Tag Archives: commutation

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

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

PARDONS, COMMUTATIONS, SENTENCE REDUCTIONS…

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

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

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

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

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

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

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

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

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

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

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

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

– Thomas L. Root

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

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

TRUMP GRANTS CLEMENCY TO A FEW MORE… TOO FEW MORE

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

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

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

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

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

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

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

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

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

– Thomas L. Root

Time for the Turkey to Pardon People? – Update for November 28, 2018

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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.

TURKEYS PARDONED, NOW HOW ABOUT PEOPLE?

turkey181128President Trump “pardoned” two turkeys at the annual White House ceremony held last week, but told reporters afterwards that he hadn’t considered  giving any people clemency for Thanksgiving.

Speaking to reporters, Trump side-stepped a question about whether he would issue holiday pardons. “I love the pardons for the turkey,” Trump said. Asked if he would pardon any people, Trump said: “I haven’t thought of it — it’s not a bad thing.”

Behind bars, Trump has generated enormous hope for presidential clemency. Two weeks ago, he endorsed the FIRST STEP Act, after saying in October that “a lot of people” are jailed for “no reason” and that he was “actively looking” for inmates to release.

There are signs that the White House and the Dept. of Justice Office of Pardon Attorney are processing commutation requests from prisoners and pardon requests from already released inmates, making clemency advocates hopeful for near-term reprieves. Trump already has been more generous than recent predecessors early in his first term, issuing nine pardons and prison commutations. He hasn’t given any clemency grants in four months, however, in an apparent pause for the midterm elections.

Last week, New York University law professor and former federal prosecutor Mark Osler wrote that “the process used to choose which turkey might be pardoned is far more rational, efficient and effective than the one used to evaluate clemency for humans.

obtaining-clemencyFirst, he said, the pardons occur regularly, every year, not just in the last days of an administration. Second, decisions are made by objective specialists with the current chairman of the National Turkey Federation responsible for managing a thorough selection process. Third, there are defined criteria. The finalists are selected based on their willingness to be handled, their health and their natural good looks. Fourth, attention is paid to making sure they thrive after their grant of clemency. After the ceremony, they are sent to Virginia Tech’s “Gobbler’s Rest” exhibit, where they are well cared for.

By contrast, Osler said, the clemency process “is irregular, run largely by biased generalists, devoid of consistent, meaningful criteria, and it does little to ensure success of individuals after their release.”

Osler said the DOJ Pardon Attorney is part of the problem. The DOJ, “after all, is the entity that prosecutes these individuals in the first place. Within that office, staff members evaluate cases and provide a report to the pardon attorney, who decides on a recommendation after seeking out the opinion of the very US attorney’s office that prosecuted the case.

But then, instead of going to the President, the Pardon Attorney’s recommendation is routed to an aide to the deputy attorney general, who makes a recommendation to the DAG, the same DAG who is “the direct supervisor of and closely allied with the United States attorneys in the field, whose offices chose to pursue the challenged convictions and sentences in the first place.”

If the recommendation has survived this far, it goes to the White House, where some assistant to the White House counsel evaluates it and makes yet another recommendation to the boss. And, of course, that boss, who has many other duties, also has a conflict: “this time, the tendency to protect the President from risk, something that is inherent in any use of the pardon power.”

presidential_pardon_thanksgiving_tile_coasterWhat’s missing, Osler argued, is “all the things that make the turkey process work. It’s irregular, as inattention by any one of the numerous sequential evaluators stops the whole thing. And instead of objective specialists, we have decisions being made by the deputy attorney general, who is neither objective nor a specialist. The criteria are poorly articulated and currently issued by the stiflingly conflicted DOJ. And finally, there is little to no connection between the process and what comes after, as prison gives way to freedom.”

Osler suggested that the process be taken from DOJ altogether and be given to an independent clemency board, as most states do. “If we did that,” Osler claimed, “the clemency process would finally be at least as functional as the one that informs a silly holiday tradition.”

