Tuesday, August 23, 2016

Sidewire Chat with Debra Saunders


Join / look in on this conversation today, 11:30 am Central by clicking here: http://sidewire.com/politics/2016/8/23/sf-chronicle-debra-j-saunders-and-pardon

FLASHBACK: Toobin on Libby, the Pardon Power

Jeffrey Toobin's preference for dramatic error over scholarship and expertise is ... well ... a thing:

Wolf Blitzer asked “senior legal analyst” Toobin if George W. Bush could do “something sort of a pardon” for Scooter Libby, perhaps “suspending” or “shortening the sentence?” Amazingly, Toobin responded:
Well, I have to say, maybe there are some constitutional experts out there who will contradict me, but I don't think the president has that authority. I think it's an all or nothing proposition. He can pardon "Scooter" Libby and end the case against him today. But other than that, he has no authority, as I understand it, to get involved in the process at all. THE SITUATION ROOM, June 14, 2007.
Read that again! "There may be some people with expertise on this matter, who know more than I ever will - on this topic - but I am Jeffrey Toobin and I think what I think is what really matters most! Furthermore, my view is really dramatic." The cynic might call this approach a bit "snotty."

Two editorials, one at the Washington Post (William Otis, "Neither Prison Nor Pardon: Justice in the Libby Case Lies With Bush's Third Option." June 7, 2007) and the other at National Review (P.S. Ruckman, Jr. "Respite for Scooter." June 14, 2007), had it right. It was not an either/or situation for the President at all. Bush had a range of choices and all of them involved the constitutional use of the pardon power.

Indeed, Bush did not pardon Libby. He simply commuted the 30-month prison sentence, leaving the remaining portion of the sentence intact.

A “totally shocked” Toobin told CNN, “Maybe I'm just naive.” ANDERSON COOPER 360 DEGREES, “No Prison For Libby.” July 2, 2007.

Yeah, maybe.

Monday, August 22, 2016

Toobin Doubles Down on Sloppiness

In his new book on Patricia Hearst, CNN legal analyst and New Yorker contributor Jeffrey Toobin asserts Hearst was the first person in American history to receive a commutation of sentence from one president and a presidential pardon from another. It is a catchy assertion that he has repeated in interviews while hawking the work (see examples here). The problem is that Toobin is wrong. Really, really wrong (see proof here). Indeed, the error is of such a brutal, magnificent nature, one is easily led to the conclusion that he is inexcusably incompetent in his writing / research or - at a minimum - in dire need of assistance / supervision.

San Francisco Chronicle columnist Debra Saunders alerted Toobin to a world of information contradicting his assertion and his response was to say he found it all "fascinating." Today, Saunders writes:
Toobin told me Monday he regrets the error and welcomes all corrections that improve the record. He didn’t know about the pardons Ruckman cited. He should have said Hearst was the first such recipient in “modern American history.” (See Saunders' column on the matter here).
We are pleased (relieved, frankly) to learn of Toobin's sense of error, but we find his recalibration - at best - still more sloppy guesswork. At worst - he appears to want to believe that the steam roller of evidence presented to him was a mere "improvement" on his very fine work.

Yes, it's pretty clear, Toobin just doesn't get it.

Toobin's book provides no reference for his original assertion and, apparently, he did not provide one to Saunders. And with good reason. It was a ridiculously dumb thing to write. Can Toobin now produce a source which says no recipient in "modern American history" has benefited from clemency from two presidents? We are guessing not. But, even if he could, it would only prove one thing: there is at least one other person as clueless about the pardon power as Jeffrey Toobin. Unfortunately, the recalibrated assertion is just as foolish as the original (in-print, repeated) version. Here's why:

We don't know what la-la land Toobin wanders around in, but political scientists operationalize (define) the "modern" presidency as the period of time from 1900 forward or, alternately, from the administration of Franklin D. Roosevelt forward. Almost all of the examples we provided of commutations and pardons granted by different presidents were in the 1900s (click here). One notable example was from the administration of Franklin D. Roosevelt (Dinshah Ghadiali). Roosevelt pardoned individuals whose sentences were commuted by presidents before him in at least four other instances (in 1937, 1943 and 1944). That's right, FDR did - five times - what Toobin's book claims no other president had ever done once!

