Friday, October 31, 2014

Commutations of Sentence: An Historical Perspective

Clemency Project 2014 is a "working group" composed of "lawyers and advocates including the Federal Defenders, the American Civil Liberties Union, Families Against Mandatory Minimums, the American Bar Association, and the National Association of Criminal Defense Lawyers, as well as individuals active within those organizations" launched in January after Deputy Attorney General James Cole asked the legal profession to provide pro bono assistance to federal prisoners who would likely have received a shorter sentenced if they had been sentenced today.

As of this date: 25,426 federal prisoners have submitted applications and 4,864 applications are "currently under attorney review." 

What would 4,864 commutations look like, from an historical perspective? Because the language of clemency grants has changed over time, it is only possible to go back so far in time in data exercises. Furthermore, aggregate data gathered by the Department of Justice are erroneous, because more than one president served in the same fiscal year in the early 1900s. The best data (ours) suggests that the distribution of commutations of sentence, per year of the term, for comparable presidents, looks like this:

Click on Image (Above) to Enlarge
Thus, it appears anything much over 300 hundred of commutations of sentence would put President Obama in "unprecedented" territory. 5,000 plus commutations of sentence would be off the charts. Literally. That would be something for a president slow to use the pardon power and - to date - one of the least merciful presidents in the history of the United States.

Obama's Monthly Clemency Record

Click on Image (Above) to Enlarge

Merciless October. Once Again.

October is over! Thank goodness!

Want a pardon or commutation of sentence? In October, you can forget about it.

For six years, Barack Obama has not granted a single pardon or commutation of sentence in the month of October. Over eight years, George W. Bush granted zero in the month of October.

But, there is more.

Bill Clinton granted a total of seven pardons across his eight years in office during the month of October - all seven of them being granted in October of 2000. In his four years as president, George H.W. Bush granted zero pardons and commutations in the month of October.

What does it all mean? It means, across 26 years, four different presidents, both Republican and Democrat have issued a grand total of 7 pardons in the month of October. Since all of them were granted by one president, in a single October, it means 25 of the last 26 Octobers have featured zero pardons and commutations. The odds are better that the Great Pumpkin will appear ... next year!

Thursday, October 30, 2014

Missouri: Call for Clemency

The St. Louis Dispatch reports three Missouri women "suffered through years of abuse by their partners" but "went to prison for murder." However, a "newly formed coalition of lawyers, professors and lawmakers" are now calling on Gov. Jay Nixon to commute the sentence of a total of 14 women who are similarly circumstanced.

So far, Nixon has used the pardon power once. Meanwhile, 212 applications have been denied and more than 2,3000 applications are pending.

According to the coalition:
Of the 14 cases chosen, the group said nine women had no direct involvement in the violence for which they were accused, and the others acted under duress and after years of abuse. Five are over age 60; three have served more than 30 years in prison. 
The Dispatch also reports that the five Missouri governors previous to Nixon, "on both sides of the political aisle, collectively granted clemency 160 times." See post here.

Tuesday, October 21, 2014

Maryland: The Times They are a Changin' (Part 24)

Larry Hogan
ABC 7 reports Republican Larry Hogan says "a governor's authority to commute sentences and pardon prisoners is an important power that he would rejuvenate if he is elected governor." Hogan, contrasts himself with Gov. Martin O'Malley who "hasn't made pardons and commutations a priority of his tenure."

Hogan also notes that one can be "a tough law and order candidate" and yet, at the same time, agree with the Founding Fathers of this Nation that "there are people who need the pardon and commutation process." So, Hogan says he will seek help from former Gov. Robert Ehrlich "in using the power more."

The latest nail in the coffin of the Willie Horton Myth. See story here.

Thursday, October 9, 2014

Massachusetts: Governor Considers Constitutional Duty for First Time

Governor Deval Patrick has been granted the pardon power because his State's Founders envisioned a system of separated powers and checks and balance. Patrick, however, has not granted a single pardon in almost eight years! The State's Parole board once recommended that he grant a pardon. He disagreed. According to the Boston Globe:
[Patrick] considered granting pardons to an entire class of convicts serving time for nonviolent drug offenses but found it was too difficult to pinpoint them since were tangled up in other, more serious legal issues. 
Now, the Governor is said to be "considering three men for pardons, including two with drug convictions in the 1990s and one who was incarcerated after an armed assault in 1989." See story here.

