Sunday, March 26, 2017

DOJ Late in Appeal of OPA Incompetence

Click on Image (Above) to Enlarge
Maybe - like OPA  - they will wait a few years:

"For eight years in the Bush administration, and until 2015 of the Obama administration (see .pdf attachment sent to me in April of 2015), I requested copies of case covers for granted clemency applications from the Office of the Pardon Attorney. More specifically, the information I sought was the date granted applications were filed and the date that they were forward to the White House. These requests were usually sent, acknowledged, fulfilled in a matter of days, 2-3 weeks max (see Excel attachment).

William N. Taylor II "Executive Officer" of OPA (I assume) then simply stopped responding to FOIA requests. He then stopped acknowledging FOIA requests were being received at all. Consequently, I have waited, quite literally, for years (see attachment), for any indication whatsoever that OPA operates under the requirements of FOIA. I was advised by the previous pardon attorney to wait until the Obama administration ended.

So, this evening (February 8, 2017), I sent an e-mail to OPA, politely inquiring whether or not it intends to knowledge / fulfill FOIA requests this year (2017)? Within minutes, six requests (identification numbers 2015-18, 2015-65, 2016-122, 2016-126, 2016-129, 2016-130 – which were 784, 680, 309, 279, 250, 189 days old respectively) were responded to, in e-mails, and given "full denial." The Executive Officer explained: “... After carefully considering your request, I have determined that if any such records do exist, they are exempt from disclosure ...”

I don’t believe Mr. Taylor should be able to “address” the backload of FOIA requests he has by cursory dismissal and summarily overturning 14-15 years of past practice. He should be required to do his job and keep that Office in compliance with FOIA."

Tuesday, March 21, 2017

Virginia: Pardons for the Norfolk Four

The Associated Press reports Democratic Gov. Terry McAuliffe has granted absolute pardons to four former sailors - known as the "Norfolk Four - "ending a decades-long fight to clear the men of rape and murder convictions based on intimidating police interrogations." DNA evidence linked another individual to a 1979 rape and killing and he claimed to be solely responsible.

Three of the men - Danial Williams, Joseph Dick and Derek Tice - were actually granted "conditional pardons" by Gov. Tim Kaine, in 2009 "and released from prison because of doubts about their guilt, but their convictions remained on the books." A judge then vacated two of the convictions, saying, "no sane human being" could find them guilty. A third convictions was erased in 2009. See full story here.

Tuesday, March 14, 2017

OPA (Taylor) Poised to Waste More Tax Dollars

PBS reports that the Obama administration, in its final year, "spent a record $36.2 million on legal costs defending its refusal to turn over federal records under the Freedom of Information Act." This after much hot air about FOIA reform, being the "most transparent administration in history" and a presumption of disclosure. It was actually the "second consecutive year, the Obama administration set a record for times federal employees told citizens, journalists and others that despite searching they couldn’t find a single page of files that were requested." In addition, records were set for "outright denial of access to files, refusing to quickly consider requests described as especially newsworthy, and forcing people to pay for records who had asked the government to waive search and copy fees."

We know this routine well. William N. Taylor II "Executive Officer" of Office of the Pardon Attorney closed shop as President Obama engineered the greatest fourth year surge in clemency in American history. Taylor stopped answering our request (even as they sat with him for months, and years). He then stopped acknowledging that he was even receiving requests. Taylor then unilaterally denied requests for information granted by his Office throughout the entire Bush administration and part of the Obama administration.

Taylor has claimed he was too busy. He has claimed to have lost requests. He has pretended that information once routinely (and quickly) granted, suddenly required extensive discussions with many people. He has claimed that data now get buried / lost in a new electronic filing system and cannot be retrieved without incredible effort - effort which he is not able to expend - because he does not have to. Finally, to reduce the backlog of ignored/misplaced FOIA requests, he has simply denied, counting on applicants NOT to appeal his arbitrary and capricious decision making. See full story here.