Washington Examiner, Trump pardons turkeys, says he hasn’t considered human clemency for Thanksgiving (Nov. 20, 2018)

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

– Thomas L. Root

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Not “What You Are,” But Rather “Who You Know” – Update for July 16, 2018

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‘A CELEBRITY GAME SHOW APPROACH’ TO CLEMENCY

President Trump beat feet out of Washington for Europe last Tuesday after nominating a new Supreme Court justice, pausing only long enough to pardon Dwight and Steven Hammond, the father-son Oregon ranchers convicted of arson after brush-clearing fires they set on their land burned a few acres of a federal wildlife preserve.

gameshow180716The ranchers, either notorious right-wing whack-jobs or afflicted small-businessmen (depending on your worldview), had already made enemies of the Federal Bureau of Land Management over cattle grazing issues. They got mandatory 5-year sentences, after prior shorter sentenced meted out by a Federal judge who thought the five-year bits “grossly disproportionate to the severity of the Hammonds’ offenses.” The U.S. Attorney, of course, appealed, and the 9th Circuit demanded the judge impose the mandatory minimums. The Hammonds’ case inspired a 40-day armed occupation of a federal wildlife refuge in 2016 protesting federal land ownership.

The Hammonds’ pardon raise the number of Trump clemency grants to nine, including Sheriff Joe Arpaio, deceased boxer Jack Johnson (supported by Sly Stallone), and Alice Johnson, whose commutation of a life sentence for drugs was championed by Kim Kardashian.

Last Thursday, The New York Times noted that

few constitutional powers lie so wholly at the whims of the president as the power to pardon. No details need to be worked out beforehand and no agency apparatus is needed to carry a pardon out. The president declares a person officially forgiven, and it is so. A layer of government lawyers has long worked behind the scenes, screening the hundreds of petitions each year, giving the process the appearance of objectivity and rigor. But technically — legally — this is unnecessary. A celebrity game show approach to mercy, doling the favor out to those with political allegiance or access to fame, is fully within the law.

Clemency seekers have been watching all of this. Having once put their hopes in the opaque Dept. of Justice pardon/commutation bureaucracy, the Times says, supplicants are now approaching their shot at absolution as if marketing a hot start-up: scanning their network of acquaintances for influence and gauging degrees of separation from celebrity. What’s the best way to get a letter to someone close to Trump?

clemencypitch180716Clemency petitions go through the DOJ Office of Pardon Attorney, a system set up more than a hundred years ago to lessen the risks and hassles of leaving an entire nation’s pleas for compassion to one person. For decades, the process worked smoothly, and hundreds of clemency grants were issued each year. President Dwight D. Eisenhower alone granted over 1,000 pardons.

But starting about 40 years ago, “the prosecutors really got a hold of the process,” said Margaret Colgate Love, Pardon Attorney from 1990 to 1997. “They became increasingly hostile to the pardon power.” And as laws have grown harsher, the number of pardons has dwindled significantly. “It is so secretive and the standards are so subjective,” Ms. Love said. “They operate like a lottery. Except a lottery is fair.”

It is not all bad that Trump’s new system is going around DOJ. But for those without a famous sponsor, it is still as daunting as ever.

The Hill, Trump pardons Oregon ranchers at center of 40-day standoff (July 10, 2018)

The New York Times, Pardon Seekers Have a New Strategy in the Trump Era: ‘It’s Who You Know’ (July 12, 2018)

– Thomas L. Root

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Pardon Rumors Abound… – Update for June 20, 2018

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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.

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TRUMP HAS A LITTLE LIST

list180620For all of us who are Gilbert & Sullivan fans (and counting me, there may be two of us), all of the current buzz about President Trump’s current list of 3,000 people he says he’s reviewing for pardons or commutations is reminiscent of the Mikado, in which the Lord High Executioner explains that he’s “got a little list.” But where Gilbert & Sullivan’s “little list” was of “people who would not be missed,” the President’s list is of people who are being missed.

