Thursday, May 26, 2016

Spanish Version of DOJ Commutation Petition (Unofficial)

Jason Hernandez has performed an excellent service. 

He has sought assistance of a woman who is serving a life without parole sentence to translate the Commutation of Sentence application form that is used by the DOJ into Spanish - an idea we deem ridiculously brilliant!

Hernandez says he will be sending it to prisons so it can be can put in law libraries. He is aware that the Office of the Pardon Attorney may not welcome such an idea but it can "help Spanish speaking-only inmates at least understand what questions are being asked and then they can get someone to help them with the English version." You can see the full .pdf form here.

Friday, May 20, 2016

North Carolina: (27 Years Later) "Innocent! Sorry."

The Fayetteville Observer reports that Gov. Pat McCrory has pardoned one Edward McInnis who, in 1988, was falsely accused of raping and robbing an 81-year old woman, and spent almost three decades in prison! The Observer notes:
Mumma [McCrory's lawyer] said she was repeatedly told by the Laurinburg Police Department that the evidence for McInnis' case had been destroyed. But Mumma kept pushing the prosecutors and police to look in the evidence inventory. [In] 2014, the North Carolina Innocence Inquiry Commission, a state agency that investigates and evaluates post-conviction claims of innocence, took on McInnis' case. The agency [found] evidence that was said to be destroyed in at least 23 cases, [After] the agency took on the case, [police] conducted a thorough search of the evidence room and found DNA samples from McInnis' case, Mumma said. [The] DNA samples were tested and showed that McInnis was not responsible for the crimes. [In] August, the District Attorney's Office for Hoke and Scotland counties filed a Motion for Appropriate Relief based on the newly discovered evidence. On Aug. 11, Superior Court Judge Tanya Wallace ordered McInnis' immediate release, 
McCrory met with McInnis at the Executive Mansion and apologized on behalf of the State. See full story here.

Thursday, May 19, 2016

Taifa and Osler: Clinton, Sanders, Congress and Clemency

Nkechi Taifa and Mark Osler have an editorial at the Baltimore Sun which scores critical points in the continuing public dialogue re federal executive clemency. The rhetorical landscape would be so much improved if those points were to somehow stick - permanently.

They note, for example, that Hillary Clinton and Bernie Sanders have both "rooted their appeal to black voters on promises to address the over-incarceration of federal narcotics prisoners," but their "ideas to counter over-incarceration appear solely to depend on congressional action, rather than direct executive action" (Clinton wants to slash mandatory minimum sentences and Sanders wants to reinstate the federal parole system). Significantly: Clinton and Sanders are not running for Congress.

Taifa and Osler suggest an alternative path:
 ... both candidates should pledge to vigorously use the pardon power granted to the president in the U.S. Constitution from the first month of their presidency to immediately reduce costly and unnecessary over-incarceration. What is at stake is important ... If a president — or a presidential candidate — wants to promise to make a dent in over-incarceration, he or she must have a clear commitment to the robust and consistent use of clemency. 
The editorial notes John F. Kennedy "released more than 1 percent of the federal prison population by targeting those subjected to harsh drug laws." Gerald Ford "created a special bi-partisan commission [and] granted clemency to more than 14,000 people" in a single year. And, today, the need for such action is more needed / justified than ever.
The problem now is an unwieldy bureaucratic process that features seven distinct levels of review, each a stumbling block to justice. Much of that process rambles through the Department of Justice itself. Many critics of the process have focused on a conflict of interest some feel is inherent as long as the DOJ is involved. After all, should we really expect wide-ranging mercy from the very department that over-prosecuted people in the first place? 
Thus, Clinton and Sanders should "deliver on promises that are not contingent on the actions of Congress or others" and "commit to using a more efficient process to continue and expand President Obama's initiative to free deserving candidates who were over-sentenced for drug offenses." See full editorial here.

Sanders Resurrects Clinton's FALN Clemecies

Breitbart reports that, at a "town hall" meeting in Puerto Rico, Bernie Sanders "demanded clemency for terrorist Oscar Lopez Rivera and vowed to pardon him if elected president." Says Sanders:
“Oscar López Rivera is one of the longest-serving political prisoners in history — 34 years, longer than Nelson Mandela ... We are talking about a Vietnam War veteran who was awarded a Bronze Star. I say to President Obama — let him out!” 
The New York Post more carefully identifies Lopez Rivera as "a founder" of FALN (Fuerza Armadas de Liberacion Nacional, Spanish for Armed Forces of National Liberation), which "waged a violent campaign for Puerto Rican independence." See our previous posts on the organization here.