Monday, March 13, 2017

Florida: Law Suit for Clemency

Florida's Executive Clemency Board
FloridaPolitics.com reports that a class action lawsuit was filed today which aims "automatically restore former felons’ voting rights and eliminate Florida’s rights restoration process." The suit was filed by the Fair Elections Legal Network and Cohen Milstein Sellers & Toll PLLC on behalf of seven former felons.

The publication notes:
Florida is one of just a handful of states that does not automatically restore voting rights once a felon has paid his or her debts to society. There are 1.6 million Floridians currently disenfranchised—the highest state total in the nation—and over 10,000 are waiting for a hearing on their restoration applications. There is currently an effort to get a constitutional amendment on the ballot 2018 by the group Floridians for a Fair Democracy that would automatically restore voting rights for non-violent felons. 
Currently felons must complete their sentences and wait 5- 7 years before petitioning the State's Executive Clemency Board (the Governor, Attorney General, Chief Financial Officer and Commissioner of Agriculture), They then wait "an indeterminate amount of time" (months to as much as 10 years) to make it on the Board’s "quarterly meeting agenda." The plaintiffs note:
As of March 1, the backlog of applicants for voting rights restoration stood at 10,513, but the suit alleges that the Clemency Board only hears an average of 52 cases per quarter. “At this rate, if no new applications were submitted, it would take the Clemency Board almost 51 years to hear the entire backlog of applicants” ...
Since Governor Scott took office in 2011 only 2,488 applications having been granted. Scott’s predecessor, Charlie Crist, revised the rules of executive clemency and granted 155,133 applications. See full story here.

Egypt: 203 Pardons

The Daily News Egypt reports the presidency "is set to announce the second pardon list of 203 prisoners within hours on Monday." A committee has been "working on the second list for more than two months." All of the 203 prisoners were serving sentences "in cases regarding freedom of expression and publishing crimes."  The majority are also said to be "students and individuals suffering from poor health conditions."

Sunday, March 12, 2017

Plodding DOJ Reviews the Truant OPA

What is less than impressive than the Office of the Pardon Attorney ignoring FOIA requests for years, then changing its policy of transparency so it now no longer has to respond to them?


That would have to be the DOJ delaying its response to the "appeal" of the OPA's sloppiness:


Thursday, March 9, 2017

Louisiana: Sentencing / Clemency Reform

Gov. Edwards
NOLA.com reports Gov. John Bel Edwards is expected "to make his big push to change criminal sentencing laws and reduce Louisiana's highest-in-the-world incarceration rate during the Legislature's regular session starting April 10."

Edwards commuted 22 prison sentences, "far more than the first-year totals of predecessors Mike Foster, Kathleen Blanco and Bobby Jindal." The totals for previous governors were as follows: Foster (52), Blanco (129) and Jindal (3). It is reported that Edwards' actions "have raised the spirits of lifers at the Louisiana State Penitentiary."

Jindal didn't necessarily turn down offenders' requests so much as he ignored about 700 recommendations from the Pardons and Parole Board for commutations, pardons and other forms of relief  "without any action." So, Edwards' Pardons and Parole Board has implemented a new rule: If Jindal's board recommended clemency and there was no action on the case, an inmate can reapply over the next year (as opposed to waiting 2 to 5 years) to Edwards' board "and be considered quickly." See full story here.

Wednesday, March 8, 2017

Michigan: Taking Criminal Justice Reform Seriously

The Associated Press reports Michigan lawmakers are aiming at "keeping the more than 100,000 criminals under state supervision from committing new crimes, a move one supporter called a 'milestone' shift in the treatment of offenders."

One proposal "would limit the length of incarceration for offenders who violate their probation." Another would "create a more intensive parole program with progressively harsher penalties for violating the terms of parole as opposed to automatically sending parolees back to prison." Another bill "would explicitly let judges reduce probationers' length of supervision for good behavior." There are also attempts to "officially define what recidivism means and require precise data on whether offenders on probation or parole are committing new crimes or committing technical violations such as failing to report for a visit with an officer or abusing a substance."

The goal? To "keep minor criminals out of county jails and state prisons that can be 10 times more expensive than supervising probationers and parolees." The piece interestingly notes that "about half" of the state's 41,000 prisoners are "locked up for parole or probation violations." See full story here.

Clemency Warrant Theft

NBC Washington reports that "more than 50 official 19th century U.S. presidential pardons are missing and potentially being sold on a black market." They "vanished from the National Archives" two decades ago "at a National Archives facility in Philadelphia and are actively being pursued by agency investigators." Among the administrations covered by the documents are those of James Madison, Andrew Jackson, Ulysses Grant, James K Polk, John Tyler, Zachary Taylor, Millard Fillmore, Franklin Pierce, Andrew Johnson and Rutherford B. Hayes.
A longtime National Archives employee took a large number of pardons from the Philadelphia offices and later pleaded guilty to theft and served a federal prison sentence. But many of the pardons had disappeared into a black market before the worker was charged, said former FBI agent Bob Wittman, who cracked the case. "This man’s job is to protect this material, and here he is taking it," Wittman said. Thefts of historical records are often “inside jobs” executed by employees or patrons with close ties to the organization holding the documents, Wittman said.
One missing document is a clemency warrant from from President Tyler to former U.S. Postal Service letter carrier Frederick S. Fisher of the Philadelphia Post Office who was convicted of stealing $5 from a parcel in Pennsylvania (see image to the right).

Anyone with tips or information to share with federal investigators should email MissingDocuments@nara.gov.

See story here.

Thursday, March 2, 2017

Obama: Breaking Records in a Broken Clemency System

The Editor is pleased to announce the publication of a piece in the current issue of the Federal Sentencing Reporter, Vol. 29, Nos. 2–3 (December 2016 - February 2017)


Click here to read the article in its entirety.  

Monday, February 20, 2017

Massachusetts: Governor Barker Does Obama Routine

Gov. Barker Waiting Till End of Term?
NewBuryPort.com has a wonderful story on the clemency situation in Massachusetts. It notes 71 people applied for pardons and commutations last year and none of their applications has reached Gov. Charlie Baker for consideration. One application is from 54 year old Alfred Waitt, who was arrested "more than 35 years ago on charges of underage drinking, possession of marijuana and a pocket knife."

Baker, however, hasn't granted a single pardon or commutations since he took office January of 2015. Perhaps he has been encouraged by President Obama's record on clemency and is waiting for he term to near its end. Barker has received over one hundred requests, but says he relies on State's Parole Board to reviews them before he acts.
“It’s really up to them ... If they were to send me something, I would review it and make a decision based on the facts of the case. But I’m certainly not going to tell them what to do.” 
Since 1945, Massachusetts governors have granted 5,772 pardons and 267 commutations, with "more than than two-thirds of the pardons, and a third of the commutations" being granted from 1964 to 1971. In the past five years, there have been "230 pardon requests and 356 commutation requests" and "just five pardons and a single commutation" have been granted. See full article here.

Pardons and commutations by Massachusetts governors:

Charlie Baker (Republican) 2015 - present Pardons 0 Commutations 0
Deval Patrick (Democrat) 2007 - 2015 Pardons 4 Commutations 1
Mitt Romney (Republican) 2003 - 2007 Pardons 0 Commutations 0
Jane Swift (Republican) 2001 - 2002 Pardons 7 Commutations 0
Paul Cellucci (Republican) 1997 - 2001 Pardons 20 Commutations 0
Bill Weld (Republican) 1991 - 1997 Pardons 45 Commutations 6
Michael Dukakis (Democrat) 1975 - 1979; 1983 - 1991 Pardons 838 Commutations 59
Edward King (Democrat) 1979 - 1983 Pardons 212 Commutations 11
Frank Sargent (Republican) 1969 - 1975 Pardons 1,754 Commutations 40

Thursday, February 16, 2017

Neil Eggleston Stumbles in Empirical Fog

Former White House Council Neil Eggleston - a career prosecutor - thinks the "criticism" of the clemency process being dominated by career prosecutors in DOJ is "completely misguided" and "based on some sort of theoretical, potential problem," not an "actual conflict." Political scientist W. H. Humbert who - unlike Eggleston - did extensive empirical research on the pardon power (see The Pardoning Power of the President), knew people like Eggleston well, and wrote:

