Thursday, July 28, 2016

A Long, Hot, Merciless Summer

President Obama recently invited interested persons to the White House to discuss issues related to federal executive clemency. White House counsel Neil Eggleston appeared at the event and said there would be no sleeping or eating until the DOJ bureaucracy processed its record backlog of commutation applications.

Here (below) is a summary of how the first 9 weeks of the President's last summer in office have flushed out. Quite the weight loss plan that.

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California: Saunders on Van Houten

Gov. Jerry Brown has reversed a parole board recommendation to parole 66-year old Leslie Van Houten for her role in double murders committed by the so-called Manson Family in 1969. The board notes she is remorseful, has accepted responsibility, and poses no danger to society. Gov. Brown, however says,
“As our Supreme Court has acknowledged, in rare circumstances a crime is so atrocious that it provides evidence of current dangerousness by itself.” 
San Francisco Chronicle columnist Debra Saunders thinks the Governor is on to something. She reminds us that Manson is "best remembered" for leading his "followers to kill five people in "brutal, premeditated acts of terrorism designed to spark Manson’s envisioned race war between black and white."

Van Houten was sentenced her to death in 1971, but her sentence was commuted to life by the California Supreme Court. After a retrial, she received a sentence of life with the possibility of parole. Looking over Van Houten's prison record and experience, Saunders agrees that she "fits the very model of redemption" but adds:
I believe that if Van Houten is truly remorseful, then she should accept that her punishment is to spend her days repenting in a correctional facility. I don’t make light of prison and the loss of autonomy. But life behind bars is a fitting sentence for torture/murder. Manson’s design was to terrorize civil society. Van Houten tried to burn down that house. She doesn’t get to come back into the house. 
See full column here.

Montana: Recommendation for Clemency

The State's Board of Pardons and Parole voted unanimously to grant executive clemency to Russell Delano Foster who was "convicted of having sex without consent who then married the female and raised a family."   Great Falls Tribune reports:
If approved by the governor, it would be the second time House Bill 43 has been used to grant clemency. Passed in 2015, the bill gives the governor final authority over clemency requests from people convicted of crimes. The governor also would be able to waive fines, lessen a sentence or pardon someone. 
Foster was convicted in 2000, when he was 19 and his victim (and future wife) was 15. They married in 2004, and now have four children. The petition was first sent a request to the Board in 2012 and were denied. See story here.

Monday, July 25, 2016

Virginia: Governor Sidesteps Foolish Ruling

The Virginia Supreme Court recently ruled "the clemency power may be broad, but it is not absolute" - a position taken by no governor, or president, in the history of the United States. The Court then hopped on the straw man's shoulders and boldly observed none of Virginia's 71 Governors has ever "issued [a] clemency order of any kind, whether to restore civil rights or grant a pardon, to an entire class of unnamed felons." No, they all "exercised their clemency powers — including pardons, reprieves, commutations, and restorations— on an individualized case-by-case basis taking into account the specific circumstances of each."

Then, the Court went abruptly stupid. It raised the horrifying specter of "suspending laws" without "consent of the representatives of the people," and composed this amazing passage:
We acknowledge the contention that the Governor’s Executive Order did not wholly suspend the operation of the voter-disqualification provision ... Even so, we fail to see why this matters. 
The Court concluded that Governor McAuliffe's attempt to restore voting rights to hundreds of thousands of felons - in the style of amnesty, or group pardon - amounted to an attempt to "effectively rewrite the general rule of law and replace it with a categorical exception." Frightening stuff indeed. No, McAuliffe, said the Court, could only "use his clemency powers to mitigate a general rule of law on a case-by-case basis."

