Monday, January 23, 2017

OPA Change

Robert A. Zauzmer is no longer U.S. Pardon Attorney. Larry Cooper (former Deputy Pardon Attorney) is now serving as Acting U.S. Pardon Attorney.

Sunday, January 22, 2017

Trump's First Pardon Opportunity?

On average, presidents have waited 104 days to grant the first pardon of their term. If you remove just seven presidents from the analysis (Obama, W. Bush, Clinton, H. W. Bush, Nixon, Adams, Washington), the average falls to all the way to 20 days. In other words, most presidents have hit the ground running. President Trump should seriously consider doing the same.

According to CBS News / AP, "approximately 230 protesters" were arrested on Inauguration Day and they will be "charged with felony rioting" - an offense punishable "by up to 10 years in prison and a fine of up to $250,000."

President Trump should consider pardoning the non-violent offenders among them. He should even consider pardoning them preemptively (before conviction, or before execution of sentence) just as Woodrow Wilson pardoned female suffragists who picketed the White House back in the day. Of course, some of those arrested do not fit the "non-violent" category neatly.
... Windows of downtown businesses were smashed, and police deployed pepper spray and “sting balls” against the crowd.The protesters were armed with crowbars and threw objects at people and businesses, destroying storefronts and damaging vehicles. Six police officers were hurt -- three of them hit in the head with flying objects ... 
Trump should pardon the offenses and remit any associated fines. He need not worry about any embarrassment re rejecting or refusing such pardons because no one has a "right" to spend time in prison on the dime of tax payers. If anyone insists on giving money to the government, they can make a charitable donation. See full story here.

And Their Arguments Have Only Gotten Stronger ...

From: “Preparing the Pardon Power for the 21st Century.” 12 University of St. Thomas Law Review 446 (Issue 3, 2016).

"In 1919, Attorney General A. Mitchell Palmer’s Annual Report argued that his duties and responsibilities had “increased so greatly” that it became “practically impossible” to give clemency applications “the attention and thought” that they required. Palmer thus proposed the creation of a three member Pardon and Parole Board that would make recommendations to the president. Three years later, the American Civil Liberties Union sent a letter to President Harding calling for the creation of a “new agency” to process clemency applications. According to the Washington Post, the organization thought the Department of Justice was “unable” to “go into” cases in a proper manner because of its “organization,” its “other many duties,” and the dominant role of federal attorneys who conducted the prosecution. It is so unfortunate that reform-minded persons did not win the day on these fronts a long, long time ago.

Many have high hopes that President Obama will exercise the pardon power more generously before his term finally ends. It is quite unfortunate that he has not exhibited more interest to date. But here we are. Unfortunately, if he grants record numbers of pardons and commutations of sentence between now and the end of the term, it may cause as much harm as good so far as public perceptions of the pardon power are concerned. The recommendations outlined above would, if implemented, prevent future presidents from ever finding themselves in such a predicament."

Click on Image (Above) to Enlarge

Saturday, January 21, 2017

Talent: Last-Minute Pardoning.

Jim Talent, at National Review, weighs in on President Obama's use of the clemency power. Talent says Bradley/Chelsea Manning "released a volume of classified material that put American lives and interests at risk." Although Manning "has shown some remorse," Talent doubts "her expressions of sorrow reflect real repentance — a deep seated acceptance that what she did was wrong, and a commitment to respect and obey the law in the future."

So, seven years in prison strikes Talent as "too short." Manning would have been eligible for parole in three years anyway and:
... the parole process is designed to consider the kinds of mitigating factors that Manning’s supporters urged upon the Obama administration. That forum would have been the better one in which to consider her claims for mercy. 
Talent congratulates Obama for clemency decisions that don't "smack of the kind of personal corruption that tainted many of Bill Clinton’s last minute pardons." But the "timing" of many of his grants is "still very suspect." He writes:
I am a believer in the pardon power. It should be used aggressively, and without apology, where the executive believes either that a miscarriage of justice occurred in the courts or that the equities tip strongly in favor of clemency. I believe the American people would respect an executive who acted decisively and transparently in using the power, even when they disagreed with a particular decision. 
But these last minute commutations smell; they are yet another reason, for those looking for such reasons, to be cynical about the institutions of government and the leaders who populate them. There is a simple remedy available. Congress should consider a constitutional amendment making clemency decisions during presidential transitions provisional only, subject to reversal by the new president within 60 days after he assumes office, and inoperative, unless confirmed by the new president, until the 60 days had passed. (Special provision could be made for death-penalty cases.) 
Talent concludes presidents "should have the power to extend mercy when they think it’s justified." But they should also "be required to show some principle, and some courage, in how they do it." See full editorial piece here.

