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Clemency: Getting By With A Little Help From My Friends – Update for February 27, 2020

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

IT’S WHO YOU KNOW…

obtaining-clemencyPresident Trump granted clemency to 11 people last week, including several big names such as Michael Milken and Bernard Kerik (pardons) and Rod Blagojevich (commutation), but also three current female Bureau of Prisons inmates. The media were obsessed with “political prisoner” Blago, but among BOP inmates, attention was focused on the three ordinary people were included on the list.

The women, two drug defendants and one serving a 35-year sentence for healthcare fraud, may have been ordinary inmates, but how they made Trump’s list proves once again that it’s who you know that counts.

(A pardon is complete exoneration from the conviction, while a commutation leaves the conviction in place but waives some or all of the remaining sentence.  “Clemency” is the overarching term for executive action to forgive by pardon or release through commutation).

Trump commuted Alice Marie Johnson’s life sentence in 2018 at the urging of reality TV star Kim Kardashian. Trump’s reelection campaign featured Johnson’s story in a recent Super Bowl ad. Johnson told the AP that when Trump had been looking specifically for female candidates, and asked her for a list of other women who deserved clemency, she gave him the names of her friends.

clemencybacklog190904Amy Povah, founder of  clemency group Clemency for All Nonviolent Drug Offenders Foundation (CAN-DO Foundation), told The New York Times that she and other advocates submitted a list of about a dozen meritorious female offenders directly to the White House late last year. “When it boiled down to only three, it’s not surprising that the White House put value on the ones Alice served time with and knew their character,” Povah said. “You know who those diamonds are in there who are so deserving, and you know who the people are that are still engaging in shenanigans.”

While 14,000 clemency petitions sit unaddressed at the Justice Dept’s Office of Pardon Attorney, Trump continues to focus on clemency for people with connections. “There is now no longer any pretense of regularity,” Margaret Love, who served as pardon attorney under President Clinton, told The New York Times. “The president seems proud to declare that he makes his own decisions without relying on any official source of advice, but acts on the recommendation of friends, colleagues and political allies.”

Holly Harris, president of the criminal justice group Justice Action Network, applauded Trump “for taking these steps,” but told the Associated Press she hoped to see him use his power to help “any of the thousands of deserving individuals who are neither rich, nor famous, nor connected” and “every bit as deserving of a second chance.”

The Washington Post reported last week the White House is taking more control over clemency, with Trump aiming to limit DOJ’s role in the process as he weighs a flurry of additional clemency actions. The Post said that an informal task force of at least six people, has been meeting since late last year to discuss a revamped pardon system running through the White House. Senior Advisor Jared Kushner, Trump’s son-in-law, is taking a leading role in the new clemency initiative and has supported the idea of putting the White House more directly in control of the process, officials said.

clemencyjack161229Pam Bondi, a former Florida attorney general who served on Trump’s impeachment defense team, is also playing a significant role, vetting applications for clemency recipients. Kushner has personally reviewed applications with White House lawyers before presenting them to Trump for final approval, according to two senior administration officials.

Trump, who prefers granting clemency to people with compelling personal stories or lengthy sentences, is inclined to grant more clemency before facing voters in November. “He likes doing them,” the official said.

Washington Post, White House assembles team of advisers to guide clemency process as Trump considers more pardons (Feb. 19)

AP, President Trump goes on clemency spree, and the list is long (Feb. 8)

The New York Times, The 11 Criminals Granted Clemency by Trump Had One Thing in Common: Connections (Feb. 19)

The Norwalk Hour, Trump freed Alice Johnson in 2018. Tuesday, he freed three of her friends (Feb. 19)

– Thomas L. Root

Clemency Debate Erupts Anew – Update for February 10, 2020

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

SUPER BOWL TRUMP AD SPARKS CLEMENCY DEBATE

President Donald Trump’s Super Bowl ad featuring former federal inmate Alice Johnson fired off a storm of argument last week about clemency and sentencing reform. But the stats and the stories hardly suggest any change in the broken is coming very soon.

kardashian190904Trump stoked inmate expectations in 2018 when he freed Johnson, who had been doing life for a drug conspiracy, after reality star Kim Kardashian argued on her behalf during a White House visit. In fact, the day after Trump commuted her sentence, Trump told reporters, “We have 3,000 names. We’re looking at them. Of the 3,000 names, many of those names really have been treated unfairly… And I would get more thrill out of pardoning people that nobody knows.”