Dissenters noted the Court's notion of "suspension" was even more goofy than its analysis suggested.
... the majority [improperly] defines what suspension means [The] . . . term is generally applied to the abrogation of a statute or statutes, so that they lose altogether their binding force . . . [T]he law is put out of action; . . . it is in substance repealed . . . A pardon does not affect the legality of the act. It simply frees a guilty person from the legal consequences of his illegal acts ... The terms of [McAuliffe's] Executive Order are not prospective and do not prevent any felon from being disqualified from voting upon conviction. Rather, the Executive Order only restored the rights of a subset of felons, namely, those individuals previously convicted of a felony who, as of April 22, 2016, were no longer incarcerated or on supervised probation, which is approximately 206,000 of the over 450,000 felons eligible to be considered for restoration. Moreover, felons whose rights were not restored by the Executive Order, as well as newly convicted felons, continue to be disqualified upon conviction. [Indeed], if the Executive Order was, in fact, a suspension of the Disenfranchisement Clause, there would be no need for the Governor to enter subsequent orders restoring the rights of additional felons. When Governor McAuliffe’s term is over, the new governor will have the discretion to decide whether to restore the rights of subsequent felons disqualified from voting upon conviction as required by the Disenfranchisement Clause. Thus, it is apparent that the Executive Order clearly did not actually reframe the Disenfranchisement Clause as asserted by the majority, nor does it suspend operation of that constitutional provision.  
So, it's easy. McAuliffe told Democrats at the national convention that he will indeed restore voting rights to those hundreds of thousands of felons within the next two weeks. According to the Washington Post, he "vowed to use an autopen to sign the orders." See story here.

Friday, July 22, 2016

Virginia: Supreme Court Limits Pardon Power (Dissent)

"The majority ignores the plain language of [the] Disenfranchisement Clause, Article II, Section 1, and the Restoration Clause, Article V, Section 12, which clearly contemplate that the Governor has the aut hority to “remove political disabilities consequent upon conviction.” Not only is the majority opinion, with respect to the purported violation of the Suspension Clause, not supported by the plain language of the Constitution of Virginia, but it is also decided in a manner that is contrary to established Virginia jurisprudence.

To the extent one could view the Governor’s action in restoring political disabilities as a suspension of law, the Governor would be “suspending” the law each time he removed a person’s political disabilities, whether he did so on an individual basis or by categorical order. But by approving the Disenfranchisement Clause of the Constitution and by giving the Governor executive clemency powers in the Restoration Clause, the people of the Commonwealth have given their consent to the Governor’s suspension of the law within the limitations set out in the Restoration Clause. Virginia Governors have been exercising this authority for over two hundred years and there is no dispute that a governor’s exercise of such clemency power on an individual basis does not violate the Suspension Clause.

... it is particularly telling that the majority does not dispute the fact that the Governor may remove an individual felon’s political disabilities for any reason he chooses, including that he has served his sentence. Moreover, the majority acknowledges that the Governor could use many individual orders to achieve the mass restoration of rights he sought to accomplish under the Executive Order. Thus, the majority, in essence, takes the position that the Suspension Clause requires the Governor to exercise his executive powers in a different, less efficient manner.

Virginia: Supreme Court Limits Pardon Power


"Never before have any of the prior 71 Virginia Governors issued a clemency order of any kind — including pardons, reprieves, commutations, and restoration orders — to a class of unnamed felons without regard for the nature of the crimes or any other individual circumstances relevant to the request. To be sure, no Governor of this Commonwealth, until now, has even suggested that such a power exists. And the only Governors who have seriously considered the question concluded that no such power exists.

In this case, Governor McAuliffe asserts that his clemency power in this matter is “absolute” under Article V, Section 12 of the Constitution of Virginia. J.A. at 1. We respectfully disagree. The clemency power may be broad, but it is not absolute. Deeply embedded in the Virginia legal tradition is “a cautious and incremental approach to any expansions of the executive power.” Gallagher v. Commonwealth, 284 Va. 444, 451, 732 S.E.2d 22, 25 (2012). This tradition reflects our belief that the “concerns motivating the original framers in 1776 still survive in Virginia,” including their skeptical view of “the unfettered exercise of executive power.” Id.

... Scores of restoration orders have been issued for more than a century to specific felons who requested that their civil rights be restored. Never before, however, have any of the prior 71 Virginia Governors issued a sua sponte clemency order of any kind, whether to restore civil rights or grant a pardon, to an entire class of unnamed felons without regard for the nature of the crimes or any other individual circumstances relevant to the request. What is more, we are aware of no point in the history of the Commonwealth that any Governor has even asserted the power to issue such an order.

Tuesday, July 19, 2016

Obama: Disappointing From So Many Angles

Will the President be only the third to grant less than 5 percent of his clemency applications since 1900? He would join only H.W. Bush and W. Bush in that dubious category.

