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?" 

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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. 

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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.

Monday, April 25, 2016

Hillary: Call for Pardon!

Lobbying the President: Nicki Minaj

According to Hollywood Life, Jelani Ninaj was arrested in December and indicted in April for "sexual abuse charges of a child" and is looking at a possible 20 year prison sentence. Now, Nicki "is doing everything to help her brother, including begging the President." Says Morning News USA:
When Nicki Minaj and other rappers were invited to the White House by the President that the rapper approached President Barack Obama with a plea to pardon her brother. As per Olisa TV, Nicki and the President are going to talk more about this charge. The President will leave office in the month of January before which he can pardon Jelani and then leave office. Once that happens no one can say anything about the matter. Of course, the sources have to add, it is not clear whether the President will yield to such matters before he leaves office. 
See "story" here.

Tuesday, April 19, 2016

Eggleston Shatters Sleep Deprivation Mark

Eighteen days after White House counsel Neil Eggleston promised, "No more eating, sleeping or drinking until we get all these commutations done" ... not a single pardon or commutation of sentence has been granted.

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Eggleston says - to the "critic," and a "nay-sayer" - that the DOJ is handling the clemency process just fine.

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Friday, April 15, 2016

Heritage on the Apocalyptic Pardon Horseman

In a piece at Heritage.Org, entitled, "A New Approach to the Texas v. United States Immigration Case: Discretion, Dispensation, Suspension, and Pardon—The Four Horsemen of Article II," Paul Larkin suggests the famous Biblical passage "can be used to signify the end of the Barack Obama presidency."

Larkin says President Obama "worked with Congress to enact as law policies that he believed were necessary to benefit the nation" early in his administration. When the Democratic Party lost control of Congress, however, the President "shifted gears."
Since then, he has often used executive orders or administrative decrees (issued by different departments) rather than legislation to create law. In fact, sometimes he has issued such decrees in the teeth of the very laws that he helped enact early in his first term, such as Obamacare. One of the horsemen he has ridden is the pardon power. 
Well, that certainly is a different slant. President Obama's first four years in office represented the least merciful term since John Adams. To date, there is little about his record on pardons and commutations of sentence that would intuitively encourage comparison with the Four Horsemen of the Apocalypse, or even any one one them!

Larkin makes the routine linkage of the pardon power to the King of England, but says nothing of its logical place in a constitutional, federal system of separation of powers and checks and balances. One guesses he is not aware that Hamilton (in the Federalist papers) argued there should be "easy access" to mercy. Larkin doe note that the Pardon Clause "enables the President to reduce the punishment imposed by a court or to erase a judgment of conviction entirely" ... which is true, among other things. He then states that the President "created the Clemency Project 2014" so he could commute the sentences of "deserving prisoners who could not take advantage of" the Fair Sentencing Act of 2010.

Of course, the President could pardon (commute the sentence) of any one that he wanted, for any federal crime, for any reason, or no reason at all, well before CP14 every showed up in this world.

Larkin then suggests that the discretionary use (or, in Obama's case, general non-use) of the pardon power is comparable to the situation re immigration. Congress has refused to pass the so-called DREAM Act, so the President
... has relied on an Article II power different from the Pardon Clause: the President’s authority to exercise discretion in the enforcement of the law ... In the government’s view, the DHS has the discretion to decide how to allocate its scarce resources to those instances in which the immigration laws and the nation’s interests are best served. The new policy [subordinates] to more pressing deportation proceedings the need to institute hearings to deport aliens whose presence in the nation poses no risk to national or internal security and whose deportation would pose a serious hardship on them. 
Larkin argues "English legal and political background" reveal there are "two implicit but clear limitations on the President’s authority: The President cannot dispense with the application of the law for particular people, and he cannot suspend the operation of a law in its entirety." One wonders, immediately, what this then has to do with the pardon power.

After a whirl through history, Larkin concludes the President can "decide" or be "selective" about "which cases to select for prosecution, suit, or deportation." But he insists that it is "not obvious" that the source of that power is the Take Care Clause ... and "it certainly cannot be the Pardon Clause."
Parliament clipped the crown’s wings by legislating that no king or queen could dispense with or suspend the law absent Parliament’s authorization. The Framers did not wrest that power from Congress and give it to the President. Instead, they imposed on the President a duty to see to the faithful execution of the law. Whatever the reach of the President’s discretionary authority to enforce the law, he cannot go so far as to dispense with or suspend its application. 
This idea, while fun and interesting, can, of course, easily abused by over-zealous rhetoricians and tunnel visioned partisan hacks. President Obama - to date - has granted 248 commutations of sentence. 22,000 applications sit in DOJ and 36,000 more are being juggled by CP14. Do the .004 percent of applications granted constitute tossing "the law" in the garbage, or a suspension of its application? Are they "tantamount to dispensing with or suspending the operation of the law for one or more people?" Do they amount to destroying the "rule of law?" We guess no reasonable person could actually reach such conclusion, but, unfortunately we are not so certain about Larkin.

And then, the piece gets even more muddy. Larkin says "background" reveals "that a President may exercise a dispensation or suspension authority only insofar as Congress empowers him to do so"  - a conclusion no one would reach reading the plain language of the Constitution. The Framers, he writes, "did not give George Washington the power claimed by James II to dispense with or suspend the operation of the laws." But we all know Washington granted group pardons / amnesties to participants in the Whiskey Rebellion. If, likewise,President Obama, tomorrow, were to grant an amnesty to all-first time, non-violent drug offenders who had long, exemplary prison records and who would not even be in prison were they sentenced under the current laws ... well, we know what the routine would be.

As if there is no empirical research on the topic, Larkin writes that it "is not uncommon to see Presidents ride two of the four available horses—Discretion and Pardon—in the twilight hours of their time in the Oval Office." In fact, it is quite uncommon - at least in the case of pardons - depending on how literal one interprets the language "twilight hours." Larkin's reference to Bill Clinton, as a probative historical example, is pretty sloppy indeed. See the entire piece here.

Parole for Van Houten?

The Los Angeles Times reports that the California "review board" has recommended parole for former Charles Manson “family” member Leslie Van Houten. She was convicted of first degree murder (along others) as a participant in the 1969 "cult" killings of Leno and Rosemary LaBianca (stabbing them 14 times). Van Houten, a former home-coming queen, is 66-years old, today, and, according to the Times, has been denied parole 19 times over the years.

Van Houten's lawyer says that, over the years, opposition to her parole has really amounted to opposition to "the name Manson” (go figure).  People, she says, "Don’t know anything about Leslie’s conduct [or] what she’s done since then and all of the good she’s done.” She has been "a model inmate," earned a bachelor’s and master’s degrees and run "self-help groups" for incarcerated women. She has also said that she is "deeply ashamed” of what she did. As the board's Commissioner put it, "Your behavior in prison speaks for itself. Forty-six years and not a single serious rule violation.”

A spokesman for the Governor said what any spokesperson with half a brain would say - nothing at all ! Why do the media even place such stupid, ill-timed inquiries?

Cory LaBianca (daughter of the victims) is said to be "disappointed" board’s decision, noting:
“Maybe Leslie Van Houten has been a model prisoner. But you know what? We still suffer our loss. My father will never be paroled. My stepmother will never get her life back. There’s no way I can agree with the ruling today."
An L.A. County Dist. Atty also disagrees and will "evaluate" how he will "plan to proceed.”

Van Houten, who was 19 years-old at the time of the murders, was the youngest "family" member and, according to the Times, "has been considered the least blameworthy." She was convicted after three trials, and actually sentenced to death, but benefited from a commutation of sentence when the U.S. Supreme Court declared the death penalty, as then constructed, unconstitutional. See story here.

Thursday, April 14, 2016

Perspective: Obama v. Nixon

Nixon, "Mr. Mercy."
To date, after being President of the United States for seven years, President Obama has granted a total of 318 pardons and commutations of sentence.

If, over the final months of his presidency, Obama were to grant 600 more, he would still be short of the record of mercy set by Mr. Law and Order / Retributive Justice / Lock em Up and Throw Away the Key / Republican Richard Nixon.

And, of course, Nixon left office long before his second term was complete and received 20,000 less applications.

Mr. President: Save Neil Eggleston!

Thirteen days after White House counsel Neil Eggleston promised, "No more eating, sleeping or drinking until we get all these commutations done" ... not a single pardon or commutation of sentence has been granted.

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To anyone who happens to notice, Eggleston says: it is "great," and "a lot easier," to be a "critic," and a "nay-sayer," and you could all be "more productive" and  "committed" by shutting up. The DOJ can / is handling the clemency process just fine.