Wednesday, October 8, 2014

Puff the Magic Fundraiser

The Van Wert  (Ohio) Times Bulletin notes "questions" have arisen  over the appearances of musician Peter Yarrow at local schools. More specifically, "concerns" have arisen over Yarrow’s "criminal record" - almost 50 years ago, Yarrow was convicted of "taking immoral liberties with a 14-year-old girl." Yarrow served a sentence for the conviction, but was pardoned by Jimmy Carter. Since then, he has spoken to thousands of school children "all over the world about respect for each other and most recently on anti-bullying."

The programming committee of the Niswonger Performing Arts Center was unaware of Yarrow's arrest.
Yarrow pointed out that he understands why some are questioning his performance. “It’s a sign of the times,” he noted. “I fully understand with (Jerry) Sandusky and with the Catholic Church, but it is shocking to see that this kind of real criminal behavior has been perpetrated against our children. And in my case, I made a mistake in an era in which unfortunately it was very common for us to be surrounded with inappropriate attention from young girls, and I have very frequently expressed not only my real sorrow and apology for having done this because it was absolutely wrong, but I also went to jail for two-and-a-half months and I was given a pardon by President Carter. There’s a certain point in which you say, ‘I have paid my debt to society, I have lived what I hope is a very caring, productive life, I am deeply devoted to making the world a better place in a multitude of ways,' and at a certain point there might be a time when people can say, ‘thank you for doing the work and continue it.’” 
Yarrow made no reference to the role that he played a major Democratic party fundraiser, the last- minute nature of his pardon or the manner in which his application freakishly flew through the federal bureaucracy, skipping line, in front of hundreds of other applicants. See full news story here.

See our own coverage of the Peter Yarrow case (and pardon) here.

Tuesday, October 7, 2014

The Costs of Merciless Policies

The Boston Globe notes Massachusetts is one of only 5 states that do not have a compassionate release program. So, a 72 year old prisoner who has spent nearly 50 years in prison (for murder) now "spends most of his time in a hospital bed, immobile, mute, and suffering from end-stage dementia."
"More than 30 other inmates" in the State's system have been diagnosed as "terminally ill or permanently incapacitated" raising the question: "what do you do with an inmate who is so ill he is no longer a danger, but is instead a burden?"

The Globe also reports that. from 2002 to 2011, "the state saw a 63 percent jump in the number of inmates aged 50 or older" and the number of inmates "older than 60 grew by 80 percent." Meanwhile, Massachusetts spends about "$100 million a year in health care for inmates" and State health care spending per inmate increased by 12 percent from 2007 to 2011."

See story here.

Massachusetts: 3 Pardons ... Maybe reports Gov. Deval Patrick is "considering" three men for pardons. In Massachusetts, the Governor's Council votes on pardons and commutations recommendations, but the last time that a governor actually granted a pardon was 2002. Now, there are recommendations for True-See Allah (armed assault with attempt to murder, 1989), Jeffrey Snyder (drug offenses, 1995) and Edem Amet (drug offenses, 1994 and 1995).

It is reported that Gov. Patrick will "definitely" pardon some people "before he leaves office." See story here.

Thursday, October 2, 2014

South Dakota: Sensible Reform ! Feds Take Notice !

The Rapid City Journal reports persons "guilty of a misdemeanor or petty offense that didn’t involve violence are now able to clear their record faster and more easily" because of changes made by the state Board of Pardons and Paroles. More specifically, the Board (which has been facing a backlog of cases) has eliminated two steps in the process:
First, it allows certain offenders to bypass the requirements of a pre-screening by two board members, who then make a recommendation to the full board. Second, those offenders may skip a personal appearance before the full board. 
The resulting process generally takes "30 to 60 days" as opposed to "six to eight months." Pat Pardy, a lawyer for the state Department of Corrections, says the purpose of the changes is to allow people to restore their records for employment purposes, such as in financial positions, and for people whose criminal records prevent travel outside the United States, such as to Canada.

We wonder if the federal clemency process could benefit from a similar change in rules and regulations for processing applications. Almost half of the persons pardoned by President Obama, for example, committed crimes so minor that no jail time was served. Yet, on average, it has taken applicants (with and without prison sentences) over four years for applications to be reviewed and granted. Why can't the DOJ created a separate process, perhaps without so many layers of bureaucracy, for minor / non-violent offenses?

