Wednesday, December 7, 2016

The Times: Ready for Blanket Clemency

Today, the New York Times has - very generously - suggestetd that the pardon power "for most" of the Obama adminsitration, has been "treated" as "an afterthought." Indeed, the first term was the least merciful since George Washington's first. Now, the President is engaging in the largest fourth year clemency splurge in history.

The Times correctly notes "thousands of men and women" have "endured outrageously long sentences for low-level, nonviolent drug offenses as a result of the nation’s misguided drug war," but President Obama has "granted relief to only a tiny handful."
With only weeks left in office, Mr. Obama should consider a bolder approach: blanket commutations for those inmates still serving time under an old law that punished possession or sale of crack cocaine far more harshly than powder cocaine - a meaningless distinction that sent disproportionate numbers of young black and Latino men to prison for decades .... Mr. Obama could order the release of most of these people right now. If he is worried about some committing new crimes, he could prioritize those who prison officials have already determined pose the lowest risk of violence. Or Mr. Obama could commute their sentences to what they would have received under the current law. 
A "blanket commutation," says the Times, could also  include "thousands more nonviolent offenders in low-risk categories, including elderly inmates" (See our commentary here, at page 478). Indeed, were President Obama to do such a thing, he would not be the only person ridiculously slow at arriving on the scene. Many persons have called for a Gerald Ford type clemency board / amnesty / group pardon for some time now. The Times is doing some catching up as well.

We have charted the relationship between clemency grants and denials / closures many times over the years. Above, we have also included data for Gerald Ford's Clemency Board - at the gentle prompting of Professor Mark Osler. See story here

Monday, December 5, 2016

OPA FOIA Fail. Where's Holder When You Need Him?

It seems like ages ago when President Obama issued a presidential memorandum on FOIA that called on agencies to "usher in a new era of open government."  Federal agencies would have a presumption of disclosure and not simply withhold information because they could do so. Obama directed Attorney General Eric Holder to issue new FOIA guidelines reaffirming the government’s commitment to accountability and transparency. Said Holder:
"By restoring the presumption of disclosure that is at the heart of the Freedom of Information Act, we are making a critical change that will restore the public’s ability to access information in a timely manner ... The American people have the right to information about their government’s activities, and these new guidelines will ensure they are able to obtain that information under principles of openness and transparency."
Click on Image (Above) to Enlarge
The Editor of this blog confesses that he did not have all of this fanfare in mind 716 days ago, when he filed a FOIA request with the Office of the Pardon Attorney (Department of Justice), almost identical in form and content to at least a dozen others (in the administrations of both George W. Bush and Barack Obama - see figure to the right). But years passed (literally) and, eventually, the Office of the Pardon Attorney - in addition to not fulfilling FOIA requests - stopped acknowledging altogether that it was even receiving them.

So, the Editor contacted his U.S. Senator, Dick Durbin and asked for assistance. In a letter to Senator Dick Durbin, dated August 22, 2016, Executive Officer William N. Taylor II, explained that the Office of the Pardon Attorney (OPA) was just too busy for FOIA stuff. He said the OPA "has been unable to process many FOIA requests" or even so much as "respond" - at all - to "non-case related correspondence of any kind." Taylor condescendingly noted that he can "appreciate" an "inquiry" here and there, and the "desire for information." But he insisted that it was simply "impossible at this time" to respond to such requests. Mr. Taylor anticipated that, "at the end of the Administration," the Office of the Pardon Attorney will "once again begin processing pending FOIA requests."

Yes, he actually wrote that!

This past Thursday, Mr. Taylor contacted the Editor directly, via email, and announced the Office of the Pardon Attorney had actually used tax payer dollars to create a new "electronic case management system" that is such an improvement on 80s technology that information once easily accessible is now buried in the "system" and it "would be quite an expensive undertaking" if not futuristic "custom" development to fulfill FOIA requests that used to take 1-2 weeks at most to receive, acknowledge and fulfill. Moving those mountains is just not "something [Taylor] would be able to approve at this time."

That's progress! Is it no wonder that OPA has a problem obtaining funding.

You would think that would be the end of it. But, no, Taylor offered additional information that seemed like a much more plausible explanation for 716 days of nothing. He announced that, even if the OPA could muster the skill to retrieve once easily accessible information from the bowels of its new "system" ... there would still need to be "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." That is to say, as President Obama charges into the greatest last-minute clemency surge in history, the OPA is, now, very much, not operating under a presumption of disclosure.

