Wednesday, November 29, 2017

Zeidman on Clemency

At the New York Daily News, (story here) Steve Zeidman says that is it "high time to think about the thousands of people behind bars who truly merit" clemency.
... if we want truly to confront the problem of overincarceration, governors need to use their power much more broadly. And not just to free drug offenders, but to release people incarcerated for violent crimes as well. 
Zeidman says "the compelling need for clemency today" is the "direct result of the Draconian sentences routinely meted out in courtrooms across the country over the past several decades."
In New York, rather than a 20-year maximum, there are almost 9,000 people serving sentences with a 20-year minimum, and almost 10,000 people serving sentences with a maximum of life. Nearly 3,000 people have already been locked up for at least 20 years, and more than 2,000 behind bars are older than 60. Contrary to prevailing rhetoric that links mass incarceration to the war on drugs, the fact is the majority of people serving these long sentences are not in prison for drug offenses. Only about 5% of the 52,000 people in New York’s labyrinth of 54 state prisons are there for drug possession, and merely an additional 6% were convicted of selling drugs. 
Zeidman also suggests that "focusing on so-called low-level, nonviolent drug offenders will barely make a dent in the prison population." Gov. Cuomo took what he called “a critical step toward a more just, more fair and more compassionate New York” by creating the first pro bono program for people seeking clemency. He emphasized that his goal was to make clemency “a more accessible and tangible reality.” Zeidman says, "That objective has yet to be realized. Only a small handful of people have received clemency."

In a speech at the annual meeting of the American Bar Association, Supreme Court Justice Anthony Kennedy said:
“The pardon process, of late, seems to have been drained of its moral force. A people confident in its laws and institutions should not be ashamed of mercy. . . . I hope more lawyers involved in the pardon process will say to chief executives, ‘Mr. President,’ or ‘Your Excellency, the Governor, this young man has not served his full sentence, but he has served long enough. Give him what only you can give him. Give him another chance. Give him a priceless gift. Give him liberty.’ ”

Monday, November 13, 2017

Pardon for Murder He Did Not Commit

It is reported that the Nevada Board of Pardons "has voted to clear a man who spent more than two decades in prison for a murder he did not commit."  Gov. Brian Sandoval and seven state Supreme Court justices "voted to issue an unconditional pardon to 54-year-old Fred Steese."

Attorney General Adam Laxalt, however, cast the sole no vote, because of a letter from a District Attorney's office opposing the pardon.
"Steese was convicted of the 1992 killing of a Las Vegas performer but always maintained his innocence. A judge declared him factually innocent in 2012, but the district attorney refiled charges. In order to get out of prison, he pleaded guilty to second-degree murder while maintaining his innocence."
See story here.

Friday, November 3, 2017

Clemency a Conflict?

At The Hill, Kimberly Wehle writes:
[A President] could not obliterate a new criminal law by officially pardoning anyone and everyone who might violate it in the future. That would conflict with Congress’s power to make laws.
We are not so sure. Thomas Jefferson thought the Alien Sedition Acts were unconstitutional, and, once elected, pardoned the only two people remaining in prison because of them. Woodrow Wilson vetoed the Volstead Act and his veto was overridden. Wilson then set records for pardons for persons convicted of drug and alcohol laws.

Clemency a conflict? Sure. Separation of powers and checks and balances.

Precedent for Self Pardon

The Federalist has an excellent article on Isaac I. Stevens, a territorial governor who pardoned himself. Great reading here !

Proposal to Limit the Pardon Power

Democrat Steve Cohen (TN) has introduced a constitutional amendment this week that would " kep presidents from "pardoning themselves, their families, members of their administration or people who worked on their campaign." Rep. Al Green (D-Texas) has also introduced an amendment to "prevent the president from pardoning himself." See story here.

Impeachable Offense, But ...