Those thrills have yet to be realized. Since he took office, Trump has granted clemency to only 24 people, with all but five of those people having had “a line into the White House or currency with his political base,” according to piece last week in The Washington Post. “As the administration takes its cues from celebrities, political allies and Fox News,” the Post complained, “thousands of other offenders who followed Department of Justice rules are waiting, passed over as cases that were brought directly to Trump leaped to the front of line.”

The Post noted that for more than 125 years, the DOJ’s Office of Pardon Attorney “has quietly served as the key adviser on clemency, one of the most unlimited powers bestowed by the Constitution on the president. Under Trump, the pardon office has become a bureaucratic way station…” Most of Trump’s grants of clemency have gone to well-connected offenders who had not filed petitions with the pardon office or did not meet its requirements, The Post said.

clemency170206After three years in office, The Post said, Ronald Reagan issued 669 clemency decisions and Obama issued 3,993 petitions between 2009 and 2012, but “Trump has ruled on only 204 clemency requests – 24 approvals and 180 denials. That is the slowest pace in decades.”

The Post’s hagiographic portrayal of the OPA focuses on the wrong metric. Sure “Obama issued 3,993 petitions” in his first three years, but as Reason magazine pointed out last week, those were virtually all denials. So far Trump has commuted just six sentences, “but that is actually six times as many commutations as Obama approved during his first term,” Reason noted.

For decades, federal offenders filed petitions for clemency with the OPA, which assigns a staff attorney to investigate each case. With an annual budget of about $4.5 million, the pardons office employs about 19 people, including 11 attorneys.

“For pardons,” The Post said, “the office looks for acceptance of responsibility and good conduct for a substantial period of time after conviction, among other considerations, according to justice department guidelines. Commutations hinge on the undue severity of a sentence, the amount of time served and demonstrated rehabilitation.”

Former Pardon Attorney Larry Kupers said, “We had impartial lawyers who developed over time an expertise in evaluating applications and the skills to determine whether this is a person who could be a danger to the public. If you leave it to the White House, you are more likely to get arbitrary, capricious pardons that may be perfectly legal but are not what the Founding Fathers had in mind.”

henhouse180307The OPA, of course, is run by DOJ, the very people who prosecuted the people applying for clemency. Sort of the fox being delegated authority to look after the chickens’ welfare. Experts have noted the conflict of interest: an Atlantic article published a year ago complained, the DOJ process “courses through seven levels of review, much of it through a hostile… bureaucracy that tends to defer to local prosecutors who are, in turn, loath to undo the harsh sentences they sought in the first place. Indeed, the First Step Act passed in spite of DOJ opposition because those same prosecutors objected to lowering the mandatory minimum sentences that give them so much bargaining power.”

Meanwhile, the numbers remain sobering. Trump inherited a backlog of more than 11,300 petitions. Nearly 7,600 more have been filed since Trump took office. About 5,900 petitions have been closed during Trump’s tenure because the inmate was released, died or was ineligible. Thus, nearly 13,000 petitions remain pending.

Ohio State University law professor Doug Berman said last week in his Sentencing Law and Policy blog, “it is a darn shame that Prez Trump is promoting his clemency work when he has still granted relatively few commutations. Regular readers likely recall that, back in 2018, Prez Trump talked grandly about considering thousands of clemency requests and Alice Marie Johnson potently advocated that the President free ‘thousands more’ federal prisoners like her. I never really expected Prez Trump to grants thousands of commutations, but I had hoped he would do many more than the six that he has done so far.”

