Sunday, September 15, 2019

California Gov Newsom commutes 21 sentences to make offenders eligible for parole

In his first year in office, California Gov Newsom has not been afraid to use his clemency power in various ways. This local article highlights his latest work in this arena, starting this way: "Gov. Gavin Newsom is commuting the sentences of 21 violent offenders incarcerated in California prisons, including four men who have convictions related to homicides in Sacramento County, the governor’s office announced Friday." Here is more:

Jacoby Felix, Crystal Jones, Andrew Crater and Luis Alberto Velez were convicted of separate murders in the 1990s. All four, now granted commutations by Newsom, were convicted in Sacramento County and sentenced to life in prison without the possibility of parole.

The clemency action was announced Friday in a statement from the governor’s office, which describes the crimes committed by those four men and 17 other state prisoners, and explains the reasoning for commuting their sentences.

“The Governor carefully reviewed each application and considered a number of factors, including the circumstances of the crime and the sentence imposed, the applicant’s conduct while in prison and the applicant’s self-development efforts since the offense, including whether they have made use of available rehabilitative programs and addressed treatment needs,” a statement from Newsom’s office said.

Youth offender status was another important factor considered, with 15 of the 21 total commutations involving inmates convicted before the age of 26. The four Sacramento County grantees were all between ages 18 and 26 at the time of their crimes....

Newsom’s commutations would make each offender eligible for suitability hearings with the state Board of Parole Hearings.

The commutations can be upheld or rejected by the California Supreme Court. The court blocked 10 clemency actions by former Gov. Jerry Brown in his final weeks in office, marking the first time since 1930 that a California governor’s commutation requests had been denied.

But Velez and Jones’ cases have already been reviewed and recommended by both the Board of Parole Hearings and the California Supreme Court, according to Friday’s news release. Those advance reviews are required by law for any commutation case involving an applicant with multiple felony convictions.

Velez, Felix and Crater would be eligible for parole suitability hearings in 2020. Jones would be eligible in approximately 2023 after serving 25 years of his life sentence.

Also included in Newsom’s commutations are Marcus McJimpson, who has served 31 years of two life terms for a 1988 Fresno County double murder, and 80-year-old Doris Roldan, who has been imprisoned since 1981 for the first-degree murder of her husband. Roldan of Los Angeles County – who now uses a wheelchair, as noted in the governor’s statement – was recommended for clemency by her warden.

The Gov's office has this overview statement about all the commutations and detailed discussions of each case appears in gubernatorial clemency certificates available here.

Prior related post about Gov Newsom's clemency work:

September 15, 2019 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Monday, August 26, 2019

Exploring how compassionate release after FIRST STEP might indirectly help with persistent federal clemency problems

Grant Pardon RatioRJ Vogt over at Law360 has this lengthy new piece discussing both federal clemency and one of my favorite parts of the FIRST STEP Act under the headline "How Courts Could Ease The White House's Clemency Backlog."  I recommend the piece in full, and here are some extended excerpts:

More than 11,430 federal prisoners, many of them nonviolent offenders serving life sentences, have commutation petitions pending at the U.S. Department of Justice’s Office of the Pardon Attorney, or OPA. Another 2,393 applications for presidential pardons, which are generally issued after someone completes a sentence, are also pending.

Both numbers mark record highs for a clemency system that America’s founding fathers designed to be, in the words of Alexander Hamilton, “as little as possible fettered or embarrassed.”

Today, access to clemency is anything but. Sam Morison, a former OPA attorney who now helps clients file petitions, says the Justice Department uses its oversight to stymie petitions before they ever reach the president’s desk. “The DOJ is to blame for the backlog,” Morison said. “They view their role as protecting the prosecutorial prerogative because, let's face it, that's what they do.”

Some legal scholars believe the First Step Act, a landmark criminal justice reform bill President Donald Trump signed into law in December, created a way for inmates to bypass DOJ oversight by asking judges for sentence reductions based on the circumstances of their cases.

But the concept hasn’t been tested in large numbers yet, and in the meantime, the odds of getting presidential relief are approaching zero. The office that granted 41% of all pending and newly filed clemency petitions in 1920 is on track to grant less than 0.1% under Trump....

Much of today’s epic backlog can be traced to President Barack Obama’s 2014 Clemency Initiative.

The project, which was designed to identify nonviolent federal prisoners who would not threaten public safety if released, got off to a rocky start when the DOJ sent the entire federal prison population a notice of the initiative and a survey to gauge inmate interest. The DOJ’s failure to “exclude inmates who were clearly ineligible for consideration” led to an overwhelming response, according to a 2018 inspector general report.

Over the last 33 months of Obama’s presidency, OPA received more commutation petitions than it had in the previous 24 years combined. At the same time, pardon petitions doubled, from a yearly average of 276 to an average of 521....

Shon Hopwood, a professor at Georgetown University Law Center, believes the First Step Act created a new path to commuted sentences... [H]e cited the First Step Act’s expansion of compassionate release as a more accessible option....

Under the First Step Act, a defendant no longer needs the bureau's backing. If the director won’t make the request for an inmate within 30 days of being asked, the new law allows the defendant to file a motion for resentencing directly in court. In a forthcoming law review article, Hopwood writes that judges can now consider “extraordinary” reasons for compassionate release without having to wait for Bureau of Prisons approval.

“Those serving long or life without parole sentences for marijuana trafficking offenses are the first to come to mind,” he wrote. “Another group ... might be those sentenced to harsh mandatory minimum sentences, even though the facts of their crimes made them far less culpable than someone committing a run-of-the-mill offense.”...

Margaret Love, U.S. pardon attorney from 1990-1997, told Law360 that the concept is “the hidden, magical trapdoor in the First Step Act that has yet to come to everyone’s attention.”

“This has obviated the need for the clemency process to take care of the great majority of commutation cases,” she said.

Hopwood acknowledged that prosecutors are likely to oppose these motions, but said they could provide a safety valve in which the judiciary simultaneously helps alleviate mass incarceration and the OPA’s commutation workload.

A few prior related posts on § 3582(c)(1)(A) after FIRST STEP Act:

August 26, 2019 in Clemency and Pardons, FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Friday, August 09, 2019

You be the Prez: would you grant a commutation to former Gov Blago?

Prez Trump has a distinctive and sometimes disturbing way of keeping policy and political stories interesting, and his use of the clemency power is no exception.  The latest developments on this front, which prompt the question in the title of this post, concern imprisoned former Illinios Gov Rod Blagojevich. Prez Trump has been talking up a possible commutation for some time, and this Politico article, headlined "Illinois Republicans urge Trump to keep Blagojevich in prison," has me suspecting that the Prez may not be prepared to "walk the walk" after talking the clemency talk.  Here are excerpts:  

Illinois’ delegation of House Republicans on Thursday urged President Donald Trump not to commute the sentence of Rod Blagojevich, the state’s former governor, after the president told reporters he was considering doing so. In a statement, Reps. Darin LaHood, John Shimkus, Adam Kinzinger, Rodney Davis and Mike Bost said that commuting Blagojevich’s sentence “sets a dangerous precedent and goes against the trust voters place in elected officials.”

“It’s important that we take a strong stand against pay-to-play politics, especially in Illinois where four of our last eight Governors have gone to federal prison for public corruption,” the congressmen wrote.

The state’s Republican delegation previously wrote to Trump in June 2018, also to oppose a presidential commutation of Blagojevich’s sentence. The Thursday statement renewed the call after Trump told reporters a day earlier that he felt Blagojevich’s seven years in prison had been enough.

“I thought he was treated unbelievably unfairly,” Trump said Wednesday. “He’s been in jail for seven years over a phone call where nothing happens.”

Blagojevich, a Democrat who served in the House before he was elected governor, was impeached and removed from office in 2009, and was later convicted on multiple charges of corruption, including trying to sell the U.S. Senate seat vacated by Barack Obama. During his trial, a recorded phone conversation revealed him saying: “I've got this thing, and it’s fucking golden. I’m just not giving it up for fucking nothing.” He was sentenced to 14 years in prison in a case that became a media frenzy. His family has tried multiple times to appeal the sentence.

Trump dismissed the phone call as “braggadocio” and nothing outside the norm of what has been said privately by several other elected officials.

On Thursday night, he tweeted that “many people” had asked him about commuting the sentence on account of its severity and that White House staff were looking into the matter. Prosecutors at the time of his trial argued that Blagojevich qualified for 30 years to life, but they recommended less time out of concern for his family.

As president, Obama declined to commute the sentence, and the Supreme Court declined to hear the case on more than one occasion. Trump, however, has raised the possibility of commutation in the past. In their 2018 letter opposing such a move, the Illinois Republicans — then including Peter Roskam and Randy Hultgren — said commuting the sentence would compromise trust in American democracy.

Notably, former Gov Blago has already served the equivalent of more than eight years of a federal prison sentence, which is considerably longer than the prior Gov George Ryan served for seemingly more extensive official misdeeds.  And I have a hard time seeing just how public safety (or "American democracy") is really served by his service of another half decade in federal prison. But, as the question in this post is meant to prompt, I am eager to hear others' thoughts on this matter.

August 9, 2019 in Celebrity sentencings, Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Tuesday, July 30, 2019

A (depressing) first term commutation scorecard for recent US Presidents

By my count, thanks to two commutations granted yesterday, President Donald Trump has now commuted six prison sentences during the first two-third of his first term in office.  (For those interested in an accounting, the folks who have received commutations are Sholom Rubashkin, Alice Marie Johnson, Dwight and Steven Hammond, Ronen Nahmani and Ted Suhl.  All of Prez Trump's clemency work is detailed on this wikipedia page.) 

Given that there are over 177,000 persons serving federal prison sentences, six commutations is, by all sensible measures, a very small number.  The granting of only six commutations seems especially disappointing given that last year Prez Trump was talking about considering clemency requests that including "3,000 names, many of those names have been treated unfairly, ... [and] in some cases, their sentences are far too long."  Six commutations to date also seems quite small in light of the advocacy by Alice Marie Johnson, Prez Trump's most famous commutation recipient, who has urged the President to free "thousands more" federal prisoners like her.

But if we bring a little historical perspective to this story, six commutations during a president's first Term in office starts looking a lot better — primarily because the clemency records of recent presidents is so very awful.  Specifically, using the official clemency statistics here from the Office of the Pardon Attorney (and perhaps being off a little because of the fiscal year accounting), here is a first term commutation scorecard for US Presidents over the last half century:

Prez              Commutations in first term

Nixon             48

Ford               22

Carter            29

Reagan           10

HW Bush         3

Clinton            3

W Bush            2

Obama             1

Trump              6

As informed readers know, back in Nixon's day, the federal prison population was only just over 20,000.  That so very few federal prisoners have recently received clemency while the federal prison population has swelled makes these numbers even more depressing.  The also look terrible if we look back further historically, as almost every other 20th Century US President (except for Dwight Eisenhower) granted a hundred or more commutations while in office (with Woodrow Wilson granting 341 in 1920 alone).

July 30, 2019 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Monday, July 29, 2019

Prez Trump gets back to using his clemency pen with two commutations and five pardons

As reported in this article from The Hill, "President Trump on Monday commuted the sentences of two nonviolent criminals and granted pardons to five others who previously pleaded guilty to nonviolent crimes but have completed their sentences." Here are details:

The White House announced that Trump commuted the sentence of Ronen Nahmani, who was convicted in 2015 and sentenced to 20 years in prison for conspiring to distribute a synthetic drug known as spice. The White House said Nahmani was a first-time offender with no prior criminal history who has five young children at home and a wife battling terminal cancer. The release also noted his case for an early release received support from bipartisan lawmakers.

Trump also commuted the sentence of Ted Suhl, an Arkansas man who was convicted in 2016 on four counts of bribery after prosecutors said he took part in a scheme to increase Medicaid payments to his company. Suhl appealed the ruling, but it was upheld, and he intended to file for an appeal with the U.S. Supreme Court. The White House noted his "spotless disciplinary record" while incarcerated and highlighted his support from former Gov. Mike Huckabee and former U.S. Attorney Bud Cummins.

In addition, Trump granted executive clemency to five people. The president pardoned John Richard Bubala, who pleaded guilty in 1990 to improper use of federal government property by transferring automotive equipment to the town of Milltown, Ind. Trump also pardoned Roy Wayne McKeever, who pleaded guilty in 1989 after he was arrested for transporting marijuana from Mexico to Oklahoma. McKeever was 19 at the time and served one year in jail.

Rodney Takumi received a pardon for a conviction over a 1987 arrest while he was working at an illegal gambling parlor. Takumi now owns a tax preparation franchise within the Navajo Nation, the White House said.

Trump granted clemency to Michael Tedesco, who was convicted in 1990 of drug trafficking and fraud. Former President Obama had pardoned Tedesco in 2017, but the fraud conviction remained on his record due to a clerical error. Trump's pardon will remove that charge, allowing Tedesco to obtain state licenses needed for his business.

The president also pardoned Chalmer Lee Williams, who was convicted in 1995 of several crimes related to theft of firearms and checked luggage during his time as a baggage handler. Williams served four months in prison and two years of supervised release. His voting rights in Kentucky were restored in 1998, the White House said....

With Monday's announcements, Trump has now pardoned or reduced the sentences of 19 individuals since taking office.

I had literally written to someone just today that I had largely given up on Prez Trump using his clemency powers regularly, and here he goes again. I was involved in helping to write an amicus brief urging the Supreme Court to take up the Nahmani case, so I am very pleased to see that the executive branch provided some relief to an extreme sentence after the judicial branch failed to do so.

Here are the official statements from the White House on these new clemency grants:

President Trump Commutes Sentence of Ronen Nahmani

President Trump Commutes Sentence of Ted Suhl

Statement from the Press Secretary Regarding Executive Grants of Clemency

July 29, 2019 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Thursday, July 04, 2019

Imagining an Independence Day in which Governors and the President compete to use their clemency powers to enhance liberty and freedom

I was pleased my news feed this morning included this local article from Arkansas headlined "Gov. Hutchinson announces pardons for 10 people."   Here are the details from the article:

Arkansas Governor Asa Hutchinson announced Wednesday that he will grant pardons to 10 people, including two from right here in the Mid-South.

Larry Smith of Marion was convicted on felony drug and misdemeanor assault charges in Crittenden County in 2005.  Wayne Wilson of Gosnell was convicted in 1971 and 1995 on burglary, petit larceny and first-degree assault in Mississippi County.  In both cases the applicants have completed their jail sentences, fulfilled all parole requirements and paid all fines connected to their cases.

Theodis Akins of Hampton, Virginia; Shakeylla Allen of Alexander; Miranda Jones Childers of Charlotte; John Dougan of North Little Rock; LaToya Hopson of Hot Springs; Rommie McDaniel of Bradford;Pierre Newman of Little Rock; and Robert Seay III will also receive a pardon, Hutchinson said

I often use Independence Day as an opportunity to encourage everyone to think about Americans who could benefit from more liberty -- see, e.g., Hey Prez Trump, how about honoring Independence Day by using your clemency power to give some more Americans more liberty? and  "What to the American imprisoned is the Fourth of July?" -- and this news out of Arkansas got me to imagining an America in which Governors and the President compete to enhance freedom through all sorts of clemency grants.  In a country in which we have managed to make a July 4th tradition of eating hot dogs and competing over who can eat the most hot dogs, I do not think it is such a bad idea to imagine competition around enhancing freedom on the day we celebrate out country's declaration about the importance of freedom.

July 4, 2019 in Clemency and Pardons, Who Sentences | Permalink | Comments (1)

Tuesday, June 25, 2019

"Which Presidential Candidate Would Give David Barren His Freedom?"

The title of this post is the title of this notable new Filter commentary authored by Rory Fleming.  I recommend the piece in full, and here are excerpts:

David Barren is a Black man from Pittsburgh who was sentenced in 2010 to life without parole in the federal criminal justice system.  That was during President Obama’s tenure — despite his heavily implying that no one should serve more than 20 years in prison for a nonviolent drug offense — and while Attorney General Eric Holder ran the Department of Justice.

Barren was accused of leading a conspiracy involving the distribution of over 150 kilograms of cocaine — though trial transcripts show that federal prosecutors, the defense attorney and the judge had huge difficulty determining how much cocaine there really was.  While the government claimed that there was $1.2 million of drug money to be seized, court documents show it was $76,000 plus Barren’s house, worth approximately $500,000.

