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“Pardon Me” Is a Request, Not an Apology, at the White House – Update for December 29, 2020

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

IT’S WHO YOU KNOW…

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

– Thomas L. Root

Will Inmates Get on Board the Trump Pardon Train? – Update for December 17, 2020

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

TRUMP REPORTEDLY MULLING PARDON FRENZY

trumptrain201218Since President Trump won the election in a landslide… er, make that “lost the election,” six weeks ago, requests for clemency have been flooding the White House from people looking to benefit from the presidential pardon power. CNN reported on Wednesday that the Administration staff have been “so inundated with requests for pardons or commutations that a spreadsheet has been created to keep track of the requests directed to Trump’s close aides.”

Trump is reportedly eager to engage on the subject – unlike his lack of interest in doing anything else, some report – and has been both reviewing case summaries  and soliciting advice from his network of associates about whom he should pardon. CNN said, “Unlike practically any other matter related to the end of his presidency, his clemency powers are a topic Trump actually seems to enjoy discussing, one person in communication with the President said, even though it amounts to another tacit reminder that his tenure at the White House is nearly over.”

Trump is reportedly considering or being asked to pardon Edward Snowden, Joe Exotic, Ross Ulbrecht, Duncan Hunter and even his own organization’s chief financial officer. The New York Times reported that Rudy Gulliani has discussed a pardon for himself with the President, a report Gulliani vehemently denies. Other reports predict pardons for Trump’s family.

pardonme190123Meanwhile, judging from my own email on the subject, large numbers of federal inmates – whose clemency requests have languished in line with the 13,000 others at the Department of Justice Pardon Attorney’s office – are sending copies of their petitions directly to the White House, in a desperate bid to jump on board the Clemency Express. If there is an Express to begin with.

Axios reported last week that President Trump isn’t just accepting pardon requests “but blindly discussing them ‘like Christmas gifts’ to people who haven’t even asked, sources with direct knowledge of the conversations” have said. Trump reportedly told “one adviser he was going to pardon ‘every person who ever talked to me,’ suggesting an even larger pardon blitz to come.”

Axios said the president “been soliciting recipients, asking friends and advisers who they think he should pardon.” White House attorneys are said to be “working through a more traditional process, even if it doesn’t cover every person Trump has discussed, a source familiar with the process said.”

“We’ve been flooded with requests,” said a senior White House official, who admitted a lot of the appeals have been nakedly political and partisan, as is expected at the end of a presidency.

90-150cm-Trump-2020-Flag-Double-Sided-Printed-Donald-Trump-Flag-Keep-America-Great-Donald-for

One Trump supporter lobbying on behalf of a prisoner said he realizes that Trump has his hands full and may not be receptive to this or other cases. “I’m a little worried that it might get crowded out,” he conceded.

The Daily Beast said, “It is unclear how much the outgoing president will end up delivering on these kinds of commutations and pardons, in large part because Trump is still consumed by pet grievances and his hopeless Rudy Giuliani-led legal effort to nullify Biden’s 2020 win.”

Walter Pavlo, writing in Forbes, put Trump’s wielding of the pardon power in perspective:

Pardons are all the rage these days but the system has been broken for years. President Trump, even if he pardons everyone in his administration, is still way behind other presidents who exercised their broad but constitutional power to pardon someone of a federal crime. Here are the facts, Trump has granted clemency/pardons to 44 people during the past four years… compare that to his predecessors;

Barack Obama: 1,927

George W. Bush:  200

Bill Clinton:  459

clemency170206Pavlo notes that “What is most interesting about Trump’s pardons/clemencies are that they are highly political and they are motivated by emotion to right something that he views as a personal wrong that has been done.”  

This suggests, sadly, that Ivan Inmate – unknown except to his family, the Bureau of Prisons and the court that sentenced him – can expect no more consideration from the White House than he’s gotten so far from the Pardon Attorney.

CNN, ‘It’s turned crazy’: Inside the scramble for Trump pardons (December 16, 2020)

Axios, Trump plots mass pardons, even to people not asking (December 8, 2020)

Daily Beast, Inside the Frantic Push to Get Trump to Pardon… Everyone (December 6, 2020)

Forbes, Trump And Pardons … Here’s A Case That Might Interest Him (December 11, 2020)

– Thomas L. Root

Clemency Stampede On the Horizon? – Update for November 30, 2020

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

FLYNN PARDON SETS OFF CLEMENCY SPECULATION

Just as predicted, President Trump pardoned turkeys Corn and Cob last Tuesday. But the act may have whetted the President’s appetite for something besides Big Macs, because the day after pardoning the turkey, Trump pardoned Michael T. Flynn, his first national security adviser.

innocent161024Flynn, you may recall, has been seeking to have the case against him dismissed after twice pleading guilty to lying to the FBI.  Much of the media (and opposing politicians) have responded with howls of indignation, believing that he must have pled guilty because he knew he was guilty. Those of us familiar with the federal criminal system, of course, know better: a plea of guilty is irrelevant to actual guilt: instead, it’s just a white flag waved at an enemy force of superior strength, hoping that negotiated surrender is better than being overrun and massacred.