Washington Post, Most Trump clemency grants bypass Justice Dept. and go to well-connected offenders (Feb. 3)

Reason.com, Does Trump’s Super Bowl Ad Signal More Progress on Sentencing Reform? (Feb. 3)

The Atlantic, The Clemency Process Is Broken. Trump Can Fix It (Jan. 15, 2019)

Sentencing Law and Policy, Prez Trump’s reelection campaign premieres ad focused on criminal justice reform during Super Bowl (Feb. 2)

– Thomas L. Root

Presidential Pardon Gobbled Up, But Not By Inmates – Update for December 5, 2019

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

TURKEY (BUT NO PRISONERS) PARDONED

Predictably, President Trump pardoned a North Carolina turkey named Butter last week, but that was the extent of his Thanksgiving week clemency.

presidential_pardon_thanksgiving_tile_coasterNevertheless, the Washington Examiner reported that many people with long federal sentences told it they hope Trump will make good on pledges to free inmates. Trump publicly asked three former prisoners last month for “a big list” of people to release. He said he was enduring his own injustice with impeachment proceedings.

“Give me the right ones… and as soon as you can, OK?” Trump said. “Because you know some great people that are going to be there for many, many years.”

“In November 2017, I wished I was Drumstick or Wishbone. Then in 2018 I wished I was Peas or Carrots,” said Alecia Weeks, a 42-year-old mother almost halfway through a 30-year sentence for dealing crack cocaine. Weeks said, “So far, the answer is, ‘Maybe, if I were a turkey.’ So, this year, I’m begging [Trump], ‘Gobble Gobble, please have mercy on me and my son! We will be forever grateful and make you proud.’”

Clemency advocates see Trump’s embrace as motivated in part by his own sense of persecution, beginning with special counsel Robert Mueller’s Russia investigation. But some note that the issue, pushed by his son-in-law Jared Kushner, has potential electoral significance, winning the enthusiasm of minority voters, some of whom now openly sympathize with Trump.

“President Trump is making ‘AMERICA GREAT AGAIN,’ and his message has reached so many of us inside prisons where I have been the past 31 years as a first offender,” wrote another prisoner, who was sentenced to 40 years for dealing crack. “It would be a great honor to personally thank President Trump if I were one of the chosen few to receive the same mercy as the two lucky turkeys that are guaranteed free range every year for the balance of their lives.”

Prosecutors find out how the other half lives...
Prosecutors find out how the other half lives…

Meanwhile, a number of prosecutors – who send people to prison every day but have never set foot inside an institution – are joining an initiative signed by about 40 of the nation’s most progressive district attorneys. The prosecutors are committing to visit prisons themselves, to send their staffs to do the same, and to incorporate such visits into mandatory training and job expectations.

Miriam Krinsky, executive director of the group Fair and Just Prosecution (FJP), that heads up the effort, said prosecutors have a special obligation to see the correctional system since they control the “front door” to the justice system. She hopes such visits broaden prosecutors’ perspectives and inform decisions on sentencing, bail and alternatives to incarceration. “No prosecutor should be putting people in places they haven’t seen or walked through,” Krinsky said.
Prosecutors signing on to the initiative include several state attorneys general and a number of local prosecutors. Thus far, no federal prosecutors have signed on.

Washington Post, The annual turkey pardon is one of the few norms President Trump has kept alive (Nov. 26)

Washington Examiner, ‘Maybe if I were a turkey’: Prisoners beg Trump to pardon them for Thanksgiving (Nov. 26)

Washington Post, They send people to prison every day. Now, they are pledging to visit (Nov. 25)

– Thomas L. Root

The Prisoners Envy The Turkeys… – Update for November 26, 2019

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

PARDONS, COMMUTATIONS, SENTENCE REDUCTIONS…

At some point in the next 48 hours, President Trump will likely pardon a pair of turkeys. The turkeys will be given silly names (past recipients have included birds named Mac and Cheese), some children and White House staffers will look on, and there will be forced jokes and stiff laughter.

turkey181128“It’s painful to watch,” Minnesota law professor Mark Osler wrote in the Washington Post last week. “Worse, it mocks the raw truth that the federal clemency system is completely broken. While those two turkeys receive their pardons, nearly 14,000 clemency petitions sit in a sludgy backlog. Many of the federal inmates who have followed the rules, assembled documents, poured out their hearts in petitions and worked hours at a prison job just to pay for the stamps on the envelope have waited for years in that queue.”

