache, mistake, and loss being turned into determination, faith, and commitment. We heard people who genuinely want to make their communities and their lives better, stronger, and happier. I am delighted that policymakers inside and outside of Washington are taking the opportunity to get to know these people — as people, not numbers, not workload, not files on a desk.
Second, I was pleased that two of my students were in the audience — and in fact had been given the opportunity to be involved in preparing for these events. As part of Texas A&M School of Law’s new externship program in public policy, these students got to see policymaking in action from start to finish; they got to see firsthand the effects of both good and bad policy decisions. Their experiences may not seem all that different from the hundreds of law students who go to D.C. and elsewhere each semester to partake in policy but it actually was a defining moment for me and them. These students are the future policymakers and advocates. To me, the events of these past three days were not just about hope for those impacted by outdated laws and poor decision making, but hope that the next generation of lawyers, policymakers, and advocates being trained by the brilliant people who participated in these events will learn from our mistakes; that they will engage in sound decision making based on evidence and best practices; that they will carry on the work done so well by so many. As an advocate and a teacher that is what hope is all about.
Friday, April 01, 2016
GOP frontrunners Donald Trump and Ted Cruz author joint letter urging Prez Obama to commute tens of thousands more federal sentences!
Apologies to those who clicked through based on the headline of this post to discover that this headline is my lame attempt to bring a timely sentencing spin to April Fools Day.
As I was thinking about what to post on this special day for silliness and pranks, it dawned on me that whomever does eventually become the GOP candidate for President probably would be eager to have Prez Obama commute tens of thousands of prison sentences before the election... so that he could thereafter blame any and all future crimes on the current President and every other Democrat currently in office or running for office. This reality, I think, helps explain why Prez Obama has still been so stingy with his clemency grants to date despite so much talk about a big clemency push.
Indeed, in light of Prez Obama's grant of only 61 more commutations earlier this week (details here), I am inclined to predict that we will only see, at most, a few dozen more clemency grants before the November election. But once the election is completed, I think it is entirely unpredictable what Prez Obama might do in the clemency arena. Prez Bill Clinton issued a large number of last-day clemencies, including a notorious pardon to campaign funder and fugitive Marc Rich, and the controversy that created likely led the Prez George W. Bush only granting a few lame-duck clemencies.
Ironically, if a fellow Democrat is elected in November, I suspect Prez Obama will be inclined to grant fewer lame-duck clemencies: he likely will not wish to create any unique challenges or controversies when a member of his own party takes over his position in the Oval Office, and he likely will be hopeful that a successor from his party will continue his visible clemency push. In contrast, if a Republican wins in November, I would expect Prez Obama to grant more clemencies so that he could in this way burnish his claim to have lived up to his "hope and change" campaign mantra in the criminal justice arena.
Finally, while focused on the intersection of April Fools Day and the 2016 campaign, am I crazy to imagine that GOP frontrunner Donald J. Trump might give a big speech today to announce that his entire campaign was just a massive prank and the most amazingly extended form of performance art in American political history?
Wednesday, March 30, 2016
Prez Obama commutes the sentence of 61 more federal drug offenders
As reported in this Washington Post piece, "President Obama commuted the sentences of 61 inmates Wednesday, part of his ongoing effort to give relief to prisoners who were harshly sentenced in the nation’s war on drugs." Here is more on this notable clemency news:
More than one-third of the inmates were serving life sentences. Obama has granted clemency to 248 federal inmates, including Wednesday's commutations. White House officials said that Obama will continue granting clemency to inmates who meet certain criteria set out by the Justice Department throughout his last year.... Since the Obama administration launched a high-profile clemency initiative, thousands more inmates have applied. Another 9,115 clemency petitions from prisoners are still pending....
But sentencing reform advocates said that many more prisoners are disappointed they have not yet heard from the president about their petitions. “Sixty-one grants, with over 10,000 petitions pending, is not an accomplishment to brag about,” said Mark Osler, a law professor at the University of St. Thomas in Minnesota and an advocate for inmates petitioning for clemency. “I know some of those still waiting, men who were grievously over-sentenced, who have reformed themselves, and never had a record of violence. My heart breaks for them, as their hope for freedom — a hope created by the members of this administration — slips away.”
The White House has argued that broader criminal justice reform is needed beyond the clemency program. “Despite the progress we have made, it is important to remember that clemency is nearly always a tool of last resort that can help specific individuals, but does nothing to make our criminal justice system on the whole more fair and just,” said White House counsel W. Neil Eggleston. “Clemency of individual cases alone cannot fix decades of overly punitive sentencing policies. So, while we continue to work to resolve as many clemency applications as possible — and make no mistake, we are working hard at this — only broader criminal justice reform can truly bring justice to the many thousands of people behind bars serving unduly harsh and outdated sentences.”
Among those granted clemency on Wednesday was Byron Lamont McDade, who had an unusual advocate in his corner. The judge who sent McDade to prison for more than two decades for his role in a Washington-area cocaine conspiracy personally pleaded McDade’s case for early release. U.S. District Judge Paul L. Friedman said McDade’s 27-year punishment was “disproportionate” to his crime, but that he had no choice but to impose the harsh prison term in 2002 because of then-mandatory sentencing guidelines. Over the years, the judge had urged the Bureau of Prisons and the White House to reduce McDade’s sentence to 15 years. He received no response until now....
On Thursday, the White House will hold an event called Life after Clemency that will include former inmates and their attorneys, along with some prison reform advocates. The president’s senior adviser, Valerie Jarrett, is meeting with advocates, former inmates and family members of prisoners Wednesday at the White House for an event about women and the criminal justice system.
This White House Press release provides basic details on the full list of 61 offenders who today learned that they now have a "prison sentence commuted to expire on July 28, 2016." Many of those listed appear to have been involved in a crack offense, though other drug cases sentenced both before and after Booker can be found in the group. Notably, this NACDL press release reports that "25 of [these 61 offenders] were applicants whose petitions were supported by Clemency Project 2014." This White House blog post authored by White House counsel W. Neil Eggleston provides more details and context concerning these grants:
Today, the President announced 61 new grants of commutation to individuals serving years in prison under outdated and unduly harsh sentencing laws. More than one-third of them were serving life sentences. To date, the President has now commuted the sentences of 248 individuals – more than the previous six Presidents combined. And, in total, he has commuted 92 life sentences.
Underscoring his commitment not just to clemency, but to helping those who earn their freedom make the most of their second chance, the President will meet today with commutation recipients from both his Administration and the previous administrations of Presidents George W. Bush and Bill Clinton. During the meeting, the commutation recipients will discuss their firsthand experiences with the reentry process and ways that the process can be strengthened to give every individual the resources he or she needs to transition from prison and lead a fulfilling, productive life.
Building on this conversation, tomorrow the White House will host a briefing titled Life After Clemency with advocates, academics, and Administration officials to discuss and share ideas on the President’s clemency initiative and ways to improve paths to reentry. In addition to officials from the White House and the Department of Justice, experts, academics, and commutation recipients will share their expertise and insights on returning to society after years behind bars. To watch the briefing live, tune in tomorrow, Thursday, March 31, at 2:00 PM EDT at www.whitehouse.gov/live.
Tuesday, March 29, 2016
Still more ugly details on the still ugly realities of the federal clemency process
Regular readers are probably tired of hearing me complain regularly about the failure of the Obama Administration to fix the many problems surrounding the modern federal clemency process. But this new USA Today article, headlined "Former administration pardon attorney suggests broken system in resignation letter: Former Pardon Attorney Deborah Leff said she was unable to talk to the White House about pardons," provides still more grist for my clemency kvetching mill. Here is how the piece starts:
The Obama administration instructed Justice Department attorneys to neglect applications for presidential pardons to give priority to the Justice Department's initiative to release low-level offenders from prison, the former pardon attorney said in her resignation letter early this year. That inaction was one of several issues that former Pardon Attorney Deborah Leff cited in her letter, which was obtained by USA TODAY after making a Freedom of Information Act request. Leff resigned in January after less than two years as the official responsible for making clemency recommendations for the president.
Her resignation letter suggests a broken and bureaucratic process at odds with President Obama's own aim to exercise his pardon power "more aggressively" in the final months of his presidency. Leff wrote that the administration's focus on the clemency initiative at the expense of traditional pardons and commutations "means that the requests of thousands of petitioners seeking justice will lie unheard."
"This is inconsistent with the mission and values to which I have dedicated my life, and inconsistent with what I believe the department should represent," she wrote.
It's the job of the U.S. pardon attorney to investigate all of those cases and make a recommendation to the deputy attorney general, who then forwards it to the White House Counsel's Office and, ultimately, the president. Because the pardon attorney advises the president on sensitive cases, the process is cloaked in secrecy, and officials rarely discuss the process publicly. So Leff's letter offers a rare glimpse into how the pardon office works in the Obama administration. Unlike in previous administrations, where pardon office staffers and the White House had routine conversations, Leff said she was denied "all access to the White House Counsel's Office," which is the last step for a pardon application before being approved or denied by the president.
She said Deputy Attorney General Sally Quillian Yates had overruled her recommendations in an increasing number of cases — and that in those cases, the president was unaware of the difference of opinion. "I believe that prior to making the serious and complex decisions underlying clemency, it is important for the president to have a full set of views," she said.
And she said the Justice Department had not made good on its promise to put the required resources behind the clemency initiative. That initiative, part of a broader push for sentencing reform, was designed to use the president's constitutional pardon power to release federal inmates who would have received shorter sentences had they been sentenced under today's more lenient guidelines. It applies mostly to non-violent drug offenders serving sentences of 10 years or more, with good behavior while in prison.
Tuesday, March 15, 2016
Another disconcerting report about the failings of the Obama clemency initiative and Clemency Project 2014
Regular readers know that, ever since Prez Obama and his Aministration started talking up efforts to get serious about using clemency powers, I have been regularly expressing concerns about how structurally peculiar and procedurally belabored the new (and now not-so-new) clemency push has been. Here are just a few of my prior related posts on this front:
- Perspectives on Clemency Project 2014 from federal prisoners and an advocate for them
- Has the approach and administration of Clemency Project 2014 actually made the federal clemency process worse?
- Extraordinary review of messiness of Prez Obama's clemency push
- Circa mid-2015, Clemency Project 2014 will go down as an abject failure if it does not submit more petitions before 2016
Still more reason for concern has now emerged via this new Reuters article headlined "Obama's prisoner clemency plan faltering as cases pile up." Here are excerpts:
In April 2014, the administration of President Barack Obama announced the most ambitious clemency program in 40 years, inviting thousands of jailed drug offenders and other convicts to seek early release and urging lawyers across the country to take on their cases.
Nearly two years later the program is struggling under a deluge of unprocessed cases, sparking concern within the administration and among justice reform advocates over the fate of what was meant to be legacy-defining achievement for Obama.
More than 8,000 cases out of more than 44,000 federal inmates who applied have yet to make it to the U.S. Department of Justice (DOJ) for review, lawyers involved in the program told Reuters. That is in addition to about 9,000 cases that are still pending at the DOJ, according to the department's own figures.
Only 187 inmates have had their sentences commuted, far below the thousands expected by justice reform advocates and a tiny fraction of the 2.2 million people behind bars in the United States, which has the world's highest incarceration rate....
A senior DOJ official told Reuters it is calling on the lawyers' group -- Clemency Project 2014 -- to simply hand over the outstanding cases without further vetting, saying it is not working fast enough. So far, the group estimates it has handed over around 200 cases.
But criminal justice experts say the administration itself should bear much of the blame. The idea to tap pro-bono attorneys to help vet the cases originated with the DOJ, and critics say it should have prepared its own staff to handle the large volume of applications. “It’s unfair to criticize the volunteer group that you asked to help,” said Rachel Barkow, a criminal law professor at New York University who has studied clemency in U.S. prisons. She estimates that about 1,500 prisoners should be eligible for commutation, saying the 187 granted so far does not "fulfill the promise of the program."...
The delays have left prisoners like Linda Byrnes, 69, in limbo. “I thought clemency was for people like me,” Byrnes told Reuters through an electronic messaging system from a federal prison in Alderson, West Virginia. Byrnes, who has spent 20 years in prison for distributing marijuana and has two years left on her sentence, was recently diagnosed with mouth cancer and has yet to hear whether she has been assigned a lawyer after submitting her application to Clemency Project in August 2014....
Clemency Project 2014 said it does not comment publicly on the individuals it represents. The group vets the applications, writes the petitions and sends them to the Justice Department’s Office of the Pardon Attorney, which oversees all pardons and sentence commutations and makes recommendations for the president's approval.
So far, 25,000 of 34,000 applications received by Clemency Project have been rejected for failing to meet the basic criteria - no record of violence, no significant ties to a gang or drug cartel, good behavior in prison and completion of at least 10 years of sentence. About 10,000 inmates did not go through the Clemency Project and either applied directly to DOJ or through a paid attorney. "It really would be a sad state of affairs if individuals who had asked for a lawyer weren't considered in time because their petitions never reached the pardon attorney's office," a DOJ official told Reuters on the condition of anonymity.
A large number of mostly unqualified applications, a shortage of lawyers and the complexity of the cases have slowed progress, said Cynthia Roseberry, project manager for Clemency Project 2014. "There are a lot of gray areas," said Roseberry, who estimates it takes 30 days for one lawyer to review one case on average. "We've got to unpack each of these applicants to see specifically what factors affect them... and so that takes a little more time."
This includes finding pre-sentencing reports for each case, determining if the person would have received a shorter sentence under current law and reviewing prison behavior records. Roseberry said the group was unaware of any request from the Justice Department to hand over the pending applications. Roseberry said the group's initially slow pace has picked up in recent months....
Roseberry said about 3,000 applicants still need to be assigned to a lawyer, and that it was not certain whether the group will be able to submit all of the applications it has received before Obama leaves office. The group has more than 570 law firms and 30 law schools contributing to the effort.
Some rejected prisoners and those who have yet to hear a decision say they believe they would have had a better chance if they had sent their clemency petition directly to the government.
Josie Ledezma was sentenced to life for conspiracy to transport cocaine and applied for clemency through Clemency Project 2014. She said she did not hear from them for six months and later learned that her assigned lawyer had shut down her legal practice. In January, nearly one year after applying, she was told Clemency Project 2014 could not help her and encouraged her to apply directly. “I wrote back and asked what was it that made me not qualify, but never got a response,” Ledezma told Reuters through an electronic messaging service for federal prisoners.
Sunday, March 13, 2016
Anyone dare to predict how many sentence commutations to expect from Prez Obama in coming weeks?
The biggest on-going guessing game involving Prez Obama these days concerns whom he will name to the open Supreme Court seat. But this Washington Post article, headlined "President Obama expected to grant more clemencies to federal prisoners in coming weeks," provide fodder for the distinct guessing game set forth in the title of this post (which may be fun for sentencing fans and is surely nerve-racking for prisoners). Here are excerpts from the article:
President Obama is expected to grant clemency to another group of drug offenders in the coming weeks, part of his ongoing effort to provide relief to inmates in federal prisons who were sentenced to harsh terms in the nation’s war on drugs.
The White House will also be holding an event on March 31 called “Life after Clemency,” that will include former inmates and their attorneys, along with some prison reform advocates. The White House gathering, which is not open to the press, will focus on one of the president’s centerpiece criminal-justice initiatives and will include a discussion on “ways to improve paths to reentry,” according to the invitation. Spokeswomen from the White House and the Department of Justice declined to comment....
In the spring of 2014, former Attorney General Eric H. Holder Jr. — who called mandatory-minimum drug sentences “draconian” — launched an initiative to grant clemency to certain nonviolent drug offenders in federal prison. To qualify, prisoners had to have served at least 10 years of their sentence, and have no significant criminal history and no connection to gangs, cartels or organized crime. They must have demonstrated good conduct in prison. And they also must be inmates who probably would have received a “substantially lower sentence” if convicted of the same offense today.
