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

Wednesday, May 01, 2013

Ohio completes execution of "baby raper" and killer of infant

As detailed in this local report, Ohio this morning carried out an execution this morning of a convicted murderer who made a uniquely disconcerted and unsuccessful argument for clemency in recent months.  Here are the details:

A man convicted of killing a 6-month-old as he raped her was executed today despite his arguments that he never meant to hurt her.  Steve Smith, 46, was executed by lethal injection for the September 1998 killing of his live-in girlfriend’s daughter, Autumn Carter, in Mansfield in northern Ohio.  He was pronounced dead at 10:29 a.m.

Smith had recently tried to get his sentence reduced to life in prison, arguing that he was too drunk to realize that his assault was killing Autumn and didn’t mean to hurt the baby.  The Ohio Parole Board and Gov. John Kasich unanimously turned him down, with the board calling him “the worst of the worst.”

“Smith took the life of an innocent 6-month-old infant while using the baby to sexually gratify himself,” the board said in its decision.  “It is hard to fathom a crime more repulsive or reprehensible in character.”

Among the witnesses to the execution was Smith’s 21-year-old daughter, Brittney, who said she has never believed he committed the crime.  “I know my dad’s innocent,” she said. “I do not believe he did this, and you know, he raised all my cousins, my sister before I was even born, and he never did anything (sexually).”

Brittney Smith, who was 7 when her father was arrested for Autumn’s killing, said she can’t reconcile the crime with the dad she knew, the man who taught her and her sister to fish and play card games and who would watch Disney’s The Lion King over and over with them.  She called him “a wonderful dad” and said she recently introduced him to his only grandchild, a 16-month-old girl named Alannah, whom he was allowed to hold and pose for photos with at a state prison.

Autumn’s mother and other family also had planned to witness the execution and considered it justice.  Autumn’s aunt, Kaylee Bashline, said that her family has no reason to doubt that Smith is guilty, especially with his recent admission, and that it’s not fair that he had 15 years since the crime to live, visit family and say his goodbyes. “He got all that, and what did she get?” Bashline said.  “She got to be killed and put in the ground where none of us gets to see her anymore. I don’t find it right.”

Back on the night of Sept, 29, 1998, Autumn’s mother, Kesha Frye, was awoken by Smith, her live-in boyfriend of four months.  Smith, who was extremely drunk and naked, laid a naked and lifeless Autumn on Frye’s bed, according to court records.

Frye rushed the baby and her other 2-year-old daughter to a neighbor’s house and called 911. Autumn was pronounced dead after doctors tried to revive her for more than an hour, and Smith was arrested.  The baby was covered in bruises and welts, had cuts on her forehead and had severe injuries showing she had been brutally raped, though no semen was present....

At trial, Smith didn’t testify in his own defense on the advice of his attorneys, even as prosecutors repeatedly referred to him as a “baby raper,” showed pictures of Autumn’s battered body and told jurors that her assault lasted up to a half-hour.  Expert witnesses for Smith testified that he might have accidentally suffocated the girl within three to five minutes of the assault.  The jury found Smith guilty of aggravated murder and sentenced him to die.

At an April 2 hearing in which Smith sought to have his death sentence reduced to life in prison, he admitted to the crime and said he didn’t mean to kill Autumn.  He also told the Ohio Parole Board that he was not in his right mind the night of the crime and has to live every day with what he did.  He said he was sorry and wished he could ask Autumn for forgiveness.

Smith became the 51st inmate put to death in Ohio since it resumed executions in 1999. The state has enough of its lethal injection drug, the powerful sedative pentobarbital, to execute two other inmates before the supply expires.  Eight more inmates are scheduled to die from November through mid-2015.

Interestingly, Smith's execution was only the 10th in the United States through the first third of 2013. Unless the pace of executions picks up considerable steam through the next few months, it now seems quite possible that the total number of execution in the US this calendar year may be lower than any years since the early 1990.

Given the broader death penalty trends seen throughout the last few years, it seems now quite possible that President Obama's second term could end up having many fewer total executions than during his first term and during the two terms of his two prior predecessors. (There were a modern record of well over 300 executions nationwide during Bill Clinton's second term from 1997 through 2000, and and I think the likely over/under for executions during Obama's second term might reasonably be set at around 100.)

May 1, 2013 in Clemency and Pardons, Death Penalty Reforms, Offense Characteristics | Permalink | Comments (1) | TrackBack

Tuesday, April 16, 2013

"Clemency for the 21st Century: A Systemic Reform of the Federal Clemency Process"

The title of this post is the headline of this new short piece by Mark Osler now available via SSRN. Here is the abstract:

Federal clemency is in crisis. In response to that crisis, a remarkable bipartisan consensus has formed in support of systemic reform.  This short statement acknowledges that consensus, and lays out a framework for change.  The reforms described here are achievable without significant congressional action, consistent with best practices in the states, and cost-effective.  We urge that this administration take the clemency process out of the Department of Justice, create an independent and bipartisan Clemency Board that would report directly to the President, and establish a regular and systemic process for executive consideration of individual cases.

April 16, 2013 in Clemency and Pardons, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Thursday, April 11, 2013

"How to Awaken the Pardon Power"

The title of this post is the headline of this notable new commentary by Mark Osler now up at The Huffington Post.  Here is how it starts and ends:

In recent months, a striking array of people -- from the Kardashians to those within the Heritage Foundation -- have called attention to the often-forgotten ability of the president to shorten sentences and pardon convictions. It's no wonder: There is a crisis of over-incarceration in this country, and the pardon power is an obvious way to address it.

Inaction has exacerbated the problem, as the federal pardon power has nearly faded away. President Obama's recent grant of 17 pardons in minor, old cases does little to refute this. Even after these pardons, this president remains the stingiest user of executive clemency in recent history. In addition to a handful of pardons through the course of his presidency, President Obama has granted only a single commutation petition (which merely reduces a sentence), while denying over 3,000. Meanwhile, over 5,000 federal prisoners continue to serve sentences under an old mandatory minimum sentencing statute for crack cocaine sentences that has been reformed but not made retroactive.

No one seems happy with this abandonment of an important Constitutional power. Reports critical of Obama's performance have recently been issued by experts at both the conservative Heritage Foundation and the liberal American Constitution Society, and Supreme Court Justice Anthony Kennedy has condemned the dissolution of the pardon power both while on and off the bench. Such rare consensus among the right, the left, and the middle must mean that something is very wrong.

The process for considering clemency petitions is a part of the problem, according to the critics. The United States Pardon Attorney and his small staff are a part of the Department of Justice, and several levels of review stand between that office and the president. Those tasked with evaluating the apportionment of mercy are embedded deep within the agency charged with prosecution. The stingy results are predictable.

Three simple steps would cure this systemic problem. First, the consideration of clemency needs to be taken out of the Department of Justice. Second, clemency petitions should be evaluated by a diverse, bi-partisan board rather than a single official. Finally, clemency considerations should be routinized, with that board presenting its recommendations to the president at regular intervals....

The president of the United States is a Constitutional scholar, and it is the Constitution itself which creates the odd but important pardon power of the executive. It is nothing less than a charge to do justice while embracing mercy, a job made possible by the humble acknowledgment that our laws at times are not perfectly fit to the changing shapes of human frailties. We can only hope that the president possesses the strength to embrace that humility.

April 11, 2013 in Clemency and Pardons, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack

Tuesday, April 02, 2013

A challenging clemency claim of capital "innocence" for Ohio death row defendant

This new AP story, headlined "Ohio Man Who Killed 6-Month-Old Girl Seeks Mercy," highlights the perhaps unique and uniquely difficult clemency contentions being made by a condemned killer in Ohio.  Here are the details from the start of the press story:

Condemned killer Steven Smith's argument for mercy isn't an easy one. Smith acknowledges he intended to rape his girlfriend's 6-month-old daughter but says he never intended to kill the baby.

The girl, Autumn Carter, died because Smith was too drunk to realize his assault was killing her, Smith's attorneys argued in court filings with the Ohio Parole Board, which heard the case Tuesday.  And Ohio law is clear, they say: A death sentence requires an intent to kill the victim.

"The evidence suggests that Autumn's death was a horrible accident," Smith's attorneys, Joseph Wilhelm and Tyson Fleming, said in a written argument prepared for the board. They continued: "Despite the shocking nature of this crime, Steve's death sentence should be commuted because genuine doubts exist whether he even committed a capital offense."

Smith, 46, was never charged with rape, meaning the jury's only choice was to convict or acquit him of aggravated murder, his attorneys say.   However, rape was included in the indictment against Smith as one of the factors making him eligible for the death penalty. Under Ohio law, an aggravated murder committed in the course of another crime — such as burglary, robbery, arson or the killing of a police officer or child — is an element that can make someone eligible for capital punishment.

The Richland County prosecutor said Smith continues to hide behind alcohol as an excuse and calls Smith's actions "the purposeful murder of a helpless baby girl."

Prosecutor James Mayer told the board in his written statement that the girl's injuries were consistent with a homicide that contradicts Smith's claim he didn't intend to kill her. "The horrific attack upon Autumn Carter showed much more than Smith's stated purpose," Mayer said.

Mayer said Monday he didn't know why Smith wasn't charged with rape, but he said it wasn't part of a trial strategy.

April 2, 2013 in Clemency and Pardons, Death Penalty Reforms, Sentences Reconsidered | Permalink | Comments (28) | TrackBack

Monday, March 25, 2013

"Pardons and the Theory of the 'Second Best'"

The title of this post is the title of this new paper by Chad Flanders now available via SSRN. Here is the abstract:

This paper explains and defends a “second-best” theory of pardons. Pardons are “second-best” in two ways.  First, pardons are second-best because they represent, in part, a failure of justice: the person convicted was not actually guilty, or he or she was punished too harshly, or the punishment no longer fits the crime.  In the familiar analogy, pardons act as a “safety valve” on a criminal justice system that doesn’t work as, ideally, it should.  Pardons, in the non-ideal world we live in, are sometimes necessary.

But pardons are also “second-best” in another way, because they can represent deviations from certain other values we hold dear in the criminal law: fairness, consistency, and non-arbitrariness.  Pardons, when they are given, can all too often reflect patterns of racial bias, favoritism, and sheer randomness, both when they are given too generously or not generously enough.  So we need to have a theory of how the pardoning power should be used, even when it is used to correct what are obvious injustices in the criminal justice system.

This paper both takes up the task both of showing how pardons are justified, but more importantly, also gives a theory on when they should be used. It introduces two constraints on the pardon power, one which constrains pardons when considered individually, and another which constrains pardons when we consider them as a whole. It is this latter ground that has been left mostly underdeveloped in the literature: we seem to know that pardons when given en masse can be controversial, but we lack adequate terms to explain why they might be morally problematic. This paper fills that gap in the literature, and in the process provides a general framework for analyzing when various “second-best” moves are permissible in reforming and correcting injustices in the application of the criminal law.

March 25, 2013 in Clemency and Pardons, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Thursday, March 14, 2013

As Maryland takes another step toward capital repeal, limbo looms for five on state's death row

03_13a_DeathPenaltyFullVizAs reported in this AP article, the Maryland House "on Wednesday night advanced legislation to repeal the death penalty in Maryland after delegates rejected nearly 20 amendments, mostly from Republicans, aimed at keeping capital punishment for heinous crime." Here is more:

The Senate approved the measure earlier this month. A final House vote on the legislation, a top legislative priority of Democratic Gov. Martin O’Malley, could come as soon as Friday.

Amendments defeated on the House floor would have maintained the death penalty in some cases, including acts of terrorism, for mass murderers, lawbreakers who kill police officers or firemen in the line of duty and for kidnappers who kill.   “We can’t get into the business of this crime is worse than another,” said Delegate Samuel Rosenberg, a Baltimore City Democrat who supports the measure.  “These are terrible cases, but the death penalty is not the way to go.”

With the repeal of the death penalty now nearly a done deal, the next interesting legal and policy question concerns what should become of the five murderers current on Maryland's death row.  That issue is the subject of this lengthy new Stateline article, headlined "Death Row Inmates In Limbo As Maryland Moves to Repeal Death Penalty." Here are excerpts:

After a years-long fight, Maryland is about to become the sixth state in as many years to repeal its death penalty. Gov. Martin O’Malley, who championed the repeal, says he will sign it into law. But the Democrat still faces a tough choice — what to do about the five remaining Maryland inmates on death row? The repeal bill makes no provision for the five men sentenced to death, which even after a repeal of the death penalty could legally still be executed, should they exhaust all of their appeals.

In 2011, Illinois Gov. Pat Quinn, a Democrat, commuted the sentences of all 15 death row inmates before signing a bill repealing the death penalty in his state. New Jersey Gov. Jon Corzine, also a Democrat, did the same for eight death row inmates before signing a death penalty repeal bill in 2007. But governors in Connecticut and New Mexico left their states’ death row inmates subject to the death penalty when they signed their states’ repeal bills.

In Maryland, the governor has virtually unlimited power to pardon or commute sentences, and many death penalty opponents have encouraged O’Malley to simply clear death row if he is morally opposed to the death penalty. The Maryland Senate added an amendment to the repeal bill expressing its will that all death row inmates have their sentences commuted to life in prison without parole. The executive clemency decision, however, is solely up to O’Malley.

O’Malley has three clemency options, says spokesperson Raquel Guillory: He can immediately commute all five death sentences, commute each sentence on a case by case basis, or do nothing. He is not expected to make a decision until after the legislative session ends in April.

O’Malley has been notably reluctant to commute any sentences or grant pardons during his seven-year tenure. He’s only granted 50 pardons out of 690 requests as of last December, according to The Washington Post. And he’s only commuted two sentences, one where an accomplice served three times as long as the shooter, and another where a witness recanted testimony that sent a man to prison for nearly 30 years.

O’Malley’s clemency record is in line with his overall stance of being tough on crime, stemming from his background as a Baltimore prosecutor. The majority of governors have broad, nearly unrestricted clemency power to pardon or commute sentences as they see fit. But few exercise that power regularly.

As Stateline has previously reported, governors contemplating higher office—and O’Malley is contemplating a presidential bid in 2016—have been wary of using their executive clemency powers. Well-publicized missteps by Govs. Michael Dukakis of Massachusetts, Mike Huckabee of Arkansas and Tim Pawlenty of Minnesota allowed their opponents to paint them as soft on crime.

Even though O’Malley’s clemency record is less than generous, his support for the repeal of the death penalty has brought him national attention. He’s not the only governor who’s opposed the death penalty, but he’s made it a central part of his political agenda and sold it as a public safety issue, says Shari Silberstein, executive director of Equal Justice USA, which advocates for the abolition of the death penalty.

“I think his actions are symbolic of changing national conversation surrounding the death penalty,” says Silberstein. “It’s not the third rail of politics anymore, and politicians aren’t going to have to ask themselves if they should take the risk (to oppose the death penalty) because it’s not a risk anymore. Politicians are finding that they’re not being hurt in polls.”...

Legislators in Colorado, Oregon, Kansas and Delaware are currently debating repealing the death penalty, and legislators in Montana gave a hearing to a death penalty repeal bill earlier this session. Colorado Gov. John Hickenlooper, a Democrat, is facing pressure to commute the sentences of two death row inmates nearing execution, and his commitment to the death penalty is wavering....

If O’Malley does not commute the sentences of Maryland’s death row inmates, he’ll be following the examples of Connecticut and New Mexico. But in those states, the remaining death row inmates have filed multiple appeals based on the legislature’s decision that death is no longer an acceptable sentence. The litigation stemming from the confusion could last years and there has been no ruling concerning all remaining death row inmates in either state.

