We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

TRUMP HAS A LITTLE LIST

For all of us who are Gilbert & Sullivan fans (and counting me, there may be two of us), all of the current buzz about President Trump’s current list of 3,000 people he says he’s reviewing for pardons or commutations is reminiscent of the Mikado, in which the Lord High Executioner explains that he’s “got a little list.” But where Gilbert & Sullivan’s “little list” was of “people who would not be missed,” the President’s list is of people who are being missed.

After we reported last week on Trump’s commutation of Alice Johnson’s federal sentence, we got a number of inmate emails asking for the President’s address (which is 1600 Pennsylvania Avenue N.W., Washington, D.C. 20500). Almost as many people asked about the list itself, and how they could get on it. A few asked me to get them on the list (oh, if only I had anywhere near that kind of power).

But there is a “little list,” and rumors abound that the President will be using it soon. One person who recently spoke with Trump advisor and son-in-law Jared Kushner told the pop culture and fashion magazine Vanity Fair last week (you never know where you’re going to find interesting material these days) that Kushner is gearing up for a big pardon push. The source said Kim Kardashian gave Kushner a list of people to pardon, some of whom are hip-hop artists. “They’re going to be pardoning a lot of people — pardons that even Obama wouldn’t do,” the person said.

The magazine also reported on the budding relationship between Kushner and CNN host and criminal-justice reform advocate Van Jones. Jones, who is as politically to the left as Kushner is to the right, told the magazine, “Jared and I have 99 problems but prison ain’t one. I’ve found him to be effective, straightforward, and dogged.”

The Washington Examiner reported last week that Kushner and White House counsel Don McGahn met with a right-leaning policy advocate who handed them lists of dozens of inmates serving long sentences, according to a person involved in the discussions. McGahn reportedly reacted favorably to the case of Chris Young, a 30-year-old Tennesseean doing life since age 22 for a drug conspiracy. Young’s sentencing judge called the sentence “way out of whack” but said he had no choice. Young’s name was supplied to the advocate by his attorney Brittany Barnett, who also represented Alice Johnson. Dozens of other names were supplied by the CAN-DO Foundation, which championed Johnson, and FAMM.

Topping a list of 20 marijuana inmates assembled by CAN-DO were Michael Pelletier and John Knock, who are doing life for pot smuggling and who unsuccessfully requested clemency from President Obama. Another list of 17 women and six men prepared by CAN-DO was topped by Michelle West (drug conspiracy) and Connie Farris (mail fraud).

The Examiner said it is unclear if other advocates have come to the White House as part of Trump’s “unconventional early-term approach to clemency that until now has relied heavily on the recommendations of celebrities and political allies.” One advocate who brought lists to the White House received the impression that officials may be considering setting up an internal clemency commission to circumvent or supplement the work of the Justice Department’s Office of the Pardon Attorney.

Jones told Vanity Fair that Trump liked the positive media coverage that followed his pardon of Alice Johnson. “Trump was pleasantly surprised,” Jones said. “I hope the president feels encouraged to do more.”

Longtime Harvard law professor Alan Dershowitz, who has consulted with the President on two pardons and one commutation thus far, told the Examiner recently that with Trump, “you have to appeal to his sense of injustice. He feels he is now being subject to injustice, and so he’s very sensitive to injustices. I think if you write a letter to the president and you set down the case in a compassionate way, I think his staff knows that he’s looking for cases of injustice. This president may want to go down in history as somebody who has given pardons in places where other presidents would not have done it.”

Margaret Colgate Love, who served as DOJ Pardon Attorney from 1990-1997, wrote recently in the Washington Post:

There is nothing surprising or necessarily alarming about Trump’s embrace of this broad executive power — even if it has been unconventional. His grants to date, at least as he explains them, represent a classic and justifiable use of the pardon power to draw attention to injustice and inefficiency in the law. While many may disagree with the president’s choices, each of them speaks to some widely acknowledged dysfunction in the criminal-justice system…

In sum, Trump’s grants to date send a message that business as usual in the criminal-justice system will not be tolerated. That is how the pardon power was designed to work by the framers of the Constitution.

Nevertheless, Attorney Love is concerned that Trump appears to be relying exclusively on random, unofficial sources of information and advice (who would have ever expected him to do that?) “to select the lucky beneficiaries of his official mercy.” She believes that  “this makes a mockery of the pardon power’s historical operation as part of the justice system,” and suggests instead that what is needed is a new, reliable and fair system for vetting pardon and commutation requests. And not DOJ, either, which she says has a  “culture and mission… that have become irreconcilably hostile to pardon’s beneficent purposes and to its regular use by the president. That agency’s failed stewardship of the power is aggravated in Trump’s case by the same sort of dysfunctional relationship with his attorney general that Clinton had with his.”

Vanity Fair, “He Hate, Hate, Hates It”: Sessions Fumes as Kushner Gets Pardon Fever (June 13, 2018)

Washington Examiner, Trump asks for clemency names and lists promptly arrive at White House (June 11, 2018)

Washington Post, Trump’s pardons really aren’t out of the ordinary (June 8, 2018)

– Thomas L. Root