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, 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

Sunday, May 13, 2012

ProPublica reveals more ugliness in federal clemency process

The Washington Post has published here the latest installment of ProPublica's on-going investigative reporting on the federal clemency system.  This lengthy piece is headlined " Clarence Aaron was denied commutation, but Bush team wasn’t told all the facts," and here are excepts:

Clarence Aaron seemed to be especially deserving of a federal commutation, an immediate release from prison granted by the president of the United States.  At 24, he was sentenced to three life terms for his role in a cocaine deal, even though it was his first criminal offense and he was not the buyer, seller or supplier of the drugs.  Of all those convicted in the case, Aaron received the stiffest sentence.

For those reasons, his case for early release was championed by lawmakers and civil rights activists, and taken up by the media, from PBS to Fox News.  And, ultimately, the prosecutor’s office and the sentencing judge supported an immediate commutation for Aaron.

Yet the George W. Bush administration, in its final year in office, never knew the full extent of their views, which were compiled in a confidential Justice Department review, and Aaron’s application was denied, according to an examination of the case by ProPublica based on interviews with participants and internal records.

That Aaron joined the long line of rejected applicants illuminates the extraordinary, secretive powers wielded by the Office of the Pardon Attorney, the branch of the Justice Department that reviews commutation requests.  Records show that Ronald Rodgers, the current pardon attorney, left out critical information in recommending that the White House deny Aaron’s application.  In a confidential note to a White House lawyer, Rodgers failed to accurately convey the views of the prosecutor and judge and did not disclose that they had advocated for Aaron’s immediate commutation.

Kenneth Lee, the lawyer who shepherded Aaron’s case on behalf of the White House, was aghast when ProPublica provided him with original statements from the judge and prosecutor to compare with Rodgers’s summary.  Had he read the statements at the time, Lee said, he would have urged Bush to commute Aaron’s sentence....

The work of the pardon office has come under heightened scrutiny since December, when ProPublica and The Washington Post published stories showing that, from 2001 to 2008, white applicants were nearly four times as likely to receive presidential pardons as minorities.  The pardon office, which recommends applicants to the White House, is reviewing a new application from Aaron.  Without a commutation, he will die in prison....

The number of pardons awarded has declined sharply in the past 30 years, as have commutations.  Obama has rejected nearly 3,800 commutation requests from prisoners. He has approved one.  Bush commuted the sentences of 11 people, turning down nearly 7,500 applicants.  A former pardon office lawyer said some applicants have been turned down “en masse”with little, if any, review, a claim the Justice Department disputes....

Between 1980 and 2010, requests for commutations rose sharply, reflecting lengthier sentences and the elimination of paroles for federal inmates, while the number of successful applicants plummeted.  Under Ronald Reagan and Bill Clinton, both two-term presidents, one applicant in 100 was successful.  Under Bush, approvals fell to barely better than one in 1,000.

Related posts concerning ProPublica series and federal clemency practices:

May 13, 2012 in Clemency and Pardons, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (24) | TrackBack

Saturday, May 12, 2012

Another obvious mandatory sentencing injustice in Florida "warning shot" case

As reported in this CNN story, headlined "Florida woman sentenced to 20 years in controversial warning shot case," another high-profile shooting case in Florida has produced a different kind of criminal justice controversy.  Here are the details:

Saying he had no discretion under state law, a judge sentenced a Jacksonville, Florida, woman to 20 years in prison Friday for firing a warning shot in an effort to scare off her abusive husband.

Marissa Alexander unsuccessfully tried to use Florida's controversial "stand your ground" law to derail the prosecution, but a jury in March convicted her of aggravated assault after just 12 minutes of deliberation.

The case, which was prosecuted by the same state attorney who is handling the Trayvon Martin case, has gained the attention of civil rights leaders who say the African-American woman was persecuted because of her race.

After the sentencing, Rep. Corrine Brown confronted State Attorney Angela Corey in the hallway, accusing her of being overzealous, according to video from CNN affiliate WJXT. "There is no justification for 20 years," Brown told Corey during an exchange frequently interrupted by onlookers.  "All the community was asking for was mercy and justice," she said.

Corey said she had offered Alexander a plea bargain that would have resulted in a three-year prison sentence, but Alexander chose to take the case to a jury trial, where a conviction would carry a mandatory sentence under a Florida law known as "10-20-life." The law mandates increased penalties for some felonies, including aggravated assault, in which a gun is carried or used.

Corey said the case deserved to be prosecuted because Alexander fired in the direction of a room where two children were standing. Alexander said she was attempting to flee her husband, Rico Gray, on August 1, 2010, when she picked up a handgun and fired a shot into a wall.  She said her husband had read cell phone text messages that she had written to her ex-husband, got angry and tried to strangle her.

She said she escaped and ran to the garage, intending to drive away.  But, she said, she forgot her keys, so she picked up her gun and went back into the house. She said her husband threatened to kill her, so she fired one shot. "I believe when he threatened to kill me, that's what he was absolutely going to do," she said.  "That's what he intended to do. Had I not discharged my weapon at that point, I would not be here."...

A jury convicted Alexander in March and Judge James Daniel denied her request for a new trial in April.  Daniel handed down the sentence Friday after an emotional sentencing hearing during which Alexander's parents, 11-year-old daughter and pastor spoke on her behalf.

Several people had to be escorted from the courtroom after breaking out singing and chanting about a perceived lack of justice in the case, but Daniel made a point to say that he had no choice under state law. "Under the state's 10-20-life law, a conviction for aggravated assault where a firearm has been discharged carries a minimum and maximum sentence of 20 years without regarding to any extenuating or mitigating circumstances that may be present, such as those in this case," Daniel said.

Brown, the Jacksonville congresswoman, told reporters after the sentencing that the case was a product of "institutional racism."

"She was overcharged by the prosecutor.  Period," Brown said.  "She never should have been charged."  Brown has been more complimentary about Corey's work in the Trayvon Martin case, where her office filed second degree murder charges against neighborhood watch volunteer George Zimmerman in the February 26 death of the unarmed African-American teen-ager.

It is sad, very disappointing and ultimately quite harmful that Rep. Corrine Brown is apparently so eager to assert that the injustice in this case reflects "institutional racism" and misuse of prosecutorial discretion.  It seems far more appropriate to complain that the injustice in this case reflects structural flaws in Florida's sentencing laws and mistakes by the state legislature to fail to provide a safety-valve from the application of broad mandatory sentencing provisions.

As the CNN story reveals, the prosecutor apparently had the ability and authority to prevent application of Florida's "10-20-life" sentencing law if Marissa Alexander had been wiling to forgo her constitutional right to trial to have the judicial system consider her self-defense claims.  But after Alexander decided to exercise her trial rights, then her conviction apparently deprived a judge or any other authority the ability and authority to sentence her to anything less than 20 years in prison.  Without knowing more about the case, I am not sure if the three-year term offered in the plea or even a lesser sentence would have been appropriate, but it seem obvious to me that a 20-year term is grossly excessive for Alexander's offense conduct.

Bemoaning this case as a reflection of "institutional racism" brings far more heat than light to this dark (but not uncommon) example of mandatory sentencing injustice.  A focus instead on the problems with letting only prosecutors and not judges decide if a case merits an exception to strict sentencing rules could help this case engender needed structural reforms rather than more racial polarization.  Helpfully, the folks at FAMM are effectively using this case to bring attention to these critical sentencing matters, but I fear that the eagerness of Rep. Corrine Brown to play the race card will eclipse FAMM's efforts to use this kind of case to foster sober and needed sentencing reforms.

Though I am not certain of the sentencing commutation authority of Florida's Governor, this case seems to cry out for executive clemency.  Though involving a very offense environments, I am reminded of the high-profile "border agent" case from a few years ago in which two federal border agents got saddled with a sentences of more than a decade after failed self-defenses claims due mandatory federal gun sentencing provisions.  On his last day in office, as detailed here, President George W. Bush justifably commuted the sentences of these border agents.  I hope Florida's Governor has both the power and the wisdom to use the same means to undue an obvious sentencing injustice in this case.

May 12, 2012 in Clemency and Pardons, Examples of "over-punishment", Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Race, Class, and Gender, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (34) | TrackBack

Wednesday, May 09, 2012

ACS event in DC tomorrow on presidential clemency and drug sentencing

If I was within ready driving distance of DC, I would make extra sure to find time to attend this notable ACS event scheduled for tomorrow morning (Thursday, May 10), which is titled "Reimagining the Constitutional Pardon Power: Does the President Have a Role in Making Drug Sentences Fairer?". The program has an awesome line-up of important speakers from both the academy and practice, including former Maryland Governor Robert Ehrlich, and former White House Counsel Gregory Craig.  Here is how the ACS website sets up the event:

On Thursday, May 10, 2012, at 10:00 a.m., the American Constitution Society for Law and Policy and the Open Society Foundations will host “Reimagining the Constitutional Pardon Power: Does the President Have a Role in Making Drug Sentences Fairer?” In Article II of the U.S. Constitution, the President’s pardon power resides with little fuss or fanfare, likely a result of its infrequent use. Article II, Section 2 provides that the President "shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment." Despite this explicit authority, and the thousands of clemency petitions received by the Department of Justice each Administration – close to 6,000 such petitions have been received by the Obama Administration thus far – the pardon power is a tool rarely used in our criminal justice system. As the Administration wraps up its first term in office having granted 23 clemency petitions, we consider whether the pardon power should be used as a tool for balancing unfair sentencing laws in the criminal justice system.

The President took a step in this direction when he commuted the sentence of federal prisoner Eugenia Jennings, who was serving a 22-year sentence for a nonviolent, crack cocaine offense. Should clemency in this context become customary? Is there a viable pardon process that can be used? If pardon power is exercised regularly, how do we ensure fair and nondiscriminatory procedures? Are governors setting an example at the state level for how pardon powers should be used? These questions and others will be considered by the program’s panel of experts.

May 9, 2012 in Clemency and Pardons, Drug Offense Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Tuesday, May 08, 2012

Noting President Obama's (still) stingy clemency record

The folks at MSNBC has this new piece, headlined "President Obama 'stingy' on pardons, says clemency expert," which includes data that are familiar to regular readers. Here are excerpts:

President Barack Obama is on track to be one of the least forgiving of presidents in U.S. history — as measured by his use of presidential pardon powers, according to a political science professor who blogs about clemency exercised by presidents and governors.

"It is fair to say two things," said P.S. Ruckman Jr., who teaches at Rock Valley College in Rockville, Ill. "One is (Obama) is definitely being exceptionally stingy. There’s no doubt about that. There’s also no doubt that this is in a way unexpected."

As president, Obama has pardoned 23 people, including one commuted sentence, in his first 40 months in office. Barring a dramatic flurry of clemency from the White House in the coming eight months, Obama will be among the bottom two or three presidents for granting pardons in his first term, Ruckman said....

While campaigning for office, Obama was critical of the mandatory minimum penalties for drugs, especially those that specified much heavier sentences for those using crack cocaine than to the ones associated with more expensive powder cocaine. Mandatory minimums, which emerged in the 1980s, are partially responsible for swelling federal prison populations — to 218,261 on the week of May 3, compared to 24,363 in 1980, according to government documents.

In April 2010, the president signed into law the Fair Sentencing Act, which aimed to even out the mandatory minimums, which critics say are discriminatory to African Americans. But Obama did not — as some expected or hoped — go on to throw open the doors for large numbers of people incarcerated under the old mandatory sentences....

Obama could step it up in the last quarter. Historically, presidents do tend to grant more pardons in the fourth quarter of each year, especially the fourth quarter of the final year in the term, Ruckman said.  Among recent presidents, George W. Bush had granted 37 pardons and commutations at about this point in his first term. By the end of the year, he had added another 32....

Obama may also be reserving acts of clemency for his second term, if he gets one. Presidents Bill Clinton and George W. Bush both granted many more pardons in their second terms than they did in their first....  But none of these recent presidents comes close to President Franklin Delano Roosevelt in the use of pardon power. He granted about 600 pardons and commutations by the end of his first term, and about 2,800 over the course of his historic 12 years in office (1933-1945) before the two-term limit went into effect.

