Sentencing Law and Policy

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

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

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

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

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

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

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

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

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

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

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

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

Prior related post:

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

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

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

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

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

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

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

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

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

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

Clemency Recipient List

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Prior related posts from October 2022:

• October surprise: Prez Biden announces he is "pardoning all prior federal offenses of simple marijuana possession"! Wow!
• A few more details about President Biden's mass pardon of federal offenses of simple possession of marijuana
• Rounding up a few (of many) reactions to Prez Biden's marijuana possession pardons
• Prez Biden's one miss in his marijuana moves: failing to urge Congress to move on federal record relief mechanisms
• US Sentencing Commission produces "additional analyses" of those receiving federal marijuana possession pardons

New Pennsylvania Gov announces his capital punishment abolitionist plans

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Another round of holiday season clemency news

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

From Massachusetts, "Baker recommends another round of pardons"

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Panelists:

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

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

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

Moderator:

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

Sobering numbers from "mass" marijuana pardon efforts in Pennsylvania

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

• Clemency criticisms as Prez Biden's record is now turkeys 2, humans 0 
• Hasn't Prez Trump has already pardoned a turkey before this week's traditional ceremony?
• Pardon people, not turkeys: Under President Obama, the odds of clemency or commutation are shamefully slim
• Justified complaints that Obama's first pardon will be of a turkey
• Shouldn't the turkeys have been named Scooter and Libby?

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

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

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

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

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

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

Panelists:

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

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

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

Moderator:

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

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

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

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

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

Some (or many) prior related posts: 

• Thinking about sentenced troops on Veterans Day
• How many vets, after serving to secure liberty, are now serving LWOP sentences?
• My amicus effort to support our troops 
• Should prior military service reduce a sentence?
• How about a few clemency grants, Prez Obama, to really honor vets in need on Veterans Day?
• "Roughly one in 12 people in America’s prisons and jails is a veteran" 
• Eager to honor our veterans caught up in our nation's massive criminal justice systems 
• Making the case for criminal justice reform as a way to honor those who served on Veterans Day
• New CCJ commission to examine factors driving veterans' involvement in criminal justice system 

"Dresser Drawer Pardons: Pardons as Private Acts"

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Prior recent related posts:

• October surprise: Prez Biden announces he is "pardoning all prior federal offenses of simple marijuana possession"! Wow!
• A few more details about President Biden's mass pardon of federal offenses of simple possession of marijuana
• Rounding up a few (of many) reactions to Prez Biden's marijuana possession pardons
• Prez Biden's one miss in his marijuana moves: failing to urge Congress to move on federal record relief mechanisms
• US Sentencing Commission produces "additional analyses" of those receiving federal marijuana possession pardons
• Might the recent marijuana pardons by Prez Biden "make things worse for criminal legal reform"? 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

US Sentencing Commission produces "additional analyses" of those receiving federal marijuana possession pardons

In an update to this post last week, I noted that the US Sentencing Commission had produced this three-page analysis of "data relating to offenders sentenced between fiscal year 1992 and fiscal year 2021 convicted of at least one count of simple possession involving marijuana."  That analysis explained where "senior administration officials" were getting the talking point that around 6500 people were going to benefit from President Joe Biden's decision to grant a blanket pardon to "all current United States citizens and lawful permanent residents who committed the offense of simple possession of marijuana in violation of the Controlled Substances Act"  That USSC accounting also led me to wonder if we might ever get "race and gender and age and criminal history information" regarding this now-pardoned population.

Excitingly, late yesterday the US Sentencing Commission issued this news advisory announcing that it had completed "additional analyses" of the pardoned population "providing additional information on demographics and geographic distribution."  The additional USSC analyses include race and gender data (but no age and criminal history data), and the biggest story in the new analyses seems to be that the pardoned population is comprised of more Whites (41.3%) and Hispanics (31.8%) than Blacks (23.6%).  This reality may be a bit surprising given that the ACLU has repeatedly documented that states have in recent decades arrested Blacks at nearly four times the rate as whites (see here and here).  But since most federal marijuana possession offenses are concentrated near the border or on federal property (like military bases and national parks), this racial distribution perhaps should not be all that surprising.

Prior related posts:

• October surprise: Prez Biden announces he is "pardoning all prior federal offenses of simple marijuana possession"! Wow!
• A few more details about President Biden's mass pardon of federal offenses of simple possession of marijuana
• Rounding up a few (of many) reactions to Prez Biden's marijuana possession pardons
• Prez Biden's one miss in his marijuana moves: failing to urge Congress to move on federal record relief mechanisms

Prez Biden's one miss in his marijuana moves: failing to urge Congress to move on federal record relief mechanisms

I was fairly impressed with how Prez Biden decided to craft and announce his marijuana possession pardons last week (basics here and here).  Blanket pardons are rare, especially in modern times, but they have a rich American history (see the great list in Charles Shanor & Marc Miller, Pardon Us: Systematic Presidential Pardons, 13 Federal Sentencing Reporter 139, 140 (2001)).  And to couple these pardons with an expedited review of marijuana's Schedule I status, which is overdue, could have a huge future impact on federal marijuana policy. 

It also struck me as notable and important that Prez Biden further called upon state Governors to follow his pardoning lead, and he did so right after he referenced the enduring consequences of even low-level marijuana convictions in this official statement:  "There are thousands of people who have prior Federal convictions for marijuana possession, who may be denied employment, housing, or educational opportunities as a result.  My action will help relieve the collateral consequences arising from these convictions."  Of course, even the lowest-level state marijuana convictions also can carry an array of collateral consequences, which I discussed a bit in my (now very dated) 2018 article "Leveraging Marijuana Reform to Enhance Expungement Practices."

But, in some conversations about record relief at the state level, it dawned on me that Prez Biden's work also was a missed opportunity to give Congress some prodding along with state Governors and his own agencies.  Specifically, one reason some state Governors might not feel a huge need to pardon marijuana possession offenders is the fact that most every state has some legislative/court mechanism to seal or expunge low-level convictions, and many of these mechanisms have been expanded in recent years.  But, at the federal level, there are no general record relief laws in place (though a number of bills have been proposed to remedy this legal gap).  As the folks at the Collateral Consequences Resource Center have explained in recent recommendations to Congress: 

Since 2013, most states have either expanded record relief laws enacted in the 1970’s or enacted relief for the first time.  States have tailored eligibility and procedures to the specific type of record, and more than a dozen have authorized automatic relief for certain records.  Record remedies are now authorized in almost every state and apply to many types of criminal records. The popularity of court-managed diversion is growing, and many states also offer judicial or administrative certificates to restore lost rights.

Yet Congress has thus far failed to act, leaving those with federal convictions without remedy short of a presidential pardon, and those with federal non-conviction records without any remedy at all.  In addition, many areas of federal law fail to recognize or give effect to state relief.

Prez Biden is right to be deeply concerned about the collateral consequences arising from even the lowest-level drug convictions, but he should know that federal clemency efforts are not the only or even the best way to address these concerns.  Rather, Congress needs to step up and start moving forward with the many bills proposing some form of federal record relied (the Clean Slate Act and the Fresh Start Act are some notable bills in this space, but there are a lot more possibilities).  And Prez Biden's announcement of his marijuana possession pardons would have been an especially timely opportunity for him to urge Congress to get a bill to his desk on this front.

Arguably this is a nit-pick, complaining about the federal record relief dog that did not bark when Prez Biden made his pardon announcement.  But that announcement has received a lot of attention from the press and others, and yet I do not think I have seen any new discussion of the absence of any general federal record relief mechanism.  This ugly gap in federal law merits a lot more attention, and so I cannot help but lament this missed opportunity.

Prior related posts:

• October surprise: Prez Biden announces he is "pardoning all prior federal offenses of simple marijuana possession"! Wow!
• A few more details about President Biden's mass pardon of federal offenses of simple possession of marijuana
• Rounding up a few (of many) reactions to Prez Biden's marijuana possession pardons

Rounding up a few (of many) reactions to Prez Biden's marijuana possession pardons

President Joe Biden's marijuana actions on Thursday (basics here and here) were sure to generate a lot of buzz (pun intended?), and it would be impossible here to round up all of the reactions.  So I will be content here to just flag a few pieces that caught my eye:

From the AP, "Racial equity in marijuana pardons requires states’ action"

From Axios, "The politics of Biden's marijuana pardons"

From Fox News, "North Carolina governor pushes to legalize marijuana possession after Biden pardons: 'End this stigma'"

From Law Dork, "Biden's marijuana moves: The good, the bad, and the ugly"

From Marijuana Moment, "Will Governors Issue Marijuana Pardons Following Biden’s Call To Action? Dozens Are Already Weighing In"

From Reason.com, "Biden's Marijuana Reforms Are Long Overdue but Will Have Just a Modest Impact"

From Yahoo! Entertainment, "Bill Maher High-Fives Biden for Marijuana Pardons: Pot-Smokers ‘Do Show Up to Vote’"

In the wake of historic pardons, noticing the federal prison population keeps growing during the Biden years

As a matter of pardon practice and marijuana policy, President Joe Biden's actions yesterday (basics here and here) qualify as both historic and consequential.  But, because nobody receives significant federal prison time for just simple marijuana possession, his mass pardon has absolutely no direct impact on the federal prison population.  I suspect some persons imprisoned for marijuana trafficking might cite the pardons in compassionate release motions, but I doubt these pardons alone will significantly impact how judges thinking about compassionate release issues.

More broadly, the same day as this pardon announcement, I thought to check the prison population numbers that the federal Bureau of Prisons updates weekly at this webpage.  As of October 6, 2022, the federal prison population clocks in at 158,949, which is the highest it has been since July 2020.   

The day after Joe Biden was inaugurated, I authored this post posing this question in the title: "Anyone bold enough to make predictions about the federal prison population — which is now at 151,646 according to BOP?".  That post highlighted notable recent realities about the the federal prison population (based on BOP data); there I highlighted that during Prez Trump's one term, the federal population count decreased almost 20%, dropping from 189,212 total federal inmates in January 2017 to 151,646 in January 2021. 

The dramatic federal prison population drop in the Trump years was largely a function of the FIRST STEP Act and especially COVID dynamics.  So, with COVID disruptions easing, it should not be too surprising to see some growth in the federal prison population.  Still, over the course of 21 months, we have now had the federal prison population grow over 7,300 persons, which amounts to federal population growth of almost 5%.  So, while I am eager to celebrate Prez Biden for getting out his clemency pen, there is still plenty more work to do.

A few more details about President Biden's mass pardon of federal offenses of simple possession of marijuana

As noted in this prior post, Prez Biden today granted a mass pardon to "all prior Federal offenses of simple possession of marijuana."  This official proclamation, titled "A Proclamation on Granting Pardon for the Offense of Simple Possession of Marijuana," provides some who and how details:

Acting pursuant to the grant of authority in Article II, Section 2, of the Constitution of the United States, I, Joseph R. Biden Jr., do hereby grant a full, complete, and unconditional pardon to (1) all current United States citizens and lawful permanent residents who committed the offense of simple possession of marijuana in violation of the Controlled Substances Act, as currently codified at 21 U.S.C. 844 and as previously codified elsewhere in the United States Code, or in violation of D.C. Code 48–904.01(d)(1), on or before the date of this proclamation, regardless of whether they have been charged with or prosecuted for this offense on or before the date of this proclamation; and (2) all current United States citizens and lawful permanent residents who have been convicted of the offense of simple possession of marijuana in violation of the Controlled Substances Act, as currently codified at 21 U.S.C. 844 and as previously codified elsewhere in the United States Code, or in violation of D.C. Code 48–904.01(d)(1); which pardon shall restore to them full political, civil, and other rights. 

My intent by this proclamation is to pardon only the offense of simple possession of marijuana in violation of Federal law or in violation of D.C. Code 48–904.01(d)(1), and not any other offenses related to marijuana or other controlled substances.  No language herein shall be construed to pardon any person for any other offense, including possession of other controlled substances, whether committed prior, subsequent, or contemporaneous to the pardoned offense of simple possession of marijuana.  This pardon does not apply to individuals who were non-citizens not lawfully present in the United States at the time of their offense.

Pursuant to this proclamation, the Attorney General, acting through the Pardon Attorney, shall administer and effectuate the issuance of certificates of pardon to eligible applicants who have been charged or convicted for the offense of simple possession of marijuana in violation of the Controlled Substances Act, as currently codified at 21 U.S.C. 844 and as previously codified elsewhere in the United States Code, or in violation of D.C. Code 48–904.01(d)(1).  The Attorney General, acting through the Pardon Attorney, is directed to develop and announce application procedures for certificates of pardon and to begin accepting applications in accordance with such procedures as soon as reasonably practicable.  The Attorney General, acting through the Pardon Attorney, shall review all properly submitted applications and shall issue certificates of pardon to eligible applicants in due course. 

Helpfully, the Justice Department's Office of the Pardon Attorney has this extended Q&A about the reach of the pardon proclamation, and here are some interesting parts:

Does the proclamation apply to convictions under state law?  

No. President Biden’s proclamation does not pardon convictions under state law, although it does apply to possession of marijuana convictions under the District of Columbia’s criminal code.  

Does the proclamation apply to all types of federal marijuana offenses?  

No. President Biden’s proclamation applies only to simple possession of marijuana offenses. Conspiracy, distribution, possession with intent to distribute, and other charges involving marijuana are not pardoned by the Proclamation.  

Do I qualify for a pardon if I was convicted under 21 U.S.C. § 844 of possessing marijuana and another drug in a single offense?  

No. The proclamation does not apply to persons who were convicted of possessing multiple different controlled substance in the same offense. For example, if you were convicted of possessing marijuana and cocaine in a single offense, you do not qualify for pardon under the terms of President Biden’s proclamation. If you were convicted of one count of simple possession of marijuana and a second count of possession of cocaine, President Biden’s proclamation applies only to the simple possession of marijuana count, not the possession of cocaine count.  

Does the proclamation apply to charges that are currently pending as of October 6, 2022? 

Yes. President Biden’s Proclamation applies if the qualifying offense occurred on or before October 6, 2022, even if a conviction has not been obtained by that date.  

Does the proclamation protect me from being charged with marijuana possession in the future? 

No. The proclamation pardons only those offenses occurring on or before October 6, 2022. It does not have any effect on marijuana possession offenses occurring after October 6, 2022. 

In various press reports, I keep seeing some version of this accounting of the impact from this ABC News piece:

The executive action will benefit 6,500 people with prior federal convictions and thousands of others charged under the District of Columbia's criminal code, according to senior administration officials.  Elaborating on the number of people affected, officials said "there are no individuals currently in federal prison solely for simple possession of marijuana."

I presume that the US Pardon Attorney will keep detailed records of how many people end up acquiring certificates of pardon (though all these people have been pardoned, a certificate just serves as a way to get an official memorialization of that fact).  And I would love to see more details, now or later, about some of the demographics of the estimated population who got these pardons.  Someone has clearly run the numbers, though I suspect any accounting here is a bit of a guess and also lacks as much demographic information as might be really interesting.

UPDATE: Thanks to commentor atomicfrog, I just saw that the US Sentencing Commission has produced this three-page analysis of "data relating to offenders sentenced between fiscal year 1992 and fiscal year 2021 convicted of at least one count of simple possession involving marijuana."  The analysis merely details yearly convictions since 1992 with number of convictions of US citizens and lawful permanent residents.  The data is more than a bit inscrutable in part because there are three charts for which the relationship to each other is unclear and because of a note stating that "2,085 cases were excluded from the three analyses in this report due to missing information relating to citizenship."

Since these data are from the US Sentencing Commission, the data sets used for these analyses ought to have race and gender and age and criminal history information.  Perhaps in time the US Sentencing Commission or the White House will look to provide additional demographic information here.   Also, now seeing that the mid-1990s brought as many as 500 federal marijuana possession convictions per year, I suspect there were at least few thousand more prior relevant convictions not captured in these data but subject to coverage by the mass pardon from Prez Biden.  I am tempted to start saying that it looks like 10,000 or more pardons were actually announced by the President in this initiative.

Spotlighting one Governor's notable clemency track record

The Guardian has this notable lengthy new piece, fully headlined "The story of one US governor’s historic use of clemency: ‘We are a nation of second chances’; Kate Brown has granted more commutations or pardons than all of Oregon’s governor from the last 50 years combined."  I recommend the full piece, and here is how it starts:

Last October, Kate Brown, the governor of Oregon, signed an executive order granting clemency to 73 people who had committed crimes as juveniles, clearing a path for them to apply for parole.

The move marked the high point in a remarkable arc: as Brown approaches the end of her second term in January, she has granted commutations or pardons to 1,147 people – more than all of Oregon’s governors from the last 50 years combined.

The story of clemency in Oregon is one of major societal developments colliding: the pressure the Covid-19 pandemic put on the prison system and growing momentum for criminal justice reform.

It’s also a story of a governor’s personal convictions and how she came to embrace clemency as a tool for criminal justice reform and as an act of grace, exercising the belief that compassionate mercy and ensuring public safety are not mutually exclusive.

“If you are confident that you can keep people safe, you’ve given victims the opportunity to have their voices heard and made sure their concerns are addressed, and individuals have gone through an extensive amount of rehabilitation and shown accountability, what is the point of continuing to incarcerate someone, other than retribution?” Brown said in a June interview.

Should pardon enable pharmacist convicted of federal fraud to claw back restitution already paid?

A helpful reader made sure I did not miss this interesting news story from Georgia regarding the uncertain aftermath of a presidential pardon.  The piece is headlined, "Trump pardoned him; now Ga. man sues state, insurer for half-million," and here are in the details:

In his final days in the White House, then-President Donald Trump pardoned dozens of people, including former Augusta pharmacist John Duncan Fordham who was convicted of defrauding the state of Georgia and ordered to pay $1 million in restitution.

Fordham spent four years in prison after his 2005 health care fraud conviction, and his assets were seized and liquidated to help make whole the state and a private insurance company he had defrauded. At the time of his January 2021 pardon, Fordham had made good on $531,000 in restitution payments.

And while the pardon erased the nearly half million he and company still owed, that wasn’t good enough for Fordham. On Thursday, he took the unusual step of suing the state and the insurance company to pay him the hundreds of thousands he had already paid in restitution, claiming that Trump’s pardon had entitled him to recover the funds — plus interest.

“I’m not sure that I’ve heard of a case of reimbursement,” said Michigan State University law professor Brian Kalt, an expert on presidential pardons.

Fordham was convicted of taking part in a fraud scheme in which former state Rep. Robin Williams, R-Augusta, steered a lucrative contract with the East Georgia Community Mental Health Center to Fordham, in exchange for generous kick backs to the former lawmaker. Williams was also convicted and sentenced to federal prison....

In addition to the nearly $500,000 that were seized following his conviction, Fordham had continued to make monthly payments totaling $46,000 until Trump’s pardon, the complaint says. He paid roughly $259,000 to the Georgia Department of Administrative Services, an agency that provides financial services to state and local government entities and a defendant in Fordham’s suit. Fordham paid Great American Insurance Company, the other defendant in his suit, $272,000 in restitution, records show.

Kalt said that the presidential pardon cleared Fordham of responsibility to continue to pay restitution, but it seems unlikely that a federal court will agree that the pardon entitles him to claw back payments he had already made. “It’s unclear, but it seems doubtful to me that he’ll be able to get the money back,” Kalt said.

I understand Professor Kalt's first instinct that this pardoned individual should not be able to get back restitution already paid; after all, this individual cannot "get back" the four years he already served in prison.  But, of course, money can be returned whereas time cannot.  And, if one concludes that the pardon here serves to wipe out the remaining restitution owed that had not yet been paid, I am not sure why logic does not suggest that the pardon also serves to wipe out the already paid restitution.

Notably, Prez Trump's grant of clemency provided for a "full and unconditional pardon" for Fordham's conviction and it mentioned the entire full restitution amount that was part of the sentence imposed.  I find myself somewhat drawn to the notion that the law should aspire to give as much effect to a clemency grant as possible, including enabling Fordham to claw back even restitution already paid.  But perhaps we ought to view clemency as a classic example of equity over law, and so perhaps we best achieve equity by wiping out only future restitution still owed without returning restitution already paid.

Oklahoma Gov reject's state board's clemency recommendation for first of many scheduled to be executed in coming months

As reported in this CNN piece, "Oklahoma's governor has declined to grant clemency to death row inmate James Coddington, whose scheduled execution Thursday is set to be the first of 25 the state plans to carry out through 2024."  Here is more:

Coddington, 50, was sentenced to death for the 1997 murder of Albert Hale -- a man he considered his friend -- while struggling with a crack cocaine addiction. His attorneys and advocates had called for his sentence to be commuted to life in prison, pointing to his case as one of redemption.  Coddington long has expressed sincere remorse for killing Hale, they say, and has worked to transform his life while on death row.

Coddington's remorse, an "exemplary" prison record and his traumatic childhood were among the mitigating factors his supporters highlighted before the Oklahoma Board of Pardons and Parole this month recommended clemency in his case, leaving the final decision up to GOP Gov. Kevin Stitt.  "After thoroughly reviewing arguments and evidence presented by all sides of the case, Governor Kevin Stitt has denied the Pardon and Parole Board's clemency recommendation for James Allen Coddington," a brief statement from the governor's office said.

Emma Rolls, one of Coddington's attorneys, said the inmate and his legal team were "profoundly disheartened" by the governor's decision, but thanked the parole board for its "careful consideration" of Coddington's case.  Its clemency recommendation "acknowledged James's sincere remorse and meaningful transformation during his years on death row," she said. "James is loved by many people," Rolls said in a statement to CNN, "and he has touched the hearts of many. He is a good man."

Coddington, whose execution by lethal injection is scheduled for Thursday at 10 a.m. CT, will be the first of more than two dozen inmates to be put to death in a controversial series of executions Oklahoma officials plan to carry out between now and December 2024 -- at a pace of about one man a month. Opponents and experts have been critical of the plan, pointing to outstanding questions of some inmates' potential innocence or mental fitness, as well as the state's recent history of botched lethal injections....

"Oklahomans overwhelmingly voted in 2016 to preserve the death penalty as a consequence for the most heinous murders," Oklahoma Attorney General John O'Connor said in a July 1 statement as the execution dates were set. "I'm certain that justice and safety for all of us drove that vote."...

Hale's family did not support clemency -- though his son said at Coddington's clemency hearing he had forgiven the man who murdered his father. "I am here to say that I forgive James Coddington," Mitch Hale said during Coddington's clemency hearing, according to CNN affiliate KOCO. "But my forgiveness does not release him from the consequence of his actions." O'Connor was "disappointed" by the board's ruling, he said in a statement at the time.

Prior recent related posts:

• Oklahoma death row inmates lose their Eighth Amendment claims against state's lethal injection protocol 
• Oklahoma Attorney General requests execution schedule for 25 death row inmates 
• Will Oklahoma carry out over two dozen executions over the next couple years?
• Oklahoma board recommends clemency for first of many scheduled to be executed in coming months 

Oklahoma Gov grants 60-day execution stay for Richard Glossip while courts consider innocence claim

As reported in this AP piece, "Oklahoma Gov. Kevin Stitt granted death row inmate Richard Glossip a 60-day stay of execution on Tuesday while a state appeals court considers his claim of innocence."  Here is more:

Stitt signed an executive order delaying Glossip’s execution for the 1997 killing of Glossip’s boss, motel owner Barry Van Treese, that was scheduled for Sept. 22. “This stay is granted to allow time for the Oklahoma Court of Criminal Appeals to address a pending legal proceeding,” the order states.

A Stitt spokeswoman declined to comment on the governor’s decision, which also means that a clemency hearing before the Oklahoma Pardon and Parole Board that was scheduled for next week will be delayed.

Glossip asked the Oklahoma Court of Criminal Appeals for a new evidentiary hearing following the release of an independent investigation by Houston law firm Reed Smith that raised new questions about his guilt. The firm’s report did not find any definitive proof of Glossip’s innocence, but raised concerns about lost or destroyed evidence and a detective asking leading questions to Glossip’s co-defendant, Justin Sneed, to implicate Glossip in the slaying. Sneed admitted killing Van Treese but said he did so at Glossip’s direction. Sneed was sentenced to life in prison and was a key witness against Glossip....

Glossip, now 59, has long maintained his innocence. He has been scheduled to be executed three separate times, only to be spared shortly before the sentence was set to be carried out. He was just hours from being executed in September 2015 when prison officials realized they had received the wrong lethal drug, a mix-up that helped prompt a nearly seven-year moratorium on the death penalty in Oklahoma.

Notable Oregon Court of Appeals ruling upholds broad clemency grants against legal challenges

Fans of clemency law and history will want to be sure to check out a big recent ruling by the Oregon Court of Appeals in Marteeny v. Brown, 321 Or App 250 (Aug. 10, 2022) (available here). The start of the 40+-page opinion provides an effective overview of its coverage:

In 2020 and 2021, Oregon Governor Kate Brown granted clemency to approximately 1,026 convicted felons, comprising three groups: (1) individuals “vulnerable to the effects of COVID-19,” (2) individuals who had fought “the historic wildfires that ravaged the state around Labor Day 2020,” and (3) 73 individuals who were sentenced as juveniles before the passage of Senate Bill (SB) 1008 (2019), sec-25 of which was codified as ORS 144.397.  SB 1008 made substantial changes to the prosecution and sentencing of juvenile offenders, including providing for early release hearings, conducted by the Board of Parole and Post-Prison Supervision (BOPPS), after 15 years of incarceration. The legislature did not make SB 1008 retroactive.  The effect of the Governor’s commutation order for these 73 individuals was to afford them the same procedure, under ORS 144.397, that would be afforded to a juvenile offender convicted today.

Two groups of relators — Douglas Marteeny, Linn County District Attorney, and Patricia Perlow, Lane County District Attorney (the DA relators), and four family members of victims of the crimes of which the some of the youth prisoners were convicted (the victim relators) — petitioned the Marion County Circuit Court for a writ of mandamus directing the Governor, the Department of Corrections (DOC), the Oregon Youth Authority (OYA), and BOPPS “to honor and follow all procedural and substantive provisions of Oregon law.”  In their legal arguments, relators argue that the commutations here were procedurally flawed, and unlawful for a variety of reasons that we detail below.  But underlying those technical arguments exists a palpable emotion that deserves acknowledgement: relators feel that they have been denied justice.

As we detail below, the clemency power of presidents and governors traces its origins to the earliest days of English common law.  The arguments and emotions present in this case echo through the centuries.  The power to pardon, sitting within a singular executive — be they monarch, president, or governor — has always been controversial, seemingly at odds with legislative determination and judicial decision-making.  Whenever it has been used, it has lauded by some, and condemned by others.  We are not called here to judge the wisdom of the Governor’s clemency of these 953 individuals; that is a political question.  We are tasked solely with determining her authority to do so under Oregon law.  And on that narrow question, we conclude that the commutations at issue here were a lawful exercise of the broad clemency power afforded Oregon governors by constitution and statute.

Oklahoma board recommends clemency for first of many scheduled to be executed in coming months

As noted in this post last month, Oklahoma has scheduled 25 executions over the next few years after the ending a moratorium on lethal injections.  The first of these executions is scheduled for later this month.  But, as this new local article reports, the Oklahoma Pardon and Parole Board voted Wednesday to spare the life of the condemned scheduled to be execution on August 25.  Here are the details:

James Coddington addressed the board himself and expressed remorse for killing his friend, 73-year-old Albert Hale, at Hale’s Choctaw residence in 1997 after Hale refused to give Coddington money for drugs.  “The person that he welcomed into his home was not me, it was a shell of me.  It was a drug addict that didn’t deserve his friendship,” said Coddington.

Hale’s family spoke about their loss to the board.  Son Mitch Hale said he’s forgiven Coddington but the murder devastated the family.  “Not only did he brutally kill a kind, gentle, elderly man, he also killed our family.  When he took my father’s life, he completely destroyed the gathering place and tradition of five generations,” said Hale.

Board member Edward Konieczny, appointed by Gov. Kevin Stitt in Jan., joined Richard Smothermon and Larry Morris in voting for clemency.  Cathy Stocker and Scott Williams voted to deny clemency.

Konieczny cited exceptional childhood abuse, as well as Coddington’s age of 24 years at the time of the murder as concerns. “I certainly want to hear from my colleagues.  We’ve had a number of trainings and conversations around the maturation of a person’s brain and also the impact of abusive environments.  In this particular case, it’s not just somebody suggesting that.  We have documentation of what could be considered extraordinary drug and alcohol and physical and emotional abuse.  I would just appreciate hearing from some of my other colleagues,” said Konieczny....

Smothermon, who has thus far voted to deny clemency to every death row inmate, said how people endure abuse in similar situations matters to him. “Given that environment, what is the resulting actions of other people or children that were in that environment and how did they turn out?”...

Cathy Stocker, appointed by Stitt in Mar., said Coddington’s background was already considered in court and so she voted to deny clemency. Before voting no, Scott Williams acknowledged that Coddington, who earned his GED in prison in 2002, had changed for the better.  “Just from what we’ve seen, I’d say there’s definitely been some change there and he’s had an exemplary record for a number of years.  At the same time, that doesn’t take away from all of the facts and everything we have to consider today,” said Williams....

The board’s clemency suggestion will go to Stitt to decide.  Coddington is still scheduled for execution Aug. 25.

Prior recent related posts:

• Oklahoma death row inmates lose their Eighth Amendment claims against state's lethal injection protocol 
• Oklahoma Attorney General requests execution schedule for 25 death row inmates 
• Will Oklahoma carry out over two dozen executions over the next couple years?

New NY Gov so far has ugly clemency record like last NY Gov

Roughly a year ago, anticipating the resignation of disgraced NY Gov Andrew Cuomo, I wondered in this post whether a change in New York leadership might lead to a better record on clemency.  As noted in that post, Cuomo had talked big about NY clemency efforts in 2015 and again in 2017, but he never thereafter delivered any significant results.  This new press piece, headlined "Governor Hochul’s ‘Rolling’ Clemency Process Has Set Just One Person Free," suggests that there is little reason for new clemency optimism with the new NY Gov.  Here is an excerpt:

In 2015, Cuomo announced the formation of the state’s executive clemency bureau to identify people who might be worthy of commutation. His announcement encouraged thousands serving decades-long sentences across the state to ask for clemency.  By the time Cuomo left office last year, the clemency bureau had received more than 10,000 applications ... [but] Cuomo issued only a total of 41 commutations in response.

When Kathy Hochul took office, those seeking clemency — and their loved ones — hoped that she would show more compassion than her predecessor.  On Christmas Eve 2021, Governor Hochul announced plans to devote additional staff resources into clemency and create an advisory panel.  She also declared that she would grant clemency on "a rolling basis" rather than only once each year.  That day she granted nine pardons and one commutation.  The singular commutation devastated many behind bars — and outraged family members and advocates — who had hoped for more.

Seven months later, Hochul has granted no other clemencies. Since becoming governor, her office has received 286 applications for commutations, and 82 for pardons.  At an event in mid-July, the governor told reporters that her office was overhauling the clemency system, including creating uniform applications for commutations and pardons, and instituting a process notifying applicants of their status.  She also said that she was still considering who to appoint for her clemency advisory board.  "It’s not an overnight process, but it’s one that’s going to be thoughtful, and one that will be long-term enduring," Hochul said.

The delays are frustrating advocates who have been working for years to push the governor’s office to fully exercise its executive power to grant more clemencies.  "There are fully vetted, powerful, robust applications, hundreds on her desk, so if she wanted to do it, they’re there," said Steve Zeidman, co-director of the CUNY Law School’s Defenders Clinic Second Look Project.  "We filed some going back four or five years that we supplement from time to time. It's not as if there aren't applications. It's just the will to do it."

Some prior related posts:

• Despite creating lots of clemency hope, NY Gov Cuomo delivers little clemency relief 
• "Cuomo's Clemency and Cruelty of False Hope"
• Might "big change" in New York leadership include a better record on clemency? 

Might Prez Biden wisely focus on marijuana offenders for his next clemency efforts?

It has now been almost a full three months since, as noted here, Prez Biden in April 2022 made his first and only use of his historic clemency powers.   Though I was disappointed that it took Prez Biden 15+ months in office before using his clemency pen, I was hopeful the large number of grants (three pardons and 75 commutations) might be a sign of things to come.  But now, three months later, I am fearful that Prez Biden will continue to fail to live up to his campaign promise to "broadly use his clemency power for certain non-violent and drug crimes."

Still, as the question in the title of this post is meant to suggest, there would seem to be a unique opportunity for Prez Biden to focus clemency efforts on a particular group of individuals convicted of "non-violent and drug crimes," namely marijuana offenders.  This group is on my mind in part because of this recent press release which highlights the "the ongoing collaboration between The Weldon Project, National Cannabis Roundtable and other partners to secure clemency for individuals convicted on federal marijuana offenses."  Here is the start of the release:

The Weldon Project’s MISSION [GREEN] and The National Cannabis Roundtable (NCR) today announced the launch of the Cannabis Clemency Campaign, an initiative that will encourage the Biden Administration and Congress to advance policies that would grant clemency to qualifying individuals who have been convicted on federal cannabis charges. The campaign will also facilitate collaboration with marijuana clemency experts and academics, kicking off with a marijuana clemency symposium in Washington, D.C. on July 20th.

“Through clemency, President Biden has an opportunity to deliver justice for the thousands of Americans who have been impacted by federal cannabis prohibition and punitive sentencing practices,” said Weldon Angelos, President and co-founder of The Weldon Project. “This would fulfill one of President Biden’s campaign pledges and send a powerful message about this Administration’s dedication to criminal justice reform. I’m proud to formally launch this campaign alongside the National Cannabis Roundtable, and look forward to working together to redress the harm done by federal marijuana prohibition.”

I have the great honor of participating in the symposium mentioned in this release, and I am hopeful that it will help Prez Biden come to see that it is never too late and always the right time for sound use of his clemency powers. 

A few on many prior related posts:

• On Presidents Day, coalition calls for Prez Biden to issue "a general pardon to all former federal, non-violent cannabis offenders in the U.S."
• New letter with prominent signers urges Prez Biden to pardon all non-violent marijuana offenders 
• New Federal Sentencing Reporter issue considers "After Trump: The Future of the President’s Pardon Power"
• Justice Department has new Pardon Attorney who is a former public defender ... which means ...? 
• Wouldn't a few marijuana offenders be a "light lift" for Prez Biden's first clemency grants? 

Condemned Texas inmate seeks execution delay in order to donate kidney

I have blogged in the past about a few persons on death row in various states who have sought delays in their execution in order to donate an organ (examples here and here).  This new press article discusses another example now from Texas:

A Texas man on death row is seeking a delay in his upcoming execution so that he can donate one of his kidneys.  Ramiro Gonzales, 39, is scheduled to die by lethal injection on July 13 for his role in a 2001 murder, according to the Associated Press.  On Wednesday, Gonzales’ attorneys made several requests to delay his execution, including one that relies on Gonzales’ stated desire to donate a kidney.

Attorneys Thea Posel and Raoul Schonemann specifically asked Governor Greg Abbott for a 30-day reprieve so that Gonzales could be considered for the organ donation, which could potentially be used to help “someone who is in urgent need of a kidney transplant.”

The lawyers noted that Gonzales was evaluated by the University of Texas Medical Branch’s transplant team in Galveston, Texas, who reportedly determined that Gonzales was an “excellent candidate” for donation due in part to a rare blood type.  “Virtually, all that remains is the surgery to remove Ramiro’s kidney,” attorneys wrote in their request to Abbott.  “UTMB has confirmed that the procedure could be completed within a month.”

Posel and Shonemann submitted a separate request for a 180-day reprieve to the Texas Board of Pardons and Paroles for the same reason.  “For the past year and a half, our client Ramiro Gonzales has actively sought to become an organ donor prior to his scheduled execution,” Posel and Schonemann said in a statement e-mailed to Oxygen.com.  “In keeping with his deeply held religious convictions, Ramiro seeks to atone for the life he has taken by sustaining life for another person in need.”

Speaking with the Associated Press, Texas Department of Criminal Justice spokesperson Amanda Hernandez said that Gonzales had unsuccessfully made requests to donate his kidney earlier this year. Although a specific reason for the denial wasn’t provided, Posel and Schonemann said the earlier decision was related to the date of Gonzales’ execution.

Though the Texas Department of Criminal Justice does allow some inmates to donate organs and tissues, per the Associated Press, it does not allow prisoners on death row close to their execution date to making living organ donations, according to the Texas Tribune — and medical ethicists and organ donation organizations have previously refused such donations in any case. (Posthumous organ donations by those executed are also not allowed, as NBC News noted, because the contents of a lethal injection and waiting until a condemned prisoner's heart stops could harm the organs intended for transplant, even if they could be ethically collected from the point of execution.)...

In their bid to Gov. Abbott, Posel and Schonemann — who both work with the University of Texas’s Capital Punishment Clinic at the School of Law in Austin — included a letter from Maryland-based cantor and chaplain Michael Zoosman, who regularly corresponds with Gonzales. “There has been no doubt in my mind that Ramiro’s desire to be an altruistic kidney donor is not motivated by a last-minute attempt to stop or delay his execution,” said Zoosman. “I will go to my grave believing in my heart that this is something that Ramiro wants to do to help make his soul right with God.”

In their statement to Oxygen.com, Posel and Schonemann said their client was moved to donate one of his kidneys when learning that one of Zoosman’s congregants was in need of the organ. “He knows that doing this will not stop his execution,” they said. “But as he told the Cantor, he hopes to give life before his own life is taken.

Ultimately, Posel and Schonemann said Gonzales was not a match to the congregant but claims his donation could help somebody else. “The State, however, has thus far not consented to this request,” said Posel and Schonemann in their statement. “Approximately 13 people die each day waiting for a kidney transplant, and wait times for those with rare blood types can be as long as a decade. We have been inundated with emails and phone calls by people across the country who are in urgent need of a kidney transplant.”

The two lawyers also issued other requests that, if approved, would also affect Gonzales’ scheduled execution, according to the Associated Press. The first was to commute their client’s death sentence for a lesser penalty. The second was to put the brakes on the execution if Gonzales couldn’t have his spiritual advisor lay hands on him at the time of his death.

In March, the Supreme Court ruled in favor of Texas death row inmate John Henry Ramirez, whose request that his spiritual advisor perform a "laying of the hands" in the chamber during his execution had initially been denied by the state. Gonzales' request for the same thing will be subject to a two-day federal trial which is expected to begin on Tuesday.

Gonzales confessed to the rape and murder of missing 18-year-old Bridget Townsend, who had disappeared in 2001, while he was serving two life sentences for the abduction and rape of a woman in Bandera County in 2002, according to the Palestine Herald-Press.... The Texas Board of Pardons and Paroles has until July 11 to vote on Gonzales’ request. Governor Greg Abbott has yet to respond.

I find it quite interesting, but not all that surprising, to hear Gonzales’ lawyers stress "his deeply held religious convictions" in making their case for an organ donation.  As mentioned in the article, the Supreme Court's recent Ramirez ruling provided an example of the Supreme Court accommodating a religious-based request from those about to be executed.  I doubt organ donation would be viewed in quite the same way that "laying of the hands" has been by the courts, but for now this issue is before the Texas Gov and the Texas Board of Pardons and Paroles.

Ohio Gov extends state's unofficial moratorium on executions

Not all that long ago, Ohio was one of the busiest states not named Texas when it came to carrying out executions.  Specifically, between 2002 and 2013, the Buckeye State carried out 50 executions.  Ohio was also innovative in this era, pioneering in 2009 a new one-drug execution protocol that had not previously been used in the state.  But, due in part to some execution problems and in part to some effective litigation, times have really chanced.  Only four executions have been carried out in Ohio over the last eight years, and an unofficial moratorium now looks poised to extend at least into 2023.  This new AP article, headlined "Ohio Governor Postpones Last Scheduled 2022 Execution," explains:

Ohio Gov. Mike DeWine has postponed the last execution that was scheduled for this year, pushing the October date for Quisi Bryan, convicted of killing a Cleveland police officer, to early in 2026.

The move once again called into question the functionality of capital punishment in the state.  With an unofficial moratorium in place, a veteran defense attorney recently argued there's no point in holding a death penalty trial for his client, accused in the 2016 massacre of a southern Ohio family.  “Why should we have to go through a death penalty trial when Ohio doesn’t have the death penalty?” attorney John Parker said June 21 at a hearing for George Wagner IV, charged in the killing of eight members of the Rhoden family....

DeWine's decision Friday to postpose Bryan's execution was one of several reprieves the governor has issued in recent years as the state struggles to find an adequate supply of drugs for lethal injection.

DeWine, a Republican, has attributed the need for the reprieves to the state’s ongoing inability to obtain drugs from pharmaceutical companies.  DeWine has said he is concerned that drug companies — which oppose the use of their drugs in executions — could pull pharmaceuticals from state hospitals to punish Ohio if it did secure their drugs and use them for lethal injection.

Currently, 11 men are scheduled for execution next year. But it's likely that, should DeWine be reelected, those would also be postponed....  The state’s last execution was July 18, 2018, when Ohio put to death Robert Van Hook for killing a man he met in a bar in Cincinnati in 1985.

"The Trump Clemencies: Celebrity, Chaos, and Lost Opportunity"

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

The presidency of Donald Trump may have produced the most chaotic use of the constitutional pardon power in American history. Trump granted clemency to war criminals, to close friends, to celebrities and to the friends of celebrities, with much of it coming in a mad rush at the end of his single term.  Buried beneath this rolling disaster was a brief moment of hope and  a lost opportunity: the chance for a restructure of the clemency process in the Fall of 2018, enabled by a rare alignment of factors including Trump’s alienation from the Department of Justice and the interest of his son-in-law, Jared Kushner. This article explores the fullness of Trump’s clemency legacy and explores what was lost when a vehicle that could have helped stem over-incarceration died on the drafting table.

House Judiciary Subcommittee to hold oversight hearing on clemency and office of Pardon Attorney

As detailed at this official webpage, the House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security is holding a hearing tomorrow titled "Oversight Hearing on Clemency and the Office of the Pardon Attorney."  Interestingly, as detailed via this witness list, Representative Ayanna Pressley will be the first witness.  This press release from Rep. Pressley's office may provide a preview of what she plans to talk about:

Today, Congresswoman Ayanna Pressley (MA-07), along with Congresswoman Mary Gay Scanlon (PA-05), Congressman David Joyce (OH-14), and Congressman Kelly Armstrong (ND-AL) urged Pardon Attorney Elizabeth Oyer to release disaggregated demographic data on the more than 17,000 pending clemency applications to better understand the current broken clemency process and address its impacts on constituents and communities....

In their letter, the lawmakers asked Pardon Attorney Oyer to provide a report by June 7, 2022 on all pending clemency applications detailing applicant demographic data, month and year of application submission, representation by an attorney, type of clemency request, type of relief sought, type of offense(s), and office currently reviewing application....

In December, Rep. Pressley, along with Representatives Cori Bush (MO-01), Hakeem Jeffries (NY-08) and grassroots advocates, unveiled the Fair and Independent Experts in Clemency (FIX Clemency) Act, historic legislation to transform our nation’s broken clemency system and address the mass incarceration crisis. 

This new Bloomberg piece, headlined "Lawmakers Press DOJ on Backlog of 17,000 Clemency Petitions," provides some context for this letter:

Some advocates for clemency say it can be used to address racial inequity in the criminal justice system. Black inmates account for 38.3% of the federal prison population, according to the Federal Bureau of Prisons, despite making up only 13% of the US population.

Between 2012 and 2016, Black men received 19.1% longer sentences for the same federal crimes as White men, according to a 2017 US Sentencing Commission report. Another 2017 report from National Registration of Exonerations found Black people are more likely to be wrongfully convicted than White people and receive longer sentences.

“Every application represents a person, a family, and a community,” the lawmakers wrote in the letter. “And every delayed response represents a miscarriage of justice, a dysfunctional process, and a policy failure in desperate need of repair.”

I suspect Rep. Pressley's testimony to start this oversight hearing could prove to be real interesting.  And, following here, the hearing schedule sets out this all-start set of witnesses:

• William “Bill” Underwood, Senior Fellow, The Sentencing Project
• Andrea James, Founder and Executive Director, The National Council for Incarcerated and Formerly Incarcerated Women and Girls
• Jason Hernandez, McKinney, Texas
• Nkechi Taifa, Founder, Principal and CEO, The Taifa Group LLC
• Rachel E. Barkow, Vice Dean and Charles Seligson Professor of Law, Faculty Director, Center on the Administration of Criminal Law NYU School of Law
• Mark Osler, Robert and Marion Short Distinguished Professor of Law, University of Saint Thomas School of Law
• D. Michael Hurst, Jr., Partner, Phelps Dunbar LLP
• The Honorable Morris Murray, Prosecuting Attorney, Defiance County, Ohio

UPDATE:  As of the morning of the hearing, one can find the written testimony of all the scheduled witnesses at this official House Judiciary webpage.  The testimony makes for interesting reads, though the professional history of the witnesses make what they have to say generally predictable.

"Donald Trump’s Clemencies: Unconventional Acts, Conventional Justifications"

The title of this post is the title of this paper now available via SSRN and authored by Austin Sarat, Laura Gottesfeld, Carolina Kettles and Olivia Ward.  Here is its abstract:

During his four years as president Donald Trump’s use of the clemency power generated considerable controversy.  Much scholarship documents the fact that he ignored the traditional procedures for reviewing and approving requests for pardons and commutations and used clemency to favor a rogues’ gallery of cronies, celebrities and those whose crimes showed particular contempt for the law.  However, few scholars have examined the justifications he offered when he granted pardons and commutations.  This paper fills that gap.  We argue that because the clemency power sits uneasily with democracy and the rule of law when presidents use this power they feel the need to supply justifications.  We report on a study of Trump’s clemency justifications that suggests that while his clemencies themselves were often controversial and his means of communicating about them unconventional, the reasons he gave for them were generally quite conventional and continuous with the justifications offered by his predecessors for their pardons and commutations.

New timely issue of the Federal Sentencing Reporter explores proposals for structural reform

I am very pleased to now be able to spotlight the latest greatest issue of the Federal Sentencing Reporter, which I helped bring together.  This issues includes many great new articles on an array of federal sentencing topics, and the discussion of two notable federal bills proposing structural changes make the issues especially timely.  My Editor's Observations at the front of the issue is titled "Might Structural Changes Be the Next Step for Federal Sentencing Reform?," and here is an excerpt:

This Issue of the Federal Sentencing Reporter shines a spotlight and provides context for two recent federal bills with a particular focus on criminal justice structure.  One, the Sentencing Commission Improvements Act, is relatively modest: consisting of just a few paragraphs, it provides for ‘‘a Federal Public or Community Defender designated by the Defender Services Advisory Group [to become an] ex officio, nonvoting member’’ of the U.S. Sentencing Commission.  The other bill is anything but modest: the Fair and Independent Experts in Clemency Act, or FIX Clemency Act, would create an ‘‘independent board to be known as the ‘U.S. Clemency Board,’’’ primarily tasked with reviewing and making recommendations to the president concerning clemency.  In addition to reprinting both of these bills and press releases from the members of Congress who introduced them, this Issue includes a series of original commentary discussing more broadly this particular moment in federal criminal justice reform.

Because they are full of substantive and rich insights, the original Articles in this Issue should be read in full and cannot be readily summarized here. However, having reviewed these Articles and the bills that partly inspired them, I am eager to introduce this Issue with a few musings about what I consider the important and unique symbolism that would necessarily accompany these proposed structural changes to the federal sentencing system.  Even with a change as modest as the Sentencing Commission Improvements Act, and especially with a change as notable as the FIX Clemency Act, Congress could send an important (and long overdue) message: that we need to alter the structures that have contributed to massive growth in the federal prison population.

Prison Policy Initiative publishes report on "Executive inaction: States and the federal government fail to use commutations as a release mechanism"

The main theme of this new Prison Policy Initiative report on clemency (and the lack thereof) is captured in this subtitle data point: "Our survey of eight states found an average of one commutation for every 10,000 imprisoned people each year."  Here are a few excerpts from a new data report that should be read in full:

If Biden intends to truly deliver on his promises to enact large-scale criminal justice reform, this set of commutations should merely mark the beginning of a broader initiative. In fact, nothing is holding him back: the President has the power to grant commutations to large categories of people in federal prisons independently — without any action by Congress, the Department of Justice, or another third party. Despite this broad power, most U.S. presidents in the era of mass incarceration have been hesitant to use their powers of commutation.

In 2021, at the request of advocates working on clemency reform in the northeast, we submitted records requests to eight northeastern states seeking information about their commutation processes. As our survey of these eight states finds, state executive branches also chronically underuse their commutation powers. The states in our sample reported granting just 210 commutations from 2005 through mid-2021, for a total average of 13 grants a year across the eight states. For comparison, the average total prison population across these eight states from 2005 to 2020 was about 130,000 — meaning that each year, this group of states commuted about one out of every 10,000 sentenced and imprisoned individuals. In fact, five of the states each reported granting just five commutations or fewer over the 16.5 years for which we requested data. And concerningly, almost no states in the sample increased their rate of commutations during the pandemic, at a time when reducing prison populations is critical to save lives....

Looking past the commutations granted by President Biden and at the operation of the federal clemency process more generally — it is clear that changes to the status quo are necessary. First, there is far too great a backlog in federal clemency applications. Data released on April 1, 2022 showed that approximately 18,270 applications for federal clemency are pending, nearly 15,000 of which are for a commutation of sentence. And, until April 2022, all of the 2,415 applications for clemency that had been acted on since the President took office in January 2021 had been administratively closed. This means that Biden had taken no action to either grant or deny clemency applications....

Historically, commutations were used much more frequently. In Massachusetts, for example, 218 commutations were granted in the 50s, 60s, and 70s, and 84% of them went to people serving life sentences for murder. Connecticut was still granting regular commutations even more recently: The state granted 36 commutations between 1991 and 1994.

But grants have since slowed down drastically and become exceedingly rare across the country. Massachusetts granted just 29 commutations in the 80s, 90s, 2000s, and 2010s; Connecticut reported granting five from 2016 to mid-2021. Today, commutations are often explicitly reserved for — or in practices, awarded only to — narrowly defined groups, such as people who have served at least half of their sentence or those convicted of “nonviolent” offenses.

Prez Biden finally uses his clemency pen to grant three pardons and 75 commutations

Because I always am inclined to say better late than never, I was quite pleased to wake up to the news that President Joe Biden is finally starting to make good on his  campaign promise to "broadly use his clemency power for certain non-violent and drug crimes."  This USA Today piece, headlined "Biden to pardon three felons, commute sentences of 75 others, in first grants of clemency," provides these details:

The nation's first Black Secret Service agent on a presidential detail, now 86 years old living in Chicago, who has worked decades to clear his name for a crime he has said he didn't commit. A 51-year-old woman from Houston who served seven years in prison for attempting to transport drugs for her boyfriend and accomplice – neither of whom faced charges. And a 52-year-old man from Athens, Georgia, who partners with schools to employ youth at his cellphone repair company, two decades after he was charged for letting pot dealers use his pool hall to sell drugs.

Three convicted felons – Abraham Bolden Sr., Betty Jo Bogans and Dexter Eugene Jackson – are receiving presidential pardons from President Joe Biden, along with 75 others whose sentences the president is commuting Tuesday, in the first use of clemency power of the Biden presidency.  All of Biden's commutations target individuals serving sentences for low-level drug offenses, some of whom have served on home confinement during the COVID-19 pandemic.  Many are Black or brown, and the White House said each has displayed efforts to rehabilitate themselves.

The clemency announcements, which coincide with national "Second Chance Month," come as Biden will also announce new actions aimed at improving outcomes for felons who reenter society. That includes $145 million for a federal program to train the incarcerated for future employment and the removal of criminal history in applications for Small Business Administration grants.

"America is a nation of laws and second chances, redemption, and rehabilitation," Biden said in a statement. "Elected officials on both sides of the aisle, faith leaders, civil rights advocates, and law enforcement leaders agree that our criminal justice system can and should reflect these core values that enable safer and stronger communities. During Second Chance Month, I am using my authority under the Constitution to uphold those values by pardoning and commuting the sentences of fellow Americans."...

The individuals granted clemency came at the recommendation of the Department of Justice's pardon attorney, according to senior Biden administration officials who briefed reporters about the announcement. It marks a return of a practice that was largely bypassed by former President Donald Trump, whose clemency requests often came through close aides. Biden said the three people pardoned have each "demonstrated their commitment to rehabilitation and are striving every day to give back and contribute to their communities."...

Nearly one-third of the 75 commutation recipients would have received lower sentences if they had been charged today under the Trump-era criminal justice law, the First Step Act, according to senior Biden administration officials. They have served an average of 10 years in prison and have "shown resilience" in seeking a productive path forward, a White House official said.

The official statement from Prez Biden on these grants is available at this link, and its start provides links to all those granted clemency and other executive action on the reentry front:

America is a nation of laws and second chances, redemption, and rehabilitation. Elected officials on both sides of the aisle, faith leaders, civil rights advocates, and law enforcement leaders agree that our criminal justice system can and should reflect these core values that enable safer and stronger communities.  During Second Chance Month, I am using my authority under the Constitution to uphold those values by pardoning and commuting the sentences of fellow Americans.

Today, I am pardoning three people who have demonstrated their commitment to rehabilitation and are striving every day to give back and contribute to their communities.  I am also commuting the sentences of 75 people who are serving long sentences for non-violent drug offenses, many of whom have been serving on home confinement during the COVID-pandemic — and many of whom would have received a lower sentence if they were charged with the same offense today, thanks to the bipartisan First Step Act.  

My Administration is also announcing new steps today to support those re-entering society after incarceration.  These actions include: a new collaboration between the U.S. Department of Justice and the U.S. Department of Labor to provide job training; new grants for workforce development programs; greater opportunities to serve in federal government; expanded access to capital for people with convictions trying to start a small business; improved reentry services for veterans; and more support for health care, housing, and educational opportunities. 

Though I am still a bit salty that it took Prez Biden 15+ months in office before using his clemency pen, I am pleasantly surprised to see a large number of grants and many commutations to persons serving lengthy terms terms for drug offenses.  From a quick scan, it looks like perhaps more than a third of those who received commutations are women, which reminded me of the statements of Prez Trump clemency recipient Alice Marie Johnson that there were thousands of persons like her in prison who deserved commutation.  (BOP data show the federal prison population is comprised of less than 7% women, though I sense that much more than 7% of the most mitigated cases involve women.)

A few of many prior recent related posts:

• "When Will Joe Biden Start Using His Clemency Powers?"
• A second chance for Prez Biden to follow his proclamation about Second Chance Month with some clemency grants
• New Federal Sentencing Reporter issue considers "After Trump: The Future of the President’s Pardon Power"
• Justice Department has new Pardon Attorney who is a former public defender ... which means ...? 

Arizona court rejects condemn man's petition objecting to too many law enforcement members on state Board of Clemency

This new NPR piece, headlined "In rejecting death row inmate's case, judge says law enforcement isn't a profession," reports on this interesting state court ruling from last week concerning the Arizona clemency process. Here are the details and context:

An Arizona inmate who is mere weeks away from his scheduled execution argued the state's clemency board was unfairly loaded with law enforcement. But a state judge has disagreed, saying that law enforcement does not meet the definition of a "profession."

Earlier this month, the Arizona Supreme Court issued an execution warrant – the first in eight years – for Clarence Wayne Dixon, a 66-year-old prisoner convicted of first-degree murder. But Dixon's attorneys argued Tuesday that the Arizona Board of Clemency, which is set to meet on April 28 to decide whether to stay the execution, is illegally made up of too many members who had careers in law enforcement.

This past Tuesday, Maricopa County Superior Court Judge Stephen Hopkins ruled against Dixon. "Historically, law enforcement has not been thought of as a "profession," Hopkins said in his decision. "It is not regulated as other professions are, and has little of the characteristics of what is typically considered a profession."...

Arizona law prohibits "No more than two members from the same professional discipline" from serving on the clemency board at the same time. The current board is made up of: one former superior court commissioner and assistant attorney general; a former federal agent with over 30 years' experience; a retired officer who spent 30 years with the Phoenix Police Department; and a 20-plus-year detective, also with the Phoenix PD. The fifth seat on the board is currently vacant.

Dixon was serving seven life sentences for the 1985 kidnapping, rape and assault of a Northern Arizona University student, according to court documents, when investigators connected him with a murder that took place seven years earlier. In 2001, DNA evidence linked Dixon to the January 1978 murder of Deana Bowdoin, a 21-year-old student at Arizona State University. She was found dead in her apartment, having been strangled and stabbed. A jury sentenced Dixon to death in 2008....

Dixon's execution, which appears all but certain at this time, will be the first to be carried out in Arizona since the botched execution of Joseph Rudolph Wood in 2014. Wood's execution should have taken a matter of minutes, NPR previously reported, but instead, the prisoner took more than two hours to die.

Based on the ruling, it seems that Dixon also asserted a due process violation, perhaps based only on the statutory requirement or maybe independently.  The court address that issue this way: "To be sure, courts have recognized due process rights in connections with boards of parole, pardon, or clemency.  See generally Chapter Three, The Law of Probation and Parole.  However, to the Court’s knowledge no case anywhere has recognized a due process right in the particular makeup of such a board."

Wouldn't a few marijuana offenders be a "light lift" for Prez Biden's first clemency grants?

The question in the title of this post is prompted by this lengthy New York Post article headlined "Ahead of 4/20, pot prisoners push Biden to honor campaign pledge to free them." I recommend the piece in full, and here are excerpts:

On the eve of the 4/20 cannabis holiday, federal inmates again are wondering if and when President Biden will make good on his 2020 campaign pledge to free “everyone” locked up on marijuana charges.  About 2,700 inmates are behind federal bars on pot-related charges — even though 18 states and DC now allow recreational use of the drug and two-thirds of Americans support legalization.

They include Pedro Moreno, 62, who is serving a life sentence after pleading guilty to distributing weed imported from Mexico from 1986 to 1996. “I will die in prison for marijuana unless I receive executive clemency,” Moreno told The Post....

Clemency advocates recently met with White House staff and believe Biden may eventually intervene.  But that it may not happen anytime soon as other initiatives take priority, such as commuting the sentences of people released temporarily from prison due to the COVID-19 pandemic....

Luke Scarmazzo, 41, has served 14 years of a 22-year sentence for running a medical marijuana operation in California and told The Post that he’s also struggling to maintain hope.  “When President Biden made those statements on the campaign trail, my family and I were very hopeful that our nightmare was finally coming to an end,” Scarmazzo said. “We are now nearly two years into President Biden’s term and we’re wondering when he will make good on his promise.”

Donald Fugitt, 37, noted how the country has changed in the decade since he was arrested in 2013.  “Another 4/20 and everybody is smoking and making money, but I’m still in a COVID-19-infested prison,” said Fugitt, a North Texas native who gets out in 2024 unless Biden reduces his sentence.  “I’ve accepted responsibility for my participation in a marijuana conspiracy. Everyone on my case is home except me. This was my first offense.”

Federal pot inmates include Lance Gloor, 43, who has two years left of a 10-year sentence for running dispensaries in Washington that he says sold state-legal medical marijuana, though federal prosecutors disagreed.  Gloor’s mother, Tracie Gloor Pike, says he had a severe case of COVID-19 last year and suffers rare complications....

Biden said on a debate stage in 2019: “I think we should decriminalize marijuana, period.  And I think everyone — anyone who has a record — should be let out of jail, their records expunged, be completely zeroed out.” But Biden hasn’t yet used his clemency powers to release anyone from prison....

Weldon Angelos, a former federal marijuana inmate and co-founder of the group Mission Green, helped craft a rubric that would ensure only non-violent prisoners are released and told The Post he has been involved in talks with the White House. “Candidate Biden promised to use his pardon power to free those still incarcerated federally for cannabis offenses, which gave a lot of hope to many,” Angelos said. “We have had a number of conversations with the White House of this topic and believe that Biden will keep his campaign promise. When that happens is another matter entirely, but we are encouraged.”...

Amy Povah, founder of the CAN-DO Foundation, which advocates for clemency for non-violent offenders, told The Post, “I’m not sure why we are still waiting for President Biden to free all the pot prisoners.” Povah said, however, that “I’m encouraged to see there is a new pardon attorney,” Elizabeth Oyer, who will vet clemency paperwork.  “[Oyer is] a former public defender. She is a refreshing choice since previous pardon attorneys have typically been prosecutors who often have a punitive mindset toward applicants,” Povah said....

In January 2021, then-President Donald Trump commuted the sentences of seven people serving life terms for marijuana — including two men who were given life without parole under the three-strikes provision of the Biden-authored 1994 crime law.

Michael Pelletier, a 65-year-old wheelchair-bound paraplegic, was among those released by Trump. He had a life sentence for smuggling Canadian pot into Maine before both legalized recreational markets.

“I thank President Trump every day that I wake up in a comfortable bed in a beautiful home in Florida surrounded by loving family, rather than the screeching sound of the PA system announcing another lock down due to violence,” Pelletier said. “It breaks my heart knowing there are still people serving life without parole for cannabis. I hope Biden will free all pot prisoners because I personally know several people who voted for him based on that campaign promise alone.”

A few on many prior recent related posts:

• On Presidents Day, coalition calls for Prez Biden to issue "a general pardon to all former federal, non-violent cannabis offenders in the U.S."
• "When Will Joe Biden Start Using His Clemency Powers?"
• New letter with prominent signers urges Prez Biden to pardon all non-violent marijuana offenders 
• Lamenting "Biden's do-nothing approach to clemency" as we approach holiday season 
• A second chance for Prez Biden to follow his proclamation about Second Chance Month with some clemency grants
• New Federal Sentencing Reporter issue considers "After Trump: The Future of the President’s Pardon Power"
• Justice Department has new Pardon Attorney who is a former public defender ... which means ...? 

Justice Department has new Pardon Attorney who is a former public defender ... which means ...?

I was pleased last night to see this great Twitter thread from Mark Osler spotlighting that the US Department of Justice this week officially has a new Pardon Attorney.  As this new DOJ bio details, she is Elizabeth (Liz) G. Oyer who before her Justice Department appointment served as "Senior Litigation Counsel to the Office of the Federal Public Defender for Maryland, where she represented indigent defendants at all stages of proceedings in federal district court [and] handled a wide variety of criminal cases, ranging from complex fraud to drug and gun offenses, as well as violent crimes."  Professor Osler, who is a leading national expert on federal clemency, has lots of good background in his thread about the appointment, and I am hopeful he does not mind my highlighting some of his key points here:

We've had "Acting" pardon attorneys for the past five or six years, so it means something that Pres. Biden has actually filled this slot. It's also significant -- and positive -- that he has given a career defender an important job in the Department of Justice.

However, this doesn't "fix" the backlog of petitions -- or promise a future fix of the backlog -- because it appears the problem there may not have been the Pardon Attorney, but the bureaucracy that takes up the petitions after they are evaluated by the pardon attorney (DAG & WHC)....

There are over 18,000 pending petitions, many of them now years old (including unresolved petitions from the Obama administration).  It's a mess.  We just know what kind of mess, or where the mess is located.  The whole thing needs reform.

For a host of reasons, I am eager to see the federal clemency process completely removed from the Department of Justice, and so I support the FIX Clemency Act, discussed here, and other proposals to have an independent body assist the President in his exercise of his constitutional clemency authority.  But as long as the current messy structure remains in place, it is encouraging to see that an experiences defense attorney has been placed into this important role.   As ProPublica highlighted a decade ago, a DOJ Pardon Attorney eager to find reasons not to recommend clemency grants can really muck up the process in ugly ways.  I am inclined to believe a former public defender is going to be more eager to find reasons to recommend grants.

in the end, none of this means much if Prez Biden (and anyone advising him on these matters) is disinclined to make use of the constitutional clemency authority.  Of course, candidate Joe Biden promised to "broadly use his clemency power for certain non-violent and drug crimes."  But, a full 15 months into his administration, Prez Biden has not granted a single pardon and has not granted a single commutation.  With more than 18,000 applications pending, not to mention many low-risk, COVID-vulnerable persons released to home confinement by the Trump Administration, it ought not be that hard to find at least a handful of "non-violent and drug" offenders who deserving of clemency during Second Chance Month.  Whomever is in charge of the matters at DOJ, where these is a clemency will there is surely a clemency way.  As of now, though, it does not appear that Prez. Biden really has much of a clemency will. 

A few on many prior recent related posts:

• FIX Clemency Act introduced in US House seeking to fix broken federal clemency process
• "Would an independent commission solve the clemency backlog?" 
• How about Prez Biden and lots of Governors starting a tradition of granting lots of clemencies around Mother's Day? 
• "When Will Joe Biden Start Using His Clemency Powers?"
• Lamenting "Biden's do-nothing approach to clemency" as we approach holiday season 
• Clemency criticisms as Prez Biden's record is now turkeys 2, humans 0 
• Another reminder that Prez Biden has so far decided to forget using his clemency powers 
• A second chance for Prez Biden to follow his proclamation about Second Chance Month with some clemency grants
• New Federal Sentencing Reporter issue considers "After Trump: The Future of the President’s Pardon Power"

A second chance for Prez Biden to follow his proclamation about Second Chance Month with some clemency grants

In this post last year, I highlighted some language from the White House's "Proclamation on Second Chance Month, 2021" while stressing that Prez Biden has one particularly important second chance power, namely his historic constitutional clemency authority.  But, a year later, we are sadly still without a single clemency grant from Prez Biden — we had three from Prez Trump by this point in his term — and yet we do now have another White House second chance proclamation.  Here are some passages (and my added emphasis):

April marks Second Chance Month, when we reaffirm the importance of helping people who were formerly incarcerated reenter society. America is a Nation of second chances, and it is critical that our criminal and juvenile justice systems provide meaningful opportunities for rehabilitation and redemption.  It is also vital that we address both the root causes of crime and the underlying needs of returning citizens using resources devoted to prevention, diversion, reentry, trauma-informed care, culturally-specific services, and social support.  By supporting people who are committed to rectifying their mistakes, redefining themselves, and making meaningful contributions to society, we help reduce recidivism and build safer communities.

Every year, over 640,000 people are released from State and Federal prisons.  More than 70 million Americans have a criminal record that creates significant barriers to employment, economic stability, and successful reentry into society.  Thousands of legal and regulatory restrictions prevent these individuals from accessing employment, housing, voting, education, business licensing, and other basic opportunities.  Because of these barriers, nearly 75 percent of people who were formerly incarcerated are still unemployed a year after being released.

We must rethink the existing criminal justice system and whom we send to prison and for how long; how unaddressed trauma and abuse create pipelines to incarceration; how people are treated while incarcerated; how prepared they are to reenter society once they have served their time; and how the racial inequities that lead to disproportionate numbers of incarcerated people of color and other underserved groups.

My Administration recognizes that making the criminal and juvenile justice systems more equitable, just, and effective requires a holistic approach.  It requires eliminating exceedingly long sentences and mandatory minimums that keep people incarcerated longer than they should be. It requires quality job training and educational opportunities during incarceration. It requires providing formerly incarcerated individuals with opportunities to enter the workforce, reunite with their families, find stable and safe homes, and access health care.  It requires expunging and sealing certain criminal records so that people’s futures are not defined by their past....

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 2022 as Second Chance Month.  I call upon all government officials, educators, volunteers, and all the people of the United States to observe the month with appropriate programs, ceremonies, and activities.

I like the all the sentiments in this proclamation, but Prez Biden has to start "walking the walk" instead of just "talking the talk."  The federal sentencing system has many individuals serving "exceedingly long sentences and mandatory minimums that keep people incarcerated longer than they should be."  As one detailed example, this terrific recent research paper authored by Alex Fraga, who serves as a Senior Research Associate at Ohio State's Drug Enforcement and Policy Center, documents the thousands of persons subject to federal life sentences for drug offenses.   Prez Biden can and should, today and tomorrow and every day he is in office, use his clemency pen to begin the process of "eliminating exceedingly long sentences" in the federal system.  To its credit, this proclamation notes that " racial inequities that lead to disproportionate numbers of incarcerated people of color and other underserved groups."  Dr. Fraga's report highlights this reality in one context, as she details at lengthy just how "racial disparity in the imposition of life or de facto life sentences in the federal system for drug offenses is glaring."  Again, Prez Biden can take direct action to start to remedy these problems with some commutation grants.

Turning to the discussion of re-entry, the proclamation rightly call for more "expunging and sealing [of] certain criminal records so that people’s futures are not defined by their past."  However, in the federal criminal justice system, there is currently no statutory mechanism for expunging or sealing of any federal criminal records, and thus only the pardon power can eliminate a federal criminal record creating "significant barriers to employment, economic stability, and successful reentry into society."  Of course, since millions of Americans labor with federal criminal records, it would be unrealistic to expect Prez Biden or any president to conduct mass pardoning.  But it would still be quite important and impactful, while preaching about second chances, to at least do some pardoning of at least a few who obviously deserve this kind of second chance.  And, to be potentially more effective in this context and others, Prez Biden should be urging Congress to enact federal statutory tools for expungement and record sealing comparable to what exists (and is often getting expanded) in every single state across our great nation.  

I could go on and on, but I will close simply by asserting that it feels a bit like an April Fool's joke for the President to "call upon all government officials, educators, volunteers, and all the people of the United States to observe the [Second Chance] month with appropriate programs, ceremonies, and activities" when he himself so far has done so little direct second chance work.  Sigh.

Prior related post from last year:

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

North Carolina Gov, following recommendation of state Juvenile Sentence Review Board, commutes sentence of three convicted of murder as teens

As detailed in this North Carolina Gov press release, "Governor Cooper has commuted the sentences of three people who were convicted for crimes committed when they were teenagers. The commutations follow an intensive review of their cases, including the length of their sentences, their records in prison, and their readiness to succeed outside of prison." Here is more from the press release (with links from the original):

The commutations are the first recommended to the Governor by the Juvenile Sentence Review Board which he established by Executive Order last year. The commutation applications were thoroughly reviewed by the Office of Executive Clemency, the Office of the General Counsel and the Governor.  These commutations end prison sentences on time served.

The creation of the Review Board followed the change in North Carolina law which raised the age of juvenile jurisdiction to include 16- and 17-year-olds, making North Carolina the last state in the nation to do so.  Studies of brain development and psychology show fundamental differences between juvenile and adult minds and behavior, and state and federal law treat children differently from adults for the purpose of sentencing.

The Review Board was also part of a series of recommendations from the Governor’s Task Force for Racial Equity in Criminal Justice (TREC) that has worked to rectify racial disparities in the criminal justice system. More than 80 percent of people committed to North Carolina prisons for crimes they committed as juveniles are people of color.

“North Carolina law continues to change to recognize that science is even more clear about immature brain development and decision making in younger people,” Cooper said. “As people become adults, they can change, turn their lives around, and engage as productive members of society.”

The three people whose sentences were commuted are:

• April Leigh Barber, 46, who has served 30 years in prison for her role at age 15 in the murders of her grandparents, Lillie and Aaron Barber, in Wilkes County. While incarcerated, Ms. Barber has been consistently employed and has participated in significant programming, including earning her G.E.D. and paralegal certificate. Link to commutation.
• Joshua McKay, 37, who has served 20 years in prison for the murder at age 17 of Mary Catherine Young in Richmond County. While incarcerated, Mr. McKay has been consistently employed, including as a carpenter and welder. Mr. McKay’s projected release date absent this commutation would have been in November 2022. Link to commutation.
• Anthony Willis, 42, who has served 26 years in prison for the murder at age 16 of Benjamin Franklin Miller in Cumberland County. While incarcerated, Mr. Willis has been consistently employed and has completed five college degrees. Link to commutation.

The three people will be subject to post-release supervision by Community Corrections at the North Carolina Department of Public Safety to help them succeed and avoid missteps when they return to their communities.  “Most of the individuals who enter prisons will return to their communities one day. Providing high quality, evidenced based treatment and programming is a top priority for our prison system,” said Department of Public Safety Secretary Eddie Buffaloe. “These commutations should inspire individuals who are incarcerated to use all available resources to better themselves and prepare for a successful return to society.”

The Review Board continues to review petitions from those who were incarcerated for crimes committed as juveniles, and looks at many factors in its review, including rehabilitation and maturity demonstrated by the individual, record of education or other work while incarcerated, record of good behavior or infractions, input from the victim or members of the victim’s family, and more.

Taking time to celebrate the clemency power on Presidents' Day

I suppose on a President's Day we ought to celebrate all of Article II of Constitution, but regular readers will not be surprised by my eagerness to focus particularly on the last couple dozen words of Article II, Section 2, Clause 1: "The President ... shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment."  Much could and should be said about clemency circa 2022, but I will be mostly content here to flag a few older pieces about the clemency work of Presidents George Washington and Abraham Lincoln:

From Fox News, "Presidents Day: Newly discovered Washington, Lincoln letters delve into pardon power, clemency"

From the Smithsonian Magazine, "The First Presidential Pardon Pitted Alexander Hamilton Against George Washington"

From Friends of the Lincoln Collection, "Lincoln’s Clemency: The Policy Limits"

Of course, there is a whole lot of great new academic writing about about clemency, largely because Prez Trump's controversial use of this king-like power generated a whole lot of commentary about what he actually did and what he might do.  For those taking stock, Prez Trump granted executive clemency to 237 individuals though his full term.  As is the unfortunate modern tendency, his clemencies were bunched mostly at the end of his term: he had granted just two clemencies (one pardon, one commutation) by the time of his second Presidents' Day in office, and he had granted only about a dozen more by the end of his second year in office. 

Prez Biden, though pledging as a candidate to "broadly use his clemency power for certain non-violent and drug crimes," has yet to grant a single clemency.  But, because there has been some buzz about possible clemencies, I am hopeful Prez Biden will soon live up to his campaign promise and improve on Prez Trump's record here.  But, even if Prez Biden gets his clemency pen out soon, I strongly believe the clemency process needs to be vastly improved and I hope that the FIX Clemency Act introduced in US House late last year might start getting some attention.

And though there is much more worth saying on this front, I will close will a final bit of academic celebration through a link to a great article by Professor Mark Osler that, at least for me, can capture the spirit of the day simply through its title: "Clemency As The Soul Of The Constitution."

Intriguing squabble in Idaho over capital commutation authority

This AP article, headlined "Judge says Idaho governor can’t veto clemency for condemned man," reports on a new state ruling concerning who has capital commutation authority in the Gem State.  Here are some of the details:

A judge says Idaho’s governor doesn’t have the power to veto a clemency recommendation by the state’s parole board for a terminally ill man who was expected to be executed this year. The ruling from 2nd District Judge Jay Gaskill on Friday says putting Gerald Pizzuto Jr. to death would be illegal and so the court won’t issue a death warrant — a required document before an execution can occur. Gov. Brad Little’s office vowed to appeal.

Pizzuto, 66, has been on death row for more than three decades after being convicted for the July 1985 slayings of two gold prospectors at a cabin north of McCall. He was scheduled to be executed by lethal injection last year, but after a clemency hearing the Idaho Commission of Pardons and Parole voted 4-3 to recommended that Pizzuto’s sentence be changed to life in prison. The board cited Pizzuto’s poor health — he has terminal bladder cancer, heart disease and diabetes as well as decreased intellectual function — and said commutation would be an act of mercy.

Little, however, rejected the recommendation and said he wouldn’t commute Pizzuto’s sentence. Little noted the man committed the Idaho slayings shortly after being released from prison in Michigan, where he had been convicted of rape.

Pizzuto’s attorneys with the Federal Defender Services of Idaho went to court, with attorney Jonah Horwitz arguing last month that while Idaho’s Constitution gives the governor the power to grant temporary reprieves from execution, it stops far short of allowing the governor to override the parole board’s commutation recommendation.

Attorneys for the state had argued a phrase added by amendment in 1986 to the relevant section of the constitution, “only as provided by statute,” meant that the Legislature could modify the way commutation and parole powers are carried out. Deputy Attorney General LaMont Anderson told Gaskill during oral arguments that the Legislature had done exactly that in a state law that said the parole board could recommend commutation, but the governor must approve.

In Friday’s ruling, Gaskill said the final decision on commuting a sentence rests with the parole board and not the governor. “If the drafters intended to allow the governor to have the power of commutation, which is greater than the power to grant respites and reprieves, the drafters could have specifically stated this,” Gaskill said, pointing out that the constitutions of several other states including Texas, Oklahoma, Arizona and Pennsylvania do explicitly give commutation power to the governor.

The judge also noted that the section of Idaho’s Constitution detailing the parole and commutation powers had been amended a few times throughout the state’s history — most recently in 1986 — but none of the amendments gave full commutation authority to the governor....

In an emailed statement, the governor’s office said the decision was the ruling of “one judge,” and said Little had followed the constitution and state law as written. “Governor Little will challenge this ruling because the state must have the ability to carry out the death penalty as ordered by the court in this case,” the office said. “Pizzuto was convicted of rape, robbery and four brutally gruesome murders. This matter is now left for a higher court to ultimately decide.”

Notably, as detailed at this DPIC page, Idaho has only carried out only three executions over the last 50 years and none in nearly a decade. But, in the modern US experience with capital punishment, there always seems to be a whole lot of litigation even if when there are not that many executions.