Never thought we would say it ... but ... we sure miss Eric Holder ... George W. Bush ... and the old Barack Obama, for that matter! This awkward policy change must be part of the mysterious "revamp" we all heard about years back. We thought our right to records (including electronic records) was determined by the FOIA, not whether OPA “approves” of making info public.

Wednesday, November 30, 2016

Happening now, at the White House ...

The President. The Pardon Power and DREAMers.

Raul A. Reyes, is described, by CNN, as "an attorney and member of the USA Today board of contributors." He calls on President Obama to pardon DREAMers:
... the young people brought to this country illegally by their parents, 740,000 of whom signed up for President Barack Obama's program granting temporary deportation deferral: Deferred Action for Childhood Arrivals, or DACA. 
A White House official, however, has said:
"We note that the clemency power could not give legal status to any undocumented individual. As we have repeatedly said for years, only Congress can create legal status for undocumented individuals."
We are guessing Reyes has done about as good a job as anyone has (or can) do on this front but are less than convinced. He says, for example that the administration "misses the point," because "no one is asking for legal status for the DREAMers; what [they] are seeking is a presidential pardon for them." This play on words seems critical, and quite telling.

We have no doubt whatsoever that, where there are past violations of federal law (none of which are specifically referenced by Reyes), the president can pardon any and all of them, as sweepingly as he chooses, with or without conditions, or any public explanation, or reasoning.

What does not seem so intuitive to us is that the president can pardon DREAMers for past offenses and then immunize such persons from any and all future, related offenses. Indeed, one of the authorities that Reyes cites, Noah Messing, says, "Although the president may pardon an offender immediately after the crime is committed, he may not exempt anyone from the law in advance." Additionally, Messing notes:
Similarly, a pardon cannot spare an individual from being prosecuted for an ongoing offense. For instance, if it is a federal offense to possess a wiretapping device, a president may pardon all past violations of that law. But if the pardon recipient continues to possess the illegal device, a new “possession” crime occurs the moment after the president issues a pardon.
Exempting a clemency recipient from all future possibility of prosecution would - without a doubt - amount to conferring special legal status. There is just no better language for that. It would - in effect - be a declaration of / granting of citizenship. See full editorial here.

Tuesday, November 29, 2016

Letter to President Obama

November 29, 2016
The Honorable Barack Obama
The White House
1600 Pennsylvania Ave NW
Washington, DC 20500

Dear Mr. President:

We have strongly supported your initiative to grant clemency to incarcerated individuals, and we applaud your efforts to review as many petitions as possible before you leave office. We know how important this issue is to you, and with time running short, we know your team is working overtime to commute the sentences of as many worthy individuals as possible.

However, in the interest of justice, we hope you will consider additional steps that would expand the number of individuals eligible for relief. While your administration continues to review individual petitions, we urge you to also determine that nonviolent offenders in certain extremely low-risk categories either deserve expedited review or should be granted clemency absent an individualized review. With time running short on your time in office, these steps would be a way for you to deliver lasting change for thousands of deserving individuals and their families.

For example, your administration could make sure that you have given consideration to all of the people who did not get the benefit of retroactivity under the Fair Sentencing Act in 2010, including those who filed late or did not file for clemency. The U.S. Sentencing Commission staff could identify these individuals and DOJ could use prison placement (to a camp – the lowest level of federal incarceration – or to a low or medium facility) as a surrogate for how an individual has behaved in prison. There is bipartisan agreement that pre-Fair Sentencing Act crack sentences are unjust and have disproportionately affected people of color, but there is no mechanism for addressing that injustice outside of clemency.

Monday, November 28, 2016

Sunday, November 27, 2016

Call for Pardon, Reform of Prosecution

Today, in the pages of the Wall Street Journal, Charles Renfrew, a former U.S. District Court judge and U.S. deputy attorney general, and James H. Reynolds, a U.S. attorney, are calling on President Obama to grant a pardon to one Sholom Rubashkin. As they tell the somewhat complex tale, Mr. Rubashkin is former vice president of Agriprocessors, "a kosher food processor." In 2008, U.S. Immigration and Customs Enforcement agents "raided the company’s plant and arrested hundreds of the firm’s workers who were undocumented immigrants." A filing for bankruptcy followed.