Osler and the students in his law school clinic have helped people file clemency petitions for almost a decade. “Many of them are well-deserving,” Osler wrote. “It was rewarding to tell their stories of rehabilitation and hope… [But now,] most of my mail is from people who have already filed a petition. They want to know what is happening, and what else they can do. Too many of them have unrealistic plans — often, and very specifically, the plan is that Kim Kardashian West will help them. Or, as one man put it ‘I’ll take any Kardashian.’ It is true that Kardashian West advocated for Alice Marie Johnson, and that Johnson did get clemency from President Trump. But that is a sample size of precisely one, while thousands wait.”

Meanwhile, a government pleading in a compassionate release motion filed under 18 USC 3582(c)(1)(A)(i) last week provided an object lesson for people seeking to get a sentence cut or home confinement because of illness. Federal prosecutors argued that a claim of dementia filed by Bernie Ebbers, former CEO of Worldcom, was bogus.

The government argued that the 78-year-old Ebbers may not be in as bad shape as indicated in his own filings, citing a note from a prison psychologist who listened in on phone calls between the inmate and his daughter in recent weeks. The daughter has claimed in an affidavit that her father has dementia.

fake191126

“In the calls, he was alert, aware and oriented to person, place, time and situation,” a Bureau of Prisons psychologist is quoted as saying, adding that the inmate was asking about his daughter’s efforts to get him out of prison. The psychologist notes that the inmate has presented a much different persona when he knows he is being observed. “The conversations between him and his daughter were very different than how he presented to this writer during our last encounter on 10/11/19 when he presented to this writer as though he didn’t know he was in a prison nor the date and time,” the psychologist writes.

Remember inmates, the BOP knows more about you than you may think. And what the BOP knows, the government knows, which means the U.S. Attorney knows it too. Rather tautological, but very true.

Many inmates eligible for serving the last one-third of their sentences under the Elderly Home Detention Offender program have complained that their case managers will not even submit an application for them to be a part of the program until they qualify by reaching the two-thirds mark of their sentences. Approval may take six months, meaning that an elderly offender may well miss much of the time he or she could be on home confinement, and the BOP continues to spend $100 a day to house someone who could be confined at home on his or her own dime.

Last week, a reliable inmate correspondent reported that his case manager  said BOP Central Office had issued “new guidance” that Elderly Offender Home Detention packages should be prepared and submitted six months prior to the inmate’s eligibility for the program (age 60 and two-thirds of total sentence completed). This way, he reported his case manager reported, everything will be in place so that the prisoner can leave for home detention on his or her earliest eligibility date.

I have not been able to confirm the report through the BOP yet.

Osler, Let’s Pardon Prisoners, Not Turkeys, Washington Post (Nov. 21)

CNBC, NY prosecutors suggest former WorldCom CEO is faking illness to get out of jail (Nov. 19)

– Thomas L. Root

Rethinking Clemency with First Step – Update for September 4, 2019

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MORE CALLS TO USE THE FIRST STEP ACT TO END-RUN CLEMENCY

hamilton190904Over 11,400 commutation petitions languish at the Justice Dept.’s Office of the Pardon Attorney, record numbers for a clemency system that America’s founding fathers designed to be, in the words of Alexander Hamilton, “as little as possible fettered or embarrassed.”

An article published last week by Law 360 detailed the precipitous decline in use of federal clemency over the past 150 years, and suggested enhanced use of the sentence-reduction procedure changes in the First Step Act.

DOJ involvement in clemency began during the Civil War, because President Lincoln was overwhelmed by personal visits from “crying mothers and wives of disgraced soldiers” pleading for pardons. By 1898, all clemency petitions were routed through DOJ before maybe getting to the White House. Still, until about 50 years ago, presidents generally granted 13% to 40% of petitions.

Since then, the numbers have fallen to the single digits until President Obama. His 2014 clemency initiative was a public relations victory but a bureaucratic disaster, generating more commutation petitions in a year than OPA had received in the previous 24 years combined.

Despite granting over 1,700 commutations, Obama hardly made a dent in the overall prison population, “There could have easily been 20,000 commutations,” former OPA attorney Sam Morison argued. “That would have been about 10% of the prison population. That would have been historic.” But as it is, Obama left office with over 11,350 commutation petitions still pending.

kardashian190904Morison argues that the clemency power “will never function correctly until that Office of the Pardon Attorney is out of the Department of Justice.” While President Trump’s administration has been studying that idea, nothing has come of the White House roundtable group that has been meeting on the proposal for more than a year. Georgetown University law professor Shon Hopwood, noting Trump’s widely publicized pardons and commutations, said many petitioners will inevitably try “going around the system,” but “it shouldn’t require Kim Kardashian’s assistance to get clemency.”