The Obama Administration: Two Snap Shots

Here are the final data (according to DOJ) for the Obama administration:

Interestingly, despite all of the administration's demonstrations about "making history" and "record setting," this chart (above) could be easily confused with similar charts constructed for previous administrations.

When all is said and done, Obama failed to "reinvigorate" (the new gas buzz word) clemency. No institutional changes / reforms were made. The same broken / dysfunctional clemency process that was around, before Obama came to town, remains, ready to revert back to business as usual.

Friday, January 20, 2017

Krauthammer on Manning, Obama

Today, at the Washington Post,  Charles Krauthammer comments on President Obama's commutation of sentence for Chelsea Manning, "one of the great traitors of our time." Krauthammer notes manning "stole and then released through WikiLeaks almost half a million military reports plus a quarter-million State Department documents." He writes, among other things:
... the military secrets were almost certainly deadly. They jeopardized the lives not just of American soldiers on two active fronts — Iraq and Afghanistan — but of locals who were, at great peril, secretly aiding and abetting us. After Manning’s documents release, the Taliban “went on a killing spree” (according to intelligence sources quoted by Fox News) of those who fit the description of individuals working with the United States.
... Even the word “leaker” is misleading. “Leak” makes it sound like a piece of information a whistleblower gives Woodward and Bernstein to expose misdeeds in high office. This was nothing of the sort. It was the indiscriminate dumping of a mountain of national security secrets certain to bring harm to American troops, allies and interests.
Obama considered Manning’s 35-year sentence excessive. On the contrary. It was lenient. Manning could have been — and in previous ages, might well have been — hanged for such treason. Now she walks after seven years.
What makes this commutation so spectacularly in-your-face is its hypocrisy. Here is a president who spent weeks banging the drums over the harm inflicted by WikiLeaks with its release of stolen materials and emails during the election campaign. He demanded a report immediately. He imposed sanctions on Russia. He preened about the sanctity of the American political process.
Over what? What exactly was released? A campaign chairman’s private emails and Democratic National Committee chatter, i.e., campaign gossip, backbiting, indiscretions and cynicism. The usual stuff, embarrassing but not dangerous. No national security secrets, no classified material, no exposure of anyone to harm, just to ridicule and opprobrium.
See full editorial here.

Private Manning! Get in the List! (Notable Military Clemency)

2017 - Pfc Chelesea Manning (leaks)
2000 - Preston King (draft evasion)
1999 - Henry Flipper (first posthumous presidential pardon, charged with embezzlement, first African-America USMA graduate)
1999 - Freddie Meeks (mutiny, Port Chicago incident)
1965 - Carl H. Buck - last known pardon for innocence (charged with theft)
1960, 1977 - Maurice Schick (murder, case to Supreme Court)
1950 - Leon Gilbert (insubordination, cowardice, 600,000 supporters!)
1945 - A Christmas amnesty to thousands of convicts who served honorably in the War
1945 - Sidney Shapiro (formally charged with obstruction of justice one hour before trial)
1944 - General Robert C. Richardson (charged with contempt, preemptive pardon)
1921 - Chaplain Franz J. Feinler (treason and propaganda)
1918 - Houston Rioters (riot, murder)
1913 - Thomas Franklin (financial irregularities, West Point treasurer)
1907 - John L. Lennon (AWOL, nephew of famous boxer, John L. Sullivan)
1900 - Admiral Bowman H. McCalla (had a thing for cruel and unusual punishments)
1890 - Dell P. Wild (refused to do "menial" work)
1890 - Lewis Carter (assault, robbery, desertion and a 99-year sentence)
1883 - John A. Mason (attempted to assassinate Garfield's assassin, Guiteau)
1882 - Fitz John Porter (disobeying an order, misconduct - blamed for Union loss at Bull Run)
1860 - Aaron Dwight Stevens (riot, assault, later one of John Brown's "officers")
1848 - General John C. Fremont (mutiny, declined pardon and resigned, aka "the Pathfinder")
1814 - General William Hull (surrendered Fort Detroit to British without a fight!)