Anrica Caldwell, Barren’s fiancée, believes that federal prosecutors on the case demanded life in retaliation for his actually taking them to trial — something of a unicorn in the federal justice system, in which 97 percent of cases end in plea deals.  At least one of his co-conspirators got only four years in prison for the conspiracy, after testifying against Barren.

Obama felt bad for him, but only to a point. He commuted Barren’s sentence to 30 years on his final day in office.  As Barren himself wrote in an email to Reason reporter CJ Ciaramella, he got a “reduction from LIFE in letters, to life in letters and numbers.”

Caldwell, an elementary school teacher in Pittsburgh, is the vice president of CAN-DO, an organization that tirelessly fights for clemency for nonviolent federal drug prisoners. “Baby, I’m gonna die in here,” Barren told her in a call from prison in January 2017.  He is currently 54, and not due to be released until 2034....

But at least one presidential candidate, Senator Cory Booker — recognizing that as things stand, nothing is going to change in time to save people like Barren — is going for broke. Indeed, Booker’s new clemency plan aims at reducing sentences for potentially tens of thousands of people serving federal time for drugs.  Unlike Obama, he said he would do it by executive order — constituting a White House clemency recommendation panel that is not hamstrung by the US Department of Justice, which currently houses the Office of the Pardon Attorney.

This would arguably represent the first time in US history that a president told federal line prosecutors to stuff their hyper-carceral, alarmist agenda.  Obama buckled significantly to their pressure by leaving many people like Barren out to dry on de facto life sentences. “People assume that Obama’s clemency initiative means 1,700 people are kicking their feet up now at home,” said Caldwell, “and that’s just not true.”

Barren’s case is pending before the Trump White House for additional clemency relief, and Caldwell hopes this could be seen as an opportunity for Trump to prove he is serious about the issue before an election year.

Two other presidential candidates could follow Booker’s ambitious clemency reasoning.  In the Queens District Attorney race, perhaps the biggest criminal justice referendum of the year, both Bernie Sanders and Elizabeth Warren have joined liberal media in endorsing Tiffany Cabán, who promises more proportional sanctions for both nonviolent and violent crime.

Sanders and Warren should talk about their plans for criminal justice reform in more detail, as it is the biggest civil rights issue of our time.  Would they give a man like David Barren a chance? Or would they, too, let his clock run out before he can see his loved ones from outside of the bars?

A few of many older and recent related posts: 

June 25, 2019 in Campaign 2020 and sentencing issues, Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Friday, June 21, 2019

Senator Cory Booker sets out "Restoring Justice Initiative" focused on providing clemency relief to thousands of federal offenders

ImagesAs reported in major media pieces ranging from Fox News to the New York Times to Vox, Senator Cory Booker on Thursday unveiled a major policy proposal as part of his presidential campaign.  The proposal is set for in this extended Medium post, titled "RESTORING JUSTICE: Cory’s Plan to Extend Clemency to People Serving Excessive Sentences."  I recommend this posting in full for all the details, and here are a few highlights (with links from the original):

The Restoring Justice Initiative builds on Cory’s long record of working to reform the broken criminal justice system. Since his days on the Newark City Council and as mayor, Cory has been a relentless advocate for criminal justice reform, building unusual coalitions to make real change.

In the Senate, his work was a critical factor in passing the First Step Act  —  a law that is turning the tide against mass incarceration.  In addition, Cory has pushed for bold legislative reforms, such as the Marijuana Justice Act.

The power to grant clemency, however, is a broad power granted exclusively to the president by Article II of the Constitution without requiring action by Congress  —  a power that President Booker would use immediately to begin correcting some of the most egregious abuses of the failed War on Drugs.

On day one of his presidency, he will initiate a historic clemency process for an estimated 17,000-plus nonviolent drug offenders serving unjust and excessive sentences  —  representing the most sweeping clemency initiative in more than 150 years....

Under the Restoring Justice Initiative, three broad classes of individuals serving sentences in federal prisons would be immediately considered for clemency.  Cory would use the power granted by the Pardon Clause of Article II of the Constitution to issue commutations for broad classes of individuals currently serving sentences for nonviolent drug offenses widely viewed as unduly harsh and rooted in racist and misguided federal policy.

Individuals serving sentences for marijuana-related offenses...

All told, as of 2012, the most recent year for which data is publicly available, 11,533 individuals are currently incarcerated in federal prisons for marijuana-related offenses.

Individuals serving sentences that would have been reduced under the First Step Act, if all the bill’s sentencing provisions had been applied retroactively:

The bipartisan First Step Act, approved by an 87–12 vote in the Senate, reduced the minimum sentences required for certain drug offenses.  Minimum sentences reduced in the First Step Act included mandatory life sentences for a third drug offense (changed to a 25-year minimum sentence); 20-year mandatory minimum sentences for a second drug offense (reduced to 15 years); and fixes to the 924c “stacking” mechanism. However, these reforms were not made retroactive, meaning that someone sentenced on December 20, 2018 is serving more time than someone sentenced a day later (the date the bill was signed) for an identical offense.  As of October 2017, 3,816 individuals in this category would be eligible for a sentence reduction in accordance with the First Step Act through clemency.

Individuals currently incarcerated with unjust sentences due to the sentencing disparity between crack and powder cocaine:

The sentencing disparity between crack and powder cocaine is a key driver of the gap in incarceration rates between Black and white people. In recent years, we have seen progress righting this historic wrong. For example, the 2010 Fair Sentencing Act reduced the crack-to-powder disparity from 100:1 to 18:1, and the First Step Act made the change retroactive, leading to the release of more than one thousand people. A disparity in sentencing, however, still exists. This effort would eliminate entirely the disparity between crack and powder cocaine sentences retroactively, a reform that should have occurred decades ago.

On day one in office, Cory would sign an executive order initiating a clemency process for thousands of people currently serving unjust drug sentences. The EO would charge the Bureau of Prisons, the Defender Services Division of the U.S. Courts, and the United States Sentencing Commission with immediately identifying individuals within the classes cited above that meet the stated eligibility parameters for clemency. It would also enable individuals to self-identify and submit their names for consideration.

The initiative will also revamp and streamline the clemency process more broadly through the creation of an Executive Clemency Panel situated at the White House. For individuals granted clemency, a federal interagency council would make policy recommendations to the Administration and Congress to facilitate their successful reentry, including identifying job and training opportunities, investing in rehabilitation programs, and targeting evidence-based social services.

The bipartisan Executive Clemency Panel would be comprised of advisors representing diverse sets of expertise to expeditiously process all cases.  While the process would operate with a presumption of a recommendation of clemency, the panel would closely review cases and prison history and decline to forward recommendations for individuals who may pose a threat to public safety.  For individuals granted clemency, a federal interagency council would make policy recommendations to the Administration and Congress to facilitate their successful reentry, including identifying job and training opportunities and targeting evidence-based social services.

The panel would also give a special presumption for release for those that are 50 years of age or older and have served lengthy sentences  —  as all evidence suggests that people typically age out of crime and are far less likely to recidivate.  Cory would also appoint a senior official in the White House to advise him on criminal justice issues, charged with advancing a proactive reform agenda.

Sounds pretty darn good to me!

Prior recent related post:

June 21, 2019 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Saturday, June 08, 2019

Hoping Prez Trump picks a Pardon Attorney eager to make good on his big clemency talk

Around this time last year, as highlighted in posts here and here and here, President Trump was talking up the possibility of granting clemency to lots and lots of folks. (Talking to reporters in June 2018, he said “We have 3,000 names. We’re looking at them. Of the 3,000 names, many of those names have been treated unfairly,” and their sentences are “far too long.”)

Fast forward a year, and Prez Trump is nowhere near walking the clemency walk after having talked the clemency talk.  But, as this recent Washington Examiner article hints, perhaps there is movement afoot on this front as the Justice Department seeks to find a new (and needed) Pardon Attorney.  The article is headlined "Trump urged to pick his own pardon attorney," and here are excerpts:

Worried clemency advocates are urging President Trump to select his own pardon attorney as the Justice Department reviews a stack of resumes collected on short notice.

There hasn’t been a political appointee in the post since the 1970s under President Jimmy Carter, but advocates say it could make a big difference, enhancing the position’s stature and ensuring that Trump’s interest in giving second chances extends beyond isolated cases. “I think it makes a lot of sense to have the pardon attorney job be a political one,” said Margaret Love, U.S. pardon attorney from 1990 to 1997.

The job posting was open for just a month, closing May 10, giving Love and others the impression the department may already have a candidate in mind and creating concern that a career prosecutor could take the helm.

“I wonder if they are going to make Trump aware of [the search]. Shouldn’t the president have some say over who his pardon attorney is?" said Sam Morison, who worked for 13 years as a staff attorney in the Office of the Pardon Attorney. “If they are just going to the U.S. attorney's offices, they are going to get someone who's a company man, and that's the idea,” he said.

Morison wants Trump to pick his own pardon attorney and move the office into the White House, citing institutional weight against clemency in cases the Justice Department itself prosecuted.

Though theoretically authorized to call the White House counsel, the pardon attorney reports to the deputy attorney general. In 2016, Pardon Attorney Deborah Leff quit, citing squelched White House contact. Since then, the office has lacked a permanent leader.

Morison, who now helps clemency applicants, is hopeful based on Trump’s public remarks, including that there are “a lot of people” in prison for “no reason.”

“Trump gets a lot of criticism, but I think it's refreshing for him to admit something everyone knows to be truth: The Justice Department is not perfect, and prosecutions are not perfect. Most presidents aren’t actually willing to acknowledge that,” Morison said. “I think Trump does not trust DOJ, and in this particular instance he's probably correct.”

The White House has considered criminal justice reforms, including during a September panel featuring Trump's son-in-law and senior adviser Jared Kushner and celebrity Kim Kardashian.

Heritage Foundation scholar and panelist Paul Larkin, who wants Trump to create a White House Office of Executive Clemency, returned to the White House in April for a private group discussion on clemency reform. Larkin noted Trump can create a West Wing office without congressional action and holds the exclusive constitutional power to pardon. Larkin separately advocates a commission to vet clemency requests, but that would require legislation.

CAN-DO founder Amy Povah, whose group favors “Clemency for All Non-Violent Drug Offenders,” also wants the pardon attorney divorced from the Justice Department. “We are relying on President Trump to finally be the hero we've been waiting for because he is an outsider who doesn't worry about shaking up the status quo,” she said....

The job posting closed as Trump fell behind former President Barack Obama on clemency. Trump has freed four prisoners, giving 12 people clemency including pardons, nearly all at the urging of politicians or celebrities. At this point in his presidency, Obama had issued 17 clemency grants.

One person said to have applied to be pardon attorney, immigration judge and former Guantánamo Bay prosecutor Stuart Couch, declined an interview request. White House spokeswoman Mercedes Schlapp declined to say if Trump was aware of the job opening or planned to intervene.

Last year around this time, I had become (too) hopeful that Prez Trump was prepared to change in various ways the process and politics around clemency. But, a year later, I am back to (more justifiable) pessimism and cynicism on this front. I still think it possible, especially in the wake of the praise that Prez Trump has received from his commutation of Alice Johnson's life sentence and his support for the FIRST STEP Act, that Prez Trump and his team could do something big here. But I am not holding my breath, and I feel especially bad for all the federal prisoners and their families who have likely also been hoping for too much from this Prez on this front.

A few of many recent related posts: 

June 8, 2019 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Saturday, June 01, 2019

NYU Center, reviewing historical state clemency grants, spotlights Massachusetts' ugly recent history

As noted in this prior post and as detailed at this link, the NYU School of Law's Center on the Administration of Criminal Law has a new project focused on state clemency histories with reports on particular state experiences.  The first of these reports is titled "The Demise of Clemency for Lifers in Pennsylvania," and is available at this link.  Now the second report, titled "Willie Horton’s
Shadow: Clemency in Massachusetts," has been released and is available at this link.  Here is how it gets started:

A healthy criminal justice system punishes no more than is necessary and creates opportunities for rehabilitation.  Clemency advances both goals.  This Report of the Center’s State Clemency Project focuses on Massachusetts, where just one sentence has been commuted since 1997.  Without a realistic opportunity for clemency, more than 1,000 individuals serving life-without-parole sentences in Massachusetts — 13 percent of the state’s prison population—are condemned to die behind bars.

June 1, 2019 in Clemency and Pardons, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Friday, May 24, 2019

Is Prez Trump gearing up for a big Memorial Day clemency push for servicemembers?

The question in this post is prompted by lots of new news reports, such as this lengthy one from Fox News headlined "Trump weighs pardons for servicemembers accused of war crimes, as families await decision." Here are excerpts:

President Trump is considering potential pardons for military members and contractors accused of war crimes as Memorial Day approaches -- deliberations that have prompted warnings from critics that the move could undermine the rule of law but also raised the hopes of their families who say the servicemembers were wrongly prosecuted.

Jessica Slatten, in an interview Thursday, told Fox News she's praying for Trump to pardon her brother, Nicholas Slatten, one of several Blackwater contractors charged in the shooting deaths of Iraqi civilians in September 2007. "Nick is innocent and our family is terrified that he will die in prison for a killing that someone else confessed to multiple times," she said. The

Blackwater case, and the 2007 massacre at the heart of it, is one of the more controversial portfolios before the president. The New York Times first reported that Trump was weighing possible pardon decisions on an expedited basis going into the holiday weekend.

Speaking to reporters Friday, Trump confirmed he’s looking at a handful of cases, while indicating he could still wait to make his decision. “We teach them how to be great fighters, and then when they fight, sometimes they get really treated very unfairly, so we’re going to take a look at it,” he said. “[The cases are] a little bit controversial. It’s very possible that I’ll let the trials go on, and I’ll make my decision after the trial.”

The review spurred harsh criticism from Democratic lawmakers as well as former top military officials, especially since not all of the accused have faced trial yet. "Obviously, the president can pardon whoever he thinks it's appropriate to pardon, but ... you have to be careful as a senior commander about unduly influencing the process before the investigation has been adjudicated," said retired Navy Adm. William McRaven, former head of Joint Special Operations Command.

Sen. Dianne Feinstein, D-Calif., said in a statement: "If he follows through, President Trump would undermine American treaty obligations and our military justice system, damage relations with foreign partners and give our enemies one more propaganda tool."

The lawyers and family members of the accused, however, insist these cases are not as clear-cut as they've been portrayed -- and, to the contrary, have been marred by legal problems. The cases include those of former Green Beret Maj. Mathew Golsteyn, who admitted to killing a suspected Taliban bomb maker; Navy SEALS Special Operations Chief Edward Gallagher, whose own SEALS turned him in for allegedly shooting unarmed civilians and killing a 15-year-old ISIS suspect in his custody with a knife; four Marine snipers who were caught on video urinating on the corpses of suspected Taliban members; and Slatten.

Slatten is one whose case did go to trial. In fact, he faced three of them. The first ended in a conviction, but it was later thrown out -- as federal judges said he should have been tried separately from three other co-defendants, one of whom said he, and not Slatten, fired the first shots.

The second ended in a mistrial, and the third resulted in a guilty verdict. He faces a mandatory life sentence without parole, but his legal team is fighting to set him free. "Prosecuting veterans for split-second decisions in war zone incidents is wrong," Slatten's attorney said in a letter to the White House counsel's office obtained by Fox News. "Prosecuting ones for killings they did not commit is doubly so."...

Three of the other Blackwater contractors involved in the incident -- Paul Slough, Evan Liberty and Dustin Heard -- were convicted of manslaughter, but the D.C. Court of Appeals ruled that their mandatory 30-year sentence was a violation of the Eighth Amendment's prohibition of cruel and unusual punishment.

The sentences had been so severe due to a charge related to the use of machine guns. The court noted that the charge was based on a statute meant to combat gang violence, not contractors in a war zone using government-issue weapons. Their cases were sent back down to a lower court, and they are awaiting new sentences.

It is unclear if Slough, Liberty or Heard are among those Trump is considering for pardons, but Slough's wife Christin is hoping for the best. "I think that we're cautiously optimistic," she told Fox News. She said that her husband is "more than well deserving" of a pardon and is hoping that Trump will come through where other administrations have not....