But even among modern presidents, Obama's current pace keeps him firmly among the most conservative American presidents to use these powers of forgiveness.  The average age of individuals pardoned by Obama is about 61, according to Ruckman and the average time between the original sentence and executive clemency granted by this president is 24.3 years.

May 8, 2012 in Clemency and Pardons, Who Sentences? | Permalink | Comments (3) | TrackBack

Sunday, April 22, 2012

Rare capital clemency granted to Georgia defendant hours before execution

On the same day this past Friday that I had the honor and pleasure of participating in a fantastic clemency symposium at the St. Thomas School of Law in Minnesota, a death row defendant in Georgia had the surprise and good fortune to be granted clemency to avoid his scheduled execution.  This local story reports on this rare grant of capital clemency from The Peach State:

Three days after staying the execution of Daniel Greene, the five-member [Georgia Board of Pardons and Paroles] voted to commute his death sentence to life without parole, an unusual move that elicited mixed reactions from the tight-knit community....

Greene, 42, was convicted in 1992 of fatally stabbing 20-year-old Bernard Walker, a former schoolmate who walked in on a robbery at a convenience store in Reynolds, Ga. Greene, whose attorneys claim he was under the influence of drugs, stabbed four other people the same night in a rampage that spanned three Middle Georgia counties.

Bob Bacle, the former Reynolds police chief who had addressed the paroles board this week on behalf of the victims and planned to attend the execution, condemned the decision, saying that justice had been subverted. "What good was it to have a trial 21 years ago and then 21 years later five folks on the board of pardons can second-guess a jury?" Bacle said in an interview. "That's what we've got a system of justice for. What does this tell criminals out there coming along now?"...

The board did not immediately explain its decision. But interviews and court filings suggest the panel may have been moved by Greene's supporters, who said the stabbings were out of character. Greene had been a model inmate on death row, they said, receiving a reprimand only once -- for having too many stamps.

While the Taylor County community was scarred by the crimes, many had greeted the specter of execution with ambivalence, including some of Walker's family members. A petition with more than 500 signatures urging clemency was presented to the board, and a number of well-respected members of the community had spoken on Greene's behalf....

One of Greene's more outspoken supporters had been Patty James Bentley, the chairwoman of the Taylor County Commission who is campaigning for a seat in the state House of Representatives. She wrote an emotional letter to the board asking it to spare Greene. "I really just praise God," she said, "and I pray that Bernard's family will find some peace."...

Mark Shelnutt, a Columbus attorney who prosecuted Greene, told the paroles board that a key factor in seeking capital punishment against Greene had been that life without parole was not an option for Georgia juries at the time. "Obviously, life without parole is no slap on the hand," Shelnutt said. "He’s never going to get out of jail."

The board's decision marked just the fourth time it's granted clemency since 2002.

April 22, 2012 in Clemency and Pardons, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5) | TrackBack

Saturday, April 07, 2012

California Governor commutes sentence in shaken baby case which SCOTUS took up

This new Los Angeles Times article reports on the latest sentencing development in a high-profile state case that got the federal courts involved into legal debates over a potential wrongful conviction.  The full headline for the piece provides a basic summary of the case and this latest development: "Brown commutes sentence of woman convicted of killing grandson; Shirley Ree Smith was serving time for the Van Nuys death when an appeals court freed her. Then the Supreme Court ruled she should return to prison. Questions over whether the baby was shaken arose."  Here are more details from the start of the piece:

Gov. Jerry Brown on Friday commuted the potential life sentence of a woman convicted of killing her infant grandson 15 years ago, saying "it is clear significant doubts surround" her guilt.

Shirley Ree Smith, 51, who was freed in 2006 after nearly a decade in prison but was destined to be reincarcerated after a U.S. Supreme Court decision last year, said it "hasn't sunk in yet" that the threat of more prison time has been lifted. "I just can't believe this is finally over with," said Smith, choked with tears of relief, when reached at her daughter's home in Alexandria, Minn. "Everybody's so excited, but I just can't believe it."

Smith, who has always maintained her innocence, was convicted by a Van Nuys jury in 1997 of causing the death of 7-week-old Etzel Glass after testimony by coroner's officials that the infant died of a blow to the head. She was sentenced to 15 years to life in prison.

Smith's clemency petition had been bolstered by new findings disclosed last week by the Los Angeles County coroner's office and a prominent UCLA pediatrician. Deputy Medical Examiner Dr. James Ribe raised eight challenges to the 1996 autopsy, which concluded that the baby died from violent shaking, then called shaken baby syndrome and now diagnosed as abusive head trauma. Ribe asserted that the cause of death should have been ruled "inconclusive."

"In light of the unusual circumstances in this particular case, the length of time Ms. Smith has served in prison, and the evidence before me that Ms. Smith has been law-abiding since her release from prison, I conclude that reducing her sentence to time served is appropriate," Brown said in his order.

Smith was the subject of a five-year legal jousting match between the U.S. Supreme Court and the U.S. 9th Circuit Court of Appeals, which struck down her conviction in 2006, saying there was "no demonstrable support" for the prosecution's theory that she must have shaken the baby to death. She was released from prison after that ruling.

Recent related posts:

April 7, 2012 in Clemency and Pardons, Who Sentences? | Permalink | Comments (8) | TrackBack

Monday, March 26, 2012

The Machinery of Criminal Justice #4: The Decline of Mercy

[Stephanos Bibas, guest-blogging]

In one of last week's posts on my new book, The Machinery of Criminal Justice, I noted that colonial criminal justice left room for mercy. Today I'll contrast how justice over the past two centuries has grown increasingly mechanistic and squeezed mercy out of the system.

Colonial justice embraced mercy as unfettered sovereign grace and individualized moral assessment. But to Enlightenment minds and scientists, mercy was arbitrary. Rational criminal justice, they thought, demanded equal, predictable deterrence, and mercy undercut deterrence.

Sustained criticism of exective clemency gradually restricted its use, and states gradually regulated pardons and commutations, making hearings more formal, closed to the public, and even ex parte. The clemency power, like jury nullification, came to seem lawless and unpredictable. The administrative ideal of equality across cases seemed to conflict with individualized justice and compassionate mercy. Thus, both executive clemency and jury nullification dwindled.

Another limit on mercy was the trend from indeterminate or unstructured sentences to structured sentencing guidelines. Reformers decried the dangers of arbitrariness, bias, and disparity in sentencing judges' unfettered discretion. Thus, the federal and more than a third of state sentencing systems enacted guidelines and mandatory minimum penalties to cabin harshness and mercy. The main discount available under the federal guidelines that could have related to mercy is an acceptance-of-responsibility discount. In practice, it has little to do with remorse or repentance and everything to do with whether a defendant pleads guilty.

Back in the colonial era, penalties were fixed and so nominally even less flexible than they are today. In practice, however, the rule-bound system was far more flexible than it seemed. Jurors frequently acquitted or convicted defendants of lesser offenses, and judges procured clemency for sympathetic defendants. Jurors knew the sentencing consequences of their decisions; indeed, judges advised them to take sentences into account in deciding whether to convict and for which crimes.

Today, however, jurors usually do not know the penalties, and judges instruct them to disregard sentencing in reaching their verdicts. Jurors cannot serve as the conscience of the community when they do not know what punishments they are authorizing (except in capital cases, where jurors must at least find the defendant death-eligible).

The one substantial source of leniency left is prosecutorial discretion. Prosecutors can decline to charge, drop charges, sign cooperation agreements, and recommend mercy in various other ways. Particularly sympathetic defendants may receive mercy as a result. More often, however, prosecutors use these tools as plea-bargaining chips, rewarding guilty pleas and punishing protracted litigation irrespective of the usual grounds for mercy.

This discretion hardly corresponds to the colonial model of transparent, accountable, individual moral evaluation. Unlike executives and juries, prosecutors retain discretion in part because their decisions are hidden from criticism and in part because they are supposedly making expert decisions about ranking priorities. Far from serving substantive justice and mercy, the discretion that remains in the system drives the plea-bargaining machinery.

So, that's all for now on the descriptive account of the historical changes from the colonial through the modern eras. In my last few guest posts this week, I'll offer several suggestions about how to make our punishments more transparent, pro-social, and reintegrative.

Stephanos Bibas, guest-blogging

March 26, 2012 in Clemency and Pardons, Criminal Sentences Alternatives, Guest blogging by Professor Stephanos Bibas, Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing | Permalink | Comments (4) | TrackBack

Saturday, March 24, 2012

"Battling Collateral Consequences: The Long Road to Redemption"

The title of this post is the title of this new and timely article by Joann Sahl, which is available via SSRN.  Here is the abstract:

Mississippi Governor Haley Barbour issued 193 controversial pardons on January 10, 2012, his last day in office. Former Ohio Governor Ted Strickland, who left office in January 2011, also faced criticism when he granted 280 pardons.  Both governors publicly acknowledged that they granted most of their pardons to rehabilitated ex-offenders who sought to overcome the civil consequences of their criminal convictions.  These consequences, known as collateral consequences, impede the ability of millions of ex-offenders to find employment, housing or other important benefits.

This Article explores the increasingly important, but controversial, role that governors play in the battleground of collateral consequences.  Their use of their redemptive pardon power has become critical to ex-offenders to overcome the collateral consequences of their convictions so they may reintegrate into society.  This Article examines the redemptive pardon process through the lens of two ex-offenders who made the journey from conviction to pardon.  As their stories reveal, the pardon process is long and arduous.  This Article recommends that governors adopt an expedited process for redemptive pardons so ex-offenders may have more timely relief from the burden of their collateral consequences.

The redemptive pardon serves an important role for ex-offenders who seek a second chance, but it is impossible for governors to consider and to grant the pardon applications of millions of ex-offenders. States must offer other remedies to ex-offenders that can also serve to ameliorate the impact of collateral consequences.  This Article recommends changes to judicial expungement statutes, using Ohio as a model, to offer this needed relief.

The redemptive pardon and judicial expungement process will help ex-offenders in their ongoing struggle with the collateral consequences of their convictions, but true relief can only occur if there is an end to collateral consequences.  This Article urges states to abolish collateral consequences and it highlights Ohio’s efforts as a model for this change.

March 24, 2012 in Clemency and Pardons, Collateral consequences, Who Sentences? | Permalink | Comments (1) | TrackBack

Wednesday, March 14, 2012

Oregon murderer seeks to reject and escape Governor's execution reprieve

As reported in this local article, which is headlined "Inmate Haugen still seeks execution," a convicted murderer in Oregon is pressing very interesting legal claims in order to get executed.  Here are the basics:

Death row inmate Gary Haugen, thwarted in his bid to be put to death, is challenging the execution reprieve that Gov. John Kitzhaber issued in November. The 49-year-old, twice-convicted killer is pursuing a new execution date.

Haugen’s attorney has mailed a motion to the Marion County Circuit Court asking for a new death warrant.  In a letter to Kitzhaber released Tuesday, Portland attorney Harrison Latto asserts that the governor exceeded his constitutional authority in issuing Haugen a temporary reprieve.  He said Haugen feels trapped in “legal limbo” and subjected to “cruel and unusual punishment.”

“Mr. Haugen does not feel that you are treating him mercifully by forcing him to remain in a kind of legal limbo that will last for an uncertain period of time, potentially as long as seven years, at the end of which he might, or might not be put to death,” Latto wrote. “Putting Mr. Haugen into that position against his will is more accurately described, in his view, as cruel and unusual punishment. While you have every right, of course, to lead a campaign to repeal the death penalty in Oregon, Mr. Haugen should not be forced to serve as a pawn in that effort....

On Nov. 22, Kitzhaber announced that he was halting Haugen’s scheduled Dec. 6 execution. He also said that he won’t allow any executions to occur while he is governor. In canceling Oregon’s first execution in 14 years, the Democratic governor denounced the death penalty in broad terms, describing it as “an expensive and unworkable system that fails to meet basic standards of justice.”...

In challenging the reprieve, Latto maintains it is “legally ineffective and void” because it was filed in court by a previous attorney representing Haugen, who “acted without his knowledge or authorization.”

“He is filing today a motion asking the court to annul that filing,” Latto wrote, referring to Haugen. “An act of this importance cannot be legally accomplished by a lawyer unless he acts according to the express instructions of his client.” Latto also asserts that Kitzhaber exceeded his authority by issuing Haugen a reprieve for an indefinite period of time. A reprieve, he said, must be issued for a specific period, and it must also be accepted by the inmate....

“There is strong legal authority supporting the idea that pardons, commutations, and reprieves are acts that must be based upon the Governor’s individualized judgment that a particular person deserves that relief,” he wrote. “In Mr. Haugen’s case, you made no such judgment. Your action, in contrast, is more in the nature of an attempted nullification of a particular Oregon law. The Governor, under the Oregon Constitution, has no such power.”

The full 4-page letter from Haugen's lawyer to the Governor of Oregon is available at this link, and it is truly fascinating.  I would be very interested to hear legal and policy opinions on how officials and judges likely will and/or should respond to Haugen's claims.

March 14, 2012 in Clemency and Pardons, Who Sentences? | Permalink | Comments (3) | TrackBack

Thursday, March 08, 2012

Via 6-3 vote, Mississippi Supreme Court upholds controversial pardon spree by outgoing Governor

As reported in this AP article, "The Mississippi Supreme Court on Thursday upheld the pardons issued by former Gov. Haley Barbour during his final days in office, including those of four convicted killers and a robber who had worked at the Governor's Mansion." Here is more about the ruling and some reactions to it:

In their 6-3 opinion, the Mississippi Supreme Court wrote "we are compelled to hold that -- in each of the cases before us -- it fell to the governor alone to decide whether the Constitution's publication requirement was met."  The court also said it couldn't overturn the pardons because of the Constitution's separation of powers of the different branches of government.

"In this decision, the Supreme Court has reaffirmed more than a century of settled law in our state.  But this was not only about the power of the pardon or even the power of the office, but about the ability of a governor to grant mercy," Barbour said in a statement.

The Supreme Court's ruling hit crime victims hard.  "I hope Haley Barbour and the Supreme Court justices can sleep at night," said Joann Martin, a probation officer from Fort Worth, Texas, whose sister was killed by one of the pardoned trusties....

[Mississippi Attorney General Jim] Hood said in a statement that he will pursue an initiative to amend the Constitution "to make it very clear that the judicial branch is responsible for enforcing the 30-day notification period in the future" and called on victims groups, law enforcement and other volunteers to help obtain signatures to put a measure on the ballot.  "We do respect the decision of the court, but feel deeply for how it must weigh on the victims and their families. It is these victims and family members who have lost today and the criminals who have won," Hood said.

"As Supreme Court Justice Mike Randolph wrote in his dissent, which was supported by Chief Justice William Waller and Justice Randy Pierce: 'Today's decision is a stunning victory for some lawless convicted felons, and an immeasurable loss for the law-abiding citizens of our State.'"

Barbour's statement said he understands "the natural feelings of victims and their families" and recognizes that pardons are generally unpopular.  "Nevertheless, these were decisions based on repentance, rehabilitation, and redemption, leading to forgiveness and the right defined and given by the state constitution to the governor to offer such people a second chance," he said....

In the end, a majority of the Supreme Court said it was up to the governor to decide if the pardoned inmates did what they were supposed to do.  In addition to the pardons issued in his final days in office, Barbour also granted medical release and conditional clemency to some inmates, but they weren't required to give public notice of their release.

All the opinions in this case from the Mississippi Supreme Court run 77 pages and can be accessed at this link.

Recent related posts:

March 8, 2012 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5) | TrackBack

Tuesday, March 06, 2012

Former Maryland Governor setting up law school pardon clinic and training program

As reported here by the Washington Post, in "former Maryland governor Robert L. Ehrlich (R) plans to launch the nation’s first law school clinic and training program devoted to pardons." Here is more from the article:

Ehrlich’s proposal takes aim at the inequities identified by ProPublica’s investigation into the dispensation of presidential pardons over the past decade.  White applicants were nearly four times as likely to receive forgiveness as minorities, the ProPublica analysis showed. African Americans had the worst chances of being pardoned.  Applicants with congressional support were three times as likely to receive pardons as those without it.

Ehrlich, who granted clemency to more than 200 convicts while in office from 2003 to 2007, said a pardons program would help disadvantaged applicants and give law school students experience dealing with people seeking a second chance, fostering “a sense of fairness and justice.”

“It would be a multi-pronged approach, including advocacy, public education and training,” said Ehrlich, who works in the D.C. office of King & Spalding, the Atlanta-based law firm. He also envisions the program as a place “where newly elected governors, their general counsels or chiefs of staff would also come and think about the pardon power.”

Ehrlich said he intends to contribute to the program and raise funds for it.  He is working to find it a home, looking at Georgetown law school and George Washington University, as well as other institutions in the Washington area.

Gregory B. Craig, who served as President Obama’s first White House counsel, said Ehrlich’s plan could help level the odds for pardon applicants lacking financial means and might spur presidents and governors to dispense more pardons overall.  “Pardons have fallen into disuse,” he said. “They have deteriorated and need to be restored.”

Craig advocated for pardon reform while in the White House, assigning a group of lawyers to design a process that would make pardons more attainable.  Among the options discussed was support for a law school clinic.

But none of the pardon reforms formulated early in the administration have advanced. Kathryn Ruemmler, who became Obama’s third White House counsel in June, was among the lawyers who worked with Craig on them.  Obama has turned down more pardon applicants, 1,019, and pardoned fewer, 22 — two of whom were minorities — than any modern president at this point in an administration....

Ehrlich’s proposal is modeled in part after the country’s only law school clinic for commutations, started a year ago at the University of St. Thomas law school in Minneapolis.  The commutations program is run by Mark Osler, a former federal prosecutor who has argued numerous cases before the Supreme Court.

Osler’s students travel around the country interviewing federal prisoners, examining their criminal cases and filing applications on their behalf.  Because pardon seekers must wait five years after completing their sentences before applying for presidential pardons, a law clinic to help them might face fewer hurdles, Osler said.  “With pardons, you would have the advantage of not sending students into prisons,” he said.

Ehrlich’s program would put law students to work much in the way Osler has, but it also would host training seminars for governors and their staff members, along with an annual symposium on pardons.

Sounds like a great idea at a time when this kind of work and initiative is badly needed.  Kudos to Gov. Erlich.

March 6, 2012 in Clemency and Pardons, Who Sentences? | Permalink | Comments (1) | TrackBack

Sunday, February 12, 2012

A broader perspective on Barbour pardon spree and surrounding controversy

Professor P.S. Ruckman, who write the always effective Pardon Power blog, has this new commentary inMississippi's Clarion-Ledger running under the headline "Lessons from Barbour: When cooler heads prevail, very few changes may be made, though."  Here are a few excerpts:

[W]hen all is said and done, more will be said than done.  As these kinds of storms calm, cooler minds just about always conclude there are many more reasons to retain the pardon power as it is, than there are to abolish it, or even modify it in any significant way.  The pardon power is not an archaic residue of monarchy that accidentally crept into state and federal constitutional schemes.  It is a deliberately incorporated, necessary and appropriate check and balance in our system of separation of powers.  Can the power be abused? Yes, as can any other.  Is it anti-democratic in nature? Yes, as is the electoral college, judicial review and other features of the Constitution, which guarantees a "republic," not a "democracy" (Article IV, Section 4)....

Mississippi legislators should also take note of what Alexander Hamilton says in Federalist 74 regarding Haley Barbour-like pardoning.  Hamilton argues the executive will rightly exercise "scrupulousness and caution" in granting pardons, and do so with "circumspection" if there is "dread" of being "accused of weakness or connivance" and the executive is in "apprehension of suspicion or censure" for pardons which are considered "injudicious" or "affected."  Which is to say, the best check against the abuse of the pardon power is, and always will be, public scrutiny.

Mr. Barbour clearly did not experience anything at all like dread, apprehension or circumspection.  Yet, Hamilton's analysis all but screams the solution: Mississippi gubernatorial candidates need to be asked about their view of pardons.  Do they intend to grant them?  If so, how often?  Or, how little?  And why?  They also need to be questioned about last-minute pardons and what factors they would consider in granting pardons. Candidates should explain their view of the state Parole Board, how important they consider its work and whether they will generally follow its recommendations?...

In sum, Mississippi can address pardon fiascos without overhauling its Constitution or rejecting what the Founding Fathers considered an important feature of our system of checks and balances and separation of powers.  Mr. Barbour well deserves his share of the blame.  But dread and circumspection can (and should) be created by a well-represented public that cares, a process that is transparent and an attentive press.

I highlight these excerpts from Ruckman's commentary because I think the media and the public ought also be asking these kinds of questions of US Presidential candidates.  The federal clemency power has been more often wickedly abused than wisely used over the last two decades, and in public debates and other political discourse, there ought to be questions raised about candidates' views of the federal clemency power and process.

February 12, 2012 in Clemency and Pardons, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Wednesday, February 01, 2012

Latest litigation news over controversial pardons in Mississippi

This local article, headlined "Justices may eye pardons; Attorney for former inmates hopes to halt nullification effort," reports on the basics of the brewing litigation over some of the controversial pardons that former Mississippi Gov Barbour issued on his way out of office.  Here is how the piece starts:

Attorneys on both sides of the battle over former Gov. Haley Barbour's pardons are criticizing each other for distracting from the central constitutional issue with unimportant, unsubstantiated claims.

Tom Fortner, the attorney for four of the five pardoned criminals who worked as trusties at the Governor's Mansion, filed a petition Monday asking the Mississippi Supreme Court to give immediate consideration to the case, through which the attorney general's office aims to overturn most of the 203 pardons Barbour granted during his two terms. A hearing is scheduled before Hinds County Circuit Court Judge Tomie Green at 1 p.m. Friday.

Fortner hopes to stop Green from moving forward because he said it's not constitutional for a judge to review a governor's pardon power. If Green overturned the former trusties' pardons Friday, they could land back in prison. Fortner said Hood "doesn't understand constitutional separation of powers - and he doesn't want to understand it because if he does, he loses."

Attorney General Jim Hood leveled a similar charge against his legal adversaries in a news release Monday. "This is a sideshow by Tom Fortner and the former governor to divert attention from the fact that (Barbour) has loosed his favored murderers upon the public without any legal authority to do so," Hood said.

The constitution requires an applicant to publish a notice in a newspaper for 30 days before a pardon is granted. Whether those publications were handled properly is the basis for Hood's argument to overturn the pardons.

This is interesting litigation not only because of most courts' justifiable disinclination to take on cases concerning clemency powers, but also because a broad ruling in favor of the state AG against the pardoned defendants might possibly raise even some federal constitutional concerns that perhaps could be appealed to SCOTUS.

UPDATE:  This AP article reports that the "Mississippi Supreme Court said Wednesday it will take up the legal challenge to the pardons ex-Gov. Haley Barbour gave out in his last days in office." 

February 1, 2012 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Friday, January 27, 2012

New NY Times report digs deeper into Mississippi pardon spree by Haley Barbour

This lengthy new piece in the New York Times, which is headlined "Many Pardon Applicants Stressed Connection to Mississippi Governor," provides some additional information about links between outgoing Gov. Haley Barbour and many offenders who received clemency via his pen. Here is an excerpt:

In the furor the followed Mr. Barbour’s clemency decisions — including more than 10 times as many full pardons as his four predecessors combined — beneficiaries like Mr. Vann have largely been overshadowed by others with higher profiles or more obvious connections. Among them were four murderers who had worked at the governor’s mansion; Brett Favre’s brother, who had killed a friend in a drunk driving incident; and Karen Irby, a Jackson socialite who killed two young doctors while driving drunk in 2009.

