Sentencing Law and Policy

"Presidential pardons: Which ones do Americans approve of?"

The title of this post is the title of this interesting new YouGov entry discussing its latest polling regarding various all sorts of aspects of the use and reach of the federal clemency power.  There are a number of notable and interesting findings discussed throughout the piece, and here is its introductory overview at the start:

As the 50th anniversary of Gerald Ford’s controversial pardon of Richard Nixon approaches, new polling reveals that public support for the pardon has increased over time, though slightly more still disapprove of it than approve. Americans are divided over many specific pardons, largely corresponding to whether their party and the party of the president who issued it are aligned. While some of the most recent pardons — such as those granted by President Joe Biden for marijuana possession — receive broad approval, others, particularly those issued by former President Donald Trump to his allies, are viewed far less favorably.

Roughly half of Americans approve of presidents having the power to pardon federal crimes, but majorities think it would be inappropriate for presidents to pardon themselves, family members, or donors. Many support putting limits on the president's pardon power, including by making public the reasons behind pardons, prohibiting self-pardons, and limiting pardons during an election year.

Might Donald Trump advocate for the release of all those still serving time for marijuana offenses?

The quetion in the title of this post is prompted by comments made by Donald Trump during a press conference at Mar-a-Lago this past  Thursday.  Notably, as detailed in this effective Last Prisioner Project discussion, we really do not know exactly how many people are serving time in jail or prison for marijuana offenses.  But, as detailed in this Marijuana Moment piece, when former Prez Trump was asked about marijuana legalization, he seemed to suggest he was growing more supportive of the posision and specifically stated that "it’s awfully hard to have people all over the jails that are in jail right now for something that’s legal."  Here are details Marijuana Moment piece:

Former President Donald Trump says he is starting to “agree a lot more” that people should not be criminalized over marijuana given that it’s “being legalized all over the country” — adding that he will “fairly soon” reveal his position on the cannabis legalization measure on the November ballot in Florida, where he is a voter.

“As we legalize it, I start to agree a lot more because, you know, it’s being legalized all over the country,” Trump said at a press conference at Mar-a-Lago on Thursday. “Florida has something coming up. I’ll be making a statement about that fairly soon.”

A reporter had asked about the Biden-Harris administration push to reschedule cannabis, as well as Vice President Kamala Harris, the 2024 Democratic presidential nominee, stating repeatedly that people should not be incarcerated over simple cannabis offenses.  “As we legalize it throughout the country — whether that’s a good thing or a bad thing — it’s awfully hard to have people all over the jails that are in jail right now for something that’s legal,” Trump replied. “So I think obviously there’s a lot of sentiment to doing that.”

While not an explicit endorsement of major marijuana reform, the statement represents another example of Trump departing from the harsh anti-drug rhetoric he’s been employing over this latest campaign, at least when it comes to marijuana. And while it’s unclear whether he will choose to back the Florida cannabis legalization measure that he will have the chance to vote on as a resident, he did not take the opportunity to denounce it, despite Florida Gov. Ron DeSantis’s (R) campaign against the reform measure.

The candidate also discussed people he’s issued presidential pardons for, including Alice Johnson, who was sentenced to life in prison without the possibility of parole over her role in a cocaine trafficking ring in the 1990s.  He said Johnson is a “fantastic woman” who “served 24 years for being on a phone call having to do with drugs, adding that she “was great” and “had another 24 years to go, and it was largely about marijuana, which, in many cases, is now legalized” at the state level.

I am pretty sire that Alice Marie Johnson had served over two decades of a life sentence on charges related to cocaine distribution and money laundering, not marijuana. That Trump now wanted to say her offense was "largely about marijuana" may, in its own way, support a supposition that Trump in a second term might actively seek release of all those still serving time for marijuana offenses.

Minnesota Gov Tim Walz, the veep pick by Prez candidate Harris, has his own notable criminal justice history

Multiple media outlets are now reporting that VP and Prez candidate Kamala Harris has chosen Minnesota Governor Tim Walz as her running mate.  I noted in this post last month that VP Harris was a distinctive nominee given her  extensive criminal justice experiences in California.  And, in his role as Governor of the North Star State, Tim Walz also has some notable criminal justice history. 

Of course, political science folks assert VP picks have very little or no impact on electorial outcomes.  But I am always inclined to believe that a VP can prove meaningful and perhaps even consequential on various policy fronts. Consequently, I think Gov Walz's criminal justice history is worth a brief note on the day of his selection (and maybe more in the future).

For starters, here are a few prior posts from this blog discussing sentencing reform enacted in Minnesota that were signed into law by Gov Walz:

• New Minnesota law provides for prison alternatives for veterans involved in lower-level offenses (from 2021)
• Minnesota through new legislation becomes 28th state to prohibit juve LWOP (from 2023)
• Spotlighting the development of prosecutor-led resentencing movement (from 2023)

In addition, from my other blog, "Minnesota poised to become 23rd state to legalize marijuana for adult use" (from 2023).

My understanding is that these posts discuss only a portion of the criminal justuce reforms that have become law in the North Star State in recent years.  Moreover, I suspect that Gov Walz's role as a member of the Minnesota Board of Pardons may be the activity that has most shaped his views on criminal justice issues.  This lengthy article from the New York Times about the Board's work, which I flagged in this prior post, has lots of notable passages, including these:

But formal forgiveness in Minnesota comes only through the pardon board and its de facto chairman, Gov. Tim Walz, 59, a retired high school teacher and former congressman. When he took office in 2019, his knowledge of his newfound pardon power came mostly from movies. “Theoretically, I understood,” he said. “Operationally, no idea.” Now, with eight rounds of pardon hearings behind him and two days of hearings before him, the governor better understood the heartwarming, heartbreaking realities of this power of his....

Hours later, his pardon work done, the governor would return to his office in the landmark State Capitol, where everything down to the gold-rimmed coaster beneath his can of Diet Mountain Dew underscored his role as the quasi-sovereign of Minnesota. Just as Jim Lorge, former meth dealer, had represented seekers of mercy through the ages, so, too, did Tim Walz stand for those empowered over the millennia to dispense it.

Sitting at a long mahogany table, the governor would recount certain moments from the last two days, moments of joy and of pain. He and his two board colleagues had granted 17 pardon requests, denied three others and left the three other imprisoned supplicants with some measure of relief. They had granted mercy and withheld mercy.

Intriguing DPIC analysis of capital clemency grants over last 46 years

The Death Penalty Information Center (DPIC) recently posted here an interesting analysis of "all 82 grants of clemency to individual death-sentenced prisoners between 1977-2023, excluding mass clemency grants." Here is how D{IC summarizes its findings at the start of the analysis:

In a new analysis, the Death Penalty Information Center has found that executive officials most often cite disproportionate sentencing, possible innocence, and mitigation factors such as intellectual disability or mental illness as reasons to grant clemency in capital cases.  Ineffective defense lawyering and official misconduct are also common factors in clemency grants.  While present in fewer cases, support for clemency from the victim’s family or a decisionmaker in the original trial, such as a prosecutor or juror, appears to have a powerful impact.  Prisoners frequently offer evidence of rehabilitation and remorse at clemency hearings, but this evidence is cited less often by officials.

Here is another notable part of the DPIC's analysis:

We found that about half of cases (47.6%) had more than one stated or apparent reason for clemency, illustrating the compounding nature of legal violations and unfair practices in capital cases.  However, this did not split evenly by category: while two-thirds of possible innocence cases had possible innocence as the only apparent reason for clemency, only one rehabilitation/remorse case out of ten had that factor as the only reason.  In other words, executive officials appeared confident in citing possible innocence as the sole reason for a clemency grant, or in granting clemency when innocence was the predominant argument, but almost always relied on another justification when rehabilitation/remorse played a role in the case.

Could Prez Biden's decision "to stand down" impact his use of his clemency power?

There are, of course, so many political and policy elements to President Joe Biden's decision to end him campaign for re-election or, as he put it, "to stand down and to focus solely on fulfilling my duties as President for the remainder of my term."  But, as this is a sentencing blog, I am particularly interested in considering the possible impact on sentencing politics and policy.  And the unique and historic sentencing power that all presidents possess is the constitutional power to grant clemencies or, as Article 2 of the Constitution puts it, the "Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment."

This Axios piece from last week, headlined "Why presidents are wielding their pardon powers less and less," talked a bit about some modern clemency realities, and here are some excerpts:

A trend toward a less generous executive has emerged in U.S. clemency history.  So far, President Biden has been no exception....  But beyond sweeping proclamations, Biden has used his pardon power more sparingly than his modern predecessors on ordinary pardon cases, according to Justice Department data... Biden used them to pardon prior federal offenses of simple marijuana possession and veterans convicted and forced out of the military because of their gender identity or sexual orientation.

The big picture: Experts point to structural and political reasons for the shift toward a generally more restrained approach to clemency petitions.

Throughout U.S. history, the system has become deeply entangled in bureaucratic process, leading to a backlog of ordinary petitions, said Mark Osler, a legal scholar who advocates for sentencing and clemency reform.  What "Biden seems to be stuck with is a system of analysis that doesn't work and hasn't worked for his predecessors either," Osler said.  He pointed to a series of seven valves of review a petition must pass through — a pipeline Osler said lengthened under the Biden administration with additional input from the Domestic Policy Council.

Frank Bowman, a legal historian who has written extensively about the pardon power, cited the "nasty politics of our era" as one driving factor.  "Presidents have become hyper-cautious about making sure that they don't create the grist for the opposition mill," Bowman said.

By the numbers: President Obama granted the most acts of clemency — 1,927 pardons and commutations combined — dating back to Harry Truman, according to DOJ data.  But that's just over 5% of the petitions Obama received. As of May 2024, Biden had formally granted 153 petitions for clemency — that's 1.6% percent of all requests....

DOJ data shows that every president between Ford and Trump used his clemency power during his final days in office. Obama issued 1,185 clemency actions in just over three months in 2017 before he left office.  That's just over 61% of all of the petitions he approved.

The political concern about "creat[ing] the grist for the opposition mill" seems likely to limit Prez Biden's eagerness to grant many (or perhas any) clemencies before Election Day because his party is on the ballot, even though he is now a distinctive kind of lame duck.  But, as noted here (and likely forgotten everewhere else), in late October 2020, then-President Trump granted a few commutations a few weeks before the 2020 Election, and it is certainly possible that certain kinds of clemency grants might be seen in certain quarters as politically beneficial as the election approaches.

More obviously, after Election Day and no matter who wins, Prez Biden will be an even lamer kind of lame duck until January 20, 2025.  I presume a whole lot of advocates will be advocating for Prez Biden to make robust use of clemency at that point.  Notably, Prez Biden's son, Hunter Biden, is supposed to be go to trial on federal tax charges on September and to be sentenced on gun-related charges sometime thereafter.  When still a candidate a month ago, Prez Biden pledged not to grant a pardon or commutation to his son.  But I am inclined to guess his views may evolve on his son, especially after the election.  And more broadly, in his final months in office, I wonder if Prez Biden might be inclined to consider a broader set of potential set of clemency grants across a broad range of offenses and offenders.  I guess time will tell.  

Noting recent clemency grants and broader clemency record of Michigan Gov Whitmer

This new local press article, headlined "Whitmer grants clemency to 5, including two first-degree murder convicts, but not DeLisle," caught my attention in part because the Governor of Michigan is among a number of prominent Democratic officials getting extra attention amid debate over President Joe Biden's seemingly uncertain status as a presidential candidate.  Helpfully, this new press piece discusses Gov Whitmer's recent clemency work in the context of broader clemency records in Michigan:

Michigan Gov. Gretchen Whitmer has pardoned two individuals and commuted the sentences of three others, including two inmates who were convicted of first-degree murder and would otherwise spend the rest of their lives in prison.... 

In a Wednesday statement, Whitmer said the clemency designations were based on recommendations from the Michigan Parole Board.  "By granting clemency to five individuals who have taken accountability for their actions, we will offer them a fair shot to build a good life in Michigan," Whitmer said.

Both the governor and Lt. Gov. Garlin Gilchrist said the clemency decisions are part of an effort to give people in the criminal justice system a second chance. They noted other measures include recent expansions of "Clean Slate" legislation meant to wipe nonviolent offenses off people's records and intervention programs in the court system to connect people to mental health aid, substance abuse support and job resources....

Hundreds of individuals request a pardon or commutation each year through applications submitted to the Michigan Parole Board, which reviews those applications, sometimes grants hearings and then makes a recommendation to the governor. The governor grants several of the requests each year.  In 2023 alone, 521 individuals submitted applications seeking commutations.

Since becoming governor in 2019 and with Wednesday's numbers included, Whitmer has commuted the sentences of 35 inmates, including seven who were convicted of first-degree murder, and three with second-degree murder convictions, according to Michigan Department of Corrections records. In 2022, Whitmer also granted pardons to four people who'd already served their sentences for nonviolent offenses.

By comparison, Democratic former Gov. Jennifer Granholm granted commutations to 180 prisoners from 2003-11, and Republican former Gov. Rick Snyder commuted 32 sentences from 2011-18.  Overall, Michigan governors have commuted the sentences of 379 prisoners since 1969, 162 of whom had been convicted of first-degree murder, according to Michigan Department of Corrections records. Clemency was granted to 95 inmates for medical reasons.

Federal prosecutors finalize plea deal to resolve charges (and to enable release) of Julian Assange

This Washington Post article reports on a notable and unusual federal plea deal in the works for a notable and unusual federal defendant, and the full headline details the basics: "WikiLeaks founder Julian Assange expected to plead guilty to felony charge: After serving five years in a British prison, a new court filing indicates Assange is preparing to plead guilty to a single U.S. charge and will be allowed to return to his home country of Australia."  Here is how the article starts with links to some key documents:

Julian Assange, the founder of the anti-secrecy site WikiLeaks, has reached a tentative deal to plead guilty to one count of violating the Espionage Act for his role in obtaining and publishing classified military and diplomatic documents from 2009 to 2011, according to court filings.

The plea deal would end a long-running legal saga and a transatlantic tug-of-war that pitted national security against press freedom.

He is expected to be sentenced on Wednesday in the Northern Mariana Islands, according to a letter filed by the Justice Department in the remote U.S. jurisdiction Monday evening. He will then return to his home country of Australia, the letter says, indicating he will be sentenced to the 62 months he has already spent behind bars in a London prison.

A criminal information filed alongside the letter says Assange “knowingly and unlawfully conspired” with Chelsea Manning to “receive and obtain documents … connected with the national defense” and “communicate” that information to “persons not entitled to receive” it. Manning, then a young Army intelligence analyst in Iraq, was convicted of violating the Espionage Act and other laws at a court-martial in 2013.

“This period of our lives, I’m confident now, has come to an end,” his wife and attorney Stella Assange said in a video statement filmed last Wednesday and released after the court documents were filed. “Julian will be free.”

Assange, whose snow-white hair became recognizable worldwide, was a polarizing figure. Supporters saw him as a courageous journalist whistleblower of government misdeeds, but his detractors saw a pompous self-promoter interested primarily in fame and oblivious to the harm his leaks might cause.

A commentor here wonders about what could happen if the federal judge were to reject this plea deal. I doubt that is likely, but one never knows.

Also notable are news report that Assange's wife has already started discussing seeking a federal pardon for her husband. I believe Donald Trump talked about considering a pardon for Assage both while he was president and more recently on the campaign trail.

Buckeye expedited clemency ideas now flowering even more robustly in the Garden State

Long-time readers shoudl be somewhat familiar with the extraordinary work of Governor Mike DeWine here in Ohio through the great Expedited Pardon Project.  I am, of course, biased in my praise for Ohio's EPP effort in part because The Ohio State University's Drug Enforcement and Policy Center (DEPC) has been playing a significant role helping the Governor's clemency work through this ground-breaking program, and we not long ago celebrated at OSU the many pardons that Gov DeWine has already granted.  I have in thsi space and elsehwhere asserted that other Governors should follow the lead and clemency achievements of Ohio Gov DeWine, and a few months ago I posted here about comments by New Jersey Governor Phil Murphy suggesting he was working on a new clemency initiative.

Against that backdrop, I was incredibly excited last week to be forwarded this official press release, fully headlined "Governor Murphy Launches Historic Clemency Initiative: Executive Order Includes Standards for Expedited Consideration and Establishes Advisory Board to Provide Objective Review of Pardons and Commutations."  Here is how the lengthy release gets started:

Governor Phil Murphy today outlined his plans to issue pardons and commutations using best practices that include expedited consideration for certain clemency applications.

Executive Order No. 362, which Governor Murphy signed today, sets out certain categories of pending or future clemency applications that will receive expedited review during the Murphy Administration. For example, individuals may receive expedited consideration for pardons for certain non-violent convictions if they have remained free from justice system involvement for sufficient time. Other examples of those receiving expedited consideration include individuals who are serving sentences that reflect an excessive trial penalty, and victims of domestic or sexual violence or sex trafficking who are incarcerated for committing a crime against the perpetrator. The fundamental goal underlying this initiative is to provide relief from inequities that have existed and been perpetuated in the criminal legal system.

The Executive Order also establishes a Clemency Advisory Board, which will be responsible for reviewing each clemency application and making recommendations to the Governor.  The board will be the first of its kind in state history and will ensure that the Governor’s decisions regarding pardons and commutations are informed by the advice of individuals with diverse experiences and expertise relating to criminal justice and clemency.

“As we celebrate Juneteenth and reflect on our nation’s ongoing journey toward racial justice for Black and Brown Americans, I am proud to sign this Executive Order to help address inequities and unfairness in our system of justice in New Jersey,” said Governor Murphy. “This new clemency initiative is a cornerstone of our Administration’s efforts to make New Jersey the State of Second Chances. Today, we pledge to take a responsible and equity-driven approach to pardons and commutations that will prioritize the most compelling cases.”

The full executive order includes all sorts of notable details about the reasons for and structure of this notable new clemency intiative.  And, excitingly, the Garden State effort grows beyong the Buckeye State model.  In Ohio, the expedited clemency process is only for pardon applicants, while in New Jersey it appears even persons seeking commutations while serving a prison term or while on supervision can apply.

Kudos to NJ Governor Murphy for finally attending to his clemency responsibilities (though I will note that Oho Gov DeWine got his program at the start of his tenure, rather than towards its close).  I hope the great ideas of expanded and expedited clemency programs continues to flower in more an more states.

Maryland Governor to issue mass pardons for low-level marijuana offenses estimated to cover over 175,000 convictions

As reported in this Washington Post piece, "Maryland Gov. Wes Moore will issue a mass pardon of more than 175,000 marijuana convictions Monday morning, one of the nation’s most sweeping acts of clemency involving a drug now in widespread recreational use."  Here is more about this high-profile clemency effort:

The pardons will forgive low-level marijuana possession charges for an estimated 100,000 people in what the Democratic governor said is a step to heal decades of social and economic injustice that disproportionately harms Black and Brown people. Moore noted criminal records have been used to deny housing, employment and education, holding people and their families back long after their sentences have been served.

“I’m ecstatic that we have a real opportunity with what I’m signing to right a lot of historical wrongs,” Moore said in an interview. “If you want to be able to create inclusive economic growth, it means you have to start removing these barriers that continue to disproportionately sit on communities of color.”

Moore called the scope of his pardons “the most far-reaching and aggressive” executive action among officials nationwide who have sought to unwind criminal justice inequities with the growing legalization of marijuana. Nine other states and multiple cities have pardoned hundreds of thousands of old marijuana convictions in recent years, according to the National Organization for the Reform of Marijuana Laws....

The pardons, timed to coincide with Wednesday’s Juneteenth holiday, a day that has come to symbolize the end of slavery in the United States, come from a rising star in the Democratic Party and the lone Black governor of a U.S. state whose ascent is built on the promise to “leave no one behind.”...

Maryland’s pardon action rivals only Massachusetts, where the governor and an executive council together issued a blanket pardon in March expected to affect hundreds of thousands of people....

Maryland officials said the pardons, which would also apply to people who are dead, will not result in releasing anyone from incarceration because none are imprisoned. Misdemeanor cannabis charges yield short sentences and prosecutions for misdemeanor criminal possession have stopped, as possessing small amounts of the drug is legal statewide.

Moore’s pardon action will automatically forgive every misdemeanor marijuana possession charge the Maryland judiciary could locate in the state’s electronic court records system, along with every misdemeanor paraphernalia charge tied to use or possession of marijuana. Maryland is the only state to pardon such paraphernalia charges, state officials said.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Prior posts from 2015 when Ulbright was sentenced:

• You be the judge: what federal sentence for Silk Road creator Ross Ulbricht?
• Notable developments in prelude to federal sentencing for Silk Road creator Ross Ulbricht
• Debate over harms of online drug market now at center of upcoming sentencing of Silk Road creator Ross Ulbricht
• "Before sentencing, Ulbricht begs for leniency: 'please leave me my old age'"
• Sentencing message sent: blazing a Silk Road for drugs gets you LWOP 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

This commutation is generating all sorts of negative headlines:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Is wilted Garden State clemency about to be spruced up?

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

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

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

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

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

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

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

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

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

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

• Honored to be helping Ohio Gov. DeWine with new "Expedited Pardon Project"
• Terrific new editorial about Ohio Gov DeWine's terrific new "Expedited Pardon Project" 
• Heartening coverage of one beneficiary of Ohio Gov DeWine's "Expedited Pardon Project" 
• Link to the webpage for the Expedited Pardon Project

Valuable reminder that Prez pardons are not the same as expungements

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

And now the new "exclusive" update from AllHipHop:

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

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

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

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

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

Framing how holiday federal clemencies should be remembered after the holidays

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Transparency & Accessibility

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

Efficiency

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

Public Engagement

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

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

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

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

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

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

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

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

Some notable (red) state clemency headlines and stories

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

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

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

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

Pardon stories focused on humans to close out the Thanksgiving weekend

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Extensive account of clemency and the clemency process in Minnesota

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

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

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

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

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

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

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

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

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

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

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

This even will be livestreamed at this link.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Interesting criminal justice news and notes from the GOP campaign trail

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

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

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

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

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

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

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

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

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

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

Interesting times.

Prior related posts:

• Florida Gov DeSantis reportedly gearing up to attack former Prez Trump for his support of FIRST STEP Act
• New GOP Prez candidate DeSantis pledges to repeal FIRST STEP Act 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Prior related post:

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

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

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

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

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

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

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

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

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

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

Clemency Recipient List

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Prior related posts from October 2022:

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

New Pennsylvania Gov announces his capital punishment abolitionist plans

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Another round of holiday season clemency news

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

From Massachusetts, "Baker recommends another round of pardons"

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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