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Clemency Should Be ‘Easy Lift’ For Biden, Some Say – Update for October 1, 2021

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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.

BIDEN CARES ACT CLEMENCY CALLED INADEQUATE

We know a little more about the Biden Administration’s plan to solicit commutation applications from some CARES Act prisoners on home confinement, and as more is known, the criticism is mounting.

clemencypitch180716A few weeks ago, the Department of Justice started sending out commutation applications to about 1,000 people (about one out of four those on CARES Act home confinement). Biden is targeting people who have been convicted of a drug offense and have four years or less remaining on their sentences, directing them to apply to DOJ’s Office of the Pardon Attorney.

Last week, The New Republic observed that “Biden is wedded to an inefficient process that’s created a backlog of close to 16,000 petitions. The administration is going out of its way to frame its approach as the opposite of Trump’s chaotic one, which bypassed the Justice Department and freed people seemingly based on the president’s whims.” The New York Times reported last spring that Biden intends to “rely on the rigorous application vetting process,” as opposed to Trump’s approach, “empowering friends, associates and lobbyists to use their connections to the president, his family and his team to push favored requests to the front of the line…”

clemencybacklog190904

But the need to rely on the DOJ pardon system doesn’t sit well with some. Last week, Amy Povah, founder of the Can-Do Clemency Project, told Forbes, “President Biden has been handed an easy political gift. There are 4,000 inmates functioning in society, obeying the laws, bonding with family and held accountable for their past actions. There is no better group vetted to be given clemency than this group of CARES Act inmates… If those at home under CARES Act don’t all qualify to stay there, I’m concerned that we’re dealing with an overly conservative mindset, not consistent with the will of those who voted for President Biden.”

“This should be an easy lift for the Biden administration,” law professor Mark Osler, a former Assistant U.S. Attorney, told The New Republic. “They were handed a carefully vetted group of people who even Attorney General Barr thought should be out in society.”

Osler said the system Biden wants to rely on doesn’t work. “The fact that their commitment to a broken process is going to undermine this is really disappointing,” Osler told TNR. He has long argued that clemency cases should be taken away from DOJ. Before a case makes it to the President, Osler said, “the first thing the pardon attorney’s staff do is seek out the opinion of the local prosecutor and then give that opinion substantial weight. What do you think is going to happen?”

clemency170206No one is saying whether special considerations will be applied to CARES Act home confinees, allowing them to skip DOJ Pardon Attorney review and that office’s embarrassing backlog of cases. FAMM president Kevin Ring complained last week that outside of what they’ve seen in the media, no one knows what Biden plans. “It’s a crazy lack of transparency,” Ring said. “Friday afternoon, there’s a phone call to BOP halfway houses saying, this person should fill out a clemency petition in the next couple of days. Who? Why? What [are] the criteria?”

Unsurprisingly, the pressure remain high for Biden to do more. A week ago, five members of the Maryland congressional delegation wrote to Attorney General Merrick Garland and BOP Director Michael Carvajal, asking for reconsideration of the Trump-era legal opinion (which the Biden DOJ has agreed with) that CARES Act people have to return to prison after the COVID-19 emergency passes. And last Friday, three national law enforcement organizations – the Law Enforcement Leaders to Reduce Crime & Incarceration, Law Enforcement Action Partnership, and Fair and Just Prosecution — wrote to the President to urge him “to use your clemency power to ensure that all people successfully placed on home confinement under the CARES Act do not return to full custody.”

While all of the attention seems to be on CARES Act people, any focus on a re-do of the DOJ pardon system will ultimately benefit prisoners whether still in prison or at home.

Forbes, Biden Considering Options To Avoid Returning Federal Inmates To Prison Post Covid-19 (September 19, 2021)

The New Republic, Biden’s Conservative Vision on Clemency (September  21, 2021)

Maryland Congressional Delegation, Letter to Attorney General (September 17, 2021)

Law Enforcement Action Partnership, Letter to President Biden (September 24, 2021)

– Thomas L. Root

Clemency Tips – Update for September 23, 2021

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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.