March 14, 2013 in Clemency and Pardons, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (15) | TrackBack

Wednesday, March 13, 2013

"Deporting the Pardoned"

The title of this post is the title of this notable paper by Jason Alexis Cade.  As the paper's abstract reveals, this work touches on various issues that ought to be of interest to a various sentencing fans:

Federal immigration laws make noncitizens deportable on the basis of state criminal convictions.  Historically, Congress implemented this scheme in ways that respected the states’ sovereignty over their criminal laws.  As more recent federal laws have been interpreted, however, a state’s decision to pardon, expunge, or otherwise set-aside a conviction under state law will often have no effect on the federal government’s determination to use that conviction as a basis for deportation.  While scholars have shown significant interest in state and local laws regulating immigrants, few have considered the federalism implications of federal rules that ignore a state’s authority to determine the continuing validity of its own convictions.

This Article contends that limitations on the preclusive effect of pardons, expungements, appeals, and similar post-conviction processes undermine sovereign interests in maintaining the integrity of the criminal justice system, calibrating justice, fostering rehabilitation, and deciding where to allocate resources.  In light of the interests at stake, Congress should be required to clearly express its intent to override pardons and related state post-conviction procedures.  A federalism-based clear statement rule for statutory provisions that restrict generally applicable criminal processes would not constrain Congress’s power to set immigration policy, because Congress remains free to make its intent clear in the statute. But the rule would ensure that Congress, rather than an administrative agency, has made the deliberative choice to upset the usual constitutional balance of federal and state power.

March 13, 2013 in Clemency and Pardons, Offender Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5) | TrackBack

Sunday, March 10, 2013

Fascinating fight over death penalty realities and clemency rights gets to Oregon Supreme Court

As reported in this new local article, headlined "Oregon Supreme Court to hear Haugen death penalty case," this top court in Oregon is due to hear arguments this week in a very interesting case concerning both clemency rights and application of the death penalty. Here are the basics:

The next step in Gary Haugen’s request to be executed is up to the Oregon Supreme Court. When the seven justices hear oral arguments Thursday, they will consider only whether the twice-convicted murderer can legally reject an unconditional reprieve issued by Gov. John Kitzhaber on Nov. 22, 2011. Kitzhaber’s action blocked the execution two weeks before it was scheduled to take place.

Haugen won the first round Aug. 3 in Marion County Circuit Court, where visiting Judge Timothy Alexander ruled that Haugen could refuse the reprieve. The Supreme Court accepted Kitzhaber’s appeal directly.

In written arguments filed with the court, Kitzhaber said Haugen has no legal right to reject a reprieve based on three main reasons: the text of the Oregon Constitution; the historical circumstances of clemency; and previous court decisions about the governor’s clemency powers.

Haugen argued through his lawyer that Kitzhaber’s action was not a true reprieve, previous court decisions support his right to refuse it, and a reprieve deprives him of federal constitutional rights such as a ban on cruel and unusual punishment.

The newspaper account of this upcoming argument provides a brief review of the parties' arguments, as well as links to some brief. Included therein is a brief with a link to a filing by the ACLU. Upon seeing the link, I was unsure which side the ACLU should and would support, given my understanding that the ACLU opposes the death penalty but also supports a person's right to die. I will leave it to readers to guess (or figure out) which commitment proved more important to the ACLU in this notable setting.

March 10, 2013 in Clemency and Pardons, Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (11) | TrackBack

Wednesday, March 06, 2013

Notable commentary as Catholic University’s Columbus School of Law launches new clemency "partnership"

Copy%20of%20EhrlichI just came across this law school website account of an event last month launching an important new law school project in the Washington DC area. The discussion carries the heading "Law School to Host Clemency and Pardons Clinic in Collaboration with Former Governor Robert L. Ehrlich, Jr.," and here are some of the notable details from the launch event:

The Catholic University of America’s Columbus School of Law has been selected as the institutional home for “The CUA Law/Ehrlich Partnership on Clemency," among the country’s first law school-based clinics devoted to the research and study of executive clemency and the power of pardon.

The official announcement was made on at the National Press Club on Feb. 20 by Robert L. Ehrlich, Jr (above), who served as Maryland’s 60th governor from 2003-2007 and whose tenure was distinguished by the time he spent personally reviewing requests for pardons from convicted criminals.

Currently a senior counsel at King and Spaulding (which announced a $5,000 donation to the new partnership with another to follow next year), Ehrlich characterized the clemency project with the law school as a vital tool to educate and remind state chief executives of the vast power they possess but too often use infrequently.

“This is part of the job. But, your political courage quotient will be tested. It’s a strange issue, and neither Democrats nor Republicans seem to care very much about it,” Ehrlich said.

Under the auspices of its already established Innocence Project, the Columbus School of Law will expand the scope of its students’ current duties to include the preparation of pardon applications starting next August.

“We will also conduct a training program for newly elected state executives or their chiefs of staff, and we will provide a venue for educational and advocacy programs on executive clemency,” said law school Dean Daniel Attridge. “This is a splendid example of how our cooperative efforts can directly benefit our institution, our students, and our mission to serve the public.”

The announcement of the clemency clinic partnership came against the larger backdrop of a CUA Law sponsored symposium on the subject: “Smart on Crime: A New Era of Bipartisan Criminal Justice Reform,” that invited leading experts to dissect the shortcomings of the current system and suggest improvements.

Panelist Edwin Meese III, who served as served as the 75th Attorney General of the United States under President Reagan and currently holds a chair in public policy at The Heritage Foundation, said that California began improving its pardon policies dramatically back in the 1960s when Reagan served as governor.  But a pardon can rest on a convict’s behavior behind bars, and Meese said that brutal prison conditions can make it hard to be a model inmate....

There would be much less of a need for gubernatorial pardons in the first place if fewer behaviors were criminalized, said Rep. Bobby Scott, (D-VA). Mandatory minimum sentences for non-violent drug offenses, he said, are a big part of the problem. “These sentences discriminate against minorities and violate common sense,” said Scott. “We can reduce crime or we can play politics. Unfortunately, we can’t do both.”

Margaret Love, who served as the U.S. Pardon Attorney between 1990 and 1997 and focuses her private practice on the issue today, could not understand the reluctance of many politicians who hold the power of pardon to use it. “It should be one of the happiest duties of an executive. It should be easy,” said Love, who expressed surprise and disappointment in President Obama’s record so far of issuing just 22 presidential pardons, the lowest total to date in American history.

Three follow-up comments concerning this exciting new clemency intitiative:

1. I hope this new project might develop some sore of web presence, as I continue to believe there should be a lot more new media coverage and discussion of modern clemency issues.

2. I suspect it was just a coincidence that only a few days after this event, President Obama granted a significant and somewhat unexpected new batch of pardons (details here). Nevertheless, if I was in some way involved with this new clemency project, I would be dang sure to at least speculate that the timing of project's launch and these new pardon grants might have been more than mere coincidence.

3. Though never eager to look a gift horse in the mouth, I am a bit stunned that the massive King and Spaulding law firm only donated a measly $5,000 to this important endeavour.  A quick bit of research reveals that K&S has over 300 partners who with average profits/partner recently approaching $2,000,000/year.  If merely 1% of all the K&S partners had been willing to kick in just only 0.33% of their yearly profits to this important endeavor, this project would have gotten a donation twice as large.  I do not mean to be overly critical of K&S here, but I do mean to highlight how hard it often can be to get even those folks with very deep pockets to be willing to give significant sums to any criminal justice initiative even when it is headed by a former Republican Governor.

March 6, 2013 in Clemency and Pardons, Who Sentences? | Permalink | Comments (2) | TrackBack

Saturday, March 02, 2013

Obama grants 17 pardons ... could this signal a new (second term) approach to clemency?

As reported in this Washington Post article, headlined "Obama grants pardons to 17 people for nonviolent offenses," President Obama late yesterday rediscovered his clemency powers. Here are the basics:

President Obama pardoned 17 people for nonviolent offenses Friday, a rare move that nearly doubled the number of pardons he has granted since taking office just over four years ago.  The individuals came from 13 states and were sentenced years if not decades ago for such minor federal offenses as falsely altering a U.S. money order, possessing an unregistered firearm, embezzling bank funds and acquiring food stamps without authorization....

The pardons, the first of Obama’s second term, are significant because this president so infrequently grants clemency.

Before Friday, Obama had granted 22 pardons; he had received petitions from 1,333 individuals, according to the data maintained by the Department of Justice’s Office of the Pardon Attorney. He granted his first batch of pardons, totaling nine, in December 2010, and granted eight in May 2011 and five in November 2011.

By contrast, former president George W. Bush received 2,498 petitions and granted 189 pardons, while former president Bill Clinton received 2,001 petitions and granted 396 pardons, according to the data.

Dafna Linzer of ProPublica, a nonprofit investigative news organization, reported last year that Obama has granted clemency at a lower rate than any modern president. Among the hundreds of people who have been denied pardons by Obama, Linzer reported, are a former brothel manager who helped the FBI bust a national prostitution ring and a retired sheriff who inadvertently helped a money launderer buy land.

Obama has come under criticism for not using more frequently his constitutional powers to pardon people for federal crimes. Some academics argue that the president could have more impact by pardoning younger people with more recent crimes.

“He’s not only being extremely stingy, but he’s giving pardons to people who arguably need them the very least,” said P.S. Ruckman Jr., a political scientist at Rock Valley College in Illinois who blogs about presidential pardons. “The people who need pardons are people in their 30s and 40s and 50s who are trying to get jobs and raise families.”

Jeffrey Crouch, a political science professor at American University, said the pardons announced Friday mirror those Obama granted in his first term. “The president’s pattern has been pretty much to go for the safe route — look for older offenses, nonviolent offenses — and using the pardon power in some cases just enough to not be criticized for not using it at all,” said Crouch, author of “The Presidential Pardon Power.”

The White House on Friday offered no information about why Obama selected these 17 individuals for pardons other than that he believes they will lead productive lives. “As he has in past years, the president granted these individuals clemency because they have demonstrated genuine remorse and a strong commitment to being law-abiding, productive citizens and active members of their communities,” White House spokesman Matt Lehrich said.

Of course, the Pardon Power the place to go for all the pardon news and analysis via P.S. Ruckman, and this new post provides some more context for these latest grants:

Today, President Obama granted 17 pardons, the largest batch of pardons granted in his presidency.  This brings his pardon total to 39 (22 in the first term and 17 in the second). He has also granted a single commutation of sentence (first term).  According to the Office of the Pardon Attorney, Obama has received at least 8,000 clemency applications to date.

Recall, President Obama waited a whopping 682 days before  granting the first pardon of his first term -- the longest delay for any president in American history, save George W. Bush. For Obama's second term, the wait has been a mere 39 days!

Regular readers know I have been very critical of President Obama for his failure to make any significant use of his clemency powers. Consequently, I am pleased to see any Presidential action on this front. But, as the title of this post suggests, what really matters is whether these initial pardons might be a sign of a lot more clemency action to come in months and years ahead.

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

March 2, 2013 in Clemency and Pardons, Offender Characteristics, Offense Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Saturday, February 09, 2013

Highlighting the challenges of pardons and politics for state governors

PardonModels_infographic_finalThe folks at Stateline have this terrific new article about state pardon laws and practices titled "Governors Balance Pardons With Politics." Here are excerpts:

This week, Arkansas Governor Mike Beebe announced his intent to pardon Herman T. Warren, who had been convicted of possessing marijuana and drug paraphernalia in 2003.  Warren had completed his sentence, two years on probation, and paid all the fines associated with his conviction.

Beebe’s pardon, which will be issued following a 30-day public comment period, means that Warren will be eligible to serve on a jury and apply to own a gun, and if anyone ever questions Warren about his conviction, he can show the pardon as proof that he’s turned his life around. It’s almost as if Warren’s conviction never happened — although his record won’t be formally cleared, he will no longer experience any official consequences of his conviction.

Pardons like this one are relatively common in Arkansas. (See Stateline infographic [reprinted here].)  In his six-year tenure, Governor Beebe has pardoned 529 individuals, usually issuing a few pardons each month to minor drug offenders convicted more than 10 years ago. The process is a routine part of Beebe’s job, and he’s “constantly reviewing clemency requests,” says spokesman Matt DeCample.

But Beebe’s pardoning practices are increasingly rare among governors, who fear political backlash if a pardoned criminal should reoffend.  Clemency decisions have proved costly for recent Republican presidential candidates, including Beebe’s Arkansas predecessor, Mike Huckabee, who faced tough questions after Maurice Clemmons, a man whose sentence Huckabee commuted, was linked to the murder of four police officers near Tacoma, Washington.

Many current governors in the national spotlight, such as Wisconsin’s Scott Walker, New York’s Andrew Cuomo, and Massachusetts’ Deval Patrick, have granted no pardons at all. And governors don’t have an example of pardon leniency to follow in the White House either — President Obama granted just 22 pardons in his first term, the lowest number of any president since George Washington.  These days, many governors are more inclined to pardon a turkey for Thanksgiving or a pig for a bacon festival, than to grant restored rights to a convicted criminal.

The reasons are not always personal. In six states, pardons are entirely the province of an independent commission.  In 20 states, the governor can make the decision, but must consult with a board of one kind or another.  In Rhode Island, the Senate must approve every pardon application before it can be granted. Needless to say, very few offenders receive pardons in Rhode Island.

But in much of the country, the power to pardon remains a gubernatorial prerogative, one of the broadest executive powers afforded to governors in a state’s constitution.  And the pardon decision rarely follows any ideological trend; it’s largely subject to the individual preferences of the executive and the customs of the state, says Margaret Colgate Love, who served as U.S. pardon attorney from 1990 to 1997.

By and large, the reason for the drop in the number of governors’ pardons since the 1960s is political, argues P.S. Ruckman, a professor of political science at Rock Valley College in Rockford, Illinois, and author of the blog, Pardon Power.  “Some governors think, ‘why should I do this? It won’t benefit me politically and it might hurt me.’  There’s some very crass political calculating going on,” says Ruckman, “and people suffer because of it.”

“Particularly when a governor does it alone,” says Love, “pardoning is a very personal thing, and the reasons for doing it can vary.  To me, it is a measure of character. In some states, like Arkansas and Nebraska and Connecticut, there is a culture and expectation that there will be pardons. But there is always a political element because popular opinion is the main brake on the power.”...

Criminal convictions come with a range of collateral consequences, including the loss of voting rights, right to serve on a jury, hold public office or obtain a gun permit.  A pardon from the governor can restore those rights, and a handful of governors, including Democrats Beebe in Arkansas and Tim Kaine in Virginia and Republican Robert Ehrlich in Maryland, have restored the rights of hundreds of former offenders.

Both pardons and commutations are often made at the end of a governor’s tenure when he is not facing reelection and the political consequences for a pardoning decision won’t be as severe.  “You really see what they believe when they’re a lame duck,” says Rachel Barkow, a law professor at New York University.

It’s these end-of-term grants that are often the most infamous.  For example, just hours before Governor Arnold Schwarzenegger left the California governor’s mansion in 2011, he shortened the sentence of a political ally’s son from 16 to seven years, which angered the victim’s family and the public.  The victim’s family sued Schwarzenegger for not notifying them in advance of the commutation, but a court found that while the last-minute commutation was “repugnant,” it was not illegal.

