« Might the US be willing to learn from the German prison experience? | Main | "Subconstitutional Checks" »

April 3, 2016

A more positive spin on clemency developments and more positive aspects

LisaRichRegular readers may grow somewhat tired of hearing me kvetch about President Obama being much more willing to talk the talk than walk the walk when it comes to criminal justice reform generally and clemency developments in particular. For that reason (and others), I invited always sunny Lisa Rich to provide for blogging her sunny perspective on clemency events that transpired at the White House last week. Here is what she was kind enough to send my way for posting:

A somewhat sentimental post by Lisa A. Rich, former director of Legislative & Public Affairs at the U.S. Sentencing Commission and current director of the Texas A&M School of Law Residency Externship Program in Public Policy:
Last Week, I had the privilege of joining not only the tireless advocates of the Justice Roundtable and White House staff but over two dozen recipients of clemency spanning four presidencies during the Justice Roundtable and White House Briefings on “Life After Clemency.”
Personally, it was a joy to see all of the people — Nkechi Taifa, Mark Osler, Cynthia Rosenberry, Jesselyn McCurdy, Julie Stewart, Margy Love, and so many others who have been working tirelessly to answer the Obama Adminstration’s call to action on clemency.  I am in awe of the ceaseless dedication these advocates demonstrate every day in their pursuit of hope and justice for those human beings who deserve a chance to be something so much more than a statistic in our cycle of mass incarceration. These advocates and those for whom they do their jobs are the role models I discuss in my classes and they are the ones who inspire me to be better.
But more than my personal connection with those I miss because I am no longer living in D.C., the events over these past three days were important for two reasons.  First, all of us, including the President and White House staff saw and heard what hope is all about.  We heard from clemency recipients about heartache, mistake, and loss being turned into determination, faith, and commitment.  We heard people who genuinely want to make their communities and their lives better, stronger, and happier.  I am delighted that policymakers inside and outside of Washington are taking the opportunity to get to know these people — as people, not numbers, not workload, not files on a desk.
Second, I was pleased that two of my students were in the audience — and in fact had been given the opportunity to be involved in preparing for these events.  As part of Texas A&M School of Law’s new externship program in public policy, these students got to see policymaking in action from start to finish; they got to see firsthand the effects of both good and bad policy decisions.  Their experiences may not seem all that different from the hundreds of law students who go to D.C. and elsewhere each semester to partake in policy but it actually was a defining moment for me and them.  These students are the future policymakers and advocates.  To me, the events of these past three days were not just about hope for those impacted by outdated laws and poor decision making, but hope that the next generation of lawyers, policymakers, and advocates being trained by the brilliant people who participated in these events will learn from our mistakes; that they will engage in sound decision making based on evidence and best practices; that they will carry on the work done so well by so many. As an advocate and a teacher that is what hope is all about.

April 3, 2016 at 08:12 PM | Permalink


Here's a question for you Doug--as you can see one of Obama's clemency grantees was Ernest Spiller--obviously, DoJ worked a lot on his file, and maybe that was good; maybe not, but if you go back and look at the DoJ's treatment of those whose USERRA rights were violated by the federal government, you'll note that the DoJ did not do a good job at protecting their rights---so is it fair to say that the DoJ cared more about a crackhouse operator than those called to active duty and who served in combat areas? Sure looks that way from my vantage point.

Posted by: federalist | Apr 4, 2016 12:42:03 PM

I know nothing about the DOJ's treatment of those whose USERRA rights were violated by the federal government, federalist, so it would be hard for me to assess what DOJ has done in that arena. (I can say that hundreds, if not thousands, of persons current in federal prisons are veterans who were once on active duty and who served in combat areas. Ergo, work on clemency requests for convicted federal prisoner can overlap with concern for vets. Indeed, I have long urged vets to be on the top of clemency lists at both the federal and state level.)

As for Spiller, it seems (based on his failed 7th Circuit appeal in 2001) that he got a 30-year guideline sentence after his jury convictions for selling 5.2 grams of crack from his home to a confidential informant and for related firearm possession charges. I am not sure it is fair to call someone found guilty of selling a small amount of crack from his home to be a "crack-house operator," though the case does show that the government alleged and the judge concluded that Spiller had been involved in a lot more crack dealing. Of course, the Blakely/Booker made unconstitutional how his sentence was calculated, and the FSA greatly reduced what sentence he would be likely to face were he convicted of the same offenses now.

Long story short, Spiller has already served roughly 20 years (assuming good time credit) for a few small sales of crack from his home based on laws that have been now procedurally found unconstitutional and substantively amended by Congress. You may not care much about whether he had to serve another decade for these crimes, and you may want DOJ to be more focused on USERRA rights, but I have a hard time being too troubled that this single grant of clemency is going to save the federal taxpayer perhaps as much as $400,000 in prison expenses. Indeed, federalist, if you can urge the next Prez to reinvest these Spiller savings in more DOJ lawyers to help vets under USERRA, perhaps we can have our clemency cake and vets can eat, too.