After we reported last week on Trump’s commutation of Alice Johnson’s federal sentence, we got a number of inmate emails asking for the President’s address (which is 1600 Pennsylvania Avenue N.W., Washington, D.C. 20500). Almost as many people asked about the list itself, and how they could get on it. A few asked me to get them on the list (oh, if only I had anywhere near that kind of power).

But there is a “little list,” and rumors abound that the President will be using it soon. One person who recently spoke with Trump advisor and son-in-law Jared Kushner told the pop culture and fashion magazine Vanity Fair last week (you never know where you’re going to find interesting material these days) that Kushner is gearing up for a big pardon push. The source said Kim Kardashian gave Kushner a list of people to pardon, some of whom are hip-hop artists. “They’re going to be pardoning a lot of people — pardons that even Obama wouldn’t do,” the person said.

clemency170206The magazine also reported on the budding relationship between Kushner and CNN host and criminal-justice reform advocate Van Jones. Jones, who is as politically to the left as Kushner is to the right, told the magazine, “Jared and I have 99 problems but prison ain’t one. I’ve found him to be effective, straightforward, and dogged.”

The Washington Examiner reported last week that Kushner and White House counsel Don McGahn met with a right-leaning policy advocate who handed them lists of dozens of inmates serving long sentences, according to a person involved in the discussions. McGahn reportedly reacted favorably to the case of Chris Young, a 30-year-old Tennesseean doing life since age 22 for a drug conspiracy. Young’s sentencing judge called the sentence “way out of whack” but said he had no choice. Young’s name was supplied to the advocate by his attorney Brittany Barnett, who also represented Alice Johnson. Dozens of other names were supplied by the CAN-DO Foundation, which championed Johnson, and FAMM.

eligible180523Topping a list of 20 marijuana inmates assembled by CAN-DO were Michael Pelletier and John Knock, who are doing life for pot smuggling and who unsuccessfully requested clemency from President Obama. Another list of 17 women and six men prepared by CAN-DO was topped by Michelle West (drug conspiracy) and Connie Farris (mail fraud).

The Examiner said it is unclear if other advocates have come to the White House as part of Trump’s “unconventional early-term approach to clemency that until now has relied heavily on the recommendations of celebrities and political allies.” One advocate who brought lists to the White House received the impression that officials may be considering setting up an internal clemency commission to circumvent or supplement the work of the Justice Department’s Office of the Pardon Attorney.

Jones told Vanity Fair that Trump liked the positive media coverage that followed his pardon of Alice Johnson. “Trump was pleasantly surprised,” Jones said. “I hope the president feels encouraged to do more.”

injustice180620Longtime Harvard law professor Alan Dershowitz, who has consulted with the President on two pardons and one commutation thus far, told the Examiner recently that with Trump, “you have to appeal to his sense of injustice. He feels he is now being subject to injustice, and so he’s very sensitive to injustices. I think if you write a letter to the president and you set down the case in a compassionate way, I think his staff knows that he’s looking for cases of injustice. This president may want to go down in history as somebody who has given pardons in places where other presidents would not have done it.”

Margaret Colgate Love, who served as DOJ Pardon Attorney from 1990-1997, wrote recently in the Washington Post:

There is nothing surprising or necessarily alarming about Trump’s embrace of this broad executive power — even if it has been unconventional. His grants to date, at least as he explains them, represent a classic and justifiable use of the pardon power to draw attention to injustice and inefficiency in the law. While many may disagree with the president’s choices, each of them speaks to some widely acknowledged dysfunction in the criminal-justice system…

In sum, Trump’s grants to date send a message that business as usual in the criminal-justice system will not be tolerated. That is how the pardon power was designed to work by the framers of the Constitution.

