Friday, November 27, 2015

Obama: "Death Row" Clemency?

Last month, President Obama told an interviewer that the manner in which the death penalty is used in the United States is “deeply troubling.” Bob Egelko, of the San Francisco Chronicle runs with that, noting:
... a plausible interpretation of his words foreshadows a dramatic end-of-term action: a grant of clemency to some or all of the 62 condemned federal prisoners. It is a step that has been taken at the state level in recent decades by a half-dozen governors but never by a U.S. president. 
... by commuting federal prisoners’ sentences to life without the possibility of parole, Obama would stamp the issue as part of his legacy and take a bold action that no successor could overturn.
Were it Lyndon Johnson, or John F. Kennedy, that would be one thing. But this is Barack Obama, one of the most notoriously merciless presidents in American history, the president who has probably said more about clemency and actually done less than any other.

Egelko seems to take the position that extending clemency to persons on federal death row would be politically safe (because, as an issue, it has "less juice") and is, thus, a kind of no-brainer. To be sure, the status of the death penalty - at the federal level - has been ambiguous for some time. 62 people sit on "death row" but the last time anyone was executed was 12 years ago, in 2003. No one was executed in 2002. Two persons were executed in 2001, after a 38 year hiatus. So, there have been 3 executions in the last half century. Makes perfect sense that there is little statistical evidence the death penalty is a deterrent.

Click on Image (Above) to Enlarge
But here is why we should be cautious about over-interpreting Obama's talk - on this front - as some kind of an indicator of action (significant or otherwise): he already has a less juicy, politically safe, clemency front ripe for action. And he is almost completely AWOL. It is called the pardon power. For seven years, despite all of the talk about "hope and change" and "second chances," Obama has granted precious few pardons, 64. Even George W. Bush, whose record on pardons was sickening, granted 184. Bill Clinton, whose pardon record was a disaster, granted almost 400, as did Ronald Reagan before him.

While all of the chatter focuses on commutations of sentence, Obama could be granting pardons to people who committed minor (almost always non-violent) offenses, years (if not decades) ago, who served their time (if they were even given prison sentences) and have been law-abiding, productive members of society ever since - as documented by FBI background checks. They are not asking to be released from prison. They just want their civil rights restored. Obama could be passing out such pardons like candy, by the hundreds. The political risk is just about zero. Chances are, even readers of this blog cannot name three people pardoned by any of the last five presidents - who granted 1,586 pardons.

In sum, an opportunity for significant, just executive decision making plus lack of any significant political risk does not an Obama action make. See full story here.

Wednesday, November 25, 2015

Washington Times Disaster Extraordinaire

Dave Boyer, Writing on Pardons
If Eric E. Sterling has written the Picasso Pardon Editorial for this Thanksgiving season, Dave Boyer of the Washington Times has certainly won the Hindenburg Prize for disastrous pardon journalism. Consulting no (as in not a single one) expert on the topic of pardons, it appears Boyer Google-searched the topic, skimmed the headlines, guzzled some White House press releases and then sailed his readership into a sinkhole of ignorance and stupidity.

Boyer's piece begins by suggesting, this year, President Obama's turkey pardon reflects something that is "becoming increasingly familiar in real life as he forges new policy at a record pace of reprieves for federal prison inmates." Boyer may very well be unaware of the difference between a pardon, commutation and a reprieve, but what on earth is he talking about? Boyer explains:
As of this week, Mr. Obama has commuted the prison sentences of 79 convicted felons in 2015, eclipsing the total number of commutations granted by all four of his predecessors combined. 
Boyer is, apparently, not so familiar with real life facts himself. Obama has commuted 89 sentences, not 79. But that is hardly the most egregious folly here. Boyer does not even mention the fact that Obama has eclipsed the four previous presidents by a grand total of 1 (count 'em - one) commutation of sentence. Nor does he mention the fact that Obama has received more than a thousand more applications for commutations of sentence than his four predecessors combined. Why? Because - on this topic - Boyer is an idiot. That's why.

