Thursday, December 19, 2013

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Friday, December 13, 2013

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Wednesday, November 27, 2013

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

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

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

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

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

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

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

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

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

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

Tuesday, November 26, 2013

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

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

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

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

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

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

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

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

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

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

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

Thursday, November 14, 2013

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

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

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

Recent related post:

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

"Misconstruing Graham & Miller"

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

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

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

Wednesday, November 13, 2013

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

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

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

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

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

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

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

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

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

Monday, November 11, 2013

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

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

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

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

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

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

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

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

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

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

Sunday, October 13, 2013

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thursday, September 19, 2013

"Rethinking the Timing of Capital Clemency"

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

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

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

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

Wednesday, September 11, 2013

"The Geography of Mercy: An Empirical Analysis of Clemency for Death Row Inmates"

The title of this post is the title of this quite-interesting looking empirical piece by Matthew Heise now available via SSRN.  Here is the abstract:

Conventional wisdom notes persistent regional differences in the death penalty’s application with southern states’ appetite for capital punishment exceeding that of non-southern states. Scholars analyzing the distributions of death sentences and state executions find a geographic influence. Less explored, however, is a possible regional difference in the distribution of executive clemency even though clemency is an integral component of criminal justice system that includes capital punishment. If geography influences the distribution of the death penalty, geography should also influence the distribution of clemency.

Data, however, reveal some surprises. Using a recently-released data set of all state death row inmates from 1973-2010, this paper considers whether clemency is exercised in southern and non-southern states in systematically different ways. No statistically significant differences exist between southern and non-southern states when it comes to clemency, even though southern states were more prone to execute and less prone to disturb death sentences through reversal on appeal than northern states. When it comes to the influence of geography in the death penalty context, the findings provide mixed support and convey a complicated picture.

September 11, 2013 in Clemency and Pardons, Death Penalty Reforms, Who Sentences? | Permalink | Comments (0) | TrackBack

Saturday, August 31, 2013

"Clemency, Parole, Good-Time Credits, and Crowded Prisons: Reconsidering Early Release"

The title of this post is the title of this paper recently posted to SSRN and authored by Paul Larkin Jr.  Here is the abstract:

For most of our history, clemency, parole, and good-time credits have offered prisoners an opportunity for early release.  Over the last 40 years, however, clemency has fallen into disuse, and many jurisdictions have repealed their parole laws in favor of determinate sentencing.  Given our increasingly crowded prisons and expanding correctional budgets, governments are beginning to rethink our approach to punishment.  It is unlikely that clemency or parole will come back into fashion any time soon, however, or that severe sentencing laws will quickly disappear.

But the federal and state governments have continued to use good-time credits as a means of rewarding inmates for positive, in-prison behavior, and legislators may believe that expanding the current good-time laws is the best solution. That approach is reasonable as a policy matter and sellable as a political matter because prisoners must earn good time credits. We therefore may see legislators seek to address prison overcrowding through an expanded good-time system.

August 31, 2013 in Clemency and Pardons, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment | Permalink | Comments (26) | TrackBack

Thursday, August 22, 2013

New York Times editorial board rightly highlights "Pardon Rates Remain Low"

I was pleased to see this morning that the New York Times has this new editorial discussing clemency issues under the headline " "Pardon Rates Remain Low." Here are excerpts:

Attorney General Eric Holder said many encouraging things in his important speech on the future of sentencing reform, but the most striking thing may have been what he did not say. In all his 4,000 words on America’s “broken” legal system — and particularly on its outlandishly harsh and ineffective sentencing laws — there was not one mention of executive clemency.

That power, which the Constitution explicitly grants to the president, has always served as an indispensable check on the injustices of the legal system and as a means of demonstrating forgiveness where it is called for.  It was once used freely; presidents issued more than 10,000 grants of clemency between 1885 and 1930 alone.  But mercy is a four-letter word in an era when politicians have competed to see who can be toughest on crime....

As ProPublica has documented, the pardon process has devolved into a mockery of itself, riven by arbitrariness, racial disparity and charges of abuse.  Pardons of powerful, well-connected individuals like Marc Rich, by Bill Clinton, and Lewis Libby, by George W. Bush, have only increased cynicism about the process.