Since then, Obama has commuted the sentences of 184 federal inmates, including 95 prisoners he granted clemency to in December. Another 9,115 clemency petitions from prisoners are pending before the Obama administration. It is unclear how many of them are still being reviewed in the U.S. Pardon Attorney’s office or how many are pending in the office of Deputy Attorney General Sally Yates or the White House Counsel’s office because that information is not publicly available.
The Justice Department’s former pardon attorney, Deborah Leff, stepped down in January because she was frustrated by a lack of resources to process clemency petitions and recommend which ones should be sent to the White House. The new pardon attorney, longtime federal prosecutor Bob Zauzmer, said that his goal — whether he gets more needed resources or not — is “to look at every single petition that comes in and make sure an appropriate recommendation is made to the president.”
Responding to my own dare, I will predict that Prez Obama will commute around 90 sentences and do so in the days following his naming of a Supreme Court nominee. I suspect based on his December grants that Prez Obama is generally disinclined to commute more than 100 sentences at one time. And I imagine he will get a kick out of doing something like a big clemency grant that might otherwise be controversial but likely will not be (and will probably not get all that much medial attention) in the wake of a SCOTUS nominee.
Sunday, February 28, 2016
"With Marijuana Legal, Why Are People Still Doing Life For Weed?"
Thie question in the title of this post is the headline of this article from The Kind (as well as a question that really does not have a satsfactory answer). Here are excerpts:
At least 30 people are currently serving life without parole for non-violent marijuana-related offenses. Save extraordinary events, they will die in prison. Overturning a law does not exonerate the people who were convicted of breaking the law when it was in effect. This means that even if marijuana is legalized tomorrow, those serving time for marijuana-related offenses will not be released.
“Most people don’t believe it,” says Beth Curtis, founder of Life for Pot, an organization that spotlights people who are serving life without parole for non-violent marijuana-only offenses.
One person who is scheduled to remain in jail until they die is Curtis’s brother, John Knock. “Twenty years ago I received a phone call informing me that my youngest brother had been indicted for a marijuana conspiracy in Florida,” Curtis explains on her site. “Our lives have never been the same.”...
In 2008 she launched LifeForPot.com, which currently features 30 or so inmates with life or de facto life sentences (e.g., someone who is 50 years old and gets 50 years). Most of Curtis’s advocacy takes place offline, primarily through writing and sending information about individuals to congress, congressmen, and various groups that might take up the cause. “Actually a lot of people have,” she says. “Now when you Google ‘life for pot’, lots of stuff comes up. When I first started, it was just my site.”...
Without retroactive legislation, inmates serving life without parole for weed can only be released through clemency, in the form of a pardon or sentence commutation from the president (on the federal level) or from the governor (on the state level). (Group pardons are rare, but not entirely unprecedented.)
Out of the 95 sentence commutations granted by President Barrack Obama in December, two were serving life for marijuana-related crimes: Billy Dekel and Charles Cundiff.
Beth Curtis says she’s been advocating for both of them for years and plans to visit them once they’re out. Another inmate on Curtis’s radar, Larry Duke, was freed last March under a compassionate release program for inmates over 65. While Curtis was elated by the three inmates’ release, she notes that Obama would need to seriously ramp up the number of commutations to make a meaningful dent in the population.
“These people need clemency to get any relief,” she says. “And for the old guys, it’s kind of important that it happens pretty soon. Their runway is a lot shorter. Not that the younger people shouldn’t be released also, but dying in prison is a particularly horrendous thought. “Obama said that through clemency there would be thousands released,” Curtis adds. “I hope that that’s true. I hope and pray that that’s true.”
Cross-posted at Marijuana Law, Policy and Reform
Wednesday, February 24, 2016
What does (closet libertarian?) GOP front-runner Donald Trump now really think about the drug war and criminal justice reform and Prez clemency?
Based on his personal and professional history, as well as a number of his prior positions on a range of social and economic issues, I have long assumed the essential political views and commitments of Donald Trump to be what might be called "pragmatic libertarianism." I say that in part because most successful private businessmen in the United States, in addition to being generally pragmatic, tend to have at least some hint of a libertarian streak on at least some issues (e.g., think of the Koch brothers or Peter Lewis). More to the point, as I have flagged in prior posts here and on my marijuana reform blog, Donald Trump once embraced the libertarian view that full legalization would be the only way to "win" the drug war.
But, of course, Donald Trump the Presidential candidate has sounded far more authoritarian than libertarian on the campaign trail, especially with respect to domestic issues. He conveniently says that he has now changed his mind about abortion and thus now is pro-life rather than pro-choice. He also has expressed in vaious ways disaffinity for marijuana legalization (though his position seems to get more and more nuanced as time goes on, as highlighted in posts here and here from my marijuana reform blog). Then again, to the extent a single idea summarizes Trump's modern politics, it would seem to be "anti-establishment"; I think it is accurate to describe The Establishment, on both the left and the right, to be quite statist and generally anti-libertarian.
I say all this not to claim that Donald Trump is the most libertarian candidate still with a serious chance to become President (although this might be true). Rather, I say it in order to try to figure out whether, when and how the candidate now seemingly most likely to represent the GOP on the national stage for the bulk of 2016 will articulate his latest thinking about federal criminal justice issues ranging from statutory sentencing reform of mandatory minimum sentences for drug offenders to federal responses to state marijuana legalization to the robust use of federal clemency powers.
Obviously, how the last five or six US presidents have approached these federal criminal justice issues, both politically and practically, has had a huge impact on the nature and reach of our nation's federal and state criminal justice systems. Before I can even figure out whether I should be terrified by the prospect of a President Trump, I really am eager to hear more about his current thoughts on these important criminal justice fronts. Critically, not only would Trump's discussion now of these issues help me better understand long-term what would a President Trump might actually do, I think they could have a big short-term impact on the work of the current Congress and the current President (and even the current Supreme Court) in these areas.
With apologies for my (silly?) Prez Trump musings in the wake of his latest "yuge" win in Nevada, I am eager to hear lots of thought from lots on readers on this political and legal front.
Monday, February 22, 2016
Highlighting that, despite lots of talk and a little action, Prez Obama remains a clemency grinch
Over at his blog Pardon Power, political scientist PS Ruckman does a terrific job tracking and placing in historical context the latest date concerning the use of presidential clemency powers. And these three recent posts highlight effectively that, despite lots of talk from the Obama Administration about a big clemency initiative, the current President the most notable story to date concerning Obama's clemency record is how stingy it is:
As long-time readers know, I have been urging Prez Obama to live up to his hope and change rhetoric in this arena since the day he was inaugurated seven year ago, as highlighted by these two posts from January 20, 2009: Inaugural rhetoric about freedom and liberty in prison nation and Is it too early to start demanding President Obama use his clemency power?. (The extensive comments to the second of these posts are especially interesting to review with the benefit of seven years of political hindsight.) In addition, way back in 2010, I authored this law review article titled "Turning Hope-and-Change Talk Into Clemency Action for Nonviolent Drug Offenders," which closed with this recommendation:
President Obama ought to seriously consider creating some form of a "Clemency Commission" headed by a "clemency czar."... Though a "Clemency Commission" headed by a "clemency czar" could be created and developed in any number of ways, my vision and goals here are meant to be fairly basic. The idea is for President Obama to create a special expert body, headed by a special designated official, who is primarily tasked with helping federal officials (and perhaps also state officials) improve the functioning, transparency, and public respect for executive clemency. Though the structure, staffing, and mandates of a Clemency Commission could take many forms, ideally it would include personnel with expertise about the nature of and reasons for occasional miscarriages of justice in the operation of modem criminal justice systems — persons who possess a deep understanding that, in the words of James Iredell, "an inflexible adherence to [severe criminal laws], in every instance, might frequently be the cause of very great injustice.
The Clemency Commission could and should study the modem causes of wrongful conviction, "excessive" sentences, and overzealous prosecutions, and then make formal and public recommendations to the President and other branches about specific cases that might merit clemency relief or systemic reforms that could reduce the risk of miscarriages of justice. In addition, the Commission could be a clearinghouse for historical and current data on the operation of executive clemency powers in state and federal systems. It could also serve as a valuable resource for offenders and their families and friends seeking information about who might be a good candidate for receiving clemency relief. Though the creation of a Clemency Commission would be an ambitious endeavor, the effort could pay long-term dividends for both the reality and the perception of justice and fairness in our nation's criminal justice system.
I have reprinted this suggestion here because, though I made the pitch in print more than half a decade ago, it still strikes me as timely and relevant to the on-going discussions about federal criminal justice reform. Indeed, given this latest data marshalled by PS Ruckman and the seemingly limited success and limited basis for optimism as of February 2016 surrounding "Clemency Project 2014," I think Prez Obama and the rest of the federal criminal justice reform discussion might benefit now more than ever from the creation of some form of a "Clemency Commission" headed by a "clemency czar." And, especially with US District Judge John Gleeson now only a few weeks away from stepping off the federal bench, there is an obvious candidate for the ideal first clemency czar.
As regular readers (and my students know), I could go on and on and on about this subject and especially about President Obama's unique missed opportunity to create a criminal justice reform legacy in this historically and constitutionally important arena. But rather than repeat myself, I will just link to just a few of my prior Obama-era posts while starting to wonder in the wake of recent election results whether President Hillary Clinton or President Donald Trump might have the interest and ability to really bring hope and change to a very sorry modern federal clemency history.
Just a few of many recent and older posts concerning the modern ugly realities of federal clemency:
- ProPublica urges next AG to "Fix Presidential Pardons"
- Nearly a year into clemency initiative, turkeys remain more likely to get Prez Obama pardon than people
- Has the approach and administration of Clemency Project 2014 actually made the federal clemency process worse?
- Restructuring Clemency: The Cost of Ignoring Clemency and a Plan for Renewal"
- Making the case (again) for fixing the federal clemency process
- "How to Awaken the Pardon Power"
- Updated numbers on President Obama's disgraceful clemency record
- "Clemency Reform: We're Still Waiting"
- New York Times editorial assails Prez Obama's considerable clemency failings
- President Obama (aka clemency grinch) grants a few holiday pardons and commutations
- Highlighting President Obama's pitiful pardon record
February 22, 2016 in Clemency and Pardons, Criminal justice in the Obama Administration, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (12)
Wednesday, February 10, 2016
Paul Cassell, the former federal judge who sentenced Weldon Angelos to 55 years, writes directly to Prez Obama to support his clemency petition
As reported in this Washington Post article, headlined "Former federal judge to President Obama: Free the man I sentenced to 55 years in prison," former US District Judge (and now Prof) Paul Cassell has now written directly to the President to urge him to "swiftly commute his sentence." Regular readers likely know a lot about the story of Weldon Angelos, whom I once helped represent as he pursued collateral appeals, and the Post article provides some of the details and context behind his current push for clemency:
Calling the sentence “one of the most troubling that I ever faced in my five years on the federal bench,” Paul G. Cassell, now a professor at the University of Utah’s law school, said the mandatory minimum sentence he was required to impose on Angelos was one of the chief reasons he chose to step down as a judge.
“I write you as the judge who sentenced Weldon Angelos to a 55-year mandatory minimum prison term for non-violent drug offenses,” Cassell wrote to Obama. “It appears to me that Mr. Angelos meets all of the criteria for a commuted sentence.” Cassell was appointed to the bench in 2002 by former President George W. Bush.
In December, Obama granted clemency to 95 drug offenders as part of his continuing effort to give relief to drug offenders who were harshly sentenced in the nation’s war on drugs. But Angelos, who is behind bars at the Federal Correctional Institution at Mendota, was not on the president’s list. The president has commuted the sentences of 184 federal inmates, more individuals than the past five presidents combined. But sentencing reform advocates say that hundreds — and potentially thousands — of inmates who meet the Obama administration’s criteria for clemency, including Angelos, are still behind bars....
Angelos, the son of a Greek immigrant and the 36-year-old father of three, is one of the nation’s most famous nonviolent drug offenders and a symbol of the severe mandatory sentences. His case has been widely championed, including by Utah’s Republican Sen. Mike Lee, former FBI Director Bill Sessions, the group Families Against Mandatory Minimums and conservative billionaire Charles Koch. “Judge Cassell’s letter articulates well the grave injustice involved in Weldon’s prison sentence,” said Mark Holden, general counsel and senior vice president of Koch Industries,” who has urged attention to the Angelos case.
Like many inmates, Angelos has missed being with his children as they grew up. His 18-year-old son, Anthony, was six when he was sent to prison. His son, Jesse, was 4. His 13-year-old daughter, Meranda, was an infant. In an interview, Angelos said he had hoped the president would grant him clemency in time for him to see Anthony graduate from high school in June.
Angelos was sentenced to 55 years without the possibility of parole after he sold marijuana to a police informant three times in 2002, each time charging $350. Prosecutors alleged that Angelos, the founder of Utah hip-hop label Extravagant, was a gang member and a drug dealer. Angelos denied the allegations and declined a plea bargain offered by prosecutors. Angelos never used or pulled a gun, but the informant later testified in court that he saw one in Angelos’s car during the first buy. He said that during the second buy, Angelos was wearing an ankle holster holding a firearm. Officers later searched his home and found a gun.
The sentence Angelos received as a nonviolent first-time offender fell under a law called 924(c). Federal drug laws require 5- to 30-year mandatory minimum sentences for possessing, brandishing or discharging a gun during a drug-trafficking crime. For each subsequent gun conviction, there is a mandatory sentence of 25 years that must be served consecutively. This is often referred to as “gun stacking,” which is why Angelos received 55 years without parole. He received five years for the gun in the car; 25 years for the second gun charge, having one in an ankle strap; and another 25 years for a third firearms charge, the gun police found in his home. He got one day for the marijuana.
In 2004, when Cassell sentenced Angelos, he wrote a lengthy opinion, comparing Angelos’s sentence (738 months) with the guideline sentences for the kingpin of three major drug trafficking rings that caused three deaths (465 months), a three-time aircraft hijacker (405 months), a second-degree murderer of three victims (235 months) and the rapist of three 10-year-olds (188 months).
Related prior posts providing some Angelos case history:
- Judge Cassell's remarkable, and remarkably disappointing, decision in Angelos
- Cert denied in Angelos mandatory minimum case
- NYU Center files amicus in Angelos case
- An argument that the Second Amendment and Heller should help Weldon Angelos
- Weldon Angelos files 2255 motion
- A request for a commutation for Weldon Angelos
- "White House Seeks Drug Clemency Candidates" ... like Weldon Angelos and Chris Williams?
- A test for the Kochs' influence: seeking justice and freedom for Weldon Angelos
Wednesday, February 03, 2016
DOJ announces appointment of new Acting Pardon Attorney
This DOJ press release reports that the "Justice Department announced today that Robert A. Zauzmer will become the new Acting Pardon Attorney effective immediately." Here is more about this important new person in an important new DOJ position:
Zauzmer, the Chief of Appeals in the U.S. Attorney’s Office of the Eastern District of Pennsylvania, has been a key player in the department’s implementation of both the 2013 Smart on Crime initiative and the U.S. Sentencing Commission’s retroactive sentence reductions.
“Bob’s long-standing commitment to criminal justice reform and his knack for devising and implementing the department’s sentencing reduction policies made him a natural choice to serve as Pardon Attorney,” said Deputy Attorney General Sally Q. Yates. “Bob also shares my unwavering dedication to the president’s clemency initiative. Given his experience and dedication, I am confident that Bob will hit the ground running.”
“As someone who has been part of the criminal justice system for more than 25 years, I have long been troubled by the imposition of disproportionately lengthy sentences, even as long as life imprisonment, that were imposed on low-level drug offenders on the basis of laws and policies that have since been changed,” said Zauzmer. “I have dedicated much of the past decade to assisting in the efforts to right some of those unfairly long sentences, and it is my profound honor to aid the president in using his clemency power to continue to restore the sense of proportionality and fairness that is at the heart of our justice system.”