Click on Image (Above) to Enlarge
According to Boyer, Obama has "picked up the pace of clemency actions dramatically." Wow! He has? That's breaking news ... were it only accurate in some sense of the language. Let's see, here is a look at the "pace" Boyer has so expertly identified:

Click on Image (Above) to Enlarge
Yep, that is quite an impressive stepping up of the "pace." Now, here is the net effect of the Obama / Boyer "pace" :

Click on Image (Above) to Enlarge

In real life, few presidents have been less merciful than Obama, and most of them served a single term, or died before they could even complete a single term.

Boyer then pathetically wallows in the PR and rhetoric that has been the substitute for action for almost seven years now: Obama says "America is a nation of second chances," Obama has a push for criminal-justice reform, Attorney General Eric H. Holder Jr. says there are “deserving individuals," White House counsel Neil Eggleston says there will be a “ramping up” efforts to grant clemency, Mr. Obama "even gave a shoutout to the Koch brothers," blah blah blah.

Perhaps this is all news to Boyer. If so, there is material for three more such "stories" here.

But, to those of us who follow and study this topic a bit more seriously, Boyer's piece is only slightly more useless than the many dozens of "stories" about, say, the origins of turkey pardoning that are relentlessly generated every year. See this train wreck of a story here.

New Jersey: Christie Grants 1 Pardon

Gov. Chris Christie has pardoned 61-year-old John Berry, for a "boardwalk robbery [with toy guns] he committed as a drug-addicted young man more than 40 years ago." Berry is now a "case manager" for the Philadelphia Treatment Court. Says Christie:
“When I hear stories like John’s, I think to myself and I know in my heart that there are so many people who can share in the same type of life-changing success, that same type of redemption, if only they had a little help along the way, not only from us but from God, and know that there’s a way to get it.” 
The pardon erases Berry's criminal record. He has been married since 1990, graduated from college and is the father of three:
“This is really, after having served now nearly six years as governor, this is truly one of the truly extraordinary things you get to do as governor, is to sign these pardons and to know that you have an opportunity to play a bit of a role in somebody’s life that’s as extraordinary as John is, as you can just see ... I said to him before: This is no gift from me. This is something John’s earned.” 
See complete story here.

Illinois: 10 Pardons

Governor Bruce Rauner acted on 210 clemency petitions on Wednesday, granting ten. According to a release from Governor Rauner's Office, all petitions acted upon are part of dockets dating back to April 2007, and that almost 1,200 clemency petitions remain from previous administrations. Officials say this is the fifth set of clemency petitions that Governor Rauner has reviewed during his tenure. Two hundred petitions were denied by Governor Rauner. Officials also say all 10 individuals granted clemency have undergone a recent criminal background check through the ISP's Law Enforcement Agencies Data System.

Tuesday, November 24, 2015

Pardon People, Not Turkeys

Eric E. Sterling
This is the time of year when we have to suffer through a wave of stories about presidential "pardoning" of turkeys. And there are always - always - several articles by persons investigating the history of the practice, blah, blah, blah. If there is ever a "good side" to all of this nonsense, it is the occasional editorial piece that appears in the news cycle which blasts away at the stupidity of it all. Eric E. Sterling, Executive Director, Criminal Justice Policy Foundation, is this year's star. He has a piece at Huffington Post.

Sterling calls turkey pardoning:
" ... an unintentionally cruel mocking of this important power that is last hope of tens of thousands of children who ache to be reunited with parents who have spent their lives in federal prison, and which President Obama has incomprehensibly failed to use adequately."
His editorial observes that "about 11,000" people "have have been waiting for President Obama to answer their petitions to commute their prison sentences." In a really great passage he writes:
The revolutionary lawyers who shaped the Constitution -- John Jay, James Madison, Alexander Hamilton, and John Adams -- knew that even the best justice system inevitably makes mistakes and a mechanism to address those mistakes must be regularly used. The primacy of this power in the eyes of the framers of the Constitution is revealed because they put this power in the same sentence that makes the President the Commander in Chief. 
Sterling notes that the federal prison population "exploded from 24,640 in 1980, to 219,298 by 2013" and "that mass incarceration is unjust, tragic and wasteful."  To make matters worse, "the ultimate institutional safety valve, the President's power of reprieve and pardon, was undermined and broken."
Leaving office, President George W. Bush suggested to the new President Barack Obama that he address this issue. The President and the Attorney General have failed to fix the broken Office of the Pardon Attorney that supports the President's reprieve and pardon decision-making. 
President Obama has clearly "failed" and Sterling finds his inaction "incomprehensible" because 1) "an enormous fraction of Americans agree that there are tens of thousands of federal prisoners serving unjustly long sentences for drug offenses 2) "in hundreds of cases over the years, federal judges [confessed] from the bench that the sentence was unjustly long" 3) "the mismanagement of the Pardon Attorney's Office [remains] unfixed" 4) "petitions that have been sent to him [have] been functionally ignored and languishing.

