Friday, February 2, 2018

CP 14 Film Wins

A clemency case handled by a Ballard Spahr LLP is the subject of a documentary that won an Audience Award at the Sundance Film Festival. A team of lawyers handled the clemency petition for Cindy Shank, "a pro bono client who sentenced to 15 years in prison for a first-time, nonviolent drug-related offense." “The Sentence”
... is about Shank’s incarceration, its impact on her three daughters and the family’s efforts to lobby for sentencing reform. It is directed by first-time filmmaker Rudy Valdez, Shank’s brother. Valdez began making the film as a way to record his nieces’ childhoods while Shank was in prison, according to the release The documentary also has a deal with HBO for U.S. television and streaming rights, Variety reported. 
See story here.

Saturday, December 23, 2017

Brown: 132 Pardons

The Los Angeles Times reports Gov. Jerry Brown has "granted 132 pardons and commuted 19 sentences" continuing "his tradition of Christmastime clemency." Those pardoned "had already completed their sentences, the majority of which were for drug-related or other nonviolent crimes."According to the Times, "Since beginning his third term as governor in 2011, Brown has pardoned more than 1,000 people — far more than his most recent predecessors, according to figures provided by the governor’s office. See story here.

Notable Christmastime Clemency / Pardons

George Washington granted the first Christmas Eve pardons in December of 1794, but his decision to relieve two Maryland ship owners from punishments associated with an embargo violation appears to have attracted little or no attention.

On the other hand, Rutherford B. Hayes created a furor when he pardoned controversial writer Ezra H. Heywood on Christmas Eve in 1873. Heywood had been arrested by none other than Anthony Comstock (creator of the New York Society for the Suppression of Vice and U.S. Postal Inspector extraordinaire) for an “obscenity” violation.

In 1921, Warren Harding moved up the effective date of the commutation of sentence for socialist presidential candidate Eugene Debs because Harding wanted Debs "to eat his Christmas dinner with his wife."

Calvin Coolidge pardoned Republican member of the U.S. House of Representatives John W. Langley just before Christmas in 1928 and Herbert Hoover did the same for Warren T. McCray, the Republican governor of Indiana, in 1930.

Harry Truman granted controversial pardons to Edward F. Pritchard, Rep. Andrew J. May and Rep. James Parnell Thomas around Christmas and, in 1962, John F. Kennedy granted clemency to Junius Scales and Jake “the Barber” Factor on Christmas Eve. At the time, Scales may have been the most famous former member of the Communist Party in the United States. Barber was a gangland figure turned casino-operator and philanthropist.

As if to top Kennedy, Richard Nixon pardoned Angelo “Gyp” DeCarlo in December of 1972. DeCarlo, who was described by the F.B.I. as a "methodical gangland executioner," was eventually imprisoned for extortion.

James R. Hoffa's clemency application (filed only on the 17th of December) was approved in time for Hoffa to be home by Christmas Eve 1971.

George H.W. Bush's decision to pardon former Secretary of Defense Caspar Weinberger and five other former Reagan administration officials on Christmas Eve 1992 attracted some public attention as well.

Bill Clinton issued several notable pardons to individuals within two or three days of Christmas. Among them were: Freddie Meeks (the last surviving sailor associated with the Port Chicago incident), Rick Hendrick (legendary race car driver) and former U.S. Representative Dan Rostenkowski, who was indicted on charges of corruption in a House post office scandal but pled guilty to the lesser charge of mail fraud and was sentenced to 17 months in federal prison.

Illinois: 10 Pardons

According to the Chicago Tribune, Ilinois Gov. Bruce Rauner "granted 10 petitions for clemency and denied 78 other requests" on Friday Friday. The petitions granted were for crimes including "retail theft, burglary and drug possession." Some involved cases "decades old" and none of the cases involved prison sentences. Rauner says he has "eliminated a backlog of thousands of clemency requests he inherited from previous governors." See full story here.

Texas: 7 Pardons

According to the Houston Chronicle. 7 Texans were pardoned Friday by Gov. Greg Abbott "in his annual Christmastime clemency proclamations." Four were from the Houston area. No reasons were given for pardons or "whether he declined any that were recommended by the parole board." According to the Chronicle, "historically, Texas governors approve pardons for those that clear parole board muster." See story here.

Friday, December 22, 2017

New Jersey: 10 Pardons

North reports "outgoing" Gov. Chris Christie has pardoned 10 people, "including a former Mount Olive police officer who was convicted of obstruction of justice for accessing a federal criminal database as a favor to a neighbor." It was Christie's "largest single batch of pardons in his eight years of office."

In 8 years, Christie issued clemency to "29 people, including 27 pardons and two commutations of sentences, according to a statement from his office. All but three of them have come since 2015, the year he launched his bid for president, and nearly all of them have been for gun-related charges."