Then the feds arrested Rubashkin, charged with him with fraud and - wanting "to extract a pound of flesh, and then some" - interfered with the company’s sale. Prosecutors "stymied the bankruptcy trustee" from making a sale "at a reasonable price" because they "warned" buyers that they "would forfeit the business if any member of the Rubashkin family maintained a connection to the firm."
The prosecutors achieved their intended goal. Nine prospective bidders walked away from the sale—including one that had offered $40 million. The business was sold for $8.5 million, a fraction of its actual worth, ensuring that the bank would not be paid back for the money it was owed. Even the bank, the victim in the case, objected in writing to the prosecutors concerning the government’s actions. 
Renfrew and Reynolds say prosecutors "unjustly concealed the bank’s objections from the defense" and sought "a staggering life-in-prison sentence," which was "later lowered to a still unacceptable quarter-century." In addition, they solicited "false testimony" stating they "did not interfere in the bankruptcy sale process." Prosecutors also "misled the court" at sentencing by concealing the "meddling."

Saturday, November 26, 2016

Obama's Commutations

All Commutations
Term Commutations
Life Sentences
Avg. Sentence Length (in months)
Avg. Distance: Sentence to Commutation (years)
Avg. Distance: Commutation to Effect (years)
Avg. Distance: Sentence to Commutation Effect (years)

Friday, November 25, 2016

Obama: Breaking Records in a Broken System

It seems more than likely that, before he leaves office, President Obama will break Woodrow Wilson's record for commutations of sentence. It is, however, more than a little amazing (if not highly informative) to compare the use of federal executive clemency in the two administrations.

By the time he left the White House, Wilson had granted 1,087 presidential pardons (as well as 226 respites and 148 remissions). Obama, however, has granted a mere 70 pardons, the lowest number granted by any president serving at least one full term since John Adams. It doesn't seem likely that Obama will pass out 1,000 plus pardons between now and the end of the term. But there appears to be little concern about it on any front. So, it is what it is.

Consequently, clemency, for Obama, has meant - for the most part - commutations of sentence, almost exclusively for those convicted of drug offenses. And these grants have - for the most part - been granted late in his second term. Indeed, the Obama administration already features the largest 4th-year clemency surge of any administration in history.

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Notice, the Wilson administration (above) features no dramatic 4th-year clemency surge. Yet Wilson holds the record for commutations of sentence (1,366) and he granted a thousand more pardons than Obama. How did that happen? It's simple. Like most presidents before him - and like most presidents throughout American history - Wilson granted pardons and/or commutations of sentence every month of his term. Clemency was not a last-minute stunt, afterthought, or mere adornment for Thanksgiving and Christmas. It was a regular, deliberative feature of separation of powers and checks and balances.

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Wilson was, of course, a moderately busy person. There was that whole World War I thing. But, when the apparatus that processes clemency applications is functioning (doing what it is supposed to be doing) that kind of thing doesn't / shouldn't matter much. Recommendations should go to the White House regularly - because processing applications is what the bureaucracy is supposed to do. That is what it is there for. And the president should be able to trust the decision making / advice of those who process applications. When all is said and done, Alexander Hamilton's "easy access" to mercy (see Federalist Papers) should be at least moderately evident. But compare Woodrow Wilson's administration with President Obama's:

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Everything one needs to know about the need for clemency reform can be seen in these two charts. The federal prison population has boomed since Wilson's day. The Obama administration has been receiving record numbers of clemency applications, for years. On top of that, thousands remain in prison who were sentenced under drug laws which have been undone. The merciless neglect of the current clemency system needs to tanked. The process needs to be removed from career prosecutors in the DOJ who are unable / unwilling to process clemency applications in a timely fashion, with an eye toward mercy. The broken system has famously lacked transparency (since 1932) and, today, it even exempts itself FOIA law.

It is time to create a permanent clemency board / commission (a device often used in the states) in the Executive Office of the President of the United States.  It is time for mercy to emerge once again as a regular feature of criminal justice. It's not just about numbers. It is about balance, fairness. It is about rehabilitation and restoration. It's about presidents using a power that was given to them ... to use ... not to abuse, or neglect.

Thursday, November 24, 2016

Turkey "Pardons." Why?

Jason Hernandez, whose sentence was commuted by President Obama in 2013:
“I could never figure out why that turkey deserves a second chance, I remember one of the most demoralizing times in prison for me and for other prisoners was Thanksgiving. And that was because every year we would see the president of the United States, the most powerful man in the world, use his executive power to pardon a turkey – an animal. And yet we, who despite being prisoners are still human, were rotting away in prison for decades.”
See story here.