Posted by: Doug B. | Apr 4, 2016 4:37:33 PM

Interesting answer--but (a) we don't know what Spiller's going to do now that he's (about to be) free, so we don't know the costs that will be saved and (b) one would think that DoJ would spend at least as much time righting the wrongs faced by combat zone vets coming back to their federal government jobs. But they didn't (Google USERRA and Washington Post). This looks like misplaced priorities from this vantage point.

Here's the opening lines of the Seventh Circuit: "Based on the confidential informant's purchases, the next day federal agents obtained a search warrant for the residence. During the search, the agent recovered numerous incriminating items, including $6000 cash (including the marked buy money), an elaborate home security system, a scale with crack residue, a cocaine user handbook and other drug paraphernalia such as cans with false bottoms, plastic baggies, bongs, test tubes and beakers. The agents also found approximately 12 weapons in the home." Given that, I think it fair to call this guy a crackhouse operator, unless this was his safe house and only a little crack was sold from the house. Either way, your "5.2 grams of crack" euphemizes considerably Mr. Spiller's culpability. And, by the by, had the sentencing regime been different, the feds would have likely charged differently to get the same result since this guy obviously looks like he was a player. 12 guns--that's a lot.

Contrast him to some federal government employee called to active duty who then served in a combat zone who then came back only to find he'd been fired or demoted or what have you. By any measure, DoJ should have gone to battle stations, but it didn't. And now it spends considerable resources to hook up a gun-toting crack dealer who apparently was knee-deep in the trade. This may be ok with you, but it doesn't sit well, and it's interesting that you try to defend it.

Posted by: federalist | Apr 4, 2016 6:01:57 PM

Here's s/b Here are

Posted by: federalist | Apr 4, 2016 6:02:16 PM

If you're worried about veterans, you may want to advocate for clemency for Kenny Kubinski who earned 3 Purple Hearts, a Bronze Star and Army Commendation Medal in Viet Nam. He's serving a sentence of life without parole for a nonviolent offense.

Kenny is now 68 and has been incarcerated since 1994 for a nonviolent marijuana and cocaine offense. Of course, he was charged with conspiracy and elected to exercise his sixth amendment right to trial. You may be interested in supporting commutations for these offenders.

A Veterans Day Salute http://clemencyreport.org/military-veterans-prison-drug-war/

Posted by: beth | Apr 4, 2016 9:35:07 PM

beth--it's fascinating though to see how ideology overrides common sense--while I am not anti-clemency (you should be able to glean that from my numerous posts on the issue), it's totally fair to ask why DoJ apparently is more interested in Ernest Spiller than protecting the USERRA rights of combat vets who worked for the federal government, and that beth is indefensible, and I suspect you and Doug know it. You just cannot say it.

Doug even resorts to half-truths to minimize Spiller's culpability. Now it's easy to say that DoJ is a big place and things are always going to slip through the cracks--but even after the problems were noted, DoJ didn't do much.

Does Kubinski "deserve" clemency--I don't know that "deserve" is the right word. Perhaps 22 years is enough. We'll see if Obama agrees.

Posted by: federalist | Apr 5, 2016 9:22:37 AM

I think I understand. We just don't have the same vision of the role of the federal government.

Certainly the government should live up to the obligations of USERRA - like all disputes about the intent of the law - litigation seems to be the only way to determine what the intent or obligation is. This is an example of the excesses of litigation where taxpayers bare the cost of both sides of the disagreement or conflict.

I don't see clemency as being "deserved" I see it as an act of compassion and mercy. An incidental side effect is that billions of dollars are saved by reducing the sentences of citizens serving egregiously long sentences.

Take a look at the nonviolent veterans serving these sentences. Many of them served when the military still had the draft as opposed to voluntary enlistment. These individuals not only lost their jobs and families - they lost their freedom. This in no way discounts the promise of userra, I just don't see how one discounts the other. I think we just have a different vision of governments role in the lives and decisions of citizens.

Posted by: beth | Apr 5, 2016 11:08:24 AM

Beth, DoJ is charged with enforcing USERRA vis-à-vis people who work for the federal government. No one who looks at the record can say that it took that obligation seriously--clearly, this isn't normal litigation, so I think you're mistaken there.

Bottom line--Ernest Spiller got more attention than some returning vet. You and Doug can spin that all you want, but it shows that DoJ has some skewed priorities, and it's fair game to call them out on it.

