Sunday, September 18, 2016

Pennsylvania Superhero: A Pardoned Attorney

Wow! HERE is a story:
In Sept. 21, 1994, Duquesne University junior Casey Mullen scaled the stairs to the school's law school library. The 19-year-old [man's] backpack held nine 1-ounce plastic bags filled with powdered cocaine — a delivery he was making to a woman he barely knew, part of his daily effort to sell enough narcotics to feed his own addiction. She was an undercover narcotics detective. It was his first and only arrest. [Less] than 18 months later, Allegheny County Judge Raymond Novak slammed Mullen with a mandatory minimum sentence: three to 10 years at the former State Correctional Institution Waynesburg. Mullen did his minimum three years and then embarked on a very different quest back up the 17 steps of the law school library.
But there's more! Mullen, now 41 years old, then went on to become a "stellar student and, later, an increasingly prominent criminal defense attorney." Now, he is making his past public because:
1) Criminals, especially those who are struggling with addiction, must see that it's possible to become a respected professional; 2) society must see the need to start taking more chances to reintegrate convicted felons; 3) policymakers should rethink what a prison can be — less punishment, more rehabilitation, job training and programs designed to ensure that every inmate leaves jail with “the belief that they can move beyond this” and contribute again to society. 
Mullen says the "two scariest days" of his life were when he went in jail, and when he left. He lived in a so-called half-way house for 10 months, worked at a confectioner and counselled high school students. While still under parole, he worked as a millwright and the university readmitted him to major in sociology. But applying to law schools was a different matter. Although his sentencing judge supported his application, law school admissions boards were more than a little hesitant. At Duquesne Law, Mullen "starred on the school's nationally renowned Trial Competition Team" and ws "named the top student by the faculty."

In 2008, Mullen appeared before the Pennsylvania Board of Pardons, on behalf of himself! There followed a unanimous vote to recommend to clemency. Gov. Ed Rendell granted the pardon in 2009, so Mullen could take the bar exam in 2011. Read more about this amazing story and Mullen's effort to help those where were formerly incarcerated here.

Thursday, September 15, 2016

Top Returns for Google Search "Obama should pardon ..."

10. Brian J. Womack
9. Hundreds more women
8. Rev. Sun Myung Moon
7. The Leavenworth Ten
6. Don Siegelman
5. Hillary Clinton
4. Leonard Peltier
3. Chelsea Manning
2. David Petraeus
1. Edward Snowden

Unprecedented Commutations? We Think Not.

Gregory Korte of USA Today notes that "as [President] Obama has begun to grant commutations to inmates convicted of more serious crimes, [he] has increasingly commuted their sentences without immediately releasing them." Sentences are being commuted to end at a later date. Korte goes on to note that "before last month, almost all of the inmates whose sentences were commuted were released within four months." But, "in the last two rounds of presidential clemency in August, 39% of commutations come with a long string attached: a year or more left to serve on the sentence." Former U.S. Pardon Attorney Margaret Colgate Love says, dramatically: :
"There are a number of cases where it’s a genuine re-sentencing. It’s unprecedented ... That signals to me that the power is being used in a way it’s never been used before.”
We disagree.

Admittedly, we have no idea what the basis is for Love's statement. We only know what we know, based on the data that we have taken the time to collect, from 1789 to present. On the front end of the data, "pardon and release" was the language used for what we call, today, "commutation of sentence." Prisoners were frequently pardoned, and ordered to be released at a later date.

As we coded "commutations" (heading further into the 1800s), we certainly noticed many (several hundreds) of examples of situations where sentences were commuted to end at a later date. For some period of time, we coded these examples "C-LD" (as opposed to "C-AO" - commutation at once / to time served). But, frankly, we just stopped doing so. Because they (C-LD's) were so common and we realized that even basic commutations featured later releases. As we also told Mr. Korte, "Finding such a thing is comparable to finding a dollar on the sidewalk. It doesn't happen every day but, when it does happen, it is probably not worth calling USA Today about."

T.Roosevelt commuted 88 sentences to end at a "later date" in his first term
Put another way, there is nothing much unprecedented about this form of clemency, or even this style of commutations of sentence. Indeed, we expected such as a possibility in the case of border agents Compean and Romos (see our commentary here). Maybe the length of time left remaining in Obama's commutations is longer than usual. Maybe. But that is something to be studied and verified, empirically, not simply asserted. And the President may very well be employing this method more often than his predecessors but, of course, he is also commuting more sentences. See story here.

Wednesday, September 14, 2016

NR on Mandatory Minimums

Grover Norquist and Wade Henderson have a piece at National Review on mandatory minimum sentences. They note that bipartisan-backed sentencing- and prison-reform legislation has been introduced into the House of Representatives and, "It’s time for Congress to act on justice reform."