Martin Dempsey, former chairman of the Joint Chiefs of Staff, warned of the consequences that pardons could bring. "Absent evidence of innocence of injustice the wholesale pardon of US servicemembers accused of warcrimes signals our troops and allies that we don't take the Law of Armed Conflicts seriously," Dempsey tweeted Tuesday. "Bad message. Bad precedent. Abdication of moral responsibility. Risk to us."

Democratic presidential candidate Pete Buttigieg also expressed concern. In a Washington Post interview, the Afghanistan War veteran described the potential pardons as "so dangerous and so insulting to people who've served."

Trump's decision could come in time for the Memorial Day holiday, though he indicated Friday he might take longer. Despite warnings that a pardon might not be appropriate for cases that have not concluded, Christin Slough noted Trump is not a "traditional president." She said he is "more interested in what's right," than how things are normally done.

May 24, 2019 in Clemency and Pardons, Offender Characteristics, Offense Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, May 15, 2019

Prez Trump pardons Conrad Black and Pat Nolan

Prez Donald Trump has his clemency juices flowing again, and he is back to his high-profile pardon practices today with grants to two offenders whose names should be familiar to readers of this blog.  Here are the details from The Hill:

President Trump on Wednesday signed granted a full pardon to media tycoon Conrad Moffat Black and Patrick Nolan, former Republican leader of the California State Assembly.

Black, a Canadian-born British citizen, served as the chief executive of Hollinger International, which published the Chicago Sun-Times, The Daily Telegraph and The Jerusalem Post.  He was convicted in 2007 on three counts of mail fraud and one count of obstruction of justice in U.S. District Court in Chicago.

The 74-year-old media mogul spent 3.5 years in prison, the White House said in a statement announcing his pardon. In its statement, the White House said the Supreme Court "largely disagreed and overturned almost all charges in his case. "Two of his three fraud convictions were later overturned, leading his sentence to be shortened. He was released from a Florida prison in May 2012 and subsequently deported from the United States.

"An entrepreneur and scholar, Lord Black has made tremendous contributions to business, as well as to political and historical thought," the White House said. Black wrote a book about the president, called “Donald Trump: A President Like No Other,” published in 2018.

Nolan, who also was pardoned Wednesday, was a California legislative leader who spent years in prison after being convicted in the 1990s in an FBI sting.  Nolan was secretly recorded accepting checks from an undercover FBI agent and was later charged with using political office to solicit illegal campaign contributions, the Los Angeles Times reported.

He later pleaded guilty on one count of racketeering and served 25 months in federal prison.

The White House characterized Nolan's choice to plead guilty as a "difficult" one. "He could defend himself against charges of public corruption and risk decades in prison, or he could plead guilty and accept a 33-month sentence," the White House said. "Determined to help his wife raise their three young children, Mr. Nolan chose to accept the plea."

"Mr. Nolan’s experiences with prosecutors and in prison changed his life. Upon his release, he became a tireless advocate for criminal justice reform and victims’ rights."

Criminal justice reform advocates know how hard Pat Nolan has worked in this space for years, and Conrad Black has been a trenchant critic of the federal criminal justice system since he got caught up with it.

A few prior related posts with a few commentary from Black and Nolan:

May 15, 2019 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

"The Governor's Clemency Power: An Underused Tool to Mitigate the Impact of Measure 11 in Oregon"

The title of this post is the title of this notable new paper authored by Aliza Kaplan and Venetia Mayhew recently posted to SSRN.  Here is its abstract:

In this article, we analyze the historical use of the clemency power at both the federal and state levels; including the factors that occurred during the 20th century which resulted in both presidents and governors gradually using the power less, up until the 1980’s.  We examine how the “war on crime” and other political and legal changes, including the imposition of new mandatory minimum sentencing laws during the 1980’s and 1990’s, has led to mass-incarceration at both a national and Oregonian level.  We discuss how this new punitive sentencing and incarceration philosophy has resulted in a general souring on the use of the pardon power and is now seen as a challenge to powerful prosecutors who generally oppose clemency as an extra-judicial attack on their own policies.  In looking at the current prison population in Oregon, we argue that the current Governor should use her pardon power as tool to mitigate some of the prevalent injustice in Oregon.

May 15, 2019 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Friday, May 10, 2019

"4 Ways To Win A Presidential Pardon Under Trump"

The title of this post is the headline of this lengthy new HuffPost piece, which carries this subheading: "Trump’s pardon process is unorthodox. But his willingness work around a deeply flawed Justice Department system has advocates for clemency reform hopeful."   This piece is a thorough and thoughtful review of modern federal clemency realities, and I recommend it in full.  Here are excerpts from its start and finish, as well as the headings that seem to capture the "4 ways to win" described in the headline:

There’s a name rumbling through prisons around the nation: Jared Kushner.  Kushner’s father served time in federal prison, and some incarcerated people hope that experience gives President Donald Trump’s son-in-law and top adviser a better understanding of their plight ― and could lead him to look favorably on their requests for clemency.

The idea that Kushner might have some special interest in freeing prisoners has so pervaded the nation’s federal prisons that some inmates have sent copies of their clemency applications directly to his Office of American Innovation in the White House.  A few inmates have even pinned news clips of Kushner on their cell walls.

Jared Kushner, cellblock pinup, is just one of the surprising results of Trump’s unconventional approach to granting clemency.  The president has been bypassing the Office of the Pardon Attorney at the Department of Justice, which has vetted clemency applications under previous presidents, and has acted more impulsively, issuing high-profile clemencies in cases that grab his attention. So inmates and their advocates have adapted their tactics to fit the current administration.  Here’s a guide to how to win a pardon under Trump.

Send Your Application To Jared Kushner... 
Get Kim Kardashian West’s Attention....
Get Your Case On Fox News....
Don’t Expect Much From The Pardon Attorney’s Office.... 

The framers of the Constitution gave the president the pardon power to act as a backstop to an imperfect criminal justice system that too often doles out excessively harsh punishment. That’s not always how presidents have used that power. Some of Trump’s pardons appear to have more to do with political favoritism or celebrity attention than with any interest in remedying overzealous prosecution or unfair sentencing. But they’re not the product of a lengthy and conflicted bureaucratic process, either. And that might be a good thing, some clemency advocates argue....

Margaret Love, a former pardon attorney, argues that one of the biggest stumbling blocks [to a well-functioning clemency process] is the transfer of the pardon attorney’s office to the deputy attorney general’s bailiwick.  The deputy attorney general oversees all prosecutors in the many U.S. attorney’s offices around the nation — the very same prosecutors who are bringing charges against defendants that the pardon attorney is seeking to provide relief to.  He or she also has the authority to review the pardon attorney’s clemency recommendations and can ultimately reject the application.  Critics say this is exactly what happens all too frequently, as federal prosecutors have little interest in questioning or unwinding the department’s convictions. Justice Department prosecutors have become “determinedly and irreconcilably hostile” to clemency, Love wrote in a 2015 paper.

The process can be extremely difficult for prisoners and their lawyers, explained Mark Osler, a professor at the University of St. Thomas in Minneapolis and an expert on clemency. “Unlike other parts of the criminal process, with clemency there is no transparency: no sense of where the petition is in the process, what the timeline will be or even the reasoning behind a grant or denial,” Osler said.

The mystery that envelops the process is unnecessary, Osler argues.  Osler and other clemency experts, such as Rachel Barkow, a New York University law professor and a member of the U.S. Sentencing Commission from 2013 to 2018, have pushed for years to move the pardon attorney’s office out from under the Justice Department and instead situate it as an independent, bipartisan commission inside the Executive Office of the President with a diverse membership that could directly inform the president of its recommendations. That remedy could relieve the inherent conflicts of interest of DOJ oversight, allow for more voices to weigh in on an application beyond federal prosecutors, and increase transparency around clemency.

Advocates are eager for Trump to establish a formal process that is outside the Department of Justice at some point. But the unending controversies swirling around the president, including with regard to controversial pardons, may make that impossible. In the meantime, incarcerated people and their advocates will try every means available to reach Trump. “People are just desperate, and so they’re sending things to the pardon attorney, they’re sending things to the White House because there’s just no clear guidance,” explained one attorney who has worked on pardons and who requested anonymity due to the sensitivity of the ongoing process. “It’s quite disheartening. Everyone’s not going to have the celebrity touch,” the attorney said. “They’re just not.”

A few of many recent related posts: 

May 10, 2019 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Thursday, May 09, 2019

Noting how California's prosecutors keep pursuing death sentences despite execution moratorium, and what more Gov Newsom has in mind

This new lengthy New York Times article discusses the (unsurprisingly) reality that local prosecutors in California keep bringing capital charges even though the state's chief executive has impose a moratorium on execitions. The piece is headlined "California Has a Moratorium on Executions. Prosecutors Want New Death Sentences Anyway."  Here are excertps:

Gov. Gavin Newsom, a Democrat, issued a moratorium in March on executions in the state, which has more death row inmates than anywhere else in the Western Hemisphere. But that decision has not stopped local prosecutors from seeking new death sentences, underscoring the divide in the state between conservative prosecutors and liberal reformers like the governor.

And as liberal as California voters are generally, as recently as 2016 they rejected a ballot measure that would have abolished capital punishment, and approved another one to fast-track executions.

These divisions, experts say, are setting the backdrop for what could be a contentious fight as Mr. Newsom takes new steps beyond the moratorium to abolish capital punishment. For now, the moratorium amounts to temporary reprieves for each of the 737 men and women on California’s death row, which will last for the duration of his time as governor.

“It’s got to be really confusing for the average citizen who sees both things going on and doesn’t understand how all of the above can be occurring,” said Michele Hanisee, the president of the Association of Deputy District Attorneys in Los Angeles County. She is seeking a death sentence in one of her cases: The man accused of being a serial killer, Alexander Hernandez, who is charged with killing five people in a shooting rampage in the San Fernando Valley in 2014.

“The simple answer is this: The district attorneys of the state of California took an oath to uphold and follow the law,” Ms. Hanisee said. “I think the governor probably did too, but he doesn’t care.” The governor, she added, does “not have the legal authority to tell them not to seek death or not to follow the law.”

New death sentences in California have declined in recent years — 2018 was a record low, with five new sentences. The drop aligns with a national trend, as public support for capital punishment has waned and juries have been reluctant to impose death sentences in the face of evidence of racial disparities and high-profile exonerations. Before Mr. Newsom’s moratorium, 20 other states, including most recently Washington and Delaware, had abolished the practice....

California, while maintaining a large death row, has not executed anyone since 2006. There were longstanding legal challenges to the state’s lethal injection protocol that had halted executions even before Mr. Newsom’s moratorium.

In an interview, Mr. Newsom said his administration was considering several new steps to dismantle the state’s capital punishment system, and that his moratorium was a first step on what he hoped was a path that ended with abolition. He said his advisers were studying how he could commute the sentences of current death row inmates to life without parole. Mr. Newsom has the power to commute sentences in which the inmate has only one felony, but more than half of the death row population has at least two felonies; to commute those sentences would require approval from the State Supreme Court.

Mr. Newsom’s advisers are focusing on the Supreme Court’s decision to block several pardons or commutations — though not for death row inmates — issued by former Gov. Jerry Brown before he left office in January. Those rejections were the first time in decades the court had blocked a governor’s commutations, and Mr. Newsom has asked the court for an explanation. He hopes the explanation will offer some guidance “that will allow us to form better judgment on next steps if we want to look to commutations on the capital punishment side.”...

Mr. Newsom also said he was discussing with the attorney general’s office what role the state could play in blocking prosecutions of new death sentences. But legal experts say this power is limited: The state could decline to defend capital cases on appeal, but it does not have the power to order district attorneys, who are elected at the county level, to not seek death.

One possibility is that the attorney general could take cases away from local prosecutors. But experts say that is unlikely and would be unprecedented. “I have not seen any indication from our attorney general that they want to impose the governor’s view and take cases away from us so that we cannot seek capital punishment,” said Anne Marie Schubert, the Sacramento County district attorney, who is part of the prosecution in the Golden State Killer case.

Ms. Schubert added that, “Capital punishment is the law in California, and just because Gavin Newsom has a personal opposition to it doesn’t mean that we as prosecutors abandon our obligation to enforce the law in the appropriate cases. I’m not this zealot about the death penalty, but it is the law.”

Prior related posts:

May 9, 2019 in Clemency and Pardons, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (3)

Tuesday, May 07, 2019

Prez Trump gets back in clemency business by granting full pardon to US veteran convicted of killing Iraqi prisoner

As reported in this AP piece, "President Donald Trump has pardoned a former U.S. soldier convicted in 2009 of killing an Iraqi prisoner, the White House announced Monday." Here is more:

Trump signed an executive grant of clemency, a full pardon, for former Army 1st Lt. Michael Behenna, of Oklahoma, press secretary Sarah Sanders said. Behenna was convicted of unpremeditated murder in a combat zone after killing a suspected al-Qaida terrorist in Iraq.  He was paroled in 2014 and had been scheduled to remain on parole until 2024.

A military court had sentenced Behenna to 25 years in prison.  However, the Army's highest appellate court noted concern about how the trial court had handled Behenna's claim of self-defense, Sanders said.  The Army Clemency and Parole Board also reduced his sentence to 15 years and paroled him as soon as he was eligible.

Behenna's case attracted broad support from the military, Oklahoma elected officials and the public, Sanders said.  She added that Behenna was a model prisoner while serving his sentence, and "in light of these facts, Mr. Behenna is entirely deserving" of the pardon.  Oklahoma’s two Republican senators, James Lankford and Jim Inhofe, hailed the pardon, thanking Trump for giving Behenna “a clean slate.”

Behenna acknowledged during his trial that instead of taking the prisoner home as he was ordered, he took the man to a railroad culvert, stripped him, and then questioned him at gunpoint about a roadside bombing that had killed two members of Behenna's platoon. Behenna, a native of the Oklahoma City suburb of Edmond, said the man moved toward him and he shot him because Behenna thought he would try to take his gun.

Oklahoma’s attorney general first requested a pardon for Behenna in February 2018 and renewed his request last month. Attorney General Mike Hunter said he believed Behenna’s conviction was unjustified because of erroneous jury instructions and the failure of prosecutors to turn over evidence supporting a self-defense claim.

May 7, 2019 in Clemency and Pardons, Offense Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Monday, May 06, 2019

Pennsylvania Gov grants clemency to three more persons serving life sentences

I am pleased to see that, while Prez Trump and some who want his job have been talking the talk about clemency at the federal level, some notable governors have been walking the walk at the state level.  This new local article, headlined "Gov. Tom Wolf releases 8 lifers, more than any other Pa. governor in decades," reports on the record of the chief executive in the Keystone state.  Here are excerpts:

On Tuesday evening, George Trudel Jr. — heretofore known as inmate AS2262 at the State Correctional Institution Phoenix — got the news he’d been awaiting for 30 years.  Gov. Tom Wolf had granted him clemency, bringing to a close what had been a sentence of life in prison without possibility of parole....

Trudel, now 52, is one of more than a thousand lifers convicted for a role in a killing that they did not personally commit or necessarily even anticipate — lookouts for botched robberies and burglars who caused elderly victims to have heart attacks....

The reduction of Trudel’s life sentence, and those of two other men, bring to eight the number of commutations granted by Wolf. That’s more than any other governor in the last 25 years.

The politically precarious practice of commuting life sentences began to fall out of favor not long before Trudel was convicted, when Gov. Richard Thornburgh took office in 1979.  It all but ceased in 1994 — the year a lifer named Reginald McFadden was released and went on a killing spree, flipping the governor’s race away from Mark Singel, who had approved the commutation, and shifting the odds of clemency from Harvard-acceptance rare to lottery-win rare for the next 2½ decades.

As a result, Pennsylvania is now home to more than 5,000 people serving live without parole.  Today, commutations must be unanimously recommended by the state Board of Pardons before the governor can even consider them.  Many applicants are senior citizens who have spent decades in prison.

The two other men who received clemency were Adolfo Carrillo, 79, from Philadelphia, and Samuel Barlow, 68, of Pittsburgh.  Carrillo shot and killed a neighbor, Santiago Garcia, during an argument in 1976; he told police that Garcia had disrespected his wife, according to news reports.  Barlow was initially sentenced to death for serving as the lookout in a 1968 bank robbery in which his co-defendants shot and killed a customer, George Morelock.