YOU’RE STILL LOCKED UP – SHOULD YOU FILE FOR CLEMENCY?

writing160425On Monday, I wrote about the Biden clemency initiative. And I have gotten questions about it, principally this one: What should you do if you’re not in the cohort of 1,000 people on CARES Act home confinement that Joe purportedly has asked to submit a clemency request?

Write one anyway. Like the lottery people say, you can’t win if you don’t buy a ticket. The commutation forms and instructions are available online. You probably should get your application in the hopper anyway, doing your best to show that you’re non-violent, show rehabilitation during your incarceration, and explain why your situation is similar to the 1,000 prisoners invited to file or otherwise praiseworthy.

Some pointers:

A commutation petition is not the time to say this...
A commutation petition is not the time to say this…

(1) No one cares about your innocence: Explaining that you’re actually innocent or that you were convicted by bad lawyering, corrupt courts, or cheating prosecutors is a bad idea. No one in the Administration wants to hear that, even if it happens to be so. The commutation process wants to hear about your remorse and rehabilitation, not about how you may have been done wrong. Clemency is an act of executive grace, completely discretionary and utterly unreviewable. Imagine that you have a gun with only one bullet. This shot absolutely has to count. Whining about your judge or lawyer fires your one bullet right into your foot.

(2) Truth counts:  Maybe the “gun with one bullet” analogy isn’t such a good one. You want to demonstrate that Gandhi has nothing on you when it comes to non-violence, but don’t sugar-coat things. If you were a hot-blooded young gun in your past, admit that and explain how you’ve aged out of it, found a spiritual path, whatever. But be truthful about your history. Glossing over prior conduct figuring that no one in Washington will examine your past in too much detail is not a winning strategy. Betting on the other side being lazy or incompetent is no plan.

(3) Reach for the possible, not the ideal. You want a pardon. Of course you do. Everyone would love to have his or her federal crime wiped off the books. But, if history is a guide, pardons are for celebrities – political or otherwise – or, if you’re a little guy, for people with decades-old offenses and a history since conviction that should make them Time’s Person of the Year. You want a pardon, sure. But that ain’t gonna happen. File for a commutation, which does not forgive your crime, but says that you’ve been punished enough and should have the rest of your sentence commuted.

So how should you write your petition? Attorney Brandon Sample has posted tips on writing clemency petitions at clemency.com. (Brandon’s site contains a lot of good information, and invites you to contact him – which is not to say that hiring Brandon or another attorney who knows the process is a bad idea: it’s a very good idea, especially if you have a decent shot at getting some traction from the Biden initiative).  

Speaking of lawyers, Margaret Colgate Love – who was U.S. Pardon Attorney during the George H.W. Bush and Bill Clinton administrations – has written a lot on clemency and is available for hire as well.

There are other effective legal advocates out there, too. I have just mentioned two whose work for which I have respect.

obtaining-clemencyWhile not attorneys for hire, the people at Amy Povah’s Can-Do Foundation – focused on clemency for non-violent drug offenders –have posted some tips on applying for clemency or (and this is important) getting friends or family to write in support. Some of Can-Do’s information is a little dated, having been written during the Wild West days of Trump clemency, but there are nuggets of good advice on the website.

Finally, while its focus is slightly different (or perhaps larger than just clemency), Attorney Brittany Barnett’s Buried Alive project has worked on some high-profile commutation as part of its work on drug life-without-parole sentences. Alice Marie Johnson, one of President Trump’s most deserving commutations (and later, pardons), was represented by Barnett.

Dept. of Justice Pardon Attorney website

Brandon Sample, Clemency Resources

Margaret Colgate Love, Clemency Resources

Can-Do Foundation, Clemency Resources

Buried Alive Project

– Thomas L. Root

President Said to be Considering CARES Act Partial Clemency – Update for September 7, 2021

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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.

