Tuesday, April 15, 2014

Prez Obama commutes 15-year sentence for marijuana offender down to 11.5 years

Build-itIf NYU Law builds it, the President's counsel will come ... and, it seems, the President will act!  

With apologies for the bad "Field of Dreams" reference, I am not sure how else to react to the news I have got via this press release while I am sitting in the audience excited to be at this amazing on-going NYU conference on "Mercy in the Criminal Justice System: Clemency and Post-Conviction Strategies" with the keynote speaker White House Counsel Kathryn Ruemmler.   I was hoping and expecting the White House Counsel Kathryn Ruemmler would be making news via her afternoon keynote, but her boss beat her to the punch as the full text of the press release reveals:

Today, President Barack Obama granted clemency to the following individual:

• Ceasar Huerta Cantu, also known as Cesar Huerta Cantu – Katy, Texas

Offenses: Conspiracy to possess with intent to distribute marijuana; money laundering (Western District of Virginia)

Sentence: 180 months’ imprisonment (as amended), five years’ supervised release (May 11, 2006)

Commutation Grant: Prison sentence commuted to 138 months’ imprisonment

Thanks to the wonderful internet, I found this 2255 dismissal order concerning the Cantu case which suggests that Cantu received an erroneous initial sentence that he was unable to get changed via traditional legal means. But it is unclear from this order alone whether this sentence calculation error provides the basis and reason for this notable commutation.  A quick read of the order does suggest that the reduction from 180 to 138 appears to reflect precisely the sentence Cesar Huerta Cantu would have and should have gotten (after getting substantial assistane credit) had his initial sentence been calculated properly. 

Live-blogging UPDATE:  In her keynote speech at this NYU conference, White House Counsel Kathryn Ruemmler is talking up this grant and says that it shows that clemency can serve as a "fail-safe" for correcting errors that cannot be corrected by other means.

WH Counsel Ruemmler has announced that DOJ via BOP is going to alert federal prisonsers about the on-going clemency initiative previously announced by Deputy AG Cole.

MSM UPDATE:  Lots of press reports are now providing context for this grant such as this AP article headlined "Obama commutes sentence made longer by typo."

April 15, 2014 in Clemency and Pardons, Drug Offense Sentencing, Marijuana Legalization in the States, Who Sentences? | Permalink | Comments (4) | TrackBack

Wednesday, April 02, 2014

Terrific upcoming NYU Law conference on "Mercy in the Criminal Justice System"

Image001I am very pleased and very excited that on April 15 this year I will be spending all day thinking and talking about something other than my income tax forms.  That is because, as detailed in the program linked at the bottom of this post, I will be spending that day attending and speaking at the Sixth Annual Conference of the NYU Law School's Center on the Administration of Criminal Law.  This year's NYU Center conference is focused on clemency and related topics.

The full official title for the event, which runs from 10am to 4pm at NYU Law is "Mercy in the Criminal Justice System: Clemency and Post-Conviction Strategies," and the keynote speaker is White House Counsel Kathryn Ruemmler.  Here is a brief account of the panels and participants scheduled to surround the keynote:

Panel 1: The Role of Law Schools in Delivering Clemency and Post-Conviction Assistance.

This panel will discuss how law schools are providing critical services to prisoners through clemency clinics and other mechanisms, and will also provide practical training on how to effectively prepare clemency petitions, post-conviction motions and provide other reentry support to prisoners.

Moderator: Prof. Mark Osler, University of St. Thomas Law School.  Panelists: Prof. Anthony Thompson, NYU Law; Prof. J.P. “Sandy” Ogilvy, Columbus School of Law, Catholic University; Harlan Protass, Esq., Clayman & Rosenberg; Prof. Joann M. Sahl, University of Akron Law School.

Panel 2: What We Can Learn About Clemency From the States.

This panel will examine the different ways clemency and pardon petitions are administered in selected states with effective systems.

Moderator: Nancy Hoppock, Executive Director of the CACL. Panelists: Lt. Governor Matthew Denn, State of Delaware; Hon. Robert L. Ehrlich, Jr., King & Spalding and former Governor of Maryland; Margaret Love, Esq., former U.S. Pardon Attorney; Jorge Montes, Esq., former Chairman of the Illinois Prisoner Review Board.

Panel 3: The Future of Clemency.

This panel will discuss recent developments in federal clemency and where clemency could and should be headed in the future.

Moderator: Prof. Rachel E. Barkow, NYU Law. Panelists: Amy Baron-Evans, National Federal Defender Sentencing Resource Counsel; Prof. Paul G. Cassell, University of Utah Law School; Prof. Douglas A. Berman, The Ohio State University Moritz College of Law; Sam Morison, Esq.; Dafna Linzer, Managing Editor of MSNBC.com.

Persons can register for this great and timely conference at this link.

Download CACL.ClemencyProgram5

April 2, 2014 in Clemency and Pardons, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9) | TrackBack

Thursday, February 27, 2014

Victims' families laments Gov's execution moratorium in Washington

As reported in this local article, headlined "Families urge Inslee to reconsider death penalty moratorium," not everyone is content with Washington Gov. Jay Inslee's decision earlier this month to impose a moratorium on executions while he is governor (basics here):

Families of murder victims are urging Governor Inslee to reconsider his moratorium on the death penalty. They traveled to Olympia Wednesday to ask why the governor never consulted with them before making his decision.   State lawmakers are considering a bill to make sure the families' voices are heard. 

"I am here Governor Inslee and I've got to say I'm very surprised that you're not here looking at all these victims," said Sherry Shaver, whose daughter Talisha was killed by Dewayne Woods in 1996. "We're here to speak about this. Where are you Gov. Inslee?"  Woods was sentenced to death. But that sentence is on hold with the governor's stunning statement that he would not sign a death warrant as long as he's in office. 

"I never talked to the governor about this," said Jessie Ripley. Her mother Jane Hungerford-Trapp was killed in Tacoma by Cecil Davis. "The governor needs to look at each and every situation as if it was his family. As if he was a victim himself."...  

