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