Tag Archives: commutation

They Begged His Pardon: Biden Finally Grants Short List at Year’s End – Update for January 5, 2023

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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 GRANTS HANDFUL OF PARDONS

Maybe I was too hasty in criticizing President Biden last week for granting no Christmas clemency petitions, with about 18,000 petitions for commutation or pardon pending (many for years).

pardon160321Biden finally issued pardons to six people last Friday, four for various low-level drug offenses, one for the illegal sale of whiskey, and one to an 80-year-old woman who killed her husband 47 years ago. Three of the crimes had occurred at least a quarter century ago, and the fourth – an Air Force enlisted man convicted of taking (but not distributing) Ecstasy – happened about 20 years ago.

The White House statement said the pardoned people had served sentences and “demonstrated a commitment to improving their communities and the lives of those around them.”

The pardons came on the last business day of the year. In October, Biden pardoned thousands of unnamed people convicted of simple marijuana possession under federal law. In April, Biden granted three pardons and granted 75 commutations.

Two of the five pardoned last week served about two years in prison. Three of the other four served under a year, and the last one got probation.

At trial, the woman who killed her husband – convicted under District of Columbia law – was denied the right to argue that he had beaten her. Her appeal, the White House said, “marked one of the first significant steps toward judicial recognition of battered woman syndrome, and her case has been the subject of numerous academic studies.”

clemencyjack161229Two years into Biden’s Administration, the theme of his clemency policy seems to be that pardons will issue, favoring very simple drug and politically-preferred offenses, when the crime happened a long time ago.  Commutations – which require actually letting people out of prison – seem to be disfavored by this White House.

A day before the pardon announcement, White House Domestic Policy Council Director Susan Rice said that Biden’s marijuana pardons and scheduling directive were among the administration’s top accomplishments in 2022. Biden issued a scheduling review order in October directing the Dept of Health and Human Services to consider rescheduling pot to a lower-level controlled substance.

Associated Press, Biden pardons 6 convicted of murder, drug, alcohol crimes (December 30, 2022)

White House, Clemency Recipient List (December 30, 2022)

Ibn-Thomas v. United States, 407 A.2d 626 (1979)

Marijuana Moment, Top White House Official Lists Biden’s Marijuana Pardons And Scheduling Review Among Top 2022 Administration Achievements (December 30, 2022)

– Thomas L. Root

Legislators Tackle Clemency Reform – Update for May 24, 2022

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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.

HOUSE SUBCOMMITTEE EXPLORES FIX FOR CLEMENCY MESS

A subcommittee of the House Judiciary Committee last Thursday grappled with the jammed-up federal clemency process, in which an estimated 17,400 petitions await Presidential consideration.

clemencypitch180716The Subcommittee on Crime, Terrorism & Homeland Security heard from a spectrum of witnesses – from a former Mississippi US Attorney who argued the Dept of Justice’s “policies with regard to review of clemency petitions are correct: clemency should only be granted in extraordinary circumstances and exercised rarely” – to clemency experts who deconstructed the convoluted process in academic detail.

In opening remarks, Subcommittee Chair Rep. Sheila Jackson Lee (D-TX) said that Congress should encourage presidents to routinely use clemency powers, tools she called “useful… not just to correct individual injustices but to overcome “misguided policies that led to mass incarceration.”

Rep Ayanna Pressley (D-Mass) urged passage of a bill she is sponsoring – the Fair and Independent Experts in Clemency Act (or “FIX Clemency Act”), H.R. 6234. That measure would replace DOJ’s Office of Pardon Attorney with an independent clemency board, made up of nine people appointed by the President. The Board would send pardon and commutation recommendations directly to the president.

Clemency expert and law professor Mark Osler testified that what was once a relatively simple clemency system has grown “and metastasized until the process came to include seven distinct actors, each with their own interests and biases, acting sequentially. Today, a clemency petition will be considered in turn by the staff of the Pardon Attorney, the Pardon Attorney, the staff of the Deputy Attorney General, the Deputy Attorney General, the staff of the White House Counsel, the White House Counsel, and finally by the President.”

“The absurd inefficiency of seven reviewers seeing a petition only after a predecessor is done — rather than simultaneously as part of a board — is striking,” Osler said. “On top of that, baked into this system is negative decision bias; reviewers know they can get in trouble only for a bad “yes,” which incentivizes ‘no’s.’ It is seven valves, all spring-loaded shut, on the same pipe.”

clemency220418Law professor Rachel Barkow, a clemency expert and former member of the US Sentencing Commission, told the Subcommittee that “there are now more than 18,000 people waiting for a response to their petitions, many of whom have been waiting for years. It is hard to overstate the level of mismanagement responsible for this unconscionable backlog. These people deserve answers to their petitions, yet the administration has done nothing to suggest it has any grasp of the urgency of the situation.”