Nevertheless, Attorney Love is concerned that Trump appears to be relying exclusively on random, unofficial sources of information and advice (who would have ever expected him to do that?) “to select the lucky beneficiaries of his official mercy.” She believes that  “this makes a mockery of the pardon power’s historical operation as part of the justice system,” and suggests instead that what is needed is a new, reliable and fair system for vetting pardon and commutation requests. And not DOJ, either, which she says has a  “culture and mission… that have become irreconcilably hostile to pardon’s beneficent purposes and to its regular use by the president. That agency’s failed stewardship of the power is aggravated in Trump’s case by the same sort of dysfunctional relationship with his attorney general that Clinton had with his.”

Vanity Fair, “He Hate, Hate, Hates It”: Sessions Fumes as Kushner Gets Pardon Fever (June 13, 2018)

Washington Examiner, Trump asks for clemency names and lists promptly arrive at White House (June 11, 2018)

Washington Post, Trump’s pardons really aren’t out of the ordinary (June 8, 2018)

– Thomas L. Root

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Pardon me, Mr. President: Enthusiasm Waxes After Johnson Commutation – Update for June 11, 2018

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TRUMP SAYS HE’S CONSIDERING CLEMENCY FROM LIST OF 3,000 PEOPLE

pardon160321In the wake of widespread approval for President Trump’s commutation last Thursday of federal inmate Alice Johnson’s drug conspiracy life sentence, the President said that he was considering other pardons drawn from a list of 3,000 names.

The president was praised for granting clemency to the 63-year old grandmother, who had already served 21 years. Her case was championed by reality TV celebrity Kim Kardashian West, who met with Mr. Trump a week ago to urge grant of commutation to the Memphis woman.

Trump did not say whether he was only considering pardons or was looking at commutations as well, but he seems to be willing to use his clemency power to either pardon outright or just to commute sentences. Without explaining the origin of the list of 3,000, the President said, “Many of those names really have been treated unfairly.”

Trump also asked NFL players to suggest people worthy of clemency, an apparent attempt to end his battle with the NFL over players kneeling during the National Anthem to protest social injustice. “If the players, if the athletes have friends of theirs or people they know about that have been unfairly treated by the system, let me know,” Trump said.

clemencyjack161229There is some irony in Trump reviewing the cases of 3,000 federal inmates incarcerated for drug offenses, given his criticism of President Obama for doing the same thing, and Trump’s permitting Attorney General Jefferson Beauregard Sessions III to rescind Obama-era charging policies for nonviolent drug offenders.

The DOJ pardon office has a reputation for slow decision-making. Only 26% of the backlog of 11,200 pardon and commutation cases were filed since Trump became president. Trump has thus far denied 180 pardon and sentence-reduction applications, but that was before Trump realized that exercising his clemency power without DOJ input could be such fun.

FAMM president Kevin Ring and Ohio State University law professor Doug Berman expressed concern last week that there may be “enormous excitement among inmates,” given Trump’s clemency record to date.  Berman pointed out that Trump has only commuted two sentences so far, “and I have no reason to believe he has plans to start issuing dozens (let along hundreds) of additional commutations anytime soon.  Political realities have seemed to be influencing all of Prez Trump’s clemency work to date, and precious few federal prisoner have political forces in their favor.” While Berman hopes Trump will pleasantly surprise people, he says, “hopes ought to be tempered for now.”

trumpbird180611One commentator suggested that perhaps Trump can be talked into backing the Sentencing Reform and Corrections Act, (S.1917), which includes a retroactive rollback of some mandatory-minimum sentences, if he realizes how much it will annoy Sessions, whom he reportedly has wanted to fire. Sessions, of course, is the loudest and most vitriolic opponent of the SRCA. Just last Thursday, Trump announced his support for a Senate bill that would limit Sessions’ DOJ from bringing marijuana enforcement actions in states where it is legal, an announcement Buzzfeed described as a real “F— You” to Sessions

The New York Times, Trump Says He’s Considering a Pardon for Muhammad Ali (June 8, 2018)

The Hill, Trump says he is considering pardon for Muhammad Ali (June 8, 2018)

Business Insider, Trump’s commutation of a 63-year-old grandmother’s sentence is an example of where his disregard for institutions pays off (June 7, 2018)

The New York Times, Pardon System Needs Fixing, Advocates Say, but They Cringe at Trump’s Approach (June 1, 2018) 

– Thomas L. Root

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No Action on Sentence Reform… and None Likely – Update for January 25, 2017

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YOU’LL GET NOTHING AND LIKE IT

The 115th Congress has been in session for about three weeks now. The incoming Trump Administration has kept it busy, but not on criminal justice reform.


nothing170125A session of Congress is two years long, meaning that the 115th will run until December 2018. Both Houses of Congress are controlled by Republicans, although the Party’s 52-48 hold on the Senate is slight.

Under the law, each Congress starts fresh. That means that all of the bills pending last year – including the Sentencing Reform and Corrections Act – are gone. Congress will be starting over fresh – bills will have to be reintroduced and go through all the normal steps before they can become law. To become law, the measures must be approved by the Judiciary Committee of each chamber, and then passed by the full U.S. House and U.S. Senate, and signed by the president.

So far, there’s been a whole lot of nothing on criminal justice. With over 600 House and 180 Senate bills introduced, none addresses sentencing reform.

But will there be? Sen. Jeff Sessions (R-Alabama), now in line to be Attorney General when the Senate votes on it after Jan. 31, previously called Obama’s commutations an “unprecedented” and “reckless” abuse of executive power. President Trump, before he was inaugurated, complained that the prisoners whose sentences were being commuted were “bad dudes.”

Like Trump, Sessions conflates drug offenders with violent criminals. He argues that “drug trafficking can in no way be considered a ‘non-violent’ crime,” even when it does not involve violence.

What happened in Saginaw, Michigan, earlier this week does nothing to convince Sen. Sessions that he’s over-reacting. Demarlon C. Thomas, a former member of Saginaw’s Sunny Side Gang who had his 19-year prison sentence commuted to 10 years by Obama last fall, was shot to death in what appears to have been an execution. Two rifle-wielding gunmen broke into the halfway house, and while one assailant held 23 halfway house residents at gunpoint, the other sought out Thomas and shot him five times.

callahan160208This kind of graphic shooting, like Wendell Callahan’s murder spree in Columbus a year ago, provide grist for those – like Sessions and Trump – “who reject a central point of agreement underlying bipartisan support for sentencing reform: that there is an important distinction between violent criminals and offenders who engage in peaceful activities arbitrarily proscribed by Congress,” as Reason put it. Although Sessions was a supporter of the Fair Sentencing Act of 2010 – which, ironically enough, was legislative inducement for the sentence reduction that put Wendell Callahan on the street – he opposed last year’s Sentencing Reform and Corrections Act, a bill that would have made the shorter crack sentences that the FSA approved in 2010 retroactive, reduced other drug penalties, tightened the standards for mandatory minimum enhancements for guns and career crime, and broadened the criteria for the “safety valve” that lets some drug offenders escape mandatory minimums.

So Congress has yet to propose any bipartisan sentencing reform. Given Trump’s pledge to stop the carnage, as well as the untimely demise of the recently commuted Mr. Thomas, expect nothing.

Gov Track (Jan. 22, 2017)

Reason.com, In Sentencing, Tough Is Not Necessarily Smart (Jan. 25, 2017)

The Saginaw News, Ex-gang member ‘executed’ after Obama commutes sentence (Jan. 24, 2017)

– Thomas L. Root

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Parsimony is the Takeaway from Obama’s Clemency Initiative – Update for January 23, 2017

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COMMUTATIONS – THE FINAL NUMBERS

The clemency frenzy is over, Obama’s gone, and the final numbers are in. Mostly, they’re as depressing as they are confusing.