A close look at some of the clemency applications of nearly 200 of the other felons who were pardoned reveal that a significant share contained written appeals from members of prominent Mississippi families, major Republican donors or others from the higher social strata of Mississippi life.

The governor erased records or suspended the sentences of at least 10 felons who had been students at the University of Mississippi and Mississippi State when they were arrested, including at least three who killed people while driving drunk and several others charged with selling cocaine, ecstasy and other drugs.  Another pardon went to the grandson of a couple who once lived near Mr. Barbour’s family in his hometown, Yazoo City.

One beneficiary, Burton Waldon, had killed an 8-month-old boy in an alcohol-induced crash in 2001.  Mr. Waldon, a high school senior at the time, pleaded guilty and received a suspended sentence.  He is a member of the prominent Hill Brothers Construction Company family, big-money political donors who give mostly to Republicans, including Mr. Barbour.  An uncle of Mr. Waldon, Kenneth W. Hill Sr., sought and received a pardon from President George W. Bush in 2006, erasing a federal income tax conviction.

Mr. Barbour declined to comment on the pardons, but a spokeswoman said that every application had been treated alike.  “If you were poor or rich, you were told to go through the parole board process,” said the spokeswoman, Laura Hipp.

Ms. Hipp said that in roughly 95 percent of the cases, the governor went along with the majority recommendation of the five-member parole board he had appointed to review the requests.  In some cases, the governor granted pardons that were unanimously opposed by the board.  Grants of clemency are solely at the governor’s discretion, and he is not obligated to give his reasoning.

Recent related posts:

January 27, 2012 in Clemency and Pardons, Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (3) | TrackBack

Thursday, January 26, 2012

House Judiciary member asks AG Holder good (and overdue) questions on pardon process

Over at Pardon Power (where PS Ruckman continues to do great work on the recent Mississippi pardon spree), there is now this notable new post reporting that a "Legislative Assistant in the Office of Rep. Robert C. 'Bobby' Scott (VA-03) -- member of the House Judiciary Committee -- has confirmed that the following questions have been submitted to U.S. Attorney General Eric Holder":

1. You testified when you were confirmed that you would study the problems with the clemency advisory process and fix them. Please let us know what you have found and what changes you have made or plan to make.

2. It has been reported that the pardon attorney no longer assigns commutation cases to staff attorneys, and does not write a recommendation in the large majority of these cases.

3. How does this fulfill the Department's responsibility to advise the president about the merits of each case?

4. Doesn't this make the commutation process meaningless for most applicants?

5. How can the pardon attorney himself conduct a meaningful review of thousands of commutation petitions?

6. Even if most of these should be denied, if no one is really looking at them, how do you know each one is without merit?

7. We can all agree that no system is perfect.  The legal system is no exception.  There are mistakes.  The Constitution gives the president a role in fixing such mistakes.  How does this procedure help the president do that?

8. How does the pardon office identify the rare exception that deserves a closer look? Political support?  Media attention?  If so, is that the best way — the most fair way — to make these decisions?

As the title to this post suggests, I view all of these question to AG holder to be good ones and long overdue.  In addition, I would have added a substantantive query based on DOJ's testimony and recent Congressional work on crack sentencing: "In light of your Department's advocacy for crack and powder cocaine sentences to be equalized, as well as the passage of the Fair Sentencing Act in 2010, has any effort been made to give special attention or review to any commutation petitions filed by persons still serving very long crack sentences who may be able to make an especially convincing claim that their continued incarceration is unfair and serves no continued valid purpose?"

January 26, 2012 in Clemency and Pardons, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Thursday, January 19, 2012

Former Gov Haley Barbour explains "Why I released 26 prisoners"

In today's Washington Post, former Mississippi Governor Haley Barbour has this notable new piece headlined "Why I released 26 prisoners."  Here are some notable excerpts:

The furor over the pardons I recently granted as governor of Mississippi initially focused on numbers.  I would like to set the record straight.

People thought — incorrectly — that I had let 215 prisoners out of jail because the secretary of state reported that many people received clemency.  In fact, 189 of those people were not released from prison.  In most cases, they had already been out for many years.  These folks are no more a threat to society now than they were the week before I gave them clemency.

I believe in the governor’s power to grant clemency, but I granted fewer than 10 pardons or reprieves in my first term as governor.  After Hurricane Katrina hit in 2005, my staff just didn’t have time to deal with the issue, so at the end of my first term I pardoned only the inmates who had worked successfully at the governor’s mansion that term.

This was not a new thing.  For decades, Mississippi governors have granted clemency to the inmates who work at the mansion.  I followed that tradition four years ago and did so again at the end of my second term.  No one should have been surprised.

Despite all the publicity this month, few seem to notice the limited scope of my recent actions.  I authorized the release of 26 prisoners from custody.  As of last week, there were 21,342 inmates in the state corrections system and 60,517 people under Mississippi Department of Corrections supervision.  I released 12 one-hundredths of 1 percent (0.0012) of our state’s inmates.  About 95 percent of the clemencies I approved were recommended by our state parole board, and I accepted the parole board’s recommendations about 95 percent of the time.

When people realized that only 26 prisoners were being released — and that half of those 26 were given suspended sentences for medical reasons — the political attacks on my pardons shifted.  The story became that many of the 13 non-medical releases were murderers.  Of those 13, only 10 were pardoned; the other three were put under house arrest or a revocable, indefinite suspension....

I always intended to follow the tradition of gubernatorial clemency for the mansion inmates.  When I did so at the end of my first term, I was criticized for pardoning murderers.  I never made any secret of the fact that I would again pardon those who successfully completed work during my second term.  The mansion inmates I fully released are not threats to society.  They have paid the price for their crimes, having served an average of 20 years’ imprisonment.

In Mississippi, the constitutional power of pardon is based on our Christian belief in repentance, forgiveness and redemption — a second chance for those who are rehabilitated and who redeem themselves.  Other great religions have similar tenets; so does the U.S. Constitution.

Mississippi spends about $350 million a year on our corrections system, much of it aimed at rehabilitating those who went wrong.  Regrettably there are bad actors who will never be rehabilitated, but many who go to prison can be helped.  Our state recidivism rate is just above 30 percent, far below the national average.

For some who are rehabilitated and redeem themselves, the governor is the only person who can give them a second chance.  I am very comfortable giving such people that opportunity.

I am impressed with this piece, and it reminds me somewhat of some of the comments made by former Governor Mike Huckabee when he was given grief for his clemency practices.  I especially like not only Barbour's number crunching, but also the emphasis on his "Christian belief in repentance, forgiveness and redemption."  

Barbour's reference to the US Constitution also prompts me to note that President Obama has only commuted one sentence from the more than 216,000 inmates in the federal prison system, meaning he has released far less than one ten-thousands of 1 percent (0.000004) of federal inmates during his presidency.  Perhaps if President Obama ever faces any new questions about his faith, he might consider showcasing a true commitment to the Christian belief in repentance, forgiveness and redemption by starting to make serious use of his constitutional clemency power.   (Obama would need to commute about six sentences every week through 2012 to catch up to Barbour's record of (merely) releasing 12 one-hundredths of 1 percent (0.0012) of federal inmates.)

Recent related and older posts:

January 19, 2012 in Clemency and Pardons, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (15) | TrackBack

Wednesday, January 18, 2012

Delaware Governor commutes death sentence based principally on childhood abuse

As reported in this local article, "Delaware Gov. Jack Markell on Tuesday spared the life of condemned killer Robert A. Gattis, who was scheduled to die by lethal injection early Friday morning." Here are the details explaining why this clemency decision is both historic and intriguing:

It is the first time in modern memory, and perhaps the first time ever, that a Delaware governor has commuted a death sentence to life in prison.

Markell's action means the execution is canceled and the 49-year-old Gattis, who was convicted and sentenced to die for the May 1990 murder of his onetime girlfriend Shirley Y. Slay, will spend the rest of his life in prison without the possibility of parole.

Markell cited the "unusual and perhaps historic" recommendation of the Delaware Board of Pardons, in a 4-1 vote Sunday, to offer Gattis mercy. "I realize my decision may cause pain to the family and friends of Shirley Slay. For that, I deeply apologize," Markell said in a statement.

The Slay family said they were disappointed by the outcome but accepted it. "We are going to look at it as the way God wanted it to be," said Slay's mother, who also is named Shirley.

She said Markell met with members of the family personally before he made his decision public Tuesday, and they appreciated the chance to share their side of the story with Markell and explain their feelings and concerns.

Markell put conditions on his offer of commutation, stating Gattis must agree to surrender all future legal appeals and to spend the rest of his natural life in the Maximum Security Unit of Vaughn Correctional Center.

To that end, according to Markell's office, a hearing is expected to be held today in New Castle County Superior Court, where Gattis will formally waive his appellate rights before a Superior Court judge and agree to the conditions set by Markell.

Attorneys representing Gattis said at last week's clemency hearing and repeated again Tuesday that they see no problem with Gattis' accepting those terms. Attorney Karl Schwartz, with the Federal Defender's Office, said Gattis recognizes that he deserves to spend the rest of his life in prison for what he did.

Off the top of my head, I cannot recall another similar commutation which depended upon a defendant giving up all his legal appeals.  But such a condition on clemency seems an astute and reasonable way to give a different sort of closure to the victim's family in conjunction with a decision to take a killer off death row.

This link to the full statement of the Delaware Board of Pardons discussing its recommendation makes for an interesting read, and here is the heart of the justification given by the Board for its clemency recommendation:

In considering the full record, we accept that if even half of what has been submitted about Mr. Gattis's childhood is true, he was victimized physically, emotionally, and sexually by family members who owed him a duty of care.  There is evidence in the record that Mr. Gattis complained to medical professionals of mental illness and involuntary violent impulses over a year before Ms. Slay’s murder.  Although Mr. Gattis knew right from wrong and was guilty of first degree murder, we, in the exercise of conscience required of us as members of this Board, believe that these are sufficiently mitigating facts to warrant consideration for clemency.

January 18, 2012 in Clemency and Pardons, Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (16) | TrackBack

Saturday, January 14, 2012

"Barbour ‘At Peace’ with Pardons, but Scandal Rages On"

The title of this post is the headline of this report via Time magazine about the latest state of the debate over Mississippi's former governor's out-the-door pardon spree.  Here are excerpts:

Former Mississippi Governor Haley Barbour on Friday defended more than 200 pardons he issued during his final days in office, 41 of which he gave to convicted murderers, sex offenders and child molesters.

“Mississippians are mostly Christians,” Barbour said in a lengthy statement, which he read at a Jackson press conference on Friday.  “Christianity teaches us forgiveness and second chances. I believe in second chances, and I try hard to be forgiving.  The historic power of gubernatorial clemency by the Governor to pardon felons is rooted in the Christian idea of giving second chances.  I’m not saying I’ll be perfect, that no one who received clemency will ever do anything wrong.  I’m not infallible, and no one else is.  But I’m very comfortable and totally at peace with these pardons, especially of the Mansion inmates.”

Barbour went on to say that he would be perfectly comfortable allowing any of the pardoned “trusties” -– prisoners who worked in the governor’s mansion, some of whom were murderers –- to play with his grandchildren unsupervised. “Historically the trusties sent to work at the Mansion have been murderers, convicted of crimes of passion, as experts say they are the least likely to commit another crime,” he said.  Barbour, a Republican, added that 90% of his pardons were recommended by the Mississippi Parole Board and that the clemencies would save the state millions in medical bills because many of the inmates he pardoned were suffering from chronic diseases such as diabetes....

Less than an hour before Barbour released his statement, [Attorney General Jim] Hood, a Democrat, released the preliminary findings of his investigation into the pardons.  Of the 181 files Hood’s office has investigated, he says 140 had no public notice prior to Barbour’s pardon.  Of the 41 cases that did, 27 were insufficient the notices were published less than 30 days before the pardons.  Only seven cases fully met the rule of law, while seven more cases were still under review.  But even if Hood could void Barbour’s pardons -– a move that would set a new legal precedent in Mississippi – it’s not clear if it’s possible to reincarcerate the five inmates who’ve already been let out, four of them convicted murderers.... 

