Tag Archives: clemency

Does Backlash on CARES Act Clemency Threatens Further Action? – Update for December 16, 2024

Leave a comment

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

IS THE BIDEN COMMUTATION WAVE BREAKING ON POLITICAL SHOALS?

As I reported last Thursday, President Biden granted clemency to nearly 1,500 Americans on CARES Act home confinement, people who the White House says “were placed on home confinement during the COVID-19 pandemic and who have successfully reintegrated into their families and communities.”

Biden has promised additional clemencies, and there is no shortage of candidates. But if he anticipated the congratulations of a grateful nation, hw ia probably disappointed.

clemencypitch180716In Pennsylvania, there’s a firestorm over one of those receiving commutation. Michael Conahan was convicted of funneling juvenile defendants to two private, for-profit detention centers in exchange for $2.1 million in kickbacks, a scandal known as “Kids-for-Cash.” That is, he took bribes to send kids to for-profit juvenile prisons with sentences disproportionate to their crimes He pleaded guilty to racketeering conspiracy and was sentenced in 2011 to 17½ years in prison. He was released to home confinement in Florida under the CARES Act in June 2020.

Sandy Fonzo, a mother who blames her son’s suicide on the emotional toll that being wrongly placed in detention exacted, said, “Conahan’s actions destroyed families, including mine, and my son’s death is a tragic reminder of the consequences of his abuse of power. This pardon feels like an injustice for all of us who still suffer.”

(Conahan was not pardoned. Rather, his sentence was commuted, but his conviction remains intact).

The Pennsylvania governor, Josh Shapiro, also condemned Biden’s decision, telling reporters that his fellow Democrat “got it absolutely wrong”, the Pennsylvania Capital-Star reported.

The Washington Post said:

For Biden, this is another unforced error. More broadly, it raises fresh questions about presidential clemency going too far and whether it should exist at all. There was outrage when former president Donald Trump pardoned allies such as Stephen K. Bannon, Paul Manafort and Charles Kushner, the father of his son-in-law. And there was outrage over Biden pardoning his son Hunter. It could all get even more outrageous if Biden grants preemptive pardons or Trump pardons the January 6 rioters.

Such dubious grants of presidential mercy reinforce a belief that America has a two-tiered justice system where the wealthy and connected fare much better than everyone else — and certainly better than the young people who came before Judges Conahan and Ciavarella in Luzerne County.

takethemoney191015Meanwhile, Biden has been blasted for commuting the sentence of an Illinois CARES Act confinee. A former city official in Illinois who orchestrated the largest municipal embezzlement in state history. Rita Crundwell—with four years to go on a 235-month sentence for fraud, is among the people granted clemency. Crundwell, who was taken out of Dixon, Illinois, city hall in handcuffs back in 2012, stole something like $53 million in city funds during her tenure as city comptroller.. She used the funds to pay for a lavish lifestyle that included raising champion quarter horses and buying a $2 million tour bus, jewels, furs, multiple homes and other trappings. All the while, the City of Dixon struggled to pay for infrastructure and other projects.

Meera Sachdeva, a former Mississippi oncologist, received clemency on her 20-year sentence handed down in 2012 for defrauding Medicare by providing diluted chemotherapy drugs and using old needles at her cancer clinic. Her clinic was said to be so unsanitary that multiple patients were admitted to local hospitals with infections after being treated there. One of Sachdeva’s patients claimed to have contracted HIV because of old needles.

The Washington Free Beacon said in a review of those who received clemency that “many of the recipients were serving sentences for serious crimes.”

Advocacy groups have been calling for a broad range of additional clemency grants, including for people on federal death row and with marijuana convictions. Biden has previously issued blanket pardons for those convicted of minor marijuana-related crimes, but those didn’t make any federal inmates eligible for release, because none of the recipients was in prison.

Rachel Barkow, a New York University law professor and expert on federal clemency, said during an Ohio State clemency conference that commuting the sentences of those on CARES Act home confinement is “low-hanging fruit” because they’re already out of prison.

Barkow expressed concern last Wednesday, the day before the clemency was announced, that CARES Act commutation would be the limit of Biden’s clemency actions. “I’m a little worried that he’s only going to do that and he’s going to try to make it out like that’s some big deal when that’s not a big deal at all. That’s not even the bare minimum,” she said. The hue and cry from both sides of the aisle—focusing on individual cases rather than the common-sense commutation of the entire cohort—could make Biden shy away from anything further.

clemency170206At the same time, the CARES Act clemency was unreasonably opaque, leaving out some people with perfect home confinement records and unremarkable crimes while including people whose offenses – like the kids-for-cash judge and the horse-breeding embezzler – whose commutations sparked predictable media anger. I am aware of at least three people – including a woman who was raped at FCI Dublin but is now on CARES Act home confinement – who were omitted from the list without explanation.

Nevertheless, Biden continues to come under intense pressure from a coalition of civil rights, criminal justice, and religious groups urging him to grant relief to several classes of federal offenders, including the 40 people on federal death row and nonviolent drug offenders.

Last week, faith leaders – including black pastors, Catholics, former corrections officials, civil rights advocates, and current and former prosecutors – called on Biden to commute all federal death row sentences before Trump, who supports capital punishment, takes office.