Meanwhile, President Obama’s use of the pardon power remains historically low. In four and a half years, he has received almost 10,000 applications for clemency and has granted just 39 pardons and one sentence commutation.  No one seems to know why some requests are granted and others denied.  To call it a lottery is unfair to lotteries; at least if you pick the right numbers, you’re guaranteed to win....

As the experience of many states shows, a functional pardon system must also be accountable. This can mean requiring the executive to publish an annual report on pardon policy and practice. Currently the president has no obligation to explain his grants or denials, which undermines public trust in the system.

In this light it is disheartening that the Obama administration continues to resist calls to remove the current head of the pardon office, Ronald L. Rodgers, despite a finding by the Justice Department’s inspector general that in 2008, Mr. Rodgers misrepresented material information in recommending that the president deny a petition for clemency.

In a 2003 speech, Justice Anthony Kennedy said that “a people confident in its laws and institutions should not be ashamed of mercy.” In the 10 years since that speech, requests for mercy have increased even as the prospects for reform have not. In the first 10 months of fiscal 2013, 2,000 inmates applied for commutations, more than in any single year in history.

Executive clemency may not be the ideal way to ameliorate the system’s excesses, but for many people stuck with an unjustly long sentence or a conviction that prevents them from getting jobs, business licenses or even public housing, it remains the only way....

Mr. Holder was right to call for a substantial overhaul of our criminal justice system. But any meaningful reform must include the clemency process, by which we temper our most punitive tendencies. It is long past time for the president to heed the words of Justice Kennedy and reinvigorate this fundamental executive prerogative.

Kudos to the New York Times editorial board for giving this issue significant attention in the wake of AG Holder's speech (and for the great line "[t]o call it a lottery is unfair to lotteries...."). The Obama Administration's record on this issue is truly abysmal, especially given that President Obama rode into the White House in 2008 by stressing the themes of hope and change into the White House.

Especially disconcerting is Obama's failure to date to use his clemency powers (or really to do anything of significance) to help the many thousands of low-level crack offenders still serving (now-repealed) severe mandatory minimum prison sentences based on the old 100-1 crack/powder sentencing ratio. Back in 2007 on the campaign trail in his speech to Howard Univesity (as I discussed in this 2010 law review article), then-candidate Barack Obama had this to say about those federal prisoners:

When I'm President, we will no longer accept the false choice between being tough on crime and vigilant in our pursuit of justice....  We can have a crime policy that's both tough and smart. If you're convicted of a crime involving drugs, of course you should be punished. But let's not make the punishment for crack cocaine that much more severe than the punishment for powder cocaine when the real difference between the two is the skin color of the people using them. Judges think that's wrong. Republicans think that's wrong. Democrats think that's wrong, and yet it's been approved by Republican and Democratic Presidents because no one has been willing to brave the politics and make it right. That will end when I am President.

Though I suppose President Obama deserves some credit for the passage of the Fair Sentencing Act, even the revised federal penalties under that law with its new 18-1 ratio still mean that "the punishment for crack cocaine [is] much more severe than the punishment for powder cocaine." And, more to the point of this post, the only reason I can surmise to explain why President Obama has not been willing to grant commutations to some significant number of the thousands of prisonder serving sentences that judges and Republicans and Democrats all think are wrong is because President Obama even in his second term is still , in fact, NOT "willing to brave the politics and make it right."

I know that there are at least 2000 federal prisoners who applied for clemency just this last year who continue to reasonably hope that President Barack Obama remembers that his clemency powers provide one of the very best ways for him to be "vigilant in our pursuit of justice."  But, as the NY Times highlights, in this arena many now have been hoping for nearly five years to see any real change.

