Saturday, December 20, 2014

Obama: A More Rigorous Comparison

It is reported that a White House official recently attempted to favorably compare the clemency record of President Obama with recent presidents, Bush, Clinton and Reagan, which is something like being proud of the fact that your team has won more Super Bowls that the Minnesota Vikings, or that you have won more presidential elections than Harold Stassen.

Below, we have disaggregated Justice Department data (which are also arranged by fiscal year) for five recent two-term presidents and arranged them to display the cumulative number pardons and commutations of sentence granted to the exact point (month) in time where President Obama's term is today.

Click on Image (Above) to Enlarge
What is obvious is that, Obama is no Eisenhower, or Reagan for that matter. Data for presidents like FDR and Woodrow Wilson would simply go off the chart. And, indeed, at this point in his presidency, Obama lags behind recent two term presidents. This is, of course, the reason why, to date, he sits at 7th on the list of All-Time-Least-Merciful-Presidents.

Thursday, December 18, 2014

Massachusetts: Christmas Miracle !

The Boston Herald reports that the State's Governor's Council has commuted a sentence and granted pardons to two other people - "marking the first clemency votes in Massachusetts in more than a decade."See story here.

Wednesday, December 17, 2014

Obama Storms Into 7th Place ...

With today's news of 12 presidential pardons and 11 commutations of sentence, President Obama has sailed past former President George H. W. Bush, and into 7th place, on the All-Time Least Merciful Presidents list.

Click on image (above) to enlarge.

Obama: 12 Pardons, 8 Commutations of Sentence

President Obama Grants Commutations and Pardons WASHINGTON, D.C. – Today President Barack Obama granted clemency to twenty individuals, consisting of eight commutations and twelve pardons. The President granted commutations of sentence to the following eight individuals:

Sidney Earl Johnson, Jr. – Mobile, AL Offense: Conspiracy to distribute and possess with intent to distribute cocaine base; possession with intent to distribute cocaine base; use of a communication facility to commit a felony (Southern District of Alabama) Sentence: Life imprisonment; 10 years’ supervised release (Apr. 13, 1994) Commutation Grant: Prison sentence commuted to expire on June 12, 2015.

Cathy Lee Jones – Portsmouth, VA Offense: Conspiracy to possess with intent to distribute and distribute heroin and cocaine base (Eastern District of Virginia) Sentence: 262 months’ imprisonment; five years’ supervised release (Apr. 29, 2003) Commutation Grant: Prison sentence commuted to expire on April 15, 2015.

The Pardon Power and Prisoner Release

[This post will develop throughout the day. Revisit and refresh your browser]

This morning: speculation that the President may have commuted the sentences of member of the so-called Cuban Five in exchange for the release of Alan Gross. The Associated Press, a seemingly easy target on such stories, suggests that the "surprise prisoner swap" has "echoes of the deal the U.S. cut earlier this year to secure the release of Army Sgt. Bowe Bergdahl [in] exchange for [five] Taliban prisoners held at the Guantanamo Bay detention center." But, with very little effort, that "echo" appears to be more of a quick end-of-one's-own-nose style observation.

The New York Times reports (here):
Gross, boarded an American government plane bound for the United States on Wednesday morning, and the United States sent back three Cuban spies who had been in an American prison since 1981. American officials said the Cuban spies were swapped for a United States intelligence agent who had been in a Cuban prison for nearly 20 years, and said Mr. Gross was not technically part of the swap but released separately on “humanitarian grounds” ... In addition, the United States will ease restrictions on remittances, travel and banking relations, and Cuba will release 53 Cuban prisoners identified as political prisoners by the United States government.
Rudolph Abel. Celebrated
on Soviet Postage Stamp
In 1962, President Kennedy commuted the lengthy prison sentence of spy Rudolf Ivonovich Abel who transmitted information back to the Soviets via smuggled microfilm or microdots or through the use of code and a powerful radio transmission. Abel's luck changed considerably on March 1, 1960. On that day, American pilot Francis Gary Powers and the fuselage of his U-2 were greeted by a Soviet missile while cruising at sixty-two thousand feet. The Soviets suddenly had an intelligence worker of their own! On February 2, Powers and Able were exchanged, crossing each other on Glienecker Bridge spanning Lake Wannsee and separating West Berlin and Potsdam.