[A] bill (SB 6566) by State Sen. Steve O'Ban ... would enforce the idea that families of the victims need to be heard before any decision is made on whether to go ahead with an execution.  He said, "There can be no justice if the voices of the victims are not heard."

Lewis County prosecutor Jonathan Meyers said," (Inslee) disrespected the victims. They deserve closure. They deserve their voice to be heard and the decision he leveled silenced all of them." 

The bill got its first public hearing Wednesday.  Even if it were to pass, the sponsor admits it wouldn't negate the governor's decision.  However, it would be a mandate for future governor's to listen to families first and then make a decision.

Related prior post:

February 27, 2014 in Clemency and Pardons, Death Penalty Reforms, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (23) | TrackBack

Wednesday, February 19, 2014

Curious DOJ clemency campaign continues through meeting with defense groups

This notable NPR story, headlined "Justice Dept. Asks For Help Finding Prisoners Who Deserve Clemency," reports on the latest development concerning the curious (though encouraging) new DOJ push for clemency candidates.  Here are the details:

The second-in-command at the Justice Department met Tuesday with defense lawyers and interest groups to identify the cases of worthy prisoners who could qualify for clemency.

The initiative by Deputy Attorney General James Cole follows a speech he gave last month suggesting the White House intends to make more use of the president's power to shorten prison sentences for inmates who have clean records, no significant ties to gangs or violence, and who are serving decades behind bars for relatively low-level offenses.

Cole wants to enlist lawyers to help solicit and prepare clemency requests. It's part of a broader effort to stop spending so much money incarcerating people that it squeezes the public safety budget. A Justice Department spokesman says Cole "wants to ensure that individuals like the eight whose sentences the president commuted in December have access to attorneys to help them present their cases."

Longtime followers of the pardon power have criticized President Obama's relatively stingy approach over five years in office.  They also suggest that backlogs in the Justice Department's Office of Pardon Attorney might get worse if the call for more prisoner petitions takes hold. But the Justice spokesman says Cole has made this effort a top priority and that he's instructed the pardon attorney to do the same, taking some steps to handle any influx of clemency requests in the months ahead.

Representatives from the National Association of Criminal Defense Lawyers, the American Civil Liberties Union, the Federal public defender program and Families Against Mandatory Minimums had been scheduled to attend the meeting at Justice Department headquarters.  Mary Price of FAMM, one of the attendees, says she came away feeling "really encouraged."

"We look forward to working together with them and others to help identify potential commutation cases and ensure prisoners have trained pro bono counsel to submit focused petitions for the meaningful consideration the Deputy Attorney General has pledged they will receive," Price says.

Some recent and older posts concerning federal clemency practices:

February 19, 2014 in Clemency and Pardons, Criminal justice in the Obama Administration, Who Sentences? | Permalink | Comments (0) | TrackBack

Tuesday, February 11, 2014

Washington Gov declares moratorium on executions during his term

InsleeAs reported in this new Seattle Times article, headlined "Inslee halts executions in state while he is governor," in the Evergreen State the Governor has decided to use his clemency power to create a (temporary?) moratorium on executions.  Here are the basics:

Gov. Jay Inslee is calling a moratorium on executions while he is governor. “Equal justice under the law is the state’s primary responsibility,” Inslee said during a news conference Tuesday morning. “And in death penalty cases, I’m not convinced equal justice is being served.”

Inslee said there was “too much at stake” in death penalty cases in what he termed an “imperfect system.” Inslee cited the high cost of trials and appeals, the apparent randomness in which death penalties are pursued and concerns that executions do not deter crime as reasons for his decision. Inslee said he is not asking the state Legislature to abolish the death penalty.

“As governor, it is on my shoulders to come up with a decision for our whole state,” Inslee said. “I have made a decision. It is not an easy one.”

There are currently nine men on Washington’s death row. He said that if a death penalty case crosses his desk for action, he will issue a reprieve, which will potentially only be in effect while Inslee is governor. He said he does not intend to commute any death sentences. “The citizens of the state of Washington can be assured the men of death row will be in prison for as long as they live,” he said.

When questioned, Inslee acknowledged the moratorium may not necessarily save money, particularly since appeals will still likely be filed. However, the move could prompt county prosecutors to not seek the death penalty in some cases, thus realizing some savings....

“Washington’s Constitution and state statutes grant the governor significant powers over the fate of individuals sentenced to death,” Attorney General Bob Ferguson said in a statement Tuesday morning. “Consequently, the governor has the authority to hit the ’pause’ button for executions in Washington.”

However, Ferguson said his office will continue to represent the state when death-row inmates file challenges to their convictions or sentences with the federal courts. Currently, there are four such cases before the federal courts, he said....

King County Prosecutor Dan Satterberg, in a written statement, said the legal ramifications of Inslee’s “reprieve policy” appear limited and that state law remained unchanged. However, he said in the short term it is likely to cause more delays, expense and uncertainty. “A moratorium alone will not resolve the issues raised by the Governor,” Satterberg said. “Let’s have an informed public debate and let the citizens of Washington decide if we should keep capital punishment in our state.”

The death penalty has come under fire in Washington state for a variety of reasons, including what some have termed inconsistencies in when it is sought. For example, in the case of Green River Killer Gary L. Ridgway, King County prosecutors gave up on capital punishment in exchange for his cooperation in providing detectives details that helped solve dozens of open murder cases. Ridgway pleaded guilty to 48 counts of aggravated first-degree murder in 2003 and was sentenced to life in prison.

State Rep. Reuven Carlyle, D-Seattle, has repeatedly introduced legislation to ban the death penalty Of the governor’s moratorium, Carlye said, “It’s a profound shift. He has opened a legitimate conversation. … It sets in motion a legitimate and genuine public conversation.”

But he said the moratorium would not likely spur legislative action this year, noting that last Friday was the cutoff for non-budget-related bills to make it out of committee. “In 2015, we will ask the public to join us in this conversation,” said Carlyle, who will push for a bill then.

Sen. Mike Padden, R-Spokane Valley, chairman of the Senate Law and Justice Committee, disagreed with Inslee’s decision, calling it “shortsighted.”

“I think that is going off on his own and is certainly nothing the Legislature has authorized,” Padden said, noting that Inslee had not consulted him. “I question it, I really do,” Padden said of the moratorium. “To victims it’s the wrong message. The relatives who have suffered the deaths. They have gone through 10 years or more of waiting. ... For the governor to unilaterally take that away I think is wrong.”

Cal Coburn Brown, the last person executed in the state, died by lethal injection in September 2010 for the 1991 murder of Holly Washa in SeaTac. Jonathan Lee Gentry, sentenced for the 1988 murder of 12-year-old Cassie Holden in Kitsap County, is expected to be the next inmate in line to be executed.. Last month, the state Supreme Court rejected a petition for release filed by Gentry’s defense team. Gentry just filed another appeal, based on DNA testing.

Cassie Holden’s father, Frank Holden, said Tuesday he was angry at Inslee and devastated by his decision. He said he spoke with the governor for the first time Monday night when Inslee called to tell him about the moratorium. “There wasn’t much of a discussion. There wasn’t much of a chance for input. He had this thing all planned out,” Holden said, adding that the only thing he was able to tell Inslee was that he was disappointed in his decision.”

“I’ve waited 26 years for justice to happen and now it’s not going to happen because of him. It went through every court system possible,” Holden said, speaking from his business in Pocatello, Idaho. Holden said he thinks about his daughter every day; she would now be 37. “After he told me what he was doing it was nothing compared to the death of my daughter, but it was up there,” Holden said.

Kitsap County Prosecutor Russ Hauge said Tuesday morning he is disappointed by Inslee’s announcement and its potential impact on Gentry’s case. Hauge said he could “see an end in sight” for the Gentry case, because after more than 20 years the man had exhausted most of his appeals. “If ever there was a case that warranted the death penalty, it’s the case of Jonathan Gentry. This is exactly this is what the statute was meant to address,” Hauge said.

Richard Dieter, executive director of the Death Penalty Information Center in Washington, D.C., said Inslee is not be the first governor in the nation to oppose the death penalty. Last year, Colorado Gov. John Hickenlooper granted a reprieve to an inmate who killed four people at a Chuck E. Cheese’s restaurant in 1993 after finding the state’s death penalty system to be “imperfect and inherently inequitable,” according to The Denver Post. Dieter said the move means that the inmate won’t be executed while Hickenlooper is governor.

The full text of Governor Inslee’s remarks announcing his execution moratorium can be accessed at this link.

February 11, 2014 in Clemency and Pardons, Death Penalty Reforms, Who Sentences? | Permalink | Comments (9) | TrackBack

Monday, February 10, 2014

New York Times editorial makes pitch for "Mercy in the Justice System"

The New York Times published this notable editorial today calling for a serious fix to the broken federal clemency system.  Here are excerpts:

The constitutional provision that gives the president virtually unlimited authority to grant clemency was not an afterthought.  The founders understood very well that there could be miscarriages of justice even under the rule of law.  By allowing the president to commute unjust sentences or pardon deserving petitioners who had served their time, they sought to ensure that the workings of the courts could be tempered with mercy.

Presidents Jefferson, Madison, Monroe, Lincoln, and Truman viewed the clemency process as a central mission of the office. But the concept of mercy went out of fashion by the 1980s, when the country embarked on a mandatory sentencing craze that barred judges from exercising leniency when it was clearly warranted and placed the justice system almost entirely in the hands of prosecutors.  As a consequence, even first-time offenders were largely viewed as beyond redemption.

These laws drove up the prison population 10-fold and filled the jails with young, low-level drug offenders who were confined far longer than their offenses warranted.  They also created a large and growing class of felons, who are trapped permanently at the margins of society by postprison sanctions — laws that bar them from jobs and housing, strip them of the right to vote and make it difficult for them to obtain essential documents like driver’s licenses.

The perpetual punishment model of justice has had far-reaching consequences.  Politicians stayed as far away from clemency as they could, fearing that voters would view them as soft on crime.  Meanwhile, at the Justice Department, the clemency process — which had been a cabinet-level responsibility — fell under the authority of prosecutors who seemed to view even reasonable lenience as a threat to the prosecutorial order.  The time required to handle clemency applications went from months to years; the backlog grew; the stream of mercy that had once flowed began to dry up.

The clemency system, in other words, is in a state of collapse.  The Justice Department admitted as much last month, when the deputy attorney general, James Cole, asked the criminal defense bar to help the department find suitable candidates for clemency among the many thousands of people who were casualties of the mandatory-sentencing era....

The Justice Department’s sudden interest in the clemency problem is good news, but asking defense lawyers for help is a haphazard approach.  What’s needed is wholesale reform of the department’s pardon office, which has proved itself ineffective and incompetent, partly because the current process relies on the department to evaluate its own work.

One sound idea is to create a clemency review panel outside the Justice Department, perhaps as a part of the executive office.  Mr. Obama could form an advisory board, or reconfigure the pardon office to include defense lawyers, sociologists and other experts who would bring a broader perspective to the issue.  The goal would be to give the president unbiased information that would enable him to exercise fully this important aspect of executive power.

February 10, 2014 in Clemency and Pardons, Sentences Reconsidered, Who Sentences? | Permalink | Comments (20) | TrackBack

Saturday, February 08, 2014

Lethal injection concerns leads Ohio Gov Kasich to postpone next execution for 8 months

As reported in this local article, "unresolved concerns about the drugs used to execute Dennis McGuire last month prompted Gov. John Kasich yesterday to postpone the scheduled March 19 lethal injection of Gregory Lott."  Here is more:

Without comment, Kasich rescheduled Lott’s execution, delaying it for eight months, until Nov. 19.  Kasich spokesman Rob Nichols said the governor wants to give the Ohio Department of Rehabilitation and Correction time to complete its internal review of McGuire’s Jan. 16 execution.  “Gregory Lott committed a heinous crime for which he will be executed,” Nichols added.

It was the second execution that Kasich had postponed in recent months. On Nov. 13, Kasich pushed back Ronald Phillips’ execution to July 2 to give him an opportunity to pursue organ donation to a family member....