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

August 22, 2013 in Clemency and Pardons, Prisons and prisoners, Sentences Reconsidered, Who Sentences? | Permalink | Comments (12) | TrackBack

Monday, July 29, 2013

New Slate pitch for Prez to use clemency powers to address crack sentencing disparities

Thanks to the suggestions, and insights and energy of Harlan Protass, a criminal-defense lawyer in New York and an adjunct professor at the Cardozo School of Law, some ideas expressed in this recent post concerning the President Obama's words and (lack of) actions now find expression in this new Slate commentary.  Here is how the piece, co-written by me and Harlan, starts and finishes:

President Barack Obama, commenting last week on George Zimmerman’s acquittal in Trayvon Martin’s death, remarked on “a history of racial disparities in the application of our criminal laws — everything from the death penalty to enforcement of our drug laws.”  A few months earlier, Attorney General Eric Holder similarly lamented new government data suggesting that even today “black male offenders” are sentenced to federal prison terms “nearly 20 percent longer than those imposed on white males convicted of similar crimes.”  These statements reveal that our nation’s first African-American president and first African-American attorney general are aware of serious racial discrimination in the administration of our nation’s criminal laws.  The question is what they plan to do about it?

Neither the president, nor his attorney general, has followed-up or suggested a fix for the problem.  Yet with one signature, Obama could make a remarkable difference: He could use his constitutional powers to commute the sentences of thousands of disproportionately black inmates serving excessive prison terms for crack cocaine offenses.  Put bluntly, rather than dropping occasional comments about high-profile criminal-justice incidents with racial overtones, both the president and the attorney general should make a focused and sustained effort to redress longstanding criminal justice disparities....

Back in 2009, Holder famously described us as a “nation of cowards” in dealing with race issues.  And while both Holder and the president seem to have the courage to speak about high-profile cases, they have yet to show the fortitude and focus needed to turn high-profile controversies into constructive opportunities.  If President Obama is genuinely committed to addressing racial disparities in the enforcement of our criminal laws, he can grant clemency today, and then make a sustained commitment to addressing these issues throughout his second term.  If he fails to do so, he can, justifiably, be called our nation’s “Coward-in-Chief” where race is concerned.

July 29, 2013 in Clemency and Pardons, New crack statute and the FSA's impact, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (33) | TrackBack

Sunday, July 21, 2013

"Clemency Reform: We're Still Waiting"

The title of this post is the headline of this recent commentary by Julie Stewart, the President of Families Against Mandatory Minimums (FAMM), appearing at The Huffington Post.  Here are excerpts:

A year ago, The Washington Post and ProPublica reported that the Obama administration was set to reverse its poor record on clemency. At the time, President Obama was coming under growing pressure from sentencing law experts, sentencing reform groups, and civil rights organizations for granting fewer commutations and pardons than any president in modern history. Frustration was high because, in 2008, then-candidate Obama had railed against lengthy mandatory minimum sentences for nonviolent offenders, a growing population within the federal prison system.

In an apparent attempt to address this frustration as Election Day 2012 approached, an unnamed administration official told the Post-ProPublica, "There will be 76 days between the election and inauguration for the president to exercise his [clemency] power." Advisers said he planned to act whether he won or lost the election.

It didn't happen. Since winning reelection, President Obama has not commuted a single sentence. Instead, during the first nine months of fiscal year 2013, the president has denied 2,232 requests for commutation, more than any other president in history denied in a single year.

Last week, the Justice Department sent a letter to the U.S. Sentencing Commission warning that the growing federal prison population was causing severe budgetary problems. The Department said policymakers were confronted with a stark choice: either "reduce the prison population and prison spending" or be prepared for "fewer prosecutors to bring charges, fewer agents to investigate federal crimes, less support to state and local criminal justice partners, less support for treatment, prevention and intervention programs, and cuts along a range of other criminal justice priorities."

Rather than jeopardize public safety by cutting investigators and prosecutors, the Department recommended that the Sentencing Commission (and Congress) reduce drug penalties for low-level offenders and "focus severe penalties on serious and repeat drug traffickers." The question our country faces, the Department wrote, is "how will those involved in crime policy ensure that every dollar invested in public safety is spent in the most productive way possible?"