In the court of public opinion, Hood is clearly winning.  Barbour, who as of two days ago returned to life as a lobbyist and lawyer, seemed content to let his legacy stand. “I am very comfortable with the decisions I made during my term as Governor as to clemency,” he said. “All this is consistent with the powers given the governor by our Constitution, and I am fully confident the pardons and other clemency are all valid.” Hood, though, accused Barbour of trying to live above the law.  “He’s tried to rule the state like Boss Hogg and he didn’t think the law applied to him,” Hood told CNN, referring to the villain in the Dukes of Hazzard series.  “This isn’t a partisan issue. Either you followed the constitution or you didn’t.”

Ultimately, Barbour is betting that Mississippians, accustomed to 11th hour gubernatorial pardons, don’t really care about a bunch of ex-convicts and that the glare of the national klieg lights will go away when the next big story breaks.  Hood is betting that Mississippians will no longer stand for such outdated practices.  But given that the Mississippi legislature tried and failed to curb Barbour’s clemency powers when he pardoned four convicted killers in 2008, Hood and the Democrats may be facing an uphill battle to keep the outrage going long enough to force a change in the law.

Recent related posts:

January 14, 2012 in Clemency and Pardons, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (27) | TrackBack

Thursday, January 12, 2012

Mississippi state judge blocks some of out-going Gov. Barbour's controversial pardons

This new AP story, which is headlined "Miss. court halts quick release of some pardoned," reports on an interesting new development in the controversy over the remarkable use of clemency power by Mississippi's (now-former) Governor on his way out the door. Here are the basics:

A Mississippi judge has temporarily blocked the release of 21 inmates who'd been given pardons or medical release by Republican Haley Barbour in one of his final acts as governor.

Circuit Judge Tomie Green issued an injunction late Wednesday at the request of Democratic Attorney General Jim Hood.  Hood said he believes Barbour might've violated the state constitution by pardoning some inmates who failed to give sufficient public notice that they were seeking to have their records cleared.

Barbour said in a statement Wednesday, a day after leaving office, that he believes people have misunderstood why he gave reprieves to more than 200 inmates.... In Wednesday's statement, Barbour said: "The pardons were intended to allow them to find gainful employment or acquire professional licenses as well as hunt and vote. My decision about clemency was based upon the recommendation of the Parole Board in more than 90 percent of the cases."...

Barbour spokeswoman Laura Hipp was not immediately available for comment about Green's decision to temporarily block release of the 21 inmates.  It was not clear how many of the 21 are convicted killers.

Section 124 of the Mississippi Constitution says any inmate seeking a pardon must publish notice about his intentions.  Before the governor can grant it, the notice must appear 30 days in a newspaper in or near the county where the person was convicted.

Hood said it's not clear whether all the inmates pardoned by Barbour met the publication requirement, and that he believes it's likely that some did not.  "It's unfortunate Gov. Barbour didn't read the constitution," Hood said Wednesday.

Mississippi Department of Corrections spokeswoman Suzanne Singletary told The Associated Press that five inmates let out over the weekend are the only ones on Barbour's list who had been released as of Wednesday evening.  She said the 21 were still in custody because processing paperwork generally takes several days. Among other, things, state law requires the department to give victims 48 hours' notice before an inmate is released.

Neither Hipp nor Barbour's lead staff attorney, Amanda Jones Tollison, responded to questions about whether Barbour's staff verified that pardoned inmates had met the 30 days' publication requirement.

Recent related posts:

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

Wednesday, January 11, 2012

"Did Haley Barbour's pardon spree go too far?"

The title of this post is the headline of this effective new article from the Christian Science Monitor discussing the controversy over the remarkable use of clemency power by Mississippi's (now-former) Governor on his way out the door.  Here are excerpts:

A law-and-order Republican governor, Haley Barbour of Mississippi, has given full pardons or clemency to 208 inmates, including 14 convicted murderers, setting off a political uproar over the limits of executive power in the traditionally patriarchal South....

Mr. Barbour, a popular two-term governor who was term-limited from serving more, signed the pardons before leaving office on Tuesday. The surprise spree caught both Republicans and Democrats off stride, and it suggested that Barbour, who had flirted with running for the White House last year, may be leaving politics for good....

[T]he pardons have scrambled traditional political roles in the state, with the Republican Barbour going easy on scores of convicted criminals and Democrats clamoring to bolster law and order. Toward that end, they reintroduced a bill to curb gubernatorial pardon power. “It seems to kind of fly in the face of the Haley Barbour politician that we all know, because he is a strong law-and-order guy,” says Curtis Wilkie, a journalism professor at Ole Miss in Oxford.

Barbour has refused to comment on the pardons. Several are high-profile convicts, including Jackson socialite Karen Irby, convicted of manslaughter in 2010 for the DUI-related deaths of two doctors; Earnest Scott Favre, older brother of retired NFL quarterback Brett Favre, who was convicted for the DUI-related death of his friend; and Azikiwe Kambule, a South African expat convicted in a 1996 carjacking and murder case.

Eighty of the pardoned prisoners had committed crimes including murder, homicide, manslaughter, rape, aggravated assault (including one on a police officer), and armed robbery. Thirty-two of those prisoners received full pardons, meaning they were set free without conditions. Other pardoned prisoners include inmates who worked at the Governor's Mansion under a “good behavior” program that traditionally has been a route to clemency or pardon....

The torrid pardon pace by Barbour outdistanced other Mississippi governors by a wide margin. Former Gov. Kirk Fordice had the previous high, pardoning 13. Before this week's pardons, Barbour had previously signed the release papers for 10 convicted criminals, none of whom have caused any trouble, the Mississippi Department of Corrections commissioner, Christopher Epps, told Mississippi reporters....

Last summer, Barbour was hailed by the National Association for the Advancement of Colored People as a "shining example" for commuting the life sentences of two African-American women who had spent 16 years in prison for an armed robbery that yielded $11....

In Mr. Favre's case, he had been sentenced originally to a year of house arrest but was ordered to serve a suspended 15-year prison sentence after he left his house to go fishing. In pardoning Mr. Kambule, Barbour may have heeded pleas from his attorneys that there was no evidence that the then-teenager fired the fatal shots that killed a Madison County woman in 1996, a crime for which Kambule was sentenced to 35 years in prison.

"There are a whole lot of people in prison who should not be there," Chokwe Lumumba, a Jackson City councilman, told The Clarion-Ledger. "Obviously, murder is the kind of thing you put people in [prison] for ... but that doesn't mean that people cannot be rehabilitated."

Other Mississippians say Barbour simply went too far. "He will not comment on anything,” Tiffany Ellis Brewer, sister of the woman slain by the pardoned Mr. Gatlin, told CNN. “We have no answers as to why he has done this. I would like to think he did not have all of the facts of the case.... Apparently, we haven't had a really good man for our governor."

Two great reads (and additional information) on what's going on in Mississippi come from PS Ruckman at his Pardon Power blog:

The second of these posts wraps up this way:

The signs of a last-minute rush abound. 63 percent of the warrants do not even list the sentences that were given to recipients. Other critical dates are missing right and left. A man named Turner was pardoned. But he has actually been dead for some time, since 1999. The warrant doesn't say when he was convicted, if he died in prison, or anything about why he was pardoned. Which seems odd given the fact that, well, he is dead, and given the fact that someone took the time to note an arsonist from the 1960's was now living a "good, productive and useful life."...

[This] was a classic example of just about every thing the pardon power should not be. The only thing that seems to be missing, for now, is some hint of "politics" (donors, supporters, friends, relatives, inside influence and the like). But, give it time. Barbour clearly could have spread these decisions over a period of months, if not years, making each one a little more well-considered, a little less suspicious looking and -- for those who really were deserving -- something barely worth public celebration. But, no, a Republican governor, in the South, and potential presidential nominee has to keep up appearances.

One thing we can say for certain, now, Barbour will not be considering a run for the presidency any time in this lifetime.

January 11, 2012 in Clemency and Pardons, Who Sentences? | Permalink | Comments (4) | TrackBack

Monday, January 09, 2012

On way out door, Mississippi Gov. Haley Barbour pardons five serious offenders who worked at the Governor's Mansion

This AP story, headlined "Miss. Gov. Barbour Pardons 4 Killers," reports on what seems sure to be a high-profile state clemency story in the days and weeks ahead.  Here are the basics:

Outgoing Mississippi Gov. Haley Barbour has pardoned at least four convicted killers who worked as inmate trusties at the Governor's Mansion, including a man who was denied parole less than two weeks ago.

Relatives of three victims told The Associated Press on Monday that state corrections officials notified them over the weekend that the men convicted in the crimes were to be released this past Sunday.  Barbour's office hasn't responded to numerous messages. Barbour, a Republican, leaves office on Tuesday.

Copies of the pardons filed with the Mississippi Secretary of State's office were released Monday. They show he has pardoned at least five men, the convicted killers and a man serving life for robbery.

The inmates are David Gatlin, convicted of killing his estranged wife in 1993; Joseph Ozment, convicted in 1994 of killing a man during a robbery; Anthony McCray, convicted in 2001 of killing his wife; Charles Hooker, sentenced to life in 1992 for murder; and Nathan Kern, sentenced to life in 1982 for burglary after at least two prior convictions.

The pardons outraged victims' relatives as well as Democratic lawmakers, who called for an end to the custom of governors' issuing such end-of-tenure pardons.  "Serving your sentence at the Governor's Mansion where you pour liquor, cook and clean should not earn a pardon for murder," Public Service Commissioner Brandon Presley, a Democrat, posted Monday on his Facebook page.

While Barbour's office hasn't responded to messages about the pardons, he told the AP for a 2008 story that releasing the trusties who live and work at the mansion is a tradition in Mississippi that goes back decades.  Trusties are prisoners who earn privileges through good behavior....

Democrats have pounced on the pardon.... Members of the Mississippi House Democratic Caucus will hold a press conference at 3 p.m. today at the Mississippi Capitol Rotunda. They plan to announce legislation to prevent the premature pardon or release of murderers. Democratic members of the legislature will be joined by family members of victims.

Barbour created a similar stir by releasing convicted killer Michael Graham in 2008. The Republican later defended the move as "the custom" of governors to cut short the sentences of the mansion's inmate workers if they behave.

Barbour's three predecessors, dating back to 1988, gave some type of early release or pardon to a total of 12 such prisoners. All but two of them had been convicted of murder. One was serving time for forgery and another for armed robbery and aggravated assault.

Mississippi Corrections Commissioner Chris Epps told the AP for a 2008 story that the inmates who end up working at the Governor's Mansion are often convicted murderers because they are the ones who serve long enough sentences to build the trust needed for such a task.

January 9, 2012 in Clemency and Pardons, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (30) | TrackBack

Wednesday, January 04, 2012

New York Times editorial urges commutation for Shirley Ree Smith

Regular readers are familiar with the Shirley Ree Smith case from California, and today New York Times' readers are seeing this pitch from the paper's editorial board for Smith to receive clemency. Here are excerpts of the pitch:

The power to pardon is an essential means of justice, allowing a governor to right what the law got wrong.  Gov. Jerry Brown of California has been asked to commute to time served the sentence of Shirley Ree Smith, who was convicted in 1997 of killing her grandson and has already served 10 years of a 15-years-to-life sentence.  We urge the governor to commute her sentence so she does not now have to return to prison as a result of a misguided Supreme Court ruling.

Ms. Smith was convicted of shaking her grandson to death.  When the United States Court of Appeals for the Ninth Circuit overturned her conviction in 2006, it found “no demonstrable support” for it.  There was “no physical evidence” and “no other evidence” of the severe bleeding or swelling that are the most common signs of shaken baby syndrome.  The court concluded “there has very likely been a miscarriage of justice in this case.”

This fall, however, five years after Ms. Smith was released, the Supreme Court overruled the Ninth Circuit, which means that she must complete her sentence unless it is commuted....