First, the depressing: Over his 8 years in office, Obama granted 1,715 commutations while denying 19,357 petitions, for a grant rate of 8.1%. This means he denied 92 of every 100 petitions he saw

226ASP6179944780Second, the confusing: Clemency Project 2014, the volunteer lawyers who screened the clemency petitions for Dept. of Justice, said last Friday that over its two year run, it “completed screening of the more than 36,000 federal prisoners who requested volunteer assistance.” The Clemency Project was entitled to withhold volunteer assistance from people it deemed not qualified – which is said was an “overwhelming majority” of the requests it received – but it was not entitled to deny the applications. Only the White House could do that.

So where did the rest of those applications go? In the final hours of Obama’s presidency, the DOJ Office of Pardon Attorney said it reviewed every drug-related petition filed prior to August 31, 2016. However, there appear to be a lot of clemency petitions that were left stranded last Friday when Obama flew out of town. DOJ said 3,469 drug-related petitions filed after last August remain on file, as well as 4,412 petitions from federal inmates imprisoned for offenses other than drugs.

We have heard from a number of inmates who say their drug-related clemency petitions were filed before the August deadline – even some recommended by the Clemency Project – who have been neither granted nor denied. We have no official verification that this is so, but likewise we have no basis for disbelieving the reports we have received.

Yesterday, one inmate at a federal low-security prison in Texas said, “there are over 40 plus inmates here (along with me) that never heard a thing about our clemency. Most of us submitted it well before September (11 of them back in March) of last year. All of them but me is a drug offender.”

DOJ says, “Consistent with historic practice, these remaining petitions will be processed by the Office of the Pardon Attorney and addressed by future Administrations.”

It is also puzzling that only 66% of the 2,600 petitions recommended by the Clemency Project were granted.

“I think Obama tried to use the existing structure to do something that really hadn’t been done before, and it think the structure just struggled,” said New York University law professor Rachel Barkow, who is on the U.S. Sentencing Commission. “There’s not enough people to deal with it, there was too much bureaucracy and it shouldn’t be in the DOJ. It’s asking too much to ask prosecutors to rethink what they already did.”

The Clemency Project 2014, a cooperative effort of the American Bar Association and National Association of Criminal Defense Lawyers, recruited and trained about 4,000 volunteer lawyers from diverse practice backgrounds.

awesome170123The Obama Administration was full of itself praising its record of 92 denials for every 8 grants. Deputy Attorney General Sally Q. Yates said, “With 1,715 commutations in total, this undertaking was as enormous as it was unprecedented, and I am incredibly grateful to the teams of people who devoted their time and energy to the project since its inception. By restoring proportionality to unnecessarily long drug sentences, this Administration has made a lasting impact on our criminal justice system.”

Julie Stewart, who chairs Families Against Mandatory Minimums, was more realistic. She praised the clemency grants for the ones who got one, but said, “my heart aches for those who will not make the cut. After over two years of believing they may have a chance for freedom, they now see that door of hope closing. I can’t imagine what the pall in the prisons will feel like on January 20 when President Obama leaves office.”

DOJ Office of Pardon Attorney, Overview Of DOJ’s Clemency Initiative (Jan. 19, 2017)

ProPublica, Obama Picks Up the Pace on Commutations, But Pardon Changes Still in Limbo (Jan. 5, 2017)

Clemency Project 2014, President Obama Caps Final Full Day in Office with 330 More Commutations (Jan. 20, 2017)

DOJ, Deputy Attorney General Sally Q. Yates Statement on the Clemency Initiative (Jan. 19, 2017)

Washington Post, Obama grants final 330 commutations to nonviolent drug offenders (Jan. 20, 2017)

– Thomas L. Root

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DOJ Completes Processing 16,000+ Clemency Requests – Update for January 17, 2017

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WASHINGTON POST REPORTS JUSTICE HAS SENT FINAL COMMUTATION LIST TO PRESIDENT; “HUNDREDS MORE” TO GET CLEMENCY

pardon160321President Obama promised to commute up to 2,000 drug sentences. He has about 75 hours left to come up with the final 850 he needs.