If the administration wants to make certain every dollar of our nation's public safety budget is spent productively, as it should, President Obama should begin to exercise his executive clemency authority. For starters, he might look at the 2,000 individuals serving sentences of life without parole for drug crimes. He also should look at the 8,800 individuals serving lengthy crack cocaine sentences that were based on a formula that was repudiated by Congress when it passed the Fair Sentencing Act of 2010....

The pardon power can't fix 30 years of flawed policy, but it can provide meaningful -- and best of all, immediate -- relief to thousands who have already served long sentences and who pose no threat to public safety. It has been a year since the White House said it would get moving on clemency. We're still waiting.

I believe Julie wrote this commentary before the President made his remarks about the Martin/Zimmerman case on Friday.  But Prez Obama said just days ago that the "African American community is also knowledgeable that there is a history of racial disparities in the application of our criminal laws -- everything from the death penalty to enforcement of our drug laws." Rather than simply talk about what he views as "history of racial disparities in the application of our criminal laws," perhaps Prez Obama might think about actually doing something about them by, for example, granting at least a few commutations to at least a few federal prisoners still serving extreme crack sentences under the pre-FSA 100-1 drug quantity sentencing ratio.

Sadly, it seems yet again that our nation's first African-American President (as well as its first African-American Attorney General) are far more eager to talk the talk than to walk the walk when it comes to criminal justice reform.

UPDATE:  I have just seen that Mark Osler has forcefully argued that the Obama Administration should be getting to work on crack clemencies rather than fly-speck the Zimmerman case in this commentary at MSNBC headlined "The speck in Florida’s eye, and the log in DOJ’s."  Here is one key paragraph from Mark's commentary:

For this administration to re-open the Zimmerman case, with all the resources that will take, would be the equivalent of pointing at the speck in Florida’s eye while ignoring the log in its own. While the Trayvon Martin case involved one tragedy, more than 5,000 African-Americans remain in prison under lengthy federal sentences under a sentencing regime which has now been rejected by all three branches of government. That scheme — which sentenced defendants to the same mandatory minimum term for either 500 grams of powder cocaine or just 5 grams of crack — was rejected by the administration, by the courts, and finally in 2010 by Congress, which reduced the ratio from 100-1 to 18-1.

July 21, 2013 in Clemency and Pardons, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6) | TrackBack

Monday, July 08, 2013

Effective review of modern state clemency procedures as Kentucky's is challenged

This recent AP article, headlined "Kentucky Alone In Lack of Formal Clemency Procedure," provides an effective review of different states' different approaches to the clemency process.   Here are excerpts:

The power of kings to spare a condemned person's life lies solely with the governor in Kentucky, which is one of a select few states where the chief executive can spare death row inmates, shorten sentences and forgive crimes without oversight or having to explain his actions.

A review of clemency laws and policies across the country by The Associated Press shows nearly all other states have regulations to follow and oversight - including in some cases having to explain a decision to legislators. "The trend in states is to spread the power and make it a little more democratic," said P.S. Ruckman, a political science professor at Rock Valley College in Rockford, Ill., who blogs about clemency. "Kentucky is on the wrong side of that trend."

Since the reinstatement of the death penalty in 1976, two condemned inmates in Kentucky have gotten reprieves and right now, the state is barred from executing anyone until a judge decides on the legality of the drugs used. The state has executed three people in that time.

Two death row inmates are challenging that power and the way the clemency system itself is set up. Robert Foley and Ralph Baze are awaiting execution for multiple killings. They filed suit in May in Franklin Circuit Court, asking a judge to halt executions until a new set of procedures will clearly spell out rules.

The attorney for the inmates, Meggan Smith, said if the clemency procedures were more open, inmates seeking a commutation or pardon may have a better chance and everyone involved would better understand how the decision is made. "What we are seeking is an open, transparent procedure, which will benefit the Commonwealth, victims' families, those seeking clemency, and the public in general," Smith said.

Kentucky's governor has absolute discretion in granting clemency - no recommendations, hearings or requests are needed for the state's top official to decide someone should not be put to death. It's a power similar to those available to governors in New York, New Mexico, North Carolina, North Dakota and Missouri....