Others are calling for commutation of sentence for women who suffered sexual abuse at FCI Dublin. “We all just feel so passionately that if Biden can pardon his son, he can definitely grant clemency to survivors of this heinous abuse by federal government employees,” former Dublin prisoner Kendra Drysdale told The Guardian.

jan6riot241216Meanwhile, President-elect Trump told Time Magazine last week that he would offer clemency to most of the rioters who stormed the Capitol. “It’s going to start in the first hour,” he said. “Maybe the first nine minutes.” However, in a filing in a DC sentencing last week, the government warned that a “pardon would not unring the bell of conviction. In fact, quite the opposite. The defendant would first have to accept then pardon, which necessitates a confession of guilt.”

Harrisburg, WBRE-TV, ‘Kids for Cash’ victim reacts after Biden commutes sentence for Pennsylvania judge (December 13, 2024)

Sauk Local News Network, Biden commutes prison sentence of Rita Crundwell, former comptroller who embezzled $53M from city of Dixon (December 12, 2024)

Washington Free Beacon, Drug Lords, Ponzi Schemers, and Corrupt Officials: Meet Joe Biden’s Clemency Recipients (December 13, 2024)

Daily Beast, Mom’s Outrage Over Biden’s Presidential Clemency for Corrupt Kids-for-Cash Judge and Cohort (December 13, 2024)

Newsweek, She Stole Millions From Taxpayers to Buy Show Horses. Biden Set Her Free (December 13, 2024)

The Hill, Who are the people convicted in Capitol Riot Trump could pardon? (December 14, 2024)

Reason, Biden Issues More Pardons and Commutations Under Pressure From Criminal Justice Groups (December 12, 2024)

Newsweek, Could Joe Biden Pardon Everyone on Death Row? (December 10, 2024)

Guardian, US shuts down prisons amid scrutiny over sexual abuse and crisis of suicides (December 5, 2024)

– Thomas L. Root

Biden Commutes CARES Act Home Confinement Sentences – Update for December 12, 2024

Leave a comment

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

BIDEN COMMUTATION WAVE BEGINNING?

CARESEnd230131Early this morning, President Biden announced that he is granting clemency to nearly 1,500 Americans – the most ever in a single day – sent to home confinement under the CARES Act, people who the White House says “were placed on home confinement during the COVID-19 pandemic and who have successfully reintegrated into their families and communities.”

He is also pardoning 39 people convicted of non-violent crimes, whose names are not yet available. The White House said, “These actions represent the largest single-day grant of clemency in modern history.”

Biden said in a separate statement,

I am pardoning 39 people who have shown successful rehabilitation and have shown commitment to making their communities stronger and safer. I am also commuting the sentences of nearly 1,500 people who are serving long prison sentences – many of whom would receive lower sentences if charged under today’s laws, policies, and practices. These commutation recipients, who were placed on home confinement during the COVID pandemic, have successfully reintegrated into their families and communities and have shown that they deserve a second chance.

I will take more steps in the weeks ahead. My Administration will continue reviewing clemency petitions to advance equal justice under the law, promote public safety, support rehabilitation and reentry, and provide meaningful second chances.

Associated Press reported that the second largest single-day act of clemency was by Barack Obama, with 330, shortly before leaving office in 2017.

earlychristmas241212

Back in the final hours of the first Trump Administration, the Department of Justice Office of Legal Counsel issued an opinion that those persons serving sentences on CARES Act home confinement  would be required to return to secure custody once the national COVID emergency ended. The Justice Department subsequently withdrew that opinion, but with the election of President Trump, there has been substantial speculation – such as this, this and this –that the 2021 opinion could be once again adopted along with calls for Biden to preemptively block such a step with a blanket commutation.

Advocacy groups have been calling for a broad range of pardons, including for people on federal death row and with marijuana convictions. Biden has previously issued blanket pardons for those convicted of minor marijuana-related crimes, but those didn’t make any federal inmates eligible for release, because none of the recipients was in prison.

When Biden issued the blanket pardon in October 2022 for people convicted of marijuana possession on federal property, those benefitting were required to make individual applications to the Dept of Justice for the pardon specific to their cases. As of 6 a.m., details of what, if any, steps CARES Act recipients may have to take to obtain their personal commutations is not yet known.

White House, Release on CARES Act Clemency (December 12, 2024)

White House, Statement on CARES Act Clemency (December 12, 2024)

Associated Press, Biden commutes roughly 1,500 sentences and pardons 39 people in biggest single-day act of clemency (December 12, 2024)

Wall Street Journal, Biden to Commute Sentences of Around 1,500 People (December 12, 2024)

Dept. of Justice, Memorandum Opinion for the General Counsel of the Federal Bureau of Prisons (January 15, 2021)

Dept. of Justice, Discretion to Continue the Home-Confinement Placements of Federal Prisoners After the COVID-19 Emergency  (December 21, 2021)

Hurwitz, Hugh, Biden’s easy case for clemency: prisoners in home confinement (The Hill, November 26, 2024)

Pavlo, Walter, The Bureau of Prisons Under A Trump Administration (Forbes, November 7, 2024)

Ward, Myah, Clemency groups use Hunter pardon to pressure Biden (Politico, December 5, 2024)

– Thomas L. Root

Joe Biden Does a Father’s Duty… Now Who Might Be Next? – Update for December 2, 2024

Leave a comment

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

BIDEN PARDONS HUNTER… WHO MIGHT BE NEXT?

