Wednesday, June 12, 2024

"The White House isn’t ruling out a potential commutation for Hunter Biden after his conviction"

The title of this post is the headline of this notable new AP article.  Here is how it begins: 

The White House is not ruling out a potential commutation for Hunter Biden, the president’s son who was convicted on three federal gun crimes and is set to be sentenced by a judge in the coming months.  “As we all know, the sentencing hasn’t even been scheduled yet,” White House press secretary Karine Jean-Pierre told reporters Wednesday on Air Force One as President Joe Biden traveled to the Group of Seven summit in Italy.

She said she has not spoken to the president about the issue since the verdict was delivered Tuesday. Biden definitively ruled out pardoning his son during an ABC News interview last week. “He was very clear, very upfront, obviously very definitive,” Jean-Pierre said of the president’s remarks about a potential pardon.  But on a commutation, “I just don’t have anything beyond that.”

A pardon is an expression of forgiveness of a criminal offense that restores some rights, such as voting, that a person loses upon conviction. Meanwhile, a commutation reduces a sentence but leaves the conviction intact.

The position from the White House is a shift from what it said in September, when Jean-Pierre was asked whether the president would “pardon or commute his son if he’s convicted.” The press secretary responded at the time that “I’ve answered this question before. It was asked of me not too long ago, a couple of weeks ago. And I was very clear, and I said no.”

Update on June 13This AP article reports on comments made by President Biden on this topic.  It startes this way: "President Joe Biden said Thursday that he will not use his presidential powers to lessen the eventual sentence that his son Hunter will receive for his federal felony conviction on gun crimes."

June 12, 2024 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (12)

Sunday, May 26, 2024

Any suggestions for whom else Donald Trump might pledge to free from federal prison "on day one" back in the Oval Office?

A few months ago, Donald Trump pledged on Truth Social that among his "first acts as your next President will be to ... Free the January 6 Hostages being wrongfully imprisoned!"   And, in a speech last night, as covered in this post, Trump sought to garner support from a libertarian crowd by announcing "If you vote for me, on day one I will commute the sentence of Ross Ulbricht, to a sentence of time served."

These clemency pledges got me to thinking that notable political contingents, or maybe even just a few key folks in a key swing state, might be able to cajole Trump into pledging to use his clemency pen a particular way.  Former NFL star Antonio Brown seemingly figured this out already, as this Fox News piece highlights he has been praising and pitching Trump on clemency fronts.  For example, given that supporters of Marilyn Mosby have so far had no success getting Joe Biden to grant her clemency, perhaps they ought to make a run at getting Trump to pledge clemency for her.   

The Mosby (tongue-in-cheek) idea aside, I do not think it would be foolish at all for Trump to seek to garner attention and favor from certain voters through clemency pledges.  Many criminal justice reform advocates have been quite disappointed that Joe Biden has not used his clemency pen more robustly and broadly.  Polling data suggests that young people and people of color are especially interested in criminal justice reform, and astute clemency pledges could make these important voting blocks take notice.

So, dear readers, any (specific or general) suggestions for whom else Donald Trump might pledge to free from federal prison "on day one" back in the Oval Office?

May 26, 2024 in Campaign 2024 and sentencing issues, Clemency and Pardons, Criminal justice in the Trump Administration, Sentences Reconsidered, Who Sentences | Permalink | Comments (16)

Saturday, May 25, 2024

Speaking to Libertarian convention, Donald Trump promises to commute prison sentence of Silk Road creator Ross Ulbricht

As reported in this Fox News piece, "Former President Trump on Saturday vowed to commute the prison sentence of Ross Ulbricht, the founder of the online drug-selling site Silk Road."  Here is more:

The GOP frontrunner made the pledge while addressing the Libertarian National Convention in Washington, D.C., in a bid to win over skeptical party activists, many of whom held up signs that read: "FREE ROSS."

"If you vote for me, on day one I will commute the sentence of Ross Ulbricht, to a sentence of time served," Trump said, winning the largest cheers of the night. "He’s already served 11 years. We’re going to get him home."

During his presidency, Trump considered intervening to release Ulbricht, but ultimately decided against the pardon.

Ulbricht, now 40, was sentenced in 2015 to life in prison by a judge who cited six deaths that resulted from drugs bought on his website and five people he tried to have killed.

Ulbricht operated the website between 2011 and 2013, when he was arrested.

Prior posts from 2015 when Ulbright was sentenced:

May 25, 2024 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Wednesday, May 22, 2024

Any predictions for this week's scheduled sentencing of former Baltimore prosecutor Marilyn Mosby?

What might be called the rise and fall of former Baltimore City State's Attorney Marilyn Mosby has way too many chapters and elements to cover adequately in this space.  But, tomorrow morning, her story formally becomes a sentencing story as U.S. District Judge Lydia Griggsby holds a hearing to sentence Mosby on multiple charges.  (Quirky side note: I went to high school with Judge Griggby, but I have not spoken with her in decades.)  This local news piece provides just a small window into some of the tales of Mosby:

Former Baltimore City State's Attorney Marilyn Mosby is just days away from her sentencing, months after juries in two separate trials convicted her on counts of perjury and mortgage fraud. Mosby has claimed these charges were politically and racially motivated. She even mounted a national campaign in the last few weeks for a presidential pardon.

In November and February, juries found Mosby guilty for lying in regard to a vacation home mortgage and for withdrawing from her retirement account early under the pretense of covid-related hardship.

In a court filing Monday, Mosby's attorneys continued to call for an alternative to prison time, like probation, citing the negative impact on her kids as a reason.

But, Mosby has also been stumping hard for a pardon from Pres. Joe Biden -- appearing on MSNBC and the nationally syndicated radio show The Breakfast Club. "I have been accused of doing something I have not done. I'm innocent. I'm facing 40 years for withdrawing funds from my retirement savings," Mosby said on The Breakfast Club. "The United States government, a global superpower, is coming for me."

Prosecutors have called for 20 months of prison time. In court filings, prosecutors have criticized Mosby's press tour. "She has displayed no remorse; she accepts no responsibility; she has no regrets for her actions; and she has consistently worked to undermine public faith in the justice system for her own benefit," prosecutors said in the filing.

In response to prosecutors, Mosby's attorneys said in court filings that, "Ms. Mosby has every right to maintain her innocence indefinitely."

More than a dozen civil rights organizations have pledged support for Mosby's pardon, as well as a number of high-profile names. One of the most recent names to support Mosby is Bernice King, the daughter of Martin Luther King Jr....

Prosecutors have also filed to seize her condo in Longboat Key, Florida. Mosby's attorneys said in court filings the government hasn't proved it's entitled to do that.

I have seen a lot of press pieces providing very different accounts of Mosby and her activities, and it will be interesting to see how Judge Griggsby sorts through persistent disagreements about the facts at sentencing. Long-time readers know I often see the mid-point of the parties' sentencing recommendation to serve as a reasonable over/under for any sentencing prediction.  So perhaps 10 months is a reasonable guess for how Judge Griggsby will weigh the 3553(a) factors here, though I have not followed the prior proceedings in this matter closely enough to make a truly informed prediction.

I assume Mosby is planning to appeal her convictions.  If Judge Griggsby imposes a relatively prison term, I am sure Mosby would seek bail pending appeal (which likely will be granted).  Consequently, even if a prison term were imposed, it could be a while until Mosby woud be required to report to prison (and, of course, calls for clemency would surely grow in that period). 

May 22, 2024 in Clemency and Pardons, Offender Characteristics, Offense Characteristics, Who Sentences | Permalink | Comments (10)

Wednesday, April 24, 2024

Prez Biden issues 11 pardons and five commutations to persons "convicted of non-violent drug offenses"

As stated in this press release from the White House, "President Joseph R. Biden, Jr. is using his authority under the Constitution to advance equal justice under law by granting clemency to 16 deserving individuals who were convicted of non-violent drug offenses." The release provide the names and various details about all the clemency recipients, though more background information is given concerning the 11 pardon recipients, and the basic sentence information is provided for the five persons who recieived prison sentence commutations. In this document, titled "Statement from President Joe Biden on Clemency Actions," comes this explanation:

America is a Nation founded on the promise of second chances. During Second Chance Month, we reaffirm our commitment to rehabilitation and reentry for people returning to their communities post incarceration.  We also recommit to building a criminal justice system that lives up to those ideals and ensures that everyone receives equal justice under law. That is why today I am announcing steps I am taking to make this promise a reality.

I am using my clemency power to pardon 11 individuals and commute the sentences of 5 individuals who were convicted of non-violent drug offenses. Many of these individuals received disproportionately longer sentences than they would have under current law, policy, and practice. The pardon recipients have demonstrated their commitment to improving their lives and positively transforming their communities. The commutation recipients have shown that they are deserving of forgiveness and the chance at building a brighter future for themselves beyond prison walls.

Like my other clemency actions, these pardons and commutations reflect my overarching commitment to addressing racial disparities and improving public safety. While today’s announcement marks important and continued progress, my Administration will continue to review clemency petitions and deliver reforms in a manner that advances equal justice, supports rehabilitation and reentry, and provides meaningful second chances.

The Department of Justice also has this list of the clemencies. It looks like most, but not quite all, of these clemency recipients were convicted and sentenced for crack offenses, with some of the pardon recipient crimes going back in the 1990s.  Most of the commutations are for folks given decades of imprisonment in the 2010s.

April 24, 2024 in Clemency and Pardons, Drug Offense Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (13)

Wednesday, March 13, 2024

Masschusetts Gov announces plans for mass pardon of all misdemeanor marijuana possession convictions in state

As repotted in this local article, Masschusetts "Gov. Maura Healey on Wednesday unveiled plans to pardon all people convicted of simple marijuana possession in Massachusetts." Here is more:

Her pardon was met with a round of applause from state elected officials, criminal justice reform advocates, people impacted by simple possession convictions and members of law enforcement who joined Healey for the announcement on the grand staircase steps inside the Massachusetts State House.  Though the exact number is unknown, Healey's office said the pardon could affect "hundreds of thousands" of people in Massachusetts.

Healey's pardon forgives all state court misdemeanor convictions for possession of marijuana before March 13, 2024. It does not apply to charges of distribution, trafficking, or operating a motor vehicle under the influence. Healey said the pardon will be automatic for most people, but those who need proof of the pardon before their record is updated or believe they may have been passed over can apply through an online form.  The plan still needs sign-off from the Governor's Council, the elected eight-member body that approves pardons and judicial confirmations.

Healey said the decision was about equity, noting that communities of color have been disproportionately targeted by law enforcement for drug possession. A 2016 report from the ACLU of Massachusetts found that while Black people represented only 8% of the state's population, they comprised 24% of marijuana possession arrests. "We can be certain that this pardon will redress some of the harm those disparities have caused in Massachusetts and we'll continue to do all that we can to eliminate racial injustice throughout our systems," Healey said.

Middlesex District Attorney Marian Ryan said the move is a prime example of how the state has been reforming the criminal justice system. “We've been working really hard in Massachusetts to be much more thoughtful about how can we really be smart about preserving public safety, but at the same time lessening the impact of the criminal system on people's lives," Ryan told WBUR. "And being able to do this is an important part of that.”

Healey in her 2022 campaign for governor had promised to pardon state convictions for simple marijuana possession. This week's announcement came after President Biden ordered pardons for people with federal simple possession convictions, and encouraged governors across the country to do the same.

People in Massachusetts are already able to expunge certain marijuana-related convictions after a landmark 2018 criminal justice reform law. But advocates criticize the process as bureaucratic and inaccessible, and multiple reports find it's rarely used. Past marijuana convictions and charges — even charges that were eventually dismissed — can show up on background checks, making it hard for those affected to secure jobs or housing....

Several members of the Governor's Council stood behind Healey during her announcement Wednesday. "It's the right thing to do," council member Paul DePalo said after the speech. "I can't speak for the other members but I do know that I'm not the only one who's enthusiastic about this." The Governor's Council is set to meet again at the end of the month.

An official press release from the Governor's office, titled "Governor Healey Announces Nation-Leading Effort to Pardon Marijuana Possession Misdemeanor Convictions," is available at this link.  In addition, the Governor’s Office has made available this FAQ about this proposed pardon plan. 

March 13, 2024 in Clemency and Pardons, Drug Offense Sentencing, Who Sentences | Permalink | Comments (12)

Sunday, March 03, 2024

Despite robust clemency record, one high-profile commutation garners Missouri Gov lots of negative headlines

I flagged in this post from this past Thanksgiving that Missouri Gov Mike Parson had devoted considerable resources to processing clemency requests and, as of then, having "denied about 2,400 clemency requests while granting 613 pardons and 20 commutations."  And this past week, Gov Parson continued his serious clemency work as reported in this March 1 press release: "For the month of February 2024, Governor Mike Parson granted 36 pardons and approved three commutations pursuant to Article IV, Section 7 of the Constitution of the State of Missouri.... In addition to granting 36 pardons and three commutations, Governor Parson denied 63 clemency applications in February."

But one high-profile commutation from last week is already getting far more attention than all of Gov Parson's other clemency work.  Here are the details from this local press report:

Missouri Gov. Mike Parson has commuted the sentence for former Kansas City Chiefs assistant coach Britt Reid on Friday.  Reid, the son of Chiefs head coach Andy Reid, pleaded guilty in 2022 to driving while intoxicated, resulting in a crash that seriously injured then-5-year-old Ariel Young.  He was then sentenced to three years in prison.

But Parson’s move Friday means Reid’s sentence has been reduced.  The governor’s office said Reid will be released, and he will serve the remainder of his sentence, until Oct. 31, 2025, under house arrest.  “Reid has completed his alcohol abuse treatment program and has served more prison time than most individuals convicted of similar offenses,” Parson’s office said in a statement.  Reid will be required to meet with a probation officer weekly, attend behavioral counseling and meetings with a peer support sponsor, and fulfill 30 hours of work a week and 10 hours of community service per month.

Court documents show Reid was intoxicated with a blood alcohol level of .113 and driving about 84 mph at the time of the crash near Arrowhead Stadium in February 2021.  The speed limit in that area is 65 mph.  Reid hit two parked vehicles on the on-ramp to Interstate 435. Ariel Young, who was 5 years old at the time of the crash, suffered a traumatic brain injury in the wreck.... 

Young’s family disagreed with Reid’s plea deal.  Her mother said she wanted Reid to be sentenced to the maximum of seven years. “Where was he when we were in hell? He wasn’t in jail,” Young’s mother wrote.  For his part, Britt Reid told the judge: “I regret what I did. I made a huge mistake. I apologize to the family. I didn’t mean to hurt anybody that night.”