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Monday, July 18, 2016

OPA: Gentlemen Don't Read Their Own Mail

The OPA has officially announced - what we have known for some time now: it "does not respond" to "every item of correspondence." Apparently, this applies to FOIA requests as well.

Indeed, there was a time, not so long ago, when the types of requests we made were received, acknowledged and fulfilled in two weeks. Under the new, "revamped" system - where no one sleeps at night until applications are addressed - no one bothers to even acknowledge receipt of such requests, and you may find yourself sending your FOIA requests a birthday cardor two. Time to move this dog and pony show out of the hands of DOJ.

We have written the U.S. Pardon Attorney, Robert A. Zauzmer, re our concerns with this ugly neglect and have received no response. Maybe this announcement is the only response we will ever get. 

Obama Plods Through Last Summer in Office

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Saturday, July 16, 2016

Missouri: 8 Pardons

Gov. Nixon: Precious Little Mercy
Gov. Jay Nixon is pardoning eight persons "convicted of nonviolent crimes." Sentences included convictions for "stealing, selling cocaine and writing a bad check." Each of the recipients has "finished" associated sentences and "later found work or pursued an education." Now, the pardons restore their rights.

The Democratic governor has now granted a mere 31 pardons and 3 commutations of sentence since he entered office, way back in 2009. It is also reported that there are "about 3,000 pending requests for clemency." See story here.

Monday, July 11, 2016

Time's Up - Let Me Go! Campaign

                                   Time’s Up - Let Me Go! Campaign is mobilizing students, individuals, families, and stakeholders who have been impacted by mass incarceration.  Our objectives are three fold:

1) A meeting with President Obama by October 17, 2016  to secure an affirmative commitment for
the release of all nonviolent federal offenders and overcharged federally convicted persons by executive order before his term ends.

2) To work with Congresswoman Sheila Jackson-Lee, NC Representatives and the Congressional Black Caucus to hold a second Education Day on  Capitol Hill in September 2016 as a follow up to 3-26-2015 congressional briefing, in preparation to assemble on the Hill on October 12, 2016 Yom Kippur calling our nation to atone for its sins against guilty caged people.  Sheila Jackson-Lee and has made a commitment to this campaign.

3) To organize creative nonviolent rallies and demonstrations at strategic locations throughout the country and in Washington, D.C.

To be able to attain our vision and goals we are seeking the inkind, financial and technical assistance of likeminded houses of worship, funders, organizations and individuals with each step of the process.  Exodus will pursue diverse financial resources to sustain the operational costs of its long-term investment in justice reform.

National Goals: 

Through national creative nonviolence, we aim to support and mobilize students and other stakeholders impacted by mass incarceration around the following goals:

From ExodusFoundation.Org

Monday, July 4, 2016

The New Yorker ... Fumble !!!

At The New Yorker, David Cole has produced a piece entitled, WHY HASN’T OBAMA’S CLEMENCY INITIATIVE HELPED MORE NONVIOLENT DRUG OFFENDERS? In our mind, reading it is something akin to watching that classic clip of Jim Marshall (defensive lineman for the Minnesota Vikings of old) picking up a fumbled ball and running it all the way into the end zone ... the wrong end zone. Really impressive stuff, but mostly for all the wrong reasons.

Cole offers President Obama "credit" for having "shown more concern for criminal justice reform than any President before him" - something we are not so certain we can agree with, but are willing to greet with the benefit of the doubt, assuming someone of Cole's stature has researched the matter in some serious way. Unfortunately, Cole then notes, "Obama has approved three hundred and forty-eight commutations, the most of any President in history." Which instantly put Cole in the category of "incompetent and/or lazy" (re this topic, of course).

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So, that didn't last long. It's really a shame that people with access to such a reading audience like that of The New Yorker are capable of producing "analysis" so shoddy, so devoid of anything like careful, serious consideration.

Saturday, July 2, 2016

Illinois: 6 Pardons, 1 Commutation reports Gov. Rauner has granted 6 pardons and 1 commutation of sentence. Rauner's office says about 500 petitions remained as part of a backlog from the administration of Governor Quinn. See story here.