President Joe Biden pardoned his son, Hunter, last night, saving him prison time for gun possession offenses and tax crimes.

pardonme190123I will not listen to criticism for his action, regardless of the fact that the President recklessly claimed last summer he would never do such a thing. What father would not spare his son’s conviction and prison if it was in his power to do so? Even if Joe’s rationale – that no one is ever prosecuted for the 18 USC § 922(g)(3) and 18 USC § 922(a)(6) offenses that Hunter faced, and for his son to be indicted was raw political theater – is bullshit on stilts.

And it is. Somehow Joe omitted mention of Hunter’s tax convictions, those being of a nature and severity that are brought every day. As for the gun offenses, look at United States v. Daniels at Note 6, where a concurring judge chronicles other cases in that Circuit alone where (g)(3) offenses were brought against people who blew a little dope but were not intoxicated when they bought their guns.

Yes, Hunter’s gun offense was pretty pedestrian (but the (g)(3) conviction was probably unconstitutional, as Daniels explains). Still, if I were elected president (an event unlikely to happen), I would pardon any of my kids or siblings or parents or cousins in a heartbeat. It’s family.

In a statement released Sunday, Biden said, “I believe in the justice system, but as I have wrestled with this, I also believe raw politics has infected this process and it led to a miscarriage of justice.”

No reasonable person who looks at the facts of Hunter’s cases can reach any other conclusion than Hunter was singled out only because he is my son,” Biden said. “I hope Americans will understand why a father and a President would come to this decision.

On Twitter (now inexplicably called “X”) last night, New York University law professor and clemency expert Rachel Barkow said, “This pardon of Hunter Biden better be the first of a huge flurry of commutations. There are so many cases even more deserving than this one that the Pardon Attorney has recommended granting, and they’re just waiting for Biden’s signature.”

pardonturkey231121There were others just earlier last week. On Monday, Peaches and Blossom became the 7th and 8th turkeys to be pardoned by Joe Biden in his presidential career. Law professor and clemency expert Mark Osler has noted that presidents could apply lessons from the annual Thanksgiving week event to their clemency practices:

First, it occurs regularly. Turkeys are pardoned every year, not just in the waning days of an administration. Second, decisions are made by objective specialists with the current chairman of the National Turkey Federation… responsible for managing a thorough selection process… Third, there are defined criteria. The finalists are selected based on their willingness to be handled, their health and their natural good looks. Fourth, attention is paid to making sure they thrive after their grant of clemency. After the ceremony, they are sent to Virginia Tech’s “Gobbler’s Rest” exhibit, where they are well cared for… This contrasts sharply with the process of giving clemency to humans… [The] procedure through which clemency is granted is irregular, run largely by biased generalists, devoid of consistent, meaningful criteria, and it does little to ensure success of individuals after their release.

That does not lessen the optimism that in the next 49 days, Biden will hit a home run, pardoning or commuting sentences for everyone from Jack Smith and Merrick Garland to people on death row, CARES Act prisoners and those left behind by the First Step Act’s nonretroactivity.

Democrats and criminal justice reform advocates continue to pressure Biden to use his presidential authority to pardon those currently in federal prison fng from drugs to tax evasion—particularly those awaiting execution for more serious charges. Last week, 54 people who received clemency over the past five presidential administrations asked Biden to be “bold and compassionate during your remaining time in office and grant clemency to the deserving applicants referred to you by the Office of the Pardon Attorney.”

The clemency recipients wrote that they each had received long, unjust sentences before they finally regained their freedom.

death200330Prior to last Monday’s turkey pardoning, the group Prison Policy Initiative blasted Biden for reneging on his campaign promise to end the federal death penalty. “More turkeys have been pardoned from dinner plates in the US than people have been granted clemency from death row,” PPI said in an Instagram post. “Biden’s days left in office are limited, but it’s not too late for him to spare everyone from federal death row (and cement his legacy for the better).”

The Quaker organization Friends Committee on National Legislation said last week that “since 1973 there have been 200 exonerations from death row and over 1,600 people killed, with 50 executions at the federal level.” The group is not asking Biden to pardon all 40 people awaiting capital punishment but instead to commute their sentences to life in prison.

Writing in The Hill last week, former Bureau of Prisons Director Hugh Hurwitz urged Biden to commute the sentences of people currently on CARES Act home confinement. “Now that President-elect Donald Trump is returning to the White House,” Hurwitz wrote, “those remaining in home confinement are again concerned that his administration will reverse course and send them back to prison. Only this time, they have been quietly living at home and working in our communities for almost five years. This uncertainty is creating a lot of anxiety among these people and their families… We do not know what a new Trump administration will do, but there is no reason for us to wait and see. Until Jan 20, Biden has the unique power to grant clemency. This group of people has proven to be trustworthy and safe in our society. If ever there was a case for clemency, this is it.”

compassion160124Whether any of these pressure tactics will be enough to motivate Biden to move on clemency is not clear. But with less than two months left in his presidency, the only real strategy clemency advocates have is to stress how history will view him if he does nothing at all. And that will be effective only to the extent that he cares at all about that.

