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.

Thursday, August 14, 2014

Texas: Rick Perry's Clemency Record

The Texas Tribune reports that Governor Rick Perry has commuted 29 death sentences to life in prison. In addition, he has granted 1 conditional pardon, restored the rights of 5 others, granted 2 family medical reprieves, 2 full pardons and restoration of firearms rights, 17 pardons for innocence, 3 restoration of firearms rights and "at least" 158 full pardons.  Want to know more? Go here.

Arkansas: 6 Pardons, 1 Commutation

Governor Mike Beebe has granted one commutation and six pardons. 47 additional clemency requests were denied. Beebe commuted a term of 150 years to a term of 80 years in the Department of Correction. Pardons were granted for Manufacture of Marijuana, Theft of Property, Forgery, Possession of Drug Paraphernalia, Possession of Controlled Substances and Drug Paraphernalia.and Possession of Methamphetamine and Drug Paraphernalia. Per usual, all terms of the applicants have been completed and there have been no further criminal-law violations. There are no law-enforcement objections to the application. See story here.

Virginia: Commutation Struck Down!

A federal judge has ruled that a commutation of sentence granted by former Gov. Bob McDonnell was unconstitutional. McDonnell commuted a sentence of six life terms to a term of 40 years.

The recipient, one Travion Blount, was 15 years old, in 2006, when he robbed a Norfolk house party with two 18-year-olds. Blount refused to plead guilty and was convicted at trial of 49 of 51 felonies and sentenced to six life terms plus an additional 118 years.

See details of this fascinating case here!

The Pardon Power and Immigration

At TownHall.com, Guy Benson asks, "Could Obama Use a Presidential Pardon to Execute Rumored Mass Legalization Plan?" In our view, this question has been handled much more effectively by Ryan Lovelace, at National Review, but Benson writes:
Why couldn't Obama simply invoke that power by pardoning those illegal immigrants he's seeking to legalize? He could effectively wipe away the legal potency of their initial offense; namely, entering sovereign US territory unlawfully.
Benson can find 5 objections to this possibility, after looking around the web:
(1) Aren't pardons limited to people who've been convicted, or at least charged? (2) Wouldn't Obama have to pardon each person by name? (3) Pardons only apply to criminal offenses, and illegal immigration largely resides in the administrative and civil realm. (4) But illegal immigration is an ongoing offense, so pardoning the initial act wouldn't grant legal status, which is what Obama wants to do here. (5) Surely there's some limit to this particular power. If not, couldn't presidents use blanket pardons to basically nullify any law they don't like, or effectively impose any law they desire?
The answer to question one is, very clearly, "no." Ditto for the answer to question two. We are not sure why Benson seems to agree that the president can only pardon criminal offenses. He (Benson) should have researched that angle a bit more. But, question four is the kicker. Obama can pardon those who have violated a variety of immigration laws, but he cannot grant citizenship. That is not an executive power. It is a legislative power.

Presidents have granted pardons on the condition of deportation. They have granted pardons in order to prevent deportation. They have granted pardons to restore the rights of citizenship. But that is as close as they have gotten - and can get - to that fire.

Benson tries to keep the flame of potential controversy alive by suggesting the president could create de facto citizens with sweeping clemency proclamations. We just don't see that happening. The final years - we believe - will feature significant, and potentially controversial clemency decisions, but they will not be related to immigration. See Benson's piece here.

Thursday, July 24, 2014

Judicial Watch Pardon Suit: Our UpBeat View

The following excerpted statement can be found at Judicial Watch. Our commentary on the statement can be found in red:

HEADLINE: Judicial Watch Sues Justice Department for Records on Obama's Massive Effort to Grant Clemency to Criminals: Uh, yes, historically, pardons have been granted to persons who have committed crimes. Obama Administration Unprecedented Clemency Initiative Yes, this is the first time in history that a president, named "Obama" has taken an interest in clemency. But sleezy media shock effect of the use of the word "unprecedented" doesn't go much further. Our guess is that the person who wrote this could not comment - intelligently - for 30 minutes on the history of the pardon power. Could Free More Than 20,000 Convicted Felons From Federal Prisons

... The Clemency Project supports an initiative announced by the DOJ in April that would empower President Obama to grant mass clemency to as many as 20,000 convicted felons now serving time for drug-related sentences. BS flag must be thrown. The Constitution of the United States empowers the president to grant pardons, not a DOJ announcement. 