BIDEN MAY (FINALLY) BE TAKING BABY STEPS ON CLEMENCY

The New York Times reported last week that President Biden is considering using his clemency powers – which he has not exercised in his first seven months in office – to commute the sentences of nonviolent drug offenders with fewer than four years left to serve. The contemplated intervention would not apply to those now in home confinement with longer sentences left, or those who committed other types of crimes, Biden administration sources told the Times.

The notion of clemency for some inmates is just one of several ideas being examined in the executive branch and Congress, the Times said. Others include a broader use of 18 USC § 3582(c)(1)(A)(i) “compassionate release” or 34 USC § 60541, the elderly offender home detention program, or even a law – such as the Safer Detention Act (S.312) – to allow some inmates to stay in home confinement after the pandemic.

The CARES Act permits inmates who are sent to home confinement under Section 12003(b) to remain at home until the pandemic public health emergency ends. The Times says, “That will not be soon: With the Delta variant spurring a surge in cases, the public health emergency is not expected to end before next year at the earliest.”

clemencyjack161229On August 10, Biden Press Secretary Jen Psaki said Biden was “exploring multiple avenues to provide relief to nonviolent drug offenders, including through the use of his clemency power.” The Times reported officials have confirmed that the Justice Department “will soon begin requesting clemency petitions for drug offenders who have less than four years left on their sentence, which will then be reviewed by its pardon office.” The officials said a focus on nonviolent drug offenders “dovetail[s] with Mr. Biden’s area of comfort on matters of criminal justice reform.”

Whether Biden is leaning toward commuting the sentences of drug offenders to home confinement, reducing sentence length to bring them down to the normal window 10%-or-six-month window for 18 USC 3624(c)(2) end-of-sentence home confinement, or some mix of the two, is not yet clear.

The Times reported that DOJ is still studying options that could keep non-drug offenders from being forced back into prison.

Meanwhile, criminal justice reform groups are keeping up pressure on the President. FAMM and the American Civil Liberties Union are mounting a six-figure ad campaign to pressure Biden to keep the CARES Act prisoners at home. The TV ads feature Juan Rodriguez, a federal prisoner sent home in July after doing eight of 14 years for a drug conviction. “I’m going to try to make the best out of every day I have out here,” Mr. Rodriguez says in the ad featuring him with his family and working a new job. “President Biden, please don’t separate me from my family.”

angel210907The ACLU has argued that fewer than 1% of prisoners put on home confinement had violated the terms of their release, and it was time for Biden to follow through on lowering the incarceration rate and size of the federal prison population that he campaigned on as a presidential candidate. So far, only five people sent home during the pandemic have been returned to prison for new criminal conduct.

USA Today has reported that over two dozen small business owners who have CARES Act home confinees are also asking Biden to grant clemency to prisoners. Some say losing employees to prison during a national labor shortage would not only be detrimental to their businesses, but would also keep their companies from growing.

Ohio State law professor Doug Berman complained in his Sentencing Law and Policy blog that when Biden was campaigning, he promised to “’take bold action to reduce our prison population’. But the federal prison population… has grown by over 4000 persons according to BOP numbers, from 151,646 total inmates on January 21, 2021, to 155,730 total inmates on August 26, 2021. To date, I cannot really think of any actions (let alone bold ones) that Prez Biden has taken to reduce the federal prison population. Talk of some clemency action is heartening, but just a start. And whatever clemency efforts are made, they should extend beyond just a limited group who are already home.”

The New York Times, White House Weighs Clemency to Keep Some Drug Offenders Confined at Home (August 30, 2021)

Washington Times, ACLU pressures Biden to keep convicts on home confinement out of prison due to pandemic (August 27, 2021)

USA Today, Businesses that hired inmates who were allowed to serve time at home during COVID push for clemency (August 26, 2021)

CBS News, Inmates on home confinement could be sent back to prison after the pandemic: “Why make us go back and do it again?” (September 3, 2021)

Sentencing Law and Policy, Prez Biden reportedly considering, for home confinement cohort, clemency only for “nonviolent drug offenders with less than four years” left on sentence (August 30, 2021)

– Thomas L. Root

Biden to Ask Fox To Advise on Emptying Henhouse – Update for May 26, 2021

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GOOD AND BAD NEWS ON CLEMENCY

clemencypitch180716The New York Times reported last week that Biden Administration officials have begun evaluating clemency requests and have let activists know that President Biden may start issuing pardons or commutations.