One year later, as Haley Barbour was leaving office as Mississippi’s governor, Barbour pardoned nearly 200 offenders, including five convicted murderers, as a display of Christian principles of forgiveness, he said at the time.  The last-minute pardons set off a national uproar and the state’s attorney general argued that Barbour had violated the state constitution by not publishing a notice of his intent to pardon the offenders.  The Mississippi Supreme Court upheld Barbour’s right to pardon the offenders; however, incoming Governor Phil Bryant vowed to severely limit the number of pardons he would grant.

While the overall trends show pardons on the downturn, there are some current exceptions.  Illinois Governor Pat Quinn has pardoned over 800 people since taking office in 2009, clearing a backlog of more than 2,500 pardon applications left untouched by previous Governor Rod Blagojevich.  California Governor Jerry Brown, who has noted his commitment to rehabilitation, has issued 149 pardons since taking office in 2011, reversing a nearly 20-year trend of minimal pardons from California governors.

February 9, 2013 in Clemency and Pardons, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Thursday, January 24, 2013

New ACS issue brief on the the federal pardon process

BookletI just learned that the American Constitution Society (ACS) is putting out series of new Issue Briefs, under the heading “Toward a More Perfect Union: A Progressive Blueprint for the Second Term,” which seeks to offer ideas and proposals "to advance a vision consistent with the progressive themes President Obama raised in his second Inaugural Address."  And I am pleased to see that one of the initial publications in this series is authored by Margaret Colgate Love and is available at this link.  Here is how ACS describes this Issue Brief at this page:

ACS is pleased to distribute “Reinvigorating the Federal Pardon Process: What the President Can Learn from the States” by Margaret Colgate Love of the Law Office of Margaret Love and formerly of the Office of the U.S. Pardon Attorney.

The presidential exercise of the pardon power, or lack thereof, has been the subject of national conversation in recent months.   As Margaret Colgate Love describes in her Issue Brief, this much discussed, but not often used, executive power and process "has lost its vigor, its integrity, and its sense of purpose.”  The latest assessments of the federal pardon process suggest a process plagued by racial and class disparities, and in at least one case, misconduct on the part of the Pardon Attorney.

Rather than "live with a dysfunctional pardon process," Love identifies state pardon models that the President and federal justice system could adopt.  Highlighted for their “authority,” “accountability,” and "transparency," Love explains that these models are necessary responses to the "hard to understand and even harder to penetrate, operating in secret and accountable to no one" Justice Department Pardon Office.   According to Love, “there is not a single state whose pardon process is as poorly conceived and managed as the federal government’s.” The process must “evolve with the changing needs of the presidency and of the justice system,” Love concludes.

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

January 24, 2013 in Clemency and Pardons, Who Sentences? | Permalink | Comments (0) | TrackBack

Monday, January 21, 2013

Will Prez Obama's clemency record ever match his inaugural rhetoric?

Blogging four years ago during the last day in which a US President took the oath of office, I commented in this post about the tendency of chief executives to invoke great rhetoric and wax poetic about freedom and liberty in America despite our country's recent record of locking up a record number of persons in jails and prisons.  I also asked in this follow-up post on the same day whether it was too early to start demanding President Obama use his clemency power to live up to our country's traditional commitment to personal freedom and liberty. 

Sadly, as P.S. Ruckman effectively documents and highlights in this new post, President Obama's first-term record on the clemency front is at once disgraceful and disgusting:

Barack Obama's first term has come to an end and we are now ready to report that his four-years as president represent the least merciful term for any modern president (Democrat or Republican) and, quite possibly, the least merciful in the entire history of the United States (see footnote below).

This is, of course, an incredible distinction for a president who repeatedly notes that America is a place where people get "second chances," from a president who complained bitterly about overly-harsh sentences given to criminal defendants simply because they were African-American, and from a president who promised us "hope and change."

Not surprisingly, this ugly clemency record did not prevent President Obama from kicking off his secord term with more empty inaugural rhetoric about freedom and liberty, and I found these particular phrases from Obama's speech today especially notable:

We do not believe that in this country, freedom is reserved for the lucky, or happiness for the few....

[O]ur interests and our conscience compel us to act on behalf of those who long for freedom.   And we must be a source of hope to the poor, the sick, the marginalized, the victims of prejudice — not out of mere charity, but because peace in our time requires the constant advance of those principles that our common creed describes: tolerance and opportunity; human dignity and justice.

We, the people, declare today that the most evident of truths — that all of us are created equal — is the star that guides us still; just as it guided our forebears through Seneca Falls, and Selma, and Stonewall; just as it guided all those men and women, sung and unsung, who left footprints along this great Mall, to hear a preacher say that we cannot walk alone; to hear a King proclaim that our individual freedom is inextricably bound to the freedom of every soul on Earth.

As all students of mass incarceration know too well, a large number of persons locked in the cages of our nation's jails and prisons are "the poor, the sick, the marginalized, the victims of prejudice"; and the fact that they have committed crimes does not mean they do not "long for freedom," nor does it mean our nation and its peoples should no longer be compelled by our conscience to be a "source of hope" to them.  Indeed, as MLK said decades ago and as Prez Obama reminds us today, each and everyone one of us has "our individual freedom .. inextricably bound to the freedom of every soul on Earth" including those souls who have violated our criminal laws and now have their liberty curtailed.

Given his track record to date, I do not expect much change from President Obama on this important (but not politically popular) front.   But I will continue to have hope, not so much because I have much faith in this President's merciful heart, but because I do have great faith in this nation's merciful soul.

January 21, 2013 in Clemency and Pardons, Who Sentences? | Permalink | Comments (15) | TrackBack

Thursday, January 10, 2013

"Why Has Obama Pardoned So Few Prisoners?"

The title of this post is the headline of this new commentary by Sasha Abramsky which will appear in the January 28, 2013 issue of The Nation. (Hat tip: How Appealing.) The piece gives particular attention to the sad case of my former habeas client Weldon Angelos, and here are excerpts:

Six and a half years ago, I drove out to Lompoc federal penitentiary in the hills outside Santa Barbara to interview Weldon Angelos, a young man who had received the improbable sentence of fifty-five years without parole for selling marijuana, ostensibly while carrying a small pistol in an ankle holster.

A rap artist from Salt Lake City and friend to Napoleon and other eminences of the hip-hop world, Angelos had been ensnared by an informant in a series of undercover marijuana purchases that reeked of entrapment. What might have been a two-bit state pot case became a high-stakes federal case. When Angelos — who denied carrying a gun when dealing — refused to enter a guilty plea, the feds played hardball, piling more indictments onto the original charge.  In December 2003, more than a year after he had been arrested, Angelos was found guilty on several counts, though he was acquitted on others.  Because of mandatory minimum statutes linked to the firearms charges, the presiding judge — a George W. Bush appointee named Paul Cassell — was left with no discretion at sentencing. After asking the prosecuting and defense attorneys to advise him on the constitutionality of the sentence, a distraught Cassell handed down the fifty-five-year term, a punishment he called “unjust, cruel and even irrational.”  In his opinion, he urged then-President Bush to pardon the young father of three and right a clear judicial wrong.

Angelos was 23 when he was arrested.  He was in his mid-20s when I met him. It was such an obvious injustice that I thought the odds were pretty good he’d be out of prison by the time he was 30.  Surely one or another president would pardon him or commute his sentence, either reducing it or allowing him to be released on time served.

But today Angelos is in his early 30s and fast approaching his ten-year anniversary behind bars. Bush didn’t pardon him.  Neither has President Obama — despite earlier pleas on Angelos’s behalf from several ex-governors, dozens of ex–federal prosecutors and judges, and four US attorneys general; despite growing concerns over mandatory minimum sentences from members of Congress; despite the pledge by onetime Salt Lake City mayor and civil rights lawyer Rocky Anderson to “do anything I can to remedy this unbelievable injustice”; despite The Washington Post and other leading publications urging clemency; despite the fact that, at least rhetorically, the Obama administration has moved away from the sensational, fearmongering tactics of the drug war, and that drug czar Gil Kerlikowske doesn’t even like to talk about a “war on drugs”; despite the fact that in late 2012 Obama said the feds had “bigger fish to fry” than prosecuting marijuana users in states moving toward legalization; despite the fact that one state after another has rolled back its most draconian mandatory minimum sentences for small-time drug users and dealers....

So why hasn’t Obama done the right thing? Could it be that Angelos has just gotten lost in the shuffle? Possibly — but if that’s the reason, there would be evidence that Obama has used his pardon and commutation powers wisely in other cases. Unfortunately, that’s not true....

A president who talks the talk about more sensible, nuanced drug policy, and whose oratory frequently invokes what is best in the American political imagination, has shown himself remarkably reluctant to use one of the most important of presidential prerogatives—the power to right judicial wrongs. “This president,” says Anderson, “has been unbelievably timid and disinclined to do justice in cases that scream out for commutation.  There’s not a lot of moral or political fortitude in play.”...

In the long run, when it comes to preventing future unjust sentences like the one given Angelos, Congress and state legislatures should be the ones to roll back the excesses of the drug war.  And there’s no doubt that Obama, a constitutional law scholar, understands how much more powerful legislation is than the willful, even capricious, pardon function of the president. (After all, Clinton was excoriated for what appeared to be pardons issued in exchange for campaign and other contributions.  And Bush was heavily criticized for commuting the prison term of his disgraced adviser Lewis Libby.)  But when there’s a massive miscarriage of justice — as has happened all too often during the forty years of the “war on drugs” — the president’s ability to pardon or commute sentences is vital.

How does one tell Weldon Angelos’s kids that their father will not only never walk them to school but that he will never walk their children to school?  That if he survives fifty-five years in prison, he might get out just in time to walk his great-grandchildren to school. It’s unconscionable that such a sentence should stand.  If Angelos and other drug war prisoners with absurd sentences remain in prison through Obama’s second term, it will be a stain on the president’s legacy.

January 10, 2013 in Clemency and Pardons, Drug Offense Sentencing, Examples of "over-punishment", Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3) | TrackBack

Wednesday, January 09, 2013

"Barack the Unmerciful: Obama's amazingly stingy clemency record"

The title of this post is the headline of this new commentary by Jacob Sollum over at Reason.com. Here are excerpts:

Will Barack Obama go down in history as our least merciful president? With less than two weeks to go in his first term, this reputedly progressive and enlightened man has a strong shot at winning that dubious distinction.

December, a traditional season for presidential clemency, has come and gone, and still Obama has granted just one commutation (which shortens a prisoner’s sentence) and 22 pardons (which clear people’s records, typically after they've completed their sentences). Barring a last-minute flurry of clemency actions, his first-term record looks weaker than those of all but a few previous presidents.

Which of Obama’s predecessors managed to make less use of the clemency power during their first terms? According to numbers compiled by P.S. Ruckman Jr., a professor of political science at Rock Valley College in Rockville, Illinois, just three: George Washington, who probably did not have many clemency petitions to address during the first few years of the nation’s existence; William Henry Harrison, who died of pneumonia a month after taking office; and James Garfield, who was shot four months into his presidency and died that September.

With the exception of Washington's first term, then, Obama so far has been stingier with pardons and commutations than any other president, especially when you take into account the growth of the federal penal system during the last century, the elimination of parole, the proliferation of mandatory minimums, and the concomitant increase in petitions. This is a remarkable development for a man who proclaims that "life is all about second chances" and who has repeatedly described our criminal justice system as excessively harsh....

The one significant way in which Obama followed through on this rhetoric after being elected was by supporting 2010 legislation that shrank the irrational sentencing gap between crack cocaine and cocaine powder (although there was not much political risk in doing so, since the bill passed Congress almost unanimously). But the Fair Sentencing Act did not apply retroactively, and Obama has used commutation to help just one of the thousands of crack offenders serving mandatory minimums that nearly everyone now admits are unjust.

More generally, Obama has granted clemency petitions at a lower rate than all of his recent predecessors. The odds of winning a pardon from Obama so far are 1 in 59, compared to 1 in 2 under Richard Nixon, 1 in 3 under Gerald Ford and Jimmy Carter, 1 in 5 under Ronald Reagan, 1 in 10 under George H.W. Bush, 1 in 5 under Bill Clinton, and 1 in 13 under George W. Bush, per Ruckman's calculations. The odds for commutation are even longer: 1 in 6,631 under Obama, compared to probabilities under the seven preceding presidents ranging from 1 in 15 (Nixon) to 1 in 779 (Bush II).

As Obama embarks upon a second term, he deserves credit for this amazing accomplishment: He has made Richard Nixon look like a softie.

January 9, 2013 in Clemency and Pardons, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (9) | TrackBack

Monday, January 07, 2013

New York Times editorial assails Prez Obama's considerable clemency failings

The New York Times on Sunday published this editorial, headlined "The Quality of Mercy, Strained," which justifiably criticized President Obama for his dismal record on clemency. Regular reader have often heard such complaints from me, but this Times editorial effectively laments the current state of affairs after 2012 came and went without any clemency activity. And the piece makes the sound recommendation that Prez Obama take the clemency screening process out of the Department of Justice. I am pleased to reprint the full editorial here, in part because I agree with just about every word of it:

Barack Obama has rarely exercised presidential clemency to grant pardons and restore the civil rights of convicted criminals, a power that Abraham Lincoln, Franklin D. Roosevelt and other presidents used with dedication to correct injustices in the legal system.

Mr. Obama has pardoned only 22 people, fewer than any president since the modern era of pardons began in 1900. He has granted a pardon for 1 out of every 50 applicants, compared with 1 out of 33 for George W. Bush, 1 of 8 for Bill Clinton and 1 of 3 for Ronald Reagan.

In part, this has been a reaction to Presidents Clinton and Bush, both of whom compromised the pardon power with cronyism.  But the basic problem may be that Mr. Obama allowed himself to be crippled by the pardon process itself.  That process is managed by the Justice Department, which receives applications for clemency and makes recommendations to the White House.

Presumably, the president is willing to use acts of clemency to right the wrongs of the sentencing and judicial systems.  Yet the same cannot be said of the Justice Department, which has a prosecutorial mind-set.  It has undermined the process with huge backlogs and delays, and sometimes views pardons as an affront to federal efforts to fight crime.

Over the years, too, the process appears to have been tainted by racial bias.  As ProPublica documented in an analysis of Bush administration pardons, whites benefited from pardons four times as often as members of minority groups, even though blacks alone made up 38 percent of the federal prison population.  That report prompted a continuing Justice Department review by its Bureau of Justice Statistics.

In addition, the department’s pardon office is run by a Bush-appointed lawyer, Ronald L. Rodgers, whose professional conduct has been excoriated by the Justice Department’s own inspector general and referred to the deputy attorney general for possible administrative action.  In 2008, in transmitting a proposed pardon to the White House, Mr. Rodgers misrepresented the views of both the United States attorney who made the recommendation and the judge who seconded it.  The prisoner was denied a pardon.

One simple and immediate way for the president to reinvigorate the pardons process is to choose a person of stature and energy — say, a federal judge — to steward his administration’s pardon duties.  At the same time, he can end the department’s conflict of interest by replacing the pardons office with a new bipartisan commission under the White House’s aegis, giving it ample resources and real independence.

There is much good to be done, for the sake of justice as well as mercy.  Many federal inmates are serving egregiously long prison terms under mandatory minimum sentencing schemes.  Mr. Obama could use the pardon power to grant clemency to some long-term prisoners, until Congress reforms those laws.  He could also use that power to spare some federal offenders who have completed their prison terms from the legal restrictions that have kept them from getting jobs, places to live, business licenses and the chance to vote.