Barkow said, “The view inside DOJ… is that pardon attorneys should ‘defend the department’s prosecutorial prerogatives” and that “the institution of a genuinely humane clemency policy would be considered an insult to the good work of line prosecutors.” In light of this view, she said, “there is a strong presumption at DOJ that favorable recommendations should be kept to an absolute minimum.”

pardonme190123The grant rate for commutations and pardons across presidencies has been low in recent years compared to the rates for most of the nation’s history. Trump granted 2% of the petitions he received, Obama granted 5%, George W. Bush granted 2%, Clinton granted 6%, George H.W. Bush granted 5%, and Reagan granted 12%. This contrasts with Carter’s grant rate of 21%, Ford’s rate of 27%, and Nixon’s rate of 36%. “Between 1892 and 1930,” Barkow said, “27% of the applications received some grant of clemency.”

House Subcommittee on Crime, Terrorism & Homeland Security, Oversight Hearing on Clemency and the Office of the Pardon Attorney (May 19, 2022)

Statement of Professor Rachel E. Barkow, New York University School of Law, House Judiciary Comm, Subcomm on Crime, Terrorism, and Homeland Security (May 19)

Statement of Professor Mark Osler, University of St. Thomas, House Judiciary Comm, Subcomm on Crime, Terrorism & Homeland Security (May 19, 2022)

UPI, House panel weighs reforms for clemency amid backlog of 17,000 petitions (May 19, 2022)

– Thomas L. Root

The President Grants Clemency, Leaves Fox in Henhouse – Update for April 28, 2022

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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 GRANTS CLEMENCY TO 75 PRISONERS

obtaining-clemencyPresident Biden’s announcement of three pardons and 75 commutations last Tuesday receive the expected accolades from the media, which generally like anything Biden does and – in this case – were undoubtedly relieved that no one on the list appeared to be a friend of Joe, a friend of a friend of Joe, or a favored cause of some celebrity who had booked private time with Joe.

The press, if not the public, is still suffering from a little PTSD (“Post-Trump Stress Disorder”). It is somewhat of a relief to see clemency not being used as a political carrot or to be scoring cheap political points.

USA Today said, “The individuals granted clemency came at the recommendation of the Department of Justice’s pardon attorney, according to senior Biden administration officials who briefed reporters about the announcement. It marks a return of a practice that was largely bypassed by former President Donald Trump, whose clemency requests often came through close aides.”

A return to normalcy? Maybe. Not a political act? “Not so fast!” Lee Corso might say.

Filter magazine reported that “Biden’s move appears to be the result of lobbying from a celebrity-connected network of clemency activists, such as Weldon Angelos, a former cannabis prisoner who counts Snoop Dogg among his friends. It carries over a troubling Trump trend for this unique and in practice, arbitrary, presidential power: People with celebrity backing are more likely to receive mercy, while others who are similarly situated don’t.”

clemency170206Recall that the White House said last year that Biden was reforming clemency, and would start granting pardons and commutations in the fall of 2022. So what happened? As CNN explained, President Joe Biden decided to mark “Second Chance Month” by “commuting the sentences of 75 people serving time for nonviolent drug offenses, issuing full pardons for three individuals who the administration says have worked toward rehabilitation and unveiling new actions aimed at easing the transition back to normal life for the formerly incarcerated.” The New York Times said, “Mr. Biden’s top aides described the use of presidential power as part of a broader strategy to overhaul the criminal justice system by relying less on prison to punish nonviolent drug offenders and using employment programs to help prevent the formerly incarcerated from returning to prison.”

I agree with Ohio State University law professor Doug Berman, who said in his Sentencing Law and Policy blog that “though I am still a bit salty that it took Prez Biden 15+ months in office before using his clemency pen, I am pleasantly surprised to see a large number of grants and many commutations to persons serving lengthy terms for drug offenses.” Prof Berman noted what I too thought was an anomaly: 40% of the commutation recipients were female. Only about 7% of the BOP inmate population are women.

Other interesting numbers: While the clemencies were widely seen as addressing marijuana convictions, this was not the case at all. Only 7% of the commutations were for a marijuana-only offense, and 12% for offenses that included marijuana. However, 40% of the commutations were for offenses involving methamphetamines, 28% involved cocaine powder, 12% involved crack, and 5% involved heroin. The meth number is especially interesting, in that Congress has shown not just uninterest, but outright hostility to meth offenses. (In the First Step Act, for example, methamphetamines, and heroin are singled out for exemption from eligibility for earned time credits under some circumstances).