Hopwood instead has been citing the First Step Act’s expansion of compassionate release as a more accessible option. I have been writing about this sleeper of a sentence-reduction provision for six months (see “Will First Step Let the Holloway Black Swan Swim Again?” Update for March 26, 2019). Such releases are traditionally available only to the elderly and terminally ill, but the statute – 18 USC 3582(c)(1)(A)(i) – says nothing about illness as such. Instead, it simply permits sentence reduction based on “an extraordinary and compelling reason.”

Under the First Step Act, a defendant no longer needs approval of the Bureau of Prisons to file a motion for resentencing with his or her sentencing court.

In a forthcoming law review article, Hopwood writes that judges can consider any “extraordinary” reasons for compassionate release without having to wait for BOP approval. Former US Pardon Attorney Margaret Love calls the concept a “hidden, magical trapdoor in the First Step Act that has yet to come to everyone’s attention. This has obviated the need for the clemency process to take care of the great majority of commutation cases.”

clemencybacklog190904

Hopwood acknowledges that prosecutors are likely to oppose these motions, but said they could provide a safety valve in which the judiciary simultaneously helps alleviate mass incarceration and the OPA’s commutation workload. And, unsurprisingly, DOJ has argued against Hopwood’s interpretation. In a filing last January, the government said the compassionate release statute “is simply not an avenue by which defendant can secure relief from his sentence based on his post-conviction reform… The relief defendant seeks is instead properly addressed in a petition to the executive branch for clemency.”

Lots of luck with that, the authors write. “The odds of getting presidential relief are approaching zero. The office that granted 41% of all pending and newly filed clemency petitions in 1920 is on track to grant less than 0.1% under Trump…”

Law360.com, How Courts Could Ease The White House’s Clemency Backlog (Aug. 25)

Sentencing Law and Policy, Exploring how compassionate release after FIRST STEP might indirectly help with persistent federal clemency problems (Aug. 26)
– Thomas L. Root

Petition Your Way to Clemency – Update for August 30, 2019

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

ANOTHER ROUTE TO CLEMENCY (BUT NOT AN EASY ONE)

ulbricht190830Ross Ulbricht (known as “Dread Pirate Roberts” to his friends, or sometimes just “DPR” for short) is serving a life term at the sunny U.S. Penitentiary in Tucson for having set up an Internet dark-web marketplace called “Silk Road,” where drugs, guns and criminal acts were bought and sold for bitcoins. As of this week, his change.org petition seeking support for a request for a Presidential pardon has generated an unprecedented 200,000 online signatures.

The petition, which asks President Trump to grant Ross’s application for pardon, is sponsored by the inmate’s mother and sister. His mother told Bitcoinist.com, that her son “is a good person, an idealist, and a libertarian.” She said, “I didn’t think of him as someone who was interested in technology pers se, but he was interested in Bitcoin because he was a freedom guy. He worked on the Ron Paul [Presidential] campaign. He was very interested in Bitcoin as a means to monetary freedom for people.”

Whether 201,403 signatures (the count as of 8 am EDT today), including those of some from politicians and movie celebs, is enough to motivate President Trump to release DPR, a man convicted of drug trafficking on a massive scale, is impossible to predict.

dreadedpirate190830The change.org page, written by Ross’s mother, says, “My son, Ross Ulbricht, is a first-time offender serving a double life sentence without parole, plus 40 years, for a website he made when he was 26 years old and passionate about free markets and privacy. Ross―an Eagle Scout, scientist and peaceful entrepreneur―had all non-violent charges at trial. He was never prosecuted for causing harm or bodily injury and no victim was named at trial.”