But that’s a discussion for another day. The Flynn pardon was followed by a New York Times report that the White House is weighing a number of pardons and commutations for Trump to issue in his final weeks in office. The consideration is prompting jockeying by a range of clemency seekers and their representatives. Besides the usual cast of people connected to Trump and his campaign, several groups that have previously pushed for criminal justice reform are working with an ad hoc White House team under the direction of presidential advisor and son-in-law Jared Kushner, which has what the Times called a goal of announcing as many as hundreds of commutations for federal prisoners.

“Lists of people are being circulated,” federal post-conviction attorney Brandon Sample told The Times. In addition to a number of Trump associates who may benefit from clemency, Trump is said to be focused on ways to use clemency to further burnish his criminal justice reform credentials, which were made when he supported passage of the First Step Act. The Times said, “A blitz of late pardons or commutations for federal crimes — over which presidents have unchecked power — is seen by some criminal justice reform activists as another way to build his record on that issue.”

exotic201130Kodak Black, a rapper doing time on a § 922(g) felon-in-possession-of-a-gun conviction, publicly announced he would donate $1 million to charity if Trump granted him clemency, Another celebrity inmate,  Joseph Allen Maldonado-Passage (that’s “Joe Exotic” to you) – convicted in 2019 on two counts of murder-for-hire for plotting to kill his nemesis and Big Cat Rescue owner Carole Baskin, as well as eight counts of falsifying wildlife records and nine counts of violating the Endangered Species Act – has had representatives lobbying the White House for a pardon since last April. Trying to beat a 22-year sentence, Joe reportedly had his people stay in a Trump hotel, dropping $10,000 in an attempt to get the President’s attention. A group of celebrities, Republican officials and civil rights advocates sent a letter to President Trump last Wednesday, urging him to pardon or commute the sentences of people in federal prison for nonviolent federal marijuana offenses.

The New York Post said last week that the President’s “allies see the final two-month stretch of Trump’s term as an opportunity to cement his first-term legacy before handing over the reins to Biden, who authored some of the most punitive drug laws.”

Physical lists of convicts seeking commutations and pardons have swirled in the West Wing since June 2018, the Post said, when Trump freed Alice Johnson from a federal drug conspiracy sentence at the request of Kim Kardashian. Johnson spoke at this year’s Republican National Convention and traveled with Trump to the first presidential debate.

crazynumbers200519Trump often speaks proudly of freeing Johnson and turned to her for recommendations. During this year’s campaign, Trump pledged minority voters a new clemency commission if he won re-election. Yet, with over 13,000 clemency applications on file, Trump has used his clemency power less often than any president in modern history, according to data from the Dept of Justice. Trump’s sparse use of pardons, commutations and other forms of official leniency stands in sharp contrast to his predecessor, Barack Obama, who used the clemency power more frequently than any chief executive since Harry Truman.

As of Nov. 23, Trump had granted clemency 44 times, including 28 pardons and 16 commutations. That’s the lowest total of any president since at William McKinley, who was elected in 1897. Obama granted clemency 1,927 times during his eight-year tenure, including 212 pardons and 1,715 commutations. The only modern president who granted clemency almost as infrequently as Trump is George H.W. Bush, who granted 77 pardons and commutations in his single term.

Politico, Trump pardons Corn the turkey as a finishing White House act (November 24, 2020)

The New York Times, Trump’s Pardon of Flynn Signals Prospect of a Wave in His Final Weeks in Office (November 25, 2020)

Marijuana Moment, Republican Lawmakers And Celebrities Push Trump To Free Marijuana Prisoners Before Leaving Office
(November 25, 2020)

New York Post, Turkeys, Corn and Cob, expected to be first in slew of final Trump pardons (November 24, 2020)

Pew Research Center, So far, Trump has granted clemency less frequently than any president in modern history (November 24, 2020)

– Thomas L. Root

Turkey Gobbles Up Trump’s Last Pardon? – Update for November 25, 2020

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

TRUMP ISSUED NEW PARDON YESTERDAY… OF A TURKEY

Thanksgiving week is the traditional time for the President of the United States to “pardon” a turkey or two… and this week was no exception. Yesterday, President Trump – absent any appreciation for irony of having ordered five executions before he leaves office in two months – pardoned turkeys Corn and Cob. “We hope — and we know it’s going to happen — that Corn and Cob have a very long, happy and memorable life,” Trump said.

pardonturkey201125

Politico noted that “turkeys pardoned at the White House are bred for slaughter and are often too unhealthy to support long lifespans. Most die a few months after getting pardoned.” They will still outlive five federal inmates, including one woman, scheduled to be executed by lethal injection at the US Penitentiary in Terre Haute over the next 60 days. It is irregular for an administration to execute prisoners during its lame-duck period, rather than to let the incoming administration make its own decisions on the matter.

The Presidential pardon-fest every Thanksgiving Week has its owen rituals. “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,” law professor and pardon expert Mark Osler complained last year.

We still get requests from people on where to find clemency applications and questions about how to write them. To be blunt, pardon and commutation petitions make sense only if an inmate has exhausted all other avenues for relief and has plenty of extra postage to waste.

