Ford's Clemency Board Revisited

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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.

... Unfortunately, the federal clemency system is also dysfunctional. Weldon’s petition for clemency was filed in November 2012 — and it then sat, unresolved one way or another, for three-and-a-half years. The support for the petition was unprecedented, spanning activists, academics and experts from every political camp imaginable. While Weldon is not wealthy and could not afford high-priced lobbyists or attorneys, the facts of his case drove the story onto the pages of leading news outlets. Yet nothing happened. Even when the Obama administration launched the “Clemency Project 2014” and Weldon’s case was accepted into that program, he languished in prison as the petition slogged through the seven vertical levels of review any successful clemency case must navigate. Clemency is meant for cases like Weldon’s, where the requirements of the law exceed the imperatives of justice. The fact that a case like his cannot receive clemency from an administration dedicated to expanding the use of this presidential prerogative lays bare the root problem we face — too much process and bureaucracy coursing through a Department of Justice that bears a built-in conflict of interest."

See full post here.

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.

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.

As an aside, we are guessing Otis is not aware of the fact that, for a considerable portion of time, presidents granted as many commutations as they did pardons. Sometimes, they even granted more commutations than they did pardons.

But, let's go to lah-lah land for a minute and add 1,000 commutations of sentence to President Obama's current total. Here is what the "mass jailbreak" would look like:

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See Otis' full commentary here.

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.

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

Obama and Other Multiple Term Presidents

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Obama's Clemency Record To Date

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Clinton: Perfect Time to Talk About the Pardon Power!

President Obama has just set a record for commutations of sentence granted in a single day. What a GREAT time it is for Hillary Clinton to make a public statement re her views of the pardon power!

Obama: Second Only to Wilson and Coolidge in Commutations

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Commutations Announced Today ...

Word is President Obama will be granting 214 commutations of sentence today. If so, it will be a record for commutations of sentence granted in a single day.

The previous record was set by Franklin Roosevelt on July 26, 1935. On that day, FDR granted 151 commutations of sentence. Below is a chart of notable single day commutation grants. For those with more technical knowledge of clemency, President Obama's record is clearly established even with the blur between commutations and pardons that existed in the 1700s and 1800s.

President	Date	Number of Commutations	Notes
Obama	8/3/2016	214	drug offenses
FDR	7/26/1935	151	cond. deportations
Wilson	3/3/1919	51	49 vio. Esionage  Act
Wilson	4/22/1919	49	48 vio. Espionage Act.
Harding	6/19/1923	44	22 for esp. vio. select. serv. act.
Cleveland	12/4/1896	43	All for cutting timber on government land
Coolidge	12/15/1923	31	29 hindering select. serv.act.
Hoover	1/7/1932	25	All for Ill. entering country, cond. deportation
T.Roos	6/9/1903	24	17 for larceny of a horse / 1 mule
Harding	12/23/1921	23	19 esp .select. serv. act
Wilson	10/13/1920	18
Taft	6/10/1910	17	10 sell. liq. indians
T.Roos	12/18/1905	12
Cleveland	8/20/1888	9	All for hazing, Navy
Taft	5/11/1912	8	consp. restraint trade

Keys to Eggleston: Get Me Clemency From Obama!

Matthew Keys

Josh Gerstein (Politico) writes that Matthew Keys, "a California-based journalist facing a two-year prison term after being convicted in a hacking case," is looking for help from President Obama. More specifically, Keys - who maintains his innocence - is entering prison for:

" ... posting login credentials for a Tribune Co. publishing system in an online forum used by members of the hacking group Anonymous. At a trial last fall in federal court in Sacramento, a jury convicted Keys of three felony counts of violating the Computer Fraud and Abuse Act. over the episode, which led to a news story on the Los Angeles Times website being briefly defaced."

Notably, Keys is not not making his play to the Office of the Pardon Attorney, in the Department of Justice, where record numbers of applications are being denied, closed, or left pending and the receipt of FOIA requests are not even recognized, much less addressed.

No, Keys addressed his letter to White House Counsel Neil "Starving and Sleepless" Eggleston and - Gerstein tells us - argues his crime was "relatively innocuous" and his sentence "is wildly excessive." Keys wrote:

 "Although I do not understand the nuances of law, I am aware that at this point only presidential intervention in the form of a commutation of sentence or a presidential pardon can prevent the execution of this draconian sentence ... Therefore, I respectfully request your assistance in advocating on my behalf for President Obama to review my case and consider using any and all executive powers afforded to him in preventing my scheduled incarceration and any other provision of the sentence for his he feels is unjustified and unwarranted. Doing so would not only reverse what many consider to be an unwarranted sentence triggered by an overzealous prosecutor based on a draconian and outdated law, it will allow me to continue serving the public as a journalist." 