May 6, 2019 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Sunday, April 28, 2019

NYU Center reviewing historical state clemency grants ... starting with Pennsylvania

As detailed at this link, the NYU School of Law's Center on the Administration of Criminal Law has long been engaged with clemency reform, and its latest project is focused on important state stories:

The Center has launched a project studying historical state clemency grants and the role that local prosecutors played in the grant process.  As part of the project, Center Fellow Ben Notterman '14 has undertaken a review of historical state clemency grants in a number of states, both to understand the types of crimes for which clemency used to be granted, as well as the role that prosecutors played in recommending or opposing specific grants and advising government decision-makers.  We anticipate publishing reports on individual state practices as we complete them.

The first of these reports is titled "The Demise of Clemency for Lifers in Pennsylvania," and it is available at this link.  Here is hoe it gets started:

Pennsylvania law automatically imposes life imprisonment for first- and second-degree murder, including felony murder, which requires no intent to kill.  It is also one of only five states that categorically excludes lifers from parole consideration; the only way for a lifer to be released is by clemency.  For a time, the State’s harsh sentencing policies were tempered by a practice of commuting several dozen life sentences each year.  That changed around 1980, when commutations in Pennsylvania fell off dramatically.  With few exceptions, clemency in the Keystone State remains in a state of a disuse.

April 28, 2019 in Clemency and Pardons, Data on sentencing, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Thursday, April 25, 2019

Maryland GOP Gov finally commutes notable life sentence (and others) following notably stingy prior Gov

Van Jones received considerable grief when he said earlier this year at CPAC that the "conservative movement ... is now the leader" on criminal justice reform. But this new story out of Maryland, headlined "Maryland Gov. Hogan commutes life sentence of 'model inmate' from Baltimore who's served 47 years in killing," provides another example of a GOP official being more progressive in the criminal justice arena than an official from the other side of the aisle. Here are the details:

Gov. Larry Hogan’s office said Wednesday the governor has commuted the life sentence of Calvin Ash, a 68-year-old Baltimore man who has spent nearly his entire adult life behind bars despite multiple recommendations from the parole commission for his release.

A spokesman for Hogan said the governor decided this week to accept an 8-0 vote of the parole commission that Ash be freed after serving 47 years for fatally shooting his wife’s boyfriend in the 1970s, when Ash was 21 years old.

Hogan also commuted sentences this week of two other inmates, but did not release their names....

Hogan’s actions mean the governor has now commuted the sentences of 15 prisoners since he took office in 2015 — including at least five inmates serving life sentences.  The previous governor, Democrat Martin O’Malley, released three prisoners through commutation during his eight years in office....

Ash has been imprisoned since he killed the boyfriend of his estranged wife on May 2, 1972.  On that day, Ash — who was an employee of Union Memorial Hospital — shot and killed Thomas Robinson, 24, inside a rowhouse in the 1800 block of N. Rosedale St. in West Baltimore.  Ash confessed to police during questioning, saying: “We were still seeing one another, but then she got on with someone else.”...

He was convicted of murder and sentenced to life in prison with the possibility of parole. David Blumberg, chairman of the state’s parole commission, said that for more than a decade, the panel has repeatedly recommended that Ash be freed....

Ash’s case has been in the news for years.  In 2004, the Maryland Parole Commission approved his release. But in 2006, O’Malley rejected the recommendation without comment.  In 2009, the commission again voted 5-2 to commute Ash’s sentence, but that, too, was rejected....

Maryland governors over time have adopted different stances on their power to commute sentences. In the mid-1990s, Democratic Gov. Parris Glendening, issued a so-called “life means life" edict — giving out zero commutations — as he attempted to negotiate an end to the death penalty in the state.  Glendening has since disavowed that approach.

Republican Gov. Robert Ehlirch, who served between 2003 and 2007, considered parole on a case-by-case basis.  He commuted 18 sentences, including those of five lifers.

O'Malley fought to repeal the death penalty and he commuted the sentences of Maryland’s four remaining death-row inmates to life without parole.  But when it came to releasing prisoners sentenced to life with the possibility of parole, he took a hard line.  He granted clemency to three in 2012, but approved no non-medical paroles.

Hogan has presided over a decline in Maryland’s prison population.  Maryland’s inmate census has fallen below 18,000 for the first time in nearly three decades....  The 2016 Justice Reinvestment Act is often credited for helping to reduce Maryland’s prison population.  The landmark legislation sought to divert nonviolent offenders from prison into drug treatment and other programs and included changes to mandatory minimum drug penalties.  It went into effect in October 2017.

April 25, 2019 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Tuesday, April 23, 2019

California DAs assail Gov Newsom's execution moratorium

Four California district attorneys, Anne Marie Schubert, Michael Hestrin, Lisa Smittcamp and Gilbert Otero, have this notable new CNN commentary under the headline "California Gov. Gavin Newsom's death penalty moratorium is a disgrace."  Here is how it gets started:

Gov. Gavin Newsom's blanket moratorium on California's death penalty is a slap in the face to crime victims and their families who have waited years for justice.  With the stroke of his pen last month, Newsom single-handedly undermined our state's democratic values and our criminal justice system.

Democracy embodies a government where the people hold the ruling power either directly or through elected representatives.  In California, the people have exercised their power repeatedly in voting to keep the death penalty for the state's most horrific killers.  In fact, less than three years ago, California voters made this clear when they rejected an initiative, supported by Newsom, to abolish the death penalty and instead passed an initiative to ensure its fair and efficient implementation.

When Newsom campaigned for governor, he explicitly asserted that he would respect the will of the voters regarding the death penalty.  So much for that promise.  Instead, Newsom disregarded the voters in favor of his personal opinion and granted leniency to those facing the death penalty, including serial killers, cop killers, mass shooters, baby killers and sexual sadists.

In doing so, Newsom damaged the very fabric of our criminal justice system -- trial by jury -- where community members, not just one person in a position of power, make decisions affecting life and liberty.  Newsom's unilateral decision to ignore jury verdicts imposing the death penalty is not just an arbitrary exercise of power, it is a gross miscarriage of justice.

In support of his moratorium, Newsom also made broad sweeping statements, often cited by the American Civil Liberties Union and other death penalty opponents, including cautions about racism and claims that some on death row may be innocent.  If Newsom has concerns about specific cases, he should examine those cases individually rather than granting mercy to everyone on death row.  After all, Newsom has the powers of clemency and commutation as a remedy if he sees actual proof that someone was wrongfully convicted.

But looking at the facts of cases isn't something Newsom seems to want to do.  Why?  It could be because the facts are so horrific that one cannot justify leniency to these killers.

Prior related posts:

April 23, 2019 in Clemency and Pardons, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Thursday, April 18, 2019

Can and will Kentucky's Gov pioneer a (terrific) new institution by creating a "sentencing integrity unit"?

The question in the title of this post is promoted by this interesting local AP article headlined "Tennessee, Kentucky govs talk up criminal justice reform."  Here is the portion of the piece prompted the post:

Tennessee Gov. Bill Lee said Wednesday that he has started evaluating his first clemency plea from a death row inmate, who is slated for execution next month.  Lee made the comments at a forum alongside fellow Republican Gov. Matt Bevin of Kentucky about criminal justice reform at Belmont University's College of Law....

Kentucky hasn't executed any inmates in more than a decade, well before Bevin took office.  But the first-term governor says he has seen no need to wait until he's leaving office to grant pardons to prisoners, as is often customary for governors.  "I think if a person is worthy of being pardoned now, why should they have to wait four years?" Bevin said.  "To me, that's crazy."

Both governors outlined criminal justice priorities and initiatives in an event co-hosted by Men of Valor and Right on Crime.  Bevin said he plans to create a sentencing integrity unit, saying mistakes just get made in sentencing.

He wondered out loud whether to grant prisoners re-entering society a one-year free pass for public transportation.  "I'm convinced something like that could work and that would go a long way at no real cost to anybody to fixing a problem that is a real problem," Bevin said.

For a host of reasons, effective sentencing reform requires structural changes to our criminal justice system as well as substantive ones. And the idea of a "sentencing integrity unit," committed institutionally to identifying and seeking to remedy the "mistakes [that] get made in sentencing," seems to be a terrific structural change. The name suggested for this unit suggests it would be modeled on the many dozens of "conviction integrity units" now in operation around the nation doing critical work seeking to remedy wrongful convictions. (The National Registry of Exoneration has lots of good information on conviction integrity units at this link.).

I sincerely hope Gov Bevin creates a sentencing integrity unit ASAP and that it gets all the political and practical support it will need to be maximally effective.  I also hope Gov Bevin will promote this great idea to other chief executives and other criminal justice officials.  Notably, a number of local prosecutors have done pioneering work in the development of conviction integrity units, and they can have an important comparable role here.  And, as noted in this post last year, Philly DA Larry Kraser and other new prosecutors have been taking an active role reviewing old sentences in various ways.  As I see it, Governors and prosecutors and sentencing commissions and every other official sworn to help achieve justice in a jurisdiction ought to devote at least some portion of time and resources double-checking to make sure past sentences still being served do not become a marker and source of injustice. 

April 18, 2019 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, April 11, 2019

Keeping up with (soon to be counselor?) Kim Kardashian West and her important role in sentencing reform

Download (18)Today's must-read article for sentencing fans just happens to come from Vogue magazine under the headline "The Awakening of Kim Kardashian West."  One need to power through some opening paragraphs about the West house and Kim's wardrobe, but the there are lots of interesting passages about the subject and broader stories about her role in getting Prez Trump to grant clemency to Alice Johnson and to be supportive of criminal justice reform more generally.  I found this extended passage especially interesting:

After President Trump met with her, the CNN commentator and activist Van Jones, and several lawyers, he granted Johnson clemency and then invited her to his State of the Union Address in February.  What you probably don’t know is that Kim has been working with Jones and the attorney Jessica Jackson, cofounders of #cut50, a national bipartisan advocacy group on criminal-justice reform, for months, visiting prisons, petitioning governors, and attending meetings at the White House. And last summer, she made the unlikely decision — one she knew would be met with an eye roll for the ages — to begin a four-year law apprenticeship, with the goal of taking the bar in 2022.

“I had to think long and hard about this,” she says, gleefully devouring chile con queso with chips now that her Vogue shoot is over. What inspired her to embark on something so overwhelmingly difficult and time-consuming — even as she also runs a multimillion-dollar beauty enterprise — was the combination of “seeing a really good result” with Alice Marie Johnson and feeling out of her depth.  “The White House called me to advise to help change the system of clemency,” she says, “and I’m sitting in the Roosevelt Room with, like, a judge who had sentenced criminals and a lot of really powerful people and I just sat there, like, Oh, shit. I need to know more. I would say what I had to say, about the human side and why this is so unfair.  But I had attorneys with me who could back that up with all the facts of the case. It’s never one person who gets things done; it’s always a collective of people, and I’ve always known my role, but I just felt like I wanted to be able to fight for people who have paid their dues to society. I just felt like the system could be so different, and I wanted to fight to fix it, and if I knew more, I could do more.”

Jones had been collaborating with Jackson on building bipartisan unity around the need to “shrink the incarceration industry,” and with folks on the other end of the political spectrum, like Newt Gingrich and the American Conservative Union. And it was working. Then, says Jones, Trump “runs and wins on this law-and-order, Blue Lives Matter platform, and he gives an inauguration speech with his American-carnage line, making it seem like he’s going to unleash police and prisons everywhere.”

And then the unexpected happened. “Kim Kardashian,” says Jones, “wound up playing this indispensable role, and a lot of people have gotten furious with me, saying I’m stealing the credit from African American activists who have been working on this issue for decades. And first of all, I’m one of them. But I was in the Oval Office with Kim and Ivanka and Jared and the president, and I watched with my own eyes Trump confess to having tremendous fears of letting somebody out of prison and that person going and doing something terrible, and the impact that that would have on his political prospects. He was visibly nervous about it. And I watched Kim Kardashian unleash the most effective, emotionally intelligent intervention that I’ve ever seen in American politics.”

This may sound like hyperbole, but consider the target. Perhaps an “emotionally intelligent” intervention could have been staged only by a bigger reality star than the man in the Oval Office. “Kim understood that he needs to be seen as taking on the system, and she helped him to see that there are people who the system was against and that his job was to go and help them,” says Jones. “And it was remarkable. So for people who have fallen for this media caricature of the party girl from ten years ago who hangs out with Paris Hilton? This is the daughter of an accomplished attorney and the mother of three black kids who is using her full power to make a difference on a tough issue and is shockingly good at it.”

He brings up the Elle Woods character from Legally Blonde as perhaps the only archetype we have in the culture through which to understand such an unlikely turn of events. “But she’s so much deeper than that,” says Jones, “because the gravity of the issues she’s taking on is so tragic and all-pervasive. I think she’s going to be a singular person in American life.”

A few prior related posts:

April 11, 2019 in Clemency and Pardons, Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (3)

Friday, April 05, 2019

Senator Klobuchar talking up "second step" criminal justice reforms with a focus on the clemency process

Senator Amy Klobuchar, who is running for President and who served as a local prosecutor for eight years, has this notable new commentary at CNN running under the headline "On criminal justice reform, it's time for a second step." Here are excerpts:

Our criminal justice system is broken. Today we know that our country has more than 20% of the world's incarcerated people, even though we have less than 5% of the world's population.  And we know racial disparities at every level of our system have removed millions of people of color from our society, destroying families and communities for generations.

Thanks to the work of countless reform advocates, we have finally started to acknowledge that there is racism in our criminal justice system and that we need to take action to fight it.  But the next president will have to do more than just talk about these issues.  She will have to take action.

Our criminal justice system cannot lose sight of the principles of fairness and compassion -- for victims, yes, but also for offenders.  Our Founding Fathers understood this point when they gave the president the power to grant clemency....

As president, I would create a clemency advisory board as well as a position in the White House -- outside of the Department of Justice -- that advises the president from a criminal justice reform perspective.  Law professors such as Rachel E. Barkow from New York University and Mark Osler from the University of St. Thomas in Minnesota have described what a better clemency system could look like.  Currently, the Department of Justice includes an Office of the Pardon Attorney, tasked with investigating and reviewing all requests for clemency for federal offenses and ultimately preparing a recommendation for the president.  Although the voices of our prosecutors and law enforcement officials are important and should continue to advise the president, there are additional voices that a president needs to hear.

A diverse, bipartisan clemency advisory board -- one that includes victim advocates as well as prison and sentencing reform advocates -- could look at this from a different perspective. And a criminal justice reform advocate in the White House will ensure that someone is advising the president on criminal justice reform.  That's why I'm committed to making these important changes during the first month of my presidency, should I be elected.

But we cannot solve the many problems associated with mass incarceration through better and smarter use of the presidential pardon alone.  Last year, we in Congress passed the First Step Act, which changed the overly harsh sentencing laws on nonviolent drug offenders and reformed our federal prisons.  But now it's time for the Second Step Act.

The reforms in the First Step Act only apply to those held in the federal system.  The new law doesn't help the nearly 90% of people incarcerated in state and local facilities.  One of my top priorities will be to create federal incentives so that states can restore some discretion from mandatory sentencing for nonviolent offenders and reform the unconscionable conditions in state prisons and local jails.

We have to do more to reduce inflexible mandatory minimums and add safety valves, building on the federal reforms we made last year.  True criminal justice reform includes the cash bail system, expanding funding for public defenders and eliminating obstacles to re-entering and participating fully in society.  That's why we also need better educational and job training programs that can help people both before and after they are released.

I'm also working to change the dialogue on drug and alcohol treatment and mental health services.  I did this in Minnesota as Hennepin County attorney, I've fought for expanded drug courts as a senator, and I'll make this a priority as president.

Regular readers will not be surprised to hear me praise the Senator's eagerness to change the clemency process. As long-time readers know, I started urging more clemency action from Prez Obama on the day he was elected and in 2010, I authored this law review article titled "Turning Hope-and-Change Talk Into Clemency Action for Nonviolent Drug Offenders," which closed with a recommendation that the president "seriously consider creating some form of a 'Clemency Commission'."   The advocacy in this commentary for the creation of a "diverse, bipartisan clemency advisory board" is truly music to my ears.

April 5, 2019 in Campaign 2020 and sentencing issues, Clemency and Pardons, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Sunday, March 31, 2019

"Searching for A Kardashian: Kim helped get clemency for Alice Johnson, who will help me?"