As part of his efforts on behalf of the department, Zauzmer has testified multiple times before the U.S. Sentencing Commission on sentencing guideline issues, including the retroactive application of reductions in drug sentences. He also trained federal prosecutors nationwide on how to apply retroactivity in a way that provides relief to all eligible inmates in the most efficient manner possible. From 2012 to 2014, Zauzmer served as a member of the Attorney General’s Advisory Committee (AGAC), working closely with Attorney General Loretta E. Lynch and Deputy Attorney General Yates at a time that they served as chair and vice-chair, respectively, of the AGAC....
In December 2013, President Obama directed the department to prioritize applications for clemency from inmates who were sentenced under outdated policies and would have received a lesser sentence under current policies and laws. Since the clemency initiative was announced in April 2014, the president has granted 187 commutations, more than the last five presidents combined.
UPDATE: This new NPR piece, headlined "New Pardon Chief In Obama Justice Department Inherits A Huge Backlog," has some interesting quotes from the new Acting Pardon Attorney:
Robert Zauzmer, 55, has worked since 1990 at the U.S. attorney's office in the Eastern District of Pennsylvania. Justice Department leaders said Zauzmer represented a "natural choice" for the pardon job, in part because of his experience training prosecutors all over the country in how to evaluate prisoners' requests for early release. "There were many occasions over the years where I saw these sentences of 20, 30 years, life imprisonment imposed on low-level offenders based on mandatory sentencing laws that troubled me," Zauzmer told NPR in an interview this week.
"Prosecutors are very knowledgeable about these cases and about the laws and about the need to do justice," he added. "They are passionate about this, and they are dedicated to doing the right thing and correcting any erroneous sentences that need to be corrected, and I am equally passionate about it."
His first task? Making sure that thousands of prisoner petitions are reviewed and worthy candidates are forwarded to the White House for action before the end of the Obama presidency, whether the applications come from trained lawyers or from inmates themselves. "We're going to consider every petition," he said. Zauzmer declined to offer a deadline but said stacks of petitions are "not going to be left on my table."
"I need to make sure that every system is in place that's necessary to review every case and make sure everybody gets a fair shake," Zauzmer said. "There's a lot to do, but we have an excellent staff there, and I'm going to give it everything I have."...
But in the interview, the new acting pardon attorney cast some doubt on the idea of a mass clemency. "So I don't think we will ever get to a point where we will say, let's just take this basket of people and do mass clemency," Zauzmer said. "We will look at these cases individually to make sure that we're not creating an undue risk to public safety, and that requires an individual assessment."
And Zauzmer pointed out that he is quite familiar with those case-by-case looks. He said the White House had already shortened the prison terms of six inmates from his district in Pennsylvania, including the case of David Padilla, who had been serving life behind bars. "He was a classic example of someone who committed crimes, did bad things, admits it, has served almost 20 years in prison and should not be serving a life sentence," he said. "A life sentence does not possibly match the kind of criminal conduct that he was involved in."
Wednesday, January 27, 2016
New York Times editorial highlights "Mr. Obama’s Pardon Problem"
Today's New York Times includes this notable editorial about the Obama Administration's recent clemency efforts and the need to revamp the entire way in which federal clemency has been approached in modern times. Here is how it begins:
The sudden resignation of the federal pardon attorney, Deborah Leff, an Obama appointee, is the latest evidence that until the clemency process is pried from the grip of the Justice Department, it will remain broken.
The pardon attorney’s office, which operates out of the Justice Department, is responsible for reviewing thousands of petitions for pardons and sentence commutations and for making recommendations for clemency to the president. The president’s power to grant mercy in these cases is nearly unlimited, but for most of his time in office, Mr. Obama, like his recent predecessors, has exercised this power only rarely.
Since 2014, Mr. Obama has focused more attention on this issue. To overhaul the notoriously backlogged pardon office, he announced new standards encouraging tens of thousands of federal prisoners to request reductions of their inordinately long drug sentences. And he hired Ms. Leff to replace Ronald Rodgers, whose incompetent tenure included a finding by the Justice Department’s inspector general that in 2008 he hid information from President George W. Bush in recommending the denial of a clemency petition.
Ms. Leff’s appointment was a promising sign that the dysfunctional pardon process would be repaired. But her tenure didn’t last long. On Jan. 15, barely one year after she was formally appointed, she abruptly announced she would step down at the end of this month, saying only that the work of the office should “move ahead expeditiously and expand.”
As she leaves, more than 10,000 clemency petitions are waiting for review. While the pardon office, which has 10 lawyers, has remained virtually the same size it was 20 years ago, the number of petitions has increased almost sevenfold. The department recently announced plans to hire 16 new lawyers, but this would still be far below the number needed to process the backlog.
The lack of resources is only part of a deeper problem, which is that the pardon office is caught in an incurable institutional conflict. The deputy attorney general has authority to review the pardon attorney’s clemency recommendations, and federal prosecutors generally have little interest in revisiting or undoing the department’s convictions. As one former pardon attorney put it, the prosecutors are “determinedly and irreconcilably hostile” to clemency.
Thursday, January 21, 2016
"Why hasn’t President Obama granted clemency to a single Latina inmate?"
The question in the title of this post is the headline of this recent Fusion commentary authored by Jason Hernandez. Here are excerpts from his commentary:
Last month, President Obama announced a new series of pardons and commutations for federal prisoners, just like he has for the past three years, just before the First Family leaves for their Christmas vacation. Since he took office, Obama has commuted the sentences of 184 federal prisoners, many of whom were sentenced to life without parole for nonviolent drug crimes....
On December 19, 2013, I was one of the people he chose. At the time, I was serving a life sentence for a nonviolent drug crime. In total, I spent 17 years behind bars for a crime committed at age 21. I was the first Latino man to receive clemency from President Obama, and I will be eternally grateful that he gave me a second chance.
But I’m baffled that of the 184 individuals who have received his mercy in the last seven years, not one has been a Latina. Latinas make up about 17% of the U.S. population and 33% of the women’s federal prison population. They are three times more likely to go to prison than white women. And the number of Latinos sent to federal prison nearly quadrupled between 1991 and 2007. There’s no shortage of worthy Latina candidates for a presidential clemency.
Take, for example, Elisa Castillo, a 56-year-old grandmother who unknowingly smuggled cocaine on tour buses from Mexico to Houston. Because she had no information to negotiate a plea bargain with, she was indicted for conspiracy, went to trial, and received life without parole.
Then there’s Rita Becerra, who was arrested because of her involvement with her boyfriend’s drug dealing. Rita cooperated with the prosecution against her boyfriend, but because he cooperated too, he got just nine years and Rita 27 years — she has been in prison over 20 years. And Josephine Ledezma, who in 1992 was sentenced to life without parole for a nonviolent drug crime: she is now 57 and has been in prison 24 years.
President Obama has urged members of Congress to reform our broken criminal justice system and spoken eloquently about racial disparities in sentencing. One might want to blame him for failing to help incarcerated Latinas like these women, but the Latino community shoulders the blame as well. To my great disappointment, Latino groups like the National Council of La Raza or LULAC have not only remained silent about the president’s failure to commute the sentence of a single Latina, but also haven’t done enough to highlight the abuses of the War on Drugs more generally. This is a disgrace.
The War on Drugs should be called the War on Minorities. Harsh drug sentencing has deeply hurt the black and hispanic communities, especially our children. Studies show our drug policies have done more harm than good by breaking up families and decimating communities of color. Brown lives matter, too.
Wednesday, January 20, 2016
Disconcerting backstory apparently explains quick departure of DOJ's Pardon Attorney
I had seen news late last week that the Justice Department’s relatively new pardon attorney had announced she was resigning her post, and this new Washington Post article about the departure provides some of the backstory. The piece is headlined "Attorney overseeing clemency initiative leaving in frustration," and here are excerpts:
The Justice Department’s pardon attorney — charged with overseeing the review of clemency petitions from federal inmates — is stepping down at the end of January because she is frustrated by a lack of resources for one of the president’s centerpiece criminal-justice initiatives, according to people close to her.
The departure of Deborah Leff, who has been in her role since 2014, comes as the Obama administration struggles to process a backlog of more than 9,000 pending clemency petitions. As the president approaches the end of his second term, time is running out for his high-profile effort to offer clemency to certain nonviolent federal drug offenders harshly sentenced in the nation’s war on drugs.
The Justice Department said it is confident that Leff’s departure will not delay the administration’s clemency initiative, and it hopes to find a replacement quickly. Justice spokeswoman Emily Pierce also said the department is asking Congress to more than double the number of lawyers assigned to the pardon office, from 22 to 46.
Leff could not be reached for comment but released a statement saying that she has known President Obama for more than 20 years and that she thinks “his commitment to reinvigorating the clemency process — and the promise that holds for justice — can change the lives of a great many deserving people.” But Leff added: “It is essential that this groundbreaking effort move ahead expeditiously and expand.”
A former trial lawyer, senior television producer and president of the Public Welfare Foundation, Leff was highly respected by sentencing reform advocates. “She never got the staffing she needed,” said one friend. “She was very frustrated.” Other people close to Leff said that she was passionate about making the clemency initiative work but had been unhappy for quite some time about not having enough resources.
Obama has commuted the sentences of 184 federal inmates. White House Counsel Neil Eggleston said in December that Obama has commuted the sentences of more individuals than the past five presidents combined and that the president will grant more commutations and pardons this year. But advocates of sentencing reform are disappointed that the clemency process has not moved more quickly and that more of the thousands who have submitted clemency petitions have not had their sentences commuted....
A senior Justice Department official said that the clemency initiative is of the highest priority for the department and that those involved have been working tirelessly to move petitions along as quickly as they can with a limited budget and legal restrictions....
“To lose the head of the office that’s running the clemency initiative is concerning,” said Kevin Ring, vice president of Families Against Mandatory Minimums. “We hope she is replaced by someone who is as dedicated, smart, passionate and committed as she was to getting these petitions through.”
Pierce said the department has been constrained by law in terms of how many resources and how much of its budget it can devote to the clemency initiative. Pierce said the department has “provided additional funds to the pardon office within the confines of our budget and has detailed dozens of additional full- and part-time attorneys over the course of the clemency initiative.” Despite the constraints, a Justice official said that lawyers are reading each of the thousands of clemency petitions that have been submitted and have prioritized the ones that best meet the new criteria set out by the administration....
Justice officials said that they expect to name a replacement before Leff leaves Jan. 31. “A new pardon attorney will be named in the near future and we expect the work of the pardon attorney’s office to continue apace as we identify and vet potential candidates for the president’s clemency priorities,” Pierce said. “The Justice Department is dedicated to the goals of the clemency initiative and is steadfastly committed to doing all it can to ensure fairness in the criminal-justice system.”
I find this story disconcerting because it seems to me just another manifestation of the problems Prez Obama has himself created by having ignored his clemency powers during his first six years in office and then deciding he should try to make up for lost time on his way out of the Oval Office. I had (foolishly?) hoped Prez Obama would have been a lot smarter in this important space in the wake of the ugly last-day clemency doings of Prez Clinton back in 2001 and especially with out-going Prez Bush telling in-coming Prez Obama on Inauguration Day 2009 that clemency matters should garner his attention. But here we are seeing, yet again, that by ignoring these matters until essentially the last minute, Prez Obama's record in this space will be marked by various missteps and frustrations (although I remain hopeful that even his "last-minute" efforts will still result in a notable improvement on the work of many of his recent predecessors in the clemency arena).
Thursday, January 07, 2016
Deep dive into notable state-level clemency developments
This notable new Stateline piece, headlined "Move Is on to Make End-of-Year Pardons Less Random," reports on some notable new developments in state clemency practices. I recommend a full read of the piece for clemency fans, and here are excerpts:
Barry Beach in Montana got one. Gabrielle Cecil in Louisville got one. And actor Robert Downey Jr. in California got one. They won the holiday-time clemency lottery and, in the past two months, had their sentences commuted or pardoned.
Beach’s 100-year sentence for murder was shortened to time served, 30 years. Cecil’s life sentence for killing her abusive partner was forgiven. And “Iron Man” actor Downey, whose felony drug conviction in the 1990s led to nearly a year in jail, got a pardon for good behavior. They’re the lucky ones.
Only 15 states, including Arkansas and California, grant frequent and regular pardons, to more than 30 percent of applicants, according to the Collateral Consequences Resource Center, a nonprofit that promotes public discussion of the lasting effects of conviction. The largest group — 21 states, including Kansas, Kentucky and Tennessee, as well as the District of Columbia —provided few or no pardons in the past 20 years. Nine states have a regular pardon process but grant clemency to just a small percentage of those who ask for it, and five states — Louisiana, Maine, New Mexico, Ohio and Wisconsin — grant pardons only infrequently, depending on the governor.
But several governors and state legislatures have moved in recent months to make the clemency process easier and pardons more frequent, reflecting a growing consensus that harsh mandatory minimum sentences have left too many Americans behind bars. “I do see a wave of mercy rolling across the country,” said P.S. Ruckman Jr., who teaches political science and runs a clemency blog, pardonpower.com. “Over the last 10 years, governors erred on the side of caution, and did nothing” to grant clemency or pardons, Ruckman said. “Increasingly that mindset is changing.”...
Yet despite the flurry of activity, the use of clemency and pardons by governors to ease long sentences or restore civil rights to people who have served their time remains largely a matter of chance. Your odds of getting a pardon or having your sentence commuted to, for example, time served, depend completely on what state you’re convicted in and, most importantly, on who the governor is. “It’s wholly dependent on what the governor wants to do, who the governor is, and how safe, politically, the governor feels,” said former Maryland Gov. Bob Ehrlich, a Republican who granted 228 pardons during his time in office.
Ehrlich now campaigns for regular clemency through a partnership with the law school at Catholic University in Washington, D.C., where students help inmates prepare clemency petitions to governors or the president. “It’s all subjective factors. They should not play into it, but they do,” Ehrlich said....
In the states, sporadic changes in legislation have begun to streamline the process for getting clemency, and some high-profile governors are starting to address the issue:
- New York: Democratic Gov. Andrew Cuomo said in October he would create a “clemency project” to identify prisoners who qualify for clemency, and he commuted sentences for two people and pardoned two others. The New York Times called it a "drastic turnaround" in a state whose governors have granted few pardons over the past four decades.
- Illinois: In November, Republican Gov. Bruce Rauner granted clemency to 10 people while denying 200 other requests. But the governor said he now is working through a backlog of 1,200 petitions from previous administrations.
- Montana: A new law took effect Oct. 1 that lets the governor grant clemency, even if the state board of pardons and paroles denies it. That allowed Democratic Gov. Steve Bullock to cut the 100-year murder sentence of Barry Beach to time served.
Some states like Arkansas, Connecticut and Delaware have a “culture of clemency,” said Margaret Love, the U.S. pardon attorney under Presidents George H.W. Bush and Bill Clinton. “Some states have a pretty good system, but most rely on the character of the particular governor.”
Monday, January 04, 2016
"Mr. Obama’s Trickle of Mercy"
The title of this post is the headline of this recent New York Times editorial. Here is an excerpt:
After seven years in office, Mr. Obama has issued a total of 184 commutations and 66 pardons — more grants, as the White House wasted no time in pointing out, than the last six presidents combined. But that’s a pitifully low bar, since Mr. Obama’s most recent predecessors all but abandoned the practice.
Mr. Obama knows this is a far deeper problem than can be solved by a few dozen grants. There are 9,000 applications for commutations that have not been acted on. The administration solicited applications like these in 2014 as part of a sweeping clemency initiative aimed at federal inmates who have served at least 10 years of a sentence that would be shorter today because the law has changed. To be eligible, prisoners must also have been convicted of a lowlevel, nonviolent offense, have no “significant” criminal history, and have behaved while behind bars.
At the time, the initiative seemed a big step toward reversing some of the gravest injustices of the nation’s decadeslong drug war, most obviously for the thousands of inmates still serving time for crack cocaine offenses that are punished far less harshly today.
Less than two years later, however, the vast majority of applications remain in limbo. A coalition of volunteer defense lawyers working alongside the Justice Department has struggled to get basic information on applicants. The department itself is hopelessly mired in bureaucratic tangles and institutional conflicts of interest.