Read this very fine editorial in its entirity here, and a list of 25 women referenced therein here.

Friday, November 20, 2015

Montana: Beach Granted Clemency !

NBC News reports Barry Beach has "walked out of the Montana State Prison a free man a little after noon MST today." Montana Governor Steve Bullock granted clemency after Beach had served more than 32 years in prison for a 1979 murder. He has long maintained his innocence but was turned down by Montana's Board of Pardons and Paroles last year. The state legislature then passed a law allowing the Governor to pardon even if the Board denies an application. See story here.

See our own previous coverage of his somewhat bizarre case here.

Minnesota: Inside Look at Pardoning

Briana Bierschbach of has a fantastic story on the pardon process in the State. It notes that the Minnesota Board of Pardons has the power to "effectively clear someone’s criminal record" even though it does not hold "official judicial proceeding[s]," It is composed of the State's attorney general, the chief justice of the Minnesota Supreme Court and the governor. Although the Board can commute sentences, it usually grants “pardon extraordinaries” which "legally absolv[e] citizens of their crimes after they’ve served their time and shown demonstrable rehabilitation." Bierschbach notes:
Over the last century, the state of Minnesota has gone from generously granting pardons to criminals to a system that only occasionally grants forgiveness ... While the board used to pardon people regularly for crimes like sexual and physical assault — even murder — today someone seeking clemency for disorderly conduct or theft might not receive an official pardon. And Minnesota’s unique, three-person system sets a high bar: The vote to pardon someone must be unanimous
The piece also notes that the Board meets only twice a year and:
Violent offenders must wait 10 years after their sentence has expired to be eligible for a pardon extraordinary, and even after that wait, violent offenses are rarely granted clemency from the Board of Pardons. From 1992 to 2012, about 82 percent of pardon extraordinaries granted by the board were for nonviolent crimes, according to data from the Department of Corrections. 
The story goes on to provide some interesting detail on a couple of applications and is excellent reading, Give it a look in its entirety here.

Jonathan Pollard Released After 30 Years !

The Los Angeles Times reports 61 year old Jonathan Pollard, long on our Pardon Watch List, has been paroled !

No other individual has been the focus of letters and phone calls of support for pardon to the Editor of this blog. The campaign for Pollard's release has been enduring and relentless, first calling for pardon, then commutation of sentence.

In November 2010, 39 members of Congress submitted a "Plea Of Clemency" to the White House on Pollard's behalf, asking for an immediate release. In February 2011, Arlen Specter, Chairman of hte Senate Intelligence Committee, wrote a letter to President Obama stating that Pollard should be pardoned and released. Specter was the second Chair of that Committee to publicly call for the release of Jonathan Pollard

The Times reports:
Pollard’s release was not opposed by the Justice Department last summer, much to the disappointment of a bipartisan coalition of the country’s national security elite, who have long argued that he had severely damaged U.S. interests.
Pollard - as a Naval intelligence analyst - shared classified intelligence information amounting to "thousands" of documents "(sometimes rolling it out in grocery carts) including technical information about "U.S. information systems and satellites, photographs, maps and classified manuals." He claimed to have done so out of his love for our ally Israel.