And he could address the unfortunate consequences of the nation’s unfair drug sentencing laws.  As of November 2011, there were at least 5,000 federal prisoners serving sentences for crack cocaine who deserved consideration for reduced sentences after a major reform of federal drug laws in 2010.  Those prisoners were sentenced when the penalty for crimes involving crack was far more severe than for crimes involving powder cocaine; in 2010, Congress reduced that difference, but the older sentences remained unchanged.

In 2003, Justice Anthony Kennedy observed that the pardon power had been “drained of its moral force.”  The Constitution grants the president alone the power to grant “pardons for offenses against the United States.”  It is time for Mr. Obama to vigorously exercise this august and singular responsibility.

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

January 7, 2013 in Clemency and Pardons, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Tuesday, December 18, 2012

"Head of Pardons Office Withheld Facts From White House in Key Case"

The title of this post is the headline of this new article by Dafna Linzer of ProPublica reporting on a notable report emerging from within the Justice Department concerning a notable controversy over a notable clemency case. Here is how the piece starts:

The head of the Justice Department's pardons office failed to accurately convey key information to the Bush White House regarding a federal inmate's plea for early release, the department's inspector general concluded in a report released Tuesday.

In overseeing the case of Clarence Aaron, the report found that Pardon Attorney Ronald L. Rodgers engaged in "conduct that fell substantially short of the high standards expected of Department of Justice employees and the duty he owed the President of the United States."

In a measure of the seriousness of the evidence against Rodgers, Inspector General Michael E. Horowitz referred his findings to the deputy attorney general for "a determination as to whether administrative action is appropriate."

Rodgers's advice to the president, the inspector general concluded, "was colored by his concern ... that the White House might grant Aaron clemency presently and his desire that this not happen." The report includes excerpts of emails Rodgers sent to another Justice Department official expressing hope that Aaron's request be denied.

"The details that emerge from this report about the way the Justice Department handled my client's case shock me," said Aaron's attorney, Margaret Love. "Justice is long overdue for Clarence Aaron, and I hope the president will take immediate action to free him."

The pardons office has come under increased scrutiny in the last year since ProPublica and The Washington Post began reporting on race disparity in the selection of pardon recipients and the handling of the Aaron case. ProPublica's study showed that white applicants have been nearly four times as likely as minorities to be pardoned. Aaron is African American....

Rodgers, a career civil servant and former military judge, took over the pardons office in 2008. Despite calls for his resignation, he has remained in office. Nearly all pardon recipients are preselected by Rodgers and he personally reviews each application from federal inmates seeking early release. Under his leadership, denial recommendations have soared while pardons have been rarely granted.

Justice spokesman Wyn Hornbuckle that Attorney General Eric H. Holder Jr. had full confidence in Rodgers. Hornbuckle declined to reiterate that support Tuesday. He said Holder's deputy, James Cole, was reviewing the inspector general's findings and that "further comment would not be appropriate." The Justice Department refused requests for interviews with Cole or Rodgers.

The White House relies almost exclusively on Rodgers in deciding whom the president will forgive or release from prison. Asked whether the president also has confidence in Rodgers's advice, the White House declined to comment.

Over at his Pardon Power blog, PS Ruckman has provided the full DOJ Inspector General report at this link and he provides highlights from the report in this post titled "SHOCK! O.I.G. Blasts U.S. Pardon Attorney."   The folks at FAMM also have this new press release in response to this report, which includes these passages:

FAMM President Julie Stewart today said she felt “maddened but validated” by a report confirming serious misconduct by the Office of the Pardon Attorney (OPA) in its handling of the clemency request of federal prisoner Clarence Aaron, a first-time, nonviolent drug offender serving life without parole....

Says Stewart, "The report confirms what thousands of clemency denials imply: the Office of the Pardon Attorney has a 'just say no' attitude when it comes to clemency requests, no matter how deserving the prisoner or how unjust the sentence.  That kind of culture doesn’t serve the interests of justice, the president, or the public.  Prisoners grow, change, and deserve second chances.  But they’ll never get them unless the president reforms the pardon attorney’s office and ensures that everyone gets a fair shake."

December 18, 2012 in Clemency and Pardons, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (10) | TrackBack

Monday, December 17, 2012

Following board's recommendation, Ohio Gov Kasich commutes yet another death sentence (avoiding any weighty execution concerns)

Moving swiftly and efficiently after receiving a (split) recommendation from the Ohio Adult Parole Authority late Friday (details here), today Ohio Gov John Kasich commutted the death sentence of convicted murderer Ronald Post to life in prison without the possibility of parole. This official statement released by the Gov briefly explains why:

"Regardless of the heinous nature of their crime, a criminal defendant is entitled to an effective defense, especially in a death penalty case.  The Parole Board’s conclusion is that Ronald Post did not come close to receiving such a defense.  After my own careful review, I agree.  Therefore I am ordering that he spend the rest of his life in prison with no possibility of ever getting out.  This decision should not be viewed by anyone as diminishing this awful crime or the pain it has caused."

Given Gov Kasich's record in using his clemency authority, I am not too surprised by the substance of this decision (though I am a bit surprised it came down so quickly).  This local story about the decision reports that, unsurprisingly, "attorneys for Post said they were 'very pleased' by Kasich's decision."  And this AP story highlights that, via this decision, Ohio has now "sidestepped a decision about whether a condemned inmate was too fat to be humanely executed."

By my count, Kasich has now granted commutations to four death row defendants on their way to execution in less than two years as Ohio's Governor.  Disregarding a few notable grants of mass clemency by a few governors in a few states to clear death row, Gov Kasich appears to be on pace to set a modern record for the most individual capital clemency grants in a single term by a single Governor (based on modern capital clemency data reported here via the Death Penalty Information Center).

Related posts about Post's case and Gov Kasich's clemency record:

December 17, 2012 in Clemency and Pardons, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Saturday, December 15, 2012

Split Ohio Parole Board recommends capital clemency based on attorneys failings

As reported in this local AP article, which is headlined "Divided parole board backs clemency in killing: Past lawyers’ errors cited; Kasich will decide on execution," the Ohio Adult Parole Authority issues a notable clemency recommendation to Ohio's Governor for the next condemned killer scheduled to executed next month.   Here are the basics:

Gov. John Kasich must decide in about a month whether to spare a condemned inmate who weighs 450 pounds, and whether the inmate’s health should be part of his decision. The state parole board recommended mercy for Ronald Post yesterday based on claims raising doubts about his legal representation, not because he says he’s so fat he can’t be humanely executed.

The board rejected arguments made by Post’s attorneys that he deserves mercy because of lingering doubts about his “legal and moral guilt” in a woman’s death, but it said it couldn’t ignore perceived missteps by his lawyers.

The board’s recommendation, by a vote of 5-3, goes to Kasich, who has the final say. Post is scheduled to die on Jan. 16 for killing Elyria motel clerk Helen Vantz in a 1983 robbery.

“Post took Vantz’s life, devastating the lives of her loved ones in the process,” the board said.  But it also said a majority of its members agreed that his sentence should be commuted to life in prison without chance of parole because of omissions, missed opportunities and questionable decisions made by his previous attorneys and because that legal representation didn’t meet expectations for a death-penalty case.

Post never raised his weight issue with the board but instead is arguing in federal court on Monday that he would suffer “a torturous and lingering death” as executioners tried to find a vein or use a backup method where lethal drugs are injected directly into muscle.

Kasich can consider anything he wants, regardless of court rulings or whether a claim — in this case Post’s weight — was made as part of the clemency petition, said Dan Kobil, a Capital University law professor and expert on clemency....

Post’s current attorneys said the parole board’s recommendation pleased them. “In the nearly 30 years since his case began, Ronald Post has too often been failed by the attorneys assigned to represent him, beginning at his trial,” public defenders Joe Wilhelm and Rachel Troutman said in a statement.

Vantz’s sons, William and Michael, have said they believe Post is guilty.  William Vantz characterized Post’s obesity claim as “another way for a coward to try and get out of what debt he owes to society.”... The dissenting parole-board members said it’s clear that Post killed Vantz and that questionable moves by his attorneys don’t outweigh the circumstances of the case.

Doubt about Post’s guilt lingers because of the involvement of two other men in the shooting, Post’s attorneys argue.  Post pleaded no contest to the crime on the advice of his attorney in expectation of a life sentence, they said.  Even after his plea, he told a psychologist “he was not a murderer,” the lawyers said.

The full clemency report released yesterday by the Ohio Adult Parole Authority is available at this link. The split nature of the board's ruling provides a ready justification for any type of decision coming from Gov. Kasich, who has already commuted three death sentences to LWOP during his two years as governor to date (while also having presided over eight executions).  Governor Kasich's track record suggests he takes capital clemency decision-making very seriously, and he will have a lot of factors to chew on in this particular case.  

With a focus only politics and practicalities, I probably would be inclined to urge the Governor to commute Post's sentence to LWOP sometime before the end of this month just to make this ugly capital case go away.  The issues concerning Post's weight and the execution process ensure that this case will get (too) much attention and be subject to much litigation in the weeks leading up to the mid-January execution date.  And, with a lingering set of innocence claims and now a recommendation of clemency based on lousy lawyering, it would be easy and reasonable to justify a commutation because of the questions surrounding the fairness and accuracy of the process which led Post to be sentenced to death.  And a communitation here would likely garner more praise from Gov. Kasich's usual critics than criticisms from his usual allies.

That all said, if one's vision of retributive capital justice necessarily ecliples these kinds of practical and political concerning, then a denial of capital clemency here become an easier decision.  Because I rarely have strong retributive instinct here (or elsewhere), I tend to see these issues in more pragmatic and procedural terms.  But I certainly can understand and respect how Gov. Kasich and others might have a much different perspective.

December 15, 2012 in Clemency and Pardons, Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (15) | TrackBack

Sunday, December 09, 2012

"Clemency: Old Problems and New Solutions"

The title of this post is the title of this lunchtime event sponsored by The Heritage Foundation in DC on Mondat December 10, 2012.  Here is the description:

Clemency, Alexander Hamilton said, “is an act of grace and humanity.” While President Obama has, at least so far, granted clemency only 22 times, other presidents, both Democrat and Republican, have been far more generous.  President George W. Bush, for example, pardoned, commuted or rescinded the convictions of 200 people, and President Bill Clinton did the same for 459 people.  President Jimmy Carter granted clemency 566 times during his one term in office, although that is far from the record, a distinction which belongs to President Franklin Roosevelt who granted clemency 3,687 times.  The Christmas season, a traditional time for presidential forgiveness, is a good time to re-examine how well the clemency process is working.

Join us for a discussion with a distinguished panel of bipartisan experts who will explore whether and how the clemency process has deviated from its proper, traditional function. Our panelists will also consider how to make pardons, as Chief Justice John Marshall said, “an act of grace, proceeding from the power entrusted with the execution of the laws, which exempts the individual, on whom it is bestowed, from the punishment the law inflicts for a crime he has committed.”

The event is to be moderated by Paul Rosenzweig, and here is the impressive group of speakers:

December 9, 2012 in Clemency and Pardons, Who Sentences? | Permalink | Comments (2) | TrackBack

Wednesday, November 21, 2012

"Pardon people, not turkeys: Under President Obama, the odds of clemency or commutation are shamefully slim"

The title of this post is the headline and subheading of this recent commentary by Professor Mark Osler, which echoes my own frustrated reaction to today's scheduled holiday symbolism at the White House. Here are excerpts from the commentary:

While the president has been a regular dispenser of clemency to fowl, he has not been so generous to humans.  It is time for that disjuncture to end.

As ProPublica journalist Dafna Linzer pointed out earlier this month, President Obama has granted clemency more rarely than any modern president.  This is particularly striking when considering commutations, or the power to lessen a sentence while maintaining the underlying conviction (a pardon wipes out the conviction). According to Linzer's calculations, "under Reagan and Clinton, applicants for commutations had a 1 in 100 chance of success. Under George W. Bush, that fell to a little less than 1 in 1,000. Under Obama, an applicant's chance is slightly less than 1 in 5,000."

The founding fathers did not intend for the pardon power to fall into such disuse. As the framers made clear, this vestigial power of kings is rooted in policy concerns that ring very true today.  Alexander Hamilton, in Federalist 74, argued that "the criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel."

Our federal system of criminal law has, of late, been "too sanguinary and cruel." For example, thousands of federal prisoners still languish under long sentences doled out under the now-amended 100-to-1 ratio between powder and crack cocaine that was built into the federal statutes and sentencing guidelines.  That ratio has been actively rejected by all three branches of government, but the only avenue to relief for those prisoners is commutation.  President Obama should look to the approach President Ford employed for draft evaders in 1974: A mass commutation pursuant to a process created to provide careful review of each case.

At the individual level, there are strikingly strong petitions for clemency currently before the president.  Since we started the nation's first law school clinic focused on federal commutations here at the University of St. Thomas, we have been deluged with letters asking for help.  One was from Weldon Angelos, who was sentenced to 55 years in prison for three small marijuana infractions and the possession of firearms that were neither used nor brandished.  He had only one prior conviction, stemming from a juvenile court charge for gun possession.

The Angelos case grew out of a perversion of mandatory minimum sentences embedded in federal statute and the actions of overaggressive prosecutors in Utah.  The result was so unfair that the sentencing judge, George W. Bush appointee Paul Cassell, pled for a presidential commutation of the sentence on the very pages of the sentencing opinion, saying that the 55-year term of imprisonment he was forced by statute to issue was "unjust, cruel, and even irrational."  Cassell substantiated this by pointing out the types of crimes that would have received a much shorter sentence: hijacking planes, raping children and murder....

For too long, we have filled our prisons with similar minor-league players in the drug game. It might make sense if this had solved a problem, but it hasn't.  The billions spent have not bought success at reducing drug use in this country.

A step in the right direction would be to use the pardon power to release those who present the strongest cases and those sentenced under statutes we have now seen fit to amend.  In those cases, clemency is more justice than mercy.  Instead of a photo op with a turkey, President Obama should begin a Thanksgiving tradition that reaches back to our true origins and our best values.

November 21, 2012 in Clemency and Pardons, Criminal justice in the Obama Administration, Sentences Reconsidered, Who Sentences? | Permalink | Comments (18) | TrackBack

Friday, November 09, 2012

Does Prez Obama's re-election make broader use of clemency power more or less likely?

The question in the title of this post reflect my nagging concern that President Obama, now that he has four more years in his current job and thus now more reasons to avoid using his political capital on criminal justice issues, will not begin to use his clemency powers more robustly anytime soon.  As regular readers know, Prez Obama has been historically stingy in his use of his clemency powers during his first term (details here and here).  But, with a re-election vote always on the horizon during his first term, the disinclination to risk getting political flack from the tough-on-crime crowd perhaps provided an understandable (if not justifiable) reason for such little use of this historically important and constitutionally significant presidential power.

Now, of course, Prez Obama no longer has to think about his own re-election.  Nevertheless, I fear that the desuetude marking his first-term treatment of the clemency power could become a habit. Had Obama lost his re-election bid, he would have only two months to complete his presidential legacy and a spate of clemency grants might be anticipated to be part of his finishing act. But now he has an extra four years and lots of other political and practical concerns with a second term approaching; it seems quite possible (and I fear likely) that clemency grants (as well as broader and much needed clemency reform) will now remain a back-burner matter for this President. 