The Washington Post reported yesterday afternoon that Justice Department officials have completed their review of more than 16,000 clemency petitions filed by federal prisoners over the past two years and sent their last recommendations to Obama. The President is reportedly set to grant “hundreds” more commutations to drug offenders during his final days in office, but apparently not the grand categorical gesture than some have urged him to approve.

The national discourse on commutations – which had mostly focused on drug defendants – changed dramatically last Wednesday when NBC News reported Army Private Bradley Manning – who released a trove of U.S. secrets to Wikileaks, leading to an espionage conviction in 2013 – is on Obama’s “short list” for a sentence commutation. Manning, who reportedly suffers from gender dysphoria, got a 35-year sentence, but is eligible for parole in three more years.

hugs170117The media have been speculating about a Manning commutation for months. Last Friday, White House press secretary Josh Earnest, answered a media question about Manning and Edward Snowden (who stole thousands of secrets from the government and fled to hide in Russia). “So, I think the situation of these two individuals is quite different,” Earnest suggested. “I can’t speculate at this point about to what degree that will have an impact on the President’s consideration of clemency requests. I know that there’s a temptation because the crimes were relatively similar to lump the cases together, but there are some important differences, including the scale of the crimes that were committed and the consequences of their crimes.”

Earnest suggested Obama may be willing to offer Manning relief because – unlike Snowdon – Manning took responsibility for his actions in court. It also implies that Obama is willing to commute Manning’s sentence, an act that will be enormously unpopular with a lot of people. Obama’s willingness to do so increases the likelihood he will “go long” on the final commutations to BOP prisoners.

While the media was atwitter about Manning, DOJ was burining the midnight oil to slog through thousands of remaining clemency applications from less-known federal drug offenders. “We were in overdrive,” Deputy Attorney General Sally Q. Yates said. “We were determined to live up to our commitment. It was 24-7 over the Christmas break.”

With 11 days to go, burning the midnight oil...
      Burning the midnight oil at Justice…

At the end of last August, Yates promised DOJ would review every petition from a drug offender that was still in the department’s possession at that time — about 6,195 at that time. The DOJ did that, and even included several hundred petitions received through September 15, after her cutoff date, as well as petition from people with life sentences filed as late as November 30. The final count of petitions reviewed was 16,776.

The urgency arises from the generally-accepted perception that President-elect Donald Trump will dismantle Obama’s clemency initiative, which has resulted in commutation of sentence for 1,176 drug thus far. More than 400 were serving life sentences.

Yates said Obama will grant “a significant” number of commutations this week, but would not specify a number. The Post quoted several people close to the process as saying it will be several hundred. Perhaps in preparation for the announcement this week, last Friday the White House issued with its usual stealth a list of 804 clemency denials, which could be a final cleanup before the major commutation announcement this week.

Ohio State University law professor Douglas Berman wrote last night that DOJ and Obama deserve credit for “ultimately making clemency an 11th hour priority. But given that Prez Obama set of modern record for fewest clemencies during his first term in office, and especially because he leaves in place the same troublesome clemency process that has contributed to problems in the past, I will still look at Obama’s tenure largely as an opportunity missed.”

Shadowproof, White House justifies Chelsea Manning’s possible commutation (Jan. 13, 2017)

Washington Post, Obama to commute hundreds of federal drug sentences in final grants of clemency (Jan. 16, 2017)

Sentencing Law and Policy, After reviewing tens of thousands of requests, Obama Administration reportedly finds a few hundred more prisoners worthy of clemency (Jan. 16, 2017)

– Thomas L. Root

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Is There Big Clemency News Coming? – Update for January 9, 2017

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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.

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CLEMENCY: SOMETHING’S HAPPENIN’ HERE

We’re down to 11 more days of President Obama to finish whatever he has planned on commutation of sentences, and we’re hearing a couple of things to suggest that something big is about to happen.

whatsgoingon170109A few weeks ago, we heard that the Obama Administration had asked the Dept. of Justice for an opinion as to whether Obama could commute sentences without naming individual names, more of a blanket commutation for those who met certain criteria on their sentences, prison conduct and the like. The rumor was second-hand, but we did confirm that the source was likely in a position to be aware of the information he was quoted as passing along.

We don’t know what advice the DOJ provided on the subject (or even if it did), but the question tantalizingly suggests White House interest in a large-scale across-the-board commutation.

Then last Thursday, we learned from a Clemency Project 2014 lawyer that one of the cases we had been working on with her – a guy who had been rejected for clemency by the Project last summer – had been reconsidered. The Project needed a formal application worked up and filed with the Pardon Attorney promptly. We made the Friday midnight deadline, and we were interested at the sudden flurry of interest and demand for an immediate filing.

We think something’s up.

The media still include the predictable skeptics – including the incoming Attorney General – criticizing the Obama clemency push. Jeffrey Sessions, a former U.S. attorney whom Trump has tapped to be the next AG, complains that “so-called ‘low-level, non-violent’ offenders” do not exist in the federal prison system. Other complain that with a recidivism rate of 75%, three out of four people getting commutations will commit new crimes. 

Another critic argued that with the commutations, “Obama has effectively undermined the justice systems of the states and… puts Americans’ lives and property at risk.”  (This, of course, is nonsense: Obama cannot pardon state inmates, only federal ones).

pardon160321But beyond the naysayers’ cants, report are increasingly speculating about clemencies to come. In a piece about commuting the sentencing of Obama’s old friend and Illinois governor Rod Blagojevich, Obama himself suggested that he planned to do more: “I study these cases on an individual basis. As you know, I have exercised my commutation powers very aggressively to make sure that we are not over sentencing people, particularly low-level drug crimes. Some of these higher-profiler cases, we’ll see what gets to my desk.”

P.S. Ruckman, a political science professor at Northern Illinois University and author of the PardonPower blog – which tracks clemency decisions by presidents and state governors – said he expects “commutations to a few hundred more drug offenders, and a handful of pardons,” mostly in drug cases, before Obama leaves office.” Douglas Berman, an Ohio State University law professor and sentencing expert, speculated that because Obama’s “shown a commitment to reduce sentences that he thinks are unjust or excessive, maybe his last few batches will include some high-profile folks.”

With 11 days to go, burning the midnight oil...
With 11 days to go, burning the midnight oil…

Margaret Colgate Love, the Pardon Attorney under President George W. Bush, told Slate magazine that the Obama administration has “already had perhaps the most prolific final year of any president. But that’s only when measured against his fairly barren first seven years. His administration has pledged to act on every one of the thousands of commutation applications filed pursuant to the 2014 initiative, which means that there will either be thousands of grants or thousands of denials in the final weeks. Either way, he will be subject to criticism—and the pardon power itself may be the main casualty.”

Slate, The George W. Bush Advice Obama Should Have Taken (Jan. 5, 2017)

Chicago Sun-Times, Patti Blagojevich on Obama commutation hope: ‘He didn’t say no’ (Jan. 6, 2017)

The Lens, Obama commutes sentences of hundreds of cocaine dealers who targeted kids (Jan. 4, 2017)

The Hill, Last gasps of Obama’s imperial presidency (Jan. 5, 2017)

San Francisco Chronicle, Prominent prisoners’ supporters pin pardon hopes on Obama (Jan. 7, 2017)

 –Thomas L. Root

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