Ruckman found the challenge to the clemency process novel. While there have been suits in federal court and in Kentucky contesting the scope of the powers, those have generally reaffirmed the ability of governors and presidents to pardon as they choose. Ruckman noted few suits have attacked the method by which clemency is granted.

Thirteen states - Arizona, Arkansas, Connecticut, Delaware, Florida, Illinois, Indiana, Massachusetts, Montana, Oklahoma, Pennsylvania, South Dakota and Washington - mandate a hearing when a clemency petition is filed.

Fifteen states - California, Georgia, Idaho, Louisiana, Maine, Maryland, Michigan, Nebraska, Nevada, New Hampshire, New York, Tennessee, Texas and Utah - grant the governor or pardon board discretion to set a hearing when they determine one is necessary.

Two states - Alaska and Colorado - provide victims or others the opportunity to submit written comments on pending clemency petitions. Two states -Iowa and Kansas - permit a pardon board or governor to interview key witnesses concerning a petition.

Other states have a mix of processes, with the governor having to explain clemency decisions to lawmakers in some cases, while states such as South Carolina have an outside board make clemency decisions.

The president has almost unlimited discretion to grant clemency under the federal system. "When all is said and done, Kentucky leans toward the federal model," Ruckman said.

July 8, 2013 in Clemency and Pardons, Data on sentencing, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Thursday, June 20, 2013

Oregon Supreme Court rejects effort by death row inmate to reject execution reprieve from Governor

As reported in this new local article, headlined "Supreme Court upholds reprieve by Gov. Kitzhaber of death row inmate Gary Haugen," the top court in Oregon issues a lengthy opinion in a case that ought to be of interest to those who follow the death penalty and those who care about modern clemency procedure and powers. Here are the ruling's basics via the press report:

The Oregon Supreme Court announced today it has upheld Gov. John Kitzhaber’s temporary reprieve of Gary Haugen’s execution. Chief Justice Thomas Balmer, writing for the court, concluded that the reprieve was “valid and effective,” and turned aside Haugen’s argument that he had a legal right to reject the reprieve.

“I am pleased that the Oregon Supreme Court affirmed my constitutional authority to issue a reprieve,” Kitzhaber said in a statement.  “I renew my call for a reevaluation of our current system that embraces capital punishment, which has devolved into an unworkable system that fails to meet the basic standards of justice.  I am still convinced that we can find a better solution that holds offenders accountable and keeps society safe, supports the victims of crime and their families and reflects Oregon values.”

The reprieve will last during Kitzhaber’s current tenure as governor. That will end on Jan. 12, 2015, or if Kitzhaber seeks and wins another term in 2014, until Jan. 14, 2019.

Haugen, 51, is a twice-convicted murderer who was the first who sought to die since Kitzhaber allowed two other executions to proceed during his first term in 1996 and 1997. All three waived appeals.

The high court overturned a ruling in Marion County Circuit Court, where a visiting judge upheld Haugen’s side in the first round last summer.

The full 40-page unanimous ruling in Haugen v. Kitzhaber is available at this link.

Prior related posts:

June 20, 2013 in Clemency and Pardons, Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

Thursday, May 23, 2013

Is Colorado Governor's grant of "clemency light" to quadruple murderer slick or silly?

GovernorhickenlooperThe question in the title of this post is prompted by this Reuters story concerning a fascinating — and clever? crazy? conniving? compelling? — decision made yesterday by the Governor of Coloardo concerning a convicted murderer scheduled to be executed in August.  Here are the basics:

Colorado Governor John Hickenlooper granted a reprieve on Wednesday to the state's longest-serving death row inmate, ordering his execution blocked indefinitely in a move that infuriated prosecutors and victims' families.

"It is a legitimate question whether we as a state should be taking lives," Hickenlooper, a first-term Democrat, wrote in his executive order, issued in response to a request for clemency from condemned quadruple killer Nathan Dunlap.

Dunlap, 39, who has been confined to Colorado's death row for 17 years, was scheduled to be executed in August by lethal injection. His lawyers had asked that Dunlap's death sentence be permanently commuted to life in prison without parole.