Ms. Smith has already served 10 years for a crime she likely did not commit.  She should not now be made a victim of the Supreme Court’s pique.

I am not certain that the Supreme Court's ruling in Smith was "misguided," but I am certain that Gov. Brown would be wise and astute to commute Smith's sentence.  Indeed, as I explained in this post, I have a very hard time coming up with any sound reason for not commuting her sentence at this point.

January 4, 2012 in Clemency and Pardons, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (13) | TrackBack

Thursday, December 29, 2011

Is there any good reason for Governor Jerry Brown NOT to grant clemency to Shirley Ree Smith?

Shirley-smithThe question in the title to this post is prompted by this new article in the Los Angeles Times, which is headlined "Gov. Jerry Brown weighs clemency petition for a grandmother."  Here are the basics: 

Gov. Jerry Brown is giving strong consideration to a clemency petition for a grandmother whose conviction for shaking her infant grandson to death was overturned by an appeals court and reinstated by the U.S. Supreme Court, lawyers close to the case said.

The governor, who received the petition Wednesday, is being asked to commute the life sentence of Shirley Ree Smith, a 51-year-old grandmother who was sentenced to 15 years to life in 1997 for causing the death of a child.

Although Brown is notoriously unpredictable, a longtime advisor said he would be "very surprised" if Brown did not grant clemency to Smith, who has spent 10 years in prison for a death she has maintained was a tragic case of Sudden Infant Death Syndrome, not a crime against a beloved child.

A federal appeals court found "no demonstrable support" for the prosecution's claim that Smith shook 7-week-old Etzel Glass to death in 1996 and granted her release from prison in 2006 after striking her conviction by a Van Nuys jury.  But the U.S. Supreme Court in October reinstated the conviction on the grounds that courts should not second-guess verdicts "supported by the record."

The high court admitted that doubts about Smith's guilt were "understandable," and three justices penned a dissent criticizing the majority in the 6-3 decision for intervening to assert a procedural point.

A growing number of medical experts have questioned the science behind so-called "shaken baby" cases, especially those decided in decades past. Smith's trial took place only weeks after the headline-grabbing case of British nanny Louise Woodward brought the fatal act of child abuse to the nation's attention.

Clemency petitions are generally futile, granted mostly when governors are leaving office. But Smith's case so concerned some federal judges that they privately reached out to ensure that the petition got Brown's close attention, lawyers said.

Three weeks ago, a clerk from the 9th Circuit called Michael Brennan, Smith's attorney, asking if he was going to file a clemency petition.   Brennan said he told her he would but considered it futile.  "All the clerk said was, 'You might be mistaken. A petition might be well received,' " Brennan said. "Clearly, she was sort of saying, 'File the petition.' "

Smith, reached at her home in Kankakee, Ill, said she has been living on tenterhooks waiting for word on whether she must go back to prison to serve the remainder of her sentence.   "I've been trying to find someone who can explain to me what's going on," said Smith, who was hoping to follow her daughter to Minnesota so she could continue babysitting her younger grandchildren.  "The lawyers keep saying this isn't about me, it's about the courts and the law on decisions.  But how can it not be about me when I'm the one who may have to go back to prison?"

In the fall of 1996, Smith moved to Van Nuys from Illinois to help her daughter Tomeka care for newborn Etzel, 14-month-old Yondale and 3-year-old Yolanda. On the night of Etzel's death, Smith was sleeping in the living room of her sister's apartment with the three grandchildren. When she got up to use the bathroom, she found him lifeless and summoned paramedics. An emergency room physician listed the cause of death as SIDS.

An autopsy revealed a small pool of blood on the baby's brain, which two officials in the medical examiner's office testified at Smith's trial was the result of violent shaking. Neither defense expert testimony that the baby probably died of SIDS nor Tomeka's assertions that her mother had never raised a hand against her or her children dissuaded jurors from the prosecution's theory that Smith had become irritated by the infant's crying and shook him to make him stop.

Given that the majority opinion in the Supreme Court ruling that reinstated Sirley Ree Smith's conviction make express reference to the clemency process (noted here), I find it disturbing — and perhaps a telling indication of the sorry state of modern clemency politics and practice — that her lawyer considered a clemency petition to be likely futile.  Moreover, as the title of this post suggests, I have a hard time coming up with a reason why Governor Brown should not commute Smith's sentence to time served.

Smith claims she is innocent, and there seems little dispute that the evidence she committed any crime is less than lock solid.  If she is indeed innocent (and Governor Brown is convinced of this fact), a mere sentence commutation is really an insufficient clemency response, but still justified and justifiable.  And, based on what I have read, it does not seem that the prosecution ever claimed Smith meant to kill her grandchild.  Thus, even if she was involved in the child's death, the decade Smith has spent in prison surely strikes me as more than enough prison time to punish someone for accidentally causing an infact's death.  Finally, California surely cannot afford "wasting" scarce prison monies and space on a person who would seem to pose no threat to the public and whose own daughter apparently still wants her involved in the care of her grandchildren.

I suppose one could urge resisting the arguments for clemency here by taking the view that a Governor should never grant clemency for any reason in any case. (My understanding is that Mitt Romney has express such a view in the past.)  But unless you are absolutely against the exercise of clemency in every case, I wonder if there is any reason not to support clemency in this case.

December 29, 2011 in Clemency and Pardons, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (10) | TrackBack

Tuesday, December 20, 2011

New York Times makes room for three interesting debates

A helpful reader alerted me that the New York Times via its "Room for Debate" series has prompted discussion on these three topics that all should be of great interest to SL&P readers:

"Should Teenagers Get High Instead of Drunk?":  Cocaine, tobacco and alcohol use are waning, just as a record proportion of high schoolers use marijuana on a near daily basis.  Is that progress?

"Are Presidential Pardons Fair?":  Some critics consider the selection process too subjective and opaque. How should presidents decide whom to pardon?

"Rethinking How the Law Is Taught": Does the Socratic method still have a role in law school?

I hope to find time in the days ahead to review all the commentaries that the NY Times has assembled on these topics, and I will aspire to highlight and highlights.  Readers are encouraged, of course, to do the same via the comments to this post.

December 20, 2011 in Clemency and Pardons, Pot Prohibition Issues, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Maryland Governor talking about using budget tricks to thwart state's death penalty

This new Washington Post piece, headlined "O’Malley weighs budget restriction on death penalty," has me scratching my head about how Maryland's Governor tries to give expression to this opposition to the death penalty. Here are the basics of this latest story:

Maryland Gov. Martin O’Malley (D), a long-time death penalty opponent, in recent months has considered using the state budget to block executions in the coming fiscal year. The “idea of defunding executions” was discussed in a July meeting that included O’Malley and Del. Samuel I. Rosenberg (D-Baltimore), a leading death penalty foe in the legislature, according to O’Malley’s scheduling records.

In an interview, Rosenberg confirmed the meeting took place and said he and the governor had a “positive discussion” about the concept, which would apparently prevent the state from carrying out executions due to budget restrictions.

Rosenberg said O’Malley made no commitments at the time, and on Monday night, an O’Malley aide said the the governor remains unconvinced he should take that approach. “It’s not likely that the governor will do that, but no final decision has been made,” said O’Malley spokeswoman Raquel Guillory.

O’Malley, who must present a budget proposal to the General Assembly next month, unsuccessfully lobbied the legislature to repeal the death penalty during his first term. In 2009, lawmakers instead passed a bill tightening evidentiary standards in capital cases.

House Minority Leader Anthony J. O’Donnell (R-Calvert) said a budget provision on the death penalty would be unacceptable. O’Donnell compared the idea to efforts in Congress to undermine President Obama’s health care law by refusing to fund its key provisions. O’Donnell said he couldn’t imagine O’Malley would approve of such a tactic in Congress and should only pursue straight-up measures to alter the state’s death penalty law.

Maryland has had a de facto moratorium on executions since shortly before O’Malley took office in 2007, and it is unclear how much longer it might continue. In late 2006, Maryland’s highest court ruled that the state’s procedures for lethal injections had not been properly adopted and halted scheduled executions. Efforts since then by the O’Malley administration to craft new rules have been delayed several times....

Rosenberg and other death-penalty opponents are planning another push for repeal in the coming session, but they could be short of the votes needed in a key Senate committee to advance the measure to the full body. This year’s bill is expected to include funding for the families of murder victims.

A budget provision would not be subject to the scrutiny of the same Senate committee skeptical of the repeal legislation.

I find this story a head-scratcher because I believe that the Governor in Maryland has broad clemency authority, and thus I have never understood why Gov. O’Malley does not give expression to his capital punishment opposition by commuting to life the death sentences of the five murderers on the state's death row.  Trying to thwart the death penalty by using legislative tricks like defunding executions (and/or engaging in foot-dragging on the developing a new lethal injection protocol) seems far less honest and consistent with the rule of law than simply using his clemency power and then explaining to the citizens of the state and other interested persons his reasons for exercising this power.

Perhaps I am wrong about the clemency authority held by the Governor in Maryland or perhaps there are some other legitimate legal reasons why Gov. O’Malley cannot or should not give expression to his capital punishment opposition by commuting all death sentences.  On the surface, however, it seems like Gov. O’Malley is looking for a low-profile, back-door way to achieve something he apparently is unwilling to do in a high-profile direct way because of the potential political fall out.  If this is what is going on, it is disappointing to learn that the governor not only lacks the courage of his anti-death-penalty convictions, but also that he is willing to seek a coward's route to still trying to get his way.

December 20, 2011 in Clemency and Pardons, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Monday, December 19, 2011

Media coverage of GOP contenders' clemency records

ProPublica has this notable new piece in its padron reporting series headlined "Perry More Generous With Pardons Than Romney."  Here are excerpts:

As governor of Texas, Rick Perry ... has turned away the majority of applicants recommended for a pardon by the Texas Board of Pardons and Paroles.     Still, Perry’s record of clemency is more generous than Mitt Romney’s.  As governor of Massachusetts, Romney refused to grant a single pardon....

Massachusetts does not have the death penalty, so Romney never faced that ultimate decision. But among the pardon applicants Romney denied was a decorated veteran of the Iraq War whose only offense — at age 13 — was shooting another child with a BB gun. (According to news reports, the shot didn’t break the skin.)

The veteran, Anthony Circosta, had been awarded a Bronze Star and wanted a pardon so he could become a policeman. Romney denied Circosta’s pardon application twice, according to an Associated Press article.

The contrast between Romney and Perry stood out in a ProPublica review of past clemency actions by Republican presidential contenders....  The president’s power to pardon someone’s crime or to commute his or her sentence is absolute.  But states handle clemency in a variety of ways.  Some, like Perry’s Texas, temper a governor’s authority by requiring recommendations from an outside review board.  In others, like Jon Huntsman’s Utah, clemency decisions are issued by a board and not the governor....

Romney, who served as Massachusetts governor from 2003-07, has proudly advertised his record of granting no pardons at all, saying he did not want to overturn the decision of a jury.  Romney received requests for 172 pardons and 100 commutations.  The state’s Advisory Board of Pardons recommended that he approve more than a dozen, according to the Associated Press....

Texas records show that Perry has routinely pardoned a handful of applicants every year — typically older people who had long ago committed minor offenses.  In 2010, Perry pardoned nine people.  One pardon was posthumous: Tim Cole had died in prison after being wrongfully convicted of kidnapping and raping a fellow Texas Tech University student....

Some critics have called Perry “stingy” with pardons.  An analysis last year by The Texas Tribune found that Perry had granted pardons to only about 30 percent of those who had been recommended by the pardons board.  But Perry has been less tight-fisted than his predecessor.  According to The Tribune, Perry has pardoned 178 people in his nearly 11 years in office.  In his six years as governor, George W. Bush pardoned only 21....

The records of other Republican primary candidates offer less of a barometer on pardons. Because an independent board grants pardons in Utah, Huntsman never issued one.  He did appoint Clark Harms, the current chairman of the state’s Board of Pardons and Parole, a former prosecutor who told ProPublica, “If someone made a mistake and has done everything they can to ameliorate and has lived a law-abiding life, people ought to be forgiven.”