The title of this post is the title of this notable commentary authored by Christopher Hunter and recently posted to Medium.  The piece is a poignant accounting of what it is like to be serving a lengthy federal prison term for a drug offense while there is on-going talk of clemency prospects.  I recommend the piece in full, and here is an excerpt:

In 2005, a federal judge sentenced me to 420 months in prison for selling cocaine.  That’s 35 years.  I never believed I would do all that time.  Call me crazy, but I think the Universe sets your body in the direction of your mind. So I constantly hoped that something would give.

Eventually, something did.  Between winning an appeal and a change in the sentencing laws, my time was reduced by 8 years.  But I still have too much time, and there’s no parole in federal prison.  In the 13 years I’ve spent in prison so far, I have always been searching for some way to reduce my time.

The last President understood that because of harsh mandatory minimums people received too much time in prison.  He granted around 1,700 federal commutations, specifically for non-violent drug offenses, through the Clemency Project.

I remember each month a list of his pardons would come out.  The President was like Willy Wonka, giving out “Golden Tickets.” 100 here, 89 there. I remember an older guy I worked with was turned down initially.  The Clemency Project suggested he file directly with the President.  Within a few weeks, he got a letter saying his petition was accepted. Some of the men who were pardoned left prison within week while others had to stay an complete a drug program.

At least five of the guys I worked with in the clerk’s office got out.  Everyone acted happy for them, but it was a strange feeling too.  I remember thinking, “How can they do this? How can the let some out and not others?  How?  We all deserve a second chance.  Where is the grace?” It hurt me to the bone.

I filed for clemency toward the end of Obama’s presidency, but I was not granted a “Golden Ticket.” I wasn’t denied one either.

The very first day the new president came into office, the pardon attorney contacted my counselor here and requested additional information. It was as if I was on deck. I thought, “Okay, here we go! It’s on! They are going to continue helping people.

It had been extremely difficult watching random guys with identical charges getting out and having to smile and congratulate them while being envious as hell on the inside. I told my counselor to keep me informed.  As I watched the news of Kim’s advocacy, I got the strangest feeling.  I felt as though I was already supposed to have been on top of this. Of course I didn’t know anything about what was going to happen.  It was just a weird feeling.

I realize I was day-dreaming, and routine kicks in, and I rush to my cell to put it in perfect order before making the 7:45 work call. That morning, the Kim K White House sit down was a hot topic. The general consensus of my coworkers is, “Man, Trump ain’t about to do nothing for nobody!”  Almost everyone agrees that because of Attorney General Sessions, “we ain’t got nothing coming.”

For some reason, even though I know I should agree, I just don’t. It’s that strange feeling again.  My pending pardon flashes in my mind. As I shake it off, I have to admit I didn’t think Alice Johnson was getting out anytime soon.  What happens the next day blows my mind. The news is reporting that Alice Johnson’s sentence was commuted and she was being released immediately....

The evening news flashed between Kim K’s side of the story and Alice Johnson’s reaction to being released. I felt a lump in my throat. I was genuinely happy for her. Willie Wonka gave her a “Golden Ticket.”

The next morning things seemed to get even better.  The news was reporting that the president would be doing dozens more commutations.  By the time we left work that day, everyone was tripping. The president had announced that he would be doing a lot more commutations, looking from a list of 3,000 cases similar to Ms. Johnson’s.  He also reached out to the NFL players telling them to bring him names of people who had been treated unfairly.

After hearing the news, I made up my mind that I was going to get my request for clemency in that list of 3,000.  I had to find a celebrity like Kim or an NFL player. I knew NFL players like Doug Baldwin, Malcolm Jenkins, and Anquan Boldin were standing up for prison reform.  I wondered how I could get in touch with someone or convince them that I was worthy of being helped.

I rushed to the law library, a place I know well.  The room is filled with the noise of people pecking desperately away on ancient typewriters hoping for good news.  I wrote the pardon attorney telling him of the additional programs I’ve completed since he had contacted my counselor.  I wrote the President and explained all I’ve done, and asked him for help.  I told him I don’t know any celebrities or football players, but I need help. M y pardon has been pending for two years.  I explained that I’ve been a model prisoner, how I’ve taken drug programs and many more. I explained that I work and I’ve become a part of the church. I explained I’ve been locked up 13 years on a non-violent drug charge, that I’m not a career offender, and never have had a violent charge. I wrote how I now understand that drugs poison our communities.

I asked for help from anyone.  I made 30 copies of each letter, and all the certificates I’ve accumulated. I was elated to be putting my energy into something positive. To be working and fighting.  I emailed a copy of the letter to several friends and asked them to begin emailing it to celebrities and NFL players, people like Kid Rock and Van Jones. I have a Facebook page and I’ve posted it on my wall. I got the address for as many attorneys and advocates as possible.

I remember perceiving that another inmate was skeptical of all I was doing.  I sensed him scoff at my work.  “Listen to me, bro, you never know what can happen,” I said. “Kim K didn’t get Alice Johnson out, her family who was fighting and tweeting for her did.”  I told him my pardon is right there at the top of that stack and it could be a pastor, athlete, broadway star, gas station worker, housewife, or anyone that does the one thing that propels my name forward.

If the universe sees you fight for freedom, the universe may just help you get it.  If the universe sees you’ve changed, then someone’s heart can be moved.  Without the slightest bit of doubt, I said a prayer and began mailing out my little SOS’s.

I am still waiting.

A few of many recent related posts: 

March 31, 2019 in Celebrity sentencings, Clemency and Pardons, Criminal justice in the Obama Administration, Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (0)

Friday, March 15, 2019

Rounding up some commentary on Gov Newsom's formal halting of executions in California

Given that there were no executions in California during the second term of Gov Arnold Schwarzenegger or during the two terms of Gov Jerry Brown, I was not expecting to see California's execution chamber suddenly getting a lot of use once Gavin Newsom took over.  But, as reported here, just two months into office, Gov Newsom formalize matters by ordering an "executive moratorium ... in the forms of a reprieve for all people sentenced to death in California."  Here is a smattering of commentary about this move:

March 15, 2019 in Clemency and Pardons, Death Penalty Reforms, Who Sentences | Permalink | Comments (0)

Wednesday, March 13, 2019

New California Gov to order moratorium on executions in his state

As reported in this local piece, headlined "Gov. Gavin Newsom to stop death penalty in California, giving reprieves to 737 death row inmates," there is big death penalty news from the Golden State.  Here are the details:

Gov. Gavin Newsom is putting a moratorium on the death penalty in California, sparing the lives of more than 700 death-row inmates.  Newsom plans to sign an executive order Wednesday morning granting reprieves to all 737 Californians awaiting executions – a quarter of the country’s death row inmates.

His action comes three years after California voters rejected an initiative to end the death penalty, instead passing a measure to speed up executions.

Newsom says the death penalty system has discriminated against mentally ill defendants and people of color. It has not made the state safer and has wasted billions of taxpayer dollars, according to prepared remarks Newsom plans to deliver Wednesday morning when he signs the order.

“Our death penalty system has been – by any measure — a failure,” Newsom plans to say. “The intentional killing of another person is wrong. And as governor, I will not oversee the execution of any individual.”

California has not executed anyone in more than a decade because of legal challenges to the state’s execution protocol. But executions for more than 20 inmates who have exhausted their appeals could have resumed if those challenges were cleared up, and Newsom has said he worried that it could happen soon.

Newsom has been a longtime opponent of the death penalty. While campaigning for a measure to repeal the death penalty in 2016, he told The Modesto Bee editorial board he would “be accountable to the will of the voters,” if he were elected governor. “I would not get my personal opinions in the way of the public’s right to make a determination of where they want to take us” on the death penalty, he said.

The moratorium will be in place for the duration of Newsom’s time in office, the governor’s office said. After that, a future governor could decide to resume executions.

California is one of 31 states with capital punishment.  In recent years, other states have abolished the death penalty and several other governors have placed moratoriums on executions. The California Constitution gives the governor power to grant reprieves to inmates, providing he reports his reasoning to the Legislature.

But Newsom’s action will anger death penalty proponents. “The voters of the State of California support the death penalty.  That is powerfully demonstrated by their approval of Proposition 66 in 2016 to ensure the death penalty is implemented, and their rejection of measures to end the death penalty in 2016 and 2006, said Michele Hanisee, president of the Association of Deputy District Attorneys, in a statement late Tuesday.  “Governor Newsom, who supported the failed initiative to end the death penalty in 2006, is usurping the express will of California voters and substituting his personal preferences via this hasty and ill-considered moratorium on the death penalty.”

Preventing executions through a blanket action is an abuse of the governor’s power, death-penalty supporter Kent Scheidegger told The Bee in an interview earlier this month. The governor’s clemency powers are designed to correct individual cases of injustice, said Scheidegger, legal director for the Criminal Justice Legal Foundation.  “It’s not supposed to be a weapon for blocking the enforcement of the law that the people have passed just because the governor disagrees with it,” Scheidegger said.

In addition to the moratorium, Newsom’s order will also withdraw California’s legal injection protocol and close the execution chamber at San Quentin, where all death row inmates are imprisoned.  Those on death row will remain in prison under the order.

I suspect this moratorium order may be challenged in court, but I doubt there is functionally much that can be done to undo this moratorium given that there has been de facto moratorium in place for more than a decade already.

UPDATE: Over at California Correctional Crisis, Hadar Aviram has this lengthy posting about the moratorium and its implications under the title "Moratorium!!! What Does It Mean?"

ANOTHER UPDATE: This press release from Governor Newsom's office provide a link to this official executive order which orders, inter alia, the "executive moratorium ... in the forms of a reprieve for all people sentenced to death in California."  And I have now seen that Prez Trump had this tweet about this development this morning: "Defying voters, the Governor of California will halt all death penalty executions of 737 stone cold killers. Friends and families of the always forgotten VICTIMS are not thrilled, and neither am I!" 

March 13, 2019 in Clemency and Pardons, Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (8)

Thursday, March 07, 2019

Paul Manafort given (only?) 47 months in prison at first federal sentencing

I worried that my prediction this morning that Paul Manafort would get 100 months at his first federal sentencing was a little low.  Turns out, I was way too high: he got only 47 months today.   Here are some details from The Hill:

A federal judge on Thursday sentenced former Trump campaign chairman Paul Manafort to 47 months in prison, well below the amount recommended in sentencing guidelines. The sentence handed down by Judge T.S. Ellis III, a Reagan appointee, was significantly less than the 19.5 to 24 years advised in federal guidelines.

Ellis, in remarks from the bench, described Manafort’s financial crimes as “very serious” but said the guideline range was “not at all appropriate,” and pointed to significantly more-lenient sentences handed down in similar cases.

Manafort, who turns 70 next month, appeared in court in a wheelchair and wore a green jumpsuit. His prison sentence will include time served, meaning nine months will be knocked off for the time he has already spent in jail. As a result, he will be incarcerated for three years and two months.

He was also ordered to pay a $50,000 fine and up to $24 million in restitution.

“You’ve been convicted of serious crimes -- very serious crimes -- by a jury,” Ellis said to a packed courtroom after a lengthy sentencing hearing in federal court in Alexandria, Va., that lasted nearly three hours. However, he added, “I think that sentencing range is excessive. I don’t think that is warranted in this case.”

Manafort’s attorneys earlier this month asked for leniency, citing their client’s age, poor health, low risk of reoffending and assistance in Mueller’s probe. On Thursday, defense attorney Thomas Zehnle pointed to other cases in which defendants received much less prison time for similar crimes.

In remarks shortly before receiving his sentence, Manafort described himself as “humiliated and ashamed” of his behavior and for the pain he had caused his family. He thanked Ellis for a fair trial twice and asked him for compassion. “My life professionally and financially is in shambles,” Manafort said. “To say that I feel humiliated and ashamed would be a gross understatement,” “I intend to turn my notoriety into a positive.”

However, Manafort did not express remorse for his actions -- something Ellis noted before handing down the punishment. “I was surprised that I did not hear you express regret,” said Ellis. “That doesn’t make any difference on the judgment that I am about to make … but I hope you reflect on that.”

Manafort was convicted by a jury in August of eight criminal charges -- five counts of filing false tax returns, two counts of bank fraud and one count of failing to report foreign bank accounts. The financial crimes were uncovered during special counsel Robert Mueller’s Russia investigation. His case in the U.S. District Court for the Eastern District of Virginia marked the first criminal trial in the Mueller probe. But as the defense noted, Manafort’s crimes had nothing to do with Russian election meddling or collusion with the Trump campaign....

To avoid a second criminal trial on separate charges in Washington, D.C., Manafort reached a plea deal with Mueller that involved his full cooperation with federal prosecutors. But the federal judge presiding over his case in D.C. found that he lied to investigators and a federal grand jury about subjects “material” to Mueller’s investigation into Russian meddling and possible coordination between the Trump campaign and the Kremlin.

Manafort was initially scheduled for sentencing in early February, but Ellis postponed the hearing to let Judge Amy Berman Jackson in D.C. determine whether Manafort’s misstatements were unintentional, as he had argued. Ellis said at the time he thought Jackson’s ruling could impact his own sentencing of Manafort.

Sentencing in the D.C. case is scheduled for Wednesday. He faces a maximum of 10 years in prison for conspiracy against the U.S. and conspiracy to obstruct justice by tampering with witnesses. Jackson will decide whether he should serve those years consecutively or concurrently with the ones handed down by Ellis.

Manafort could walk free from federal punishment if President Trump decides to pardon him, but it’s unclear whether the president plans to pursue that avenue. The New York Times recently reported that Manhattan District Attorney Cyrus Vance Jr. is planning to bring state charges against Manafort regardless.

A few quick points in reaction:

1.  Though I do not know exactly when Manafort will get out, I can confidently predict he will not serve exactly 47 months for two reasons: (a) he may get consecutive time at his next sentencing next week (and I suspect he will), and (b) he will surely earn good-time credits and perhaps have others means of getting released earlier as an elderly offender. (Good-time credit alone could get him seven months off possibly resulting in his release before the end of 2021 on the sentence he received today).

2.  I have already seen lots of Twitter commentary complaining this sentence is way too lenient, but I sense many of the complaints really stem from folks rightly seeing a lot of other sentences as way too harsh.  Title 18 USC § 3553(a) calls upon a federal judge to impose a sentence "sufficient, but not greater than necessary, to comply with" traditional sentencing purposes.  I have a hard time developing forceful arguments that a nearly four-year prison term for a nearly 70-year-old man, plus a $50,000 fine and $24 million in restitution, is not sufficient in response to a nonviolent crime.

3.  Roughly a decade ago, when Bernie Madoff got a max sentence of 150 years, I speculated in this post about prosecutors using that high number as a sentencing benchmark in all sorts of other white-collar cases.  Now I am thinking that Paul Manafort has produced a new kind of white-collar sentencing benchmark that now should be of great use to defense attorneys.  Notably, not only was Manafort facing a guideline range of 19.5 to 24 years, but he went to trial and never fully accepted responsibility or even showed remorse.  "If unremorseful Manafort only merited 47 months in prison," so the argument should go from many defense attorneys, "this white-collar defendant should get even less."

March 7, 2019 in Clemency and Pardons, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (17)

Ohio Governor officially postpones three more scheduled executions

As reported here a few weeks ago, the new Governor of Ohio has imposed something of a de facto moratorium on executions because of concerns over the state's(historically troubled) lethal injection protocol.  This new local article, headlined "DeWine delays three more executions due to lethal drug concerns," reports on the last official manifestation of this unofficial execution moratorium:

After urging from a federal judge, Ohio Gov. Mike DeWine delayed three more executions today.

DeWine has said he doesn’t want to carry out another execution until the judge’s concerns with Ohio’s current method are addressed. He has directed the state Department of Rehabilitation and Correction (DRC) to come up with a new protocol after federal Magistrate Judge Michael Mertz said the “current three-drug protocol will certainly or very likely cause (the one being executed) severe pain and needless suffering.”

David Stebbins, assistant federal public defender who is involved in Ohio death penalty cases, called the governor’s move “a commendable first step.” But the defense lawyer noted Ohioans still have “no indication of what the new protocol will be, when it will be made public, or what kind of litigation schedule may ensue. On the current schedule, there is no guarantee that proper vetting can occur before the first execution in September.

In January, DeWine issued a reprieve of execution to Columbus killer Warren Henness, who had been scheduled to die Feb. 13.

