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January 16, 2017

Questioning a new term of supervised release after Prez Obama commutes a life sentence

This new article at The Fix highlights an interesting legal issue that has arisen in the wake of Prez Obama's decision to commute a drug offenders life sentence.  Here are the particulars (with a few edits for keeping the legal terminology accurate):

When Jimmy Walden was granted clemency by President Obama, it was the happiest day of his life.  Walden was locked up on May 19, 2008 and given a life sentence under federal sentencing guidelines for a very minor drug offense in Tennessee.  On August 4, 2016, Walden received an Executive Grant of Clemency commuting his total trial sentence of imprisonment to expire on August 3, 2018.  He was ecstatic, but then he got a letter from the court informing him that they wanted to impose a 10-year term of supervised release. The court hadn’t deemed it necessary at the time due to Walden’s life sentence, but since he was getting out, his judge now wanted to impose [supervised release], which in effect is another sentence.

“I was arrested in September 2007.  My case was possession with attempt to distribute crack cocaine and marijuana,” Walden tells The Fix from Federal Correctional Institution, Jesup in Georgia. “They arrested me and wanted me to tell. I refused and went to trial. They found me not guilty of count one and guilty of counts two to five.  They gave me life from enhancing me because of my priors.”

The two priors were for very small amounts of crack. Walden got caught with 1.3 grams the first time and .5 grams the second time. He was charged with possession with intent to sell. He was sentenced to probation in both cases.  But the federal government used those two priors to trigger the career criminal statute and sentenced Walden to life. He was effectively doing life for around 50 grams of crack cocaine.  That’s why Obama pardoned him, because he was serving a disproportionate sentence....

But at the same time he was getting congratulated on his presidential commutation, he received a disconcerting letter from the sentencing court saying that even though his judge omitted to sentence him to [supervised release] at his original sentencing, the judge now wanted to impose a term of supervised release on Walden once he was released. The judge went back and did a re-do, issuing an order that would amend a judgement that was final nine years ago. If Walden tried to get back in court on some issue and change his sentence, he’d be time barred by the court — but it seems the court can do as it pleases when it comes to drug war prisoners, while those unjustly incarcerated must follow the rules....

For some clarity on the matter, The Fix reached out to some clemency experts — P.S. Ruckman Jr., a professor of political science who runs the Pardon Power blog, and Margaret Love, the former pardon attorney under former President Bill Clinton — to get their opinions on the legalities involved with pardons and what the courts can or can’t do in this situation. “The president has the power to grant commutations of sentence, with or without conditions,” Ruckman tells The Fix....  “Presidents have commuted sentences on the condition that prisoners never drink again, that they live with their parents, that they leave D.C., that they join the army, that they leave the United States and never return, etc. In the past, prisoners have refused attached conditions and chosen to remain in prison.  My understanding is that this was a conditional pardon.”

If 10 years [supervised release] was one of the conditions of clemency like attending the Bureau of Prisons’ Residential Drug Abuse Program was then Walden has to accept it as part of the clemency grant or stay in prison like Ruckman said. No one would do that, but if the 10 years supervised release wasn’t a condition of the grant of clemency, then the court shouldn’t have any right to impose it. That would be illegal.

“I understand that the president’s commutation order did not mention a term of supervised release,” Margaret Love tells The Fix. “In any case, the pardon power does not authorize the president to impose a new sentence (which is what a term of supervised release is). The court's power to amend the original judgment to impose a new sentence of supervised release at this point, or to impose any conditions on his release, seems highly doubtful. At this point the court has no power to impose a term of supervised release, effectively a new sentence.”...

Pursuant to Rule 36, the court sent notice to Walden that it intends to amend the Judgment and Commitment Order to correct the Court's omission of failing to impose mandatory terms of supervised release as required by the statute. The court intends to order that all terms of supervised release run concurrently for a net effective term of 10 years of supervised release. The court also intends to impose the Standards Conditions of Supervision that have been adopted by his Court. The court appointed a public defender and informed Walden that he could object to the imposition of the term of supervised release.