Attorneys for Lott, 51, quickly challenged his upcoming execution, arguing that the drugs could cause “unnecessary pain and suffering” in violation of the Eighth Amendment to the U.S. Constitution. A hearing has been scheduled for Feb. 19 in U.S. District Judge Gregory L. Frost’s court.

The next question involves what happens to four other convicted killers scheduled to be put to death before November. They are Arthur Tyler, May 28; Phillips, July 2; William Montgomery, Aug. 6; and Raymond Tibbetts, Oct. 15.

Lott was convicted and sentenced to death for killing John McGrath, 82, by setting him on fire in his Cleveland-area home in 1986. McGrath survived in a hospital for 11 days before dying. Lott came close to execution in 2004, but the U.S. Supreme Court blocked it to give his attorneys time to examine evidence they said had been withheld. “We are very grateful for the governor’s decision,” said Dana C. Hansen Chavis, an assistant public defender from Knoxville, Tenn., who is one of Lott’s attorneys.

Kevin Werner, executive director of Ohioans to Stop Executions, praised Kasich for showing “ leadership and careful consideration” by issuing a reprieve. State Rep. Nickie J. Antonio, D-Lakewood, urged Kasich to “use his executive power to grant a full moratorium on executions until the state can guarantee that humane and constitutional policies will be utilized. Ultimately, I think such guidelines would lead to the abolishment of the use of the death penalty.”

I see little reason why it should take more than a few weeks for the Ohio DRC to conduct a complete review of the execution of Dennis McGuire. In addition, I expect more delay before conducting the next Ohio execution will end up facilitating still more litigation over Ohio's latest execution protocols and its new use of a two-drug execution cocktail.

That all said, I wonder if this delay is primarily designed to give Ohio officials more time to try to secure Ohio's preferred execution drug, pentobarbital, from a compounding pharmacy. Missouri a few weeks ago completed an execution using just a batch of pentobarbital manufactured by a compounding pharmacy, and I suspect Ohio would prefer to find a way to follow that execution approach rather that try again with the two-drug approach use to put down McGuire.

As has been the reality in Ohio for a number of years now, it seems that legal and practical uncertainty will continue to surround the state's efforts to carry out death sentences. But now the next execution date to watch closely will be in May rather than March thanks to Gov. Kasich giving Lott at least eight more months to be alive.

A few recent related posts:

February 8, 2014 in Baze and Glossip lethal injection cases, Clemency and Pardons, Death Penalty Reforms, Who Sentences? | Permalink | Comments (11) | TrackBack

Tuesday, February 04, 2014

Reflecting on Obama Administration's latest "half-way" approach to clemency

Mark Osler authored this effective commentary concerning the recent comments coming from the Department of Justice concerning a new focus on granting clemency.  The piece carries the headline "Only half-way there on mercy," and here are excerpts:

In an extraordinary speech to the New York State Bar Association earlier this week, Deputy Attorney General James Cole did two significant things.

First, he announced that when President Obama used the pardon power in December to commute eight lengthy federal sentences for narcotics trafficking, this was only a “first step,” and that there is “more to be done.”  Second, he outlined how a much more extensive round of commutations might happen.  The first of these was historic, remarkable, and right. The second part is more problematic.

The good news is that this administration, unlike its most recent predecessors, intends to use the pardon power in a vigorous and principled way....

The method Cole outlined to produce more commutations is where the problem lies.  The administration intends to have the Bureau of Prisons spur inmates to seek commutations and then encourage state bar associations to direct their members to prepare petitions for those inmates.

Cole made this appeal to deputize lawyers in a very direct way during his New York speech  — telling the bar association there that “this is where you can help.”  The hope is that, in the end, this will produce a wave of good candidates for commutation.

Unfortunately, this solution doesn’t address the actual problem with federal clemency. No one has suggested that what is broken with the pardon power is that there aren’t enough petitions in the system — to the contrary, there is a backlog of some 3,500 clemency petitions awaiting a decision.

The problem is that the process doesn’t work.  The pipeline is clogged, and the solution can’t be simply to jam more things into it.  The present structure for consideration of these often-complicated petitions has done a terrible job handling the workload it has now; it’s unclear how giving the pardon attorney and the others who consider these petitions even more work is supposed to solve the problem. Increasing the size of the clog does nothing to clear out a pipe....

Critics hailing from such diverse corners as the Heritage Foundation and the American Constitution Society have called for wide-ranging reform of the pardon process.  This might be the time to implement significant changes, such as removing many levels of review and giving the person or committee charged with making recommendations on clemency much more frequent and direct access to the president.

Even if systemic reform of the process isn’t undertaken or doesn’t take immediate effect, a shorter-term solution is available.  Obama could empanel a presidential clemency board for a period of 12 to 18 months to consider the mass of petitions that may be generated through the process Cole described.

This pop-up agency would push through the egg in the snake, make its recommendations, and disband.  Their efforts would be revenue-positive (because of savings in incarceration costs), further an important policy goal that has been embraced by members of both parties and all three branches of government, and avoid the dangers presented when a new, permanent bureaucracy is established. What’s not to like about that?

Some recent and older posts concerning federal clemency practices:

February 4, 2014 in Clemency and Pardons, Criminal justice in the Obama Administration, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Sunday, February 02, 2014

"Citing Catholic faith, family of victim seeks to keep condemned Cleveland killer from lethal injection"

The title of this post is the headline of this interesting recent Cleveland Plain Dealer article highlighting a notable set of voices expressing a faith-based disinterest in completing the next scheduled execution in Ohio.  Here are the details:

Irene Allain and her family want to prevent condemned killer Gregory Lott's execution. And they're relying on their faith to do it. Allain is the daughter of John McGrath, the 82-year-old man Lott is convicted of killing a vicious attack in East Cleveland in July 1986. Nearly 28 years later, Lott is scheduled to die March 19 for the crime.  And Allain and her family are pushing that the sentence be changed from death to life in prison.