Thursday, January 19, 2017

330 Commutations granted today

Developing ...

Our Bold Predictions re Donald Trump, the Pardon Power

There is much chatter re what will happen to the pardon power once President Obama leaves office. We feel it is time that we go ahead and jump ahead of the bunch and launch our own bold predictions for the pardon power in the Trump administration.

Remember: you heard it all here first:

1. President Trump will take so little interest in clemency, he will not even lift a finger to appoint his own U.S. Pardon Attorney. He will just keep Obama's - if he can - the same way Obama kept George W. Bush's Pardon Attorney ... until he (the Pardon Attorney) had to be let go.

2. If Trump musters up enough interest in clemency to send a policy memo to the Office of the Pardon Attorney - stating goals and guiding principles - it will come late in the term and will be a near carbon copy of memos sent by previous administrations - as did President Obama.

3. Donald Trump will wait, seemingly forever, to grant the first pardon or commutation of sentence of his administration - as did President Obama.

4. Even after he grants the first pardon / commutation of his administration, Trump will go for months and months, and grant none at all, as if he has to start all over again, and gain courage momentum, or something - as did President Obama.

5. When Trump gets around to using the pardon power, he will generally wait until Christmas / the Holiday Season and / or the end of the term - just like President Obama.

6. Trump will easily deep-six the vast majority of applications that are filed during his administration - as did President Obama.

Wednesday, January 18, 2017

Morison on Last-Minute Pardoning and Making History.

Attorney Samuel Morison specializes in federal executive clemency and actually worked Office of the Pardon Attorney for a number of years. Morison was interviewed recently by Broadly (The VICE Channels) and noted:
"Presidents have traditionally started granting commutations and pardons relatively early in their presidency, and they did it on a fairly regular basis throughout the course of their [time in office] ... So there wasn't any pressure to do a huge number at the end because they already had a record of doing it all along. That's a much more rational way to do this." 
More rational, of course, than the way Obama has done / is doing it. Obama waited over 600 days before the first clemency grant of his administration and his first term was the least merciful term since the first of George Washington. Now, Obama is engaged in the greatest 4th years surge of any president in history.

Morison notes last-minute clemency "creates a cloud of uncertainty," encouraging the public to wonder / speculate about whether or not "something corrupt" is going on. Last-minute pardoning "feeds the perception" that "special connections" are part of the mix.

You get the idea. Morison has mixed feelings about all of the "history" making and "record breaking" in the Obama administration. He notes that, while Obama may very well have granted as many commutations as the last 12 presidents combined, he has also denied about as many as the last 12 as well.

Furthermore, says Morison:
"If you compare the number of grants he's made to the actual prison population, it actually isn't historic ... Today, the federal prison population is about 200,000, so if Obama was going to equal what his predecessors did a 100 years ago, I would argue that he would have had to have granted about 2,000 commutations a year throughout the course of his presidency." 
Obama hasn't exactly done that. See full story here.

McCovey Pardon?! We Just Won't Know ...

Peter Yarrow (of Peter, Paul and Mary) once applied for a presidential pardon on December 10, 1980, and got one, from Jimmy Carter, on January 19, 1981. He offense was committed in 1970. The cynic might guess the speedy process of mercy - in his case - was at least partially explained by fund raising prowess, fame and connections in the Democratic Party. But, we all know how cynics are.

Now, just days before President Obama leaves office, a pardon is granted to San Francisco Giant Hall-of-Famer Willie McCovey. Who on earth saw that one coming? How interesting it would be to know when Mr. McCovey filed his application? How long did he have to wait? Many have waited years ... many, many years. Did McCovey?

In the Bush administration, you could write the Office of the Pardon Attorney, and they would provide you with information on when applications were filed and when they were forwarded to the White House. A FOIA request for that information might take you might take 10 to 15 days to process, at max. They would e-mail it all, right to your home.

Today, the Office of the Pardon Attorney has nothing to do with Eric Holder's showy call for the "presumption of disclosure" in FOIA requests way back when. Holder's not around any more anyway. Obama's pardons Office ignores FOIA requests 200 - 600 days at a time. No response. Not even an acknowledgement of receipt.