[Criticism of the pardon power] has occurred sporadically and has pointed to the necessity for greater circumspection by the pardoning authority rather than to the need for restriction of presidential action or for modification of the pardoning process. Recommendations on applications for clemency of United States Judges and Attorneys should not be relied upon to as great an extent in the future as in the past in deciding what should be done with applications for clemency. [There] are reasons demanding that recommendations from these official should be scrutinized very carefully.

Because of the nature of the information which a judge received on a case, because of the danger of partiality which the experiences of a judge in criminal cases engender, and because of insufficient time to collect facts relevant to a decision in clemency cases, the United States Judge's recommendations should be critically examined. The judges imposed the sentence and they are loathe to admit any error in their original sentence.

[This] last objection applies with equal force to the practice of relying upon the recommendation of the United States Attorneys . The United States Attorneys who frequently reach their offices because of political preferment, are often fired with a zeal to make a record by numerous convictions in order to secure further promotion. Their ardor may bring out a great number of convictions, some of which are unwarranted. But will these men be wiling, afterwards, to recommend clemency in the cases in which over-zealousness brought about a wrongful conviction or too severe a sentence?

[More] security to both the pardoning authority and the applicants for clemency and better results in the use of the pardoning power would probably be produced by creating a small board, equipped with a staff to make impartial studies of detailed data on each applicant for clemency, including the data submitted by the United States Attorneys and Judges, a board clothed with the present authority of the pardon attorney to make recommendations on applications for clemency to the Attorney General and the President.

[Such] a process would definitely fix responsibility for action, promote greater uniformity of treatment, and obviate the necessity for relying to as great extent as at present upon recommendations from the United States Judges and Attorneys and from other officials. Better use of the pardoning power, not abandonment of it, should be sought. The errors which occur in the administration of justice provide a sufficient reason for retention of the pardoning power in the government of the United States. There comes, moreover, a time during the incarceration of the more intelligent prisoners when clemency to them, in the proper form, will be productive of a more good both to them and to society than would ensure from insistence upon strict observance of the sentences.

[By] granting clemency at the proper juncture, a social attitude may be created and the development of a vindictive spirit on the part of the convict may be avoided. Something may be lost thereby in the way of certainty of execution of sentence but compensation may be looked for through the restoration of the convict as a useful member of society. - political scientist W.H. Humbert (1941)

Tuesday, February 14, 2017

Neil Eggleston: Confuses Theory with Empirical Reality

Here is a snippet from a post at the Marshall Project, an interview with former White House Council Neil Eggleston

The Marshall Project: One criticism was that it was strange to have prosecutors — from the same department who got these sentences in the first place — weigh in on clemency decisions. Did you think about this?

Eggleston: I think that criticism was completely misguided and based on some sort of theoretical, potential problem. The fact is that Deputy Attorney General Sally Yates, a 27-year Department of Justice prosecutor out of Atlanta, was a very strong supporter of this initiative. Loretta Lynch, too. The people who criticized their involvement did so on a theoretical conflict — not an actual conflict. It’s just not true.
Click on Image (Above) to Enlarge
No, actually it is a long-standing empirical problem. How Eggleston was not asked about former Attorney General Lynch's silly suggestion that presidents do not have the power to grant group pardons (or amnesties) is amazing. Lying about clemency is being "supportive?" Eggleston surely would have had an equally ridiculous answer. 