By the administration’s own estimates, as many as 10,000 people could be released under the new criteria, former Attorney General Eric Holder Jr. told The Washington Post this month. So why is Mr. Obama continuing to make grants in the single or double digits?
One reason is the Justice Department; the clear solution is to run the process directly out of the White House. The president may also be wary of undercutting a package of bipartisan sentencing reforms making its way through Congress. But that legislation is far from a done deal, and may be on even shakier ground now that one of the leading Republican presidential candidates, Senator Ted Cruz, rejects reforms he previously supported.
Regardless of what Congress does, the presidential power of mercy is explicit in the Constitution, it is virtually unlimited, and presidents once used it far more freely to correct injustices. It is a “tool of public morality,” as one former federal prosecutor put it. If Mr. Obama truly wants to reinvigorate this moribund process, he has a year left to do it. The job requires only two things: a pen and the political will. There is no question that Mr. Obama has the pen.
A few recent related posts:
- Reviewing and reflecting on persistent problems with the federal clemency process
- Prez Obama commutes 95 federal prison sentences and grants 2 pardons
- An early set of takes on Prez Obama's clemency work to date
- "To forgive prisoners is divine — or as close as government gets"
- Highlighting how Chrismas clemency cheer brings a lump of coal for those left off Prez Obama's list
- "It’s Time for Obama to Go Big on Pardons"
Monday, December 28, 2015
"It’s Time for Obama to Go Big on Pardons"
The title of this post is the headline of this notable recent New Yorker commentary authored by Jeffrey Toobin. Here are excerpts:
The orderly mind of Barack Obama appears to recoil at the vulgar world of pardons. The President is a consummate rationalist, a believer in systems and order. Pardons, in contrast, rely exclusively on the whim of the grantor. This Presidential power is descended from the concept known in Great Britain as the royal prerogative of mercy — three words that seem almost guaranteed to offend this President, singularly or especially aligned together.
But President Obama is starting to come around on pardons, or at least on commutations. (A commutation allows a convict to leave prison at a designated date; a pardon can also involve an end to a prison sentence but bestows a broader restoration of rights, like the right to vote or own a firearm.) Last week, the President announced that he had commuted the sentences of ninety-five federal prisoners and granted two pardons. In seven years, Obama has now issued a hundred and eighty-four commutations, more than his last six predecessors combined, but only sixty-one pardons, which is far less than most recent Presidents.... Obama is moving in the right direction, but he has a long way to go. There are roughly two hundred thousand people in federal prison in the United States. Do they all belong there? Should only a few dozen have their sentences shortened?
Those questions answer themselves, as Obama himself knows. He has made the reduction of mass incarceration one of the touchstones of his final years in office. As he said, in a recent speech to the N.A.A.C.P. national convention, “Mass incarceration makes our country worse off, and we need to do something about it.” No one can stop the President from doing at least that. Since 2011, Obama has been stymied by the Republican Congress from undertaking major legislative initiatives, but the pardon power is absolute and unfettered. The President can pardon everyone, and anyone, he chooses.
Obama is a democrat as well as a Democrat, and surely something in him rebels at exercising absolute power on a grand scale. One problem with pardons is that Presidents have considered them in secret, springing the decisions on the public only after they have been made. In high-profile cases, like Gerald Ford’s pardon of Richard Nixon or Bill Clinton’s pardon of the fugitive financier Marc Rich, the political repercussions have been disastrous. But Obama could avoid this problem with some innovation — and sunshine. Over the last year of his Presidency, his Administration should publish the names of people being considered for pardons. In this way, members of the public can make their views known about the wisdom (or lack thereof) of letting each individual out of prison. All Presidents and governors (who also have pardon power) are haunted by the possibility that they might release someone who goes on to commit horrible crimes. (Former Governor Mike Huckabee of Arkansas pardoned several people who did just that.)
This public airing might well save Obama from making some poor choices, but it will also guarantee him a measure of political protection. Opponents of pardons will be able to speak now, or they’ll forever have to hold their peace. If Republicans offer blanket objections to broad pardons, they’ll be demonstrating that they simply want more people in prison, regardless of the costs in dollars, public safety, or lost lives.
Most importantly, this process could allow the President to end or reduce the sentences of many more prisoners than he has done so far. Obama could make the case for pardons or commutations on an individual-by-individual basis, or he could establish a broader rule — that, say, every nonviolent drug offender with just a single conviction, or possession of a certain quantity of drugs, would be eligible....
Obama should be considering action on this vast scale. When it comes to mass incarceration, he has been content so far to work around the fringes. He has asked Congress to consider reducing sentences for certain crimes. He has told Attorney General Loretta Lynch to restrict the use of solitary confinement in federal prisons. These are worthy, modest goals. But the pardon power, with its roots in the monarchy, allows a President to go big — and that’s exactly how Obama should go.
P.S. Ruckman at Pardon Power is not especially impressed by Toobin's work here, as evidence by this recent posting about this commentary headlined "Toobin: Still the Worst of the Worst."
A few very recent related posts:
- Reviewing and reflecting on persistent problems with the federal clemency process
- Prez Obama commutes 95 federal prison sentences and grants 2 pardons
- An early set of takes on Prez Obama's clemency work to date
- "To forgive prisoners is divine — or as close as government gets"
- Highlighting how Chrismas clemency cheer brings a lump of coal for those left off Prez Obama's list
Thursday, December 24, 2015
Highlighting how Chrismas clemency cheer brings a lump of coal for those left off Prez Obama's list
This Washington Post article, headlined "Obama’s clemency list brings joy to the lucky and anguish to the disappointed," notes the sadness felt by federal prisoners and their families when certain names fail to appear on the latest list of commutations. Here are excerpts from a lengthy piece that gives special attention to the (in)famous case of Weldon Angelos:
The president wants to use his clemency power to undo past injustices, and on Friday, in the largest single-day grant of his presidency, he signed 95 commutations. They brought joy to families across the country.
“God be the Glory,” said Sharanda Jones, a 48-year-old Texas woman who was sentenced to life in prison without parole for a cocaine offense. She was a first-time, nonviolent offender. “I am overjoyed.”
But for thousands of other prisoners, who may also meet the president’s criteria, their exclusion was a hard blow. “It was a great day for those who won the lottery and one more disappointment for everyone in the pipeline who should be on the list,” said Amy Povah, a former inmate and the founder of the Can-Do Foundation, a clemency advocacy group.
criminal justice reform advocates of an irrationally severe system. He was sentenced in 2004 to a mandatory 55 years in prison without the possibility of parole after he was arrested for selling marijuana in three separate transactions with a Salt Lake City police informant, while possessing a firearm. Angelos never used or pulled out the gun, but the informant testified that he saw a gun when he made the buys, and that triggered a statute referred to as “gun stacking,” which forced the judge to give him a long sentence.
Angelos’s case has been widely championed, including by Families Against Mandatory Minimums and conservative billionaire Charles Koch. Former U.S. District Court judge Paul G. Cassell, who was appointed by President George W. Bush, has called the sentence he imposed on Angelos “unjust, cruel and even irrational.” Mark Holden, general counsel and senior vice president of Koch Industries, said the failure to commute Angelos’s sentence Friday was “disappointing and devastating for Weldon and his family.”
“Think of anything in your life that you’ve waited for,” Holden said. “Everything else pales in comparison to this. It is unclear why Angelos failed to get clemency. A Justice Department spokeswoman said that officials do not discuss individual clemency petitions. Another official noted that the department is processing them “as thoroughly and expeditiously as we can.”
Each of the four times that the president has announced his commutations has been difficult for Angelos, but this time cut the deepest. And it’s not because it came around the holidays. It’s because this group of inmates will be released on April 16. “If I had been given clemency this time,” Angelos, a father of three, said in an interview at the Federal Correctional Institution at Mendota, “I would have been out for my oldest son’s graduation from high school in June.”
When he came in from the track, Angelos called his sister, Lisa. She had heard he wasn’t on the list, and she was crying. While talking to her, he looked up and saw Obama on the prison television set making his official announcement at his end-of-year news conference. “I felt like someone had punched me in the stomach,” he said.
Similar scenes were playing out in other federal prisons, said Angelos’s lawyer, Mark Osler, a law professor at the University of St. Thomas in Minnesota and a co-founder of New York University’s Clemency Resource Center. He represents nine clients who are seeking clemency. “I dreaded the phone ringing,” Osler said in a blog post he called “Sunday Reflection: The sad call”: “I looked at the screen and it said what I feared it would: ‘Unknown,’ which is how calls from prison always come up. I let it ring once, twice, three times before pressing ‘answer.’ . . . And each time I talked to them about what had happened, how I did not know how they picked the lucky ones. They told me, in heavy voices, what they would miss: a son’s graduation, the last days of a mother in fading health. And each time I hung up and sat in silence.”
White House Counsel W. Neil Eggleston said last week that Obama, who has granted 184 clemencies, has already commuted the sentences of more individuals than the past five presidents combined. “We expect that the president will grant more commutations and pardons to deserving individuals in his final year in office,” Eggleston added.
But clemency advocates say that Obama has put himself in a different position than previous presidents. Instead of granting a moment of mercy to an inmate — much like the odds of being struck by lightning — Obama’s Justice Department set out eight specific clemency criteria, including having served at least 10 years, having no significant criminal history prior to conviction and demonstrating good behavior in prison. And he raised the hopes of thousands who believed they could qualify. “What the president announced was a categorical grant to people who met those eight criteria,” Osler said. “If it’s a categorical grant, we should be seeing consistency.”
I suspect there may well be a cruel irony to the decision not to have (my former pro bono client during his 2255 efforts) Weldon Angelos on the lastest list of commutation: I think Prez Obama and his advisors might reasonably fear that granting clemency to Angelos now could undercut some urgency in Congress to continue pressing forward with statutory sentncing reform. GOP Senator Mike Lee has often mentioned the Angelos case in his advocacy for federal sentencing reform, and the stacking of mandatory minimums that resulted in Angelos' extreme sentence would be fixed in the reform bills that have been slowly moving through Congress.
I suspect Prez Obama is especially eager to see Angelos get relief from a duly enacted law, and I remain hopeful that Angelos will appear on a clemency list before this time next year if Congress in 2016 proves unable to reform the problematic provision that led to Angelos receiving a mandatory 55 years for a few minor marijuana sales. In the meantime, I hope Weldon, his family and all those advocating on his behalf might get a glimmer of comfort from the possibility that Angelos' continued incarceration may actually foster continued congressional reform efforts which would benefit thousands of fellow federal prisoners.
Tuesday, December 22, 2015
"To forgive prisoners is divine — or as close as government gets"
The title of this post is the sub-headline of this notable new commentary published by the American Conservative and authored by Chase Madar under the main headline "The Case for Clemency." I recommend the lengthy piece in full, and here are excerpts:
President Obama’s recent announcement that he would commute the sentences of 95 federal prisoners and fully pardon two others is welcome news. So is a holiday press release from New York Governor Andrew Cuomo, who has hitherto been miserly with clemency, but will pardon nonviolent offenses committed by 16 and 17 year olds (who will continue to be automatically tried as adults, a harshness almost unique among the fifty states). But we should see these gestures for what they are: small trickles of clemency where what is demanded is a rushing, roaring pipeline scaled to the globally unprecedented size of our prison population and incarceration rate. We need industrial-scale clemency. Here is why and how....
At the federal level — which only accounts for about 12 percent of U.S. prisoners — mild sentencing reform has both bipartisan support and bipartisan resistance in the Senate. Looking to the states, a much hyped “moment” of criminal-justice reform is more than countervailed by the deeply ingrained punitive habits of governors and legislatures across the land, from Massachusetts, whose liberal governor signed a tough “three strikes” law in 2012, to Louisiana, where Bobby Jindal upped penalties for heroin-related offenses.
Whether we admit it or not, we are in quite a spot: our hyper-incarceration is unprecedented in U.S. history. Rectifying this will require changes in policing, a cutting back of what we criminalize, and serious revision of our sentences, which far outstrip their deterrent value. Another part of the solution will have to be clemency on a massive scale: pardons, which all but expunge a criminal record; commutations, which shorten a prison sentence; parole; geriatric and compassionate release; and retroactive sentencing reform.
As of this writing, Obama has issued more commutations than any other president since Lyndon Johnson. But the supply of imprisoned Americans is orders of magnitude greater than it was in Johnson’s day, and Obama has only granted pardons or commutations at the exceedingly stingy rate of one out of 136, in line with the steep plummet in clemency since World War II. The Department of Justice has promised to routinize clemency, issuing new guidelines for nonviolent offenders who have served 10 years already, but the results so far have been bonsai-scaled in comparison to the magnitude of the federal prison population....
So much for Washington, which despite much misty-eyed self-congratulation has not shown itself up to the task of scaling back our prison state. Washington’s timidity means less than it first appears however: despite lazy media focus on the federal justice system, the real action is at the state level, which handles most policing, sentencing, and imprisoning. Alas, here too the general trend has been towards greater stinginess with clemency.
Take the example of Minnesota, a state that has, by U.S. standards, a low incarceration rate and arguably the most humane penal system in the country, with perhaps more in common with Denmark and Germany than with Texas and Louisiana. Yet it says something that Mark Dayton, one of the most progressive governors in the country, has a more merciless default setting than virtually all of his executive predecessors from the mid-20th century. Minnesota used to grant pardons and commutations by the barrelful: from 1940-89, the state granted 741 commutations and nearly 90 percent of all pardon applications. Minnesota’s clemency process began to tighten in the 1970s, only to be choked off further in the 1980s. From 2000-10, the number of pardons plummeted. In the past quarter-century, Minnesota has not issued a single commutation.
The barriers to mercy are dug deeply into American politics and intellectual culture. At the same time there is a rich tradition of clemency in this country, which can and should be tapped into.... Devotion to the Rule of Law has an ugly side in resentment of executive acts of mercy, at the level of practice and high theory.... Overall, the thrust of American legalism militates against executive clemency, which seems to many a kind of short circuit, a deus ex machina, an insult to the rule of law, smelling of elitism and monarchical whims.... (And it has to be said, occasionally this image of executive mercy as sleazy end-run around the justice system is correct: think of Bill Clinton granting a full pardon to felonious oil trader Marc Rich, whose ex-wife had been a major Democratic fundraiser.)
But in the face of this hostility to the pardon power there is a great counter-tradition of American clemency. At the founding of the country, executive power was seen not as a violation of our self-image as a “nation of laws not men” but as a necessary and healthily legitimate part of any popular government. As Hamilton wrote in Federalist 74: “the benign prerogative of pardoning should be as little as possible fettered.” Without pardon power, “justice would wear a countenance too sanguinary and cruel.”...
U.S. history turns out to be generously littered with acts of mass clemency. In the 1930s, Mississippi Governor Mike Conner went to Parchman Farm, the state penitentiary, and held impromptu “mercy courts” that freed dozens of African-American prisoners, in an act that entered national folklore — as did Texas Governor Pat Neff’s pardon in 1925 of Huddie “Lead Belly” Ledbetter, who issued his clemency request in song. In the 20th century, Governors Lee Cruce of Oklahoma, Winthrop Rockefeller of Arkansas, and Toney Anaya of New Mexico all commuted their states’ death rows down to zero upon leaving office. Among presidents, according to political scientist P.S. Ruckman Jr’s excellent blog Pardon Power, Abraham Lincoln granted clemency every single month of his administration as an act of mercy and a canny political strategy. Woodrow Wilson, though a teetotaler himself, pardoned hundreds convicted of booze-related infractions to signal his disapproval of Prohibition....
Reversing course on hyper-incarceration and clemency will be a generational project, and an Augean one at that. Judges and prosecutors are not the most self-effacing career group, and many would sooner eat their Civil Procedure books than admit error.... But for most people, clemency in cases of judicial and prosecutorial error is a no brainer: the law’s finality should not come at the expense of justice. The type of clemency we need today, however, is to remedy a problem several orders of magnitude larger, admitting not legal or judicial error but political or legislative disaster. A rushing, roaring clemency pipeline would be an explicit recognition that the various state and federal tough-on-crime policies, virtually all of which passed with broad bipartisan support, were dead wrong....