So this morning DeWine delayed the death dates for Cleveland Jackson, who was scheduled to be executed May 29, to Nov. 13; Kareem Jackson, set for July 10, moved to Jan. 16, 2020; and Gregory Lott, slated for Aug. 14, now scheduled for March 12. This was not the first delay for Lott, a Cuyahoga County killer; he originally was scheduled for execution on Nov. 19, 2014.

DeWine’s office said the reprieves were granted “because it is highly unlikely that the state’s new execution protocol, which is still in the process of being developed by DRC, would have time to be litigated by scheduled execution dates. Governor DeWine is also mindful of the emotional trauma experienced by victims’ families, prosecutors, law enforcement, and DRC employees when an execution is prepared for and then rescheduled.”

A few (of many) prior recent related posts:

March 7, 2019 in Baze and Glossip lethal injection cases, Clemency and Pardons, Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, February 28, 2019

"Clemency as the Soul of the Constitution"

The title of this post is the title of this notable new article authored by Mark Osler in the latest issues of the Journal of Law & Politics.  Here is part of the piece's introduction:

In this essay, I will not call for the abolition or restriction of the Pardon Power, even as we struggle with the seeming unfairness of some recent grants of clemency.  Instead, I argue that we must embrace what the Pardon Power is, and recognize the true nature of this tool of mercy.  We don’t need to drive a stake through its heart.  Rather, it requires a more consistent and committed public attention than we have given it, which among other things should include a discussion of its use by those who seek the office of president.

Section II below will offer an overview of the more striking employments of the Pardon Power, with a focus on its uses and abuses by more recent presidents.  The controversial aspects of clemency often precisely track the controversial aspects of a president’s personality; that is one reason that we see a discontinuity not only in whether clemency is used or not, but in the way that its use reflects different values in different administrations.

Section III will then look backward at the Constitution’s soul and its roots.  Clemency drew on English precedents, but its core idea of mercy was woven into the culture of the time.  For example, it is a primary theme in Shakespeare’s The Tempest — and George Washington went to see The Tempest during the Constitutional Convention.   At that Constitutional Convention, the Pardon Clause was actively debated, and its final form survived a direct challenge that proposed the power be shared with the legislature.

Finally, Section IV will consider the arguments for and against maintaining the Pardon Power as an unalloyed tool of the president. In the end, the use of clemency has been a net good, in that the positive uses have outweighed the controversies.  The institution continues to connect us to the core value of mercy, maintains the intent of the Framers, and gives hope to those who are incarcerated.  This section closes by considering what we can do when we are dismayed by the exercise of clemency, as will happen when an action follows a conscience not our own.

February 28, 2019 in Clemency and Pardons, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Tuesday, February 26, 2019

New letter urges Prez Trump "to make lasting reforms to the clemency process by removing its administration from the Department of Justice"

A number of notable folks signed on to this new letter urging Prez Trump to make changes to the federal clemency process.  Here are excerpts from the letter:

Last year, you achieved a historic accomplishment when you signed the First Step Act into law.  This new law will reduce the imposition of unjust sentences for thousands of Americans, allowing people who make a mistake the opportunity to make amends and turn their lives around.

The law primarily addresses future sentencing, however, and does little to correct the unjust nature of past sentences that have left many behind bars for far longer than their crimes warranted.  But you can deliver justice for those Americans by making full use of the pardon power for as many deserving individuals as possible and by reforming the structure of the federal clemency process to improve presidential exercise of this important constitutional authority.

During the last administration, former law enforcement officials and criminal justice reform advocates urged President Barack Obama to use his pardon power aggressively.  While President Obama's clemency initiative did lead to hundreds of deserving individuals receiving commutations, he left thousands more behind when he left office.  When President Obama’s term expired, approximately 9,400 clemency petitions remained pending.  Thousands of other individuals saw their petitions denied, despite many of them meeting most or all of the conditions the Obama administration laid out for clemency eligibility.  Furthermore, his administration never even fully considered granting sweeping clemency to broad categories of people who also deserved clemency but may not have known how to obtain an attorney or petition for relief....

[W]e urge you to make lasting reforms to the clemency process by removing its administration from the Department of Justice.  The Constitution grants the clemency power solely to the president.  There is no constitutional or legal requirement that it be overseen by DOJ.  While DOJ should be able to comment on clemency petitions, there is an obvious conflict of interest when the same agency responsible for prosecuting individuals is asked to supervise their petitions for clemency.  By changing the management of the clemency process, you could improve a process not only for your time in office, but also for your successors.  President Obama failed to fix the clemency process and instead opted to for an ad hoc approach, leaving behind thousands of people who otherwise met the stated criteria.  You can succeed where he did not and leave a lasting legacy in this area.

February 26, 2019 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Tuesday, February 05, 2019

Prez Trump gives early and considerable attention to criminal justice reform in 2019 State of the Union address

As expected given the invitation of Matthew Charles and Alice Johnson to be in the audience, Prez Trump devoted considerable time to discussing criminal justice reform during the first part of his State of the Union address tonight. He spoke on these issues at length, and here is what he had to say drawn from this transcript of the full speech:

Just weeks ago, both parties united for groundbreaking Criminal Justice Reform.

Last year, I heard through friends the story of Alice Johnson.  I was deeply moved.  In 1997, Alice was sentenced to life in prison as a first-time non-violent drug offender.  Over the next two decades, she became a prison minister, inspiring others to choose a better path.  She had a big impact on that prison population — and far beyond.

Alice’s story underscores the disparities and unfairness that can exist in criminal sentencing — and the need to remedy this injustice.

She served almost 22 years and had expected to be in prison for the rest of her life.  In June, I commuted Alice’s sentence – when I saw Alice’s beautiful family greet her at the prison gates, hugging and kissing and crying and laughing, I knew I did the right thing — Alice is here with us tonight.

Alice, thank you for reminding us that we always have the power to shape our own destiny.

Inspired by stories like Alice’s, my administration worked closely with members of both parties to sign the First Step Act into law.

This legislation reformed sentencing laws that have wrongly and disproportionately harmed the African-American community.

The First Step Act gives non-violent offenders the chance to re-enter society as productive, law-abiding citizens.  Now, states across the country are following our lead. America is a nation that believes in redemption.

We are also joined tonight by Matthew Charlesfrom Tennessee.  In 1996, at age 30, Matthew was sentenced to 35 years for selling drugs and related offenses.

Over the next two decades, he completed more than 30 Bible studies, became a law clerk, and mentored fellow inmates.

Now, Matthew is the very first person to be released from prison under the First Step Act.  Matthew, on behalf of All Americans: WELCOME HOME.

February 5, 2019 in Clemency and Pardons, Criminal justice in the Trump Administration, FIRST STEP Act and its implementation, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Monday, February 04, 2019

Prez Trump's special guests for his 2019 State of the Union Address suggest he will give significant attention to criminal justice reforms

This new White House release details a baker's dozen list of "the special guests who will join the President and First Lady at the U.S. Capitol when President Donald J. Trump delivers the second State of the Union Address of his presidency."  Here are two names on the list that should be familiar to regular readers of this blog:

Matthew Charles

Matthew Charles’s life is a story of redemption.  In 1996, he was sentenced to 35 years in prison for selling crack cocaine and other related offenses. While in prison, Matthew found God, completed more than 30 bible studies, became a law clerk, taught GED classes, and mentored fellow inmates.  On January 3, 2019, Matthew was the first prisoner released as a result of the First Step Act....

Alice Johnson

President Trump granted Alice Johnson clemency on June 6, 2018.  Alice had been serving a mandatory life sentence without parole for charges associated with a nonviolent drug case.  During her nearly 22 years of incarceration, Alice accomplished what has been called an “extraordinary rehabilitation.”  After her release, she was overjoyed to be reunited with her family.  She has now dedicated her life to helping those who are in a similar position as she was and giving a voice to the criminal justice reform movement.

I am so very pleased that Matthew Charles and Alice Johnson will have the opportunity to attend the State of the Union and in so doing will provide such a positive and importance face for criminal justice reform efforts.  I am also hoping (though not really expecting) that Prez Trump might talk about clemency activity (and reform to the clemency process) and further reform of mandatory-minimum sentences (including retroactive application of recent reforms) as potential next steps for his administration and as important agenda items for the new Congress.

Prior related post:

February 4, 2019 in Clemency and Pardons, Criminal justice in the Trump Administration, FIRST STEP Act and its implementation, Who Sentences | Permalink | Comments (0)

Tuesday, January 15, 2019

"The Clemency Process Is Broken. Trump Can Fix It."

The title of this post is the title of this notable new Atlantic commentary authored by Rachel Barkow, Mark Holden and Mark Osler.  Here are excerpts:

It took six years of intense wrangling to get the First Step Act passed. Clemency reform, however, requires the action of only one man. The president can act alone to fix what Congress did not.

​Even the First Step Act’s primary nemesis, Republican Senator Tom Cotton, has acknowledged a role for clemency, saying as part of his attack on the legislation, “I grant that, in a particular case, the interaction of specific facts and the law can create an unjust sentence. If that happens, the best course of action is the scalpel of the governor or the president’s pardon and clemency power, not the ax of criminal leniency legislation.”

​Unjust sentences resulting from mandatory minimums are not rarities. That is why the First Step Act no longer permits mandatory minimum life sentences for third-strike drug offenses and lowered a two-strike, 20-year mandatory minimum for drug offenses to 15 years. The Act also requires that an individual first be convicted of an offense involving a firearm before receiving an additional 25-year mandatory minimum if he commits a second offense with a gun. (Previously, first-time offenders such as Weldon Angelos could receive multiple 25-year mandatory enhancements if the police documented multiple drug buys before making an arrest.)

One problem, as noted above, is that these and other welcome changes do not operate retroactively. People serving sentences now deemed excessive by Congress and the president have no recourse other than clemency to have those sentences rightsized. ​ There are more than 3,000 people left in prison serving mandatory sentences under the old firearm-enhancement law and the three-strikes provision that imposed a life sentence. Add to that the many individuals who are serving excessive sentences because of prosecutorial overcharging, and it is easy to see the urgent need to correct these injustices.

​For clemency to reach those thousands, the country needs a process that fairly, thoroughly, and efficiently evaluates candidates for a commutation (or shortening) of their sentence under the Constitution’s pardon power. At the moment, there are two possible processes, but neither works very well.

The first is informal: The president evaluates individual cases based on personal recommendations. This system does not scale.

​The second, more formal method isn’t any better. It courses through seven levels of review, much of it through a hostile Department of Justice bureaucracy that tends to defer to local prosecutors who are, in turn, loath to undo the harsh sentences they sought in the first place....

​Some states have better systems in place. In Arkansas, Connecticut, Georgia, and South Carolina, among others, an expert board plays a leading role in identifying and evaluating good cases. The best-functioning boards consist of people with expertise in criminal justice, social work, and psychology, and represent key stakeholders such as former judges, defense lawyers, prosecutors, and community activists who share a common belief that the purpose of the pardon power is to temper justice with mercy.

This model could work at the federal level as well. The president could create a similar board of clemency advisers who represent a diverse range of experiences, including those who work in criminal defense or corrections and people who were formerly incarcerated. Ideally, this body would be bipartisan and work collaboratively with a professional staff to identify cases for the president. This body could also track the progress of individuals granted clemency to document how they use their second chances. Many no doubt will serve their communities ably, and publicizing their experiences could help counteract the risk of a single Willie Horton–type incident overshadowing the positive stories of people who have been granted clemency....

​The members of the bipartisan coalition that pushed through sentencing reform were united by a belief in liberty, a desire to cut costs, a respect for public safety, and a belief in second chances. But as the name of their legislation indicates, sentencing reform was just a first step. Clemency should come next.

A few of many recent related posts: 

January 15, 2019 in Clemency and Pardons, Criminal justice in the Trump Administration, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Sunday, January 13, 2019

California Supreme Court exercises its curious, rarely-used power to reject 10 of out-going Gov's clemencies

I have often said California is a crazy and crazy-interesting state for sentencing developments, and this story about recent clemency developments showcases this reality.  The story is headlined "‘It was like a ton of bricks crushed me’: California grapples with historic clemency rejections," and here are some of the particulars:

Joe Hernandez found out that the California Supreme Court had rejected his commutation request late last month during a phone call with his wife, when she checked the online docket for his case....

His family was already planning for the possibility when, on Dec. 21, a majority of the Supreme Court, without specifying a reason, declined to recommend the commutation. “It was like a ton of bricks crushed me,” Hernandez said in a phone interview. “I didn’t know what to say. This was our first real hope after 25 years.”

Hernandez’s was one of ten clemency actions blocked by the court in the final weeks of the Brown administration, the first time since 1930 that it has rejected pardon or commutation requests under consideration by a governor.

The move stunned observers of the California Supreme Court, which under the state constitution must review clemency requests for anyone convicted of felony more than once, and has left them grasping for answers about how to proceed. The court approved 86 other applications over the past eight years.

Even Brown seemed to be unsure what to make of the rejections. He granted a historic 1,332 pardons and 283 commutations during his final two terms, part of a broader push to scale back the state’s tough-on-crime approach that began under his first governorship.

“Read the ones who were approved and read the ones who were disapproved and you tell me what the rule is,” Brown told reporters in early January, shortly before he left office.

That leaves new Gov. Gavin Newsom, a fellow Democrat, to puzzle through the court’s position as he considers whether to continue Brown’s powerful embrace of executive clemency. “The weight of that is pretty heavy,” Newsom said at a benefit concert on Sunday before his inauguration. “The governor looks at dozens of those every single week. There’s a binder. Quite literally, every time I see him, he shows me the binder and he says, ‘This is one of the most important jobs that you will have.’”

The court wrote an administrative order in March about its role in evaluating pardon and commutation applications that stated it was not acting on the merits of the cases but rather to determine whether granting clemency would be an “abuse of power” by the governor.

Nevertheless, it’s no more clear now to experts what that boundary might be. David Ettinger, an appellate lawyer who writes a blog about the California Supreme Court called At the Lectern, said that from the information publicly available about the rejected cases, he couldn’t distinguish them from “a significant number of other life without parole commutations that the Supreme Court signed off on. I just don’t know.”

“There’s really no guidance for future courts, for future clemency requests, for future governors making requests, as to why certain ones might get blocked and certain ones won’t,” he said. “It is a problem for future courts and future governors, how to apply this general ‘abuse of power’ standard to specific cases.”

Kate Chatfield, policy director for Re:store Justice, a criminal justice nonprofit, has assisted two clients with commutation applications. She said the court’s action was unlikely to change the work of lawyers in her field or the desire of inmates to seek clemency. But she was concerned about the Supreme Court’s standard, and how to address it, if it is not a review of the merits of a case....

Santa Clara County District Attorney Jeff Rosen would also like more guidance from the court, which he said could help prosecutors focus their arguments in cases they oppose. His office weighs in on every clemency request that the governor is considering for a case they prosecuted, some of which have also been reviewed by the Supreme Court. He said his team determines a position by looking at criteria like the underlying crime, how the perpetrator has behaved in prison and the wishes of the victim’s family, a particularly important factor in murder cases.

“The thing about governors and clemency is it’s a very powerful tool that does not have a lot of checks on it,” Rosen said. “I believe that the governor would want all of the relevant information to make the decision.”

January 13, 2019 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, January 07, 2019

Calling her life sentence "too harsh," Tennessee Gov grants commutation to Cyntoia Brown to be paroled after serving 15 years for juve killing

As reported in this local article, "Gov. Bill Haslam ordered an early release for Cyntoia Brown, a Tennessee woman and alleged sex trafficking victim serving a life sentence in prison for killing a man when she was 16."  Here is more about a high-profile clemency grant in a high-profile case:

Haslam granted Brown a full commutation to parole on Monday. Brown will be eligible for release Aug. 7, 15 years after she fatally shot a man in the back of the head while he was lying in bed beside her. She will stay on parole for 10 years.

“Cyntoia Brown committed, by her own admission, a horrific crime at the age of 16," Haslam said in a statement. "Yet, imposing a life sentence on a juvenile that would require her to serve at least 51 years before even being eligible for parole consideration is too harsh, especially in light of the extraordinary steps Ms. Brown has taken to rebuild her life. "Transformation should be accompanied by hope. So, I am commuting Ms. Brown’s sentence, subject to certain conditions.”

Brown will be required to participate in regular counseling sessions and to perform at least 50 hours of community service, including working with at-risk youth. She also will be required to get a job.

In a statement released by her lawyers, Brown thanked Haslam "for your act of mercy in giving me a second chance. I will do everything I can to justify your faith in me." "With God's help, I am committed to live the rest of my life helping others, especially young people. My hope is to help other young girls avoid ending up where I have been."

The governor's long-awaited decision, handed down during his last days in office, brought a dramatic conclusion to Brown's plea for mercy, which burst onto the national stage as celebrities and criminal justice reform advocates discovered her case. In his commutation, the governor called Brown's case one that "appears to me to be a proper one for the exercise of executive clemency." "Over her more than fourteen years of incarceration, Ms. Brown has demonstrated extraordinary growth and rehabilitation," the commutation said.

It was a remarkable victory for Brown after years of legal setbacks. Brown said she was forced into prostitution and was scared for her life when she shot 43-year-old Johnny Allen in the back of the head while they were in bed together. Allen, a local real estate agent, had picked her up at an East Nashville Sonic restaurant and taken her to his home.

Brown, now 30, was tried as an adult and convicted of first-degree murder in 2006. She was given a life sentence. Had Haslam declined to intervene, Brown would not have been eligible for parole until she was 69. The state parole board, which considered Brown's case in 2018, gave the governor a split recommendation, with some recommending early release and some recommending she stay in prison....

In recent years, celebrities have highlighted her case, fueling intense interest and a renewed legal fight to get her out of prison. Activists, lawmakers and celebrities, including Rihanna and Kim Kardashian West, have cited Brown's case as an illustration of a broken justice system. Brown was a victim herself, they said, and didn't deserve her punishment.

The Gov's official press release on this decision is available at this link.

January 7, 2019 in Assessing Miller and its aftermath, Clemency and Pardons, Offender Characteristics, Offense Characteristics, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (8)

Friday, January 04, 2019

"Why Aren’t Democratic Governors Pardoning More Prisoners?"

The question in the title of this post is the headline of this notable new piece in The Atlantic by Matt Ford. The subtitle adds "It's one of the most effective tools for reducing mass incarceration, but few are taking advantage of it."  Here are excerpts:

Governors in most states have the power to pardon or commute sentences, either at their sole discretion or with some level of input from a commission. Since most convictions occur at the state level, some governors can wield even greater influence on criminal justice than the president can.  But most governors rarely use this power, and few have made it a mainstay of their tenure in office — a major missed opportunity for justice and the public good.

Some outgoing governors were particularly resistant. New Mexico Governor Susana Martinez, a former prosecutor, issued only three pardons during her two terms in office and added new restrictions to deter applicants.  Florida Governor Rick Scott turned the state’s clemency system into a hopeless slog.  Wisconsin Governor Scott Walker issued no pardons during his eight years in power, and in one of his final official acts, he signed a bill requiring state officials to keep a list of pardoned people who commit subsequent crimes and the governor who pardoned them.

All three of those governors hail from the Republican Party, which traditionally favored tough-on-crime policies. But even Democratic governors can be stingy.  New York Governor Andrew Cuomo made headlines last month when he pardoned 22 immigrants who faced deportation or couldn’t apply for citizenship because of previous state convictions.  The pardons gave Cuomo a chance to cast himself as a leading figure in the Democratic resistance to President Trump.  But with almost 200,000 New Yorkers in prison, probation, or parole, issuing fewer than two dozen pardons is hardly a courageous act....

What would it look like if governors pursued a more aggressive approach to their clemency powers?  Jerry Brown, California’s outgoing governor, carved out a model of sorts.  The state’s longtime leader spent his fourth and final term in office setting a national benchmark for clemency: The Times of San Diego reported that Brown has pardoned at least 1,332 inmates since 2011, quadrupling the number issued by the preceding four governors combined.  The burst of activity is particularly stark compared to his two immediate predecessors, Arnold Schwarzenegger and Gray Davis, who respectively issued fifteen and zero pardons....

So where could a more apprehensive governor begin? Perhaps the most prudent place would be the swelling numbers of elderly prisoners who were condemned to spend their dying years behind bars.  In a December 2017 report, the Vera Institute for Justice found that roughly 10 percent of prisoners in state custody in 2013 — roughly 131,000 people — were more than 55 years old. Demographic trends are expected to raise that figure to 30 percent by 2030.  Multiple states already have compassionate-release programs for elderly or dying prisoners; governors could fast-track pardon and commutations to accelerate the process.

January 4, 2019 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Monday, December 31, 2018

NY Gov closes out 2018 with clemency grants

This New York Post piece, headlined "Cuomo grants clemency to 29 convicts, including murderers," reports on a final act of sentencing significance from the Governor of New York. Here are the basic details:

Gov. Cuomo granted clemency to 29 convicts Monday — including four serving lengthy sentences for murder.

Twenty-two of the inmates won pardons, including several immigrants convicted of drug crimes who were facing possible deportation. Nine others had their sentences commuted, four for murder and three for armed robbery.

“These actions will help keep immigrant families together and take a critical step toward a more just, more fair and more compassionate New York,” the governor said in a statement.

The convicted murderers had all served between 20 and 33 years and had committed the crimes in their teens. Alphonso Riley-James and Roy Bolus, both 49, were were part of a group involved in a drug deal in Albany that went bad and left two men dead.

But neither inmate was accused of causing the deaths, Cuomo said, and both have served 30 years of a potential life sentences. The governor said both showed remorse and had exemplary records in prison....

Two other convicted killers were also crime victims themselves, the governor said. Dennis Woodbine, 42, served almost 22 years of a 25-to-life sentence following an incident in Brooklyn in 1998, when he was 19. While chasing a group of young men who had stolen his jewelry, Woodbine fired a gun and struck and killed an innocent bystander. He has since earned a B.A. and is a mentor in the organization Rehabilitation Through the Arts and was featured in a PBS documentary.

The governor also commuted the sentence of Michael Crawford, 38, who served 20 years of a 22-to-life sentence after being convicted at age 17 of shooting an individual who stole concert tickets from him in Buffalo in 1999. The governor also commuted the sentences of three other prisoners convicted of robbery or weapons possession.

The full official statement and list of clemency grants from Gov Cuomo is available at this link.

December 31, 2018 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Saturday, December 22, 2018

More notable state clemency developments for the holiday season

In this post a few days ago, I flagged some notable recent clemency grants by Governors in Arkansas and Colorado and Pennsylvania (while also lamenting that Prez Trump has not followed up a lot of big clemency talk with any big clemency action). With the Christmas holiday nudging every closer, I am not surprised (though still pleased and grateful) that Governors in a few more states are using the ink their clemency pens. Here is another round-up of notable new state clemency stories:

Colorado: "Hickenlooper orders clemency for 33 Colorado offenders, including 7 men convicted of murder"

Michigan: "Gov. Rick Snyder grants clemency to lifer Melissa Chapman, 60 others"

Pennsylvania: "Wolf grants clemency to two more inmates, including one midstate woman"

Tennessee: "Tennessee Governor Granted Clemency To 11 People, Cyntoia Brown Not Included"

Texas: "Christmas clemency: Gov. Greg Abbott pardons six Texans, two for marijuana possession"

December 22, 2018 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, December 20, 2018

State clemency developments during a holiday season still full of (foolish?) hope for clemency boldness from Prez Trump

In this post last week, I noted Prez Trump's tweet talking about how criminal justice reform "brings much needed hope to many families during the Holiday Season."  I stressed that long-promised additional clemency action could provide another means for the President to make families happy and hopeful during this special time of year.  (On that front, it is worth recalling that, as posted here, Prez Trump issued his first commutation of Sholom Rubashkin exactly a year ago today.  His other commutations were to Alice Marie Johnson in June 2018, and then Dwight and Steven Hammond in July 2018.)

While we all continue to wait and hope for Prez Trump to use his historic constitutional clemency power to "bring much needed hope to many families," I thought it worth noting some recent actions on this front at the state level.  Specifically, here are relatively recent stories of Governors in Arkansas and Colorado and Pennsylvania making notable use of their clemency powers:

I suspect there may be some more state clemency grants already issued and still to come, though I keep pushing for Prez Trump to be active on this front because I believe it provides a useful push (and perhaps some political cover) for state executives considering clemency petitions. In particular, a GOP Governor is considering a high-profile clemency cases in Tennessee, Cyntoia Brown as reported here, and any kind of peer pressure is likely beneficial in this context.

A few of many recent related posts: 

December 20, 2018 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, December 13, 2018

Six former governors urge outgoing California Gov Jerry Brown to commute 740 death sentences

This new opinion piece in the New York Times is authored by six former governors and is headlined "Jerry Brown Has the Power to Save 740 Lives. He Should Use It."  Th2 headline is itself a bit factually misleading because none of the persons on California's death row seem at risk of being executed anytime soon.  There has not been a single execution in California in more than a dozen years, and the next Governor seems unlikely to be eager to start up the state's machinery of death anytime soon.   Still, the six former governors — Richard Celeste of Ohio, John Kitzhaber of Oregon, Martin O’Malley of Maryland, Bill Richardson of New Mexico, Pat Quinn of Illinois, and Toney Anaya of New Mexico — make a notable pitch and here are excerpts:

Among a governor’s many powers, none is more significant than signing a death warrant. It’s a terrible responsibility, hard even to imagine until you’re asked to carry it out, as we were. But we became convinced that it wasn’t something a civilized society should ask of its leaders. That’s why we halted executions in our states, and we call on Gov. Jerry Brown of California to do the same.... [W]e know it must weigh on Mr. Brown that, unless he acts soon, he will leave behind 740 men and women on California’s death row. It’s a staggering number and our hearts go out to him. From a humanitarian perspective, it is horrifying to imagine executing that many humans. As a practical matter, it’s beyond comprehension.

Even the most ardent proponents of capital punishment would shudder at composing a plan to execute 740 people. Would California’s citizens allow mass executions? If the state were to execute a single person every day, people would still be waiting on death row after two years....

Since the death penalty was reinstated in the United States in 1976, 11 governors have granted clemency to death row prisoners in their states. They did not free them; they either reduced their sentences to life, declared a moratorium on executions or repealed their death penalty. We have all done one of these; so have Gov. George Ryan of Illinois in 2003; Gov. Jon Corzine of New Jersey in 2007; Gov. Dannel Malloy of Connecticut in 2012; Gov. Jay Inslee of Washington in 2014; and Gov. Tom Wolf of Pennsylvania in 2015.

The achievement of high office demands that one be courageous in leadership. Mr. Brown now has the chance to do what others in our ranks have done after they became aware of the price paid for taking a human life. We were compelled to act because we have come to believe the death penalty is an expensive, error-prone and racist system, and also because our morality and our sense of decency demanded it.

Mr. Brown has the power to commute the sentences of 740 men and women, to save 740 lives. Or, he can declare a moratorium on the death penalty and give Governor-elect Gavin Newsom the time he will need to figure out how to end a system broken beyond repair. Such an act will take political will and moral clarity, both of which Mr. Brown has demonstrated in the past. In the interest of his legacy, the people of California need his leadership one more time before he leaves office.

December 13, 2018 in Clemency and Pardons, Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

"An Unappreciated Constraint on the President's Pardon Power"

The title of this post is the title of this notable and timely new article authored by Aaron Rappaport now available via SSRN. Here is its abstract:

Most commentators assume that, except for the few textual limitations mentioned in the U.S. Constitution, the President’s pardon power is effectively unlimited.  This paper suggests that this common view is mistaken in at least one unexpected way: Presidential pardons must satisfy a specificity requirement.  That is, to be valid, the pardon must list the specific crimes insulated from criminal liability.

This claim bears a significant burden of persuasion, since it runs so counter to accepted opinion.  Nonetheless, that burden can be met.  The paper’s argument rests on an originalist understanding of the Constitution’s text, an approach that leaves little doubt that a specificity requirement is an implicit limitation on the President’s pardon power.  It also demonstrates that the main objections to the argument — that the requirement runs contrary to the Constitutional text or historical practice – are misguided and unpersuasive.

Of course, even if a specificity requirement exists, one may wonder about its significance.  After all, the requirement does not prevent a President from issuing a pardon to any person or for any crime.  Nonetheless, as the paper explains, a specificity requirement may prove more powerful than it first appears.  Most importantly, it both limits the scope and raises the cost of issuing pardons for criminal violations, including violations of the electoral process.  In so doing, the specificity requirement serves as an unexpected ally in the fight for political accountability and in defense of the rule of law.

December 13, 2018 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Tuesday, December 11, 2018

Another reminder that clemency grants bring "much needed hope to many families during the Holiday Season"

The big sentencing news today was, of course, the promise by Senate majority leader Mitch McConnell that he will soon bring up FIRST STEP Act for a vote.  And it was pleasing to see Prez Trump use Twitter to say something nice in reaction to this news with this tweet:

Among other notable realities, this tweet is a useful reminder that Prez Trump will be eager to tout the benefits of the FIRST STEP Act after its passage and through its implementation (which will take years). Indeed, among the reasons I am so eager to see the FIRST STEP Act passed this year is so that all GOP leaders who urged its passage will be invested in helping to ensure its long-term success (and will, I hope, be eager to support further reform if the FSA proves very successful).

But another thought came to mind upon reading Prez Trump's accurate statement that criminal justice reform "brings much needed hope to many families during the Holiday Season" — namely that clemency grants provide another means to make many families hopeful during this time of year. I have noted in recent posts here and here some notable recent clemency work by Govs in California and Oklahoma, and it would be great to have many more such stories to spotlight from both Governors and the President of the United States.

As regular readers know, Prez Trump was sure talking up a good clemency game over the summer, but we have not seen much action on this front in recent months. I suspect that one possible reason for clemency hesitation was a White House focus on getting the FIRST STEP Act passed. Now that that there seems to finally be legislative movement on this front, perhaps Prez Trump and his team can focus now again on using a tool that "brings much needed hope to many families" without having to deal with any folks in Congress.

A few of many recent related posts: 

December 11, 2018 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Saturday, December 08, 2018

Even more great clemency news in Oklahoma in wake of 2016 sentencing reform ballot initiative

In this post a few month ago, I noted the important work of lawyers and law students in seeking commutations for dozens of Oklahoma inmates in the aftermath of the state's passage of Question 780, which  made nonviolent drug possession offenses and low-level property offenses misdemeanors instead of felonies.  And last month in this post I reported that the Oklahoma Pardon and Parole Board had recommended commutations for a sizable group of offender, and this past week Governor Mary Fallin officially approved 21 commutation requests.  This local article reports on these development, and here are excerpts (with some emphasis added): 

Oklahoma Governor Mary Fallin has approved commutation requests for 21 non-violent offenders. The 21, whose names were read off one-by-one Wednesday by the governor, made it to the final step in a three-stage process by receiving a favorable vote from at least a simple majority of the five-member Oklahoma Pardon and Parole Board.

"We can keep people who are dangerous to society locked up, for those who have addiction issues that are non-violent, low-level offenders, there's a better way of doing this in our nation," Fallin said.  "On a personal note, this is just me saying this but, as we prepare for the Christmas holiday season, let's not forget there is a God of second chances."

Those being assisted through the commutation campaign are serving 10 years or longer for crimes that now carry lesser punishments following recent reforms approved by voters and legislators.

One of those was Juanita Peralta. Her daughter, Destiny Pinon, told News 4 that her mother was serving a 15-year sentence after she was arrested for a DUI while in a drug court program. Peralta has served about two years of her sentence in Taft, Oklahoma. "It’s unreal. I mean, it’s a good unreal feeling," Pinon said.  "When they said her name, it was just a rush of emotions."...

The 21 offenders were sentenced to a cumulative 349 years of incarceration. Wednesday’s action shaved 306 years off those incarcerated.

Richard Quillen, along with other parents and family members, was able to break the news over the phone to his daughter, Peyton Quillen. She had been serving time in Tulsa for a drug-related offense. "Governor Mary Fallin just signed your release papers and, as of this moment, you are a free woman," Richard told his daughter over the phone. "Okay, I love you."

Edmond resident Alyshea Rains, the mother of commuted offender Alexis Rains, told News 4 that the past two years without her daughter has been nothing short of tough. Alexis, now 24, was sentenced to 10 years for drug possession. She will return home to her now 5-year-old daughter....