See story here.

Thursday, December 21, 2017

Trump's First Commutation of Sentence

... on day 334 of the administration, this is the earliest commutation of sentence granted since 1989, when George H.W. Bush commuted a sentence after 206 days. Lyndon Johnson holds the modern record, at 17 days. Bill Clinton, George W. Bush and Barack Obama all waited over a 1,000 days.

Wednesday, November 29, 2017

Zeidman on Clemency

At the New York Daily News, (story here) Steve Zeidman says that is it "high time to think about the thousands of people behind bars who truly merit" clemency.
... if we want truly to confront the problem of overincarceration, governors need to use their power much more broadly. And not just to free drug offenders, but to release people incarcerated for violent crimes as well. 
Zeidman says "the compelling need for clemency today" is the "direct result of the Draconian sentences routinely meted out in courtrooms across the country over the past several decades."
In New York, rather than a 20-year maximum, there are almost 9,000 people serving sentences with a 20-year minimum, and almost 10,000 people serving sentences with a maximum of life. Nearly 3,000 people have already been locked up for at least 20 years, and more than 2,000 behind bars are older than 60. Contrary to prevailing rhetoric that links mass incarceration to the war on drugs, the fact is the majority of people serving these long sentences are not in prison for drug offenses. Only about 5% of the 52,000 people in New York’s labyrinth of 54 state prisons are there for drug possession, and merely an additional 6% were convicted of selling drugs. 
Zeidman also suggests that "focusing on so-called low-level, nonviolent drug offenders will barely make a dent in the prison population." Gov. Cuomo took what he called “a critical step toward a more just, more fair and more compassionate New York” by creating the first pro bono program for people seeking clemency. He emphasized that his goal was to make clemency “a more accessible and tangible reality.” Zeidman says, "That objective has yet to be realized. Only a small handful of people have received clemency."

In a speech at the annual meeting of the American Bar Association, Supreme Court Justice Anthony Kennedy said:
“The pardon process, of late, seems to have been drained of its moral force. A people confident in its laws and institutions should not be ashamed of mercy. . . . I hope more lawyers involved in the pardon process will say to chief executives, ‘Mr. President,’ or ‘Your Excellency, the Governor, this young man has not served his full sentence, but he has served long enough. Give him what only you can give him. Give him another chance. Give him a priceless gift. Give him liberty.’ ”

Monday, November 13, 2017

Pardon for Murder He Did Not Commit

It is reported that the Nevada Board of Pardons "has voted to clear a man who spent more than two decades in prison for a murder he did not commit."  Gov. Brian Sandoval and seven state Supreme Court justices "voted to issue an unconditional pardon to 54-year-old Fred Steese."

Attorney General Adam Laxalt, however, cast the sole no vote, because of a letter from a District Attorney's office opposing the pardon.
"Steese was convicted of the 1992 killing of a Las Vegas performer but always maintained his innocence. A judge declared him factually innocent in 2012, but the district attorney refiled charges. In order to get out of prison, he pleaded guilty to second-degree murder while maintaining his innocence."
See story here.

Friday, November 3, 2017

Clemency a Conflict?

At The Hill, Kimberly Wehle writes:
[A President] could not obliterate a new criminal law by officially pardoning anyone and everyone who might violate it in the future. That would conflict with Congress’s power to make laws.
We are not so sure. Thomas Jefferson thought the Alien Sedition Acts were unconstitutional, and, once elected, pardoned the only two people remaining in prison because of them. Woodrow Wilson vetoed the Volstead Act and his veto was overridden. Wilson then set records for pardons for persons convicted of drug and alcohol laws.

Clemency a conflict? Sure. Separation of powers and checks and balances.

Precedent for Self Pardon

The Federalist has an excellent article on Isaac I. Stevens, a territorial governor who pardoned himself. Great reading here !

Proposal to Limit the Pardon Power

Democrat Steve Cohen (TN) has introduced a constitutional amendment this week that would " kep presidents from "pardoning themselves, their families, members of their administration or people who worked on their campaign." Rep. Al Green (D-Texas) has also introduced an amendment to "prevent the president from pardoning himself." See story here.

Impeachable Offense, But ...

NPR's Nina Totenberg notes President Trumpo's "rage" has "provoked speculation that he might seek to abort the DOJ investigation by firing Mueller or pardoning Manafort and others as a way of choking off the probe."
Asked Monday if the president would rule out, once and for all, firing Mueller, White House press secretary Sarah Huckabee Sanders said during the daily press briefing that "there is no intention or plan to make any changes in regard to the special counsel."As for potential pardons that would stymie Mueller's investigation, during a photo op in the Oval Office, a reporter asked if the president would pardon Manafort. Trump was silent, said "Thank you," ignoring the question entirely and putting an end to the press questions.
Totenberg says President Trump "could pardon any of the individuals under scrutiny in the Mueller Russia probe" and "seriously impede Mueller's inquiry." But "there is nothing anyone could do to invalidate such pardons."

