Wednesday, August 05, 2020

ACLU launches "The Redemption Campaign - Embracing Clemency" seeking release of 50,000 from state prisons via clemency

This new press release reports on a notable new national clemency initiative.  Here are the highlights and links:

The American Civil Liberties Union today launched The Redemption Campaign -- Embracing Clemency, a first of its kind nationwide effort to release 50,000 people from state prisons over the next five years by executing state-level campaigns that push governors to use their existing clemency powers in new and transformational ways.  The campaign will work with governors to confront mass incarceration and racial injustice by granting commutations to large groups of people who are unjustifiably imprisoned.

A poll released by the ACLU today finds widespread support for governors to use their clemency authority to correct past injustices.  Eighty percent of voters support ending or shortening the prison sentences of certain people in prison. This includes 80 percent of Democrats, 73 percent of Republicans, and 81 percent of independents. Among those who have personally been a victim of a crime, 82 percent support clemency.

The ACLU’s efforts will initially focus on urging governors to release: 

  • People who, if convicted under current laws, would serve a lesser sentence than what they are currently serving;
  • People convicted of drug distribution and possession offenses, regardless of underlying substance;
  • People incarcerated for technical probation or parole violations; and
  • Older incarcerated people.

In the coming months, the ACLU will launch state-level campaigns to ensure governors use their clemency powers to release people in their states.  This will include direct candidate engagement and voter education in upcoming gubernatorial races as well as mobilization of constituents in states across the nation....

The ACLU will kick off the campaign with a live town hall event featuring leading activists who have received clemency, Cyntoia Brown Long and Jason Hernandez.  The town hall will begin at 7:00 p.m. ET on August 5, 2020 and will discuss the need for our leaders to recognize the power of clemency in correcting the harms caused by the decades long war on drugs and tough-on-crime era.

Racial disparities in prison populations are rampant.  Black and Latinx people make up 57 percent of the state prison populations despite comprising just 29 percent of the overall population, and those disparities exist across various convictions and sentences.  Nearly 50 percent of people serving life sentences, and nearly 60 percent of people serving life without parole, are Black.

Freeing 50,000 people is readily achievable.  Of the 1.3 million people in state prisons, nearly 165,000 people are over the age of 55, and the number of older incarcerated people continues to grow.  Further, there are 280,000 people imprisoned for supervision violations as probation and parole have failed to divert people out of the system and have instead become primary drivers of the mass incarceration crisis.  It is clear from any metric that far too many people are being harmed by the brutal excesses of the criminal legal system — serving sentences that serve no purpose other than to punish and degrade.

The ACLU/BPI poll is here 

A blog post by Jason Hernandez, detailing his experience with clemency, is here

The Corrective Compassion trailer video is here

A blog by former prosecutor Preston Shipp on clemency is here

August 5, 2020 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, July 27, 2020

Looking for broader relief and reforms for elderly prisoners in wake of Roger Stone clemency

In recent posts here and here, I have stressed the fact that Prez Trump's explained his decision to commute Roger Stone 's prison sentence in part by stressing that he "is a 67-year-old man, with numerous medical conditions" who "would be put at serious medical risk in prison" and "has already suffered greatly."  Those sound sentencing considerations could and should help justify releasing from prison many more (lower-profile) elderly offenders these days, and the latest issue of the Federal Sentencing Reporter highlights the humanitarian and fiscal reasons why the aging of our prison populations was a pressing concern even well before anyone had heard of COVID-19.

I note these posts and points again because of this effective new Law360 piece headlined "After Stone Clemency, Activists Rally For Elder Parole."  I recommend the piece in full, and here are excerpts:

While Democrats and even some Republicans have questioned the ethics of Trump's decision [to commute Stone's prison term], others have highlighted how the same logic should be applied to thousands of other aging people, many of whom have actually served years and even decades of their sentences.... Roughly 288,800 people over age 50 currently live in state and federal prisons, and an estimated 70% of them have a current chronic illness or serious medical condition, according to the Alliance for Safety and Justice.

Older people make up the fastest-growing population within U.S. state and federal prisons, which have become hot spots for the viral contagion that is increasingly deadly the older its host.  A recent study found that people in prison are 550% more likely to get COVID-19 and 300% more likely to die from it.  So far, at least 625 imprisoned people have died from the virus.

Criminal justice reformers aiming to decrease the country's world-leading incarceration rate have advocated for years that aging people should be considered for early release or parole, considering the often inadequate health care available in correctional facilities as well as the fact that, generally speaking, the older you are, the less likely you are to commit another crime. Older people also cost more, per capita, to incarcerate.

Those calls have been amplified in the wake of widespread protests against racial injustice in the legal system. Last week, hundreds of New Yorkers marched in Manhattan to demand the state Legislature pass a package of bills, including one that would make people who've served at least 15 years eligible for parole at age 55. A related bill would grant parole to anyone eligible unless there is "a current and unreasonable risk" the person would break laws if released....

One of the easiest methods of releasing people, including the elderly, from dangerous prisons is the executive clemency power, which some governors have wielded more widely during the pandemic.  Illinois Gov. J.B. Pritzker, for example, has commuted more than 20 state prisoners' sentences since March.  In his first year in office, he commuted just three sentences.  In April, New Mexico Gov. Michelle Grisham commuted the sentences of 46 people convicted for low-level crimes who were within 30 days of being released; Oklahoma Gov. Kevin Stitt commuted 450 sentences that same month.

But while some governors have been actively exercising clemency powers, Trump's commutation for Stone marked his first since declaring a pandemic.  Stone reportedly has asthma and a history of respiratory conditions that makes him vulnerable to COVID-19; in late June, he posted social media videos saying "incarceration at a facility with COVID-19 during a pandemic is a deep state death sentence."...

Instead of granting more people clemency, Trump's response to the threat COVID-19 poses to people in prison has come via U.S. Department of Justice policies.  In March, his administration instructed the Bureau of Prisons to release more people to home detention and to consider the medical risks of holding people in pretrial detention amid rising prison COVID-19 infection counts.  According to a BOP spokesperson, 6,997 people have been placed on home confinement in response to the COVID-19 pandemic — approximately 4% of the federal prison system's 158,838-person population.

Another method of release during the pandemic has been "compassionate release," a sentence reduction typically reserved for the terminally ill or severely medically compromised.  The 2018 First Step Act, Trump's signature criminal justice achievement, made it easier to seek such releases, but only about 150 people were able to take advantage over the first 14 months of the law.  During the pandemic, that number has more than quadrupled as incarcerated people, judges and even prosecutors have mobilized to decrease prison populations, but the grand total of 776 is still a fraction of of the BOP's 158,838-person population — 20% of which is people over age 51, four months into a deadly pandemic....

Judges, for their part, have "definitely been more willing to grant compassionate release due to COVID-19," according to Amy Povah, a formerly incarcerated activist who runs Can-Do Clemency. But she added that some judges are still denying release, even in cases where people are particularly at risk of infection. "We're extremely concerned about medically compromised people who cannot socially distance in prison," she said. "They don't have the proper personal protective equipment.  Most of them, from what I understand, do not have hand sanitizer.  A lot of them are improvising by cutting up T-shirts because there's not enough masks."... Povah, who is advocating for clemency for Riojas and dozens of others, said the Stone commutation was a signal that the president is aware of the plight aging people in prison face amid the pandemic. "It gives me hope," she said.

I am not as hopeful as Amy Povah that Prez Trump is giving much thought to the plight aging people in prison face amid the pandemic.  That said, though I continue to want to (foolishly?) imagine that Prez Trump might recall the adulation he received after his clemency grant to Alice Marie Johnson and then seek some positive press by granting clemency to, say, lifer marijuana offenders assembled at the Life for Pot website.  

Wanting to be hopeful, I think about the possibility that the new bill from Senators Durbin and Grassley, the COVID-19 Safer Detention Act, could get incorporated into the latest COVID response legislation working its way through Congress.  This bill would give both BOP and federal judges broader discretion to send elderly prisoners home earlier; this authority makes sense even without an on-going pandemic and is even more important and urgent now.

A few of many prior related posts:

July 27, 2020 in Clemency and Pardons, Impact of the coronavirus on criminal justice, Offender Characteristics, Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Wednesday, July 22, 2020

A midsummer reminder of all persons that Prez Trump has granted clemency to during the COVID-19 pandemic

Drum-roll please....:

Roger Stone

Sadly, that one name amounts to the full list of persons to receive a clemency grant from Prez Trump during the period in which, as detailed on this BOP page, nearly 100 federal prisoners have died and nearly 10,000 have been infected by COVID-19. 

I am not really surprised that Prez Trump has entirely failed to deliver on his promise back in March to look at freeing elderly "totally nonviolent" offenders from federal prisons amid the  pandemic.  But I figure now is as good a time as any to highlight again that Prez Trump could and should, via just a stroke of a pen, bring clemency relief to the many, many federal prisoners who, like Roger Stone, are older, medically vulnerable and present no clear risk to public safety. 

Because Prez Trump seems now eager to do some things differently in response to his sagging poll numbers, perhaps he should consider focusing in this realm on something a lot more popular than he is.  Specifically, I am talking about marijuana, while imagining the positive press Prez Trump would likely garner by granting clemency to the lifer marijuana offenders assembled at the Life for Pot website.  Prez Trump seems to like the adulation he received after his clemency grant to Alice Marie Johnson two years ago, and I am suggesting he might really get some political juice if he granted clemency to a number of older marijuana offenders.  (Notably, a number of voters in a number of swing states like Arizona and Florida and Michigan seemingly care a lot about marijuana issues.)

I fear that Prez Trump is unlikely to improve his clemency record anytime soon.  But that will not keep me from using this setting to urge him to see the value in trying to do so.

Prior related posts:

July 22, 2020 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Sunday, July 12, 2020

Tongues wagging about Prez Trump using his clemency pen to grant compassionate release to Roger Stone

Unsurprisingly, lots and lots of folks have lots and lots to say about Prez Trump's decision late Friday to commute the prison sentence of Roger Stone (basics covered here).  I will start this post with two quick points and then round up below some of the other copious commentary already making the rounds.

1. Now do more, Mr. Prez: I am pleased Prez Trump has finally delivered, at least for an old friend with dirt on him, on his promise back in March to look at freeing elderly "totally nonviolent" offenders from federal prisons amid the COVID pandemic.  I am being cheeky here, of course, but meaning to make a serious point: the Stone commutation bothers me far less than Prez Trump's failure to use his clemency powers far more — both before and especially since the coronavirus crisis — to release the many federal prisoners who, like Stone, are older, medically vulnerable and present no clear risk to public safety. 

Back in February 2020, Prez Trump coupled some high-profile clemency grants with commutations to three women of color with no political connections (details here).  I sure wish Prez Trump and key advisers — Kushner?  Kushner?  Kushner? — had tried to couple the Stone commutation with clemency relief for just a few other older federal prisoners whose incarceration may prove deadly and serves little public safety purpose.  But it is not too late to make up for lost time: now do more comparable commutations, Mr. Prez!

2. Now do even more, federal judges: As the title of this post is meant to suggest, the Stone clemency strikes me as another form of compassionate release.  The official statement announcing the commutation made much of an "improper investigation," of "overzealous prosecutors" and of "serious questions about the jury" while also stressing that "Mr. Stone would be put at serious medical risk in prison" and that "Roger Stone has already suffered greatly."  These comments suggest Prez Trump concluded, in the words of 18 USC § 3582(c)(1)(A), that there were "extraordinary and compelling reasons warrant[ing] a reduction" in Stone's prison sentence and that such a reduction was consistent with 3553(a)'s purposes of punishment. 

Thanks to the FIRST STEP Act, judges now have authority to grant comparable sentence reductions, and district judges have granted hundreds of compassionate release motions in response to the COVID crisis.  But thousands of compassionate release requests have been denied, many coming from prisoners who are likely even more vulnerable and even more sympathetic than Stone.  In more than a few cases, I have seen judges indicate considerable sympathy for the plight of a vulnerable older inmate, only to refuse release because the movant had not yet served enough time in prison.  But Roger Stone did not serve any prison time, and yet Prez Trump was still moved by his "medical risk" and by the fact he had "already suffered greatly" even before serving a single day in federal prison.  So this commutation should also be a message to federal judges: do more comparable compassionate releases, even if vulnerable offenders have served little or even no prison time.

I could go on, but rather than continue my tongue wagging about the Stone commutation, I will conclude here with a round-up of just a few other notable takes:

From Robert Mueller, "Roger Stone remains a convicted felon, and rightly so."

From Politico, "'Historic corruption': 2 Republican senators denounce Trump's commutation of Stone"

From Brett Tollman and Arthur Rizer, "Romney wrong to attack Trump commutation of Roger Stone prison sentence"

From Jack Goldsmith and Matt Gluck, "Trump’s Aberrant Pardons and Commutations"

From Jonathan Turley, "Why this Roger Stone commutation is not as controversial as some think"

From Jeffrey Tobin, "The Roger Stone Case Shows Why Trump Is Worse Than Nixon"

July 12, 2020 in Celebrity sentencings, Clemency and Pardons, Sentences Reconsidered, White-collar sentencing, Who Sentences | Permalink | Comments (3)

Friday, July 10, 2020

As was widely expected, Prez Trump commutes Roger Stone's sentence just before he was due to report to federal prison

As detailed via this official statement from the White House, this evening "President Donald J. Trump signed an Executive Grant of Clemency commuting the unjust sentence of Roger Stone, Jr."  Here is more from the statement:

Roger Stone is a victim of the Russia Hoax that the Left and its allies in the media perpetuated for years in an attempt to undermine the Trump Presidency.... As it became clear that these witch hunts would never bear fruit, the Special Counsel’s Office resorted to process-based charges leveled at high-profile people in an attempt to manufacture the false impression of criminality lurking below the surface.  These charges were the product of recklessness borne of frustration and malice.  This is why the out-of-control Mueller prosecutors, desperate for splashy headlines to compensate for a failed investigation, set their sights on Mr. Stone.  Roger Stone is well known for his nearly 50 years of work as a consultant for high-profile Republican politicians, including President Ronald Reagan, Senator Bob Dole, and many others. He is also well known for his outspoken support for President Donald J. Trump and opposition to Hillary Clinton.

Mr. Stone was charged by the same prosecutors from the Mueller Investigation tasked with finding evidence of collusion with Russia.  Because no such evidence exists, however, they could not charge him for any collusion-related crime. Instead, they charged him for his conduct during their investigation. The simple fact is that if the Special Counsel had not been pursuing an absolutely baseless investigation, Mr. Stone would not be facing time in prison.

In addition to charging Mr. Stone with alleged crimes arising solely from their own improper investigation, the Mueller prosecutors also took pains to make a public and shameful spectacle of his arrest....

Not only was Mr. Stone charged by overzealous prosecutors pursing a case that never should have existed, and arrested in an operation that never should have been approved, but there were also serious questions about the jury in the case.  The forewoman of his jury, for example, concealed the fact that she is a member of the so-called liberal “resistance” to the Trump Presidency.  In now-deleted tweets, this activist-juror vividly and openly attacked President Trump and his supporters.

Mr. Stone would be put at serious medical risk in prison.  He has appealed his conviction and is seeking a new trial. He maintains his innocence and has stated that he expects to be fully exonerated by the justice system.  Mr. Stone, like every American, deserves a fair trial and every opportunity to vindicate himself before the courts.  The President does not wish to interfere with his efforts to do so.  At this time, however, and particularly in light of the egregious facts and circumstances surrounding his unfair prosecution, arrest, and trial, the President has determined to commute his sentence. Roger Stone has already suffered greatly.  He was treated very unfairly, as were many others in this case. Roger Stone is now a free man!

I am disinclined to comment at length on this use of the clemency power or this very Trumpian statement explaining it.  But I must note that, because Prez Trump only commuted the sentence and did not pardon the Stone's felony convictions, it is not really accurate to say "Roger Stone is now a free man!"  There are thousands of laws that restrict the rights and opportunities of persons with a felony conviction and so Stone is, for example, not free to possess a firearm.

Prior related posts:

July 10, 2020 in Celebrity sentencings, Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

Saturday, June 27, 2020

Is Prez Trump trying to convince himself to have the guts to pardon Roger Stone?

The question in the title of this post was my first thought upon seeing this news piece headlined "Trump tweet fuels speculation of Stone pardon: The tweet came after a judge ruled Stone would report to prison in July."  Here are the details:

President Donald Trump further fueled speculation Saturday morning that he plans to pardon longtime friend and adviser Roger Stone.

After a judge on Friday gave Stone a surrender date of July 14 -- he had sought to report to the Georgia prison on Sept. 3 -- Trump tweeted a story about a petition for the president to pardon Stone as he faces a sentence of 40 months for lying to Congress and misleading investigators on several key elements of their probe into Russian meddling in the 2016 election.

On Saturday, Trump retweeted a message saying "IT’S TIME TO #PardonRogerStone"

This is not the first time a Trump tweet has raised the prospect of a Stone pardon.  Earlier this month, on June 4, the president tweeted that "Roger was a victim of a corrupt and illegal Witch Hunt, one which will go down as the greatest political crime in history.  He can sleep well at night!"

With Stone now seemingly having a hard prison report date in three weeks, Prez Trump is going to have to make a clemency decision sooner rather than later. If Prez Trump is really eager to keep Stone out of prison, I hope he might at least looks to include Stone with some additional meritorious clemency grants as he did back in February when commuted the sentences of sentences of three women along with Rod Blagojevich.

Prior related posts:

June 27, 2020 in Celebrity sentencings, Clemency and Pardons, Sentences Reconsidered, White-collar sentencing, Who Sentences | Permalink | Comments (0)

Friday, June 19, 2020

Terrific coverage of clemency in new issue of University of St. Thomas Law Journal

The latest issue of the University of St. Thomas Law Journal has a great collection of articles under the heading "Clemency: A Constitutional Power Moves into the Future."  Here are the titles, authors and links for all the pieces:

Memo to the President: Two Steps to Fix the Clemency Crisis by Mark Osler

Who Is My Brother’s Keeper? by Rudy Martinez

Clemency Must Play a Pivotal Role in Reversing the Damage Caused by the "Tough on Crime Era" by Mark V. Holden

Clemency, Pardons, and Reform: When People Released Return to Prison by Jessica Jackson

The Future of Presidential Clemency Decision-Making by Paul J. Larkin, Jr.

June 19, 2020 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, June 04, 2020

Donald Trump hinting that he will use his clemency powers on behalf of Roger Stone

Last week, as reported here, "Bureau of Prisons spokeswoman Sue Allison told The Associated Press that [Roger] Stone is supposed to surrender to the Bureau of Prisons by June 30" to begin serving his 40-month federal prison sentence.  But, as this new article highlights, a tweet by President Trump this morning suggest that the Prez plans to make sure Stone never has to sleep at a prison facility:

President Donald Trump on Thursday promised his longtime informal political adviser Roger Stone would not serve time in prison, revealing the convicted Republican provocateur “can sleep well at night” and reprising his fiery criticisms of former special counsel Robert Mueller’s probe.

The pledge from the president came on Twitter, after Charlie Kirk, the founder of the conservative group Turning Point USA, wrote Tuesday that Stone “will serve more time in prison than 99% of these rioters destroying America” — referring to the ongoing nationwide protests over the killing of George Floyd, a 46-year-old black man, by a Minneapolis police officer.  “This isn’t justice,” Kirk added. “RT for a full pardon of Roger Stone!”

Trump went on to share that tweet Thursday morning, writing in his own accompanying message: “No.  Roger was a victim of a corrupt and illegal Witch Hunt, one which will go down as the greatest political crime in history.  He can sleep well at night!”

The president’s social media post represents his latest intervention in Stone’s case and comes after Trump and Attorney General William Barr were widely rebuked by congressional Democrats and career Justice Department officials for involving themselves in the federal law enforcement matter just a few months ago.

Federal prosecutors had urged in February that Stone be sent to prison for roughly seven to nine years for impeding congressional and FBI investigations into connections between the Russian government and Trump’s 2016 campaign.

But after Trump blasted the prosecutors’ sentencing recommendation in a tweet as a “horrible and very unfair situation,” the Justice Department submitted a revised filing that offered no specific term for Stone’s sentence and stated that the prosecutors’ initial proposal “could be considered excessive and unwarranted.” The four attorneys who shepherded Stone’s prosecution proceeded either to resign or notify the court that they were stepping off the case.

I have long been assuming (as some prior posts below reveal) that Prez Trump will use his clemency pen to keep Stone from serving prison time.  But I have also long been wondering what form of clemency Prez Trump might use.  He could provide Stone with a full pardon, of course, which would wipe away the conviction and all its consequences.  But he also could just commute his prison sentence (which, folks may recall, is what George W. Bush did for Scooter Libby).  Or, perhaps least controversially, Prez Trump could simply use his clemency power to order Sone's prison sentence to be served through home confinement (which, folks should realize, is comparable to what's happening for a number of federal prisoners in response to COVID-19 concerns).

Prior related posts:

June 4, 2020 in Celebrity sentencings, Clemency and Pardons, Criminal justice in the Trump Administration, Sentences Reconsidered, White-collar sentencing, Who Sentences | Permalink | Comments (1)

Saturday, May 16, 2020

Two more great reports from NYU Center reviewing state clemency history in New York and Connecticut

As noted prior posts here and here, the NYU School of Law's Center on the Administration of Criminal Law has on-going project focused on state clemency histories with reports on particular state experiences.  The first two of these reports looked at Pennsylvania and Massachusetts, and now I see the project has produced new reports on developments in New York and Connecticut.  Here are titles, links and the start of the reports:

"Taking Stock of Clemency in the Empire State: A Century in Review"

Clemency in New York has long been declining, while the state’s prison population has grown dramatically. Between 1914 and 1924, New York averaged roughly 70 commutations per year, equal to the total number granted between 1990 and 2019. In 1928, Governor Al Smith granted 66 commutations from a total prison population of 7,819. Had commutations been granted at an equivalent rate in 2019, there would have been approximately 373; in actuality, there were two.

"Searching for Clemency in the Constitution State"

Executive clemency was an important release mechanism in Connecticut until the 1990s, when commutation grants stopped completely.  The Board of Pardons granted 36 commutations between 1991 and 1994, then granted none in the following nine years.  The commutation process ceased operating entirely in 2019: the Board stopped accepting commutation applications pending revised guidelines and instructions, which the Board has yet to release.  As of May 2020, there is no way for someone incarcerated in Connecticut to apply for a commutation.

May 16, 2020 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Saturday, May 09, 2020

"Decentralizing Clemency: Decentralizing the Commutation Power to Invigorate Sentence Reduction"

The title of this post is the title of this new paper recently posted to SSRN and authored by Riley Kane, a recent graduate The Ohio State University Moritz College of Law.  This paper is part of a student paper series supported by the Drug Enforcement and Policy Center.  Most of the papers in this series have come from the marijuana seminar I teach, and I blog about these papers in posts like this over at my Marijuana Law, Policy & Reform blog.  But this paper emerged from my sentencing class last fall, and the topic has only become more timely and important in recent months.  Here is this paper's abstract:

Reforming sentencing and reducing prison overcrowding requires a focus on the future to ensure just punishments and the past to re-evaluate harsh punishments from the ‘tough on crime’ era.  This paper focuses on ending those past wrongs.  Executive clemency is sometimes discussed as a method for addressing harsh punishments, but there are only so many governors and Presidents.  This paper proposes amending the Ohio Constitution to grant the elected county prosecutors a commutation power subject to veto by the governor.  This would decentralize clemency and create a new, potentially system-reshaping tool to address harsh sentences and empower reform-minded prosecutors.  The paper additionally discusses other methods to expand clemency and favors adopting the novel constitutional amendment in addition to other reforms for maximum impact.

May 9, 2020 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Saturday, April 18, 2020

Will Prez Trump use his clemency pen to "rescue" his pal Roger Stone from federal prison?

As this Hill piece details, Prez Trump has used his Twitter fingers to call out the last bad legal development for his long-time pal Roger Stone:

President Trump late Friday denounced a judge's decision to deny Roger Stone a new trial after lawyers for the longtime GOP operative and former Trump campaign adviser raised concerns about one juror's political leanings.

“This is a disgraceful situation!” Trump wrote on Twitter, sharing a tweet blasting the decision and calling for a pardon for Stone.

Stone was found guilty in 2019 of obstructing a congressional probe into Russia's election interference and of witness tampering. He was sentenced in February to more than three years in prison but has vociferously maintained his innocence.

His lawyers had asked for a new trial after raising concerns about one juror's political leanings, prompting Trump to allege that the trial had been rigged against his former campaign adviser.  U.S. District Judge Amy Berman Jackson, an Obama appointee, ruled this week that Stone’s lawyers did not convincingly argue that any bias by the juror in question influenced the verdict....

In his first television interview since the lifting of a 16-month gag order, Stone told Fox News’s Tucker Carlson on Friday night that his prison sentence amounts to a “death sentence.”

“So at this point, the judge has ordered me to surrender in two weeks and at 67 years old with some underlying health problems, including a history of asthma, I believe with the coronavirus it is essentially a death sentence,” he said, adding that he is hoping for a pardon from Trump.

After Roger Stone's sentencing two months ago, I predicted that Prez Trump would be inclined to hold back on any possible clemency action at least until Stone's new trial motion was resolved and Stone faced the prospect of heading to prison.  That time would seem to be now, and so I wonder if Prez Trump may now be inclined to follow-up on his tweet by taking out his clemency pen. 

It bears recalling that Prez Trump last month, as noted in this post, said his administration was "looking at" using executive authority to free elderly, nonviolent offenders from federal prisons in response to the coronavirus pandemic.  From a press report on the comment:  "We have been asked about that and we're going to take a look at it.  It's a bit of a problem," Trump said,  "We're talking about totally nonviolent prisoners, we are actually looking at that, yes."

Notably, Roger Stone would certainly qualify as a elderly, nonviolent offender, even a "totally nonviolent prisoner."  I am now wondering if Prez Trump might be thinking now that he could deliver on his prior talk by granting clemency to a number of federal prisoners with Roger Stone's name just happening to get tucked into the list. 

Prior related posts:

April 18, 2020 in Celebrity sentencings, Clemency and Pardons, Impact of the coronavirus on criminal justice, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, April 14, 2020

"Governors Must Use Clemency Powers to Slow the Pandemic"

The title of this post is the title of this new memorandum from Courtney Oliva and Ben Notterman. Here is how it gets started:

Nearly 3 in 4 Americans have now been ordered to stay home and remain indoors, while many states have ordered non-essential businesses to shutter.  These steps may seem drastic, but they are being taken in order to safeguard public health during the COVID-19 pandemic.  Government actors who are truly serious about protecting people must take comprehensive and coordinated action to combat the spread of the virus.  This means acknowledging and explicitly considering the health risks of vulnerable populations — including people serving sentences in state prisons — when crafting and implementing gubernatorial responses to reduce the risk of transmission.

Jails and prisons are unable to comply with CDC hygiene standards and are accelerating the pandemic.  People who are incarcerated are more likely to have chronic health conditions than the general public.  Likewise, the percentage of people age 55 or older in state prisons has more than tripled between 2000 and 2016.  Incarceration also has negative “knock on” effects.  Incarcerated people tend to age faster than the general population, and their physiological age outpaces their chronological age by anywhere from 7 to 10 years.

In some states, local government actors have responded to the growing threat of COVID-19 by taking steps to reduce jail populations and to limit the number of people being admitted to jails.  Police departments are also adjusting by issuing citation and misdemeanor summons for certain offenses.  But while local government officials have begun tackling the risk that jail populations pose, little movement has occurred to reduce prison populations and the attendant risk of transmission of COVID-19 to people serving sentences in prisons, prison employees, their families, and their communities.

If states are serious about preventing the spread of COVID-19, they must take immediate action to reduce the number of people in state prisons. While every state’s mechanisms will differ according to constitutional and statutory provisions, there are a number of actions that state actors — including governors — can take.

See Appendix for a state-by-state overview of these legal mechanisms.

April 14, 2020 in Clemency and Pardons, Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Monday, April 06, 2020

Brennan Center urges all Governors to use executive authority to "release vulnerable people who pose no risk to public safety from incarceration"

The title of this post would make plenty of sense even in a world without COVID, as vulnerable people who pose no risk to public safety really ought not be kept behind bars even in the best of times.  But, of course, right now we live in a world with COVID, and that has prompted the Brennan Center to produce this new seven-page letter, addressed to "the Honorable Governors of the fifty states," which includes these passages at the outset:

However, the almost 2 million people behind bars at the county and state level, plus the thousands of employees who work in correctional institutions, face an even greater risk of illness and death than the general public.  We write today to urge you to use your full authority as Governors to release as many people as possible from incarceration, provided they do not pose serious public safety threats, for the duration of the pandemic.  This effort should focus on people who are especially vulnerable to infection.  Specifically, we recommend you take the following steps, which we explain in depth below:

• Make full use of your clemency authority to commute the sentences of vulnerable people to time served, allowing their immediate release, or fashion other appropriate relief;

• Expand your States’ “good time credit” or equivalent programs to reduce overall incarceration;

• Work with state prosecutors to keep people who have been convicted of crimes, but not yet sentenced, out of prison for the duration of this health crisis; and

• Take steps to limit the damaging impact of criminal justice debt, including but not limited to court fees and fines.

The letter includes this partial accounting of some steps that have already been taken in some jurisdictions:

Already, some state leaders have acted to prevent the spread of Covid-19 in their correctional systems. For example, in Illinois, Governor J.B. Pritzker issued an executive order stopping the Illinois Department of Corrections from admitting new people into prison.  On March 22, Governor Jared Polis of Colorado signed an executive order ensuring detention centers reduce the number of people meeting in groups in “any confined indoor or outdoor space,” such as housing unit common areas.  In New York, Governor Andrew Cuomo issued an order on March 27th to release approximately 1,100 people from prisons and jails, specifically non-serious parole violators.  Iowa’s Department of Corrections is expediting the release of about 700 incarcerated people who have been determined eligible by the Iowa Board of Parole in addition to ensuring that those released have a safe place to stay.  And California is granting early release to 3,500 incarcerated individuals in an attempt to reduce overcrowding in state prisons during the COVID-19 pandemic.  The accelerated prison discharges apply to those who were set to be released within the next 60 days.

April 6, 2020 in Clemency and Pardons, Impact of the coronavirus on criminal justice, Who Sentences | Permalink | Comments (0)

Saturday, March 28, 2020

Just a few governors starting to (barely) address looming prison and jail COVID crisis

I am pleased to see more and more advocates and groups in more and more states making more and more urgent pleas to governors and other public officials to address the looming public health problems posed by modern mass incarceration.  For example, here are reports of recent decarceration pitches in Alabama, Connecticut, Nevada, Oklahoma, Tennessee, Texas.  In this vein, I am hopeful that Ohio Governor Mike DeWine, who has been an effective and inspiring leader during these trying times, might soon respond to this thoughtful plea from a coalition of Ohio public policy groups to take aggressive steps to reduce prison and jail populations in the Buckeye State to advance our public health interests.

With this new report from Georgia of a 49-year-old inmate dying from the coronavirus and many other state prisoners and staffers testing positive, it seems to be only a matter of time before every state chief executive comes to understand the lurking public health problems posed by the combination of mass incarceration and COVID-19.  Late yesterday, I am glad to report, a couple of governors acted (in relatively small ways) to address these issues:

California: "Gavin Newsom commutes prison sentences for 21 California inmates, pardons 5 more"

New York: "Cuomo orders 1,100 parole violators released from jails over coronavirus concerns"

Though we should always welcome and praise governors who do something rather than nothing on these issues, we are going to need a lot more something from a lot more governors to head off a lot more public health problems.

A few of many prior related posts:

March 28, 2020 in Clemency and Pardons, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Friday, March 27, 2020

Hundreds of former DOJ officials and federal judges urge Prez Trump to commute sentences and create emergency advisory group to respond to COVID-19 challenges

The folks at Fair and Just Prosecution has this new press release discussing a notable new plea for more action from Prez Trump to address COVID-19 challenges in our nation's criminal justice system.  From the start of the press release (with bold in the original):

Today 405 former DOJ leaders, attorneys, and federal judges — including 35 former United States Attorneys who served under both Republican and Democratic Administrations —issued an open letter to President Donald Trump asking him to take immediate action to reduce the population in federal detention and correctional centers to prevent the catastrophic outbreak of COVID-19 in these facilities.  In the letter, they urge the President to support efforts to mitigate the spread of COVID-19 among those held in federal custody — as well as the many individuals who work in these facilities and return to their community at the end of each shift — by:

  • Using his executive power to sensibly commute sentences for the elderly, those who are medically vulnerable and individuals who have already served most of their sentence, provided that they do not pose a serious risk to public safety;
  • Encouraging and establishing policies to promote the limitation of new custody to only individuals who present a serious and demonstrable risk to public safety;
  • Creating a bipartisan emergency advisory group to quickly guide this process and ensure the most vulnerable are protected;
  • Urging the Bureau of Prisons to take measures to ensure correctional staff receive regular testing as well as health care support, including full pay if they become sick with the virus; and
  • Supporting emergency funding for prevention, treatment, reentry support, and incentivizing state and local governments to address the public health concerns in their own jails and prisons.

I like all these recommendations, and I especially see value in creating some kind of special working group to focus on a range of federal and national criminal justice administration issue.

UPDATE: I have also now seen this additional letter that dozens of leading public health experts has sent to President Trump.  Here is this letter's chief clemency recommendations (with bold in the original):

First, we ask that you commute sentences for all elderly people.  While the SARS-CoV-2 virus infects people of all ages, the World Health Organization (WHO) is clear that older people are at a higher risk of getting severe COVID-19 disease and dying.  In fact, the risk of severe disease gradually increases with age starting from around 40 years.  Also, older people who are released from prison pose little risk to public safety.

Second, we are also asking that you commute sentences for the medically vulnerable population including persons suffering from cardiovascular disease, diabetes, chronic respiratory disease, or cancer.  In addition to older people, WHO has identified persons with these underlying medical conditions to be at greater risk for contracting severe COVID-19.  While there is little known yet about the effects of COVID-19 on pregnant women, the CDC explains that with viruses from the same family as COVID-19, and other viral respiratory infections such as influenza, pregnant women have had a higher risk of developing severe illness.

Third, we are asking that you commute sentences for all persons who have one year or less remaining on their sentence.  This measure will limit overcrowding that can lead to further spread of COVID-19 and free up beds that will be needed to care for the sick who should be housed separate from others.

March 27, 2020 in Clemency and Pardons, Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

"Four Things Every Prison System Must Do Today"

The title of this post is the headline of this lengthy new Slate piece authored by Margo Schlanger and Sonja Starr. I highly recommend this piece in full and here are excerpts:

As COVID-19 spreads rapidly throughout the United States, it has begun to enter our prisons and jails, which confine more than 2 million people. We are on the verge of catastrophe — for incarcerated persons, staff, and their families, obviously, but also for the general public. Some officials have been sounding the alarm, and we’re beginning to see some action — but not nearly enough, and not fast enough....

Per capita, the incarcerated population in the United States is several times larger than that of nearly every other country in the world. That renders us uniquely vulnerable to this disease vector.  It is nearly inevitable that this virus will hit our prisons and jails hard and soon.  Indeed, it’s surely already in more of them than we know.  The only question is how bad the damage will be.  We can mitigate it only with swift and aggressive action.

The only way to really limit this catastrophe is by quickly reducing the number of people incarcerated. If we can get everyone out who doesn’t have to be there, it will also produce some critical space that institutions will need to enable social distancing and to isolate the sick, and might even make it possible to operate with reduced staff.  And although some are already infected, there will be a smaller number if we act today than there will be if we act tomorrow, or next month. Moreover, we can minimize the risk those already infected pose to the community by ordering that those released stay at home for two weeks or more.

Governors of many states have the authority, under emergency powers and/or their ordinary clemency powers, to order quite sweeping steps. Courts can implement others  (here’s a catalog of state Supreme Court orders so far, and also of litigation seeking emergency prisoner releases), and local prosecutors can be crucial actors as well.  There are several key steps that states (and the federal system) should take:

1. Delay new sentences, except as absolutely necessary. Sentence start dates, sentencing hearings, plea hearings, and trial dates can be deferred until after the emergency....

2. Sharply limit pretrial detention....

3. Commute all sentences due to end within a year....

4. Release older and chronically ill individuals....

Some of the steps proposed here might seem radical in ordinary times. But these are extraordinary times. Throughout the country, governors and other public officials are taking sweeping, dramatic actions to protect the public from COVID-19. Ordinary Americans are upending our lives in ways we could not have imagined just a week or two ago. If we don’t think at the same scale about the brewing crisis in prisons and jails, we will all suffer the consequences.

March 27, 2020 in Clemency and Pardons, Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Tuesday, March 24, 2020

Broad coalition urges Prez Trump to commute the federal sentences in response to coronavirus crisis

A whole bunch of public policy and civil rights groups have just sent this short letter urging Prez Trump to utilize his clemency power to commute the federal sentences of those "who could benefit from compassionate release, and other populations that are exceptionally vulnerable to coronavirus."  The letter details the COVID-19 emergency emerging in prisons and jails and closes with this ask:

We call upon you to commute the federal sentences of individuals who could benefit from compassionate release, including those who: 

  • Are older and elderly; 
  • Have a terminal medical condition; 
  • Have a debilitated medical condition; 
  • Suffer from a chronic medical condition; or 
  • Have suffered a death of a family member who is a primary caregiver to a child of the person incarcerated.

In addition to commuting the federal sentences of individuals who could benefit from compassionate release, we call upon you to use your clemency power to release those incarcerated at the federal level who are elderly and/or particularly vulnerable to serious illness or death from COVID-19 due to underlying health conditions as identified by the Centers for Disease Control and Prevention, including: 

  • Blood disorders; 
  • Chronic kidney disease; 
  • Chronic liver disease; 
  • Compromised immune system (immunosuppression); 
  • Current or recent pregnancy; 
  • Endocrine disorders; 
  • Metabolic disorders; 
  • Heart disease; 
  • Lung disease; 
  • Neurological and neurologic and neurodevelopment conditions; and 
  • Hypertension.

As we work to combat the spread of the coronavirus pandemic, it is essential that we not forget about the millions of Americans currently incarcerated and working in jails, prisons and detention centers, and that we take action to protect those who are the most vulnerable to COVID-19. Again, we ask you to commute the sentences for those populations at the federal level most vulnerable to coronavirus.

UPDATE: It is worth noting here that this call to Prez Trump to use his clemency powers to move people out of federal prisons could and should also be directed, on similar terms, to Governors across the nation.  Helpfully, I just got word from Margy Love that the Collateral Consequences Resource Center has a new resource on state clemency posers. This CCRC post provides the details and other helpful links:

At this time of pandemic, we have been following the discussions of how jail, prison, and immigration detention conditions are highly concerning, including the very useful collection of links provided by Professor Doug Berman, the demands published by advocacy organizations, and the collection of policy responses by the Prison Policy Institute.  We agree that every available legal mechanism must be enlisted to secure the release of prisoners and detainees who pose little or no threat to public safety, and whose health and safety are themselves severely threatened by their enforced captivity.  This includes the great constitutional powers given to governors and pardon boards.  We therefore commend our newly revised pardon resources to advocates and policy makers to support their advocacy and action.

While our pardon-related research focuses primarily on how the power is used to restore rights and status to those who are no longer in prison, much of our information about how the pardon process is structured and operates is relevant to how the power might be used (or is already being used) to commute prison sentences during the pandemic.  Our revised pardon resources are part of a major revision of the CCRC Restoration of Rights Project, not only to make sure its information is current in light of the many recent changes in the law, but also reorganizing and revising its resources for clarity and easier access.  In the process, we have updated and revamped our state-by-state material on how the pardon process operates in each jurisdiction, noting that the process has become more regular and productive in a few states in the past several years.

Our 50-state pardon comparison is organized into four sections:

  • Section 1 provides a chart comparing pardon policy and practice across jurisdictions.
  • Section 2 lists jurisdictions by frequency and regularity of their pardon grants.
  • Section 3 sorts jurisdictions by how the administration of the power is structured.
  • Section 4 provides state-by-state summaries of pardon policy and practice, with links to more detailed analysis and legal citations.

March 24, 2020 in Clemency and Pardons, Criminal justice in the Trump Administration, Impact of the coronavirus on criminal justice, Offender Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, March 23, 2020

Colorado death penalty repeal official, and Gov commutes three capital sentences as he signs repeal

As reported in this local article, "Gov. Jared Polis signed a bill Monday making Colorado the 22nd state to abolish the death penalty, and he also commuted the sentences of the three killers on death row."  Here is more:

They will instead serve life sentences without the possibility of parole, Polis said.  “The commutations of these despicable and guilty individuals are consistent with the abolition of the death penalty in the State of Colorado, and consistent with the recognition that the death penalty cannot be, and never has been, administered equitably in the State of Colorado,” he said....

The historic end of executions in Colorado comes after about 36 hours of debate at the legislature this year and a push by Republicans to instead put the issue on the 2020 ballot. Proponents called the death penalty “cruel and unusual punishment.”  They said its use in cases is uneven, and the litigation surrounding it is not only costly to taxpayers but forces families to relive their loved ones’ killings. Only one person has been executed in the state since 1976....

Arapahoe District Attorney George Brauchler, however, called the signing a win for criminals.  “The decision to pass and sign the death penalty repeal bill should bring a smile to the faces of future serial killers, terrorists, cop killers, mass murderers, child killers, and those in prison who decide to kill again,” he wrote in a statement.  “We have also reduced the protections for witnesses to crime by lowering the bar for their murders.  Colorado’s pro-offender legislature and its current governor have signaled that those lives are worth more protection than those of their victims.

The newly signed bill specifies that the death penalty can’t be used in cases for crimes committed on or after July 1, and currently, at least one defendant in Adams County is facing trial in a case that could result in the death penalty.  Dreion Dearing is accused of killing Adams County Deputy Heath Gumm.  “For all intents and purposes, the death penalty in Colorado is now a thing of the past,” said Jim Castle, the attorney for Sir Mario Owens, one of three men on death row.

Robert Ray and Owens were convicted of fatally shooting Gregory Vann, 20, at a 2004 party in Lowry Park. Javad Marshall-Fields was wounded in the shooting, and he and his fiancee Vivian Wolfe were planning to testify about the shooting before Ray ordered that they be killed. Owens was convicted for their 2005 murders in Aurora. They were 22 years old.

The other man on death row was Nathan Dunlap who was convicted in 1993 of fatally shooting employees who were closing for the night at Chuck E. Cheese in Aurora. He killed Ben Grant, 17; Sylvia Crowell, 19; Colleen O’Connor, 17; and Margaret Kohlbert, 50.  Bobby Stephens survived.  Dunlap received a temporary reprieve from former Gov. John Hickenlooper in 2013.  The three black men went to the same high school in Denver at different times....

The issue of the repeal doesn’t follow strict party lines.  A handful of Democrats opposed the measure while a few Republicans backed it. “As the death penalty has been a failure in several aspects, I felt compelled to fight for its repeal,” said Colorado Sen. Jack Tate, a Centennial Republican and sponsor of the Colorado bill.  “I applaud the governor’s leadership in signing this bill and moving Colorado towards a system that produces justice for all.”...

Sen. Rhonda Fields, an Aurora Democrat, joined opponents against the bill because of the killing of her son, Marshall-Fields, and his fiancée Wolfe — their killers were two of three men on death row in the state. Similarly, Aurora Democrat Rep. Tom Sullivan fought against the bill.  His son, Alex, was killed in the Aurora theater shooting.

Relatedly, the one on-going capital trial in Colorado, which moved forward last week, has now wisely been put on hold due to COVID-19 concern.

Prior recent related posts:

March 23, 2020 in Clemency and Pardons, Death Penalty Reforms, Who Sentences | Permalink | Comments (1)

With lives at stake, when will we start to see mass clemency and compassionate release?

I have been pleased to see some considerable action at the local level to try to reduce the jail population amidst the coronavirus crisis (most notably now via state Supreme Court mandate in New Jersey).  But, because everyone should realize that it is essential for the health of prison staff and their families, as well as for prisoners, for there to be smart efforts to reduce prison populations amidst this global pandemic, I am troubled that we are yet to see any mass clemency and compassionate release activity at either the federal or state level.  Because our nation's criminal justice system is defined by mass incarceration, the current public health crisis demands mass clemency and compassionate release.

Of course, if releasing elderly and unhealthy at-risk prisoners posed a major public safety concern, I could understand slow and deliberative action on these fronts.  But, a few years ago the Brennan Center examined our prison populations and reached the conclusion in this big report that "nearly 40 percent of the U.S. prison population — 576,000 people — are behind bars with no compelling public safety reason."  I am urging "big-time" clemency and compassionate release activity at every level of government because that's what it will take to even get a small percentage of this population home in short order so that they do not continue to contribute to the public safety hazards created in prisons where social distancing is impossible.

Helpfully, I am not the only one urging mass clemency and compassionate release activity, and here are a couple recent op-eds focused on specific (hard-hit) states:

From Jose Saldana, "Clemency is needed for incarcerated New Yorkers vulnerable to coronavirus"

From Nancy Gertner and John Reinstein, "Compassionate release now for prisoners vulnerable to the coronavirus"

For those new to these issues, this lengthy new Quartz piece, "Coronavirus risk looms large for America’s elderly and sick prison population," provides a terrific short overview of some of these issues with an emphasis on our graying prison population and the costs and challenges elderly offenders present even without the COVID-19 disaster.

Wonderfully, NYU's Center on the Administration of Criminal Law has created a great new clemency resource here to highlight that every jurisdiction has the means to address these matters using historic and existing clemency powers.  Here is the NYU discussion of its resource and a link:

Because of the crowded nature of correctional facilities and the limited resources available there, people incarcerated in jails and prisons are exceptionally vulnerable to the spread of COVID-19. Many facilities house significant elderly populations as well as other people with underlying conditions that make them more vulnerable to serious complications and/or death from the virus. 

One way to mitigate the mounting crisis in correctional facilities is by using executive clemency. Many state constitutions vest the governor with broad authority to grant relief without the need for legislation or other actors.  While governors can grant pardons or commutations that would have a permanent effect, they can also choose to issue reprieves, which are temporary delays in the imposition or resumption of a sentence.  By using reprieves to temporarily release people from prison, we may spare them from potentially life-threatening illness without affecting the length of their sentence.  It allows the system to press pause on a sentence until the danger passes. 

The Center has assembled a working document that catalogues the legal authority to grant reprieves in all fifty states.  We encourage anybody with state-specific knowledge to provide feedback, suggestions, or additions regarding the process of granting reprieves in a given jurisdiction by emailing us at prosecutioncenter@nyu.edu. 

Prior coronavirus posts highlighting need for urgent action on imprisonment amidst epidemic:

UPDATE: After completing this post, I just happened to come across these two additional recent op-eds on this front:

From John Mills, "Release prisoners to address the COVID-19 crisis"

From Clem Murray, "To flatten the curve, Philadelphia should release all non-violent prisoners now"

March 23, 2020 in Clemency and Pardons, Impact of the coronavirus on criminal justice, Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Who in Trump Administration is involved in "actually looking at" using executive action to release "totally nonviolent prisoners"?

At last night's press briefing, I was thrilled to see a reporter ask about whether Prez Trump was considering executive action to release some "elderly nonviolent prisoners."  This press report notes the exchange and quotes Prez Trump's full comments on the issue:

President Donald Trump said his administration was considering an executive order to free elderly, nonviolent prisoners from federal prisons amid the novel coronavirus pandemic. Trump was speaking during a Sunday evening press conference on the federal government's ongoing response to the pandemic, which has been identified as a particular threat to prison populations, where individuals are in close proximity to each other.

"We have been asked about that and we're going to take a look at it.  It's a bit of a problem," Trump said, when asked about the potential order.  "We're talking about totally nonviolent prisoners, we are actually looking at that, yes."

As readers of this blog know, I think it is more than just "a bit" of a problem to have lots of low-risk vulnerable prisoners locked up together during this pandemic. But, as the question in the title of this post highlights, I cannot help but wonder just who right now is "actually looking at" using executive action to release "totally nonviolent prisoners."

Given the significant role that Jared Kushner has played in criminal justice reform in the past (see, e.g., here and here), I would expect that he is likely to be playing some role in this discussion.  But how about high-profile folks who have had Prez Trump's ear when it comes to clemency grants like Kim Kardashian-West and Alice Marie Johnson?  Is Prez Trump and his inner circle hearing from and/or likely to listen to advice from folks at the Justice Department or the Bureau of Prisons?

Speaking of the BOP, this BOP COVID-19 webpage reports, as of early morning on March 23, that there are three inmates and three staffers who have already tested positive for the coronavirus.  It will be interested to keep an eye on those numbers as the Trump Administration continues "actually looking at" using executive action to release "totally nonviolent prisoners."

March 23, 2020 in Clemency and Pardons, Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (3)

Wednesday, March 11, 2020

With death penalty repeal legislation, Colorado Gov contemplating commutations for three now on death row

This local article, headlined "Gov. Polis Supports Death Penalty Repeal, But He Has A Big Decision To Make Before Signing It," highlights the notable clemency issue facing the new Governor of Colorado. Here are the basics:

After years of debate, the era of capital punishment in Colorado is poised to end any day now with the signature of Gov. Jared Polis.  The Senate has sent over a bill to repeal the death penalty to the governor, meaning it will reach his desk any day. Once the legislature sends a bill over, he has ten days to sign or veto it, or else it becomes law without his signature.

State legislative leaders last month passed a repeal bill in historic votes, but delayed delivering it to the governor for nearly two weeks.  They decided to pause the action, according to House Speaker KC Becker, to give the governor more time to consider a weighty question: what to do about the three men currently on death row. 

The bill does not apply retroactively, leaving it in the governor's hands whether to commute their sentences to life without parole.  “I think there are a lot of discussions going on about clemency in general. And I have no idea what his plans are," Becker said Monday. “There are a lot of people reaching out to the governor about that right now.”

Late Tuesday night though, a spokesman for the governor told CPR News: “The Governor will sign the bill when it arrives and no decision has been made on any individual case."  As governor, Polis has the broad and sole authority to grant clemency in capital cases.

The topic is especially painful within the halls of the Colorado State Capitol.  Two of the state's death row inmates were convicted for the 2005 murders of Javad Marshall-Fields and Vivian Wolfe, the son and future daughter-in-law of Sen. Rhonda Fields.

Fields urged Polis to approach the question thoughtfully.  Both are Democrats.  “I really don’t have anything more to add to what’s already been said … I just hope that the governor would be strategic and thoughtful about the decisions he would be making as it relates to victims and the members that sat on those juries,” she said.

Fields said the governor should “do the right thing” by properly notifying victims’ families if he moves to commute any of the sentences.  The senator was starkly opposed to the repeal of the death penalty.

Polis has showed support for clemency.  He said in 2019 that repealing the death penalty would be “a strong indication that those who are currently on death row should have their sentences commuted to life in prison.”...

The third man on death row is Nathan Dunlap, who murdered four people in 1993 at a Chuck E. Cheese restaurant in Aurora. Former Gov. John Hickenlooper granted him an indefinite reprieve in 2013, a decision that could be reversed by a future governor.

March 11, 2020 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, March 10, 2020

Big group of US Representatives urges Acting Pardon Attorney to make sure "trial penalty" is part of clemency considerations

Via email I received this interesting note headed "U.S. Reps. Ask Justice Dept. to Review Trial Penalties in Clemency Considerations."  The note reports on this bipartisan letter from nearly 50 US Representatives to the Acting Pardon Attorney urging that she use here "authority when reviewing requests for clemency to consider individual criminal sentences that are significantly harsher than the original sentence offered by the prosecuting attorney in exchange for a guilty plea." Here is more from the letter:

These harsher sentences — also referred to as the “trial penalty” — can be imposed when a criminal defendant decides against accepting a guilty plea.  Instead of accepting a guilty plea, a criminal defendant decides to pursue their 6th Amendment right to a jury trial.  The trial penalty results in a significantly longer prison sentence than those imposed on more culpable defendants who voluntarily waive their constitutional right to a jury trial.

The “trial penalty” also impacts the criminal justice system when criminal defendants plead guilty to avoid a threatened or perceived consequence of going to trial.  These criminal defendants may have valid claims or a defense that could be raised at a trial.  However, these defendants are made aware of or are advised that taking the chance to go to trial could lead to unduly harsh penalties.

Harsher trial sentences have been used to deter people from exercising their 6th Amendment right to a trial.  A 2018 study by the National Association of Criminal Defense Lawyers found that 97% of criminal cases are resolved in a plea.  This strongly suggests that the risk of going to trial is too great for all but 3% of federal criminal defendants.

We therefore request that, when reviewing individual petitions for clemency, you request information from U.S. Attorneys on what sentencing offers were extended to the defendant as part of any plea deal.  This information can be compared with the sentence that the criminal defendant received to determine if they received a “trial penalty.” The “trial penalty” should be considered in clemency petitions by the President.

I am very pleased to see reference to the big 2018 NACDL report (blogged here), especially because it provides another to promote follow-up 2019 Federal Sentencing Reporter double-issue that included 16 original pieces on various aspects of "The Trial Penalty" (first blogged here).

A few prior related posts:

March 10, 2020 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Sunday, March 08, 2020

Making the case for an improved and independent federal clemency process

Cynthia Roseberry, who testified this past week at a House hearing about clemency, has this extended Hill commentary on the topic under the headline "If applied equitably, clemency power can begin to fix damage caused by a broken system." Here are its closing passages:

The clemency process must be completely independent of the system employed to incarcerate millions of people.  A first step is an independent commission with representation from all stages of the criminal justice system, including those who are formerly incarcerated, prosecutors, defense lawyers, corrections experts, and members of the public with appropriate resources to review the inevitable deluge of petitions from the masses.  Independence would ensure that one actor could not put a thumb of the scales of justice, as is the case in our current system, where the same person who prosecuted the case in the Department of Justice has this power.

This commission would promulgate clear and equitable criteria for release.  Applicants would have notice of the evidence necessary to successfully support a petition for clemency. Newly incarcerated persons would have an incentive to immediately work to achieve necessary rehabilitation.  The general public would understand and believe that the system is just and broadly available, and not reserved for a privileged few under a secret process.

Paramount among the criteria would be the consideration of anyone suffering under a sentence because of a failure to retroactively apply reform.  If we, the people, determine that we are no longer willing to seek incarceration for certain acts, then those who were previously incarcerated for those acts must go free in order for equal justice under the law to have meaning. Categorical clemency could be granted, for example, to those serving enhanced sentences where the penalty no longer applies and for those serving long sentences because of a trial penalty after electing to exercise their constitutional right to trial. Although there is a mechanism for compassionate release, it is underutilized and when employed, release is often denied.  The clemency commission could be used to clear this backlog of the elderly or inform who deserves to be released.

The executive has the opportunity to remove the scourge of mass incarceration from our justice system.  That scourge informs one in three black boys born today that they can expect to be incarcerated.  That scourge prevents $80 billion from being spent on their education because it is being spent to incarcerate.  When historians look back on what we did during our watch, let them record that we were enlightened; may they extol the virtue of our quest for equal justice for all and may they marvel at the expediency with which it was achieved.

March 8, 2020 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, March 04, 2020

US House Judiciary Committee to hold hearing March 5 to explore "Presidential Clemency and Opportunities for Reform"

I am quite pleased to see that the Subcommittee on the Constitution, Civil Rights, and Civil Liberties of the Committee of the Judiciary of the US House of Representatives has this hearing scheduled for 9am on the morning of March 5, 2020 to address ""Presidential Clemency and Opportunities for Reform."  I am even more pleased to see, from this witness list, who will be the scheduled witnesses:

Ms. Rachel Barkow, Vice Dean and Segal Family Professor of Regulatory Law and Policy and Faculty Director, Center on the Administration of Criminal Law, New York University School of Law<

Mr. Mark Osler, Professor and Robert and Marion Short Distinguished Chair in Law, University of St. Thomas School of Law

Ms. Cynthia Roseberry, Deputy Director, National Policy Advocacy Department, American Civil Liberties Union

Ms. Kemba Smith Pradia, Founder, Kemba Smith Foundation

March 4, 2020 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Prez Trump has another meeting about criminal justice reform with Kim Kardashian West and women who have recently received clemency

As reported in this ABC News piece, "Kim Kardashian West met with President Donald Trump and several women whose prison sentences he commuted at the White House on Wednesday, multiple administration officials confirmed to ABC News." Here is more:

She announced the visit on Twitter Wednesday morning saying the visit would not only bring "light to these women" but open discussion for "more change that our justice system desperately needs!"

West has worked with the White House on criminal justice reform issues since 2018, when she appealed to the president directly to secure the commutation of Alice Marie Johnson, who served 21 years for a nonviolent drug offense, and has stayed in touch with the president’s son-in-law and adviser Jared Kushner -- who led the administration's push for prison reform legislation -- ever since.

Following the visit, Johnson said the women shared their stories and advocated for those who "deserve a second chance."

The three ex-prisoners Trump met were recommended to him as candidates for clemency by Johnson, who has herself gone on to become an advocate for criminal justice reform since her own commutation and has become the administration's de facto poster child on the criminal justice reform. Johnson received a standing ovation at the president's 2019 State of the Union Address and was the star of his reelection campaign Super Bowl ad last month.

The meeting also came about at her request after seeing the president at a recent White House event related to Black History Month, a person familiar with the matter said. Johnson thanked the president for granting the requested commutations at that time and asked him if she could bring the three women back to the White House with her for an in-person visit.

The three ex-prisoners who met with the president for the first time today are Tynice Hall, Judith Negron and Crystal Munoz. Ahead of Wednesday's meeting, West also posted a series of tweets about the women to bring attention to their cases.

A few prior related posts:

March 4, 2020 in Clemency and Pardons, Who Sentences | Permalink | Comments (0)

Tuesday, March 03, 2020

"Trump's three-track clemency process just might work"

The title of this post is the headline of this new Hill commentary authored by Mark Osler. I recommend the full piece, and here are excerpts:

Once upon a time, there was only one way to have the president consider your petition for a pardon (which mitigates the effects of a conviction) or a commutation (which shortens a sentence) — and it was terrible.  That process required that a petition go through seven levels of sequential review, mostly within the Department of Justice.  It was so inefficient and biased towards rejection that even President Obama, who seemed to have genuine concern for those in prison, granted just one commutation in his first five years in office.

Eventually, Obama got fed up and forced through over 1,700 commutations by cranking the broken machine harder and attempting to marshal an army of volunteer lawyers to advocate for petitioners.  Unfortunately, though, he did not repair or replace that machine itself, and left to his successor a process which remains in the clutches of the very body of prosecutors who sought over-long sentences in the first place.

That successor, of course, was Donald Trump. Within his first year in office he had set a template for action by pardoning Joseph Arpaio, the former sheriff in Maricopa County, Ariz.  This was the beginning of a second track for clemency within the Trump administration, one which favored right-wing heroes whose cases had been trumpeted by Fox News and Trump advisors like Alan Dershowitz and Rudy Giuliani.  That second track developed even as the official path, or first track, continued to flounder and nearly 14,000 petitions piled up in the broken system.

Most recently, that second track produced clemency for eight people on Feb. 18.... In a remarkable press release, the Trump administration actually listed the celebrity insiders who endorsed each grant... For the normally opaque field of federal clemency, that press release displayed remarkable transparency. We may be unsettled by this method of discernment, but it is consistent with the character and history of the man we elected president.

Hidden beneath those high-profile grants of mercy, though, was the emergence of a third track to clemency — one which should give hope to those of us who would like the pardon power to address the chronic over-sentencing of poor and working-class people who don’t have access to the media or celebrities.

Crystal Munoz, Tynice Hall, and Judith Negron — women who have little in common with the likes of Michael Milken — were all granted commutations from long prison terms.  According to an investigative report by the Washington Post, Trump has assembled a small group of advisors who are feeding him the cases of people like Munoz, Hall, and Negron, who were not Fox News darlings.  This could be the start of something very good.

NYU Professor Rachel Barkow and I have long advocated that the clemency process be taken out of the Department of Justice and put in the hands of a bipartisan commission that would make recommendations directly to the president.  The informal group gathered by Trump has some of the characteristics of what we have suggested, and the potential to grow into something of historic significance....

The problem with this working group, though, is that it leaves in limbo the nearly 14,000 people who followed the rules and submitted their petitions to the Pardon Attorney through the official first-track system.  These petitions sit in purgatory, ignored, even though many are for people similar to Munoz, Hall, and Negron.

The solution should be to enlarge the clemency working group and give it the resources it needs to address that backlog systemically.  Trump should sign an executive order that takes the Acting Pardon Attorney and her staff out of the Department of Justice and brings them into the White House, to report directly to the clemency working group. Meanwhile, that working group should be given official status by executive order, and allowed to continue the good work they began on Feb. 18.

President Trump did not invent discord over clemency.  But, somehow, he has created what can be a path to a better way. That path should be followed.

A few prior related posts:

March 3, 2020 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Thursday, February 27, 2020

Is Prez Trump legally unable to grant clemency to Roger Stone?

The question in the title of this post is prompted by this new Politico Magazine piece by Corey Brettschneider headlined "Why President Trump Can’t Pardon Roger Stone."  Here are excerpts:

Speculation that President Donald Trump might pardon Roger Stone has reached a fever pitch after Stone’s sentencing by a federal judge and the president’s repeated hints that he thinks the verdict unfair.  But fortunately, the Constitution’s framers imagined this nightmare scenario — a suspected criminal president pardoning a co-conspirator — and they put in the Constitution language to legally prohibit the pardon power in exactly this kind of case.

Both the plain meaning of the Constitution’s text and the historical evidence show that once a president has been impeached, he or she loses the power to pardon anyone for criminal offenses connected to the articles of impeachment — and that even after the Senate’s failure to convict the president, he or she does not regain this power.

Under Article II, Section II of the Constitution, the president is given the “power to grant reprieves and pardons for offences against the United States, except in cases of impeachment.”  Pardons are supposed to be used as acts of mercy.  The framers thought of the pardon power as a “benign prerogative”—prerogative because it was mostly unchecked by courts or Congress, but benign because presidents would use it for the public good.

But the framers knew not to place blind trust in the president to wield the power justly. That’s why they explicitly forbade a president from exercising the pardon power in “cases of impeachment.”  The clause prevents the worst abuse of the pardon power: a president’s protecting cronies who have been convicted of crimes related to the president’s own wrongdoing....

The limit on pardons for co-conspirators wouldn’t affect many of the president’s pardons. Pardoning convicted criminals like former Illinois Governor Rod Blagojevich might be ill-advised, but it is still permitted.  By contrast, pardoning longtime adviser Roger Stone would not be permitted, as his crimes relate directly to the impeachment case....

Inevitably, some will argue that an impeached president should regain the power to grant clemency to his alleged co-conspirators in cases of acquittal by the Senate.  That ignores not only the framers’ clear intent, but also the plain text of the Constitution.

The framers deliberately used the phrase “cases of impeachment,” not “conviction.” One reason why is simple: A president convicted by the Senate would be removed from office, and thus unable to pardon anyone. As such, there would be no reason for the Constitution to curb a convicted president’s pardon power. No exception to the pardon power needs to be granted, because no such power exists.

Moreover, the framers provided no explicit avenue for him to regain the power they took away after a House impeachment vote.  Time limits are common in the Constitution—think of the president’s four-year term — and the absence of one connected to the pardon power suggests that the power is not in fact lost for a limited duration.  In the absence of an explicit reinstatement of pardon power in the text, the strong presumption has to be that it is still lost.

I am generally chary about any efforts to place novel limits on clemency powers, but this commentary is making an interesting textualist and originalist-based claim here. In the end, I think political interest, not legal concerns, will shape how Prez Trump uses his clemency power here (and elsewhere). But if Prez Trump does give some form of clemency to Stone, we now can see the terms of inevitable legal challenges to that effort.

Prior related posts:

February 27, 2020 in Clemency and Pardons, Sentences Reconsidered, White-collar sentencing, Who Sentences | Permalink | Comments (3)

Monday, February 24, 2020

Whom else should Prez Trump pardon?

The question in the title of this post is prompted by this recent CNN piece by James Gagliano, headlined "This is one pardon Trump should consider." This extended piece starts and ends this way

Since pardons are something of a topic du jour, Mr. President, I have a simple request.  I'm fairly certain you've heard of former NFL star quarterback Michael Vick.  We also all noticed the news reports that you just gifted a commutation for an alum of "The Celebrity Apprentice" who was accused of shakedowns involving a children's hospital and pardoned a former police commissioner convicted for tax fraud and lying to the government.  So please, sir, hear me out -- I have a far more deserving candidate for your leniency consideration.

ESPN's two-part 30 for 30 documentary entitled "Vick" aired recently.  And to tell the complete story of the film's 39-year-old protagonist, every second of its three-hour run time was required.  Vick's tale is one of against-long-odds achievement, meteoric ascension to the pinnacle of his profession and losing it all, while falling prey to hubris and his own cripplingly poor decision-making.  It is also a story of forgiveness, second acts and deserved redemption, Mr. President....

Michael Vick made good on his second chance.  He's back working in football as a television analyst.  He's a family man. He has acknowledged his failures and atoned for them. He has blamed no one else but himself.  Michael Vick could certainly be any of us. He made some grievous mistakes.  As have we all -- including the man who currently occupies the Oval Office.  Here's hoping you'll give this pardon request some serious consideration, Mr. President.

I am sure readers have some additional ideas for clemency candidates now that Prez Trump has his pen going. I would love to hear in the comments additional suggestions.  (Amusingly, thie Fox News piece highlights a humorous suggestion from a notable source under the headline "Mark Hamill wants Trump to 'pardon' notorious 'Star Wars Holiday Special'.")

February 24, 2020 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Thursday, February 20, 2020

Lots of notable clemency news and notes and commentaries after Prez Trump's flourish of mercy

Unsurprisingly, a number of reporters and commentators have lots to report and comment upon in the wake of Trump's latest clemency work (basics noted here and here and here).  Here are just a few pieces that seem like must reads in full (with a taste to whet appetites):

From the Washintong Post, "White House assembles team of advisers to guide clemency process as Trump considers more pardons":

The White House is moving to take more direct control over pardons and commutations, with President Trump aiming to limit the role of the Justice Department in the clemency process as he weighs a flurry of additional pardon announcements, according to people familiar with the matter.... The group, essentially an informal task force of at least a half-dozen presidential allies, has been meeting since late last year to discuss a revamped pardon system in the White House. Jared Kushner, Trump’s son-in-law and senior adviser, is taking a leading role in the new clemency initiative and has supported the idea of putting the White House more directly in control of the process that in past administrations has been housed in the Justice Department, officials said....

Trump, who prefers granting clemency to people with compelling personal stories or lengthy sentences, is inclined to grant more pardons before facing voters in November, one official said. “He likes doing them,” the official said...  While several of the pardons Trump granted Tuesday went to well-connected or wealthy associates, the president also commuted the sentences of three women who had been convicted of nonviolent offenses — part of the new task-force effort.

The women were recommended by [Alice] Johnson, who had her life sentence for a nonviolent drug offense commuted by Trump in 2018. Johnson has been working with the White House’s new clemency effort after Trump publicly asked her last year to submit a list of names of other people who deserved commutations, officials said. She recommended Crystal Munoz, Tynice Hall and Judith Negron, who each had their sentences commuted by Trump on Tuesday. Johnson is a member of the informal network of advocates providing clemency recommendations. Former acting attorney general Matthew G. Whitaker, Democratic commentator Van Jones and Brett Tolman, a former U.S. attorney in Utah, are also part of the group, according to a senior administration official.

From the New York Times, "The 11 Criminals Granted Clemency by Trump Had One Thing in Common: Connections":

The clemency orders that the president issued that day to celebrity felons like Mr. Kerik, Rod R. Blagojevich and Michael R. Milken came about through a typically Trumpian process, an ad hoc scramble that bypassed the formal procedures used by past presidents and was driven instead by friendship, fame, personal empathy and a shared sense of persecution. While aides said the timing was random, it reinforced Mr. Trump’s antipathy toward the law enforcement establishment.

From Zak Cheney-Rice in New York, "The Valuable Lesson Trump Pardonees Learned in Prison: Prison Is Bad and Unfair":

The president is not against aggressive sentencing. His entire foray into electoral politics is a testament to the opposite. The incoherence of his shifting positions on criminal justice and imprisonment is best accounted for by a simpler principle: He bristles when people he likes or who share his ideologies are held accountable for their misdeeds, and to fend off accusations of impropriety, he has found a convenient laundering mechanism for letting them off the hook by pardoning random black people. Reports suggest that Trump’s recent efforts to recast this dubious moral position as a broader commitment to criminal-justice reform is the brainchild of Jared Kushner, his son-in-law turned adviser, whose father spent several months in federal prison for tax evasion, witness tampering, and illegal political campaign contributions. Kushner and Trump seem to have come by their recent objections to the American criminal-legal system the same way that many people do: by having been personally affected by it and witnessing firsthand how unjust and destructive it is.

A few prior related posts:

February 20, 2020 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, February 19, 2020

Recognizing historic modern first-term commutation work by Prez Trump in a single day

Unsurprisingly, the pardons and commutations handed out by President Trump yesterday to high-profile individuals like Michael Milken, Rod Blagojevich, Bernie Kerik and Eddie DeBartolo have been dominating the news coverage of Trump's latest clemency work (basics noted here and here).  But I wanted to take a moment to note (and, in a sense, lament) that Prez Trump's granting of four commutations yesterday — to Tynice Nichole Hall, Crystal Munoz and Judith Negron along with Blagojevich — is quite historic in modern terms.

Last summer in this post, I used the official clemency statistics here from the Office of the Pardon Attorney to set out first-term commutation scorecard for US Presidents over the last half century.  Here are the particularly disconcerting numbers for the last four men in the Oval Office before Prez Trump:

Prez                     Commutations in entire first term

George HW Bush         3

William Clinton           3

George W Bush            2

Barack Obama             1

In other words, Prez Trump's granting of four commutations in a single day amounted to more commutations than any of the last four Presidents granted throughout their entire first term in the Oval Office.  (Of course, Prez Obama got quite busy with commutations in his second term, and so his final clemency scorecard looks a heck of a lot better than it looked at the end of his first term.)  In addition, with his four commutations yesterday, Prez Trump is now already up to a total of 10 commutations, which is one more than all of the last four Presidents combined granted throughout their entire first terms in the Oval Office.  

Prez Trump setting these modern commutation records is not really a reflection of robust use of his clemency pen as much as it serves as a sad commentary on the paucity of clemency granted by the four men in the Oval Office before Trump.  That said, Prez Trump seems to have come to appreciate (perhaps only for personal reasons) Alexander Hamilton's famous statement in Federalist 74 that the administration of justice can often "wear a countenance too sanguinary and cruel."  I sincerely hope he keeps on helping folks other than just friends and vocal allies with his clemency powers.

Prior related post:

February 19, 2020 in Clemency and Pardons, Data on sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, February 18, 2020

"Trump grants clemency to 11, including former junk bond king Michael Milken"

I have previously noted in this post three of Prez Trump's the high-profile clemency recipients today — Blagojevich, DeBartolo and Kerik — and I could not help but note these three were all white men of relative privilege convicted of crimes of power.  But now I see this Los Angeles Times piece, which has the headline that serves as the title of this post, and I am learning that a total of 11 persons have received clemency from Prez Trump today:

President Trump Tuesday granted full pardons to seven convicted felons including Michael Milken, the former junk bond king who became a face of the insider trading financial scandals of the 1980s. An official White House statement praised Milken, who served two years in prison in the 1990s, was for his philanthropy.

Trump also commuted the sentence of former Illinois Gov. Rod Blagojevich, found guilty nine years ago for trying to sell an open U.S. Senate seat.  Trump announced the news at Joint Base Andrews as he embarked on a four-day west coast swing and just hours after the White House announced the first pardon, that of former San Francisco 49ers owner Edward DeBartolo, Jr., who was convicted in a gambling fraud scandal....

Trump also issued full pardons to Ariel Friedler, Paul Pogue, David Safavian and Angela Stanton. And he commuted sentences for three others: Tynice Nichole Hall, Crystal Munoz and Judith Negron. 

Here is the link to the "Statement from the Press Secretary Regarding Executive Grants of Clemency" providing lots of background on all these individuals. Because of the sentencing element, I find the commutations especially interesting and here is how they are described (with bolding in the original):

In addition, the President is commuting the sentences of four individuals who have paid their debts to society and have worked to improve their lives and the lives of others while incarcerated.

Rod Blagojevich was the Governor of Illinois from 2003 until 2009, when he was charged with, among other things, offering an appointment to the United States Senate in exchange for campaign contributions. He was convicted of those charges and sentenced to 14 years in prison. Although the Seventh Circuit reversed some of his convictions related to the Senate appointment, it did not alter his 14-year sentence. He has spent 8 years in prison. People from across the political spectrum and from varied backgrounds have expressed support for shortening Mr. Blagojevich’s sentence, including Senator Dick Durbin, Reverend Jesse Jackson, Sr., former Representative Bob Barr, Representatives Bobby Rush and Danny Davis, former Attorney General Eric Holder, and Bishop Byron Brazier. Additionally, more than a hundred of Mr. Blagojevich’s fellow inmates have written letters in support of reducing his sentence. During his confinement, Mr. Blagojevich has demonstrated exemplary character, devoting himself to improving the lives of his fellow prisoners. He tutors and teaches GED classes, mentors prisoners regarding personal and professional development, and speaks to them about their civic duties. Notwithstanding his lengthy sentence, Mr. Blagojevich also counsels inmates to believe in the justice system and to use their time in prison for self-improvement. His message has been to “keep faith, overcome fear, and never give up.”

Tynice Nichole Hall is a 36-year-old mother who has served nearly 14 years of an 18-year sentence for allowing her apartment to be used to distribute drugs. While in prison, Ms. Hall has completed a number of job-training programs and apprenticeships, as well as coursework towards a college degree. In addition, Ms. Hall has taught prison educational programs to other inmates. She has accepted responsibility for her past behavior and has worked hard to rehabilitate herself. Among those who support this grant of clemency are Clemency for All Non-Violent Drug Offenders Foundation, Alice Johnson, Dan Schneider, Matt Whitaker, Adam Brandon, Kevin Roberts, Brett Tolman, and John Hostettler.

Crystal Munoz has spent the past 12 years in prison as a result of a conviction for having played a small role in a marijuana smuggling ring. During this time, she has mentored people working to better their lives, volunteered with a hospice program, and demonstrated an extraordinary commitment to rehabilitation. The Texas A&M Criminal Defense Clinic, the Clemency for All Non-Violent Drug Offenders Foundation, Dan Schneider, Matt Whitaker, Adam Brandon, Kevin Roberts, Brett Tolman, John Hostettler, and Alice Johnson are among the many who support this grant of clemency.

Judith Negron is a 48-year-old wife and mother who was sentenced to 35 years in prison for her role as a minority-owner of a healthcare company engaged in a scheme to defraud the Federal Government. Ms. Negron has served 8 years of her sentence and has spent this time working to improve her life and the lives of her fellow inmates. Her prison warden and her counselor have written letters in support of clemency. According to her warden, Ms. Negron “has always shown herself to be a model inmate who works extremely well with others and has established a good working relationship with staff and inmates.” This grant of clemency is supported by the Clemency for All Non-Violent Drug Offenders Foundation, Dan Schneider, Matt Whitaker, Adam Brandon, Kevin Roberts, Brett Tolman, John Hostettler, and Alice Johnson, among others.

I am pretty sure based on postings at the CAN-DO site that Tynice Nichole Hall, Crystal Munoz and Judith Negron are all women of color.   Gosh darn that Prez Trump, who always seems to find a way to both confirm and refute criticisms of how he approaches criminal justice matters.

February 18, 2020 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (8)

Prez Trump pardons former 49ers owner amidst talk of clemency for former Illinois Gov and former NYPD commissioner

Prez Trump has his clemency pen out again, and a number of notable names are involved as per this breaking NBC News piece headlined "Trump expected to grant clemency to former Ill. Gov. Rod Blagojevich, ex-NYPD commissioner Bernard Kerik." Here is what is being reported just before 2pm:

President Donald Trump is expected to grant clemency to former Illinois Gov. Rod Blagojevich, who was impeached and removed from office in 2009 on corruption charges, and to former New York police commissioner Bernard Kerik, two people familiar with the president's plans said Tuesday.

The news comes hours after Trump signed an executive order granting a full pardon to former San Francisco 49ers owner Eddie DeBartolo Jr. related to a decades-old corruption charge.

Blagojevich, 63, was sentenced in 2011 to 14 years in federal prison on corruption charges related to his solicitation of bribes in an attempt to "sell" the Senate seat Barack Obama left open after being elected president. Blagojevich, a Democrat, has been serving his term at the low-security Federal Correctional Institute in Englewood, Colorado.  He was a contestant on Trump’s reality TV show "The Celebrity Apprentice" in 2010.

Kerik was sentenced in 2010 to four years in prison after pleading guilty to eight felony charges, including tax fraud.

The president said in August of last year that he was "very strongly" considering giving Blagojevich a reprieve — not the first he'd publicly floated the idea. "I'm thinking about commuting his sentence very strongly," Trump told reporters aboard Air Force One then. "I think it’s enough — seven years," he added, referring the amount of time the ex-governor has already served....

In 2018, in the weeks after he pardoned conservative provocateur Dinesh D'Souza, Trump had said he’d been “thinking about” taking the action on behalf of the ex-governor. Trump told reporters in May 2018 that Blagojevich had received a lengthy sentence "for being stupid and saying things that every other politician, you know, that many other politicians say” and “that he was treated unfairly.” The remarks were likely a reference to what the then-governor was picked up saying on secret federal wiretaps about his authority to appoint someone to Obama's open Senate seat.

Blagojevich has argued he was a victim of federal prosecutors run amok — a claim Trump himself levied at former special counsel Robert Mueller’s team, which investigated Russian interference in the 2016 election and the president. “Under the legal arguments that prosecutors used to convict me, all fundraising can be viewed as bribery," the ex-governor wrote in a 2018 op-ed in The Wall Street Journal that was widely viewed as a personal appeal to Trump for clemency.

Democrats — including Sen. Dick Durbin, D-Ill., and former Attorney General Eric Holder — have said publicly in the past that they’d support efforts by Trump to commute Blagojevich's sentence.

Notably, I blogged a few days ago about  of this recent USA Today commentary authored by Professor Nora Demleitner which noted that most people given clemency by Prez Trump are not disadvantaged people of color convicted of drug crimes like Alice Marie Johnson, but rather are white men of privilege convicted of crimes of power.  Blagojevich, DeBartolo and Kerik all fit that latter description.

A few (of many) prior related posts:

UPDATE: Here are new headlines seemingly confirming that two different forms of clemency have been granted to Blagojevich and Kerik:

February 18, 2020 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Sunday, February 16, 2020

"Don't be fooled by slick ad. Most people given clemency by Trump don't look like Alice Marie Johnson."

N_msnbc_trumppardon_180825_1920x1080The title of this post is the headline of this recent USA Today commentary authored by Nora Demleitner.  I recommend this piece in full, and here are excerpts:  

Alice Marie Johnson, whose life term President Donald Trump cut short, was the star of a Super Bowl ad. It portrayed Trump as the country’s leading criminal justice reformer, a man who actively and compassionately assists the downtrodden.  As is standard fare for Trump, the ad was based on half-truths and misleading claims. But that is not its worst feature.  The ad was a cynical ploy to provide white voters with a feel-good message and an argument to rebut charges of Trump's racism.  At the same time, it reinforced the message of black criminality....

The spot conflated two federal criminal justice issues — the First Step Act and presidential clemency power.  The president commuted Johnson’s sentence, which led to her immediate release from prison.  She had served 21 years of a life sentence for a nonviolent drug conviction. Reality TV star Kim Kardashian West championed Johnson’s case, even visiting the White House to make her argument.  Johnson is one of only 24 people to receive clemency under the Trump administration, according to a list on the Department of Justice website.

Presumably, the reference to the release of thousands was to the president signing the First Step Act.  The act has led to the early release of a good number of federal inmates. It retroactively decreased crack cocaine sentences and added other mechanisms, such as expansion of compassionate release....

The ad failed to indicate that both of the president’s attorneys general have insisted on continuing federal policies that have fueled the nation's mass incarceration and increased disparities seen in the criminal justice system against black and brown people.  The Department of Justice has opposed First Step Act sentence reductions and releases.  The department has also vilified progressive local prosecutors who have implemented reforms (which include not going after low-level drug offenders or choosing to divert cases from the criminal justice system).  At best, one could call this administration’s record on criminal justice reform mixed, at worst hypocritical....

Most of the people Trump has given clemency to did not look like Johnson.  Of the other five commutations the president has issued so far, only one involved another drug offender, and that offender was not African American.  In addition to the commutations, Trump has handed out 18 pardons.  Rather than uniting thousands of families, as the ad claimed, Trump has used his clemency power to reunite just two dozen.

And the majority of his clemencies have been politically motivated.  Joe Arpaio, the notorious Maricopa County sheriff, received one even before he was sentenced. Others went to men like Scooter Libby, a former aide to Vice President Dick Cheney; Dinesh D’Souza, a right-wing commentator; Conrad Black, a former media mogul and Trump biographer; and Pat Nolan, a former Republican lawmaker....

Only two of Trump's best known acts of clemency have gone to African Americans.  One went to the above mentioned Johnson, featured in the Super Bowl ad, and the other went, posthumously, to Jack Johnson.  The famous boxer was sentenced in 1920 for violating the Mann Act, when he traveled with a white woman he was in a relationship with across state lines.  But two is hardly anything to brag about.

In fact, Trump has done less for nonviolent drug offenders with his commutation powers than many of his predecessors, including Barack Obama, a president Trump seems obsessed with outdoing.  Within his first three years in office, President Obama had given clemency to only 18 people compared with Trump's 24.  But of those whose sentences Obama either pardoned or commuted, the majority, 11, had been incarcerated on nonviolent drug offenses. Only four of the people given clemency under Trump were nonviolent drug offenders.

The Alice Johnson ad falsely appeases voters who may be concerned that Trump isn't addressing racial inequities in our criminal justice system and who may even be troubled by the president’s racist language.  We need a visual of the true beneficiaries of this president’s clemency power: A gallery of white, Republican men.

A google search helped me find the above image showing nine of the two dozen persons to get a pardon or a commutation from President Trump.  The image above certainly over-represents people of color among the full group, as I think every single other clemency recipient is am white man.

Covering somewhat similar group, the Washington Post ran this interesting piece by Philip Bump under the headline "Trump’s approach to crime and punishment is centered on his own power: The inverted criminal justice of President Trump." The piece helps highlight just why, given the ultimate leader in charge, criminal justice work in the Trump Administration is likely always certain to be "mixed."

February 16, 2020 in Clemency and Pardons, Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (0)

Tuesday, February 11, 2020

For Roger Stone, federal prosecutors advocate for within-guideline sentence of 7.3 to 9 years in prison ... which Prez Trump calls a "miscarriage of justice!"

As reported in this Politico piece, "Federal prosecutors are urging that longtime Donald Trump adviser and Republican political provocateur Roger Stone be sent to prison for about seven to nine years for his conviction on charges of lying and witness tampering during investigations of ties between Russia and the Trump campaign." Here is more about the sentencing filings in this high-profile case that emerged late yesterday:

The stern recommendation is starkly at odds with a suggestion from Stone's defense team that he should be sentenced to probation — and no jail time — in the case.

Following a weeklong trial last November, a Washington jury found Stone guilty on all seven felony counts he faced: five of making false statements to Congress, one of obstruction of Congress, and one of witness tampering with both the House Intelligence Committee inquiry and special counsel Robert Mueller's probe.

In a sentencing filing Monday, prosecutors from the U.S. Attorney's Office in Washington argued that Stone's conduct was exceptionally sinister because of the importance of those investigations and the danger of overseas influence on U.S. elections. "Foreign election interference is the 'most deadly adversar[y] of republican government,'” prosecutors from the U.S. Attorney's Office in Washington wrote, quoting Alexander Hamilton's Federalist Paper No. 68....  The argument was strikingly similar — in some cases borrowing from the exact passages from the same Constitution-era text — as that lodged by the House's prosecutors during Trump's impeachment trial. "Alexander Hamilton cautioned that the 'most deadly adversaries of republican government may come 'chiefly from the desire in foreign powers to gain an improper ascendant in our councils,'" the House members argued in their trial brief....

While prosecutors tied the gravity of Stone's crimes to their impact on the electoral system, the bulk of the prison time authorities are calling for is a product of the prosecution's decision to treat hostile and vulgar messages Stone sent to longtime associate Randy Credico as genuine threats of violence, or at least as having the potential to stir up violence against Credico or others.  Prosecutors pointed, in particular, to a message Stone sent to Credico after he indicated plans to cooperate with the House committee. "Prepare to die, cocksucker," Stone wrote.  In another instance, Stone told Credico, who has a therapy dog, that he would "take that dog away from you."

Stone said during the trial his comments were in jest and part of the brash banter often exchanged between the two men, whose views are usually at opposite ends of the political spectrum. Prosecutors insisted that the barbed remarks mean Stone deserves between four and five years longer under federal sentencing guidelines than in cases involving witness tampering efforts that involve no physical threats.... Prosecutors acknowledged that Credico — a liberal New York city talk show host, comedian and activist — recently wrote to the court saying he did not think Stone was threatening him physically. Credico's letter urged that Stone get probation.  However, prosecutors also noted that during the trial, Credico said he was concerned about Stone's statements because they could encourage others to get violent.

Defense lawyers, who weighed in with U.S. District Court Judge Amy Berman Jackson late Monday night, vigorously disputed the notion that Stone's statements to Credico were actual threats to do anything.  They noted that at the trial Credico called Stone's comments "hyperbole" and said Stone "loves all dogs," so he could not have actually intended to harm Credico's service dog, a tiny Coton de Tulear who's almost constantly at his side. "Stone’s indecorous conversations with Randy Credico were many things, but here, in the circumstances of this nearly 20-year relationship between eccentric men, where crude language was the norm, 'prepare to die cocksucker' and conversations of similar ilk, were not threats of physical harm, 'serious acts' used as a means of intimidation, or 'the more serious forms of obstruction' contemplated by the Guidelines," Stone's lawyers wrote....

Stone, 67, faces a maximum of 50 years in prison at the sentencing, which Jackson has set for Feb. 20. Prosecutors say federal sentencing guidelines urge between 87 to 108 months in prison for Stone.  The defense disputes several aspects of that calculation and argues that the guidelines call for just 15 to 21 months.  Judges have the right to sentence above or below the guidelines, but are required to calculate the recommended sentence and take it into account.

Stone's defense also submitted a collection of letters from his wife and acquaintances in the political sphere and elsewhere.  "I can't tell you that Roger is a saint — he pushes everything to the limit even with you," Stone's wife Nydia wrote, alluding to Stone's run-ins with the judge over her gag orders and perhaps to an Instagram post he sent during the trial that included a picture of Jackson next to what appeared to be crosshairs. She also proclaimed her husband "loyal, kind, loving, considerate, generous and good-natured," as well deeply committed to Trump's re-election.

Among others asking for leniency for Stone were Democratic political consultant Hank Sheinkopf and former New York Republican gubernatorial candidate Carl Paladino.  Stone's supporters saluted him as an early backer of gay rights and marriage equality, an opponent of animal testing and a strong advocate for the easing of New York state's tough Rockefeller drug laws.

I am not surprised to see the upcoming Roger Stone sentencing to engender an interesting debate over both guideline calculations and 3553(a) factors (not to mention the real meaning of colorful phrases).  Here are the full filings from the parties:

Unsurprisingly (and I think importantly), President Donald Trump is not at all keen about the sentencing advocacy of his Department of Justice in this case. Among other tweets on the topic, Prez Trump retweeted a lament about federal prosecutors seeking "A *9 year* prison recommendation for non-violent crimes committed by a 67-year-old man." In addition, Prez Trump had this original tweet on the topic in the wee hours (just before 2am EST):

Regular readers know that plenty of extreme (and within-guideline) sentencing recommendations by federal prosecutors have kept me up at night, although I usually turn to blogging rather than tweeting to express my concerns about the banal severity and cruelty of the federal criminal justice system.  (For the record, all US Presidents — current, former and wanna-be — have an open invitation to guest-blog here about any sentencing matters!) 

Based on the submissions, I am inclined to (tentatively) predict that Judge Amy Berman Jackson will come to a lower guideline calculation than urged by prosecutors and yet still impose a below-guideline sentence.  But I still expect the sentencing judge to impose some prison time on Stone, at which point it will be interesting to see if Prez Trump will make another controversial use of his clemency power.  If Stone gets less than a year, I suspect Trump will leave him to serve his sentence at least until the upcoming election, as he has with Paul Manafort. 

As always, I welcome comments and other predictions from readers.

UPDATE: This Fox News article, headlined "DOJ expected to scale back Roger Stone's 'extreme' sentencing recommendation: official," suggests that federal prosecutors may soon be changing their sentencing tune in this high-profile case.

February 11, 2020 in Clemency and Pardons, Criminal justice in the Trump Administration, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, White-collar sentencing, Who Sentences | Permalink | Comments (0)

Monday, February 03, 2020

A deep look into the still deeply problematic world of federal clemency

The Washington Post has this long new article about the federal clemency power headlined "Most Trump clemency grants bypass DOJ and go to well-connected offenders."  I would recommend the article in full, even though I think the piece fails entirely to note widespread criticisms of the modern failings of the Office of the Pardon Attorney and also fails to note that many Democratic candidates for Prez have proposed reforms to DOJ's clemency role.  Here are excerpts:

Under Trump, the pardon office has become a bureaucratic way station, according to government data and interviews with lawyers, criminal justice advocates, and former pardon and White House officials.  Most of Trump’s grants of clemency have gone to well-connected offenders who had not filed petitions with the pardon office or did not meet its requirements, The Post review shows.

“The joy you get finding meritorious people, working on those cases, making recommendations that go to the White House, seeing people receive the grants — you feel like you’ve done something,” said Larry Kupers, the former head of the office, who quit last year.  “If that’s not happening, it feels like you are spinning your wheels.”

Trump’s approach is perfectly legal.  The Constitution’s only restrictions on the pardon power is that it applies only to federal crimes and not to impeachment.  Trump has reveled in that clout, saying “the power to pardon is a beautiful thing,” and claiming he has the “absolute power” to pardon himself. He has used the power, however, very sparingly....

Asked what advice he would give offenders seeking leniency, Kupers said, “Find a way to get to Kim Kardashian. I’m very serious about that.”...

For decades, federal offenders filed petitions for clemency with the pardon office, which assigns a staff attorney to investigate each case.  The office may be one of the least visible and least understood corners of a federal government scorned by a president who has declared war on what he calls the “deep state.” With an annual budget of about $4.5 million, the office employs about 19 people, including 11 attorneys.

For pardons, the office looks for acceptance of responsibility and good conduct for a substantial period of time after conviction, among other considerations, according to justice department guidelines. Commutations hinge on the undue severity of a sentence, the amount of time served and demonstrated rehabilitation....

[Trump's] administration inherited a backlog of more than 11,300 petitions, according to justice department statistics. Nearly 7,600 petitions have been filed since Trump took office, as of late January. About 5,900 petitions have been closed by the pardon office during Trump’s tenure because the inmate was released, died or ineligible for clemency.

Trump’s decisions on only 204 petitions means nearly 13,000 people are waiting. A Justice Department spokeswoman declined to say how many of its recommendations are backlogged at the White House.... The current pardon attorney, Rosalind Sargent-Burns, said she was not authorized to talk to the press....

Most presidents in recent decades have faced accusations at one time or another that they exploited the pardon power. Bill Clinton issued pardons in the final hours of his presidency to his half brother, a Whitewater business partner, his former housing secretary and a fugitive commodities trader married to a major Democratic donor.

Presidents also have circumvented the formal pardon process to advance national interests, as when Obama offered clemency to seven Iranians charged with violating U.S. trade sanctions in exchange for the release of four Americans imprisoned in Iran, including Post reporter Jason Rezaian.

Under Trump, however, politically motivated grants have become the rule, not the exception....

Lawyers who specialize in clemency say the system has moved slowly for decades. The way they tell it, the pardon office is like a black box — the only updates available on petitions are “pending” and “denied.” Deputy attorneys general, who make the final determination before petitions reach the White House Counsel’s Office, tend to be reluctant to mitigate decisions made by fellow prosecutors in the criminal justice system.

As regular readers now, I am more than happy to criticize Prez Trump for his distinctive approach to the use of his clememcy powers. But he does merit praise for using the power at all, and prior Presidents have not had sounder records on this front even when paying more attention to the (often harsh and dysfunctional) advice of the Justice Department.

February 3, 2020 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Sunday, February 02, 2020

Prez Trump's reelection campaign premieres ad focused on criminal justice reform during Super Bowl

As reported in this Washington Times article, headlined "'Trump got it done': Trump's Super Bowl ad highlights criminal-justice reform," there was one especially notable ad during the big game for sentencing fans.  Here are the details and context:

President Trump’s reelection campaign aired a surprise TV ad on criminal-justice reform during the Super Bowl Sunday night featuring the president’s grant of clemency for former inmate Alice Johnson.

Trump campaign manager Brad Parscale contrasted the president’s leadership on criminal-justice reform with NFL players who previously knelt during the Star-Spangled Banner to protest injustices in the legal system. “President Trump strongly disagreed with how some in the NFL chose to disrespect our flag, our country, and the people who serve it, just to express their views of the criminal justice system,” Mr. Parscale said. “The Super Bowl is the perfect place to debut this ad, because it clearly communicates how President Trump expressed his concerns about the issue – he acted and he helped improve people’s lives.”

The 30-second spot in black and white showed Mrs. Johnson, a grandmother who is African-American, expressing jubilation and gratitude to Mr. Trump upon her release from prison after serving 21 years for a first-time drug offense....

The ad states that “politicians talk about criminal justice reform. President Trump got it done. Thousands of families are being reunited.” The campaign had kept the ad under wraps until it aired. The president’s re-election team also paid for a 30-second spot highlighting his efforts to keep America secure and prosperous.

Mr. Trump commuted the sentence for Mrs. Johnson in June 2018. Six months later, he signed into law the First Step Act, which is aimed at providing thousands of prison inmates with a second chance. The law provides inmates with opportunities to take part in vocational training, education, and drug treatment programs to help them gain their release and obtain jobs.

I think all supporters of criminal justice reform should find this ad heartening in the wake of some reports suggesting Prez Trump had soured on reform and viewed the issue now as a political liability (see here).  It seems that at least some folks on Prez Trump's reelection team view criminal justice reform as a winning political issue. 

At the same time, it is a darn shame that Prez Trump is promoting his clemency work when he has still granted relatively few commutations.  Regular readers likely recall that, back in 2018, Prez Trump talked grandly about considering thousands of clemency requests and Alice Marie Johnson potently advocated that the President free "thousands more" federal prisoners like her.  I never really expected Prez Trump to grants thousands of commutations, but I had hoped he would do many more than the six that he has done so far.

February 2, 2020 in Campaign 2020 and sentencing issues, Clemency and Pardons, Criminal justice in the Trump Administration, FIRST STEP Act and its implementation, Who Sentences | Permalink | Comments (2)

Sunday, January 12, 2020

"Cuomo's Clemency and Cruelty of False Hope"

The title of this post is the headline of this effective commentary authored by Steven Zeidman appearing in the Gotham Gazette. Here are excerpts:

In 2015, New York Governor Andrew Cuomo announced a project to provide pro bono legal services to prisoners seeking clemency.  The governor explained that this was “a critical step toward a more just, more fair, and more compassionate New York,” and that he sought to “identify those deserving of a second chance and to help ensure that clemency is a more accessible and tangible reality.”

Two years later, the governor re-emphasized his interest in clemency via a press release stating that “Family members of individuals serving prison sentences are encouraged to apply for clemency on behalf of their family member.”

This expressed interest in clemency, more specifically clemency in the form of a commutation of sentence, reverberated across New York’s patchwork of 50 state prisons.  Men and women serving lengthy sentences with no chance of ever obtaining their freedom now had hope.  People who spent their time wasting away in their cells began to re-engage with programs.  Family visits reflected renewed promise of the possibility of unification beyond the prison walls.

In short order, CUNY Law School’s clemency project received more than 1,800 requests for help with clemency applications.

Yet not a single person had their sentence commuted in 2019 despite an abundance of robust and meritorious applications.  Then on Friday, January 3, 2020 at 6:15 p.m., an auspicious time for any gubernatorial announcement, Governor Cuomo revealed that clemency requests for commutations had been granted to two people.  Two people out of thousands of applicants.

Apparently, the promise of making clemency an “accessible and tangible reality” was nothing more than a cruel, soul-crushing hoax....

In present terms, clemency is the most readily available means to repair the nationally acknowledged crisis of mass incarceration that has devastated communities of color.  Mass incarceration is not just about unnecessarily incarcerating masses of people, but rather unnecessarily keeping masses of people in prison for decades.  Clemency is a means to address that brutal reality.

Furthermore, while clemency is usually cast as an act of mercy, we all stand to gain when clemency is granted to deserving people.  They are reunited with their families.  They care for aging parents.  They are the true credible messengers who mentor young people who might be on the wrong path.  They have jobs and contribute to the economy. And the taxpayer no longer needs to pay for the medical care required for older people in prison, among other costs. Liberal application of clemency makes us all safer and better.

Many of the men and women who submitted clemency applications based on renewed hope inspired by Governor Cuomo’s words are now saying that false hope is worse than no hope.  The wife of one of those men put it best in a tweet: “My husband wrote that he, his good friends, and more than 100 others sat on the edge of their metal beds all month [of December] waiting...PLEASE recognize the strides these men have made and show them mercy and use your redeeming power as the leader of this state.”

While clemency is typically cast as an end of year event consistent with holiday sentiments of mercy, charity, and forgiveness, surely there must be room for mercy, charity, and forgiveness more than once a year.  And surely, there are more than two people among the 45,000 in New York State prisons who deserve the measure of mercy afforded by a sentence commutation.

I am pleased to see this effort to call out Gov Cuomo for talking the talk, but then failing to walk the walk on clemency. The same also can and should be said about Prez Trump's clemency record. It is now more than 19 months since Prez Trump started talking about reviewing thousands of cases for possible clemency relief, but he has only granted a handful since then.

Prior related post:

January 12, 2020 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Saturday, January 04, 2020

Despite creating lots of clemency hope, NY Gov Cuomo delivers little clemency relief

This New York Daily News article, headlined "Gov. Cuomo grants clemency to abused upstate woman convicted of murder as advocates call for more action," reports on the clemency grants issued yesterday by New York Andrew Cuomo. Here are the details:

An upstate woman convicted of murder after suffering physical and emotional abuse at the hands of her husband had her 50-year prison sentence commuted by Gov. Cuomo on Friday. Monica Szlekovics, along with her abusive husband, was found guilty of a 1996 murder in Rochester.

Szlikovics, 42, had a traumatic childhood and endured “extreme, ongoing physical and psychological abuse from her husband,” said a statement from Cuomo’s office. She suffered from complex post-traumatic stress disorder and trauma bonding when her husband forced her to take part in the slaying, the statement said.

In her more than two decades behind bars, Szlekovics has expressed remorse for her role in the murder, completed a bachelor’s degree in sociology, worked as a clerk for the prison college program and participated in domestic violence classes. She also has the support of domestic violence groups and women’s justice advocates....

Cuomo also commuted the sentence of Ryan Brice, 32, who turned to crime to make money after his family lost their home and possessions from flooding during Hurricane Irene in 2011. Albany cops caught Brice trying to raise cash by selling a loaded assault rifle for $1,200, leading him to plead guilty to a charge of criminal weapons possession. He was sentenced to prison as a violent offender — even though he never committed any violent acts, the governor’s office said.

Cuomo pardoned nine others convicted of a variety of charges who have remained crime-free since serving their time. Most of those pardoned were convicted of misdemeanor drug charges. He called those who he granted clemency "deserving New Yorkers who have proven their remorse and undergone successful rehabilitation.”

Advocacy groups say Cuomo has failed to follow through on promises to assist more convicted criminals who have demonstrated remorse and accountability. The Release Aging People in Prison Campaign issued a scathing statement Friday calling on Cuomo to show mercy to more of the thousands of prisoners who have applied to have their sentences shortened....

Since 2011, Cuomo has commuted the sentences of only 21 people — most famously that of Judith Clark, who drove a getaway car in the 1981 Brink’s robbery that left three people dead. The commutation in 2016 move made Clark eligible for parole; she was released from prison last June. In 2018, Cuomo issued around 30 pardons, mostly to immigrants who were at risk of deportation. He also commuted the sentences of nine prisoners.

The official statement from Gov Cuomo about the 11 clemency grants can be found here, and the statement from The Release Aging People in Prison Campaign can be found here. Here is an excerpt from that later statement:

As New York celebrates a new year and decade, thousands of New Yorkers continue to languish behind prison bars in 2020 because the governor continually refuses to use his executive clemency power in a meaningful way.  While governors in Kentucky, Oklahoma, Pennsylvania, California, and other states have recently used their executive power to promote freedom and reunite families, Cuomo continues to keep people in despair and families apart.

In 2015, Cuomo invited pro bono attorneys to help incarcerated people put together clemency petitions with the goal of granting more clemencies to worthy candidates.  More than 6,000 New Yorkers in prison responded by applying for clemency in ways that demonstrated their remorse, accountability, many accomplishments, family and reentry support, and more.  Yet to date, Cuomo has granted only 21 total commutations, an average of two per year since taking office in 2011.

If New York is to be a leader in the movement to end mass incarceration and the nationwide effort to resist President Trump’s racist agenda, then we need a progressive governor to show bold courage and leadership. Justice for one or two individuals isn’t enough.

More than a few notable folks have used Twitter (such as Profs Rachel Barkow and Steve Zeidman) to expresss similar disappointment at Gov Cuomo's failure to walk the clemency walk after having long talked up his clemency powers.

January 4, 2020 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, December 31, 2019

Illinois Gov pardons more than 11,000 people convicted of low-level marijuana crimes

As reported in this local article, "On the day before recreational cannabis becomes legal in Illinois, Gov. J.B. Pritzker announced he was pardoning more than 11,000 people who had been convicted of low-level marijuana crimes." Here is more:

“When Illinois’ first adult use cannabis shops open their doors tomorrow, we must all remember that the purpose of this legislation is not to immediately make cannabis widely available or to maximize product on the shelves, that’s not the main purpose, that will come with time,” Pritzker said to a crowd at Trinity United Church of Christ on the Far South Side. “But instead the defining purpose of legalization is to maximize equity for generations to come.”

Pritzker, who has touted the social equity elements of the recreational pot law he signed this summer, was joined Tuesday by state, county and local leaders including Cook County State’s Attorney Kim Foxx, who has already begun the process of clearing the records of those with low-level marijuana convictions in her jurisdiction.

The 11,017 people pardoned by Pritzker will receive notification about their cases, all of which are from outside Cook County, by mail. The pardon means convictions involving less than 30 grams of marijuana will be automatically expunged.

Pritzker and other elected officials said they believe Illinois is the first state to include a process for those previously convicted of marijuana offenses to seek relief upon legalization of cannabis. “This is justice,” said Lt. Gov. Juliana Stratton. “And this is what equity is all about, righting wrongs and leveling the playing field.”...

Officials estimate there are hundreds of thousands of people with marijuana-related convictions in Illinois who could be eligible for relief. Those with criminal convictions can get a copy of their criminal record and start the process, though many of the cases will be automatically expunged by the state in the next couple of years.

The Illinois State Police are searching criminal records to identify eligible cases, which are then sent to the state’s Prisoner Review Board. After the board reviews the cases, the names of those eligible for relief are sent to the governor’s office to be considered for pardon. After Pritzker issues the pardon, the attorney general’s office automatically files petitions on the person’s behalf to expunge the records.

State’s attorney offices across the state are also being notified of eligible cases, which can then be vacated by a local judge. In Cook County, prosecutors are working with California-based Code for America to search for convictions involving less than 30 grams of cannabis. Those cases have resulted in both misdemeanor and Class 4 felony convictions....

Individuals with cases involving 30 to 500 grams of cannabis can also be eligible for relief, but the process won’t be automatic, instead requiring the person to file motions to vacate the conviction, according to the governor’s office.

While a pardon forgives a conviction, an expungement erases it from the public record. When a judge vacates a conviction, it overturns it as if it never happened. When a case is expunged, the case is hidden from public view, but it could be viewed by law enforcement if they obtained a court order.

Many of the elected officials noted that enforcement of marijuana-related offenses have disproportionately affected minorities. The Rev. Michael Pfleger, of St. Sabina Church on the South Side, said the elected officials on the stage had done their job, but it would be up to business leaders in the new industry to provide financial mobility for those individuals. “Employ these individuals," Pfleger said to the crowd. “Give them a job.”

Ald. Walter Burnett Jr., of the 27th Ward, noted that a pardon for an armed robbery conviction decades ago changed his life and allowed him to serve in public office. He invoked Martin Luther King Jr.'s words to describe how he felt when his record was expunged and how others might feel when they hear news of the pardons. “Free at last,” Burnett said. “Free at last. Thank God almighty, they are free at last.”

Cross-posted at Marijuana Law, Policy and Reform.

December 31, 2019 in Clemency and Pardons, Marijuana Legalization in the States, Pot Prohibition Issues, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Monday, December 23, 2019

Another round of headlines highlighting continuing controversies surrounding former Kentucky Gov Bevin's pardon flourish

In this post nine days ago, I rounded up some representative headlines and stories covering former Kentucky Gov Matt Bevin's considerable and controversial clemency grants as he relinquished power in December.  As I mentioned before, there are many elements to what Bevin did with his clemency pen, and the resulting controversies have continued to rage.  Once again, I will try to use headlines and links to numerous pieces to provide even more flavor of the grants and some commentary that has followed:

From the Louisville Courier Journal, "Working weekends, late nights, Gov. Matt Bevin rushed to issue hundreds of pardons"

From the Louisville Courier Journal, "Former Kentucky Gov. Matt Bevin defends controversial pardons, blames outrage on 'political opportunism'"

From USA Today, "Republican mega-donor urged ex-Kentucky Gov. Matt Bevin to pardon convicted killer"

From the New York Times, "Matt Bevin Drew Outrage Over His Pardons. These Governors Have, Too."

From WHAS11, "Man pardoned by Bevin, gives back to Chickasaw community: Tod Moore created New Day Ministries while in prison and handed out new bikes to kids in time for Christmas"

From the Louisville Courier Journal, "Opinion: Feds should investigate child molesters pardoned by Bevin"

From the Lexington Herald Leader, Opinion: "Don’t let Bevin’s pardons slime the legislature’s important work on criminal justice reform"

From Patheos, "On Bevin’s Pardons and Prison Abolitionism"

I would need dozens more links to adequately cover all the important facets of this story, and so I will conclude with a link to this effective piece titled simply "A lawyer looks at Bevin’s pardons." The piece, which is authored by Jazmin Smith, merits a read in full and it starts and ends this way:

Kentucky is one of only three states that have no form of civil rights restoration by statute. If you listen to My Old Kentucky Podcast, you’ve only heard me say that 100 times. That’s why pardons, commutations, and executive orders are so important. Only our executive has the ability to restore a person’s rights....

A few things have been really frustrating about Pardon-Gate. Pardons are good and so many people are worthy of them. This negativity may make executives less willing to use their pardon power and I think the reaction, especially by those who claim to be progressive or passionate about criminal legal reform, is imprudent and bad for the reform movement.

The way the media treated the pardons is also upsetting. The NPR headline “On His Way Out, Kentucky Gov. Matt Bevin Pardons Murderers, Rapists, Hundreds More” is extremely unhelpful, as is the Courier-Journal article that decided the 12 “most controversial pardons.” Many stories in the media also featured only interviews from the prosecutors on the case, and of course, the prosecutor wants the person they prosecuted to be in prison. Choosing to feature only interviews from prosecutors in articles about pardon reactions is just bad and lazy journalism.

Finally, Matt Bevin pardoned many people who have turned their lives around and have done awesome work, like Amanda Hall at the ACLU, and that is getting overshadowed. Horrific comments and racial data aside, I’m still glad he pardoned these people. They all served time, and though maybe some were more deserving than others, I don’t think the Commonwealth is less safe than it was before.

While I think those pardons are good, Bevin is definitely not blameless. Pardoning your friend’s kid and people who financially supported you is a super easy way to get the media to attack you. The huge reaction has been frustrating, but Bevin is the one to blame for creating it. The fact remains that Kentucky is incarcerating people too often and for too long. Any limits on the pardon power that come from this will be a real shame.

December 23, 2019 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Saturday, December 14, 2019

A Kentucky clemency controversy captured in headlines

Just under two decades ago, Prez Bill Clinton created a huge stir when granting 140 pardons and a few commutations on his very last day of office.  That controversy comes to mind as I see news about former Kentucky Gov. Matt Bevin's clemency spree as he relinquished power in the last few weeks.  This Kentucky clemency controversy has many elements, so I figured I would use headlines of numerous press pieces to provide an overview:

From NPR, "Outgoing Kentucky Gov. Matt Bevin Issues 428 Pardons, Many Which Are Controversial"

From CNN, "Former Kentucky governor pardons convicted child rapist"

From the Louisville Courier Journal, "Kentucky governor pardons convicted killer whose brother hosted campaign fundraiser for him"

Also from the Louisville Courier Journal, "Senate President Robert Stivers wants feds to investigate Matt Bevin's pardons"

From The Hill, "McConnell: Bevin pardons 'completely inappropriate'"

Also from The Hill, "Former Kentucky Gov. Bevin defends pardons amid backlash"

Also from NPR, "Kentucky Lawmaker Wants Constitutional Amendment to Reform Governor's Pardoning Power"

December 14, 2019 in Clemency and Pardons, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (4)

Terrific new editorial about Ohio Gov DeWine's terrific new "Expedited Pardon Project"

Because I am directly involved in Ohio Governor Mike DeWine's exciting new "Expedited Pardon Project," I had an inkling I would like this new Columbus Dispatch editorial when I saw the headline "For those deserving pardons, relief is better sooner than later."  Wonderfully, not only does the editorial rightly praise Gov DeWine for his vision and leadership, it also captures in a few paragraphs why this new program is so valuable for everyone involved.  I recommend the editorial in full, and here are excerpts:

We welcome a movement in Ohio to make the criminal justice system more compassionate and pragmatic, and the Expedited Pardon Project recently announced by Gov. Mike DeWine is another positive development.  The goal is to make it easier and much faster for nonviolent former felons who have stayed out of trouble for at least a decade to receive formal pardons.

It’s not just a matter of pride; a felony conviction is a shackle that can keep people from reaching a good job, safe housing, an education loan or any number of things that could make the difference between getting ahead and giving up....

DeWine’s idea is to enlist the help of law students and educators at Ohio State University’s Moritz College of Law and the University of Akron School of Law to vet applications and zero in on those who do have a chance: those who have committed no further crimes for at least 10 years; have paid any court-ordered fines and restitution; are working or have a good reason not to be; and have done volunteer or community service work. Those whose applications meet the criteria are expected to get a hearing before the parole board within six months.

The law schools deserve thanks for lending much-needed manpower to such a worthy cause, but they also are likely to benefit. Delving into those applications should give students and seasoned lawyers alike a better understanding of how the criminal justice system affects the lives of the human beings caught up in it.  That can’t help but make for more-enlightened lawyers and judges down the road, and that benefits everyone....

Punishment for a single nonviolent criminal episode should end when the prison sentence ends. Society has nothing to lose and much to gain by helping reclaim lives.

Related posts and links:

December 14, 2019 in Clemency and Pardons, Who Sentences | Permalink | Comments (0)

Tuesday, December 10, 2019

"Guiding Presidential Clemency Decision-making"

The title of this post is the title of this notable new paper authored by Paul Larkin now available via SSRN.  Here is its abstract:

The Article II Pardon Clause grants the president authority to grant clemency to any offender for any reason he deems justified.  The clause contains only two limitations. The president cannot excuse someone from responsibility for a state offense, nor can he prevent Congress from impeaching and removing a federal official.  Otherwise, the president’s authority is exclusive and plenary.  It is, perhaps, the only surviving aspect of the royal prerogatives.

What the clause does not do is give the president a standard, a guideline, or a decision tree for making clemency decisions.  Presidents have used that power for legitimate, traditionally accepted reasons, such as freeing someone who was wrongfully convicted, who is suffering under an unduly onerous punishment, or who has atoned for his crimes and turned his life around.  Nevertheless, neither the president nor the Department of Justice Pardon Attorney, who is responsible for managing the government’s clemency process, has devised a standard for the president to use when making clemency decisions.  The Pardon Attorney has compiled a list of relevant factors, but has not identified which ones are necessary and sufficient, nor has that official assigned those factors an ordinal relationship or different weights.  The result is that a president is left to act like a chancellor in equity by relying on his subjective assessment of the “the totality of the circumstances.”

This Article discusses the need to make pardon and commutation decisions in a reasonable, orderly manner that would systematize and regularize the Pardon Attorney’s recommendation process and the president’s decision-making. An objective approach would help the president make decisions consistent with longstanding rationales for punishment.  The hope is that, in so doing, the president will be able act justly as well as to persuade the public that the federal clemency system is open to all, not merely to the president’s financial or political allies, cronies, supporters, or people he knows.  At one time, presidential clemency was a way to wipe the slate clean and give the average person a second chance.  It no longer serves that role.  Clemency is a subject where we should turn back the clock.

December 10, 2019 in Clemency and Pardons, Who Sentences | Permalink | Comments (1)

Saturday, December 07, 2019

Following pardon board recs, Pennsylvania Gov Wolf commutes eight life sentences

As reported in this local article, headlined "Wolf commutes eight, brings clemency total to 19, the third-highest among Pa. governors," the Governor of Pennsylvania is making some notable use of his clemency powers.  Here are the details:

With the stroke of a pen on Thursday, Gov. Tom Wolf cut short sentences for eight people serving life in Pennsylvania prisons.  Wolf signed off on eight commutations on Thursday, according to a statement by his office — an action that will allow the recipients to walk free after spending decades incarcerated.

All of the individuals who received commutations had the unanimous endorsement of Pennsylvania’s Board of Pardons, a five-member board that hears clemency applications.  “The [pardoned] individuals have used their time in prison to rehabilitate themselves, remained largely free of any incident, and show remorse for their actions and victims,” Wolf’s spokesman, J.J. Abbott, said in a written statement.

All eight commutation recipients must spend one year in Community Corrections Centers before they can return to their families and communities, Abbott said.  They will then remain under parole supervision for the rest of their lives.

The state Board of Pardons logged its busiest day in decades this September when it voted to send nine commutation applications to Wolf’s desk.  Wolf deferred signing off on one of those applications — that of Charles Goldblum, who has served nearly four decades in state prison for his role in the 1976 murder of George Wilhelm in downtown Pittsburgh.

Wolf did not say in his release why he decided to hold Goldblum’s application under further consideration.  Goldblum, who has maintained his innocence for five decades, has already applied seven times to have his life sentence commuted. Each time, Wilhelm’s family has asked the Pardons Board to deny his bid for mercy.

Since taking office in 2015, Wolf has sought to reverse a decades-long trend that saw commutations grind to a near-halt in Pennsylvania.  He’s had assistance from Lt. Gov. John Fetterman, who took the helm of the Pardons Board when he was sworn in as Wolf’s deputy in January 2019....  Prior to Thursday, Wolf had already signed more commutation orders than his last four predecessors combined.

The eight most recent pardons bring his total number of commutations to 19 — the third-highest total of any Pennsylvania governor besides Milton Shapp, who commuted 250 life sentences between 1971 and 1979, and Bob Casey, who granted 27 between 1987-1994

UPDATE: This AP piece, headlined "Gov. Wolf approved inmate’s release after he served nearly 30 years; now he faces old shoplifting charge," provides a somewhat dispiriting follow-up. Here are the basics:

The debate over criminal justice reform and second chances grew heated Friday when a lifer freed by the Pennsylvania governor remained jailed over a lame-duck prosecutor’s efforts to hold him on a 1992 shoplifting charge involving stolen jeans.

David Sheppard, 54, had served nearly 30 years for his role in a fatal robbery that took the life of a beloved pharmacist in West Philadelphia. Sheppard was not the gunman, but was serving life for felony murder before the state pardons board and governor approved his release.

Hours before he was to leave prison Friday, outgoing Delaware County District Attorney Katayoun M. Copeland filed the detainer over his failure to show for court decades ago in the stolen jeans case.

"This store went out of business 25 years ago, and even got the items back," said Lt. Gov. John Fetterman, who chairs the five-member pardons board and called Copeland's tactic an abuse of power. "It's just about cruelty, saying I want to keep this guy locked up over Christmas, his first Christmas out, an individual who never took a life and served 30 years for his proximity to the crime. It's just vindictiveness."...

Copeland did not return phone messages Friday from The Associated Press, but in a statement said she opposed Sheppard's release because the victim's family was never notified about his petition. "The issue here is not about a shoplifting charge, it is the complete failure of the criminal justice system to give victims and their families a voice," Copeland said, echoing criticism that's been fired repeatedly at Krasner as he's implemented reforms. "Convicted felons are being empowered and extended leniency at the direct expense of victims and their families."...

Copeland, a Republican appointed last year when her predecessor became a judge, lost this month's election to Jack Stollsteimer, the first Democrat ever elected district attorney in the county's history. He promised to take a hard look at the case when he takes office in January. "Somebody's going to have to convince me that it is in the interest of justice that we are prosecuting this man for a 27-year-old retail theft," he said.

A judge, though, may beat him to it. Sheppard is expected to be brought to court Monday for a bail hearing on the shoplifting charge.

December 7, 2019 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, December 03, 2019

Honored to be helping Ohio Gov. DeWine with new "Expedited Pardon Project"

Fc30ff87-f68e-4eff-8986-b34c9efb8eaa-large16x9_OhioGovernorsExpeditedPardonProjectI am just back from an exciting gubernatorial press conference that was, conveniently, held in the building in which I work.  Ohio Governor Mike DeWine held the press event at The Ohio State University Moritz College of Law because OSU's Drug Enforcement and Policy Center (DEPC) is playing a big role in the Governor's new "Expedited Pardon Project." 

As the name suggests, this project aspires to expedite the process by which people apply for a pardon under Ohio's laws.  The Project was established in collaboration between Ohio Governor Mike DeWine, DEPC and the Reentry Clinic at The University of Akron School of Law.  The universities and the governor’s office have already worked together with the Ohio Department of Rehabilitation and Correction to create an expedited pardon application process, and the project was officially announced by Gov DeWine this afternoon.  This local press article provides some context and particulars:

Saying many ex-criminals deserve “a second chance to reach their full potential,” Gov. Mike DeWine on Tuesday announced a streamlined process for those who have served time in prison or jail to obtain a pardon.

The governor’s Expedited Pardon Project seeks to accelerate the clemency process for those who have proven themselves to become contributing members of society but whose criminal record bars them from employment, housing, or other aspects of their life.

The program is only open to those who have: A specific reason for seeking a pardon; Already been released from prison or jail; Not committed any additional crimes (other than minor traffic violations) in the past 10 years; Made good-faith efforts to pay any restitution or fines they owe; Have a post-offense job history or a compelling reason why they haven’t been working; Performed volunteer work or community service; Not been convicted of a number of disqualifying offenses, including murder, rape, and a number of other violent and/or sex-related crimes....

In some cases, the existing process for obtaining a pardon can take years.  DeWine said he hopes this program will reduce that wait time to six months.

Under the project, law-school students at Ohio State University and the University of Akron will help qualified applicants to prepare their pardon paperwork, then submit their information to the Ohio Department of Rehabilitation and Correction for extensive background checks.  The Ohio Parole Board will then hold a hearing for each applicant, during which victims, judges and prosecutors involved with his or her case can offer their thoughts.  The Parole Board will then vote the same day about whether to recommend clemency to the governor, who alone has the power under the Ohio Constitution to issue pardons....

Neither DeWine nor Annette Chambers-Smith, director of the state’s prison agency, knew how many people are eligible for the program.  DeWine said it will take about a year before he and other state officials can see how the program is working.

To learn more about the Expedited Pardon Program or to apply, visit ohioexpeditedpardon.org.

I have already learned a lot about pardon policies and practicalities in just the last few months as we have worked to help get this new "Expedited Pardon Project" launched.  I am hopeful I will be able to share my continuing education in this space in the months to come (while also reporting on what I hope will be a lot of successful pardon applications). 

December 3, 2019 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Friday, November 22, 2019

"Let’s pardon prisoners, not turkeys"

Regular readers know that I cannot let a holiday season go by without remarking repeatedly on the fact that clemency grants for cleverly named Turkeys are more consistent and predictable than for actual human beings this time of year.  I will start this season's clemency kvetching by spotlighting some passages from this new Washington Post commentary by Mark Osler with the same headline as the title of this post:

At some point before Thanksgiving, President Trump will likely pardon a pair of turkeys.  The turkeys will be given silly names (past recipients have included birds named Mac and Cheese), some children and White House staffers will look on, and there will be forced jokes and stiff laughter.

It’s painful to watch.  Worse, it mocks the raw truth that the federal clemency system is completely broken. While those two turkeys receive their pardons, nearly 14,000 clemency petitions sit in a sludgy backlog. Many of the federal inmates who have followed the rules, assembled documents, poured out their hearts in petitions and worked hours at a prison job just to pay for the stamps on the envelope have waited for years in that queue....

There is a deep sadness in all this: the graceless show of “pardoning” turkeys; the endless pile of files somewhere; the bizarre, tragic and wrong belief that a central constitutional power of the presidency has been delegated to a single well-meaning celebrity....

The Trump administration inherited a clemency review process that is seemingly designed to result in good cases not getting to the president.  Bureaucrats in the Office of the Pardon Attorney — which is buried deep in the Justice Department — review the cases when petitions are received.  Part of their job is to solicit the view of local prosecutors, the very people who sought the sentence in the first place, and Justice Department standards direct that the views of those prosecutors be given “considerable weight” in determining a recommendation.  From the start, there is a thumb on the scale.  That reviewer passes the case to the pardon attorney, who passes it to an official in the office of the deputy attorney general, who passes it to the deputy attorney general himself.  Then it goes to a staffer in the White House counsel’s office, then to her boss and finally to the president.  There is no evidence this system is working at all.  It is a pipe with seven valves that all must be opened at once by seven busy people with very different interests; we shouldn’t be surprised that nothing is flowing through.

Meanwhile, a more informal clemency process has emerged. This one is simple: A television channel, Fox News, makes recommendations directly to Trump, an avid watcher.  Most recently, two military officers received full pardons and another had his rank restored via this route. Previous recipients of Fox News-Trump clemency have included Joe Arpaio, I. Lewis “Scooter” Libby and Dinesh D’Souza.  I don’t begrudge any of them the break they received (though others do).  Alexander Hamilton was right to call clemency “the benign prerogative”; at worst, it produces mercy. My argument is for more clemency, not less.  The problem is that we have two systems, one formal and one informal, that both fail to deliver the level of mercy our history of retribution and over-incarceration requires.

November 22, 2019 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Saturday, November 16, 2019

Prez Trump grants clemency to three military men subject to various war crime prosecutions

As reported in this Military Times piece, "President Donald Trump on Friday granted clemency to three controversial military figures embroiled in charges of war crimes, arguing the moves will give troops 'the confidence to fight' without worrying about potential legal overreach."  Here is more about these grants:

Army 1st Lt. Clint Lorance, convicted of second degree murder in the death of three Afghans, was given a full pardon from president for the crimes.  Army Maj. Mathew Golsteyn, who faced murder charges next year for a similar crime, was also given a full pardon for those alleged offenses.  Special Warfare Operator Chief Edward Gallagher, who earlier this fall was acquitted of a string of alleged war crimes, had his rank restored to Chief Petty Officer by the president.

All three cases had been championed by conservative lawmakers and media personalities as an overreaction to the chaos and confusion of wartime decisions.  But critics have warned the moves could send the message that troops need not worry about following rules of engagement when fighting enemies abroad.

“The President, as Commander-in-Chief, is ultimately responsible for ensuring that the law is enforced and when appropriate, that mercy is granted,” the White House said in a statement. “For more than 200 years, presidents have used their authority to offer second chances to deserving individuals, including those in uniform who have served our country. These actions are in keeping with this long history.”

Pentagon leaders privately had expressed reservations about the moves, but Defense Secretary Mark Esper has declined comment on the rumored actions in recent days. Last week, he said that he had a “robust” conversation with Trump about the proposed pardons and clemency and that “I do have full confidence in the military justice system and we’ll let things play out as they play out.”

The Army announced it will implement Trump’s pardons.... In the wake of Trump’s decision, the official twitter account of Rear Adm. Charles Brown, the Chief of Naval Information, indicated that Navy leaders “acknowledge his order and are implementing it.”

While Gallagher was acquitted of murder and obstruction of justice charges in July, a panel of his peers recommended he be reduced in grade for posing with the body of a detainee, a crime he never denied.

Lorance’s case dates back to a 2012 deployment to Afghanistan, when he ordered his soldiers to fire on three unarmed men riding a motorcycle near their patrol. Members of his platoon testified against him at a court-martial trial, describing Lorance as over-zealous and the Afghans as posing no real threat. He was sentenced to 19 years in prison at Fort Leavenworth, Kansas. In recent years, Lorance and his family had waged a long campaign against his sentence, and found a receptive ear in Trump.

Golsteyn’s case had not yet been decided. He was scheduled for a December trial on charges he murdered an alleged Taliban bomb maker, and burned his remains in a trash pit during a 2010 deployment with 3rd Special Forces Group. Trump’s action effectively puts an end to that legal case before any verdicts were rendered....

Trump overturned a decision by Chief of Naval Operations Adm. Mike Gilday announced on Oct. 29 that preserved Gallagher’s demotion to petty officer first class. Gallagher’s legal team had urged the four-star to show mercy for a highly decorated SEAL whose case was plagued by allegations of corruption inside the Judge Advocate General’s Corps and the Naval Criminal Investigative Service. Gallagher’s court-martial trial for murder and other alleged war crimes collapsed and a panel of his peers convicted him on the sole charge of positing for a photo next to a dead Islamic State detainee, a charge he never denied.

Before the trial kicked off, a military judge booted Cmdr. Christopher Czaplak, the lead prosecutor, for his role in a warrantless surveillance program cooked up with NCIS to track emails sent by defense attorneys and Navy Times. Prosecutors and agents also were accused of manipulating witness statements; using immunity grants and a bogus “target letter” in a crude attempt to keep pro-Gallagher witnesses from testifying; illegally leaking documents to the media to taint the military jury pool; and then trying to cover it all up when they got caught.

In a prepared statement sent to Military Times by attorney Phil Stackhouse, Golsteyn’s family said they were “profoundly grateful” that the president ended the soldier’s prosecution. Stackhouse said Golsteyhn spoke with the president by telephone “for several minutes” on Friday.

“We have lived in constant fear of this runaway prosecution," Golsteyn said in the statement. "Thanks to President Trump, we now have a chance to rebuild our family and lives. With time, I hope to regain my immense pride in having served in our military. In the meantime, we are so thankful for the support of family members, friends and supporters from around the nation, and our legal team.”...

Trump has exercised his pardoning powers often during his administration, including in the case of another soldier earlier this year. Former 1st Lt. Michael Behenna had been paroled from Leavenworth in 2014, after receiving a 15-year sentence for murdering an alleged al-Qaida operative in Iraq in 2009.

And in 2018, he pardoned former Machinist’s Mate 1st Class Kristian Saucier, who spent a year in jail after pleading guilty in 2016 to taking cell phone photos of his work space on board the attack submarine Alexandria ― prohibited, as the entirety of a submarine is considered a classified area.

This official statement from the White House about these clemency grants discusses the cases further and concludes with this paragraph:

The President, as Commander-in-Chief, is ultimately responsible for ensuring that the law is enforced and when appropriate, that mercy is granted.  For more than two hundred years, presidents have used their authority to offer second chances to deserving individuals, including those in uniform who have served our country.  These actions are in keeping with this long history. As the President has stated, “when our soldiers have to fight for our country, I want to give them the confidence to fight.”

November 16, 2019 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, November 05, 2019

Very different looks on criminal justice reform for governors in Oklahoma and New York

As spotlighted in prior posts here and here and here, Oklahoma this week saw a series of interesting and important criminal justice reform efforts culminate in the release of more than 400 prisoners as part of the largest mass commutation in U.S. history (details here).  Thanks to Twitter, I saw this video clip of persons being released from the Eddie Warrior Correctional Center.  Notably, in addition to being greeted by friends and families, the released individuals also saw Governor Kevin Stitt and First Lady Sarah Stitt awaiting their release to congratulate them.

Not long after I saw this video and the heartening involvement of Oklahoma Governor Stitt in this historic criminal justice reform story, I saw this press article discussing the disheartening work of New York Governor Cuomo is a much more discouraging criminal justice story.  The piece is headlined "Gov. Cuomo's Program for More Clemency Applications Appears to Stall, As Prisoners Wait and Hope for a Second Chance," and here are excerpts:

Governor Andrew Cuomo’s program to help more prisoners apply for clemency in New York State appears to be stalled and the Governor’s office is declining to explain why.

In 2017, Cuomo asked lawyers to volunteer to help identify prisoners worthy of his mercy, and assist them in making their best case for a shortened sentence. More than two hundred lawyers stepped up. But two years and thousands of pro bono hours later, Governor Cuomo has neither approved nor denied any of the 107 clemency applications filed through the program.

“It’s discouraging. We’ve put a lot of resources into it.” said Norman Reimer, executive director of the National Association of Criminal Defense Lawyers, which partnered with Families Against Mandatory Minimums and the State at the Governor’s request. “We put people away for ridiculous amounts of time, often for mistakes they made when they were very young,” Reimer added.

Lawyers involved in the NACDL/FAMM project tell News 4 because there has been no action in these cases, they are reluctant to take on new prisoners. More than 1,600 prisoners are currently waiting to be assigned attorneys through the project. “The idea that you can’t find a single one of those to grant is inconceivable to me. There’s just no greater feeling than giving somebody freedom,” said NYU Law Professor Rachel Barkow and author of "Prisoners of Politics."

The power to commute a prisoner’s sentence rests solely with the Governor. NACDL says the Cuomo administration has been highly cooperative, producing records and helping to vet cases.

Cuomo administration insiders familiar with the clemency review process say the problem is not that these cases are being ignored. Sources with first hand knowledge say the cases submitted by NACDL/FAMM were carefully reviewed by a team of attorneys inside the office of the Counsel to the Governor. They say the team identified a group of worthy candidates for a possible mid-year clemency grant this past Spring, but the Governor did not act.

Timing, they speculated, may have played a role, citing pushback from some law enforcement groups for Cuomo’s role in the early release of Judith Clark in May 2019. Clark was the getaway driver in the deadly 1981 Brink’s robbery and the Governor commuted her sentence to make her eligible for early parole. One person who has discussed the project at length with the Governor’s senior staff described a sense that politically speaking, “the bang was not worth the buck.”

Several sources familiar with the internal review process say the Governor’s office may have been taken aback by the large number of applications lawyers submitted on behalf of prisoners who committed violent felonies. These cases are more politically sensitive for a governor, because it is not uncommon for district attorneys, law enforcement groups and family members of victims to oppose early release.

But Norman Reimer says if the severity of the crimes is the reason for Cuomo’s inaction, that’s not how the governor’s office promised to approach this process. “What I like about Governor Cuomo’s initiative is he didn’t limit it based on the nature of the crime," said Reimer. "We pressed that issue and it was an affirmative decision by them to let the person’s record of rehabilitation speak the loudest, even in violent crimes.”

Governor Cuomo’s office did not respond to repeated requests for an explanation for his inaction on the NACDL/FAMM cases, nor for a breakdown of the clemency grants he has issued. According to public reports, Cuomo has commuted at least 18 sentences in almost nine years, including three in 2018.

Barkow says compared with some other Democratic governors, Cuomo has used his executive clemency powers sparingly. Gavin Newsom of California commuted the sentences of 23 prisoners since September of this year, including prisoners involved in violent felonies....

In last year's primary, the progressive wing of the Democratic party hammered Cuomo for what they considered insufficient criminal justice reforms. “The people who care about these issues want to see real results,” said Professor Barkow. “They want to see that people are walking the walk and not just kind of throwing talk out there.” As for Cuomo’s record on justice issues like clemency and marijuana legalization, Barkow added “It seems like the pattern is to wait and just make sure where the political winds are blowing.”

November 5, 2019 in Clemency and Pardons, Elections and sentencing issues in political debates, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Friday, October 25, 2019

Despite Sixth Circuit approval of existing execution protocol, Ohio Gov Mike DeWine signals his plans to delay another scheduled execution

Despite having many execution dates scheduled, Ohio has not completed an execution in more than a year because of concerning about lethal injection problem that prompted outgoing Gov John Kasich and new Gov Mike DeWine to keep pushing back executions dates. But after a Sixth Circuit ruling blessed the state's reliance on the drug midazolam in its execution protocol (details here), I had thought the Buckeye state might seek to restart its machinery of death. But this new local article, headlined "Gov. Mike DeWine says Ohio’s next scheduled execution will ‘probably’ be delayed," suggests the state will not likely go forward with an execution planned for December. Here are the details:

Gov. Mike DeWine indicated Friday that he will delay yet another upcoming Ohio execution, citing — as he has with past postponements — problems with finding lethal-injection drugs.  DeWine told reporters Friday that it’s “highly unlikely” that the execution of murderer James Galen Hanna will proceed as planned on Dec. 11. “That’s probably not going to happen,” the Greene County Republican said.

DeWine noted the state’s ongoing issues with finding a pharmaceutical company willing to sell drugs for use in executions. The governor repeated his concern that if companies find that Ohio used its drugs to put people to death, they will refuse to sell any of its drugs (not just the ones used in executions) to the state.  That would endanger the ability of thousands of Ohioans — such as Medicaid recipients, state troopers, and prison inmates — to get drugs through state programs. “We are in a very difficult situation,” DeWine said Friday.

The governor didn’t say how long he might delay the execution date for Hanna, a Warren County resident who fatally stabbed a cellmate with a paintbrush handle in 1997.  If Hanna’s execution date is pushed back, the next death-row inmate set to die is Kareem M. Jackson on Jan. 16, 2020.  Jackson was initially scheduled to be put to death in July, but earlier this year DeWine moved back the execution dates for Jackson and two other condemned inmates.

Late last month, the governor moved back the execution date of murderer Cleveland Jackson from Nov. 13 to Jan. 13, 2021 after the Ohio Supreme Court’s disciplinary arm filed a complaint alleging that his lawyers abandoned him.

Since taking office in January, DeWine has moved back a number of scheduled executions amid a years-long struggle by Ohio officials to find new lethal-injection drugs as European pharmaceutical companies have cut off further sales of previously used drugs on moral and legal grounds.

After the controversial execution of killer Dennis McGuire in January 2014, Ohio imposed a three-year moratorium on executions as it worked to find a new lethal-injection protocol — and suppliers willing to sell the state the drugs.

Since the moratorium was lifted in 2017, Ohio has executed three people using the current three-drug cocktail — all without complications or unexpected problems with the drugs. (The execution of a fourth condemned inmate, Alva Campbell, was postponed after several unsuccessful attempts to insert an IV. Campbell died in his cell a few months later).

However, last January, federal magistrate Judge Michael Merz ruled that the three drugs Ohio has used since last year for executions — midazolam (as a sedative), a paralytic drug, and potassium chloride (to stop the heart) — likely violate the U.S. Constitution’s Eighth Amendment guarantee against “cruel and unusual punishment.”  While an appeals court later overruled Merz’s conclusion, the ruling led DeWine to order state prisons officials to look at other lethal-injection drugs.  The governor has even suggested that state lawmakers consider abandoning the lethal-injection process altogether and pick another method of execution.

This story has me thinking of the old phrase "Where there's a will, there's a way." In this context, though, the parallel force seems to be in play. I sense many Ohio official really do not have much of a will to move forward with executions, and thus it seems they keep struggling to find a way to do so.

A few (of many) prior recent related posts:

October 25, 2019 in Baze and Glossip lethal injection cases, Clemency and Pardons, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Tuesday, October 01, 2019

Missouri Gov denies clemency request to Russell Bucklew hours before his potentially "gruesome" execution... which went forward seemingly without difficulty

As reported in this CNN article, headlined "A man set to be executed tonight could suffer a 'gruesome' death because of his rare disease, activists say," the last person in Missouri who could have readily stopped a high-profile execution has decided to allow it to go forward tonight.  Here are the details:

Missouri's governor has refused to stop what activists say would be "one of the most gruesome" executions in US history.

Russell Bucklew, 51, is scheduled to die by lethal injection at 6 p.m. (7 p.m. ET) Tuesday. He was convicted of first-degree murder, kidnapping and first-degree burglary in 1997.

Gov. Mike Parson turned down a clemency request, said his press office, without providing additional detail.

Bucklew suffers from a rare blood vessel disorder called cavernous hemangioma.  The disease can cause tumors in the head and regular bleeding from the mouth, nose, eyes and ears.  An execution by lethal injection could cause prolonged suffocation and excruciating pain, Bucklew's attorneys have said.  Bucklew argued the state should consider death by lethal gas as an alternative.

In April, the Supreme Court ruled against Bucklew in a 5-4 decision, which means plans for the lethal injection can proceed.  Justice Neil Gorsuch said the Eighth Amendment "does not demand the avoidance of all risk of pain" in carrying out executions....

But the American Civil Liberties Union said executing Bucklew would violate the Constitution's prohibition against cruel and unusual punishment.  "What makes (Bucklew's) execution different is that he has a medical condition that would make it one of the most gruesome in U.S. history," the ACLU wrote.  It said Bucklew's tumors "will likely rupture during the lethal injection process, causing him to hemorrhage, choke, and suffocate in his own blood."...

Bucklew was convicted of fatally shooting his ex-girlfriend's presumed new boyfriend, Michael Sanders, and firing at Sanders' son before kidnapping Stephanie Ray Pruitt.  After raping his ex-girlfriend, court documents state, Bucklew was involved in a gunfight in which he and a Missouri state trooper were injured.

UPDATE: This AP article reports that the execution of Russell Bucklew went forward in the state of Missouri this evening and seemingly was not gruesome at all:

A Missouri man was executed Tuesday for killing a man during a violent 1996 crime spree, despite concerns the inmate's rare medical condition would cause a gruesome lethal injection. Russell Bucklew was executed at the state prison in Bonne Terre. It was Missouri's first execution since January 2017....

Bucklew looked around and twitched his feet beneath the sheet as he lay on the gurney just before the lethal injection. He suddenly took a deep breath and all movement stopped. He showed no outward signs of distress.

Cheryl Pilate, one of Bucklew's attorney's, said several steps were taken to try to ensure that he didn't suffer, including sedating him prior to the execution and elevating the gurney to help prevent him from choking. "We believe the significant efforts that went into making this a less horrible process were beneficial," Pilate said.

October 1, 2019 in Baze and Glossip lethal injection cases, Clemency and Pardons, Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)