Posted by: federalist | Apr 5, 2016 12:46:19 PM

federalist, I have now read a 2012 article from WaPo discussing the USERRA issue that quoted DOJ saying it looked into every allegation/complaint by a vet but only brought litigation in a few cases. I would assume/expect that DOJ has looked into each USERRA complaint as much (if not more) than it has looked into each clemency petition that has been filed.

Are you asserting, federalist, DOJ should file suit based on any and every single USERRA complaint? I am not sure how many DOJ lawyers have been working on this front during the Obama years, but I suspect it is a lot more than have been looking at clemency petitions until very recently.

As for Spiller, the fact remains he was only duly convicted of low level crack dealing. As you note, uncharged facts suggest he may have been involved in regular dealing. But none of that changes the fact he has served 20 years of a sentence that was imposed in violation of his constitutional rights and subject to sentencing mandates that have been significant reduced by Congress. These facts do not mean he is somehow more deserving of DOJ attention than a combat vets' claim his labor law rights were not respected, but this is not a zero sum game in which it make sense to say DOJ lawyers need to seek to right every wrong in the nation before it gives any time to any clemency petitions.

Of course, federal tax dollars to pay for "justice" is not unlimited, which is why a few dollars spent now to make sure some people sentenced extremely get clemency can be a wise long-term investment. Less money spent on BOP prison guards can free up more DOJ resources to go after USERRA violations.

Do you have any basis, federalist, for thinking DOJ has taken its resources away from investigating USERRA complaints to process clemency applications?

Posted by: Doug B. | Apr 5, 2016 5:41:30 PM

Doug, you misunderstand---DoJ is supposed to act when the federal government blows off the USERRA rights of government workers. Litigation really isn't the issue.

You can dance all you want--but DoJ dropped the ball with vets, but is chill with freeing a serious criminal like Spiller.

Posted by: federalist | Apr 5, 2016 11:20:09 PM

federalist, it seems you misunderstand: there is every reason to believe that DOJ is "acting" on USERRA concerns as much, if not much much more, than it has ever "acted" on clemency petitions. I will ask again, hoping you will actually speak to the reality of your curious and peculiar DOJ attack: what evidence do you have to support the suggestion/assertion that DOJ is "acting" less in response to thousands of complaining USERRA vet than it is acting in response to tens of thousands of clemency petitions?

As you should know, lots and lots of clemency folks (myself included) think DOJ should have NO formal role in clemency decision-making. I personally think the Pardon Office should be an independent judicial branch agency, like (or a part of) the US Sentencing Commission. Would that be a change you would endorse?

Posted by: Doug B. | Apr 7, 2016 10:12:38 AM

Doug, were I president, I (and I know this is a break from most of my law and order allies) would take Hamilton's view seriously and I would ask for information about people we could let out (a prison bed being a scarce resource) and I would look at data from prosecutions to make sure that prosecutorial resources were being used wisely (and morally--prosecuting the guy for defending kids against grizzly bear was immoral). I would also liberally use the pardon power to remove convictions from people who have lived law-abiding lives after a conviction.
How all that happened is less important, but I suspect someone looking over DoJ's shoulder is probably the best way to go about this.

AS for USERRA--clearly there was some heavy lifting by DoJ to look at Spiller's record--I juxtapose that will the studied indifference to the plight of returning vets WHO HAD A RIGHT TO HAVE DOJ WORK HARD TO RIGHT A WRONG. Holder's DOJ simply didn't care, and Holder's yapping about all the people in prison showed to me just where the priorities are.

Personally, Spiller doesn't seem a good candidate for clemency, but I don't know all the facts. But what I do know for sure--the resources expended by DoJ to evaluate his case would be better spent protecting the USERRA rights of returning vets screwed over by the government. The upshot, Doug, is that I don't trust people with such misplaced priorities to release criminals.

Posted by: federalist | Apr 7, 2016 11:32:40 AM

Heck Doug, DOJ is working hard to protect Hillary staffers from being deposed. Think that's good?

Posted by: federalist | Apr 7, 2016 11:33:28 AM

As I suspect you know generally, federalist, I do not have much trust in the work of DOJ under any administration. And, of course, the main reason clemency power is needed and important is because there is a long-standing reason to fear, as the Framers fully understood, that prosecutors might often have misplaced priorities in the heat of the prosecutorial moment. I certain think seeking to throw the book at the likes of Weldon Angelos was a misplaced priority at the time. Especially disconcerting in cases like Angeloes and perhaps Spiller (and I speculate many other clemency grants) is that the defendant got especially slammed for exercising trial rights and/or refusing to cooperate.

I think we both agree that DOJ should be priortizing righting government wrongs, but arguably they do so in both the USERRA and clemency settings. As for protecting the Clintons and their cohorts, that is not high on my priority list either.

Posted by: Doug B. | Apr 9, 2016 4:07:32 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB