Wednesday, November 25, 2020

Prez Trump grants pardon to Michael Flynn ... are a lot more to come?

As reported here by NPR, "President Trump has pardoned his first national security adviser, Michael Flynn, who spent years enmeshed in an often bizarre legal war with the government that sprang from the Russia investigation."  Here is more about an unsuprising act of clemency:

Trump announced the news on Twitter as Americans prepared to observe the Thanksgiving holiday this week.

The pardon brings an end to a long-running legal odyssey for Flynn, who was the only member of the Trump administration to be charged as part of special counsel Robert Mueller's Russia investigation.

Flynn pleaded guilty in 2017 to lying to the FBI about his contacts with the Russian ambassador, and then cooperated extensively with prosecutors. But he ultimately reversed course and accused the government of trying to frame him. Flynn went to so far as to withdraw his first plea of guilty and substitute a second plea of not guilty, even though he'd acknowledged the underlying conduct that was against the law and been close to receiving a sentence.

The pardon drew condemnations from critics who've said Trump's actions to help his friends interfere with the justice system. House Intelligence Committee Chairman Adam Schiff, D-Calif., for example, who helped prosecute Trump at his impeachment, called the president's actions obviously corrupt.

Flynn, meanwhile, reacted on Twitter with a Bible verse alluding to a holy rescue.

Trump's action on Wednesday may open the door to possible clemency for other former Trump advisers who were indicted as part of the Russia investigation, including former campaign chairman Paul Manafort.

Meanwhile, this New York Times article, headlined "White House Weighs Pardon Blitz Before Trump’s Exit," highlights that I might have a lot of Trumpian clemency action to blog about in the coming weeks.  Here is how the piece gets started and some additional excerpts:

It’s not just Michael T. Flynn. The White House is weighing a wave of pardons and commutations by President Trump in his final weeks in office, prompting jockeying by a range of clemency seekers and their representatives, including more allies of Mr. Trump.

Among those hoping for pardons are two former Trump campaign advisers, Rick Gates and George Papadopoulos, who like Mr. Flynn, the former national security adviser who was pardoned on Wednesday by Mr. Trump, were convicted in cases stemming from the special counsel’s Russia investigation.

Alan Dershowitz, the law professor who represented Mr. Trump during his impeachment trial, is considering seeking clemency for two of his clients — a New Jersey man serving more than 20 years for defrauding investors, and a billionaire businessman convicted in what’s been called “one of North Carolina’s worst government corruption scandals.” Mr. Dershowitz said he recently discussed the pardon process with the White House.

But it is not just the well-connected and wealthy who could benefit from one of Mr. Trump’s final exercises of executive power, lawyers in contact with the administration said. Several groups that have pushed for a criminal justice overhaul are working with an ad hoc White House team under the direction of Jared Kushner, Mr. Trump’s son-in-law and adviser, with a goal of announcing as many as hundreds of commutations for offenders now in jail for crimes ranging from nonviolent drug convictions to mail fraud and money laundering.

“Lists of people are being circulated,” said Brandon Sample, a Vermont lawyer who specializes in presidential pardons and has submitted several names of people to be considered. Among them is Russell Bradley Marks, 57, who has been imprisoned after pleading guilty in 1992 on a cocaine-related conviction for which he was given a mandatory life sentence....

Lawyers say the White House is also focused on ways to use presidential clemency powers to further burnish Mr. Trump’s role in what is considered the most consequential criminal justice legislation in a generation, which reduced sentences for nonviolent offenders. A blitz of late pardons or commutations for federal crimes — over which presidents have unchecked power — is seen by some criminal justice reform activists as another way to build his record on that issue....

The planned clemency initiative, and the lobbying that has unfolded around it, has been hindered in some ways in recent weeks by Mr. Trump’s refusal to formally concede his loss to President-elect Joseph R. Biden Jr.

Potential pardon seekers and their representatives said in interviews that they were waiting to escalate their appeals until Mr. Trump conceded, or at least signaled that he had started to come to grips with the looming end of his presidency. Appealing for clemency before then, people involved warn, risks backfiring, because it could be seen as acknowledging a defeat that Mr. Trump has thus far refused to accept....

The effort to create a White House commutation program separate from the formal Justice Department office started last year after the 2018 passage of the First Step Act, which expanded an early release program and modified sentencing laws, including mandatory minimum sentences for nonviolent drug offenders. There are at least 13,700 people who have formally applied to the Justice Department for pardons that are listed as “pending.”

Representatives of inmates seeking sentence reductions have separately been sending the White House lists of names, typically focusing on people who received unusually long sentences for nonviolent crimes after declining to accept a plea agreement and others serving long sentences because of mandatory guidelines. “Each of these are sad, sad situations,” said Norman Reimer, the executive director of the National Association of Criminal Defense Lawyers. “They show massive injustice and over- sentencing, and we hope he will act on them.”

November 25, 2020 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Tuesday, November 24, 2020

Two different takes on Prez Trump's clemency record as his term nears conclusion

The silly Presidential turkey pardon tradition has prompted two new pieces about Prez Donald Trump's clemency record that strike markedly different tones.  Here are the headlines, links, and excerpts:

By John Gramlich and Kristen Bialik at Pew Research Center, "So far, Trump has granted clemency less frequently than any president in modern history":

As he enters the home stretch of his White House tenure, Donald Trump has used his clemency power less often than any president in modern history, according to data from the U.S. Department of Justice.  Trump’s sparse use of pardons, commutations and other forms of official leniency stands in sharp contrast to his predecessor, Barack Obama, who used the clemency power more frequently than any chief executive since Harry Truman.

As of Nov. 23, Trump had granted clemency 44 times, including 28 pardons and 16 commutations.  That’s the lowest total of any president since at least William McKinley, who served at the turn of the 20th century.  Obama, by comparison, granted clemency 1,927 times during his eight-year tenure, including 212 pardons and 1,715 commutations.  The only modern president who granted clemency almost as infrequently as Trump is George H.W. Bush, who granted 77 pardons and commutations in his single term.