As members of Congress, Newt Gingrich, Michele Bachmann, Ron Paul and Rick Santorum had no power to grant pardons but did have the ability to write letters in support.  

Our pardons investigation found that Rep. Bachmann, R-Minn., had written an enthusiastic letter in support of granting a pardon to one of her campaign donors, Frank Vennes Jr. He and his family had given more than $26,000 to Bachmann and her political action committee....

Less than a year after she wrote the letter, FBI agents raided Vennes’ home to look for evidence that he and an associate had been participating in a multibillion-dollar Ponzi scheme. Vennes was charged with money laundering and multiple counts of fraud. Bachmann wrote another letter to the pardons office rescinding her support.

Rep. Paul, R-Texas, wrote a letter in support of Dr. Jeffrey Rutgard, a California eye doctor convicted of defrauding Medicare. “He fully served his sentence long ago and has devoted his life to charitably helping others ever since,” Paul wrote, calling Rutgard “one of the most compelling candidates for a presidential pardon I have ever seen.”

Santorum, a former Pennsylvania senator, passed along information about two constituents seeking pardons: Richard A. Winner and Michael S. Pecora.

Our records request for pardons correspondence from members of Congress covered letters from 2001 to this year, a period long after former House Speaker Newt Gingrich’s years in office.

I am not especially optimistic that whomever wins the 2012 Presidential election will chart a bold new path with respect to the use of the historic constitutional power of clemency.  But I am at least hopeful that at least some media will continue to badger the resident of the Oval Office concerning the use and misuse of this power.

Meanwhile, Scott Henson over at Grits has this new post, titled "Pardons push positive Perry press: More this week?," speculating that Gov. Perry might seek to garner some more good press by issuing some holiday pardons in the days ahead.  Indeed, with the Iowa evangelical vote still up for grabs in Iowa, Perry might try to make hay by finding a few very appealing stories of redemption to spin around a few high-profile clemency grants.  I am not counting on such a development, but I sure like the notion that for once a politician might start granting, rather than consistently deny, clemency requests in an effort to curry political praise.

December 19, 2011 in Clemency and Pardons, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (2) | TrackBack

Sunday, December 18, 2011

What should we make of Newt Gingrich's latest round of court bashing?

The question in the title of this post is prompted by latest comments from the latest GOP front-runner, some of which are captured in this Los Angeles Times piece headlined "Newt Gingrich says he'd defy Supreme Court rulings he opposed." Here is how the piece begins:

Newt Gingrich says as president he would ignore Supreme Court decisions that conflicted with his powers as commander in chief, and he would press for impeaching judges or even abolishing certain courts if he disagreed with their rulings. "I'm fed up with elitist judges" who seek to impose their "radically un-American" views, Gingrich said Saturday in a conference call with reporters.

In recent weeks, the Republican presidential contender has been telling conservative audiences he is determined to expose the myth of "judicial supremacy" and restrain judges to a more limited role in American government. "The courts have become grotesquely dictatorial and far too powerful," he said in Thursday's Iowa debate.

As a historian, Gingrich said he knows President Thomas Jefferson abolished some judgeships, and President Abraham Lincoln made clear he did not accept the Dred Scott decision denying that former slaves could be citizens.

Relying on those precedents, Gingrich said that if he were in the White House, he would not feel compelled to always follow the Supreme Court's decisions on constitutional questions. As an example, he cited the court's 5-4 decision in 2008 that prisoners held by the U.S. at Guantanamo Bay, Cuba, had a right to challenge their detention before a judge. "That was clearly an overreach by the court," Gingrich said Saturday. The president as commander in chief has the power to control prisoners during wartime, making the court's decision "null and void," he said.

But the former House speaker demurred when asked whether President Obama could ignore a high court ruling next year if it declared unconstitutional the new healthcare law and its mandate that all Americans have health insurance by 2014. Gingrich said presidents can ignore court rulings only in "extraordinary" situations.

On his website, Gingrich spelled out his views on courts. "While abolishing judgeships and lower federal courts is a blunt tool and one whose use is warranted only in the most extreme of circumstances … it is one of many possibilities to check and balance the judiciary," he wrote. "Other constitutional options, including impeachment, are better suited" to check wayward judges.

"In very rare circumstances, the executive branch might choose to ignore a court decision," he wrote.

Gingrich also said that as president he might ignore a Supreme Court ruling if it held gays and lesbians had the right to marry. "The Constitution of the United States has absolutely nothing to say about a constitutional right to same-sex marriage. Were the federal courts to recognize such a right, it would be completely without constitutional basis," he wrote.

While his critique of the courts has been popular on the right, even some conservatives object to Gingrich's proposals on abolishing courts or impeaching judges over their decisions. Conservative legal analyst Edward Whelan called Gingrich's proposal for abolishing judgeships "constitutionally unsound and politically foolish."

Given Gingrich's prior criticisms of a "broken" criminal justice system that relies too much on prison (see here), I cannot help but wonder if this might mean that a President Gingrich might sometimes seek to release some federal prisoners early (or seek to impose some alternative form of punishment) if and whenever he did not like a court-imposed sentence.  Of course, the clemency power in the Constitution makes the use of this kind of executive check on the courts constitutionally sanctioned, but I sure would like to see a President Gingrich breathe a lot of new life into this power to check the sentencing work of courts in our "broken" criminal justice system.

Some recent and older related Gingrich posts:

December 18, 2011 in Clemency and Pardons, Who Sentences? | Permalink | Comments (31) | TrackBack

Monday, December 12, 2011

"Saving Grace: Salvaging the Pardon Advisory System"

The title of this post is the title of this notable new guest post at the ACS Blog by Samuel Morison, a former staff attorney at the Office of the Pardon Attorney. Here is how it starts and ends:

For most of this country’s history, the practice of executive clemency has quietly functioned as an ancillary feature of the criminal justice system, without attracting much attention.  The purpose of the pardon power, as the Founders envisioned it, was to fill the inevitable gaps in the just and humane infliction of punishment. In addition to being a failsafe to correct injustices that escaped judicial scrutiny, executive clemency was conceived as an equitable vehicle for bestowing legal “forgiveness” in appropriate cases....

Beginning in the 1970’s, however, under the influence of the “new retributivism,” the prevailing rehabilitative paradigm began to collapse, along with the traditional practices of discretionary sentencing and parole....  As many commentators have noticed, the prevalence of determinate sentencing has not eliminated the exercise of discretion, but merely shifted the balance of power from judges and juries to prosecutors.  Not surprisingly, the Justice Department also sought to control the pardon power, the last remaining bastion of unfettered discretion in the criminal justice system.

This was possible because the hornbook account of the pardon power as a nearly absolute prerogative of the President is actually a bit misleading.  In fact, the President’s immediate legal staff does not have the resources to properly evaluate the hundreds of clemency cases that are filed annually.  Instead, by longstanding practice, the President has delegated this responsibility to career officials in the Justice Department’s Office of the Pardon Attorney.   Pursuant to rules promulgated by the President, clemency applicants are required to submit their petitions to the pardon office, which, in turn, exercises firm control over the flow of information to the White House.

Having served as a staff attorney in the pardon office for more than a decade, I can say with some confidence that the office does not view its role as a neutral arbiter.  Instead, it exploits the asymmetry of information to protect the Department’s institutional prerogatives, churning out a steady stream of almost uniformly negative advice, regardless of the merits of any particular case.   In effect, this amounts to little more than an effort to restrain (rather than inform) the President’s exercise of discretion.   The implicit message is clear: you will either do as we suggest, Mr. President, or you’re on your own....

[A]s revealed in last Sunday’s Washington Post, President Bush did not know that the clemency advice rendered by the pardon office was infected with an implicit racial bias. Remarkably, according to a statistically rigorous study of previously unavailable data conducted by ProPublica, black applicants are four times less likely to receive a pardon than similarly-situated white applicants, even after controlling for a variety of relevant variables, including age, gender, marital status, offense, and sentence.  This is an astonishing finding.  While the Attorney General has spoken with some eloquence about the need to revitalize the mission of the Civil Rights Division, he should perhaps begin by putting the Department’s own practices in order.

Tellingly, the Department was given advance notice of the ProPublica study, but made no effort to take issue with the validity of the analysis prior to its publication.  Instead, it merely issued a statement asserting that controlling for such “objective” factors fails to capture the “subjective” element in the evaluation of a clemency application, such as “an applicant’s candor and level of remorse,” or their perceived “attitude” or “stability.”  But this is hardly a convincing reply, because it seems to concede that the “subjective” evaluation of applications by the pardon office accounts for the dramatic racial disparity reflected in the data, which is precisely the point of the study.

The White House’s response to the story is also unpersuasive, albeit for a different reason.  The Counsel’s Office insists that the President’s evaluation of pardon cases “does not consider the race of the applicants,” and that the White House doesn’t “even receive information on the race of applicants.”  This is undoubtedly true, but is nevertheless a non-sequitur, because the authors of the advice are aware of the race of each applicant.  The fact that the President is kept in the dark makes the situation worse, not better.

The fundamental issue is this: who will exercise effective control over this broad discretionary power, the President or a small cadre of anonymous bureaucrats in the Justice Department?  Historically, the pardon advisory function has been housed in the Department entirely as a matter of administrative convenience, pursuant to the President’s authority under the Pardon Clause.  Whatever utility this arrangement once had, the structural deficiencies in the existing advisory system have rendered it dysfunctional.  Under the circumstances, I submit that the President has a constitutional obligation to remove the advisory role from the Justice Department, and reconstitute it within the Executive Office of the President, where it can operate without the burden of an entrenched conflict of interest. 

Even before the recent study revealing racial disparity in the federal pardon process, I had come to believe it was bad policy and bad practice to have the Justice Department serve as functional gate-keeper for clemency petitions.  This commentary (along with the recent evidence of racial disparity) inspires me to claim that it may also be unconstitutional.  I wonder if anyone might have the energy and inspiration to make a creative (but I think viable) constitutional argument to this effect on behalf of a uniquely deserving clemency petitioner.

Some rrelated posts:

December 12, 2011 in Clemency and Pardons, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (19) | TrackBack

Monday, December 05, 2011

Investigation reveals (shockingly?!?!) that politicians and politics impact federal pardons

As noted here yesterday, ProPublica has now produced this series of important new articles under the banner "Presidential Pardons: Shades of Mercy."  Today's installment is headlined "Pardon Applicants Benefit From Friends in High Places," and here are excerpts from data reported in the piece: 

Since 2000, a total of 196 members of Congress — 126 Republicans and 70 Democrats — have written to the pardons office on behalf of more than 200 donors and constituents, according to copies of their letters obtained through the Freedom of Information Act. Many of the letters urged the White House and the Justice Department to take special note of felons whom lawmakers described as close friends.

A statistical analysis of nearly 500 pardon applicants during the Bush administration suggests that advocacy makes a difference.  Applicants with a member of Congress in their corner were three times as likely to win a pardon as those without such backing. Interviews and documents show a lawmaker’s support can speed up a stalled application, counter negative information and ratchet up pressure for an approval.

[Roger] Adams, who ran the Justice Department’s pardons office from 1998 to 2008, acknowledged the potential value of congressional letters.  “If the official does know the person,” Adams said, “it gives it some weight.”

A Justice Department spokeswoman said that the agency would not comment on any individual cases but added that the process is not subject to influence.  “Any third party is free to express support for a pardon request, and those letters are part of the executive clemency file,” the spokeswoman said.  “The title or position of the third party who expresses his support does not play a role in the review process.”

A ProPublica analysis of presidential pardons published Sunday revealed a pattern of racial disparities in pardon awards. The review found that white applicants were nearly four times as likely to receive pardons as all minorities combined. Congressional influence did not account for the racial disparity.

Of the 54 applicants with congressional support for whom ProPublica was able to determine race, 47 were white, five were black and two were Hispanic.