I hope I am wrong, and perhaps commentors can give me reasons to not feel too pessimistic on this front.

Related recent posts concerning federal clemency practices:

November 9, 2012 in Clemency and Pardons, Who Sentences? | Permalink | Comments (4) | TrackBack

Friday, November 02, 2012

"Obama Has Granted Clemency More Rarely Than Any Modern President"

The title of this post is the headline of this story by Dafna Linzer of ProPublica, which tells a tale familiar to regular readers of this blog (and a story which I hope and tentatively predict will change after next week). Here is how the lengthy piece gets started:

A former brothel manager who helped the FBI bust a national prostitution ring. A retired sheriff who inadvertently helped a money launderer buy land.  A young woman who mailed ecstasy tablets for a drug-dealing boyfriend, then worked with investigators to bring him down.  All of them and hundreds more were denied pardons by President Obama, who has granted clemency at a lower rate than any modern president, a ProPublica review of pardons data shows.

The Constitution gives the president unique power to forgive individuals for federal offenses. While pardons do not wipe away convictions, they can restore a person's full rights to vote, possess firearms and obtain business licenses, as well as remove barriers to certain career opportunities and adoptions.  For many applicants, a pardon is simply an opportunity for a fresh start.

But Obama has parceled out forgiveness far more rarely than his recent predecessors, pardoning just 22 individuals while denying 1,019.  He has given pardons to roughly 1 of every 50 individuals whose applications were processed by the Justice Department.  At this point in his presidency, Ronald Reagan had pardoned 1 of every 3 such applicants. George H.W. Bush had pardoned 1 in 16.  Bill Clinton had pardoned 1 in 8.  George W. Bush had pardoned 1 in 33.

Obama also has been stingy with commutations, applications for early release by those still serving federal prison sentences.  Under Reagan and Clinton, applicants for commutations had a 1 in 100 chance of success.  Under George W. Bush, that fell to a little less than 1 in 1,000.  Under Obama, an applicant's chance is slightly less than 1 in 5,000.

Though the data above covers familiar ground for those who follow these matters, this press story goes on to report a lot of notable new information.  Here is a sample:

Several administration officials who agreed to discuss pardons on the condition of anonymity said the president pardoned nearly every person recommended by Rodgers for approval in his first two years in office, but that such applicants were few and far between.  While the number of applicants has increased in recent years, Obama — based on Rodgers' recommendations — is denying more people more swiftly than any of his recent predecessors, the data shows....

Currently, two government officials said, there are about a dozen positive recommendations and hundreds of negative ones waiting for the president to act on.  At least one commutation request is pending.  The White House also has asked for a fresh review of the case of Clarence Aaron, who is serving a triple life-sentence, without parole, for his role in a drug conspiracy.  ProPublica and The Washington Post published a story about Aaron's case in May.

November 2, 2012 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (24) | TrackBack

Wednesday, October 24, 2012

NACDL launches extraordinary new resource: on-line state-by-state "Restoration of Rights Database"

Us_map_legaledAs detailed in this news release, the National Association of Criminal Defense Lawyers (NACDL) has rolled out a amazing new on-line resource. I will let part of the text of the release explain:

NACDL is pleased to offer as both a resource for its members and as a service to the general public, a collection of individual downloadable documents that profile the law and practice in each U.S. jurisdiction relating to relief from the numerous civil rights and other consequences of criminal conviction.  NACDL today launches this new section of its online Resource Center to house NACDL member and former U.S. Pardon Attorney (1990-97) Margaret Colgate Love’s comprehensive work on this topic in a user-friendly format.  It promises to be an indispensable guide for defense lawyers as well as members of the public affected by the collateral consequences of a conviction and those re-entering society or the workforce after a conviction.

As a result of the twin crises of overcriminalization and mass imprisonment in the United States, the population that can be served by this tremendous new resource is, sadly, enormous.... [because] is reported that some 65 million people, or one in four Americans, have an arrest or conviction record.

This new resource offers free assistance to those tens of millions of people and their lawyers, offering an interactive map with individual profiles summarizing the law and practice in each U.S. jurisdiction and the federal system regarding relief from the collateral consequences of conviction, including obtaining a pardon, expungement and the restoration of civil rights.  Click on a jurisdiction and you will get a short summary and a full profile detailing that jurisdiction’s law relating to both the loss and restoration of civil rights and firearms privileges and discussing any provisions on non-discrimination in employment and licensing.  These materials will be an enormous aid to lawyers in minimizing the collateral consequences suffered by clients and in restoring their rights and privileges.

In addition to the jurisdictional profiles, there is a set of charts covering all 50 states plus territories and the federal system, that provide a side by side comparison that makes it possible to see national patterns in restoration laws and policies....

A team of pro bono attorneys at the firm of Crowell & Moring LLP, led by partner Harry P. Cohen, provided significant assistance with this project, as did a number of law students from the Washington College of Law at American University and the University of Toledo School of law. Detailed acknowledgements are provided on the project’s home page, which is now live and publicly available at www.nacdl.org/rightsrestoration.

I have now already spent more than an hour clicking around these NACDL pages to discover a stunning amount of valuable and user-friendly materials assembled via this project.  Kudos to everyone involved in this important and productive endeavor.

October 24, 2012 in Clemency and Pardons, Collateral consequences, Data on sentencing, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (7) | TrackBack

Tuesday, September 25, 2012

Following up with killer saved from death via clemency by Ohio Gov Kasich

My local Columbus Dispatch has this interesting story following up on an Ohio condemned inmate a year after his death sentence was commuted to LWOP. The piece is headlined "No future, but it beats death for spared man," and here are excerpts:

Joseph Murphy knows he will die in prison. He just doesn’t know when. He’s OK with that. “I have accepted the fact I will be here the rest of my life,” he said.  “Whatever happens in here, it’s better than it was at home."

Murphy was supposed to be executed by the state on Oct. 18, 2011, for the 1987 throat-slashing murder of 72-year-old Ruth Predmore during a robbery at her home in Marion. Over 24 years, courts at all levels had rejected his appeals.  His attorneys, public defenders Pamela J. Prude-Smithers and Kathryn L. Sandford, knew Gov. John Kasich was their client’s last hope.

On Sept. 26 last year, Kasich intervened, commuting Murphy’s death sentence to life without the possibility of parole.  Kasich said considering Murphy’s “brutally abusive upbringing and the relatively young age at which he committed this terrible crime, the death penalty is not appropriate in this case.”

Murphy, 47, who spent most of his life — beginning at age 6 — in juvenile lockups, mental-health wards and prison, now faces the prospect of living the rest of his days with no hope of freedom.  The third of Stella and Jerry Murphy’s six children, he was raised in a West Virginia tarpaper shack with no plumbing or electricity.  His mother often failed to feed him as a child, and his father beat him and his siblings with switches, belts and extension cords.

Murphy was stabbed in the head with a steak knife by his brother, raped by a man who supplied Murphy’s father with moonshine and set on fire to prevent a children’s services worker from seeing welts on his back from recent beatings.

Prison is the only real home Murphy knows.  He calls himself “state-raised.”  After spending two decades alone in a cell, Murphy now has a cellmate and is housed in a unit with dozens of other prisoners.  “It was mind-rattling,” he said during an interview last week at the Toledo Correctional Institution, where he was transferred from Death Row at the Ohio State Penitentiary at Youngstown.  “ It was kind of hard being around a bunch of people. ... It’s hard getting used to the noise.”

In nearly a year in Toledo, Murphy hasn’t had an infraction, said Darlene Mitchell, assistant to the warden.  He has corresponded with Peg Predmore Kavanagh, the 68-year-old niece of Murphy’s victim.  Kavanagh testified via video in support of clemency for Murphy at the Ohio Parole Board hearing last year....

His abusive father is dead, and Murphy hasn’t had a single visit, letter or call from his mother or four brothers.  “At first, I was upset.  I wrote to them and said I was off Death Row,” he said.  “I sent her more letters and cards at Thanksgiving and Christmas, but she didn’t write back.  I love my mother to death and I always will.  But it seems like she’s upset that I wasn’t executed.”

September 25, 2012 in Clemency and Pardons, Death Penalty Reforms | Permalink | Comments (4) | TrackBack

Saturday, September 22, 2012

"A Biblical Value in the Constitution: Mercy, Clemency, Faith, and History"

The title of this post is the title of this interesting new paper by Professor Mark Osler now available via SSRN.  Here is the abstract:

The United States Constitution is a strikingly secular document, and claims that the United States was founded as a “Christian Nation” find little support there.  However, the majority of Americans are Christian, and it should not be surprising that many of them look for a reflection of their faith’s values in the government that is structured by that secular Constitution.

This article urges that those who seek Christian values in the government processes allowed by the secular Constitution pay greater attention to the neglected pardon clause. The exercise of mercy is a fundamental Christian imperative, and the idea of pardon is an important and compelling theme in the gospels themselves: Jesus was nearly granted clemency by Pilate, and Jesus himself grants a pardon to the woman who is about to be executed in John 8.  To the serious scholar who believes in both the imperatives of Christ and the secular limitations of the Constitution, the pardon power provides a rare instance of those roads running together.

September 22, 2012 in Clemency and Pardons, Purposes of Punishment and Sentencing, Religion, Who Sentences? | Permalink | Comments (9) | TrackBack

Wednesday, August 22, 2012

"Prosecutorial Administration"

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

It is by now well known that federal prosecutors hold the reins of power in individual federal criminal cases.  They have almost unlimited and unreviewable power to select the charges that will be brought against defendants. Prosecutors have also been a driving force in the political arena for mandatory minimum sentences and new federal criminal laws.

But prosecutorial power over federal criminal justice policy goes deeper still. Because of the structure of the Department of Justice, prosecutors are involved in other areas of criminal justice policymaking.  Indeed, we are living in a time of “prosecutorial administration,” with prosecutors at the helm of every major federal criminal justice matter.

This Article describes the current regime of “prosecutorial administration” and explains why its consequences should concern anyone interested in a rational criminal justice regime that is unbiased in any particular direction.  It focuses on three areas of criminal justice policy -- corrections, clemency, and forensics -- and describes how these matters came under the aegis of the Department without much concern about the conflicts they would create with the Department’s law enforcement mission.  It is a well-established feature of institutional design that agencies with competing mandates will adhere to the dominant one. In the case of the Department of Justice, that dominant mandate is undoubtedly law enforcement and obtaining convictions in particular cases.  As a result, whenever conflicts arise (or appear to arise) between this mission and other functions such as corrections, clemency, or forensic science, the law enforcement interests (as perceived by the Department’s prosecutors) will dominate.

Thus, if decisions about corrections, forensics, and clemency are being made by prosecutors -- and thus through the lens of what would be good for prosecutors and their cases -- it is possible that these decisions are not accounting for what would be good policy overall, taking into account interests other than law enforcement.  Indeed, even if the goal is law enforcement, prosecutors are not well-suited to take into account the long-term goals of law enforcement because they are focused on the short-term pressure of dealing with current cases.

The Article thus turns to the question of how institutional design could help create more of a balanced approach in these areas that is not so tilted to law enforcement concerns.  After making the case that institutional change is feasible in at least some areas, the Article tackles the question of what changes could yield positive results in each of these areas and what tradeoffs they entail.

August 22, 2012 in Clemency and Pardons, Who Sentences? | Permalink | Comments (10) | TrackBack

Saturday, August 04, 2012

Death row prisoner in Oregon prevails (for now) in effort reject Gov's effort to preclude his execution

As reported in this local article, headlined "Judge rules inmate Gary Haugen, seeking execution, has right to reject governor's reprieve," the first round of fascinating role-reversal capital litigation taking place in Oregon has been won by a condemned murderer seeking to be executed. Here are the basics:

Death row inmate Gary Haugen won a legal battle Friday against Gov. John Kitzhaber when a judge ruled he could reject the governor's reprieve of his execution and move forward in his efforts to die by lethal injection. The opinion by Senior Judge Timothy P. Alexander is expected to initiate new adversarial proceedings between the prisoner who volunteered to die and the governor who had a change of heart about capital punishment....

Alexander, a state senior judge handling the case in Marion County, wrote that he put his personal feelings aside, ruling on legal precedent and the facts of the case. He took the unusual step of writing that his decision wasn't intended as criticism of Kitzhaber or the views the governor expressed when he issued the reprieve in November.

"In fact," Alexander wrote, "I agree with many of the concerns expressed by the governor, and share his hope that the Legislature will be receptive to modifying and improving Oregon laws regarding sentencing for aggravated murder. Many Oregon judges with experience presiding over death penalty cases would concur that the current law requires spending extraordinary sums of tax dollars that could be better used for other purposes to enforce a system that rarely if ever result in executions."

Alexander's opinion says that Kitzhaber can give Haugen a reprieve until he leaves office, but Haugen is not obliged to accept it. "Because (Haugen) has unequivocally rejected the reprieve, it is therefore ineffective," the judge wrote.

Kitzhaber's office responded to the ruling, saying the governor likely will appeal it. "We are confident that the governor's authority will be upheld," the statement said.

Clatsop County District Attorney Josh Marquis, who advocates for Oregon's death penalty, credits Kitzhaber for taking a strong stand on such an emotional issue. But that stand, he said, comes with some political risk, because the majority of Oregon voters support capital punishment. "The downside is, Oregonians are going to look at him when he runs for re-election and say, 'Wait a minute, does he really respect the law?"...

Haugen was sentenced to life in prison for murdering the mother of his former girlfriend in Northeast Portland in 1981. He later murdered a fellow prisoner at Oregon State Penitentiary. A jury sentenced him to death in 2007....

If the governor appeals, the case could go before the Oregon Court of Appeals or the Oregon Supreme Court, depending on decisions made by parties to the case, said Phil Lemman, a spokesman for the Oregon Judicial Department. After that, a death warrant hearing would need to be scheduled before Haugen could be executed. "We're a ways away from knowing when any execution date would be," Lemman said.

The process struck Richard Dieter, director of the Death Penalty Information Center, as wasteful. "This case is probably going to drag through more courts and go back and forth before it's finally decided," said Dieter, whose organization collects comprehensive national data on capital punishment and is widely viewed as opposed to the death penalty.

The full seven-page ruling in this first round of Haugen v. Kitzhaber is available at this link.

Related posts:

August 4, 2012 in Clemency and Pardons, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

Thursday, July 19, 2012

Press and pressure prompting talk of clemency reforms in White House

As reported in this encouraging new story from Danfa Linzer at ProPublica, headlined "Obama Administration Wants Review of Prisoner’s Commutation Request," it appears that all the bad press about federal clemency practices has gotten some traction in the White House. Here is how the story starts:

The Obama administration has asked for a fresh review of an Alabama federal inmate's commutation request and directed the Justice Department to conduct its first ever in-depth analysis of recommendations for presidential pardons, according to several officials and individuals involved.

The Office of Pardon Attorney has been at the center of growing controversy since December, when stories published by ProPublica and The Washington Post revealed a racial disparity in pardons. White applicants were four times more likely to receive presidential mercy than minorities. African Americans had the least chance of success.

A subsequent story published in May recounted the saga of Clarence Aaron, a first-time offender sentenced in 1993 to three life terms in prison for his role in a drug conspiracy. In 2008, the pardon attorney recommended that President George W. Bush deny Aaron's request for a commutation even though his application had the support of the prosecutor's office that tried him and the judge who sentenced him. The pardon attorney, Ronald L. Rodgers, did not fully disclose that information to the White House.

