Wednesday, June 22, 2016

An Open Letter to the President

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

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

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

Monday, June 20, 2016

Repost (2011): Remembering Marcus Garvey

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

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

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

Monday, June 6, 2016

Obama Administration: Record on Commutations

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Obama, Commutations and Really Poor PR Apparatus

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

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

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

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

Saturday, June 4, 2016

PowerLine on Weldon Angelos

From the PowerLine Blog:

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

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

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

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

Friday, June 3, 2016

Obama's Clemency Record v. The Previous 7 Administrations

The Obama administration invites us to compare its clemency record to that of the previous seven administrations. We accept:

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Obama: 42 Commutations of Sentence

President Obama has granted 42 commutations of sentence, bringing his total to 348. This is the highest number granted by any president since Franklin D. Roosevelt.

On the pardon front, Obama's miserable 70 are the lowest granted by any president since John Adams.

Obama's 418 total acts of clemency bring him roughly in line with Clinton, Reagan, Carter and Ford (Nixon and Johnson were much more generous). Obama, of course, has had many more applications than any of those presidents.

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Editorial: "Broad" Approach to Clemency

Marc Mauer, Nancy Gertner, and Jonathan Simon have a piece at The Hill calling for "broad use" of the clemency power ... now! In their view, President Obama's effort with respect to clemency in drug cases "is encouraging but still quite modest." They are also concerned that Clemency Project 2014 "will fall far short of expectations" because it (and the DOJ) have been "woefully slow."

The authors suggest a "route" that might have "a much more substantial impact" - the application of clemency "in categories of offenses." The suggestion echos that of the Editor's in a recent University of St. Thomas Law Journal article:
... in an era of mass incarceration with over four thousand offenses in the U.S. criminal code and increasing concerns about overcriminalization, it seems appropriate that a newly created clemency board can constantly remind itself that the clemency power can be appropriately exercised for classes of persons. Amnesties (or group pardons) are a great American tradition dating back to George Washington, and a clemency board should always explore the possibility and appropriateness of such grants, in addition to individual grants. This approach to clemency is quite common worldwide ... (Vol. 12, Issue 3, 2016). See full article here
The authors reference Gerald Ford's conditional amnesty for convicted draft resisters and Jimmy Carter's granting of pardon to "all such persons whether or not they had been convicted, and without the requirement for service." Today, there are "several offense categories" for which "there would be substantial consensus" re clemency

The most "obvious" would be "individuals serving federal prison terms for crack cocaine offenses who were sentenced before 2010."  Another opportunity for "categorical clemency" would be cases where offenses within a short time frame are "stacked." See full article here.

Jason Hernandez: Life After Life

Jason Hernandez's story is not everyone's story. But it is a story. And, given what we know about the criminal justice system and the so-called War on Drugs, it clearly has probative value. Texas Monthly is featuring a fantastic piece on him here.

With the encouragement of an older brother (J.J., later an addict), Jason began selling drugs at the age of 15. By 16, he was running a "drug distribution ring" and bringing in $1,000 plus a week! The work moved from marijuana to cocaine, then crank and crack. Hernandez was arrested in March of 1998 (along with 48 others) and - at 21 years of age- was convicted on fifteen charges and given life in prison without parole plus 320 years! He was not a violent offender, was not connected with gangs, and was certainly no drug lord / kingpin. But, he did not "cooperate" with authorities, so there was no chance of a plea bargain.

In 2008, Jason's brother was murdered in state prison. It was a jarring, life-changing event. Jason took paralegal courses and launched  "to bring awareness to a class of federal inmates that will perish in prison for reasons that have been dispelled by research, no longer supported by scientific evidence, and viewed by the public as racially discriminative towards minorities: first time and or non-violent crack cocaine offenders, serving life sentences without parole." On December 19, 2013, Jason's sentence was commuted by President Obama.