But maybe FDR is not "modern" enough for Toobin. He has his own definitions to work with ... at least when embarrassingly pushed into a corner. Two of the examples we noted were from the administration of Harry Truman, in 1945 and 1951. Is that "modern" enough? Oh, surely not. Ancient history.

On June 1. 1945, Harry Truman commuted the ten-year prison sentence of one Kurt Malzahn to time served. Then, on July 27, 1956, Dwight Eisenhower granted Malzahn a full and unconditional pardon. 1956? Why Toobin wasn't even born by then. Not nearly "modern" enough!

Leonard Layton was sentenced to death in March of 1932. His sentence was commuted to life in prison, by Franklin Roosevelt in 1933. On June 3, 1967 (when Toobin was 6-7 years old), Lyndon Johnson granted Layton a full and unconditional pardon.

Maybe "modern American history" did not begin until the Beatles broke up. Who knows? Toobin needs to have a come-to-Jesus moment. He was / is really sloppy on this front ... perhaps because of too much eagerness to appear catchy, perhaps out of laziness, perhaps out of habit, perhaps because he simply had no idea where to turn to get good information to accurately assess his guesses, perhaps simply because, damnit, he is Jeffrey Toobin of CNN and the New Yorker ... and he can be that way if he wants too. Regardless, it's all slop.

Toobin: Spell-Binding. Fascinating. Sloppy. Wrong.

Jeffrey Toobin on PBS News Hour:


Pittsburgh Post Gazette, August 7, 2016


Sacramento Bee, August 13, 2016


The Economist, August 13, 2016

See our commentary on Toobin's amazing insights here. and here.

Saturday, August 20, 2016

Toobin on Hearst: The Train Wreck Continues

Regular readers of this blog may be aware that - when it comes to the pardon power - we hold "legal expert" Jeffrey Toobin in very low regard (see previous commentary here). Indeed, we know of no other commentator / author so highly touted who so brutally mangles facts and history on this front. And, just when we think he could not possibly do any worse ...

San Francisco Chronicle columnist Debra Saunders tweets:
In his book on Patty Hearst @JeffreyToobin writes she is only person to win commutation fr 1 prez, pardon from another. 
Indeed, page 387 of the work informs readers such a thing had never happened before, in American history ! It is no wonder LA. Weekly calls the book "spell-binding." The Washington Post goes further, saying Toobin's book is "an intelligent page-turner." The San Francisco Chronicle calls it a "book for the expert."

It would be fun to have some insight as to how Toobin came to this conclusion, but the statement does not feature a footnote ... and with good reason ... because it could not be more wrong. We are not certain Toobin could have found anyone else in the universe who would write such a ridiculous statement. And, had Toobin done so, it would have only established one thing: there is at least one other person as clueless about pardons as Jeffrey Toobin.

Throughout American history, presidents have frequently commuted death sentences and, later, their successors have granted pardons to the individuals who were spared. Those quite notable examples stand out in our mind immediately. But many more individuals have received commutations for less serious offenses and were later pardoned by another president. We would guess - with an extremely high level of confidence - more than 100, easily. Very easily.

One intelligent, expert way to address the question is to lift a finger to examine actual data (we recognize that everyone is not situated in such a manner that they are required to do such a thing ... they are, after all "legal experts."). We pulled up a data set of pardons granted by President Taft (this choice of presidents was entirely arbitrary). We then scrolled through the data and found a note leading us to this case:

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Roosevelt commuted the sentence. Taft granted the pardon. It took us all of 17 seconds to find this, which is just about exactly what we expected given our knowledge of the topic.  Been done many, many times before. Arkansas' "Hanging" Judge Isaac Parker, for example, was almost a machine at creating these scenarios. Here (below), in 1902, Theodore Roosevelt pardoned a man whose Parker delivered death sentence was commuted by Benjamin Harrison, in 1889.