That’s the good news. The bad news is that White House officials have indicated privately that it is working with the Department of Justice’s Office of the Pardon Attorney to process clemency requests with the intent of issuing some clemencies the president sign some before the 2022 midterm elections in. The White House has indicated that it will rely on the rigorous application vetting process overseen by the OPA, an office that most clemency advocates see as an impediment to clemency, not a facilitator.

henhouse180307Several pretty influential commentators, including NYU law prof and former Sentencing Commission member Rachel Barkow, have urged White House officials to consider moving the clemency process out of DOJ, “noting the paradox of entrusting an agency that led prosecutions with determining whether the targets of those prosecutions deserve mercy,” as The Times put it. But the Biden administration is not inclined to circumvent the OPA, according to the paper, instead following the approach adopted by President Barack Obama, who issued more than 1,900 clemency grants, mostly to people recommended by the DOJ and who had been serving drug trafficking sentences.

Biden’s team has hinted it is establishing a deliberate, systemic process geared toward identifying entire classes of people who deserve mercy. The approach could allow the president to make good on his campaign promise to use his authority to address racial equity. Given that 70% of federal prisoners are nonwhite, and 48% of all inmates are convicted of drug offenses, a focus on racial equity could have substantial impact.

pardon160321An April push by the National Council for Incarcerated and Formerly Incarcerated Women and Girls, called on Biden to grant pardons or to commute the sentences for 100 women during his first 100 days of office. Nothing came of it.

As of May 10, there were 3,211 pardon and 11,804 clemency petitions pending, according to DOJ statistics. Of those, 14 pardons and 461 clemency petitions were “closed without presidential action.”

New York Times, Biden Is Developing a Pardon Process With a Focus on Racial Justice (May 17)

US Sentencing Commission, Quick Facts – Offenders in Federal Prison (March 2021)

CNN, Advocates push for Biden to use his executive powers to grant clemency for hundreds of women in federal prisons (May 19)

DOJ, Clemency Statistics (May 23)

– Thomas L. Root

After All of the Drama… Trump’s Clemency – Update for January 20, 2021

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TRUMP DOES SOMETHING RIGHT(?)

obtaining-clemencyAfter all of the angst since November about a flurry of pardons and commutations to be issued by President Donald John Trump (and you cannot imagine my relief at knowing I will never have to type those words again) – including speculation that he would pardon his family, all of his close friends, the Capitol rioters and even himself – Trump issued the final long-awaited clemency list in the wee hours on his last day in office (and you cannot imagine my relief at typing those words).

The media predictably fixated on the of handful of longtime allies and well-connected celebrities, including his former chief strategist, Steve Bannon, and onetime fundraiser Elliott Broidy, on the list. But that should not obscure the fact that, in virtually his last exercise of Presidential power, Trump pretty much got it right.

The White House released the list of 143 pardons and commutations at 12:50 a.m., as – according to the Wall Street Journal – Trump’s deliberations over who should receive clemency stretched late into the last full day of his term. Bannon, much like Schroedinger’s cat, flitted onto and off of the pardon list, but finally was included, short-circuiting his federal trial scheduled for May. A few rappers, politicos and Trump loyalists made the list, but the real story was that 90% of those getting pardons and commutations were rather ordinary people.

Only 18 of those on the list – 13% – were supported by the Dept of Justice Office of Pardon Attorney. The balance were by an array of political leaders, criminal justice reformers and other allies of the president.

On Tuesday, the president was still calling advisers to ask them how he should proceed on certain pardons and waffled repeatedly over whether to grant one to Mr. Bannon, a person familiar with the conversations said.

