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November 15, 2009

The shameful state of clemency in the Buckeye state (and in the United States)

This notable new article from my own Columbus Dispatch, which is headlined "Clemency requests piling up," documents the shameful state of clemency in the state of Ohio.  Here are some of the sorry details of what is going on (or, should I say, not going on) in the Buckeye state:

When her father went to prison nearly 10 years ago, Amberley Tapp was a precocious girl of 7 with hair of golden ringlets and a sunny disposition living in a nice home in Delaware, Ohio.  Fast forward to 2009, to an angst-ridden 16-year-old with deep, sad eyes who cries frequently and sometimes feels as if she can't breathe.

Meanwhile, a unanimous recommendation by the Ohio Parole Board that Bradley Tapp, Amberley's father, be granted executive clemency sits on Gov. Ted Strickland's desk.  It has company: 712 pending clemency applications in other cases, some dating to 2005.

In nearly three years in office, Strickland, a former congressman, prison psychologist and Methodist minister, has delayed executions several times and twice commuted the death penalty.  But he has not acted on any other clemency requests, a break with the practices of past governors....

Tapp, 45, who is serving a 14-year sentence for two second-degree felony counts of assault, has twice been recommended for clemency by the Ohio Parole Board. The charges resulted from a drunken encounter he had with two Delaware County homeowners in September 1999. Tapp's victims suffered serious but not life-threatening injuries.

Judge Henry S. Shaw of Delaware County Common Pleas Court threw the book at him. Now retired, Shaw has twice since said he regrets the harsh sentence, calling it "manifest injustice." Former Gov. Bob Taft rejected Tapp's clemency plea without comment in November 2005.

Strickland's predecessors, going back to Gov. James A. Rhodes, rejected the vast majority of clemency requests they received, but they usually handled several hundred cases each year to prevent a backlog like the one Strickland now faces.

Strickland spokeswoman Amanda Wurst said he is now reviewing requests submitted before 2008, including some carried over from the Taft administration.  "Once the governor has completed his review process he will begin reviewing 2008 clemency requests," she said.  "Mr. Tapp's request was made in 2008, so his request will be reviewed as a part of the 2008 clemency-request review process." Wurst said there is no "set time for an announcement."...

Amberley acknowledges that her father "did something stupid" and deserved punishment.  But she said he's done his time -- more time, in fact, than some murderers.  "All the governor has to do is look on his desk ... to take 30 seconds of his life to sign a piece of paper," she said.  "I don't think he even realizes how much a family is being tortured. I want him to care about Ohio's justice system.  Right now, he's showing he doesn't care."

This article captures the sorry state of disrepair into which the historic power of clemency has fallen. It would be bad enough if Governor Strickland was to denied all clemency requests during his nearly three years in office; the fact that these requests all sit upon his desk unaddressed is especially iniquitous.  Gov Strickland and his staff have surely had more than enough time to establish a general policy for dealing with clemency requests and to start applying that policy to the hundreds of cases that have been awaiting a decision for many years.  But rather than have the courage to grant or deny clemency requests, Gov Strickland is content to just let these requests (and the many humans impacted thereby) rot away from neglect.

Of course, Gov. Strickland might now say that he is just taking a cue from the current leader of his party and his country, President Barack Obama.  As I have previously noted, Prez Obama is already historically slow in using his clemency power as he approaches the end of a full year in office without a single clemency grant.  Indeed, as this official webpage reveals, it appears that Obama has over 3,000 requests for pardons and commutations siting unresolved on his Oval Office desk.

Some related posts on federal and state clemency realities:

November 15, 2009 at 05:12 PM | Permalink


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I wonder what would have happened if mandatory sentencing guidelines had been in place to begin with. If in fact the judge was having a bad day, such guidelines would have provided a degree of restraint, and, failing that, the opportunity for an appeal with a realistic chance of success.

Live by discretion, die by discretion.

Posted by: Bill Otis | Nov 15, 2009 9:06:22 PM

It is hard for me to believe that there is a state with a worse record of clemency than North Carolina. Governor Easley granted no clemency request that dna didn't prove a person innocent in his two terms of office. Bev Perdue is currently following in his foot steps. The ironic thing is that former Governor Easley might need clemency with all the alleged campaign donation scandals swirling.

Posted by: Anon | Nov 15, 2009 10:35:45 PM

But rather than have the courage to grant or deny clemency requests, Gov Strickland is content to just let these requests (and the many humans impact thereby) rot away from neglect.

Yep sounds just like former Governor Easley(North Carolina)and current Governor Bev Perdue.

Posted by: Anon | Nov 15, 2009 10:40:45 PM

Strickland is a cowardly political hack, afraid to make controversial decisions due to his lack of self-confidence in his capacity to be governor, and concerns about the tough reelection battle he faces.

Posted by: anon | Nov 16, 2009 10:37:06 AM

Oh, Bill. The last thing the guidelines provide is restraint on hanging-judge sensibilities.

The guidelines were a tribute to hanging-judge sensibilities.

For every instance of an over-heated judge checked by the guidelines, there are numerous stories of judges openly apologizing for harsh sentences they reluctantly imposed.