 López Rivera was convicted of "trying to overthrow the U.S. government, seditious conspiracy to destroy federal property, armed robbery, weapons violations and interstate transportation of stolen property" and sentenced to 55 years in prison. FALN has generally been credited with 6 deaths, 130 injuries, and over 100 bombings.

The topic has an interesting double-edged quality to it, of course, because of a dozen or so controversial acts of clemency involving FALN in the Clinton administration. The grants were widely viewed as a clumsy attempt to woo Puerto Rican voters for Mrs. Clinton’s New York Senate campaign - much more seriously - they were opposed by the FBI, the Bureau of Prisons, U.S. attorneys and victims. Former Deputy Attorney General Eric Holder's role in the grants was questionable enough for him to assert executive privilege and avoid questioning. Mrs. Clinton, eventually found herself trying to distance herself from the grants and be critical of them.

Lopez Rivera declares himself “an enemy of the United States government” and has refused "numerous opportunities" to "express remorse to the victims of FALN violence and their families." See full story here.

Monday, May 16, 2016

Alton Mills on 851 Enhancements / a Dumb "War"

When Alton Mills was 24-years old, he was given a life sentence. He was a "drug-runner" for two years, pulling in a whopping $300 a week on the South Side of Chicago. After two convictions resulted in state probation (for possessing less than 5 grams of crack), he was arrested, and federal prosecutors used his previous sentences in calculations to obtain a mandatory life sentence. The judge responded accordingly, but called the sentence “farcical” and “cruel and unusual.”

In a great editorial published at The Hill, Mills explains:
A first time non-violent drug offender tried in federal court could face a hefty mandatory minimum sentence of ten years in prison. If that person has a prior drug conviction and the prosecutor files a single sheet of paper called a “Section 851 Enhancement,” the sentence will double from ten to twenty years. Worse yet, as happened to me, if that person has two prior drug convictions – even for simple possession of a very small amount of drugs – and the prosecutor files an 851 enhancement, the sentence jumps from 10 years to life in prison. There is no parole in the federal system, so a person with a life sentence will ultimately die in prison. The 851 enhancement gives prosecutors – not judges – the sole power to decide whether or not someone will be condemned to die in prison. The 851 enhancement also gives prosecutors – not judges – the sole power to decide whether America will spend hundreds of thousands of dollars to lock someone like me up for the rest of their life. 
Mills argues he was not a "violent person or serious repeat drug offender," yet - pay attention - the drug "kingpins" who testified against him "were released over a decade ago, having only served ten years." The drug ring's "leader" and second in command will be released in just three years. He writes:
I was the least responsible person in the group yet the one sentenced to the longest prison term. Was America safer with me locked away, while the kingpins and ringleaders gain their freedom? 
He concludes by noting "there are many others" similarly situated, "still incarcerated" who "deserve a second chance too." See Mills' powerful editorial in full here.

Cyclist Thomas Seeks Pardon

Tammy Thomas is seeking a pardon from President Obama. Good luck with that. Nothing against her personally, of course, but the odds have very rarely ever been worse re the accomplishment of such a feat.

Thomas, a former American sprint track cyclist, was convicted, in 2008 of lying to the grand jury investigating a steroid distribution ring. She served a five-year probationary sentence and six months of home confinement, but feels like she is on track to "pay" for a "forty-eight minute lapse of judgment" for the "rest" of her life.
“I do not engage in any criminal conduct, drug or alcohol abuse, and I’m in no way a risk to public safety ... Although I have lived a responsible and productive life since my conviction, this testimony is holding me back and preventing me from realizing my dreams.”
Today, Thomas is a "personal trainer" but she has a law degree. She cannot practice law, however, because of her conviction. It is reported that she "has reached out to her state’s elected officials for support." See full story here.

Ferranti on Life After Clemency

At Huffington Post, Seth Ferranti goes where few discussion of clemency bother to go. The specific focus is the case of one Rodney White, a 51-year-old who spent over 15 years in federal prison for a "first-time, nonviolent drug conviction for conspiracy to distribute cocaine, crack and heroin." White left prison in 2007, earned a bachelor’s degree and a masters before landing a job at North Carolina A and T State, then Danville Community College. But, along the way, White has been denied other employment opportunities because of his felony conviction.

So, he now seeks a presidential pardon from a president who has granted fewer pardons than any full term president since John Adams !

Suppose White fills out the 23 page application, then beats the odds. Suppose he wins such a freakishly rare grant, from this President. Are the hurdles finally removed? Can he actually then go on being the productive, successful member of society that everyone wants a former convict to be? The Editor of this blog notes:
“There are some legal nuances and debates in the background.” Ruckman says. “While a pardon my clear a record and end all official, federal governmental punishment / restrictions, there may be others (collateral consequences) lurking from professions or the states. This is why ‘ban the box’ initiatives are so important. Sadly, a commutation of sentence can be an amazing second chance in life for a prisoner. But the hurdles they face in re-incorporating themselves back into society as productive members can be enormous. These may be problems which cannot be solved, but they deserve our attention. I was invited the closed briefing on ‘Life After Clemency’ at the White House last month. It certainly dramatized how brutal the process of getting back on one’s feet can be.” 
Says White:
"I do want a Pardon, but I want even more for there to be jobs and education in our communities for returning citizens. If given the opportunity to hire or interview a returning citizen employers should give them the chance to prove themselves. The biggest change doesn’t happen because a law of rule is changed. The biggest change is when we truly forgive those of us who return to society.”
See Ferranti's full piece here.

Saturday, May 14, 2016

Anatomy of a Clemency Hit Piece

At FrontPage, Daniel Greenfield has written what can best be categorized as the last gasp of a dying breed, an awkward rhetorical burp of the 1970s Law and Order campaigns of Richard Nixon. The piece is entitled, "OBAMA’S LATEST AMNESTY FOR DRUG DEALERS Freeing drug dealers, terrorizing communities."

While we can award style points for the root buzzword "terror," the tense and lack of subsequent elaboration on the theme are less than impressive. The piece is NOT about drug dealers terrorizing communities. At best, it is about how the author thinks drug dealers may have terrorized communities, a good 10, 15 or 20 years ago. Implication of the present tense, however, is so much more shocking you know. Nor is the piece about "amnesty." It is about 58 recent commutations of sentence.

Paragraph after paragraph, Greenfield recites the criminal behavior and convictions of individuals and - without explicitly saying so - suggests, 1) all of their sentences were perfectly tailored to fit their crime(s) 2) none of them could have possibly rehabilitated, or payed their debt to society - because, you know ... because! 3) all of the key players in the criminal justice system - aka the ones who, in theory, know more about the cases than Greenfield ever will - agree that all of the sentences handed down were fair and just.

But don't misread, dear reader, Greenfield did do his homework. He sought the opinions of a police lieutenant and ..."local resident." His piece does not reference a single judge, prosecutor or juror. One suspects that is no accident. The fact that any of Obama's commutation recipients must comply with probation? Nuance schmuance!

If this is the kind of "backlash" the President can expect, in the future, when granting commutations of sentence, he should be confident indeed. See full piece here.

Tuesday, May 10, 2016

Saunders Schools Sanders on the Pardon Power

Bernie Sanders sat with the editorial board of the San Francisco Chronicle recently and, in the final minutes of the visit, Debra Saunders took his temperature re the pardon power. Now keep in mind, the pardon power is not a major campaign issue, but it is perhaps the most unfettered power that a president has - and Sanders is still running for president. In addition, the pardon power is certainly a PR point in the Obama administration, and appears likely to remain a point of interest as the administration comes to a close. Yet - as Saunders describes the exchange - questions about the pardon power seemed to be all over Hillary's revolutionary opponent, like half-ton rhetorical guerrillas leaping from tall trees in the night.

The first question was as soft as a softball could be: had Sanders thought about how he, as president, might use the pardon power? His answer; "A little bit. We have too many people in jail" and they are "disproportionately African American." Does candidate Sanders know pardons very rarely ever spring anyone from jail? A little bit indeed!

Saunders then brought up the stumbling and bumbling of the Department of Justice and Clemency Project 2014. In response, Sanders could only offer up a lame version of the administration's straw man: there are problems ...
“above and beyond commutations. The issue is how we reduce our prison population. The more profound issue is how do we make sure that young people do not end up in jail.” 
Of course, everyone recognizes there are many problems in this world. And there is no such person therein who believes the pardon power will cure them all ... or even most of them.

Saunders concludes, correctly, that Sanders "has not given much thought to presidential pardons." He is, perhaps, too "busy." So, she takes some time out in an editorial to introduce him to it! You will want to read that here,

From Yesterday's White House Briefing

Hat tip to USA Today's Gregory Korte for sharing these snippets with us.