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Actually, on June 19, 1923, Warren Harding pardoned two persons who received commutations of sentence from previous presidents. Robert Boutwell of Texas, whose death sentence was commuted by Grover Cleveland in 1896, and Joe Trumble, whose sentence was commuted by President Wilson, in 1920. See Trumble's clemency warrant below (on the left).

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On October 6, 1917, one Walter Phillips was sentenced to six years at Leavenworth. On July 17, 1920, President Wilson commuted the sentence to four years. Phillips was released on parole January 21, 1921. On December 23, 1921, President Harding commuted the sentence to expire on Christmas Day. Phillips was thus no longer considered to be “in custody.” In 1925, President Coolidge concluded that Phillips “had conducted himself as a good citizen” and restored his civil rights with a pardon. Three acts of clemency for one guy, from three different presidents. Spell-binding.

More famously (or, if you will, Hearst-like), there is a big building in Minneapolis, Minnesota with the name FOSHAY on the top. It was named for utility tycoon Wilbur Foshay whose 15-year prison sentence was commuted to 5 years by Franklin Roosevelt on January 23, 1937. Mr. Foshay received a presidential pardon from Harry Truman on March 26, 1951.

Dinshah Ghadiali - whose Spectro-Chrome devise is to physical health what Toobin's commentary is to the pardon power - received two respites from Calvin Coolidge (in 1927) as well as two commutations of sentence (in 1928 and 1929). But it was Franklin Roosevelt who finally granted Ghadiali a pardon, in July of 1937,

Wild west outlaw, motion picture star, Oklahoma gubernatorial candidate and supposed prison mate/ friend of American writer O Henry, Al Jennings had his life- and six-year prison sentences (for assault with intent to kill and mail robbery) commuted by President William McKinley on June 23, 1900. He was then pardoned by President Theodore Roosevelt on February 7, 1907.

William Howard Taft granted two commutations of sentence to W. S. Harlan - the nephew of a U.S. Supreme Court justice (on February 24 and June 21, 1911). Harlan was then pardoned by Woodrow Wilson on September 8, 1913.

When authors used to gather together stories of murder and mayhem on the high seas, they rarely overlooked the multiple murders aboard the Junior and cause celebre Cyrus Plumer. Plumer's sentence was commuted by James Buchanan on July 5, 1859. A full and unconditional pardon was then granted by Ulysses S. Grant on July 18, 1874

Kate Richards O'Hare was the first “important” figure to be indicted under the Espionage Act. O’Hare’s fame and popularity as a socialist speaker increased to the point that she was considered second only to Eugene V. Debs. So, she became the first woman to ever to run for the United States’ Senate. O'Hare was eventually charged with interfering with the war effort by obstruction of recruitment and enlistment in the armed forces and sentenced to five years in the penitentiary. President Wilson commuted O’Hare’s sentence after she had served a little over a year (in May of 1920). President Coolidge granted O’Hare a full pardon in January, 1926.

Then there is one of the most famous clemency cases ever. It led to a classic Supreme Court decision that is standard fare in constitutional law texts (didn't Toobin go to law school?). Vuco Perovich was the first person sentenced to death by hanging in the State of Alaska. He was scheduled to hang on August 14, 1907, but on June 5, 1909, President Taft commuted Perovich’s sentence “to imprisonment for life." He then received a pardon from Calvin Coolidge on July 25, 1927.

Charles Bernstein's case was notable in the District of Columbia. Twice sentenced and originally scheduled for execution. he received reprieves from FDR on January 7, March 4, 1935 and March 25, 1935, and commutations on May 28, 1935, and June 12, 1940. He was finally pardoned by Harry S Truman on April 30, 1945. Bernstein later testified before the House Judiciary Committee and a Senate bill sought compensation for his false convictions. Congress chewed on the matter for seven years and NBC aired a program based on his story - which led to a notable law suit. Probably not enough fireworks for a meticulous scholar / expert like Toobin to even notice.