The handling of Aaron's case prompted widespread criticism that the pardon office -- which has rejected applications at an unprecedented pace under Rodgers -- is not giving clemency requests proper consideration.

Aaron filed a new commutation request in 2010, which is pending. In the past two months, his cause has been taken up by members of Congress, law professors and prominent civil rights advocates, many of whom have called for a broader investigation of the pardon process.

Since 2008, more than 7,000 applications for commutations have been denied, more than 22 times the total rejected in President Ronald Reagan's two terms. Obama has commuted the sentence of just one person. Recent presidents also have granted fewer pardons than their predecessors. Bush granted 189 during his two-term presidency, less than half the number pardoned by President Bill Clinton. So far, Obama has pardoned 22 individuals.

Advisers to the president said they expect that number to rise significantly whether or not he is elected to a second term. "There will be 76 days between the election and inauguration for the president to exercise his power," said an official who spoke on condition of anonymity because the official was not authorized to speak publicly.

Officials said there has been growing interest inside the White House for reforming the pardon process, specifically how recommendations are made to the president.

Though I am very disinclined to count any clemency chickens before they are hatched, this story at least gives some new hope to those long concerned about modern federal pardon practices.

July 19, 2012 in Clemency and Pardons, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (12) | TrackBack

Monday, July 16, 2012

Iowa Gov uses clemency power to devise (astute? sinister?) response to Miller for juve LWOPers

A helpful reader from Iowa alerted me to this notable story from the Hawkeye State, headlined "Branstad commutes life sentences for 38 Iowa juvenile murderers."  Here are the interesting details of how one state's governor is taking the lead in responding to last month's SCOTUS ruling in Miller:

Gov. Terry Branstad commuted the life sentences of 38 juveniles Monday, giving them mandatory 60-year prison terms instead. The governor’s action comes in response to last month’s U.S. Supreme Court ruling in Miller v. Alabama, in which the court ruled that states could not require life sentences without the possibility of parole for juveniles found guilty of first-degree murder.

The ruling raised the possibility that anyone sentenced to life without parole before they were 18 could petition the court for a new trial. By using his commutation powers, the governor appears to have taken that option off the table.

“During this process, the victims are all too often forgotten by our justice system and are forced to relive the pain of the tragedies,” Branstad said. “These victims have had their loved ones violently taken away from them. I take this action today to protect these victims, their loved ones’ memories and to protect the safety of all Iowans.”...

In compliance with the Supreme Court decision, Branstad commuted the life without parole sentences to life with the possibility of parole only after 60 years for the 38 people, who were convicted of first-degree murder while juveniles. This action means that they will not have the possibility of parole until they have served 60 years.

“Justice is a balance, and these commutations ensure that justice is balanced with punishment for those vicious crimes and taking into account public safety,” said Branstad. “First-degree murder is an intentional and premeditated crime and those who are found guilty are dangerous and should be kept off the streets and out of our communities.”

This action by Iowa's governor seems like an especially efficient means to deal with Miller issues, though whether it merits praise or criticism on other grounds is surely to be impacted by one's perspective on the virtues and vices of the Supreme Court's ruling in Miller.  In addition, as noted by the helpful reader who alerted me to this story, the legal status of this action is itself perhaps open to question:

[This result] raises questions concerning the constitutionality of such a sentence, given (1) the fact that no individualized hearing as contemplated by Miller would apparently be held (the Iowa Court of Appeals recently reversed and remanded two cases for such hearings in State v. Bennett, 2012 Iowa App. LEXIS 542 (Iowa Ct. App. July 11, 2012) and State v. Lockheart, 2012 Iowa App. LEXIS 531 (Iowa Ct. App. July 11, 2012)), and (2) the potential disparity in sentence with future juvenile murderers since Iowa statutory law would not contemplate such a sentence.

July 16, 2012 in Assessing Miller and its aftermath, Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (16) | TrackBack

Tuesday, July 10, 2012

"Is the Federal Pardon Process Racially Biased? It’s Time to Get Answers"

The title of this post is the title of this new commentary by Julie Stewart now up at The Crime Report.  Here are excerpts:

Dafna Linzer, the Pro Publica reporter whose dogged determination resulted in two front-page Washington Post stories on the OPA, ... concluded that whites are four times as likely as non-whites to receive a presidential pardon, even when the circumstances of their crimes are roughly the same.

Seven months have passed since Ms. Linzer’s first expose was published. Yet neither the OPA nor the DOJ has responded publicly to its serious allegations of racial bias. When asked at FAMM’s briefing if she was surprised by DOJ’s public silence, Ms. Linzer observed that if the type of racial discrimination produced by the current pardon process were found at the state or local government level, DOJ would probably get involved and initiate an investigation. “Yet here,” she said, “we have a case of contemporary race disparity happening within the Justice Department itself.”

It’s time to get some answers. This week, 15 leading constitutional and criminal law professors sent a letter to the U.S. Senate Judiciary Committee urging the committee to investigate the OPA. “While Congress properly plays no role in the actual consideration of clemency petitions,” the group wrote, “there is a duty of oversight relating to the operation of this office.“

The law professors’ letter is the fourth request for a review of OPA.... Concerns about OPA’s misconduct are bipartisan and cut across administrations. Former Maryland Gov. Bob Ehrlich, a Republican, co-authored an op-ed with me that called for a congressional investigation. Conservative columnist Debra Saunders has long championed clemency for Clarence Aaron and expressed outrage and surprise at the intentional torpedoing of his application, the evidence of which was reported by Ms. Linzer.

And Kenneth Lee, Associate White House Counsel to George W. Bush, told Ms. Linzer that Clarence Aaron’s petition was presented to him “in the least favorable light to the applicant".

The President’s constitutional authority to grant clemency is too important to be left in the hands of people who have their own agenda. Commutations can correct the excesses of harsh, mandatory minimum sentences. Pardons ensure that rehabilitated individuals get the clean slate they need to land a job or to get a line of credit to start a new business. More generally, the clemency power recognizes that our justice system is imperfect, and that prosecutors and police sometimes make mistakes....

The OPA’s only job is to assist the president by providing him with the unbiased information he needs to fulfill his constitutional clemency power fully and fairly. It is clear that the OPA is failing miserably. Since the OPA (and DOJ) will not even respond publicly to serious allegations of incompetence and corruption, Congress must investigate.

Related posts concerning federal clemency practices:

July 10, 2012 in Clemency and Pardons, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (24) | TrackBack

Ohio Gov. Kasich commutes yet another murderer's death sentence

As reported here last month, a divided Ohio Parole Board urged Gov John Kasich to reject the clemency request of condemned killer John Eley who was scheduled to to be executed later this month.  I now say "was scheduled to to be executed" because, as reported in this new local article, "Gov. John Kasich today commuted the death sentence of a Mahoning County murderer to life in prison without parole [citing] the mental capacity of John Jeffrey Eley as his reason for offering the leniency."  Here is more on this notable commutation:

Eley was scheduled to die for lethal injection next year for the 1987 killing of a 28-year-ild Ihsan Aydah, which the governor called a "heinous act" but an act that Eley is not fully responsible.

"In participating in the murder, John Jeffrey Eley, who has limited mental capacity, acted under the direction of another man who was later acquitted," Kasich said in a press release. "Without those factors it is doubtful that Eley would have committed this crime."

Kasich also noted that the Mahoning County prosecutor who tried Eley's case has also called for clemency. "The combined weight of these facts leads me to commute Eley's sentence to life in prison without parole," Kasich said. "Murder under any circumstance is an atrocious act and this decisionin no way diminishes that or the actions of Eley. I pray that the family and friends of Ihsan Aydah can find peace."

The referenced press release (which says little more than what is reprinted in the article above) is available at this link.

Some recent related posts on Eley case and some earlier Kasich clemency grants:

July 10, 2012 in Clemency and Pardons, Death Penalty Reforms, Offender Characteristics, Who Sentences? | Permalink | Comments (23) | TrackBack

Wednesday, June 27, 2012

"Cracking the Disparities: The Ongoing Battle for Fairness in Crack Sentencing"

The title of this post is the headline of this effective new commentary by Nkechi Taifa at the Huffington Post. The piece highlights that the passage of the FSA and the subsequent ruling for defendants in Dorsey hardly makes all well in the federal sentencing world, and it urges President Obama to get in the game.  Here are excerpts:

Last week's Supreme Court ruling in Dorsey v. United States represents another victory in the ongoing battle for fairness in cocaine sentencing. The Court correctly ruled that the 2010 Fair Sentencing Act (FSA), which increased fairness in cocaine penalties, was not limited to newly committed crimes but applied also to offenses committed prior to passage of the Act where the defendant had not yet been sentenced....

The ruling comes in the wake of advances that have successfully chipped away disparities between crack and powder cocaine sentencing.  First, Congress passed the FSA, reducing the egregious 100-to-1 sentencing ratio to a more reasonable, albeit still insufficient, 18-to-1.  Second, the U.S. Sentencing Commission amended its guideline ranges to be consistent with the new Act.  Third, the Commission unanimously agreed to make these changes retroactive....

None of these necessary improvements, however, benefit those whose offenses and harsh, discriminatory mandatory minimum sentences occurred prior to the Fair Sentencing Act's passage. Ironically, these are the very cases that originally inspired reform.

The process for relief for this remaining category of cases can be swiftly initiated with the stroke of the executive pen, moving the nation closer to concluding a shameful chapter in the chronicles of federal drug sentencing policy.  There is wide support for fairness and consistency in cocaine sentencing, and utilizing presidential clemency power is the most practical option to ensure immediate reform.  Commutation of the sentences of the identifiable class of people currently incarcerated for crack cocaine offenses under the old sentencing regime -- that all three branches of government agree is unjust, inconsistent, unfair, and biased -- is timely and can be readily accomplished.

Professor Mark Osler and former prosecutor Matthew Fass in a recent article [here from the Federal Sentencing Reporter], highlighted Gerald Ford's 1974 strategic use of the presidential pardon power to impanel an ad hoc executive clemency board to oversee the petitions of 21,000 people convicted of draft-related offenses during the Vietnam War. Within a year, President Ford granted 90 percent of the petitions.  On balance, the approach by Ford to establish a pardon board allowed for individualized review of each clemency application, with options including approval, community service, or denial....

Similarly, adoption of an individualized review process for pre-FSA cases would not be burdensome or a "get out of jail free card."  Cases could simply be recalculated according to the new 18-to-1 ratio, under already existing parameters established by the Sentencing Commission that result in gradual releases in appropriate cases over the course of several decades.  The president would be free to use his constitutional pardon power unrestricted by the 18-to-1 ratio should he so choose.

Moreover, the creation of a transparent process by which to review and remedy these discredited sentences would correct an injustice that has resulted in egregiously severe and racially discriminatory sentences for a quarter of a century.  And establishment of a clemency board independent of the Office of the Pardon Attorney and the Department of Justice could shield the review process from scandals of past administrations and current allegations of discriminatory treatment of clemency applications unveiled by the investigative journalism website Pro Publica....

Despite improvements by Congress, the Sentencing Commission, the Department of Justice and the Supreme Court, the fight for fairness and justice in crack cocaine sentencing is not over.  The president could bring closure to this injustice through his constitutional executive power of clemency, creating a review board to reevaluate old crack cocaine sentences so they are consistent with the new law.

Regular readers should not be surprised to hear that I think this is a great idea, nor should they be surprised to see this great idea get completely ignored by the powers-that-be in the White House (at least until after this November's election).

June 27, 2012 in Clemency and Pardons, Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (0) | TrackBack

Tuesday, June 26, 2012

"15 Law Professors Call on Senate to Investigate Office of U.S. Pardon Attorney"

The title of this post is the heading of this new press release from Families Against Mandatory Minimums, which gets started this way:

Today, a group of 15 leading constitutional and sentencing law academics and law professors issued a letter asking Senate Judiciary Committee leaders to hold a hearing to investigate allegations of misconduct by the Office of the Pardon Attorney (OPA).  In particular, the letter asks the committee to examine current pardon attorney Ronald Rodgers’ alleged “withholding of critical information from the President” and of “troubling racial disparities in the pattern of grants and denials of clemency.”

The letter was prompted by recent articles by ProPublica investigative journalist Dafna Linzer in The Washington Post, which revealed serious problems in the way the pardon attorney’s office handles clemency requests.  Late last year, a story documented what appears to be a disturbing racial disparity in pardon grants.  Then, a May 13 article told the story of Clarence Aaron, who is serving a life sentence and was denied a commutation by President George W. Bush after Rodgers allegedly misrepresented facts about his case to White House counsel.

The full text of the letter (with the names of all the signatories) is available for download below, and here are excerpts:

As criminal and constitutional law professors with an interest in sentencing and corrections, we write to urge you to convene a hearing at your earliest convenience to examine the Office of the Pardon Attorney’s conduct with regard to applicants for sentence commutations.  Recent revelations about the workings of that office convince us that further investigation is called for....

The President’s pardon power is unique; it is in many instances the only route to justice available for federal prisoners who genuinely merit consideration for early release. The Pardon Attorney is the gatekeeper for the thousands who apply for clemency each year.

Virtually the only governmental check on the pardon power of the president is the ability of the Congress to investigate its use. While Congress properly plays no role in the actual consideration of clemency petitions, there is a duty of oversight relating to the operation of this office. Pursuant to that important duty, we urge you to convene a hearing at your earliest convenience, and will offer whatever help we can.

Download 062612 Law Professor Letter OPA

Regular readers will not be surprised to learn that I am strongly supportive of the spirit of this letter, but they may be surprised to learn that my name is not at the bottom of it.  Though I welcome a congressional investigation of the OPA, I strongly favor that the President (or Congress through whatever constitutional means) wholly abolish the OPA because I do not think it appropriate or sound that an office within the US Department of Justice plays any gatekeeping role in the clemency process.

I certainly believe and hope the current OPA could do a much better job than its modern track record and investigative reports indicate.  I also believe and hope that a congressional investigation could prod OPA toward useful reforms.  But rather than just urge investigation and reform of the status quo, I favor more significant structural changes such as, e.g., the creation of a clemency czar and/or a clemency office/council working inside the White House rather than inside the Justice Department.  I worry that calls to investigate the work and workings of the OPA suggest the appropriateness of (and thus indirectly support) having an office inside DOJ serving as a clemency gatekeeper.

June 26, 2012 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Wednesday, June 20, 2012

Split Ohio panel recommends against clemency for murderer next up for execution

As reported in this brief local AP story, a "divided Ohio Parole Board has rejected mercy for the condemned killer of a Youngstown store owner scheduled to die next month." Here is more on why this rejection of a clemency request by John Eley is noteworty:

Eley has the support of both the former prosecutor who charged him with a capital crime and one of the judges who sentenced him to death.

The parole board voted 5-3 Wednesday against recommending clemency for the 63-year-old Eley, who received the death sentence for the 1986 shooting of Ihsan Aydah. Gov. John Kasich has the final say.

Eley's supporters say his co-conspirator master-minded the robbery and was considered the true culprit.

This expanded AP piece provides details on the perspective of both sides of the Ohio Parole Board:

The supporters' assertions "do not outweigh the fact that Eley took the gun from Green, entered the store with the intent to rob the victim, knew that the victim had a gun and might try to use it, and then shot him in the head," the board said. The board also rejected claims by Eley's lawyers that he is mentally ill and mentally disabled....

The three board members who supported Eley's plea for mercy say he is not the "worst of the worst" killers, and argue that many similar convenience store robbers who committed more serious crimes escaped death sentences.

