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

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.”

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.

Trump’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.

Even 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

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…

A 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.

None 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.

(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.”

Trump’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

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…

President 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.

Amy 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.

Pam 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

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.

Trump 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.”

Trump’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

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?

President 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.

First, 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.”

What’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

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

‘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.

The 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?

Clemency 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