Tuesday, January 27, 2015

Georgia: No Mercy?

Warren Lee Hill shot his 18 year old girlfriend eleven times and killed her, in 1985. There followed a life-sentence. Four years later later, in prison, Hill murdered his cellmate with a board and nails. Now he is set to be executed in Georgia.

"Human rights groups" and other say his "intellectual disability" disqualify him from execution. They note that Lee has an IQ of "approximately 70" and the "emotional capacity of a young boy." The Supreme Court, of course, has ruled that executing intellectually disabled individuals violates the Eighth Amendment's ban on cruel and unusual punishment.

The hitch that the Court's decision "allows states to define intellectual disability." CNN reports that Georgia operationalizes the concept as proof of mental impairment "beyond a reasonable doubt." This is said to be the "strictest standard in any jurisdiction in the nation." According to CNN:
... Hill also has the support of the American Association on Intellectual and Developmental Disabilities, the Georgia NAACP and former President Jimmy Carter and his wife, Rosalynn Carter. The victim's family and former jurors have also expressed support for mercy in Hill's case, saying they weren't given the option of life without parole when sentencing him to death. Kammer said seven doctors agree that his client is intellectually disabled, including three doctors for the state who initially evaluated Hill and said he didn't meet Georgia's standard. Kammer said those doctors have since signed an affidavit admitting they felt rushed during Hill's examination and now believe he does meet the standard for "intellectually disabled." 
Hill's case was presented before the Georgia State Board of Pardons and Paroles which says it will "make a decision prior to the scheduled execution," which is set for 7 p.m. tonight. See story here.

Monday, January 26, 2015

Hawaii: Need for Reform?

Peter Carlisle of the Honolulu Civil Beat notes that, in one of his last acts as governor, Neil Abercrombiein "did what he could to clear the slate of a man local media dubbed the 'Manoa Home Invader' [and] that’s so troubling that it should lead to change." In addition, the otherwise "expressive politician" did not "explain his actions to the people who elected him."

Carlisle notes “Midnight pardons” are "hardly new" for presidents and governors "on their way out the door" and they "have often drawn scrutiny, criticism and embarrassment for leaders."
... Since Rodrigues was already out of prison, why does a pardon matter? A felon loses certain rights, including the ability to vote, serve on a jury, run for office and carry a gun. Someone who is pardoned gets most of those rights back, although the right to carry a gun must be specified in the pardon. ... But a pardon does not erase a conviction, which remains on the criminal’s record and must be disclosed when information about past criminal activity is required. A pardon doesn’t say someone is innocent; it is that he is forgiven. A pardon from a governor surely makes life easier on a convicted felon.
The piece goes on to argue that the "main problem" with the pardon process is that "there are few rules, procedures or regulations that frame it." Thus, Carlisle suggests that governors should "promise" to " complete their pardons by a certain date and include a written justification before a pardon is formalized."  As for the written explanations, he elaborates:
Such justifications should include factual information, reasoning, policy considerations and other factors that the governor deems relevant to the pardon being prepared. Here is why: A written decision, published in advance, will allow for public scrutiny and accountability of the governor’s decision to pardon a convicted criminal. This process might even allow the governor to escape shadows of suspicion, whether influence peddling or ignorance of details about a convicted criminal’s past that should be weighed before pardoning them. This could spare governors and presidents a great deal of embarrassment and, more importantly, make the process healthier. 
Another suggestion: "if a governor knows that he or she won’t run for re-election, this should be done several months — perhaps three to six — before the end of the gubernatorial term."  See full editorial here.