Hernandez now works as a welder and advocates for the release of "nonviolent drug offenders serving life sentences." He is also developing "a curriculum for juvenile offenders and at-risk kids to help keep them out of prison." He notes:
My actual release date from federal custody was August 11, 2015. That day, the day I got out, I went to visit J.J.’s grave site. It was the first place I went. Then, I met with Officer Damien Guerrero, who had arrested me and took me into custody. We went to high school together. He went the right way and I went the wrong way. I wanted to meet with him so I could find out how I could help the community, help the kids that were like me. 
Jason's story is a MUST read. See full article here.

Thursday, June 2, 2016

Giovanetti on Commutations, Mercy, Reform

Tom Giovanetti is president of the Institute for Policy Innovation and, in a recent editorial, he argues conservatives should "celebrate" President Obama's recent commutations of sentence and simply ditch the notion that the President is another "liberal who is soft on crime."

Giovanetti argues people who "prize liberty and individual rights" and are "skeptical about government power" should be willing to "rethink" our criminal justice system. We have the world's highest incarceration rate, too many crimes have been "federalized" and "excessive punishments are being meted out for non-violent crimes because of mandatory sentencing requirements."

The editorial references the case of Weldon Angelos, who was arrested for selling marijuana and possessing a firearm and - at 24 years of age - was sentences to 55 years in federal prison. Judge Paul Cassell, who had to deliver the sentence because of a mandatory minimum law - "has ever since been pleading for a commutation," since "far worse crimes, such as hijacking, rape, and second-degree murder, have lighter sentences."

Giovanetti adds:
... our justice system should be about public safety first. But all too often it is about careerism, government revenue and corruption. Stephanos Bibas, professor of law and criminology at the University of Pennsylvania, reminds us that “the criminal justice system and prisons are big-government institutions. They are often manipulated by special interests such as prison guard’s unions, and they consume huge shares of most states’ budgets.” 
And finally:
Social conservatives [believe] in the possibility of redemption. Non-violent offenders can be punished and make restitution while keeping families intact and offenders productive. Economic conservatives should recognize that non-violent offenders are better deployed working in the private sector than incarcerated in expensive government facilities. 
See full editorial here.

[The post was visited by the Executive Office of the President of the United States on June 3, 2016]

Thursday, May 26, 2016

Spanish Version of DOJ Commutation Petition (Unofficial)

Jason Hernandez has performed an excellent service.

He has sought assistance of a woman who is serving a life without parole sentence to translate the Commutation of Sentence application form that is used by the DOJ into Spanish - an idea we deem ridiculously brilliant!

Hernandez says he will be sending it to prisons so it can be can put in law libraries. He is aware that the Office of the Pardon Attorney may not welcome such an idea but it can "help Spanish speaking-only inmates at least understand what questions are being asked and then they can get someone to help them with the English version." You can see the full .pdf form here.

Friday, May 20, 2016

North Carolina: (27 Years Later) "Innocent! Sorry."

The Fayetteville Observer reports that Gov. Pat McCrory has pardoned one Edward McInnis who, in 1988, was falsely accused of raping and robbing an 81-year old woman, and spent almost three decades in prison! The Observer notes:
Mumma [McCrory's lawyer] said she was repeatedly told by the Laurinburg Police Department that the evidence for McInnis' case had been destroyed. But Mumma kept pushing the prosecutors and police to look in the evidence inventory. [In] 2014, the North Carolina Innocence Inquiry Commission, a state agency that investigates and evaluates post-conviction claims of innocence, took on McInnis' case. The agency [found] evidence that was said to be destroyed in at least 23 cases, [After] the agency took on the case, [police] conducted a thorough search of the evidence room and found DNA samples from McInnis' case, Mumma said. [The] DNA samples were tested and showed that McInnis was not responsible for the crimes. [In] August, the District Attorney's Office for Hoke and Scotland counties filed a Motion for Appropriate Relief based on the newly discovered evidence. On Aug. 11, Superior Court Judge Tanya Wallace ordered McInnis' immediate release, 
McCrory met with McInnis at the Executive Mansion and apologized on behalf of the State. See full story here.

Thursday, May 19, 2016

Taifa and Osler: Clinton, Sanders, Congress and Clemency

Nkechi Taifa and Mark Osler have an editorial at the Baltimore Sun which scores critical points in the continuing public dialogue re federal executive clemency. The rhetorical landscape would be so much improved if those points were to somehow stick - permanently.

They note, for example, that Hillary Clinton and Bernie Sanders have both "rooted their appeal to black voters on promises to address the over-incarceration of federal narcotics prisoners," but their "ideas to counter over-incarceration appear solely to depend on congressional action, rather than direct executive action" (Clinton wants to slash mandatory minimum sentences and Sanders wants to reinstate the federal parole system). Significantly: Clinton and Sanders are not running for Congress.

Taifa and Osler suggest an alternative path:
 ... both candidates should pledge to vigorously use the pardon power granted to the president in the U.S. Constitution from the first month of their presidency to immediately reduce costly and unnecessary over-incarceration. What is at stake is important ... If a president — or a presidential candidate — wants to promise to make a dent in over-incarceration, he or she must have a clear commitment to the robust and consistent use of clemency. 
The editorial notes John F. Kennedy "released more than 1 percent of the federal prison population by targeting those subjected to harsh drug laws." Gerald Ford "created a special bi-partisan commission [and] granted clemency to more than 14,000 people" in a single year. And, today, the need for such action is more needed / justified than ever.
The problem now is an unwieldy bureaucratic process that features seven distinct levels of review, each a stumbling block to justice. Much of that process rambles through the Department of Justice itself. Many critics of the process have focused on a conflict of interest some feel is inherent as long as the DOJ is involved. After all, should we really expect wide-ranging mercy from the very department that over-prosecuted people in the first place? 
Thus, Clinton and Sanders should "deliver on promises that are not contingent on the actions of Congress or others" and "commit to using a more efficient process to continue and expand President Obama's initiative to free deserving candidates who were over-sentenced for drug offenses." See full editorial here.

Sanders Resurrects Clinton's FALN Clemencies

Breitbart reports that, at a "town hall" meeting in Puerto Rico, Bernie Sanders "demanded clemency for terrorist Oscar Lopez Rivera and vowed to pardon him if elected president." Says Sanders:
“Oscar López Rivera is one of the longest-serving political prisoners in history — 34 years, longer than Nelson Mandela ... We are talking about a Vietnam War veteran who was awarded a Bronze Star. I say to President Obama — let him out!” 
The New York Post more carefully identifies Lopez Rivera as "a founder" of FALN (Fuerza Armadas de Liberacion Nacional, Spanish for Armed Forces of National Liberation), which "waged a violent campaign for Puerto Rican independence." See our previous posts on the organization here.

 López Rivera was convicted of "trying to overthrow the U.S. government, seditious conspiracy to destroy federal property, armed robbery, weapons violations and interstate transportation of stolen property" and sentenced to 55 years in prison. FALN has generally been credited with 6 deaths, 130 injuries, and over 100 bombings.

The topic has an interesting double-edged quality to it, of course, because of a dozen or so controversial acts of clemency involving FALN in the Clinton administration. The grants were widely viewed as a clumsy attempt to woo Puerto Rican voters for Mrs. Clinton’s New York Senate campaign - much more seriously - they were opposed by the FBI, the Bureau of Prisons, U.S. attorneys and victims. Former Deputy Attorney General Eric Holder's role in the grants was questionable enough for him to assert executive privilege and avoid questioning. Mrs. Clinton, eventually found herself trying to distance herself from the grants and be critical of them.

Lopez Rivera declares himself “an enemy of the United States government” and has refused "numerous opportunities" to "express remorse to the victims of FALN violence and their families." See full story here.

Monday, May 16, 2016

Alton Mills on 851 Enhancements / a Dumb "War"

When Alton Mills was 24-years old, he was given a life sentence. He was a "drug-runner" for two years, pulling in a whopping $300 a week on the South Side of Chicago. After two convictions resulted in state probation (for possessing less than 5 grams of crack), he was arrested, and federal prosecutors used his previous sentences in calculations to obtain a mandatory life sentence. The judge responded accordingly, but called the sentence “farcical” and “cruel and unusual.”

In a great editorial published at The Hill, Mills explains:
A first time non-violent drug offender tried in federal court could face a hefty mandatory minimum sentence of ten years in prison. If that person has a prior drug conviction and the prosecutor files a single sheet of paper called a “Section 851 Enhancement,” the sentence will double from ten to twenty years. Worse yet, as happened to me, if that person has two prior drug convictions – even for simple possession of a very small amount of drugs – and the prosecutor files an 851 enhancement, the sentence jumps from 10 years to life in prison. There is no parole in the federal system, so a person with a life sentence will ultimately die in prison. The 851 enhancement gives prosecutors – not judges – the sole power to decide whether or not someone will be condemned to die in prison. The 851 enhancement also gives prosecutors – not judges – the sole power to decide whether America will spend hundreds of thousands of dollars to lock someone like me up for the rest of their life. 
Mills argues he was not a "violent person or serious repeat drug offender," yet - pay attention - the drug "kingpins" who testified against him "were released over a decade ago, having only served ten years." The drug ring's "leader" and second in command will be released in just three years. He writes:
I was the least responsible person in the group yet the one sentenced to the longest prison term. Was America safer with me locked away, while the kingpins and ringleaders gain their freedom? 
He concludes by noting "there are many others" similarly situated, "still incarcerated" who "deserve a second chance too." See Mills' powerful editorial in full here.

Cyclist Thomas Seeks Pardon

Tammy Thomas is seeking a pardon from President Obama. Good luck with that. Nothing against her personally, of course, but the odds have very rarely ever been worse re the accomplishment of such a feat.

Thomas, a former American sprint track cyclist, was convicted, in 2008 of lying to the grand jury investigating a steroid distribution ring. She served a five-year probationary sentence and six months of home confinement, but feels like she is on track to "pay" for a "forty-eight minute lapse of judgment" for the "rest" of her life.
“I do not engage in any criminal conduct, drug or alcohol abuse, and I’m in no way a risk to public safety ... Although I have lived a responsible and productive life since my conviction, this testimony is holding me back and preventing me from realizing my dreams.”
Today, Thomas is a "personal trainer" but she has a law degree. She cannot practice law, however, because of her conviction. It is reported that she "has reached out to her state’s elected officials for support." See full story here.

Ferranti on Life After Clemency

At Huffington Post, Seth Ferranti goes where few discussion of clemency bother to go. The specific focus is the case of one Rodney White, a 51-year-old who spent over 15 years in federal prison for a "first-time, nonviolent drug conviction for conspiracy to distribute cocaine, crack and heroin." White left prison in 2007, earned a bachelor’s degree and a masters before landing a job at North Carolina A and T State, then Danville Community College. But, along the way, White has been denied other employment opportunities because of his felony conviction.

So, he now seeks a presidential pardon from a president who has granted fewer pardons than any full term president since John Adams !

