Tuesday, July 13, 2021

"We Know How to Fix the Clemency Process. So Why Don’t We?"

The title of this post is the headline of this new New York Times essay authored by Rachel Barkow and Mark Osler.  As with everything authored by these two professors, this piece should be read in full.  Here are excerpts:

The fundamental problem with having the Justice Department run clemency is that prosecutors aren’t good at it.  Under the department’s regulations, the Office of the Pardon Attorney must give “considerable weight” to the opinions of local prosecutors — the very people who sought the sentence in the first place.

These prosecutors typically don’t keep up with the people they prosecuted to learn what they’ve been doing while incarcerated or what their post-prison re-entry plans look like.  Their data point is the conviction itself, so their analysis of the case is frozen in time. No matter the intent from on high, it is hard to get around this obstacle.

Vice President Harris, a former prosecutor herself, has warned of “inherent conflicts of interest” in the current process. Justice Department lawyers, she argued during her campaign, should not determine whether people convicted by colleagues in the legal system should have their sentences shortened or commuted....

The faulty architecture of clemency has been apparent for decades, with shamefully low grant rates from presidents of both parties.  If the administration put in place a competent advisory board to process petitions instead of relying on the Justice Department’s flawed and biased process, it could address the backlog, just as a board addressed the huge backlog of petitions for clemency from draft evaders in the wake of the Vietnam War.

The board should include experts in rehabilitation, re-entry and prison records, including a person who has been incarcerated.  It would be able to consult with the Justice Department, but the department would no longer be responsible for the decision itself.  This will allow the board to make objective recommendations; then it will be up to the president whether to accept them.

The Biden administration understands the value of expertise and process.  Justice is the last place where an exception should be made.

July 13, 2021 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Wednesday, July 07, 2021

"When Will Joe Biden Start Using His Clemency Powers?"

The question in the title of this post is the headline of this lengthy New York magazine article by Zak Cheney-Rice.  The obvious answer, of course, is "not soon enough," given that Prez Biden has gone his first six month, amid a global pandemic after campaigning as a reformer, without a single act of clemency.  But the piece strikes a slightly more hopeful tone, and here excerpts: 

According to the New York Times, the Biden administration has signaled, as recently as this summer and in multiple conversations with advocates, that he would use clemency both broadly and soon, with an emphasis on advancing his racial justice agenda.  This is significant ... because over the last several decades, presidents have been using their clemency powers less often, waiting until later in their presidencies to do so, and leaving people in squalid and dangerous conditions for longer periods of time because of it....

In the waning days of Donald Trump’s presidency, his administration issued a memo saying the thousands of people who’d been released from federal prison to home confinement during the “pandemic emergency period” would be locked up again as soon as the order was lifted, if their sentences weren’t up by then.  According to the Times, this is still in effect, and the Biden administration has been weirdly cagey about whether it would reverse Trump’s order and let them stay home.  These 4,000 prisoners are pre-selected and already free, so they’re easy candidates for commutations. The White House reviews the emergency declaration every three months.  None of these reviews has yielded answers so far, and the next one is scheduled for July.

This situation is shaping up to be a test of Biden’s ambitions regarding clemency.  There’s no concrete reason to think the president won’t make good on his promise to use clemency more than has become normal, but that’s mostly because the bar is so low.  Since Richard Nixon was president — a useful marker here, because that’s when the era of mass incarceration started — there’s been a fairly steady downward trend in presidents’ use of this unique power, which is granted to them by the Constitution, and which entails mostly commutations (which partly or completely cut short sentences) and pardons (which essentially wipe out convictions).

Nixon granted clemency to 926 people.  Trump granted it to 237, bookending a period of more than 50 years, starting with Ronald Reagan, that saw the numbers drop below 500 and stay there, with one exception, through the present day.  (With the caveat that this period has seen two one-term presidents, Democrats have usually been more willing to use this power than Republicans, but not by much. )  The one exception was Barack Obama, who granted clemency, mostly in the form of commutations, to 1,927 people, the most since Harry Truman.  As of July 1, 2021, there were still 153,683 federal prisoners.

Biden has hinted that he’ll start sooner rather than later, possibly even before the 2022 midterms, which is a big deal because of the politics surrounding the issue.  The American antipathy toward clemency is one of the main motivators behind the downward trend in pardons and commutations: The appearance of being “soft on crime,” and the possibility that someone you free re-offends in some politically inopportune way, makes it hard for presidents to rationalize pardoning people or commuting sentences with any regularity. To minimize the political fallout, they usually wait until late to start granting the bulk of them.  Oftentimes, like in Trump’s case, most get rushed through during a president’s last days in office.

The effect is that clemency has become really unusual.  And when something is unusual, each decision becomes freighted with dramatic significance and scrutinized to the nth degree.  There have, of course, been good reasons to monitor presidents’ clemency decisions. Trump used it to reward imprisoned cronies and mislead voters.  Bill Clinton famously pardoned the husband of a wealthy Democratic donor.  But the scrutiny is overwhelmingly due to its rarity, not its infrequent abuses.  It’s been fashioned into an almost cosmically precious blessing to those who receive it, rather than a workaday part of a president’s duties.

Plenty of ideas have been floated about how to change this on a systemic level.  Rachel Barkow, a law professor of New York University, has spent years researching and developing ideas for how to make clemency more common, in part by making it less politically perilous and less vulnerable to conflicts of interest.  Both of these goals probably mean removing such decisions from the purview of the Justice Department, where they’re mostly handled today.  Federal prosecutors are responsible for these people being in prison in the first place.  Their decisions — which often determine which petitions get to the president, for example — inevitably run up against the fact that they’re often undermining, and potentially reversing, their own work.

To reduce the political risk, Barkow suggests establishing a clemency board, composed of interests from across the political spectrum, and spanning a wide range of people who work, have worked in, or have been impacted by the criminal legal system, to process requests and seek out candidates.  This would spread out responsibility enough to take the weight off any one person, thereby encouraging more commutations and pardons, especially for someone like Biden, who says he wants to grant them.  (Several states already have boards like this in place. Barkow, citing her research and others’, describes them as a “necessary precondition” where clemency is routine.)

Whatever the route, two things are clear about Biden’s plan so far: he hasn’t done anything yet, despite his signaling, and people close to him have indicated to the Times that he’s “not inclined to circumvent” the Justice Department — meaning he’s probably committed to an approach that preserves conflicts of interest and retains more political calculation than it needs to.  This is bad for normalizing clemency.  The president couldn’t end mass incarceration or even make a major dent in it, even with a more proactive strategy — the federal incarcerated population is too small as a portion of the whole, for one. But he can wield clemency symbolically, telegraphing to federal prosecutors which cases are worth pursuing, for example.  And in more practical terms, he can spare as many people as he can from what is functionally a life of terror, torment, and uncertainty, and can do so now and regularly moving forward to prevent needless suffering.

Jails and prisons are scary and often life-annihilating places, even in non-pandemic times, and there are untold numbers of people who shouldn’t be there.  Immediate fixes, though small, are available.  The longer Biden waits and the rarer presidential clemency stays, the more unusual it will continue to be.

A few prior recent related posts:

July 7, 2021 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Sunday, July 04, 2021

Reviewing a few Fourth of July postings (while awaiting Prez Biden clemency action to enhance liberty)

Liberty-us-flag-600-dreamstimeI have not always done special posts to celebrate Independence Day over the last 18 years of blogging.  But, looking back at my archives this morning, I realized I have done enough notable July 4 posts to justify a bit of a celebratory review:

From 2005: Celebrating liberty, Blakely-style

From 2008: Celebrating liberty in the country leading the world in incarceration rates

From 2009: What to the American imprisoned is the Fourth of July?

From 2010: Celebrating our declaration of rights to "Life, Liberty and the pursuit of Happiness"

From 2017: "Everyone should go to jail, say, once every ten years"

From 2018:  Hey Prez Trump, how about honoring Independence Day by using your clemency power to give some more Americans more liberty?

From 2019: Imagining an Independence Day in which Governors and the President compete to use their clemency powers to enhance liberty and freedom

These last two postings serve as a timely reminder that, so far, Prez Joe Biden is yet to live up to his campaign promise to "broadly use his clemency power" in order "to secure the release of individuals facing unduly long sentences for certain non-violent and drug crimes."  Commuting the sentences of persons serving undue time in federal prison or on home confinement could and would be, of course, one way to enhance liberty on this special day for celebrating freedoms; granting pardons in order to free persons from burdensome collateral consequences could and would also enhance "Life, Liberty and the pursuit of Happiness" for deserving recipients.

I am quite fearful that Prez Biden is in no rush to use his clemency authority to enhance liberty.  But, as 2021 marches forward, I am likely to keep highlighting the reality that every 20th Century president, except for Richard Nixon and Bill Clinton, granted some clemencies during his first year in office.  Of course, the 21st Century record is much uglier, with a lone pardon by Prez Trump in 2017 as the only first-year clemency grant by a president in the current century.  I will keep rooting for Prez Biden to return to the 20th Century norms rather than continue the ugly 21st Century record, but I am not holding my breath. 

July 4, 2021 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Friday, July 02, 2021

New Federal Sentencing Reporter issue considers "After Trump: The Future of the President’s Pardon Power"

M_fsr.2021.33.5.coverIt strikes me as a great bit of great timing, as we head into a weekend celebrating our great nation's declaration of independence from a monarchy, that the new issue of the Federal Sentencing Reporter focused on the pardon power in the US Constitution is just now available online.  It is often said that the presidential pardon authority in Article II section 2 of the Constitution is the most "kingly" power given to our chief executive, and former Prez Donald Trump certainly seemed at times to bring a "mad King George" quality to his activities in this arena.  Notably, as explained in the intro to this June 2021 issue of FSR, the editors had some history and some expert help putting together a new issue on this always timely topic:

This Issue of the Federal Sentencing Reporter shines a light on the state of clemency today, with an emphasis on the federal system and events of the Trump administration.  This Issue thus continues an FSR tradition of exploring federal clemency practices under each president, starting in 2001 after President Bill Clinton created controversies with final-day pardons.  Over the last twenty years, an array of commentators have analyzed the actions (and inactions) of four presidents, each of whom embraced quite different goals, perspectives, and strategies.  In addition to bringing thoughtful new perspectives to recent events, the articles assembled today by guest editor Margaret Love, the indefatigable advocate, scholar, and former Pardon Attorney, offer a roadmap to, in her words, “restore legitimacy to the pardon power and its usefulness to the presidency.”  The editors of FSR are — once again — deeply grateful for Ms. Love’s efforts and expertise.

Here are the great new original articles in this great new FSR issue:

July 2, 2021 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Sunday, June 27, 2021

Some clemency news and notes from (only) a few states

If there was lots of clemency action in lots of jurisdictions lots of the time, I might not consider a few grants by a few governors to be especially blogworthy.  But clemency action is still all too rare, so it notable to see clemency stories from a few states in one week:

From Florida, "Florida governor pushes through pardon for COVID-19 rule breakers"

From Kansas, "Kansas governor grants clemency to 8, embracing ‘political risk’ in rare use of power"

From Oregon, "Gov. Kate Brown commutes sentences of 41 inmates who helped battle historic wildfires"

June 27, 2021 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Why aren't there much stronger calls for CONGRESS to fix post-pandemic home confinement problems?

In many prior posts (some linked below), I have discussed the Office of Legal Counsel memo released at the end of the Trump Administration which interprets federal law to require that certain persons transferred to home confinement pursuant to the CARES Act be returned to federal prison when the pandemic ends.  I see that there are two more notable new press articles on this topic:

From The Hill, "Biden faces criticism for not extending home confinement for prisoners"

From the Washington Post, "A grandmother didn’t answer her phone during a class. She was sent back to prison."

The somewhat scattered Post article focuses on persons sent from home confinement back into federal prison for minor technical violations while also noting that the Biden Administration could seek to rescind the OLC memo or use clemency powers to keep folks home after the pandemic is deemed over.  The lengthy Hill article is more focused on the political discussion around this issue, but my post title reflects my growing frustration with this discourse.  Here are excerpts:

President Biden is under fire for not announcing an extension of a home confinement program for prisoners that was started during the coronavirus pandemic.  Progressives and criminal justice advocates have pressured the administration for months to rescind a Trump-era policy that kills the program when the pandemic ends.  They are frustrated that Biden's remarks this week didn’t address it....

Rep. Bonnie Watson Coleman (D-N.J.), who led a letter of 28 House Democrats in April calling for the policy to be rescinded, “is disappointed he hasn’t officially extended the home confinement program,” a spokesperson said....

The home confinement program during the coronavirus pandemic was launched in response to the CARES Act in March and directed the federal Bureau of Prisons to prioritize home confinement for certain inmates in an effort to limit the spread of the coronavirus.  Roughly 24,000 inmates since have been sent to home confinement.

In the final days of the Trump administration, the Justice Department's Office of Legal Counsel issued a memo stating that under federal law, those inmates released under the CARES Act must report back to prison when the coronavirus emergency is over, unless they are nearing the end of their sentence.  Biden and Attorney General Merrick Garland could rescind that policy....

Advocates also argue that those inmates transferred to home confinement have been monitored and largely have not violated the conditions of their situation. “If they’re so low risk and they haven’t violated the conditions, it’s hard to imagine any reason why they should be sent back,” said Maria Morris, senior staff attorney at the ACLU National Prison Project, adding that it would be a “ridiculous waste of resources.”

Many of the inmates placed in home confinement are elderly or in a vulnerable situation due to COVID-19, which posed a threat to them if they stayed inside a prison.  [Holly] Harris calls it “bad government” to send those inmates back to prisons. “At this point, the president just needs to grant them clemency and let them move on.  They are out because the Trump Administration felt it was safe enough to let them go home.  What more cover does he need?” she said.

I agree entirely with advocates saying it would be "bad government" and a "ridiculous waste of resources" to send back to prison thousands of vulnerable people who have been successful serving their sentences at home during the pandemic.  But I do not think it entirely right to describe the OLC memo as a "Trump-era policy" that is readily changed by the Biden Administration.  The OLC memo is not really a "policy" document; it is an elaborate interpretation of how the CARES Act alters BOP authority to place and keep persons in home confinement.  Though the OLC statutory interpretation requiring a return of persons to federal prison is debatable, the fact that this interpretation of the CARES Act amounts to bad policy does not itself give the Biden Administration a basis to just ignore statutory law.

Of course, statutory law notwithstanding, Prez Biden could (and I think should) use his clemency authority to extended home confinement for those at risk of being sent back to federal prison post-pandemic.  But if members of Congress are "disappointed" that the home confinement program is not being extended, they should amend the CARES Act to do exactly that with an express statutory provision!  This difficult issue stems from the text of the CARES Act; if the statutory text Congress passed when COVID first hit now is clearly operating to creates wasteful, bad government, Congress can and should fix that statutory text.  Put simply, this matter is a statutory problem that calls for a statutory fix. 

I surmise that advocates (not unreasonably) assume that getting a gridlocked Congress to "fix" this CARES Act home confinement problem through statutory reform is much less likely than achieving some other fix through executive action.  But, as I see it, exclusive focus on executive action to fix what is fundamentally a statutory problem itself contributes to legislative gridlock.  Indeed, I am more inclined to criticize the Biden Administration for not urging Congress to fix this CARES Act problem, especially because the notable success of home confinement policies during the pandemic could and should justify statutory reforms to even more broadly authorize ever greater use of home confinement in "normal" times.

Notably, three sentencing-related bill made their way through the Senate Judiciary Committee earlier this month (basics here).  Because I am not an expert on either legislative procedure or inside-the-Beltway politics, I do not know if it would be easy or impossible to include add "home confinement fix" to one of these bills.  But I do know that I will always want to believe that Congress at least has the potential to fix problems of its own creation.  But, as this post is meant to stress, I think it important not too lose sight of the fact that this is a fundamentally a congressional problem, not a presidential one.      

Some prior recent related posts:

UPDATE:  Achieving a media troika, the New York Times also published this lengthy article on this topic under the headline "Thousands of Prisoners Were Sent Home Because of Covid. They Don’t Want to Go Back."  Like the Post article, this piece is a bit scattered in its focus while also directing most of the attention on the Justice Department and Biden Administration rather than highlighting Congress's critical role in this story.  This passage is especially notable:

Changing the prison system is one of the few areas that has drawn bipartisanship agreement in Washington. Senator Charles E. Grassley, Republican of Iowa, joined Democrats in criticizing the Justice Department memo, which was issued in January.

“Obviously if they can stay where they are, it’s going to save the taxpayers a lot of money,” Mr. Grassley said at the hearing [before the Senate Judiciary Committee in April]. “It will also help people who aren’t prone to reoffend and allows inmates to successfully re-enter society as productive citizens.”

The next sentence of this article, if it were telling the full story, should at the very least note that Congress could "fix" the OLC memo through a simple statutory change. I agree with Senator Grassley that it would be wrong to send all these folks back to prison after they have done well on home confinement, and so I think Senator Grassley should get together with his pals on the Capital Hill and pass a statute to that the law no longer could be interpreted to require sending them all back to prison at taxpayer expense.

June 27, 2021 in Clemency and Pardons, Criminal justice in the Biden Administration, Criminal justice in the Trump Administration, Impact of the coronavirus on criminal justice, Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, June 24, 2021

Terrific CCRC review of new RAND report on presidential pardons

In this post last week, I flagged this massive report produced by RAND Corporation titled "Statistical Analysis of Presidential Pardons."  Helpfully, Margaret Love over at the Collateral Consequence Resource Center has completed this terrific overview of the reports, and here are excerpts from her posting:

In a 224-page statistical analysis of how pardon petitions were evaluated by the Office of the Pardon Attorney (OPA) between 2001 and 2012, the RAND researchers “[did] not find statistically significant evidence that there are racial differences in the rates at which black and white petitioners receive [favorable] pardon recommendations.” (Note that sentence commutations were not a part of the RAND study.)  At the same time, there was also “no question that non-Hispanic white petitioners as a group were more likely to receive a pardon than did black petitioners.”  The apparent contradiction between these two statements can be explained by the fact that white applicants were statistically more likely to satisfy the formal standards that apply to OPA decisions about which cases to recommend for pardon, suggesting that either the formal standards need revision or the pool of applicants needs to be expanded, or both....

Finally, in what may be the most disturbing finding for the Biden Administration, the RAND report observes that OPA appears to be struggling to manage a growing case backlog despite having had its attorney staff augmented during the Obama years....

Since June 2018, in part because of President Trump’s deliberate neglect of the regular pardon process, the backlog of pending pardon petitions has grown to more than 3,000 cases, some of which have been pending for more than a decade, while the commutation caseload now exceeds 12,000 cases.  The RAND report expresses concern that this overwhelming caseload may increase the time it takes to process a pardon application, which it characterizes as already “long and drawn-out.”  Indeed, it suggests that an intractable backlog could continue to grow given the hundreds of thousands of individuals who are eligible to apply for pardon, particularly if they are “motivated to apply under the belief that a more receptive ear currently resides in the White House.”  The report does not suggest alternative ways of dealing with the caseload, such as shortcutting the investigative process or increasing administrative case closures, as much as conceding that such efficiency measures would have racially skewed results.

June 24, 2021 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Sunday, June 20, 2021

"The President’s Conditional Pardon Power"

The title of this post is the title of this new Note in the latest issue of the Harvard Law Review.  Here is the end of the Note's introduction:

This Note concludes that the President’s pardons may not include conditions that deprive an individual of rights not already deprived by that individual’s conviction (or, in the case of preemptive pardons, rights that would have been deprived by a guilty plea).  This internal limitation is externally reinforced by the Due Process Clause.  This Note’s historical and constitutional arguments should inform judges faced with conditional pardon cases.  Whatever disagreements may arise over this Note’s descriptive account of the conditional pardon power’s limits, the examination of risks from unfettered conditional pardons commends to future administrations the wisdom of prudential limits.

Part I introduces the conditional pardon power jurisprudence.  It begins by examining three cases showing that (1) English common law informs the President’s pardon power and (2) American courts oscillate between two distinct theories of the President’s pardon power.  The first theory, which this Note dubs the “merciful-contract” theory of pardons, envisions pardons as a private act between President and pardon recipient.  By contrast, the “public-welfare” theory understands pardons as an instrument of the general welfare.  This Part next describes two conceptions of the conditional pardon power: a “Broad Position” that would impose no limits on the conditional pardon power and a “Narrow Position” that insists on limits but fails to precisely define them.

Part II argues that the Broad Position cannot be correct.  After establishing that the conditional pardon power poses unique danger to constitutional rights, it concludes that the English common law, the Framing, and structural inference from our constitutional system all suggest a conditional pardon power that is far from plenary.

Part III identifies this limit: pardon conditions may only divest rights already forfeited by dint of conviction.  It explains the limit using examples before fitting it into the theoretical framework of the pardon power.  Finally, this Part compares the identified limit with other proposals and situates it within constitutional theory generally. Part IV concludes.

June 20, 2021 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Wednesday, June 16, 2021

Massive new RAND report provides "Statistical Analysis of Presidential Pardons"

I received an email yesterday from the Bureau of Justice Statistics with a link to this 220+ page report produced by RAND Corporation titled "Statistical Analysis of Presidential Pardons."  The report is so big and intricate that the introduction runs 40 pages with lots of complicated data.  And, disappointingly, it seems the detailed statistical analysis includes data only running through April 2012 (through most of Prez Obama's first term) and so does not include the flush of pardons and commutations granted over the last decade. Still, the report provides a lot of coverage that should be of great interest to those who follow the use of federal clemency powers and possibilities.  Here is a snippet from Chapter 1 of the report that details its coverage:

Chapter 2 presents a model of the deliberative process employed by OPA in evaluating incoming pardon petitions.  Chapter 3 provides descriptive statistics on measures collected during our abstraction of sample petition files.  Chapter 4 reports on the findings from our statistical analysis intended to identify petitioner and petition characteristics most strongly associated with grants of pardon — with a special emphasis on the effects of race and ethnicity on final actions — and also describes the assumptions and techniques utilized for this work.  In Chapter 5 we discuss what these descriptions and findings may reveal about OPA’s pardon petition processing.

June 16, 2021 in Clemency and Pardons, Data on sentencing, Detailed sentencing data, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, May 31, 2021

Heartening coverage of one beneficiary of Ohio Gov DeWine's "Expedited Pardon Project"

Because I am directly involved in Ohio Governor Mike DeWine's "Expedited Pardon Project," I have been generally disinclined to blog about the work of the program.  But this recent local piece, headlined "Ohio governor pushes to grant more pardons," includes a terrific video of a recent pardon recipient that I was eager to share.  Here is a snippet from the story that provides some context:

15 years ago, Mutajah “Taj” Hussein says she could hardly draw a sober breath.  “During that time in my life, I experienced a level of hopelessness that most people can’t imagine,” Hussein said.

But that was 15 years ago. Now, she’s called, “Dr. Taj,” a badge she wears proudly.  She’s a licensed independent social worker. She’s served diverse populations and has worked abroad.  She plans to launch a mental wellness agency soon in Parma, Ohio and sit for the BAR exam next year. She wants to be a foster parent.

The transformation didn’t happen overnight. B efore she said she, “built a spiritual connection with the universe” in 2007, she had her run-ins with Ohio’s criminal justice system.  She said back then, it was like living on autopilot. Her only focus was finding the next drug fox or drink.

She eventually repaired her relationships and got on a path to right her wrongs. “I’m very close with my family now,” Hussein said. “Before, they hated to see me coming. Now they love it when I visit.”

Even while she was on the path to living her best life, Hussein still had a significant roadblock in her way: Her criminal history.  “My past was like an albatross around my neck,” she said. “I’ve been denied apartments that I’ve fallen in love with because of my background check. I’ve been denied positions.”

She was denied her dream job.  The offer was rescinded after her background check was complete.  “I felt dejected,” she said. “I felt like I was trapped in a nightmare where no matter how much distance I put between myself and my past, it would never be enough.  Although I’ve fought to redeem myself through restorative justice efforts, on paper, I was still just an addict.”...

The pardon process in Ohio can take years.  But she got in touch with the people involved with the Ohio Governor’s Expedited Pardon Project.  It’s a partnership between Gov. Mike Dewine, Ohio State University and the University of Akron.  Students and faculty from the universities review applications and figure out who is more likely to receive a pardon.  The team works with applicants to help them through the process, which takes around six months to a year, instead of multiple years.

Gov. DeWine called Dr. Taj to give her the news on Good Friday.  He pardoned her.  “I’ve always had hope,” she said. “But now I’m fully redeemed in the eyes of the law.  That’s a truly freeing feeling.  I really feel like the sky is the limit for me, especially with this pardon.  I can’t wait to see what the universe has in store for the rest of my life.”

Gov. DeWine has said he wants more low-level offenders to apply for pardons through the project that launched in Dec. 2019.  Dr. Taj spoke as part of a panel Thursday night that answered questions about the expedited pardon process.  Part of the panel’s goal was to raise awareness about the project in order to get more people to apply for a governor’s pardon....

DeWine hopes more people like Dr. Taj utilize the program to allow “model citizens” to maneuver what is usually a complicated and lengthy process. “My expedited pardon project can benefit Ohioans who are living in the shadow of a dark past and regretted mistake, giving them the opportunity to truly have a second chance to reach their full potential,” DeWine said.

Related posts and links:

May 31, 2021 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Tuesday, May 18, 2021

Idaho delays scheduled execution for terminally ill condemned man to allow for commutation hearing

As reported in this new AP piece, a "scheduled June execution for an Idaho man who is dying of terminal cancer has been canceled so the state’s Commission of Pardons and Parole can consider whether to commute his sentence."  Here are a few details:

Gerald Ross Pizzuto Jr. was scheduled to die by lethal injection on June 2 in connection with the 1985 murders of two people at a remote Idaho County cabin.  On Tuesday, the Idaho Commission of Pardons and Parole granted Pizzuto’s request for a commutation hearing, and attorneys for the state and Pizzuto agreed that the execution should be stayed until the hearing is concluded.  The hearing will be held in November, the commission said....

Pizzuto, 65, has terminal bladder cancer, diabetes and heart disease and is confined to a wheelchair.  He’s been on hospice care since 2019, when doctors said he likely wouldn’t survive for another year....

Court records show Pizzuto’s life was marred by violence from childhood.  Family members offered gruesome testimony that Pizzuto was repeatedly tortured, raped and severely beaten by his stepfather and sometimes by his stepfather’s friends, and he sustained multiple brain injuries.

Pizzuto was camping with two other men near McCall when he encountered 58-year-old Berta Herndon and her 37-year-old nephew Del Herndon, who were prospecting in the area. Prosecutors said Pizzuto, armed with a .22 caliber rifle, went to the Herndon’s cabin, tied their wrists behind their backs and bound their legs to steal their money.  He bludgeoned them both, and co-defendant James Rice then shot Del Herndon in the head. Another co-defendant, Bill Odom, helped bury the bodies and all three were accused of robbing the cabin.

Pizzuto is one of eight people on Idaho’s death row.  Idaho has executed three people since capital punishment was resumed nationwide in 1976.  Keith Eugene Wells was executed in 1994, Paul Ezra Rhodes was executed in 2011 and Richard Albert Leavitt was executed in 2012.

May 18, 2021 in Clemency and Pardons, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Uninspired comments and plans emerging from Biden White House concerning clemency vision

The New York Times has this new story that reinforces some of the buzz I have been recently hearing that Prez Biden is disinclined to significantly transform either the process or the practice of federal clemency anytime soon.  Regular readers know I have been urging clemency action by Prez Biden since his first days in office, but the first line of the article suggests we ought not expect any grants until at least mid to late 2022: "Administration officials have quietly begun evaluating clemency requests and have signaled to activists that President Biden could begin issuing pardons or commutations by the midpoint of his term."

The article does goes on to suggest Prez Biden might at least be considering a clemency approach akin to what Prez Obama eventually adopted at the very end of his second term. But it sounds like any program would still be administered through the Pardon Attorney's office still problematically located in the Department of Justice.  Here are excerpts of a piece worth reading in full:

Mr. Biden’s team ... has signaled in discussions with outside groups that it is establishing a more deliberate, systemic process geared toward identifying entire classes of people who deserve mercy.  The approach could allow the president to make good on his campaign promise to weave issues of racial equity and justice throughout his government.

The White House has publicly offered few details about his plans for issuing pardons, which wipe out convictions, and commutations, which reduce prison sentences.  But White House officials have indicated in private conversations with criminal justice activists, clemency seekers and their allies that Mr. Biden’s team is working with the Justice Department’s Office of the Pardon Attorney to process clemency requests with an eye toward having the president sign some before the 2022 midterm elections.

“We asked them not to wait to the end of a term to execute pardon and commutation power for photo ops, and they definitely assured us that is not this administration’s plan,” said DeAnna Hoskins, the president of the criminal justice group JustLeadershipUSA, who participated in a Zoom session for former prisoners with White House officials last month. “This administration is looking at early on,” said Ms. Hoskins, who worked on prisoner re-entry issues for county, state and federal government agencies after serving a 45-day sentence for theft in 1999.

Participants in the Zoom session and other meetings with the White House have come away with the impression that Mr. Biden intends to use clemency grants — which are among the most unchecked and profound powers at a president’s disposal — to address systemic issues in the criminal justice system.  The Biden campaign hinted at such an approach in its criminal justice platform, which indicated that he intended to use clemency “broadly” to “secure the release of individuals facing unduly long sentences for certain nonviolent and drug crimes.”

Among those supporting the administration’s efforts is Susan E. Rice, who leads Mr. Biden’s Domestic Policy Council. She is focused on instilling racial equity in all of the administration’s initiatives and has recruited a team with deep roots in civil rights and justice....  But the White House has indicated that it will rely on the rigorous application vetting process overseen by the Justice Department’s Office of the Pardon Attorney.

Mr. Biden’s White House has already signaled that even its allies will have to go through the process, as was made clear to Desmond Meade, who in 2018 led a successful push to restore voting rights to more than 1.4 million Floridians with felony convictions.  Mr. Meade, who has expressed interest in a federal pardon for a decades-old military conviction for stealing liquor and electronics on Navy bases while he was serving in the Army, was steered this year to the Justice Department’s pardon attorney...  In an interview, Mr. Meade said that the department’s clemency process was “way too bureaucratic,” adding that “the pardon application in itself is daunting, and it screams that you need to hire an attorney to make that happen.”  He said he was among the activists who urged White House officials to consider moving the process out of the Justice Department, noting the paradox of entrusting an agency that led prosecutions with determining whether the targets of those prosecutions deserve mercy.

But the Biden administration is not inclined to circumvent the department, according to a person familiar with the White House’s thinking. Instead, Mr. Biden’s team has pointed to the approach adopted by President Barack Obama, who issued more than 1,900 clemency grants.  Most went to people recommended by the Justice Department, many of whom had been serving sentences under tough antidrug laws, including those convicted of low-level, nonviolent crimes like possession of cocaine.

In outreach sessions to criminal justice activists, White House officials have collected recommendations on categories of clemencies that should be prioritized.  The sessions have included groups with strong connections in the Black community and those that aggressively opposed Mr. Trump, including the American Civil Liberties Union, as well as the libertarian Cato Institute and the Prison Fellowship, which counts evangelical conservatives among its staff and supporters....

The A.C.L.U. highlighted those prisoners and others in an online and newspaper advertising campaign during Mr. Biden’s inauguration week.  It urged him to grant clemency to 25,000 people in federal prison, including “the elderly, the sick, those swept up in the war on drugs and people locked up because of racist policies of the past that have since been changed.”  Udi Ofer, the director of the A.C.L.U’s justice division, said that Mr. Biden “has a special obligation given his history to use the power of clemency to fix these issues, because he was the architect of so many of the mass incarceration policies that we are now trying to repeal.”

I suppose I should be pleased that clemency issues continue to get significant attention, but I remain displeased that all we have seen so far is a lot of clemency talk (or proclamations about second chances) and no actual clemency grants.  Notably, recent polling shows lots of support for commuting the sentences of a wide variety of persons serving problematic sentences, and  almost everyone readily recognizes that there are many, many persons in the federal criminal justice system still subject to problematic sentences.  I say "almost everyone" because I sense that federal prosecutors working in the Department of Justice do not see all that many federal sentences as so problematic, which is why so many others (myself included) think it so problematic that the Justice Department’s Office of the Pardon Attorney continues to serve as the gatekeeper (and wet blanket) in the federal clemency process.  

A few prior recent related posts:

May 18, 2021 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Sunday, May 09, 2021

How about Prez Biden and lots of Governors starting a tradition of granting lots of clemencies around Mother's Day?

The question in the title of this post is prompted by my persistent eagerness to see a lot more clemency activity from chief executives and also by this new story out of Illinois headlined "Protesters deliver Mother’s Day card to Pritzker’s house, demand release of incarcerated loved ones."  Here are excerpts:

Against a backdrop of bright pink tulips, protesters stood outside Gov. J.B. Pritzker’s Gold Coast home on Friday with flowers, signs and a painted piece of cardboard that read, “Dear J.B., on this Mother’s Day, set our loved ones free.” That oversized Mother’s Day card included demands that Pritzker sign clemency petitions to for prisoners they say have been wrongfully incarcerated and that he stop construction of a new youth prison at the Lincoln Developmental Center.

Denice Bronis, an Elgin resident and member of Mamas Activating Movements for Abolition and Solidarity, said her son Matthew Echevarria, in prison for 22 years after being convicted of murder, contracted COVID-19 at Menard Correctional Center and still exhibits long-term symptoms. “Mother’s Day is just as much a day of love as it is a day of pain, especially for those who have experienced forced separation from our children, our loved ones, by the state,” Bronis said....

Kiah Sandler, a Bronzeville resident with the End IL Prison Lockdown Coalition, said although the group’s demands have shifted since Pritzker signed a sweeping criminal justice reform bill, there is still work to be done by the governor. Sandler said the coalition is asking Pritzker to lift that ban on personal contact during in-person visits, and also to grant more clemency requests to “set loved ones free with the stroke of a pen.”...

A Pritzker spokesperson later sent an email stating Pritzker has granted clemency requests throughout the pandemic and the state prison population is at its lowest level in years — down 28% since 2019, including a 43% drop in female inmates.

Holly Krig, a member of Moms United Against Violence and Incarceration, said it is “horrific and cruelly unnecessary,” that visitors and incarcerated people are not allowed to touch and also that visitors must be vaccinated; that means children under 16 — who can’t be vaccinated yet — can’t visit. She said for younger children and newborns to maintain a relationship with incarcerated mothers, contact is essential. “People can be released, people should be released and they should be released immediately,” Krig said. “We need to bring our people home.”

As highlighted by recent polling discussed here, granting clemency to various groups of persons has considerable public support across the political spectrum.  Focusing particularly on reuniting families though commutations and restoring rights through pardons on Mother's Day could be a big political winner.

A few prior recent related posts:

May 9, 2021 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Friday, May 07, 2021

Notably advocacy for Prez Biden to use his clemency power to ensure those released into home confinement need not return to prison

Alice Marie Johnson and Ja’Ron Smith have this notable new USA Today opinion piece headlined "COVID-19 concerns sent thousands of inmates home. Give clemency to those who deserve it." The subtitle of the piece captures its themes: "Nearly 5,000 inmates may be sent back to prison. After rebuilding their lives, and being contributing members of society, how is being returned justice?". Here are excerpts (links from original):

This spring, as more Americans are able to get vaccinated, there’s hope the pandemic is nearing its end and life is slowly returning to normal.  But for 4,500 Americans, the end of the pandemic could instead mean returning to prison. 

The March 2020 CARES Act allowed the Federal Bureau of Prisons to expand the period of home confinement, which usually comes at the end of a sentence.  As a result, thousands of incarcerated individuals convicted of nonviolent crimes were released from prison – where COVID-19 swept through cramped facilities – to home confinement. Many were able to reunite with their families and find jobs.   

But earlier this year, the Justice Department ordered that individuals under home confinement due to COVID-19 must return to prison when the emergency is lifted, putting 4,500 lives in limbo, awaiting an uncertain date when their return to normalcy is taken away.  Inmates near the end of their sentence may be able to stay home if the Bureau of Prisons grants permission, according to a recent USA TODAY report.  And while the Biden administration extended the length of the COVID emergency declaration, that still might not help people with years left to serve.   

The administration could get into a legal back-and-forth over the interpretation of the CARES Act.  But a simpler path would be for President Joe Biden to grant clemency to those on home confinement who pose no threat to public safety.  Reviewing the cases will be another step toward reducing unnecessary incarceration in America, which imprisons more people than any other democratic country with no added benefit to public safety.  

The two of us experienced the justice system, and clemency in particular, up close.  One of us worked as a senior adviser to former President Donald Trump on criminal justice and other policy issues.  The other served nearly 22 years in prison for a first-time, nonviolent drug offense before returning home after Trump granted clemency, and later a pardon.  Through these experiences, we have come to know people from diverse backgrounds who have made mistakes, but still have much to offer their families and our society. That is what we are seeing with many of the individuals under home confinement due to COVID-19....

To prevent individuals like these from being sent back to prison, a congressional coalition wrote a letter to Biden, urging him to review their cases for clemency.  The letter notes that the CARES Act did not require individuals on home confinement be sent back to prison, and that the Justice Department can modify the guidance issued by the last administration.  But clemency would allow rehabilitated individuals to move on with their lives rather than serving home detention for the rest of their sentences.   

Clemency should be carefully and fairly considered.  But all the people under home confinement were released because they were determined to be safe, making them strong candidates.  The moral issue goes beyond these 4,500 Americans.  In recent years, a diverse coalition from across the political spectrum has united for criminal justice reforms. Trump signed the bipartisan First Step Act in 2018, reducing some excessive sentences and creating more opportunities for rehabilitation.  

Biden ran on a platform to build on these criminal justice reforms. As he said in a proclamation commemorating Second Chance Month, “We lift up all those who, having made mistakes, are committed to rejoining society and making meaningful contributions.”  Biden should now extend that commitment to people under home confinement.  Reviewing these cases for clemency will not only help transform the lives of thousands of Americans, but also continue the momentum toward a more sensible and fair criminal justice system. 

Some prior recent related posts:

May 7, 2021 in Clemency and Pardons, Impact of the coronavirus on criminal justice, Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, May 05, 2021

Might Prez Biden use his clemency power relatively soon?

The question in the title of this post is promoted by this notable new Hill article headlined "Biden set to flex clemency powers."  The headline is a bit more encouraging than the full article for those eager to see some action on this front, and here are some of the details:

White House officials are signaling that President Biden is prepared to flex his clemency powers as officials wade through a large backlog of requests behind the scenes, according to advocates with whom the White House has consulted on criminal justice reform.  The White House held a Zoom call last week to discuss criminal justice reform with advocates and formerly incarcerated people, some of whom are pressing Biden to use his powers to free people jailed on drug offenses and sick and elderly people who pose no threat to society.

While the White House did not signal any imminent moves, officials indicated that Biden will not hold off until later in his term to issue pardons or commutations.  “It was clear that they are working on something,” said Norris Henderson, founder and executive director of New Orleans-based Voice of the Experienced, who participated in the call.  “They are looking at that right now as an avenue to start doing things.”

The White House declined to comment for this report when asked about Biden’s plans for clemency grants or his timeline.  Asked at a briefing Wednesday whether the Biden administration has a timeline for pardons or commutations, White House press secretary Jen Psaki answered: “I don’t have any previewing of that to provide and probably won’t from here.”

Biden disappointed some advocates by not granting clemency to anyone in his first 100 days in office and has faced pressure to take action to reform the criminal justice system and address racial injustices.  Given Democrats’ slim majorities in Congress, the broad clemency powers afforded to the president could be an attractive way for Biden to show he is taking action on reforming the justice system.  The Justice Department faces a backlog of some 15,000 petitions for clemency.

DeAnna Hoskins, president and CEO of JustLeadershipUSA, said officials communicated on the call last week that Biden is “not waiting until the end of his presidency” to issue pardons or commutations. “It was very promising because he already, from the White House perspective, has staff working on this,” Hoskins said....  Vivian Nixon, executive director of the College & Community Fellowship, described the White House as more noncommittal, saying there was not a “promise to do anything” but that officials acknowledged “that they are looking at this issue very closely.”

Biden’s record on criminal justice is mixed.  He has faced backlash for his role in passing the 1994 crime bill that critics say contributed to mass incarceration and had a disproportionate impact on communities of color.  As part of the criminal justice platform he unveiled on the campaign trail, Biden promised to use his clemency power to “secure the release of individuals facing unduly long sentences for certain non-violent and drug crimes” if elected....

The National Council for Incarcerated and Formerly Incarcerated Women and Girls spearheaded a campaign to pressure Biden to grant clemency to 100 women in his first 100 days in office, but that milestone came and went last week without action from the White House.  The American Civil Liberties Union has petitioned Biden to grant clemency to 25,000 people as soon as possible, calling mass incarceration a “moral failure” and “racial justice crisis.”

White House officials including domestic policy adviser Susan Rice, senior adviser Cedric Richmond and counsel Dana Remus convened the call last Friday to hear criminal justice reform recommendations from advocates, and clemency was among the topics discussed....

“One thing that was very clear from the conversation was there will be a process,” Desmond Meade, president and executive director of the Florida Rights Restoration Coalition, said of Friday’s White House call. “At the end of the day, they know that there are changes that should be made, but there should be a process there that makes it fair for everyone.”...

Friday’s call was the first in what is expected to be a series of White House engagements with criminal justice reform advocates and individuals who have been directly impacted by the prison system.... Participants expressed optimism that the White House is serious about addressing criminal justice reform and giving those who have been impacted by the justice system a seat at the table.

A few of many recent related posts on Prez Biden and clemency:

May 5, 2021 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Friday, April 30, 2021

Great example of clemency leading to more compassion ... in the form of compassionate release thanks to FIRST STEP Act reforms

I am not sure if anyone is trying to make a comprehensive list of the wide array of factors that federal courts have referenced in granting sentence reductions under the (so-called compassionate release) statutory provisions of 18 U.S.C. § 3582(c)(1)(A) ever since the FIRST STEP Act allowed federal courts to directly reduce sentence without awaiting a motion by the Bureau of Prisons.  Thankfully, district and circuit court have consistently recognized that, in the word of the Second Circuit in US v. Brooker, 976 F.3d 228 (2d Cir. 2020), the "First Step Act freed district courts to consider the full slate of extraordinary and compelling reasons that an imprisoned person might bring before them in motions for compassionate release."  And, via this new Law360 article, headlined "Ex-Detroit Mayor Ally Released From Prison Years Early," I saw a new opinion with a particularly notable reason given for such a reduction.  Here  are the basics and context from the article:

A former contractor and co-defendant to ex-Detroit Mayor Kwame Kilpatrick on Thursday was granted compassionate release from prison after serving eight years of a 21-year sentence over a municipal bribery and kickback scheme, with the judge citing health problems and the fact Kilpatrick had his sentence commuted. U.S. District Judge Nancy Edmunds reduced the sentence for Bobby Ferguson, 52, to time served, noting his underlying medical conditions that place him at grave risk were he to contract COVID-19, and the fact that Kilpatrick — the much more culpable defendant in the case — in January was granted a reprieve by former President Donald Trump.

Judge Edmunds said at the time of the original sentencing there were "serious differences" between Ferguson's conduct and that of Kilpatrick — the mastermind of the pay-to-play scheme to exchange city business for bribes and kickbacks.  That Ferguson is left facing a prison term more than twice as long as Kilpatrick served constitutes an "extraordinary and compelling" reason to grant Ferguson compassionate release, she said.  "He was not the driver of the bus; that was Mr. Kilpatrick, where the power resided," Judge Edmunds said.

Michigan federal prosecutors had strongly opposed granting Ferguson compassionate release, calling Kilpatrick's commutation "wrongful" and highlighting Ferguson's earlier convictions for assault and other alleged misdeeds.  The government also disputed that Ferguson's hypertension, diminished lung capacity due to an injury and high cholesterol merited an early release.   The government further argued that Ferguson had not exhausted his administrative remedies with the Bureau of Prisons, since he had only petitioned the prison warden for compassionate release based on his health issues and not the disparity in sentence that resulted from Kilpatrick's release.

However, Judge Edmunds said she was persuaded by other court decisions in finding that so-called "issue exhaustion" is not required for compassionate release. She also noted his prior violent crimes occurred decades ago, and that Ferguson hasn't displayed any such "hotheadedness" while incarcerated.

The full 11-page ruling this case is available at this link, and here is a key passage:

Defendant now faces the prospect of a period of incarceration much longer than a more culpable co-defendant.  At the time of sentencing, the Court noted there were “serious differences” between Defendant’s conduct and that of Mr. Kilpatrick. (ECF No. 493, PgID 16285.)  More specifically, Defendant was not an elected official and had been charged with and convicted of a substantially smaller number of charges. (Id.) The Court therefore concluded that Defendant deserved a shorter sentence than Mr. Kilpatrick and ultimately sentenced Defendant to a term of imprisonment 75% as long as Mr. Kilpatrick’s sentence. That Defendant now faces a period of incarceration more than twice as long as the time Mr. Kilpatrick served is both extraordinary and compelling.  See United States v. Sapp, No. 14-cr-20520, 2020 U.S. Dist. LEXIS 16491, at *5 (E.D. Mich. Jan. 31, 2020) (defining “extraordinary as beyond what is usual, customary, regular, or common” and “a compelling reason as one so great that irreparable harm or injustice would result if the relief is not granted”) (internal quotation marks and citation omitted).

The government argues that avoiding unwarranted sentence disparities, one of the § 3553(a) factors, should not be part of this step of the analysis and that taking this into account would contravene the interest in finality of sentences.  The Sixth Circuit has held, however, consistent with all other circuit courts that have addressed this issue, that district courts have “full discretion” to define extraordinary and compelling reasons. See Jones, 980 F.3d at 1109; see also Brooker, 976 F.3d at 237 (noting that “a district court’s discretion in this area — as in all sentencing matters — is broad”). The only statutory limit on what a court may consider to be extraordinary and compelling is that rehabilitation alone is not sufficient.  See 28 U.S.C. § 994(t).  That particular circumstances may also factor into the Court’s analysis under § 3553(a) has no bearing on whether they can be considered extraordinary and compelling.  And, here, the disparity only arose recently due to the unique circumstance of a co-defendant being granted a Presidential commutation.

While the finality of sentences is an important principle, the compassionate release provision of § 3582(c) “represents Congress’s judgment that the generic interest in finality must give way in certain individual cases and authorizes judges to implement that judgment.”  See United States v. McCoy, 981 F.3d 271, 288 (4th Cir. 2020) (internal quotation marks and citation omitted).  The Court finds this to be an appropriate case in which to do so. Not only has Defendant served a slightly longer term of imprisonment than a more culpable co-defendant, but his motion comes during an unprecedented global pandemic and Defendant has an increased vulnerability to the virus.

April 30, 2021 in Clemency and Pardons, FIRST STEP Act and its implementation, Sentences Reconsidered, White-collar sentencing, Who Sentences | Permalink | Comments (1)

Thursday, April 29, 2021

New detailed polling reveals broad support for broad use of clemency power to commute sentences

Poll_03-individuals-who-served-more-600x413This interesting new report at The Lab - The Appeal details the results of interesting new polling showing broad support for clemency on behalf of a wide array of different types of persons in prison. The report is authored by Molly Greene and Sean McElwee under the headline "Poll: Use Clemency Power to Fight Mass Incarceration." I recommend clicking through to see all the details, but here is part of the narrative:

New national polling from Data for Progress and The Lab, a policy vertical of The Appeal, shows that voters support using executive clemency as a tool to reverse decades of over-incarceration, and commuting prison sentences for broad categories of people who can be safely returned to their communities.

Even after decades of excessively long and discriminatory prison sentences in the United States, and amid growing consensus that we need to dramatically reduce prison populations, executive clemency remains a largely overlooked and underused path toward reversing the punitive excesses of mass incarceration. Grants of clemency need not be rare exceptions....

While momentum for sentencing reform has grown at both the state and federal level, American prisons remain filled with people serving lengthy, decades-long sentences, including those imposed in the 1990s and the early 2000s, when the punitive zeal of prosecutors, judges, and lawmakers was at its peak.  As a result, the American prison population is aging, with growing proportions of incarcerated people in their 50s, 60s, and older who increasingly require expensive medical care and who are unlikely, if released, to commit future crimes.  People also remain imprisoned for convictions that result in far shorter terms today, meaning people are caged, separated from their families and communities, for reasons we now accept cannot be justified.

The power to commute sentences and pardon convictions — held, at the federal level, by the president, and by virtually all governors or governor-appointed boards in the states — can efficiently reduce this over-incarceration, while also redressing racial injustice that pervades the criminal legal system, including in sentencing.  Our polling shows national support for using executive clemency in precisely this way.  In particular, voters support commuting sentences of categorical groups based on age, health, time served, the nature of the offense, and as a means to reduce racial disparities and maintain consistency with current sentencing practices.

The polling results are relatively consistent no matter the specific inquiry in this poll, with roughly 50% to 70% of all respondents supporting sentence commutations for various populations and with Democrats generally supporting clemency by about 10% to 20% more than Republicans (and Independents in between). Again, I highly recommend clicking through to see all the details.  Interestingly, a question that focuses on giving retroactive relief based on new laws generated the strongest of all the responses in support of commutations:

Commutations based on time served:

  • 73 percent of likely voters, including 78 percent of Democrats, 78 percent of independents, and 65 percent of Republicans, support commuting the sentences for individuals who have already served more than what current law requires for that offense.

April 29, 2021 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, April 21, 2021

Great coverage of the success of "The Mother Teresa of Pot Prisoners"

In years past, I have tended to dislike the uptick in marijuana media coverage around 4/20 because a range of serious issues, and especially serious criminal justice issues, often seemed not to get the serious coverage that they deserved.  But with marijuana reform continuing to pick up momentum, I think the 4/20 media mania is getting a little better.  And I will always be grateful for whatever leads to media coverage of my favorite advocate of criminal justice reform in the marijuana space.  She is the focal point of this lengthy new Input piece with this great full title: "How ‘The Mother Teresa of Pot Prisoners’ saved her brother from dying behind bars: Beth Curtis’ LifeforPot.com may look janky, but it’s been amazingly effective in getting nonviolent marijuana offenders out of prison."  I recommend the piece in full, and here are snippets:

On 4/20, Craig [Cesal] will be on a fishing trip in West Palm Beach with a group of other marijuana offenders who’ve managed to have their sentences reduced. “There’s a cannabis company that’s paying to fly a bunch of us former pot lifers down,” Cesal says. “Of course, Beth is going down, because we all have ties to her.”

The “Beth” he’s referring to is 79-year-old Beth Curtis from Zanesville, Ohio, the founder of LifeforPot.com, an amateurish little site she built in 2009 to raise awareness about people like Craig — or more specifically, people like her brother, John Knock, who was sentenced to two life terms plus 20 years for a first-time nonviolent marijuana-only offense. Beth has spent more than a decade aggressively advocating for federal clemency on Knock’s and others’ behalf, earning her the nickname the Mother Teresa of Pot Prisoners.

Curtis hoped that by giving people like her brother a presence on the internet, her website would help to raise public awareness about an aspect of criminal justice sentencing most people didn’t seem to know about. “When I talked about somebody serving life for marijuana, honestly people didn’t believe it,” she says. “They’d think, ‘There has to be a dead body somewhere.’ Indeed, there do not have to be any dead bodies, or even a gun.”...

When I ask Curtis if she built the site herself, she laughs out loud. “Yes, can’t you tell?” she replies. Clunky as it is, the current version is much improved from the original, which she built using “CafePress or something” and became a running joke among her friends. When an article in the Miami New Times mentioned her “scrappy-looking site,” fellow clemency advocate Dennis Cauchon called her and said “You know, ‘scrappy’ rhymes with something,” she relates. “And that’s indeed true,” she adds.

Crappiness aside, the site’s been effective. Of the 39 people featured on Life for Pot, 24 have been granted clemency or compassionate release — including, most recently, Knock, who was granted clemency by President Trump in January.

“She did it,” Knock, 73, says of his sister. “One little lady, barely five feet tall, and she just kept pushing and pushing and pushing.” For someone as driven as Curtis, failure was not an option: “I couldn’t imagine that I would die while he was still confined behind bars. The thought sickened me.”

April 21, 2021 in Clemency and Pardons, Drug Offense Sentencing, Pot Prohibition Issues, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Friday, April 09, 2021

North Carolina Gov creates "Juvenile Sentence Review Board" to make clemency recommendations

This local story out of North Carolina reports on the creation of an interesting new sentencing review structure created by the state's chief executive.  The full headline of the piece provides the essentials: "Gov. Cooper announces formation of North Carolina juvenile sentence review board: The Review Board will make recommendations to the Governor concerning clemency and commutation of such sentences when appropriate."  Here are more details from the article:

Governor Roy Cooper announced Thursday the formation of the North Carolina Juvenile Sentence Review Board.  The four-person advisory board, established by Executive Order 208, will review certain sentences imposed in North Carolina on individuals who were tried and sentenced in adult criminal court for acts committed before turning 18. The Review Board will make recommendations to the Governor concerning clemency and commutation of such sentences when appropriate.

“Developments in science continue to show fundamental differences between juvenile and adult minds,” said Governor Cooper. “For those who have taken significant steps to reform and rehabilitate themselves, this process can provide a meaningful opportunity for release and a life outside of prison.”

Prior to recommending clemency, commutation, or other action to the Governor, members of the Review Board will conduct a thorough and individualized review based on criteria outlined in the Executive Order, including rehabilitation and maturity demonstrated by the individual. This review will be available to qualifying individuals who have served at least 20 years of their sentence, or at least 15 years in certain instances of consecutive or "stacked" sentences.

In 2017, Governor Cooper signed Senate Bill 445 into law, reducing the wait time for criminal record expungement for first-time, non-violent offenders. Following the passage of Raise the Age legislation, the Governor also signed a proclamation recognizing the expansion of juvenile jurisdiction in North Carolina.

The North Carolina Juvenile Sentence Review Board is a recommendation of the Governor’s Task Force for Racial Equity in Criminal Justice which found that the group of people included in this Executive Order are disproportionately Black. The full report of the Task Force is available here.

The Governor appointed the following individuals to the North Carolina Juvenile Sentence Review Board: Marcia Morey of Durham as Chair. Morey is the Representative for House District 30.... Henry McKinley “Mickey” Michaux Jr. of Durham is a civil rights activist and former member of the North Carolina General Assembly.... Thomas G. Walker of Charlotte is a Partner at Alston & Bird and former U.S. Attorney for the Eastern District of North Carolina.... Allyson K. Duncan of Raleigh is a former judge on the United States Court of Appeals for the Fourth Circuit and the North Carolina Court of Appeals....

The full text of Executive Order 208 establishing the "Juvenile Sentence Review Board" is available at this link.

I noticed a thoughtful person on Twitter react to this news by wisely wondering why Prez Joe Biden has not yet created something like this (ideally for all offenders).  After all, as I have noted in prior posts, the Biden-Sanders Unity Task Force expressly talked about "establish[ing] an independent clemency board, composed and staffed by people with diverse backgrounds [and expanding] Obama-era criteria for proactive clemency initiative to address individuals serving excess sentences."  The current White House has recently called for all persons to help "ensure that America is a land of second chances and opportunity for all people," but we are still awaiting Prez Biden to go from talking the talk to walking the walk.

A few of many prior related posts on federal clemency reforms:

April 9, 2021 in Clemency and Pardons, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, April 06, 2021

Recommendations for needed reform to Massachusetts clemency process

Via this new Boston Globe editorial, fully headlined "State parole board, clemency process need reform: The Massachusetts Bar Association makes the case for more ‘justice’ at the end of the criminal justice pipeline," I saw that the Bay State's bar association issues an interesting new report on clemency last month. Here are some of the basics via the start of the editorial:

A good deal of attention has focused this past year on policing — the input part of the criminal justice process — but what about the other end of that pipeline? What about those already caught up in the system but looking for clemency as a way out of a long and often unjust sentence?

For them, in Massachusetts, the only exit runs through a seven-member board, a body dominated by those with law enforcement backgrounds that in the past six years has held only one commutation hearing — last October — while some 240 petitions for clemency have been pending. The state Parole Board has basically served as a traffic cop, stalling those petitions, which means that, with rare exception, they never reach the governor’s desk.

Now the Massachusetts Bar Association is putting its considerable heft behind efforts to restructure and broaden the board (also known as the Advisory Board of Pardons when it’s dealing directly with a commutation or pardon), force it to hold to reasonable time standards for acting on petitions, and modernize its guidelines to ensure a “fair, racially unbiased” process.

“In the Commonwealth of Massachusetts, the power of clemency is an under-utilized tool that should be applied on a case-by-case basis to address systemic failures, such as the racial injustice that permeates every step of our criminal legal system,” the MBA’s Clemency Task Force wrote in its recent report to the MBA House of Delegates. That body recently approved a number of resolutions aimed at guiding those reforms.

The full 16-page report of the MBA Clemency Task Force is available at this link.

April 6, 2021 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Sunday, April 04, 2021

How about some clemency grants from Prez Biden to go with Second Chance Month, 2021 proclamation?

13cb83a5a0a55a11a5cf72ef54937218Last week, the White House released "A Proclamation on Second Chance Month, 2021."  Here is the full substantive text:

     America’s criminal justice system must offer meaningful opportunities for redemption and rehabilitation.  After incarcerated individuals serve their time, they should have the opportunity to fully reintegrate into society.  It benefits not just those individuals but all of society, and it is the best strategy to reduce recidivism.  During Second Chance Month, we lift up all those who, having made mistakes, are committed to rejoining society and making meaningful contributions.

     My Administration is committed to a holistic approach to building safe and healthy communities.  This includes preventing crime and providing opportunities for all Americans.  It also requires rethinking the existing criminal justice system — whom we send to prison and for how long; how people are treated while incarcerated; how prepared they are to reenter society once they have served their time; and the racial inequities that lead to the disproportionate number of incarcerated Black and Brown people. 

     We must commit to second chances from the earliest stages of our criminal justice system.  Supporting second chances means, for example, diverting individuals who have used illegal drugs to drug court programs and treatment instead of prison.  It requires eliminating exceedingly long sentences and mandatory minimums that keep people incarcerated longer than they should be.  It means providing quality job training and educational opportunities during incarceration to prepare individuals for the 21st century economy.  And it means reinvesting the savings from reduced incarceration into reentry programs and social services that prevent recidivism and leave us all better off.

     More than 600,000 individuals return to their communities from State and Federal prisons every year.  Transitioning back into society can be overwhelming for those who are formerly incarcerated as well as their families and communities.  Too many individuals face unfair legal and practical barriers to reentry.  The reentry process is complicated in the best of times, and is even more so with the additional difficulties presented by the COVID-19 pandemic.

     We must remove these barriers.  Every person leaving incarceration should have housing, the opportunity at a decent job, and health care.  A person’s conviction history should not unfairly exclude them from employment, occupational licenses, access to credit, public benefits, or the right to vote.  Certain criminal records should be expunged and sealed so people can overcome their past. 

     By focusing on prevention, reentry, and social support, rather than incarceration, we can ensure that America is a land of second chances and opportunity for all people.

     NOW, THEREFORE, I, JOSEPH R. BIDEN JR., President of the United States of America, by virtue of the authority vested in me by the Constitution and the laws of the United States, do hereby proclaim April 2021 as Second Chance Month.  I call upon all government officials, educators, volunteers, and all the people of the United States to observe this day with appropriate programs, ceremonies, and activities.

I like all the sentiments in this proclamation, and I sincerely hope "all government officials" engaged in "appropriate activities" to observe Second Chance Month.  But as the title of this post is meant to highlight, Prez Biden has one particually appropriate way to " lift up" and "commit to second chances" through the granting of clemency.   He can today and tomorrow and every day, simply with his clemency pen, begin the process of "eliminating exceedingly long sentences" and ensure we are "focusing on prevention, reentry, and social support, rather than incarceration."  Morevoer, because there are currently no federal record relief laws, the only way for federal criminal records to functionally "be expunged and sealed so people can overcome their past" would be through pardon grants.

Especially during a holiday season, I do not think it too much to expect and hope that the President will seek to practice what he preaches.  Or, in this case, practice what he proclaims by getting moving on clemency.   

A few of many prior related posts:

April 4, 2021 in Clemency and Pardons, Reentry and community supervision, Who Sentences | Permalink | Comments (1)

Saturday, March 27, 2021

"Focusing Presidential Clemency Decision-Making"

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

The Article II Pardon Clause grants the President authority to grant clemency to any offender.  The clause contains only two limitations. The President cannot excuse someone from responsibility for a state offense, nor can he prevent Congress from impeaching and removing a federal official. Otherwise, the President’s authority is plenary.  The clause authorizes the President to grant clemency as he sees fit, but does not tell him when he should feel that way.

As a matter of history, Presidents have generally used their authority for legitimate reasons, such as freeing someone who was wrongfully convicted, who is suffering under an unduly onerous punishment, or who deserves to be forgiven.  Nevertheless, neither any President nor the Department of Justice Pardon Attorney, who is ostensibly responsible for managing the government’s clemency process, has recommended a rigorous standard for Presidents to use when making clemency decisions.  The Pardon Attorney has compiled a list of relevant factors, which is quite useful, but that list does not identify which factors are necessary and sufficient, nor does it assign those factors an ordinal relationship.  The result is that a President is left to act like a chancellor in equity by relying on his subjective assessment of the “the totality of the circumstances.”

This Article offers a way to make clemency decisions in a reasonable, orderly manner that would systematize and regularize the Pardon Attorney’s recommendation process and Presidential decision-making.  Pardons and commutations differ from each other in material ways, and Presidents should analyze them separately.  In the case of pardons, Presidents should answer a series of questions — an algorithm, if you will — that would guide them when deciding whether to forgive an offender.  In the case of commutations, Presidents should make decisions on a category-by-category basis, rather than try, in effect, to resentence each offender.  Together, those approaches would help Presidents make objectively based decisions that are consistent with longstanding rationales for punishment and the purposes of the criminal justice system.  The hope is that, in so doing, Presidents will be able act justly as well as to persuade the public that the federal clemency system is open to all, not merely to the President’s financial or political allies, cronies, supporters, or people he knows.  The focused approaches suggested here should help Presidents create the fact and appearance of objectivity in clemency decision-making.

March 27, 2021 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Sunday, March 21, 2021

Another deep look into the deep connections that eased the path to a clemency grant by Prez Trump

I sincerely wish the press would start focusing a lot more on compelling cases of persons who have not received clemency in our (pandemic-scarred) nation defined by mass incarceration and mass punishment.  But I suppose I understand why there is still interest and concern about how Prez Trump made clemency decisions and about who won the most recent round of the federal clemency lottery. 

Today this story is front-page news in the New York Times under this full headline: "Access, Influence and Pardons: How a Set of Allies Shaped Trump’s Choices: A loose collection of well-connected groups and individuals led by a pair of Orthodox Jewish organizations had striking success in winning clemency for white-collar criminals during the Trump presidency."  Here are excerpts from this lengthy piece:

The efforts to seek clemency for [various] wealthy or well-connected people benefited from their social, political, or financial ties to a loose collection of lawyers, lobbyists, activists and Orthodox Jewish leaders who had worked with Trump administration officials on criminal justice legislation championed by Jared Kushner.

That network revolved around a pair of influential Jewish organizations that focus on criminal justice issues — the Aleph Institute and Tzedek Association — and well-wired people working with them, including the lawyer Alan M. Dershowitz, Brett Tolman, a former U.S. attorney for Utah, and Nick Muzin, a Republican operative....

Of the 238 total pardons and commutations granted by Mr. Trump during his term, 27 went to people supported by Aleph, Tzedek and the lawyers and lobbyists who worked with them. At least six of those 27 went to people who had been denied clemency through the official Justice Department process during the Obama administration.

Over the years, at least four of those who received clemency or their families had donated to Aleph. Others or their allies and families had retained people like Mr. Dershowitz, who represented Mr. Trump in his first impeachment trial, Mr. Tolman and Mr. Muzin to press their cases before the Trump administration, often working in parallel with Aleph and Tzedek, according to public records and interviews.

The groups were not the only ones who had success with Mr. Trump. Alice Marie Johnson, an advocate for fairer sentencing who had her own drug conviction pardoned by Mr. Trump, was credited by the White House for championing 13 clemency grants, many of which went to drug offenders and African-American defendants given disproportionately long prison terms.

While Aleph worked with Ms. Johnson on some clemency cases — including for people convicted of nonviolent drug crimes — Aleph, Tzedek and their allies stood out for their success at winning clemency for white-collar offenders who had left a damaging trail of fraud in their wake. The majority of those who won clemency with their help had been convicted of financial crimes.

It was a new chapter especially for Aleph, which has long worked on behalf of people facing dire situations in the criminal justice system. Aleph has for years appealed for more lenient sentencing rules and pressed judges to reduce jail time in individual cases, while providing social and religious services to prisoners and their families. It only began seeking presidential clemencies during the Obama administration — and failed to secure any such grants until Mr. Trump took office.

The leaders of Aleph, Tzedek and their allies played a role in helping build support for a sweeping rewrite of federal sentencing laws in 2018, winning bipartisan praise and bolstering their clout in the administration.....

In the world of criminal defense lawyers and clemency seekers, Aleph, Tzedek and the people working alongside them came to be seen as among the most effective avenues to clemency, including for financial crimes of the sort that are usually less likely to garner support from criminal justice activists.

A spokesman for Aleph said the group selected candidates based on factors including humanitarian concerns, clear demonstrations of remorse and its commitment to addressing what it often sees as excessively long sentences. He acknowledged that Aleph had accepted donations from people whose clemencies its officials later supported to one degree or another, but said the group did its clemency work at no cost, and would not accept donations from people while working on their clemencies.

I am eager to note here that I have worked with a variety of folks connected to the Aleph Institute in a variety of settings for more than a decade.  I have sometimes helped in various ways in specific cases in which Aleph is advocating for a particular defendant to serve less prison time, and I have often been eager to participate in various ways in the great criminal justice reform conferences that Aleph has helped put on.

A few of many recent related posts:

March 21, 2021 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Saturday, February 27, 2021

What kind of "behind the scenes" clemency moves might Prez Biden's staff be working on?

The question in the title of this post is prompted by a sentence in this Vox piece by German Lopez (strangely) headlined "Biden’s secret weapon for criminal justice reform."  The article is about the power of the President to grant clemency, and I think it a bit strange to call that power a "secret weapon" given all the attention that clemency has received in recent years and given that there has already been a number of prominent calls for Prez Biden to use this power in prominent ways (examples blogged here and here and here and here).  I guess the headline speak to the tendency of some to look past the clemency power as a means to address systemic issues like mass incarceration, and the piece is still a worthwhile read.  Here is an excerpt that includes the sentence that prompts the question in the title of this post:

[S]ome advocates have argued for a ground-up rethinking of clemency: The president could reform the whole process to systematically cut sentences for federal inmates caught in the frenzy of America’s drug war and mass incarceration....

[T]he president or his advisory board could set standards, targeting inmates with long sentences (especially for nonviolent crimes), those under mandatory minimums, or people who have been rehabilitated in prison.

Biden, at least, supports using clemency powers for some of these ends — saying in his criminal justice reform plan that he’d use his clemency powers “to secure the release of individuals facing unduly long sentences for certain non-violent and drug crimes.”

But since taking office, Biden hasn’t made any public moves in this area — although his staff is reportedly working on it behind the scenes.

Biden could be waiting for his attorney general nominee to get Senate approval. Or he could be concerned about the political risks: If an inmate he releases goes on to commit a crime, it could fuel a backlash. (The White House didn’t respond to a request for comment.)

Prez Biden should have his Attorney General nominee approved next week, so perhaps reported "behind the scenes" work will become public in short order. I remain hopeful that significant use of the clemency power will be part of a multi-prong criminal justice reform push by the Biden Administration, but I will only believe it when I see it.

A few of many prior related posts:

February 27, 2021 in Clemency and Pardons, Criminal justice in the Biden Administration, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, February 25, 2021

"Merrick Garland, cannabis policy, and restorative justice"

The title of this post is the title of this notable new commentary from John Hudak over at Brookings FixGov blog.  I recommend the piece in full, and here are excerpts:

Judge Garland recognized two realities about cannabis enforcement — one not new to AG nominees, the other quite new.  First, he noted that non-violent, low-level cannabis enforcement is not an effective use of federal law enforcement resources.  There are plenty of other crimes that the Justice Department should be focused on.  Second, he noted that cannabis law enforcement disproportionately impacts communities of color, and more importantly, that the effects of those arrests impact individuals’ economic potential and livelihoods.

The latter is a stark departure for top-level presidential appointees.  Mr. Garland showed a powerful appreciation that arrests for low-level cannabis crimes (and especially convictions for those crimes) contributes to systemic racism and has not a one-time effect on individuals, but a sustained one.  Mr. Garland’s take on cannabis enforcement is that it is an archetype of institutionalized racism in our system.  It systematically impacts communities of color over the course of lifetimes and contributes to lower wages; reduced wealth accumulation; limited educational and job opportunities; and sustained, multi-generational poverty....

Because so much cannabis enforcement takes place at the state and local level, the Justice Department could engage governors, state attorneys general, chiefs of police and other law enforcement leadership, as well as civil rights and criminal justice reform leaders.  By forming a coalition and group to study cannabis enforcement in the states, the Attorney General can better understand how the Justice Department can create programs, adjust policies, and incentivize better behaviors in the states through funding, funding restrictions, and other policy changes.

The Justice Department could also initiate a public campaign to inform state and local leaders about the social and economic impacts of the enforcement of cannabis crimes, especially those that disproportionately impact specific communities.  The attorney general can work with groups to improve the manner in which law enforcement and state and local leadership address both the way in which cannabis enforcement operates in the future and how to make up for past harms.

And last but not least, the Justice Department could lead the way on restorative justice, primarily through clemency.  However, presidential clemency efforts for cannabis will have limited impact, given how few individuals face such charges at the federal level.  Given this the attorney general can encourage the use of presidential and state-level clemency powers.  He can build on a proposal announced last week from Reps. Earl Blumenauer (D-Ore.) and Barbara Lee (D-Calif.) and supported by many drug reform advocacy organizations such as NORML and others.  That proposal urges President Biden to pardon non-violent cannabis offenders.  That recommendation is an important one that will signal the new president’s views on drug policy and demonstrate a change in his approach to law enforcement policy since the 1990s.  It will also honor his commitment during the Democratic debates that cannabis users should not face jail time.

The attorney general and President Biden should seek to coordinate with like-minded governors of both parties to exercise far-reaching pardon powers to the victims of the War on Drugs.  A Rose Garden ceremony to exercise presidential pardon power, while virtually assembling a bipartisan group of governors doing the same would be a substantively impactful effort that would improve the lives of hundreds of thousands of Americans, far beyond what the president can do alone.

Taking a first step toward restorative justice is important given the racist roots and implementation of the War on Drugs.

February 25, 2021 in Clemency and Pardons, Drug Offense Sentencing, Pot Prohibition Issues, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Saturday, February 13, 2021

Notable reviews of extreme sentences in Pennsylvania

The tail end of this week brought a number of notable stories about notably extreme sentences (and a few releases therefrom) in Pennsylvania.  I will use headlines and links to cover a lot of ground involving a number of intersecting and overlapping stories:

"Report raises questions with second-degree murder sentencing in Pennsylvania"

"Pa.’s second-degree murder charge is outdated, unfair, Fetterman says"

"‘They don’t deserve to die in prison’: Gov. Wolf grants clemency to 13 lifers"

"The nation’s oldest juvenile lifer, Joe Ligon, left a Pa. prison after 68 years"

The first pair of stories relate to this notable new report by the Philadelphia Lawyers for Social Equity titled "Life Without Parole for Second-Degree Murder in Pennsylvania: An Objective Assessment of Sentencing."

February 13, 2021 in Clemency and Pardons, Data on sentencing, Mandatory minimum sentencing statutes, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, February 11, 2021

How about some clemency grants from Prez Biden while his team works on grander clemency plans?

I am very pleased to see this lengthy new Politico piece shining a light on federal clemency under this full headline: "Trump left behind a clemency mess.  The clock’s ticking for Biden to solve it. Lawyers and criminal justice advocates are pushing Biden to act swiftly.  But Covid and the economy are pushing action back."  I recommend the whole piece, and here are excerpts:

Biden’s White House counsel’s office has started to reach out to attorneys and advocates for suggestions on reforms, what could be done about the backlog, and mistakes they believe were made in previous administrations, according to the people familiar with the conversations.  Roy Austin, an Obama administration veteran who served on the Biden transition team on Justice Department issues, has spoken to advocates as well.  Biden’s new adviser on criminal justice issues at the Domestic Policy Council, Chiraag Bains, is expected to play a role too, according to two people familiar with the situation.

But the White House has revealed little about its own plans. And attorneys and advocates still worry that Biden’s team lacks a comprehensive plan for dealing with the enormous backlog.  Perhaps for good reason: A former Obama aide said that while Biden’s team is familiar with the clemency problems it faces, it has been too busy with nominations, executive orders and proposed legislation, including those designed to tackle the coronavirus pandemic and cratered economy.  “They couldn’t have had time to formulate a plan,” the person said.

More than 100 progressive groups working on criminal justice issues are urging Biden to overhaul the arduous clemency process and start resolving cases right away.  One of them, the ACLU, launched an ad campaign to push him to grant clemency to 25,000 people and make good on his pledge to tackle criminal justice issues amid a national reckoning on racial injustice.  Among those who have met with Biden’s team are Cynthia Roseberry, deputy director of policy at the American Civil Liberties Union's Justice Division, and Nkechi Taifa, convener of the Justice Roundtable, an umbrella organization on criminal justice issues....

“The time to figure out how to do this should’ve been during the transition,” said Mark Osler, a former federal prosecutor who serves as a law professor at the University of St. Thomas in Minneapolis who is pushing for a change. “The danger is that they’ll replicate the mistake the past several administrations have done of never focusing on it until it’s too late and it’s a mess.”

The White House did not respond to questions but released a statement. “President Biden has laid out an ambitious agenda to address problems in our criminal justice system that have resulted in overincarceration and miscarriages of justice, and he has a talented team of attorneys working to examine appeals for clemency to ensure sentences are consistent with the values he’s articulated,” White House spokesman Michael Gwin said.

In modern history, presidents have treated clemency as an afterthought, granting it in their waning days, often as a gift to friends and associates. Trump was no exception and took that a step further. In most cases, Trump bypassed the lengthy, multilevel process for clemency that has been conducted for more than a century. Instead, he made decisions through an ad hoc system where politically connected allies and well-paid lobbyists tried to persuade him in person and on TV to use pardons to help friends and hurt enemies.

In total, Trump granted 237 pardons or commutations and denied 180 cases. Many of those he acted on were headline-grabbing: former members of Congress, numerous people convicted in Robert Mueller’s probe into Russia’s 2016 election interference, and security contractors convicted for massacring Iraqi civilians in 2008. He failed to act on thousands of other cases, leaving 13,750 behind for Biden. But the current backlog — the largest on record, according to the Justice Department and experts — can’t be blamed on Trump alone.

Barack Obama waited well into his second term to act. When he urged federal prisoners to apply for leniency under his clemency initiative, which allowed certain inmates to make their case for getting their sentences commuted, petitions soared. He received more than 36,000 requests, the largest total of any president on record. And he acted on an historic amount — more than 22,000 cases — granting clemency 1,927 times, including 212 pardons and 1,715 commutations.

But Obama didn’t take care of all the pending cases, leaving behind 13,000 of them when he left office. And when his final pardon attorney, Deborah Leff, resigned in January of Obama’s final year in office, she lamented that the clemency initiative didn’t have enough resources. “In his clemency initiative, President Obama focused significant resources on identifying inmates, most of them people of color, who had been sentenced to excessive and draconian sentences,” said Neil Eggleston, who served as White House counsel for Obama. “The president would have liked to clear the backlog in pending petitions, but resources spent in achieving that goal would have resulted in fewer inmates who were serving those excessive sentences for relatively minor drug crimes being released.”...

Obama’s aides say they began talking about the pardon process during the transition but they didn’t take Bush’s advice because they had other priorities, including health care. Advocates and lawyers hope Biden learns the lessons of history and makes clemency a first term priority.

“We hope he’ll break from what folks have done in the past and do things at the last minute or as a gift,” Roseberry said. “Our position is it should be used now and as much as necessary to correct all of the wrongs that we now acknowledge from our past criminal legal system. ... It takes courage to do it this year.  We are ready for this.  It’s time. It’s past time.”

Biden didn’t campaign aggressively on the issue of clemency. But supporters of his and Sen. Bernie Sanders (I-Vt.) did address the topic in its 110-page list of recommendations designed to try to unite the two camps ahead of the November election. One of the main proposals that the task force put forward also is one of priorities of criminal justice reform advocates: the creation of an independent clemency board.

The Biden-Sanders task force proposed a 60-person agency composed of people with diverse backgrounds to review cases.  The Democratic Party’s 2020 platform, likewise, called for an independent clemency commission, taking the process out of the Justice Department, which, some activists argue, is ill-suited to submit clemency recommendations to the White House since it also prosecutes the cases.

Rep. Steve Cohen (D-Tenn.), who chairs the House Judiciary subcommittee with jurisdiction over pardons, lobbied Obama and Trump to issue more pardons. He said he plans to do the same for Biden. “There are ... more and more people in jail, and a lot of those people have been there forever and they have been there for long draconian sentences,” Cohen said. “They’re basically wasting their lives, wasting the federal government’s finances ... and destroying lives and families. It’s a total loser, but we do it.”

Regular readers will not be surprised to hear me endorse the sentiments of Cynthia Roseberry, namely that "It’s time. It’s past time."  I also share Mark Osler's view that this could have and should have been a transition priority for the Biden team.  Still, I am not inclined to aggressively criticize the Biden Administration if it currently has advisers and insiders talking to and working with advocates about how to put together a "comprehensive plan" for effective clemency reform.  But, as the title of this post is meant to highlight, taking a careful and deliberative process toward grander reform of the entire clemency process should not be an excuse for Prez Biden to hold back entirely on the use of his clemency pen.

I am certain that there must be many dozens, and probably many hundreds, of cases that ought to be federal clemency "no-brainers."  (For example, women and men on the CAN-DO site or the lifer marijuana offenders assembled at Life for Pot or person highlighted by NACDL’s Trial Penalty Clemency Project.)  I am pretty confident that only a relatively little amount of time would be needed for members of the Biden team to identify at least a handful of compelling cases that could and should allow clemency grants to be part of Prez Biden's 100-day agenda and legacy.  As Senator Cohen highlights, every day of delay is another day "wasting their lives, wasting the federal government’s finances, and destroying lives and families."

A few of many recent related posts:

February 11, 2021 in Clemency and Pardons, Criminal justice in the Biden Administration, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, February 09, 2021

Coalition of civil rights groups calls on Prez Biden to commute all federal death sentences and halt capital activity

As reported in this AP piece, "civil rights and advocacy organizations are calling on the Biden administration to immediately halt federal executions after an unprecedented run of capital punishment under President Donald Trump and to commute the sentences of inmates on federal death row."  Here is more (with links from the original):

The organizations, including the American Civil Liberties Union, The Leadership Conference on Civil and Human Rights and 80 others, sent a letter to President Joe Biden on Tuesday morning, urging that he act immediately “on your promise of ensuring equality, equity, and justice in our criminal legal system.”

Biden has been systematically undoing many Trump administration policies on climate, immigration and ethics rules. Although he is against the death penalty and has said he will work to end its use, Biden has not commented on what he will do with Trump’s unprecedented push for the federal death penalty.  The Bureau of Prisons carried out more executions under Trump, 13, than any previous president....  The groups say Biden should step in immediately and take action, as his administration works to establish priorities, address systemic racism and overhaul parts of the criminal justice system.

In the letter, the civil rights groups said the use of the death penalty “continues to perpetuate patterns of racial and economic oppression endemic to the American criminal legal system.”...  “Any criminal legal system truly dedicated to the pursuit of justice should recognize the humanity of all those who come into contact with it, not sanction the use of a discriminatory practice that denies individuals their rights, fails to respect their dignity, and stands in stark contrast to the fundamental values of our democratic system of governance,” the letter said....

The groups told Biden he has the power to dismantle the death chamber building at the Federal Correctional Complex in Terre Haute, Indiana — the small building where the 13 executions were carried out in six months — in addition to rescinding the Justice Department’s execution protocols and a regulation that no longer required federal death sentences to be carried out by lethal injection and cleared the way to use other methods like firing squads and poison gas.

They also said Biden could prohibit prosecutors from seeking death sentences and commute the sentences of the several dozen inmates on federal death row.  Far-reaching steps by Biden, the letter said, would also preclude any future president from restarting federal executions.  Trump’s predecessor, Barack Obama, halted federal executions but never cleared death row or sought to strike the death penalty from U.S. statutes.  That left the door open for Trump to resume them.  “We … recognize that if there is one thing that the waning months of the Trump presidency also made clear, it is the horrendous implications of simply having an informal federal death penalty moratorium in place,” it said.

Cynthia Roseberry, the ACLU’s deputy director of policy for the justice division, said she knows that Biden has a lot on his plate and that he should be given some time to act on the death penalty.  But she said the groups wanted to assure Biden “that there is broad based support to be bold” on the issue and that some don’t require complicated policy initiatives or new legislation.  “These things,” Roseberry said, “can be accomplished with the stroke of the pen.”

The full ACLU press release about this letter is available at this link, and the full letter from the coaltion is available at this link.   

I noted here in response to last month's similar letter by 37 Democratic members of Congress that the call for commuting all of federal death row came with a request to "ensur[e] that each person is provided with an adequate and unique re-sentencing process."  This new call here to "immediately commuting the sentences of all individuals under federal sentence of death" does not alternative sentencing with any specificity, but it obviously avoids advocating that Prez Biden converting death sentences into life without parole sentences.  This is yet another reminder that modern adocacy against LWOP sentences, which often calls LWOP just a death sentence by another name, serves to complicate a bit advocacy against capital punishment.

February 9, 2021 in Clemency and Pardons, Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Monday, February 08, 2021

US House subcommittee to hold hearing on means to "Prevent Abuse of the Clemency Power"

The planned start of former Prez Trump's second impeachment trial in the US Senate is sure to be getting all the attention on Capitol Hill tomorrow.  But this webpage notes that there will be an interesting hearing for clemency fans taking place the morning of February 9, 2021 in the the Subcommittee on the Constitution, Civil Rights, and Civil Liberties of the U.S. House of Representatives' Judiciary Committee. The hearing it titled "Constitutional Means to Prevent Abuse of the Clemency Power," and this webpage lists these scheduled witnesses:

Ms. Caroline Fredrickson, Distinguished Visitor from Practice, Georgetown University Law Center

Ms. Karen Hobert Flynn, President, Common Cause

Mr. Josh Blackman, Professor of Law, South Texas College of Law Houston

Mr. Timothy Naftali, Clinical Associate Professor of Public Service, New York University

February 8, 2021 in Clemency and Pardons, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (2)

Tuesday, February 02, 2021

Another round of coverage of Prez Trump's clemency grants (and some folks left behind)

It is now nearly two full week since former Prez Trump issued his large batch of clemencies in his final hours in office.  As I mentioned in this post last week, Trump's entire clemency record is full of fascinating and frustrating stories with respect to individual cases and the body of clemency work.  I did a round-up of recent pieces assessing Trump's clemency activities law week, but another week of press coverage reveals another set of interesting stories about both clemencies granted and not granted:

From CBS News, "Man serving life sentence for non-violent crime reunites with family after Trump pardon: 'A piece of me is back'"

From CNN, "This former prisoner had an unlikely supporter: the judge who sentenced him"

From Forbes, "The Inside Story Of A Trump Pardon Gone Wrong"

From Newsday, "How the plan to grant clemency to Sheldon Silver was scuttled"

From Politico, "The Real Scandal Is the Pardon Trump Didn’t Give: Rufus Rochell checked all the right boxes for clemency: an exemplary record in prison, advocacy out of it, and a friendship with a famous Trump booster. So why didn’t he get it?"

From SF Weekly, "Meet the Cannabis Offenders Pardoned by Trump"

I hope it will not be too long before we have some clemency action by Prez Biden to talk about, but I am not really all that optimistic on that front. 

February 2, 2021 in Clemency and Pardons, Criminal justice in the Trump Administration, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, January 28, 2021

ACLU urging Prez Biden to "use his clemency powers to bring home 25,000 people" from federal prisons

In this post yesterday reviewing commentary on former Prez Trump's use of the clemency power, I mentioned that on this front I am always more eager to look forward than look back.  Consequently, I am pleased to see that via this press release that the ACLU is looking forward and pressing the new President to use his clemency powers boldly.  Here are excerpts:

On Tuesday, the Biden administration announced a slate of executive orders on racial justice. Notably missing was any executive action to boldly use his power of clemency. Today, the American Civil Liberties Union launched a six-figure advertising buy asking President Biden to honor his commitment to significant decarceration by immediately using his clemency authority to help tens of thousands of people in federal prison who could be safely released immediately.

poll released by the ACLU last year found widespread support for executive officials to use their clemency authority to correct past injustices.... “The American public, voters, and most importantly, incarcerated people and their families were encouraged by President Biden’s commitment to reduce our country’s prison population significantly. Now that he is in office, the president has the opportunity to act on this commitment and correct the harms created by decades of racist policies that have led to the unjust and disproportionate incarceration of Black and Brown people by using his executive power to grant clemency to thousands of people,” said Cynthia Roseberry, deputy director of the ACLU’s Justice Division and former project manager for the Obama administration’s 2014 Clemency Initiative. “Clemency provides an opportunity for the Biden administration to show mercy to those who are incarcerated, repair injustices, and mend communities most impacted by mass incarceration. The new administration must commit itself to the routine and bold use of clemency.”

Specifically, the ACLU is asking President Biden use his clemency powers to bring home 25,000 people in some of our most vulnerable populations including individuals who are currently incarcerated under statutes that have since changed, older people and medically vulnerable people, particularly people at risk of COVID-19 infections, and people incarcerated for drug offenses. Collectively, these categories add up to tens of thousands of people currently incarcerated in the federal prison system.

I am quite pleased that the ACLU is making a big, big ask in this way, but I think it critical for everyone to also be pushing Prez Biden to just get his clemency pen flowing ASAP in even modest ways.  Though it would be amazing to see thousands of commutations in short order, Prez Biden could send a powerful signal by simply making a regular habit of commuting, say, a few dozen sentences every week while also encouraging all the nation's governors to do the same. 

If Prez Bden would just grant 10 clemencies each week (with perhaps five pardons and five commutations), he would set a record-setting pace for the use of the historic clemency power.  According to the latest BOP data, there are over 10,000 federal prisoners aged 60 or older and over 66,000 in for drug offenses; surely five can be found among this group each week who could safely be released from confinement.  There are hundreds of thousand of Americans still bearing the burdens of a long-ago federal conviction, surely five can be found among this group each week who deserve a pardon.

Interestingly, though not properly attributed to anything done by the Biden Administration, the federal prison in the last week has increased by over 400 persons.  Last week, BOP reported the federal prison population at 151,646; today, BOP reports that it stands at 152,071.  This reality provide an important reminder that, absent proactive and sustained effort to decarcerate, the federal punishment bureaucracy may often be lkely to drive up prison populations.

January 28, 2021 in Clemency and Pardons, Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Wednesday, January 27, 2021

Reviewing Prez Trump's clemency work from a number of perspectives

It is now a full week since former Prez Trump issued a large batch of clemencies in his final hours in office (basics here and here).  The final 140+ clemencies on the final day, and Trump's entire clemency efforts, are full of fascinating and frustrating stories with respect to individual cases and the entire body of clemency work.  Here is just a partial round-up of recent pieces assessing Trump's clemency record: 

From the Business Insider, "Trump's pardons may be poorly worded enough to leave some people on the hook"

From the Center for Responsive Politics, "Trump-tied lobbyists paid massive sums to push pardons"

From Law360, "Trump Pot Pardons A Bittersweet Win For Clemency Groups"

From Reason, "Presidential Mercy Is a Woefully Inadequate Remedy for Injustice: The controversy over Trump’s pardons and commutations highlights longstanding problems with clemency."

From the New York Post, "Comparing presidential pardons through the years"

From the New York Times, "The Road to Clemency From Trump Was Closed to Most Who Sought It: Of the nearly 240 pardons and commutations he granted during his term, only 25 came through the regular Justice Department process. The rest were a product of connections, influence and money."

From the New York Times, "For Prosecutors, Trump’s Clemency Decisions Were a ‘Kick in the Teeth’: Commutations in high-profile Medicare fraud cases have elicited anger among those who spent years pursuing complex prosecutions."

I may have more to say about Prez Trump's record in future posts, but on this front I am always more eager to look forward than look back.  Looking forward, I must note (and already complain) that Prez Biden has been setting records for execution action during his first week in office and yet has not yet used his clemency power or said a work about clemency reform.  

UPDATE: I am pleased to now be able to add that the Federal Sentencing Reporter is planning to cover Prez Trump's clemency record in a forthcoming issue, and FSR's publisher has this new posting on its blog providing a bit of context. That posting includes these paragraphs:

Donald Trump was certainly no exception to the tradition of presidents making waves through distinctive use of the clemency power, and the Federal Sentencing Reporter will be continuing a modern tradition of devoting a full issue to examining a president’s grants and considering clemency’s future.  Notably, Trump generally did not concern himself with the recommendation of the Justice Department’s Office of the Pardon Attorney, which has long played a central role in advising the president on such matters.  In addition to exploring the substantive clemency choices made by Trump, FSR‘s forthcoming June 2021 issue will also discuss what clemency process ought to be embraced by presidents to ensure the most effective and responsible use of this historic power.

FSR’s first extensive coverage of federal clemency actions appeared in a special double issue prompted by Bill Clinton’s high-profile and controversial pardons issued on his last day in office back in 2001.  The decision by George W. Bush to commute the sentence of Administration official Scooter Libby in 2007 prompted another FSR issue on clemency as a form of sentencing power.  And in 2017, FSR devoted a full issue to assessing Barack Obama’s remarkable and record-setting commutations resulting from the “Clemency Project” he set up toward the tail end of his second term.

January 27, 2021 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Sunday, January 24, 2021

Why not a clemency push focused on the (more lethal) new death penalty that is COVID in federal prisons?

I noted in this recent post that group of Democratic members of Congress signed a letter calling upon Prez Biden to "commute the sentences of all those" on federal death row.  I wondered in my post if there might be a less politically controversial group of federal prisonsers who might be a better focal point for the very first clemencies from Prez Biden.  And this new BuzzFeed News piece, which carries the subheadline "In crowded cells, where COVID is running rampant, appeals for clemency for thousands of prisoners have gone unanswered or flat-out rejected," reminded me that Prez Biden might actually save many more lives right away if he were to focus on communiting federal prison sentences for the most vulnerable persons at risk of suffering "the new death penalty" that takes the form of COVID-19.  Here is some contexnt from the BuzzFeed piece: 

For many federal inmates who aren’t politically connected to the president, or state inmates with no sway with their governor, a pardon isn’t just about getting out of prison or having their sentence overturned, it’s literally a case of life and death.  In crowded prisons, with little access to healthcare or the ability to socially distance, COVID-19 cases have exploded, with at least 1 in 5 inmates infected.

A new report from the Prison Policy Initiative found that crowded jails and prisons led to more than half a million additional COVID-19 cases nationwide — or about 1 in 8 of all new cases — over the summer, including cases both inside and outside correctional facilities because the virus spreads via prison workers to the world beyond bars. At least 2,144 inmates and 146 corrections staff have died from the disease, according to data collected by the Marshall Project....

Wanda Bertram, a spokesperson for the nonpartisan Prison Policy Institute, pointed out that people in prison are infected with COVID-19 at a rate four times higher than that of the general population and twice as likely to die from the disease. “What that means is that people who were never sentenced to death are being killed by COVID-19,” Bertram said. “More people have been killed by COVID-19 in prisons than have been killed by the death penalty in like the last few decades, all over the country.”

Bertram pointed to a report published last month showing places with prisons record higher levels of community infection. “This is a tragedy,” she said. “It’s something that governors and the federal government should have been dealing with a long time ago by doing whatever it is that they had to do to get huge numbers of people out.”

The federal Bureau of Prison's COVID-19 page currently reports that there "have been 204 federal inmate deaths ... attributed to COVID-19 disease."  That amounts to more than four times the number of persons on federal death row; in a few older posts here and here, I noted that nearly half of the early reported deaths of federal prisoners involved individuals serving time for drug crimes, and thus crimes much less serious than the aggarvated murders that lead to formal death sentences.   

The Buzzfeed piece rightly notes that "Public officials have been slow to use clemency powers, despite calls from the American Medical Association and other groups to reduce the prison population."  I sure wish a bunch of members of Congress and lots and lots of other folks would focus a push for clemency on the persistent and pressing need to try to depopulate federal prisons in order to reduce the spread and carnage of COVID in federal prisons.

A few of many prior related posts:

January 24, 2021 in Clemency and Pardons, Death Penalty Reforms, Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (1)

Friday, January 22, 2021

37 Democratic member of Congress call on Prez Biden to "commute the sentences of all those" on federal death row

Via this letter, more than three dozen congressional Democrats has urge to communte the federal death sentences of all 49 condemned men on federal death row.  Here are excerpts from the letter:

We write to you today with grave concerns regarding the federal death penalty.  As members of Congress, we stand ready to work with you on your commitment to rebuilding the dignity of America.  We believe that rebuilding the dignity of America requires that we recommit ourselves to the tradition of due process, mercy, and judicial clemency when it comes to matters related to the criminal legal system.  For this reason, we urge you to immediately commute the sentences of all those on death row....

We appreciate your vocal opposition to the death penalty and urge you to take swift, decisive action. After referring to the death penalty as “deeply troubling,” President Obama halted federal executions and commuted the sentences of two federal prisoners on death row.  However, the Obama administration’s reticence to commute more death sentences has allowed the Trump administration to reverse course and pursue a horrifying killing spree over the final seven months of his presidency. Commuting the death sentences of those on death row and ensuring that each person is provided with an adequate and unique re-sentencing process is a crucial first step in remedying this grave injustice....

As President, you can exercise your executive clemency power by commuting the sentences of all those on death row and ensuring a fair re-sentencing process.  This moment demands a series of meaningful actions to ensure that no President can authorize the killing of Americans through the death penalty.  This includes dismantling death row at FCC Terre Haute, and establishing clear executive guidelines prohibiting federal prosecutors from seeking the death penalty.  In addition to those steps, you can call on the U.S. Congress to pass H.R. 262, the Federal Death Penalty Prohibition Act, sponsored by Representative Ayanna Pressley and Senator Dick Durbin, which would end the death penalty once and for all. Until that legislation is law, it is incumbent upon the executive branch to end the barbaric practice of federal executions as quickly as possible.

Beyond the substantive basics of seeking capital commutations for all on federal death row, I find it quite interesting that this letter calls upon Prez Biden to "ensur[e] that each person is provided with an adequate and unique re-sentencing process."  Typically, death row commutations by governors change death sentences to life without parole, and the two federal death sentences commuted by Prez Obama were both turned into LWOP sentences.  But many progressives now view an LWOP sentence as just a functional death sentence by another name, and so it seems these membrs of Congress are eager to have these now condemned men to have a chance to receive sentences less than life.  Relatedly, I am not aware of any commutation that has come with an instruction for a judge to conduct a full resentencing.  But because the clemency power is broad, I presume it would be permissible for a Prez to commute a sentence with these terms. 

As regular readers know, I am eager for any and every president to make regular and robust use of the historic clemency power.  But it might be wiser for the very first clemencies from Prez Biden to involve cases less likely to garner widespread controversy and involving persons who have not committed the most aggravated of crimes.

January 22, 2021 in Clemency and Pardons, Criminal justice in the Biden Administration, Death Penalty Reforms, Who Sentences | Permalink | Comments (2)

Wednesday, January 20, 2021

Timely reminder that Congress has a critical role to play in reforming clemency conditions

Former US pardon attorney Margaret Colgate Love has this great new Washington Post piece highlighting that Congress can and should create statutory record relief mechanisms (as nearly all states have) in order to prevent clemency from serving as the only means for persons with federal criminal records to find relief.  I recommend the piece in full, and here are excerpts:

The core problem that has led to pardon’s abuse is that the justice system has relied too heavily on an authority that is inherently arbitrary and unfair.

Thus, the law makes the president exclusively responsible — through his pardon power — for shortening most federal prison sentences and relieving the collateral consequences of conviction — functions that in most states are now routinely performed by judges and agencies under statutory schemes.  For example, a presidential pardon is the only way a person convicted of a federal felony can qualify for many business and professional licenses, or regain the right to possess firearms.  Indeed, I have been told — and my own practice would confirm — that a desire to regain firearms rights accounts for nearly half of the pardon applications filed.  It is beyond absurd to make the president a one-person gun-licensing bureau for people convicted of nonviolent federal crimes who want to go hunting again....

I do not advocate curtailing the president’s pardon power, and the Biden administration can decide how it wishes to administer that power.  I hope it will restore at least the appearance of fairness and regularity to the way applications from ordinary people are considered (even if the process will continue to function, as it always has, more or less like a lottery)....

The alternative to systematic reliance on pardoning is what Daniel J. Freed described 20 years ago as “the more demanding road toward democratic reform.”  The incoming administration should urge Congress to offload many of pardon’s exclusive functions onto the legal system by enacting robust statutory relief mechanisms, for those in prison and for those who have fully served their sentences, as a majority of states have done in recent years....

In other words, Congress should enact laws to provide alternative ways of handling much of the routine business that is currently overwhelming the pardon process, ideally using the federal courts. It has already begun this work in the 2018 First Step Act, which gives federal prisoners the ability to go back to court to seek reduction of their sentences.

If the pardon process were not bogged down by thousands of petitions from people who simply want to restore lost rights or improve their employment prospects, the president would be free to use the constitutional power in a far more expansive and policy-oriented manner to encourage reform of the justice system, to counter its overreaches and to tell good news about its operation through stories of successful rehabilitation.

In the end, Trump’s abuse of his pardon power could be seen as a blessing in disguise if it provides the opportunity to wean the federal criminal justice system from its dependence upon presidential action for routine relief. Only if freed from its more workaday responsibilities can pardon play the constructive role the Framers intended.

I sense that record relief reform has been a truly bipartisan endeavor in states from coast to coast in reent years. The Biden Administration and members of Congress on both sides of the aisle might be wise to start its criminal justice reform efforts here.

January 20, 2021 in Clemency and Pardons, Collateral consequences, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Reviewing some notable data after a notably final clemency flourish by Prez Trump

A few months ago, I noted in this post a Pew Research Center piece, "So far, Trump has granted clemency less frequently than any president in modern history," which assailed then Prez Trump’s "sparse use" of his clemency powers as of Nov 2020.  At that time, I called the Pew piece a bit unfair because it compared Trump's record in his (then-not-complete) first term to mostly two-term Presidents.  I also noted that Prez Trump had already granted more clemencies in his first term than had Prez Obama or Prez George W. Bush at a comparable point in their first terms and that some more clemencies were surely to come.

Sure enough, after a bunch of pre-Christmas grants and a final big group of pardons and commutations, (former) President Trump's clemency record might now be reasonably described as fairly substantial.  Though I wish he had done a lot more, and while I still recall getting way too excited back in 2018 when Prez Trump said he was considering 3000 people for clemency, some basic data make the case for him being a significant user of his clemency powers.  Of course, there are ample grounds for criticizing the substantive decisions and the opaque process surrounding  Prez Trump's use of his historic clemency power.  But reviewing the raw numbers with an eye on the modern history of clemency highlights that it is no longer accurate to even suggest Trump's use of this power was sparse. 

Specifically, according to the data on this Justice Department "Clemency Statistics" page (which seems up-to-date but may be an undercount), Prez Trump is reported to have granted in his four years in the Oval Office a total of 206 clemencies in the form of 117 pardons and 89 commutations.  Even that number (which may be a bit low) amounts to nearly three times as many clemencies as our last one-term president: Prez George H.W. Bush granted only 77 total clemencies during his four years in office.  Indeed, in only one term, Prez Trump's used his clemency pen even more than Prez George W. Bush did over two full terms as he granted only 200 total clemencies during his entire eight years in office.

Given that Prez Trump was often eager to lay claim to a Reagan legacy, it is notable that Prez Trump can lay claim to using his clemency powers more in his first term in office than any president since Ronald Reagan.  As clemency fans may know, Prez Reagan was something of a marker of two different clemency eras: nearly every president before Reagan used his clemency powers more than nearly every president after Reagan (e.g., Prez Nixon alone used his clemency power more in roughly five years than both Prez Bushes and Prez Clinton combined over 20 years).  Prez Barack Obama is the one exception to the ugly modern story of relative clemency disuse because of his remarkable second-term commutation project, but that valuable program was still relatively modest if measured against the massive size of the modern federal prison population.

A focus on commutations makes the clemency record of Prez Trump perhaps especially notable.  Leaving Prez Obama out of the analysis, Prez Trump's 89 commutations amount to more federal prison commutations granted than any other president since Prez Lyndon Johnson and amount to more prison commutations granted than any Republican president since Herbert Hoover!  

Because so much of Prez Trump's early use of his clemency powers was overtly political and/or self-serving, I do not want to be misunderstood as unduly praising how Prez Trump used these critical powers of justice and mercy.  But I do want to strongly embrace the sentiments in this recent Slate commentary and headline: "The Presidential Pardon Power Is Good: Trump abused it, but clemency remains an indispensable tool that should be used more often, not less."  As Mark Joseph Stern put it even before the last round of grants: 

[A] jaundiced view of clemency is understandable.  It is also misguided.  The pardon power exists for a very good reason, and its exploitation at the hands of crooks and con men should not give cause for its eradication.  It is not some obsolete relic from a simpler era, but a vital safeguard against unjust convictions and disproportionate sentences.  The United States’ federal prisons are filled with good citizens who have no business being behind bars.  It is unfortunate that Trump has overlooked these individuals in favor of his vile cronies.  It would be catastrophic if Trump’s actions prevented future presidents from using the pardon power to free the people who actually deserve clemency.

Thankfully, in his final batch of 143 clemencies, the ratio of deserving individuals to cronies seemed a lot better than in early rounds.  Regular readers know I have been advocating for reform of the clemency process for more than a decade, and I hope that becomes the focal point for continued calls for reform.  But imperfect and even poor use of the clemency power still seems to me better than no use at all.  I still wish Prez Trump did a lot more and a lot better with his clemency power, but now it is time to focus on urging Prez Biden to do a lot more and a lot better with this power ASAP.

A few of many recent related posts:

UPDATEThere is now an updated version of the Pew Research Center piece available here under the headline "Trump used his clemency power sparingly despite a raft of late pardons and commutations."

January 20, 2021 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

Prez Trump grants 73 pardons and 70 commutations in final hours in office

As detailed in this official statement, Prez Trump has "granted pardons to 73 individuals and commuted the sentences of an additional 70 individuals."  The list of recipients strikes me as notably diverse, with some well-known names sure to cause controversy (e.g., Steve Bannon) as well as plenty of lesser-known individuals.  Here are just a few on the names on the list catching my eye upon first review: 

John Knock – President Trump commuted the sentence of John Knock.  This commutation is supported by his family.  Mr. Knock is a 73 year-old man, a first-time, non-violent marijuana only offender, who has served 24 years of a life sentence....

Michael Pelletier – President Trump commuted the sentence of Michael Pelletier.  Mr. Pelletier is a 64 year-old who has served 12 years of a 30 year sentence for conspiracy to distribute marijuana....

Craig Cesal – President Trump commuted the sentence of Craig Cesal.  Mr. Cesal is a father of two, one of whom unfortunately passed away while he was serving his life sentence for conspiracy to distribute marijuana....

Chalana McFarland – President Trump commuted the sentence of Chalana McFarland.  Ms. McFarland has served 15 years of a 30-year sentence....

Chris Young – President Trump commuted the remaining sentence of Chris Young.  This commutation is supported by the Honorable Kevin H. Sharp, Mr. Young’s sentencing judge, former law enforcement officials and Federal prosecutors, and multitudes of criminal justice reform advocates....

Amy Povah – President Trump granted a full pardon to Amy Povah, the founder of the CAN-DO (Clemency for All Non-violent Drug Offenders) Foundation.  In the 1990s, Ms. Povah served 9 years of a 24 year sentence for a drug offense before President Clinton commuted her remaining prison sentence in 2000.  Since her release, she has become a voice for the incarcerated, a champion for criminal justice reform, and was a strong advocate for the passage of the First Step Act....

Kwame Kilpatrick – President Trump commuted the sentence of the former Mayor of Detroit, Kwame Malik Kilpatrick. This commutation is strongly supported by prominent members of the Detroit community, Alveda King, Alice Johnson, Diamond and Silk, Pastor Paula White, Peter Karmanos, Representative Sherry Gay-Dagnogo of the Michigan House of Representatives, Representative Karen Whitsett of the Michigan House of Representatives, and more than 30 faith leaders....

Dwayne Michael Carter Jr. – President Trump granted a full pardon to Dwayne Michael Carter Jr., also known as “Lil Wayne.”  Mr. Carter pled guilty to possession of a firearm and ammunition by a convicted felon, owing to a conviction over 10 years ago....

Shalom Weiss – President Trump commuted the sentence of Shalom Weiss.  This commutation is supported by former U.S. Attorney General Edwin Meese, former Solicitors General Ken Starr and Seth Waxman, former United States Representative Bob Barr, numerous members of the New York legislature, notable legal figures such as Professor Alan Dershowitz and Jay Sekulow, former U.S. Attorney Brett Tolman, and various other former elected officials. 

There are many more notable names on this last big clemency list, and it certainly seems like there are many more deserving cases than undeserving ones this time around.  I expect we will be hearing a lot more about some of these recipients, both good and bad, in the days ahead.  But because thislist maeks the end of the Trump term, it is now time to turn to urging the Biden Administration to do more and more grants and to adopt a new and improved clemency process.

January 20, 2021 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Monday, January 18, 2021

Hoping for a lot more "regular" folks on Prez Trump's coming final clemency list

CNN has this big new piece about Prez Trump's clemency plans under the headline "Trump to issue around 100 pardons and commutations Tuesday, sources say."  There is a lot of interesting reporting in this piece, and here are excerpts:

President Donald Trump is preparing to issue around 100 pardons and commutations on his final full day in office Tuesday, according to three people familiar with the matter, a major batch of clemency actions that includes white collar criminals, high-profile rappers and others but -- as of now -- is not expected to include Trump himself.

The White House held a meeting on Sunday to finalize the list of pardons, two sources said.

Trump, who had been rolling out pardons and commutations at a steady clip ahead of Christmas, had put a pause on them in the days leading up to and directly after the January 6 riots at the US Capitol, according to officials. Aides said Trump was singularly focused on the Electoral College count in the days ahead of time, precluding him for making final decisions on pardons. White House officials had expected them to resume after January 6, but Trump retreated after he was blamed for inciting the riots.

Initially, two major batches had been ready to roll out, one at the end of last week and one on Tuesday. Now, officials expect the last batch to be the only one -- unless Trump decides at the last minute to grant pardons to controversial allies, members of his family or himself.

The final batch of clemency actions is expected to include a mix of criminal justice reform-minded pardons and more controversial ones secured or doled out to political allies....

The January 6 riots that led to Trump's second impeachment have complicated his desire to pardon himself, his kids and personal lawyer Rudy Giuliani. At this point, aides do not think he will do so, but caution only Trump knows what he will do with his last bit of presidential power before he is officially out of office at noon on January 20....

Other attention-grabbing names, like Julian Assange, are also not currently believed to among the people receiving pardons, but the list is still fluid and that could change, too. It's also not certain whether Trump's former adviser Steve Bannon will receive a pardon....

The expectation among allies is that Trump will issue pardons that he could benefit from post presidency. "Everything is a transaction. He likes pardons because it is unilateral. And he likes doing favors for people he thinks will owe him," one source familiar with the matter said....

Inside the White House, there has been a scramble to petition for pardons on behalf of allies and advocacy groups and names could be added and taken off up until the last minute, sources say.  CNN previously reported there has been a crush of pardon requests during Trump's final days in office from allies, lobbyists and others hoping to cash in on their loyalty to Trump.  The New York Times reported Sunday some of those people were getting paid tens of thousands of dollars to lobby on behalf of felons hoping for pardons.

Regular readers know I have been hoping Prez Trump in his final days in office might make regular use of his clemency power to give relief to the many regular people who ought to benefit from executive relief in the form of a commutation and/or pardon.  But, perhaps unsurprisingly, it seems his ugly efforts to contest the election results and the additional ugliness he inspired on January 6 kept him from giving sustained attention to his last meaningful opportunity to use his presidential powers in a potent way.  Prez Trump often claimed to be concerned with "forgotten" Americans.  Federal prisoners without celebrity status or famous advocates are surely among those forgotten, and they are now enduring an extended lock-down thanks to Prez Trump's "stop the steal" shenanigans.  I sure hope more than a few of these forgotten folks make the final clemency cut.

Barring a pleasant surprise from the final round of grants, it seems likely that Prez Trump's clemency legacy will have been to demonstrate how this historic constitutional power can be used primarily to garner attention and score political points rather than to actually do justice or show mercy.  That said, despite some crass cases, Prez Trump has already issued at least a few grants that, as I see it, did effectively advance justice and/or show mercy.  (The Alice Marie Johnson case is most obvious, but I count a few dozen others.)  I hope we see a final Trumpian flourish in the spirit of justice and mercy, and I hope the momentum for clemency reform continues to advance some structural reforms in the next administration that could improve clemency decision-making and the advancement of justice and mercy for many years to come.

A few recent related posts:

January 18, 2021 in Clemency and Pardons, Criminal justice in the Trump Administration, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Saturday, January 16, 2021

Might Prez Trump announce his next round of clemency grants this weekend?

The question in this post is prompted by this Politico article headlined "Trump weighing a pardon for Steve Bannon." The start of the article suggests that some actually were expected some action on the clemency front last night:

President Donald Trump is considering granting a pardon to Steve Bannon, his former White House chief strategist and top campaign aide, who was charged with swindling donors to a private crowdsourcing effort to build a wall along the U.S.-Mexico border, according to two sources familiar with the matter.

The potential pardon would follow a wave of reprieves the president has recently granted to political allies who have been convicted, charged or reportedly under federal investigation. Two additional batches of pardons are expected — one on Friday night and one Wednesday morning before President-elect Joe Biden is sworn into office, according to one of the people.

I have been wondering in recent days about how the Capitol riot and Prez Trump's second impeachment might be impacting his clemency plans (and they advice he may be getting from his remaining advisors). Ultimately, I have given up making Trumpian predictions, but these recent articles reveal we can readily predict that Prez Trump will keep recieving clemency requests:

From The Daily Beast, "‘QAnon Shaman’ Seeks Trump Pardon for Riot, Says President Invited Him"

From Newsweek, "Jenna Ryan, Who Took Jet to Capitol Riot, Asks Donald Trump for a Pardon"

A few recent related posts:

UPDATE: These new stories highlight the Trumpian realities already shaping the clemency:

From The Guardian, "Giuliani associate told ex-CIA officer a Trump pardon would 'cost $2m’ – report"

From the New York Times, "Prospect of Pardons in Final Days Fuels Market to Buy Access to Trump"

Here are portions of the NYTimes piece:

As President Trump prepares to leave office in days, a lucrative market for pardons is coming to a head, with some of his allies collecting fees from wealthy felons or their associates to push the White House for clemency, according to documents and interviews with more than three dozen lobbyists and lawyers....

Legal scholars and some pardon lawyers shudder at the prospect of such moves, as well as the specter of Mr. Trump’s friends and allies offering to pursue pardons for others in exchange for cash.

“This kind of off-books influence peddling, special-privilege system denies consideration to the hundreds of ordinary people who have obediently lined up as required by Justice Department rules, and is a basic violation of the longstanding effort to make this process at least look fair,” said Margaret Love, who ran the Justice Department’s clemency process from 1990 until 1997 as the United States pardon attorney....

Few regulations or disclosure requirements govern presidential clemency grants or lobbying for them, particularly by lawyers, and there is nothing illegal about Trump associates being paid to lobby for clemency.  Any explicit offers of payment to the president in return could be investigated as possible violations of bribery laws; no evidence has emerged that Mr. Trump was offered money in exchange for a pardon.

Some who used resources or connections to try to get to Mr. Trump say clemency should be granted to more people, independent of their clout.

January 16, 2021 in Clemency and Pardons, Criminal justice in the Trump Administration, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Thursday, January 07, 2021

Gearing up for Prez Trump's coming final round of clemency grants

Prez Trump's ignominious behavior raises uncertainty as to whether he will serve out the last two weeks of his term.  But we can all be certain that Prez Trump is planning to issue more clemency grants before he loses the power to do so.  As everyone surely recalls, just before Christmas, Prez Trump granted clemency to all sorts of friends and family and politically-charged defendants (basics here and here).  And recent press reports detail other grants that could be forthcoming. 

First, this new New York Times piece, headlined "Trump Is Said to Have Discussed Pardoning Himself," cover the one particular possible pardon sure to generate the most buzz and controversy.  But I am even more intrigued by this new Bloomberg piece, headlined "Trump Prepares Pardon List for Aides and Family, and Maybe Himself," which discusses more fully other grants that may be in the works.  Here are excerpts:

President Donald Trump has prepared a sweeping list of individuals he’s hoping to pardon in the final days of his administration that includes senior White House officials, family members, prominent rappers -- and possibly himself, according to people familiar with the matter.

Trump is hoping to announce the pardons on Jan. 19 -- his final full day in office -- and his ideas are currently being vetted by senior advisers and the White House counsel’s office, the people said....

He’s also considering a traditional pardon for Albert Pirro, who previously worked with the president on real estate deals and was convicted of tax fraud. Pirro is the ex-husband of Fox News host Jeanine Pirro, a former district attorney of Westchester County in New York.

Trump is similarly considering pardoning celebrities including rapper Lil Wayne -- with whom he posed for a photo during the presidential campaign --as well as rapper Kodak Black, who is serving time for falsifying paperwork to obtain a firearm.

Other prominent celebrities including rapper Lil Yachty and Baltimore Ravens quarterback Lamar Jackson have publicly lobbied Trump to pardon Kodak Black, who said in a now-deleted tweet that he would donate $1 million to charity if the president freed him.

Trump’s list is currently being vetted by lawyers who are concerned that pardons could create new allegations of obstruction of justice for members of the administration. The process is being managed in part by White House Counsel Pat Cipollone. A White House spokesman did not immediately respond to a request for comment.

While some of the proposed pardons have moved through the legal steps needed inside the White House, the idea of a self-pardon is far less developed, the people say, and so far only at the discussion stage.

I am hopeful, but not really optimistic, that there will be some good number of final Trumpian clemency grants for persons who are not well-connected or famous.  Whether there are or not, I hope Prez-elect Biden comes into office understanding that the best way to restore faith in the pardon power could be by using it right away to advance justice and mercy rather than parochial personal privilege.

A few recent related posts:

January 7, 2021 in Clemency and Pardons, Criminal justice in the Trump Administration, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Friday, January 01, 2021

Reviewing CJUTF Recommendations: when and how might Biden Administration create an independent clemency board?

Right after the election, I blogged a bit (here and here) about some criminal justice reform recommendations from the Biden-Sanders Unity Task Force (available here pp. 56-62); I stressed in one of those posts that Prez-elect Biden could get started right away in implementing recommendations calling for creating a new "Task Force on Prosecutorial Discretion" and a "Clemency Board."  Especially with so much clemency chatter as Prez Trump's term comes to a close, I am eager to again amplify attention on the clemency recommendation.  Helpfully, this lengthy new Bloomberg piece, headlined "Biden Gets Unlikely Advice on Pardons: Copy Trump, Sideline DOJ," provides some useful background and context.  Here are excerpts:

President Donald Trump’s pardons of some of his closest allies have sparked a political firestorm, but criminal justice reform advocates believe he has done one thing right: sideline the Department of Justice from clemency decisions.  But rather than use that control the way Trump has, those advocates want to see President-elect Joe Biden use it to help non-violent drug offenders with questionable convictions or harsh sentences.  Relying on the DOJ’s Office of the Pardon Attorney to review and make recommendations on clemency requests, they say, is bureaucratic and puts those decisions in the hands of the department that put the offenders behind bars....

Biden’s criminal justice plan proposes a number of reforms and says he will “broadly use his clemency power for certain non-violent and drug crimes.” The campaign would not comment past the plan’s language.  In addition to removing the sole oversight of the Office of the Pardon Attorney, Biden could improve the process by creating a permanent independent advisory panel that includes criminal justice reform activists, defense attorneys and pardoned convicted offenders, alongside federal prosecutors, supporters say.

“It should certainly include people who are formerly incarcerated because they know that walk better than anybody,” said Cynthia W. Roseberry, deputy director of policy in the Justice Division of the American Civil Liberties Union.  “Also include criminal justice reform experts and members of the community who can opine about the fact that we want people to come home.  I’m not suggesting leaving DOJ out,” Roseberry added.  “They can definitely have a prosecutor at the table.  But it should look like the community.”

Though the Biden campaign language does not commit to creating a new clemency infrastructure, the criminal justice reform recommendations from the Biden-Sanders Unity Task Force expressly proposes doing so:

Clemency Board: To avoid possible institutional bias and ensure people have a fair and independent evaluation, establish an independent clemency board, composed and staffed by people with diverse backgrounds.  Expand Obama-era criteria for proactive clemency initiative to address individuals serving excess sentences.

Long-time readers should not be surprised to hear me vocally advocate for a clemency board given that way back in 2010, I urged then-Prez Obama to structurally change the federal clemency system in this law review article titled "Turning Hope-and-Change Talk Into Clemency Action for Nonviolent Drug Offenders."  Here is a snippet from that piece:

President Obama ought to seriously consider creating some form of a "Clemency Commission" headed by a "clemency czar."...  Though a "Clemency Commission" headed by a "clemency czar" could be created and developed in any number of ways, ... [the] basic idea is ... to create a special expert body, headed by a special designated official, who is primarily tasked with helping federal officials (and perhaps also state officials) improve the functioning, transparency, and public respect for executive clemency.  Though the structure, staffing, and mandates of a Clemency Commission could take many forms, ideally it would include personnel with expertise about the nature of and reasons for occasional miscarriages of justice in the operation of modem criminal justice systems — persons who possess a deep understanding that, in the words of James Iredell, "an inflexible adherence to [severe criminal laws], in every instance, might frequently be the cause of very great injustice."

Many others have been talking for many years in many better ways about the idea of an DOJ-independent clemency board or commission, and I especially think of the tireless work of Rachel Barkow and Mark Osler in promoting an improved clemency infrastructure (see, e.g., here and here and here and here).  And I want to here promote all ideas about clemency reform because I now believe when the Biden Administration gives attention to this matter is much more important than exactly how. 

As I noted in this recent post, among the many problems with the modern exercise of the federal clemency power is the modern tendency for Presidents to entirely ignore this power until late in their terms.  As detailed in this DOJ data, Prez Trump at least thought to use his clemency power, and did so nearly a dozen times, during his first couple years in office; Barack Obama and George W. Bush and Bill Clinton could not be bothered to pick up the clemency pen for a single individual during their first two calendar years in office.  If clemency work and reform is not made a priority in the weeks and months ahead, I fear that real reforms are unlikely to get done at all. 

At this moment, I am drawn to the notion of starting with a "clemency czar," particularly because appointing one initial advisor should be easier and quicker than creating a full clemency board.  And the aforementioned Rachel Barkow and Mark Osler and Cynthia Roseberry are all great names surely ready to serve in this role on day one.  And while ruminating on this topic, other great names of great people long doing great work in the criminal justice space come to mind, like Michelle Alexander and David Singleton and Bryan Stevenson.  (Heck, add in folks like Weldon Angelos, Brittany Barnett, Beth Curtis, Mark Holden, Shon Hopwood, Jessica Jackson and Amy Povah, and I guess it is not too hard to quickly envision a "Dream Team" for a badly-needed clemency board.) 

Some (of many) prior recent related posts on clemency reform:

Some prior related posts on CJUTF recommendations:

January 1, 2021 in Clemency and Pardons, Criminal justice in the Biden Administration, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, December 29, 2020

Rounding up some notable recent criminal justice commentary

There are lots and lots of interesting criminal justice issues floating around these days, and these recent commentary catching my eye capture just a slice of what some folks are talking about:

From the Boston Globe, "What Trump’s pardons say about criminal justice"

From CNN, "How Joe Biden can root out racism in criminal justice"

From CNN Business, "Criminal justice reform can start with employers who give felons a second chance"

From The Hill, "Joe Biden should eliminate federal death row on his first day in office"

From The Hill, "Five ways Biden can jumpstart criminal justice reform immediately"

From Lawfare, "Are Trump’s Pardons a Blessing in Disguise?"

From USA Today, "COVID-19 compels America to rethink who we lock up in prison"

From Vice, "2020 Was the Year That Momentous Drug Reform Became Normal"

December 29, 2020 in Clemency and Pardons, Criminal justice in the Biden Administration, Death Penalty Reforms, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Monday, December 28, 2020

Noticing the many regular forgotten folk so far left behind in Prez Trump's clemency capers

This new New York Times piece, headlined "Outside Trump’s Inner Circle, Odds Are Long for Getting Clemency," provides a useful reminder of who is largely being forgotten amidst Prez Trump's clemency largesse.  Here are excerpts:

A vast majority of the people to whom he granted pardons or commutations had either a personal or political connection to the White House, and it appears that only seven were recommended by the government’s pardon attorney, according to a Harvard University professor who is tracking the process....

Many who have applied have little chance of clemency under any circumstances.  But those with sentences they contend are excessive and people who have shown remorse and turned their lives around in prison are hoping for mercy.

“We just are hopeful that the president will extend the pardons to people who aren’t rich, wealthy and well-connected — and there’s certainly thousands of them,” said Holly Harris, a Republican who has worked with Mr. Trump on reforms as head of Justice Action Network, a bipartisan criminal justice reform organization.  “There’s certainly still time for the president to use this extraordinary power to help people who are really struggling.”...

Ferrell D. Scott, 57, hopes the president reviews his petition, which shows he is serving life for marijuana trafficking, a sentence that even the federal prosecutor who tried his case said he did not deserve.

John R. Knock, 73, also serving life on a nonviolent marijuana charge, was already rejected by President Barack Obama but tried again with Mr. Trump. He has been in prison since 1996.  “It’s kind of like a competition instead of a legal procedure,” said Mr. Knock’s sister, Beth Curtis, who has advocated on behalf of her brother and other people serving life sentences for marijuana charges.  “It’s a crony system.”

December 28, 2020 in Clemency and Pardons, Criminal justice in the Trump Administration, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Saturday, December 26, 2020

"Trump pardoned us. But pardons don’t replace criminal justice reform."

The title of this post is the title of this Washington Post commentary authored by Christopher 2X and Topeka K. Sam.  Here are excerpts:

In this holiday season, in a year of racial unrest, record gun violence in our cities, and a devastating pandemic, we received a blessing — a presidential pardon for our drug convictions.

We are extremely grateful. We’re fortunate to have many friends who have supported our work for justice, second chances and nonviolence since we left prison.  They vouched for us even though a pardon wasn’t something we requested for ourselves.

The blessing of a pardon, however, comes with a stark reminder of so many thousands who are not as fortunate as we are.  They are still stuck in a still flawed justice system that prizes the punitive over the rehabilitative — and they should not be.  For every one of us, there are thousands who are powerless and voiceless, who do not deserve the harsh punishment and treatment they’ve received in our criminal justice system, and whose names will never appear before a president for a pardon.

Because pardons alone can’t solve what needs fixing....  We incarcerate too many Black people, with horrible impacts on Black communities and families that last for generations — including distrust of government and police, and an inability for many to see the humanity in each other, even at early ages.  To young Black people, understandably, and tragically, the government is the demon.

It doesn’t have to be that way, and if we want safer, more just communities, it’s unsustainable.  But if we are ever going to coexist in peace so all children can reach their potential, we must reverse our history of racial injustice — a history, and a present, in which Black and Brown people have been excluded from the economy and society....

We’re grateful to be pardoned for our convictions.  We strived, when we left prison, to atone for the pain we inflicted on our family and friends, which gave us the motivation to work for justice and peace.

We plan to use our pardons as an example to others that there is such a thing as redemption in this country.  But we intend to keep fighting for change, in our laws and across society.  We must keep working intentionally and with determination to build a more equitable, just society, one in which everyone is treated with dignity and respect.

I am hopeful (though not optimistic) that Prez-elect Joe Biden will have the good sense to nominate to the US Sentencing Commission at least on person with direct expereince with the federal criminal justice system as a defendant. The commentary has me thinking that it could be especially meaningful and valuable for Biden to nominate to the uSSC persons like Christopher 2X and Topeka K. Sam who received pardons from Prez Trump.

December 26, 2020 in Clemency and Pardons, Criminal justice in the Biden Administration, Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (0)

Thursday, December 24, 2020

Rounding up some (but not enough) state clemency stories this holiday week

With Prez Trump setting quite the clemency pace (basics here and here), it would be nice if I could report here about similar holiday-week grants of pardons and commutations coming from Governors in every single state across the nation.  Sadly, my Google news searches have so far revealed reports of clemency grants from only a handful of states.  But I am still keen to highlight these stories, especially because grants from the Centennial State include a long-ago, high-profile "15 minutes of fame" case:

From Colorado, "Gov. Jared Polis pardons Balloon Boy’s parents, grants clemency to 20 othersGovernor also commutes sentence of white collar criminal who received one of longest prison terms in state history."

From Michigan, "Whitmer grants clemency to 4, including state's 'longest serving non-violent offender'"

From Missouri, "Missouri governor pardons 24, commutes the sentences of four offenders"

From New York, "Governor Cuomo Grants Clemency to 21 Individuals"

From North Carolina, "NC governor pardons 5, including man wrongly imprisoned for 44 years"

From Texas, "Gov. Greg Abbott pardons seven Texans ahead of Christmas"

For those who do not remember the "Balloon Boy" case, here are prior posts about the case from way back in 2009:

December 24, 2020 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

A challenge for those troubled by Trump's final month clemencies: identify dozens, hundreds of comparable cases for Biden's first month

It is hardly surprising that Prez Trump has kicked off his final weeks in office with sets of clemency grants that include all sorts of friends and family and politically-charged defendants (basics here and here).  It is perhaps even less surprising that Trump's latest flourish of clemency grants is garnering lots and lots of criticisms from lots and lots of quarters (just a few examples are here and here and here and here and here). 

But particularly notable in the first wave of reaction was US Senator Chris Murphy tweeting here that "It’s time to remove the pardon power from the Constitution."  Many tweeters have pushed back, and Rachel Barkow's tweet thread here is especially effective and I wanted to highlight some of what she says.  I recommend the whole thread, but these portions (with my bolding) partially motivated the title of this post:

[T]he Congress of which he is a part has established no functioning second-look mechanisms for shortening sentences or expunging convictions, commutations and pardons are the only mechanisms for correcting injustices in the federal system.  And it's not as if those injustices are rare.

Go to any federal correctional facility, and take time to learn who is there and about their cases, and you find literally thousands of people whose sentences were grossly excessive given their offenses.  Those people need commutations as a corrective because there is no parole or other second look in place to address that....

Pardons are essential as well because the collateral consequences of convictions can be devastating for people trying to get housing, employment, and education after being convicted. There is no other way to clear a federal conviction than a pardon....

The solution to what's happening now is to get a better leader, which we've done.  And my hope is that leader will see that the pardon power's utility is critical, and he'll show everyone what a real leader does when wielding it.

While I fully understand frustrations with how Prez Trump has been using his pardon power, I think much energy now should go to urging Prez-elect to do better and to do better right away! Among the many problems with the modern exercise of the federal clemency power is the modern tendency for Presidents to entirely ignore this power until late in their terms.  Notably, as detailed in this DOJ data, Prez Trump at least thought to use his clemency power, and did so nearly a dozen times, during his first couple years in office.  Neither Barack Obama nor George W. Bush nor Bill Clinton bothered to pick up their clemency pen for a single individual during their first two calendar years in office. 

As regular readers likely know, I think disuse of clemency powers is always a much bigger problem than the misuse of this power.  And disuse, not misuse, has defined the start of modern presidencies.  So this post presents my suggestion for what those troubled by Trump's final month clemencies ought to do — namely help identify for the incoming Biden Administration persons currently in federal prison and/or burdened by a federal conviction who should get a clemency grant during Biden's first month in office because they are at least as worthy as some of Trump's final-month clemency recipients.  Helpfully, Jack Goldsmith and Matthew Gluck have this current list of all Trump clemency recipients, and I would urge advocates to demand that Prez Biden grant many "good" clemencies as he gets situated in the Oval Office to balance Trump's "bad" use of this power on his way out the door.

I will start this process by flagging a group of federal prisoners that should be easy first cases for a Biden Administration, namely the "Life for Pot" crowd.  I do not think it is entirely misguided to describe persons still serving extreme federal terms for marijuana offenses as political prisoners, especially now that so many states have fully legalized marijuana and the US House has likewise voted to do so.  The Life for Pot website spotlights those Serving Sentences of Life without Parole in Federal Prison for Marijuana and those Serving De Facto Life.  I hope Senator Murphy will become an advocate for some of these kinds of prisoners and the thousands more who need the historic clemency power used more and better rather than needing it removed from the Constitution.

December 24, 2020 in Clemency and Pardons, Criminal justice in the Biden Administration, Criminal justice in the Trump Administration, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

Wednesday, December 23, 2020

Prez Trump issues 29 more clemencies on Festivus that include full pardons to Paul Manafort, Roger Stone and Charles Kushner

As reported in this CNN piece, "President Donald Trump on Wednesday evening announced 26 new pardons, including ones for longtime ally Roger Stone, former campaign chairman Paul Manafort and White House senior adviser Jared Kushner's father, Charles." Here is a bit more:

Also included in Trump's pardon list Wednesday evening is former California GOP Rep. Duncan Hunter's wife, Margaret, just one day after Trump granted Duncan Hunter a full pardon. Margaret Hunter had pleaded guilty last year to conspiring "knowingly and willingly" to convert campaign funds for personal use.

Beyond the high-profile pardons, Trump also pardoned more than 20 other individuals, including those who had pleaded guilty to various cyber crimes, firearm possession and mail fraud. He also commuted the sentences of three others.

The full statement listing all the recipients of clemency today can be found at this link, and here are just a few (among many) names from the list that caught my eye:

Today, President Donald J. Trump granted Full Pardons to 26 individuals and commuted part or all of the sentences of an additional 3 individuals....

Rickey Kanter — President Trump granted a full pardon to Rickey Kanter. Mr. Kanter was the owner and CEO of Dr. Comfort, a company which manufactures special shoes and inserts for diabetics [who was the focal point of a notable Second Amendment case that then-Judge Amy Barrett dissented in]....

Topeka Sam — President Trump granted a full pardon to Topeka Sam....

Daniela Gozes-Wagner — President Trump commuted the sentence and restitution order imposed upon Ms. Gozes-Wagner [who raised strong claims that she was subject to a trial penalty at sentencing].

December 23, 2020 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Tuesday, December 22, 2020

Prez Trump issues 15 full pardons and 5 commutations on Festivus eve

As detailed in this White House press release, titled "Statement from the Press Secretary Regarding Executive Grants of Clemency," Prez Trump issued a set of notable clemency grants this evening.  Here are the basics from the statement:

Today, President Donald J. Trump granted Full Pardons to 15 individuals and commuted part or all of the sentences of an additional 5 individuals.

Alfonso Costa — President Trump granted a full pardon to Alfonso Costa, a dentist from Pittsburgh...

Alfred Lee Crum — President Trump granted Alfred Lee Crum a full pardon....

Crystal Munoz — Today, President Trump commuted Crystal Munoz’s remaining term of supervised release, having previously commuted her sentence of incarceration after she had served 12 years in prison....

Tynice Nichole Hall — President Trump has commuted the remainder of Tynice Nichole Hall’s term of supervised release.... 

Judith Negron — President Trump has today commuted the remainder of Judith Negron’s term of supervised release....

Steve Stockman — Today, President Trump commuted the remaining prison sentence of Steve Stockman....

Duncan Hunter – At the request of many Members of Congress, President Trump granted a full pardon to Duncan Hunter....

Chris Collins – Today, President Trump granted a full pardon to Chris Collins, at the request of many Members of Congress....

Ignacio Ramos and Jose Compean – Today, President Trump granted full pardons to Ignacio Ramos and Jose Compean....

George Papadopoulos – Today, President Trump granted a full pardon to George Papadopoulos....

Alex van der Zwaan – Today, President Trump granted a full pardon to Alex van der Zwaan....

Nicholas Slatten, Paul Slough, Evan Liberty, and Dustin Heard – Today, President Trump granted full pardons to Nicholas Slatten, Paul Slough, Evan Liberty, and Dustin Heard....

Weldon Angelos – Today, President Trump granted a full pardon to Weldon Angelos.... 

Philip Lyman – Today, President Trump granted a full pardon to Philip Lyman....

Otis Gordon – Today, President Trump granted a full pardon to Otis Gordon.... 

Philip Esformes – Today, President Trump commuted the term of imprisonment of Philip Esformes, while leaving the remaining aspects of his sentence, including supervised release and restitution, intact. 

Many of these names are high-profile, and I suspect some of these grants will generate a bit of controversy.  I am particularly excited to see Weldon Angelos' name on this list. It was not that long ago that I was helping Weldon with his 2255 petition while he was incarcerated serving a ridiculous 55-year federal prison term for low-level marijuana dealing.  A few years ago, Weldon was able to secure release from prison, and he has been using his freedom to advocate on behalf of other persons subject to draconian sentences. I am so pleased now he gets to do so without any of the still-onerous collateral consequences that flow from even a low-level drug conviction.

Here are headlines from a few early press reports about these grants:

From The Hill, "Trump pardons individuals charged in Russia probe, ex-GOP lawmakers"

From the New York Times, "Trump Pardons Two Russia Inquiry Figures and Blackwater Guards"

From the Washington Post, "Trump grants clemency to 20 people, including three GOP former members of Congress and two men convicted in the Russia probe"

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

Friday, December 18, 2020

Any predictions on who and how many pardons will be granted by Trump today?

This new Axios piece, headlined "Scoop: Trump pardons expected today," suggests we will see some (significant?) clemency action today from the White House (around 5pm I would guess).  Here is what Axios has to say on the matter:

President Trump plans to issue a wave of pardons today, moving to expedite acts of clemency before Christmas, according to a source with direct knowledge and advocates who have been briefed on the plans.

What to watch: Trump has been considering pardons for friends and allies, as Axios reported, interrupting conversations with associates to spontaneously suggest he add them to his pardon list.  He already pardoned his former national security advisor Michael Flynn.

  • It was unclear who will be included in this batch.
  • Sen. Rand Paul called on Trump to pardon Edward Snowden in an article for The Federalist on Thursday.  A source with direct knowledge of the planning said they did not expect Trump to follow through with a Snowden pardon.

The big picture: Trump has considered several controversial pardons, including for his former campaign chairman Paul Manafort and WikiLeaks founder Julian Assange.

I would expect Prez Trump would be inclined to "save" whatever might prove to be his most controversial pardons for right before he leaves the White House.  But this pre-X-mas reported "wave of pardons" could still prove very interesting, especially because it may reveal whether Prez Trump has any considerable interest in using his clemency powers to dole out a lot of (needed) mercy to folks who are not high-profile offenders with high-profile advocates.

So, just to set a marker and to put a prediction on the record, I will forecast that we will see a few dozen clemency grants (and I am rooting for commutations as well as pardons), with only a few of these grants going to high-profile folks.  This may be a bit of wishful thinking, as his longest previous list of grants came in February and had 11 recipients, with more than a few famous names.  It would be great to see Prez Trump at least double or triple that number today, but I am trying not to get my hopes up.

A few recent related posts:

UPDATE:  As of mid-morning on Saturday, December 19, there has been no announcement of any pardons from the White House. So, the right answers to the questions inthe title of this post are technically "nobody" and "zero."

I suspect the White House is taking a bit more time to check the pardon list, so I remain hopeful we will see a set of clemency grants before Christmas.  But with this issue and this Prez, I am never quite sure what is happening or will happen.

December 18, 2020 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Wednesday, December 16, 2020

Lots of notable pardon headlines as we approach the last month of Prez Trump's clemency powers

In part because Prez Trump has not used his clemency power since last month's Thanksgiving week pardon for Michael Flynn, I have managed to avoid discussing the out-going President's potential pardon spree for many days now.  But there is, unsurprisingly, a cacophony of clemency chatter in various media, and highlighted by these recent piece:

From CNN, "'It's turned crazy': Inside the scramble for Trump pardons"

From the Daily Beast, "Trump Is Considering Clemency for Silk Road Founder"

From Forbes, "Trump And Pardons ... Here’s A Case That Might Interest Him"

From Inquisitr, "Justin Amash Calls On Donald Trump To Offer Clemency To Reality Winner: ‘Her Punishment Is Unjust’"

From Newsweek, "Will Donald Trump Pardon Edward Snowden? 'Anything Is Possible'"

From the New Yorker, "What are the Odds That Trump Pardons Himself?"

From WION, "Australian MP urges Donald Trump to pardon Julian Assange before leaving White House"

Here is a snippet from the CNN piece:

Because Trump has shown little interest in using the Justice Department's Pardon Attorney system for assessing requests for executive clemency, petitioners are approaching the White House directly, calling or emailing senior adviser Jared Kushner, chief of staff Mark Meadows or White House counsel Pat Cipollone -- when they can't get ahold of Trump himself....

If there is a governing principle in who appears most likely to secure clemency, it is someone the President either knows personally or who has powerful connections lobbying on their behalf.  At least one person working on behalf of clients seeking pardons said they hoped their loyalty to Trump over the past four years would pay off now.

As it happens, Trump is mulling the pardons at a juncture when loyalty appears his principal concern, complaining repeatedly over the past weeks that Republicans are deserting him when he needed them to help overturn the election results.  He has largely frozen out those advisers and associates who do not seem on the same page.  One person who used to speak to Trump regularly, but who delicately encouraged him to soften his post-election stance, no longer has his calls returned and hasn't heard from Trump in weeks.

In all, the President is considering pardons for more than two dozen people in his orbit whom he believes were targeted -- or could be targeted in the future -- for political ends. That's in addition to hundreds of requests from others who have approached the White House directly, and tens of thousands more whose petitions are pending at the Justice Department.

A few recent related posts:

December 16, 2020 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)