Cass Sunstein, however, argues that abuse of the pardon power might be an impeachable offense. Indeed, it was one of the complaints levied against Andrew Johnson back in the day. But Prof. Brian Kalt observes, "It's not a coincidence that no president has ever been impeached by a House [of Representatives] controlled by his [own] party." See story here.

Thursday, November 2, 2017

Lowry: No Pardons. No Firing.

At National Review, Rich Lowry argues President Trump should "do what’s hardest for him — nothing ... his instinct to lash out is his worst enemy" something that puts him "at more peril" than "any of the facts that have been uncovered by Mueller, congressional investigators or the press to this point."

Lowry argues firing Muleller would "endanger" Trump's presidency even though "the proverbial net, as far as we know, isn’t closing in." There is "no suggestion" in  Manafort's indictment of "any" of his "alleged wrongdoing, which dates back to 2006, had anything to do with the campaign." His failure to register as a foreign lobbyist "for his work for Ukrainian political players, a fairly common offense among lobbyists" is "usually remedied by an amended filing."

The accusation of laundering millions of dollars (for which "we have no evidence of yet") need not "directly affect Trump."

As for George Papadopoulos, Lowry notes that his plea for lying to the FBI "actually involves his work for the campaign."
He misled investigators about the timing and nature of his contacts with Russians who wanted to set up a Vladimir Putin-Donald Trump meeting and spoke of dirt on Hillary Clinton. This is suggestive, but Papadopoulos was a bit player, and it’s not clear the talk went anywhere. 
Finally, Lowry argues "the option of pre-emptively pardoning everyone targeted by Mueller also is foolhardy." It would "associate the president with the lobbyist’s alleged malfeasance when the point should be to establish distance, and would convince everyone that Trump has something explosive to hide." See full editorial here

Pardon for former Apprentice Star?

At Politico, David Bernstein argues that former Illinois Governor Rod Blagojevich "was sentenced as if he had actually pocketed $1.625 million in cash bribes" and "most of this amount comes from the $1.5 million in campaign contributions that he was offered by backers of then-Representative Jesse Jackson Jr. if Blagojevich named Jackson to Obama’s old Senate seat." And, finally, "No such contribution was ever made."

Bernstein notes the U.S. Probation Department believed Blago's sentence should not have been based on the "unsolicited offer" by Jackson’s associates because there was “not enough evidence to support that this is the amount the defendant could obtain or thought he could obtain.” But the judge rejected the probation department’s recommendation.
... five and a half years into his 14-year sentence, after two trials and multiple appeals, the former Illinois governor is now down to his last legal avenue: a petition for a writ of certiorari, pleading for a review by the Supreme Court. His lawyers are planning to file the petition on November 2. The odds that the court will hear a case are, as always, long, and Blagojevich has already been denied once before. A denial this time around would in all likelihood close his nine-year legal saga. His only remaining hope—a Hail Mary, at best—would be for Donald Trump to issue a presidential pardon or clemency. If not, Blagojevich will have to serve out his sentence at a low-security prison camp outside Denver until he is eligible for release in 2024.
Blagojevich has maintained "adamantly, loudly and to little avail—that he was wrongfully accused," but legal experts tell Bernstein that his case "is no laughing matter" - he "got a raw deal in the courts" that "could serve as a dangerous legal precedent." Why? Because the "expansive standard used to prosecute and convict him" might "make criminals out of virtually every politician in America for the unseemly, but routine, business of political deal-making."

In addition, "a number of recent Supreme Court decisions concerning political corruption, particularly under Chief Justice John Roberts, have given Blagojevich’s legal team cause for hope." 
The question is not whether Blagojevich sought the quid, which is not in itself illegal, but whether he attempted to, or did, deliver the quo, which is illegal if delivered on condition of the quid. Bernstein recalls:
Two juries struggled to sift the smoke from the fire and answer this question. In Blagojevich’s first trial, jurors deliberated for 14 days—an unusually long time—and wound up deadlocked on all but one of 24 counts against Blagojevich: that he lied to the FBI. District Judge James B. Zagel declared a mistrial on the 23 counts on which the jury could not reach a verdict. Eventually, Jury No. 2—after deliberating 10 days—agreed about Blagojevich’s guilt, convicting him of 17 of 20 corruption counts.  ... But in July 2015, a three-judge panel of U.S. Court of Appeals for the Seventh Circuit threw out five of the 18 counts against him. All five of the vacated counts involved Blagojevich’s attempts to sell Obama’s old Senate seat for campaign money or a job—the very same shenanigans that Fitzgerald decried as the “most cynical” and “most appalling” part of Blagojevich’s “political corruption crime spree” ... The judges returned the case back to the lower court for resentencing. Zagel, however, was not persuaded by Blagojevich’s arguments and refused to reduce his sentence, reinstating it in full. 
As for the Supreme Court, it "has redrawn the line between illegal bribery and the ordinary business of politics" in "a series of cases decided between 2010 and 2016. Federal anti-corruption laws declared to be "too broad, and in turn narrowed the legal definition of corruption, making it much harder for the government to win such convictions, let alone serve indictments like the one against Blagojevich in the first place." And, there remains "deep disagreement among the federal circuit courts about the correct legal standard for determining where to draw the line between illegal and innocuous behavior."