NPR's Nina Totenberg notes President Trumpo's "rage" has "provoked speculation that he might seek to abort the DOJ investigation by firing Mueller or pardoning Manafort and others as a way of choking off the probe."
Asked Monday if the president would rule out, once and for all, firing Mueller, White House press secretary Sarah Huckabee Sanders said during the daily press briefing that "there is no intention or plan to make any changes in regard to the special counsel."As for potential pardons that would stymie Mueller's investigation, during a photo op in the Oval Office, a reporter asked if the president would pardon Manafort. Trump was silent, said "Thank you," ignoring the question entirely and putting an end to the press questions.
Totenberg says President Trump "could pardon any of the individuals under scrutiny in the Mueller Russia probe" and "seriously impede Mueller's inquiry." But "there is nothing anyone could do to invalidate such pardons."

Cass Sunstein, however, argues that abuse of the pardon power might be an impeachable offense. Indeed, it was one of the complaints levied against Andrew Johnson back in the day. But Prof. Brian Kalt observes, "It's not a coincidence that no president has ever been impeached by a House [of Representatives] controlled by his [own] party." See story here.

Thursday, November 2, 2017

Lowry: No Pardons. No Firing.

At National Review, Rich Lowry argues President Trump should "do what’s hardest for him — nothing ... his instinct to lash out is his worst enemy" something that puts him "at more peril" than "any of the facts that have been uncovered by Mueller, congressional investigators or the press to this point."

Lowry argues firing Muleller would "endanger" Trump's presidency even though "the proverbial net, as far as we know, isn’t closing in." There is "no suggestion" in  Manafort's indictment of "any" of his "alleged wrongdoing, which dates back to 2006, had anything to do with the campaign." His failure to register as a foreign lobbyist "for his work for Ukrainian political players, a fairly common offense among lobbyists" is "usually remedied by an amended filing."

The accusation of laundering millions of dollars (for which "we have no evidence of yet") need not "directly affect Trump."

As for George Papadopoulos, Lowry notes that his plea for lying to the FBI "actually involves his work for the campaign."
He misled investigators about the timing and nature of his contacts with Russians who wanted to set up a Vladimir Putin-Donald Trump meeting and spoke of dirt on Hillary Clinton. This is suggestive, but Papadopoulos was a bit player, and it’s not clear the talk went anywhere. 
Finally, Lowry argues "the option of pre-emptively pardoning everyone targeted by Mueller also is foolhardy." It would "associate the president with the lobbyist’s alleged malfeasance when the point should be to establish distance, and would convince everyone that Trump has something explosive to hide." See full editorial here

Pardon for former Apprentice Star?

At Politico, David Bernstein argues that former Illinois Governor Rod Blagojevich "was sentenced as if he had actually pocketed $1.625 million in cash bribes" and "most of this amount comes from the $1.5 million in campaign contributions that he was offered by backers of then-Representative Jesse Jackson Jr. if Blagojevich named Jackson to Obama’s old Senate seat." And, finally, "No such contribution was ever made."

Bernstein notes the U.S. Probation Department believed Blago's sentence should not have been based on the "unsolicited offer" by Jackson’s associates because there was “not enough evidence to support that this is the amount the defendant could obtain or thought he could obtain.” But the judge rejected the probation department’s recommendation.
... five and a half years into his 14-year sentence, after two trials and multiple appeals, the former Illinois governor is now down to his last legal avenue: a petition for a writ of certiorari, pleading for a review by the Supreme Court. His lawyers are planning to file the petition on November 2. The odds that the court will hear a case are, as always, long, and Blagojevich has already been denied once before. A denial this time around would in all likelihood close his nine-year legal saga. His only remaining hope—a Hail Mary, at best—would be for Donald Trump to issue a presidential pardon or clemency. If not, Blagojevich will have to serve out his sentence at a low-security prison camp outside Denver until he is eligible for release in 2024.
Blagojevich has maintained "adamantly, loudly and to little avail—that he was wrongfully accused," but legal experts tell Bernstein that his case "is no laughing matter" - he "got a raw deal in the courts" that "could serve as a dangerous legal precedent." Why? Because the "expansive standard used to prosecute and convict him" might "make criminals out of virtually every politician in America for the unseemly, but routine, business of political deal-making."