Judicial Watch Files Suit Against the Pardon Power

The following statement can be found at Judicial Watch:

Judicial Watch Sues Justice Department for Records on Obama's Massive Effort to Grant Clemency to Criminals: Obama Administration Unprecedented Clemency Initiative Could Free More Than 20,000 Convicted Felons From Federal Prisons

WASHINGTON, DC--(Marketwired - Jul 23, 2014) - Judicial Watch announced today that on June 23, 2014, it filed a Freedom of Information Act (FOIA) lawsuit against the Department of Justice (DOJ) to obtain records of communication between the office of Deputy Attorney General James Cole and Federal Defenders: the ACLU, FAMM, the ABA, and NACCL relating to the organizations' "Clemency Project 2014" (Judicial Watch v. Department of Justice (No. 1:14-cv-01048)). The Clemency Project supports an initiative announced by the DOJ in April that would empower President Obama to grant mass clemency to as many as 20,000 convicted felons now serving time for drug-related sentences.

The FOIA lawsuit filed pursuant to a March 10, 2014, FOIA request seeks the following:

Any and all records of communications between employees or officials of the Office of Deputy Attorney General James Cole and representatives of the Federal Defenders, the ACLU, FAMM, the ABA, and NACDL related to, or in connection with or regarding the 'Clemency Project 2014' from January 1, 2014 to the present date.

Monday, July 21, 2014

Mississippi: Effect of a Pardon?

The Hattiesburg American reports that the State's Supreme Court is being asked "to determine whether a pardon by the governor should be grounds to wipe clean a criminal record." Rebecca Hentz, pardoned by Gov. Haley Barbour in 2012, thinks the answer is / should be "yes" and asked a County judge to "expunge her criminal record." The request was denied. Mississippi law does allow for expunction of criminal records "under limited circumstances." See full story here.

Sunday, July 20, 2014

Calling for Mercy: At the President's Door.

The Houston Chronicle has a great piece from the Associated Press re one Scott Walker, sent to prison at age 25 (almost 18 years ago) to serve out a life sentence.  The "kingpin" and supplier of drugs in Walker's case, "a two-time drug felon," knew how to play the system. He "cooperated" and testified against Walker and served about five years.

In July, Walker's lawyers submitted an application for federal executive clemency to President Obama. In the letter, they noted Walker "meets all six criteria for possible release" identified by the Department of Justice in recent announcements regarding commutations of sentence. In days to come, the President may see thousands of such applications.

For ignorant persons likely to be swayed by the mere claim that clemency would overturn the considered judgement of judges and juries, and that the president should not interfere with the decision making of the judicial branch: Walker's trial judge - Judge J. Phil Gilbert, an appointee of President George H. W. Bush - is also urging the president to commute the sentence to 20 years. Gilbert called the sentence that he was forced to impose on Walker (because of sentencing guidelines since rejected by both parties, in both the House and the Senate, back in 2010) "excessive and disproportionate."

The article also contains a brief, but excellent history of federal legislation regarding sentencing in drug cases. See full article here.

Sunday, July 13, 2014

Obama Administration: Making More History

In the first 9 months of fiscal year 2014, the Obama administration has received a record 5,228 petitions for commutation of sentence. The number of pardon applications is much lower (178), but may be in line with previous years once the year is up.

Click on Image (above) to Enlarge

President
Granted Pardon Applications
Granted Commutation Applications
All Applications
Nixon
1 in every 2
1 in every 15
1 in every 3
Ford
1 in every 3
1 in every 25
1 in every 4
Carter
1 in every 3
1 in every 36
1 in every 5
Reagan
1 in every 5
1 in every 100
1 in every 8
H.W. Bush
1 in every 10
1 in every 245
1 in every 19
Clinton
1 in every 5
1 in every 90
1 in every 16
W. Bush
1 in every 13
1 in every 779
1 in every 55
Obama
1 in every 32
1 in every 1,371
1 in every 249



Wednesday, July 9, 2014

Registration Open for Clemency Project 2014

Registration is now open for attorneys who would like the training necessary to participate in Clemency Project 2014.