"Although it has been difficult for me to come to terms with how my father died, I do not agree with executing Gregory Lott," Allain wrote in an affidavit that Lott's attorneys are using to seek clemency for him. "I am a devout Catholic, as is my family.  I believe that life in prison is a just punishment for Gregory Lott. I believe his death sentence should be commuted to life imprisonment."

As the debate over the death penalty simmers in Ohio, most recently sparked by the drawn-out execution of Dennis McGuire earlier this month, McGrath's family members highlight the issue from a different perspective.  And they aren't alone.  A growing number of families of victims are urging courts to avoid using the death penalty as a punishment.

"There is an automatic assumption that victims' families want the death penalty, but that has been challenged in the past five to 10 years," said Scott Bass, the executive director of Murder Victims' Families for Reconciliation. "There is a rising number of victims' families who don't want the death penalty. For many, the death penalty adds 20 to 30 years to the trial. It prolongs the agony for families."

But not all families believe that. Take the relatives of Joy Stewart, the pregnant woman who was brutally attacked and killed by McGuire.  Her family, in a statement to reporters at the execution, said they have forgiven McGuire, "but that does not negate the need for him to pay for his actions. It's time -- past time -- for him to pay for what he did to my sister."

In the case of Lott, it is clear that McGrath's family wants him to remain in prison. "I don't want to put my imprimatur on a man's execution,'' said Jack McGrath, a grandson. "Much of this is because of my Roman Catholic faith.  When I first learned of this in 1986, I almost thought of taking matters into my own hands.  But time has healed our wounds. I don't believe in the death penalty because of my faith."...

In a letter to prosecutors before his trial, Lott admitted to the slaying and pleaded for a deal that would spare him the death penalty.  "I am ready and willing to go to court any day or time and take the 30 years," Lott wrote to prosecutors. "I beg that you would let me plead guilty to the murder.  I am very sorry and remorseful for what happened to Mr. McGrath.''

But the deal never came. Months later, a three-judge panel convicted him and him sentenced to die.  Lott's execution date has been pushed back twice after legal challenges, including one that accused Carmen Marino, then an assistant Cuyahoga County prosecutor, of failing to turn over evidence to defense attorneys.  A federal judge in 2007 rejected Lott's appeal.  Following other appeals, he was given a new execution date....

Jack McGrath, the grandson of the man Lott killed, said he has thought a good deal about revenge and spoke with a Catholic priest.  "Twenty-eight years ago, I felt very much like that," he said. "But there comes a point when you say to yourself, 'Can this guy be forgiven?' What has happened has happened. It's not my place to judge."

This story is substantively interesting because it involves family members of a murder victim making a forceful faith-based pitch for clemency. But it is also practically so interesting because it could give Ohio Governor John Kasich a very reasonable basis to grant the condemned murderer here a commutation to LWOP and thereby prevent the next six week being filled with huge legal fights over Ohio's two-drug execution protocol. Of course, those legal fights are inevitable whenever Ohio gets close to another execution, but the Gov and other Ohio officials might find it quite beneficial to have a few more months to gear up for these fights without a March execution date looming.

February 2, 2014 in Clemency and Pardons, Death Penalty Reforms, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (15) | TrackBack

Friday, January 31, 2014

Professor/practitioner perspective on DAG Cole's puzzling clemency conversation

Nearly everyone I know invested in the modern debate over federal clemency policies and practice have been intrigued and puzzled by the clemency comments made by Deputy Attorney General James Cole yesterday at the New York State Bar Association Annual Meeting (basis here and here). Helpfully, Professor Mark Osler agreed to write up his thoughts for posting here in order to provide a thoughtful perspective on that DAG Cole's comments might mean and portend:

Since starting a federal commutations clinic a few years ago, I’ve become fascinated by the clemency process. For those of us who care deeply about the constitutional pardon power, the speech by Deputy Attorney General Jim Cole in New York was a bombshell. In short, Cole announced that President Obama’s grant of eight commutations in December was just a “first step,” and that “there was more to be done.”  This isn’t subtle signaling; it is a bold and admirable announcement that the administration plans to use the pardon power systemically to address over-incarceration in narcotics cases. This is great news for those serving such sentences, sure, but it also is a remarkable moment for the pardon power itself, which has not played such an important and principled role in the justice system for decades.

There are some open questions, though. Cole said the December commutations were a “first step,” and outlined generally what the second step will be — an apparent move to funnel many more cases through the existing process. Cole described three parts of this process. First, the Bureau of Prisons will advise inmates of their right to petition for clemency and then direct inmates who respond to bar associations that are willing to help prepare petitions. Second, bar associations will then coordinate the preparation of these petitions. Third, a member of Cole’s staff will coordinate all of this.

If it works, this will result in a flood of petitions being sent to the federal pardon attorney, a DOJ functionary. Therein lies the rub. The pardon attorney, and the rest of the process between the pardon attorney and the President, has hardly been a model of efficiency. In December, those eight commutations and thirteen pardons that were granted were dwarfed by what currently clogs the pipeline — over 3,500 petitions for clemency are currently unresolved. Presumably, these new petitions will take their place at the bottom of that large pile.

At best, this will all work out somehow — there might be a plan to improve the process that we don’t know about. At worst, Cole is waving more traffic onto a jammed freeway, without first clearing the wrecks and opening the exit ramps.

Generating more clemency petitions is a good thing, but it needs to be accompanied by an administration plan to process and grant more petitions. Gerald Ford did this efficiently by creating a Presidential Clemency Board, which evaluated thousands of clemency petitions from Vietnam-era draft evaders and Army deserters. Ford’s Board did this in exactly one year, at low cost. That model should be used here. If the freeway isn’t moving, adding more cars won’t help much.

January 31, 2014 in Clemency and Pardons, Criminal justice in the Obama Administration, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Thursday, January 30, 2014

Deputy AG Cole's remarkable remarks to the NYSBA

Via an early New York Times article, I have already reported here on some of the clemency comments delivered today byDeputy Attorney General James Cole at the New York State Bar Association Annual Meeting.  But i have now had a chance to review the whole text of the speech delivered by Deputy AG Cole, which can be accessed here, and anyone interested in federal sentencing policy and reform should read the whole text.  Here are just a few sections that really caught my attention as a sentencing geek:

I want to talk with you today about the crisis we have in our criminal justice system. A crisis that is fundamental and has the potential to continue to swallow important efforts in the fight against crime. This crisis is the crushing prison population....