See story here.

Arkansas: Board Recommends Clemency reports that the State's Parole Board has unanimously recommended parole be granted to a James Weaver Jr., 44,  who was convicted of capital murder twenty years ago. Weaver's original sentence was "life without parole." The Board recommends that the sentence be commuted to "time already served." A County Prosecuting Attorney and County Sheriff  objected to Weaver’s application for clemency without explanation. See story here.

Tuesday, September 30, 2014

Lacking In Mercy

There are certainly many ways to gauge the amount of mercy displayed in an administration. Instead of simply looking at the total number of pardons, commutations of sentence, remissions of fines and forfeitures and respites, we gathered original data and calculated the average number of individual grants of clemency - per year of the term - for each and every president. That is to say, we considered consistency in the use of clemency throughout administrations, as well as the overall figures. This is what we found:

Click on Image (above) to Enlarge

It is clear that, to date, the Obama administration represents a low point, a very low point, in the exercise of this great, necessary, Constitutional power.

Tuesday, September 23, 2014

Georgia: Clemency in Question

The Gainesville Times reports that the "silence" of the five-member State Board of Pardons and Paroles on the July 10 clemency it granted a death-row inmate "has stirred strong emotions in North Georgia, with ripple effects possibly leading to the doors of the 2015 General Assembly."

 A District Attorney reports that, in the clemency hearing he participated in, board members seemed focused on the fact that an “equally culpable” co-defendant did not get the death penalty.

A spokeswoman for the Governor notes that there is "a healthy distance" between the governor and the State Board of Pardons and Paroles as "the only role the governor plays in this whole process is the ability to appoint board members subject to confirmation by the state Senate."

The Times observes that state’s Open Records Act "exempts documents related to 'the deliberations and voting of the state Board of Pardons and Paroles' and [the] board may close a meeting held for the purpose of receiving information or evidence for or against clemency or in revocation proceedings if it determines that the receipt of such information or evidence in open meeting would present a substantial risk of harm or injury to a witness.”

See full story here.

Wednesday, September 10, 2014

Paul: Pardon 'em all."

Salon summarizes a recent Ron Paul interview (with Jesse Ventura) as follows:
Perhaps the most engaging part of the interview, however, comes when Ventura and Paul turn to the war on drugs, a policy both believe has failed on the merits while ruining millions of lives in the process. One goal of reform, Paul says, is to “not put people in prison for nonviolent crimes — and also we have to think about letting those prisoners out [and] pardoning individuals that have committed these crimes that have been nonviolent.” “Pardon ‘em all,” Paul said. “Let ‘em go.”
See full story here.

Monday, September 8, 2014

New York: Cuomo, Failing the Basics

Zephyr Teachout, who is facing Andrew Cuomo in the Democratic primaries says it best:
"Andrew Cuomo does not grant clemency ... I think he has granted three clemencies total in the last four years. Extraordinary. There are more than three people in New York prisons deserving a clemency ... Refusing to grant clemency is a failure of one of the most basic jobs of being governor."
According to the National Catholic Reporter, Teachout believes "there's often a disproportionate response to small crimes, which leads to needless arrests."  In her view, "No one should casually sentence someone to five years in jail" and every politician "should go and spend time and visit prisons and jails" because they should know something about the kind of power they are exercising.

All to which we say, Bravo! See story here.

Saturday, September 6, 2014

Federal Judge: Consider Clemency

A favorite tune of the unlearned is to suggest that clemency decisions "overturn the decisions of judges and juries." Would that such persons read this story in the The Blade.  Judge Jeffrey Sutton, a federal appeals court judge (U.S. 6th Circuit Court of Appeals in Cincinnati), and two of his colleagues recently considered the case of Gregory Esparza.

Esparza, in 1983, committed robbery and killed an East Toledo carryout clerk and got away with $110. He was 21 years old at the time. Esparza confessed to his sister and an inmate and was sentenced to death. On appeal, however, he argued that his defense "failed to offer enough evidence of his troubled childhood to persuade the jury to spare him the death penalty." The Blade reports, "The appeals court found his arguments unconvincing."