Suppose White fills out the 23 page application, then beats the odds. Suppose he wins such a freakishly rare grant, from this President. Are the hurdles finally removed? Can he actually then go on being the productive, successful member of society that everyone wants a former convict to be? The Editor of this blog notes:
“There are some legal nuances and debates in the background.” Ruckman says. “While a pardon my clear a record and end all official, federal governmental punishment / restrictions, there may be others (collateral consequences) lurking from professions or the states. This is why ‘ban the box’ initiatives are so important. Sadly, a commutation of sentence can be an amazing second chance in life for a prisoner. But the hurdles they face in re-incorporating themselves back into society as productive members can be enormous. These may be problems which cannot be solved, but they deserve our attention. I was invited the closed briefing on ‘Life After Clemency’ at the White House last month. It certainly dramatized how brutal the process of getting back on one’s feet can be.” 
Says White:
"I do want a Pardon, but I want even more for there to be jobs and education in our communities for returning citizens. If given the opportunity to hire or interview a returning citizen employers should give them the chance to prove themselves. The biggest change doesn’t happen because a law of rule is changed. The biggest change is when we truly forgive those of us who return to society.”
See Ferranti's full piece here.

Saturday, May 14, 2016

Anatomy of a Clemency Hit Piece

At FrontPage, Daniel Greenfield has written what can best be categorized as the last gasp of a dying breed, an awkward rhetorical burp of the 1970s Law and Order campaigns of Richard Nixon. The piece is entitled, "OBAMA’S LATEST AMNESTY FOR DRUG DEALERS Freeing drug dealers, terrorizing communities."

While we can award style points for the root buzzword "terror," the tense and lack of subsequent elaboration on the theme are less than impressive. The piece is NOT about drug dealers terrorizing communities. At best, it is about how the author thinks drug dealers may have terrorized communities, a good 10, 15 or 20 years ago. Implication of the present tense, however, is so much more shocking you know. Nor is the piece about "amnesty." It is about 58 recent commutations of sentence.

Paragraph after paragraph, Greenfield recites the criminal behavior and convictions of individuals and - without explicitly saying so - suggests, 1) all of their sentences were perfectly tailored to fit their crime(s) 2) none of them could have possibly rehabilitated, or payed their debt to society - because, you know ... because! 3) all of the key players in the criminal justice system - aka the ones who, in theory, know more about the cases than Greenfield ever will - agree that all of the sentences handed down were fair and just.

But don't misread, dear reader, Greenfield did do his homework. He sought the opinions of a police lieutenant and ..."local resident." His piece does not reference a single judge, prosecutor or juror. One suspects that is no accident. The fact that any of Obama's commutation recipients must comply with probation? Nuance schmuance!

If this is the kind of "backlash" the President can expect, in the future, when granting commutations of sentence, he should be confident indeed. See full piece here.

Tuesday, May 10, 2016

Saunders Schools Sanders on the Pardon Power

Bernie Sanders sat with the editorial board of the San Francisco Chronicle recently and, in the final minutes of the visit, Debra Saunders took his temperature re the pardon power. Now keep in mind, the pardon power is not a major campaign issue, but it is perhaps the most unfettered power that a president has - and Sanders is still running for president. In addition, the pardon power is certainly a PR point in the Obama administration, and appears likely to remain a point of interest as the administration comes to a close. Yet - as Saunders describes the exchange - questions about the pardon power seemed to be all over Hillary's revolutionary opponent, like half-ton rhetorical guerrillas leaping from tall trees in the night.

The first question was as soft as a softball could be: had Sanders thought about how he, as president, might use the pardon power? His answer; "A little bit. We have too many people in jail" and they are "disproportionately African American." Does candidate Sanders know pardons very rarely ever spring anyone from jail? A little bit indeed!

Saunders then brought up the stumbling and bumbling of the Department of Justice and Clemency Project 2014. In response, Sanders could only offer up a lame version of the administration's straw man: there are problems ...
“above and beyond commutations. The issue is how we reduce our prison population. The more profound issue is how do we make sure that young people do not end up in jail.” 
Of course, everyone recognizes there are many problems in this world. And there is no such person therein who believes the pardon power will cure them all ... or even most of them.

Saunders concludes, correctly, that Sanders "has not given much thought to presidential pardons." He is, perhaps, too "busy." So, she takes some time out in an editorial to introduce him to it! You will want to read that here,

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