At various points on Tuesday, advisers believed Mr. Bannon—who was charged in connection to a scheme to siphon money from a crowdfunding campaign for a border wall—wouldn’t get one. The White House in a statement said Mr. Bannon “has been an important leader in the conservative movement and is known for his political acumen.”

Don’t take my word for it: here’s the list of those pardoned (their crimes forgiven) or had sentences commuted (imprisonment reduced or terminated, but the conviction remains):

White House List

trumpjohnson210120Trump has been widely criticized for using his clemency power to favor celebrities and political allies, including Michael Flynn, Paul Manafort, Roger Stone and former Maricopa County Sheriff Joe Arpaio. But he was praised for commuting the sentences of some prisoners serving long sentences for nonviolent drug offenses, like 63-year old Alice Johnson, who was doing life for a 1996 crack conspiracy. Her story (she was hardly the kingpin, but paid the price for not taking a deal) caught the attention of reality-TV star Kim Kardashian, who convinced Trump to commute her sentence. The move paid off for Trump: Johnson was a vocal supporter of the President after that (who could blame her), even speaking at the Republican convention last summer. Trump rewarded that by upgrading her commutation to a pardon. At the same time, Johnson advocated for clemency for people she knew in the system.

Before last week, Trump had pardoned or commuted the sentences of 44 people convicted of federal crimes —far fewer than any other president. To be sure, Trump isn’t the only president to pardon his friends and allies during his fpardon160321inal days in office. Former President Bill Clinton was criticized for including wealthy fugitive Marc Rich in his final batch of reprieves, after Rich’s wife donated generously to Clinton’s presidential library. An investigation later concluded that the pardon was sketchy but not quite illegal.

Experts argue that the erratic clemency process should be fundamentally reimagined, either by taking it out of the president’s hands altogether or at least by moving it out of the Department of Justice. This could speed up the review process and remove review from the people whose careers were made by convicting those seeking clemency. Advocates argues that clemency should be molded into a tool for redressing the harsh sentencing practices of the early Sentencing Guidelines days since 1989. The sentences, especially for drug offense, disproportionately sent minorities to prison for long stretches.

The New York Times reported that “advocates said they were hopeful that the Biden administration would be able to revamp the clemency process, and that the pardons approved by Mr. Trump would give the next administration some cover with conservatives in the future.”

The Biden administration said it would not comment on the Trump pardons.

The Wall Street Journal, Trump Issues 73 Pardons, Including to Ex-Aide Steve Bannon (January 20, 2021)

The New York Times, Trump’s final wave of pardons includes names pushed by criminal justice reform advocates (January 21, 2021)

The Marshall Project, Trump’s Pardons Show The Process Has Always Been Broken (January 19, 2021)

– Thomas L. Root

Final Hours for Trump Clemency… and Things Are Strange – Update for January 18, 2021

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THINGS ARE GETTING WEIRD

weird210118Secret commutations. A phony White House pardon website. Capitol Hill rioters complaining on TV the president sent them to the insurrection, so he owes them a pardon. A promise of hundreds of clemencies. A president wonder-ing whether he can pardon himself.

For weeks, federal inmates have hoped President Trump would grant clemency to thousands of them on his way out the door. But if things looked like they were going sideways before Jan 6, they have gotten downright screwy since then.

As of this morning, the Washington Post reported “Trump is preparing to pardon or commute the sentences of more than 100 people in his final hours in office, decisions that are expected to be announced Monday or Tuesday, according to two people familiar with the discussions, who spoke on the condition of anonymity to describe the plans.”

The Post said Trump “has been besieged by lobbyists and lawyers for well-heeled clients who are seeking to have their criminal convictions wiped from their records, as well as by advocates for criminal justice reform, who argue that their clients were wrongly convicted or were given unfair sentences and deserve to be freed from prison.” Trump’s clemency binge has been delayed by what the Post called increasing dysfunction stemming from the Capitol riot and impeachment, but he reportedly spent part of the weekend finalizing his list.