Norquist and Henderson say the states "have proven that treatment and rehabilitation in lieu of incarceration can often provide better outcomes" while "unnecessarily harsh sentences for nonviolent offenders do not make better citizens; they lead them to commit more offenses."

They add that "people at all levels of law enforcement — including former FBI directors, attorneys general, police chiefs, and prosecutors — agree that these reforms will help them do their jobs well and keep communities safe."
The best chance we have of passing this legislation is now. The political stars are aligned, and support for reform is at a zenith. We need our elected officials to seize this moment and pass legislation that saves money and makes us safer. Congress must not squander this opportunity. 
See full editorial here.

Tuesday, September 13, 2016

Time's Up Rally

Edward Snowden on the Pardon Power

“Yes, there are laws on the books that say one thing, but that is perhaps why the pardon power exists – for the exceptions, for the things that may seem unlawful in letters on a page but when we look at them morally, when we look at them ethically, when we look at the results, it seems these were necessary things, these were vital things ... I think when people look at the calculations of benefit, it is clear that in the wake of 2013 the laws of our nation changed. The [US] Congress, the courts and the president all changed their policies as a result of these disclosures. At the same time there has never been any public evidence that any individual came to harm as a result.” See story here.

Monday, September 12, 2016

WSJ: All Thunder and No Lightning

The Wall Street Journal proclaims that Virginia Governor Terry McAuliffe "is acting in contempt" of the State's Supreme Court. While that language is, traditionally, a matter of legal pronouncement, the Journal - it appearswishes to reduce it to the status of mere editorial insult. Why?

The Journal reminds us that, in July, the Virginia Supreme Court struck down an "executive order restoring voting rights to 206,000 felons." The Journal then implies McAuliffe asserted "absolute power" with respect to the issuance of executive orders (he did not) and that this violated the separation of powers principle in the State's constitution. After the false implication, obfuscation:

The Journal says "the individual clemency power" (a phrase found nowhere in the State's constitution), “does not mean [McAuliffe] can effectively rewrite the general rule of law.” Of course, McAuliffe never made such a claim and "effectively" is mere code for: "not so in any obvious way, to an intelligent person, but we would like to argue it anyway, posing/pretending all the while that it is both true and patently clear." Says the Journal:
He has since acted on his defiance by restoring rights to some 13,000 felons who had already registered to vote when the state Supreme Court’s decision invalidated his executive order. The Democratic Governor claims he is restoring these voting rights by the thousands on an “individual” basis. 
Wait a minute. Claims? Claims?! Well, did he? Or, did he not? Does the Journal have some compelling reason to think otherwise? The Journal simply makes the implication and provides no evidence to the contrary. Zero. And with good reason. There is no basis whatsoever for the implication that the grants were not "individual."

Then, off the rails the editorial goes: McAuliffe is showing "contempt of both the court and the legislature" and is creating a "suspension" of law "simply because [he] disagrees with it." He is acting like the "kings" the "Founders" opposed. He is trying to "rewrite the law" and "do what he wants" while we are "well down the road to tyranny." Blah. Blah. Blah.

Nothing smokes out this nonsense, like the clear, cogent writing of the dissenters - who also happen to serve on the State's Supreme Court. Their commentary on the very very stupid imagery of "suspension" of the law was particularly effective:
The terms of the 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 unless the Governor or other appropriate authority acts to restore their rights. 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.
See our summary of the dissenter's opinion here. See complete Wall Street Journal editorial here.

From Indifference to Last-Minute Rush

Click on Image (Above) to Enlarge

Amnesty International: Free Peltier

From Amnesty International:

Leonard Peltier has been imprisoned for 40 years serving two consecutive life sentences, despite the fact that the legal processes surrounding his extradition, conviction, and post-conviction have been riddled with flaws. Amnesty International and legal experts who have studied the case have raised serious concerns about his conviction. In the years since, Peltier has repeatedly been denied parole and exhausted all of this legal remedies, despite evidence of coerced testimony and withholding of key ballistics evidence at trial. Peltier is now 72 years old and in poor health.

“The moment for action is decades overdue in this case. Leonard Peltier is 72 and in failing health. As President Obama approaches his last few months in office and continues to announce record-breaking numbers of commutations, it is crucial that he grant Leonard Peltier clemency. Despite the political factors which may have influenced the way the case was prosecuted, Leonard Peltier has remained in prison all these years. He is not eligible for parole again until 2024,” said Zeke Johnson, Managing Director, Individuals at Risk program. “President Obama now has the opportunity to bring some measure of closure to a case that has troubled many people for decades.”

When arrested, Peltier was a leading member of the American Indian Movement (AIM), an activist group involved in promoting the rights of Indigenous people during a period of intense conflict in the 1970s. In 1975, during a confrontation involving AIM members, two FBI agents were shot dead. In the two years prior to the confrontation in which the two FBI agents were killed, more than 60 Native Americans on the Pine Ridge reservation had been killed - allegedly by paramilitary squads connected to the tribal government - without anyone being brought to justice for these crimes.