At trial, prosecutors asked for a sentence of a substantial number of years, which was the result of a plea bargaining agreement but, ultimately, a recommendation that did not bind the trial judge. It was at that point that a "secret document" was submitted to the judge (and not Pollard's attorneys) by none other than Caspar Weinberger, the Secretary of Defense. Based on that document, the judge gave Pollard a life sentence.

Israel denied Pollard was a spy at first, but eventually began to lobby for his release, at one point, along with clemency for fugitive Marc Rich. See story here.

The AP reports, here, Pollard's parole conditions include the "requirement that he wear a GPS ankle bracelet and submit to inspections of his computer at his home or at his job,"

Wednesday, November 18, 2015

The Big Revamp and Efficiency

The Obama administration has, in theory, "revamped" the clemency office (as he calls it) to be a more lean, mean, efficiency machine. Our experience with FOIA requests in that office leaves us with a different impression. As of today, our last three FOIA requests have all been lingering for over 100 days (see chart below). One is approaching a full year. May have to send it a birthday card!

Before the big "revamp" similar requests were routinely handled in less than 20 days, many times in 10 or less.

With our last request, we were informed - for the first time ever - that the office "assigns incoming requests to one of three tracks: simple, complex, or expedited." Each request "is then handled on a first-in, first-out basis in relation to other requests in the same track." Further, we are informed,
"Simple requests usually receive a response in approximately one month, whereas complex requests necessarily take longer.  At this time, your request has been assigned to the complex track."
So, it appears that what was once a simple request is, now, for the Obama administration, "a complex request."
No. Date Request Response Wait (Days)
1 5/22/2011 2011-058 6/6/2011 15
2 6/6/2011 2011-061 6/23/2011 17
3 6/23/2011 2011-0710 7/8/2011 15
4 7/8/2011 2011-076 7/20/2011 12
5 7/25/2011 2011-083 8/8/2011 14
6 8/17/2011 2011-096 9/1/2011 15
7 9/18/2011 2011-101 9/28/2011 10
8 11/7/2011 2012-012 11/17/2011 10
9 11/21/2011 2012-18 11/29/2011 8
10 11/30/2011 2012-023 12/1/2011 1
11 12/1/2011 2012-025 12/5/2011 4
12 2/19/2013 2013-034 2/21/2013 2
14 12/17/2014 2015-018 waiting 336
15 3/31/2015 2015-065 waiting 232
16 7/13/2015 2015-086 waiting 128

Clemency Neglect in Three Charts

Chart A: At the front end of history, there were few federal criminal statutes and thus few offenders to be pardoned. From James Monroe forward, however, presidents generally granted at least one pardon in 90 percent of the months that they served. Abraham Lincoln was the first president to grant at least one pardon in every month of a term. Notice presidents thereafter remained at least in the high 90s until the new norm was introduced by Dwight Eisenhower:

Click on Image (Above) to Enlarge
Chart B: Bill Clinton set a record for the highest number of months in a term without the granting of a single pardon (46). Amazingly, that record was tied in Barack Obama's first term.

Click on Image (Above) to Enlarge
Chart C: George W. Bush's first term was notable for the highest number of consecutive months without a single act of clemency (23). The record was immediately tied by Barack Obama.

Click on Image (Above) to Enlarge
The Editor will update these charts / generalizations (by adding Washington and Adams) in a future post. 

Monday, November 16, 2015

Michigan Adopts the Federal Model: Impressive Talk, Little Action

The Lansing State Journal is featuring an article which notes that Governor Snyder "cleared" the criminal records of only 11 people last year - among hundreds of requests he has received since 2011. This year, he has yet to grant a single pardon. Over 90 requests have been received this year.

Corrections Department spokesman Chris Gautz calls pardons "a rare step.” No kidding.

The Journal reports, however, that a deputy director at the Corrections Department says the Governor really wants to help people whose convictions are “inhibiting them from advancing economically.” Indeed, a "spokesman" says the Governor “believes pardons should be used in circumstances when a criminal conviction was a significant barrier to a person being able to get a job and support their family.”