As for the information one could get in the Bush administration easily, quickly ... Obama's Office can't get to it. Their new "electronic case filing" system has not improved their data prowess. Indeed, it has retarded and stupefied it. Or, so they claim. But, more importantly, even if that Office could make better use of the tax payer money it receives, it would need:
".... some discussion with all of the stakeholders involved in the executive clemency process to see if they all would approve of having that information public."
Here's your FOIA request! Hope and change that! One day, maybe 20-30 years from now, we will all learn the real story of the Willie McCovey pardon application. For now, the cynics can simply feed on the nontransparent nature of the DOJ as an institution ... and an attitude. Because the DOJ can say "no" like it is no one's business.

Tuesday, January 17, 2017

Woodrow Wilson Blog Posts Obama From the Grave

Dear President Obama,

Congratulations on beating my record for most commutations of sentence, by a total of 19. I admit, back in the day, I was not even aware that I set any "records." No one told me. I forgot to brag about it. I'll be a good loser and not linger on the fact that I probably didn't have nearly as many applications for commutations as you did.

But let me note this: while I set my record for commutations of sentence, I also granted over a thousand pardons. Maybe, I kinda cheated though. You see, I never went a single month without granting one, for the entire eight years that I was President of the United States. I considered justice, mercy and the whole checks and balances thing to be a regular part of the job ... from the start.

You waited, what? 682 days to grant the first pardon of your presidency? I waited 9 days, and never looked back.

And now, with just three days left in you presidency, you have just managed to make it past the 200 mark. Oh my. You have some catching up to do, my friend. Best of luck with that.

Obama v. Wilson. A Contrast in "Record Setting"

Today, the White House proudly announces that President Obama has granted more commutations of sentence than any president in the history of the United States. It is true. With 209 commutations of sentence, today, Obama has officially passed Wilson's mark of 1.366 by 19.

Don't look for any self-congratulatory memos or headlines re Wilson, back in the day. He was just doing his job. And he had been doing it steady, for eight years. Justice was not a last-minute, after thought in his administration so much as it was a daily routine. Here's how Wilson did it:

Here's how Obama worked his way to "record breaking" glory:

We think the data speak for themselves. It's time to move the clemency process out of the DOJ (where it has not always been) and relocate it in the Executive Office of the President of the United States.

Obama Pardons Willie McCovey !!!

Steve Arrington is Pardoned !

Congratulations to Steve Arrington, who received a full pardon from President Obama today.

See our previous posts on him / his case here.

Obama Commutes Manning's Sentence

President Obama has commuted Chelsea Manning’s sentence, reducing it to about five months beyond the time she has already served. Manning is now due to be released in May. Developing.

Monday, January 16, 2017

If Obama Granted 2,000 Commutations of Sentence Tomorrow ...

President Obama seemed to take interest in commutations of sentence about 6 years into his presidency. He has denied applications in batches of a 1,000 or more at a time, but - overall - has granted just over 1,100 commutations.

With some irony, from Bill Clinton's stand-point, members of the national news media (longing to maintain "access" to the bitter end) are cheering him on through the largest last-minute clemency surge in American history. It is suggested that a "significant" number of grants will be made before Obama leaves the White House.

What if Obama granted twice as many commutations of sentence as he has granted to date, tomorrow? What if he "made history" with a "new record" of 2,000 commutations in one day? Here is what 2,000 more commutations would make his overall record look like:

New York Times: Late to the Dance

The New York Times editorial board writes:
Last month, Mr. Obama issued Mr. Udin a pardon — one of just 148 pardons the president has granted during his two terms in office. It is an abysmally low number for a president who has stressed his commitment to second chances and the importance of helping convicted people re­enter society.

Welcome New York Times. See full editorial here.

Post Glorifies Last-Minute Clemency Decision Making Rush

Today, the Washington Post covers - quite uncritically - the hurried decision making that is associated with the largest fourth-year clemency surge in American history. The Post writes:
“These are big decisions that you’re making,” [Deputy Attorney General] Yates said, alluding to the public-safety risks and the need to provide a “sophisticated analysis” to the president. “If it’s to let someone out of prison early, earlier than what their original sentence was, you’ve got to be careful about those decisions ... you have to look at their past as well and at their criminal history. You have to look at their conduct [in prison].”
Yet, amazingly, the piece claims DOJ has "completed review" of 16,000 plus clemency petitions "over the past two years." Sounds like a record, doesn't it? Making history, no? Not a wisp of concern that that "review" process was serious, thorough, just, fair.