They also said the crime wouldn't have happened without Green. And they argued that Eley was a victim of a game of bluff by prosecutors as they threatened him with a death sentence to force his testimony against Green. "The prosecutors 'played a bluff' all the way to the end, and when Eley did not cooperate, they were stuck with the death penalty conviction," the three dissenting members said.

The full 18-page Ohio Parole Board Death Penlaty Clemency report for John Eley is available at this link.

June 20, 2012 in Clemency and Pardons, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack

Thursday, June 14, 2012

"Scores in N.C. are legally 'innocent,' yet still imprisoned" due to federal gun laws

Med-topperThe folks at USA Today have this fascinating and fantastic front-page feature story concerning the many persons currently serving federal prison time for gun possession crimes that are no longer crimes in the wake of an important recent Fourth Circuit ruling.  The headline of this post is drawn from the headline of the USA Today piece, which is today's must-read and includes these excerpts:

A USA TODAY investigation, based on court records and interviews with government officials and attorneys, found more than 60 men who went to prison for violating federal gun possession laws, even though courts have since determined that it was not a federal crime for them to have a gun.  Many of them don't even know they're innocent.

The legal issues underlying their situation are complicated, and are unique to North Carolina. But the bottom line is that each of them went to prison for breaking a law that makes it a federal crime for convicted felons to possess a gun.  The problem is that none of them had criminal records serious enough to make them felons under federal law.

Still, the Justice Department has not attempted to identify the men, has made no effort to notify them, and, in a few cases in which the men have come forward on their own, has argued in court that they should not be released.

Justice Department officials said it is not their job to notify prisoners that they might be incarcerated for something that they now concede is not a crime.  And although they have agreed in court filings that the men are innocent, they said they must still comply with federal laws that put strict limits on when and how people can challenge their convictions in court.

"We can't be outcome driven," said Anne Tompkins, the U.S. attorney in Charlotte. "We've got to make sure we follow the law, and people should want us to do that." She said her office is "looking diligently for ways, within the confines of the law, to recommend relief for defendants who are legally innocent."

These cases are largely unknown outside the courthouses here, but they have raised difficult questions about what, if anything, the government owes to innocent people locked in prisons.   "It's been tough," said Ripley Rand, the U.S. attorney in Greensboro, N.C. "We've spent a lot of time talking about issues of fundamental fairness, and what is justice."

It's also unusual.  Wrongful conviction cases are seldom open-and-shut — usually they depend on DNA or other new evidence that undermines the government's case, but does not always prove someone is innocent.  Yet in the North Carolina gun cases, it turns out, there simply were no federal crimes.

Using state and federal court records, USA TODAY identified 23 other men who had been sent to federal prison for having a firearm despite criminal records too minor to make that a federal crime.  Nine of them remain in prison, serving sentences of up to 10 years; others are still serving federal probation.  The newspaper's review was limited to only a small fraction of cases from one of the three federal court districts in North Carolina.

Federal public defenders have so far identified at least 39 others in additional court districts, and are certain to find more. And prosecutors have already agreed to drop dozens of cases in which prisoners' convictions were not yet final.

Some of the prisoners USA TODAY contacted — and their lawyers — were stunned to find out that they were imprisoned for something that turned out not to be a federal crime. And their lawyers said they were troubled by the idea that innocence alone might not get them out. "If someone is innocent, I would think that would change the government's reaction, and it's sad that it hasn't," said Debra Graves, an assistant federal public defender in Raleigh. "I have trouble figuring out how you rationalize this. These are innocent people. That has to matter at some point."...

Decades ago, Congress made it a federal crime for convicted felons to have a gun. The law proved to be a powerful tool for police and prosecutors to target repeat offenders who managed to escape stiff punishment in state courts. In some cases, federal courts can put people in prison for significantly longer for merely possessing a gun than state courts can for using the gun to shoot at someone.

To make that law work in every state, Congress wrote one national definition of who cannot own a gun: someone who has been convicted of a crime serious enough that he or she could have been sentenced to more than a year in prison.

Figuring out who fits that definition in North Carolina is not as simple as it sounds. In 1993, state lawmakers adopted a unique system called "structured sentencing" that changes the maximum prison term for a crime, based on the record of the person who committed it. People with relatively short criminal records who commit crimes such as distributing cocaine and writing bad checks face no more than a few months in jail; people with more extensive records face much longer sentences.

For years, federal courts in North Carolina said that did not matter. The courts said, in effect: If someone with a long record could have gone to prison for more than a year for the crime, then everyone who committed that crime is a felon, and all of them are legally barred from possessing a gun.

Last year, the U.S. Court of Appeals for the 4th Circuit said federal courts (including itself) had been getting the law wrong. Only people who could have actually faced more than a year in prison for their crimes qualify as felons under federal law.

The 4th Circuit's decision came in a little-noticed drug case, United States v. Simmons, but its implications could be dramatic. For one thing, tens of thousands of people in North Carolina have criminal records that no longer make having a gun a federal crime. About half of the felony convictions in North Carolina's state courts over the past decade were for offenses that no longer count as felonies under federal law.

No one yet knows precisely how many people were incorrectly convicted for having a gun, but the number could be significant. Rand, the U.S. attorney in Greensboro, estimated that more than a third of the gun cases his office prosecuted might be in question, either because the defendants didn't commit a federal crime at all by possessing a gun or because their sentences were calculated incorrectly.  "We're going to be addressing this for a while," he said.

The Justice Department and federal courts moved quickly to clean up cases that were pending when the 4th Circuit announced its decision. Prosecutors dropped pending charges against people whose records no longer qualified them as felons; the 4th Circuit reversed convictions in more than 40 cases that were on appeal at the time. Some of the men were given shorter sentences; others were simply let go.

But the next question has proved far harder to answer: What should the government do with the prisoners whose legal cases were already over?

Whether [these legally innocent defendants] can go home depends on federal laws that put strict limits on when and how people who have already been convicted of a crime can come back to court to plead their innocence.

Those laws let prisoners challenge their convictions if they uncover new evidence, or if the U.S. Supreme Court limits the sweep of a criminal law.  But none of the exceptions is a clear fit, meaning that, innocent or not, they may not be able to get into court at all. Federal courts have so far split on whether they can even hear the prisoners' cases.

Habeas corpus — the main legal tool for challenging unlawful detention — is currently ill-suited to such cases, said Nancy King, a Vanderbilt Law School professor who has studied the issue.  Habeas mainly safeguards people's constitutional right to a fair process, she said, and the problem is that "saying, 'I'm innocent' isn't, on its face, that type of constitutional claim." Still, she said, "innocent people should be able to get out of prison."

Prosecutors don't disagree, though most said they are not convinced the law allows it. Rand, the U.S. attorney in Greensboro, said he is "not aware of any procedural mechanism by which they can be afforded relief," though he said lawyers in his office "have not been pounding on the table" to keep the men in jail.

"No one wants anyone to spend time in jail who should not be there," said Thomas Walker, the U.S. attorney in Raleigh.  That's why he said prosecutors were quick to dismiss charges that were pending when the 4th Circuit ruled.  But cases in which convictions are already final "are in a totally different posture and require us to follow the existing statutory habeas law," he said.

But there's also an even more basic question: How would the prisoners even know?... [C]ourts have asked public defenders to seek them out. Those lawyers said the Justice Department should do more to help, because it has better information and more resources, an assertion prosecutors dispute.

"We're doing it with our hands tied," said Eric Placke, a federal public defender in Greensboro.  "I appreciate the compelling considerations they have to deal with.  But I do think in cases of actual innocence that it would be nice, to say the least, if they would be a little more proactive."  Placke and other public defenders said the reviews have been difficult because they often have limited access to records from the men's prior convictions, which has left them to hunt through files in courthouses across the state.

This story is sad, telling and remarkable for so many reasons, and it also seems to present a situation in which I might argue that some kind of habeas relief (or even federal clemency) is constitutionally required under the Fifth and/or Eighth Amendment. 

As a matter of substantive due process and/or cruel and unusual punishment, I do not think the federal government should be constitutionally permitted to keep someone imprisoned for an act that all now seem to agree was not a federal crime.  Though the statutory habeas rules might preclude relief, I think the continuing constitutional violation of on-going imprisonment of an innocent person demands some kind of immediate remedy.  Clemency is often mentioned by the Supreme Court and commentators as the fail-safe in these kinds of cases, and I hope that this important USA Today piece will at the very least make the folks in the executive branch take this constitutional problem even more seriously.

June 14, 2012 in Clemency and Pardons, Gun policy and sentencing, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (52) | TrackBack

Wednesday, June 13, 2012

Former prosecutor urging clemency for murderer he sent to Ohio's death row

As helpful reader alerted me to this notable new AP article, headlined "Prosecutor seeks mercy for condemned Ohio killer," discussing a clemency hearing for an Ohio death row inmate scheduled to be executed next month.  Here are the interesting details:

The prosecutor who helped send the killer of a Youngstown store owner to death row told the state Parole Board on Tuesday that the condemned inmate should be spared because the crime didn't rise to the "heinous" level that deserves capital punishment.

Former Mahoning County prosecutor Gary Van Brocklin said he tried repeatedly to get John Eley to testify against another man he believes is the mastermind of the 1986 shooting in exchange for a lesser sentence.  That other man, Melvin Green, gave Eley the gun used in the shooting and told him to go into the store, which had banned Green for previous threats, Van Brocklin said via a video interview presented to the parole board. "Basically, he set up the entire robbery," Van Brocklin said.

He also said that, while not making light of the death of store owner Ihsan Aydah, the robbery of the convenience store was the type of killing that was prosecuted more frequently as a death penalty case in the early days of the law. Ohio's current capital punishment law was enacted in 1981.  "It wasn't in the more heinous nature of cases that now receive the death penalty," Van Brocklin said.

It's not unusual for judges or prosecutors to change their mind about individual cases or the death penalty itself, but such testimony on behalf of a condemned inmate is relatively rare.

Eley, 63, is scheduled to die by injection July 26 for the shooting at the Sinjil Market on Aug. 26, 1986.  Eley confessed to the killing to police and invoked his Fifth Amendment right to refuse to testify against Green, who was acquitted. "I don't want to go through all this ritual," Eley told a court psychologist in 1987, according to a written presentation to the board by Paul Gains, the current Mahoning County prosecutor, who opposes clemency. "I did it. I want to do my time," Eley said in that interview. "I don't want to talk about it. I'm sorry I did it, that's all."...

Scott Krichbaum, who represented Green at trial in 1987, said Tuesday that the state had enough to charge Green but not to convict him.  "It's a common tactic to blame the other guy," Krichbaum, now a Mahoning County judge, said in a phone interview.  "That's pretty standard in criminal defense."

Eley's attorneys based their argument for clemency around Green's role in the shooting. They also presented evidence that Eley came from an impoverished childhood, abused alcohol and drugs, had brain impairment and is mentally disabled and mentally ill.

Gains says Eley was a career criminal who showed no remorse over the shooting and whose IQ of 82 is well above the threshold of mental disability.  Gains presented evidence to the board that Eley withdrew his claim of mental disability eight years ago and that psychological reports from the trial draw opposite conclusions about mental illness and mental disability.

Gains noted Eley had already been to prison twice by the time of Aydah's slaying.  "And where Eley's attorneys now say that Melvin Green should be blamed for the crime, the evidence is unrebutted that Eley was the shooter, and that Eley went into the store alone while Green waited outside for Eley to subdue Mr. Aydah," Gains said in his board filing.

It will be very interesting to see what kind of recommendation the seven-member Ohio Parole Board makes in light of this former prosecutor's testimony, and also to see how Gov Kasich responds to that recommendation.

As I have noted in this space before, Gov Kasich has already established an interesting clemency record in capital and other cases during his first 18 months as Ohio's Governor, and one has to think that just about everything full of political significance in Ohio may get extra attention this political summer. In other words, this is yet another interesting death penalty story worth watching closely in the weeks ahead.

June 13, 2012 in Clemency and Pardons, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (11) | TrackBack

Tuesday, June 12, 2012

"Commutation Recipients Ask for OPA Investigation"

The title of this post is the title of this press release from FAMM (Families Against Mandatory Minimums). Here are excerpts:

A group of 16 formerly incarcerated people who received sentence commutations from Presidents William J. Clinton, George W. Bush, and Barack Obama sent a letter today urging President Obama “to investigate credible claims of serious misconduct against the Office of the Pardon Attorney (OPA) in the Department of Justice (DOJ).”  The group also asked the president to use his authority to grant more commutations to deserving applicants.

“We know that the pardon attorney’s office failed President Bush and is now failing President Obama.  We won’t know the extent of the damage, however, until the Congress or the Justice Department fully investigates the OPA,” FAMM President Julie Stewart said....

“The 16 individuals who signed this letter are not unique,” said Molly Gill, FAMM’s director of special projects.  “There are thousands of other people in prison just like them, people who have worked hard to rehabilitate themselves and who would lead productive lives in our communities.  Getting clemency shouldn’t be like winning the lottery.  Every prisoner deserves a fair review from this administration’s pardon attorney -- and the president and the taxpayers who pay his salary deserve it, too.  But it appears likely that no one will get a fair shake from the pardon attorney’s office unless the President or the Department reforms it.”

The text of the full letter, along with the names of all the signers, is available at this link. The letter, as well as the list of signatories, is an interesting read. I am fearful that this letter will not be enough to convince Congress to get serious about these matters, in part because they do not now fit into a convenient right/left political narrative.   But I am very glad FAMM and others are trying to keep this important story in the news.

Related posts concerning federal clemency practices:

June 12, 2012 in Clemency and Pardons, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Sunday, June 10, 2012

"Clemency in a Time of Crisis"

The title of this post is the title of this new paper available via SSRN authored by Professor Cara Drinan. Here is the abstract:

At the state level, the power to pardon or commute a criminal sentence — that is, to grant clemency — is vested in either the Governor, an executive clemency board, or some combination thereof. Until very recently, clemency grants were a consistent feature of our criminal justice system. In the last four decades, though, state clemency grants have declined significantly; in some states, clemency seems to have disappeared altogether.

In this Article, I contend that executive clemency should be revived at the state level in response to ongoing systemic criminal justice failings.  Part I of this Article describes clemency at the state level today.  Despite judicial and scholarly support for the role of clemency in our criminal justice system, state clemency practice fails to live up to its theoretical justifications.  Part II of this Article makes the case for a policy of vigorous clemency on both theoretical and practical grounds.  Not only was clemency designed, at least in part, to serve an error-correcting function, but also, today, there are several reasons why state executive actors may be able to use their clemency power robustly without suffering politically.  In Part III, I address questions of implementation.  If state executive actors are to pursue commutations of sentences or pardons, which inmates should be the subject of such pursuits?  How can those executive actors best be insulated from political pressure?  In sum, this Article argues that revitalizing state clemency is a valuable and viable component of broader criminal justice reform.

June 10, 2012 in Clemency and Pardons, Who Sentences? | Permalink | Comments (1) | TrackBack

Wednesday, June 06, 2012

Ohio Gov Kasich grants two-week execution reprieve for mentally ill murderer

As reported in this local article, which is headlined "Kasich grants 2-week reprieve to courthouse killer facing execution," there has been a surprising development before today's scheduled Ohio execution. Here is how the article starts:

A Cleveland man who gunned down his estranged wife and brother-in-law in a courthouse basement got a two-week reprieve from execution from Gov. John Kasich yesterday. Abdul Hamin Awkal, 53, was to be lethally injected at 10 a.m. today at the Southern Ohio Correctional Facility near Lucasville.