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Wednesday, April 13, 2016

Seeking a Pardon: Wrong Time. Wrong Administration

Channel 12, Richmond, is reporting on Rodney White, who "spent more than 15 years in prison on a first-time, non-violent drug offense." After leaving prison, in February of 2007, White graduated Magna Cum Laude from the University of Richmond and is now a community college administrator. As he puts it, a pardon would go:
"... a long way in establishing that I have gone above and beyond to try and correct my wrong ... I'm not saying give me a pardon because, 'Hey I've been doing great things.' I broke the law. I admit that, but at least review the process. At least give me an opportunity to have a fair shot at my pardon being heard." 
So, he has drafted a ""petition" to the White House and is seeking 100,000 signatures in 30 days. White says it is not just about him. "But it can be for your family member who may one day want to seek a pardon themselves." See story here.

Unfortunately, for Mr. White, President Obama has - after seven years and a "revamped" DOJ model for processing clemency applications - the worst record on pardons of any modern President. Indeed, no one has done less on this front since John Adams (1797-1801) and some presidents who died in office before even completing a single term.

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Tuesday, April 12, 2016

Granted ... and Denied.

USA Today's Gregory Korte notes (Tweets) that, while the White House / DOJ were shooting off rockets re 61 commutations of sentence, 589 applications were denied. Thus:

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Monday, April 11, 2016

Hillary's Possible Pardon Cushion

At Dan Abrams' Law News, there is chit chat about a possible presidential pardon.for Hillary Clinton. It is observed that "behaviors" that were "observed" in recent interviews with Clinton and President Obama "suggest" that "discomfort could stem from the specter of a presidential pardon having entered the equation."

The piece accuses Clinton of "deceptive behavior" in an interview with Matt Lauer, denying that there was classified information on her personal email server, despite the fact that it "has been established that over 2,000 of her emails reportedly contained classified material, including 22 emails that contained Top Secret information."

The authors then link Clinton's reaction when Lauer raised the idea of her being placed in handcuffs - "Well, Matt, I know they live in that world of fantasy and hope, because they’ve got a mess on their hands on the Republican side ... That is not going to happen. There is not even the remotest chance that is going to happen” - to the fact that Bill Clinton pardoned former CIA Director John Deutch (who "put classified information on several of his laptop computers") on his last day in office.
Her flippant, dismissive behavior was, in fact, consistent with the behavior we often see in the criminal world, when a person is arrested on suspicion of committing a serious crime. As an example, we routinely see people who are arrested actually fall asleep soon after the cell door clangs shut, even in the middle of the day. In contrast to a truthful person, whose level of concern would likely lead to several sleepless nights, a deceptive person tends to be dismissive of the circumstances. Now, if it’s the case that what we’re seeing from Clinton is genuine, substantiated confidence, to what can we attribute her seeming certainty that she has nothing to worry about? We can only surmise that there is at least a possibility that she has received some sort of assurance to that effect. 
The authors say their "hypothesis regarding a potential pardon assurance was dramatically bolstered" when Chris Wallace interviewed President Obama, who "minimized the seriousness of Clinton’s transgression" and  discussed "the handling of classified information in [a] wantonly cavalier manner."
When Wallace tried to ask a follow-up question with the introduction, “Just to button this up,” the President cut him off. “I guarantee it,” he said. “I guarantee that there is no political influence in any investigation conducted by the Justice Department or the FBI, not just in this case, but in any case.” The interruption, in the form of an overly-specific response, failed to address the entirety of the options available to the President, and Wallace likely recognized that. So he gave it another shot. “And she will be treated …” he persisted, only to be cut off again by the President. “Full stop. Period,” the President said Wallace persevered. “And she will be treated no differently …” he began. But once again, he was abruptly, forcefully cut off. “Guaranteed, full stop,” President Obama said. “Nobody gets treated differently when it comes to the Justice Department, because nobody is above the law.” 
Wallace, finally, asked Obama if what he was saying would still be the case, if Clinton is the Democratic nominee. The President retorted, “How many times do I have to say it, Chris? Guaranteed.” See full story here.

Friday, April 8, 2016

Montana: Whole Lot of Nothing

Great Falls Tribune reports Governor Bullock has granted clemency in only one instance, "six months after a state law went into effect [to] grant clemency after it has been denied by the Board of Pardons and Parole (BOPP)." It is reported that 40 applications have come in since the law passed. The Tribune says that, on Oct. 7, BOPP Chairman Mark Staples "told colleagues to expect a fairly significant number of petitions from inmates seeking clemency." See full story here.

