Wednesday, November 21, 2012

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

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

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

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

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

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

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

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

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

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

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

Friday, November 09, 2012

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

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

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

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

Related recent posts concerning federal clemency practices:

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

Friday, November 02, 2012

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

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

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

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

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

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

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

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

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

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

Wednesday, October 24, 2012

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

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

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

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

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

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

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

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

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

Tuesday, September 25, 2012

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

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

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

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

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

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

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

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

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

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

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

Saturday, September 22, 2012

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

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

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

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

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

Wednesday, August 22, 2012

"Prosecutorial Administration"

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

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

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

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

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

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

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

Saturday, August 04, 2012

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

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

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

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

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

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

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

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

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

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

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

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

Related posts:

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

Thursday, July 19, 2012

Press and pressure prompting talk of clemency reforms in White House

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

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

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

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

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

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

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

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

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

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

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

Monday, July 16, 2012

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

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

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

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

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

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

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

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

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

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

Tuesday, July 10, 2012

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

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

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

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

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

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

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

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

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

Related posts concerning federal clemency practices:

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

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

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

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

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

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

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

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

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

Wednesday, June 27, 2012

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, June 26, 2012

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

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

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

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

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

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

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

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

Download 062612 Law Professor Letter OPA

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

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

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

Wednesday, June 20, 2012

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

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

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

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

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

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

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

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

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

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

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

Thursday, June 14, 2012

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Wednesday, June 13, 2012

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, June 12, 2012

"Commutation Recipients Ask for OPA Investigation"

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

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

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

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

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

Related posts concerning federal clemency practices:

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

Sunday, June 10, 2012

"Clemency in a Time of Crisis"

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

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

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

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

Wednesday, June 06, 2012

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

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

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

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

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

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

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

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