In addition, "a number of recent Supreme Court decisions concerning political corruption, particularly under Chief Justice John Roberts, have given Blagojevich’s legal team cause for hope." 
The question is not whether Blagojevich sought the quid, which is not in itself illegal, but whether he attempted to, or did, deliver the quo, which is illegal if delivered on condition of the quid. Bernstein recalls:
Two juries struggled to sift the smoke from the fire and answer this question. In Blagojevich’s first trial, jurors deliberated for 14 days—an unusually long time—and wound up deadlocked on all but one of 24 counts against Blagojevich: that he lied to the FBI. District Judge James B. Zagel declared a mistrial on the 23 counts on which the jury could not reach a verdict. Eventually, Jury No. 2—after deliberating 10 days—agreed about Blagojevich’s guilt, convicting him of 17 of 20 corruption counts.  ... But in July 2015, a three-judge panel of U.S. Court of Appeals for the Seventh Circuit threw out five of the 18 counts against him. All five of the vacated counts involved Blagojevich’s attempts to sell Obama’s old Senate seat for campaign money or a job—the very same shenanigans that Fitzgerald decried as the “most cynical” and “most appalling” part of Blagojevich’s “political corruption crime spree” ... The judges returned the case back to the lower court for resentencing. Zagel, however, was not persuaded by Blagojevich’s arguments and refused to reduce his sentence, reinstating it in full. 
As for the Supreme Court, it "has redrawn the line between illegal bribery and the ordinary business of politics" in "a series of cases decided between 2010 and 2016. Federal anti-corruption laws declared to be "too broad, and in turn narrowed the legal definition of corruption, making it much harder for the government to win such convictions, let alone serve indictments like the one against Blagojevich in the first place." And, there remains "deep disagreement among the federal circuit courts about the correct legal standard for determining where to draw the line between illegal and innocuous behavior."

See full story here.

Wednesday, November 1, 2017

Florida and Voting Rights

At Huffington Post,  Thomas Kennedy notes that the state of Florida "is among the strictest of states" when it comes to "voter suppression, effectively imposing lifelong disenfranchisement to over 1.5 million people who were formerly incarcerated." He also notes that Governor Rick Scott "has exacerbated the problem" by "rolling back the policy of his predecessor. Scot, according to Kennedy, "holds a total of four clemency hearings a year, fielding requests by less than a 100 people each time." The result has been "a 20,000 person backlog that keeps growing and shows no signs of stopping." See full story here.

Chase on Trump, Pardons.

At Newsweek, Michael Chase notes:
Let me make that more concrete. Under my current view (which I think reflects the rough consensus among constitutional scholars), Trump could issue full pardons today for Manafort, Gates, and Papadopoulos. Presumably the fear of political backlash currently deters him from doing so. 
But if that is all that is stopping the president, the brake is contingent. At some point the fear of what the indictees will say to incriminate Trump could become so great that it would outweigh the risk of political repercussions. 
At that point, we could expect to see a game of whack-a-mole between Mueller and Trump. Mueller obtains a grand jury indictment against Manafort; Trump pardons Manafort. Mueller obtains a grand jury indictment against Mike Flynn; Trump pardons Flynn. Lather, rinse, repeat.
See full editorial here.

Wednesday, September 27, 2017

Contempt of Courts ... and Congress

Rep John Conyers has filed a brief joined "by more than two dozen Democratic members including Reps. Jerrold Nadler of New York, Zoe Lofgren of California and Sheila Jackson Lee of Texas" qhich argues that Donald Trump's pardon of Sheriff Arpaio for contempt of court has "threatened" a fundamental "judicial power." And, if allowed to stand, "could have severe implications for Congress’s ability to compel compliance with its own investigations and orders.” See story here.

Two words: Francis Townsend.

Wednesday, September 13, 2017

Kobil on Trump's First Pardon

Daniel T. Kobil
At the Columbus Dispatch, Prof. Daniel T. Kobil (Capital University Law School) says Donald Trump's first pardon (Sheriff Joe Arpaio) "set an incredibly low bar for the exercise of his clemency authority." In addition, many see it as "a dry run for politically motivated, pre-emptive pardons of illegal behavior by those in Trump’s circle who are currently being investigated by Robert Mueller in his probe of illegal collusion with Russia."