See Gerstein's full story here.

Salon: On The Ten Worst Sentences for Marijuana-Related Crimes

Amy Povah for Justice, Freedom

"John Knock received two life sentences plus 20 years behind bars for his alleged involvement in marijuana trafficking from Pakistan and Lebanon to the United States and Canada in the mid-’90s. Knock was living in Hawaii when he was extradited to Florida, a state in which he had never lived, to face charges related to a reverse sting because of his connection to an indicted San Francisco smuggler. The only evidence against him was the testimony of informants, and yet Knock is on track to die behind bars. While a life sentence for marijuana may seem incredibly rare, it has been handed to multiple nonviolent offenders. (For more information, visit www.lifeforpot.com)." See full Salon article here.

Daily Signal Clemency Fail

According to The Daily Signal, Hans von Spakovsky "is an authority on a wide range of issues—including civil rights, civil justice, the First Amendment, immigration, the rule of law and government reform—as a senior legal fellow in The Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies." When it comes to the pardon power, however, he appears not to be the brightest bulb.

In a stumbling, bumbling piece, Spakovsky says he is "concerned over President Barack Obama’s excessive use of his power under Art. II, §2, Cl. 1 of the Constitution to grant pardons and commutations." So, you know right away that this will be an entertaining read. Obama was exceptionally slow to grant the first pardon of his administration. His first term (featuring a mere 22 pardons and 1 commutation of sentence) was the least merciful since the first term of George Washington! Obama's record on pardons remains abysmal.

So, what planet is Spakovsky on?

Well, more specifically, he is concerned that Obama has extended clemency to "hundreds of drug dealers, many of whom also were convicted of firearms offenses." Of course, the word "many" is a red flag. If you have some data, let's see it! But, regardless, does the President have the power to extend clemency to such persons? Of course he does. Has Obama violated some constitutional limit on classes of pardonable offenses, or offenders? Certainly not.

A Long, Hot, Merciless Summer

President Obama recently invited interested persons to the White House to discuss issues related to federal executive clemency. White House counsel Neil Eggleston appeared at the event and said there would be no sleeping or eating until the DOJ bureaucracy processed its record backlog of commutation applications.

Here (below) is a summary of how the first 9 weeks of the President's last summer in office have flushed out. Quite the weight loss plan that.

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California: Saunders on Van Houten

Gov. Jerry Brown has reversed a parole board recommendation to parole 66-year old Leslie Van Houten for her role in double murders committed by the so-called Manson Family in 1969. The board notes she is remorseful, has accepted responsibility, and poses no danger to society. Gov. Brown, however says,

“As our Supreme Court has acknowledged, in rare circumstances a crime is so atrocious that it provides evidence of current dangerousness by itself.” 

San Francisco Chronicle columnist Debra Saunders thinks the Governor is on to something. She reminds us that Manson is "best remembered" for leading his "followers to kill five people in "brutal, premeditated acts of terrorism designed to spark Manson’s envisioned race war between black and white."

Van Houten was sentenced her to death in 1971, but her sentence was commuted to life by the California Supreme Court. After a retrial, she received a sentence of life with the possibility of parole. Looking over Van Houten's prison record and experience, Saunders agrees that she "fits the very model of redemption" but adds:

I believe that if Van Houten is truly remorseful, then she should accept that her punishment is to spend her days repenting in a correctional facility. I don’t make light of prison and the loss of autonomy. But life behind bars is a fitting sentence for torture/murder. Manson’s design was to terrorize civil society. Van Houten tried to burn down that house. She doesn’t get to come back into the house. 

See full column here.

Montana: Recommendation for Clemency

The State's Board of Pardons and Parole voted unanimously to grant executive clemency to Russell Delano Foster who was "convicted of having sex without consent who then married the female and raised a family."   Great Falls Tribune reports:

If approved by the governor, it would be the second time House Bill 43 has been used to grant clemency. Passed in 2015, the bill gives the governor final authority over clemency requests from people convicted of crimes. The governor also would be able to waive fines, lessen a sentence or pardon someone. 

Foster was convicted in 2000, when he was 19 and his victim (and future wife) was 15. They married in 2004, and now have four children. The petition was first sent a request to the Board in 2012 and were denied. See story here.