Our incarcerated population is also aging rapidly, and though older prisoners have far lower recidivism rates, few states are availing themselves of geriatric release. For instance, Virginia in 2012 granted geriatric release to less than 1 percent of about 800 prisoners eligible, according to the state parole board. Meanwhile, as the Virginian Pilot reported, “during the same period, 84 inmates died in state prisons.” Running high-security nursing homes is neither compassionate nor fiscally sound—another reason to restore and expand clemency.
What is needed is a restoration of the kind of clemency that was once the everyday norm in this country, expanded to meet the needs of our enormous 21st-century prison population. There will surely be stentorian howling that industrial-scale clemency is the invasive hand of overweening government power. These fault-finders ought to be reminded that our incarceration regime is on a scale rarely seen in human history: our only competitors are third-century BC “legalist” China; the late, off-the-rails Roman Empire; and the Soviet Union from 1930-55. Routinized clemency on a grand scale will be necessary to tame this beast.
To say that mass incarceration is an issue best addressed by the legislature, not by the executive, is theoretically correct. But procedural rectitude should not be taken to the point of sadism, ignoring the tens of thousands of harshly sentenced prisoners who are already stuck halfway through the penal snake’s digestive tract. Besides, this would hardly be the first time that elected officials have used the pardon power as a tool to alter policy. To give one more glorious example, on Christmas Day in 1912, Governor George Donaghey of Arkansas pardoned 360 state prisoners as a condemnation of the state’s brutal and corrupt “convict leasing” system, making national headlines and dealing a death blow to the corrupt practice.
The time is as ripe as it will ever be for industrial-scale clemency . Even with an 11 percent average increase in homicides in big American cities for 2015 so far (bringing the nation back to 2012 murder levels), violent crime is as low as it’s been since the early 1960s.... How we proceed with clemency is not just about how we treat thousands of prisoners..., it is about how we treat ourselves. According to Shakespeare’s most famous courtroom speech, mercy “blesseth him that gives and him that takes: ‘Tis mightiest in the mightiest: it becomes the throned monarch better than his crown.” With an expansion of the pardon power, we have the opportunity to rule ourselves as monarchs, with all the magnanimity and grace that implies. Or we can remain a nation of vindictive jailers that lectures the rest of the world about freedom.
December 22, 2015 in Clemency and Pardons, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)
Monday, December 21, 2015
Pennsylvania Supreme Court upholds Gov Wolf's execution moratorium
As reported in this local press article, Pennsylvania's "Gov. Wolf acted within his constitutional authority to temporarily halt the execution of a convicted murderer from Philadelphia, the state Supreme Court ruled on Monday." Here is more from the article about this notable ruling from the top court in the Keystone State:
In a unanimous decision, the high court said Wolf had the power to delay the death sentence for Terrance Williams until a legislative task force issued its final report on the future of capital punishment in Pennsylvania. The ruling doesn't apply to Wolf's broader moratorium on the death penalty, but represented a victory for the governor in the broader and contentious battle over the future of executions in the commonwealth.
Wolf announced the reprieve for Williams in February, saying he would shelve all executions until after the report was issued. That decision that was challenged by Philadelphia District Attorney Seth Williams and prosecutors from other counties, who argued, among other things, that the governor's position unlawfully meddled with the jury's decision in the case.
But in a 33-page decision written by Justice Max Baer, the court said, "we disagree with the Commonwealth's suggestion that the reprieve unconstitutionally altered a final judgment of this Court; rather, the execution of the judgment is merely delayed."
The court was careful to say it was not considering whether Wolf's overall moratorium was legal; instead, it said, it was weighing specifically whether the governor could delay the execution of Williams, a former quarterback at Germantown High School who was convicted for the 1984 killing of Amos Norwood, a 56-year-old church volunteer. "Future challenges to reprieves granted by Governor Wolf will have to await independent examination based upon our holdings herein," the court wrote....
Wolf issued a brief statement saying he was pleased by the court's ruling. When he announced the decision earlier this year, he called the death penalty "ineffective, unjust, and expensive." A report from the task force studying if the death penalty can be legally and effectively administered in Pennsylvania was initially due two years ago. But its deadline has been extended.
Shawn Nolan, Terrance Williams' attorney, said Monday that he had not yet shared the news with his client but was pleased with the decision. "We have been saying all along that it was constitutional what the governor did," he said. "We're gratified that the Supreme Court made a unanimous decision."
Williams' case is also scheduled to go before the U.S. Supreme Court in February. In that appeal, Nolan is arguing that former Pennsylvania Supreme Court Justice Ronald D. Castille should have recused himself from hearing appeal in the case because he was Philadelphia's district attorney when Williams was sentenced to death.
Cameron Kline, spokesman for the Philadelphia District Attorney's Office, said that prosecutors respected the decision even though they had argued for another outcome.
Prior related posts:
- Pennsylvania Gov declares moratorium on state death penalty
- Philadelphia DA sues Pennsylvania Gov asserting execution moratorium is "lawless" and "flagrantly unconstitutional"
- Pennsylvania Supreme Court to review, slowly, Gov Wolf's execution moratorium
- Victims and law enforcement assail Gov Wolf's execution moratorium in Pennsylvania
- Pennsylvania House seizes political opportunity to complain about Gov doing something (sort of) about state's dysfunctional death penalty
- Pennsylvania Attorney General calls Governor's execution moratorium an "egregious violation" of the state constitution
NY Gov Cuomo moves ahead with significant clemency effort for youthful offenders and others
As reported in this official press release, titled "Governor Cuomo Offers Executive Pardons to New Yorkers Convicted of Crimes at Ages 16 and 17," the top elected official in New York today announced a major new clemency initiative. Here are just some of the details from the press release:
Governor Cuomo announced that he will use his pardon power to alleviate the barrier of a criminal conviction for people convicted of non-violent crimes committed when they were minors, and who have since lived crime-free for 10 or more years. This action, the first of its kind in the nation, advances the principles from his Raise the Age Campaign, which calls upon New York to join 48 other states in recognizing that 16 and 17 year old children do not belong in the adult court system.
The Governor’s action acknowledges that people can and do move beyond the mistakes of their youth, However, their adult criminal records can make it hard for them to find work, get admitted to college, find a place to live, and become licensed in certain occupations. The Governor chooses today to use his Constitutional pardon power to remove the bars created by state law that are associated with these convictions, and allow deserving individuals to move forward with their lives....
By pardoning New Yorkers who have reached this milestone crime-free, the Governor is helping people who present little danger to the public. Moreover, the pardon will be conditional, meaning that if a person defies the odds and is reconvicted, it will be withdrawn.
The Governor’s action will affect a significant number of lives. Of 16 and 17 year olds who committed misdemeanors and non-violent felonies since such records have been tracked by the state, approximately 10,000 have not been reconvicted after at least 10 years. Annually, approximately 350 people convicted as 16 and 17 year olds of misdemeanors and non-violent felonies remain conviction-free after 10 years. In addition to lifting the burden on these individuals themselves, their families will also feel the positive impact of this action. Now a son or daughter, husband or wife, father or mother will be better equipped to help their loved ones as they find it easier to attain employment, go to school, find housing, and work in licensed professions....
Agency staff will make a recommendation to the Governor to grant a pardon if:
The person was 16 or 17 at the time they committed the crime for which they were convicted.
At least 10 years have passed since the person was either convicted of the crime, or released from a period of incarceration for that crime, if applicable.
The person has been conviction-free since that time.
The person was convicted of a misdemeanor or a non-violent felony.
The person was not originally convicted of a sex offense.
The person is currently a New York State resident.
The person has paid taxes on any income.
The person is a productive member of his or her community, meaning that the individual is working, looking for work, in school or legitimately unable to work.
In addition to this general invitation to apply, the Administration will do targeted outreach to candidates for the pardon, starting with the most recent cohort of potentially eligible individuals, those convicted in the year 2004. Administrative staff will review the cohort and will attempt to contact those convicted of qualifying crimes committed while they were 16 or 17 and who have stayed conviction-free. They will be informed of their initial eligibility for a pardon and invited to apply, using the website. Once the 2004 cohort has been contacted, the process will be repeated for individuals convicted in 2003, and further back until outreach has been made to all potential candidates.
The Governor’s action reinforces his commitment to alleviating barriers for people with criminal convictions, exemplified by his creation of the Council of Community Reintegration and Reintegration in 2014, and his acceptance and implementation of 12 recommendations for executive action from that Council in September of this year. These executive actions included adopting new anti-discrimination guidance for New York-financed housing, and adopting “fair chance hiring” for New York State agencies....
With assistance from the National Association of Criminal Defense Lawyers, representatives from the Governor’s Office have developed a comprehensive training program and will begin working with these associations to train volunteer attorneys via webinar in early 2016. Although individuals may apply for clemency without the assistance of an attorney, assistance from a pro bono attorney will enhance the quality of an inmate’s application and present his or her best case to the Governor. The New York County Lawyers Association, New York State Bar Association, New York City Bar Association, the Legal Aid Society, and the New York State Association of Criminal Defense Lawyers will prepare petitions for sentence commutations and the Bronx Defenders will provide post-petition legal services with respect to benefits, housing, and employment, for successful petitioners. The trainings, delivered via webinar with accompanying materials, will walk volunteer attorneys associated with the collaborating legal organizations through each step of being assigned a case, communicating with their client, and preparing a strong petition.
Today Governor Cuomo also granted clemency relief to two individuals who have demonstrated rehabilitation and made positive strides in their lives since their criminal convictions. These individuals were granted clemency relief in the interests of justice and rehabilitation. The clemencies granted today are in addition to the four the Governor granted several weeks ago.
December 21, 2015 in Clemency and Pardons, Offender Characteristics, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)
Saturday, December 19, 2015
An early set of takes on Prez Obama's clemency work to date
As first reported in this post (with has already generated an interesting set of comments), yesterday Prez Obama granted commutations of prison sentences to 95 federal inmates. And, as stressed in this posting from the White House blog, this development means that Prez Obama has now granted has now granted 184 commutations total -- more than the last five presidents combined." I think it is justifiable that the Obama Administration is now inclined to crow about its clemency record with respect to commutations, although it remains notable that Prez Obama has still granted precious few pardons and is still well behind even the commutation pace set by Republican predecessors like Calvin Coolige and Herbert Hoover.
Helpfully, P.S. Ruckman over at Pardon Power is already hard at work providing lots of historical context (and other types of contexts) for assessing what Prez Obama has done in this space only 24 hours since this latest grant. Here are his recent postings, all of which merit checking out:
Friday, December 18, 2015
Prez Obama commutes 95 federal prison sentences and grants 2 pardons
As reported in this official White House press release, this afternoon "President Barack Obama granted commutations of sentence to 95 individuals and pardons to two individuals." The release has a list of all the recipients of these clemency actions and their crimes and sentences, and I am hopeful I will have time (and help) in the days ahead to assess whether there is any unique elements to these latest clemency actions. For now, I can just say huzzah and reprint part of this notable press release titled "Clemency Project 2014 Welcomes Commutation of 95 Federal Prison Sentences":
In his first clemency grants since July, President Barack Obama commuted the sentences of 95 prisoners today, 27 of whom were applicants whose petitions were supported by Clemency Project 2014.
"While it is my hope that President Obama will increase the use of his clemency power going forward, one can only be happy for each and every of today's grantees and their loved ones." said Cynthia W. Roseberry, project manager for Clemency Project 2014. "Clemency Project 2014's unprecedented army of volunteer lawyers has been steadfast in its efforts to meet the Project's commitment to ensure that every applicant who appears to meet the criteria has a volunteer lawyer to prepare and submit a timely clemency petition. We are determined to do our part to make clemency a cornerstone of the Obama legacy."
"We take President Obama at his word that there is no ceiling on the number of commutations he will grant before leaving office. And so while we are grateful for every single commutation, there are many hundreds more who deserve relief. We urge the President to confound the skeptics by making 2016 an historic year for clemency grants," said Norman L. Reimer, executive director of the National Association of Criminal Defense Lawyers, a partner organization in Clemency Project 2014.
Monday, December 14, 2015
Reviewing and reflecting on persistent problems with the federal clemency process
The recent Washington Post article about criminal justice reform efforts during the second term of the Obama Administration (discussed here) hinted that we could expect to see Prez Obama grant a significant number of additional prison commutations in the coming weeks. But this effective new Marshall Project piece by Bill Keller, headlined "The Bureaucracy of Mercy: Why hasn’t President Obama freed more prisoners? Maybe that’s the wrong question," reviews why federal clemency procedures and practices have been persistently disappointing for those who believe there is a need for much more than sporadic grants of executive mercy. I recommend the lengthy article in full, and here is how it starts and ends:
As the two presidents, one incoming and the other outgoing, shared a limo to the inauguration in January 2009, President Bush had some advice for President-elect Obama: “Announce a pardon policy early on, and stick to it.” Bush had been stunned by a final-days flood of appeals for clemency on behalf of friends and former colleagues convicted of federal crimes.
“I came to see a massive injustice in the system,” Bush recalled in his memoir, “Decision Points.” “If you had connections to the president, you could insert your case into the last-minute frenzy. Otherwise, you had to wait for the Justice Department to conduct a review and make a recommendation.”
As he approaches his own last-minute frenzy, President Obama has embraced criminal justice reform —especially the problem of over-incarceration — as a major cause of his administration.
“Over the course of this year, I’ve been talking to people all across the country about reforming our criminal justice system to be fairer, to be smarter, to be more effective,” he said in a speech in November.
And yet Obama’s clemency record so far — counting commutations and pardons — lags behind every recent president except George H.W. Bush, who had only a single term. On pardons, which give ex-inmates a better chance to get jobs, find housing, vote and generally live normal lives, Obama is the stingiest president since John Adams — 64 granted so far, fewer than three percent of the petitions filed....
But to many advocates of reform, the numbers miss the larger point: after navigating the multi-stage process of CP14, applicants still had to pass through the Department of Justice, where the main job is to lock people up, not let people out. Between prosecutors and defenders, says David Patton, head of the Federal Defenders of New York, there is “a difference in role and perspective.” Prosecutors, he said, are “less able to see things through the eyes of our clients, or through the eyes of anyone other than the prosecutor.”
“In some sense, by recommending that a sentence be reduced you are taking a position that is, in all likelihood, contrary to what DOJ took at the sentencing proceeding,” he said.
Top officials at the Justice Department publicly discount the idea that the department’s culture is hostile to clemency. “We’re not the Department of Prosecutions,” Deputy Attorney General Sally Yates told The Washington Post in May.
Various clemency advocates have different suggestions for change: an independent commission; restoring a federal parole board, which was abolished in the 1980’s, and having it handle commutations; or plucking the pardon attorney’s office from the Department of Justice and locating it in the White House. What they all have in common is reducing the role of the Justice Department. “I would want prosecutors to weigh in on every case,” said Rachel Barkow, a New York University law professor and member of the U.S. Sentencing commission. ”But I wouldn’t want them to be a veto point, where they could just make a case go away. And that’s what it is right now.”
Margaret Colgate Love, a clemency lawyer who spent 20 years in the Justice Department and was the department’s pardon attorney from 1990 to 1997, agreed: “It’s hopeless, you can’t reform it in the department.”
But Love argues that the focus on presidential clemency is misplaced. Intended as a remedy for individual cases of injustice, she says, executive clemency should not be a tool to reduce prison populations.
Other vehicles exist for more systemic reform, she notes. The U.S. Sentencing Commission, an independent agency of the judicial branch, has found 46,000 inmates eligible for earlier release by making new sentencing guidelines for certain drug crimes retroactive. A bill inching through Congress would do the same for some 6,500 people locked up during the national panic over crack cocaine.
Love says that when she hears speculation about moving thousands of people through the clemency process she wonders, “How could anybody who had half a brain imagine that clemency could be used to deal with even a thousand cases? It’s never been done.”
Her prescription is to empower the Bureau of Prisons to identify prisoners ready for commutation and take those cases directly to a judge. “Wardens know who ought to be out, and who not,” she said. “Why should we be putting the president in the position of vouching for a whole bunch of people who did pretty serious crimes, many of them, and have been in prison for many years?”