“I objected,” Walden says.  “The point is I have remained in zero trouble inside prison. The president gave me clemency because he believed in me.  The judge now wants to add 10 years supervised release onto my sentence after my sentence has been final for over nine years. This is a violation of due process. As an inmate I have no legal way to get back into court. They had their chance at sentencing.  I disagree with this reasoning and I have filed a statement that I object to this addition with my attorney.  This is an interesting situation. Many people seem interested in the outcome.  It is illegal and should be brought to the public's attention.”

Even Walden’s public defender wasn’t sure about the legalities involved in this case, “I am currently reaching out to defenders across the nation to see if they have input on whether this is permissible post-grant of clemency,” she wrote him. Currently the public defender is in the process of making a supplement to the objections that Walden has. Plus other prisoners who received clemency grants from Obama have not received letters from their judge and court attempting to amend a judgment that is already final. Walden is ready to get on with his life without [supervised release] hovering over his head.

“I would like to drive trucks after getting my CDL license,” Walden says. “I thank God for another chance. I have this desire to drive trucks and see the country at the same time. Perhaps I will have a chance to speak to younger people and explain to them how unwise choices have consequences. I can stop youth from making the same mistakes I have. I am blessed that Obama came into office and helped me, or I’d be just another number serving life behind bars. There may not always be a President Obama around to give people another chance. I will definitely take the opportunity to prove to people like the President-elect that some people are deserving of a second chance.  I would certainly not want to mess up someone down the line from getting the same relief as me.”

The legal issue here strikes me as an interesting mix of functionalities and technicalities.  There was, of course, no functional reason for the sentencing judge to impose any term of supervised release at initial sentencing when imposing an LWOP sentence. But now that a commutation has resulted in an offender getting released after serving less than a decade, there now is a functional reason for imposing at least some SR term (which would have been a required part of the sentence had the defendant been sentenced to less than LWOP).  But, technically, I think there is a forceful argument that if the Prez did not include the addition of an SR term in his clemency grant, then it is improper for the original sentencing judge to now add that on to the defendant's original (now commuted) sentence.

Notably, the White House clemency page reports that the "1,176 men and women" who have had their prison sentences commuted by Prez Obama includes "395 individuals who were serving life sentences." Thus there are literally hundreds of individuals who could have this kind of post-commutation issue arise (although I doubt all sentencing courts are going to be as proactive as the court that added 10 years of supervised release to Walden's sentence).

January 16, 2017 at 11:20 AM | Permalink


I don't think the matter remotely debatable. The convict got what he got at sentencing--the criminal judgment did not include supervised release. President Obama's commutation reduced the effect of the criminal judgment, and there is no basis to conclude that the SR is required by law.

This is an atrocious decision, and it's emblematic of a legal system that doesn't respect the strictures of law.

Posted by: federalist | Jan 16, 2017 11:26:37 AM

I agree with federalist though perhaps not for precisely the same reasons. The judge doesn't have the power. Once the judge sentenced the defendant and the judgement and sentence became final the judge loses all jurisdiction over the defendant at least to this subject matter. The defendant gets transferred to the executive branch and what the executive branch chooses to do with the prisoner-so long as it is within legal and constitutional bounds--is of no concern to the judiciary.

In other words, I don't see this as a "rule of law" problem but a "separation of powers" problem. The court here seems to be under the mistaken notion that what is happening between the branches of government is some kind of sentencing "conversation". It's not.

Posted by: Daniel | Jan 16, 2017 12:01:16 PM

Many, maybe most, of the 395 individuals with life sentences who had their sentences commuted also had supervised release as part of their original sentencing. I know one first time nonviolent marijuana offender who has two life terms plus twenty who has ten years of supervised release.