Dear President Trump: Fire William N. Taylor, II

Clean the DOJ Swamp
"... This correspondence is in response to your Freedom of Information Act (FOIA) request dated December 18, 2015 and received in the Office of the Pardon Attorney (OPA) on February 13, 2017.  It appears that your original email was sent to our main mailbox at a time when the office was dealing with a deluge of mail as a result of this Office managing the Department’s efforts related to President Obama’s Clemency Initiative, so thank you for forwarding it to us again." - William N. Taylor II, Executive Officer, Office of the Pardon Attorney

A more appropriately edited version:

"... This correspondence is in response to your Freedom of Information Act (FOIA) request from years ago and received once again, thanks entirely to you, in the Office of the Pardon Attorney (OPA) on February 13, 2017.  It appears that your original email was sent to our main mailbox (as opposed to our Top Secret mailbox) at a time when the office was ignoring a deluge of mail (including all of your FOIA requests - which were previously acknowledged and fulfilled within days) as a result of this Office managing the Department’s efforts related to President Obama’s Clemency Initiative, and we just lost / deleted it, because we have those kinds of mad skills and, more importantly, because we can. So thank you for forwarding a second copy to us again. I now happily deny you the information that you got for 8 years of the Bush administration, and several years of the Obama administration. Because I think I can get away with it and would rather have you spend time with an appeal than me spend time provding a long-standing public service." - William N. Taylor II, Executive Officer, Office of the Pardon Attorney


Monday, February 13, 2017

OPA Rockin' It !

... As for the request you sent on December 18, 2015, we have no record of that.  Please resubmit it and I will happily respond accordingly.

Sincerely,

William N. Taylor II, Executive Officer, Office of the Pardon Attorney

Friday, February 10, 2017

DOJ Ditches FOIA for Obama Finale

For years, the Editor of this blog has requested information on when granted clemency applications have been filed with the Office of the Pardon Attorney (OPA) and when they have been forwarded to the White House. While the information revealed absolutely nothing about the content or merit of particular applications, reasons for clemency, reports, inter-agency communications, or anything at all substantive re the deliberation process ... it did provide relevant factual information on the flow of successful applications through the clemency process.

These FOIA (Freedom of Information Act) requests were granted to the Editor through the entire administration of George W. Bush (eight years) and the Obama administration as well, for the better part of six years, until April of 2015. Indeed, the requests were routinely sent, acknowledged by OPA and fulfilled by OPA in a matter of weeks ... two or three weeks max. Here is the history of a request William N. Taylor II "Executive Officer, Office of the Pardon Attorney" killed after 784 days.

December 17, 2014 - FOIA request filed.

April 10, 2015 - the records you request will “require a significant amount of time” to search, scan and redact.

July 20, 2015 - your requests have been assigned to “the complex track” and will “necessarily take longer” to be addressed.

Dec. 12, 2016 - "... those data points are captured in our electronic case management system. However, they are not easily exported out ... it would literally require a staff employee to manually open each electronic case file to copy and paste that information from the case file to a spreadsheet ... ... we do not have the funding or the manpower to accommodate such a request at this time.

... it would require some discussion with all of the stakeholders involved in the executive clemency process to see if they all would approve of having that information public even if we (OPA) could afford to take the project on.

Feb. 8, 2017 -  After carefully considering your request, I have determined that if any such records do exist, they are exempt from disclosure pursuant to 5 U.S.C. § 552(b)(5), which concerns attorney work product protected by the deliberative process privilege.

Thus, William N. Taylor II covers the tracks of the greatest fourth year clemency surge in history, overturning 15 plus years of past practice in his own office, in Republican and Democratic administrations.

Wednesday, February 8, 2017

Time to Shut OPA Down.

Info Now Banned by DOJ / OPA
For years, the Editor of this blog has requested information on when granted clemency applications have been filed with the Office of the Pardon Attorney (OPA) and when they have been forwarded to the White House. While the information revealed absolutely nothing about the content or merit of particular applications, reasons for clemency, reports, inter-agency communications, or anything at all substantive re the deliberation process ... it did provide relevant factual information on the flow of successful applications through the clemency process.

These FOIA (Freedom of Information Act) requests were granted to the Editor through the entire administration of George W. Bush (eight years) and the Obama administration as well, for the better part of six years, until April of 2015. Indeed, the requests were routinely sent, acknowledged by OPA and fulfilled by OPA in a matter of weeks ... two or three weeks max.