Wednesday, November 23, 2016

Obama's Legacy: Institutional Change v. An "Example"

The New York Times' Matt Apuzzo is struggling mightily with President Obama's legacy re federal executive clemency. He notes Obama "is on pace to be the first president in a half century to leave office with a federal prison population that is smaller than when he was sworn in" and attributes this - in part - to the President's "aggressive use of presidential commutations," a somewhat problematic proposition from a variety of mathematical angles.

Apuzzo describes Obama's "push" for clemency, how he "has used his clemency power to free people jailed for drug crimes." Obama has written "personal letters" telling inmates "he believed they could turn their lives around." Neil Eggleston says the President "is committed to using his clemency power in ways not seen in the modern era” because our nation "is a nation of second chances.”

But Donald J. Trump’s AG nominee, Sen. Jeff Sessions, is "looming" over it all. Sessions "strongly opposed Mr. Obama’s liberal approach to criminal justice ... favors vigorous enforcement of drug laws and the use of mandatory minimum sentences." Sessions (a former federal prosecutor) also credits "strict enforcement for today’s low crime rates."

As Apuzzo sees it, "some of Mr. Obama’s criminal justice legacy is easily undone." As an example, he notes DOJ "policies," which "can be torn up." But the elephant in the piece is very clearly federal executive clemency - the pardon power. What is Obama's legacy on that front? What has he done that can be undone?

FLASH: Shocking "Inside Scoop" on Turkey Pardons !

They are really, really, truly dumb.

Now, move on to more important things:

Although previous presidents were truly neglectful (some proudly so), the President's recent commutations are a drop in the bucket. The clemency process needs to be changed, radically, now.

Clemency needs to be regularized - as it was for most of American history - not a last-minute rush, or afterthought.

With some irony, while the media spit out goo all over this "tradition," no one will note that President Obama has granted fewer pardons than any president since John Adams. Happy Thanksgiving !

And ... the President should pardon the great American writer, O. Henry!

Tuesday, November 22, 2016

Obama's 1,000th Commutation: Hold the Fireworks.

Click on Image (Above) to Enlarge

Obama Could (Should) Go EPIC.

Pardon O. Henry!

Add Substance, Meaning to Turkey Pardon "Tradition"

P.S. Ruckman, Jr. and George Lardner, Jr. 

Tomorrow, President Obama will participate in one of the most highly visible traditions of the presidency – the ceremonial pardon of White House turkeys. He says he is “puzzled” the tradition endures. Indeed. What offense do the turkeys commit?

Early in his administration, critics observed Obama had pardoned more turkeys than human beings. Animal rights activists were never fond of the fowl exercise. PETA’a web page details the “grim fate” of White House turkeys. One year, the President’s daughters were blasted for their supposed inappropriate attire and demeanor. Last year, Huffington Post speculated Obama “hates every minute” of these affairs and usually looks like he wants to be “anywhere else.”

This year, he could turn it all around.

79 Commutations of Sentence

President Obama has passed 1,000 mark. Second only to Wilson in total number of commutations of sentence.

Developing ...

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Monday, November 21, 2016

Osler: Obama Instructs Obama. It Can Be Done.

At the Minneapolis Star Tribune, Mark Osler has a fine piece which features President Obama in a meeting with himself, or himself 20 years from now. It is truly a great read. Osler makes the point that, in the second term, the President has done some extraordinary things with the pardon power - at least in terms of comparison with his recent predecessors. But that isn't really saying much. In a key passage, the dialogue goes like this:

Obama:  .... How can I do any more?

Visitor:  ... You group them and cut the sentences of the lifers for nonviolent narcotics offenses, or the ones who didn’t get retroactive benefit when the crack law changed in 2010, or the long-termers over 60, or all of those groups. You have the Sentencing Commission send you the names; they’re good with data. If you wanted, you could use clemency to say that no nonviolent drug defendant should do more than 20 years ...

Friday, November 18, 2016

Obama, Mistaken on Point re Pardon Power

In a recent interview, the President suggested that he cannot grant a pardon to someone unless they go "before a court" and "presented themselves." This is not correct. The President can pardon anyone, for a federal offense, at any time, before, during or after conviction. This would also include fugitives from the law. We guess that the President may have meant to say, "In Snowden's case, I am not willing to consider a pardon unless he turns himself in."