The President has always made a big deal of his clemencies, but last Tuesday, he quietly commuted the sentence of Fred Davis Clark, whose Ponzi theft of over $171 million got him a 480-month federal sentence two years ago. Fred’s docket said the 60-year old defendant had an out date beyond 2050, but the BOP released him last Tuesday. The White House has released no official statement on the clemency.

parler210118The White House did, however, release a statement declaring a pardon notice circulating on the right-wing website Parler to be fake. The phony post, which claimed to be from the Office of Pardon Attorney, said “POTUS is seriously considering PARDONING all of the patriots in the next week and a half. If you would like a pardon, please respond below.” It then asks for the rioter’s name, city and even “what crimes you think you need to be pardoned for,” asking for them by “Tuesday” so the President can get to work on them. (Some might suggest that the very notion of the President “working” should have been the tipoff that the post was a fraud).

Some of the people who thought that vandalizing the Capitol was great fun are apparently have second thoughts now that their selfies and tweets are leading to criminal charges. Jenna Ryan, a Texas real estate broker who was arrested for joining the attack on the Capitol, has pleaded with Trump to pardon her. After surrendering to the FBI on Friday, Ryan said: “We all deserve a pardon. I’m facing a prison sentence. I think I do not deserve that.” Ryan said she had been “displaying my patriotism,” adding, “I listen to my president who told me to go to the Capitol.”

The Dept of Justice issued a statement last weekend that “the information circulating on social media claiming to be from Acting Pardon Attorney Rosalind Sargent-Burns is inauthentic and should not be taken seriously.”

In private, the president has continued to pursue which pardons he can grant in his final days in office, calling advisers to ask for suggestions. The White House is expected to release dozens of pardons in the days before he leaves office, aides say. Aides say they don’t know if some of the most controversial pardons—including for Rudy Giuliani, for the president’s children, and for the president himself—will be among them.

The New York Times reported last night that “a lucrative market for pardons is coming to a head, with some of his allies collecting fees from wealthy felons or their associates to push the White House for clemency, according to documents and interviews with more than three dozen lobbyists and lawyers.” People reported to be selling services include former AUSA Brett Tolman, Trump’s personal lawyer John M. Dowd, and Guliani.

pardonsale210118Politico reported last Friday that former White House advisor Steve Bannon – facing a federal fraud trial in May – is on the pardon list. Politico’s White House source said “two additional batches of pardons are expected — one on Friday night and one Wednesday morning before President-elect Joe Biden is sworn into office.” Of course, Friday has come and gone, and the first of the promised clemency lists did not happen. Last Monday, ABC reported that after some of Trump’s lawyers told him that if he pardons himself, he could be more vulnerable to civil lawsuits. “The president is angry,” ABC reporter Jonathan Karl said. “He has not taken that well, and I am told that he is now saying that he doesn’t want to see pardons for anybody. So the attitude seems to be: ‘If I can’t get a pardon, then nobody else should get one, either.'”

Washington Post, Trump prepares to offer clemency to more than 100 people in his final hours in office (January 18, 2021)

Law360.com, Trump Commutes Ex-Cay Clubs CEO’s Ponzi Sentence (January 14, 2021)

DOJ, Statement on Misinformation on Social Media Regarding the Office of the Pardon Attorney (January 9, 2021)

The Guardian, ‘I’m facing a prison sentence’: US Capitol rioters plead with Trump for pardons (January 16, 2021)

New York Times, Prospect of Pardons in Final Days Fuels Market to Buy Access to Trump (January 17, 2021)

Wall Street Journal, Trump Spends Final Days Focused on GOP Defectors, Senate Defense (January 16, 2021)

Politico, Trump weighing a pardon for Steve Bannon (January 15, 2021)

The Week, Trump is reportedly so angry aides are warning him against a self-pardon, he’s put all pardons ‘on hold’ (January 12, 2021)

– Thomas L. Root

Clemency Hopes Fade After Trump Capitol Riot Beatdown – Update for January 12, 2021

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DID LAST WEEK’S TRUMP DEBACLE KILL HOPES OF CLEMENCY PUSH?