No one expects any of these reforms to be enacted in the year Obama has left. Which will give him something to pass on to his successor at the next inauguration.
Tuesday, December 08, 2015
Kentucky gov issues hundreds of pardons and a few commutations on way out of office
As reported in this local piece, outgoing Kentucky Governor "Steve Beshear Monday night granted 201 pardons and six commutations to people sentenced for a range of offenses, including 10 women sentenced for violent crimes they committed after suffering years of domestic violence." Here is more:
Throughout his eight years in office, the Democratic governor said he received more than 3,400 requests for pardons that were reviewed over several months by him and his staff. “I spent many long days weighing the merits and circumstances of individual cases before making my final decisions,” Beshear said in a statement. “The pardon authority afforded me by Section 77 of the Kentucky Constitution isn’t something I take lightly. We are talking about action that impacts the lives of so many individuals.”
Beshear noted that his predecessor, Republican Ernie Fletcher, received more than 1,000 pardon requests and granted just over 100 pardons during his four years in office.
Of the commutations of sentence or full pardons to 10 women who suffered domestic violence, Beshear said, “These 10 women — some of whom are currently incarcerated and some of whom have already been released from institutions — were recommended to me for consideration for full pardons after an extensive joint review by the Department for Public Advocacy and the Kentucky Domestic Violence Association. After further review of those files, I determined that some of the pardon requests should be granted, while others merited a commutation of sentence.”...
Beshear, a former attorney general, also pardoned several individuals convicted of drug offenses. He said their requests “described with candor their mistakes with drugs and highlighted their efforts to stay sober and become productive members of their communities.”
Beshear added: “Throughout my administration, I have worked tirelessly with legislative leaders, local officials and advocates to wipe out the tragic impacts that substance abuse and addiction have had on the people of the commonwealth.
“A significant part of that strategy has been a focus on treatment to help these individuals have a fighting chance at staying clean and turning their lives around. After carefully considering the details of each of these cases, I am convinced that these individuals deserve a second chance at life with a clean record.”
Thursday, November 26, 2015
So thankful for the renewed focus on federal clemency... but...
I am still annoyed and troubled that it still seems Prez Obama is more committed to making headlines with the silly annual tradition of pardoning turkeys than with clemency grants to federal defendants seeking commutations while serving excessively long sentences or those seeking relief from the collateral consequences of long-ago federal convictions. This article, headlined "Obama pardons TOTUS — the Turkey of the United States," discusses the latest clemency work of Prez Obama in this arena:
President Obama seemed to be trying out a Thanksgiving-themed comedy club act Wednesday as he engaged in the traditional White House turkey pardoning. "Feel free to keep on gobbling," Obama told the Rose Garden crowd as he announced that, also per tradition, two turkeys would be spared this Thanksgiving Eve.
"I can announce that the American people have spoken, and we have two winners," he said. "Their names are Honest and Abe — I confess that Honest looks like good eating, but this is a democracy." With daughters Malia and Sasha at his side, Obama declared that "Abe is now a free bird" and will now be designated "TOTUS — the Turkey of the United States."...
During the Rose Garden ceremony, Obama thanked his daughters "for once again standing here with me during the turkey pardoning ... They do this solely because it makes me feel good — not because they actually think that this is something I should be doing."...
The president weighed in on one of the Thanksgiving football games, sticking up for his hometown Chicago Bears. "I'm grateful for the fact the Bears are going to beat the Packers this weekend," Obama said (though it must be said that the Pack is a big favorite, and the game is in Green Bay).
He also took an obligatory poke at the news media: "I've got to listen to my critics say I'm often too soft on turkeys, and I'm sure the press is digging into whether or not the turkeys I've pardoned have really rededicated their lives to being good turkey citizens."
Obama pointed out that this was his seventh turkey pardoning as president. "Time flies," he said. "Even though turkeys don't." As the crowd chuckled. Obama said: "I thought it was good. You think it's funny too, don't you?" Also: "I know some folks think this tradition is a little silly. I do not disagree."
Tuesday, November 24, 2015
Outgoing Kentucky Gov restores voting rights to many thousands of nonviolent felons
As reported in this AP article, the "outgoing Democratic governor of Kentucky signed an executive order Tuesday to restore the right to vote and hold public office to thousands of non-violent felons who've served out their sentences." Here is more:
The order from Gov. Steve Beshear — who leaves office next month — does not include those convicted of violent crimes, sex offenses, bribery or treason. Kentucky already restores voting rights to some nonviolent convicted felons, but the felon must apply to the governor's office, which approves them on a case by case basis. This new order automatically restores voting rights to convicted felons who meet certain criteria upon their release. Those who have already been released can fill out a form on the state Department of Corrections' website.
"All of our society will be better off if we actively work to help rehabilitate those who have made a mistake," Beshear said. "And the more we do that, the more the entire society will benefit."
Kentucky was one of four states that did not automatically restore voting rights to felons once they completed all the terms of their sentences. About 180,000 in Kentucky have served their sentences yet remain banned from casting ballots. The Kentucky legislature has tried and failed numerous times to pass a bill to restore voting rights to felons. The Republican-controlled Senate would agree only if there was a five-year waiting period, which Democrats refused....
Democrats control state government until next month, when Republican Gov.-elect Matt Bevin takes office. Bevin could repeal Beshear's order or allow it to stand. Bevin spokeswoman Jessica Ditto said Bevin supports restoring voting rights to nonviolent offenders, but added he was not notified of Beshear's order until a few minutes before he announced it. "The Executive Order will be evaluated during the transition period," she said.
Republican State Rep. Jeff Hoover, the minority floor leader of the state House of Representatives, said he supports restoring voting rights to convicted felons but opposes Beshear's method of doing it. "It should be the role of the legislature, not one person, which should address these issues through legislative debate," Hoover said in a news release. "This is a prime example of this Governor following in the footsteps of President Obama and putting his own agenda above the people of Kentucky and the elected legislators who serve them."
Tuesday, October 20, 2015
Ohio Gov Kasich extends de facto execution moratorium into 2017
Earlier this year during SCOTUS oral argument in the Glossip lethal injection case, Justice Alito complained about what he saw as a "guerrilla war against the death penalty which consists of efforts to make it impossible for the states to obtain drugs that could be used to carry out capital punishment." For anyone inclined to accept that characterization, today brings news that the warriors have scored another significant victory. This new AP piece, headlined "Ohio delays executions until 2017 over lack of lethal drugs," provides the basic details:
Ohio is putting off executions until at least 2017 as the state struggles to obtain supplies of lethal injection drugs, delaying capital punishment for a full two years, the prisons department announced Monday. Execution dates for 11 inmates scheduled to die next year and one scheduled for early 2017 were all pushed into ensuing years through warrants of reprieve issued by Gov. John Kasich.
The result is 25 inmates with execution dates beginning in January 2017 that are now scheduled through August 2019. Ohio last put someone to death in January 2014.
Ohio has run out of supplies of its previous drugs and has unsuccessfully sought new amounts, including so-far failed attempts to import chemicals from overseas. The new dates are needed to give the prisons agency extra time, the Department of Rehabilitation and Correction said in a statement.
The agency “continues to seek all legal means to obtain the drugs necessary to carry out court ordered executions, but over the past few years it has become exceedingly difficult to secure those drugs because of severe supply and distribution restrictions,” the statement said....
The next execution was scheduled for Jan. 21 when Ronald Phillips was to die for raping and killing his girlfriend’s 3-year-old daughter in Akron in 1993. Phillips’ execution was rescheduled for Jan. 12, 2017.
The handwriting has been on the wall for months that Ohio would have to make such a move, said Franklin County Prosecutor Ron O’Brien, expressing his frustration at a new set of delays. These delays come in cases where inmates have long exhausted their appeals and there’s no question of their guilt, he said. “It seems that in those states that authorize assisted suicide, there has been no impediment to securing drugs, and as time marches onward, victims wonder why they must continue to wait for justice,” O’Brien said in an email.
Ohio abandoned the two-drug method after McGuire’s execution and announced it would use either of two older drugs that it had previously obtained for capital punishment, but did not currently have supplies of. One of those drugs, sodium thiopental, is no longer manufactured by FDA-approved companies and the other, pentobarbital, has been put off limits for executions by drug makers.
Ohio obtained a federal import license to seek supplies overseas, but has been told by the FDA that such a move is illegal. Ohio raised the issue again with the FDA earlier this month, asserting the state believes it can obtain a lethal-injection drug from overseas without violating any laws. The FDA has yet to respond.
A few prior related posts:
- "FDA warns Ohio not to illegally import execution drugs"
- Ohio tells FDA it can be legal to import sodium thiopental to carry out death sentences
- In defense of Ohio officials trying to figure out how to get execution drugs legally
Sunday, October 18, 2015
Prez Obama talking again about talking some more about criminal justice reform
As reported in this USA Today piece, headlined "Obama launches criminal justice tour: 'Something I’ll keep fighting for'," President Obama devoted his weekly radio address Saturday morning to talking about his plans to travel the nation and talk more about criminal justice reform. Here are the basics:
President Obama said Saturday that he'll launch a nationwide criminal justice tour next week, an effort that he says will "highlight some of the Americans who are doing their part to fix our criminal justice system."
"Much of our criminal justice system remains unfair," Obama said in his weekly radio address Saturday morning. "In recent years, more of our eyes have been opened to this truth. We can’t close them anymore. And good people, of all political persuasions, are eager to do something about it."
The first stop in the tour will be in Charleston, W.Va. next Wednesday, where he'll host a town-hall-style meeting on the prescription drug abuse and heroin epidemic.The White House says Obama will talk about local, state and federal efforts as well as private sector initiatives addressing the crisis. Obama said he'll also meet in coming weeks with police chiefs and former prisoners. Details on those tour stops are expected to be released next week.
In his radio address, Obama threw his support behind bipartisan proposals in Congress to shorten mandatory minimum sentences for low-level drug offenses and reward convicts who participate in prison programs with shorter sentences.
I am always pleased when the leader of our nation brings attention to the criminal justice reform issues that are the focus of my professional work. But I remain frustrated that Prez Obama seems to continue to be content to talk about the need for more action rather than actually take more action.
In addition to lots more clemency grants (especially because he remains way behind all modern presidents on pardons), Prez Obama could create more task forces to examine existing evidence on the most successful local and state-level reforms. In particular, with all the continuing local and state-level marijuana reform activity, I think it is long overdue for Prez Obama to show some leadership in this criminal justice reform space through some significant executive action.
Monday, October 05, 2015
Missouri Gov commutes death sentence at last minute because...............??
The quirky question in the title of this post is my reaction to this notable capital clemency news out of the Show Me state that leaves me wishing the chief executive of the state had showed all of us more about his reasons for communiting a death sentence only days before a scheduled execution. Here are the (somewhat mysterious) details via this local article headlined "Nixon commutes death sentence for convicted murderer Kimber Edwards":
Missouri Gov. Jay Nixon commuted on Friday the death sentence for Kimber Edwards, who was convicted in the 2000 murder-for-hire of his ex-wife, to a life sentence without parole. Edwards had been scheduled to be executed by injection at 6 p.m. Tuesday. His attorneys had recently asked the Missouri Supreme Court to throw out his conviction and death sentence because of doubts raised about his guilt.
Nixon did not explain his surprise decision, other than to say it came after a “thorough review of the facts” and was “not taken lightly.” He said the evidence supported the jury’s decision to convict Edwards of first-degree murder.
“After a thorough review of the facts surrounding the murder of Kimberly Cantrell, I am convinced the evidence supports the jury’s decision to convict Kimber Edwards of first-degree murder. At the same time, however, I am using my authority under the Missouri Constitution to commute Edwards’ sentence to life without the possibility of parole. This is a step not taken lightly, and only after significant consideration of the totality of the circumstances. With this decision, Kimber Edwards will remain in prison for the remainder of his life for this murder.”
Reached later Friday, a spokesman for Nixon said he would not elaborate.
Kimberly Cantrell, 35, was shot twice in the head in her apartment in the 1100 block of Midland Avenue in University City on Aug. 22, 2000. Authorities said Edwards had hired Orthell Wilson to kill Cantrell, Edwards’ ex-wife, to prevent her from testifying in a child-support hearing.
One of Cantrell’s siblings, Chuck Cantrell of San Jose, Calif., said that his family was informed of the decision less than five minutes before it was made public. Cantrell spoke to a legal adviser for the governor but wanted to speak to Nixon himself. “I would think that the governor would certainly understand that his action of this magnitude certainly has impact on the survivors of the victim,” he said. “I just can’t imagine that his office could be so callous. I would hate to think this would be some sort of political maneuver. It doesn’t make a whole lot of sense.”
He said family members had had no plans to witness the execution, but that didn’t mean they didn’t care about the case. He said he and his family had no doubt about Edwards’ guilt and that they knew how Edwards could manipulate a situation to his advantage. Edwards’ attorneys had recently tried to cast doubt on his guilt. They focused on two statements that were central to his case. One was a statement by Wilson, who said Edwards had hired him to kill Cantrell in 2000. The other was a confession from Edwards.
Wilson, who is serving a life sentence without parole, has recanted his statement, telling a Post-Dispatch reporter in April that he had acted alone and had lied about being hired by Edwards. He then signed an affidavit saying so. Edwards claimed at his trial — and ever since — that he was innocent. In new appeals, his attorneys pointed to the possibility that police had coerced his confession. They claimed Edwards has a form of autism that could have made him vulnerable to aggressive interrogation techniques, leading him to make a false confession.
Edwards’ attorney, Kent Gipson of Kansas City, petitioned the state Supreme Court to throw out the conviction for murder and armed criminal action, and the death sentence, and appoint a special master to review Edwards’ innocence claim. The court denied in July a similar request to study Edwards’ claim of innocence. The court has not yet ruled on Gipson’s petition. But he said he made the same case to lawyers from Nixon’s office this week.
“We’re all very happy because (days leading up to an execution are) always a very stressful and difficult time for everyone, the clients, the lawyers and the family,” Gipson said. “It’s a load off everyone’s shoulders, particularly the client, because he’s going to live.”... Gipson said the commutation of the death sentence would give him and Edwards more time to potentially seek a new trial.
In recent days, Gipson had been pressing a claim with Nixon’s office that during the penalty phase after Edwards’ conviction, the prosecutor in the case had inquired whether Edwards would be willing to waive appeals in the case in exchange for life in prison. But his supervisors refused.
According to notes in the attorney’s file from 13 years ago, Judge Mark D. Seigel expressed in chambers that he was unhappy about the lack of a deal to spare Edwards. Reached Friday, Seigel said that he did not remember the conversation and that it “does not sound like something I would have said in chambers or anywhere else.”
I presume that lingering concerns about guilt prompted the Governor's actions here, but it would be helpful if the commutation statement spoke to that possibility or whatever else might have motivated the Governor to act in this way. I think it is entirely appropriate and readily justifiable for a clemency board or a governor to commute a death sentence based on concerns about residual guilt. But I do not consider it appropriate or justifiable for a decision made on this basis (or others) to be hidden behind the kind of cursory statement offered by Gov Nixon in this case.
Thursday, October 01, 2015
"President Obama and the Power of Mercy"
The title of this post is the headline of this New York Times editorial. Here are excerpts:
The power to grant mercy to someone who is serving an unjustly long sentence is one of the most important constitutional powers a president has to counteract the frequent excesses of the federal criminal justice system. Between 1885 and 1930, presidents issued more than 10,000 grants of clemency. But in recent decades the practice has fallen into irrelevance. Starting with President Ronald Reagan, pardons and sentence commutations have become little more than a lottery or a game of personal connections, often doled out in the waning days of an administration.
Until recently, President Obama was the least merciful president of modern times. In the past year, he has done more — his totals now stand at 89 sentence commutations and 64 pardons. (A commutation shortens or ends a sentence being served, while a pardon erases the conviction and restores any rights lost as a result.) This is a step in the right direction, but there are many thousands more in prison who are deserving of executive clemency....
The Office of the Pardon Attorney, a division in the Justice Department, has the job of sifting through tens of thousands of clemency petitions.... [But], the clemency process should be removed from the Justice Department entirely.
The idea has been proposed before, but it is gaining new and notable supporters, including Margaret Love, who served as pardon attorney under Presidents Bill Clinton and George H. W. Bush, and who until recently defended the department’s role. In a new law review article, however, she says the department is “determinedly and irreconcilably hostile” to clemency.
It should be no surprise that pardon lawyers working in the Justice Department are loath to second-guess the convictions and sentences obtained by the department’s prosecutors. The solution, as Ms. Love and others argue, is to move the clemency process into the White House itself, and to give it enough money to operate effectively. As many states have already discovered, a clemency commission — ideally representing a wide range of perspectives from the justice system — can handle more petitions with greater transparency and predictability than a pardon attorney with a very small staff.
Wednesday, September 30, 2015
Oklahoma Gov grants 37-day "stay" of Richard Glossip's scheduled execution
As detailed in this official press release, "Governor Mary Fallin has issued a 37 day stay of Richard Glossip’s execution to address legal questions raised today about Oklahoma’s execution protocols." here is the rest of the text of the press release:
The stay will give the Department of Corrections and its attorneys the opportunity to determine whether potassium acetate is compliant with the state’s court-approved execution procedures.“Last minute questions were raised today about Oklahoma’s execution protocol and the chemicals used for lethal injection,” said Fallin. “After consulting with the attorney general and the Department of Corrections, I have issued a 37 day stay of execution while the state addresses those questions and ensures it is complying fully with the protocols approved by federal courts.”The new execution date will be Friday, November 6.“My sincerest sympathies go out to the Van Treese family, who has waited so long to see justice done,” said Fallin.
Amusingly, as noted here by Kent Scheidegger at Crime & Consequences, Gov Fallin technically granted Glossip a reprieve, not a stay, according to the terms of the Oklahoma Constitution. But I suppose we should not expect a Gov or her legal staff to be concerns about such semantics. Intriguingly, as reported here by Lyle Denniston at SCOTUSblog, this order came after the Supreme Court had formally rejected Glossip's various last-minute appeals and stay requests and only Justice Breyer dissented from that decision.
Georgia finally completes execution of female murderer
As reported in this NBC News article, headlined "Georgia Woman Kelly Gissendaner Sings 'Amazing Grace' During Execution," a flurry of last-minute appeals did not prevent the Peach State from finally carrying out a high-profile execution. Here are the basics:
A Georgia woman who was executed despite a plea for mercy from Pope Francis sang "Amazing Grace" until she was given a lethal injection, witnesses said. Kelly Renee Gissendaner, who graduated from a theology program in prison, was put to death at 12:21 a.m. Wednesday after a flurry of last-minute appeals failed.
Gissendaner, who was sentenced to death for the 1997 stabbing murder of her husband at the hands of her lover, sobbed as she called the victim an "amazing man who died because of me." She was the first woman executed in Georgia in 70 years and one of a handful of death-row inmates who were executed even though they did not physically partake in a murder.
The mother of three was nearly executed in February, but the lethal injection was abruptly called off because the chemicals appeared cloudy. After a new execution date was set, Gissendaner, 47, convinced the Georgia Board of Pardons and Paroles to reconsider her application for clemency.
In an extraordinary turn, Pope Francis — who called for a global ban on the death penalty during his U.S. visit last week — urged the board to spare her life. "While not wishing to minimize the gravity of the crime for which Ms. Gissendander has been convicted, and while sympathizing with the victims, I nonetheless implore you, in consideration of the reasons that have been expressed to your board, to commute the sentence to one that would better express both justice and mercy," Archbishop Carlo Maria Vigano wrote on the pontiff's behalf.
Shortly thereafter, the board announced that it would not stop the execution.
The victim's family was split on whether Gissendaner should live or die: Her children appeared before the parole board to ask that their mom be spared the death chamber, but her husband's relatives said she did not deserve clemency. "Kelly planned and executed Doug's murder. She targeted him and his death was intentional," Douglas Gissendaner's loved ones said in a written statement.
"In the last 18 years, our mission has been to seek justice for Doug's murder and to keep his memory alive. We have faith in our legal system and do believe that Kelly has been afforded every right that our legal system affords. As the murderer, she's been given more rights and opportunity over the last 18 years than she ever afforded to Doug who, again, is the victim here. She had no mercy, gave him no rights, no choices, nor the opportunity to live his life. His life was not hers to take."
In the hours before her death, Gissendaner pressed a number of appeals, arguing that it was not fair she got death while the lover who killed her husband got a life sentence. She also said the execution drugs might be defective, and that she had turned her life around and found religion while in prison....
Jeff Hullinger, a journalist with NBC station WXIA who witnessed the execution, later told reporters that Gissendaner appeared "very, very emotional, I was struck by that." He added: "She was crying and then she was sobbing and then broke into song as well as into a number of apologies ... When she was not singing, she was praying."
Monday, September 28, 2015
A busy (and diverse) week for execution plans and capital concerns
Over the next three days, three condemned murderers are scheduled to be executed in three different states, and in each case a different pitch is being made to try to halt the execution. Here are the basics:
Tuesday, September 29: Georgia is scheduled to execute Kelly Gissendaner, who would be the first woman executed by the state in 70 years. She was convicted in February 1997 of conspiring with her lover to kill her husband. (The lover, who took a plea deal and testified against Gissendaner, is serving a life sentence and he will be eligible for parole in 2022.) The Georgia Board of Pardons and Paroles announced today it would consider additional pleas for clemency at a hearing the morning of the scheduled executions.
Wednesday, September 30: Oklahoma is scheduled to execute Richard Glossip, who was the lead litigant in the challenge to Oklahoma's execution protocol which a divided Supreme Court rejected in Glossip v. Gross. He was convicted (again) a 2004 retrial of conspiring with a co-worker to kill their boss. (The co-worker, who took a plea deal and testified against Glossip, is serving an LWOP sentence.) The Oklahoma Court of Criminal Appeals, in a split vote today, declined to halt Glossip's execution after having delayed it earlier this month based principally on renewed claims of Glossip's innocence.
Thursday, Oct 1: Virginia is scheduled to execution Alfredo Prieto, who is a foreign national and whose guilt in a number of killings seems to be uncontested. He was first sent to California's death row for the rape/murder of a teenage girl before being transferred and sentenced to death in Virginia five years ago for the 1988 killing of two college students. His lawyers assert he is intellectually disabled and apparently want him sent back to California to have his disability claim considered on the other coast.
For the sake of assessing my ability to prognosticate in the capital arena, I will on Monday predict that at least one, perhaps two, but not all three of these executions will be completed this week. Anyone else care to make predictions about any or all of these cases on the eve of what will surely be a mid-week full of capital conversations and litigation.
Friday, September 18, 2015
"Cuba to release 3,522 prisoners on the eve of Pope Francis’ visit; why can’t Obama do the same?"
The provocative question in the title of this post is the title of this notable San Francisco Bay View commentary. Here is how it starts:
Just prior to the visit of Pope Francis to Cuba on Sept. 19, the Cuban government has announced the release of 3,522 people being held in the country’s jails. This humanitarian gesture will include prisoners who are over 60 years of age, younger than 20, those with chronic illnesses, women and those who are close to their release dates.
Why couldn’t Obama follow the Cuban example before Pope Francis continues on his tour to the U.S. on Sept. 22? The United States, which has the dubious distinction of having the largest per capita prison population in the world, is overflowing with people who are primarily incarcerated for nonviolent offenses, on drug charges, or being mentally ill and poor. Of the 2.5 million people in jails and prisons in this country, a vastly disproportionate number are people of color.
As the Obama presidency winds down, with nothing to lose, he could do the right thing by releasing an equal percentage of the prison population as the Cubans did. Now that would be a humanitarian gesture that a war torn world could appreciate and a gesture of peace with justice to the visiting Pope. It would amount to the freedom of tens of thousands of people.
Though I am suspect of any accounting of Cuba's incarceration levels (or its propaganda about recent releases), the latest estimate of its imprisoned population is around 57,500. Consequently, its release of more than 3,500 prisoners amounts to freeing more than 6% of its incarcerated population. A comparable effort by President Obama, if we focus on the entire local, state and federal incarcerated US population, would require the release of more than 135,000 persons imprisoned in the United States. Even if Prez Obama only released 6% of the current federal prison population, he would still need to grant over 12,000 federal offenders their freedom to make a gesture for the Pope comparable to what Cuba is claiming it has done.
I am not expecting to Prez Obama (or any state's Governor) to make a mass clemency gesture like this for the Pope's visit to the US. But, as this new NPR story highlights, there are a number of criminal justice reform advocates who are hopeful that, at the very least, the Pope's visit will help kick-start federal criminal justice reform efforts. The NPR piece is headlined "Pope's U.S. Visit Spurs Catholic Support For Criminal Justice Reform," and it highlights that the "Pope will visit a prison in Pennsylvania next week and ... and faith leaders are using the opportunity to press Congress for action."
Some prior related posts on Pope Francis and criminal justice reform:
- Might Pope Francis shame Prez Obama into doing more about mass incarceration?
- Pope Francis categorically condemns death penalty as "inadmissible" in today's world
- Pope Francis now advocating for total abolition of LWOP sentences as well as the death penalty
- Notable criticism of Pope's advocacy against LWOP and "nurturing mommy" approach to government
- Might Pope Francis seek to (and succeed in getting) more federal sentencing reforms moving along?
Tuesday, September 15, 2015
"Here’s why Obama should pardon hundreds more women"
The title of this post is part of the headline of this recent Fusion commentary authored by Amy Ralston Povah. Here are excerpts:
After the fifth year in prison, each additional year begins to eat into the layers of your soul. Parents pass away, friends drift off, spouses find someone else. Children grow up, graduate, get married, have children of their own; holidays come and go, and when that 7th, 15th or 22nd year rolls around, you feel like your heart is being crushed.
I shared those emotions with the women I served time with at FCI Dublin, a correctional facility in northern California. I was serving 24 years on a drug conspiracy charge, arrested for collecting bail money for my husband, who manufactured MDMA. He was the kingpin, but he only received three years probation because he cooperated with the prosecutors. I refused a plea bargain, and I got stuck in jail.
So when President Clinton commuted my sentence on July 7, 2000 — after I’d served 9 years and 3 months — I felt like I had won the lottery. The prison compound erupted into cheers and marched me across the yard to the gate on the day I left. And yet, it was a bittersweet victory. While I was elated for myself, it was hard to walk away, knowing I would not see these women the next day, or possibly ever again.
I felt that mix of bittersweet emotions again this summer when President Obama commuted the sentences of 46 nonviolent drug offenders, more than any sitting president in the last 50 years. It was the result of Clemency Project 2014, a federal initiative that encouraged over 35,000 prisoners to apply for clemency. On one day, 42 men and four women were the lucky lottery winners chosen from a massive number of candidates....
Having served time with over a thousand women, I believe they are the hardest hit victims in the war on drugs. Many women are indicted because they are merely a girlfriend or wife of a drug dealer, yet are not part of the inner circle and have limited information to plea bargain with. Mandatory minimums are reserved for those who do not cut a deal with prosecutors.
Women are being overlooked by the Department of Justice as candidates worthy of a seat on that coveted commutation list. Over the last 30 years, the female prison population has grown by over 800% while the male prison population grew 416% during the same timeframe. More than half of the mothers in prison were the primary financial supporters of their children before they were incarcerated. And the vast majority of women in federal prison were put there due to conspiracy laws that hold them equally culpable for the criminal actions of other co-defendants, often a spouse or boyfriend. In other words, many women are guilty by association.
There are hundreds of women sitting in federal prison on drug conspiracy charges who deserve clemency — most of them first offenders serving life without parole. Alice Johnson is an accomplished playwright who has served 18 years on a life sentence for cocaine conspiracy and has the support of three members of Congress. Josephine Ledezma has already served over 23 years and is still waiting to have her petition filed. Sharanda Jones has served 15 years; filed for clemency in 2013 and has over 270,000 supporters on change.org. Michelle West has served 22 years of a double life sentence, plus fifty years, in a case where the key witness was given immunity and never served a day for a murder he admitted to.
Some days, sitting in prison, you think life can’t get any worse. And then another blow comes when 46 people receive clemency and your name is not on that list. Many of the same women I said goodbye to in 2000 are still in prison, serving 30 years to life, even though, like myself, they were minor participants in a nonviolent drug conspiracy case.... But with a stroke of his pen, President Obama can help right the wrongs of the past and give these deserving women a second chance at life. He should get started right away.
Monday, September 14, 2015
"How Obama can use his clemency power to help reverse racism"
The title of this post is the headline of this provocative new MSNBC commentary authored Mark Osler and Nkechi Taifa. Here are excerpts:
In the remaining months of his second term, President Barack Obama has the chance to deliver justice for thousands of people given overly-harsh sentences for drug crimes. The White House is probably now contemplating the next batch of clemency grants, which is expected in October.
It is likely that the vast majority of those whose sentences would be shortened will be African American. That is as it should be given that past laws and policies, as well as prosecutors and presidents, have tilted the criminal justice system disproportionately against them.
On average, blacks face unequal treatment at each stage of the criminal justice system. They are stopped and arrested more frequently than others; they are less likely to receive favorable terms on bail; and they are more likely to be victims of prosecutorial misconduct. Blacks are more likely to accept unfair plea bargains and be sentenced to rigid, lengthy mandatory minimums, or even death. Race mattered when blacks were disproportionately targeted, imprisoned, and sentenced beyond the bounds of reason. Race should also matter in providing relief via clemency today.
Despite the facially neutral nature of current laws that do not intentionally discriminate, disparate treatment is nevertheless sewn into the structural fabric of institutions, allowing bias to occur without direct action by a specific person.
Today’s racism is subtle and structurally embedded in many police departments, prosecutor offices, and courtrooms. It is found in laws that look fair, but nevertheless have a racially discriminatory impact. For example, from 1986 through 2010, the federal sentencing guidelines and the primary federal narcotics statute mandated the same sentence for five grams of crack as they did for 500 grams of powder cocaine....
Moreover, we know that even now prosecutors use the law unfairly to punish black defendants. Writing in the Daily Beast, Jay Michaelson reports that 95% of elected prosecutors are white, and that those prosecutors disproportionately use mandatory minimum sentences to incarcerate black defendants for longer periods of time than similarly situated whites. Again, there is seldom a “smoking gun” tying white prosecutors to specific acts of racism. But there is a growing consensus that the system is flawed and structurally biased against blacks.
The number of African-Americans jailed under these laws and policies soared in the past few decades. Yet previous presidents predominantly used their power to pardon to benefit high profile white men, including Vice President Dick Cheney’s former chief of staff, Scooter Libby, and Clinton donor and financier Marc Rich. Indeed, President George W. Bush used the pardon power 200 times, but fewer than 16 of those were granted to black petitioners who have traditionally been unconnected to money, power and influence....
As the president’s clemency program accelerates over the 16 months remaining in his second and final term, we hope that he will look at the impact race has played in meting out unjust sentences. We hope that he will broadly consider those who are worthy of a shortened sentence and a lengthened term of freedom and responsibility. And we hope that among this group will be multitudes of eligible black men and women who will be able to be reunited with families and communities. This does not reflect a racial bias. It simply reflects the gut-wrenching reality of those disproportionately over-sentenced in the first place.
Thursday, September 10, 2015
Validity of Pennsylvania Gov halting of death executions considered by state Supreme Court
As reported in this new AP piece, "Pennsylvania Gov. Tom Wolf's lawyers defended his use of death row reprieves to achieve a moratorium on executions, a promise he made on the campaign trail, while prosecutors challenged its constitutionality at a hearing Thursday before the state Supreme Court." Here is more on the hearing:
The lead attorney for Wolf, whose 7-month-old strategy has angered prosecutors and energized death penalty foes, said the only legal question is whether the governor has authority to issue reprieves. "The answer is clearly 'yes,'" said H. Geoffrey Moulton Jr., a deputy in the governor's Office of General Counsel. Moulton acknowledged that Wolf cannot suspend the death penalty but said he can grant temporary reprieves without having to explain his reasons.
A top lawyer for the Philadelphia district attorney's office, which filed a court challenge days after Wolf announced his plan, said the governor is improperly using reprieves by tying them to an overdue report from a legislative task force on capital punishment. "We're waiting for something to be satisfactorily addressed that can never be addressed at all," said Hugh Burns, chief of the office's appeals unit.
"You don't know that," Justice Max Baer interjected. "We don't have the report."
All five justices quizzed the lawyers. Justices Debra Todd and J. Michael Eakin questioned whether Wolf's strategy is technically a moratorium or merely a series of individual reprieves. "He announced a moratorium, not a reprieve," Eakin said.
The case before the state's highest court case revolves around condemned prisoner Terrance Williams, whose scheduled March execution for the tire-iron beating death of another Philadelphia man more than 30 years ago was canceled by the first of three reprieves that Wolf's office says he has granted since February....
Wolf said he intends to continue granting reprieves until the Pennsylvania Task Force and Advisory Committee on Capital Punishment makes its recommendations and they are "satisfactorily addressed."
Some prior related posts:
- Pennsylvania Gov declares moratorium on state death penalty
- Philadelphia DA sues Pennsylvania Gov asserting execution moratorium is "lawless" and "flagrantly unconstitutional"
- Pennsylvania Supreme Court to review, slowly, Gov Wolf's execution moratorium
- Victims and law enforcement assail Gov Wolf's execution moratorium in Pennsylvania
- Pennsylvania House seizes political opportunity to complain about Gov doing something (sort of) about state's dysfunctional death penalty
- Pennsylvania Attorney General calls Governor's execution moratorium an "egregious violation" of the state constitution
Sunday, September 06, 2015
Digging deeply into the back-end of criminal justice systems
Regular readers are accustomed to seeing my praise in this space for Margaret Love's commentary about the federal clemency process and for the commentary and coverage of a range of back-end criminal justice issues at the Collateral Consequences Resource Center. These new posts at CCRC provide yet more support for my view that any and everyone interested in the so-called "back-end" of American criminal justice systems should be reading everything Margaret Love has to say and all the posts at CCRC:
Wednesday, August 26, 2015
The title of this post is the title of this notable new paper by Paul Larkin Jr. now available via SSRN. Here is the abstract:
A trope heard throughout criminal justice circles today is that the system is a dystopia. Although most of the discussion and proposed remedies have centered on sentencing or release, this article focuses on clemency, which has become a controversial subject. The last few Presidents have rarely exercised their pardon power or have used it for ignoble reasons. The former withers the clemency power; the latter besmirches it.
President Obama sought to kick start the clemency process through the Clemency Project 2014, which sought to provide relief to the 30,000 crack cocaine offenders unable to take advantage of the prospective-only nature Fair Sentencing Act of 2010. That initiative, however, is unlikely to jump-start the clemency power since it is quite limited — to drug offenders unable to benefit from the new crack-to-powder sentencing ratio. But the vast expansion in the size of the federal correctional system, combined with the corresponding increase in the costs of federal corrections, may spur the president to renew his resort to clemency. If so, the question becomes, How?
The discussion proceeds as follows: Part I traces the history of the clemency process, focusing on the President’s Article II power to grant an offender mercy. Part II will ask why the clemency power has fallen into desuetude or disdain over the last few decades, and Part III will discuss whether clemency is likely to be reborn in the near future. Part IV will conclude by recommending that the problem lies not in the power it-self, but in the process by which cases are brought to the President for his review and maybe in the people we have elected to make those decisions.
Monday, August 24, 2015
"Justice Department Administration of the President's Pardon Power: A Case Study in Institutional Conflict of Interest"
The title of this post is the title of this notable new paper by Margaret Colgate Love now available via SSRN. Here is the abstract:
The president’s constitutional pardon power has been administered by the attorney general since before the Civil War, but this arrangement has never been adequately explained or justified. On its face it appears rife with conflict of institutional interests: how could the agency responsible for convicting people and putting them in prison also be tasked with forgiving them and setting them free? In spite of these apparently antithetical missions, the Justice Department managed the pardon program in a low-key and reliable manner for well over a century, staffing it with a handful of career lawyers operating on a shoestring budget, and churning out hundreds of favorable clemency recommendations each year for the president’s consideration. While there were occasionally controversial grants there were never scandalous ones, and the president was able to use his power to good effect in wartime and in peace.
It is only in the past two decades that questions have been raised about the integrity and functionality of the pardon process, focusing squarely on the agency and individuals standing as gatekeeper to the president’s power. President Obama’s decision in early 2014 to launch a large-scale clemency initiative, and the Justice Department’s unprecedented decision to rely upon a consortium of private organizations to manage it, make this a propitious time to consider whether the presidency is well-served by an arrangement making officials responsible for prosecuting crime the primary source of clemency advice.
This essay concludes that the culture and mission of the Justice Department have in recent years become determinedly and irreconcilably hostile to the beneficent purposes of the pardon power, and to its regular use by the president. The only way to deal with the institutional conflict that produced and perpetuates this situation is to transfer the pardon program to the president’s direct supervision in the Executive Office of the President. This move will have a variety of benefits, including facilitating the president’s ability to oversee the workings of the criminal justice system, for which he has a special responsibility under the Constitution. More specifically, it will introduce salutary political accountability to federal prosecutions through presidential oversight and potential revision. Finally, it will give the president control for the first time in decades over his own “benign prerogative.”
Monday, August 03, 2015
"Let's hear from the presidential candidates on clemency reform"
The title of this post is the headline of this timely new op-ed authored by Rachel Barkow and Mark Osler. Here are excerpts:
On Thursday in Cleveland, Fox News will host the first substantive presidential debate. The moderators will undoubtedly pepper 10 Republican candidates with questions about health care, government spending, foreign affairs and immigration.
For once, they should also ask the participants what they would do with one of the most powerful tools given to the chief executive by the United States Constitution -- the pardon power, which vests the president with the unilateral and unchecked authority to reduce sentences of individuals who are currently incarcerated and clear the records of those who are already done serving their sentences.
Unfortunately, we usually pay attention to clemency only after it has been used in a controversial way. When Bill Clinton pardoned Marc Rich, we suddenly cared about clemency. When George W. Bush commuted the sentence of (but declined to pardon) Scooter Libby, people on both sides of the issue were upset. And no one has forgotten the Nixon pardon.
But the framers intended clemency to perform a systematic function in the constitutional system of checking overbroad laws and correcting injustices in individual cases, and that requires foresight, principles of action, and attention to structure. All of the modern presidents have failed to fulfill the framers' vision. Yet we never ask candidates how they would use this enormous power before they enter office — we just act surprised when they use it.
This is the right time to change that dynamic. President Barack Obama has announced an intention (so far unrealized) to use clemency aggressively to address the over-incarceration of narcotics defendants, raising the profile of this issue. That project has also brought to the surface both underlying policy issues and an unwieldy consideration process that is plagued with as many as seven levels of review.
And given the increasing bipartisan support to address mass incarceration, it is an opening to see how the candidates view the president's role in dealing with that issue. At a Republican debate, it opens the door for the candidates to critique the Obama administration's approach and to reveal what they would do to change what past presidents agree is an inefficient and ineffectual clemency bureaucracy. Republicans often value efficiency and cost savings, and a properly functioning clemency process offers an opportunity for both....
Whatever the answer, it will tell us a great deal about them. We will learn what kind of vision, if any, they have for changing entrenched and failed bureaucracies. And we will learn how seriously they view the problem of mass incarceration and criminal justice supervision in this country.
Our plea to the moderators of this and future debates (Democrat and Republican) is thus a simple one: For the first time, ask the candidates how they would use clemency, that great unchecked power of the presidency. They will certainly ask those who seek to be president how they would use the terrible swift sword of war; they should also be bold in asking the candidates how they would use this powerful tool of mercy in an age of mass incarceration and punitiveness.
Monday, July 27, 2015
John Oliver (often amusingly) covers Prez Obama's clemencies and mandatory minimums
"Mr. Chairman, the president’s clemency power is beyond dispute"
The title of this post is the headline of this new commentary published in The Hill authored by Samuel Morison, who formerly served as a staff attorney in the Justice Department’s Office of the Pardon Attorney. The piece responds to the curious letter sent by House Judiciary Committee Chair Bob Goodlatte and fellow Republican committee to AG Lynch (discussed here) expressing "deep concern" for how the President has (finally) started to make serious use of his constitutional clemency powers. Here are excerpts (with links included):
Goodlatte and his colleagues are certainly entitled to take issue with Obama’s decision to grant a measure of relief to persons sentenced under a set of laws that are widely viewed to have been, in practice if not by design, racially discriminatory and unjust. But their constitutional claims are so illiterate that it is difficult to tell whether they expect the attorney general to take them seriously.The chairman’s criticism ignores settled practice stretching back to the beginning of the Republic. Throughout American history, presidents have granted executive clemency to “specific classes of offenders” on dozens of occasions, from George Washington’s pardon of the Whiskey Rebels in 1795 to George H.W. Bush’s pardon of the Iran-Contra defendants in 1992. Perhaps more to the point, in the early 1960s, John F. Kennedy and Lyndon B. Johnson commuted the sentences of several hundred prisoners serving mandatory minimum sentences under the Narcotics Control Act of 1956, without objection by Congress.
The historical lack of controversy shouldn’t be surprising. Under our tripartite system of government, an act of executive clemency in no sense “usurps” legislative or judicial authority. Rather, in the words of Justice Oliver Wendell Holmes, it “is a part of the Constitutional scheme. When granted it is the determination of the ultimate [executive] authority that the public welfare will be better served by inflicting less than what the judgment fixed.” The president’s pardoning authority is therefore limited only by the text of the Constitution itself, not by the transitory terms of the criminal code. Indeed, that was the Framers’ point in giving the power to the president in the first place, to act as a check on the other branches.
To be sure, the president’s systematic exercise of the pardon power to benefit “specific classes of offenders” has not gone entirely unchallenged by Congress. But the Supreme Court long ago resolved this dispute in favor of Obama’s authority to redress the injustices entrenched by the current federal sentencing regime. In the aftermath of the Civil War, President Andrew Johnson issued a series of amnesty proclamations that restored the civil rights of former Confederate sympathizers. This was enormously controversial at the time, not least because it undermined the Radical Republican’s designs for the post-war reconstruction of Southern society.
In the ensuing legal battle, the Supreme Court repeatedly struck down Congress’s attempts to constrain the president’s pardoning authority. In 1866, the Court held, without qualification, that “[t]his power of the President is not subject to legislative control. Congress can neither limit the effect of his pardon, nor exclude from its exercise any class of offenders. The benign prerogative of mercy reposed in him cannot be fettered by any legislative restrictions.”
The Court also rejected the effort to draw a false distinction between pardons granted to specific individuals on a case-by-case basis and a pardon granted to a class of persons by means of an amnesty proclamation, precisely the claim that House Republicans are making against Obama. The president is therefore authorized to grant a general amnesty without congressional sanction, protestations to the contrary notwithstanding.
Finally, there is no reason to doubt that the president can grant clemency because of his own policy judgment about a particular law. As one conservative federal judge recently opined, it is a “settled, bedrock principle of constitutional law” that “the president may decline to prosecute or may pardon because of the president’s own constitutional concerns about a law or because of policy objections to the law.”
The historical irony, of course, is that a presidential power forged in a bitter political dispute over the property rights of Confederate rebels is now being used to afford a measure of justice to federal drug offenders, who are disproportionately African-American. Turnabout, I suppose, is fair play. But the president’s power is beyond dispute.
A few prior recent related posts:
- "Obama Plans Broader Use of Clemency to Free Nonviolent Drug Offenders"
- Prez Obama commutes sentences for 46 federal drug prisoners (with a video message)
- Highlighting why dozens of commutations barely move the mass incarceration needle
- GOP House members request AG Lynch to provide accounting of Prez Obama's commutations
Wednesday, July 22, 2015
Do gubernatorial moratoria on executions impact securing of death sentences?
The question in the title of this post is raised by the start of the capital phase of the death penalty trial of Aurora theater shooter James Holmes and is discussed in this interesting Los Angeles Times article. The article is headlined "Death penalty is sought against James Holmes, but governor stands in the way," and here are excerpts:
When the jury found James E. Holmes guilty, Marcus Weaver cried. For his friend Rebecca Wingo, who died beside him in the Aurora, Colo., multiplex. For the dozens of victims in the 2012 rampage during a midnight showing of "The Dark Knight Rises." For the families of the dead and wounded. Then he cautioned that last week's verdict "is just a stepping stone" on the path to justice.
The next step, Weaver hoped, would be the death penalty. But even if the jury decides to sentence Holmes to death in the penalty phase of his trial, which begins Wednesday, there are some questions about whether the sentence will be imposed. In the time since the Aurora shooting case got underway, Gov. John Hickenlooper has made it his policy that no one in Colorado will be executed as long as he is in office....
Juries across the U.S. continue to hand down death sentences, and prosecutors continue to seek them. But the effective moratorium in Colorado — no capital punishment can be carried out unless the governor signs the death warrant — is part of a political retreat that is gaining momentum. The number of U.S. executions has dropped dramatically since 1999, along with the number of death sentences handed down by juries.
Governors in four states, including Hickenlooper, have declared that they will not sign death warrants during their terms, citing the uneven way the punishment is carried out. This year, for the first time since these policies were adopted in Oregon, Colorado, Washington and Pennsylvania, major capital trials are taking place in two of those states that are testing juries' willingness to carry out the ultimate punishment. "What's the role of these reprieves? I don't think there's an independent effect, but it's part of an overall drift away from the death penalty," said Michael Radelet, a University of Colorado sociology professor who has studied the punishment for 35 years.
Although a gubernatorial moratorium will undoubtedly spur debate about a critically important issue, death penalty critics worry that the policies ultimately could end up changing nothing. Once the governors leave office, their replacements could decide to go back to signing death warrants. Anyone whose execution was on hold could again be sent to the death chamber....
In Washington state, 15 months after Gov. Jay Inslee imposed a death penalty moratorium, a Seattle jury in May refused to sentence Joseph McEnroe to death for killing six of his then-girlfriend's relatives on Christmas Eve 2007. The victims spanned three generations of Michele Anderson's family, including a 5-year-old girl and her 3-year-old brother. Anderson, also charged in the killings, goes on trial in September.
The Holmes case is the first death penalty trial in Colorado since Hickenlooper announced in 2013 that he would grant an "indefinite reprieve" to Nathan Dunlap, who killed four people at a suburban Denver Chuck E. Cheese's pizza restaurant in 1993 and was sentenced to death three years later.
The reprieve was granted as Dunlap's execution date neared and will last as long as the Democrat remains in office. Hickenlooper, who campaigned in 2010 as a death penalty supporter, has since said he is against capital punishment.
The political pushback was swift. Moments after the governor announced Dunlap's reprieve from the rotunda of the Capitol in Denver, Arapahoe County Dist. Atty. George Brauchler denounced Hickenlooper from the Capitol steps. Brauchler called Dunlap's execution "a no-brainer," according to the Denver Post, and said the governor refused "to make any hard decision today.... This is inaction. This is shrugging. This is not justice."
Brauchler is the same district attorney who said he would seek the death penalty against Holmes. He also turned down Holmes' offer to plead guilty in exchange for life in prison without a chance of parole, and he is leading the prosecution case against the gunman.
Still, a sitting governor's ability to veto a death penalty appears to be absolute in Colorado. And though many argue that such moratoriums are political posturing with no lasting effect, others say such gubernatorial declarations are a force for change.
"I think it's impactful when the governor of your state says your state should never be involved in killing anyone," said Craig Silverman, a former Denver chief deputy district attorney. "However, in the Holmes case we have jurors who are all death qualified, meaning they have committed to following Colorado law, which includes capital punishment, but we have a governor who is not."