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

CALLS FOR CLEMENCY REFORM CONTINUE

In a recent opinion piece in The Hill, Cynthia Roseberry – an ACLU official who worked on the Obama clemency initiative – called for turning the pardon and commutation process over to a White House-level commission.

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

As a real-world illustration of the problem, a bipartisan group of Congressional representatives last week wrote to the Acting Pardon Attorney, asking her to use her “authority when reviewing requests for clemency to consider individual criminal sentences that are significantly harsher than the original sentence offered by the prosecuting attorney in exchange for a guilty plea.”

The letter cited the “trial penalty,” the harsher sentence imposed when a defendant rejects a plea offer and goes to trial. The letter complained that “[t]he trial penalty results in a significantly longer prison sentence than those imposed on more culpable defendants who voluntarily waive their constitutional right to a jury trial,” and is used “to deter people from exercising their 6th Amendment right to a trial.”

The letter asked the Office of Pardon Attorney, when reviewing clemency petitions, to determine from the prosecutors what sentencing offers were made and rejected. The difference between the offer and what was ultimately imposed “should be considered in clemency petitions by the President.”

In other words, an office of the very agency that offered the plea deal, and then advocated for a very harsh sentence when the deal was rejected, should not urge the President to grant clemency to a prisoner based on the agency’s own conduct.

Sure is lucky there’s no conflict of interest here.

The Hill, If applied equitably, clemency power can begin to fix damage caused by a broken system (Mar. 6)

Letter from 48 Representatives to Rosalind Sargent-Burns, Acting Pardon Attorney (Mar. 9)

– Thomas L. Root