Actually 10 years of supervised release attached to a life sentence is not surprisingly ridiculous. Any sentencing construct that gives a sentence of two life terms plus twenty is already ripe for ridicule about the redundancy.

Posted by: beth | Jan 16, 2017 12:30:02 PM

It's a rule of law problem. First of all (and this goes to separation of powers), the judge should be treading extremely lightly. The President's pardon power is virtually plenary (Prez probably cannot pardon himself and cannot pardon for a bribe).

Second, the basis of the action, correction of an error, simply does not obtain here. The original sentence was correct. And it certainly wasn't a "clerical" error.

Third, POTUS based his decision on the sentence then at hand---adjusting the sentence after clemency was therefore improper.

The arrogance of this action cannot be understated. It may well be that this guy "should" get supervised release. But one judge's opinion of "should" isn't the basis of law.

Posted by: federalist | Jan 16, 2017 12:41:30 PM

I appreciate the comments and it is an example of how conservative respect of basic principles can join with liberal concerns as well -- there is a lot of overlap on the basics in this country, even among all the disagreement. Both good and bad.

Anyway, I looked it up and there was a condition imposed:

"Commutation Grant: Prison sentence commuted to expire on August 3, 2018, conditioned upon enrollment in residential drug treatment."


I gather "Prison sentence commuted to expire" has a set meaning & if it means you cannot impose further requirements ala the judge here, the case is rather straightforward. But, these things often are not. The article noted:

"Walden’s public defender wasn’t sure about the legalities involved in this case, “I am currently reaching out to defenders across the nation to see if they have input on whether this is permissible post-grant of clemency,” she wrote him."

But, the first comments are attractive.

Posted by: Joe | Jan 16, 2017 12:58:22 PM

Rule 36 does not apply to changed circumstances that would have necessitated a different outcome had those circumstances been present.

Why doesn't that end the matter?

Posted by: federalist | Jan 16, 2017 1:19:11 PM

Doug, I am curious your legal analysis.

Posted by: federalist | Jan 16, 2017 2:13:30 PM

Isn't there a double jeopardy issue here as well?

Posted by: Michael Levine | Jan 16, 2017 3:53:06 PM

Mr. Levine may be correct: see United States v. DiFrancesco and progeny.

Posted by: anon2 | Jan 16, 2017 4:11:05 PM

Certaintly diesnt matter if he should of been placed on supervised release. His case was final, thats what its all about. Everything has to have an end. The inmate gas no chance to get it looked at and after 9 yrs the judge wants to midify the decision. Doesnt matter if he needs it, its just too bad for this judge whos life is ratcheting up sentences.

Ratcheting up the sentence. The guy was a career offender and went to trial and got a life sentence. Good gravy, get your head out judge. Sounds to me that this judge and our very own famous ex federal judge Jack Camp should go to the slammer for 20 yrs.

If they can railroad the public it should be good enough for them as well, thats the logic.
Never give these positions immunity for having absolute power.

Every yr take them back to Congress and other judges as well as circuit ones and explain the merits of ridiculous long sentences. Enough said.

Main problem with the Federal system us once in, its very difficult to get out

Posted by: MidWestGuy | Jan 16, 2017 5:10:51 PM

Anon2 wrote: "Mr. Levine may be correct: see United States v. DiFrancesco and progeny."

Nope. Although the Court of Appeals agreed with this line of thinking the Supreme Court reversed.

What we have here is a modification of sentence without any specific legal provision authorizing it.
The bull has bolted from the barn already as to what should have been done originally. When submitting a recommendation for a life sentence (almost always compelled by statute or advisory guideline with no legitimate mitigating circumstances), we include a provision of supervised release IF the defendant is released from custody.

I would love to get hold of the actual order to see how it was justified.