Amnesty International USA has chosen Peltier’s case as one of 12 cases for the organization’s annual Write for Rights event, the world’s largest human rights letter writing event. Every year, culminating around Human Rights Day on December 10th, Amnesty International organizes hundreds of thousands of people worldwide to write letters on behalf of people at risk of human rights violations.

See video at:

Thursday, September 8, 2016

Sidewire Chat with Debra Saunders - Starting Now

Check out the discussion !

Where are Obama's Clemency Recipients From?

Top Ten States (and population rank) *

  1. Grants: 126 - Florida (4th)
  2. Grants: 82 - Texas (2nd)
  3. Grants: 52 - Illinois (5th)
  4. Grants: 40 - Virginia (12th)
  5. Grants: 40 - North Carolina (10th)
  6. Grants: 38 - Georgia (8th)
  7. Grants: 29 - Missouri (18th)
  8. Grants: 28 - Tennessee (17th)
  9. Grants: 26 - California (1st)
10. Grants: 25 - South Carolina (24th)

* sixty-five percent of Obama's 743 grants.

Wednesday, September 7, 2016

Abu Dhabi President: 442 Commutations in One Day

President His Highness Shaikh Khalifa Bin Zayed Al Nahyan has ordered the release of 442 prisoners on the occasion of Eid Al Adha. The releases are the result of "the keenness of the UAE President to give the pardoned prisoners a chance to start a new life and alleviate the suffering of their families." See story here.

Monday, September 5, 2016

The Guardian: Now or Never?

The Guardian has a lengthy, but interesting story, oddly titled, "'This is our chance': advocates fear criminal justice reform after Obama." For the record, let us say that we do not fear reform re federal executive clemency, we absolutely crave it. Political scientists have called for it for over 100 years. The current system is broken, badly. It has been so for some time. It desperately needs to be reformed.

More understandably, the piece notes:
... others are concerned that their window of opportunity is shrinking as the president prepares to leave office, and advocates worry the Obama administration is not on track to process the thousands of applications of those deemed eligible. 
Indeed. We share the same concern. We wish the president had not waited longer than any Democratic president in history to grant the first pardon of his administration. We wish his first term had not been the least merciful since that of John Adams. We wish he had simply granted an amnesty to deserving prisoners instead of essentially out-sourcing the pardon power and waiting until the end of his administration to act on commutation applications.

Talk about the wrong way to do the right thing !

Interestingly, the piece notes Hillary Clinton "has spoken openly about criminal justice reform that will require approval from Congress" but "has remained tight-lipped on the issue of clemency." That's why Jason Hernandez, founder of Crack Open the Door, grimly guesses that "whoever does not get out by the time President Obama leaves office is more than likely gonna die in there.” Rachel Barkow, director of Center on the Administration of Criminal Law notes, similarly:
“Once President Obama leaves, if he hasn’t answered each petition that’s before him, they’ll just stay in the pardon attorney’s office for the next president and whoever the next president is will decide if they want to continue with this policy.”
Clinton has "outlined a clear agenda for criminal justice reform on her website," but "there is no mention of what her policy on clemency would be." Nor did the Clinton campaign respond to questions on her policy re clemency. The Guardian was referred to her website.

Mark Osler, law professor at the University of St Thomas, notes those "platforms" (on the website) would "make a lot of sense" if she were "running for congress” and adds:
“It’s striking that someone running for president would completely ignore one of the few tools that are entirely within the hands of the president.” 
The Guardian suggests that an "archaic system used to process clemency applications" has "hampered" the processing of commutation applications and credits Clemency Project 2014 for 673 commutations granted in the Obama administration. We can only agree in a highly qualified manner. There is no doubt the clemency process needs to be moved out of the Department of Justice. But one cannot simply ignore the clear lack of presidential will, and interest, in clemency that has dominated this administration for so long. Second, with the stroke of a pen, an amnesty could be granted, putting an end to the plodding bureaucratic layers of the DOJ and CP 2014. Finally, we do not have a sense that CP 2014 is responsible for all 673 commutations, or even half of them. See full story here.

Saturday, September 3, 2016

Arkansas: 5 Pardons

It is reported that Governor Asa Hutchinson has granted 5 pardons and denied an additional 22 clemency requests. KTHV reports "all those who have been pardoned have completed all required jail time." Among the offenses addressed in the pardons: violation of Arkansas' hot check law, shoplifting and criminal trespassing; manslaughter; theft of property; filing a false police report and leaving the scene of a personal injury accident. See story here.