News 4 spoke with Kayla Jeffries on Wednesday moments after she was released from the Kate Barnard Correctional Center. Her 20-year sentence was commuted after she was arrested for drug infractions at the age of 18. Jeffries served two and a half years at Mabel Bassett Correctional Center and six months at the Kate Barnard Correctional Center. “It’s surreal. I’m praising God. I’m thanking God every step I take,” she said. “I had my youngest daughter at Mabel Bassett, so I haven’t really had any bonding or or one on one time with her so I’m really looking forward to that and to just being a good mom and telling my story.”

Next Wednesday, the Oklahoma Pardon and Parole Board will consider sending eight more commutation applicants to the governor.

Prior related posts:

December 8, 2018 in Clemency and Pardons, Drug Offense Sentencing, Offense Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, December 05, 2018

Timely reminder that now would be the perfect time for Prez Trump to make good on his clemency talk

The Washington Examiner has this notable recent article headlined "The criminal justice reform Trump can achieve without Congress." Here are excerpts:

President Trump unveiled one of his top legislative priorities before Democrats take over the House of Representatives: passage of the First Step Act, which would reduce some prison sentences. Though he still must win a tug-of-war within the Republican Party to get that bill through, he has a Plan B — and he doesn't need Congress for it.

That would be the creation of a White House clemency commission to supplement or replace the Justice Department’s opaque Office of the Pardon Attorney, which critics say is inherently biased in favor of prosecutors.

A new clemency commission can be created without Congress. The idea has support from both left-wing and conservative advocates, who note Trump’s repeated musing about the unfairness of the criminal justice system, including a remark in October that “a lot of people” are in prison for “no reason” and that he was “actively looking” to address that.

Trump has nearly unchecked power to pardon or release federal inmates — an authority he’s already used in unconventional ways, breaking with stingy recent predecessors to give nine early-term pardons or commutations, including the first pardons to currently incarcerated inmates since the 1800s.

“The reason you haven’t seen anything done yet is that there are only 24 hours in the day, and this requires some thought,” said Heritage Foundation scholar Paul Larkin, who advocates a clemency review process headed by the vice president.

Larkin attended a September meeting at the White House hosted by Jared Kushner and Ivanka Trump. Kim Kardashian West joined a dozen reformers around a Roosevelt Room table, where guests discussed commission ideas.

U.S. Sentencing Commission member and New York University law professor Rachel Barkow, who also attended the White House meeting, offered a similar assessment. “My guess is institutional resources might be focused on the First Step Act, so clemency reform could be on hold,” she said....

Mark Osler, a University of St. Thomas law professor also involved in talks about a commission, doesn't expect the clemency board to be used as a Plan B but rather as a second step: “I suspect it will get more attention once the First Step Act is dealt with,” though he declined to say if he’s been in touch with the White House. “It’s important to reform the clemency process, and I think the project will come to the front of the agenda when President Trump wants to or does grant more clemencies. The September meeting was a great start,” he said....

The pending First Start Act would, among other reforms, expand good-time credit, allow judges greater sentencing flexibility, and retroactively shorten some crack cocaine sentences. But it wouldn’t reduce many already imposed terms.... Amid uncertainty over the bill’s fate, some advocates have recommended greater unilateral action to a potentially jilted Trump.

“Now is the perfect opportunity for President Trump to show Senate Majority Leader Mitch McConnell who's the boss," CAN-DO Foundation founder Amy Povah said recently. "He can commute the sentences of hundreds, if not thousands of prisoners who would qualify for an immediate release if First Step passes with one stroke of the pen."

A few of many recent related posts: 

December 5, 2018 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Friday, November 30, 2018

Outgoing California Gov Jerry Brown urged by notable group to commute 742 death sentences

As reported in this Reuters article, a "Catholic group close to Pope Francis and representatives of 25 countries on Wednesday appealed to outgoing California Governor Jerry Brown to commute all the state’s 742 death sentences before laving office." Here is more:

The Sant’ Egidio peace group made the appeal together with the justice ministers of South Africa, Benin, Zimbabwe and Malaysia, and 21 lower-ranking officials from other countries at a conference on the death penalty held in Italy’s parliament. Mario Marazziti, a Sant’ Egidio leader, asked Brown to “declare a moratorium on all executions and begin the process of commuting the sentences into jail terms before leaving office”.

Brown, who once trained to be a priest of the Jesuit order, will leave office after completing his current two terms on Jan. 7, when Governor-elect Gavin Newsom is sworn in.

There are currently 742 people condemned to die in California, where the last execution took place in 2006. Executions since then have been blocked by legal issues.

Sant’ Egidio, which has branches in many countries and hundreds of thousands of followers around the world, is in the forefront of efforts to abolish the death penalty and help migrants. It has found great favor with the pope. Last August, the Roman Catholic Church formally changed its teaching to declare the death penalty inadmissible, whatever the circumstance....

An editorial in the Los Angeles Times last week urged Brown to commute at least the death sentences of those who committed crimes when they were young. The newspaper also urged Newsom to place a new anti-death penalty initiative on a future ballot.

Propositions to end capital punishment were defeated in 2012 [and] 2016 in California.

November 30, 2018 in Clemency and Pardons, Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Friday, November 23, 2018

Noticing California Gov Jerry Brown's recent robust approach to clemency

The Marshall Project earlier this week had this notable account of the outgoing California Gov's clemency history under the headline "The Jerry Brown Way of Pardoning."  Here is an excerpt from this piece:

Unlike President Donald Trump, who has focused attention on cases brought to him by fellow celebrities and on political allies, Brown’s clemency decisions focus on people facing what the governor seems to view as systemic injustices.  They are often timed to coincide with Catholic holidays, a reflection of his faith.

“It’s a recognition that people can, and do, change — even after committing terrible crimes,” Evan Westrup, a spokesman for Brown, said in a statement.  “It’s also a recognition of the radical and unprecedented sentencing increases and prison building boom of the 80s and beyond as well as the diminished role of parole as a vital ingredient in California’s system of sentencing and rehabilitative process.”

Among the people who have received clemency recently: Southeast Asian immigrants who came to the United States as children and who face deportation unless granted a pardon; non-citizen military veterans who were deported for crimes committed after their service; and prisoners serving life without parole, who were given hope of release....

During his first two terms in office, from 1975-83, Brown oversaw a dramatic shift in sentencing policy that led to a surge in the state’s prison population and coincided with a number of tough-on-crime bills.  In those years, he handed down only one commutation and about 400 pardons.... By contrast, since returning to the governor’s office in 2011, Brown has issued 82 commutations and more than 1,100 pardons, far more than any California governor since at least the early 1940s.

The previous governor, Arnold Schwarzenegger, issued only 10 commutations and 15 pardons during his two terms. His predecessor, Gray Davis, issued none.

A few days after this piece was published, Gov Brown issued another batch of clemencies as reported in this AP article headlined "California governor pardons former state lawmaker, refugees."  Here is how this piece starts:

A former state senator convicted of lying about his residence and three refugees from Vietnam who could face deportation are among 38 people pardoned Wednesday by Gov. Jerry Brown ahead of the Thanksgiving holiday.  Brown's pardons also include a man who just lost his Paradise home in a wildfire.

The Democratic governor also commuted the sentences of 70 people still serving time, including Walter "Earlonne" Woods, who co-hosts a podcast called "Ear Hustle" from inside San Quinton state prison.

November 23, 2018 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, November 20, 2018

"The process to pardon turkeys is more rational than the one used for humans"

Regular readers know I am ever eager this time of year to complain about the contrast between the annual predictable turkey pardons and unpredictable White House clemency efforts.  Helpfully, my colleague and clemency guru Mark Osler has this matter well covered in this new CNN commentary with a headline that I have used as the title for this post.  Here are excerpts:

This week, we will once again be treated to the awkward spectacle of the President pardoning a turkey while confused-looking children look on.  Of late, that ceremony has been accompanied by a raft of opinion pieces suggesting the President should consider granting clemency to some humans, as well.  I've written a few of those myself.

After years of fruitlessly making that same argument, a more worthwhile observation might be this: The process used to choose which turkey might be pardoned is far more rational, efficient and effective than the one used to evaluate clemency for humans.  In particular, the turkey-choosing process features four attributes sorely missing from the human one.

First, it occurs regularly.  Turkeys are pardoned every year, not just in the waning days of an administration.  Second, decisions are made by objective specialists with the current chairman of the National Turkey Federation, or NTF, responsible for managing a thorough selection process. Typically, the NTF head will familiarize dozens of birds with human contact and saturate them with loud music before making a final choice.  Third, there are defined criteria.  The finalists are selected based on their willingness to be handled, their health and their natural good looks.  Fourth, attention is paid to making sure they thrive after their grant of clemency.  After the ceremony, they are sent to Virginia Tech's "Gobbler's Rest" exhibit, where they are well cared for.

This contrasts sharply with the process of giving clemency to humans.  For the past seven years I have worked with my students to prepare and file petitions on behalf of deserving clients, and have found that the procedure through which clemency is granted is irregular, run largely by biased generalists, devoid of consistent, meaningful criteria, and it does little to ensure success of individuals after their release....

What's missing is all the things that make the turkey process work.  It's irregular, as inattention by any one of the numerous sequential evaluators stops the whole thing.  And instead of objective specialists, we have decisions being made by the deputy attorney general, who is neither objective nor a specialist.  The criteria are poorly articulated and currently issued by the stiflingly conflicted DOJ.  And finally, there is little to no connection between the process and what comes after, as prison gives way to freedom.

Is there a better way?  Sure.  Just take the process out of the DOJ and put it in the hands of a board, as most states do, and then have that board make regular recommendations pursuant to consistent criteria while monitoring outcomes.  If we did that, the clemency process would finally be at least as functional as the one that informs a silly holiday tradition.  There is a place for circuses, but we also need to regularly bake the bread of mercy that is promised in the Constitution.

November 20, 2018 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, November 15, 2018

"Eight Keys to Mercy: How to shorten excessive prison sentences"

The title of this post is the title of this notable new Prison Policy Initiative report.  I recommend the whole report, and here are excerpts from its start and its summary concepts:

After decades of explosive growth, prison populations have mostly flattened. Much of that is due to lawmakers lessening penalties for drug possession or low-level property offenses. While a welcome start, a bolder approach is necessary to truly begin to make a dent in the numbers of individuals who have served and will serve decades behind bars. This approach will take political courage from legislators, judges, and the executive branch of state governments.

Approximately 200,000 individuals are in state prisons serving natural life or “virtual” life sentences.  And as of year’s end 2015, one in every six individuals in a state prison had been there at least for 10 years. 

These are not merely statistics. These are people, sentenced to unimaginably long sentences in ways that do little to advance justice, provide deterrence, or offer solace to survivors of violence. The damage done to these individuals because of the time they must do in prison cells — as well as to their families and their communities — is incalculable.

People should not spend decades in prison without a meaningful chance of release.  There exist vastly underused strategies that policy makers can employ to halt, and meaningfully reverse, our overreliance on incarceration. We present eight of those strategies below....

Our 8 strategies

The eight suggested reforms in this report can shorten time served in different ways:

  • Several ways to make people eligible for release on parole sooner. 
  • One way to make it more likely that the parole board will approve conditional release on parole.
  • Several ways to shorten the time that must be served, regardless of sentencing and parole decisions.
  • One simple way to ensure that people are not returned to prison.

Of course, states vary in many ways, most critically in how they structure parole eligibility, and policymakers reading this report should anticipate tailoring our suggested reforms to their state systems. Each of the reforms laid out in this report could be effective independent of the others.  However, we encourage states to use as many of the following tools as possible to shorten excessive sentences:

  1. Presumptive parole
  2. Second-look sentencing
  3. Granting of good time
  4. Universal parole eligibility after 15 years
  5. Retroactive application of sentence reduction reforms
  6. Elimination of parole revocations for technical violations
  7. Compassionate release
  8. Commutation

November 15, 2018 in Clemency and Pardons, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (1)

Monday, November 12, 2018

More encouraging clemency news in Oklahoma in wake of 2016 sentencing reform ballot initiative

In this post a few month ago, I noted the important work of lawyers and law students in seeking commutations for dozens of Oklahoma inmates in the aftermath of the state's passage of Question 780, which  made nonviolent drug possession offenses and low-level property offenses misdemeanors instead of felonies.  A helpful reader alerted me to notable additional news on this front reported in this two local articles:

"Board recommends clemency for 22 drug possession offenders." Excerpts:

Nearly two dozen offenders were recommended for clemency Wednesday, the first wave of hopefuls for early release from lengthy felony prison sentences for simple drug possession two years after voters approved turning that crime into a misdemeanor. State Question 780 isn’t retroactive, so Project Commutation sought deserving prisoners who were considered ideal candidates to have their sentences drastically shortened in line with the sentencing reform measure.

Kris Steele, chairman of Oklahomans for Criminal Justice Reform, is spearheading the movement and a member of the board voting on the commutation requests. Steele said a governor’s staff member was present for Wednesday’s all-day proceedings and expressed to him that Gov. Mary Fallin is committed to signing off on the cases before the new year.

The commutations modify sentences but don’t erase convictions. Fallin has final authority to approve, deny or modify the Oklahoma Pardon and Parole Board’s recommendations within 90 days. “Gov. Fallin has been monitoring these cases closely and has taken an interest in trying to expedite the process of the governor’s approval, with the intent, as I understand it, to get these individuals home together with their families by the end of the year,” Steele said.

Twenty-three offenders had their cases for commutations heard Wednesday by the five-member pardon and parole board. Only one offender failed to garner a simple majority vote, with concerns about misconduct in prison perhaps influencing decisions. Oklahomans for Criminal Justice Reform launched Project Commutation in partnership with the Tulsa County Public Defender’s Office. Another eight applicants — the final ones in this commutation campaign — will be on the docket in December.

Starting July 1, 2017, State Question 780 made nonviolent drug possession offenses and low-level property offenses misdemeanors instead of felonies. The maximum sentence for simple drug possession now is one year in jail.  Sentences considered Wednesday were for between 10 years and 40 years long, with time served from five months to nearly three years.  “Twenty-two of 23 of the people that we helped with applications were mothers in prison serving decades had they not gone through this process,” said Corbin Brewster, Tulsa County chief public defender.  “The impact beyond the incarceration on their families is just enormous.”...

University of Tulsa law students helped to interview and whittle down a field of 700 applicants to 49 for the first stage of the commutation process. There are 31 who made it through to the second and final stage before the governor’s desk.

"Oklahoma group wants to build on success of commutation project for prisoners with drug possession charges." Excerpts:

During commutation hearings last week, offenders offered numerous reasons for why they were unable to succeed in alternative drug courts. Failing stuck them with lengthy prison sentences for possessing drugs.

Project Commutation has been an opportunity for a handful of convicts to earn another shot at a new life, advocating for clemency after State Question 780 turned simple drug possession into a misdemeanor rather than a felony.  But Oklahomans for Criminal Justice Reform wants more — the advocacy group intends to encourage lawmakers in the upcoming legislative session to apply the law retroactively.

“The Legislature will kick off in early February, and we are urging them to look at these sentences,” said Danielle Ezell, an OCJR board member, as she stood outside the correctional center where the commutation hearings took place Wednesday. “There’s over 1,000 folks in for simple drug possession that, if charged today, would not be incarcerated. And we would like to see those charges (retroactively addressed).”

Prior related posts:

November 12, 2018 in Clemency and Pardons, Drug Offense Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (0)

Sunday, November 11, 2018

How about a few clemency grants, Prez Trump, to really honor vets in need on Veterans Day?

Five years ago in this post, I noted that on Veterans Day I often find myself thinking about veterans who, after serving our country in the military and thereby supporting of our nation's commitment to liberty and freedom, return home and discover the hard way that these constitutional values are not always paramount in our modern criminal justice systems.  This 2015 report on "Veterans in Prison and Jail, 2011–12" found that in "2011–12, an estimated 181,500 veterans (8% of all inmates in state and federal prison and local jail excluding military-operated facilities) were serving time in correctional facilities."

In my Veterans Day 2013 post, I asked "How about a few clemency grants, Prez Obama, to really honor vets in need on Veterans Day?".  Five years later, especially after Prez Trump talked up possibly granting thousands of clemencies earlier this year, it seems fitting to pose the same question to Prez Obama's successor.  It also seems worthwhile to link to posts from the summer and thereafter highlights reports and comments by Prez Trump which generated lots of clemency optimism on which he has yet to deliver.

A few of many recent related posts: 

November 11, 2018 in Clemency and Pardons, Offender Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)