Over half of the federal prison population is there for drug offenses.  Some are truly dangerous people, who threaten the safety of our communities and need to be taken off the streets for a long time.  But others are lower level drug offenders, many with their own drug abuse issues, who fall into the all too common vicious cycle of drug abuse, crime, incarceration, release — and then the cycle repeats.

In addition, there is a basic truth that dollars are finite. Every dollar we spend at the Department of Justice on prisons — and last year we spent about $6.5 billion on prisons - is a dollar we cannot spend supporting our prosecutors and law enforcement agents in their fight against violent crime, drug cartels, public corruption, financial fraud, human trafficking, and child exploitation, just to mention a few.  In other words, if we don’t find a solution to the federal prison population problem, public safety is going to suffer.

Recognizing this dynamic, the Justice Department has been working hard to come up with solutions to stem the tide....

All of these Departmental efforts recognize the need for a broader, smarter approach to criminal justice.  We believe these efforts enhance our ability to protect our communities and maximize public safety.  These efforts not only ensure that we continue to be “smart on crime” from a limited resource perspective, but they also help to ensure that federal laws are enforced fairly.

And embedded in this issue of fairness is the consideration of sentence reductions for those who, at an earlier time, encountered severe and inflexible sentencing laws.

This brings me to another issue I want to address with you today and ask for your help. The issue is executive clemency, particularly commutation of sentence.  Commutation of sentence is an extraordinary remedy that is rarely used.  But it may be available in certain circumstances, including when an individual has a clean record in prison, does not present a threat to public safety, and has been sentenced under out-of-date laws that have since been changed, and are no longer seen as appropriate.

As I said earlier, our prisons include many low-level drug offenders.  Now, let there be no mistake, even the low-level drug offenders cause harm to people through their criminal actions and many need to be incarcerated. I don’t want to minimize the impact of their behavior.  Our prosecutors worked diligently, along with law enforcement agents, to collect evidence and charge these defendants, and then fairly and effectively obtained their convictions. T hey were properly held accountable for their criminal conduct. However, some of them, because of the operation of sentencing laws on the books at the time, received life sentences, or the equivalent of a life sentence, for limited conduct. For our criminal justice system to be effective, it needs to not only be fair; but it also must be perceived as being fair.  These older, stringent punishments, that are out of line with sentences imposed under today's laws, erode people’ s confidence in our criminal justice system....

[A]side from legislation, the President also has the ability to take executive action to positively impact the criminal justice system. A little over a month ago, the President commuted the sentences of 8 men and women who were sentenced under severe — and out of date — mandatory minimum sentencing laws....

But the President’s grant of commutations for these 8 individuals is only a first step. There is more to be done, because there are others like the eight who were granted clemency. There are more low-level, non-violent drug offenders who remain in prison, and who would likely have received a substantially lower sentence if convicted of precisely the same offenses today. This is not fair, and it harms our criminal justice system.

To help correct this, we need to identify these individuals and get well-prepared petitions into the Department of Justice. It is the Department’s goal to find additional candidates, who are similarly situated to the eight granted clemency last year, and recommend them to the President for clemency consideration.

This is where you can help. We are looking to the New York State Bar Association and other bar associations to assist potential candidates for executive clemency. We envision that attorneys will assist potential candidates in assembling effective and appropriate commutation petitions — ones which provide a focused presentation of the information the Department and the President need to consider — in order to meaningfully consider clemency for similarly situated petitioners. You each can play a critical role in this process by providing a qualified petitioner — one who has a clean record in prison, does not present a threat to public safety, and who is facing a life or near-life sentence that is excessive under current law — with the opportunity to get a fresh start.  We anticipate that the petitioners potentially eligible for consideration would include: non-violent, low-level drug offenders who were not leaders of — nor had any significant ties to — large-scale organizations, gangs, or cartels. We would also look for petitions from first-time offenders or offenders without an extensive criminal history.

January 30, 2014 in Clemency and Pardons, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack

"White House Seeks Drug Clemency Candidates" ... like Weldon Angelos and Chris Williams?

WeldonThe title of this post is drawn the headline of this notable new New York Times article, which includes these excerpts:

The Obama administration, in its effort to curtail severe penalties in low-level drug cases, is taking the unprecedented step of encouraging defense lawyers to suggest inmates whom the president might let out of prison early.

Speaking at a New York State Bar Association event Thursday, Deputy Attorney General James M. Cole said the Justice Department wanted to send more names to White House for clemency consideration.  “This is where you can help,” he said, in remarks the Justice Department circulated in advance.  Prison officials will also spread the word among inmates that low-level, nonviolent drug offenders might be eligible to apply for clemency.  

The clemency drive is part of the administration’s effort to undo sentencing discrepancies that began during the crack epidemic decades ago. Offenses involving crack, which was disproportionately used in black communities, carried more severe penalties than crimes involving powder cocaine, which was usually favored by affluent white users....

“There are more low-level, nonviolent drug offenders who remain in prison, and who would likely have received a substantially lower sentence if convicted of precisely the same offenses today,” Mr. Cole said. “This is not fair, and it harms our criminal justice system.”

Like lots of lousy crime and punishment reporting, this piece fails to highlight the important realities that (1) any and every federal defendant is "eligible to apply for clemency," but that the Obama Administration (like prior administrations) is historically disinclined to bother to consider seriously any of these applications, and (2) according to this official accounting, there are currently over 3,500 pending pardon and commutation applications at the White House right now.

I am pleaed that a DOJ official is now talking about defense lawyers suggesting inmates whom the president might let out of prison early, but I sense that defense lawyers are doing this a-plenty.  In addition, the US Sentencing Commission surely has a list of all the persons who would benefit from the FSA if it were made fully retroactive.   The White House already has plenty of information (and so many ways to readily find additional information) concerning who could and should sensibly be considered for clemency relief.  The problem is not information, but the courage to walk the walk (rather than just talk the talk) about correcting excessively harsh prison sentencing politicies and practices that are "not fair ... [and] harm our criminal justice system.”