We don't want to beat a dead horse. We know fame is fleeting. Really, we get it. But you have to work at being as clueless as Toobin is on this front. You gotta want it. Bad.

Far from being simply a matter of calling out sloppy (but really interesting) writing and research, the topic is of considerable import at present. The President has made an issue of commutations and is likely continue to do so. Those interested in reform of the criminal justice system note the collateral consequences of felony convictions make it quite hard for individuals to integrate back into society as law-abiding, productive citizens. They argue the President should also be granting pardons, to restore civil rights, and remove unnecessary hurdles.

Of course, President Obama's term is about to come to an end. Are pardons - from presidents to follow - so freakishly rare that only the likes of Patricia Hearst has pulled one off? Yes, but only if you are unfortunate enough to read - and believe - the "legal expertise" of Jeffrey Toobin.

UPDATE: Having been informed of the information in this post, Jeffrey Toobin has tweeted that he finds it "fascinating."

Virginia: AutoPen Clemency On the Way

The Washington Post reports Gov. Terry McAuliffe "will announce Monday that he has restored voting rights to 13,000 felons on a case-by-case basis." The awkwardness of that phrase is the by- product of the the state's Supreme Court stopping "his more sweeping clemency effort." The Post reports:
Immediately after that ruling, McAuliffe vowed to use an autopen to individually sign orders restoring rights. He promised to do the first 13,000 within a week and all 200,000 within two. 
The Post also says a substantial majority" of Virginians "approve of McAuliffe’s original effort to restore felon rights." See story here.

Friday, August 19, 2016

Delaware: Candidate for Clemency Reform

Delaware 105.9 has a great story on one Kathy McGuiness, a Democrat who is running for lieutenant governor. She hopes to "simply" the pardon process "so people get the second chance they deserve."

First, she hopes to add the option of online application. She thinks old school hard copies are just fine, but "but having the option is the key."

Second, she notes, "If you apply now, your hearing wouldn't be until March of 2017, so there's things we can do to be a little more efficient."

Third, she thinks the state's clemency board should be more "diverse." So she suggests a Constitutional amendment requiring the addition of "one member to each county and from the City of Wilmington to add greater geographic representation."

Fourth, she would "increase transparency" by "making the Board of Pardons' website more comprehensive to include information like the number of applications filed and returned, the number of hearings held and recommendations made or denied annually." Wow! Make this woman U.S. Pardon Attorney!

Fifth, she she proposes a Second Chance Job Training Program, where the state "would partner with participating employers, which would provide eight weeks of training to someone receiving unemployment benefits. At the end of the eight weeks, an employer could extend a permanent job offer to that individual." She says:
"What would make our program unique in Delaware is I would propose that the employer would initially ban from asking the applicant about their criminal history, so that they could actually be evaluated on their job performance first, and only if they were going to extend that job to be a permanent job, then they would conduct a background check ... That would help create opportunities for formerly incarcerated individuals to find jobs ... creating opportunities for someone with this history." 
Delaware's primary is September 13. See story here.

Missouri: 7 Pardons

TheEagle.com reports Missouri Gov. Jay Nixon has announced that he will pardon 7 people, including "a man charged with sexual abuse whose alleged victim later told law enforcement the abuse didn't happen." Pardons also addressed such offenses as "possession of more than 35 grams of marijuana, stealing and writing bad checks." Each recipient had served out his/her sentences. It is also reported that "of 38 pardons during his more than seven years in office, 24 [of Nixon's] were granted this year" - his final month in office. See story here.