Times: Room for Debate (on Pardons)

This week's "Room for Debate" section in the New York Times focuses on the question of pardons. Among the editorials one can find there are:

* P.S. Ruckman, Jr. There Are Many Reasons to Show Mercy

* William Otis., Pardons Shouldn't Take the Place of Law and Courts

* Julie Stewart, The Pardon Process is Inherently Unfair

* Sam Morison, Pardons Are Rooted in U.S. History and the Constitution

* Amy R. Povah, Give Mothers Priority

* Glenn E. Martin, One Remedy for Our Excessively Punitive System

Saturday, January 24, 2015

Vermont: Three Pardons

The Times Argus reports Gov. Peter Shumlin has granted pardons to three women who have "atoned for their mistakes." One plead guilty to violation of a restraining order in 2001, when she was only 18 years old. Another plead guilty to a domestic assault on her own mother in 2002 (the mother supported the clemency application). The third plead guilty to "a number of nonviolent felonies and misdemeanors" related to substance abuse and addiction in the late 1990s.

The Governor said he was "proud" to pardon all three ...
"... who have all worked very hard to overcome obstacles in their lives and mistakes made in their pasts ... All three have shown a commitment to helping others and to making a better life for themselves and their family ... Past mistakes do not define a person’s future, and I hope these three will serve as an inspiration for others looking to turn their lives around.” 
See story here.

Friday, January 23, 2015

Missouri: Law School Student Schools Frank Bruni

A third-year law student, Erica J. Mazzotti, has a fine editorial in the St. Louis Dispatch re clemency. She notes that, aside from 9 pardons Governor Nixon granted last month, he has granted only one other request for clemency since he took office in 2009.

Mazzotti notes that the "longstanding tradition" of pardoning "is not just an act of mercy." It entails a "gubernatorial responsibility" to:
... correct injustices within the criminal justice system, including sentences that are significantly disproportionate between genders, offenders who are treated as criminals when in reality they themselves are victims of abuse, and rehabilitated inmates who spend decades incarcerated when they pose no societal threat. 
[Memo to Frank Bruni: Clue up!] Mazzotti notes the Community Coalition for Clemency, represents over a dozen women who "are victims of serious domestic and/or sexual abuse, had no prior history of violent crime, and in some cases received harsher sentences than similarly situated males."

She also discusses a Sentencing Project, study entitled, "Fewer Prisoners, Less Crime: A Tale of Three States” which found that "during the periods of decarceration in New York, New Jersey and California, violent crime rates fell at a greater rate in those three states compared to nationwide rates." Unfortunately, she says, Missouri’s rate of incarceration "continues to rise and as of 2013 is 32 percent higher than the national average."  See full editorial here.

Thursday, January 22, 2015

Egypt: 584 Prisoners to be Pardoned

It is reported that President Sisi set "a few criteria" but left the actual "selection" of prisoner to be pardoned in the hands of the interior ministry.  Consequently, Egyptian authorities have announced that 584 prisoners will be released. The decree applies to 1) those who have served 15 years of a life sentence and 2) prisoners who have sentenced to at least 6 months and have served at least half their sentence.

The decree does not apply to 1) those convicted of felonies and misdemeanours that harm the government internally or externally 2) those involved with explosives, weapons and ammunition, drugs, illegal profiteering, and bribes, forgery and obstructing traffic.

It is also said that the pardons were an "attempt" to "keep the public happy on the anniversary of the January 25th revolution. See full story here.

Wednesday, January 21, 2015

Montana: Pardon Power to the Governor?

The Montana Standard reports Rep. Margie McDonald (D-Billings) has introduced House Bill 43A " "to allow Montana's governor to grant clemency to prisoners even if the state parole board recommends against it." It is reported that the governor "would assume final authority over clemency requests" and be able to "waive fines, lessen a sentence or pardon someone. "

The State's parole board "drew increased scrutiny" when Gov. Steve Bullock supported a commutation of the life sentence of Barry Beach, but the board "declined to forward a clemency recommendation." See story here.

Tuesday, January 20, 2015

Bruni: Creative, But Still Wrong

We have already commented on Frank Bruni's commentary on Mark Wahlberg's clemency application (see posts here), but Bruni is doubling down on his wrong-headed analysis and his downward slide is something to see!

Bruni proudly wields a colorless anecdote re Wahlberg's use of eye glasses which he (Bruni), evidently, believes sheds profound light on the substantive merit of Wahlberg's pardon application. After spending a couple of "days" with Wahlberg, years ago, Bruni has concluded Wahlberg exhibited a pattern of bad behavior, almost four decades ago, when he was 16-years old, and when he committed an offense so heinous that he served only 45 days in prison.

In the Morning Joe clip (below), Bruni says Wahlberg's argument for pardon is that, well, "he was 16 at the time." And that is when it becomes perfectly obvious that, for whatever reason, Mr. Bruni just can't think clearly, or very fairly, about this case.

Bruni admits "everyone" says Wahberg is a "great person to work with and an outstanding guy" and that he "probably is a different man." Yes, "probably" is as far as Bruni is willing to wander away from the comfort of his ginormous blind spot. But he then tosses those critical reference points (at least for those who believe in - and are truly interested in - rehabilitation) like a classically over-zealous prosecutor forsaking a handful of frivolous charges in plea bargain negotiations with an indigent defendant. Notably, to date, Bruni and his ilk can't find a single person - not even an anonymous person - to slam Wahlberg's character and reputation ... in the current decade ! Dear Reader, do you realize how hard it is these days to not be able to find an anonymous slanderer?!

For centuries, presidents and governors have considered community service and social good works in clemency decision making, without Bruni's permission and insight:
It's easy to give back money when you make that much money and if we start factoring in financial contributions into pardons, that's just income inequality transferred into criminal justice. I don't think we need to do that. 
The giant ball of flame barrels through a field of straw men. It may be easy to give, but many don't.  As long as we are waxing sociological, "ease" is certainly a relative notion. "Financial contributions" here means donations to organizations that do things like provide counselling and programs to high risk youth. And, of course, the "factoring" consideration would pack a lot of serious journalistic punch were "financial contributions" required. But they are not. They are simply fairly considered with a host of whatever other arguments an applicant can make for penitence, rehabilitation, social responsibility and integration back into society as a law-abiding and productive citizen. 

Presidents have granted pardons to farmers, for all sorts of crimes, that landed then in federal prison, for much longer periods of time, so they could return to their fields for harvest. A President, Bruni would keep them in over-crowded, expensive prisons, protecting himself from 1) any accusation of agricultural bias and 2) any possible negative interpretation of his decision-making concocted by the worst, most uninformed. Signals are more important to Bruni than the boring, raw merits of a pardon application - like the fact that one of the victims thinks Wahlberg should be pardoned. Boring, irrelevant stuff. Admittedly, it appears we have a lot of governors like Bruni!

Bruni says we can't give Wahlberg a pardon ... not because the crime was so horrible, not because the application is weak, or horribly flawed, not because Wahlberg hasn't changed, not because he does not deserve a pardon ... but "because we give so few of them." Brilliant. This is the exact bone-headed argument that Scott Walker uses to justify his "policy" of granting no pardons at all. As he puts it, if he does justice in one case, others will demand the same. God forbid there would be a break out of justice on Walker's (or President Bruni's) watch. 

Then, the coup de grace. Bruni says - sounding really authoritative, informed - "The whole point of pardons is to remove restrictions that keep people from rebuilding productive lives." Because such restrictions have had "almost no effect" on Wahlberg, he is (in Bruni's mind) ineligible for clemency. Pure unadulterated, inexcusable nonsense. He could hardly be more wrong. One could write a doctoral dissertation on the categories and levels of error therein.

Bruni - at this point - is so far in over his head he can only resort to re-convening the court now closed for almost four decades, serving as judge and jury and accusing Wahberg of committing a "vicious racial hate crime." A great sound bite for a six-minute segment and drive -by viewers with little appetite for the yawns prompted by rigorous discussions of fairness and justice. Bruni's "arguments" are the rough equivalent of a football player on the way to a sure touchdown, and dropping the ball before actually crossing the goal line, in an attempt to look really cool, impressive. Epic fail. 

Saturday, January 17, 2015

New York: O'Hara Turns the Tables

John O'Hara
The Times reports John Kennedy O’Hara has
... filed a motion in the Brooklyn courts saying that his conviction should be vacated on the grounds of selective prosecution. The motion is jammed with facts collected by Mr. Rudin during the years he helped a man named Jabbar Collins overturn a wrongful conviction for murder and then sue the city, which settled with him for $10 million in August. Along the way, Mr. Rudin was able to question many senior executives in Mr. Hynes’s office, and uncovered a great deal of casualness about where they actually lived, as opposed to where they claimed to live. Also, he found out that some of the prosecutors let other people sign personal and professional papers for them. And a voter registration card appeared to show that Mr. Hynes himself was, for a time, enrolled using the address of a municipal office building, which hardly qualifies as a residence.
Click here to view the motion in its entirety. This move comes after years of waiting for something along the lines of executive clemency, which occurs with much greater infrequency than lightening in the State of New York. See our previous posts here.

Times Editorial on Wahlberg

We have had our say on Mark Wahlberg's pardon application for some time now (see previous posts here). In Today's New York Times, Frank Bruni give us his two cents worth on the topic. Bruni believes Wahlberg is now "confronting" the fact that "life" is not so easily "manipulated" because his application has "rightly" been the focus of "negative" attention.

Bruni understands that the 43-year old Wahlberg committed his offenses when he was but 16 years of age. While Wahlberg's offenses involved physical violence and - it is said - "racial slurs," they were not considered serious enough to result in a jail sentence of more than 45 days. Bruni notes that, more than two decades ago, as rapper "Marky Mark," Wahlberg "was known for using crude language about women" and was "implicated in brawls." The cynic might note ...

Today, however, "several prominent Hollywood producers" insist Wahlberg's reputation "in the industry" is "sterling." He has also donated a considerable amount of time and energy for charitable causes. But Bruni dismisses all of Wahlberg's generosity because "he can afford that in a way that very few ex-cons can." Or, as Bruni puts it:
Financial generosity shouldn’t be a factor in his (or anyone else’s) favor: That’s just the criminal-justice system’s version of income inequality.
Ironically, Bruni is critical of Wahlberg for not having "reached out to the Vietnamese community in Dorchester or to the victims of his crimes." We assume that Wahlberg could, in a way that "very few ex-felons can."

What A Governor's Inaction (Lack of Mercy) Says

Draco. A Guide for Many Governors
"I am outside of - and reject - America's constitutional tradition. I will not participate in a system of separation of powers and checks and balances because, in my state, the legislative and judicial branches are perfect. Criminal processes are, likewise, without flaw. Offenders of the law are all guilty of the very worst, unforgivable violations and no one ever experiences (or deserves recognition for) anything like penitence, restitution or rehabilitation. In my state, it's "once a criminal, always a criminal." Eternal punishment is no particular horror. Indeed, I insist it is state policy."

That's what a governor says when he / she fails to pardon - P.S. Ruckman, Jr.

Colorado: Another Governor AWOL

Gov. Hickenlooper
The Denver Post notes that, "more than two years after Gov. John Hickenlooper ordered the re-creation of the [State's] Executive Clemency Advisory Board [the] board has yet to review a single application." Indeed, it has never even met.

So, no pardons have been granted by Governor Hickenlooper, who just got around to filling the Board's seven seats this past week!

The Post reports this inactivity has had an impact. "About 150" applications have been filed since the Board was formed in 2012. The president of Colorado's Criminal Defense Bar notes there is no legal "requirement" that the governor show up and participate in the State's system of separation of powers and checks and balances, but ignoring pardons can discourage people:
"A pardon is a legal forgiveness. It doesn't forget the act, but it forgives it ... We want that system to be in place because we want people to be motivated and incentives to do phenomenal things ..."
The Post also notes 13 people were given pardons by Gov. Bill Owens (over 8 years) while Gov. Bill Ritter granted 42. See full article here.

Friday, January 16, 2015

Massachusetts: Channeling Johnny Lee

The Associated Press reports that Gov. Charlie Baker has "ordered the state board of pardons to withdraw guidelines put into effect last year by then-Gov. Deval Patrick." These guidelines are then described as having made "it easier to appeal for clemency." More specifically, they "made commutations possible for those serving harsh sentences for nonviolent offenses and allowed pardons for those who could show they've made an extraordinary contribution to their community."

The critical nature of these guidelines was never more evident that in the fact that had just about ZERO impact. Gov. Patrick sat on his hands while the State's system of separation of powers and checks and balances was operating. Judging from his inaction, we are left to conclude the legislative and judicial branches of Massachusetts are perfect. Criminal processes are, likewise, without flaw. Offenders of the law are all guilty of the very worst, unforgivable violations and, certainly, no one ever experiences anything like true rehabilitation. Once a criminal, always a criminal. Eternal punishment is no horror. It is State policy.

That is exactly what a governor says when he /she fails to pardon.

Illinois: Quinn, No Barbour

In recent days, there has been a tendency to use the phrase "last-minute" in relation to former Gov Pat Quinn's use of the pardon power. But Quinn was no Johnny-come-lately with respect to his constitutional duty to participate in the State's system of separation of powers and checks and balances. Quinn came into office promising to attempt to address Rod Blagojevich's inexcusable backlog, and the effort that followed was steady, and gallant.

Recent reports suggest Quinn's grants amounted to about 1,700. We went through every story that appeared in this blog (by simply typing "Quinn" in the search box on the top left corner of the screen) and came up with a figure slightly higher than that - just over 50 more. We will investigate the difference and report back on what we learn.

Regardless, Quinn was certainly no Haley Barbour, Barbour sat on his hands his entire term, He did nothing. Then, just before he left, he dumped a pile of pardons, without warning, without the announcement of any concern that pardons were important. No principle preceded his stunt. It was all as if he did it because ... he could. 

Wednesday, January 14, 2015

Alabama: Toobin on (for) Siegelman

Jeffrey Toobin first made his mark on the presidential pardon radar by repeatedly insisting that George W. Bush would have to "pardon" Scooter Libby, or Libby would have to march off to prison. It was great for the purposes of dramatic commentary, but certainly didn't say much positive about Toobin's understanding of the pardon power, or research ability. See commentary here and here.

Now Toobin is "back," in the New Yorker, arguing that President Obama "should" do a "risky" challenge by "commuting the prison sentence of Don Siegelman:
... the former governor of Alabama. Siegelman, a Democrat, served a single term in office, from 1999 to 2003, in the last days before Alabama turned into an overwhelmingly Republican state. He’s spent the subsequent decade dealing with the fallout from the case that landed him in prison—a case that, at its core, is about a single campaign contribution. 
As it happens, the contribution was half a million dollars, and it was "to support the pro-lottery campaign" that was rejected by voters. Siegelman then reappointed the donor to the State's Certificate of Need Review Board (which regulates health care in the state).

Monday, January 12, 2015

Illinois: The Last of Quinn's Mercy

The Associated Press reports "departing" Gov. Pat Quinn granted 43 clemency petitions "in his final moments as governor" including six commutations of sentence. Quinn is also reported to have granted his second pardon based on innocence.

Quinn commuted the sentences of Tyrone Hood who is serving prison time for killing of I.I.T. basketball player and Anthony Dansberry who was convicted of murder, though through what his attorneys call a "coerced" confession.

Before these last grants, Governing noted:
After inheriting a backlog of more than 2,800 requests that now-imprisoned former Gov. Rod Blagojevich took no action on during his tenure, Quinn has acted on 4,766 clemency petitions, more than any other Illinois governor, according to his administration. 
Quinn has granted 1,752 and denied 3,014 requests, according to his administration. That represents a nearly 37 percent approval rate for the petitions he has considered, which experts say ranks among the highest for any current governor.
As word spread that Quinn was considering clemency requests, the number of petitions increased during his tenure. The governor may act on some of the 2,000 requests still on his desk before he leaves office Monday morning.
He recently told the Tribune he is trying to rectify Blagojevich's indifference toward clemency requests and has spent hours reviewing petitions during his final days.
Today, it was also announced that Quinn denied 119 petitions. Incoming Republican Governor Bruce Rauner will inherit more than 1,800 cases. See more on this story here and here and here.