Then, William N. Taylor II "Executive Officer" of OPA simply stopped responding to our FOIA requests. He then stopped acknowledging that they were being received at all. Consequently, we have waited - quite literally, for years - for any indication whatsoever that his Office is of the opinion that FOIA law applies to its work. The previous pardon attorney (Robert Zauzmer) recommended that we simply wait until the Obama administration was over.

Info Now Banned by DOJ / OPA
Of course, by the time he left office, President Obama set a record for commutations of sentence and engaged in the largest 4th year clemency surge in American history. Media reports suggested clemency officials were working well into the night, over the weekends and during holidays, trying to bust their way through thousands of applications. Nameless, faceless bureaucrats in the administration that promised greater transparency, and greater cooperation with FOIA requests in particular, simply shut the doors, at the worst possible time. Because they could.

This evening (February 8, 2017), we sent an e-mail to OPA, politely inquiring whether or not it intends to knowledge / fulfill FOIA requests this year (2017)? Within minutes, mere minutes (!), six of our FOIA requests (189, 250, 279, 309, 680 and 784 days old) were given e-mail responses. A Christmas miracle! And they were all given - for the first time ever - a "full denial." The Executive Officer explained:
... After carefully considering your request, I have determined that if any such records do exist, they are exempt from disclosure ... 
The Executive Officer of OPA does not know if data exists in his own office any more? Who knows what other critical data they lose, or do not know they have? Causally recognizing its god-awful work in recent years, the OPA says:
We expect that our FOIA and Privacy Act response times will increase quite drastically during the spring of 2017.
Indeed. Looks like that Office will be "going through" FOIA requests, in 2017, like it did commutation applications in 2016. No easier way to cut through a backlog of requests than flippant summary denials. We are "appealing" the request, but, well, you know ...

Friday, February 3, 2017

Sentence Commuted, Re-Arrested.

The San Antonio Express reports that 68-year old Robert M. Gill, whose life sentence for "cocaine and heroin distribution conspiracy" was commuted by Obama to expire in 2015,
... contacted an unidentified person, via telephone, to arrange a deal to buy a kilo of cocaine, according to the affidavit. At about 5:30 p.m., Gill met with that person in the parking lot of Fiesta Food Mart at 6050 Ingram Road and received a black backpack that he put in the car he was driving, the affidavit said. As he left the parking lot on Ingram Road, a Bexar County sheriff’s deputy in a marked patrol car tried to pull him over. Gill, the affidavit said, fled at high speed and the car he was in collided with the vehicle of another motorist at the intersection of Callaghan and Bandera. He again tried to flee, but his vehicle was disabled by cars of other law enforcement officers, according to the affidavit. Agents found the backpack in the car, which contained a kilo of cocaine, the affidavit said. He “related that he was going to sell the cocaine to make money and would be paying a female $26,000 for the cocaine,” the affidavit said.
The Express reports Gill (a Vietnam Veteran) had served 25 years for his previous convictions and is, once again, facing the potential of a mandatory minimum sentence of 5 years and could see up to 40. Gill thought his original sentence "wasn't fair" and he counted on "people in government with rational minds" to realize it was a matter of "injustice."  Obama wrote that he granted Gill’s application because he had "demonstrated the potential" to "turn" his life "around."

See full story here.

Monday, January 30, 2017

Deputy Attorney General Sally Yates ...

... has been fired by Donald Trump, after she expressed her view of the constitutionality of his executive order on immigration.

We only wish Yates had had the courage / conviction to speak out when former Attorney General Loretta Lynch stupidly suggested presidents do not have the power to grant amnesties / general pardons.

Yates was mute.

So, we say, "Good bye. Good riddance."

Friday, January 27, 2017

Meanwhile, in 1938 ...

William H. Malone, former Chairman of the Illinois Tax Commission who has been sentenced to two years in prison for Income Tax fraud, flew to Washington today to appeal personally to President Roosevelt for a pardon.

Upon arrival at the airport, Malone stated that he felt confident that, when President Roosevelt knew all of the facts in the case, "he would not tolerate what they are planning to do with me," 5/9/38

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