By Steven Nelson at the New York Post, "Turkeys, Corn and Cob, expected to be first in slew of final Trump pardons":

People close to the White House believe President Trump may pardon humans in addition to turkeys this holiday season — with one advocate saying they expect Trump to close out his term with a bang as the “most merciful” president in history.  Trump will “pardon” gobblers named Corn and Cob in an annual tradition at the White House on Tuesday, but in a potential twist, allies and reform advocates are anticipating more serious reprieves in the coming weeks.

“President Trump has moved mountains since taking office and I’m certain he’s not done yet,” said Amy Povah, a clemency advocate and founder of the CAN-DO Foundation.  “I would not be surprised if he goes down in history as the most merciful president when it comes to correcting injustices carried over from the horrifying tough-on-crime era of the late ’80s and ’90s that is responsible for sending many good people to prison for life, including life for pot.”

Presidents generally are more generous with clemency — including pardons and prison commutations — toward the end of their terms, contributing to the anticipation.

Though I am always eager to complain about Presidents failing to use their clemency powers more, I think the Pew piece is a bit unfair because it compares Prez Trump's record in his first term to mostly two-term Presidents.  In fact, Prez Trump has already granted more clemencies his his first term than did Prez Obama or Prez George W. Bush at this point in their first terms.  Moreover, as the NY Post article suggests, there are reasons to expect Prez Trump will grant some more clemencies — perhaps a lot more clemencies — over his last few months in office.

I sincerely hope Amy Povah and others are effective in encouraging Prez Trump to become "the most merciful president when it comes to correcting injustices carried over from the horrifying tough-on-crime era."  But I cannot help but wonder how Prez Trump's own vision of his political future and legacy might impact his clemency work in the months ahead.  Any attempt at a self-pardon or granting clemencies to lots of family members or close advisors could be viewed as a tacit admission of serious wrong-doing and thus could, perhaps, hurt the Trump political brand.  But since I have never been quite able to figure out the Trump political brand, I will close here by highlighting some notable cases mentioned in the lengthy NY Post piece:

Some clemency aspirants were jailed-for-life for marijuana dealing or importing crimes under President-elect Joe Biden’s 1994 crime law, giving Trump an opportunity to thumb his nose at his 2020 rival....  Allies see the final two-month stretch of Trump’s term as an opportunity to cement his first-term legacy before handing over the reins to Biden, who authored some of the most punitive drug laws.

Paraplegic Michael Pelletier, 64, has a life sentence for smuggling marijuana from Canada into Maine in the early 2000s. Both jurisdictions later legalized the drug and he ruefully notes that pot shops have been deemed “essential” during COVID-19 lockdowns....  Another clemency seeker, Corvain Cooper, 41, has a life sentence for his role transporting marijuana from California to North Carolina, also under the three-strike provision of Biden’s law....

Many prisoners pushed by clemency advocates aren’t public figures and were sentenced for drugs.  David Barren, 55, whose drug-dealing life sentence was reduced to 30 years by former President Barack Obama, told The Post he hopes to be free while his parents, in their 80s, are still alive.  Rufus Rochell, 69, who is under home arrest as he completes a 40-year drug sentence, said his family is grateful that his brother Richard Williams, convicted in the same drug conspiracy, was released from prison this year under Trump’s reform law, but that he would be grateful to have his record cleared.

Physical lists of convicts seeking commutations and pardons have swirled in the West Wing since June 2018 when Trump freed Alice Johnson from a life sentence at the request of Kim Kardashian.  Johnson spoke at this year’s Republican National Convention and traveled with Trump to the first presidential debate in Cleveland.  Trump often speaks proudly of freeing Johnson and turned to her for recommendations.  During this year’s campaign, Trump pledged minority voters a new clemency commission if he won re-election.

The White House did not respond to a request for comment.

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

Friday, November 20, 2020

NACDL continuing great work spotlighting the ugly trial penalty now through compelling clemency petitions

This news release, titled "NACDL Trial Penalty Clemency Project Submits Second Set of Petitions to White House," reports effectively on work by the National Association of Criminal Defense Lawyers to shine light on, and seek needed remedies for, criminal defendants unfairly subject to the "trial penalty."  Here are some details on NACDL's latest efforts and prior work:

As of this week, NACDL’s Trial Penalty Clemency Project submitted four more federal clemency petitions to the Office of the Pardon Attorney and the White House, adding to the first set of six petitions submitted on October 2, 2020.  Of the four petitions, three concern individuals serving life or lengthy sentences for non-violent drug charges, and one concerns an individual serving over 35 years for a non-violent white-collar conviction.

As of late, increased attention to the criminal legal system has led to public outrage and calls to reform myriad facets of the American legal system.  The trial penalty, though, which refers to coercive prosecutorial practices that induce accused persons to waive fundamental rights under threat of a vastly increased sentence when fundamental rights are asserted, persists in undermining the American criminal legal system.  The most obvious examples of its impact are seen in those who assert their rights and receive a geometrically enhanced sentence.  Though reform is badly needed to end the trial penalty, the only immediate remedy for those individuals living this injustice is executive clemency.  NACDL’s Trial Penalty Clemency Project aims to assist those individuals by pairing applicants with volunteer attorneys who will assist them in preparing a clemency petition.

“The trial penalty makes a mockery of the Constitution’s Sixth Amendment right to trial and is a large and ever-growing cancer on the American criminal legal system,” said NACDL President Chris Adams.  “Every time a defendant opts to hold the government to its burden and go to trial, and receives a substantially more draconian sentence than was previously offered in a plea deal, the American legal system moves further away from justice.  NACDL’s Trial Penalty Clemency Project is a vital step in beginning to remedy this great injustice.”