However, late yesterday afternoon, Kasich unexpectedly used his executive clemency power to postpone Awkal’s execution. He said in a statement that the time will allow Cuyahoga County Common Pleas Judge Stuart Friedman to hold a hearing to determine whether Awkal is mentally competent to be executed.

The reprieve was requested by Awkal’s attorneys, not by a court or judge. It was an “internal decision” made solely by Kasich’s office, a spokeswoman said. Just last week, Kasich denied clemency for Awkal without comment.

Awkal, 53, a native of Lebanon, was convicted of killing his estranged wife, Latife Awkal, and her brother Mahmoud Abdul-Aziz at Cuyahoga County Domestic Relations Court in 1992. His wife had gone there to file for divorce. Awkal chased Abdul-Aziz into a room and shot him, then shot his wife, police reports said.

Awkal’s attorneys argue that he is mentally unstable. He claims, among other things, that he has worked with the CIA in the war on terror and has helped guide U.S. war efforts in Afghanistan from his Death Row cell.

June 6, 2012 in Clemency and Pardons, Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (13) | TrackBack

Tuesday, June 05, 2012

Notable appeal for clemency from victims' family rejected by Mississippi Gov

As reported in this AP article, which is headlined "Mississippi Gov. Phil Bryant won't stop execution for 1990 slayings," a plea for mercy coming from parents of children killed by a condemned murderer did not convince Mississippi's Governor to grant clemency on the eve of the execution.  Here are the interesting details:

A Mississippi man who fatally stabbed four young nieces and nephews in a 1990 rampage faced scheduled execution Tuesday evening, despite the pleas of two sisters to spare the brother who murdered their children.

Henry "Curtis" Jackson Jr. was scheduled to die by injection at 7 p.m. EDT Tuesday. Jackson spent the day receiving relatives, including one of the sisters whose two children were kililed and who survived after being stabbed five times. The slain children ranged from 2 to 5 years old and were killed as Jackson allegedly was trying to steal his mother's safe while she was at church.

Late Tuesday afternoon, Gov. Phil Bryant declined to stop the execution. The mother of the slain children had asked Bryant to spare their brother.  "I have reviewed the facts of this case and the applicable law," Bryant said in a news release.  "There is no question that Mr. Jackson committed these heinous crimes, and there is no clear and convincing evidence that compels me to grant clemency."

But he said he was moved by the plea of the relatives.  "I am deeply touched by the requests for clemency by two of his sisters and his brother-in-law," Bryant said.  "One of these sisters was a stabbing victim, and both of the sisters are mothers of the murdered children.  However, as governor, I have the duty to see that justice is carried out and that the law is faithfully executed."

Corrections Commissioner Chris Epps said at a briefing Tuesday at the Mississippi State Penitentiary that Jackson acknowledged the crime and was talkative and writing letters after visiting with family.  "This is somewhat unusual in that we have family members who are also victims," Epps said.

Among Jackson's visitors at the penitentiary in Parchman were his children, his mother and a sister, Regina Jackson was stabbed five times and survived the attack that killed her two daughters and two nephews.

Regina Jackson met with the governor Monday to plead for her brother's life.  She also wrote Bryant a letter last month asking for a reprieve, saying she doesn't want her brother to get out of prison and that she "just can't take any more killing."

"As a mother who lost two babies, all I'm asking is that you not make me go through the killing of my brother," she wrote....

Regina Jackson told The Associated Press in a telephone interview as the execution date loomed that she has forgiven her brother over the years. "If they kill him, they're doing the same thing that he did. The dying is going to have to stop somewhere."

Another sister and her husband, Glenda and Andrew Kuyoro, also asked Bryant to spare Curtis Jackson in a letter dated May 15. The couple said they tried for years to understand why Jackson attacked his relatives, and they know their questions may never be answered, but that they surely won't if he dies.

"We are the victims in this case, and we are begging you not to let Curtis be killed. You can keep him in Parchman forever, but please don't put our family through this horrible execution," the Kuyoros wrote. "We are not asking you to take pity on Curtis, we're asking you to show US mercy. We have been through enough." Epps said Regina Jackson and the Kuyoros planned to witness the execution.

Jackson has said he doesn't remember stabbing the children, but testimony from his trial describ ed a horrific scene.  He cut the phone line before going in the house, according to the court record.  Once inside, he demanded money and attacked his sister.  One of the children tried to help, but he stabbed her, too.  Regina Jackson tried to fight him off with an iron rod, but he grabbed one of the children and used her as a shield.

UPDATE This local article reports on the completed execution of Jackson (and also notes that Mississippi's next execution is scheduled for next week).

June 5, 2012 in Clemency and Pardons, Sentences Reconsidered, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack

Sunday, May 27, 2012

Commentary calls for "cleaning house" at DOJ's Office of the Pardon Attorney

Julie Stewart of Families Against Mandatory Minimums and former Maryland Governor Robert Ehrlich have this notable commentary on The Hill's Congress blog under the headline "Cleaning house at OPA: A Congressional investigation is needed." Here are excerpts:

On the surface, Presidents Bush and Obama have shown little interest in exercising their extraordinary presidential authority to issue pardons and commute sentences. Many of us who support a robust exercise of executive clemency have been disappointed and disturbed by this inaction.  But thanks to Monday’s Washington Post-ProPublica story, we now know that a significant part of the problem stems from a grossly inept Office of Pardon Attorney (OPA) at the U.S. Justice Department. Congress must investigate this vitally important taxpayer-funded office immediately....

The Post-ProPublica story revealed [various] problems that help to explain why Presidents Bush and Obama have commuted a miserly twelve federal sentences over the past dozen years.  For example, the OPA is not taking seriously its responsibility to fully review and give advice on the thousands of petitions it handles.  A former OPA staffer recalled that most denial recommendations are simply long lists of applicants’ names, sent to the White House with no explanation of the most basic facts, such as the individuals’ crimes, rehabilitation, or special circumstances....

Our Constitution gives the president exclusive power “to grant reprieves and pardons.” This awesome authority is important to our criminal justice system.  Presidents can help to ensure that all individuals receive the justice they deserve and, in some cases, the mercy they have earned.  But it is Congress that created and funds the OPA.  If the OPA is withholding or misrepresenting critical information in a manner that frustrates the president’s constitutional responsibility, Congress must act.  Taxpayers should not be forced to subsidize a government office that is abusing its power, nor should applicants for executive clemency face a deck that was stacked in secret.  Congress must investigate.

Related posts concerning federal clemency practices:

May 27, 2012 in Clemency and Pardons, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Monday, May 21, 2012

Public policy groups urge Senate Judiciary Committee to investigate US Pardon Attorney Office

As this new press release reports, Families Against Mandatory Minimums "today released a letter signed by more than three dozen criminal justice reform, religious and civil rights organizations urging the Senate Judiciary Committee to investigate the Office of Pardon Attorney (OPA) at the U.S. Department of Justice."  The text of this letter is available at this link, and here is an excerpt:

The news story jointly published by ProPublica and The Washington Post on May 14 [blogged here] revealed disturbing new information about misconduct in the Office of the Pardon Attorney (OPA) at the U.S. Department of Justice with regard to applicants for sentence commutations. The story follows an earlier report released last December about OPA’s role in the pardon process.  For those of us who were already concerned that the OPA was hindering the clemency process, the two stories confirmed our fears.  It is time for action. We urge you to investigate the activities of the OPA since at least 2001 and to hold an oversight hearing as soon as possible to review the serious questions that have been raised in these news reports....

The OPA was created ostensibly to assist the president in the exercise of this important function.  The recent media investigations into the OPA’s activities, however, suggest that there are troubling racial disparities in the application of pardons and that OPA is withholding or misrepresenting critical information from the presidents it is supposed to serve.  Taxpayers should not be forced to subsidize an office that is abusing its power, nor should applicants for executive clemency face a deck that is stacked against them in secret.

Related posts concerning federal clemency practices:

May 21, 2012 in Clemency and Pardons, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Thursday, May 17, 2012

Two notable forthcoming FAMM events

I am happy to spotlight two notable events put together by Families Against Mandatory Minimums described to me via an e-mail:

The first event is at the National Press Club in Washington DC on Thursday, May 24, from 10-11am: a panel will discuss Dafna Linzer’s shocking Washington Post article on the failures of the Office of the Pardon Attorney (OPA) regarding Clarence Aaron’s commutation request.  The panel will include Dafna, former OPA staffer Sam Morison,  Debi Campbell (a former prisoner who did not receive a commutation), and Linda Aaron, Clarence’s mother.  FAMM is calling on Congress to investigate OPA.

The second event happens on-line on Friday, May 18 (tomorrow): with a focus on Florida laws and the 20-year mandatory minimum Marissa Alexander received for defending herself against her abusive husband, FAMM us trying a “Facebook forum.” FAMM's Florida project director, Greg Newburn, will be taking live Q&A on the topic. This event is a bit of an experiment, and FAMM is hoping for a good turnout (via this link).

May 17, 2012 in Clemency and Pardons, Mandatory minimum sentencing statutes, Scope of Imprisonment | Permalink | Comments (0) | TrackBack

Tuesday, May 15, 2012

Detailing the ugliness of modern clemency practice in Arizona

Brewer-ObamaWhile the journalists at ProPublica continues to do great work exposing the ugliness of the clemency process in the federal system (details here and here), reporters at the Arizona Republic have detailed in this recent lengthy article that the clemency norms in that state are just as ugly.  Here are the basics from an article headlined "Arizona prisoners rarely granted clemency":

By his 14th birthday, Tommy Londo was addicted to crack cocaine. With both parents in prison, he grew up on the streets of Phoenix, homeless and uneducated. He spent his teens in and out of mental hospitals and shelters. After he was arrested in 2004 for selling a $20 lump of crack to an undercover police officer, prosecutor Eric Rothblum described him as "a clear societal liability." Londo was sentenced to 15 years and nine months in prison.

Seven years later, in 2011, Arizona's Board of Executive Clemency unanimously agreed that Londo had turned his life around. He was working on his GED, was drug-free and had earned a certificate for good behavior in prison.

The board recommended commuting Londo's sentence to five years, stating in a letter to Gov. Jan Brewer that Londo was someone who "has made outstanding progress." The board noted, too, that the judge who sentenced Londo had called the prison term required by Arizona's mandatory-sentencing laws "excessively harsh" given the situation.

Brewer denied Londo clemency without comment last June. Londo has plenty of company. Statistically, if you are convicted of a felony in Arizona, you are more likely to be struck by lightning than granted clemency by the governor. Excluding the cases of inmates nearing the end of a terminal illness, Brewer is on track to grant the fewest clemency cases in more than two decades -- even when a judge and unanimous board recommend a shorter sentence.

Recent board members interviewed by The Arizona Republic believe clemency will be granted even less frequently in the future. Indeed, Brewer's decision to replace three of the five clemency-board members at once last month has led to legal and political turmoil: Departing board members say they were ousted for voting to grant clemency; and attorneys for an inmate scheduled to be executed Wednesday will be in Maricopa County Superior Court on Monday, seeking a court order to nullify the appointments, arguing that they violated state laws. If the court agrees, it would invalidate dozens of board decisions from the past three weeks and could stall the clemency process....

Budget cuts have reduced the number of clemency cases the board can hear to one-fourth as many as three years ago, creating a nearly two-year, 900-case backlog. This withering of clemency brings both personal fallout, in ruined lives and separated families, and a financial cost to taxpayers, who pay to house and feed inmates who could otherwise be working and paying taxes. In Londo's case, it will cost taxpayers at least $200,000, based on Department of Corrections per-inmate prison-cost estimates of $22,166 a year....

From 1913, when Arizona established a board of pardons and paroles, until 1993, fewer than 60 inmates a year applied for commutation, on average. In 1993, the state adopted so-called "truth in sentencing" laws, which effectively abolished parole. The new code requires offenders to serve at least 85 percent of their sentence before becoming eligible for community supervision; for many felonies, 100 percent of the sentence must be served. The laws, along with mandatory minimums that took discretion in sentencing out of the hands of judges, left commutation as the only avenue for most offenders to seek a reduced sentence. By 2005, commutation applications soared to more than 1,200 a year....

Brewer is the first governor in at least 34 years who has not issued a single pardon. She has denied each of the clemency board's 13 recommendations. By comparison, Janet Napolitano issued 22 pardons over six years, Jane Dee Hull issued seven over 5.3 years, Fife Symington issued 13 over 6.5 years, and Rose Mofford granted 13 over three years....

There is an exception to Brewer's aversion to clemency: She has granted 19 requests to release inmates medically judged to have only days or weeks to live and who weren't considered a public-safety threat. Otherwise, in her three years and four months in office, she has routinely denied unanimous board recommendations for clemency, leaving scores of prisoners serving longer sentences than the board found they deserved.

Brewer declined requests for an interview. Her spokesman, Matthew Benson, issued a statement saying that every case is reviewed and that Brewer "fulfills this solemn responsibility with the seriousness owed, and always mindful of the victims harmed by these crimes."

Perhaps the most-debated commutation rejected by Brewer is the case of William Macumber, who was convicted in 1975 of a 1962 double homicide and sentenced to life in prison. In a unanimous recommendation three years ago, the board said he had served excessive time in prison and had a record of behavior showing he is not a threat to society. Most importantly, the board called his conviction a miscarriage of justice, saying that "the evidence that now exists certainly casts serious doubt on Mr. Macumber's conviction."

Former state Judge Thomas O'Toole told the board that another man confessed to committing the murders to him in 1967, but attorney-client privilege required him to remain silent about the confession until after his client died.

Montgomery's office strenuously opposed Macumber's clemency petition, calling his petition misleading. Brewer denied commutation in November 2009, sparking critical national-media coverage. In October 2010, Brewer fled her own televised news conference after Macumber's son asked the governor about her decision.

"The parole board says he's innocent, yet she still won't do anything," says P.S. Ruckman Jr., an Illinois political-science professor who publishes a blog on clemency, pardonpower.com. He is highly critical of Brewer and other governors who he says don't appear to take their pardon powers seriously. "Sometimes the law has a disproportionate impact and may be too rigid. That's what the pardon power is for," he says. "Brewer has the power and discretion to have a larger sense of justice and to do something about it. That's her duty."

Since taking office, Brewer has granted five commutations, aside from those for inmates at death's door. Four of these reduced sentences by less than 2.5 years. The biggest reduction was for Christopher E. Patten, who was sentenced to seven years for manslaughter as the driver of a vehicle in a 2005 drive-by shooting in Phoenix. The judge noted that Patten was forced at gunpoint to drive the vehicle, turned himself in to police and testified against the shooters at the risk of his life. He served just under two years before the governor granted a commutation in October 2009. Aside from those granted to dying inmates, Brewer hasn't granted any commutations in the last 17 months and has rejected 39 recommended by the board, out of 1,180 applications, according to board records. That does not include the nearly 900 cases in the backlog.

This story makes me wonder if there may have been a big misunderstanding concerning the (in)famous interaction between Gov Brewer and Prez Obama captured in the photo posted above.  Rather than having a testy encounters, perhaps Gov Brewer was telling Prez Obama how pleased and impressed she was that the Prez has been as much of a clemency scrooge as she has been.

Related posts concerning federal and state clemency practices:

May 15, 2012 in Clemency and Pardons, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (9) | TrackBack