Associated Press, Biden pardons his son Hunter despite previous pledges not to (December 1, 2024)

United States v. Daniels, 77 F.4th 337 (5th Cir. 2023)

White House, Statement from President Joe Biden (December 1, 2024)

TwitterX, @RachelBarkow (December 1, 2024)

CNN, The process to pardon turkeys is more rational than the one used for humans (November 19, 2018)

Natl Criminal Justice Assn, Hunter Biden Defense Hints That President Should Pardon Him (November 30, 2024)

Tag24, Biden Urged to Take “Last Opportunity” for Positive Legacy in Letter from Over 50 Clemency Recipients (November 26, 2024)

Politico. Biden pardoned turkeys. Will he pardon more people? (November 26, 2024)

Prison Policy Initiative, More turkeys have been pardoned from dinner plates in the US than people have been granted clemency from death row (November 26, 2024)

The Hill, Biden’s easy case for clemency: prisoners in home confinement (November 26, 2024)

NCJA.Org, Death Penalty Opponents Seeking Commutations From Biden (November 26, 2024)

Friends Committee on National Legislation, Recommendations for Executive Action for the Remainder of President Biden’s Term (November 26, 2024)

– Thomas L. Root

Thanksgiving Week: Pardon Me If I Serve Up Turkey – Update for November 25, 2024

Leave a comment

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

TURKEY TIME FOR JOE BIDEN

Today, Minnesota turkey farmer John Zimmerman and his son Grant visited the White House to see two of their prize turkeys, Peach and Blossom, receive presidential clemency, something that thousands of human federal prisoners would happily take the birds’ place in order to receive.

turkeypardonme241125President Joe Biden pardoned the 7th and 8th turkeys to receive clemency in his Administration. The spectacle is an annual Thanksgiving ritual that this year is being staged amid a clamor for Biden to issue a veritable feast of real pardons and commutations in the waning days of his Administration.

In the nearly four years he has been in office, Biden has granted 25 pardons and 132 commutations out of the thousands of applications filed. He has also pardoned two classes of people who were not incarcerated, people convicted of simple marijuana possession and members of the military who were court-martialed because of their sexual orientation.

Nearly all of the commutations have involved drug offenses. They number 38 more commutations than his predecessor, Donald Trump, granted in his first term, but fewer than one-tenth of the sentences Barack Obama commuted in his second term. About 8,002 petitions for clemency are pending (including for the two turkeys).

turkeyprison161114Last Wednesday, a gobbling flock of advocates, former prisoners, and families joined 67 congressional leaders in a joint letter urging President Biden to grant clemency to non-violent federal cannabis prisoners before his term ends.

Among federal prisoners, “90% of people are convicted of non-violent offenses. Now is the time to use your clemency authority to rectify unjust and unnecessary criminal laws passed by Congress and draconian sentences given by judges,” the letter says. “We urge you to use your executive clemency power to reunite families, address longstanding injustices in our legal system, and set our nation on the path toward ending mass incarceration.”

Reps Ayanna Pressley (D-MA), James Clyburn (D-SC), and Mary Gay Scanlon (D-PA) were lead signers of the letter.

pardonturkey231121Also, in a briefing last week, Prison Policy Initiative stated, “Although he’s extended pardons and commutations during his term, President Joe Biden has yet to use his clemency powers for a person facing the federal death penalty, despite openly opposing capital punishment at one time. Biden can still heed increasing calls from advocates to improve his minimal clemency record and clear federal death row of all 40 current death sentences… Given that president-elect Donald Trump enthusiastically supports the death penalty — and has historically abused the pardon power — President Biden could spare 40 lives immediately and reclaim the true function of clemency by commuting all federal death sentences.”

Not that President-elect Trump is anti-pardon. He loves them… for the right people.

Last week, a Trump-appointed federal judge said it would be “beyond frustrating and disappointing” if Trump grants sweeping clemency to most of the defendants charged in the January 6, 2021, attack on the Capitol. Federal Judge Carl Nichols (District of Columbia) blasted the prospect of “blanket pardons” or “anything close” during the sentencing of a defendant facing eight assault charges.

Politico said, “Nichols’ comments were a surprise from the typically restrained judge and came at the end of a hearing in which he and federal prosecutors grappled at length with the potential impact of Donald Trump’s election on ongoing Jan 6 cases. He added that “anything close to blanket clemency would be similarly frustrating.”

This American Life: America’s Next Top Gobble (November 15, 2024)

Guardian, Biden must Trump-proof US democracy, activists say: ‘There is a sense of urgency’ (November 24, 2024)

Letter to President Biden (November 20, 2024)

The Appeal, U.S. Reps Urge Biden to Use Clemency to Correct “Extreme Use of Incarceration” (November 20, 2024)

Prison Policy Initiative, Talking turkey about the death penalty: outgoing governors and the president must use their clemency power now (November 18, 2024)

Politico, Trump-appointed judge opposes ‘blanket pardons’ for Jan. 6 defendants (November 19, 2024)

– Thomas L. Root

Senators Push for Massive Biden Clemency Push – Update for November 18, 2024

Leave a comment

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

SENATORS URGE BIDEN TO COMMUTE THOUSANDS OF SENTENCES

President-elect Trump may accomplish something this month that no one has yet been able to do yet: get President Biden to wield his clemency powers.

release161117Senate Democrats are pressuring Biden to shorten the sentences of thousands of federal drug prisoners incarcerated before he leaves office. In a letter sent to Biden October 21st but only surfacing last week, seven Senate Judiciary Committee members plus an eighth Senator urged Biden to commute drug mandatory minimums that were shortened by the First Step Act but not retroactively.