Face it, Mr. Tapp will likely remain in prison needlessly because Mr. Strickland fears waking tough-on-crime demagogues and filling them with politically opportunistic resolve.

Posted by: John K | Nov 16, 2009 11:08:53 AM

John K --

"For every instance of an over-heated judge checked by the guidelines, there are numerous stories of judges openly apologizing for harsh sentences they reluctantly imposed."

Point One: You don't dispute that there are instances in which mandatory guidelines checked over-heated judges, and that this might well be one of them.

Point Two: The stories of judges apologizing for harsh sentences were mostly in the context of sentences required by STATUTORY mandatory minimus, not the guidelines. A judge has no power to depart from a statutory minimum, but he does have the power to avoid a tough guidelines sentence by allowing a downward departure, which happened all the time. Indeed, in the mandatory guidelines era before Booker, downward departures were given in close to 40% of federal cases.

"Face it, Mr. Tapp will likely remain in prison needlessly because Mr. Strickland fears waking tough-on-crime demagogues and filling them with politically opportunistic resolve."

I don't know Strickland, and I doubt you do either. Therefore neither of us is in a position to suggest he is acting from corrupt or unworthy motives.

Have you ever considered the possibility that people not on your side simply disagree with you, rather than harbor evil intent?

The rancid questioning of people's motives, which 50 years ago was a hallmark of the McCarthyite Right, has been appropriated by the Jeremiah Wright Left. But it's no better now than it was then.

Posted by: Bill Otis | Nov 16, 2009 11:42:36 AM

John K --

One other thing. There is a story being carried today on MSNBC about the recovery of the corpse of a five year-old girl. Her mother has been arrested on charges of child endangerment and human trafficking. The story is that the mother was attempting to sell her daughter into prostitution. Apparently things did not work out; maybe she was asking too high a price. In any event, the kid winds up dead, her body tossed in the woods.

Don't take my word for it. See for yourself. Here's the link: http://www.msnbc.msn.com/id/33945506/ns/us_news-crime_and_courts

It's hard to imagine more sheer evil than a mother attempting to sell her small daughter into prostitution, then to wind up being complicit in her murder (although exactly how is not yet known) when, apparently, the deal falls through.

Do you think the problem here is the mother and whomever else (like the boyfriend) is in on this? Or is the problem the overzealous, hard-hearted, politicized and ambitious prosecutor whose job it will be to sort through this appalling and disgusting ordeal and bring the killers to justice?

Posted by: Bill Otis | Nov 16, 2009 3:54:18 PM

There is blame to be placed at the foot of individuals. The buck stops here and all that. But, the trend away from executive clemency as a legitimate element of executive power has been long term and not particular partisan. Even Governors who have made mass commutations in death penalty cases haven't necessarily been very active in utilizing their undisputed power under the law to grant clemency in more pedestrian cases.

Some of this may be due to the rise of post-conviction and appellate review by the courts. The courts have created a perception, if not a reality, that they are much more accurate and wiser than in years past. With some notable exceptions, judges now routinely have law school educations and reasonably long legal careers, criminal defendants are represented by lawyers, juries do not (de jure) exclude large classes of citizens, post-conviction review is available at both the state and federal levels, criminal defendants have sigificant process rights that are well defined, and there are reliable trial court records of what actually happened. Also, there are fewer and fewer cases that go to trial as a percentage of the total. So, the perceived likelihood that a particular case that has completed the direct appeals process is wrong is lower than it used to be. The larger appartus of criminal justice also gives more people a vested interest in arguing for bureacratic regularity.

Yet, the number of cases per Governor or in the federal system for the President to consider is larger in a great many states. Populations have grown and incarceration rates have grown too.

The most striking point, perhaps it is a product of the fact that clemency decisions often come with little or no express reasoning, is that there is such a lack of consensus about what makes clemency appropriate. Colorado's Juvenile Clemency Board members, for example, are deeply divided on this point. This is one area where a lack of a widely accepted legal theory behind the power has undermined confidence in the process, making it politically dangerous for top executive politicians to use.

Posted by: ohwilleke | Nov 16, 2009 7:55:44 PM

Since you asked, Bill...

I'd like this woman, who sounds like a real winner BTW, to enjoy the presumption of innocence until her guilt has been established BRD.

I'd prefer the initial charges had been selected to accurately cover what she's accused of doing (child endangerment? accessory to homicide? homicide?) rather than to poison the jury pool and leverage a plea agreement (probably by invoking the spectre of a death sentence) before the facts of the case have even been established.

As it is, I guess we're supposed to regard this "trafficker" as something akin to international smugglers or drug kingpins instead of a highly suggestible, deeply flawed (probably love-stricken) low-life who let her man maneuver her into something truly awful.

I'd be especially delighted if law enforcement assembled a competent, honest case proving exactly whatever it was she did rather than demonizing her to the media and squeezing potential co-defendants (with threats of death or lengthy sentences) to support the authorities' child-trafficker-as-arch-villain story.

And, after all that, if she sold her daughter for a hit of meth or rock cocaine (or just to curry favor with her boyfriend), then probably nobody, including me, will care how long she ends up spending in prison.

But, no, Bill, I still wouldn't want the state to kill her.

Posted by: John K | Nov 16, 2009 8:06:32 PM

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