As the rest of the title of this post is meant to highlight, good candidates for clemency are not only crack dealers.  Especially in light of recent reform of state marijuana laws, I think one can validly argue that there are constitutional problems with the sentences being served by federal marijuana offenders like Weldon Angelos and Chris Williams, both of who are current serving lengthy prison terms for doing essentially what is now being done by dozens of licensed marijuana  marijuana dealers every hour of every day in Denver.  Constitutional arguments aside, I think both should quickly go to the very top of the White House clemency list ASAP, especially if Prez Obama really believes what he says about marijuana being really no more harmful than alcohol.

January 30, 2014 in Clemency and Pardons, Drug Offense Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8) | TrackBack

Tuesday, January 14, 2014

Clemency's consequences: "Clarence Aaron, almost free"

The title of this post is drawn from the headline of this notable new commentary  by Debra Saunders, who is described as the "San Francisco Chronicle's token conservative columnist." Because the piece is so moving (and pretty short), I am reprinting a lot of it:

Last month, President Obama did a good deed commuted the sentence of eight crack cocaine offenders, including Clarence Aaron, a first time nonviolent drug offender sentenced to life without parole.  Readers may have thought Aaron would be home by Christmas; instead the Dec. 18 order prompted the Bureau of Prisons to move Aaron to a minimum-security camp [and then to a halfway house]....  He is set for supervised release on April 17.

I had been a bit worried about what would happen to Clarence in prison as he awaited release.  At first, when he got the news, he didn’t tell other inmates. But it was on TV, and everyone found out.  Rather than stoke resentment, his commutation brought hope to inmates who had given up. “The atmosphere of the whole institution, it changed,” Clarence told me. “Everybody was happy… a lot of people walking around with that spark in the eye.”

When he got moved to a minimum-security camp, it was the same thing. “People knew I was coming to the camp before I knew I was coming to the camp.” And: “They were amazed to hear how God’s hand works.”

It was not easy in prison.  Clarence faced what was essentially a death sentence — life in prison until he died — among repeat felons serving shorter time. “The first day I got into prison,” Clarence told me, “I said, ‘What put me in this bad position?’”  His admittedly criminal actions started with money problems.  So he got a job in prison and started saving money.  He put together a plan for his future.  He studied the Bible, took college courses, followed the rules....

What does Clarence want to do first?  His “baby sister” Stephanie died of cancer in 2005. With his mother Linda, Clarence wants to visit her grave.  Later he wants to get a job, and get the documents he needs to obtain a driver’s license.

Where does he want to be in five years?  He wants a family and he wants to be established with a “meaningful career.”  Are you bitter? I ask.  He answers: “No, actually I’m not.  I’m happy.  This is a new day for me.  My Commander in Chief gave me a new life.”

January 14, 2014 in Clemency and Pardons, Drug Offense Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Monday, January 06, 2014

Lamenting the "ghosts ... still serving time under [crack] sentences that would not have been imposed under the new law"

Linda Greenhouse has this notable new op-ed in the New York Times headlined "Crack Cocaine Limbo." Here are excerpts:

President Obama earned a rare moment of bipartisan acclaim last month when he commuted the sentences of eight long-serving federal prisoners. Their crack cocaine offenses had resulted in the harsh penalties mandated by a sentencing formula that Congress repudiated when it passed the Fair Sentencing Act of 2010. The old formula, under which possession of a quantity of crack earned the same sentence as possession of 100 times that quantity of powdered cocaine, was “now recognized as unjust,” the president said.

But there were ghosts at last month’s party: thousands of federal inmates still serving time under sentences that would not have been imposed under the new law. Most are black. As is widely recognized, crack has been the cocaine of choice for African-American users and dealers even as white offenders choose powder. The racially disparate impact of the old law, which dates from the crack-cocaine panic of the mid-1980s with its now-discredited theory that crack was many times more dangerous, made reform a civil rights priority.

These prisoners remain in drug-sentencing limbo. When Congress passed the Fair Sentencing Act, which reduced the crack-to-powder sentencing ratio from 1:100 to 1:18, it was silent on retroactivity. The Supreme Court granted limited relief two years ago, ruling that those who committed their crimes before the law took effect in August 2010 but who were not sentenced until later could retroactively get the new law’s benefit....

Senators Richard J. Durbin, Democrat of Illinois, and Mike Lee, Republican of Utah, introduced a bill last summer to authorize judges to grant relief to pre-2010 prisoners on a case-by-case basis. But the Smarter Sentencing Act, as its sponsors call it, has yet to move toward a vote....

Society made a judgment, expressed in a bipartisan political consensus, that disparities of this kind were irrational and racially inequitable. Passage of the Fair Sentencing Act was preceded by years of debate, including pleas by federal judges who hated what the law made them do. Gradually, insight emerged. Keeping a known and finite group of people locked in a system acknowledged to be irrational is irrationality itself.

January 6, 2014 in Clemency and Pardons, New crack statute and the FSA's impact, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack

Tuesday, December 31, 2013

"President Obama, the merciless?"

The title of this post is the headline given to this notable new CNN commentary piece authored by P.S. Ruckman Jr., who runs the always great Pardon Power blog.  Here are excerpts:

This month, one of the least merciful presidents in the history of the United States granted 13 pardons and eight commutations of sentence.  The grants moved President Barack Obama's overall mark past the administrations of John Adams (who served only one term), William H. Harrison (who died of pneumonia after serving only 30 days), James Garfield (who was fatally wounded by an assassin after serving only four months) and George Washington.

The New York Times complained that, when it came to the pardon power, there was just "no excuse" for Obama's "lack of compassion" and encouraged him to "do much more." The American Civil Liberties Union called the pardons "a step" and hoped the President would "continue to exercise his clemency powers."  Meanwhile, the Cato Institute, a libertarian think tank, lamented the "drought" of pardons in the Obama administration and called the recent grants "mingy and belated."  Conservative columnist Debra Saunders wrote that it was "about time" Obama acted, and even tossed out the possibility/hope that he might "do it again soon."...