The training webinar takes place July 15 and 16, and interested attorneys must participate both days in order to file petitions through the Clemency Project. This training is free. Follow the instructions after clicking on this link.

Interested attorneys who don’t have an account with the National Association of Criminal Defense Lawyers will be asked to created one in order to register.

Be sure to complete the Attorney Survey so Clemency Project 2014 can match your expertise with an applicant.

Not an attorney, but want to help? Volunteers can express their interest by emailing ClemencyProject@nacdl.org with “Non-lawyer volunteer” in the subject line.

Monday, June 30, 2014

Ohio: Kasich's Record

Ohio Governor, John Kasich
Cleveland.com reports governor, John Kasich "has been much more sparing than his predecessor in granting clemencies to criminals, approving less than 5 percent of requests and releasing no one from prison." On the other hand, "when it comes to death-row cases, Kasich has granted more clemencies since taking office in 2011 than all other governors of death-penalty states combined."

The story says Kasich's 4.7 percent "clemency approval rate" is "comparable to that of other recent Republican Ohio governors," but "about five times lower than that of his immediate predecessor, Democrat Ted Strickland."

Here are the data:

48 pardoned
6 commutations of sentence
5 reprieves

35 committed offenses so minor no jail time was involved
48 of recipients committed offenses before 2000

1,184 rejected clemency requests
(including 86 cases in which the Ohio Parole Record recommended leniency)

See full story here.

Friday, June 27, 2014

American Thinker's Jon Hall = Not So Thoughtful

Jon Hall at American Thinker has a piece titled , "Restoring Constitutional Government." Among other things, he writes:
One of the places where presidential power could be curbed is the pardon. America has an entire branch of government devoted to ascertaining guilt and innocence, and the determinations of such are the result of the collective wisdom of judges and juries. To have those decisions and the entire judicial process nullified by any one person is too much, especially if that person is not above using power for purely political purposes, or whose judgment has been shown by recent events to be sorely under par. 
Even before Obama, the power of the pardon was abused, as in the case of the FALN terrorists pardoned by Clinton. The only iteration of the word“pardon” in the entirety of the Constitution is in Article II, Section 2, Paragraph 1: “The President […] shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.”  
 In Federalist No. 74, “The Command of the Military and Naval Forces, and the Pardoning Power of the Executive,” Alexander Hamilton presents the original reasoning behind vesting this power solely in the president. 
And, well, if we have ever seen a less thoughtful discussion of the topic ... at present ... we cannot remember when!

It is, of course, supremely ironic that a piece on "Constitutional Government" would ignore some of the strongest, most prominent features of constitutional government: separation of powers and checks and balances. The pursuit of justice is a three-branch enterprise, quite contrary to Mr. Hall's personal predilection for judicial monarchy. The legislative branch writes criminal laws. The judicial branch interprets / applies them. And, on the theory that those branches are less than perfect (something Mr. Hall may contest), the executive branch has the pardon power. This is not complex stuff. Someone had to have taught it to Mr. Hall, somewhere along the way.

Monday, June 23, 2014

Ohio: The Effect of a Pardon?

The Supreme Court of the State of Ohio will be considering the case of James Radcliff who, according to the Columbus Dispatch, has "led a good life after a felony-filled span as a youth and young man." According to the Dispatch:
He cared for a disabled wife and five children, was active in his church and rose to become a janitorial supervisor in 21 years working for the Dublin schools. Then, Radcliff was fired when his criminal background was exposed in a story by a weekly newspaper about school employees with checkered pasts. He was reduced to part-time jobs washing dishes and sweeping floors. Shortly before leaving office, former Gov. Ted Strickland pardoned Radcliff in January 2011. A Franklin County judge expunged his convictions, concealing them — for the moment — from public view, reasoning that the action should pair with a pardon. The Ohio Supreme Court is to hear arguments on Tuesday on whether courts have authority to seal conviction records when Ohio governors forgive felons for their pasts.
Radcliff’s public defender says a pardon means little if criminal convictions remain "a mouse-click away."  A Franklin County Prosecutor disagrees, however.  An appellate court has overruled the trial judge because there are not provisions in Ohio law that explicitly allow the sealing of such records. See story here.

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