That is really impressive sounding talk. We guess, the Governor, evidently is just not very skilled at showing all of this concern. See full story here,

Friday, November 13, 2015

Kentucky: A Merciless Regime Ends

With exceptional casualness, the Courier-Journal notes Gov. Steve Beshear has had "thousands" of clemency applications come into his office over the last eight years, but "he has not yet decided whether he will issue any pardons before leaving office at midnight." To date, he has not granted a single pardon because "traditionally, Kentucky governors have waited until their final day in office to issue any pardons."

Birthplace of Abraham Lincoln?

What an exceptional tribute to how wrong things can be.

See story here.

Wednesday, November 4, 2015

O'Reilly, Reagan, Clemency

Bill O'Reilly, who claims to be an admirer of Ronald Reagan, is beside himself that President Obama (and the U.S. Sentencing Commission) supports the idea of lining up sentences resulting from previous federal convictions in drug cases - under laws that are now defunct - with current sentencing guidelines. O'Reilly also takes the awkward position that all drug offenses are, by definition, "violent." Hence his self-righteous indignation. That is why we wonder if he is familiar with one of Ronald Reagan's commutations (of a life sentence), for one of the very worst, most heinous, types of offenders, a kidnapper:

Click on Image Above to Enlarge

Monday, November 2, 2015

O'Reilly: Talking Points Gas

Tonight, Bill O'Reilly began his program by asking, "Why is President Obama releasing thousands of hard drug dealers?" He then claimed that he would give the "real reason" why. O'Reilly started his "talking points" segment by saying the "liberal point" of view is that prison sentences for drug offenses have not been "just" and that prisons are just "too expensive."

But, O'Reilly says, the "real reasons" drug offenders are being released at "the behest of Obama" are as follows: 1) The left believes police target African Americans 2) Many liberals want to legalize all drugs and 3) Obama thinks rehabilitation is better than incarceration. O'Reilly concludes that the "acceptance and promotion" of "the drug culture" is shameful.

For starters, both parties, in both chambers of Congress concluded that the old 100 to 1 disparity in crack to powder cocaine sentencing (which O'Reilly never mentions specifically) was ineffective and unfair. O'Reilly has yet to explain, with any degree of detail, why all of those Representatives and Senators were wrong. Second, the concerns about the costs of mass incarceration are far from merely being a "liberal" / "left" concern. The world is changing around Mr. O'Reilly and he is either completely unaware of it, or in an impressive tsunami of denial.

Obama v. Other Two Term Presidents

Click on Image to Enlarge

Thursday, October 29, 2015

Another Mandatory Minimum ...

Ronald Evans says, "I had committed a very big and serious definite mistake ... I always wish I had taken 'The Other Road.'" Arrested just after his 18th birthday, Evans was sentenced, in 1993, at age 19, to life in prison without the possibility of parole, the only option because of a mandatory minimum sentence.

An ABC News report says:
Evans was just 15 years old, living with his mother in public housing in Norfolk, Virginia ... in a neighborhood riddled with crime and rampant drug use ... some older boys he knew offered him $50 a day to function as a "look-out" for their drug retailing operation, it seemed like easy money. "That was what everyone my age and older was doing,” Evans said. Based on what he saw in his neighborhood, he believed at the time "there was nothing wrong with it." ... Within a couple of years, Evans had moved into transporting money and drugs, actively selling heroin to addicted buyers, he said ... authorities swooped in to detain Evans and charge him with conspiracy and possession with intent to distribute. With no drugs and no weapons in his possession, the government used only the testimony from his co-defendants to hold him accountable for large amounts of heroin, cocaine, and crack in the streets. 
Now the 41-year-old non-violent drug offender wants to spend time with his 23 year old son, born just after he entered prison. Says Evans, "Everyone needs, deserves, and should be accorded a second chance at life ... I only hope and pray that one day, just one day, someone can accord me enough trust, and have an ounce of faith in me, to see the sincerity that is within me now and for all time." Read full story here.