Thursday, April 7, 2016

Eggleston: Closing in on Sleep Deprivation Record

On March 31, White House counsel Neil Eggleston expressed his disappointment with those who who were of the mind that President Obama's effort on the clemency front has been less than acceptable. Obama did not grant a single pardon or commutation of sentence until almost two years into his presidency (a record for Democratic presidents). His first term was the least merciful since that of John Adams (1797-1801). With Obama's second term about to close, Eggleston and others are want to prop up the President's overall record by comparing it favorably with the very worst records among his recent predecessors.

Moreover, Eggleston sarcastically noted that it is "great," and "a lot easier," to be a "critic," and a "nay-sayer," and self righteously questioned whether or not such persons could be "more productive," more "committed" to ... not annoying him so. Eggleston then - on April 1 - summarily established his own credibility, and general sense of real, sober-minded and serious commitment by saying: "No more eating, sleeping or drinking until we get all these commutations done."

Wednesday, April 6, 2016

UC's Federal Criminal Justice Clinic Client Granted Clemency

December 18, 2015

"President Obama today granted clemency to Eugene Haywood, a client of the Federal Criminal Justice Clinic at the University of Chicago Law School. Mr. Haywood was serving a mandatory minimum life sentence for a non-violent drug offense he committed in 2001. His FCJC attorney Judith Miller commented, “Mr. Haywood emblematizes the deep flaws in our federal criminal system. He should never have had to face a mandatory life sentence for this offense, and we thank the President for correcting this injustice.”

Mr. Haywood’s release is a part of the President’s new clemency initiative. In starting the initiative, the administration recognized that some of the “older, stringent punishments that are out of line with sentences imposed under today’s laws erode people’s confidence in our criminal justice system.” The FCJC hosted a meeting this fall for students and other clinics involved with the clemency initiative. 

FCJC students were critical to the clemency effort. Under Miller’s supervision, 2014-2015 clinic students Elpitha Betondo, '15, Sri Pernankil, '15, and Bryant Lin, '16, and 2015-2016 clinic students Grace Goodblatt, '16, and Rick Redmond, '17, tirelessly researched Mr. Haywood’s background, spoke with him and his family on the phone, sent away for countless records, and drafted his materials. Betondo (now a first year associate at Jenner & Block) also presented his story to Senator Durbin last year." See more on this item here.

Merle Haggard: Pardon Recipient

Merle Haggard was born into a dirt poor family which, at one point, lived in a "renovated" railroad boxcar. His father died when he was 9-years old and he spent his youth as a "small-time criminal" (theft, armed robbery, truancy, shoplifting, writing bad checks, etc.) before landing a room in San Quentin State Prison for a burglary conviction. Haggard was seemingly expert at escaping from the institutions which had housed him previously, but he spent three years at the Big House - including time in solitary confinement. After he was paroled (in 1960), the 23-year old Haggard started working for his brother, digging ditches, and successfully pursued a music career.

City Journal once noted:
Just as [Johnny] Cash’s music doesn’t hold a candle to Haggard’s, so the drama of Haggard’s life is more compelling and significant. One incident says much: In a television appearance with Haggard, Cash recalled one of his trademark prison concerts in San Quentin. Haggard remarked that he’d been there for the concert. When Cash noted that he didn’t recall Haggard being on the bill that day, Haggard replied, “I was in the audience, Johnny.” His is a classic American story of sin and redemption, filled with cinematic scenes and accompanied, of course, by a world-class soundtrack.
Ronald Reagan (then Governor of California) granted Haggard, convict No. A-45200, a pardon in 1972. The singer / song-writer credited Reagan for giving him "a second chance at life." He said the pardon, "meant everything." When asked by CMT how the pardon changed his life, Haggard said:
Yeah, it really did. Well, you can imagine yourself, you know, you got this tail hanging on you, and suddenly you don’t have it anymore. It’s just wonderful not to have to walk up and say, “Pardon me, before I do this, I want to tell you that I’m an ex-convict.” You have to do that with any sort of legal transaction, with leaving the country, with anything of that nature. All those things went away when Ronald Reagan was kind enough to look at my case and give me a pardon.
Haggard went on to become a member of the Country Music Hall of Fame and one of the most influential figures in popular music. And he also performed for Reagan, as President of the United States, had dinner with the President and took advantage of the chance to thank him personally for the pardon. Interestingly, Haggard had previously performed at the White House for Richard Nixon - just three days after Nixon had urged Congress to attack crime "without pity."

Reagan called the pardon "routine." It simply came "up through the system." R.I.P. Merle Haggard. Here's to routine pardons! May there be many, many more.

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