But Kobil argues "acceptance" of a pardon "operates as an admission" of guilt. So, Trump and Arpaio "cannot have it both ways."
Arpaio cannot be both innocent and excused for his crimes against the United States. According to the Supreme Court, acceptance of a presidential pardon constitutes a confession of guilt. That is why those who are wrongly convicted sometimes refuse to accept a pardon: their response understandably is that “I cannot be forgiven for something I did not do.” Indeed, the consequences of accepting a pardon may be an “even greater disgrace than [that] which it purports to relieve.” Burdick v. U.S. 236 U.S. 79 (1915). 
Kobil also sees "a slim possibility" that Arpaio’s pardon "could be invalidated by the courts" even though the Supreme Court "has construed the pardon power broadly." That is because the Court has also said that it cannot be used in a manner that would “otherwise offend the Constitution” or be “constitutionally objectionable.” See full editorial here.

Tuesday, September 12, 2017

DOJ Says "Enough" Re Arpaio

It is reported that the Justice Department "agrees a judge should erase her finding that the former Arizona sheriff Joe Arpaio violated a court order and was guilty of criminal contempt." This is because President Trump's pardon of Arpaio "guaranteed he would face no consequences from the verdict against him." As the DOJ put it, "the government agrees that the Court should vacate all orders and dismiss the case as moot."

Says the Washington Post:
A pardon does not instantly undo a guilty finding, and in most cases, the court record is left undisturbed. That is because the vast majority of presidential pardons are issued long after people are convicted and sentenced, and pardons generally serve to forgive people, rather than to erase what they have done. 
See story here.

Examples of Executive Clemency for Contempt of Court

John Q. Adams
6/9/1827
Jeremiah Ten Eyck
John Tyler
5/24/1841
John McCalla
John Tyler
1/27/1842
Richard Dixon
Zachary Taylor
12/28/1849
John Smith
James Buchanan
7/22/1858
George S. Selden
Ulysses Grant
10/21/1872
Alexander Hamer
Ulysses Grant
9/27/1875
A.H. Peck
Ulysses Grant
12/9/1876
Harry McFarland
Rutherford Hayes
9/27/1877
John L. Mason
Benjamin Harrison
2/1/1890
Alejandro Savin
Grover Cleveland
12/7/1896
Dong Sun
Grover Cleveland
2/1/1897
Wong Gim
Grover Cleveland
2/18/1897
Thomas Prindevile
William McKinley
5/24/1901
Alexander McKenzie
Theodore Roosevelt
3/25/1902
William H. Weber
Theodore Roosevelt
3/25/1902
John Haddow
Theodore Roosevelt
3/25/1902
David Clarkson
Theodore Roosevelt
3/25/1902
Thomas Braley
Theodore Roosevelt
3/25/1902
Cass Braley
Theodore Roosevelt
5/13/1902
Claude A.S. Frost
Theodore Roosevelt
2/4/1903
James Green
Theodore Roosevelt
3/31/1903
Edward Grant
W.H. Taft
4/26/1909
Sherman S. Smith
W.H. Taft
6/10/1910
Louis K. Pratt
W.H. Taft
6/10/1910
R.E. Leber
Woodrow Wilson
7/25/1918
Donald Swepston
Woodrow Wilson
6/21/1920
O.E. Jennings
Warren Harding
8/9/1921
William J. Creekmore
Warren Harding
3/28/1923
Oscar Danielson
Warren Harding
3/28/1923
Roy Adams
Warren Harding
3/28/1923
Emil Lundgren
Warren Harding
6/19/1922
Asa W. Cambell
Calvin Coolidge
12/3/1921
Charles L. Craig
Calvin Coolidge
12/15/1923
Joseph Heintz
Calvin Coolidge
12/15/1923
Oscar Weinbrod
Calvin Coolidge
12/15/1923
Max Smithberger
Calvin Coolidge
12/20/1923
Phillip Grossman
Calvin Coolidge
12/22/1928
Rosario Lombardo
Calvin Coolidge
1/22/1929
Harry Maynard
FDR
2/13/1940
Hammond
FDR
1/22/1944
Richardson
Truman
12/16/1952
Holland
Truman
12/16/1952
Richardson
Kennedy
6/19/1962
Kiesov

Amicus Brief: Do Not Recognize Trump's Pardon!