Yates is quoted as saying “Everyone has killed themselves here to get the final recommendations to the president ... We were in overdrive ... It was 24-7 over the Christmas break.” The Post reports U.S. Pardon Attorney Robert A. Zauzmer "has not taken a day off" since February 2016. Who could possibly question / second guess the quality of the decision making by persons who are killing themselves and working over Christmas break?

Not the Post.

Is this the way to do clemency? This is the model for future administrations, is it? Really? Is this the hope and change? Is it now - at last - time we apologize to Bill Clinton for all of his last-minute pardoning? Moreover, says the Post:
As President-elect Donald Trump prepares to take office, Justice officials worry that his administration will dismantle Obama’s clemency initiative which has resulted in the early release of 1,176 drug offenders who were sentenced under the severe mandatory minimum laws passed in the 1980s and 1990s during the nation’s “war on drugs.” More than 400 were serving life sentences. Yates said Obama will grant “a significant” number of commutations this week, but would not specify a number. Several people close to the process said it will be several hundred.
How a journalist of any repute whatsoever could write something like this and not say a word about Attorney General Lynch's tragically erroneous view that the President of the United States does not have the power to grant a group pardon (or amnesty) is beyond belief. Talk about an elephant in the room !

Obama's clemency initiative - sprung 6 years into his administration - was ... Obama's initiative. It was not a structural / institutional change to the clemency process. The same DOJ that specialized in rejecting clemency applications will be in place when Obama leaves, doing what it does. In all likelihood, Trump will wait forever to grant the first pardon / commutation of his term - just like Obama. In all likelihood, Trump will save clemency for Christmas and the end of his term - just like Obama. For all of this, Trump is hardly entirely to blame. See full Post story here.

The Times: Deep on PR, Concern. Shallow on Insight.

Eric Lichtblau has a piece at the New York Times which is odd in so many ways. He notes, among other things:
And in his final week in office, Mr. Obama is likely to grant commutations to shorten the prison sentences of still more nonviolent drug offenders, officials said. He has already issued more than 1,000 commutations — more than the number issued by the prior 11 presidents combined, according to the White House.
This is, of course, the now-tiresome White House PR mantra, which ignores the fact that 1) previous presidents had miserable records re commutations of sentence 2) Obama has had - and denied - many more commutations than his immediate predecessors combined and 3) Obama's record on pardons is, in fact, quite ugly. Nor is there any mention of the fact that most of these commutations have popped up in the last two years of the term and that President Obama is currently engaged in the greatest last-minute clemency spurge in history (it's not over).

But more - yes, more - than all of that ... it is utterly amazing that someone could write on this topic, in the New York Times (!!!), and not say a single word, nothing, about the Attorney General's recent claim that the President of the United States does not have the power to grant a group pardon, or an amnesty, on behalf of many thousands of persons who are similarly situated. A bizarro idea seemingly shared by the President himself! That's really the only thing anyone should be writing about on this topic at present. Instead, Lichtblau writes:
But that legacy is about to come under quick siege with the incoming Trump administration’s “law and order” platform, as Senator Jeff Sessions of Alabama, President ­elect Donald J. Trump’s nominee for attorney general, made clear last week at his confirmation hearing ...
Well, plenty of time to focus on what is ahead. Let's focus on right now, and how right now shapes what is ahead. President Obama did nothing - zero - in terms of reform, institutional change re the pardon power. It still sits in the basement of DOJ, manned by career prosecutors. They were experts at saying "no" before Clemency Project 2014 and they will clearly retain that expertise when President Obama leaves office. To boot, they will get to those FOIA requests, if they think they have enough time, after a discussion ... and their new "electronic" case filing system is ... updated!

Lichtblau is surely right. Obama's ideas will leave with Obama. Shocking.

That is exactly why Obama should have focused on real, lasting change more so than a loud, last-minute belch of mercy. Trump and Sessions will inherit the same DOJ / OPA Obama inherited from his predecessors. They will inherit the same clemency process as well, the one that was so lame that a small pile of commutations and pardons here and there will amount to "records" and "history making."

It would not be surprising at all if Trump waited for an eternity to grant the first pardon or commutation of sentence of his term - just like Obama. It would not be surprising at all if Trump saves clemency for Christmas and/or the very end of the term - just like Obama. It would not be surprising at all if Trump denies the vast majority of applications - just like Obama.

Whose fault is all of that? Plenty of blame to share. Plenty. See Lichtblau's full editorial here.

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