That the insurrection on Capitol Hill is leading to an unprecedented second impeachment for President Trump has dimmed some hopes for a lot of clemency activity before January 20. Others – including Ohio State University law professor Doug Berman (writing in his Sentencing Policy and Law blog) – believed as of late last week that Trump is still “planning to issue more clemency grants before he loses the power to do so.”

trump210112

But things are changing quickly in D.C. Last night, ABC News reported that sources told it that

White House Counsel Pat Cipollone advised the president that he could face legal jeopardy for encouraging his supporters to storm the Capitol building, according to sources familiar with their discussions.

After these conversations, sources say the president grew angrier, and the entire pardon process has been described as “on hold” — meaning others who have been lobbying the president for pardons, including his personal attorney Rudy Giuliani, may not receive one.

ABC correspondent Jonathan Karl told ABC anchor David Muir that the president has been warned that self-pardon “would be seen as an admission that he did something wrong that he would need to be pardoned for. The president is angry, he has not taken that well, and I am told that he is now saying that he doesn’t want to see pardons for anybody. So the attitude seems to be: ‘If I can’t get a pardon, then nobody else should get one, either’.”

Bloomberg reported last week that Trump had prepared a sweeping list of people he’d hoped to pardon in the final days of his administration, including senior White House “people familiar with the matter,” Bloomberg said Trump intends to announce the pardons on Jan 19 – his final full day in office – and the list is currently being vetted by the White House counsel’s office. Besides Trump’s kids, in-laws and immediate staff, sources report, he is considering pardons for the husband of a Fox News personality, and rappers Lil Wayne and Kodak Black.

anderson210112Trump’s most recent contretemps have not slowed down the lobbying for high-profile pardons. Former Baywatch star Pamela Anderson, a thoughtful and incisive commentator on world affairs, is pushing to have Wikileaks founder and accused rapist Julian Assange pardoned, and conservative Florida congressman Matt Gaetz (who most recently has alleged that Antifa members in MAGA hats, not Trump patriots, stormed the Capitol) has urged that Edward Snowden should be pardoned as well.

Berman wrote, “I am hopeful, but not really optimistic, that there will be some good number of final Trumpian clemency grants for persons who are not well-connected or famous.” But now it may develop that even the Kushners, Lil Waynes and Assanges of the world may still be waiting outside the White House, MAGA hats in hand, as Marine One carries President Trump away for the last time.

trumptrain210112Even if a few of then favored get pardoned in the next 195 hours, the stats suggest there is little reason for the average prisoner to hold out optimism for Trump clemency. A recent study showed that only seven of the 94 Trump clemency grants over his term came on recommendation from the pardon attorney. Like it or not, the only way a clemency petition from someone who is not connected gets to the White House is through the Dept of Justice, not that a system leaving the prosecutor in charge of the clemency gateway is such a favored idea, either.

Berman wrote, “I hope Prez-elect Biden comes into office understanding that the best way to restore faith in the pardon power could be by using it right away to advance justice and mercy rather than parochial personal privilege.”

Lawfare, Trump’s Circumvention of the Justice Department Clemency Process (December 29, 2021)

Sentencing Law and Policy, Gearing up for Prez Trump’s coming final round of clemency grants (January 7, 2021)

ABC News, Trump warned about potential civil liability, as some aides clear out desks (January 11, 2021)

The Week, Trump is reportedly so angry aides are warning him against a self-pardon, he’s put all pardons ‘on hold’ (January 12, 2021)

Bloomberg, Trump Prepares Pardon List for Aides and Family, and Maybe Himself (January 7, 2021)

– Thomas L. Root

“Pardon Me” Is a Request, Not an Apology, at the White House – Update for December 29, 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…

alice201229A week ago today, President Donald J. Trump pardoned 15 people and commuted the sentences of five more. The next day, he pardoned 26 more people and commuted three additional sentences. And sources say there are more to come…

That’s the good news for federal inmates. The bad news is this: virtually everyone receiving clemency was supported by political figures or friends of the President. Perhaps the least celebrity of the lot was Alice Johnson, who was released from a drug conspiracy sentence in 2018 after Kim Kardashian lobbied Trump.

Alice has apparently become a Trump favorite after speaking at the Republican Convention last August (after which the President raised her commutation of sentence to a full pardon). Alice is using her access to successfully recommend a number of people for clemency (and who can blame her… she’s looking out for people she did time with, something anyone who’s ever been locked up understands).

But Alice’s support of average inmates she knew while doing 20 years aside, Politico said “the raft of pre-Christmas pardons and commutations… favored the well-connected and those with A-list advocates, while appearing to shunt aside — at least for now — more than 14,000 people who have applied for clemency through a small Justice Department office that handles such requests.

who201229None of the clemency applications granted last week went through the Dept of Justice Office of Pardon Attorney. The New York Times reported that more than half of the cases granted did not meet the DOJ’s standards for consideration. “It looks as if the president is relying very heavily on recommendations from members of Congress and people he knows personally and not on the Justice Department pardon process that’s served presidents well for 150 years,” said Margaret Love, who served as pardon attorney under two presidents.

henhouse180307(Editor’s note: The DOJ pardon process has been a clattering disaster, despite what Ms. Love says, a classic illustration of the fox being placed in charge of deciding whether any chickens should be spared from being eaten. But replacing it with a process favoring only the friends [or friends of the friends] of the President is not an improvement.)

A tabulation by Harvard Law School professor Jack Goldsmith found that of Trump’s 45 pardons or commutations before last week, 88% went to people with personal ties to the president or to people who furthered his political aims. The pardons “continue Trump’s unprecedented pattern of issuing self-serving pardons and commutations that advance his personal interests, reward friends, seek retribution against enemies, or gratify political constituencies,” Goldsmith told The New York Times. “Like his past pardons, most if not all of them appear to be based on insider recommendations rather than normal Justice Department vetting process.”

The President “has largely overridden a highly bureaucratic process overseen by pardon lawyers for the Justice Department and handed considerable control to his closest White House aides, including Kushner,” Report Door said. “They, in turn, have outsourced much of the vetting process to political and personal allies, allowing private parties to play an outsize role in influencing the application of one of the most unchecked powers of the presidency.”

pardon160321Trump’s son-in-law and top adviser, Jared Kushner, has played a key role in managing the avalanche of clemency requests that have come into the White House as the administration nears its end next month, according to multiple sources, Yahoo News reported. “Everyone’s sending emails to Jared,” a source familiar with the process reportedly said. “If you want to make something happen, go to Jared.”

The source, who requested anonymity due to the sensitivity of the ongoing process, spoke with Yahoo News before Trump issued the spate of pardons and commutations. “It’s going to be a free-for-all,” the source said.

Kevin Ring, president of criminal justice reform group FAMM, told The New York Times he was optimistic that Mr. Trump would still consider average and unconnected inmates, the kind of people his group backs. He predicted that the clemencies to come over the remaining three weeks of Trump’s presidency will include “head-scratchers mixed in with the ones that look good.”

Yet despite the likelihood of clemencies to come, criminal justice activists are not encouraged by Trump’s spotty and sparse record to date. Goldsmith said the president “is stingy” with his pardon power, “even as he abuses it.”

The White House, Statement from the Press Secretary Regarding Executive Grants of Clemency (December 22, 2020)

The White House, Statement from the Press Secretary Regarding Executive Grants of Clemency (December 23, 2020)

Politico, Trump’s latest batch of pardons favors the well-connected (December 22, 2020)

The New York Times, Trump Pardons Two Russia Inquiry Figures and Blackwater Guards (December 22, 2020)

Report Door, Behind Trump Clemency, a Case Study in Special Access (December 26, 2020)

Yahoo News, Jared Kushner played a key role in White House pardon ‘free-for-all’ (December 24, 2020)

The New York Times, Outside Trump’s Inner Circle, Odds Are Long for Getting Clemency (December 28, 2020)

– Thomas L. Root

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