Friday, January 9, 2015

Illinois: Hundreds of Last-Minute Pardons. More to Follow

It is reported that Gov. Pat Quinn has granted 232 clemency petitions, including one for Alan Beaman, "who spent more than a decade in prison before DNA evidence cleared him in the 1993 murder of his girlfriend."  Quinn also denied 262 petitions but promises more grants on Monday, when Republican Bruce Rauner takes office. See story here.

Monday, January 5, 2015

Wisconsin: Walker, Still On Dumb

We have repeatedly noted that, while more than a few state governors are neglecting to use the pardon power, Scott Walker's neglect is particularly egregious because he has yet to - and, evidently, cannot - articulate anything like an intelligent, policy-based reason for it.

Initially, Walker launched the boiler-plate / sensationalist goo: it isn't right to "interfere" with the considered judgement of judges and juries. In addition to exhibiting cluelessness as to the constitutional role of executives in systems of separation of powers and checks and balances, Walker's gas ignored the fact that almost anyone can discover - with even an ounce of careless research: most (as in 90 plus percent) pardons (state and federal) do not interfere with, or overturn, the judgement of judges or juries, much less spring violent criminals from our prisons, launching them into our streets to rape and pillage fearful citizens, eager and ready to vote for law-and-order / John Wayne posers.

No - Scott Walker's blithe nonsense notwithstanding - pardons simply restore the civil rights of persons who have just about always committed minor / non-violent offenses, years (often decades) ago, have served their time (if they ever even had any to server) and have established themselves as law-abiding citizens. No one's judgement is being interfered with, much less overturned. If anything, the decision making of the criminal process is validated by pardon. A pardons says sentences were right, fair, just and enough!

Saturday, January 3, 2015

Pardon Applications and Attorneys

Tim Means
A year or so ago, we noted that - contrary to what many people may think, or might guess - most successful applications for federal executive clemency (pardons, commutations, etc.) are not associated with legal representation by an attorney (see post here). We have also noted that the geographic location of a law firm / lawyer's office may be of some significance (see post here). With that ...

... we note that the National Law Journal has a piece on one Tim Means, an attorney with Crowell & Moring (an "international" law firm with an office in Washington DC). The piece says Mr. Means "wins" clemency cases, at least in the sense that he has represented four persons who have received pardons or commutations of sentence from the president since 2007. The piece does not reveal how many clemency applications Means has worked on in total, but says he actually took up his first such case in 2003.

Means "normally represents mining companies in cases against the government" but told his first clients that he was "willing to work hard." Oddly, the National Law Journal says that Means believes "case law on the subject is almost nonexistent." Well, we just can't agree very much with that. See full story here.

Arizona: Mercy, Especially (Just About Always) for The Dying

ABC 15 reports Gov. Jan Brewer will be concluding her last year in office "by continuing her pattern of granting few clemency petitions and typically to those who are inmates on the verge of death." In 2014, she granted five commutations "for prisoners released to die with their families."

It is reported that Brewer "averaged about seven commutations per year since she took office in 2009" and "two each year typically were for reasons other than imminent death."

More notably, in 2014, Brewer rejected 12 recommendations for commutation of sentence from Arizona's Board of Executive Clemency, the individuals appointed by the State to learn / know more about each clemency application than anyone. Per her tradition, Governor Brewer gives no specific reason for her clemency decisions. In the case of William Macumber - whose guilt was in grave doubt, at least in the Board's mind - Brewer gave no explanation at all for ignoring the Board's recommendation. Good Bye Gov. Brewer. You will not be missed. See full story here.

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