I am not at all surprised to see data confirming the well-known anecdotes of prominent politicians playing a prominent role in helping a pardon applicant.  Indeed, I would be much more shocked if the ProPublica research revealed that politicians and politics had little impact on this process.  

I find a bit curious the assertion in this piece that "[c]ongressional influence did not account for the racial disparity" in clemency grants given the subsequent indication that congressional support was very disproportionately brought to bear on behalf of white applicants.  I assume ProPublica sought to control for congressional support when it "ran" the race data, but I wonder whether the intersection of congressional support AND criminal history AND socio-economic realities may together help explain some of the racial disparity data.

I will comment more on the ProPublica reports after I have a bit more time to consume and review all the data and extraordinary documents that appear on the web now.  But nothing I have seen so far has change my long-standing view — which I have expressed on this blog and in a recent law review article — that there ought to be a federal clemency commission set up to be entirely distinct from the Justice Department with the responsibility and obligation to recommend a (large?) number of cases to the President for which clemency ought to be granted.  I have long thought the federal pardon process (and not just the result) was badly broken, and these new reports about the results only confirm my views here.

Related post:

December 5, 2011 in Clemency and Pardons, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Sunday, December 04, 2011

"Presidential Pardons Heavily Favor Whites"

The title of this post is the headline of this main article in a new investigative report from Pro Publica.  The piece is the lead story in this series of important new articles under the banner "Presidential Pardons: Shades of Mercy."  Here is the start of the lead piece:

White criminals seeking presidential pardons over the past decade have been nearly four times as likely to succeed as minorities, a ProPublica examination has found.

Blacks have had the poorest chance of receiving the president's ultimate act of mercy, according to an analysis of previously unreleased records and related data.

Current and former officials at the White House and Justice Department said they were surprised and dismayed by the racial disparities, which persist even when factors such as the type of crime and sentence are considered.

"I'm just astounded by those numbers," said Roger Adams, who served as head of the Justice Department's pardons office from 1998 to 2008. He said he could think of nothing in the office's practices that would have skewed the recommendations. "I can recall several African Americans getting pardons."

The review of applications for pardons is conducted almost entirely in secret, with the government releasing scant information about those it rejects.

ProPublica's review examined what happened after President George W. Bush decided at the beginning of his first term to rely almost entirely on the recommendations made by career lawyers in the Office of the Pardon Attorney.

The office was given wide latitude to apply subjective standards, including judgments about the "attitude" and the marital and financial stability of applicants. No two pardon cases match up perfectly, but records reveal repeated instances in which white applicants won pardons with transgressions on their records similar to those of blacks and other minorities who were denied.

Senior aides in the Bush White House say the president had hoped to take politics out of the process and avoid a repetition of the Marc Rich scandal, in which the fugitive financier won an eleventh-hour pardon tainted by his ex-wife's donations to Democratic causes and the Clinton Presidential Library.

Justice Department officials said in a statement Friday that the pardon process takes into account many factors that cannot be statistically measured, such as an applicant's candor and level of remorse.

"Nonetheless, we take the concerns seriously," the statement said. "We will continue to evaluate the statistical analysis and, of course, are always working to improve the clemency process and ensure that every applicant gets a fair, merit-based evaluation."

Bush followed the recommendations of the pardons office in nearly every case, the aides said. The results, spread among hundreds of cases over eight years, heavily favored whites. President Obama -- who has pardoned 22 people, two of them minorities -- has continued the practice of relying on the pardons office.

"President Obama takes his constitutional power to grant clemency very seriously," said Matt Lehrich, a White House spokesman. "Race has no place in the evaluation of clemency evaluations, and the White House does not consider or even receive information on the race of applicants."

I will have a lot of opinion about this important series of pieces in some later posts after I get a chance to consume of the information that is hear.  I will begin (for the benefit of commentor Paul and others) by suggesting that this report should prompt the Justice Department to commit itself to understanding the troublesome disparities evident in the exercise of executive sentencing discretion before it spends any more time complaining about the post-Booker exercise of judicial sentencing discretion.

December 4, 2011 in Clemency and Pardons, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (10) | TrackBack

Monday, November 28, 2011

"One prisoner worthy of presidential pardon"

The title of this post is the headline of this commentary by Debra Saunders, which makes this pitch:

[Last] Monday, the president finally got serious.  He issued five pardons, but also his first (and only) commutation.  The recipient, Eugenia Jennings of Illinois, was sentenced to 22 years in prison in 2001.  That's a long sentence, you might think; Jennings must have been a true crime kingpin to have rated such treatment from federal authorities.  To the contrary, the 23-year-old mother got that hard time for selling 13.9 grams of crack cocaine  — about the size of six sugar packets — to a confidential police informant.

Because Jennings sold crack — not powder — cocaine, a federal judge was required to boost her prison time. Because Jennings had been prosecuted twice previously for dealing small amounts of crack, the feds pegged her as a career criminal, another sentencing add-on. Thus the federal government used its awesome weight to bring to heel a pathetic young drug-addicted woman.

The Department of Justice did not elaborate as to the thinking behind Obama's commutation. But Families Against Mandatory Minimums issued a news release with a few hints. Sen. Dick Durbin, D-Ill., advocated for her release. Jennings, who is African American, has been diagnosed with cancer, but has been responding well to treatment. When she is released Dec. 21, she will be able to see her eldest daughter graduate from high school....

I have an even worse criminal-justice horror story.  In 1993, Clarence Aaron received three sentences of life without parole as a first-time nonviolent drug offender.  Aaron broke the law and earned time in prison.  But he received a longer sentence because he didn't know enough to turn on the bosses behind two large cocaine deals.  He foolishly pleaded not guilty and lied under oath.  Because the buyer had planned to convert the powder cocaine into crack, his sentence was extended....

Molly Gill of Families Against Mandatory Minimums believes Eugenia Jennings is an "extraordinary case."  But also, Gill says, Obama should be "bold" and "unafraid" to do more. "This isn't political scandal, it's just doing justice."

Aaron has taken responsibility for the actions that put him in prison.  He has a good prison record, and he's ready to start leading a normal life among a supportive and anxious family.  Readers of this column know how tough I can be on violent career criminals. Vicious crimes deserve serious time.  But career criminals aren't doing hard time, their small-time subordinates are.  Besides, it is obscene that a young African-American man will spend the rest of his natural life in prison for a nonviolent, first-time offense committed when he was 23 years old.

Next month, Aaron will have spent 18 years in prison. As his commutation application notes, Aaron shows promise to be a law-abiding citizen, but he "continues to serve his life sentences, while all those who testified against him are now out of jail."  President Obama should free him.

Some recent and older related posts:  

November 28, 2011 in Clemency and Pardons, Drug Offense Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

Wednesday, November 23, 2011

Oregon Governor halts upcoming execution, declares moratorium, and pushes for state repeal

As detailed in this local story from Oregon, on Tuesday "Gov. John Kitzhaber ... placed a moratorium on all executions, issued a temporary reprieve stopping the Dec. 6 execution of Gary Haugen and urged Oregonians to 'find a better solution' to a system that he said is arbitrary, expensive and 'fails to meet basic standards of justice'."  Here is more:

"In my mind, it is a perversion of justice," Kitzhaber said at a crowded news conference, his voice strained and uncharacteristically quavering at times.  "I refuse to be a part of this compromised and inequitable system any longer and I will not allow further executions while I am governor."

His decision comes just two weeks before Haugen, 49, was to die by lethal injection and after months of legal showdowns over the twice-convicted murderer's mental competence. Haugen appeared to overcome the last obstacle Monday when the state Supreme Court allowed the execution to proceed.  Kitzhaber said he made up his mind last week and wanted to wait for the legal issues to play out before making a public declaration.

It remains to be seen what will happen now.  Oregonians have abolished and reinstated the death penalty several times since it was first enacted in 1864, and Kitzhaber said he did not know if people will support repealing capital punishment.

Based on the governor's past, Haugen did not think Kitzhaber would intervene, said his attorney, Steven Gorham.  The reprieve for Haugen remains in place as long as Kitzhaber is governor.  It is too soon to say what Haugen will do, said Gorham, who had not yet spoken to the inmate.  But Gorham said he expects the decision will greatly disappoint Haugen, who chose execution as a political protest and a path to freedom from the confines of death row.

The Oregon Governor Kitzhaber's statement in support of this decision can be accessed at this link, and here are a few passages of note:

Oregonians have a fundamental belief in fairness and justice -- in swift and certain justice.  The death penalty as practiced in Oregon is neither fair nor just; and it is not swift or certain.  It is not applied equally to all.  It is a perversion of justice that the single best indicator of who will and will not be executed has nothing to do with the circumstances of a crime or the findings of a jury.  The only factor that determines whether someone sentenced to death in Oregon is actually executed is that they volunteer. The hard truth is that in the 27 years since Oregonians reinstated the death penalty, it has only been carried out on two volunteers who waived their rights to appeal....

And while it may be convenient to blame lengthy and expensive death penalty trials and appeals on inmates “working the system,” the truth is courts (and society) continue to reinterpret when, how and under what circumstances it is acceptable for the state to kill someone.  Over time, those options are narrowing.   Courts are applying stricter standards and continually raising the bar for prosecuting death penalty cases.  Consider that it was only six years ago that the U.S. Supreme Court reversed itself and held that it is unconstitutional to impose capital punishment on those under the age of 18.  For a state intent on maintaining a death penalty, the inevitable result will be bigger questions, fewer options and higher costs.

It is time for Oregon to consider a different approach.  I refuse to be a part of this compromised and inequitable system any longer; and I will not allow further executions while I am Governor.

November 23, 2011 in Clemency and Pardons, Death Penalty Reforms, Who Sentences? | Permalink | Comments (63) | TrackBack

Monday, November 21, 2011

President Obama commutes crack sentence and issues five more pardons

I am pleased to learn today of President Obama's decision to show some mercy via a real set of clemency grants to real people before the annual turkey pardons to save a couple fowl.  This AP article reports the basics:

President Barack Obama on Monday pardoned five people convicted of charges ranging from intent to distribute marijuana to running an illegal gambling business. And he issued his first commutation, ordering the release of a woman next month after serving 10 years on a 22-year sentence for cocaine distribution.

The actions mark Obama’s third set of pardons. He pardoned eight people earlier this year, and issued nine pardons in December 2010.

None of those pardoned was well-known, as was the case with the president’s previous orders. The cases date back to 1984, when Martin Kaprelian of Park Ridge, Ill., was sentenced to nine years in prison for conspiracy to transport stolen property in interstate commerce, and other related charges.

Obama commuted the 2001 prison sentence of Eugenia Marie Jennings of Alton, Ill. Jennings was convicted in 2001 for distributing cocaine, and sentenced to 22 years in prison. The president ordered her to be released next month, but kept intact her eight years of supervised release.

A press release from DOJ listing all the clemency recipients can be found at this link.  P.S. Ruckman has some effective commentary on this lastest round of clemency grants by President Obama in this post at his Pardon Power blog.  And FAMM has this new press release which provides some background on the defendant who had her prison term commutted:

In 2001, Jennings received a 22-year sentence for a low-level, nonviolent drug offense that involved selling a mere 13.9 grams of crack cocaine to a confidential police informant. Jennings was a survivor of domestic abuse and had a long-standing struggle with drug addiction.  She began selling small quantities of crack cocaine to support herself and her three children.

During her decade in federal prison, Jennings conquered her addiction, educated herself, and began speaking publicly to students, warning them of the consequences of drug use. Earlier this year, Jennings was diagnosed with cancer.  She has received chemotherapy treatments in prison and shows positive signs of an eventual recovery.

Jennings has a wide network of supporters and advocates, including Senator Richard Durbin (D-IL), who learned of her case when her brother, Cedric Parker, testified before Congress. Senator Durbin and Jennings’s lawyers, Thomas Means, Alexander Schaefer and Timothy Foden of the Washington, DC law firm of Crowell & Moring, advocated tirelessly for her release.

November 21, 2011 in Clemency and Pardons, Drug Offense Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack