Friday, March 15, 2019

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

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

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

Wednesday, March 13, 2019

New California Gov to order moratorium on executions in his state

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

March 13, 2019 in Clemency and Pardons, Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (7)

Thursday, March 07, 2019

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A few quick points in reaction:

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

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

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

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

Ohio Governor officially postpones three more scheduled executions

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

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

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

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

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

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

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

A few (of many) prior recent related posts:

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

Thursday, February 28, 2019

"Clemency as the Soul of the Constitution"

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

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

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

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

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

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

Tuesday, February 26, 2019

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

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

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

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

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

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

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

Tuesday, February 05, 2019

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Monday, February 04, 2019

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

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

Matthew Charles

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

Alice Johnson

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

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

Prior related post:

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

Tuesday, January 15, 2019

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

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

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

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

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

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

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

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

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

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

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

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

A few of many recent related posts: 

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

Sunday, January 13, 2019

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Monday, January 07, 2019

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

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

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

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

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

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

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

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

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

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

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

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

Friday, January 04, 2019

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

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

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

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

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

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

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

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

Monday, December 31, 2018

NY Gov closes out 2018 with clemency grants

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

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

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

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

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

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

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

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

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

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

Saturday, December 22, 2018

More notable state clemency developments for the holiday season

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

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

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

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

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

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

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

Thursday, December 20, 2018

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

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

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

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

A few of many recent related posts: 

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

Thursday, December 13, 2018

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, December 11, 2018

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

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

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

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

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

A few of many recent related posts: 

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

Saturday, December 08, 2018

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

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

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

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

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

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

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

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

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

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

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

Prior related posts:

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

Wednesday, December 05, 2018

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

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

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

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

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

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

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

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

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

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

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

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

A few of many recent related posts: 

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

Friday, November 30, 2018

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

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

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

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

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

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

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

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

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

Friday, November 23, 2018

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

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

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

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

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

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

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

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

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

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

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

Tuesday, November 20, 2018

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

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

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

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

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

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

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

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

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

Thursday, November 15, 2018

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

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

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

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

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

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

Our 8 strategies

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

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

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

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

November 15, 2018 in Clemency and Pardons, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (0)

Monday, November 12, 2018

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

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

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

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

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

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

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

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

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

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

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

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

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

Prior related posts:

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

Sunday, November 11, 2018

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

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

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

A few of many recent related posts: 

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

Monday, November 05, 2018

Could the FIRST STEP Act, with sentencing reforms added, get through Congress in just a matter of weeks?

The question in the title of this post is prompted by this new Washington Examiner article headlined "Prison reform bill to include sentencing, setting up post-election fight." Here are excerpts:

Criminal justice reform advocates say sentencing reform provisions will be included in legislation unveiled shortly after midterm elections Tuesday, triggering an intense lame-duck struggle over attaching penalty reductions to a White House-backed prison reform bill.

The First Step Act passed the House in a 360-59 vote earlier this year, but without sentencing reforms, at the behest of Republican opponents.  Reform advocates expect rapid legislative action after a pre-election pause, and believe there will be enough votes to pass the expanded legislative package.

Two people close to the process tell the Washington Examiner that a bipartisan group of senators has agreed to attach a set of sentencing reforms to the House-passed bill.

The additions include shortening federal three-strike drug penalties from life in prison to 25 years, reducing two-strike drug penalties from 20 years to 15, allowing a firearm sentencing enhancement to run concurrently with the underlying penalty, and allowing retroactive sentencing for crack cocaine cases judged under tougher historical laws.

“We are very excited about it. We think that the four reforms that are in the bill are ones that make sense,” said Mark Holden, the general counsel of Koch Industries and an influential conservative reform advocate. “From what we understand, there are enough votes — plenty — for it to happen,” Holden said. Holden said it’s his understanding that the sentencing language will also expand a “safety valve” option for judges to use discretion.

Both Holden and another person close to the legislation drafting process, who asked not to be identified, said there is wording to reduce concern about illegal immigrants benefiting from sentencing reform. The second person said the provision is being finalized, but there will be “a clarification saying this does not change existing statutes relating to undocumented individuals in the federal system.”

A spokeswoman for Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, an influential advocate of the reforms, did not respond to requests for comment.

Holden said he expects the White House, particularly presidential adviser and son-in-law Jared Kushner, to forcefully back the bill.  Last month, Trump said in a Fox News interview that Attorney General Jeff Sessions’ longstanding opposition to reforms did not represent him. "If he doesn't [support reform], then he gets overruled by me.  Because I make the decision, he doesn't," Trump said Oct. 11....

It’s unclear how a group of Republican skeptics, such as Sen. Tom Cotton of Arkansas, will react. Senate Majority Leader Mitch McConnell, R-Ky., has promised a whip count after the election, and advocates believe it will make it clear with overwhelming support....

Last month, clemency advocates including Amy Povah of CAN-DO Clemency and Alveda King, the anti-abortion evangelical leader, hosted a panel at a Women for Trump event at Trump International Hotel in Washington.  Povah hopes that Congress passes the legislation, and that Trump will supplement the reform with generous use of his constitutional pardon powers. Last month, Trump said "a lot of people" are jailed for year for "no reason" and that he was actively looking to release some.

Povah said clemency would be particularly appreciated around the holiday, including Thanksgiving, when presidents pardon turkeys, disillusioning people who are looking for one. “I think Trump said it best, he said that he’s going to release a lot of people and I think a lot of people in prison took that seriously and literally," Povah said.  "He sent a lot of hope in that humans may be in line, maybe for the first time included in the Thanksgiving pardon."...

Trump has spoken repeatedly about his desire to release inmates from prison after commuting the life sentence of drug crime convict Alice Johnson in June at the request of celebrity Kim Kardashian West.  At a second Trump-Kardashian meeting, the TV star urged freedom for Chris Young, who was arrested at 22 and sentenced to life in prison for drug dealing. She brought with her former federal judge Kevin Sharp, who had imposed the sentence due to rigid federal laws he argued made little sense.  On his own, Trump mentioned another inmate, Matthew Charles, who returned to prison this year after a court found his drug sentence was reduced in error.

Some of many prior related posts:

UPDATE: I just saw that Law360 also has a new article on this front under the headline "Hard Decisions Loom In Lame-Duck Push For Sentencing Reform."  This lengthy piece starts with this sentence: "Over the next two months, Republican lawmakers have a chance to pass the most comprehensive criminal justice reforms in a generation, a combination of prison and sentencing reforms that stand to improve the lives of more than 180,000 federal inmates."

November 5, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Clemency and Pardons, Criminal justice in the Trump Administration, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Who Sentences | Permalink | Comments (1)

Wednesday, October 31, 2018

I am a big fan of clemency and democracy, but....

I am still not sure I can get behind the proposal discussed in this article under the headline "Vermont Candidate Promises Weekly 'Governor's Pardon TV Show'."  Here are the details:

A Vermont gubernatorial candidate has proposed a nationally televised show in which a booing or cheering crowd would decide the fate of state prisoners.

Independent candidate Cris Ericson, a marijuana advocate who regularly runs for statewide office, outlined her vision in a commentary for Vermont PBS.  “If you elect me, I will host a governor’s pardon TV show every Saturday night and pardon a few of the people who violate the new, unconstitutional anti-gun laws, and some of the nonviolent offenders of other laws, to save Vermonters money,” Ericson said in the commentary.  She was referring, presumably, to new restrictions on gun ownership signed into law in April by her Republican opponent, Gov. Phil Scott.

Ericson said the show would be hosted from the auditorium in Montpelier's Pavilion State Office Building, a few floors below the governor’s office.  “We will have a full audience in the auditorium … and invite 100 Vermonters each week to boo or cheer,” she said. “We will invite family and friends of the prisoners to speak on their behalf.  Then the audience will vote on whether I should grant a pardon as governor with the legal authority to grant pardons.”

Ericson said the state could even generate revenue from the idea, by selling the show and investing the profits in the General Fund.

Though she doesn’t reference the film, the scene Ericson describes bears a striking resemblance to the fictional depiction of America’s justice system in the movie Idiocracy....

A recent poll by Vermont Public Radio and Vermont PBS showed that Ericson had support from about 1 percent of Vermont voters.

October 31, 2018 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Sunday, October 14, 2018

Alice Marie Johnson urges Prez Trump to free "thousands more" federal prisoners like her

Trump-just-granted-clemency-to-alice-johnson-afte-2-758-1528302960-6_dblbigThe now-famous, drug-dealer-serving-LWOP grandmother Alice Marie Johnson, who was granted clemency three months ago by Prez Donald Trump, has authored this lengthy new Fox News opinion piece headlined "President Trump freed me from prison – I’m glad he wants to give other nonviolent offenders their freedom."  Here are excerpts:

On June 6, I walked out of prison as a free woman after serving almost 22 years of my life sentence on a first-time nonviolent drug conviction, thanks to a decision by President Trump to commute my sentence to time served.  I was thrilled to hear the president say this week that he is looking to give early release to additional nonviolent prisoners like me....

I can never thank the president enough.  He heard my voice, gave life to my hope and promise to my future.  I am a 63-year-old grandmother who just wants to live in peace and enjoy my family.  There is zero chance I will ever break the law again....

Many other nonviolent offenders in federal prisons today are — like me — no danger to society, and I look forward to having President Trump and members of his administration examine their cases.  Many of these men and women have spent long years in prison and deserve to receive clemency or a commutation of their sentences from the president.

Freeing these offenders early would be an act of justice and mercy, as granting me my freedom was.  And early release would save taxpayers the cost of feeding and housing these people for years after they have paid their debt to society.

When President Obama began granting clemency to nonviolent offenders near the end of his presidency, he gave hope to thousands of people like me.  By 2016, I was 20 years into my life sentence.

My path to prison began at a time in my life when I faced some desperate choices.  I made a terrible decision to participate in a drug conspiracy — a decision I very much regret.

But during my two decades in prison, I accomplished an extraordinary rehabilitation — writing plays, volunteering in the prison hospice, becoming an ordained minister and mentoring to young women in prison.  By 2016 I was a new woman living a new life, even if it was a life I thought was destined to be lived only behind bars.

President Obama’s clemency initiative gave me hope.  I had been told not to hope, not to dream, because I would never be set free. As his presidency came to a close, President Obama began releasing hundreds of other nonviolent offenders, and I became sure I would be released as well.  My prison warden, captain, case manager and vocational training instructor all recommended I be granted clemency.

Unfortunately, I was left behind.  President Obama left office without giving me the chance to start a new life.  And I learned that putting your hope in one man is a mistake, because when that hope dies, you think all your hope has to die. When I received the denial letter from the Office of the Pardon Attorney, I was devastated.  I don’t know why my request was denied, because no explanation was given.  But that decision left me so disappointed.

My petition met all the criteria for clemency.  I had reformed my life in prison and I felt it should have been clear to anyone that I would contribute to society if I was released.  But President Obama left, President Trump arrived and I was told again to give up hope.  I didn’t.

I kept fighting for myself because I know that hearts can change, and no matter what administration is in power, you have to be willing to come to the table, sit down and talk about whether you can find common ground.

Thankfully, Jared Kushner and others working for President Trump have worked to keep clemency and criminal justice reform alive.  They can see that not every person who makes a mistake deserves for that mistake to define the rest of their life. They know that hope is important, but it must also be turned into meaningful change....

I did not leave prison bitter.  I love America and believe in the inherent goodness of the American people and the possibility of redemption.  Now it is President Trump who can make history if he takes the opportunity to go further than any president before him by giving second chances to thousands of people who just need someone to hear them.

The president has a power that the Constitution grants to him alone to both show mercy and deliver justice for people who were given excessively long sentences for crimes involving no violence.  The people who deserve to be freed are those who have long since recognized their mistakes and who have rehabilitated themselves during their time in prison.

I will never forget what President Trump did for me. He changed my life and gave me the opportunity to fulfill my potential, and now he has the chance to do the same for thousands more.

I find it interesting and encouraging that Ms. Johnson says there are "thousands more" federal prisoners like her and that she calls upon Prez Trump to "make history" by going "further than any president before" in the use of his clemency powers. To surpass Prez Obama here, Prez Trump would have to grant more than 1700 clemencies, and I know Ms. Johnson is not the only one who would like to see this happen.

October 14, 2018 in Clemency and Pardons, Criminal justice in the Trump Administration, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, October 10, 2018

Can Kanye West help jump-start now dormant clemency and criminal justice reform activity in White House?

RTX2UU4M-1024x683The question in this title of this post is prompted by this news as reported at Vox: "Kanye West will meet with Trump at the White House to talk prison reform, violence in Chicago." Here is some context:

West is expected to visit Washington on Thursday to meet with President Trump as well as White House senior adviser Jared Kushner, according to the New York Times. The Times reports that West will meet with Kushner first and will then have lunch with Trump. The meeting was confirmed in a statement by White House press secretary Sarah Huckabee Sanders.

West is expected to discuss a number of topics during his visit, including job opportunities for those released from prison, manufacturing jobs in Chicago, and gang violence. Sanders said West — who grew up in Chicago and recently announced plans to move back into the area — will also discuss “what can be done to reduce violence in Chicago,” days after Trump proposed implementing stop-and-frisk policing tactics in the city.

The Thursday meeting won’t be the first between Trump and West; the rapper previously went to Trump Tower in December 2016 to discuss “multicultural issues.” In May, West’s wife, reality TV star and entrepreneur Kim Kardashian West, met with Trump to discuss prison reform and pardoning Alice Marie Johnson, a 63-year-old black woman serving life in federal prison for a first-time drug offense. Trump commuted Johnson’s sentence, and in the months since, Kardashian West has returned to the White House to continue to lobby for prison reform.

Kanye West has become one of the president’s highest-profile celebrity supporters, and he has favorably tweeted about Trump on numerous occasions. Last month, West delivered a pro-Trump speech after a performance on Saturday Night Live. “So many times that I talk to a white person about this, and they say, ‘How could you support Trump? He’s racist.’ Well, if I was concerned about racism,” West said, “I would have moved out of America a long time ago.”...

The meeting also highlights the continued power of celebrities in the Trump era. While other presidents have often brought celebrities to White House — Barack Obama notably invited rappers including J. Cole and Nicki Minaj to discuss criminal justice reform — these gatherings were also accompanied by policy meetings with experts.

President Trump, meanwhile, has almost exclusively relied on celebrity references from figures like Kardashian West and Sylvester Stallone, as well as input from conservative figures like Ted Cruz and outlets like Fox News, to shape his approach to aspects of the justice system like pardons. Policy meetings on prison reform and sentencing, on the other hand, have been largely left to aides and advisers like Kushner.  The president has also fiercely criticized celebrities who speak out against his policies, most recently telling reporters that he likes Taylor Swift’s music “25 percent less” after her recent endorsement of Democrats running for office in Tennessee.

Not every celebrity invited to the White House has gone. For example, rapper Meek Mill, who experienced a decade-long saga with the criminal justice system, dropped out of a May discussion on prison reform, telling reporters that the event had become focused on him and Trump rather than policy.

Much of this seems to be the result of how much influence celebrities — or at least celebrities with minimal criticism of Trump himself — appear to hold in the Trump White House when it comes to matters of criminal justice. A September report from USA Today noted that the Trump administration has taken “an often chaotic, ad hoc approach to clemency.” The report added that the president “has granted pardons to people who haven’t applied for them, bypassed the formal Justice Department review process, and focused his pardon power on a handful of politically charged, high-profile cases.” While there have been efforts to create a more disciplined process, it is unclear if the president would respond positively to such a development.

UPDATE: A helpful reader made sure I saw this new Washington Examiner article headlined "Trump says he will release more inmates: 'A lot of people' jailed 'for no reason'." The piece reports on Prez Trump continuing to talk up the prospect of coming (mass?) clemency grants:

President Trump said Tuesday he is "actively looking" for more inmates to release from prison with his clemency powers, saying "a lot" of people are jailed for years without good reason.

Trump told reporters in the Oval Office he was happy he released drug convict Alice Johnson from a life sentence in June, and that he intends to do more. "Alice Johnson is such a great person, such a great case. I'd like to find a lot of people like Alice Johnson. And there are a lot of people that are in a situation like that. And we are actively looking for those situations," he said.

Trump said Johnson "is a terrific woman. I've been watching her a lot and what a great spokesman she is for that situation. And that's covering a lot of people. There are a lot of people like that, that will unfortunately be locked up for many, many years, and there's no reason for it."

"We are looking for — we are actively looking for other situations exactly like that," he said.

A few of many recent related posts about recent Trumpian clemency activity:

October 10, 2018 in Clemency and Pardons, Who Sentences | Permalink | Comments (0)

Monday, September 10, 2018

Another effective examination of ups and down of federal clemency (and the persistence of hope) in modern times

Against the backdrop of almost complete disuse of the federal clemency power (especially the power to commute prison sentences) which had become a modern norm, the clemency activity over the last few years of the Obama Administration and at the start of the Trump Administration have been encouraging.  But this effective extended review of recent developments, with a focus on the case of "Life for Pot" defendant John Knock, highlights that for many downs rather than ups define the reality of all the buzz around clemency.  The article's full headline highlights its themes: "The Prisoners Left Behind: How Barack Obama’s clemency operation failed thousands of drug offenders, some serving long sentences for cannabis crimes, and left them at the mercy of Donald Trump’s whims."  Here is an excerpt:

Knock is one of more than 1,500 drug offenders set to die in federal prison under 1980s-era drug sentencing laws, despite a critical shift in drug punishments since then. Dozens of those lifers are marijuana offenders like him. With no other recourse, Knock had turned to clemency as his best chance at freedom.  Obama’s program was well intentioned but hobbled by poor planning.  Trump has commuted the sentence of just one drug offender so far, but that’s enough to give some inmates a shred of hope.

But those hopes were misplaced. Although President Obama’s program did grant more than 1,700 commutations — more than any other president — clemency experts say bureaucracy and poor planning stifled the program’s ability to free many more. Out of the 13,000 people denied between 2014 and 2017, thousands appeared to be worthy candidates—at least on paper, according to a 2017 analysis by the U.S. Sentencing Commission.... 

But in fact, the commission found that only 3 percent of drug offenders who appeared to meet all of the DOJ’s criteria actually received clemency. Conversely, only 5 percent of the people who did receive clemency appeared to meet all of the criteria. Without much transparency in the review process, several critics now compare it to a “lottery system.” 

“It felt like a lottery, in the sense that if you say you need six criteria to be considered, people are going to take you at your face value,” said Courtney Oliva, executive director of NYU’s Center on the Administration of Criminal Law.  Thousands of other petitions got no response at all. On Obama’s final day in office, 11,000 pending petitions rolled over into President Donald Trump’s administration, leaving thousands of cases still languishing in limbo as inmates looked to another president for mercy....

[I]n early June the president did commute the life sentence of Alice Johnson, who had served twenty years in prison for her role in a large cocaine distribution ring. Before Trump, President Obama had denied Johnson’s requests for clemency three times. 

Trump’s move came at the request of a celebrity, Kim Kardashian West, who visited the White House again this week to discuss criminal justice reform.  Kardashian also said this week she has a second candidate for clemency in mind, a man named Chris Young who is serving a life sentence for cannabis and cocaine convictions.  He was thirty years old when he was sent to prison almost a decade ago. Two days after granting Johnson’s clemency, Trump said he was considering other pardons from a list of 3,000 names. But despite his decision for Alice Johnson, some still doubt the possibility of a wholesale initiative like Obama’s. 

“I think there’s a lot of uncertainty as to what it means because I don’t trust this administration,” said Courtney Oliva. “Assuming we have a normal president again someday, you’re going to want a system that’s not path-dependent on Kim Kardashian.”  But to John Knock and his family, the latest clemency approval has ushered in a surge of optimism.  “How do I feel? Hopeful,” Knock wrote in a letter, days after Johnson’s release. “Obama had seven layers of bureaucracy one had to pass through.  Trump has one.” 

“It’s disruptive to the way the system has always worked,” Knock’s sister Beth Curtis said. “If it is done directly through the White House, and the White House considers petitions that had been carefully vetted by people in the criminal justice community, that’s a very positive thing.”... 

“I still have hope,” Knock said.  Knock’s name is among the several that have been sent directly to senior advisor Jared Kushner, according to Curtis, and Knock’s was sent by “a man who knew John in high school who is a friend of Mike Pence.”

September 10, 2018 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, September 05, 2018

Can Kimme bring "REAL systemic change" to the clemency process? She is with all the right folks at the White House.

After Kim Kardashian West talked Prez Donald Trump to commute the life sentence of a drug offenders (basics here), I am inclined to call her a leading force in modern criminal justice reform. And now, as detailed in this CNN piece, headlined "Kim Kardashian at White House for clemency review session," she is back at the White House preaching the need for systemic reform:

Kim Kardashian West arrived at the White House on Wednesday to discuss sentencing reform and clemency issues with White House officials, two White House officials told CNN. The reality TV star and entrepreneur was not expected to meet with President Donald Trump, one White House official said, though the plans could change.

Kardashian West, who successfully lobbied Trump earlier this summer to commute the sentence of Alice Marie Johnson, a nonviolent drug offender serving a life sentence, returned to the White House on Wednesday for a listening session on clemency issues with White House officials, including the President's son-in-law Jared Kushner.

"Today at the White House, members of the administration are hosting a listening session about the clemency process. The discussion is mainly focused on ways to improve that process to ensure deserving cases receive a fair review," deputy White House press secretary Hogan Gidley said in a statement.

Kardashian West was just one of several prison reform advocates and legal activists at the White House for the listening session on Wednesday, including Van Jones, a CNN political commentator and former adviser to President Barack Obama; Leonard Leo of the Federalist Society; Mark Holden, the general counsel of Koch Industries and Jessica Jackson Sloan, a human rights attorney and prison reform advocate.

Other attendees include Rachel Barkow, Brittany Barnett, Alex Gudich, Shon Hopwood, Paul Larkin, Mark Osler and Kevin Sharp, a former federal judge....

Trump's exercise of that clemency power has so far been on a case-by-case basis and frequently animated by personal loyalty or personal advocacy efforts. The White House is now seeking to create a regular review process for clemency review.

Kardashian West has signaled in recent days that she is taking up another case, appearing on the podcast "Wrongful Conviction" to say that she is now working on the case of Chris Young, who is serving a life sentence related to a drug case due to a mandatory minimum prison sentence.

This report is very encouraging, as is this tweet from Ms. West:

A few of many recent related posts about recent Trumpian clemency activity:

September 5, 2018 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Saturday, September 01, 2018

Could Gov Jerry Brown really be tempted to commute all of California's death row on his way out of office?

The question in the title of this post is prompted by this recent Fox News article headlined with a similar question, "Will Jerry Brown commute sentences of every death row inmate in one of his last acts as California governor?". Here are excerpts:

[A]s Jerry Brown’s tenure as governor of California draws to a close in January, capital punishment supporters have raised the specter that he could commute many, if not all, of the sentences.

On March 28, California’s Supreme Court issued an administrative order making it possible for Brown to commute the sentences or grant clemency.

Michele Hanisee, president of the Association of Deputy District Attorneys in Los Angeles County, told the Orange County Register earlier this week that this removes any impediment Brown may have faced. Before that, a governor had to get the approval of the majority of the state Supreme Court in the case of an inmate with two or more felony convictions. “They basically have green-lighted the governor to grant clemency to anyone…and said they won’t interfere,” she said.

California has the largest death row population in the country, but only 13 have been executed since capital punishment was reintroduced to the state in 1978, with the last one occurring in 2006. Appeals that drag out for many years are common. Last year, there were 400 death penalty appeals pending.

Despite its liberal reputation, more than half of California’s residents have expressed support for the death penalty, striking down referenda calling for it to end.

Brown, a former Jesuit seminarian who as a young man demonstrated against capital punishment, made his opposition to it clear during his political campaigns, but also said he’d respect the law regarding it while serving as attorney general and governor.

Asked if the governor was considering commuting death sentences, a spokesperson for Brown told Fox News: “A request for commutation is a serious matter, and every applicant is carefully and diligently vetted. The Governor issued commutations earlier this month… California inmates can petition to have their sentence reduced or eliminated by applying for a commutation of sentence. To be clear, no individuals on death row have received commutations.”...

Kent Scheidegger, an attorney who argued for Proposition 66 – a measure to speed up executions – said that anything is possible as far as Brown and California politics, but he believed the governor would not commute death sentences. “Despite his personal opinion, he said he’d enforce the death penalty,” said Scheidegger, who is legal director of the Criminal Justice Legal Foundation in California. Scheidegger expressed concern about the state high court’s order appearing to give Brown more sway over commuting death sentences, telling Fox News: “That’s worrisome.”

Since executions rarely have been carried out in California and elsewhere, some have called the death penalty symbolic, and pointless. Scheidegger said he disagrees. “It’s important because there are some crimes for which anything less is simply not justice.”

September 1, 2018 in Clemency and Pardons, Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Friday, August 24, 2018

Will Prez Trump deliver on all the clemency "tidal wave" of hopefulness he has engendered?

The question in the title of this post is prompted by this notable recent article in the Washington Examiner headlined "MLK niece urges clemency 'tidal wave' after giving White House list of names." Here are excerpts: 

Evangelical leader Alveda King says she’s optimistic that President Trump will unleash a “good tidal wave” of clemency after she delivered to the White House a list of nearly 100 prisoners who she wants Trump to release.

The niece of Martin Luther King Jr. participated in an Aug. 1 discussion between Trump and African-American pastors and left behind her list of names with the office of the presidential adviser and son-in-law Jared Kushner.

King, a supporter of Trump and leader of the anti-abortion group Civil Rights for the Unborn, declined to provide a copy of her list, citing the potential sensitivity of clemency decisions, and would not discuss specific details about her interactions at the White House. “I did not, on purpose, count or remember the names, I just submitted the list,” King told the Washington Examiner. “I’m trying to get a good tidal wave, a positive tidal wave, a tidal wave to maybe change things and make things better.”

King wants to see a "jubilee" or mass awarding of clemency and said there are misperceptions about what’s happening behind the scenes. She said it’s her understanding that the White House, through Kushner’s office, is processing recommendations in an orderly manner.

Trump has used his constitutional clemency powers nine times — releasing four inmates, two with pardons, and issuing post-release pardons to five others — almost always at the urging of celebrities or political allies, giving the impression of haphazard grants based on influencer requests.

But King said she believes the White House has in place a process for reviewing a deluge of recommendations following the June release of Alice Johnson, a drug conspiracy convict who Trump released at the urging of reality TV star Kim Kardashian. Trump unleashed tremendous enthusiasm behind bars by releasing Johnson, and then declaring: "There will be more pardons. ... I want to do people that are unfairly treated like an Alice."

There were signs of increasing internal work on clemency applications at about the time Johnson was released. Days earlier, White House counsel Don McGahn called a right-leaning policy advocate and asked him to assemble lists of worthy clemency aspirants. The outside contact gathered names from the CAN-DO Foundation and Families Against Mandatory Minimums and hand-delivered the lists to McGahn and Kushner.

Some policy advocates have urged Trump to create an in-house clemency commission that would supplement the work of the Justice Department’s Office of the Pardon Attorney, which clemency advocates view as ineffectual and biased in favor of prosecutors. But so far, no official in-house review process has been announced....

“It’s not disorder, it’s a very orderly process. … I'm a person who believes in order, and I believe they have a good system in place," King said. "I didn’t try to go in and put a list in the president’s hands. ... You can get it to Jared Kushner’s office, and they will look at it."

Angela Stanton, a former prison inmate, author, and King’s goddaughter, took the lead in assembling King's list. She said that inmates who already served more than 10 years in prison were given priority. “Everybody deserves to get out and everybody deserves a second chance,” Stanton said. “The majority of these people decided to go to trial, and if they had not gone to trial, they would have been home.”

A couple names on the list already were submitted to the White House, such as Michelle West, 25 years into a life sentence for drug-related crimes, and paralyzed inmate Michael Pelletier, 12 years into a life sentence for smuggling Canadian marijuana into Maine.  Others were profiled in a New York University report featuring inmates left behind by an Obama administration push to shorten drug sentences, including Lavonne Roach, a mother of three who is 20 years into a 30-year methamphetamine sentence; Chad Marks, who is more than a decade into a 40-year sentence for drug dealing; David Barren, 10 years into a 30-year cocaine sentence; and Craig Cesal, who since 2003 has been serving a life sentence for marijuana crimes.

The report referenced above is this 36-page document produced by the Center on the Administration of Criminal Law at NYU Law School under the title "The Mercy Lottery: A Review of the Obama Administration’s Clemency Initiative."  I am very pleased to see that report being used to generate a list of good clemency candidate, though I sense that the Trump White House has heard from lots of different folks in lots of different ways about lots of different clemency possibilities.  That reality leads me back to the question in the title of this post: because there is no shortage of good clemency candidates in the federal system, the only thing really holding back a clemency "tidal wave" is the person sitting in the Oval Office.  

August 24, 2018 in Clemency and Pardons, Criminal justice in the Trump Administration, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Wednesday, August 15, 2018

Interesting commutation developments in wake of initiative reform in Oklahoma

This local story, headlined "49 Oklahoma inmates imprisoned for drug crimes asking for commutations; 49 asking state to consider commutations in light of State Question 780," reports on an interesting clemency echo in the wake of a notable ballot initiative passed in Oklahoma in 2016. Here are the details:

Some state inmates serving 10 years to life in prison for what has been described as “low-level” drug crimes have applied for commutations thanks to the help of advocates and law students.

The 49 inmates and those backing their commutation applications are citing recent changes in state law — and Oklahoma’s highest incarceration rate in the nation — as the reason why. “A lot of these are 20-, sometimes 30-year sentences on a crime that if charged now would be a misdemeanor,” said Corbin Brewster, Tulsa County’s chief public defender.

Brewster’s office assisted Oklahomans for Criminal Justice Reform with creating the list of inmates. The coalition of business and community leaders, law enforcement experts and advocates across the state is led by former state House Speaker Kris Steele.

The state Pardon and Parole Board will take the up the first batch of 23 commutation requests — all female inmates — on Monday in Oklahoma City. The rest are scheduled to be considered next month.

The requests for commuted sentences, if recommended by the parole board and approved by the governor, would only reduce the length of the prison terms. Some sentences could be modified to “time served,” but the convictions would remain on the inmate’s record.

Push for commutations is spurred by the passage of State Question 780, which starting July 1, 2017, made nonviolent drug possession offenses and low-level property offenses misdemeanors instead of felonies. Steele led the call for the state question, which was approved in November 2016 by 58 percent of Oklahoma voters.

Eight law school students, working as summer interns for Oklahomans for Criminal Justice Reform, helped choose applicants and interviewed them, said Stephen Galoob, associate professor at the University of Tulsa Law School. Galoob said the effort is aimed at “just making the system work.”

“These are all cases and these are all stories that are really powerful,” he said. “And a lot of what the students are doing is just telling the stories of the people who are in prison for crimes that the people of Oklahoma don’t really think we should be locking people up for.”...

The parole board uses a two-stage process to consider commutations. During the first stage, the board reviews the application before considering whether to pass the request to a second, more thorough review stage. At least a majority vote of the board is needed to forward the commutation request to the governor for final consideration.

The parole board considered 477 commutation requests in fiscal 2018, which ended June 30, said DeLynn Fudge, the agency’s executive director.  The board passed 19 of the requests to the second stage of its review process, of which 10 were forwarded to the governor with a recommendation that they be approved, Fudge said. 

Especially in light of the historical numbers reported in this article, it is especially interesting and exciting to see this follow-up article headlined "Nearly two dozen cases involved in 'commutation campaign' advance to second stage of consideration":

The Oklahoma Pardon and Parole Board voted Monday to advance a group of nearly two dozen people who are being assisted by a commutation campaign to a second stage of review.

August 15, 2018 in Clemency and Pardons, Drug Offense Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, August 01, 2018

Office of Inspector General issues "Review of the Department’s Clemency Initiative"

A couple of helpful readers made sure I did not miss today's release of this big new report from the Justice Department's Office of the Inspector General titled simply "Review of the Department’s Clemency Initiative." Here is just the very start of its "Results in Brief":

We found that the Department did not effectively plan, implement, or manage the Initiative at the outset. However, subsequent actions by Department leadership enabled the Department to not only meet its goal of making recommendations to the White House on all drug petitions received by the deadline of August 31, 2016, but also to make recommendations on over 1,300 petitions received by OPA after the deadline. In total, as a result of the Initiative, the Department made recommendations to the White House on over 13,000 petitions, resulting in 1,696 inmates receiving clemency.

Our review identified several shortcomings in the Department’s planning and implementation of the Initiative. Because of philosophical differences between how the Office of the Deputy Attorney General (ODAG) and OPA viewed clemency, Department leadership did not sufficiently involve OPA in the Initiative’s preannouncement planning. Moreover, despite the Department’s stated commitment to provide OPA with the necessary resources, the Department did not sufficiently do so once the Initiative began.

The Department also did not effectively implement the Initiative’s inmate survey, which was intended to help the Department identify potentially meritorious clemency petitioners. For example, rather than survey only those inmates who likely met the Initiative’s six criteria, the survey was sent to every Federal Bureau of Prisons inmate. As a result, CP 14 and OPA received numerous survey responses and petitions from inmates who clearly did not meet the Initiative’s criteria, thereby delaying consideration of potentially meritorious petitions. We found other problems with the survey, resulting in OIG’s issuance of a Management Advisory Memorandum to the Department, which is attached as an appendix to this report.

Further, the Department experienced challenges in working with external stakeholders to implement the Initiative. For example, the Department did not anticipate that CP 14 attorneys would have challenges in obtaining inmate Pre-sentence Investigation Reports and, as a result, it took almost a year before the Administrative Office of the U.S. Courts allowed CP 14 attorneys to access them, which hampered CP 14’s ability to make timely eligibility determinations. We also found that the Department and CP 14 had very different perspectives regarding CP 14’s role in the Initiative. In particular, while the Department expected CP 14 to focus on identifying and submitting petitions on behalf of inmates who were strong candidates for clemency, CP 14 instead viewed its role as assisting and advocating for any inmate who wished to file a petition. As a result, the Department believes CP 14 took longer to complete its work.

Because I am on the road, I fear I will not have a chance to review and comment on this important and valuable new report. But what I have already read reinforces all my long-standing concerns about the Department of Justice having a central role in the clemency process and my long-voiced contention that all Prez should take clemency powers and possibilities seriously from the very moment they are elected to serve in the Oval Office.

August 1, 2018 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, July 30, 2018

Notable review of capital clemencies by Ohio governors

The AP has this interesting new piece, headlined "Gov. Kasich spares record number of death row inmates," that reviews the current and past Ohio gubernatorial records on the death penalty and capital clemencies. Here are excerpts:

Ohio Gov. John Kasich has finished dealing with executions for the remainder of his time in office following a modern-era record of death penalty commutations.  The Republican governor spared seven men from execution during his two terms in office, including commutations on March 26 and July 20. Kasich allowed 15 executions to proceed, including the July 18 execution of Robert Van Hook for strangling, stabbing and dismembering a man he met in a Cincinnati bar more than 30 years ago.

Not since Democrat Mike DiSalle spared six death row inmates in the early 1960s has an Ohio governor spared so many killers during periods when the state had an active death chamber. DiSalle allowed six executions to proceed. Democratic Gov. Richard Celeste commuted eight death sentences just days before leaving office in 1991, but none of those inmates' executions was imminent....

Kasich's immediate predecessor, Democratic Gov. Ted Strickland, commuted five death sentences and allowed 17 executions during his four-year term. Ohio resumed executions in 1999 under Gov. Bob Taft after a 36-year gap. Taft, a Republican, allowed 20 executions to proceed and spared just one inmate based on concerns raised by DNA evidence not available at the time of trial.

Nationwide, governors have spared 288 death row inmates since the U.S. Supreme Court upheld the constitutionality of capital punishment in 1976, with a handful spared each year over the past decade. That doesn't include mass clemencies in states — such as New Jersey in 2007 — where the death penalty was abolished and entire death rows were emptied.

Sparing inmates is not the political death knell it might have been in decades past, thanks to concerns about innocence raised by DNA testing and the role of severe mental illness on some offenders' behavior. "Kasich's decisions to commute reflect a societal shift away from an unquestioning belief in the value of the death penalty or at least the value in every case," said Lori Shaw, a University of Dayton law professor....

Taft said he's now opposed to capital punishment except in the most severe cases, such as acts of terrorism, multiple victims or the killing of a police officer. He also backs findings of a state Supreme Court commission that recommended against the death penalty for inmates suffering severe mental illness at the time of the crime, and in cases where a homicide was committed during other crimes such as burglaries or robberies. "The climate is a little different in regard to the death sentence today," Taft said. "Governors have more latitude or leeway to consider a number of factors that may not have been considered in prior times."

I noted in this prior post that Gov Kasich's capital record was notable, and I find the comments of former Ohio Gov Taft especially interesting here. (N.B.: the AP needs to fact-check Taft's executions record, as I am pretty sure he presided over 24 executions.)  When Taft says "Governors have more latitude or leeway to consider a number of factors that may not have been considered in prior times," he is not talking about any change in the legal standards or procedures for clemency in Ohio.  Rather, Taft is referencing a purely political evolution that now make it much less politically risky for a Governor to grant lots of capital clemency.

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

Thursday, July 26, 2018

Interesting reflections on modern clemency realities

I flagged in this prior post an interesting star-studded event in DC yesterday discussing federal clemency's past, present and possible future.  This Washington Examiner piece reports on some of the interesting things said at the event under the headline "Alice Johnson recalls 'feeling of betrayal' from Obama, urges working with Trump."  Here are excerpts:

Former prison inmate Alice Johnson said Wednesday she had a "feeling of betrayal" when former President Barack Obama left office with her still behind bars, urging other clemency aspirants to put aside their qualms and work with President Trump to win their release.

Johnson, who Trump freed last month from a drug-related life sentence, spoke at a gathering of clemency advocates at George Washington University, saying her case should give hope to others. "From what everyone was saying, the Obama administration would be the one that would set you free, but I was still not set free. So to put your faith in a man was not a good thing to do," Johnson said.

"And not only was I left behind, but many others were left behind also," Johnson said. "There was a feeling of betrayal because I had so much hope that I was going to come out." Johnson, who addressed the gathering before a series of panels, and then again as a panelist, said she thinks there was a divine purpose in her wait. "It didn't happen for a reason. It happened for this time in history so that you will know that hearts can change, so that you will know that you should never stop fighting either, that you are not to look at what administration is in power, who is in office," she said....

Panelists at the clemency-themed event at points debated the merits of former President Barack Obama's late-second-term spree of prison commutations, which went overwhelmingly to drug convicts, a large share of whom were convicted for crack cocaine.  "The initiative missed a ton of people," said Rachel Barkow, a law professor and member of the U.S. Sentencing Commission. Barkow argued that a major flaw was relying on the Justice Department, saying that prosecutors are disinclined to recognize mistakes. "The deputy attorney general was saying 'no' in a lot of these cases," she said.

Roy Austin, a White House official in the Obama administration, defended Obama's late-term commutation push, saying "I'm biased, [but] we got it pretty dang right." Austin said he "loves" Trump's openness to recommendations from influential people, but that "the problem is that that's helping too few," and lacks a standardized process to ensure fairness.

Van Jones, an early-term Obama adviser who helps lead the clemency campaign #Cut50, offered positive views on the Trump administration, saying that at first "I was hopeless on election night" about clemency. "He took one step and got positive feedback," Jones said about Johnson's release, Trump's second prison commutation and his first for a drug convict.

Trump's subsequent invitation for professional athletes to submit the names of people worthy of clemency — an offer with few respondents — was "a remarkable development," Jones said. "He literally ran out of the White House saying, 'I want to do more.'"...

Several panelists discussed ideas for moving the vetting work of the Office of the Pardon Attorney out of the Justice Department, to streamline clemency applications and remove a possible conflict of interest.

Amy Povah, a Clinton clemency recipient who leads the CAN-DO Foundation, said that she's optimist about the Trump administration. "I think we have a huge opportunity because of [Johnson's] case, and I hope the Trump administration does something historic," Povah said.

Mark Holden, general counsel of Koch Industries, said clemency transcends the typical conservative-liberal divide in politics. "These are fundamental liberty issues," he said, arguing that Johnson's case "shocks the conscience" regardless of political affiliation.

I sincerely want to be as optimistic and hopeful as Amy Povah about Prez Trump doing something historic in this arena.  But all of his clemency chatter needs to become clemency action before too long if he wants to avoid creating a "feeling of betrayal" among a whole lot of federal prisoners now surely eager to benefit from all his encouraging talk.

A few of many recent related posts about recent Trumpian clemency activity:

July 26, 2018 in Clemency and Pardons, Criminal justice in the Obama Administration, Criminal justice in the Trump Administration, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Monday, July 23, 2018

Notable discussion of clemency's past, present and possible future in DC on July 25

As detailed in this press release, an impressive and diverse collection of experts will be speaking about clemency this week at the George Washington University Law School. Here are a few details about the event from the release:

Criminal Justice Reform Advocates to Hold Forum on July 25 to Discuss Clemency in the Trump Era, Featuring Commutation Recipient Alice Johnson & Bipartisan Clemency Advocates

What: Justice Roundtable will host a forum on July 25, 2018 from 11:30 am to 2:00 pm to explore clemency for drug offenses, focusing on its use in the Bush, Clinton and Obama presidencies, how it is being handled during the Trump presidency and concrete ways it can be enhanced today and beyond.

Where: George Washington University Law School, Moot Court Room 2000 H Street NW, Washington, DC

When: 11:30 am to 2:00 pm; Wednesday, July 25, 2018

Here is how the clemency panel discussion is structured and scheduled speakers:

What it Was

  • Roy Austin, former White House Domestic Policy Council
  • Rachel Barkow, Commissioner U.S. Sentencing Commission
  • Jason Hernandez, sentence commutation by President Obama
  • Amy Povah, Director CAN-DO Foundation & Clinton commutee

What it Is

  • Mark Holden, General Counsel, Koch Industries
  • Van Jones, political commentator, host of The Van Jones Show
  • Brittany Barnett, founder Buried Alive Project, Attorney for Alice Johnson
  • Alice Marie Johnson, sentenced commutation by President Trump

What it Can Be

  • Mark Osler, Professor & Distinguished Chair, Univ. of St. Thomas Law School
  • Paul Larkin, Senior Fellow, Meese Center, Heritage Foundation
  • Ebony Underwood, founder, We Got Us Now
  • Andrea James, Natl Council Incarcerated & Formerly Incarcerated Women & Girls

July 23, 2018 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

A father's perspective on clemency and its potential (and limits)

A helpful reader alerted me to this interesting new commentary authored by John Owen, headlined "A father's plea for mercy for his imprisoned daughter."  Here are excerpts:

President Donald Trump’s recent pardons and commutations have spotlighted, once again, the importance of executive clemency to soften the harshness of our criminal justice system.  President Abraham Lincoln was famous for preferring mercy over “strict justice.”  In fact, he used his clemency power so liberally, his attorney general had to assign someone to shadow him to record the names of all those he pardoned or commuted, according to author Margaret Love....

That’s how executive clemency is supposed to work.  It operates outside our rule of law, but it also respects it. It is the personal prerogative of the leader and so, inevitably, can be arbitrary.  It is also a message to our branches of government and to our society to mitigate our desire for vengeance with compassion....

I have spent the past nine years grieving the almost 20-year sentence imposed on my daughter, Mary Anne Locke, for her low-level, non-violent role in a meth distribution conspiracy.  She was ordered to report to federal prison in 2009, six weeks after she had a Cesarean section.  Along with her baby, she left behind a loving husband and two other children.

Mary Anne did not have an easy life, and I accept the role I played in that.... In her early teens, Mary Anne found drugs and men who were themselves substance abusers and also physically violent....  She relapsed at age 28, triggered by personal tumult, as well as health problems for which she was prescribed amphetamines. It was around this time that she became involved with the head of the meth conspiracy charged in her federal case. He gave her an unlimited supply of meth and, in return, embroiled her in a supportive capacity in his drug distribution activities.

Pregnant with her second child in 2007, Mary Anne again disavowed the drug lifestyle.  The indictment in her federal case was handed down in 2008, when she was pregnant with her third child, after two years of sobriety and a wonderful marriage with her then husband, who had no connection with her drug activities. She cooperated fully upon arrest, at considerable risk to herself.

Imagine our family’s devastation when she was sentenced to 234 months, or 19.5 years.  Murderers get less time. Although nationally, statistics indicate that defendants with her characteristics would receive an almost 50 percent reduction of their applicable guideline, the judge gave her just a 20 percent reduction.  Mary Anne was not the kingpin or organizer. She never engaged in or threatened any violence.  She played a supportive role to fund her addiction.  She had never spent more than a night in custody.  She is precisely the kind of low-level player deserving of leniency.

Rather, her sentence was driven by the charging decisions of the prosecutors she faced and the particular sentencing philosophy of her judge.  This judge has been critiqued as one of the harshest in the country.  In fact, she is the only sitting judge to have been subject to a commutation by Trump (the 27-year sentence of Sholom Rubashkin).  Moreover, today, not only would another judge give Mary Anne an almost 50 percent reduction of her applicable guideline, Mary Anne’s sentencing guideline would be substantially lower....

Needless to say, Mary Anne has served the top end of that guideline.  And she has done so with distinction.  She has been an exemplary prisoner — discipline-free, who has worked and studied consistently throughout her sentence, completing her final year in a three-year college program in office administration.  Don’t get me wrong.  Mary Anne broke the law and deserved punishment.  But her lengthy sentence violates any basic notions of justice and proportionality.  She deserves mercy.

She applied for clemency before President Barack Obama, and has again applied before President Trump.  She was represented in both applications by the Clemency Project at the University of Minnesota Law School.  I am a lifelong Republican. I am, however, forever grateful to Obama for bringing executive clemency back to its roots — to address systemic unfairness, while also acknowledging the humanity of each person behind bars.  I am also buoyed by Trump’s recent clemency decisions, and his pronouncements that he plans to use it even more expansively.

But nothing beats a legislative solution that grants my daughter — and the thousands of prisoners like her — a “second look” at the severity and fairness of their sentence, in a public proceeding, with a judge and an advocate.

July 23, 2018 in Clemency and Pardons, Drug Offense Sentencing, Offender Characteristics, Race, Class, and Gender, Sentences Reconsidered, Who Sentences | Permalink | Comments (16)

Sunday, July 22, 2018

"Setting the Record Straight: The Pardon Power is Part of the Rule of Law"

The title of this post is the headline of this commentary at Just Security authored by Sam Morison, who worked for many years as a staff attorney in the Office of the Pardon Attorney.  I recommend the piece in full, and here are excerpts: 

Writing from the perspective of a former federal prosecutor, Barbara McQuade decried President Donald Trump’s most recent exercise of the pardon power, which supposedly poses a grave threat to “anyone who is committed to our legal institutions, particularly federal law enforcement.”  The remedy for such alleged abuse of discretion, she suggests, is to rely on the good judgment of the Office of the Pardon Attorney (OPA), the agency within the Justice Department that for many years has supervised the provision of advice to the president in clemency matters.  The default standard for making such decisions, she further suggests, is contained in the U.S. Attorney’s Manual, according to which a “petitioner should be genuinely desirous of forgiveness rather than vindication.”

This has now become a familiar refrain among the president’s critics.  But while reasonable minds might differ about the substantive merits of the president’s clemency decisions to date, McQuade’s critique exhibits both a remarkably impoverished view of the pardon power and an exaggerated confidence in the legitimacy of the extant advisory process....

[T]he president has both a right and a duty to exercise the pardon power because of his own constitutional concerns about a law or because of policy objections to enforcement of the law in a particular context.  This principle was established as early as 1804, when upon taking office President Thomas Jefferson pardoned those who had been convicted under the Alien and Sedition Acts, which he believed to be unconstitutional.  Similarly, President Woodrow Wilson granted dozens of pardons to persons convicted of liquor-related offenses under the Volstead Act, because of his constitutional objections to the law.

More recently, President Ronald Reagan granted pardon to former FBI agents Mark Felt and Edward Miller while their cases were still pending on appeal, on the grounds that they had not acted with criminal intent, but rather in a “good-faith belief that their actions were necessary to preserve the security interests of our country.”  President George H.W. Bush pardoned the so-called Iran-Contra defendants, after indictment but prior to trial, based on his conclusion that the independent counsel’s prosecution had constituted the “criminalization of policy differences.”  Prior to leaving office, President Clinton pardoned or commuted the sentences of numerous persons convicted in independent counsel investigations that had dogged his administration for basically the same reason.  And President George W. Bush commuted the prison sentence of Lewis Libby, his vice president’s former chief of staff, after his conviction was affirmed but before he reported to prison.  Bush reasoned that even if Libby had committed perjury in the context of a highly politicized grand jury investigation, a prison sentence would be excessively harsh punishment.

Granted over a period of more than 200 years, the common thread that ties these disparate acts of executive clemency together is the intersection of law and politics.  In each case, the president made the judgment that partisan considerations had improperly influenced either the legislative or the judicial process, thereby undermining the moral legitimacy of strictly enforcing the letter of the law.

When the president exercises the pardon power for this reason, it is not an idiosyncratic exception to the normal operation of the federal criminal justice system.  To the contrary, it is an integral part of the system of checks and balances embedded in the Constitution.  As Justice Oliver Wendell Holmes wrote for a unanimous Court, a pardon “is not a private act of grace from an individual happening to possess power. It is a part of the Constitutional scheme. When granted it is the determination of the ultimate [executive] authority that the public welfare will be better served by inflicting less than what the judgment fixed.”  In this context, then, a pardon is a public act of grace, taken by the president in his official capacity as the chief executive, to preserve the integrity of the federal criminal justice system.

The only remaining question is who should exercise effective control over this broad discretionary power, a democratically elected president or a small cadre of anonymous bureaucrats in the Office of the Pardon Attorney (OPA)?  Having served as a staff attorney in OPA for more than a decade, I can say with some confidence that the office does not view its role as a neutral arbiter.  Instead, OPA’s institutional function is to protect the Justice Department’s prosecutorial prerogatives by churning out a steady stream of almost uniformly negative advice, regardless of the merits of any particular case.  This is problematic because in the normal course, the only information the president receives about a case is whatever the Justice Department chooses to tell him.  And in my entire tenure at OPA, I am not aware of a single instance in which a federal prosecutor acknowledged that one of her cases might have been affected by “undue harshness or evident mistake.”

There is no reason to believe that this situation has fundamentally changed, given the Justice Department’s inherent conflict of interest in each of these cases. In effect, the Justice Department’s advisory record amounts to the assertion that the federal criminal justice system is essentially perfect — injustices never occur, sentences are never excessive, circumstances never change, and mercy is never appropriate.  No disinterested person really believes this. Accordingly, if Trump insists in going it alone, as McQuade complains, the Justice Department has no one but itself to blame.

A few of many recent related posts with commentary about recent Trumpian clemency activity:

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

Wednesday, July 18, 2018

Texas completes eighth execution of 2018 despite complaints about clemency process

This Texas Tribune article, headlined "Texas executes Chris Young, who fought the state parole board in a final appeal," reports on the latest lethal injection and litigation in the Texas capital system.  The subheadline summarizes the heart of the story: "The death row inmate claimed that the parole board likely rejected his clemency petition because he was black. The argument highlighted a long-standing criticism of clemency in Texas." Here are excerpts from a lengthy piece:

In his final fight before his execution Tuesday evening, Chris Young targeted Texas’ secretive clemency process.

On Friday, the Texas Board of Pardons and Paroles unanimously rejected Young’s clemency petition — often the final check in the death penalty process before an inmate is sent to the death chamber.  Hours later, Young’s lawyers filed suit against the board members, claiming that they likely voted against a recommendation to reduce his sentence or halt his execution because he is black.

The appeal was a long shot, and one he ultimately lost in federal court Tuesday, hours before the state put him to death for the 2004 robbery and murder of Hasmukh Patel at Patel's San Antonio store.  At 6:13 p.m., Young, 34, was injected with a fatal dose of compounded pentobarbital and pronounced dead 25 minutes later....

Though unsuccessful, the late filing highlighted a long-established criticism of Texas clemency — the reasoning for the board’s decision is unknown to the public, and individual members usually cast their votes remotely without comment or a hearing.  Though members must certify that they do not cast their votes because of the inmate’s race, they also don’t have to give any reason for their decision....

Young was 21 when he entered Patel’s San Antonio store in 2004 and fatally shot Patel during an attempted robbery, according to court records. He was convicted of capital murder and sentenced to death in 2006.

In his recent petition to the parole board asking for a sentence of life instead of death, his lawyers cited his growth in prison — they claim he prevented both an inmate’s assault on a guard and a suicide and that he eased racial tensions on death row — and the fact that Patel’s son, Mitesh, also pleaded for the state to spare his father’s killer.

They tried to draw comparisons between Young and another young man whose life was recently spared by the board and Gov. Greg Abbott — Thomas Whitaker, who was convicted in the planned deaths of his family in 2003, killing his mother and brother and wounding his father in a plot to get inheritance money....

The state responded to Young’s allegations of racial discrimination in court Sunday, claiming Young’s case for clemency was “far weaker” than Whitaker’s.  Assistant Attorney General Stephen Hoffman highlighted factors left out of Young’s petition, including an alleged sexual assault just before Patel’s murder, previous misdemeanor convictions and disciplinary reports from death row.  The response also notes that, unlike Young, Whitaker wasn’t the triggerman in his relatives’ murders....

Since 1998, a Texas governor has spared the life of someone facing imminent execution only three times, according to data obtained from the parole board. In the same two decades, there have been more than 400 Texas executions....

Abbott’s predecessor, Republican Rick Perry, chose to reduce a death sentence to life in prison for only one inmate (U.S. Supreme Court decisions forced him to reduce other sentences) in his 14-year tenure.  He also rejected board recommendations in at least two other cases.  The Whitaker clemency was the first and only board recommendation under Abbott so far.

Because of the minuscule success rate of these cases and the secrecy that surrounds the process, attorney groups and several lawmakers have criticized Texas clemency procedures in capital cases for decades.  In 1998, U.S. District Judge Sam Sparks called it “extremely poor and certainly minimal.” Sparks railed on how the public is kept from the board’s dealings and said no member fully reads the petitions, stating “a flip of the coin would be more merciful than these votes.”...

But for Young, the attempt to draw parallels between himself and Whitaker seemingly fell flat with the members of the parole board.  Instead of being moved off death row to another prison, he was sent to the death chamber, becoming the eighth person executed in Texas this year, and the 13th in the nation.

July 18, 2018 in Clemency and Pardons, Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, July 12, 2018

"The Quest to Get a Pardon in the Trump Era: ‘It’s Who You Know’"

The title of this post is the headline of this notable new New York Times piece documenting various realities that are well-known to those who have been paying attention to the clemency activities of recent Presidents.  Here are excerpts from a terrific piece worth reading in full:

Few constitutional powers lie so wholly at the whims of the president as the power to pardon. No details need to be worked out beforehand and no agency apparatus is needed to carry a pardon out.  The president declares a person officially forgiven, and it is so.

A layer of government lawyers has long worked behind the scenes, screening the hundreds of petitions each year, giving the process the appearance of objectivity and rigor. But technically — legally — this is unnecessary.  A celebrity game show approach to mercy, doling the favor out to those with political allegiance or access to fame, is fully within the law.

The show isn’t new.  Absolving political allies is a notorious if decades-old practice, and Bill Clinton was hardly sticking to procedure when he included friends, family and the well-connected in his last-minute clemency spree.  But Mr. Trump is not waiting for the last minute.

On Tuesday, he issued more pardons, this time for two Oregon ranchers who had been serving sentences for arson on federal land. Interior Secretary Ryan Zinke was apparently among the ranchers’ strongest supporters.  Mr. Trump has said he is considering pardons for Martha Stewart, the lifestyle guru, and Rod Blagojevich, the former governor of Illinois, and people whose cases are championed by professional football players.  He has rebuffed questions as to whether he was planning to pardon any of his own associates — or himself, for that matter.

Pardon seekers have been watching all this.  Having once put their hopes in an opaque bureaucratic process, they are now approaching their shot at absolution as if marketing a hot start-up: scanning their network of acquaintances for influence and gauging degrees of separation from celebrity.  What’s the best way to get a letter to Sean Hannity, the Fox News host and close Trump ally?  How hard would it be to pull aside Robert Jeffress, the prominent Trump-backing pastor, after a church service?

“It’s who you know now,” said Weldon Angelos, whose cause for clemency has been supported by politicians, judges and celebrities. At the consent of prosecutors, Mr. Angelos was released from prison in 2016, after serving a quarter of a 55-year sentence on a drug-related conviction. Now he is seeking a full pardon.  “Everyone’s now trying to get their names out there, to get some buzz,” he said. “That’s the strategy I’m seeing”

Self-promotion in pursuit of forgiveness comes naturally to some and strikes others as absurd.  But there is broad agreement on one point. The standard, procedural route to presidential clemency — a process that has become ever more impenetrable — has hardly been a portrait of justice itself...

Clemency petitions go through the Office of Pardon Attorney in the Justice Department, a system set up more than a hundred years ago to lessen the risks and hassles of leaving an entire nation’s pleas for compassion to one person.  For decades, the process worked smoothly, and hundreds of clemency grants were issued each year. President Dwight D. Eisenhower alone granted over 1,000 pardons.

But starting about 40 years ago, “the prosecutors really got a hold of the process,” said Margaret Love, who was the Pardon Attorney from 1990 to 1997, and now represents clemency applicants. “They became increasingly hostile to the pardon power.”  Even as laws have grown harsher, the number of pardons has dwindled significantly. “It is so secretive and the standards are so subjective,” Ms. Love said.  “They operate like a lottery. Except a lottery is fair.”

In 2014, the Obama administration set up a clemency initiative that led to 1,715 sentence commutations, by far the most of any president.  Still, this accounted for only about 5 percent of the commutation petitions submitted during his two terms. As for full pardons, the Obama administration was stingier than most of its predecessors. The traditional clemency process, as a pardon attorney described in her 2016 resignation letter, remained sidelined and backlogged.

“The process,” wrote Luke Scarmazzo of his attempt at clemency in the Obama years, “was a bureaucratic nightmare.”  In 2008 Mr. Scarmazzo was sentenced to more than two decades in prison for running a medical marijuana dispensary in California. He and his co-defendant, Ricardo Montes, spent months working on an application, but in the end Mr. Montes received a commutation, while Mr. Scarmazzo did not.  Now, “instead of support from career politicians and judges, we’re seeking support from celebrities and influential social icons,” Mr. Scarmazzo wrote in an email from prison.  “We’re less focused on pleasing the D.O.J. bureaucracy and more focused on grabbing the attention of the Oval Office.”

Much of the recent focus on clemency has either been on those, like Ms. Johnson, who are seeking release from prison, or on the famous pardon recipients like Dinesh D’Souza, the conservative provocateur, and I. Lewis Libby Jr., the former aide to Dick Cheney.  But there are countless people living quietly and whose time in the criminal justice system is years in the past, but who, because of the ever-expanding tally of consequences for felony convictions, feel permanently confined.

July 12, 2018 in Clemency and Pardons, Criminal justice in the Trump Administration, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, July 10, 2018

President Donald Trump pardons Oregon ranchers convicted of arson, and subject to mandatory minimum terms, who prompted protests over federal lands

As reported in this article from The Hill, headlined  "Trump pardons Oregon ranchers at center of 40-day standoff," Prez Trump has used his pardon pen yet again for another set of high-profile and politically notable defendants.  Here are the details:

President Trump on Tuesday pardoned a pair of Oregon ranchers whose arson conviction became a focus for opponents of federal government land ownership. Dwight Hammond, 76, and his son Steven Hammond, 49, were convicted in 2012 and sent to prison on arson charges. They had set a series of fires on their ranch that spread to federal land.

The Hammonds’ case became the inspiration for the 40-day armed occupation of the Malheur National Wildlife Refuge in 2016. The organizers wanted to protest federal land ownership. The Hammonds distanced themselves from the violent occupiers and didn't endorse the action. One of the occupiers, Robert LaVoy Finicum, died, and a handful pleaded guilty to charges related to the occupation. But brothers Ammon and Ryan Bundy, the accused leaders of the occupation, were not convicted.

In a statement Tuesday announcing the pardon, White House press secretary Sarah Huckabee Sanders emphasized uncertainties in the case and the prison terms and fines the Hammonds had already paid. “The evidence at trial regarding the Hammonds’ responsibility for the fire was conflicting, and the jury acquitted them on most of the charges,” the White House said.  “The Hammonds are devoted family men, respected contributors to their local community, and have widespread support from their neighbors, local law enforcement, and farmers and ranchers across the West. Justice is overdue for Dwight and Steven Hammond, both of whom are entirely deserving of these Grants of Executive Clemency.”

Both men are currently in prison on five-year sentences, thanks in part to a 1996 anti-terrorism law that imposed a mandatory minimum sentence on certain crimes on federal land.  The length of their prison terms, in part, fueled outrage at their convictions.

Federal judge Michael Robert Hogan originally gave the Hammonds reduced sentences in 2012, arguing that the mandatory minimums were unjust. But the Obama administration appealed, and federal Judge Ann Aiken in 2015 imposed the full five-year sentences.  “This was unjust,” Sanders said in her statement.  Dwight Hammond has served about three years of his sentence and Steven Hammond has served about four of his, and Trump’s pardon will set them free.

Rep. Greg Walden (R-Ore.), who represents the area that includes the Hammonds’ ranch, cheered Trump’s pardon as a win against federal overreach. “Today is a win for justice, and an acknowledgment of our unique way of life in the high desert, rural West,” he said in a statement. “As ranchers across eastern Oregon frequently tell me, the Hammonds didn’t deserve a five year sentence for using fire as a management tool, something the federal government does all the time.”

I suspect some folks on the left will attack this latest act of clemency as another politicized action for the benefit of the Trump base.  But I still recall this story and 2016 post about the Hammonds case, "Excessive federal sentencing and strict mandatory minimums at center of armed 'militia' occupation in Oregon," which highlights how much the perceived injustice here is linked to mandatory minimums and excessive federal sentencing terms.  Though I remain chary about expecting Prez Trump to become as ambitious in his use of his clemency pen as was Prez Obama at the tail end of his time in office, the federal sentencing severity that sounds this latest pardons makes me just a hint more hopeful that Prez Trump will at least somewhat deliver on all his big clemency talk.

A few of many recent related posts about recent Trumpian clemency activity:

July 10, 2018 in Clemency and Pardons, Criminal justice in the Trump Administration, Mandatory minimum sentencing statutes, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Wednesday, July 04, 2018

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

It is now been nearly a month since Prez Donald Trump commuted the life sentence of Alice Johnson at the behest of Kim Kardashian West (basics here).  Immediately thereafter, there were reports here of "a growing list of potential pardons or commutations under consideration by President Donald Trump" and Prez Trump himself said: "We have 3,000 names.  We’re looking at them.  Of the 3,000 names, many of those names have been treated unfairly."  A week later it was reported Prez Trump will be "pardoning a lot of people — pardons that even Obama wouldn't do" and reported that Mrs. West had "assembled a large legal team and was pursuing clemency for several other nonviolent offenders."  And, as posts here and here highlighted, plenty of folks have been taking up the President's call to put forward worthy clemency candidates.

I have been more than a bit worried that all the buzz about all sorts of clemency action may be a lot of talk that may not be followed by a lot of action.  But, as the title of this post is meant to suggest, I think Independence Day — when we celebrate a great document that starts by stressing the "unalienable Rights [of] Life, Liberty and the pursuit of Happiness" — would be a fitting day for Prez Trump to help, through grants of clemency, at least a few more persons enjoy "Life, Liberty and the pursuit of Happiness."  

I am not yet going to get cynical about Prez Trump's clemency chatter because I am eager to hold out hope that he might have a desire to best Prez Obama's record-setting clemency numbers. But, as regular readers know, I am ever eager to criticize leaders who "talk the talk" but then fail to "walk the walk."  Today strikes me as a great time for the bold clemency walk to get started.

A few of many recent related posts about recent Trumpian clemency activity:

July 4, 2018 in Clemency and Pardons, Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (3)

Thursday, June 21, 2018

"N.F.L. Players to Trump: Here’s Whom You Should Pardon"

The title of this post is the headline of this op-ed in today's New York Times authored by Doug Baldwin, Anquan Boldin, (former OSU Buckeye) Malcolm Jenkins and Benjamin Watson. I recommend the piece in full, and here are extended excerpts:

President Trump recently made an offer to National Football League players like us who are committed to protesting injustice. Instead of protesting, he suggested, we should give him names of people we believe were “unfairly treated by the justice system.”  If he agrees they were treated unfairly, he said, he will pardon them.

To be sure, the president’s clemency power can be a valuable tool for redressing injustice.  Just look at Alice Johnson, age 63, who was serving a life sentence for a nonviolent drug conviction until her sentence was commuted by President Trump.  He should be commended for using his clemency power in that case.

But a handful of pardons will not address the sort of systemic injustice that N.F.L. players have been protesting.  These are problems that our government has created, many of which occur at the local level.  If President Trump thinks he can end these injustices if we deliver him a few names, he hasn’t been listening to us.

As Americans, it is our constitutional right to question injustices when they occur, and we see them daily: police brutality, unnecessary incarceration, excessive criminal sentencing, residential segregation and educational inequality.  The United States effectively uses prison to treat addiction, and you could argue it is also our largest mental-health provider. Law enforcement has a responsibility to serve its communities, yet this responsibility has too often not met basic standards of accountability....

President Trump could help.  He could use his powers, including the clemency power, to make a real dent in the federal prison population.  People like Alice Johnson, for example, should not be given de facto life sentences for nonviolent drug crimes in the first place.  The president could stop that from happening by issuing a blanket pardon for people in that situation who have already served long sentences.

Of the roughly 185,000 people locked up in federal prisons, about 79,000 are there for drug offenses of some kind — and 13.5 percent of them have sentences of 20 years or more.  Imagine how many more Alice Johnsons the president could pardon if he treated the issue like the systemic problem it is, rather than asking professional football players for a few cases.

There is also a systemic problem in federal prison involving the elderly, who by next year will make up 28 percent of the federal prison population. Releasing these prisoners would pose little to no risk to society.  And yet from 2013 to 2017, the Bureau of Prisons approved only 6 percent of roughly 5,400 “compassionate release” applications.  About half of those applications were for people who had been convicted of nonviolent fraud or drug offenses.  Of those denied release, 266 died in custody. 

President Trump could order the release of any drug offender over the age of 60 whose conviction is not recent.  That would be the morally right thing to do.

Apart from using the pardon power, there are policies the president and the attorney general could implement to help.  For instance, they could eliminate life without parole for nonviolent offenses.  Currently, more than half of those sentenced to die in federal prison are there for nonviolent offenses, and 30 percent of people sentenced to life (or de facto life) are there for a nonviolent drug crimes. Compare that with the state level: Only 2 percent of those sentenced to life (or de facto life) are there for drug offenses....

President Trump, please note: Our being professional athletes has nothing to do with our commitment to fighting injustice.  We are citizens who embrace the values of empathy, integrity and justice, and we will fight for what we believe is right.  We weren’t elected to do this.  We do it because we love this country, our communities and the people in them. This is our America, our right.

We intend to continue to challenge and encourage all Americans to remember why we are here in this world.  We are here to treat one another with the kindness and respect every human being deserves. And we hope our elected officials will use their power to do the same.

A few of many recent related posts about recent Trumpian clemency activity:

June 21, 2018 in Clemency and Pardons, Criminal justice in the Trump Administration, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Wednesday, June 20, 2018

Is Gov Cuomo soon to have a worse record than Prez Trump on the clemency front?

The question in the title of this post is prompted by this new piece at The Appeal headlined "Cuomo The Merciless: New York's Democratic governor has granted only a trickle of commutations, fewer than many of his Democratic and Republican predecessors."  Here are excerpts: 

In 2015, New York’s governor, Andrew Cuomo, announced the creation of an Executive Clemency Bureau to identify people in the state’s prison system who might be worthy of commutation.  The announcement sparked hope among the system’s approximately 50,000 prisoners, their families, and advocates that they might soon rejoin their families....

Cuomo encouraged attorneys and law firms to donate pro bono hours to help incarcerated people prepare their petitions.  Many heeded the call and devoted significant time and resources to helping dozens of people imprisoned across the state. But these efforts have not proved fruitful.

In December 2016, Cuomo had granted only seven commutations.  One was to Judith Clark, a former Weather Underground member initially sentenced to 75 years to life; her commutation allowed her to appear before the parole board immediately instead of waiting until 2056.  (Clark was denied parole and remains in prison.)  Another commutation granted an immediate release to Valerie Seeley, a domestic violence survivor sentenced to 19 years to life for the fatal stabbing of her abusive boyfriend in 1998, an act that she has always maintained was in self-defense.

About one year later, Cuomo’s office announced more commutations — this time, it was only to two men. He has not granted any clemencies since then.  His office did not respond to The Appeal’s queries about the possibility of future commutations.  Cuomo has, however, issued a greater number of pardons to those who have already served their time. He has granted 140 pardons to adults who were convicted of nonviolent felonies as 16- and 17-year-olds, thus expunging their felony records.  He also granted pardons to 18 others who might face deportation because of a criminal record.

Kathrina Szymborski oversees the pro-bono commutation efforts at the law firm Patterson Belknap Webb & Tyler, which has donated the equivalent of $1.5 million in pro-bono hours to clemency applicants.  She and her colleagues rejoiced when one client, 42-year-old Michael Flournoy, who had served 21 years of a 25-to-50-year sentence, received clemency in December 2017.  But, she told The Appeal, “we have many deserving clients whose applications are still pending. Our clients are dedicated and hard-working, so they continue to gather letters of support, receive stellar job reviews, and complete rehab and educational programs.  They’re trying to be part of society and enrich their communities as best they can from where they are, some by mentoring other prisoners, others by writing articles for publication in various newspapers and magazines. We feel that they’ve served their time and their further incarceration serves no purpose, so we find the lack of action on these applications disappointing.”

While Szymborski notes that her clients remain hopeful, Cuomo’s lack of action has disillusioned others. Steve Zeidman is the director of the Criminal Defense Clinic at the CUNY School of Law as well as Clark’s attorney. While the clinic is working with about 25 people on clemency applications, he has received hundreds of requests for help.  “For so many people, clemency offered the hope that after decades of punishment their quantifiable and undeniable evidence of personal growth and transformation would be recognized,” he told The Appeal, “that they would be given the chance to live outside the prison walls.  As I have now been told on several occasions by those who have had their hopes of clemency reduced to pipe dreams, false hope is cruel; it is worse than no hope.”

I am more than a bit concerned that all the recent clemency talk coming from the White House could turn out to be the source of false hope, especially as Prez Trump gets consumed by other matters.  But among the many reasons I am rooting so hard for Prez Trump to keep using his clemency pen is because it should then become even easier for advocates to urge Governors to keep up the clemency pace.

June 20, 2018 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Saturday, June 16, 2018

Paul Manifort has bail revoked ... and has not (yet) gotten rescued from jail by Prez Trump's clemency pen

As detailed in this CNN piece, a very prominent federal defendant grew the number of Americans incarcerated yesterday when he had his bail revoked and was taken immediately to jail:

Former Trump campaign chairman Paul Manafort will await his trial for foreign lobbying charges from jail.  Two weeks after special counsel Robert Mueller's prosecutors dropped new accusations of witness tampering on him, US District Judge Amy Berman Jackson on Friday revoked Manafort's bail, which had allowed him to live in his Alexandria, Virginia, apartment under house arrest.

The order marked an end to almost eight months of attempts by Manafort to lighten his house arrest restrictions after he was charged and pleaded not guilty to foreign lobbying violations. "The harm in this case is harm to the administration of justice and harm to the integrity of the court's system," Berman Jackson told Manafort in court.

The judge emphasized to Manafort how she could not make enough rulings to keep him from speaking improperly with witnesses, after he had used multiple text messaging apps and called a potential witness on an Italian cellphone.  "This is not middle school. I can't take his cellphone," she said of Manafort.  "I thought about this long and hard, Mr. Manafort. I have no appetite for this."

Manafort also entered a not guilty plea to two additional charges levied against him last week, of witness tampering and conspiracy to obstruct justice. In total, he faces seven criminal charges in DC federal court. Three US marshals led Manafort out of the packed courtroom into the prisoner holding area immediately after the judge's ruling. He was not placed in handcuffs. Before he disappeared through the door, he turned toward his wife and supporters and gave a stilted wave.

Minutes later, a marshal returned to give Manafort's wife, Kathleen, still standing in the courtroom's front row, his wallet, belt and the burgundy tie he wore Friday. Court marshals held Manafort in the bowels of the courthouse for several hours following the hearing as they considered how to keep him protected from other inmates behind bars. He arrived about 8 p.m. at the Northern Neck Regional Jail in Warsaw, Virginia, 90 miles south of Washington.

In a tweet, President Donald Trump said the decision to revoke Manafort's bail was "tough," although he referred to it as a "sentence."

I cannot help but recall in this context the decision by Prez George W. Bush, made just under 11 years ago as reported here, to commute the entire prison sentence of I. Lewis "Scooter" Libby to spare him from having to serve his 30 month prison term after his conviction in the CIA leak case.  Notably, Prez Bush's clemency grant came down just a few hours after the DC Circuit refused to allow Libby to remain free on bail during the appeal of his conviction and sentence.  In other words, as soon as Libby was subject to spending even an hour incarcerated, Prez Bush was moved to act to keep him free.  Paul Manafort, notably, has not (yet) gotten the presidential consideration as he has now already spent one (of likely many) nights in jail without even yet having been convicted of anything.  

June 16, 2018 in Clemency and Pardons, Criminal justice in the Trump Administration, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (8)

Thursday, June 14, 2018

"Kim Kardashian West pushes White House for more drug sentence commutations"

Because the Supreme Court decided this morning not to decided any of the five remaining criminal law cases on its docket for this Term, I am left to blogging some more about clemency developments.  On that front, the breaking news came through the Today show, which led to this NBC News article with the headline that I have used for the title of this post.  Here are excerpts from the article (with emphasis added):

Kim Kardashian West has given the White House reports on several other nonviolent criminal offenders for possible commutation after she persuaded President Donald Trump to commute the sentence of Alice Marie Johnson, she told "Today" in an exclusive joint interview with Johnson.

Kardashian West said she "saw compassion" when she met with Trump, who as recently as March promised to "seek the death penalty against drug traffickers, where appropriate under current law." "I saw a different side," Kardashian West said Wednesday. "And I think that this is just the beginning of something greater. ... The reality is people change their mind."...

Kardashian West, the star of several reality TV shows and the wife of music superstar Kanye West, visited Trump at the White House with her attorney in late May to plead for Johnson's release, pointing to corrections officers' assessment of her as a model prisoner who became an ordained minister...

In the interview — during which the two women met in person for the first time — Kardashian West said she had assembled a large legal team and was pursuing clemency for several other nonviolent offenders — whose cases she said she has forwarded to the White House for review. "This is like, 'OK, we did this,'" Kardashian West said. "Let's open up this conversation."

Johnson said that because of Kardashian West's advocacy, "the Red Sea has opened" for possible leniency for nonviolent drug offenders, a campaign she said she intends to be part of. "I plan on continuing to magnify this issue," Johnson said. "I'm just an example, but I'm not the only one.

"There are so many others like me whose faces are not here, who are not sitting next to a war angel, who deserve clemency as much as I did and who deserve another chance in life," she said. "And I can't stop. I can't stop."

Regular readers are likely tired of seeing me recall that, way back in 2010, I urged Prez Obama to structurally change the federal clemency system in this law review article.  At the end of that article, I urged the President "to seriously consider creating some form of a 'Clemency Commission' headed by a 'clemency czar' ... [in the form of] an expert body, headed by a special designated official, who is primarily tasked with helping federal officials (and perhaps also state officials) improve the functioning, transparency, and public respect for executive clemency. "  I will be the first one to say that I could never have expected, eight years later during a Donald Trump presidency, that we would have a  Kim Kardashian West emerging as a de facto "clemency czar" serving with a "large legal team" operating as a de facto "Clemency Commission."

Simply put, we live in interesting times.

A few of many recent related posts about recent Trumpian clemency activity:

June 14, 2018 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (6)

Wednesday, June 13, 2018

Another notable report on clemency suggesting Prez Trump will be "pardoning a lot of people — pardons that even Obama wouldn’t do"

Vanity Fair is not usually my go-to source for sentencing news, but this new piece includes both White House gossip and a closing paragraph that suggest a lot of sentence news with be forthcoming from that building. The full headline of the piece reveals some of the gossip: "“He Hate, Hate, Hates It”: Sessions Fumes As Kushner Gets Pardon Fever; With Kim Kardashian and liberals like Van Jones, the princely Trump son-in-law is trying to reset his reputation. But not everyone in the administration is happy about it."   And here are the most sentencing-specific parts of the piece:

In recent months, Kushner has cultivated a close relationship with CNN host and criminal-justice reform advocate Van Jones. “Jared is obsessed with Van,” one Trump adviser said. Kushner invited Jones to the White House multiple times and the two communicate frequently, Jones told me. “Jared and I have 99 problems but prison ain’t one,” Jones said. “I’ve found him to be effective, straightforward, and dogged.” Jones has lavished praise on Kushner publicly. In January, Jones wrote a CNN op-ed headlined, “Kushner’s effort to sway Trump on prison reform is smart.”

The Kushner-Jones alliance has infuriated some Republican members of the administration, especially Attorney General Jeff Sessions. “He hate, hate, hates it,” a person close to Sessions said. But Sessions, who is hanging on for survival amidst frequent Trump attacks, has no power to move against Kushner. Sources say Trump may even like that Sessions is outraged because Trump is looking for anything that will get Sessions to quit so he can appoint an attorney general who isn’t recused in the Russia investigation. (The White House did not respond to a request for comment.)

Jones told me Trump liked the positive media coverage that followed his pardon of Alice Johnson at the urging of Kardashian and Kushner. “Trump was pleasantly surprised,” Jones said. “I hope the president feels encouraged to do more.”

One person who recently spoke with Kushner said the president’s son-in-law is gearing up for a big pardon push. The source said Kardashian gave Kushner a list of people to pardon, some of whom are hip-hop artists. “They’re going to be pardoning a lot of people—pardons that even Obama wouldn’t do,” the person said.

A few of many recent related posts about recent Trumpian clemency activity:

June 13, 2018 in Clemency and Pardons, Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (1)