Tuesday, August 16, 2016

Ford's Clemency Board Revisited (2)

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Saturday, August 13, 2016

Ford's Clemency Board Revisited

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Monday, August 8, 2016

Osler and Luna at Cato

Weldon Angelos
Mark Osler and Eric Luna write, in part, for the Cato Institute:

"Recently, we stood in a backyard eating barbecue with a man named Weldon Angelos. He was only a few weeks out of federal prison, having been freed some four decades early from a 55-year sentence for selling a small amount of marijuana while possessing firearms ...

...Weldon had been the poster boy of criminal justice reform for liberals and conservatives alike. His liberation is cause for celebration for those who believed the punishment did not fit the crime ...

 ... In Weldon’s case, the law compelled a 55-year sentence. It didn’t matter that Weldon was a first-time offender with no adult record or that he was the father of three young children. Nor did it matter that he never brandished or used the firearms and never caused or threatened any violence or injury.... Most of all, it did not matter that the sentencing judge — a conservative Bush appointee known for being tough on crime — believed that the punishment was “unjust, cruel, and irrational.” Ultimately, the judge was bound not only by the mandatory minimum statute but also the Supreme Court’s jurisprudence, which largely acquiesces to prosecutors’ charging decisions while providing almost no check on excessive prison terms. Absent a doctrinal reversal by the Supreme Court (don’t hold your breath), any meaningful safeguard against misapplication of mandatory minimums will have to come in the form of legislation from Congress or from the president through the application of the clemency power.

Obama Makes History on Two Fronts

Last Wednesday, President Obama granted 214 commutations of sentence, the most any president has ever granted in a single day. In doing so, he broke Franklin Roosevelt's previous record, of 151.

We searched through our data again and discovered President Obama also set another record: for the largest number of individual acts of clemency (pardons, commutations, remissions of fines and forfeiture, respites, etc.) granted in a single day:

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Prof Mark Osler kindly notes that these data would also exclude (in addition to amnesties, or group pardons) grants by Gerald Ford's Presidential Clemency Board - data which are not compiled in DOJ / OPA clemency warrant records. Interestingly, when recent presidents set these marks, it was hardly noticed and no one had any idea of context, whether or not any record had been set. Having gathered comprehensive original data on clemency, the Editor of this Blog is uniquely qualified to provide that context.

Friday, August 5, 2016

Mass Jailbreak, My Eye!

At Crime and Consequences, Bill Otis credits President Obama for his "remarkable success" at engineering the "latest installment of the mass jailbreak" - 214 commutations of sentence granted earlier this week. Indeed, the White House has boasted that the 562 commutations of sentence the President has granted to date amount to "more than the previous nine presidents combined." Says Otis:
Now, when a President commutes more sentences than his nine predecessors combined -- that would be going back more than 50 years -- some might say that this reflects an extremist view of clemency. But no! Barack Obama is the only one marching in step! Kennedy, Johnson, Nixon, Ford, Carter, Reagan, Bush, Clinton, and Bush II were all out of step. 
Well, more seriously, it reflects 1) a political environment that, for decades, over-emphasized the retributive model of criminal justice and politicians - in the spotlight of hostile, sensationalist media - more willing to err on the side of caution (by doing nothing) when it came to federal executive clemency - a check and balance explicitly placed in the Constitution. Of course, it also reflects the fact that 2) President Obama has received exponentially more applications for commutations of sentence than the previous nine presidents. Finally, however any of us (including Otis) may feel about it, 3) both parties in both chambers of Congress have revised sentencing laws deemed inefficient, if not outright unfair, and our over-crowded, expensive prisons are increasingly suspect as a tax payer investment. It makes perfect sense that President Obama would employ the pardon power to address retroactive disparities / inconsistencies consequent to this Congressional revision because it happened during his administration. He is certainly not the first president to utilize such an approach.

Mission: Not Accomplished.

“While the commutations President Obama granted today are an important step forward, they remind us of how much more work this administration has to do if it is to grant relief for every person eligible." Mark Osler, Professor of Law, St. Thomas University.