Notably, no one who got a commutation had any fentanyl on his or her case.

While Biden noted that “many” of the people receiving commutations “have been serving on home confinement during the COVID-pandemic,” two inmates serving life and one whose life sentence was cut to 240 months in 2014 were among the commutation grants.

Still, this appears to be a nice start. Seventy-five of the 18,000+ clemency petitions on file have been granted. The White House has hinted that more is to come. So why am I complaining?

same160613It’s just this: The New York Times reported that “Mr. Biden based his decisions on clemency petitions sent to the Justice Department, which then made recommendations to the president, according to the White House.” On the campaign trail, Biden promised sweeping changes to criminal justice, including clemency. Previously, we had seen promising signs that Biden was going to cut the Dept of Justice out of the clemency process. DOJ prosecuted and locked up the prisoners to begin with. Having DOJ serve as the gatekeeper for clemency – an act of political grace, not a legal process – is akin to putting the fox in charge of selecting chickens to be released from the henhouse.

Now, about a year after Biden promised a review and possible restructuring of the clemency process, we’re back to the same-old-same-old. I’m not disappointed for the 75 who got clemency… just the 18,000 left behind.

White House, Clemency Recipient List (April 26, 2022)

USA Today, Biden pardons three felons, commutes sentences of 75 others, in first use of clemency powers (April 26, 2022)

CNN, Biden will commute or pardon sentences of 78 non-violent people. Here are a few to know (April 26, 2022)

The New York Times, Biden Uses Clemency Powers for the First Time (April 26, 2022)

Sentencing Law and Policy, Prez Biden finally uses his clemency pen to grant three pardons and 75 commutations (April 26, 2022)

Marijuana Moment, Biden’s first act of cannabis clemency (April 27, 2022)

Filter, Biden’s Clemency Announcement Falls Far Short (April 27, 2022)

– Thomas L. Root

POTUS Pot Pardons Possible, CRS Says – Update for November 9, 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.

COULD BIDEN USE BLANKET CLEMENCY ON POT OFFENDERS?

A Congressional Research Service report issued last week concluded that if President Joe Biden’s easiest path to fulfilling his goal of getting the federal government out of marijuana regulation business is to use his clemency power.

marijuana160818While the study concluded that Biden could not lawfully deschedule marijuana as a controlled substance, it nevertheless said the President has substantial control over how the law is enforced and may use his clemency authority at any time “after an offense is committed: before the pardon recipient is charged with a crime, after a charge but prior to conviction, or following conviction. The power is not limited to pardons for individual offenders: the President may also issue a general amnesty to a class of people.”

In addition, the Report notes, “the President could direct the Department of Justice to exercise its discretion not to prosecute some or all marijuana-related offenses. Although DOJ generally enjoys significant independence, particularly with respect to its handling of specific cases, the President has the authority to direct DOJ as part of his constitutional duty to ‘take Care that the Laws be faithfully executed’.”

The CRS is Congress’s public policy research institute, working primarily for members of Congress and their committees and staff on a nonpartisan basis.

Meanwhile, an article in Inquest last week observed that “there is deeply rooted legal precedent for presidents to use their authority to grant clemency to large classes of people. Presidents have deployed this authority to advance the public welfare, whether following a war or in response to unjust punishments, or simply to help heal a nation torn by crisis… Broad clemency has been issued by presidents George Washington, John Adams, James Madison, Abraham Lincoln, Theodore and Franklin Delano Roosevelt, Harry Truman, Lyndon B. Johnson, Gerald Ford, and Jimmy Carter.”

A lot of people are hoping to see this on the news...
A lot of people are hoping to see this on the news…

Noting that “the federal system… is the single largest incarcerator in the nation,” the article argued “ President Biden can lead by example, embracing categorical clemency as a tool to mitigate the system’s structural injustices… The president can act by issuing categorical clemency through a proclamation to a class of people based on two categories of eligibility: Personal characteristics or membership in a certain group, or shared circumstances. Such a proclamation should contain a presumption that all people who fit the criteria announced by the president will have their sentences commuted unless the DOJ can prove an articulable and current threat of violent harm.”

Of course, all of the foregoing supposes the President will use his clemency power at all. The Administration has thus far said not to expect pardons or commutations prior to late next year.

Congressional Research Service, Does the President Have the Power to Legalize Marijuana? (November 4, 2021)

Inquest, Mass Clemency (November 2, 2021)

– Thomas L. Root

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

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

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