In 1963, Kennedy commuted the sentence of a Cuban who accidentally shot and killed 9-year-old and three other Cubans convicted of conspiracy to commit sabotage. Cuba then freed American citizens (some of which were CIA agents) imprisoned imprisoned for "counterrevolutionary activities."

In 1979, President Carter commuted the sentences of four individuals who sprayed the chambers of the House of Representatives with bullets and hit five members of Congress. The so-called "Purto-Rican Nationalists" were never penitent. Indeed, they only lamented the fact that they were not also equipped with bombs! Consequently, they never applied for pardon, or commutation of sentence, or even parole!

House Shoot Up Party Arrested
Carter explained that he had acted for "humane reasons" and administration official followed with a series of denials that the commutations were part of any "package deal." But Columnists Evans and Novak quickly speculated the commutations sprung from the desire of State Department officials who wanted to "head off further diatribes against the United States" by pro-Castro officials in Havana. The New York Times, Washington Post and L.A. Times all suggested the commutations were associated with an "expectation" that American prisoners would be released in Cuba. And, a few days later, four American CIA agents were released.

In 1985, Ronald Reagan commuted the life sentence of Marion Zacharski, an intelligence agent for the Polish Security Service (SB) dubbed the “Silicon Valley Spy” by the American press. Zacharski obtained confidential information on radar systems for the F-15, B-1, Stealth bomber and tanks, and documents on the Patriot surface-to-air missile, the Phoenix air-to-air missile, and the NATO air defense system.

On June 11, U.S. Assistant Secretary of State, Richard Burt traded Zacharski and three others for twenty-five American agents and "political detainees" who had been captured by the counterintelligence agencies of Warsaw Pact countries. The Washington Post reported that the swap may have been the "biggest" of its kind. Zacharski had served just four years.

Which brings us to the so-called "Cuban Five" (see our previous posts here). Gerardo Hernández, Antonio Guerrero, Ramón Labañino, Fernando González, and René González were Cuban intelligence convicted of (among other things) conspiracy to commit espionage and murder acting as an agent of a foreign government. René González was released in 2011 and allowed to return to Cuba.  Fernando González was released in this past February, so only three of the original five remained in prison.

Supporters of the Five complain that their defense was hampered by the fact that they separately placed in solitary confinement during pretrial custody. Attorneys also argued a fair trial could not be obtained in Miami, where there is a history of hostility toward the Cuban government. In 2005, the UN Working Group on Arbitrary Detention concluded imprisonment of the Five was arbitrary and violated Article 14 of the International Convention on Civil and Political Liberties, to which the United States is a signatory. It is said that the Five have also received support from ten Nobel laureates, the Mexican Senate, the National Assembly of Panama, Mary Robinson (former President of Ireland), a former UN High Commissioner for Human Rights, UNESCO General Director,  75 members of the European Parliament.

So, the release of Taliban prisoners - with all due respect the Associated Press - is actually not a very good point of comparison. The Cuban Five were convicted and the speculation, at this point, is that their prison sentences were commuted by the President. Whatever the details may be, the pardon power was not utilized with respect to Guantanamo detainees.


Sunday, December 14, 2014

AP Writer's Epic Fail: The Wahlberg Application

Steve LeBlanc of the Associated Press has produced a piece re Mark Wahlberg's application for clemency which begins with the odd observation that the application "has focused fresh attention on excusing criminal acts." Odd, of course, because Mr. Wahlberg has served his time (45 days, back when he was 18 years old, in the 1980's). Wahlberg has not flaunted, bragged about / glorified his troubled past (as many do). He has expressed remorse repeatedly. A life-time of responsible, law-abiding behavior followed his conviction, as well as a world of charitable good works.

Mr. Wahlberg is not asking to be sprung from prison. He is not being asked to be declared "innocent." He is simply asking the state to officially recognize that which is beyond dispute - he is most certainly no longer the young punk that committed those criminal acts. To officially recognize responsibility, penitence and rehabilitation is not to "excuse" anything, in any sense of the language!


Tuesday, December 9, 2014

CIA Torture Pardons: Sure! But the Right Way!