Q Thanks, Josh. Last week, the President granted clemency to 58 nonviolent drug offenders. At the time, you guys noted that he’s granted more commutations than the previous six Presidents combined. But when it comes to the use of his pardon power, he lags pretty far behind other modern and historical Presidents. He’s only granted 70 pardons. George W. Bush has granted 180. Bill Clinton granted nearly 400. Why is the President so reluctant to pardon people?

MR. EARNEST: Well, Byron, we've got eight months to go, so I think it's too early to draw that conclusion. The second thing I would point out is the President has been aggressively advocating for criminal justice reform legislation. In terms of the potential impact of that legislation, it would have a positive impact on many more Americans, particularly when it comes to bringing greater justice to our criminal justice system. What’s also true is this administration has worked hard to upgrade the processes that we have in place internally for considering clemency requests. That effort to make that process more efficient has resulted in changes both here at the White House and at the Department of Justice to streamline this process. The administration has also worked with outside organizations, again, to try to make this process function at a higher level. And I think the benefits of all of that work is something that we've seen in recent months with an increase in people who’ve been granted clemency. And the President is certainly hopeful that at least over the next eight months that we'll continue to benefit from that work. I think what is also true is there’s no denying that the next President of the United States will inherit a higher-functioning clemency system than the one that President Obama inherited. And that also has the potential to make a difference in the lives of Americans who are ready for a second chance.

Preparing the Pardon Power for the 21st Century

The Editor's article, "Preparing the Pardon Power for the 21st Century," which appears in the most recent issue of the University of St. Thomas's Law Journal is available to readers online, free, in the form of a .pdf file here.

Echoing the voices of political scientists from the past and some of the finest minds focusing on the topic today, the piece calls for 1) relocation of the apparatus that processes clemency applications from the basement of the Department of Justice into the Executive Office of the President 2) adjustment of the tenure of the U.S. Pardon Attorney to alignment with the coming and going of each president 3) the production, tracking and publication of clemency data consistent with basic notions of transparency and the ability to assess the quality of decision making as well as 4) a revamp of the Annual Report of the Attorney General that would return that publication to the level of professionalism and responsibility enjoyed until the 1930s.

It is hoped that these reforms would result in 1) more pardoning 2) more regular pardoning 3) and the exercise of group pardons, based on classification schemes.

The piece ends with this observation:
In 1919, Attorney General A. Mitchell Palmer’s Annual Report argued that his duties and responsibilities had “increased so greatly” that it became “practically impossible” to give clemency applications “the attention and thought” that they required. Palmer thus proposed the creation of a three member Pardon and Parole Board that would make recommendations to the president. Three years later, the American Civil Liberties Union sent a letter to President Harding calling for the creation of a “new agency” to process clemency applications. According to the Washington Post, the organization thought the Department of Justice was “unable” to “go into” cases in a proper manner because of its “organization,” its “other many duties,” and the dominant role of federal attorneys who conducted the prosecution. It is so unfortunate that reform-minded persons did not win the day on these fronts a long, long time ago.
See full article here.

Friday, May 6, 2016

Thursday, May 5, 2016

Obama Approaches Marks by Reagan and Clinton

After almost two full years of complete inactivity, and a first term notable for being the least merciful since that of John Adams ... in the fourth and final year of his second term ... President Obama appears to be game for a respectable showing among two-term presidents.

Obama: 58 Commutations. No Pardons

See list of sentences commuted here. Developing ...

Friday, April 29, 2016

Whole Lotta Talkin' Goin' On (Part 36)

Reporters at Politico say that, after almost two years of delay in granting its first pardon, and more than seven years on the scene, the Obama Administration "is pressing hard to keep the clock from running out on thousands of federal drug convicts hoping to get their prison sentences shortened by President Barack Obama before he leaves office in January." It is hard for more informed persons not to recall the "lessons" that former Attorney General Eric Holder claimed he had "learned" from operating the clemency process in such a manner.

Politico says that, earlier this week, Deputy Attorney General Sally Yates wrote an "unusual letter" pleading with volunteer lawyers "to get the commutation applications filed right away." The Department of Justice (DOJ) was, of course, already receiving record numbers of clemency applications before Clemency Project 2014 (CP14) submitted over 800 more. And DOJ has set a record for denials since the highly publicized, impressive, official call for even more.