Today, Protect Democracy has filed an amicus curiae brief in federal court arguing President trump's pardon of Joe Arpaio last month "is unconstitutional and should not be given effect by the Court." Protect Democracy was represented in its filing by its own attorneys, as well as Jean-Jacques (“J”) Cabou, Shane R. Swindle and Katherine E. May of Perkins Coie LLP in Arizona, and Noah Messing and Phil Spector of Messing & Spector LLP.

Key points from the brief:

“The President may no more use the pardon power to trample the rest of the Constitution and the Bill of Rights, than he may use the Commander-in-Chief power to call down airstrikes on political opponents. The pardon power does not trump the rest of the Constitution. The Arpaio Pardon seeks to do just that. This Court should declare the Arpaio Pardon unconstitutional, decline to give that pardon its imprimatur, and deny Defendant’s Vacatur Motion.”

“Affirming the constitutionality of the Arpaio Pardon, and granting Defendant’s Vacatur Motion, would mark a dangerous and unconstitutional expansion of the Executive Branch’s power.”

“[T]he Arpaio Pardon violates the Due Process Clause of the Fifth Amendment. While the President’s pardon power is broad, it is not unbounded. Like other prerogatives assigned to the Executive Branch, the pardon power cannot be read to negate other provisions of the Constitution. The President could not, for instance, declare pardons for all white people and only white people who had been or might be convicted of federal gun offenses. That would fail to read the pardon power in harmony with the Equal Protection Clause. Similarly, here, the pardon power in Article II must be read in harmony with the later-enacted Due Process Clause.”

“[T]he Due Process Clause in the Fourteenth Amendment protects certain constitutional rights from interference by state officials. The pardon power cannot breach the fundamental constitutional protection of due process. The Arpaio Pardon would do that and so is invalid.” See more on this story here.

Thursday, September 7, 2017

Drain DOJ / OPA Swamp Now !

Regular readers of the blog are aware that 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 (see posts here).

Theses requests for information (two sets of dates related to clemency applications) were routinely send, 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 waited, quite literally, for years - for any indication whatsoever that his Office was of the opinion that FOIA law applies to its work. The previous pardon attorney (Robert Zauzmer) simply recommended that we simply wait until the Obama administration was over.

Today, Taylor has written the Editor:
This correspondence is in response to your Freedom of Information Act (FOIA) request dated and received in the Office of the Pardon Attorney (OPA) on December 17, 2014.  We have shared quite a bit of correspondence on this subject over the past year, so I apologize for the delay in completing this request.  Pursuant to the Freedom of Information Act, 5 U.S.C. § 552 et seq., you requested case jackets for the December 17, 2014 grantees. After carefully considering your request, I have determined that no pages are being withheld in full and the attached 6 pages are appropriate for release with redactions, pursuant to 5 U.S.C. § 552(b)(5), which concerns certain inter- and intra-agency communications protected by the deliberative process privilege and the attorney work-product privilege.  No fee has been charged for the search, review or production of these documents.
Previously, Taylor said the dates were lost in a new electronic filing system (yes, he really said that). NOW the two dates that the Editor was given for years, across two administrations are "certain inter- and intra-agency communications protected by the deliberative process privilege and the attorney work-product privilege." Shame on everyone in DOJ who passed out this information, for years, before Taylor came along. How incompetent of all of them!

Bush administration / Obama administration / Pre William N. Traylor II FOIA grant:


William N. Traylor II FOIA grant (after years of considering the matter):




Monday, August 28, 2017

NR on The Pardon

National Review takes the position that President Trump's first pardon was "for the benefit of a political crony" who "repeatedly flouted court orders and detained aliens on suspicion of being in the United States illegally" and the pardon "effectively endorses Arpaio’s misconduct." Further, says NR, if Trump had simply waited, "it is possible that there’d have been no need to consider a pardon."
Instead, Trump’s pardon is so premature that Arpaio was not even eligible under Justice Department guidelines to petition for a pardon. Furthermore, if Arpaio was wrongfully convicted, as his lawyers and allies maintain, the judicial system has been denied the opportunity to reverse the result. While the pardon formally forgives the sheriff’s lawlessness, the legal proceeding to this point will remain (another) mark against him. 
See full editorial here.