The FSA cut mandatory life under 21 USC § 841(b)(1)(A) for one prior drug conviction from 20 to 15 years and for two priors from life to 25 years. The change started out in the legislative process to be retroactive, but retroactivity was amended out of the bill before passage to secure Republican votes.

The group of Democrats, led by Senate Judiciary Committee chairman Richard Durbin (D-IL), is urging Biden to categorically lower the sentences of people sentenced under § 841(b)(1)(B) mandatory minimums so they match what they would have received under the First Step Act amendment. In some cases, sentences would be cut to time served.

“[O]ver 8,000 federal clemency petitions are awaiting decision,” the letter notes. “You have granted only 25 pardons and 131 commutations thus far, denying nearly 8.000 petitions.’ We respectfully request that your Administration act with urgency to grant relief to deserving individuals and further reduce the clemency backlog… One significant step in the right direction would be to grant categorical relief to incarcerated individuals who were sentenced under harsh mandatory minimums that the bipartisan First Step Act substantially reduced.”

Sen Peter Welch (D-VT), one signer, said, “President Biden should heed our call and use the power of executive clemency while he has it.”

crackpowder160606The letter also urges Biden to use clemency to cut the sentences of people convicted for crimes related to crack cocaine who would face less time in prison if crack and powder cocaine were punished at a one-to-one ratio and urged him to restart Obama’s clemency initiative, which granted clemency to nearly 1,700 people – mostly for drug offenses – who met certain qualifications.

“The letter came just weeks before Election Day,” Politico noted last week. “But it reflects concerns that have only intensified since Trump won the White House.”

At the same time, pressure is intensifying to convince Biden to commute the death sentences of the 40 people on federal death row. Their crimes range from drug-related murders to murder in a national park to terrorist killings and the fatal shooting of a bank guard during a robbery.

Of 50 federal executions in the past century, Trump carried out 13 of them in six months beginning in July 2020. Trump has promised to execute everyone on death row in his next Administration.

The ACLU last week called on Biden to “act now to finish the death penalty reform work his administration began in 2020. He must commute the sentences of all people on federal death row to stymie Trump’s plans and to redress the racial injustice inherent to capital punishment.”

The Atlantic last week called on Biden to offer pardons to Liz Cheney, a former Republican Congresswoman who served on the House January 6th Committee, Chairman of the Joint Chiefs of Staff Mark Milley, prosecutor Jack Smith, and “to all of Trump’s most prominent opponents.” Trump and his allies have promised to prosecute them for imagined crimes arising from prosecuting, investigating or just criticizing him since the January 6, 2021, riot.

Politico, Biden faces pressure from Hill Democrats to grant clemency for drug crimes (November 13, 2024)

Letter to President Biden from Sen Durbin et al (October 21, 2024)

Slate, Joe Biden Can Preemptively Halt One Brutal Trump Policy (November 12, 2024)

ACLU, Biden Must Use Final Months in Office to Commute Federal Death Sentences (November 14, 2024)

The Atlantic, Pardon Trump’s Critics Now (November 13, 2024)

– Thomas L. Root

Trump and the Future of Everything: Today, Sentence Reform – Update for Thursday, November 14, 2024

Leave a comment

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

THE FUTURE OF EVERYTHING

Donald Trump, a guy readers have a lot of common with – felony convictions – has been elected as the 47th President of the United States. Last week, I had more than a few emails from prisoners excited about his election.

future241112I am not sure why, but at the same time, I am not sure that his re-election is bad for prisoners. Trump loved using private prisons (their stock jumped an average of 37% last week) and putting federal prisoners to death. In July 2020, he resumed federal executions for the first time in 17 years, killing 13 federal prisoners in six months. However, Trump also signed the First Step Act, the biggest piece of federal criminal justice reform in over 50 years, if not ever.

Trump is a wild card. A lot of what happens on anything “will depend on his priorities or even whims,” as The Reload put it last weekend. Trump officials from his last administration told the Washington Post that Trump initially refused to support the initiative but changed his mind only after senior aides predicted it would better his standing in 2020 among Black voters. “Months later,” the Post reported, “when that failed to materialize, Trump ‘went shithouse crazy,’ one former official said, yelling at aides, ‘Why the hell did I do that?’”

So what do the next four years hold for criminal justice reform and the Federal Bureau of Prisons?

So far this week, we have considered Trump and firearms (Tuesday), and Trump and marijuana (yesterday). Today, it’s Trump and sentence reform and clemency. We consider Trump and the BOP on Friday.

THE FUTURE OF SENTENCE REFORM AND CLEMENCY

justicereform161128Throughout his campaign, Trump signaled he would resume federal executions if he won and make more people eligible for capital punishment, including child rapists, migrants who kill U.S. citizens and law enforcement officers, and those convicted of drug and human trafficking.

During the press conference announcing his candidacy for president two years ago, Trump said drug traffickers “are terrible, terrible, horrible people who are responsible for death, carnage and crime all over the country… We’re going to be asking everyone who sells drugs, gets caught, to receive the death penalty for their heinous acts.”

Trump’s position has raised concerns among criminal justice reform advocates, who fear a revival of his first-term policies, which saw 13 federal executions during the height of COVID, including the first woman executed in nearly 70 years, the youngest person based on age when the crime occurred (18 years old), and the only Native American on federal death row.

His pre-election rhetoric suggests that Trump will not be championing reduction in mandatory minimums during his term as president.

It’s hard to take seriously the notion that the Dept of Justice will take a lead on any substantive issue after Trump announced that Matt Gaetz – who came a hair’s breadth from being indicted by the DOJ – will be the next Attorney General.  The New York Times reported last night that “Senate Republicans reacted with alarm and dismay to President-elect Donald J. Trump’s decision… and several said they were skeptical that he would be able to secure enough votes for confirmation.”

“He’s got his work really cut out for him,” Senator Joni Ernst, Republican of Iowa, said, chuckling as she spoke.

Senator John Cornyn (R-TX), a member of the Judiciary Committee, said, “I’m still trying to absorb all this,” he said. Mr. Cornyn later told reporters: “I don’t really know him, other than his public persona.”

The New Republic reported last night that when he was asked if he thought Gaetz has the character and experience needed to be attorney general, Representative Mike Simpson (R-ID) replied, “Are you shittin’ me, that you just asked that question? No! But hell, you’ll print that and now I’m going to be investigated.”

obtaining-clemencyBiden promised to set up a commission that would bring order to the clemency process, but – other than having the DOJ Pardon Attorney throw out thousands of petitions that had been on file for a long time – he failed to perform.

Biden has about two months to act on the nearly 7,700 petitions on file. Frankly, if the Administration has any sense of self-preservation, expect a large number of preemptive pardons for Biden administration employees and others that Trump has threatened with prosecution when he takes office.

There will definitely be two pardons in the next three weeks, but those will be a pair of turkeys. As for whether Biden will take a whack at any of the 7,700 pending applications before he leaves town on January 20th is anyone’s guess.

As for Trump, he has said repeatedly that he would pardon people convicted in connection with the January 6th Capitol riots. He has qualified his promise, saying in July that “if they’re innocent, I would pardon them.” Trump campaign spokesperson Karoline Leavitt told the Washington Post in June that Trump will decide J6 pardons “on a case-by-case basis.”

Trump has said repeatedly he would pardon people convicted in connection with the Jan. 6 Capitol riots, though it’s unclear who among the more than 1,500 charged would be subject to pardons—he told reporters in July “if they’re innocent, I would pardon them,” while his campaign spokesperson Karoline Leavitt told the Washington Post in June Trump would decide “on a case-by-case basis” who to pardon

pardonsale210118Slate observed that in his first term, Trump’s “guiding principle” was that “Trump pardoned those who could benefit Trump.” One commutation that has been promised – at least in the minds of his supporters – is of Ross Ulbricht, the founder of the dark web drug-and-weird stuff marketplace Silk Road. A social media account dedicated to securing Ulbricht’s release said last Friday, “With Trump’s upcoming inauguration, Ulbricht is finally set to be released, bringing an end to his long years behind bars… For Ulbricht’s supporters, Trump’s commitment to commutation signals a landmark moment for criminal justice reform.”

C-Span, Former President Trump Calls for Death Penalty for Drug Dealers (November 15, 2022)

NBC, Trump wants to expand the federal death penalty, setting up legal challenges in second term (November 9, 2024)

NY Times, Senate Republicans Alarmed by Gaetz Pick as Attorney General Nominee (November 13, 2024)

Slate, Trump’s Pardons Were Way Weirder Than You Remember (October 28, 2024)

Binance Square, ‘Ross Is Coming Home’: Ulbricht’s Family Rejoices as Trump Plans to Fulfill Commutation Pledge (November 9, 2024)

Washington Post, Jan. 6 riot defendants celebrate Trump’s election, angle for pardons (November 10, 2024)

Politico, Trump pledges to commute sentence of Silk Road founder Ross Ulbricht if elected (May 25, 2024)

– Thomas L. Root

Biden’s Clemency Clock Is Running Out – Update for September 27, 2024

Leave a comment

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

CALL FOR BIDEN TO STEP UP ON CLEMENCY

clemencypitch180716In an opinion piece in last week’s New York Times, law professors Rachel Barkow (a former Sentencing Commission member) and Mark Osler – both recognized federal clemency experts – called on President Joe Biden to reverse his “paltry record on clemency” by creating a record in his final four months in office “he can point to with pride.”

Biden has granted 25 pardons and commuted 131 sentences, “a mere 1.4% of the petitions he has received,” they wrote. “Clemency is more important than ever in an era of grossly excessive punishments and mass incarceration. Timidity is not a path to legacy, and the accumulated harms of presidents’ ignoring for years the power to issue clemency can be seen in the over 8,000 petitions that are pending, many of them more than five years old.”

So Biden’s shakeup of the Office of Pardon Attorney last December, which included throwing out overripe clemency petitions, resulted in about 9,800 petitions being rejected. Another 2,000 have been added since then. As of today, DOJ reports, 8,678 petitions are pending.

obtaining-clemencyBarkow and Osler suggest that Biden should commute the death sentences of the 40 federal prisoners on death row to life in prison. Another group deserving of commutation, they suggest, are the inmates at home on CARES Act home confinement. Finally, they argue that “Biden should release those still in prison for trafficking marijuana, which means manufacturing or distributing it, or both. Those are now legal activities in a number of states. His blanket pardon for only possession and use was needlessly limited, and he should expand it to its logical and just conclusion.”

Stephen Post from the Last Prisoner Project noted in USA Today last week that about 3,000 individuals are still incarcerated in federal prison for nonviolent marijuana offenses.

New York Times, Biden Needs to Work on His Clemency Legacy (September 18, 2024)

USA Today, Biden promised no jail time for weed. He’s running out of time to pardon cannabis convicts (September 15, 2024)

– Thomas L. Root

No Free Drinks While You Lose to the House – Update for July 16, 2024

Leave a comment

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

LONG ODDS

compeddrink2400716There’s a difference between Las Vegas and asking the Bureau of Prisons to bring a compassionate release motion under 18 USC § 3582(c)(1)(A) on your behalf. In Vegas, they comp you drinks while you’re trying to beat impossible odds.

Under § 3582(c)(1)(A), a prisoner seeking grant of a compassionate release sentence reduction from his or her court must first ask the BOP to file the motion on the inmate’s behalf. This provision was a bone thrown to the BOP when Congress – disgusted after years of the BOP being the exclusive gatekeeper for compassionate release motions without using the authority as Congress intended (or even competently, for that matter) – changed the statute as part of the First Step Act to empower inmates to file directly for compassionate release. Just so the Director wouldn’t pout that power had been stripped from the BOP to lord it over prisoners even beyond control needed for legitimate penological purposes, Congress wrote in a requirement that the prisoner ask the BOP to file the motion on the inmate’s behalf before the inmate was able to bring the motion on his or her own motion.

Of course, in the real world, this creates no incentive for a warden, who has three choices when confronted with such a request:

• If the warden grants the prisoner’s compassionate release request, a package justifying the recommendation that the BOP involve a U.S. Attorney to bring the motion has to be prepared and forwarded to the BOP Regional Office. If the Regional Office approves, the request goes to the BOP Office of General Counsel. If the GC OKs it, it goes to the Director. If the Director approves it, the motion must be prepared by the appropriate US Attorney and filed with the prisoner’s sentencing judge.

•  If the warden denies the request, a document must be prepared and delivered to the prisoner explaining the denial, after which the prisoner may file a motion with his or her sentencing judge.

• If the warden ignores the request, after 30 days the prisoner may file a motion with his or her sentencing judge.

Knowing that a bureaucracy, like water and electricity, seeks the path of least resistance, which of these options is the easiest for the warden? Or which is least likely to reflect badly on the prison administration if a compassionate release turns into a Willie Horton?

denied190109The Dept of Justice knows. In its First Step Act Annual Report – June 2024, the DOJ disclosed that from January 2019 — the first time prisoners could file for compassionate release on their own — through January 2024, prisoners filed 32,991 motions for compassionate release in federal courts. Of that number, the BOP approved 172 such requests. Of that number, 127 approvals were based on the prisoner’s terminal illness, 39 approvals were based on the inmates’s debilitated medical condition, two approvals were for “elderly inmates with medical conditions,” and four requests were based on sexual abuse the prisoner experienced while in custody.

In other words, BOP compassionate release approval stands at 0.5214%, about one out of 200.

And what of those requests for compassionate release that prisoners filed after being turned down? The Sentencing Commission reports that through March 2024, 32.412 such motions had been filed in court, and 5,190 of those (16%) had been granted. Every one of those 5,190 grants was first rejected as unworthy by the BOP.

The rule in the BOP? Deny, deny, deny. Or maybe ignore, ignore, ignore.

So why should the prisoner not just take the commutation route, asking President Joe Biden – who promised to fix the exercise of presidential clemency – for early release?

clemency231222Axios reported last weekend that President Biden has continued a trend of increasingly stingy grants of commutation or pardon. In four years, Jimmy Carter granted 21.6% of clemency petitions. Ronald Reagan granted 11.9% over eight years. Bill Clinton granted 6.1%, Barack Obama 5.3%. Even Donald Trump granted 2.0%.

So far, excluding Biden’s meaningless mass pardon of marijuana possession offenses that promised 13,000 pardons but has so far only delivered for about 205 people, Biden has granted 1.3% of clemency requests, the lowest percentage of any president in at least the last 50 years.

A clemency petition passes through seven layers of review, a cumbersome process Biden has worsened by requiring input from the Domestic Policy Council. Mark Osler, a law professor and expert on clemency, said, “Biden seems to be stuck with is a system of analysis that doesn’t work and hasn’t worked for his predecessors either.” 

Frank Bowman, a law professor who has written extensively on the pardon power, cited the “nasty politics of our era” as a significant factor in making the use of clemency power problematic.

horton230317No president wants to needlessly create a Willie Horton moment, to grant clemency to someone in prison who then commits a new offense that becomes grist in the campaign mill.

Thus, denial (or just inaction) becomes as appealing to a president as it is to a warden.

US Sentencing Commission, Compassionate Release Data Report – Fiscal Year 2024, 2nd Quarter

Dept of Justice. First Step Act Annual Report – June 2024

Axios, Why presidents are wielding their pardon powers less and less (July 13)

– Thomas L. Root

Biden Gets a Second Chance – Update for April 11, 2024

Leave a comment

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

BIDEN’S SECOND CHANCE TO GET SECOND CHANCE MONTH RIGHT

second170119President Biden has again designated April as Second Chance Month, the eighth annual proclamation since Charles Colsen’s Prison Fellowship convinced Congress to recognize April for that purpose in 2017.

Biden used the proclamation as a chance to burnish his Administration’s achievements in promoting second chances for prisoners, including what he called “over 100 concrete actions that my Administration is taking to boost public safety by improving rehabilitation in jails and prisons, helping people rebuild their lives, and reducing unnecessary interactions with the criminal justice system so police officers can focus on fighting crime.”

So far, those “actions” have not included much use of the presidential clemency power. In. The Hill, Rev. Terrence McKinley said that despite Biden’s annual “call to prioritize criminal justice reform and the clemency process in the United States,” he has only exercised his pardon power to grant 13 pardons and 124 commutations, less than one percent of the thousands of pending applications.”

Rev. McKinley, pastor of the Campbell AME Church in Washington, DC, wrote that

A pardon is an act of grace. But such acts of grace should not be so rare…. By exercising his pardon power more robustly, President Biden has the opportunity to paint a stark contrast with his predecessor… [T]here are thousands of people with criminal records whose applications for clemency have been languishing in the federal system—people who are currently in prison serving overly harsh sentences and people who have been released long ago but live with the looming threat of deportation, barriers to employment and housing, and other forms of civil death.

obtaining-clemencyLast April, Biden commuted the sentences of 31 prisoners already on CARES Act home confinement.

Proof of Biden’s commitment to clemency may be reflected in White House response to the DOJ Office of the Pardon Attorney. The OPA recently published its FY 2025 President’s Budget Submission, requesting $12.5 million (a 16% increase) to add to petition processing staff. OPA has 40 employees (including 26 attorneys) now. Its not-especially-ambitious goal is to increase the number of cases on which it makes a recommendation in a year from 30 to 35% and to increase the amount of correspondence answered in one month from 90 to 92%.

There is an undercurrent of unhappiness, even among Biden supporters, over his lukewarm embrace of federal criminal justice reform. Eric Alexander, a formerly incarcerated Black man, who now works for the Campaign for the Fair Sentencing of Youth, was recently asked by a member of the legislature about Biden’s record on criminal justice compared to his predecessor, Donald Trump, who signed the First Step Act into law. Alexander said, “It is my belief that if the last administration was allowed to be in office again, that we wouldn’t be here having this conversation. That administration would have dealt with this…”

promise210805St John University law prof Mark Osler, a clemency expert, said on CNN, “Alexander wasn’t deluded, tricked or unknowledgeable. While Trump promised nothing on criminal justice reform but still did something significant, Biden promised a lot but so far has done nothing of real substance. For those of us who don’t want Trump to be re-elected, this is an uncomfortable truth, but to Biden and his campaign, it should be a call to action.”

White House, A Proclamation on Second Chance Month, 2024 (March 29, 2024)

The Hill, This Easter, I pray for pardons (March 31, 2024)

CNN, Biden’s failures in criminal justice could cost him an election (March 26, 2024)

– Thomas L. Root

Progressives for Pot Clemency – Update for March 22, 2024

Leave a comment

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

CONTINUED CALLS FOR MARIJUANA CLEMENCY

Thirty-six liberal House members urged President Biden to grant clemency to federal inmates for nonviolent marijuana offenses.

“The continued incarceration of these individuals continues the racist legacy of the War on Drugs, contradicts the current societal and legal trends regarding marijuana, and represents an unnecessary burden on our morals and justice system,” they said in a letter to the President. “Until the day Congress sends you a marijuana reform bill to sign, you have a unique ability to lead on criminal justice reform and provide immediate relief to thousands of Americans.”

marijuana221111At a White House roundtable on marijuana last Friday, Vice President Kamala Harris called for rescheduling marijuana, which should be completed by the DEA this year. Marijuana is currently classified as a Schedule I drug, in the same category as heroin. The White House is seeking to change that to Schedule III alongside testosterone and ketamine.

“Marijuana is considered as dangerous as heroin, and more dangerous than fentanyl, which is absurd,” Harris said. “Not to mention patently unfair.”

Politico reported last Friday, “The White House event is the latest sign that the Biden administration plans to tout its efforts to overhaul federal marijuana policies ahead of the presidential election. Biden also cited his moves to pardon federal marijuana offenders and loosen federal weed restrictions during last week’s State of the Union address. A whopping 70 percent of Americans back marijuana legalization, and that position is particularly popular with young voters, a crucial demographic that Biden is struggling to maintain support from.”

Letter to President Biden (March 13, 2024)

Politico, Vice president criticizes federal cannabis restrictions during White House weed event (March 15, 2024)

– Thomas L. Root