Monday, October 26, 2015

Obama: More Talk

After almost seven years, lots and lots of talk, and precious little pardoning, President Obama sat down with The Marshall Project and delivered - at least arguably - some of the most dramatic talk yet:

Bill Keller: While we are talking about actions at your disposal, you’ve said on several occasions that there are a lot of people in prisons who shouldn’t be there, and a lot of people point to your record on pardons and commutations, each of which is in the double digits, although thousands of people have applied for relief. Will we be seeing more of that between now and the end of your term and will it be large numbers? 

President Obama: Well, when I came into office and I became interested in this issue, part of what we had to deal with was a legacy process where we had an understaffed and fairly constrained funnel in the Department of Justice through which recommendations came to me. And, after the first couple of rounds, I started noticing that the kinds of cases that were coming up were … a sixty year old convicting of check kiting and was interested in getting his right to get a license for a firearm … and I said, we don’t seem to be getting a pool that’s broad enough to encompass all of the folks who, you know, may have gotten excessive sentences, for example, non-violent drug transactions. And, so what we have had to do is build inside the Justice Department greater capacity. And that has opened up the aperture. We are now getting more applications. We’re processing them more effectively. I think what you have seen is a steady ramp up through this change. And you should anticipate that, over the next year and a half, I’m making a big push to try to get as many of these cases reviewed and I don’t put either a floor or ceiling in terms of how many commutations we might do. Public safety is upper most on our minds. But I am confident that there are a lot more folks who qualify under the criteria that we’ve set forth than I’ve already acted on. And that means we’ve got to speed up the process.

The President's commentary is notable for a number of reasons. First, it doubles down on the bizarro narrative floated back in March. Apparently, when the President says "first couple of rounds," he means "first six years!" Second, the President suggests that "more applications" are coming in, but everybody knows he has been getting record numbers of clemency applications from the get go. There has never been a shortage of applications, or talk for that matter. There has only been a shortage of action. Third, at present, there is no evidence whatsoever that applications are being processed more efficiently. At least one former U.S. Pardon Attorney is certain it is otherwise. Finally, one has to wonder; will a Bill Clinton / Haley Barbour style last-minute rush of hundreds/thousands of pardons/commutations be good for America? Good for the pardon power?

Obama Doubles Down on Pardon Narrative

Thursday, October 22, 2015

New York: Adopting the Failed Federal Model?

The New York Times suggests that New York Governor Andrew Cuomo is undergoing a "shift" from "prison" to "more mercy," after going five years without commuting a single sentence, "despite earlier promises" and despite the wild enthusiasm and dedication to clemency that Cuomo evidenced when he opened - we're sorry! - "unveiled" a new web page ten months ago.

What brought about this headline? Cuomo granted a mere five pardons before (three on New Year's Eve 2013, two on New Year's Day, 2015) and is now commuting the sentences of two persons convicted on drug charges and pardoning two others who are at risk for being deported.

9 whopping acts of clemency since 2011 ... a record even more abysmal than that of President Obama.

Wednesday, October 21, 2015

CNN on Prison Reform

CNN has provided a kind of introductory / update piece to the topic of prison reform in the United States using the upcoming release of thousands of inmates from federal prisons as a springboard. They (the inmates) have served an average of 9 years and most would be released within the next 18 months anyway. Many are already in so-called "half-way" houses and about 1/3/ will be deported. But why?

People like Sen. Cory Booker, D-New Jersey and Derek Cohen of the conservative think tank Right on Crime are lining up, for a variety of reasons - some economic, others related to basic notions of justice. The U.S. Senate is also "considering big changes." It is considering legislation that will 1) remove the "three strikes" law calling for mandatory life sentences 2) allow crack offenders to challenge their sentences by retroactively - via 2010 legislation 3) reduce solitary confinement in juvenile facilities 4) empower judges to use more discretion

Says CNN:
While praising Obama for visiting a federal prison, political science professor and author P. S. Ruckman Jr. said the President should and can do more. "He can grant more pardons and commutations of sentence," Ruckman wrote in a CNN commentary. "Obama has granted exactly one more commutation than the previous four presidents combined, even though he has received over 1,000 more applications for commutations of sentence than the previous four combined. Amazingly, Obama's record on pardons is even worse." 
See full story here.

blogger templates | Make Money Online