Far be it from me to interfere with a mother’s loving narrative, but the facts in the Dread Pirate’s case were a bit uglier than that. The 2nd Circuit said in its decision denying Ross’s appeal:

[T]he facts of this case involve much more than simply facilitating the sale of narcotics. The district court found by a preponderance of the evidence that Ulbricht commissioned at least five murders in the course of protecting Silk Road’s anonymity, a finding that Ulbricht does not challenge in this appeal. Ulbricht discussed those anticipated murders callously and casually in his journal and in his communications with the purported assassin Redandwhite. For example, in connection with the first hit, he wrote to Redandwhite that “FriendlyChemist is a liability and I wouldn’t mind if he was executed.” In the course of negotiating the price for the killing, DPR claimed that “[n]ot long ago, I had a clean hit done for $80k,” but that he had “only ever commissioned the one other hit, so I’m still learning this market.” He then paid $150,000 in Bitcoins for the murder, and he received what purported to be photographic documentation if its completion. Ulbricht then wrote in his journal that he “[g]ot word that the blackmailer was executed,” before returning quickly to other tasks associated with running the site.

In negotiating the other four killings, Ulbricht initially resisted multiple murders. He instructed Redandwhite to “just hit Andrew [usernames Tony76 and nipplesuckcanuck] and leave it at that.” Redandwhite said he could do it for “150 just like last time,” but that he would not be able to recover any of DPR’s money if he killed only one person because he would have to commit the murder outside of the victim’s home or office where he stored his funds. Id. If Ulbricht wanted him to recover money, the self-professed assassin claimed, he would have to kill not only Tony76, but also his three associates. DPR responded that he would “defer to [Redandwhite’s] better judgment and hope[d] [to] recover some assets” from the hit. He then sent $500,000 in Bitcoins, the agreed-upon price for four killings, to Redandwhite. As the district court stated in discussing Ulbricht’s journal entries concerning these projected murders, his words are “the words of a man who is callous as to the consequences or the harm and suffering that [his actions] may cause others.”

The record was more than sufficient to support the district court’s reliance on those attempted murders in sentencing Ulbricht to life in prison.

don190830Under current interpretation, a mere solicitation to commit murder is not a crime of violence under United States v. Davis, but we would be hard-pressed to call Ross a “peaceful entrepreneur.” Our local herbal tea lady is a peaceful entrepreneur, unless she has ordered a hit on the Starbucks across the street.

Still, we’ll see what effect 200,000 online signatures have on President Donald Trump. Unless it’s reported on “Fox and Friends,” we suspect not much.

Bitcoinist.com, Petition for Clemency for Silk Road Founder Nears 200k Signatures (Aug. 19)

change.org, Clemency for Ross Ulbricht, Serving Double Life for a Website

United States v. Ulbricht, 858 F.3d 71, 131 (2nd Cir. 2017)

United States v. Davis, — U.S. —, 139 S. Ct. 2319, 204 L.Ed.2d 757 (June 24, 2019)

– Thomas L. Root

Clemency in Dibs and Drabs – Update for August 6, 2019

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

TRUMP GRANTS CLEMENCY TO A FEW MORE… TOO FEW MORE

President Trump last week commuted two sentences and granted pardons to five others who previously pleaded guilty to nonviolent crimes but have completed their sentences.

obtaining-clemencyTrump commuted the sentence of Ronen Nahmani, who was serving a 20-year sentence for conspiracy to distribute the synthetic drug “spice.” The White House said Ronen had no prior criminal history and has five young children at home, the oldest is 13 years old, and a wife battling terminal cancer. Trump noted his case for an early release received bipartisan support from legislators.

Trump also commuted the sentence of Ted Suhl, an Arkansas man convicted in 2016 on four counts of bribery after prosecutors said he took part in a scheme to increase Medicaid payments to his faith-based behavioral health-care center for juveniles company. Suhl lost at the 8th Circuit, and was preparing to file in the Supreme Court. The White House noted his “spotless disciplinary record” over three years in prison and highlighted support for the commutation from former Gov. Mike Huckabee and former U.S. Attorney Bud Cummins.

Trump pardoned five other people who had already served their sentences, for offenses ranging from transferred government property illegally to transporting marijuana, to running an illegal gambling parlor in 1987 and stealing guns from luggage.

With Monday’s announcements, Trump has now pardoned or reduced the sentences of 19 individuals since taking office. Ohio State University law professor Douglas Berman noted in his Sentencing Law and Policy blog last Wednesday that with over 177,000 people in federal prison, “six commutations is, by all sensible measures, a very small number. The granting of only six commutations seems especially disappointing given that last year Prez Trump was talking about considering clemency requests that including “3,000 names, many of those names have been treated unfairly, … [and] in some cases, their sentences are far too long.”

clemency170206Trump’s six clemency grants in his first term beats the first term records of every president since Reagan. The record is still held by Nixon, who granted 48 clemencies in his first term. Berman noted “that so very few federal prisoners have recently received clemency while the federal prison population has swelled makes these numbers even more depressing. The also look terrible if we look back further historically, as almost every other 20th Century US President (except for Dwight Eisenhower) granted a hundred or more commutations while in office (with Woodrow Wilson granting 341 in 1920 alone).”

The Hill, Trump announces seven pardons or commutations (July 29)

Wall Street Journal, Trump Commutes Prison Sentences in Medicaid Bribery, Drug Cases (July 29)

Sentencing Law and Policy, A (depressing) first-term scorecard for recent presidents (July 30)

– Thomas L. Root

Will President Circumvent DOJ With White House Pardon Attorney? – Update for June 13, 2019

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RUMOR FLOATED THAT TRUMP WILL APPOINT HIS OWN NON-DOJ PARDON ATTORNEY

The Washington Examiner reported last week that “worried clemency advocates are urging President Trump to select his own pardon attorney as the Justice Department reviews a stack of resumes collected on short notice” to fill its own Pardon Attorney slot.

pardonme190123There hasn’t been a politically appointed Pardon Attorney in over 40 years, but advocates say it could enhance the position’s stature and ensuring that Trump’s interest in giving second chances extends beyond isolated cases. “I think it makes a lot of sense to have the pardon attorney job be a political one,” said Margaret Love, U.S. pardon attorney from 1990 to 1997.

The job posting was open for just a month, closing May 10, suggesting that DOJ may already have a candidate in mind, probably another career prosecutor. “I wonder if they are going to make Trump aware of [the search]. Shouldn’t the president have some say over who his pardon attorney is?” said Sam Morison, who worked for 13 years as a staff attorney in the DOJ’s Office of the Pardon Attorney. “If they are just going to the U.S. attorneys’ offices, they are going to get someone who’s a company man, and that’s the idea,” he said.

Rosalind Sargent-Burns, a long-time Office of the Pardon Attorney staffer, was named acting Pardon Attorney on May 28. She has never been a line prosecutor, to her credit, and has held various  positions in the OPA over the past decade, including Designated Agency Ethics Officer, Team Lead, Senior Attorney Advisor over the pardon portfolio, Acting Deputy Pardon Attorney, and Deputy Pardon Attorney.

yesman190613Morison wants Trump to pick his own pardon attorney and move the office into the White House, citing institutional weight against clemency in cases DOJ itself prosecuted. He is hopeful based on President Trump’s public remarks, including that there are “a lot of people” in prison for “no reason.” “Trump gets a lot of criticism, but I think it’s refreshing for him to admit something everyone knows to be truth: The Justice Department is not perfect, and prosecutions are not perfect. Most presidents aren’t actually willing to acknowledge that,” Morison said. “I think Trump does not trust DOJ, and in this particular instance he’s probably correct.”

Heritage Foundation scholar Paul Larkin, who wants Trump to create a White House Office of Executive Clemency, participated in a private group discussion on clemency reform two months ago. CAN-DO founder Amy Povah also wants the pardon attorney separated from DOJ. “We are relying on President Trump to finally be the hero we’ve been waiting for because he is an outsider who doesn’t worry about shaking up the status quo,” she said.

Trump has now fallen behind President Obama on clemency, having granted only 12 people pardons or commutations, nearly all at the urging of politicians or celebrities. At this point in his presidency, Obama had granted clemency to 17 people.

Washington Examiner, Trump urged to pick his own pardon attorney (June 6)

– Thomas L. Root

No Clemency for the Hot Polloi – Update for May 21, 2019

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NEW TRUMP PARDONS DO LITTLE TO SPUR CLEMENCY HOPE

clemency170206President Trump last week granted a full pardon to media tycoon Conrad Moffat Black and Patrick Nolan, former Republican leader of the California State Assembly, but there is little in those acts of executive grace to cause prisoners who are not politically connected or are not BBFs with celebrities that Trump will start granting clemency to the thousands whose applications languish on file.

Black, a British citizen, had been the CEO of the publisher of Chicago Sun-Times, The Daily Telegraph and The Jerusalem Post. He was convicted in 2007 on three counts of mail fraud and one count of obstruction of justice. Two fraud counts were later thrown out by the Supreme Court. Black served 37 months in federal prison. Last year wrote a book called Donald J. Trump: A President Like No Other, which some media accounts allege was little more than a hagiography.

Nolan was a California legislative leader who spent years in prison after being convicted in the 1990s, after being secretly recorded accepting checks from an undercover FBI agent. He pled to one count of racketeering and did 25 months. Trump characterized Nolan’s decision to plead guilty as a “difficult” one, which makes him no different from all the other 94% of federal defendants who plead guilty every year.

These pardons do little to encourage federal inmates that Trump will wield his clemency power to benefit prisoners who are not connected. 

pardonme190123The President has pardoned nine people and commuted the sentences of three others since taking office, in a pattern apparently driven by politics, celebrity support and television. The only commutation of someone who was not politically connected was that of Alice Johnson, whose case had been taken to the president by Kim Kardashian West.

A few have complained that the President’s pardons are driven by politics or are “all about him.” This, of course, makes him no different from his predecessors (Obama and Manning, Clinton and Rich).

The President has been rumored to be planning pardons, timed for the Memorial Day weekend, of servicemen who have been accused or convicted of war crimes in Iraq and Afghanistan.  However, the opposition to such actions appears to be fierce, and some have suggested that the hue and cry may cause Trump to abandon the plan.

The Hill, Trump pardons media tycoon, former GOP leader of California State Assembly (May 15)

The New York Times, Trump May Be Preparing Pardons for Servicemen Accused of War Crimes (May 18)

The Hill, Here are the 12 pardons or reduced sentences granted by Trump (May 16)

– Thomas L. Root

Time to Restart the Clemency Machine? – Update for January 23, 2019

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

A RENEWED CRY FOR CLEMENCY

pardonme190123Focus on the First Step Act over the past six months has left President Trump’s push to reform clemency in the dark. Last week, however, The Atlantic published a proposal written by three prominent clemency advocates to revamp the process.

The two clemency processes now in use, law professors Mark Osler and Rachel Barkow, and Koch Industries general counsel Mark Holder argued, are the formal Dept. of Justice Pardon Attorney process and Trump’s much more informal celebrity-studded personal recommendation process.

Trump’s is informal: The president evaluates individual cases based on personal recommendations. The problem with the President’s system, the authors complain, is that it does not scale. Instead, it is a one-celebrated-case-at-a-time celebrity-driven approach, in which people with access to Trump lobby him in the Oval Office until he signs off.

But the DOJ process, the article contends, “isn’t any better. It courses through seven levels of review, much of it through a hostile… bureaucracy that tends to defer to local prosecutors who are, in turn, loath to undo the harsh sentences they sought in the first place. Indeed,” the authors observe, “the First Step Act passed in spite of DOJ opposition because those same prosecutors objected to lowering the mandatory minimum sentences that give them so much bargaining power.”

The articles cites some states as having better systems, including Arkansas, Connecticut, Georgia, and South Carolina. In those systems, an expert board – with people from criminal justice, social work, and psychology backgrounds, former judges, defense lawyers, prosecutors, and community activists – identify and evaluate clemency candidates.

obtaining-clemencyThe authors suggest that the President create a similar board of bipartisan clemency advisers who would work with a professional staff to identify cases for White House action. In 1975, President Gerald Ford impaneled an 18-member clemency board to help him with pardon requests from applicants charged with crimes related to avoiding the draft during the Vietnam War. That board was diverse and bipartisan, and ultimately recommended more than 13,000 pardons.

Trump convened a conference on revamp the clemency last summer, but nothing has come of it so far.

The Atlantic, The Clemency Process Is Broken. Trump Can Fix It (Jan. 15)

– Thomas L. Root