Wednesday, June 22, 2016

An Open Letter to the President

A group of scholars and activists are reminding the President that the term is nearing its end. In an "open letter" to the White House (here), they note the President's "clemency initiative" has "given hope to thousands of incarcerated individuals" and they also express their  hope that "further reforms" will be a feature in "future administrations."

The signatories of the letter are, however, "concerned" that the initiative "is moving too slowly." It has been "plagued by bureaucratic inefficiencies" and the U.S. Pardon Attorney "hired by the Justice Department to oversee the process has resigned in protest." In doing so, she complained that "her office was given too few resources to process the thousands of applications it received."

Some involved in submitting petitions are also concerned that petitions "received by the administration" may not "be given even cursory review."
As of this week, nearly 12,000 commutation petitions are pending before the Justice Department. While the 348 commutations you have already granted are a worthy step in the right direction, by our estimates more than 1,500 people in prison are eligible for commutation under the criteria you established.
Thus, the administration's "pace" is disconcerting, and "failing" to grant deserved commutations will "add a second injustice." The communication ends quite pointedly:
... we believe that only your personal leadership will break the bureaucratic logjam that is plaguing the program. No person in prison who meets the criteria for relief should still be behind bars when you leave office. We hope you will move quickly to ensure everyone in your administration acts with the proper diligence to make that promise a reality.

Monday, June 20, 2016

Repost (2011): Remembering Marcus Garvey

Marcus Mosiah Garvey was born on the northern coast of Jamaica. His mother, Sarah, had eleven children, but only two (Marcus and a sister) reached adulthood. His father and grandfather were master masons who built  houses but were eventually reduced to making tombstones and vaults for coffins. Marcus’ lucky break occurred when he was apprenticed to the printing offices of his godfather, Alfred E. Burrows. There, he quickly learned the trade and devoured books and newspapers. Eventually, Marcus landed a position in the government’s printing office and started his own (albeit short-lived) newspaper.

Garvey left Jamaica in 1910 and traveled to Ecuador, Venezuela, Columbia and throughout Central America. He returned home briefly in 1912, then headed for England and the Continent. While in London, he spent many hours in the visitor’s gallery in the House of Commons and took his place in Hyde Park’s notorious Speaker’s Corner.

On August 1, 1914, Garvey announced the creation of a new organization, the Universal Negro Improvement Association and African Communities League (or UNIA). The organization had several “goals.” Among them were the promotion of “the spirit of race pride and love,” assistance to “the needy,” civilization of the “backward tribes of Africa,” universities and colleges for the “education and culture” of boys and girls “of the race,” and the promotion of “Christian worship among the native tribes of Africa.” By 1916, the UNIA had attracted one hundred members, but Garvey was not pleased with what he perceived to be a lack of enthusiasm.

Monday, June 6, 2016

Obama Administration: Record on Commutations

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Obama, Commutations and Really Poor PR Apparatus

The PR folks in the Obama administration seem obsessed with production of cute aqua charts depicting comparisons of the President's record on commutations of sentence, as compared to that last four (or the last seven) presidencies combined! Woo-hoo! This is silly / dumb for a variety of reasons.

First, everyone who knows anything at all about this topic knows that recent administrations have had a woeful record for commutations of sentence. They are a God-awful point of comparison. Couldn't really do worse. Unless the point of interest is mind-numbing merciless neglect.

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Second, the previous four - or seven administrations - did not receive nearly as many applications for commutation of sentence as Obama has.

So, if the White House PR team insists on bragging / spiking the football (after Obama's first term - the most merciless term since that of John Adams), why don't those knuckleheads just come out and say he has granted more commutations of sentence than any president since FDR? What's the deal?

Saturday, June 4, 2016

PowerLine on Weldon Angelos

From the PowerLine Blog:

"I think we can make an educated guess as to the reason why Angelos spent nearly the entire Obama administration behind bars. Obama probably wanted Angelos to remain in jail so supporters of more lenient sentencing could continue to use him as their poster prisoner. Commutation would have rendered him useless for that purpose — worse than useless, actually, because it would have highlighted the fact that the system provides a cure for injustices brought about by the mandatory minimums."

This post was visited by the Executive Office of the President of the United States on June 5, 2016.

Among 2-Termers: Obama is no Monroe or Jackson ...

... or Grant, Cleveland, Wilson, FDR, Eisenhower or Clinton for that matter.

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