SPIEGEL: Are you going to pardon Edward Snowden?

OBAMA: I can't pardon somebody who hasn't gone before a court and presented themselves, so that's not something that I would comment on at this point. I think that Mr. Snowden raised some legitimate concerns. How he did it was something that did not follow the procedures and practices of our intelligence community. If everybody took the approach that I make my own decisions about these issues, then it would be very hard to have an organized government or any kind of national security system. At the point at which Mr. Snowden wants to present himself before the legal authorities and make his arguments or have his lawyers make his arguments, then I think those issues come into play. Until that time, what I've tried to suggest -- both to the American people, but also to the world -- is that we do have to balance this issue of privacy and security.

Trump Pardons Hillary. Hilarity Ensues.

It's February 14th, 2017. The air is filled with love. Reporters are called to the White House for a major announcement. They are seated, waiting, and President Trump enters. Looking very presidential. He steps to the podium and says:  

TRUMP: As you are aware, we have just gone through a hard-fought, tough, and yes, sometimes nasty, presidential campaign (reporters force tepid smiles, grins, not being particularly amused). My opponent, Hillary Clinton was tough. Trust me, on that (sniff). She is a tough person. She doesn't quit. Believe me. I admire that.

You may also recall that, during the campaign, the FBI was investigating thousands and thousands of e-mails Secretary Clinton sent and received on a private server. There were concerns that, in the process, rules, regulations, standard procedures and, yes (sniff), laws, may have been violated. Indeed, the FBI Director concluded that she was "extremely careless" (sniff). Extremely. Although the Director concluded 110 e-mails contained classified information at the time they were sent or received by Secretary Clinton, he also concluded there was no evidence that she intentionally transmitted or willfully mishandled classified information.

Some believe Director Comey was wrong to grant immunity to critical players in the investigation, not to call a grand jury and not to recommend the pressing of charges. I, myself, expressed some of the very same criticisms, as a candidate. But now (sniff), I am President of this great country, that I love, believe me. Really. And I am now anxious to move forward, and make America great again. Mrs. Clinton has served this country as First Lady, a Senator and as Secretary of State (sniff). She is a good person. Really, I mean that. Good people. I think it is time that we, as a nation, move forward, and put this behind us. Recall how Gerald Ford pardoned that crook Richard Nixon? So the nation could move forward? Even though it was not a particularly popular decision at the time?

Thursday, November 17, 2016

Chicago Tribune: Consistency. Care. Routinized Pardoning.

In previous posts, we have wondered if President Obama's end of term clemency splurge - while long anticipated, and pleasing to no small degree - might not actually do long-term damage to the pardon power. Today, the Editorial Board of the Chicago Tribune ponders similar complexities. It notes, the President's "rush of late commutations suggests the [clemency] process now operates in a less orderly, deliberate way, which invites mistakes."  In addition, the Editorial Board says:
Presidential clemency is meant to be an instrument of wisdom and compassion ... If we can make our own plea as [President Obama] weighs acts of clemency during his final days in office: A power this consequential should be employed in a way that is easier for the public to understand and accept. 
Why this conclusion? The Tribune recognizes that the President has "long been critical of lengthy sentences imposed on drug offenders" and that he "has focused his clemency powers on reducing sentences for federal inmates who meet certain conditions." Indeed, to date, Obama has very generously commuted the sentence of 944 felons - more than 300 with life sentences.

Papa: Life After Clemency

This Side of Freedom: Life After Clemency is a riveting, compelling tale about the life of activist, writer and artist Anthony Papa. He tells firsthand of his experience of returning home after serving 12 years of a 15-to-life sentence for a non-violent drug crime sentenced under the mandatory provisions of the Rockefeller Drug Laws of New York State. In 1997 he was granted executive clemency by New York Governor George Pataki.

Papa says that the freedom he fought so hard to get, smacked him swiftly in the face, overpowering him. He struggles with his freedom while fighting to free those he left behind. Papa goes through heart-wrenching trials and tribulations as he seeks to end the war on drugs. Along the way he meets an array of individuals from famous movie stars to politicians and the very rich, enlisting their help in doing away with mass incarceration and draconian sentencing laws that have destroyed America's criminal justice system.

This Side of Freedom: Life After Clemency can be purchased here.

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