Judge Sutton, however, noted that the governor might give a “serious look” at granting Esparza clemency - presumably a commutation of sentence, from death, to life in prison:
“Today’s decision is not necessarily the end of the road for Esparza ... Among other things, he has the right to file a clemency application with the governor to reduce his sentence from death to life in prison. In light of the many uninvited difficulties in his childhood, this application may be worth a serious look.” 
In doing so, Sutton recognized what many fail to understand. Clemency powers were created, in part, so that the state might consider factors which the law may have ignored, or overlooked. The rules of evidence are, sometimes, strict. The direction of trials can be manipulated by lawyers desirous of victory. The net effect: trials are not - and never have been - perfect. Thus, the failure to utilize clemency powers is an assertion of what we all know to be false: judges, juries, trial processes are not perfect. They do not always consider all of the relevant facts. Even when they accurately follow the nuances of the rules, the big picture - justice - can be lost.

At common law, murder was murder. There were no distinctions (first degree, second, manslaughter, etc.) Nor were considerations given for juvenile offenders, or the insane. These considerations and exceptions were taken in to consideration by - and eventually developed into law via - the pardon power. The law may have considered the nine year old who accidentally pushed a sibling off of a stair case a "murderer," but an executive with the power to pardon (and a more keen sense of justice) knew better - as do you and I.

Today, the pardon power continues to provide these services, where executives care to use it.

Friday, August 29, 2014

Illinois: 38 Pardons

The AP reports Gov. Pat Quinn - who is up for reelection - has granted 38 requests for clemency and denied 86. Quinn has granted more than 1,100 clemency petitions since he took office. His office, of course, is attempting to make progress on an enormous backlog of more than 2,500 cases that built up under his predecessor - Rod Blagojevich.

Thursday, August 21, 2014

Ruckman on Obama, Commutations

P.S. Ruckman, Editor of the Pardon Power Blog, comments on a local case and the President Obama's apparent willingness to commute the sentences of many federal prisoners who received lenghty sentences under outdated sentencing laws. See the full interview here.

Wednesday, August 20, 2014

Bernard Kerik on Clemency, Etc.

Bernard Kerik
Bernard Kerik speaks with Reason in this video re clemency and sentencing reform. He thinks too many persons are being sent to prison and sentences are far too harsh. In his views, there are plenty of ways to punish with destroying lives and sinking careers. Kerik argues first time non-violent drug offenders should not be put away for 10 or more years for what might amount to three sugar packets worth of drugs. Prisons offer no real chance of education or rehabilitation. Instead, they create institutionalized criminals.

Kerik, adds that the lock-them-up-and-throw-away-the-key approach has been held for too long by persons who do not understand the collateral consequences of such policy and economic consequences as well. See full video here.

Tuesday, August 19, 2014

Mr. President: Condition the Commutations

In April, the Obama administration announced that it would create a kind of accelerated attention to applications for commutations of sentence for:

1. those without a significant criminal history
2. Low-level offenders without significant ties to large scale criminal organizations, gangs or cartels
3. Non-violent offenders with no history of violence prior to or during their current term of imprisonment.
4. Those who have demonstrated good conduct in prison
5. Those who likely would have received a substantially lower sentence if convicted of the same offense
6. Those who have served at least 10 years of their prison sentence

The 5th point of concern is, of course, a driving mechanism. The remaining points are details, but important details nonetheless.

Earlier, we found interesting that the policy did not emphasize "first time offenders," but instead focuses on those without a "significant criminal history." That language, while certainly providing flexibility in decision making, is bound to result in a problem here and there.

We also noted that the concern for non-violent behavior on the front end and "good conduct" in prison on the back end seems fair, if not wise. Although one wonders if "no history" disqualifies anyone with clear evidence of rehabilitation after a rough start.

We wish, here, to emphasize that we remain convinced that it would also be prudent for the president to grant conditional commutations of sentence to those who fall into these grids. The debate over sentencing has been lengthy and, in many ways, extraordinary. The President's apparent willingness to become involved is also notable. In addition to being given reason to celebrate, recipients should also be reminded of a great burden of responsibility. Their lives and conduct will be under considerable scrutiny. Any offense committed after release will attract more than usual attention because it will seem - to many - to cast a shadow of doubt on the President's judgement.

Such blame would be neither appropriate, nor deserved. Thus, the President should condition each and every commutation on good behavior and require that offenders return to prison to complete their sentences if, somehow, they are not as appreciative of this extraordinary moment in their lives / our history.

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