See full story here.

Wednesday, November 1, 2017

Florida and Voting Rights

At Huffington Post,  Thomas Kennedy notes that the state of Florida "is among the strictest of states" when it comes to "voter suppression, effectively imposing lifelong disenfranchisement to over 1.5 million people who were formerly incarcerated." He also notes that Governor Rick Scott "has exacerbated the problem" by "rolling back the policy of his predecessor. Scot, according to Kennedy, "holds a total of four clemency hearings a year, fielding requests by less than a 100 people each time." The result has been "a 20,000 person backlog that keeps growing and shows no signs of stopping." See full story here.

Chase on Trump, Pardons.

At Newsweek, Michael Chase notes:
Let me make that more concrete. Under my current view (which I think reflects the rough consensus among constitutional scholars), Trump could issue full pardons today for Manafort, Gates, and Papadopoulos. Presumably the fear of political backlash currently deters him from doing so. 
But if that is all that is stopping the president, the brake is contingent. At some point the fear of what the indictees will say to incriminate Trump could become so great that it would outweigh the risk of political repercussions. 
At that point, we could expect to see a game of whack-a-mole between Mueller and Trump. Mueller obtains a grand jury indictment against Manafort; Trump pardons Manafort. Mueller obtains a grand jury indictment against Mike Flynn; Trump pardons Flynn. Lather, rinse, repeat.
See full editorial here.

Wednesday, September 27, 2017

Contempt of Courts ... and Congress

Rep John Conyers has filed a brief joined "by more than two dozen Democratic members including Reps. Jerrold Nadler of New York, Zoe Lofgren of California and Sheila Jackson Lee of Texas" qhich argues that Donald Trump's pardon of Sheriff Arpaio for contempt of court has "threatened" a fundamental "judicial power." And, if allowed to stand, "could have severe implications for Congress’s ability to compel compliance with its own investigations and orders.” See story here.

Two words: Francis Townsend.

Wednesday, September 13, 2017

Kobil on Trump's First Pardon

Daniel T. Kobil
At the Columbus Dispatch, Prof. Daniel T. Kobil (Capital University Law School) says Donald Trump's first pardon (Sheriff Joe Arpaio) "set an incredibly low bar for the exercise of his clemency authority." In addition, many see it as "a dry run for politically motivated, pre-emptive pardons of illegal behavior by those in Trump’s circle who are currently being investigated by Robert Mueller in his probe of illegal collusion with Russia."

But Kobil argues "acceptance" of a pardon "operates as an admission" of guilt. So, Trump and Arpaio "cannot have it both ways."
Arpaio cannot be both innocent and excused for his crimes against the United States. According to the Supreme Court, acceptance of a presidential pardon constitutes a confession of guilt. That is why those who are wrongly convicted sometimes refuse to accept a pardon: their response understandably is that “I cannot be forgiven for something I did not do.” Indeed, the consequences of accepting a pardon may be an “even greater disgrace than [that] which it purports to relieve.” Burdick v. U.S. 236 U.S. 79 (1915). 
Kobil also sees "a slim possibility" that Arpaio’s pardon "could be invalidated by the courts" even though the Supreme Court "has construed the pardon power broadly." That is because the Court has also said that it cannot be used in a manner that would “otherwise offend the Constitution” or be “constitutionally objectionable.” See full editorial here.

Tuesday, September 12, 2017

DOJ Says "Enough" Re Arpaio

It is reported that the Justice Department "agrees a judge should erase her finding that the former Arizona sheriff Joe Arpaio violated a court order and was guilty of criminal contempt." This is because President Trump's pardon of Arpaio "guaranteed he would face no consequences from the verdict against him." As the DOJ put it, "the government agrees that the Court should vacate all orders and dismiss the case as moot."

Says the Washington Post:
A pardon does not instantly undo a guilty finding, and in most cases, the court record is left undisturbed. That is because the vast majority of presidential pardons are issued long after people are convicted and sentenced, and pardons generally serve to forgive people, rather than to erase what they have done. 
See story here.

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