Monday, May 6, 2013

The Mafia, the Murder Stable and Presidential Mercy

Author Virgil W. Peterson notes that, in the early 1900’s, Ignatio Lupo (a.k.a. Ignazio Saietta, a.k.a. “Lupo the Wolf”) was “the most important leader in the Sicilian-Italian underworld.” Lupo came to the United States in 1899, at the tender age of twenty-two. He had fled from Sicily after committing a murder and settled in East Harlem.

Author Carl Sifakis observes young Lupo gained an “awesome reputation” over the next few years as “the most desperate and blood thirsty criminals in the history of American crime.” Indeed, it became “common” for Italians to cross themselves at the mere mention of his name of the “most proficient and deadliest” racketeer in New York. Conventional wisdom was that Lupo was also behind countless episodes of torture in a building in Italian Harlem affectionately known as the “Murder Stable.” In 1901, a New York police detective who was assisting the Secret Service in an investigation of plots to kill President McKinley raided the structure at 323 East 107th Street. The property, owned by Lupo, was searched and diggings uncovered the remains of at least sixty murder victims.

Lupo became the leader of the Morellos - the foremost Mafia “crime family” in the city – so law enforcement officials gave him particular attention. To his credit (and their frustration) there were strikingly few clear opportunities to either arrest or convict him. Authorities tried to connect him to a “barrel murder” in 1903 and a kidnapping in 1906. In 1908, Lupo suddenly disappeared from his wholesale grocery store, leaving behind bankruptcy and seven hundred thousand dollars of debt. But, eventually, the Secret Service discovered that he and eight others had their hands in a counterfeiting operation in the Catskill Mountains.

Lupo the Wolf
So, “the Wolf” was finally convicted in the United States District Court for the Southern District of New York on February 19, 1910, and sentenced to thirty-years in the Federal penitentiary at Atlanta. He began serving the sentence two days later and remained in prison until June 30, 1920, when he was released on parole.

While serving out the conditions of parole, Lupo wanted to take a trip to Italy. He claimed it was "highly important" and purposes of "business." He also claimed the trip would be quite "brief." The only problem was that the Parole Act forbade him from leaving the country. So, on October 29, 1921, Warren Harding freed Lupo from the constraints of his parole by granting a conditional commutation of sentence. The Annual Report of the Attorney General for 1922 mentioned Lupo’s desire to return to Italy but also noted that his codefendant, Giuseppe Morello, had received a commutation after just eight years of actual imprisonment. The former Chief of the Selective Service considered the relative guilt of the two men to be, roughly, the same and thus recommended a commutation for Lupo.

Warren Harding
Harding did, however, attach a condition to the commutation, requiring Lupo to remain “law-abiding” and “not connected with any unlawful undertaking during the period of the sentence.” The President himself would be the sole judge of whether the "condition" was ever violated and, if it ever was, he could declare the commutation null and void. In such circumstance, the President would apprehend Lupo and return him to the penitentiary for the full portion of the sentence. Sifakis’ The Mafia Encyclopedia suggests Harding’s commutation “was not viewed as any sort of favoritism.” Instead, the “hope” was that The Wolf would simply “not return.”

Lupo traveled to Italy in November and took care of his "highly important business" for six months, but returned to the United States in May of 1922. Understandably, the Board of Special Inquiry at Ellis Island was not too keen on letting him return. Lupo showed them a copy of his conditional commutation, but they were not impressed. Indeed, they ordered that he be deported! The Secretary of Labor reversed the deportation, however, on the argument that the President could better enforce the condition of the commutation if Lupo remained in the country!

Lupo and his son “retired” into the wholesale fruit and bakery business and things were quiet, for a while. But as the years passed, New York authorities gathered more than a few complaints about him. Lupo had found a way to exercise considerable control over Italian bakers and was engaged in broad scale racketeering. He had also monopolized commerce in grapes and was running an Italian lottery. So, sixteen years after Lupo left the penitentiary in Atlanta, New York Governor Herbert Lehman petitioned Franklin D. Roosevelt to revoke the commutation granted by President Harding. Roosevelt did so and the revocation was justified on the grounds that Lupo maintained an "association with persons of evil character." Lupo was also said to have engaged in racketeering and "other unlawful enterprises." To top it all off, he had been arrested and indicted on "various charges." Roosevelt ordered a United States Marshal to "apprehend" the sixty-year old Lupo and deliver him to the State Penitentiary at Atlanta in order that he might "serve the remainder of his said term of imprisonment." Warden Fred B. Zerbst welcomed “the Wolf” back to the Atlanta penitentiary in 1936.

Sensing the unusual character of his case, Lupo challenged the validity of his re-imprisonment. He applied for, and was granted, a writ of habeas corpus. At his hearing, Lupo did not attack his original indictment, trial or sentence. Instead, all of his complaints were aimed at the validity and "regularity" of the condition attached to his commutation and its subsequent revocation. U.S. District Court Judge E. Marvin Underwood was not, however, persuaded by Lupo's single prong presentation. The writ was discharged and Lupo was remanded to custody for execution of the remainder of his sentence.

Franklin D. Roosevelt
The case was then appealed to the Circuit Court of Appeals for the Fifth Circuit where Lupo maintained the President was certainly authorized by the Constitution to grant the commutation of sentence. However, he was "without power or legal authority to engraft conditions." In addition, Lupo now claimed that he did not ever actually “accept” the conditions of the commutation. Finally, Lupo emphasized that he had already served ten years and four months in prison and, upon his release, had lived under conditions of parole. As far as he was concerned, his sentence expired way back on April 13, 1930 - a good six years before President Roosevelt revoked the conditional commutation of President Harding. The date did in fact represent the minimum required sentence for Lupo if he had remained under the conditions of his parole and he had been granted so-called "good time" credit as a parolee.

Judge Holmes wrote the Circuit Court’s opinion for the case Lupo v. Zerbst and tackled each of Lupo's "arguments" with relative ease. Did the Constitution allow the President to grant conditional clemency? Holmes noted the language of the Constitution is "general" but extended the President's pardoning power to "all kinds of pardons known in the law as such, whatever may be their denomination." This "extending" included pardons, commutations, conditional pardons and conditional commutations. "Denominations" of clemency, wrote Holmes, were simply "irrelevant." Given all of that, Holmes suggested "the character" of President Harding's commutation had to be determined "by its legal effect." And, in his view, there was "nothing illegal or against public policy in any of the conditions" in Harding's conditions. Had Lupo actually accepted the conditions of his commutation? Holmes entertained few doubts on the matter. He observed Lupo "could read and write" and had signed a receipt for his conditional commutation when he received it. Holmes also recalled the manner in which Lupo waved his clemency warrant in the faces of officials at Ellis Island when he returned from Italy. Had Lupo already completed his sentence before the disastrous revocation? The court also disagreed with the notion that Lupo had already served his term of imprisonment at the time of the revocation. The sentence may very well have expired in 1930 if "good time" credits for the whole period from 1910 to 1940 were counted. But, the court ruled Lupo was not "entitled to" and had "no vested right" in "good time" credits. The acceptance of the commutation "terminated his sentence at once and thereby automatically terminated his parole [and] all the conditions attached to his status as a parolee." It was simply inconsistent of Lupo to have accepted the commutation in order to be released from the constraints of parole and, at the same time, to have expected to be credited with "good time" as though he were still on parole.

Two months after the decision, the Circuit Court denied Lupo a rehearing. The United States Supreme Court also refused to give the case further consideration in February of 1938. Sifakis notes Lupo went back to Atlanta “to serve out another few years on his original sentence” then returned to Brooklyn and “died a few years later” with “no remaining power.”

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