Illinois: 8 Pardons

The Chicago Tribune reports Governor Bruce Rauner (r) "has granted eight pardons and denied 118 other petitions for clemency." It is also reported that Rauner granted "granted pardons and expungements for three people convicted of burglary and one each of domestic battery, deceptive practice, criminal damage to property, attempted armed robbery and aggravated battery." Rauner has granted 11 sets of petitions since taking office last year and there are "fewer than 400" applications remaining from the backlog of requests left by the previous two governors. See story here.

Friday, September 2, 2016

Historic Last-Minute Clemency

While it is true that most presidential terms have resulted in the highest number of clemency grants in the fourth and final year, Bill Clinton's last-minute caper was more unusual than anything, for a variety of reasons, mathematically and procedurally. Of course, there is always the matter of how last-minute is really "last-minute?" We operationalized "last-minute" clemency blitzes in our own, original, comprehensive data set by comparing the average number of grants of clemency in the first three years of terms to the percentage increase in the number of grants made in the fourth and final year of the term. Here are the results:

It would seem that President Obama will pass President Clinton's mark and, quite possibly, John Adams' as well.

Thursday, September 1, 2016

Obama's Fourth Year Commutation Blitz. How Historic?

While it is true that most presidential terms have featured the highest number of individual clemency grants in the fourth and final year, Bill Clinton's last-minute fiasco was an extremely rare bird. For most presidents, commutations of sentence have been but a tool in an arsenal of clemency options (including pardons, conditional pardons, group pardons - or amnesties - respites and reprieves, remissions of fines and forfeiture, etc.). But, for President Obama, they are damn near everything. Indeed, 91 percent of his clemency grants have been commutations of sentence.

Department of Justice data on the topic are nearly worthless because they are arranged by fiscal year and, in some instance, are not disaggregated when two presidents served in the same fiscal year unit. So, we have disaggregated the data on commutations of sentence and have arranged them by a more meaningful unit of analysis: year of term (below):

Click on Image (Above) to Enlarge
Previous to 1885, the distinction between pardons and commutations of sentence was more vague, but it is safe to say that Woodrow Wilson was setting records as his administration progressed. At first glance, one might guess Obama has set the all-time record for commutations of sentence, but that would be false. Both Woodrow Wilson and Calvin Coolidge granted more. They just didn't wait until the very end of their terms to dump a big load of them. Mercy was a regular (monthly) feature of their administrations, not so much an afterthought, or last-minute stunt.

It is safe to say that the President has set a record for the most commutations of sentence granted in a single year - the fourth year of his second term which, of course, is not yet over. As we recently revealed from our own, original data, he has also set a new record for most commutations of sentence granted in a single day

Pardon for Tommy Chong?

It is reported that Tommy Chong (of Cheech and Chong) wants President Obama to grant him a presidential pardon for a 2003 offense (conspiring to distribute drug paraphernalia across state lines) that resulted in a nine-month federal prison sentence and a $20,000 fine. He was looking at the possibility of a full year in prison and a fine of up to $250,000.

Chong says federal agents were trying to make "an example" out of him:
"Of everybody [the Justice Department] busted, I was the only one that had international recognition, and so they really wanted me ... Technically, I wasn't the owner of the bong company — that was my son — and my wife was vulnerable because she wrote a check for my son's company. They told me that if I pled guilty, they wouldn't go after my son or my wife, and so of course I had no choice." 
See full story here.

Wednesday, August 31, 2016

Saunders: Potential Danger in Last-Minute Clemency Rush

The passer by might get the impression that - with us - it is all about using the pardon power, or not using it. Believe it or not, it is a little more complex than that. San Francisco Chronicle columnist Debra Saunders captures some of that complexity well in a column today.

Saunders notes that, in Obama's first term, he was condemned as "one of the stingiest modern presidents when it comes to the presidential pardon power." This blog pleads guilty on that count, because we know the data landscape well. But, now, Obama seems to be "making up for lost time" - or trying to. Saunders notes her readers now challenge her "to praise the president for using his pardon power" and agrees that he "deserves credit for doing the right thing."

But, it is not all just as simple as that. Saunders feel "a little conflicted":
On the one hand, I think it is great that Obama is bestowing mercy, as I have no doubt that thousands of the 193,070 federal inmates are serving sentences that far outweigh their crimes. On the other hand, I fear that the sheer volume and velocity of this effort could doom this exercise to a bad ending. The president changed his clemency criteria to allow for the early release of drug offenders also charged for firearms possession ... as his administration tries to process some 11,000 applications before he exits, the looming deadline expands the opportunity to make mistakes by releasing someone who is violent. 
Last-minute pardoning can also leave “long term” damage. If there is not proper vetting, and clemency recipients "reoffend in headline-making ways" the next president might be far too "shy” with the pardon power. Saunders is thus "thrilled Obama is using his pardon power" but also crossing her fingers that he will use it "well." See Saunders' full editorial here.

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