Posted by: USPO | Jan 16, 2017 5:24:58 PM


I think the Rule 36 argument is going to be that the statute required a period of supervised release. That's the reason why it is not a "changed circumstance". My problem is that this logic puts the defendant in an impossible bind. After all, if the period of supervised release had been part of the original sentence then removing that condition is something that the Executive could have done as part of the clemency grant; however, since it was not part of the original sentence there was nothing there for the Executive to commute. So the only way the defendant could get his new sentence commuted is to get yet another clemency grant. This is game playing that, once again, in my view violates the separation of powers. The judicial branch could at any time thwart the president's pardon power by simply claiming that some clerical error had be made that it was correcting. In other words, in a conflict between the demands of a judicially created rule (36) and the Constitution the Constitution wins.

Posted by: Daniel | Jan 16, 2017 6:55:32 PM

I think the Rule 36 argument is going to be that the statute required a period of supervised release. That's the reason why it is not a "changed circumstance"

Clemency is not contemplated by the statute--thus I think it tough to argue that this was required by statute. I am in agreement with the rest of your analysis

Posted by: federalist | Jan 16, 2017 7:19:36 PM

If the defendant's sentence has not expired why can't the district judge fix the error of failing to impose the statutorily required term of supervised release?Seems to me the judge is amending the J&C and fixing a mistake - instead violating Separation of Powers or Double Jeopardy.

Posted by: ? | Jan 16, 2017 10:43:58 PM

@ ?

Where is the "error"? In order for there to be an error, there had to have been an error in the first place. Was there?

Posted by: federalist | Jan 16, 2017 11:12:09 PM

First, the J&C is final curtain for this Judge (who is unnamed and unshamed here, why?). Jurisdiction transfered - with custody - to the local District near the Hoosegow. DJ have no "second bite of the cherry" (and less without a Motion) and is out-of-bounce, in BOP lingo, and ultra vires, in Scalia lingo, plus a sad fool to further deconstruct those few reputational assets left for the US "justice" and mass-incarceration system. Probably he just wants to shine as "tough", enough to prompt Trump to usher him upwards soon even though SR is a costly government service that GOP would want to diminish. The BOP looses warehousing income for the "loss-removal" of Walden, who was a huge storage asset, and the DJ wants to compensate Probation for the loss. Banana Republic and Kangaroo Courts are here to stay.

Posted by: Melanie L Lopez | Jan 17, 2017 4:04:55 AM


The problem with the expiration argument is that it is foreclosed by the text of rule 36. Rule 36 says a clerical error can be fixed "at any time". It doesn't say "up until the J&C has expired" it says "at any time".

In other words, for the purposes of Rule 36 an order NEVER expires. That's what the plain text of the rule says. It is the free ranging nature of Rule 36 that creates the constitutional problem. It simply cannot be true on the basis of a separation of powers that a judge can modify an order "at any time". And if that is true the question then becomes: consistent with the separation of powers, when does a judge's power to modify their own order terminate? I don't have a full answer to that question but it seems to me, for the reasons I outlined above, that one answer to that question is "after the judge's original order has been modified by an exercise of the Executive's pardon power."

Posted by: Daniel | Jan 17, 2017 11:59:54 AM

Here is rule 36 for reference


After giving any notice it considers appropriate, the court may at any time correct a clerical error in a judgment, order, or other part of the record, or correct an error in the record arising from oversight or omission.

BTW, the commentary for the rule cites to


but in fact that court in that case merely cited to some other cases without any additional analysis.

Posted by: Daniel | Jan 17, 2017 12:09:24 PM

How is this a "clerical error"? If the decision not to impose SR was deliberate (because of life sentence) then the Rule's condition isn't met.


Posted by: federalist | Jan 17, 2017 4:49:25 PM

I looked up the rule myself. The article is interesting but along with such things like not noting the string attached to the commutation, not explaining it a bit more is a lack. And, yeah, I would love to see the judge fully explain his application. No "clerical error" seems to be at issue here.

Posted by: Joe | Jan 17, 2017 6:33:05 PM

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