Hickenlooper called his order a "temporary reprieve," noting the decision left open the possibility for a future governor to rescind it and allow the execution to move forward. "I think it's highly unlikely that I will revisit it," said Hickenlooper, who is up for re-election next year.

Hickenlooper said he met with the families of Dunlap's victims before issuing the order and that the consensus among them was "disappointment." Bob Crowell, whose 19-year-old daughter, Sylvia, was among those slain, accused the governor of playing politics with the death penalty. "I think it stinks," Crowell told Reuters. "He (Hickenlooper) has not listened to the victims."

Dunlap was convicted and sentenced to death in 1996 for shooting to death four workers at a suburban Denver pizza restaurant where he had recently been fired. He has run out of formal appeals, although his attorneys and others have filed lawsuits seeking to halt the execution.

Dunlap's attorney, Phil Cherner, said he was "heartened" by the governor's decision. "It is a powerful statement against the death penalty. It cannot be administered fairly and needs to be done away with," Cherner said. He added that he broke the news to Dunlap, who he said "continues to be remorseful" for the killings....

Arapahoe County District Attorney George Brauchler, whose predecessor prosecuted the case, blasted the governor for granting what he called "clemency light" to a cold-blooded killer. "There's going to be one person in the system who will go to bed tonight with a smile on his face, and that's Nathan Dunlap," Brauchler said. "And he's got one person to thank for that smile, and it's Governor John Hickenlooper."

It was unclear what effect, if any, the reprieve would have on two more inmates now on Colorado's death row, or on other cases in which prosecutors are seeking the death penalty, including that of accused movie theater gunman James Holmes.  Legal analysts called the reprieve a victory for death penalty foes because it cast further doubt on the future of capital punishment in a state that has executed just one inmate in 46 years.

Colorado Attorney General John Suthers, a Republican and possible gubernatorial candidate, said the governor should not have allowed his "personal discomfort" with capital punishment to halt the execution. "The governor is certainly entitled to these views, but granting a reprieve simply means that his successor will have to make the tough choice that he cannot," Suthers said.

Whatever one might think about the substance of Gov Hickenlooper's grant of "clemency light" here (and I suspect commentors will have a lot to say on this front), I want to at least compliment him for issuing a lengthy explanation for his decision.  As summarized in this press release, Gov Hickenlooper provided this four-page detailed accounting of why he could not bring himself to allow Nathan Dunlap to be executed for his four murders.

Especially because Gov Hickenlooper is up re-election next year, and because it seems the current Colorado AG could be his opponent in that election, the unique decision to do a semi-permanent reprieve here will perhaps ensure that the death penalty in Colorado (where, of course, mass murderer James Holmes is being prosecuted) will be a front-and-center issue in the next Colorado election cycle.

May 23, 2013 in Clemency and Pardons, Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (12) | TrackBack

Sunday, May 19, 2013

Legislative and executive officials revving up Florida's machinery of death

As reported in this lengthy new local article, "Gov. Rick Scott has accelerated the pace of signing death warrants in Florida by lining up three executions over the next few weeks, the most in such a brief period of time in more than two decades."   Here is more about his actions and recent similar activity within his state's legislature:

Scott and his chief legal adviser say they are doing nothing unusual.  But legal experts who oppose the death penalty wonder whether other factors are at work — such as Scott’s desire to improve his standing with voters as he seeks re-election next year.

Not since 1989, when an unpopular Gov. Bob Martinez set a record by signing six death warrants in a single day, has a Florida governor been so eager to use the death penalty. “In the past, governors wouldn’t do multiple warrants at a time. It was a much more orderly process than this,” said Martin McClain, an attorney who has defended many Florida Death Row inmates. “If appears that every 10 days, Gov. Scott is signing a death warrant.”

Scott recently signed three death warrants in succession, for condemned murderers Elmer Leon Carroll, William Van Poyck and Marshall Lee Gore.  All three have been on Death Row for longer than 20 years.  Their executions, set over the next six weeks, will keep the death chamber at Florida State Prison in Starke unusually busy.  Two other recent death warrants have been blocked in federal court.

Scott had signed a total of six death warrants before the recent burst. “I go through them when people have exhausted their appeals and they’re finished with the clemency process,” Scott said. “Then I continue to move the process along.”...

Scott’s spurt of death warrant signings also parallels the Legislature’s recent passage of a bill aimed at speeding up the death penalty appeals process.  Dubbed the Timely Justice Act by legislators, the bill (HB 7083) passed both chambers by wide margins.  It has not yet been sent to Scott for action.  “We’ll review it and see what it does,” Scott said of the bill.  One provision of the bill would require the governor to sign a death warrant within 30 days of a Death Row inmate’s clemency review, a standard step in all death penalty cases.

Some legal experts have raised concerns that the bill could increase the possibility that an innocent person could be put to death.  Former state Supreme Court Justice Raoul Cantero recently co-authored an opinion column in which he said the Timely Justice Act should be viewed in a broader framework of Florida’s death penalty system, “to minimize the risk that Florida might execute innocent people or others who shouldn’t be subject to the death penalty.”....

Florida is one of 33 states that has the death penalty, and it has 405 inmates on Death Row, more than any other state except California.  The state has executed 75 people since 1976, when capital punishment was re-instituted after a long absence.

May 19, 2013 in Clemency and Pardons, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Wednesday, May 08, 2013

"The Exchange of Inmate Organs for Liberty: Diminishing the 'Yuck Factor' in the Bioethics Repugnance Debate"

The title of this post is the title of this notable new paper by Jamila Jefferson-Jones now available via SSRN. Here is the abstract (which prompts for me a reaction of "cool" rather than "yuck"):

Mississippi Governor Haley Barbour granted clemency to Jamie and Gladys Scott on December 29, 2010.  This decision indefinitely suspended their double life sentences and freed them after 16 years in prison for armed robbery.  The price of their liberty: Gladys’ kidney.

The story of the Scott Sisters’ release and the condition imposed upon Gladys Scott reflexively elicits an intense negative response on the part of the listener who likely is focusing on the “yuck factor” — a strong sentiment that what they just heard is unfair, unseemly, or just plain wrong.

What happens, then if the Scott Sisters’ story is replicated — if it is multiplied across prison populations?  Were programs put into place that allowed prison inmates to trade their kidneys (or portions of their lungs, livers or pancreases) for liberty, it follows that the “yuck factor” would be multiplied exponentially.  However, it must be noted that in confecting his peculiar clemency condition, Governor Barbour chose a course of action that was, ironically, unobjectionable to the civil rights community (including the state’s Black activist community) that was clamoring for the release of the Scott Sisters.  If one were to cast the civil rights community as guardians of (or at least stakeholders regarding) the interests of poor and minority communities, the Scott Sister’s clemency case is particularly intriguing in that they cheered, rather than crying, “Yuck!” and objecting to the terms of release imposed by the Governor.  The outcry from some bioethicists notwithstanding, this scenario begs the question of why we should not allow other prisoners — those to whom serendipity has not provided an ailing sister — to do the same and whether it is in fact possible to do so while avoiding, or at least mitigating repugnance.

This article contemplates whether the National Organ Transplant Act’s (“NOTA”) prohibition against the trading of organs for “valuable consideration” should include an exception that would allow state and federal prison inmates to donate organs in exchange for release or credit toward release.  Such a stance surely raises questions regarding whether the state would be coercing the forfeiture of body parts as punishment or in exchange for freedom.  Moreover, critics may question the potential effects on the criminal justice system of allowing those facing incarceration to bargain their bodies, and conceivably, their long-term health, in exchange for reduced prison terms.  Therefore, such an inmate organ donation program is only feasible if a system is confected to remove the “yuck factor” ostensibly by removing coercion from the equation and by addressing the other concerns that mirror those addressed in the living donor sales debate.  Such a program would need to reframe the legal context in which the Scott Sisters’ clemency condition was crafted into one in which a great measure of power and choice resides instead in the hands of the inmate participants.

May 8, 2013 in Clemency and Pardons, Criminal Sentences Alternatives, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (1) | TrackBack