The Hill reports that the head of the ACLU wants President Obama "to grant a pardon to people involved with the CIA’s controversial past, starting with former President George W. Bush." Why? Because:
“Pardons would make clear that crimes were committed; that the individuals who authorized and committed torture were indeed criminals; and that future architects and perpetrators of torture should beware ... Prosecutions would be preferable, but pardons may be the only viable and lasting way to close the Pandora’s box of torture once and for all.”
To which we offer a highly conditioned "Bravo!" Conditioned, because it is our sentiment that half-hearted, vindictive, show-boating / partisan use of the pardon power is no way to approach a subject this serious. Indeed, we called for a more sweeping, but more intelligent, balanced approach in this post on December of 2008:

Saturday, December 6, 2014

Massachusetts: Wahlberg's Clemency Petition and "Special Treatment"

Mark Wahlberg
Readers can view a reasonably redacted version of Mark Wahlberg's petition for pardon for crimes he committed in 1988, at the age of 16. Simply click here to open a .pdf file.

Apparently there are some that are already barking about the possibility that Wahlberg's pardon would be evidence of distasteful celebrity "special treatment."

As well they should. But there are at least two things worth nothing in response to such concerns:

1. There is no good reason in this world to deny an individual - who happens to be a celebrity - just and fair treatment in the eyes of the law. Wahlberg served his time and has, apparently, been a law abiding citizen for almost three decades. He most certainly has as much of a right to argue his case for penitence and rehabilitation as anyone else on this planet.

2. Wahlberg's pardon, should it arrive on the scene, would only appear awkwardly "special" because governors of the State of Massachusetts (both Democrat and Republican) have been so especially wretched in their neglect of their constitutional duty to participate in the criminal justice system as executives in a system of separation of powers and checks and balances. A Wahlberg pardon, in a pile of 10 would indeed look pretty ugly. In a pile of 300, not so much. In a pile of 300, regularly spread over the course of an eight-year term (like the current Governor's), even better. But, thanks to the neglect of the current Governor, the options are not very favorable, for Wahlberg or the appearance of fairness and impartiality.

Friday, December 5, 2014

Massachusetts: An Epic All-American Failure (of Government)

Wrong State. Wrong Time.
A 16-year old kid, high on marijuana and narcotics, hits a guy on the head with a stick while trying to steal alcohol from a convenience store. In an effort to avoid the police, the same kid punches another guy in the face. After conviction (as an adult), the kid is sentenced to three months in jail but released about serving just over forty days. That was all back in 1988. The kid is now a 43 year old man, married and has four children of his own. He is more than a little apologetic for his behavior ... almost three decades ago.

But, hey, a crime is a crime. A criminal is a criminal. Can't do the time, don't do the crime! We gotta be / stay "tough" on crime and not coddle criminals, let them loose in the streets. Blah. Blah. Sure. But this same kid did not continue in a life of crime. He went on to become successful in the music industry and in Hollywood. He could have easily stopped there, having taken care of himself - as many do. But he also went on to raise millions for charities, and to donate time and efforts for philanthropic causes, noting:
"I want people to remember my past so that I can serve as an example of how lives can be turned around and how people can be redeemed ... Rather than ignore or deny my troubled past, I have used the public spotlight to speak openly about the mistakes I made as a teenager so that others do not make those same mistakes."

Thursday, November 27, 2014

Barkow and Osler on Obama, the Clemency Process

In today's Washington Post, Rachel E. Barkow (New York University Law School) and Mark Osler (University of St. Thomas, Minnesota) provide a poignant editorial comment:
In the run-up to Thanksgiving, it was a sure thing that a turkey would get an efficient reprieve from President Obama. But that’s only because the turkey did not have to go through the normal pardon process. If it had, it would likely have waited more than four years and have had several layers of government bureaucrats nit-picking its case. The federal clemency process — for humans, at least — is broken, and Obama should act now to fix it for the benefit of his and future administrations. 
Barkow and Osler suggest President Obama has been once of the "worst" presidents, when it comes to pardoning, but also feel that he "seems aware that there are times when a pardon is appropriate." It is a hope that been hanging around, now, for six long years.

The authors are also concerned that "short-term" programs - like explicit calls for more clemency applications - will do "nothing to fix the problematic regular clemency process that will survive this administration." Indeed, the Obama administration already had record numbers of clemency applications before he expressed the desire to have ... even more.