Unfortunately, it is now known that CP14 has effectively "screened out" 20,000 clemency applicants. When a U.S. Pardon Attorney abruptly resigned recently, it was also revealed that some positive recommendations for clemency by the Office of the Pardon Attorney that had been forwarded to the President were deep-sixed ... by Yates! The White House called this a "revamp" of the clemency process.

Meanwhile, White House Counsel, Neil Eggleston thinks everything is "moving forward in a pretty good way." See full "story" here.

Thursday, April 28, 2016

Eggleston: 40 Days and 40 Nights?

Who would have ever guessed that, a full 27 days after White House counsel Neil Eggleston attempted to shame and cast doubt on the sincerity of anyone who dared to be less than 100 percent satisfied with the Obama administration's record on clemency ... not a single pardon or commutation of sentence has been granted. And who would have thought all of this inactivity could possibly follow Eggleston's sincere promise to avoid eating, drinking or sleeping until it is all "done?" 

Click on Image (Above) to Enlarge
Where is the sense of urgency from an administration that waited almost a full two years before granting a single act of clemency? Does it need more time to think? Dialogue? Where are all of the "second chances" that the Hope and Change campaign promised us? The second term cannot possibly end as poorly as the first - the least merciful term since the presidency of John Adams. If it all comes to doing slightly more than the most recent, neglectful administrations ... that would be tragic. 

Click on Image (Above) to Enlarge

Cyprus: 31 Pardons

From CyprusMail: Thirty-one inmates who were eligible to receive a presidential pardon have been released ahead of Easter, the deputy prison chief Anna Aristotelous said on Monday. The inmates, 21 Cypriots and 10 foreign nationals, were released on Monday, after receiving a presidential pardon for Easter. Among those released, were the two secret service (KYP) officers EleftehriosMouskos and Costas Miamiliotis who were sentenced to six months each in January, after being found guilty of taking bribes in the Dromolaxia land scandal. “They fulfil the criteria,” Aristotelous told the Cyprus Mail. Eligible for pardon, Aristotelous said, were the inmates who have served half their sentence and would have been released by July 31, excluding those convicted for murder, drugs or sex crimes.

Egypt: 859 Pardons. A Tradition of Mercy

From StarAfrica: Egypt’s Interior Ministry said on Monday that it has pardoned 859 prisoners in honour of the 34th anniversary of Sinai Liberation Day.Those pardoned have already served half of their sentences. In March, President Abdel Fatah al-Sisi issued a decision to pardon a number of sentenced prisoners on the holiday, which marks the final withdrawal of Israeli forces from the Sinai Peninsula in 1982, after 15 years of occupation. Pardoning prisoners is a constitutional prerogative of mercy of the Egyptian president. It is a tradition by the state that usually takes place during official holidays and feasts on the condition that prisoners’ offences do not include violence or attacking public or police properties. A presidential decree was released in January 2015, pardoning those with final sentences. Many debtors have been released on national occasions after their debt was settled by the presidency, or the military.

Vietnam: 357 Pardons. A Humanitarian Tradition

From a Saigon webpage: Authorities of the southern province of Binh Phuoc on April 27 decided to release or reduce the jail terms of 367 prisoners. The move is a part of celebrations for the 41st anniversary of the country’s Reunification Day (April 30) and International Labour Day (May 1). Of the total, 63 are released ahead of time and the remaining 304 received a reduction of their terms. The amnestied prisoners are those who had shown good conduct and received positive habilitation while in prison. The amnesty policy of the Vietnamese Party and State reflects the humanitarian tradition of the Vietnamese nation, which encourages offenders to rehabilitate and become useful member of society.

Philippines: Duterte, Ready to Pardon reports that Philippine presidential frontrunner Rodrigo Duterte "has shocked the political establishment in recent weeks, surging to a clear lead in opinion surveys" via "a campaign full of swear words and promises to end crime by killing tens of thousands of criminals." The 71-year old has also "boasted about running vigilante death squads" while serving as mayor of Davao.

Duterte promises to "eradicate crime nationwide in the first six months of his presidency" and "to pardon soldiers or police officers if they were charged with rights abuses." Or, as he puts it, "I will issue 1,000 pardons a day." Duterte believes the constitution allows him to pardon himself as well, And he promises to do so - if necessary - at the end of his term. "Pardon given to Rodrigo Duterte for the crime of multiple murder, signed Rodrigo Duterte," he has said, to laughing audiences. See story here.

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