No one is clamoring for violent criminals to be yanked out of prisons and tossed into the streets to wreak havoc on society.  No one is lusting for the considered judgment of judges and juries to be whimsically overturned by politicians leaving office and, in the process, sidestepping accountability.

But, increasingly, there is recognition that budgets are tight, and prisons are both overcrowded and expensive.  The recidivism of those who spend time in prisons and exit without anything like serious rehabilitation is also costly.  Congress' recent recognition of the failure (if not outright unjust nature) of sentencing laws appears, to many, as still yet another indicator that there is consensus regarding the status of the so-called war on drugs: It has not worked out very well....

The pardon power will always carry an inherent political "risk," because no one can perfectly predict the future behavior of recipients and everyone's judgment can be second-guessed, if not mischaracterized.  Informed persons know Mike Huckabee did not "pardon" Maurice Clemmons and Michael Dukakis did not "pardon" Willie Horton.  But, of course, executives cannot always survive political storms with the support and encouragement of informed persons.

Nonetheless, the Founding Fathers considered the pardon power an integral part of our system of separation of powers and checks and balances.  Its presence in the Constitution is premised on the notion that Congress and the Courts are not always perfect.  Anyone care to disagree? It simply follows that, if the pardon power is being neglected or abused, then government is not doing what it was meant to do.

Alexander Hamilton furthermore noted, in the Federalist Papers, that the criminal codes of nations have an almost natural tendency toward over-severity.  For that reason, he argued, there should be easy access to mercy. Yes, you read that right, "easy access," or, in other words, something very different than what is going on in the Obama administration.

The fortunate thing is, presidents and governors can very easily minimize the political "risk" of pardoning by granting pardons regularly, consistently, throughout terms, as opposed to, very questionably, at the "last minute." While Christmas pardons may make some feel warm and fuzzy, they also send a message that is more counterproductive than anything.  They seem to say mercy is an afterthought, or worse, a gift, that may or may not be deserved.

The fact of the matter is the majority of individual acts of executive clemency in our lifetime have been pardons, which simply restored the civil rights of the recipients.  No one was sprung from jail.  Violent criminals were not tossed into the streets.  Judges and juries were not overturned.  Recipients have typically committed minor offenses, many involving no incarceration whatsoever, and usually, many years if not decades before pardon.  FBI background checks documented they had integrated back into society as law-abiding productive members.  Their pardons were not "gifts" so much as they were well deserved recognition.

Have these pardons been high-wire maneuvers?  Have they required presidents to spend precious political capital?  Not at all.  Obama has granted 52 pardons to date.  There is a much better than average chance that readers cannot name a single recipient.  George W. Bush granted almost 200.

So, why can't Obama restore the civil rights of more applicants?  Why doesn't he?  There is no obvious answer to that question, save lack of care and concern.  Where is the President who said his religion teaches him the importance of redemption and second chances?  Where is the hope?

December 31, 2013 in Clemency and Pardons, Who Sentences? | Permalink | Comments (7) | TrackBack

Wednesday, December 25, 2013

Astute commentary concerning meager crack clemency mercy finally shown by Prez Obama

In part because long-overdue and still meager grants of clemency by President Obama garnered so much MSM attention, I have not blogged much more about the Prez's decision to commute a few crack sentences last week (basics here).  But especially on this holy day, I thought it useful to provide links to a few subsequent piece of commentary that effectively highlight why a lot more use of the clemency power is still needed and justified for mercy to even be even a glimmer of hope for the tens of thousands of non-violent offenders still serving the harsh sentences that the federal criminal justice system too regularly hands out:

December 25, 2013 in Clemency and Pardons, Drug Offense Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Thursday, December 19, 2013

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Friday, December 13, 2013

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Wednesday, November 27, 2013

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

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

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

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

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

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

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

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

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

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

Tuesday, November 26, 2013

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

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

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

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

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

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

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

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

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

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

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

Thursday, November 14, 2013

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

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

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

Recent related post:

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

"Misconstruing Graham & Miller"

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

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

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

Wednesday, November 13, 2013

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

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

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

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

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

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

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

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

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

Monday, November 11, 2013

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

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

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

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

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

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

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

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

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

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

Sunday, October 13, 2013

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thursday, September 19, 2013

"Rethinking the Timing of Capital Clemency"

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

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

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

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

Wednesday, September 11, 2013

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

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

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

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

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

Saturday, August 31, 2013

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

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

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

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

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

Thursday, August 22, 2013

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Monday, July 29, 2013

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

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

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

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

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

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

Sunday, July 21, 2013

"Clemency Reform: We're Still Waiting"

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

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

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

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

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

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

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

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

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

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

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

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

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

Monday, July 08, 2013

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thursday, June 20, 2013

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

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

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

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

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

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

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

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

Prior related posts:

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

Thursday, May 23, 2013

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Sunday, May 19, 2013

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

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

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

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

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

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

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

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

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

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

Wednesday, May 08, 2013

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

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

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

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

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

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

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

Wednesday, May 01, 2013

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, April 16, 2013

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

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

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

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

Thursday, April 11, 2013

"How to Awaken the Pardon Power"

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

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

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

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

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

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

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

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

Tuesday, April 02, 2013

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

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

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

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

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

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

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

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

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

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

Monday, March 25, 2013

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

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

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

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

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

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

Thursday, March 14, 2013

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Wednesday, March 13, 2013

"Deporting the Pardoned"

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

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

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

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

Sunday, March 10, 2013

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

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

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

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

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

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

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

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

Wednesday, March 06, 2013

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Saturday, March 02, 2013

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Saturday, February 09, 2013

Highlighting the challenges of pardons and politics for state governors

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thursday, January 24, 2013

New ACS issue brief on the the federal pardon process

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

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

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

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

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

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

Monday, January 21, 2013

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

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

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

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

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

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

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

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

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

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

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

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

Thursday, January 10, 2013

"Why Has Obama Pardoned So Few Prisoners?"

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

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

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

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

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

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

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

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

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

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