Wednesday, November 26, 2014

Illinois: Quinn Pardons 126

Stupid Ceremony, Part Whatever
While news organizations from PBS to the Times and Post are writing stupid stories about the stupid practice of pardoning turkeys, the Governor of Illinois continues to take the clemency power seriously. Governor Quinn is a lame duck, but he is not engaged in a lurid last-minute dump (See Bill Clinton and Haley Barbour). Quinn has made the regular use of clemency a priority since he came into office and inherited a ridiculous application back load from Rod Blagojevich.

Now, Quinn is reported to have "acted" on 311 cases. He granted clemency in 126 and denied requests in 185. It is also reported that"some" of the cases "date back to crimes committed in the early 1970s."

In total. Quinn has acted on 3,358 clemency petitions since 2009,  and has granted clemency in 1,239 instances.

One of the persons Quinn has pardoned is Robert Taylor, who was convicted as a teenager in the rape and murder of a 14-year-old. He and four others were cleared by DNA evidence. Taylor spent nearly two decades behind bars.

Read more about his case, and others here.

Obama's Clemency Record to Date

Going into a time of year when many recent presidents have chosen to exercise the pardon power, here is the status of President Obama's use of the power to date:


President
Granted Pardon Applications
Granted Commutation Applications
All Applications
Nixon
1 in every 2
1 in every 15
1 in every 3
Ford
1 in every 3
1 in every 25
1 in every 4
Carter
1 in every 3
1 in every 36
1 in every 5
Reagan
1 in every 5
1 in every 100
1 in every 8
H.W. Bush
1 in every 10
1 in every 245
1 in every 19
Clinton
1 in every 5
1 in every 90
1 in every 16
W. Bush
1 in every 13
1 in every 779
1 in every 55
Obama
1 in every 35
1 in every 1,542
1 in every 278



Thursday, November 13, 2014

Arkansas: Mercy and Nepotism, A Tale of Two Governors

Today, the news is all about Arkansas Governor Mike Beebe, who desires that his son be pardoned for an eleven year-old, non-violent drug offense.  The offense was so minor, the punishment was three year's supervision and a fine. See story here.

Governor Beebe has been the topic of many posts at this blog, because he is one of the few governors in the United States that takes the constitutional responsibility to pardon seriously. Beebe has not followed the Haley Barbour / Deval Patrick zero-integrity model of clemency neglect. Beebe has granted pardons steadily throughout his term. no one can accuse him of being ridiculously merciless. Nor can anyone fairly characterize him as unacceptable soft on crime or of setting dangerous criminals loose. Everything about Beebe's behavior suggests integrity and responsibility. It is not very likely at all that a lurid last-minute pardon bonanza is in his future. There is no need for one. He has not neglected his duty in this sphere.


Wednesday, November 12, 2014

Massachusetts: State Neglect, Editorial Folly

At Mass.com, Ron Chimelis makes an obvious point, but, a point we have made many times over the years as well: last minute pardons have a tendency to leave a "bad taste." More specifically, Chimelis suggests the "time-honored practice of 11th-hour pardons" is "rarely [well-received] by a public that feels its leaders have completed an end-around from the democratic process." Consequently, "cries of arbitrary, one-man rule are bound to follow." They "feed the cynicism of a soured electorate."

Of course, Chimelis writes his editorial piece in response to Gov. Deval Patrick (about to leave office), who granted a mere four pardons this past week. Deval also granted the first commutation of sentence in his term and the first granted in the State in 17 years (quite an amazing tribute to the near infallibility of the State's criminal justice system and its evident failure to rehabilitate anyone, in or outside of prison).

Monday, November 10, 2014

Massachusetts: Constitutional Duty Discovered

The Boston Globe reports Governor Deval Patrick Monday has approved the request for a commutation of sentence submitted by Deanne Hamilton, convicted of "drug crimes" in 2007. The request must be now be approved by the Governor’s Council. It would be the first sentence commuted in the state in 17 years!

Patrick is also reported to have granted pardons to Jeffrey Snyder, Guy James Coraccio, Thomas K. Schoolcraft, and True See Allah.

See story here.