This commutation is generating all sorts of negative headlines:

From The Daily Beast, "Victim’s Family Slams Gov. for Pardoning NFL Coach’s Son"

From the Kansas City Star, "Mike Parson’s startling commutation of Britt Reid sentence is injustice to Ariel Young"

From KSHB, "Jackson County prosecutor says she believes sentencing of Britt Reid was 'just': Family of Ariel Young, those involved in the case not contacted by Parson"

From the St. Louis Post-Dispatch, "Missourians react with dismay to Parson’s commuting DWI sentence of former Chiefs coach"

March 3, 2024 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

Friday, March 01, 2024

Thourough review of the current state and notable leader of the Justice Department's Office of the Pardon Attorney

Bloomberg Law has this effective new article on DOJ's Pardon Attorney and the work of her office.   I recommend the lengthy piece in full, and here are just a few snippets:

When Liz Oyer, the first known former public defender to lead the Justice Department’s pardon office, arrived in April 2022, she moved in a collection of 22 framed photographs of women serving life sentences. Oyer then commissioned a formerly incarcerated sketch artist to display around 350 copies of his black-and-white profile portraits of fellow inmates he’d originally drawn in the prison yard....

Converting her wing of a drab federal complex into a museum of compassion is one of multiple ways Oyer, 45, has tried maneuvering within strict boundaries to transform the functions and stature of a unit that’s felt out of place in a department led primarily by prosecutors. She reports up to a deputy attorney general’s office filled with career prosecutors who can reject her suggestions to grant clemency before they reach the White House. “I wasn’t sure as somebody who was coming from a public defense background and not having worked in DOJ previously how it would be for me in this building,” said Oyer, who was also previously a partner at global law firm Mayer Brown. “And it’s really turned out to be a wonderful opportunity that has exceeded my expectations.”

Although Oyer has told allies during an active public speaking campaign that she’s working to elevate her office’s influence in broader DOJ policy discussions, some advocates see President Joe Biden’s limited embrace of clemency thus far (13 pardons, 124 commutations) as a telling sign. “The metaphor is pretty strong that we’re talking about people who are literally confined, and there’s a way in which Liz is confined by the structure of this process,” said Mark Osler, a leading clemency scholar and law professor at the University of St. Thomas.

The outcomes of the petitions the office endorses take on heightened stakes in the president’s final guaranteed year in office. If Biden loses re-election in November, he’d have a chance to follow the model of past presidents in signing most of their clemency grants on their way out. But a Trump victory would portend a setback to Oyer’s efforts. In Trump’s prior term, his aides set up an informal system of bypassing the DOJ by welcoming those with access to go directly to the White House.

Trump has also campaigned on promises to pardon the Jan. 6 Capitol rioters, and he has said that he has the “absolute right” to pardon himself, leading to speculation that he would do so if he’s convicted in one of the two federal indictments he’s now facing. Asked how her office might fare in a potential second Trump administration, Oyer said, “This is not a political office. I’m not a political appointee.” She added that “the office will continue to function at a high level regardless of what happens outside” it.

Presidential election aside, Oyer has won praise from even the office’s past critics for her efforts to increase transparency, such creating easier-to-read application forms and holding a speaking tour at federal facilities to instruct inmates on how to file.

“For many years I think the office of the pardon attorney was seen as a place where commutation petitions went to disappear,” said Mary Price, general counsel of the organization Families Against Mandatory Minimums, which has advocated for a broadly revamped pardon office. “The opaque nature of the office has always disturbed advocates and obviously people who are seeking a commutation or a pardon.” Oyer’s transparency in the role has been “terrific,” Price said.

Her efforts can only go so far, however. “At the end of the day, it’s not their decision; it’s not Liz Oyer’s decision,” Price said. “It’s President Biden’s decision, and it remains to be seen how much impact the office will have.”

March 1, 2024 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Wednesday, February 14, 2024

Is wilted Garden State clemency about to be spruced up?

The (not-that-clever) question in the title of this post is my reaction to this new press piece headlined "NJ Gov. Murphy says ‘broad’ groups will be eligible for clemency soon."  Here are excerpts:

New Jersey Gov. Phil Murphy says large groups of people convicted of crimes could become eligible for clemency soon. “I would hope sooner than later, within the next month or two, we're going to unveil a process … that will be, I think, revolutionary relative to what you've seen in New Jersey historically,” Murphy said Tuesday during the monthly “Ask Governor Murphy” call-in show on WNYC.

Murphy said the initiative would look at “broad categories of individuals who would automatically be eligible upon application for accelerated consideration” of clemency.  The governor, however, stopped short of saying who might receive clemency, or for what types of crimes.

Murphy’s comments expand the brief mention he made last month during his State of the State address, when he promised to unveil a clemency initiative “that will ensure we live up to our promise as the state for second chances.”

Since taking office in 2018, the governor has not taken clemency actions, either through reducing prisoners’ sentences or granting pardons, Politico reports.  On Tuesday, Murphy said the initiative is still being worked on, but promised that New Jerseyans would hear more about it soon.  Pressed on why he has yet to take any clemency actions, Murphy said that’s “not atypical” for a governor. He said that his impression is that most officials with clemency authority wait until the end of their time in office to make those decisions.

Murphy’s predecessor, former Gov. Chris Christie, issued 55 clemency orders during his time in office, and about half happened in the final days of his term....

During Tuesday’s show, Murphy said he shared a caller’s frustration over years-long backlogs in the state’s expungement process.  In 2019, Murphy signed a law allowing New Jerseyans to expunge their records of most crimes, with exceptions such as murder and sexual assault, if they kept their record clean for ten years. But in October 2023, the New Jersey Office of the Public Defender filed a class-action lawsuit against the state police over delays in processing expungement orders.

I do not know much about clemency practices "i New Jersey historically," though I do know that serving as a Governor for more than six years without a single clemency grant is some pretty ugly history.  But even the most wilted gardens, and Garden State practices, have the potential to be revitalized, and I am pleased to hear Gov Murphy apparently has something better in the works.

As vaguely described above, I am left wondering if the Jersry Boys are drawing inspiration and guidance from the work of Governor Mike DeWine here in Ohio with our great Expedited Pardon Project.  (I am biased in my praise for Ohio's EPP effort in part because OSU's Drug Enforcement and Policy Center (DEPC) has been playing a significant role helping the Governor's clemency work through this ground-breaking program and we recently celebrated at OSU the many pardons that Gov DeWine has already granted.)  There would be a sound basis for other Governors to follow the lead and clemency achievements of Ohio Gov DeWine here, and I hope were hear more soon about what Gov Murphy has in the works.

A few ilder posts about the Ohio "Expedited Pardon Project":

February 14, 2024 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Tuesday, January 30, 2024

Valuable reminder that Prez pardons are not the same as expungements

In this post from October 2022 following up Prez Biden's first major (but still minor) decision to grant pardons to federal marijuana possession offenders, I lamented that he missed an important opportunity to prod Congress to follow the lead of so many states in expanding mechanisms to seal or expunge past convictions.  At the federal level, no general record relief laws are in place (though a number of bills have been proposed to remedy this legal gap), and that means many thousands of low-level federal offenders can only hope for a presidental pardon and, even if getting an act of clemency, such relief does not formally operate to expunge their  convictions.

That old post came to mind upon seeing this new piece at Marijuana Moment by Kyle Jaeger headlined "  Biden Falsely Suggests Marijuana Pardons ‘Expunged’ Records And Released Prisoners While Campaigning On ‘Promises Kept’."  Here are excerpts (with links from the original):

President Joe Biden is again inflating the impact of his pardons for marijuana offenses, falsely suggesting that his act of clemency “expunged” records and that people were released from prison.  “A promise made and a promise kept,” he said during a campaign speech in South Carolina on Saturday.  “I keep my promises when I said no one — no one — should be in prison for merely possessing marijuana or using it, and their records should be expunged,” Biden said.

The president has routinely framed the mass cannabis pardon as an example of him fulfilling campaign pledges, but he’s also frequently misstated the practical effects of the action.  A presidential pardon represents formal forgiveness from the government, but it does not expunge the record.

Several thousands of people have received the pardon for federal marijuana possession offenses under a pair of proclamations issued in 2022 and last month. The Justice Department has been distributing certificates to eligible people who apply for the largely symbolic document.   “The pardon means that you’re forgiven, but you still have a criminal record,” the certificate says.

Also, of those thousands who earned the clemency, no one was released from prison as a result, despite Biden insinuating as much. Federal prosecutions for possession alone are very rare.  Advocates have pointed out, however, that there are still people in federal prison over other non-violent marijuana offenses....

But by repeatedly touting his mass cannabis pardon, it seems Biden is aware of the political popularity of marijuana reform. And a recent poll suggests he stands to gain significantly in terms of favorability if his scheduling directive results in a reclassification under federal law.  It found that voters’ impression of the president jumped a net 11 points after hearing about the possible implications of the rescheduling review — and that includes an 11-point favorability swing among young voters 18-25 who will be critical to his reelection bid.

January 30, 2024 in Clemency and Pardons, Collateral consequences, Reentry and community supervision, Who Sentences | Permalink | Comments (2)

Monday, January 08, 2024

Kodak Black struggling on supervised release after Prez Trump commuted his federal prison term

As detailed in this official statement, former Prez Trump on his last day in office commuted a lot of sentences, including shaving more than two years off the 46-month federal prison sentence given to Bill Kapri, more commonly known as Kodak Black.  But that act of clemency did not eliminate three years of supervised release for Black.  And this new press article, headlined "EXCLUSIVE: Kodak Black Could Serve Original Jail Sentence Donald Trump Commuted In 2020 [sic]," caught my eye today because it suggests he could be sent back to prison for some time.  And then I found this press article from a few weeks ago, headlined "Kodak Black won’t be home for Christmas. Judge says he is a ‘danger to the community’," reporting that Black is already back behind bars.  

First the backstory from the December 2023 Miami Herald piece (which uses the term "probation" to reference what I think is actually federal supervised release):

Rapper Kodak Black, busted yet again on state drug possession charges, won’t be home for Christmas.  Black, whose legal name is Bill Kapri, has been held since last week in a federal detention center in Miami after violating his probation on a gun-buying conviction dating back more than four years.

Federal Magistrate Judge Jacqueline Becerra said she would not release the 26-year-old Pompano Beach rapper to attend a drug treatment facility in Arizona after his lawyer Bradford Cohen openly acknowledged he had an addiction problem.  “If you’re buying drugs or using drugs, you’re a danger to the community,” Becerra said, leaving the final decision on whether Black should continue to be detained on the probation violation up to U.S. District Judge Jose Martinez. A federal prosecutor said Black should not be released for drug rehab out of state. “If we let him out today to go out to Arizona, we don’t know what’s going to happen,” Assistant U.S. Attorney Bruce Brown said in court.

In February, Broward Circuit Court Judge Barbara Duffy ordered Kodak to stay at a rehabilitation facility for 30 days after an hours-long hearing....

The probation violation stems from a 2019 case in which Kodak pleaded guilty to lying on a background check form when he purchased handguns at a Hialeah weapons store, federal court records show.  He was sentenced to 46 months in prison, though it was commuted by former President Donald Trump in January 2021, shortly before he left office.

The rapper, however, was placed on probation for three years, with the period ending in January 2024. Two weeks ago, Plantation police say they found the rapper asleep in a Bentley with drugs on him. He was charged with cocaine possession, evidence tampering, and improperly stopping, standing or parking.

And now the new "exclusive" update from AllHipHop:

Kodak Black will remain in jail for at least the next two weeks, AllHipHop can confirm.  The Pompano Beach, Florida native (legal name Bill K. Kapri) will have the final hearing regarding revocation of his supervised release in Miami Division before Judge Jose E. Martinez on January 22 at 11:30 a.m. ET.  If the hearing doesn’t go in his favor, Kodak Black could wind up serving the original sentence Donald Trump commuted in 2020.

The latest legal troubles for Kodak Black stem from an incident in Plantation, Florida last month when police discovered his Bentley SUV parked in a roadway with the engine still running.  When they approached the vehicle, they said Kodak Black was asleep behind the wheel and there was a strong odor of burnt marijuana coming from the vehicle.  They also claimed they found rolling papers, weed residue near the center console and the smell of alcohol.

Cops then alleged Kodak Black’s mouth was “full of white powder.” Nearby was a white rock-like substance, which he initially claimed was Percocet. After a test of the substance, along with a white plastic bag in his pocket, it was confirmed the residue was actually cocaine.  Consequently, he was charged with cocaine possession, tampering with or fabricating physical evidence and improper stop, stand or park.

Kodak Black has a string of legal troubles since his rise to rap notoriety.  In July 2022, he was taken into custody on charges of possessing a controlled substance without a prescription and trafficking oxycodone. Officers pulled him over in Fort Lauderdale for tinted windows, which appeared darker than the legal limit.  A routine check revealed the vehicle’s registration and Kodak Black’s driving license were expired.  They also found nearly $75,000 in cash and a small clear bag containing 31 white tablets that were later identified as oxycodone.  He was ordered to drug rehab.

I flagged this story not only because Kodak Black is a celebrity with many high-profile supporters, but also because it serves as a good example of how even a presidential clemency grant can serve to provide very little protection against further criminal justice entanglements.

January 8, 2024 in Celebrity sentencings, Clemency and Pardons, Reentry and community supervision, Who Sentences | Permalink | Comments (1)

Tuesday, January 02, 2024

Framing how holiday federal clemencies should be remembered after the holidays

As noted in this post, Prez Biden used his clemency pen in notable ways on the Friday just before Christmas. To kick off the new year, Rachel Barkow and Mark Osler have this new Hill commentary that seeks to frame what's really memorable and important about his latest actions. The piece's headline, "Biden’s marijuana clemency grants are a small present in a big box," captures on of its themes. Here are excerpts from a piece that should be read in full:

Most of President Biden’s Dec. 22 grants of clemency were a small gift in a big box. His claim to “have exercised my clemency power more than any recent predecessor has at this point in their presidency” is pure hyperbole, but underneath might be the seed of a truly significant movement towards more meaningful uses of federal clemency.

President Biden’s clemency grants covered two categories.  The first was in the big box.  It was his extension of an earlier categorical pardon that covers people convicted of simple possession or use of marijuana, or “attempted simple possession of marijuana,” including those convicted in the District of Columbia and on federal lands.

Biden’s original announcement of this categorical pardon last year came with great fanfare. It got lots of favorable press.  But underneath all the gift wrapping and tissue paper, there is not much there. Not a single person was released from prison as a result of Biden’s proclamation.  There is a popular conception that many people are moldering away in federal prisons for simply having some marijuana.  This just isn’t true and hasn’t been for decades....

It is the second category of grants from Dec. 22 that holds the promise of significant clemency relief.  President Biden commuted the sentences of 11 people who were serving extraordinarily long sentences for nonviolent drug distribution offenses. Four of the people were serving life sentences and all but one of the others were serving sentences of 20 years or more.

Eleven grants from a backlog of more than 16,000 clemency petitions waiting for action is hardly grounds for applause. But sometimes big things come in small packages.  These are exactly the kinds of cases that President Biden should be focused on. They might not get the press of the big marijuana proclamation, but these are the cases where clemency really matters. Unjust sentences that should have never been issued will be corrected as a result of those 11 grants. Eleven human beings will be released from prison.

January 2, 2024 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Sunday, December 31, 2023

Outgoing Louisiana Gov commuting lots of life sentences to create parole possibilities

As detailed in prior posts here and here, there has been a considerable recent effort in the Pelican State to try to get outgoing Gov John Bel Edwards to commute the capital sentences of 57 murderers on the state's death row.  That effort proved unsuccessful, but with less fanfare Gov Edwards has been using his clemency pen recently to grant hope to another notable prisoner polulation.  This lengthy local article, headlined "On way out, Gov. John Bel Edwards ramps up relief for life prisoners," provides some of the details.  Here are excerpts:

Gov. John Bel Edwards has spent his waning months in office doling out mercy at a pace unseen in decades from a Louisiana governor. Edwards has commuted the sentences of 70 prisoners since August, among 123 commutations he’s issued over his final year in office, according to data from the state Board of Pardons and Parole.  That’s by far the highest tally of any single year over his two terms.

In the bulk of those decisions, Edwards turned life sentences for long-serving prisoners convicted of murder into a number of years — ranging from 35 to 99 — at the board’s recommendation.  Those pen strokes enabled the immediate release of several of the longest-serving prisoners on “good time,” while bestowing parole eligibility to scores of others who were sentenced to life.  The parole board has granted release to many of them since.  Francis Abbott, the board’s executive director, said that 41 of the 123 people granted commutations this year by the governor remain in prison.

A 2021 law expanded parole eligibility to long-serving prisoners who are not serving life, once they’ve completed 20 years in prison and reached the age of 45.  They still must win the approval of the parole board to go free.  More than 90% of the 123 commutations Edwards has granted in 2023 this year went to prisoners serving life sentences, the data show.  The vast majority have served at least 20 years; about half spent the last 30-plus years locked up.

Edwards commuted the life sentence of Leon Brent, the longest-serving prisoner on the list, to 99 years on Aug. 1, and he was released the next day under the good-time calculus at the time.  Now in his 80s, Brent was convicted of aggravated rape in East Baton Rouge Parish and sentenced in 1964....  The average age of the 123 prisoners at their clemency hearings was 57. They include dozens who were sentenced in the 1980s or earlier. On a per-capita basis, Louisiana has far more people serving life without parole than any other state.

“The men and women whose sentences were commuted by the governor represent a fraction of our state’s 4,000-plus lifer population,” said Andrew Hundley, executive director of the Louisiana Parole Project, which supports and houses incarcerated people reentering society.  “Most of them had served more than three or four decades in prison and their records indicate clear evidence of remorse and rehabilitation.  These individuals were thoroughly vetted by an open and public process, and they have proven they are worthy of a second chance.”...

Edwards, a Democrat in an increasingly GOP-dominated state, has picked up the pace in the past few months. More commutations could come before Jan. 8, when he cedes the office to Gov.-elect Jeff Landry.  As attorney general, Landry blocked a push by advocates, which Edwards supported, for the pardon board to hear a stack of 55 clemency requests from death row prisoners and make recommendations before he leaves office. Those prisoners were seeking to have death sentences converted to sentences of life without parole.

Edwards can only grant clemency requests, including commutations and full pardons, on the board’s recommendation. In deciding whether to recommend clemency, the board’s members review prisoners’ applications, convene hearings to discuss them and relay updates on the process to victims or their surviving family members, who are invited to participate in the hearings....

Edwards now has exercised his clemency powers more than any governor since Edwin Edwards, who in his first two terms as governor in the 1970s and 1980s commuted the sentences of well over 1,200 Louisiana prisoners.  In the mid-2000s, then-Gov. Kathleen Blanco commuted the sentences of 129 prisoners over four years.

Bobby Jindal was the most sparing in his use of his clemency powers in the modern era. He commuted prison sentences just three times over his two terms as governor.  John Bel Edwards, Jindal’s successor, opened the relief valve somewhat in his first term, granting 33 commutations over those four years.  He eclipsed that figure in 2020 alone, granting 36 commutations to start his second term.  Edwards then commuted sentences for 31 prisoners in 2021 and 60 prisoners in 2022, before doubling that tally in his final year.

December 31, 2023 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Thursday, December 28, 2023

Justice Department releases fact sheet detailing "Improvements to the Clemency Process"

Via email this afternoon, I got word of this new press release from the Department of Justice titled "Fact Sheet: Justice Department Improvements to the Clemency Process." Here is the full text (with links from the original):

The Justice Department is entrusted with the important responsibility of receiving and reviewing applications for executive clemency and making recommendations to the President in support of his exercise of the constitutional clemency power. In fulfilling this responsibility, the department is committed to improving the clemency application process to make it more transparent, accessible and user-friendly. The department is taking a series of actions to reform and streamline the clemency application process. 

Transparency & Accessibility

  • Form Simplification: The Justice Department is updating all of its clemency forms, including web forms, to make them more user-friendly, streamlined and accessible to diverse populations. The improved and simplified application for commutation of sentence is now available here. The revised pardon application form is currently open for public comment.
  • Language Access: The Justice Department has translated its revised application forms and informational materials into Spanish and is in the process of making its forms available in other languages as well.
  • Partnering with Federal Bureau of Prisons (FBOP): The Office of the Pardon Attorney is working closely with the FBOP to assist incarcerated individuals with the clemency process, including by launching a series of educational seminars for staff and individuals in custody.  In 2023, the Office met with over 1,800 people in FBOP facilities to provide information about applying for clemency.  Additional sessions are scheduled in 2024.

Efficiency

  • Reducing Processing TimesThe Justice Department is taking steps, including providing additional staffing and technical support for the Office of the Pardon Attorney, to reduce the processing times to ensure that clemency petitioners receive answers in a timely fashion.
  • Closing Long-Pending Petitions: The current Administration inherited an unprecedented backlog of clemency petitions.  Soon, the Justice Department will begin issuing letters to petitioners that have not been granted clemency in order to deliver closure to those waiting for answers they deserve.  Those receiving letters are welcome to submit new petitions.

Public Engagement

  • Education and Outreach: The department is working to educate the public about how to submit a clemency application in order to demystify the process and help ensure broader and more equitable access.
  • Listening Sessions: The department continues to engage with diverse external stakeholders to ensure that it is responsive to the needs of clemency petitioners and the public.

December 28, 2023 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Friday, December 22, 2023

Prez Joe Biden commutes prison terms of 11 non-violent drug offenders and extends pardons to more marijuana possession offenses

As set forth in the official "Statement from President Joe Biden on Clemency Actions," Prez Biden has decided to use his clemency pen a little this holiday season.  Here is how the statement starts:

America was founded on the principle of equal justice under law.  Elected officials on both sides of the aisle, faith leaders, civil rights advocates, and law enforcement leaders agree that our criminal justice system can and should reflect this core value that makes our communities safer and stronger.  That is why today I am announcing additional steps I am taking to make the promise of equal justice a reality.
 
First, I am commuting the sentences of 11 people who are serving disproportionately long sentences for non-violent drug offenses.  All of them would have been eligible to receive significantly lower sentences if they were charged with the same offense today.
 
Second, following my pardon of prior federal and D.C. offenses of simple possession of marijuana, I am issuing a Proclamation that will pardon additional offenses of simple possession and use of marijuana under federal and D.C. law. 

Upon first read, I believe there are additional marijuana possession offenses (eg, attempt charges and regulatory offenses) that are covered in today's marijuana pardon Proclamation beyond those federal marijuana possession offenses that were pardoned by Prez Biden's blanket pardons back in Oct 2022.  In addition, anyone who committed a federal marijuana possession offense after Oct 2022 until today is also covered by the new proclamation (which is, technically, many millions of Americans even though very few get actually arrested and prosecuted for violatons of federal law's blanket prohibition on marijuana possession). 

I am inclined to guess that folks at the Justice Department's Office of the Pardon Attorney came to realize that Prez Biden's Oct 2022 pardon grants had some gaps that could and should be filled by an even broader proclamation.  Notably, though, this new Proclamation still provide this express limit on its reach: "This pardon does not apply to individuals who were non-citizens not lawfully present in the United States at the time of their offense."

As for the commutation, the list of 11 individuals granted commutations today makes for an interesting read.  Most of the recipients are from the south and were serving 20 years or longer for crack offenses.  Two clemency recipients were convicted of meth offenses.   But none of the receipients will be home for the holidays, as three have their prison sentence "commuted to expire on February 20, 2024," and six have their sentence "commuted to expire on April 20, 2024."  (Why 4/20 was selected as the main sentence expiration date is beyond me, though I expect the "weed numerati" will find some meaning in that decision.)

Finally, I find it especially notable and interesting that four of the clemency recipients had been sentenced to LWOP terms and that two of these folks seemingly will still have many more years to serve in prison.  Earlie Deacon Barber and Darryl Allen Winkfield both were serving life terms, but will now have their federal prison terms expire on April 20, 2024.  But Deondre Cordell Higgins's life sentence was "commuted to a term of 25 years," and Leroy Lymons' life sentence was "commuted to a term of 27 years."  Because both of these persons were sentenced in the early 2010s, it seems unlikley they will be scheduled for relase from federal prison until the 2030s.  But, of course, for them that still surely beats never being scheduled for release from prison at all.

December 22, 2023 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (18)

Thursday, December 21, 2023

Some notable (red) state clemency headlines and stories

In part because I had a small role in the stories behind recent pardon activity here in Ohio, I am quite pleased that I can here flag some great clemency news from the Buckeye State along with a couple of other new clemency stories emerging from other (red) states.  (And though I am always happy and eager to round-up these state clemency stories, I still find it frustrating that there is not a concerted effort by every chief executive in every state to make the holiday season happier by making greater use of the clemency power.) 

From North Carolina, "Roy Cooper issues four pardons, commutes one man's prison sentence"

From Ohio, "Ohio governor's expedited pardon project surpasses 100 pardons for reformed citizens"

From Tennesse, "Tennessee Gov. Bill Lee issues 22 pardons, commutation to woman convicted at 21"

December 21, 2023 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Sunday, November 26, 2023

Pardon stories focused on humans to close out the Thanksgiving weekend

In this post a few days ago, I bemoaned the recent headlines about governors and presidents exercising clemency that were mostly about "fowl" pardons.  But in the days that followed, I was pleased to see a couple of notable new stories about actual humans getting pardoned by governors with notable clemency records.  Here are headlines and some details:

From Missouri, "Missouri governor granting pardons at pace not seen since WWII era":

For a dozen years as a rural sheriff, Mike Parson was the face of justice, the man ultimately responsible for catching and locking up local lawbreakers. Now governor, Parson also has become the face of mercy by pardoning more than 600 people in the past three years, more than any Missouri governor since the 1940s.

“I still believe in law and order. I believe criminals need to be treated as such, and they’ve got accountability,” Parson said in an interview with The Associated Press. But “it doesn’t mean they’re a criminal all their life,” Parson added. “I think you’ve got to be able to look at it.”...

Parson's staff began systematically tackling the backlog in December 2020, even as more requests poured in. They set a goal of evaluating around 100 cases each month, weighing applicants' work and education history, community involvement, character references and contrition for their crimes. The types of crimes, how young offenders were and how much time had passed also came into play as Parson made his decisions. So far, Parson has denied about 2,400 clemency requests while granting 613 pardons and 20 commutations.

From Wisconsin, "Gov. Tony Evers extends pardons to 1,111 with 82 more ahead of Thanksgiving"

Gov. Tony Evers extended his pardon count to 1,111 with 82 more announced ahead of Thanksgiving, mostly for people convicted of low-level drug offenses or minor theft. “It continues to be a privilege to hear about individuals’ lives, work, and what they have done to overcome their past mistakes and build positive, rewarding lives for themselves and their families,” said the Democratic governor, who has pardoned far more people than any of his predecessors.

The pardons announced Wednesday include a carpenter who was found with marijuana in his home over 20 years ago, a middle school teacher who tried to cash a fraudulent check in her late teens and a general labor supervisor who stole propellers from boats over two decades ago. About one third of the 82 pardons were for people convicted of possessing or selling marijuana. Another third had been convicted of possessing or selling other controlled substances.

November 26, 2023 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Tuesday, November 21, 2023

Thanksgiving week filled with clemency headlines ... so far involving only turkeys

I used to blog a lot advocating for greater use of executive clemency powers, especially during the holiday season.  But, perhaps unsurprisingly, lame-duck times rather than turkey times still tend to be when governors and presidents finally dust off their clemency pens.  But, since my feed was filled today with news of Prez Biden's courageous "fowl" clemency efforts, I figure it worthwhile to do a brief round-up of recent clemency headlines:

From Arkansas, "Sarah Huckabee Sanders Pardons Turkey But Denies Clemency for Wrongly Imprisoned Man"

From Michigan, "Dolly Pardon announced as winning name of turkey receiving executive clemency for Thanksgiving"

From Missouri, "Governor issues clemency for turkeys from Manson: Birds raised by teen get traditional pardon"

From the White House, "‘Congratulations, birds’: Biden jokes fall flat as he pardons Thanksgiving turkeys"

From interested observers, "Turkeys Pardoned While 18,000 Wait"

November 21, 2023 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (17)

Saturday, November 11, 2023

Continuing coverage of DOJ efforts to continue prosecuting recipient of commutation by Prez Trump

Back in June of this year, I had the honor of serving as a witness at a congressional hearing to discuss federal clemency.  Specifically, the House Judiciary Subcommittee on Crime and Federal Government Surveillance conducted a hearing titled "The Examination of Clemency at the Department of Justice," and the hearing page noted that one goal of the hearing was to "examine the Department of Justice's unprecedented re-prosecution of Philip Esformes, whose prison sentence was originally commuted by President Donald Trump."   I explained in my written testimony why,  though I was "only somewhat familiar with the intricacies of the Esformes case," I found "deeply troubling any Justice Department efforts to re-prosecute any clemency recipient for conduct related to a clemency grant."

Perhaps unsurprisingly, the Esformes case and related issues continue to garner attention.  Indeed, in recent weeks, I have now seen a number of new press pieces on these matters:

From Mother Jones, "Donald Trump Freed a Convicted Medicare Fraudster. The Justice Department Wants Him Back."

From Salon, "Ex-prosecutor: DOJ targeting freed fraudster a 'reminder of Trump's gross abuse of pardon power'"

From the Washington Post, "Fraudster freed from prison by Trump faces prosecution under Biden"

Looking at these issues beyond the specifics of the Esformes case, there is quite an interesting forward-looking political component to these matters given that former Prez Trump is a leading candidate for President in the 2024 election.  Because the Supreme Court has ruled there are few formal legal limits on the clemency power set forth in the US Constitution, political accountability serves as the only significant functional restraint on this executive power. 

If "the people" were truly troubled by how Trump used his pardon power as president, voters can hold him accountable at the ballot box in the upcoming election.  But I have not yet heard any of former Prez Trump's political rivals directly assailing his past clemency record nor his stated promise to pardon a "large portion" of those convicted of federal offenses for involvement with January 6 riot.  It seems, at least within the GOP primary field, that there is little expectation that Trump's clemency record or promised would be a real political vulnerability. 

Notably, this Fox News piece from June quoted a former staffer for former VP Mike Pence stating that "we have to have a real conversation of what would people actually do with the power of the pardon ... [and] when you look at Donald Trump's record when it came to pardons, it was indefensible."  But VP Pence has already dropped out as a candidate for 2024, and I have yet to see on the political trail any high-profile efforts to have a "real conversation" about federal clemency past, present or future.  I doubt the Esformes case alone will prompt such a political conversation, but I do think possible clemency discussions could still be worth watching in the 12 months ahead.

November 11, 2023 in Clemency and Pardons, Criminal justice in the Trump Administration, Sentences Reconsidered, White-collar sentencing, Who Sentences | Permalink | Comments (6)

Thursday, November 09, 2023

Split Oklahoma Pardon and Parole Board recommends clemency for condemned inmate based on (jury-rejected) self-defense claim

As detailed in this AP piece, the "Oklahoma Pardon and Parole Board narrowly voted Wednesday to recommend sparing the life of a man set to be executed later this month for what he claims were the self-defense killings of two men in Oklahoma City in 2001." Here is more:

The board voted 3-2 to recommend clemency for Phillip Dean Hancock, who has long maintained he shot and killed Robert Jett Jr., 37, and James Lynch, 58, in self-defense after the two men attacked him.  Republican Gov. Kevin Stitt must now decide whether to grant clemency to Hancock, who is scheduled to receive a lethal injection on Nov. 30.

The board’s decision came after it heard from Hancock, 59, his attorneys, lawyers from the state and members of Jett and Lynch’s families.  Two Republican state legislators who say they strongly support the death penalty, Reps. Kevin McDugle and Justin Humphrey, also testified on Hancock’s behalf. “If any one of us were in that same exact situation ... we would have fought for our lives,” said McDugle, R-Broken Arrow.

Hancock’s attorneys claim that Jett and Lynch were members of outlaw motorcycle gangs who lured Hancock, who was unarmed, to Jett’s home and that Jett ordered him to get inside a large cage before swinging a metal bar at him. After Jett and Lynch attacked him, Hancock managed to take Jett’s pistol from him and shoot them both....

But attorneys for the state argued Hancock gave shifting accounts of what exactly happened and that his testimony didn’t align with the physical evidence at the scene.  Assistant Attorney General Joshua Lockett said the jury took all of this into account before rendering its verdict, which has been upheld by numerous state and federal appeals courts. “Hancock’s credibility was absolutely eviscerated at trial because his claims conflicted with the evidence,” Lockett said.

Lockett also said after Hancock shot Jett inside the house, a witness who was at the scene testified Hancock followed Jett into the backyard and heard a wounded Jett say: “I’m going to die.” Hancock responded, “Yes, you are,” before shooting him again, Lockett said. “Chasing someone down, telling them you are about to kill them and then doing it is not self-defense,” Lockett said.

Jett’s brother, Ryan Jett, was among several family members who testified and urged the panel not to recommend clemency.  “I don’t claim that my brother was an angel by any means, but he didn’t deserve to die in the backyard like a dog,” Ryan Jett said.

Hancock also was convicted of first-degree manslaughter in a separate shooting in 1982 in which he also claimed self defense. He served less than three years of a four-year sentence in that case....

Stitt has granted clemency only one time, in 2021, to death row inmate Julius Jones, commuting his sentence to life without parole just hours before Jones was scheduled to receive a lethal injection.  Stitt has denied clemency recommendations from the board in two other cases: Bigler Stouffer and James Coddington, both of whom were later executed.

November 9, 2023 in Clemency and Pardons, Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, October 17, 2023

With clemency efforts stalled and new incoming governor, might Louisiana become an active death penalty state again?

Louisiana was once a very active death penalty state with more executions than any state other than Florida and Texas in the 1980s.  Renown capital abolitionist Sister Helen Prejean wrote her famous 1993 book, Dead Man Walking, based on her work ministering to two convicted murderers on Louisiana's death row.

But only one execution has been completed in the Pelican State over the last two decades, and there was much talk about possible efforts by outgoing Louisiana Gov John Bel Edwards to commute all of the state's death row.  But this report from the Louisiana Illuminator spotlights why the state might now be on the verge of another capital punishment shift. The press report should be read in full, but here are the highlights:

The Louisiana state Board of Pardons voted Friday against granting clemency hearings to five Louisiana death row prisoners, ending a monthslong effort to spare the lives of more than 50 people condemned to death.

Over four hours, the four-member panel in Baton Rouge heard impassioned testimony from attorneys, from still-grieving families of murder victims and from friends and relatives of the prisoners themselves.  The board ultimately split the vote 2-2 in four cases, leading to denials, with members Tony Marabella and Bonnie Jackson voting in favor of granting clemency hearings and Curtis Fremin and Alvin Roche, Jr. voting against.  The board denied a fifth case — Winthrop Earl Eaton, convicted in the 1985 killing of Monroe pastor Rev. Lea Joyner — in a 3-1 vote, with Marabella the lone member voting to grant the hearing.

Initial plans to hold clemency hearings — and vote on whether to commute the prisoners’ sentences from death to life — at Friday’s meeting were derailed after conservative Louisiana Attorney General Jeff Landry and several parish district attorneys sued the board.  Under a settlement agreement, rather than voting on whether to commute, the panel met to consider whether allow them to have their cases heard at a future hearing.

There are currently no plans to consider an additional 51 clemency requests, despite Gov. John Bel Edwards’ support of hearings for all 56 death row prisoners who applied.  Edwards, who, as governor, makes the final decision on recommendations from the board, kicked up a political storm earlier this year when he publicly stated his opposition to the death penalty. Capital defense attorneys responded by seeking to have the sentences of up to 56 death row prisoners commuted to life, while a group of pro-death penalty prosecutors, led by Landry, sought to stymie those efforts.

Landry, the leading candidate in the upcoming election for governor, has expressed his desire to move forward with the executions of those on death row, something that hasn’t happened in Louisiana since 2010 due to a shortage of lethal injection drugs.

Notably, as of Saturday night, as reported in this AP article, Landry is not just Louisiana's Attorney General, he is also now governor-elect. And the AP notes he has campaigned on tough-on-crime themes:

Landry has made clear that one of his top priorities as governor would be addressing crime in urban areas. The Republican has pushed a tough-on-crime rhetoric, calling for more "transparency" in the justice system and continuing to support capital punishment. Louisiana has the nation's second-highest murder rate per capita.

Of course, political advocacy for capital punishment does not always convert, quickly or even at any time, to actually completing executions.  But it still seems quite notable that, just earlier this year, there was much talk about mass commutation on Louisiana's death row; now it seems much more likely that Louisiana could be getting back into the execution business.

October 17, 2023 in Clemency and Pardons, Death Penalty Reforms, Who Sentences | Permalink | Comments (1)

Sunday, October 15, 2023

Extensive account of clemency and the clemency process in Minnesota

The New York Times has this extensive new article on clemency in Minnesota (and elsewhere) titled "‘I Want to Be Forgiven. I Just Want to Be Forgiven.’: When the Minnesota Board of Pardons meets, supplicants have 10 minutes to make the case for mercy." I recommend the long piece's intricate discussion of the Minnesota clemency process, and here is an excerpt from the article discussing clemency more generally:

No one can expect mercy. No one has the right to be forgiven. Pardons live beyond the parameters of the criminal code’s black-and-white text. They are, by nature, extraordinary.

Rooted in part in the ancient doctrine that monarchs derive power directly from God, pardons are a discretionary tool often given to the executive branch — the president and the governor — to override court-ordered sanctions: to shorten a prison sentence, restore civil rights or eliminate the obligation to identify oneself as a felon.

They are intended to provide relief from what Alexander Hamilton, in the Federalist Papers, called the “necessary severity” of the law — a kind of safety valve against injustices inherent in justice systems....

There are other systems for restoring legal and social status, including diversion programs, expungement and record-sealing. Pardons, though, carry the emotional heft of society’s forgiveness. And depending on the jurisdiction, their application can be transparent or mysterious, reasoned or arbitrary — even questionable, with some reformers calling them a capricious relic....

Two generations ago, as drug-related violence plagued many cities, presidents and governors adopted tough-on-crime stances that, among other consequences, led to fewer pardons. The many social benefits that might accrue from mercy were determined not to be worth the political risk. According to the nonprofit Collateral Consequences Resource Center, the pardon became “a shadow of its once-robust self.”

“It is a national struggle in legislatures to figure out how to deal with this enormous number of people with a criminal record who can’t get jobs or housing,” said Margaret Love, the founder of the resource center and a former United States pardon attorney. “We’re trying to reintegrate people, but we still won’t forgive them.”

October 15, 2023 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Monday, September 18, 2023

US Pardon Attorney event: "The Case for Second Chances: A Conversation About Criminal Justice, Collateral Consequences, and Clemency"

I am pleased to see (and promote) a notable event scheduled for this Friday at 10am (September 22, 2023) by the Office of the US Pardon Attorney.  This event is called "The Case for Second Chances: A Conversation About Criminal Justice, Collateral Consequences, and Clemency," and it is described on this event page this way:

Join the Office of the Pardon Attorney for this special event addressing the collateral consequences of incarceration and the role of record-clearing and clemency. Associate Attorney General Vanita Gupta will provide opening remarks, followed by a panel discussion featuring the following justice-impacted advocates and experts:

  • Ames Grawert, Brennan Center for Justice
  • Sheena Meade, The Clean Slate Initiative
  • Amy Ralston Povah, Can-Do Clemency
  • Robert Richardson, Clemency Recipient & Author
  • Tony Lewis, Jr. Activist & Author

This even will be livestreamed at this link.

September 18, 2023 in Clemency and Pardons, Collateral consequences, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Tuesday, August 15, 2023

Noting Georgia's limits on pardon powers in wake of latest state indictment for former Prez Trump and associates

Thanks to indictment fatigue, I have not yet had much interest in trying to figure out the full sentencing exposure of former Prez Donald Trump or his many co-defendants (AP details here) in the wake of last night's nearly 100-page indictment from Fulton County.  But a quick scan of press coverage has led me to already see lots of talk about Georgia's distinctive pardon laws: 

From Insider, "Trump would have to serve 5 years in prison before he can be pardoned in Georgia criminal case, expert says"

From MSNBC, "Why Trump can’t kill Georgia charges like federal ones"

From Newser, "A Georgia Worry for Trump: Pardon-Proof Charges"

These pieces and others are understandably focused on the apparent inability under Georgia law for former Prez Trump to secure a pardon.  But I think it also notable and important that Georgia law also limits the pardon possibilities for Prez Trump's Georgia co-defendants.  As in most traditional cases, all the defendants in this new Georgia case will have to deal with the reality that only prosecutors have clear and direct authority to dole out criminal justices breaks.

August 15, 2023 in Celebrity sentencings, Clemency and Pardons, Who Sentences | Permalink | Comments (26)

Tuesday, July 18, 2023

Interesting account of mass clemency efforts on behalf of those on Louisiana's death row

In this post last month, I noted the notable news that almost all "of the 57 people on Louisiana's death row have asked Gov. John Bel Edwards to spare their lives, a historic request made after Edwards broke his silence on how he views capital punishment and pushed lawmakers to outlaw the practice."  Writing here at Bolts, Piper French has an extended follow up reviewing the clemency effort. The piece is fully titled "The Death Penalty on Trial in Louisiana: Petitions filed on behalf of dozens of people on death row are asking the governor for mass clemency, and showcasing the injustices that undergird capital punishment."  I recommend this article in full, and here is an excerpt:

Clemency is often conceived of as a discrete and individual mercy — as an exception, the opposite of policy.  On death row, we picture it as an eleventh-hour decision to spare a person’s life following efforts by advocates to highlight the tragic or unjust circumstances of their case.  But here, the petitioners say that in highlighting people’s stories, they’re not trying to persuade public officials to handpick which of the 57 is most deserving of mercy.

Instead, they’re hoping to showcase the systemic disparities that undergird each of their cases.  What if clemency were a form of policy, they ask — not an individual act, but a collective response to the barrage of injustices that have made the state’s death row a cross-section of its poorest and most marginalized groups?

The U.S. Supreme Court has declared that executing someone with an intellectual disability is unconstitutional, a criterion that fits 40 percent of the people on Louisiana’s death row.  Thirty-nine of the 57 have been diagnosed with brain damage or serious mental illness.  Three quarters are people of color, the vast majority of them Black.  Many allege prosecutorial misconduct and sorely deficient legal support.  “We are executing the most vulnerable people in our population,” said Calvin Duncan, an exoneree who served as a jailhouse lawyer to many on death row for about 19 of the 28 years he spent wrongfully locked up.

Time is running out.  Edwards leaves office in early January, and the frontrunner to succeed him staunchly supports the death penalty.  The next few months will determine whether Edwards translates his philosophical opposition to capital punishment into action by trying to speed up the process and by commuting every death sentence he can before his term is up.

The petitioners must first convince the Louisiana Board of Pardons, which must recommend cases to the governor before he can grant clemency and has already signaled the process may be lengthy, though Edwards, who has appointed the board’s five current members, can ask the board to consider capital cases in a meeting.  His office did not respond to a direct question about whether he would do so.

Not only is this a last-ditch effort to forestall the state executions of these 57 people — it’s also a call for Louisiana to end the use of the death penalty once and for all, in keeping with the growing number of states that have abandoned the practice.  In the last six years, five state legislative attempts to repeal capital punishment have failed.

July 18, 2023 in Clemency and Pardons, Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (9)

Wednesday, June 21, 2023

Thursday’s child has far to go to keep up with notable happenings

Old English nursery rhyme “Monday’s Child,” which says "Thursday's child has far to go," came to mind as I geared up for a busy day. Specifically:

At 10am, we are expecting opinions from the Supreme Court.  I think June 22, which I believe is the first full day of summer, could well be the day we get Jones v. Hendrix concerning federal collateral appeal procedures.  Other than the affirmative action cases, Jones is the longest pending case. 

At 12noon, the Drug Enforcement and Policy Center has its first big online event in our summer 2023 Cannabis Regulatory Deep Dive series.   This event is titled "Changes in Federal Approaches to Cannabis: Process and Impact," and a full event is description is at this website (where you can still register).  In short form:  "Please join the Drug Enforcement and Policy Center and a panel of experts as they discuss the role of other federal agencies in the scheduling review process and the legal implications of marijuana’s status as a controlled substance and the potential impact of rescheduling marijuana or descheduling it entirely."  I was originally expecting to serve as a moderator of this event, but... 

At 2pm, the House Judiciary Subcommittee on Crime and Federal Government Surveillance will hold a hearing titled "The Examination of Clemency at the Department of Justice."  I have the honor of serving as a witness at this hearing, so I am in Washington DC for this eventful day.  (With the Prime Minister of India speaking to a joint session of Congress at 4pm, I can at least be confident the House Judiciary Subcommittee is unlikely to run long.) 

June 21, 2023 in Clemency and Pardons, Pot Prohibition Issues, Who Sentences | Permalink | Comments (2)

Interesting criminal justice news and notes from the GOP campaign trail

I have noted in a few prior posts that Florida Gov Ron DeSantis is criticizing former Prez Donald Trump for his support of FIRST STEP Act.  In the last few days, I have seen a a number of new notable press pieces and commentaries on this front:

From the Christian Broadcasting Network, "Ron DeSantis' Tough-on-Crime Agenda Targets Signature Trump Criminal Justice Reform Law"

From the Florida Phoenix, "DeSantis goes after Trump on federal criminal justice reforms, clashing over law-and-order front: But some conservatives take issue with DeSantis calling for repeal of Trump’s 'First Step Act' in Congress"

From Politico, "DeSantis takes aim at Trump’s signature criminal justice reform law: He voted in favor of an earlier version of it when he served in Congress."

From Newsweek, "DeSantis is Wrong for Attacking Trump's First Step Act"

On a slightly different but related front, Fox News aired another segment of former Prez Trump's interview with Bret Baier during which Trump was bragging about granting clemency to Alice Marie Johnson until Baier noted she would be subject to execution under Trump's call for the death penalty for drug dealers.  As the video shows, Trump stumbled through his response, as noted in a number of press pieces:

From The Hill, "Trump calls for death penalty for drug dealers; Fox’s Baier notes it would apply to woman he championed"

From The Independant, "Trump stumbles when Fox host tells him his plan to execute drug offenders would include people he pardoned"

And, on the topic of clemency, it appears that former VP Mike Pence is eager to go after his former running mate's clemency record:

From Fox News, "Top Pence staffer condemns Trump's last-minute pardons for 'cocaine traffickers,' family members"

Interesting times.

Prior related posts:

June 21, 2023 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, June 13, 2023

Mass filing from Louisiana death row seeking mass clemency from Louisiana Gov

A helpful reader alerted me to this interesting new story coming from Louisiana, headlined "Almost all Louisiana death row prisoners ask John Bel Edwards to spare their lives." Here are the basics:

Nearly all of the 57 people on Louisiana's death row have asked Gov. John Bel Edwards to spare their lives, a historic request made after Edwards broke his silence on how he views capital punishment and pushed lawmakers to outlaw the practice.

A total of 51 clemency applications filed Tuesday morning with the Louisiana Board of Pardons and Committee on Parole do not ask Edwards to free all of those death row prisoners. Instead, the documents ask him to soften their sentences to life-in-prison — the only commutation available to people sentenced to die.

"Looking at these cases collectively makes it clear that the system is fundamentally broken," said Cecelia Kappel, executive director of the Capital Appeals Project, which led a group of attorneys who represent death row prisoners in filing the requests. "These applications show that the same problems of racial disparity, intellectual disability, severe mental illness, trauma, innocence and others repeat over and over in Louisiana’s death penalty cases."

Edwards granting the requests would mark a historic turn in the way Louisiana regards the death penalty. An avowedly Catholic Democrat from a long line of sheriffs, Edwards has long kept mum about his thoughts on the practice. He only recently came out in full-throated support of abolishing capital punishment, in the waning months of his governorship....

A shortage of lethal injection drugs has put a halt to capital punishment in Louisiana; the state last carried out an execution when Gerald Bordelon was voluntarily put to death in 2010 for the murder of his 12-year-old stepdaughter, Courtney LeBlanc. Prior to Bordelon's execution, the state had not put anyone to death since 2002....

Governors have granted only two clemency requests from death row inmates since Louisiana instated the death penalty in the 1970s. The first was for Ronald Monroe in 1989, whose guilt was doubted by then-Gov. Buddy Roemer. The second was for Herbert Welcome in 2003; Gov. Mike Foster concurred then with the Pardon and Parole Board's recommendation of clemency after the U.S. Supreme Court decision in Atkins v. Virginia, which found that executing people with intellectual disabilities violates the Eighth Amendment's prohibition on cruel and unusual punishment....

The clemency applications filed Tuesday with the pardons and parole board detail a range of mental health conditions the death row prisoners have. Among those requesting clemency is Antoinette Frank, the only woman on death row in Louisiana. Attorneys are requesting life sentences even in a few cases where they offered evidence of the prisoner's innocence in the clemency requests.

The fates of the people on death row, housed at the State Penitentiary at Angola, now lie in the hands of Edwards and the board of pardons and parole. The board's members — all of whom are appointed by Edwards — will weigh the applications individually and then pass their recommendations on to the governor.

June 13, 2023 in Clemency and Pardons, Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, May 10, 2023

Man convicted of murdering BLM marcher, whom Texas Gov has pledged to pardon, sentenced by judge to 25 years in prison

This new AP article, headlined "Army sergeant who fatally shot BLM protester in Texas sentenced to 25 years," reports on the latest legal development in a high-profile case which first caught my attention when Gov. Greg Abbott announced on social media that he would pardon a just-convicted killer.  Here are some of the details:

A U.S. Army sergeant plans to appeal his 25-year prison sentence for fatally shooting an armed man during a Black Lives Matter protest in Texas, and will cooperate with efforts by the state’s Republican governor to issue a pardon, his attorney said Wednesday.

Daniel Perry, 36, was convicted of murder in April for killing 28-year-old Garrett Foster during the downtown Austin protest in July 2020....  Perry attorney Clinton Broden said in a statement that his client would appeal. He called Perry’s conviction the product of “political prosecution” and said the defense team would “fully cooperate in the pardon process.”

Perry’s conviction prompted outrage from prominent conservatives, and Gov. Greg Abbott, citing Texas’ Stand Your Ground laws, has said he would sign a pardon once a recommendation from the Texas Board of Pardons and Paroles hits his desk.  The board — which is stacked with Abbott appointees — is reviewing Perry’s case on the governor’s orders, but it is unclear when it will reach a decision.

District Judge Clifford Brown delivered a statement during sentencing that didn’t address the potential pardon directly.  But he insisted that Perry had a “fair and impartial trial” and that the jury’s decision “deserves our honor and it deserves to be respected.” 

Travis County District Attorney Jose Garza said it was Abbott “who decided to insert politics in this case.” Garza said he’s been in touch with the board and has been assured that prosecutors will be allowed to present a case against a pardon, and that it will include a presentation from Foster’s family.

The pardon process is a valuable check on the court system, Broden said. “Those who claim that Governor Abbott’s expressed intent is based on politics simply choose to ignore the fact that it was only the political machinations of a rogue district attorney which led to Sgt. Perry’s prosecution in the first instance,” he said.

Perry was stationed at Fort Hood, about 70 miles (110 kilometers) north of Austin, when the shooting happened. He had just dropped off a ride-share customer and turned onto a street filled with protesters. Perry said he was trying to get past the crowd and fired his pistol when Foster pointed a rifle at him. Witnesses testified that they did not see Foster raise his weapon, and prosecutors argued that Perry could have driven away without shooting.

Perry said he acted in self-defense. His lawyers asked the judge to consider his more than a decadelong military career and hand down a sentence of no more than 10 years. Army spokesman Bryce Dubee has said Perry is classified as in “civilian confinement” pending separation from the military.

On Tuesday, prosecutors submitted into evidence dozens of texts and social media posts Perry wrote, shared or liked, including some shockingly racist images. They had been excluded from Perry’s trial, but were publicly released after his conviction and allowed into the sentencing phase by Brown. “This man is a loaded gun, ready to go off at any perceived threat,” prosecutor Guillermo Gonzalez said, urging Brown to issue a sentence of at least 25 years. “He’s going to do it again.”

Perry, who is white, was working as a ride-share driver in downtown Austin on July 25, 2020, when he shot and killed Foster, an Air Force veteran. Foster, who was also white, was legally carrying an AK-47 rifle as he participated in the demonstration against police killings and racial injustice, following the death of George Floyd, a Black man, by a white Minneapolis police officer.

Prior related post:

May 10, 2023 in Clemency and Pardons, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (17)

Friday, April 28, 2023

Prez Biden commutes 31 federal sentences and releases "Alternatives, Rehabilitation, and Reentry Strategic Plan"

As reported in this new Washington Post piece, "President Biden commuted the sentences of 31 nonviolent drug offenders Friday as the White House rolled out a broad initiative that aims to bolster the “redemption and rehabilitation” of people previously incarcerated through greater access to housing, jobs, food and other assistance."  Here is more:

The actions came during what Biden has proclaimed as Second Chance Month, an attempt to put a greater focus on helping those with criminal records rebuild their lives.

The 31 commutations were for people convicted of nonviolent drug crimes, who were currently serving time in home confinement and taking advantage of education and employment opportunities, the White House said. Many would have received a lower sentence if they were charged with the same offense today due to changes in the law, including the First Step Act, a bipartisan criminal justice bill signed into law by President Donald Trump in December 2018.

At a briefing for reporters, Susan Rice, director of the Domestic Policy Council, described the series of measures as prudent steps to improve public safety while safeguarding taxpayer dollars by increasing the chances that people released from prison will have opportunities to live rehabilitated lives.

“As many as one in three Americans have a criminal history record, yet far too many of them face barriers to getting a job or home, obtaining health care or finding the capital to start a business,” Rice said. “By investing in crime prevention and a fairer criminal justice system, we can tackle the root causes of crime, improve individual and community outcomes and ease the burden on police.”

The effort includes more than 100 actions across 20 agencies, ranging from the Department of Education to the Department of Housing and Urban Development to the Bureau of Prisons. Under the changes, people leaving prison could have more access to housing vouchers, Pell grants, food benefits and small business loans, Rice said.

These official docuements from the The White House provide a lot more of the particulars:

FACT SHEET: Biden-⁠Harris Administration Takes Action During Second Chance Month to Strengthen Public Safety, Improve Rehabilitation in Jails and Prisons, and Support Successful Reentry

Clemency Recipient List

The full 77-page White House Alternatives, Rehabilitation, and Reentry Strategic Plan

Both the timing and the subsatnces of these actions seem quite intriguing, though I am going to review the details and reflect a bit before providing any distinctive take. I will thus be content now to just say kudos to Prez Biden, because even modest actions in this arena are always meaningful and important.

April 28, 2023 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Thursday, April 20, 2023

Office of the Pardon Attorney hostong "A Celebration of Second Chance" in honor of Second Chance month

A helpful reader altered me to an event, called "A Celebration of Second Chances," that the Office of the Pardon Attorney is hosting in honor of Second Chance month. This program will be livestreamed at this link tomorrow, Friday, April 21, 2023, at 10:00 am EDT. The email I received flagging the celebration event described it this way:

The event will feature opening remarks by Deputy Attorney General Lisa Monaco and Assistant Attorney General Kristen Clarke and a panel of speakers who will discuss the impact of second chances through clemency.  Speakers will include Assistant Attorney General Kenneth Polite, Jr., former Deputy Attorney General David Ogden, and the Honorable Alexander Williams, Jr., and clemency recipients Danielle Metz, Norman Brown, and Evans Ray.  The event will also honor special guests who have received clemency from President Biden and his predecessors or who have received other forms of second-chance relief.

Over at this webpage at the Office of the Pardon Attorney, one can find this broader discussion of Second Chance Month 2023 activities (links from the original):

On March 31, 2023, President Biden issued a presidential proclamation marking April as Second Chance Month. Read the President’s statement.

The Office of the Pardon Attorney (PARDON) is dedicated to supporting the President’s work to provide second chances to individuals who are currently or previously were incarcerated by the federal justice system.  Executive clemency is a powerful tool that can alleviate barriers to reentry, in securing steady employment, safe housing, quality health care, educational opportunities, the right to vote, and loans for a home or business.  Executive clemency can also address outdated federal criminal policies, particularly those that disproportionately affected Black and Brown Americans, such as through President Biden’s full presidential pardon of federal and D.C. convictions for simple marijuana possession offenses.

We invite you to join PARDON in celebrating second chances throughout April and beyond by attending an event or by spreading word about the availability of executive clemency.Second Chance Month events:

  • April 12, 2023: Art Open House, open to DOJ employees
  • April 21, 2023: A Celebration of Second Chances (watch the livestream)
  • April 25, 2023: Clemency workshop for returning citizens in the District of Columbia
  • April 26, 2023: Pardon Training webinar hosted by the ACLU
  • April 27, 2023: Bureau of Prisons workshop with the Pardon Attorney

April 20, 2023 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Sunday, April 09, 2023

Texas Gov pledges to swiftly pardon man convicted of murder of BLM marcher day after jury conviction

As reported in this local article from Texas, "[l]ess than 24 hours after a jury in Austin found Daniel Perry guilty of shooting to death a protester, Gov. Greg Abbott announced on social media Saturday that he would pardon the convicted killer as soon as a request 'hits my desk'."  Here is more about a case and promise of clemency that seems likely to garner considerable attention:

The unprecedented effort, which Abbott announced to his 1 million followers on Twitter, came as Abbott faced growing calls from national conservative figures such as Fox News host Tucker Carlson and Kyle Rittenhouse, who was acquitted in the shooting deaths of two Wisconsin protesters in 2020, to act to urgently undo the conviction.

“Texas has one of the strongest ‘Stand your ground’ laws of self-defense that cannot be nullified by a jury or progressive district attorney,” Abbott said in a statement.  “I will work as swiftly as Texas law allows regarding the pardon of Sgt. Perry.”  Abbott’s office did not return calls from the American-Statesman on Saturday seeking additional comment.  The two-week trial, which included dozens of witnesses and much forensic evidence, was not broadcast. Abbott attended no portion of the trial.

Perry, an Army sergeant, was working as an Uber driver in Austin on the night of July 25, 2020, when he ran a red light at the intersection of Fourth Street and Congress Avenue and drove into a Black Lives Matter march before stopping. Garrett Foster, carrying an AK-47 rifle, was among a group of protesters who approached his car.  Perry told police that Foster threatened him by raising the barrel of his rifle at him, so he shot him five times with a .357 revolver through the window of his car before driving away.

Perry’s defense team argued that he acted in self-defense, but prosecutors contended that Perry instigated what happened.  They highlighted a series of social media posts and Facebook messages in which Perry made statements that they said indicated his state of mind, such as he might “kill a few people on my way to work.  They are rioting outside my apartment complex.”  A friend responded, “Can you legally do so?” Perry replied, “If they attack me or try to pull me out of my car then yes.”

A jury Friday unanimously convicted Perry.  State District Judge Clifford Brown is set to sentence him to prison in the coming days.  He faces up to life in prison.

David Wahlberg, a former Travis County criminal court judge, said he cannot think of another example in the state’s history when a governor sought a pardon before a verdict was formally appealed.  “I think it’s outrageously presumptuous for someone to make a judgment about the verdict of 12 unanimous jurors without actually hearing the evidence in person,” Wahlberg said.

Doug O’Connell, who represents Perry, told the Statesman in a statement Saturday: “Right now we are completely focused on preparing for Daniel’s sentencing hearing. I visited Daniel in jail this morning.  As you might expect he is devastated.  He spoke to me about his fears that he will never get to hug his mother again.  He’s also crushed that his conviction will end his Army service.  He loves being a soldier.”...

The jury deliberated 17 hours over two days before reaching the verdict Friday afternoon after an eight-day trial with dozens of witnesses.  Perry didn't testify during the trial....  After the judge read the verdict to the packed courtroom Friday, Perry, 35, buried his head into one of his lawyer's chests and erupted into loud sobs.  The jury also found Perry not guilty of an aggravated assault with a deadly weapon in connection to driving in front of another protester....

Fox's Carlson decried the conviction in a two-minute segment on his show, referring to the Austin protesters as a “mob of rioters” who surrounded Perry’s car and began pounding on it.  He said Perry fired when Foster raised his rifle.  “This is a legal atrocity,” Carlson said. “There is no right of self-defense in Texas.”...

Jennifer Laurin, a University of Texas law professor, addressed the portion of Abbott’s statement on Texas’ self-defense laws. She said that a jury is instructed to reject the defense when the person asserting it provoked the response, as prosecutors say Perry did when he drove his car into a crowd of protesters. “Painting the conviction as rogue nullification is uniformed or deceptive,” Laurin tweeted.

Abbott lacks authority under state law to issue a pardon without first getting a recommendation from the Board of Pardons and Paroles, whose members he appoints.  In his statement, Abbott said he already asked the board to review the verdict to determine if Perry should be granted a pardon.  “I have made that request and instructed the board to expedite its review,” Abbott said.  “I look forward to approving the board’s pardon recommendation as soon as it hits my desk.”...

Defense lawyer Rick Cofer, who was not involved in the trial, expressed astonishment over Abbott’s announcement. “It’s what happens in Uganda or El Salvador,” said Cofer, a former prosecutor. “Total abrogation of the rule of law.  And what’s even worse is that Abbott knows better. He was a smart Texas Supreme Court Justice.  He knows this is legally wrong.  Profoundly wrong.  Pure politics.”

Without speaking to the specifics of this case in any way, it seems worth noting that many acts of clemency (and even decisions not to grant or consider clemency) can often generally be described as "pure politics."  Put differently, what makes this case noteworthy is not that a governor's clemency decision-making may be influenced greatly by politics, rather it is here what the Texas Governor is saying and pledging to do in the name of politics.

April 9, 2023 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (70)

Monday, March 06, 2023

Five months after mass marijuana possession pardons, DOJ announces application form for certificates

Back in October 2022, as detailed here, Prez Biden granted a mass pardon to "all current United States citizens and lawful permanent residents who committed the offense of simple possession of marijuana in violation of the Controlled Substances Act, as currently codified at 21 U.S.C. 844 and as previously codified elsewhere in the United States Code, or in violation of D.C. Code 48–904.01(d)(1), on or before the date of this proclamation."  But, perhaps problematically for some, a mass pardon done not readily come with the certificate or other official documentation that individuals often received when receiving a more traditional, individualized grant of clemency. 

To address this issue, I had heard that the Pardon Attorney office in the US Justice Department was working on a process to issue pardon documentation.  And, this past Friday, this DOJ press release addressed this matter under the heading "Justice Department Announces Application Form for Marijuana Pardon Certificates."  Here are the particulars (with links from the original):

[T]he Justice Department is launching an application for eligible individuals to receive certificate of proof that they were pardoned under the Oct. 6, 2022, proclamation by President Biden.  On Oct. 6, 2022, the President announced a full, unconditional and categorical pardon for prior federal and D.C. offenses of simple possession of marijuana.  The President’s pardon lifts barriers to housing, employment and educational opportunities for thousands of people with those prior convictions. President Biden directed the Justice Department to develop a process for individuals to receive their certificate of pardon.

The online application will be available on the Office of the Pardon Attorney’s website: Application for Certificate of Pardon.  The web form allows eligible persons to submit documentation to the Office of the Pardon Attorney and receive a certificate indicating the person was pardoned on Oct. 6, 2022, for simple possession of marijuana.

The President’s pardon, effective Oct. 6, 2022, may assist pardoned persons by removing civil or legal disabilities — such as restrictions on the right to vote, to hold office or to sit on a jury — that are imposed because of the pardoned conviction.  The application released today may also be helpful as proof of pardon for those who seek to obtain licenses, bonding or employment.  As President Biden said at the time of the proclamation, his action intends to “help relieve the consequences arising from these convictions.”  

Those who were pardoned on Oct. 6, 2022, are eligible for a certificate of pardon.  Consistent with the proclamation, to be eligible for a certificate, an applicant must have been charged or convicted of simple possession of marijuana in either a federal court or D.C. Superior Court, and the applicant must have been lawfully within the United States at the time of the offense. Similarly, an individual must have been a U.S. citizen or lawful permanent resident on Oct. 6, 2022.

Those who were convicted of state marijuana offenses do not qualify for the pardon.

The department is committed to carefully and expeditiously reviewing the applications and issuing certificates to those pardoned under the proclamation. For more information regarding eligibility and answers to frequently asked questions, please visit Presidential Proclamation on Marijuana Possession.

Prior related posts from October 2022:

March 6, 2023 in Clemency and Pardons, Collateral consequences, Pot Prohibition Issues, Who Sentences | Permalink | Comments (3)

Thursday, February 16, 2023

New Pennsylvania Gov announces his capital punishment abolitionist plans

Pennsylvania has over 100 condemned murderers on its death row, though it has not completed an execution in nearly a quarter century.  And, as reported in this AP piece, the new Governor of the Keystone State is committed to keep the state execution-free.  Here are the details:

Democratic Gov. Josh Shapiro said Thursday he will not allow Pennsylvania to execute any inmates while he is in office and called for the state’s lawmakers to repeal the death penalty.

Shapiro, inaugurated last month, said he will refuse to sign execution warrants and will use his power as governor to grant reprieves to any inmate whose execution is scheduled.  In doing so, he is exercising an authority used for eight years by his predecessor, Gov. Tom Wolf, to effectively impose a moratorium on the death penalty in a state where it has been sparsely used.

Shapiro went further, asking lawmakers to repeal the death penalty and calling it fallible and irreversible.  “Today, I am respectfully calling on the General Assembly to work with me to abolish the death penalty once and for all here in Pennsylvania,” Shapiro said in a news conference at Mosaic Community Church in Philadelphia.  The state, he said, “should not be in the business of putting people to death.”...

On the campaign trail last year for governor, Shapiro had said he was morally opposed to the death penalty, even though he had run for attorney general in 2016 as a supporter of the death penalty for the most heinous cases.

While Wolf was governor from 2015 until last month, judges delivered eight more death sentences.  In the meantime, Wolf issued eight reprieves to inmates who had been scheduled to be put to death.  Wolf had said he would continue the reprieves until lawmakers addressed inequities in the use of the death penalty, but lawmakers never did and Wolf’s reprieves remain in effect.

Wolf’s use of reprieves was upheld by the state Supreme Court in a legal challenge brought by county prosecutors, who argued that Wolf was unconstitutionally turning what had been intended to be a temporary tool into a permanent one.

Pennsylvania has 101 men and women on its shrinking death row, according to statistics from the Department of Corrections.  The state has executed three people since the death penalty was reinstated in 1976, as courts and now governors have blocked every other death sentence thus far. All three men who were executed gave up on their appeals voluntarily.  The state’s most recent execution took place in 1999.

February 16, 2023 in Clemency and Pardons, Death Penalty Reforms, Who Sentences | Permalink | Comments (0)

Friday, January 13, 2023

Outgoing Pennsylvania Gov included high-profile artist in final batch of record-setting clemency grants

Pennsylvania Governor Tom Wolf has only a few more days in office, and he is closing out a tenure that has been record setting in the use of clemency authority.  This local article discusses that record as well as the high-profile clemency recipent in the last batch of grants:

Pennsylvania Governor Tom Wolf has pardoned Philadelphia rapper Meek Mill of his possession of drugs and weapons charges from 2008....

Wolf has issued more than twice the amount of pardons granted by any of his predecessors, with at least a quarter of them targeting non-violent marijuana offenses, his administration announced Thursday.

Wolf, a Democrat, signed his final 369 pardons this week, for a total of 2,540 since he took office in 2015. He surpassed Democratic Gov. Ed Rendell's record of 1,122 granted pardons. Of the pardons, 395 were part of the expedited review process for nonviolent marijuana-related offenses. Another 232 were part of the PA Marijuana Pardon Project, which accepted applications through the month of September.

"I have taken this process very seriously - reviewing and giving careful thought to each and every one of these 2,540 pardons and the lives they will impact," Wolf said in a statement. "Every single one of the Pennsylvanians who made it through the process truly deserves their second chance, and it's been my honor to grant it."

A pardon grants total forgiveness of the related criminal conviction and allows for expungement.

January 13, 2023 in Clemency and Pardons, Drug Offense Sentencing, Marijuana Legalization in the States, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Friday, December 30, 2022

President Joe Biden closes out 2022 by granting full pardons to six people

I was pleased to learn this afternoon that President Joe Biden took out his clemency pen on the last working day of 2022 and granted full pardons to six individuals.  The list of recipients is set forth in this official "Clemency Recipient List," and here are the basics from that list:

Gary Parks Davis – Yuma, Arizona
Gary Parks Davis is a 66-year-old man who pleaded guilty to use of a communication facility (a telephone) to facilitate an unlawful cocaine transaction at age 22....

Edward Lincoln De Coito III – Dublin, California
Edward Lincoln De Coito III is a 50-year-old man who pleaded guilty to involvement in a marijuana trafficking conspiracy at age 23; his involvement was limited to serving as a courier on five or six occasions....

Vincente Ray Flores – Winters, California
Vincente Ray Flores is a 37-year-old man who, at approximately age 19, consumed ecstasy and alcohol while serving in the military; he later pleaded guilty at a special court-martial....

Beverly Ann Ibn-Tamas – Columbus, Ohio
Beverly Ann Ibn-Tamas is an 80-year-old woman who was convicted of murder in the second-degree while armed for killing her husband. Ms. Ibn-Tamas, 33 at the time of the incident, was pregnant and testified that before and during her pregnancy, her husband beat her, verbally abused her, and threatened her....

Charlie Byrnes Jackson – Swansea, South Carolina
Charlie Byrnes Jackson is a 77-year-old man who pleaded guilty to one count of possession and sale of distilled spirits without tax stamps. The offense, which occurred when Mr. Jackson was 18, involved a single illegal whiskey transaction, and resulted in nominal loss to the government....

John Dix Nock III – St. Augustine, Florida
John Dix Nock III is a 72-year-old man who pleaded guilty to one count of renting and making for use, as an owner, a place for the purpose of manufacturing marijuana plants. 

December 30, 2022 in Clemency and Pardons, Who Sentences | Permalink | Comments (3)

Saturday, December 24, 2022

Another round of holiday season clemency news

In this post a few days ago, I noted a few press stories about clemency grants from a few states.  At that time, I stated that it was somewhat surprising and quite disappointing that there were not more executive officials making more use of their clemency pens in this holiday season.  But it now seems I was a bit premature in my accounting, as now I see a few more state clemency stories in the news:

From California, "Newsom grants 10 pardons, including for drug crimes"

From Colorado, "Colorado governor commutes 4 inmates’ sentences, pardons 20 people, including state trooper who guarded Capitol"

From Massachusetts, "Whitmer grants 22 clemency requests, including 4 pardons"

From New York, "Hochul Grants Clemency to 13, Including a Domestic Violence Victim"

From Tennessee, "Gov. Lee Grants Executive Clemency to 16 Individuals"

From Texas, "Governor Abbott Grants Clemency To Two Texans Recommended By Texas Board Of Pardons And Paroles"

As I mentioned before, because I know of some clemency work that has not been covered in press pieces, I am sure there are more stories of seasonal grace than just what is covered in these press accounts.  Still, I view it as a real shame that we do not see many more clemency accounts from many more state during this time of year. 

December 24, 2022 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Thursday, December 22, 2022

Isn't a 4% post-offense "faced legal scrutiny" rate worthy of praise ... even for Prez Trump's clemency grants?

This press report about an Oregon study of pandemic-related commutations notes that, among recipients who were released early, "18% were arrested within one year of their commutation, 8% were convicted of a new crime and 2% were reincarcerated."  The press report rightly indicated that these are relatively low rates based on a comparable cohort of individuals in Oregon.  

These Oregon commutations are not really a proper point of comparison, but I am not sure how best to make the point that it is to be expected that, among any significant cohort of clemency recipients, some number are likely to face some future legal difficulties.  But this new ABC News piece about Prez Trump's clemency recipients seeks to make a huge deal about a couple of handfuls of clemency recipients having since "faced legal scrutiny."  The piece is headlined "Trump-era pardon recipients are increasingly back in legal jeopardy," and here are excepts:

An ABC News analysis of the 238 people who were pardoned or had their sentences commuted during the Trump administration found at least ten who have since faced legal scrutiny -- either because they are under investigation, are charged with a crime, or are already convicted.  Legal experts call this recurring theme unprecedented -- but not entirely unexpected, given the former president's unorthodox approach to the pardon process....

Those pardoned by Trump during his term in office included dozens of friends and political allies.  The list included celebrities, lawmakers and former aides who had been convicted of crimes ranging from fraud to murder -- including four private military contractors who were in prison for murdering 17 Iraqi citizens, including two children, in a 2007 attack in Baghdad....

Recidivism rates from previous administrations' clemencies is opaque, as federal agencies don't keep tabs on clemency grantees after their release.  But in one study reviewing former President Barack Obama's 2014 clemency initiative, which led to sentence commutations for nearly 1,700 federal drug offenders, the independent and bipartisan U.S. Sentencing Commission found only three who had been rearrested by the end of 2017.  A Texas woman was rearrested on theft charges less than a year after earning an Obama commutation on her life sentence in 2016, and another Texan pleaded guilty to drug charges less than two years after earning a life sentence commutation under Obama's 2014 clemency initiative.

Based on news accounts and other available evidence, the number of clemency grantees who have gone on to commit additional crimes remains "incredibly low," Kupers said. For Trump-era pardons, however, experts said the numbers seem disproportionately high.

I am depressingly confident that more than three persons who received clemency from Prez Obama have "faced legal scrutiny" in recent years.  But I am even more confident that I do not want the media or others spending time developing questionable clemency "recidivism" statistics or otherwise engaging in partisan spit-fights about the rare clemency recipients who do not make good use of a second chance.  Rather, I wish ABC News and othe press outlets would spend a lot more time telling the encouraging stories of the hundred and throusands of clemency recipients who have made great use of their second chances. Focusing just on grants by Prez Trump, I am thinking about the great work being done in the arena of criminal justice reform by people like Alice Marie Johnson and Weldon Angelos and Amy Povah and David Safavian and Topeka Sam.  I am sure there so many more uplifting stories to tell about clemency recipients, but I am also sure the ghosts of Willie Hortonism still have not faded away.  

December 22, 2022 in Clemency and Pardons, Criminal justice in the Trump Administration, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Wednesday, December 21, 2022

Some holiday season news and notes about clemency (and the absence thereof)

The holiday season, especially because it is also lame-duck season, often brings some notable executive clemency stories.  Last week's decision by outgoing Oregon Gov to commute the state's whole death row is a notable example (details here).   But a quick news search reveals only a few other stories from from a few other states about some lower-profile seasonable clemency efforts:

From Arkansas, "Governor Asa Hutchinson Announces Intent to Grant Executive Clemency"

From Massachusetts, "Baker recommends another round of pardons"

From North Carolina, "NC Gov. Roy Cooper commutes six people’s sentences and pardons four others"

Because I know of some clemency work that has not been covered in press pieces, I am sure there are more stories of seasonal grace that just in these three states.  Still, I find it somewhat surprising and quite disappointing that there are not more executive officials making more use of their clemency pens.  And, as some recent commentary pieces highlight, I am not the only one hoping to see more clemency action:

Rachel E. Barkow & Mark Osler at the NY Daily News, "Biden’s cowardice on clemency"

From Reuven Blau at The City, "For ‘Clemency Season,’ Prisoner Advocates Want Hochul to Keep Promise All Year: Last December, the governor said she would change the way pardons and clemency applications were handled. But little has changed since."

From Chris Geidner at Bolts, "Landmark Push for Clemency in Oregon and Nevada Show Split Paths on Death Penalty"

From Eva Santiago at amNY, "Clemency is one way to improve safety which no one wants to talk about"

December 21, 2022 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Tuesday, December 20, 2022

State judge blocks plans of Nevada Pardon Board to discuss possible commutation of all state death sentences

As reported in this local article, a "Carson City District Court judge Monday ruled the state Board of Parsons may not consider commuting every death sentence in Nevada at its Tuesday meeting." The six page ruling is available at this link, and the first sentence of the last paragraph of the opinion states: "The Board's planned action, should it be permitted to occur, will violate the Nevada Revised Statutes, the Nevada Administrative Code, and the Nevada Constituion." Here is more about the ruling and the context from the press report:

Judge James Wilson issued a writ of prohibition against the board and Gov. Steve Sisolak — who asked the board to consider the commutations — after the Washoe County district attorney’s office filed an emergency petition on Friday seeking to block the move.

Wilson ruled that the board had not properly notify the families of murder victims of its intent to commute the death sentences of the 57 people currently on death row, that those inmates had not exhausted all of their appeals and that they had not applied to the board to lessen their sentences. In addition, the board is required to consider each case individually, and cannot grant “categorical” clemencies, Wilson ruled.

“The Board’s proposed action would violate the Nevada Constitution by failing to provide (victim’s families) with reasonable notice of these public proceedings, so that they may exercise their constitutional right to be reasonably heard regarding the proposed commutation of 57 death sentences,” Wilson wrote. “Each victim is entitled to be treated with fairness, respect, dignity and the right to be reasonably heard at any hearings involving the commutation of sentence.”

In addition, the law requires a consideration of each individual case on its merits, which would be impossible at Tuesday’s meeting, Wilson wrote. “Equally evident in the plain meaning of the statutory and administrative code is the Board’s obligation to make an individualized determination in each clemency matter,” Wilson wrote. “Even if individual applications had been submitted for each of the 57 persons on death row, the type of individualized determination that is mandated by (state law) and (administrative regulations) cannot be reasonably accomplished at a single meeting of the Board.”

Finally, Wilson wrote, the board can’t do a mass commutation. State law “does not permit the Board to grant ‘categorial’ exemptions, as this would amount to the Board creating statutory exceptions to a form of punishment specifically provided for by the legislature. It is not the Board’s prerogative to amend statutes.”...

The controversy began last week, when Sisolak urged the board to consider commuting every death sentence in the state. The board, which decides clemency cases in Nevada, is made up of the governor, the attorney general and all seven members of the Nevada Supreme Court. That prompted the Washoe County district attorney’s office to file a motion to block the move on Friday....

Meanwhile, Gov.-elect Joe Lombardo, a career police officer who currently serves as the sheriff of Clark County, hailed the ruling: “I’m thankful to Judge James Wilson for upholding the law, and I’m grateful that he protected the voter-approved constitutional rights of crime victims and their families.  I’m relieved that justice has prevailed through Marsy’s Law,” Lombardo said in a statement.  Marsy’s Law was a 2018 voter-approved constitutional amendment that provided rights to crime victims, including to have a notice of all hearings, to attend those hearings and to speak about the proceedings.

In addition to Washoe County, the Clark County district attorney’s office asked the Nevada Supreme Court to block Tuesday’s hearings, making similar arguments to its counterpart in Washoe County. Not only that, but Jennifer Otremba, the mother of 15-year-old murder victim Alyssa Otremba, filed a similar petition with the Supreme Court on Monday, arguing that changing the board’s agenda without giving notice to victims’ families violated Marsy’s Law.  “The Pardons Board’s rushed effort to commute all capital sentences without the mandated notice and application has not only robbed Jennifer of her right to participate, it has also deprived the Pardons Board of jurisdiction to proceed,” Otremba’s petition said.

Otremba has addressed the Legislature multiple times in recent years as an opponent of abolishing the death penalty.  Her daughter’s killer, Javier Righetti, was sentenced to die for raping and stabbing the teenager more than 80 times in 2011, during the girl’s first week at Arbor View High School.

Bills to repeal the death penalty have been repeatedly introduced in the Legislature, but none have ever passed.  In 2021, a repeal bill passed the Assembly but died in the state Senate. Sisolak at the time said he was generally opposed to capital punishment, but wanted exceptions for especially heinous crimes such as the mass shooting that took place on 1 October in Las Vegas.

December 20, 2022 in Clemency and Pardons, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Tuesday, December 13, 2022

Outgoing Oregon Gov commutes all 17 of state's remaining death sentences to LWOP

As detailed in this local article, "Gov. Kate Brown announced on Tuesday afternoon that she would commute the sentences of all 17 individuals on Oregon’s death row to life in prison without the possibility of parole, the latest in her end-of-term string of clemency decisions."  Here is more:

“I have long believed that justice is not advanced by taking a life, and the state should not be in the business of executing people — even if a terrible crime placed them in prison,” Brown said in a statement sent out in a press release.  “This is a value that many Oregonians share,” Brown said.  The governor also directed the Department of Corrections to dismantle the state’s death chamber.

Oregon has not executed anyone on death row for a quarter century and Brown continued the moratorium that former Gov. John Kitzhaber put in place in 2011.  Governor-elect Tina Kotek, who like Brown and Kitzhaber is a Democrat, is personally opposed to the death penalty based on her religious beliefs and said during the campaign that she would continue the moratorium.

Voters have gone back and forth on the death penalty over the years, abolishing and reinstating it repeatedly.  Voters’ most recent decision on the death penalty was in 1984, when they inserted it into the state Constitution....

In 2019, the Legislature passed a bill that limited the crimes that qualified for the death penalty by narrowing the definition of aggravated murder to killing two or more people as an act of organized terrorism; intentionally and with premeditation kilIing a child younger than 14; killing another person while locked up in jail or prison for a previous murder; or killing a police, correctional or probation officer....

Brown said in her statement Tuesday that commuting the sentences of people currently serving on Oregon’s death row was consistent with what she described as lawmakers’ “near abolition” of capital punishment.  “Unlike previous commutations I’ve granted to individuals who have demonstrated extraordinary growth and rehabilitation, this commutation is not based on any rehabilitative efforts by the individuals on death row,” Brown said.  “Instead, it reflects the recognition that the death penalty is immoral. It is an irreversible punishment that does not allow for correction; is wasteful of taxpayer dollars; does not make communities safer; and cannot be and never has been administered fairly and equitably.”

Twelve of the seventeen people on death row are white, three are Latino, one is American Indian or Alaska Native and one is Black, according to the governor’s office....

Rosemary Brewer, executive director of the Oregon Crime Victims Law Center, said it was her understanding that staff at the Oregon Department of Justice Crime Victim and Survivor Services Division had been working all day Tuesday to notify family members and had reached all of the families impacted by the death row commutations.  A spokesperson for the governor confirmed that the DOJ division handled notification. However, Brewer said the governor should have given families more advance notice of her decision.

“I think the victims should have been told about this so they had some time to prepare for it,” Brewer said.  “These are horrific cases that left completely devastated families.  They’re preparing for the holidays and all of a sudden, they see in the (newspaper) that the person who traumatized — devastated — their families had their death sentence commuted.”...

Advocates including the Oregon Justice Resource Center pushed for the governor to commute all death row sentences for years.  On Tuesday, the center’s executive director Bobbin Singh said in a statement that Brown “has made the right choice for Oregon in commuting these death sentences and dismantling the death chamber.”...

Brown’s clemency actions, which included early release for people deemed at risk of serious health impacts from COVID-19 and inmates who helped fight Oregon’s catastrophic 2020 wildfires, have freed roughly 1,000 people from state prisons.  The Oregonian/OregonLive asked Brown’s spokespeople on Friday for the total number of people for whom the governor had issued pardons and commuted sentences.  On Tuesday, press secretary Liz Merah responded that the governor has commuted the sentences of a total of 1,189 incarcerated people.

The governor also pardoned approximately 45,000 people this year for their marijuana possession convictions, although that did not result in anyone being freed from prison because no one in Oregon was incarcerated for simple possession of an ounce or less of marijuana. And she issued 77 other pardons for crimes that the governor’s office did not identify.

Oregon Senate Republican Leader Tim Knopp, R-Bend, released a statement late Tuesday asking whether the people of Oregon had voted to end the death penalty.  “I don’t recall that happening,” he said.  “This is another example of the Governor and the Democrats not abiding by the wishes of Oregonians.  Even in the final days of her term, Brown continues to disrespect victims of the most violent crimes.”

The official press release from Gov. Brown's office, titled "Governor Kate Brown Commutes Oregon's Death Row," is available at this link.

December 13, 2022 in Clemency and Pardons, Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Monday, December 12, 2022

Last chance to register for "President Biden's Pardons: What It Means for Cannabis and Criminal Justice Reform"

Bac4c356-7915-4767-bd62-7e39643a3eb3Though I have previously flagged this event, I wanted to be sure to highlight again this exciting webinar scheduled for tomorrow (December 13 starting at 12noon).  This event has been organized by Drug Enforcement and Policy Center at The Ohio State University Moritz College of Law and the Last Prisoner Project.  Here, again, is a bit of the backstory and the panel lineup:

On October 6th, 2022, President Biden issued a proclamation granting pardons to over 6,500 people with federal simple possession of marijuana offenses.  In an acknowledgment of the fact that the vast majority of cannabis convictions take place on the state level, President Biden simultaneously encouraged the country’s governors to use their clemency power to issue similar grants.  While the President’s executive actions are an unprecedented and important step forward, there is still much more work ahead to fully redress the harms of cannabis criminalization.

Please join the Drug Enforcement and Policy Center and the Last Prisoner Project as we host a panel of experts to discuss how these pardons will affect people with cannabis convictions on their record, how states could act on the President's call, and what implications this may have for the future of cannabis and criminal justice reform in the United States.

Panelists:

Elizabeth G. Oyer, U.S. Pardon Attorney, U.S. Department of Justice

JaneAnne Murray, Associate Clinical Professor of Law, Director of the University of Minnesota Law School Clemency Project

Sarah Gersten, Executive Director and General Counsel, Last Prisoner Project

Moderator:

Douglas A. Berman, Newton D. Baker-Baker & Hostetler Chair in Law; Executive Director of the Drug Enforcement and Policy Center

December 12, 2022 in Clemency and Pardons, Pot Prohibition Issues, Who Sentences | Permalink | Comments (0)

Friday, December 02, 2022

Sobering numbers from "mass" marijuana pardon efforts in Pennsylvania

In this post over at my marijuana blog a few months ago, I flagged the announcement of outgoing Pennsylvania Gov Tom Wolf to create a large-scale project, called the Pennsylvania Marijuana Pardon Project, to enable people with certain low-level convictions to submit an application online for an official pardon from the state.  Subsequent reports about this effort noted that many thousands of people had submitted pardon applications.  But this new local article, headlined "Thousands applied, but fewer than 250 qualified for Wolf’s marijuana pardon," spotlights how the devil is often in the details in this arena:

When announcing the marijuana pardon project earlier this year, Gov. Tom Wolf said it had the potential to help thousands of Pennsylvanians clear their records. But it has fallen well short of that goal. More than 3,500 people applied for the program, aimed at wiping out low-level marijuana convictions in a one-time mass act of clemency. Fewer than 250, however, will have an opportunity to clear their record later this month.

On Thursday, the Pennsylvania Board of Pardons voted whether to move forward on more than 2,600 applications from the project. Of those, 231 were approved and will go for a final vote by the board on December 16. Any of the cases that make it through that round, will go on to Wolf to grant the pardon. Another 2,002 applications were denied Thursday because they did not meet the requirements of the project and 434 were held under advisement, meaning the board can vote on them at a later date.

The program only applied to people who were convicted of possession of a small amount of marijuana and excluded anyone who had any additional criminal convictions on their record. Advocates said the narrowness of the program was a significant concern for how effective the program could be.

“Often cannabis consumers get multiple convictions when they are arrested that first time,” said Chris Goldstein, NORML’s Pennsylvania, New Jersey and Delaware regional organizer. “They get a paraphernalia charge, and they get a possession charge all at once. You would have to essentially lead a police-free life other than that one marijuana encounter to qualify.”

Goldstein said the fact that program had a very short window for people to apply also likely limited its impact. Wolf announced the program on September 1 and people had until September 30 to apply....

Goldstein said more than 13,000 people were arrested for possession of a small amount of marijuana in 2021. About 10 percent of those people wind up with a conviction for the offense. Most others are either dismissed or plead out to a lower level crime.

More than 1,150 people were sentenced in 2018 with possession of a small amount of marijuana as the highest charge in their case, according to the latest year of data available from the Pennsylvania Sentencing Commission.

While Goldstein said he was disappointed that only a fraction of the people affected will receive a pardon through the program, clemency for those people will mean less barriers to housing, employment and hopefully improve their lives. “I’m sure to the 231 people who went through this process, got approved, do qualify, when they get the pardon certificate in their hands, it will matter in their lives,” he said. “They had a reason they wanted this pardon. Whether they wanted it for their own person justice, to clear their own name, or they needed it as answer to their record, those pardons will matter.”

December 2, 2022 in Clemency and Pardons, Data on sentencing, Drug Offense Sentencing, Pot Prohibition Issues, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, November 22, 2022

Following Prez Biden's lead, Oregon Gov pardons over 47,000 marijuana possession convictions

As reported in this local artcle, around "45,000 people previously convicted of marijuana possession in Oregon will be pardoned and $14 million in fines forgiven, the Governor's Office announced Monday."  Here is more:

Gov. Kate Brown is pardoning the 47,144 convictions for possession of one ounce or less of marijuana going back several decades. Criminal convictions, even for possessing small amounts of marijuana that would be legal now, can be barriers to employment, housing and education.

“No one deserves to be forever saddled with the impacts of a conviction for simple possession of marijuana — a crime that is no longer on the books in Oregon,” Brown said in a statement Monday. “Oregonians should never face housing insecurity, employment barriers, and educational obstacles as a result of doing something that is now completely legal, and has been for years. My pardon will remove these hardships." She noted that while all Oregonians use marijuana at similar rates, Black and Latino people have been arrested, prosecuted and convicted of marijuana possession at disproportionate rates.

Officials with the American Civil Liberties Union applauded Brown’s action on Monday, saying her move followed an important step by President Joe Biden last month to pardon thousands of people nationwide of federal convictions for marijuana possession. Officials with the ACLU of Oregon said Brown is the first governor take this action on pardoning. Sandy Chung, executive director of ACLU of Oregon, said they were grateful for Brown's use of clemency to address the state's outdated and racially-biased practices, including policies from the failed "War on Drugs."...

According to the Governor's Office, the pardon applies to electronically available Oregon convictions for possession of one ounce or less of marijuana in pre-2016 cases in which the person was 21 years of age or older, where this was the only charge, and where there were no victims. This pardon does not apply to any other offense related to marijuana or other controlled substances. More information can be found online.

Following Brown's pardon, the Oregon Judicial Department will ensure that all court records associated with the pardoned offenses are sealed. About $14 million in unpaid court fines and fees associated with the pardoned convictions will be forgiven. The pardoned marijuana convictions will no longer show up on background checks of public court records, but the conviction may show up on background checks conducted by law enforcement officials or licensing authorities as a pardoned conviction....

Jessica Maravilla, policy director of ACLU of Oregon, said by eliminating $14 million in fines and fees, Brown is breaking down a massive barrier many have to housing, schooling and jobs. "For low-income communities and people of color, they can result in continued entanglement in the criminal legal system," she said. "The Governor’s forgiveness of $14,000,000 in fines and fees is a significant step in addressing unjust systemic burdens created by prior convictions — especially, in this case, for a crime that no longer exists.”

The official statement from Gov Brown's office is available at this link.

November 22, 2022 in Clemency and Pardons, Marijuana Legalization in the States, Pot Prohibition Issues, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Monday, November 21, 2022

Does Prez Biden's clemency record in 2022 deserve some praise on the day of turkey pardons?

Prez Biden today engaged in the annual turkey pardon silliness at the White House, and I found this array of headlines about the event amusing:

From AP, "Biden opens holidays, pardons turkeys Chocolate and Chip"

From CNN, "Biden pardons Thanksgiving turkeys: 'No ballot stuffing, no fowl play'"

From Fox News, "80-year-old Biden falsely claims Delaware has most chickens in the nation"

Media biases aside, I usually have my own bias toward criticizing each and every president on this day for pardoning turkeys so regularly while granting clemencies to people so rarely.  Here are a few prior posts of this vintage:

But, as the title of this post asks, I am wondering whether I have to use this day in 2022 to praise rather than criticize President Joe Biden's clemency record.  Back in April, as detailed here, Prez Biden used his clemency pen to grant three pardons and 75 commutations.   And last month, as detailed here, Prez Biden pardoned many thousands of persons federally convicted of simple possession of marijuana.  This record puts Prez Biden way ahead of any other modern President in terms of clemency grants in his first few years in office, and I do think that merits some praise.

That said, as perhaps the title of this post hints, I also think there is far more that a president can and should do with the clemency pen, and so I am eager to push Prez Biden to do more, a lot more.  There are still many thousands of persons serving excessive federal prison terms and hundreds of thousands pf persons burdened with the collateral consequences of low-level federal convictions.  Though I am prepared to praise Prez Biden for what he has done so far, I also want to make sure he knows there is a lot more clemency work to do.

November 21, 2022 in Clemency and Pardons, Who Sentences | Permalink | Comments (1)

Monday, November 14, 2022

"President Biden's Pardons: What It Means for Cannabis and Criminal Justice Reform"

Bac4c356-7915-4767-bd62-7e39643a3eb3The title of this post is the title of this exciting webinar scheduled for next month (December 13 starting at 12noon), which is organized by Drug Enforcement and Policy Center at The Ohio State University Moritz College of Law and the Last Prisoner Project. Here is a bit of the backstory and the panel lineup:

On October 6th, 2022, President Biden issued a proclamation granting pardons to over 6,500 people with federal simple possession of marijuana offenses.  In an acknowledgment of the fact that the vast majority of cannabis convictions take place on the state level, President Biden simultaneously encouraged the country’s governors to use their clemency power to issue similar grants.  While the President’s executive actions are an unprecedented and important step forward, there is still much more work ahead to fully redress the harms of cannabis criminalization.

Please join the Drug Enforcement and Policy Center and the Last Prisoner Project as we host a panel of experts to discuss how these pardons will affect people with cannabis convictions on their record, how states could act on the President's call, and what implications this may have for the future of cannabis and criminal justice reform in the United States.

Panelists:

Elizabeth G. Oyer, U.S. Pardon Attorney, U.S. Department of Justice

JaneAnne Murray, Associate Clinical Professor of Law, Director of the University of Minnesota Law School Clemency Project

Sarah Gersten, Executive Director and General Counsel, Last Prisoner Project

Moderator:

Douglas A. Berman, Newton D. Baker-Baker & Hostetler Chair in Law; Executive Director of the Drug Enforcement and Policy Center

More details and a simple registation form can be found at this link

November 14, 2022 in Clemency and Pardons, Pot Prohibition Issues, Who Sentences | Permalink | Comments (2)

Friday, November 11, 2022

Wouldn't pardons and commutations for those who served be a great way for Prez Biden to honor Veterans Day?

Veterans-original_cropThe question in the title of this post is inspired by today's national holiday, Veterans Day.  Based on the latest data from Bureau of Justice Statistics, from this March 2021 report "Survey of Prison Inmates, 2016: Veterans in Prison," veterans make up over 5% of the federal prison population (and nearly 8% of state prison populations).  Moreover, as an important new initiative from the Council for Criminal Justice has highlighted, roughly "one third of veterans report having been arrested and booked into jail at least once in their lives, compared to fewer than one fifth of non-veterans."  In other words, at both the federal and state level, there are surely no shortage of justice-involved veterans who could and should be a focus of concern and attention on this important day and for whom clemency consideration would be justified.

Though I am not expecting that Prez Biden will celebrate this Veterans Day by making a special effort to grant commutations or pardons to a special list of veterans, I have long thought criminal justice reform advocates ought to lean into this day by urging the President and all Governors to make a tradition of using clemency powers in this kind of special and distinctive way on this special and distinctive day.  As I have noted before, a key slogan for this day is "honoring  ALL who served," not just those who stayed out of trouble after serving.

Some (or many) prior related posts: 

November 11, 2022 in Clemency and Pardons, Offender Characteristics, Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Thursday, November 10, 2022

"Dresser Drawer Pardons: Pardons as Private Acts"

The title of this post is the title of this new article authored by Andrew Ingram now available via SSRN. Here is its abstract:

Can a President issue a pardon without telling anyone but the recipient that she has issued it?  Yes, the President can grant a valid pardon without telling anyone but the recipient of her grace that she has done so.  While a defendant must plead a pardon for a court to take notice of it and quash an indictment, the document may otherwise lay buried in a sock drawer in case it is ever needed without losing any of its force or effect.

In this article, I make the case for secret pardons based upon Supreme Court precedent dating back to Chief Justice Marshall’s tenure on the Court.  In the years since Marshall’s 1833 ruling in United States v. Wilson, the Court has repeatedly reaffirmed the historical and formalist approach to the pardons clause that Marshall inaugurated.  Declaring that English practice should be the guide to the federal pardons clause, Marshall endorsed the understanding of pardons maintained by English treatise writers.  Marshall and the English writers describe pardons as a kind of deed or private act.

Besides validating secret pardons, the fact that pardons are to be treated as private acts or deeds also teaches us that oral pardons are likely invalid and that self-pardons are utterly nugatory.  Along the way to these conclusions, I confront the oddity of the Court-backed legal truth that pardons are private acts, explaining how a power with so many public consequences for the criminal justice system could possibly be considered a private act.  I also consider an abortive challenge to the historical–formalist approach to the pardon power established by Chief Justice Marshall that Justice Holmes raised in the 1920s.  Studying the clash between Marshall and Holmes allows us to see clearly the difference between Holmes’ legal realism and Marshall’s antiquarian formalism.

November 10, 2022 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, October 24, 2022

Prez Biden suggests disinterest in broader marijuana clemency as activists protest on behalf of pot prisoners

This new Marijuana Moment piece, headlined "Biden Has No Intention Of Extending Marijuana Pardons To Help People Jailed For Selling It, He Suggests," reports on new comments from the President about his recent clemency activity.  Here is how it starts:

President Joe Biden on Friday again touted his recent marijuana pardons proclamation, but indicated that he has no intention of granting relief to people who are in prison for selling cannabis.  “I’m keeping my promise that no one should be in jail for merely using or possessing marijuana,” he said. “None. And the records, which hold up people from being able to get jobs and the like, should be totally expunged. Totally expunged.”

“You can’t sell it,” the president added. “But if it’s just use, you’re completely free.”

The comments come as activists are planning a protest including civil disobedience at the White House for Monday aimed at calling attention to those who are left behind by Biden’s existing cannabis clemency action.

It’s not clear if the president’s latest remarks simply describe the scope of his current marijuana pardons, which came alongside a separate move to review the drug’s current scheduling status under federal law, or if they are an indication he is ruling out broadening the scope of clemency relief in the future.

The latter scenario would be a great disappointment to the advocates behind the planned White House protest. Those groups, including Students for Sensible Drug Policy, Last Prisoner Project, DCMJ and others, sent a letter to Biden this month, calling his moves to date “a great first step” but saying they “did nothing to address the thousands of federal cannabis prisoners currently incarcerated.”

This extended Washington Post piece, headlined "Sentenced to 40 years, Biden’s marijuana pardons left him behind," discusses the planned protest and the prisoners who are the focal point for additional clemency advocacy:

Protesters are expected to gather outside the White House on Monday to advocate for people ... incarcerated for what they would consider nonviolent offenses that involve marijuana, especially as public perception of the substance has shifted.  Cannabis is now legal for recreational adult use in Washington, D.C., two territories and 19 states.  It is on the ballot in five more states next month.

For those hoping to see marijuana law and policy reforms untangle the legacy of the country’s war on drugs, Biden’s announcement this month that he’d pardon people convicted of federal simple possession did not go far enough. And meaningful post-conviction reform still remains largely elusive in an America that echoed with promises to scrutinize criminal justice following the murder of George Floyd.

The Last Prisoner Project, a nonprofit working on cannabis criminal justice reform that lobbied the White House on this issue, has estimated that there are roughly 2,800 people in federal prison due to marijuana-related convictions, a statistic the organization said stems from a 2021 report from Recidiviz, a nonprofit that uses technology and data to build tools for criminal justice reform....

The first step in ending the war on drugs — which has disproportionally affected Black and Brown communities — is releasing people who have been incarcerated for nonviolent marijuana offenses, said Jason Ortiz, executive director of Students for Sensible Drug Policy.

Offenses like cultivation, distribution and conspiracy, Ortiz said, are the same actions major companies are able to commercialize and profit from today. “There are multibillion dollar companies that sell thousands and thousands of pounds of cannabis a year and operate in multiple states. So if we’re going to allow for that type of commerce to happen, everyone in prison who did anything even remotely close to that should be immediately let out.”

I think it notable and worth noting that we actually have no clear accounting of how many persons may still be serving federal prison terms for "nonviolent marijuana offenses."  This recent analysis of federal prison data from January 2022 by the US Sentencing Commission suggests the number of imprisoned marijuana trafficking offenders was "only" around 2200 as of the start of this year.  Notably, the federal marijuana prisoner number was around 7500 based on USSC data from just five years ago, but sharp declines in federal marijuana prosecutions (discussed in this article) and COVID-era prison population reductions have had a huge impact on the total number now incarcerated for federal marijuana offenses.

Prior recent related posts:

UPDATE: Here is a new Washington Post piece about the protest headlined "With speeches, stars and a blow-up joint, protesters press Biden on pot."

October 24, 2022 in Clemency and Pardons, Drug Offense Sentencing, Pot Prohibition Issues, Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Saturday, October 15, 2022

Notable comments on drug sentencing policies from rival Senate candidates in Pennsylvania

NBC News has recently run a couple of interesting pieces based on interviews with the Pennsylvania US Senate candidates that probed some sentencing issues. Here are links to the pieces and some of the passages:

"Fetterman says his stroke recovery 'changes everything' but that he’s fit to serve as senator"

He also pushed back on Republicans who accuse him of being soft on crime. Though he used his seat on a state parole board to advocate for the early release of some prisoners — including felons convicted of murder and other violent crimes — Fetterman said paroles were only granted in a small fraction of cases and to convicts who had demonstrated remorse through years of good behavior....

He also praised President Joe Biden’s decision last week to pardon thousands of people convicted only on charges of marijuana possession at the federal level; he said earlier this year that he had pressed Biden to decriminalize pot.

At the same time, Fetterman told NBC News that he favors strengthening federal drug laws to make it easier to apply mandatory minimum sentences to fentanyl dealers, an idea incorporated into GOP legislation on Capitol Hill.

Pennsylvania, like many states, has grappled with the abuse of pain-killers such as fentanyl, a powerful synthetic opioid that can be lethal in small doses. Despite his approval for releasing some violent criminals early, and without committing to signing onto a GOP bill in Congress, Fetterman endorsed the basic aim of the legislation.

“I’d have to see what’s in front of me when it’s there. But the bottom is that being an addict, you know, we haven’t been able to arrest our way out of, you know, to the addict,” he said. “But it’s the, actually the pushers and the dealers, that’s a completely different issue. And they deserve to be in prison.”

"Oz says he supports Biden on marijuana pardons and opposes federal mandatory minimum prison sentences":

Mehmet Oz opposes federal mandatory minimum prison sentences and thinks President Joe Biden made a “rational move” by announcing a broad pardon for certain marijuana users, Oz, the Republican Senate nominee in Pennsylvania, said Thursday in an exclusive interview with NBC News.

The remarks represent a slight tack to the center in the final days of a race in which Oz, who trails in public polling, has repeatedly attacked Democratic rival John Fetterman as being too soft on crime.

Oz said he supports Biden’s decision to clear the records of ex-convicts who were in federal prison solely on charges of simple marijuana possession, a rare area of agreement with Biden and Fetterman.

“Going to jail for marijuana is not a wise move for the country. I think folks who have used marijuana and that’s the only reason they’re in jail should not have those criminal — those rulings — held against them,” Oz said, crediting Biden with a “rational move.”

He also said he broadly opposes federal mandatory minimum prison sentences, just days after Fetterman voiced support for applying them in more cases involving fentanyl dealers in an exclusive interview with NBC News.

“I really think judges should be empowered to make the difficult decisions, and they generally do it well,” Oz said. “When we tie their hands by making laws at the federal level, it hinders their ability to do what needs to be done.”

October 15, 2022 in Clemency and Pardons, Drug Offense Sentencing, Mandatory minimum sentencing statutes, Who Sentences | Permalink | Comments (0)