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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 at 12:13 PM | Permalink


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Doug --

1. Republicans are justly named the Stupid Party, but are not stupid enough to nominate Rand Paul.

2. If you polled 100 people at random, I'll wager good money that not one would say Obama is untrustworthy on account of the relative lack of pardons.

3. Still, here's your Thanksgiving present: I know you and Paul Cassell personally and consider you friends. I have my disagreements with each of you, although Paul and I agree about most things and collaborated on the Dickerson case, which he argued in the SCOTUS.

I am now persuaded that Angelos has served enough time and that, a la' Scooter Libby, his sentence should be commuted. In saying this, I am not in any way suggesting that I support commutations for the zillion others who will instantly be claimed to be "similar." Executive clemency should not be a routine tool; it should be reserved for unambiguously outlier cases. Angelos is one of the few.

Happy Turkey Day!

Posted by: Bill Otis | Nov 26, 2013 5:46:33 PM

I cannot understand the reticence to pardon. But I do not care to understand the President's stingy non action. I want to see some pardons. Fast and furious. To me, this is the worst aspect of his Presidency. How can one itchBay about Congress holding up nominations to judgships and other offices when he sits on his rear on turkey day and pardons some turkey.

Posted by: Liberty1st | Nov 26, 2013 7:18:39 PM

I tried to post this on another thread:

Well, Joe, I see you're pontificating about judges--even though you cannot defend that Clinton judge that stayed the execution.

As for your analysis of the filibuster--well, let's not forget that Dems stiffed Keisler and Estrada for the DC Circuit, and now you argue that the GOP should simply cave. You should start with getting your history right.

I like the sly attack on outstanding jurists like Patricia Owen. Tell you what--when you can point to a Bush 43 appeals judge (other than quid pro quo appointments like Roger Gregory) that has the atrocious record of a Richard Paez, Marsha Berzon, Dennis, Cole, Clay, Daughtrey, Barkett, Wardlaw et alia, then talk to me about ideologues on the bench. Funny, you want to take potshots a GOP-appointed judges, but never ever seem to rise to the challenge of defending egregious decisions by Dem hacks on the bench. Remember "Judge" Dennis' BS stay? And how many times has Judge Wardlaw been part of a decision that got summarily reversed by per curiam opinion. And shouldn't "Judge" Clay's "easy case" nonsense in Bobby v. Bies qualify him as a complete idiot?

Oh, there goes federalist. Ragging on those 'rat judges again. Well, let's see their nonsense get defended.

And while you're at that, maybe someone in here can explain Sotomayor's idiotic statement during her Senate hearing that Ginsburg's opinion would have affirmed the 2d Circuit in the Ricci case. How does someone on the federal bench for 17 years make a statement that dumb?

I see that President Obama has renominated Ronnie White for a District Court judgeship. That guy flagged the bar the first time around. Yep, a wonderful example of a learned judge. Of course, the bar flagging wasn't a one-time thing--"Judge"White was on academic probation in law school. And when on the Missouri Supreme Court, "Judge" White thought that a guy could lie to his lawyer, have the lawyer put on a bogus defense, and then argue ineffective rep on appeal.

But Barack Obama thinks that the guy's really talented. There are a lot of things to despise about Barack Obama--but the idea of a guy who calls himself a Con Law Prof appointing a guy like Ronnie White to the bench is just too much.

it's all cute, of course, until some real person gets justice denied because Ronnie White is too stupid or too ideological to rule correctly.

This is why I call them 'rat judges."

Posted by: federalist | Nov 26, 2013 10:39:53 PM

Folks are now right to be disappointed with obama and the democrats, its not so much the "hope and change", and folks who supported him know getting things through congress with a republican house is hard given they have a lot of things against him.

However, with a filibuster proof majority and house they didn't get anything done except a watered down health care bill although one can argue its still significant. Where were all the so called progressive bills, such as the "prison abuse remedies act" which actually did have a hearing in the previous congress, or the ENDA bill for discrimination on sexual orientation, or federal judges and executive appointments. Not that I necessarily agree or disagree with reid's changing of the rules since the dems can be in the minority.

However, obama has not lived up to his promise despite the hard congress, folk supported him because they didn't like romney, however its getting old and stale, not so much that the GOP makes him look flat, but he hasn't changed things that much.

Posted by: kris | Nov 27, 2013 3:42:02 AM

¿ Can he be trusted ?

Posted by: Just Plain Jim (Just Another Guy) | Nov 27, 2013 7:27:13 AM

The only reform that needs to be made to the clemency process is to eliminate it and replace it with something accountable and overseen by judges or professional boards. Clemency as it stands is an outdated remnant of autocratic caprice and an excuse for legislatures and courts not to do their jobs.

Posted by: Jonathan Edelstein | Nov 27, 2013 9:19:07 AM

Jonathan Edelstein --

Wouldn't the abolition and replacement of Presidential clemency require a Constitutional amendment? Is there any realistic chance such an amendment would pass?

Beyond that, having judges involved in making clemency decisions strikes me as an unconstitutional, and unwise, expansion of their powers, which are limited to ruling on cases and controversies. Once final judgment has been entered and the last habeas petition denied, there's no case there.

Lastly, if I'm right that a Constitutional amendment would be required, shouldn't we go beyond your suggestion? What I mean is this: There is undeniable appeal to correcting an outrageous injustice. But if we are going to do that through a mechanism that has not existed in Constitutional law so far, shouldn't we also correct outrageous injustices in the other direction? That is, when, say, Casey Anthony gets away with killing her two-year old because she's acquitted by a hoodwinked jury, shouldn't the board you propose be able to undertake a do-over there too?

Under present law, no such thing is possible. And, despite its appeal in righting a glaring wrong, I personally would oppose it, because there are larger interests at stake in preserving the DJC notwithstanding its occasional protection of an outrageous acquittal.

Different but related interests, it seems to me, are at stake in finality of judgment generally. One might ask why we have years of indictments, trials, appeals and collateral review at all if, around the corner at the end of it, the Really Big Board of Professionals actually is the entity that decides the case. But -- as I say -- if we are to have such an entity, I can't think of a reason in principle that it shouldn't have the power to correct manifest injustices no matter who -- the prosecution or the defense -- was the initial windfall beneficiary.

Posted by: Bill Otis | Nov 27, 2013 12:15:06 PM

Hey Federalist? What do you know about Ronnie White? What an a hole in the wall statement.

Posted by: Liberty1st | Nov 27, 2013 5:58:59 PM

I know plenty. Google is your friend.

Posted by: federalist | Nov 27, 2013 9:09:42 PM

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