Thus far, through affiliates, members, and the assistance of organizations in this space like the CAN-DO Foundation, the Last Prisoner Project, and Life For Pot, the Project has identified, reviewed, and assigned more than 20 cases with attorneys.  The attorneys are crafting petitions or supplements to existing petitions focusing on the impact of the trial penalty. In addition to filing the petitions with the Office of the Pardon Attorney, the Project brought the four cases described below, in addition to six previous cases, to the attention of the White House panel on clemency.  NACDL’s Trial Penalty Clemency Project is a component of NACDL’s Return to Freedom Project...

In 2018, NACDL released a groundbreaking report – The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It. Information and a PDF of NACDL’s 2018 Trial Penalty report, as well as video of the entire 90-minute launch event at the National Press Club in Washington, DC, and other trial penalty-related videos and materials are available at www.nacdl.org/trialpenaltyreport.

In 2019, The Federal Sentencing Reporter, published by University of California Press, released a double issue covering April and June 2019, edited by NACDL Executive Director Norman L. Reimer and NACDL President-Elect Martín Antonio Sabelli, entitled "The Tyranny of the Trial Penalty: The Consensus that Coercive Plea Practices Must End."

And in 2020, NACDL and FAMM released a documentary on the trial penalty, The Vanishing Trial. The trailer for that film is available here.

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

Thursday, November 19, 2020

"How Governors Can Use Categorical Clemency as a Corrective Tool: Lessons from the States"

The title of this post is the title of this interesting new report from the Urban Institue.  Here is its executive summary:

Governors in most states have executive clemency authority that allows them to change the terms of someone’s criminal justice system involvement, including by issuing pardons or by granting commutations to adjust the sentences of people in prison.  Though many clemency deliberations are independent case-by-case assessments, in some cases, governors can also extend clemency eligibility categorically to groups of people in prison to mitigate structural issues or accomplish larger reform goals.  In this report, we provide a high-level overview of state executive categorical clemency and offer examples of how state governors have used this strategy as a corrective tool to address problems in the criminal justice system.

November 19, 2020 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, November 16, 2020

"Presidential Pardons and the Problem of Impunity"

The title of this post is the title of this quite timely article authored by Frank Bowman III now available via SSRN. Here is its abstract:

This Article considers the reach of the President’s pardon power and its potential employment as one means of creating legal impunity for a President and his personal and political associates.  It addresses, in particular, the possibility that a President might issue self-interested pardons to himself, family members, or political or business associates.  The Article reviews the constitutional origins of the federal pardon power, and the law and practice of its use since the Founding era, and concludes:

A President cannot constitutionally pardon himself, though the point is untested.  In theory, a President could resign, or under the Twenty-fifth Amendment withdraw temporarily from the office, transform the Vice President into the President or Acting President, and secure a pardon from the his former subordinate.  But that seems improbable.

A President can pardon anyone but himself (both humans and corporations), and those pardons, once issued, are almost certainly unchallengeable and irrevocable.  A presidential pardon can cover any (and perhaps all) federal crimes the beneficiary has ever committed, so long as such crimes occurred and were completed prior to the issuance of the pardon. A president cannot pardon crimes that have not yet been committed.  Consequently, a pardon issued corruptly might itself constitute a crime that could not be pardoned.

The pardon power does not extend to state crimes or to any civil or administrative action brought by federal or state authorities.  A presidential pardon cannot block congressional investigations.  Finally, because a pardon effectively erases the Fifth Amendment privilege as to offenses covered by the pardon, it might make it easier for criminal and civil investigative authorities and Congress to compel testimony from the person pardoned.

Therefore, presidential pardons could inconvenience, but could not prevent, thorough investigations of the private and public actions of a former President or his associates.  The Article concludes by recommending a thorough, but judicious, use of available investigative avenues to inquire into well-founded allegations of wrongful behavior by former presidents and their personal and political associates.

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

Tuesday, November 10, 2020

Should we want Congress to try to limit the President's pardon power?

The question in the title of this post is prompted by this notable new New York Times op-ed By Jack Goldsmith.  The full title of this piece highlight its main points: "Trump Loves to Use the Pardon Power. Is He Next? There is little to be done right now about the president’s self-serving ways, but Congress can limit future abuses." Here are excerpts:

President Trump has abused the pardon power like none of his predecessors. But we likely ain’t seen nothing yet. Now that he has lost the election, Mr. Trump will likely pardon himself, friends, family members and Trump business entities and employees for any crime they might have committed before or during his presidency.

Mr. Trump’s pardons to date, and those likely to come during a transition, reveal the problems with the supposed “absoluteness” of the pardon power — and should prompt legal reform to clarify limits on its abuse.

The pardon power that the Constitution confers on the president has just two stated limitations: A president cannot pardon for impeachment, and a presidential pardon can excuse or mitigate punishment only for federal offenses. There is little that can be done at this point to stave off a potential wave of pardons in the lame duck period, but the federal crime limitation means that Mr. Trump cannot stop state criminal investigations, including one in progress by the Manhattan district attorney into possible bank and insurance fraud by Mr. Trump and his companies.

But for federal crimes, the president can — with the stroke of a pen — erase a criminal conviction or criminal exposure for basically whomever he wants and for almost any reason. Unsurprisingly, Mr. Trump’s pardons and commutations have largely served his personal interests.

Notorious examples include the pardon for Joe Arpaio, the former Arizona sheriff who was convicted of defying a federal court order against profiling Hispanics; the pardons for the president’s political supporters Conrad Black and Pat Nolan; and the sentence commutation for Mr. Trump’s friend Roger Stone, who was convicted of obstruction of justice and related crimes and who many believe refused to implicate Mr. Trump in the hope of presidential relief from punishment.

Such self-serving pardons are not without precedent. Bill Clinton pardoned his half brother, a friend who refused to cooperate with the independent counsel investigating the president and two notorious fugitives from justice who were suspected of obtaining favorable consideration through an aggressive lobbying campaign and the support of politically influential allies. George H.W. Bush pardoned the former defense secretary Caspar Weinberger and several national security officials who had been convicted or indicted on a charge of perjury and obstruction of justice in connection with the Iran-contra scandal, in which Mr. Bush himself was suspected of criminal involvement....

Mr. Trump has proclaimed “the absolute right to pardon myself.” While neither the Constitution nor judicial precedents overtly speak to the issue, the Justice Department declared in 1974 a self-pardon would “seem” to be disallowed “under the fundamental rule that no one may be a judge in his own case.” Scholars are torn on the matter. The issue, which would arise if after Mr. Trump leaves office the new administration indicts him for a crime for which he pardoned himself, can be settled only by the Supreme Court.

There is little that can be done at this point to stave off a probable wave of opportunistic pardons.  But in light of what we already know about his pardon practices, Congress should enact two reforms to prevent future abuses.

First, it should check the most extreme abuses of the pardon power by expressly making it a crime for a president to issue a pardon as part of a bribe or as an inducement to obstruct justice.  Current law does not explicitly cover the president and should be reformed to leave no doubt. Second, Congress should declare that presidential self-pardons are invalid. Such a declaration would not resolve the constitutional question, but it could inform the answer when a court addresses it.

It might be that Mr. Trump’s pardons prove so abusive that a constitutional amendment to the pardon power will be warranted.  The challenge in that case will be to draft an amendment that checks presidential abuses without curtailing a vitally important mechanism, when properly deployed, for mercy and reconciliation. This is one of many ways that Mr. Trump’s abuses of presidential power will have long-lasting consequences for American justice.

Regular readers surely know that I am MUCH more troubled by the modern disuse of the pardon power than by its misuse.  And Goldsmith's first suggestion to make it a crime to "issue a pardon ... as an inducement to obstruct justice" might arguably make a crime of at least one act of clemency by many of our presidents in the last half-century.  Because the pardon power is already chilled enough, I think we should be trying to enhance and politically motivate its proper use, rather than worrying so much about its occasional misuse.

November 10, 2020 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (6)

Sunday, November 08, 2020

Tomorrow can be today for some Biden-Sanders Unity Task Force criminal justice recommendations

Now that former VP Joe Biden is starting to begin work as Prez Elect Joe Biden, I started thinking about some of Dr. Martin Luther King's famous words about the persistent and pressing need for urgent action to advance justice.  As MLK put it in one 1967 speech:

We are now faced with the fact, my friends, that tomorrow is today.  We are confronted with the fierce urgency of now. In this unfolding conundrum of life and history, there is such a thing as being too late.  Procrastination is still the thief of time.

With the fierce urgency of now in mind, I looked through the criminal justice reform recommendations [available here] from the Biden-Sanders Unity Task Force (discussed here) to see which ones might be acted upon ASAP.  Many of the recommendations involve matters that will require congressional action (e.g., "End the federal crack and powder cocaine disparity in sentences") or that must await Prez Elect Biden officially taking office (e.g., "Direct DOJ to collect data on federal prosecution practices").  But there are at least two notable recommendations involving the creation of an independent task force or board which could begin work right away: 

Task Force on Prosecutorial Discretion: Create a new task force, placed outside of the U.S. Department of Justice, to make recommendations for tackling discrimination and other problems in our justice system that result from arrest and charging decisions.

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

Notably, Prez Elect Biden has now promised to announce on Monday a COVID task force. I am pleased he is acting fast on this critical front; but in this unfolding conundrum of life and history, I am always going to be urging leaders to treat tomorrow as today with regard to criminal justice reforms.

November 8, 2020 in Campaign 2020 and sentencing issues, Clemency and Pardons, Criminal justice in the Biden Administration, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Friday, October 30, 2020

How might the Prez clemency power be wielded next month and next year?

Mark Osler usefully ruminates on the question that serves at the title of this post in this extended new CNN opinion piece headlined "Get ready for a flood of Trump pardons."  I recommend the piece in full (which is much better than the headline likely picked by CNN just to be click bait).  Here is an extended excerpt:

Trump and Biden present very different issues relating to clemency (which includes the power to shorten sentences through a commutation or forgive convictions through pardons).  Trump already has shown his cards: Even taking into consideration the commutations granted last Wednesday to five worthy petitioners, his use of the pardon power has mostly favored friends and Fox News celebrities.  Even his much-celebrated commutation and pardon of Alice Marie Johnson came about only after another reality television star, Kim Kardashian West, intervened.  Biden, meanwhile, is a blank slate.  The concern some may have with him is that he will do too little, at a time when over-incarceration is being critiqued by experts and a broad array of citizens on both the left and right.

While interviewers continually (and appropriately) pepper Trump with questions about whether he will relinquish power if he loses, it is rare that anyone asks him who he might pardon after the election, despite the long and positively bizarre track record he has established.

Similarly, Joe Biden hasn't been pressed on the issue, and he certainly doesn't seem to have thought much about it: In response to a general question about criminal justice by NBC's Lester Holt at a town hall, Biden claimed that the Obama administration granted clemency to "18,000 people."  He was off by about 16,000 (he did better in the last debate, citing the number as "over 1,000").  It could be that Biden overestimates the effectiveness of the Obama clemency initiative, which offered too little, too late.  That well-intentioned project began only after years of inaction, as Obama granted just one commutation of sentence in his first five years.  It also failed to reach so many good cases that when Trump's First Step Act enabled 2,387 crack offenders to be released early, it amounted to far more than the Obama clemency program did, even though both projects targeted the same group.  Clearly, Obama left too many people behind.

Failing to focus on clemency when it matters also lets candidates off the hook for any specific plan for reform. And reform of every part of a system that has enabled systemic racism and unduly long sentences is important.  Right now, the clemency review process has seven steps, is controlled by the Department of Justice (conflicted because it sought the over-long sentences in the first place), and simply doesn't work.  There is broad support for the formation of a clemency review board to advise the president, and that idea even made it into the Biden-Sanders unity plan and the Democratic platform.  Biden, though, hasn't mentioned it (at least in the forums I have reviewed)— in large part because no one has asked.

Even if other criminal justice reforms are enacted, clemency must be reformed as well.  For one thing, other reforms don't do what one form of clemency, pardons, can do: free people from the restrictions of a conviction after they have completed a sentence.  For another, reforms that send cases back to the sentencing judges for review too often exacerbate disparities.  After all, judges who are tough at sentencing are less likely to give a break later, meaning that those who come before them could be disadvantaged. Clemency can be a way to reach those twice-victimized.

October 30, 2020 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, October 21, 2020

Prez Trump grants commutations to five persons given long federal prisons terms (though two were already out of prison)

I was a bit surprised and a lot pleased to see a release today from the White House titled "Statement from the Press Secretary Regarding Executive Grants of Clemency" providing news an details surrounding the decision by Prez Donald Trump to commute five federal sentences.  Here is the full statement:

Today, President Donald J. Trump signed Executive Grants of Clemency to commute the sentences of the following individuals: Lenora Logan, Rashella Reed, Charles Tanner, John Bolen, and Curtis McDonald.

Lenora Logan turned her life around after she was sentenced to 27 years in prison for her role in a cocaine conspiracy.  During her time in prison, she heroically came to the aid of a Bureau of Prisons nurse who was under vicious assault by an unstable inmate.  Without regard for her own safety, Ms. Logan immediately intervened and protected the life of the nurse.  This heroic act is but one example of Ms. Logan’s selfless acts since forging a better path for her life.  While incarcerated, Ms. Logan served as a suicide watch companion, a nursing assistant for those in hospice care, and a leader of the praise and worship team.  After serving approximately 20 years in prison, Ms. Logan, a mother and grandmother, was awarded compassionate release from the Bureau of Prisons.  Ms. Logan expresses regret for her past actions, exemplifies successful rehabilitation, and embodies the spirit of second chances.

Rashella Reed was a former Atlanta Public School teacher before her involvement in a public benefits fraud scheme.  She was sentenced to 14 years in prison after her convictions for wire fraud and money laundering.  While in prison, Ms. Reed used her teaching background to tutor inmates and facilitate children’s programs at the prison.  Ms. Reed is a model inmate, and many attest to her innate ability to encourage and uplift others despite her circumstances.  Ms. Reed accepts full responsibility for her actions and seeks to continue to make a difference in the lives of others.  After serving more than 6 years in prison, Ms. Reed was released on home confinement where she enjoys strong community and family support.

Charles Tanner was a young professional boxer with a promising career who sadly became involved in a drug conspiracy.  At the age of 24, he was arrested, tried, and initially sentenced to life in prison, which was later reduced to 30 years.  It was his first conviction of any kind.  He has served 16 years in prison.  Although Mr. Tanner began incarceration under a life sentence, he immediately worked to better himself by enrolling in educational courses.  To date, Mr. Tanner has completed hundreds of hours of educational programming, including an 18-month re-entry program that requires recommendation from staff and approval from the Warden for participation.  Mr. Tanner accepts responsibility and expresses remorse for his past actions.  Letters from his friends and family describe him as a respectful man of faith who exhibits positivity and works hard.

John Bolen was a small business owner who used his boat to transport cocaine from the Bahamas to Florida.  After a jury trial, he was sentenced to life imprisonment.  It was his first conviction of any kind, and Mr. Bolen has no documented history of violence.  He has served more than 13 years in prison without incident.  He has completed more than 1,300 hours of educational programming and vocational training, multiple re-entry programs, and has served as both a suicide companion and a mental health companion.  Mr. Bolen expresses “deep regret and shame” for his mistakes.  Several Bureau of Prison officials who have supervised Mr. Bolen describe him as a “model inmate,” a “regular hard working blue collar guy who simply stumbled along life’s path and made a mistake,” and someone who “displays dedication” in assisting others.

Curtis McDonald was convicted in 1996 for drug trafficking and money laundering and is now 70 years old.  After a jury trial, he was sentenced to life in prison.  He was a first-time offender who has now served nearly 24 years in prison and has an excellent record of good conduct.  Mr. McDonald has made productive use of his time in prison, maintaining employment with good job evaluations, and has completed numerous education courses.  Mr. McDonald has also served as a mentor in the Mentors for Life program.  He acknowledges that “the law is the law and I broke it” and attests that he is “not the same man I was walking through these doors” decades ago.  Mr. McDonald vows that despite his life sentence, he has been determined to “take advantage of every opportunity to help myself grow . . . so that I may be of use to those who want and need it.”

In light of the decisions these individuals have made following their convictions to improve their lives and the lives of others while incarcerated, the President has determined that each is deserving of an Executive Grant of Clemency.

I am always pleased to see any chief executive use his or her power of clemency wisely, though this handful of grants will not keep me from criticizing Prez Trump for still using his powers too sparingly in general and especially in the times of a pandemic.  I do not know any of the back stories of these cases, but I find it interesting that two of these five recipient were apparently already out of prison.  It is also somewhat notable that four of the five persons here receiving commutations were convicted of drug offenses.

A few of many prior related posts:

October 21, 2020 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, September 21, 2020

Notable research from Pennsylvania on positive pardon consequences

I just came across this interesting webpage at the site of the group Philadelphia Lawyers for Social Equity. The page highlights a pair of reports about the consequences of pardons in the state over a decade. Here is the summary from site:

In April 2020, the Economy League issued a pathbreaking report, finding that pardons issued over a ten-year period (2008-2018) had contributed $16.5 million to Pennsylvania’s economy, and urged the Board of Pardons to increase the number of pardon applicants, the percentage of applications granted, and the speed in which pardons are granted or denied.  Public officials and civic leaders praised the report, but cautioned that there needed to be “continued oversight for public safety concerns.”

Examining the same decade of data and over 3,000 files in its August 2020 report, PLSE conclusively demonstrated that there is no reason for concern when granting pardons to people who have already completed their sentences and need pardons so they can get, for themselves and their families, the better jobs, housing, credit, and other opportunities of life for which they are qualified.  PA Attorney General Josh Shapiro called the report “valuable and important.” 

Click here to read the press release.
Click here to read the report written by PLSE’s co-founder Ryan Allen Hancock and Executive Director Tobey Oxholm.
Click here to read the Economy League’s report.

September 21, 2020 in Clemency and Pardons | Permalink | Comments (0)

Wednesday, September 02, 2020

FAMM announces notable new campaign focused on a "Second Chances Agenda"

Long-time readers are surely aware that I have long advocated for, and written a lot about, revisiting problematic sentences and expanding the means and manner of doing so.  (I have written numerous articles related to this topic, some of which I have linked below.)  Consequently, I was very pleased to see this press release from FAMM discussing its new campaign:

FAMM announces a new “Second Chances Agenda“ campaign aimed at urging state and federal policymakers to increase their use of compassionate release and clemency, and to encourage the introduction of more second look legislation.

“One of the things we’ve learned during the COVID-19 pandemic is that every state knows to impose lengthy mandatory sentences, but very few have ways to revisit those sentences when the person or circumstances have changed,” said FAMM President Kevin Ring. “There are people languishing in prison who do not need to be there – and we are no safer for it.

“There are also people who have made remarkable changes in their lives since entering prison, and should be considered for a second chance. If people have served a significant sentence, and they have succeeded in rehabilitating themselves, we should give them an opportunity to go home.”

FAMM’s Second Chances Agenda campaign calls for the following:

  1. Pass “second look” laws. FAMM is urging the creation of laws in every state that direct courts to reconsider a person’s sentence after 10 or 15 years to determine whether a shorter sentence is appropriate. Learn more about second look laws.
  2. Expand compassionate releases. Sometimes referred to as medical or geriatric parole or release, compassionate release programs at the state level are failing to allow early release for elderly and sick people who pose no risk to public safety. Learn more about how these systems work around the country and how FAMM is working to improve them.
  3. Expand clemency. The president and most governors have the authority to shorten excessive prison terms but often fail to use their clemency power to its fullest extent. FAMM is committed to working with governors and the White House to expand the use of executive clemency and to identify people who deserve a second chance.

FAMM also supports other reforms that prosecutors and lawmakers could use to provide second chances.

  • Eliminate extreme mandatory sentences and make the reforms retroactive – When lawmakers pass smart reforms, they rarely apply them retroactively, leaving people to serve unjust sentences that are no longer in the law.
  • Parole reform – Some states have parole, but rules and red tape make it too difficult for people to get it.
  • Sentence integrity units – Prosecutors can promote second chances by reviewing sentences periodically to see if they are appropriate.

FAMM has also launched similar campaigns in ArizonaFlorida and Pennsylvania today.

As even newer readers should also realize, perhaps from this initial posting or this more recent one, the Drug Enforcement and Policy Center at The Ohio State University Moritz College of Law and the Ohio Justice & Policy Center have been working together on a writing competition for law students and recent graduates to propose a "second-look statute" for Ohio (which is discussed more fully on this DEPC webpage).

Here are just a few of my writing on these kinds of topics (which I might now call my own "Second Chances Agenda"):

September 2, 2020 in Clemency and Pardons, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Friday, August 28, 2020

Has anyone sentenced to life without parole ever before been granted a full Prez pardon?

Earlier today, I asked in this post "Has anyone sentenced to life without parole ever before spoken on final night of major political convention?".  I was referencing, of course, Alice Marie Johnson having the chance to tell her story during the final night of the Republican National Convention. 

But now, as this post title highlights, I have a new, update question about Ms. Johnson based on this news as reported by Politico:  "President Donald Trump on Friday granted a full pardon to Alice Marie Johnson — the 65-year-old Memphis woman whose life sentence he commuted two years ago — just hours after Johnson spoke on behalf of Trump’s reelection campaign during the Republican National Convention."  Here is more:

Johnson was serving life in prison for a nonviolent drug offense when Trump commuted her sentence in June 2018 at the urging of reality TV star Kim Kardashian West, who visited the White House to advocate for Johnson’s release.

On Thursday, during the final night of Republicans’ nominating convention, Johnson delivered a primetime speech testifying to Trump’s “compassion” and commending the administration’s work to advance criminal justice reform legislation. “My transformation was described as extraordinary,” she said. “Truth is, there are thousands of people just like me who deserve the opportunity to come home.”

In an interview later Friday on CNN, Johnson said she “had no idea” Trump would grant her a pardon during their White House meeting.

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

Has anyone sentenced to life without parole ever before spoken on final night of major political convention?

The question in the title of this post is prompted, of course, by Alice Marie Johnson having the chance to tell her story during the final night of the Republican National Convention.  I was on the road, so I missed the speech live, but PBS has it available via YouTube at this link.  And here is a round-up of just some media coverage of what seems like a historic speech:

Via BuzzFeed News, "Alice Johnson, Whose Sentence Was Commuted By Trump, Gave An Uplifting Speech About Criminal Justice Reform At The RNC"

Via CNN, "Alice Johnson shares powerful redemption story at RNC"

From The Hill, "Alice Johnson praises Trump for First Step Act, urges compassion for 'forgotten faces'"

Via Yahoo Entertainment, "Former Inmate Alice Johnson, Championed by Kim Kardashian & Freed by Trump, Urges More Change at RNC"

I am often quite discouraged these days about both the state of our nation and the state of our politics.  But here is hoping that we can all find some joy and inspiration in this one story to keep moving (and move faster) on badly needed reform to all our criminal justice systems in incarceration nation.

August 28, 2020 in Clemency and Pardons, Criminal justice in the Trump Administration, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

"Trump’s failed promise of criminal justice reform gives Biden an opening"

The title of this post is the headline of this new Washington Post commentary authored by Mark Osler.  Here is an excerpt:

As a lifelong Democrat, I found myself in a very unexpected place on Sept. 5, 2018: sitting next to Jared Kushner in the Roosevelt Room of the White House. Ivanka Trump was at the other end of the table, and Kim Kardashian West sat across from me. This was not my normal crowd.
Kushner had called the meeting to discuss reform of the broken federal clemency system, which allows the president to shorten a sentence or mitigate a conviction. New York University professor Rachel Barkow and I had been asked to explain what was wrong and how to fix it.  It’s a short, sad story: The system for evaluating clemency petitions is mired in the bureaucracy and internal conflicts of the Justice Department. As a result, the mercy intended by the Constitution has been in short supply for three decades.
Barkow and I opened the meeting by laying out the problems and offering a solution: the creation of an independent board to evaluate clemency petitions and make recommendations to the president. There was a quick consensus around the table that change was needed. I felt hopeful, largely because we seemed to have Kushner on our side. He was engaged and motivated; the experience of having a parent incarcerated had given him insight into the broader problems we described. Furthermore, the usual institutional opponent to criminal justice reform in any administration — the Justice Department — was out of the way due to the president’s ongoing dispute with then-Attorney General Jeff Sessions....

The Trump administration never did reform the clemency process.  Instead of issuing an executive order to create a formal, bipartisan board, Trump chose to assemble a small team of insiders to funnel cases to him.  The primary recipients of his pardon power have been his personal friends and some right-wing celebrities.  Today more than 13,000 federal clemency petitions sit awaiting action — and Trump pays so little attention to them that he hasn’t even bothered to deny any cases in more than two years.

The First Step Act was not followed by a second or third step, and reform’s fate was sealed when Barr became attorney general. Unlike Sessions, Barr won Trump’s trust, and with that came the return of the Justice Department’s veto power over policy issues. Barr and Trump march to the same “law and order” rhythm — a path inconsistent with any real progressive changes. Of course, Trump has continued to take credit as a criminal justice reformer, long after he stopped reforming anything and headed off in the opposite direction.

Democratic nominee Joe Biden has a political opening here, if he chooses to use it. Back in the 1980s and ’90s he, too, thumped the table for law and order; but he can legitimately claim to have changed his mind and moved away from the dark shadow of senseless retribution and over-incarceration.

More importantly, Biden has a humanity about him that Trump cannot conjure, and that is a plus when the discussion comes to human frailty and punishment in the shadow of George Floyd’s death. Unlike Trump, Biden has the ability to credibly admit his mistakes, commit to implementing specific reforms, and then make those changes once in office. Such honesty, humility and resolve would be a welcome change from the slow, sad slide we have seen since that hopeful day in the Roosevelt Room.

August 28, 2020 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, August 25, 2020

Prez Trump grants pardon to Jon Ponder just before his RNC convention speech

As reported in this Fox News piece, "President Trump on Tuesday announced a pardon of Jon Ponder ahead of the convicted bank robber's appearance at the Republican National Convention on Tuesday night."  Here is more:

Ponder, who founded the nonprofit Hope For Prisoners, will be speaking at the convention, along with Richard Beasley, the FBI agent who arrested him, Fox News is told.

Ahead of the appearance, the president announced the pardon in a video.

Here is a link to the video announcing the pardon and providing more background on Jon Ponder, and this JustLeadershipUSA biography details some of what Ponder has been doing in service to criminal justice reform:

Jon D. Ponder is the founder and CEO of HOPE for Prisoners, Inc. In 2017, Jon was appointed by Governor Brian Sandoval to the Nevada Sentencing Commission and to the Nevada Commission on Postsecondary Education. He was appointed to the Governor’s Reentry Taskforce and the US Commission on Civil Rights Nevada State Advisory Committee in 2016. Jon holds a seat on the Executive Committee of RECAP (Rebuilding Every Community Around Peace) with the Las Vegas Metropolitan Police Department.  His responsibilities include oversight of all aspects of the programs and services provided by HOPE for Prisoners, including a comprehensive array of program components designed to assist individuals to successfully reintegrate into society.  He develops and implements strategic planning for the organization and is extremely passionate about the value of mentoring for persons coming out of correctional settings.

Jon was himself formerly incarcerated and has more than twelve years’ experience in providing training for offender populations in correctional settings.  His personal life experiences equip him to provide the guidance, direction and motivation for individuals attempting to navigate the challenges they face during the reintegration process.

August 25, 2020 in Clemency and Pardons, Criminal justice in the Trump Administration, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Sunday, August 16, 2020

Is Prez Trump serious about considering a pardon for Edward Snowden?

The question in the title of this post follows from Prez Trump's discussion of this possibility this weekend, as detailed in this Fox News piece.  Here are the basics:

President Trump said he will “look at” the case of Edward Snowden for a potential pardon. “I’m not that aware of the Snowden situation,” Trump told reporters in a briefing Saturday. “Many people think he should be somehow treated differently and other people think he did very bad things.”

“I’m going to take a look at that very strongly,” he added. Trump polled his aides Thursday to see whether he should free the anti-surveillance whistleblower and allow him to return to the U.S. from Russia without fear of arrest. “There are a lot of people that think that he is not being treated fairly. I mean, I hear that,” Trump told the New York Post in an interview....

His comments Saturday reveal remarkable reversal of course about the man he once deemed a “traitor." “Snowden is a spy who should be executed - but if it and he could reveal Obama’s records, I might become a major fan,” Trump wrote on Twitter in 2013.

A number of Republicans have voiced a renewed call for the president to free Snowden. Sen. Rand Paul, R-Ky., said he was one of those Trump referred to as believing Snowden was treated unfairly.... Another Kentucky Republican, Rep. Thomas Massie, voiced similar concerns. “Employees of the US government violated the Constitution and lied to Congress and the American people about it.  @Snowden exposed them.  This is bigger than him.  If he’s punished for his service to the Constitution, there will be more violations of the Constitution, and more lies,” Massie wrote on Twitter.

Snowden, hiding in Russia, said last year he would return to the U.S. if he would be guaranteed a fair jury trial.  “That is the ultimate goal, but if I’m going to spend the rest of my life in prison then my one, bottom-line demand that we all have to agree to is that at least I get a fair trial,” Snowden said on “CBS This Morning."  He said that the U.S. government has “refused” to guarantee one.  “They won’t provide access to what’s called a public interest defense,” Snowden said.

The ex-National Security Agency (NSA) contractor blew the lid off U.S. government surveillance methods in 2013.  Moscow has resisted U.S. pressure to extradite Snowden, who faces charges that could land him in prison for up to 30 years.  The Guardian in Britain published the first story based on Snowden's disclosures.  It revealed that a secret court order was allowing the U.S. government to Verizon phone records for millions of Americans.  Later stories, including those in The Washington Post, disclosed other snooping, and how U.S. and British spy agencies had tapped into information from cables carrying the world's phone and Internet traffic.

This Salon article, headlined "Trump's new comments about Edward Snowden put pressure on Democrats to support a pardon," highlights that support for Snowden has often come from progressive quarters:

The ACLU ... restated its support for the whistleblower in the wake of latest comments from Trump, noting in a late Saturday tweet that "Snowden blew the whistle on illegal government activity kept secret for years, sparking a global debate about the proper limits of government surveillance."

"We've said it before and we'll say it again," the group added. "Snowden is a patriot and should be pardoned."

In a Saturday tweet, digital rights activist Evan Greer singled out progressive lawmakers including "Squad" members Reps. Ilhan Omar (D-Minn.), Alexandria Ocasio-Cortez (D-N.Y.), Rashida Tlaib (D-Mich.), and Ayanna Pressley (D-Mass.) and said they should help "lead their party right now by publicly calling to #PardonSnowden" and protect whistleblowers.

And some members of the GOP are not at all keen on the idea, as highlighted by this Hill article headlined "Cheney calls pardoning Snowden 'unconscionable' after Trump says he's considering it":

Rep. Liz Cheney (R-Wyo.) said on Sunday that pardoning former National Security Agency (NSA) contractor and whistleblower Edward Snowden “would be unconscionable” after President Trump said he was considering the idea at a recent press conference. <P.“Edward Snowden is a traitor. He is responsible for the largest and most damaging release of classified info in US history. He handed over US secrets to Russian and Chinese intelligence putting our troops and our nation at risk,” Cheney, the No. 3 Republican in the House, tweeted on Sunday afternoon, adding; “Pardoning him would be unconscionable.”

August 16, 2020 in Clemency and Pardons, Who Sentences | Permalink | Comments (1)

Wednesday, August 05, 2020

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

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

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

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

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

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

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

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

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

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

The ACLU/BPI poll is here 

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

The Corrective Compassion trailer video is here

A blog by former prosecutor Preston Shipp on clemency is here

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

Monday, July 27, 2020

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A few of many prior related posts:

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

Wednesday, July 22, 2020

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

Drum-roll please....:

Roger Stone

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

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

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

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

Prior related posts:

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

Sunday, July 12, 2020

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Friday, July 10, 2020

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

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

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

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

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

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

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

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

Prior related posts:

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

Saturday, June 27, 2020

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

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

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

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

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

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

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

Prior related posts:

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

Friday, June 19, 2020

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

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

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

Who Is My Brother’s Keeper? by Rudy Martinez

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

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

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

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

Thursday, June 04, 2020

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

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

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

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

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

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

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

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

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

Prior related posts:

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

Saturday, May 16, 2020

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

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

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

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

"Searching for Clemency in the Constitution State"

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

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

Saturday, May 09, 2020

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

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

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

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

Saturday, April 18, 2020

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

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

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

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

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

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

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

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

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

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

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

Prior related posts:

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

Tuesday, April 14, 2020

"Governors Must Use Clemency Powers to Slow the Pandemic"

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

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

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

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

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

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

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

Monday, April 06, 2020

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

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

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

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

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

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

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

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

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

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

Saturday, March 28, 2020

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

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

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

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

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

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

A few of many prior related posts:

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

Friday, March 27, 2020

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

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

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

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

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

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

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

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

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

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

"Four Things Every Prison System Must Do Today"

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

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

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

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

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

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

2. Sharply limit pretrial detention....

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

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

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

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

Tuesday, March 24, 2020

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

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

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

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

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

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

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

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

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

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

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

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

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

Monday, March 23, 2020

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

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

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

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

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

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

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

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

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

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

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

Prior recent related posts:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Wednesday, March 11, 2020

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, March 10, 2020

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

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

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

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

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

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

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

A few prior related posts:

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

Sunday, March 08, 2020

Making the case for an improved and independent federal clemency process

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

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

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

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

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

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

Wednesday, March 04, 2020

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

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

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

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

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

Ms. Kemba Smith Pradia, Founder, Kemba Smith Foundation

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

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

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

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

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

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

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

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

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

A few prior related posts:

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

Tuesday, March 03, 2020

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

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

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

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

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

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

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

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

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

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

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

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

A few prior related posts:

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

Thursday, February 27, 2020

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

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

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

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

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

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

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

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

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

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

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

Prior related posts:

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

Monday, February 24, 2020

Whom else should Prez Trump pardon?

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

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

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

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

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

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

Thursday, February 20, 2020

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

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

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

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

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

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

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

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

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

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

A few prior related posts:

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

Wednesday, February 19, 2020

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

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

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

Prez                     Commutations in entire first term

George HW Bush         3

William Clinton           3

George W Bush            2

Barack Obama             1

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

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

Prior related post:

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

Tuesday, February 18, 2020

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A few (of many) prior related posts:

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

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

Sunday, February 16, 2020

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, February 11, 2020

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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