“But we are not done yet, and we expect that many more men and women will be given a second chance through the Clemency Initiative.” Deputy Attorney General, Sally Yates.

 "Our work is far from finished. I expect the president will continue to grant clemency in a historic and inspiring fashion." White House counsel, Neil Eggleston.

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Goodlatte. Clueless Critic Extraordinaire.

Bob Goodlatte is a Republican in Congress and - unbelievably - serves as Chair, of the House Judiciary Committee. He has issued a statement concerning President Obama's use of the pardon power. If the intellectual scope and rigor of Goodlatte's critique is a sign of things to come, the President should grant pardons and commutations at will, with little fear of anything like serious backlash.

Goodlatte is said to be “deeply concerned” about the size and scope of President Obama's commutations to date. As readers of this blog know, the President was one of the slowest in history to use the clemency power, and his first term was the least merciful since the first term of George Washington. Obama granted a whopping 22 pardons and 1 commutation of sentence. Now, almost a full 8 years into his term, the President has granted 562 commutations of sentence. It is no record. In addition, Obama's grant rate is hardly impressive and he lags behind most multiple term Presidents in his overall use of clemency.

Unaware that the Constitution features separation of powers and a system of checks and balances, Goodlatte says Obama's commutations of sentence are a “blatant usurpation” of Congress’s authority - a kind of stumbling, bumbling boiler plate 'argument' that could be launched in the aftermath of any grant of clemency.

Thursday, August 4, 2016

Former Pardon Attorney on Obama's Clemency Record

Margaret Colgate Love was U.S. Pardon Attorney during one of the least merciful spans of time in American history - from 1990 to 1997, during the administrations of George H.W. Bush and Bill Clinton.

She is now in private practice, representing clients applying for pardons and commutations of sentence. According to U.S. News and World Report, with respect to pardons, she is concerned that they are a "really important part of the clemency caseload," but have "been so neglected” by President Obama. Says Love,
“It’s bad enough that the president is the only way to go for people who have served their sentence and are seeking relief from collateral consequences and restoration of their rights ... But when the president says ‘the door is closed, I’m not home for you,’ that’s very troublesome. I’m not sure he appreciates that in effect is what he’s said.” 
President Obama spoke at length on the topic in a press conference today.

President Obama Talks About the Pardon Power

Gregory Korte of USA Today questions President Obama re the pardon power this afternoon:

Q Thank you, Mr. President. Yesterday, you commuted the sentences of 214 federal inmates. It was the largest single-day grant of commutations in the history of the American presidency. So I wanted to ask you a couple of questions about your clemency thought process.

One is, you’ve talked about this as low-level drug offenders who got mandatory minimum sentences, but about a quarter of the commutations you’ve made also had firearms offenses. Given your overall philosophy on firearms, can you reconcile that for us? And given that previously in your presidency you had sent a memo to the Office of Pardon Attorney saying there was sort of a predisposition against firearms to be granted clemency, why did you change your mind on that?

Also, the other side of the ledger here is pardons. You’ve granted more commutations than any President since Calvin Coolidge. You’ve granted fewer pardons than any two-term President since John Adams. Why is that? Is the focus on commutations taking energy away from pardons, especially since these are -- you’ve talked about second chances; a full pardon would give people a better chance at those second chances.

Re Obama's Commutation Recipients

Below are preliminary data on the distance between sentencing and commutation of sentence for those who have received commutations from President Obama to date. Where there were multiple offenses, we used the sentencing date for the first offense. Similarly, when there were adjustments in sentences over time, we used the original sentencing date.

Years Between Sentencing and Commutation
Number of Recipients
Percentage of All Recipients
Less than 5 years
9
2 percent
5 to 10 years
168
30 percent
11 to 15 years
175
31 percent
16 to 20 years
140
25 percent
21 to 25 years
67
12 percent
26 years +
3
Less than 1 percent



Wednesday, August 3, 2016

Obama and Other Multiple Term Presidents

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Obama's Clemency Record To Date

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