That sentiment is shared by Osler and New York University law professor Rachel Barkow, a former Sentencing Commission member. Last week, they wrote about how, for all of the talk Trump’s 44 commutations issued in the past four years have caused, he “has exercised this presidential power rarely.” All but five of his grants were to people connected to him politically or championed by celebrities. Indeed, Trump’s early grant of a pardon to Arizona sheriff Joe Arpaio energized Trump’s political opponents in Arizona and may have cost him enough voters to lose the state.

presidential_pardon_thanksgiving_tile_coasterTrump used a Super Bowl ad to highlight his grant of clemency to Alice Marie Johnson, whose case was pushed on him by Kim Kardashian. Earlier this year, he fully pardoned her — and she was a featured speaker at the Republican National Convention. Barkow and Osler wrote, “Treating clemency as made-for-TV fodder, and plucking out a few cases that the campaign hoped had compelling narratives, is disappointing. More than 13,000 petitions are moldering in the bureaucratic maze of the clemency process, even as covid-19 ravages U.S. prison populations.”

The authors worry that “people will focus on Trump’s inappropriate grants and conclude that the clemency power needs to be limited — instead of focusing on the many people still waiting for a decision. This raises two issues: Any legislation to limit the clemency power is likely to be found unconstitutional. This approach also gets the problem backward: Clemency must be expanded, not limited, because there are so many people serving disproportionately long federal sentences who have no hope for relief other than presidential clemency.”

clemency170206Biden’s major competitors in the primaries all endorsed the idea of taking clemency out of the hopelessly conflicted Justice Department and establishing a bipartisan board. That proposal was included in the Democratic Party platform. It must be implemented — and soon. The overstuffed clemency pipeline is about to burst.”

Last week, the Prison Policy Initiative urged President-elect Biden to “use the president’s clemency power to release people convicted of nonviolent drug crimes. A President Biden,” the Initiative wrote, “willing to use clemency in a broad, sweeping manner could significantly reduce the federal prison population — without needing to consult Congress. But if President-elect Biden spends too much time reviewing clemency applications to avoid all possible risk, it’s unlikely that he will make a big impact.”

Politico, Trump pardons Corn the turkey as a finishing White House act (November 25)

Washington Post, Trump abused the clemency power. Will Biden reform it? (November 16)

Prison Policy Initiative, The promise — and peril — of Biden’s criminal justice reform platform (November 13)

– Thomas L. Root

Difference Between the President and a Goldfish – Update for July 30, 2020

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

Today, it’s pretty much just comment.

LIST OF ALL THE PEOPLE GETTING CLEMENCY FROM TRUMP DURING COVID-19

stone2007311.  Roger Stone.
2.  Roger Stone.
3.  Roger Stone.
4.  Roger Stone.
5. Roger Stone.

Did I forget anyone?

As Trump enters the final six months of his first term (and only term, if the combined polls and mood of the electorate is any indication), you can add clemency to the list of Trump accomplishments, along with the border wall, balancing the budget and taking on China. Remember the 3,000 names? The NFL players being asked to submit clemency candidates? The elderly nonviolent prisoners in risk of COVID-19? The turkey? (Not the last one – the turkey got pardoned).

Maybe the President simply lacks a sufficient attention span to get anything done.  Perhaps we should elect a goldfish.

goldfish200731Ohio State law professor Doug Berman lamented in his Sentencing Law and Policy blog last week that “I am not really surprised that Prez Trump has entirely failed to deliver on his promise back in March to look at freeing elderly “totally nonviolent” offenders from federal prisons amid the pandemic. But I figure now is as good a time as any to highlight again that Prez Trump could and should, via just a stroke of a pen, bring clemency relief to the many, many federal prisoners who, like Roger Stone, are older, medically vulnerable and present no clear risk to public safety.”

turkey181128I was pretty tough on President Obama’s chaotic clemency initiative. In retrospect, I should have at least given him credit for trying – however imperfectly – to address the problem. Our incumbent, by contrast, tantalizes with vague promises (“we’re looking at it”) but never delivers.

Delivers? Who am I kidding? He doesn’t know from one minute to the next whether to embrace his limited role in pushing the First Step Act or to rue having ever supporting it. Maybe we’re the fools for ever believing he meant what he said.

Sentencing Law and Policy, A midsummer reminder of all persons that Prez Trump has granted clemency to during the COVID-19 pandemic (July 22)

– Thomas L. Root

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

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

IT’S WHO YOU KNOW…

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

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

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

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

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

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

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

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

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

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

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

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

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

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

– Thomas L. Root

Clemency Debate Erupts Anew – Update for February 10, 2020

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

SUPER BOWL TRUMP AD SPARKS CLEMENCY DEBATE

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

– Thomas L. Root

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

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

TURKEY (BUT NO PRISONERS) PARDONED

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

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

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

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

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

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

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

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

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

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

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

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

– Thomas L. Root

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

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

PARDONS, COMMUTATIONS, SENTENCE REDUCTIONS…

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

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

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

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

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

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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

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

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

ANOTHER ROUTE TO CLEMENCY (BUT NOT AN EASY ONE)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

– Thomas L. Root