Saturday, August 26, 2017

Kobil: On a Pardon for Joseph Arpaio

Prof. Dan Kobil
At the American Constitution Society Blog, Daniel Kobil notes that Donald Trump's pardon of Joseph Arpaio is certainly "within his enumerated powers as president," but it also "could undermine our legal system and the Constitution."

At the time Kobil was writing, the pardon had not yet been announced, and Arpaio was facing a possible 6-month prison sentence. So, he had not yet been sentenced or even applied for clemency through the DOJ (which requires - with exceptions - pardon applicants to wait five years after completing their sentence).

Kobil then notes that it is "highly unusual" for a president to "ignore completely the Justice Department process for processing pardons," but "there is nothing in the Constitution that prevents him from disregarding the established process and issuing pardons at any time." Why shouldn't Trump do such a thing?

First, Kobil argues that it was "unlikely" that a court would have ever sentenced the the 85-year-old Arpaio to a term in prison. Second, "such a pardon would undermine respect for the rule of law and could promote future violations of the Constitution." Trump would be "sending a clear message that government officers can disregard the Constitution, so long as they do so in a manner that would please Trump and his nativist supporters." Third, there remains a slight possibility that the pardon could be challenged in court. The Supreme Court has noted, for example, that pardons cannot be used in a manner that would “otherwise offend the Constitution” or be “constitutionally objectionable.” Says Kobil:
..  surely it would violate the Constitution for the president to impose blatantly unconstitutional conditions on a pardon or use the pardon power in racially discriminatory fashion. See Kobil, The Quality of Mercy Strained: Wresting the Pardoning Power from the King, 69 TEX. L. REV. 569, 616-120 (1991). 
Another professor has argued that such a pardon might also be overturned on Due Process grounds.  See full piece here.

Friday, August 25, 2017

Trump's First Pardon Stunt.

President Donald Trump has granted the first presidential pardon of his term, almost 400 days earlier than President Obama's first. Still the pardon of former Arizona lawman / political ally Joe Arpaio is hardly a signal that Trump takes the pardon power seriously, or that we can expect clemency applications to start escaping the death grip of the Office of the Pardon Attorney in the Department of Justice.

Hundreds of persons have applied for clemency and have waited for years, some for 10 or 15. Imagine how demoralized they must feel now. Now, more gasoline will be poured on the classic misconception that clemency is only for famous persons, rich people, political supporters, insiders, the "connected." It is, of course, a false narrative, but a powerful one. One that defames a wonderful check and balance and, in some instances, discourages politicians from doing anything. They err on the side of caution (they think) by showing mercy to no one, or to as few as possible.

The Founding Fathers would be so ashamed.

Monday, August 21, 2017

Daily Beast on Possible Arpaio Pardon

The Daily Beast is writing on the possible first pardon by President Trump, who has yet to appoint a new U.S. Pardon Attorney. The Editor of this blog notes, "There are literally hundreds of no-name people we’ve never heard of, who will never been in the newspaper, who are not cause célèbres, who have had applications waiting and waiting and waiting. They’re sick to their stomach right now reading about [the possibility that Sheriff Joe] Arpaio getting a potential pardon, that’s breaking their heart.”

Sam Morison, for U.S. pardon attorney office adviser adds: “He hasn’t even been sentenced yet, he’s just been convicted. And he’s not contrite, he doesn’t accept responsibility—quite the opposite. So in that sense, it’s very unusual. And the only reason he’s getting any traction at all is that he’s a well-known political figure. So it is special pleading of the worst kind.”

Finally, the piece notes, "one former Justice Department official" says, "People would be so grateful that he’s rescued this important Constitutional power from the clutches of the DOJ.” It is so true. But, institutional change is what is really needed. The dysfunctional Office of the Pardon Attorney needs to be tanked and the clemency process needs to be moved closer to the executive branch. See Daily Beast story here.

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