Thursday, August 29, 2013

CQ on Cohen, the President and Pardons

Rep. Steve Cohen (D-Tenn)
John Gramlich at Congressional Quarterly has written a piece entitled, "House Democrat Pressure Obama to Grant Inmates Clemency" (August 27, 2013). The piece focuses specifically on Rep. Steve Cohen (D), who spoke on the 50th anniversary of the March on Washington. According to the piece:
Cohen, a white Democrat who represents a heavily African-American district in Tennessee, said at a Capitol Hill news conference Tuesday that the anniversary of the civil rights march should spur Obama to pardon and commute the sentences of more inmates, particularly given the administration’s recent decision to seek lighter criminal penalties for low-level drug offenders. 
He added that the President should make greater use of clemency because
 “there remain thousands [of] disproportionately low-income minorities and people of color whose liberty has been taken from them through unjust and unequally applied mandatory minimum sentences for low-level, nonviolent drug offenses.” 

Tuesday, August 27, 2013

More on Obama, Records and Clemency Applications

Obama, No FDR!
In a previous post (here) we noted that it is likely that the Obama administration will set a new record with respect to clemency applications. Here (below) is additional information on why we hold this view:

With three years to go, it seems pretty clear that Obama's application pile will surpass that of the Bush administration, which is second only to that of Franklin Roosevelt. In fact, Obama is already 70 percent of the way to beating Roosevelt's mark (of 13,541 applications) and he would only need to average 93 pardon applications per month, to the end of the term, to top it. At the current application rate (an average of about 171 applications per month), the Obama administration would close out with almost 17,000 clemency applications (see our own "Projected Applications" bar in the chart below, on the far right).

"Easy Access" to Mercy?

One of the deep ironies about the fact that President Obama's first term was the least merciful since the first term of George Washington is the sense that serious utilization of clemency is perhaps needed now, more than ever.

With over crowded (and expensive) prisons, over-criminalization of the law, the abolition of federal parole, widely recognized failings of mandatory minimum sentencing strategies and literally thousands of persons imprisoned under an Act that has since be rejected by both parties in both houses of Congress as unsound, if not unfair ... there has never been a more appropriate time for the President to exercise the power for which the Federalist papers suggest there should be "easy access."

As the chart below suggests, in all likelihood, when all is said and done, the Obama administration will receive a record breaking number of clemency applications. Will it wait until the last minute? Will it do anything at all?

Click on image (above) to enlarge.

Saturday, August 24, 2013

Holder (Obama): Loud. But Outside the Ring.

Shud - dup !
Passionate, sincere-sounding rhetorical efforts clearly predestined to utter and complete failure can be entertaining. The producers of professional wrestling understand this. Their combatants stand high on the ropes, angrily shaking their fists in the air as they tell thousands of people around them to “Shud-dup!” These exercises in mass communication never succeed, to any degree, at any level. Indeed, they guarantee a louder, more disrespectful audience. It is impressive, but humorous, because the result is so predictably unimpressive.

Attorney General Eric Holder’s recent memo to U.S. attorneys (dated August 12, 2013) has a similar feel. The three-page document, an exhibit in what some hope is a “major shift” in DOJ policy, explains that the exercise of “discretion” in charging decisions is “among the most important duties of a federal prosecutor.” Right away, I wondered, “Is there really a prosecutor somewhere unaware of this?” Holder admonishes U.S. attorneys to evaluate factors in sentencing in a “thoughtful and reasoned manner.” He reminds them sentences should be the product of “individualized assessments” and should “fairly” represent criminal conduct. By the time he instructs them to be “candid” and “accurately calculate” sentencing ranges, one suspects something like disrespect, low-regard, or – at the very least – documented, empirical assessment of poor job performance. One could almost imagine the memo’s author on the top rope, calling millions of people a “nation of cowards”!

Friday, August 23, 2013

Bradley Manning's Pardon Letter / Request

The text of U.S. