Friday, January 01, 2021

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

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

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

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

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

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

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

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

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

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

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

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

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

Some prior related posts on CJUTF recommendations:

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

Tuesday, December 29, 2020

Rounding up some notable recent criminal justice commentary

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

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

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

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

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

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

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

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

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

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

Monday, December 28, 2020

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

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

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

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

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

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

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

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

Saturday, December 26, 2020

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

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

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

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

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

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

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

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

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

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

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

Thursday, December 24, 2020

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Wednesday, December 23, 2020

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

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

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

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

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

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

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

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

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

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

Tuesday, December 22, 2020

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Friday, December 18, 2020

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

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

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

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

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

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

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

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

A few recent related posts:

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

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

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

Wednesday, December 16, 2020

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

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

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

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

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

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

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

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

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

Here is a snippet from the CNN piece:

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

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

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

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

A few recent related posts:

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

Sunday, December 06, 2020

Discussing clemency activity by Prez Trump for six more weeks seems unavoidable, doesn't it?

As highlighted by this post from last week, I am generally much more interested in thinking about how Prez-elect Biden might reform the clemency process than about how Prez Trump might use the clemency power over his last six weeks in office.  But my news feed these days is overflowing with all sorts of reports and commentary about Prez Trump's possible pardon plans, so I suspect this will have to be an evergreen blog topic in the weeks ahead.

In reviewing some recent pieces, I really liked the last couple sentences in this short NPR commentary headlined "The Truth About Pardons" authored by Scott Simon: "It's sheer speculation as to what other pardons Trump might issue as he leaves office. But a president's personal power to pardon can change lives — and reveal what they value."  I sincere hope Prez Trump is eager to change some lives for the better in this coming weeks, though I will wait to see what Prez Trump does in the coming weeks before reflecting on what his clemency record suggests about his values.  Meanwhile, here are just a few of many other pieces on this topic to recently catch my eye:

From NPR, "In His Final Weeks, Trump Could Dole Out Many Pardons To Friends, Allies"

From Politico, "Trump mulls preemptive pardons for up to 20 allies, even as Republicans balk"

From Prof. Jeffrey Crouch, "Trump and Bill Clinton pardon scandals should help Biden fix a flawed process"

For the most substantial new reporting on this topic, I highly recommend this effective new Daily Beast piece by White House reporter Asawin Suebsaeng.  The piece is fully headlined "Inside the Frantic Push to Get Trump to Pardon…. Everyone: Allies, advocates, and Alice Johnson are on a mad dash to get the president to bestow clemency and ‘mercy’ before Biden takes over."  The full piece highlights how fully fraught these matters now are for so many, and here is a snippet:

For the past month, President Donald Trump’s political allies and friends, as well as various lawyers, have been rushing against the clock to convince him to fulfill a lengthy wish list of pardons and commutations before Joe Biden takes office in late January.  “We’ve been flooded with requests,” said a senior White House official, who added that a lot of the appeals have been nakedly political and partisan, as is expected at the end of a presidency....

But buried elsewhere in the vast clutter of requests and considerations are reams of documents sent by advocates to the White House counsel’s office requesting pardons or clemency for drug offenders and longtime federal inmates who grew up under harsh circumstances and have turned their lives around behind bars.  Behind the scenes, a loose coalition of unexpected allies are sprinting to get the president’s ear and put many of these cases before him and his White House lawyers.  Some are the president’s confidants, MAGA diehards, and Trump advisers.  Others are criminal justice reform advocates who’ve learned to love him. Others have long loathed him and his policies.

On Friday Nov. 20th, Alice Johnson, a criminal justice reform advocate whose life sentence was commuted by Trump two and a half years ago, visited the president for a 30-minute meeting, during which she outlined some of the cases she and her allies had already forwarded to the White House for vetting. “It was a very good meeting,” Johnson told The Daily Beast, publicly confirming the discussion for the first time.  “I went to the White House in order to present cases before the president in the Oval Office, for people I know are very deserving people… There are around 30 names that I’ve already sent to the White House counsel.  I talked about some of the individual cases during the meeting with President Trump, but also discussed them collectively, in the sense that they all have outstanding rehabilitation records and outstanding prison records, and none of them pose a danger to the public.”

Johnson said Trump asked questions and expressed concern and receptiveness.  She believes he supports issuing more clemencies this year.  “We are also in the process of vetting and compiling packets for at least 100 more incarcerated individuals,” she said.  “We are in warp speed right now, to get as many through as possible, as quickly as possible.”...

Reform advocate Jason Flom, a well-known record executive and a Democratic donor, said in an interview on Thursday, “This is one of the only issues where there’s some meaningful agreement between the left and the right.  And I’m hoping that because there are conservative groups advocating alongside other organizations for clemency that the president will grant a significant number of them before he leaves office.”

Kevin Ring, president of the nonprofit group Families Against Mandatory Minimums, said, “We’re encouraging everyone to seek clemency at this time.  We know that this time at the end of an administration is the time to do it… We know there are going to be grants that make people scratch their heads and wonder whether that’s the best use of President Trump’s clemency authority. But we hope that for every one of those, there are 10 or 20 grants for people who are serving excessive sentences and deserve to be home.”

A few recent related posts:

December 6, 2020 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, December 02, 2020

Lots of (surprising and unsurprising) clemency chatter ... and great advocacy for clemency change

The lame-duck end of a presidential (or gubernatorial) term is often a time for lots of discussion of clemency possibilities.  And who follows this space surely sensibly expected that the Term of Prez Trump would wind down with plenty of clemency chatter.  But, as detailed via these recent headlines and links, the array of stories afoot are remarkable:

From Business Insider, "Joe Exotic's lawyer thinks he's 'very, very close' to getting a presidential pardon from Trump"

From the New York Times, "Trump Has Discussed With Advisers Pardons for His 3 Eldest Children and Giuliani"

From NPR, "Justice Department Investigating Possible Bribery-For-Pardon Scheme"

Though I might have "hot takes" about the latest clemency news, the recent piece most worth considering in this space comes from Emily Galvin-Almanza via The Appeal under the headline "Biden Must Fix The Broken Executive Clemency Process.  This Is Who He Should Select To Lead That Effort."  Here are excerpts:

[W]e must work at all levels to transform our criminal legal system.  But we can’t neglect powerful, fast tools like clemency.  We shouldn’t box clemency away as merely some form of mercy, when in fact it is something much more akin to a high-speed mechanism for undoing the worst impacts of bad, outdated policy and enforcement choices.  And yet, we have done exactly that: As [Rachel] Barkow has pointed out, we’ve taken this powerful tool and abandoned it in a dusty closet somewhere in the basement of the Department of Justice.  That’s where a brave new Administration must begin....

As you might expect, this choking process has left clemency in a state of crisis.  It is dysfunctional, available primarily to the powerful, and raises only false hopes for marginalized people. But we are standing, post-election, on the verge of tremendous change.  Looking to a Biden Administration that, at its core, has indicated a commitment to righting the wrongs of the past and looking for smarter, more human (and humane) solutions.  Clemency is a fantastic opportunity for such an administration: fixing clemency in a way that would spur transformative change doesn’t require congress, doesn’t require massive bureaucracy, and doesn’t require anything other than strong executive action–and an executive ready to leverage the unique depths of his own empathy.

The process is simple: first, the new President Joe Biden must move the clemency process out of DOJ and into the White House, and appoint someone with deep grounding in the topic–and bipartisan credibility–to lead a committee on clemency that would not only build a system to process individual applications faster, but create proactive tactics for finding ways to use the clemency power to undo the worst impacts of bad, carceral law–even for people who hadn’t been able to file for relief on their own.  Best of all, this idea isn’t particularly controversial: it was supported during the primary by everyone from Senators Amy Klobuchar to Bernie Sanders, it made it through the Biden-Sanders Unity Taskforce, and it was integrated into the 2020 Democratic Party platform.  For context, this makes it significantly less controversial than, say, legalizing marijuana — a policy many, many states are already enacting.

Rachel Barkow, of course, would be a very smart choice, as someone whose primary body of work has focused on building a better clemency system, and who has also been celebrated by advocates from across the political spectrum.  She’s not only a respected scholar and former clerk to the iconic Justice Scalia, she’s a national policy player who has been through Senate confirmation once already, joining the U.S. Sentencing Commission in 2013.  But importantly, her views aren’t limited to the ivory tower — she’s done the actual work of helping people apply for clemency: she and co-author Mark Osler started a “pop up” clemency clinic to help people apply for clemency in 2014....

Leading a team that would not just include but center the experiences of people who had lived through incarceration, and also reserve space for public defenders, civil rights lawyers, and progressive prosecutors who carry a more modern understanding of second chances than their old-school peers, Barkow could hand the President a mechanism for fostering liberty, opportunity and restoration out of the wreckage of our bloated system.  She could change the game by building a faster, smarter process.  For people who love comparisons, Barkow’s role in the clemency conversation is not dissimilar from the robust academic-yet-tactical power Senator Elizabeth Warren has brought to the conversation around the Consumer Financial Protection Bureau.  Tasking Barkow with bringing clemency into the White House would be a little like letting Sen. Warren supercharge the CFPB.

Instead of placing endless barriers between deserving, promising people and their chance to be heard, or allowing prosecutorial dinosaurs at DOJ to stand between ordinary people and opportunity, she and her committee could fast-track applications and give President Biden an opportunity to be a groundbreaking leader in this area.  They could seek out specific areas where we know sentences are too long and out of step with current enforcement priorities and find people who may not have had the capacity to file a petition, but whose sentence is wildly out of step with modern views. It would be especially beautiful to break down the legacy of 1994 — and 1990s punitive measures more generally — with this unique and deceptively simple action.

December 2, 2020 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Tuesday, December 01, 2020

Can Kim Kardashian help stop next week's scheduled federal execution?

The question in the title of this post is prompted by this Los Angeles Times piece headlined "Kim Kardashian West flexes her prison-reform muscle, taking on death-penalty case." Here are excerpts:

Kim Kardashian West is flexing her criminal justice reform muscles for perhaps the last time before President Trump leaves office, asking that the sentence of federal death-row inmate Brandon Bernard be commuted to life in prison without parole before Bernard’s Dec. 10 execution date.

Bernard was sentenced to death in 2000 for the murder of Stacie Bagley, who was killed with her husband after a carjacking and robbery in June 1999 left them locked in the trunk of their car, which was set on fire after both victims were shot. Todd Bagley died from the gunshot, but Stacie died in the fire, which was set by Bernard. The murders took place on Ft. Hood military land in Texas, making it a federal case.

“First, I want to say that a terrible crime was committed and me fighting for a stay of execution does not take away from the sympathy I have for the victim’s Todd and Stacie Bagley, and their families. My heart breaks for everyone involved,” the reality TV star and beauty mogul wrote Sunday in a series of tweets.

Kardashian West first revealed her interest in criminal-justice reform in 2018, when she and others successfully lobbied President Trump to pardon Alice Marie Johnson, who had served 22 years of a life sentence for a nonviolent drug offense. Since then, she has started studying law and has stepped up on behalf of numerous other convicts. In April, she released “Kim Kardashian West: The Justice Project,” a documentary on Oxygen.

“While Brandon did participate in this crime, his role was minor compared to that of the other teens involved, two of whom are home from prison now,” Kardashian West continued Sunday on Twitter.

The fourth man involved in the crimes, Christopher Andre Vialva, was executed Sept. 24 after being sentenced to death on three of the four charges he faced and life in prison on the other. Bernard also received life sentences on three of the four counts, which included committing or aiding and abetting carjacking and conspiracy to commit murder.

Kardashian West tweeted that Bernard wasn’t involved in the initial carjacking and was “stunned” when the Iowa youth ministers were shot. He feared for his own life, she said, when he sprayed lighter fluid into the car and set it on fire to destroy the evidence.

The 40-year-old mother of four cited a recent article written by the prosecutor who defended Bernard’s death sentence on appeal but now believes that sentence should be tossed. She also posted videos from two of the five jurors who — out of the nine jurors still alive — now regret their vote for the death sentence two decades ago. None of those people, however, doubts Bernard’s guilt.

“At trial Brandon’s attorney fell short by not hiring any experts who could have explained to the jury why Brandon decided to leave the video game store that night or how he had grown up in an abusive home, or how his homeless father had left him searching for protection in the streets,” Kardashian West tweeted. “His trial attorney also failed to tell the jury how remorseful he was or anything about his background. We now know this testimony would have spared his life.”...

Bernard, who was convicted of the same four charges Vialva was, got the death sentence for Stacie Bagley’s killing. He was 18 at the time of the murders and, like Vialva, a gang member, according to court documents.

It might seem silly to think a reality TV star like Kim Kardashian West would have sway with the President of the United States.  But, of course, the current President is himself a reality TV star, and he has been greatly influenced by Kimme in the past to reduce the severity of some federal sentences.  I would be quite surprised if she can convince Prez Trump to halt an execution, but I supposed I have learned the last four years to put nothing past this President.

A few prior related posts:

December 1, 2020 in Clemency and Pardons, Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Sunday, November 29, 2020

"The Legality of Presidential Self-Pardons"

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

The traditional understanding of the Article II Pardon Clause is that the President may grant clemency to anyone who has committed a federal offense.  Yet, a question exists whether that “anyone” includes the President.  The issue has arisen on three occasions: in the 1970s, when President Richard Nixon was under investigation for his involvement in crimes associated with Watergate; in the 1980s, when the Iran-Contra Investigation raised the question whether President George H.W. Bush knew about an illegal arms-for-hostages arrangement; and more recently when President Donald Trump publicly stated that he had the legal authority to pardon himself to end a Department of Justice investigation into Russia’s involvement in the 2016 presidential election.  No court has ruled on the legitimacy of a presidential self-pardon, and commentators have disagreed over the issue.  In my opinion, the Article II Pardon Clause allows the President to pardon himself, but the Article I Impeachment and Removal Clauses permits Congress to remove the President for doing so.

Clemency was a prerogative of the English Crown.  The King’s grant of a pardon was conclusive and not subject to revision by Parliament or the English courts.  The Pardon Clause reflects the prerogative nature of that power.  Its text contains only two restrictions — one limiting clemency to federal offenses, the other denying the President the ability to halt impeachment proceedings — and neither one prevents self-pardons.  Supreme Court case law does not justify creating a self-pardon exception.  As interpreted by the Court, the Pardon Clause is the last surviving remnant of the royal prerogatives.  To be sure, the Take Care Clause imposes a fiduciary obligation on a President, one comparable to the obligation borne by a private trustee, to act in the best interests of his client — the public — and a President can breach that duty by excusing himself from criminal liability.  But the Impeachment and Removal Clauses provide the appropriate remedy for any abuse of presidential authority, including any misuse of the pardon power.  That conclusion will not satisfy anyone who believes that there must be a judicial remedy available for every wrong, but it is the best reading of the text of our Constitution.

November 29, 2020 in Clemency and Pardons, Who Sentences | Permalink | Comments (1)

Wednesday, November 25, 2020

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

November 25, 2020 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Tuesday, November 24, 2020

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Friday, November 20, 2020

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

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

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

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

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

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

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

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

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

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

Thursday, November 19, 2020

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

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

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

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

Monday, November 16, 2020

"Presidential Pardons and the Problem of Impunity"

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

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

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

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

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

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

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

Tuesday, November 10, 2020

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Sunday, November 08, 2020

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

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

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

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

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

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

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

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

Friday, October 30, 2020

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

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

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

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

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

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

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

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

Wednesday, October 21, 2020

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

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

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

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

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

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

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

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

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

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

A few of many prior related posts:

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

Monday, September 21, 2020

Notable research from Pennsylvania on positive pardon consequences

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

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

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

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

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

Wednesday, September 02, 2020

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

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

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

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

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

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

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

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

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

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

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

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

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

Friday, August 28, 2020

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, August 25, 2020

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

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

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

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

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

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

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

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

Sunday, August 16, 2020

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Wednesday, August 05, 2020

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

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

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

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

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

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

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

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

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

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

The ACLU/BPI poll is here 

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

The Corrective Compassion trailer video is here

A blog by former prosecutor Preston Shipp on clemency is here

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

Monday, July 27, 2020

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A few of many prior related posts:

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

Wednesday, July 22, 2020

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

Drum-roll please....:

Roger Stone

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

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

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

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

Prior related posts:

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

Sunday, July 12, 2020

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Friday, July 10, 2020

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

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

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

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

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

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

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

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

Prior related posts:

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

Saturday, June 27, 2020

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

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

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

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

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

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

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

Prior related posts:

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

Friday, June 19, 2020

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

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

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

Who Is My Brother’s Keeper? by Rudy Martinez

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

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

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

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

Thursday, June 04, 2020

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

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

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

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

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

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

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

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

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

Prior related posts:

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

Saturday, May 16, 2020

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

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

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

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

"Searching for Clemency in the Constitution State"

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

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

Saturday, May 09, 2020

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

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

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

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

Saturday, April 18, 2020

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

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

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

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

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

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

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

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

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

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

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

Prior related posts:

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

Tuesday, April 14, 2020

"Governors Must Use Clemency Powers to Slow the Pandemic"

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

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

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

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

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

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

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

Monday, April 06, 2020

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

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

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

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

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

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

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

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

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

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

Saturday, March 28, 2020

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

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

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

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

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

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

A few of many prior related posts:

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

Friday, March 27, 2020

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

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

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

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

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

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

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

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

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

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

"Four Things Every Prison System Must Do Today"

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

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

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

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

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

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

2. Sharply limit pretrial detention....

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

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

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

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

Tuesday, March 24, 2020

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

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

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

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

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

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

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

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

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

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

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

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

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

Monday, March 23, 2020

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

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

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

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

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

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

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

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

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

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

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

Prior recent related posts:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

March 23, 2020 in Clemency and Pardons, Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (6)