Thursday, November 6, 2014

Arkansas: 25 Pardons

Governor Mike Beebe has announced his intent to grant 25 pardons. It is also reported that 64 clemency requests were denied by the governor.Per usual, the 25 pardons were granted to persons that have "completed all jail time, fulfilled all parole-and-probationary requirements and paid all fines related to their sentences." Among the offenses addressed in the pardons: Possession of Methamphetamine and Drug Paraphernalia, Burglary, Grand Larceny, Theft of Property, Forgery, Possession of Methamphetamine and Drug Paraphernalia, Delivery of Marijuana, Possession of Marijuana with Intent to Deliver, Possession of Drug Paraphernalia, Theft of Property, Negligent Homicide, Possession of Marijuana, Carrying a Weapon, Battery, Possession of Cocaine with Intent to Deliver, Theft of Services, Theft by Receiving, Possession of Drug Paraphernalia, Possession of Methamphetamine and Drug Paraphernalia, Possession of Methamphetamine and Drug Paraphernalia, Manufacture of Methamphetamine, Internet Stalking of a Child, Theft by Receiving, Robbery, Possession of Firearms by Certain Persons, Possession of Methamphetamine, Delivery of Cocaine, Possession of Marijuana and Cocaine with Intent to Deliver, Possession of Methamphetamine and Drug Paraphernalia, Battery, Failure to Appear, Possession of Methamphetamine and Drug Paraphernalia, Theft, Burglary, Attempt to Obtain Drugs by Fraud,  Possession of Methamphetamine and Drug Paraphernalia, Possession of Marijuana with Intent to Deliver, Possession of Drug Paraphernalia,  Possession of Methamphetamine. See story here.

Friday, October 31, 2014

Commutations of Sentence: An Historical Perspective

Clemency Project 2014 is a "working group" composed of "lawyers and advocates including the Federal Defenders, the American Civil Liberties Union, Families Against Mandatory Minimums, the American Bar Association, and the National Association of Criminal Defense Lawyers, as well as individuals active within those organizations" launched in January after Deputy Attorney General James Cole asked the legal profession to provide pro bono assistance to federal prisoners who would likely have received a shorter sentenced if they had been sentenced today.

As of this date: 25,426 federal prisoners have submitted applications and 4,864 applications are "currently under attorney review." 

What would 4,864 commutations look like, from an historical perspective? Because the language of clemency grants has changed over time, it is only possible to go back so far in time in data exercises. Furthermore, aggregate data gathered by the Department of Justice are erroneous, because more than one president served in the same fiscal year in the early 1900s. The best data (ours) suggests that the distribution of commutations of sentence, per year of the term, for comparable presidents, looks like this:

Click on Image (Above) to Enlarge
Thus, it appears anything much over 300 hundred commutations of sentence would put President Obama in "unprecedented" territory. 5,000 plus commutations of sentence would be off the charts. Literally. That would be something for a president slow to use the pardon power and - to date - one of the least merciful presidents in the history of the United States.

Obama's Monthly Clemency Record

Click on Image (Above) to Enlarge

Merciless October. Once Again.

October is over! Thank goodness!

Want a pardon or commutation of sentence? In October, you can forget about it.

For six years, Barack Obama has not granted a single pardon or commutation of sentence in the month of October. Over eight years, George W. Bush granted zero in the month of October.

But, there is more.

Bill Clinton granted a total of seven pardons across his eight years in office during the month of October - all seven of them being granted in October of 2000. In his four years as president, George H.W. Bush granted zero pardons and commutations in the month of October.

What does it all mean? It means, across 26 years, four different presidents, both Republican and Democrat have issued a grand total of 7 pardons in the month of October. Since all of them were granted by one president, in a single October, it means 25 of the last 26 Octobers have featured zero pardons and commutations. The odds are better that the Great Pumpkin will appear ... next year!

Thursday, October 30, 2014

Missouri: Call for Clemency

The St. Louis Dispatch reports three Missouri women "suffered through years of abuse by their partners" but "went to prison for murder." However, a "newly formed coalition of lawyers, professors and lawmakers" are now calling on Gov. Jay Nixon to commute the sentence of a total of 14 women who are similarly circumstanced.

So far, Nixon has used the pardon power once. Meanwhile, 212 applications have been denied and more than 2,3000 applications are pending.

According to the coalition:
Of the 14 cases chosen, the group said nine women had no direct involvement in the violence for which they were accused, and the others acted under duress and after years of abuse. Five are over age 60; three have served more than 30 years in prison. 
The Dispatch also reports that the five Missouri governors previous to Nixon, "on both sides of the political aisle, collectively granted clemency 160 times." See post here.

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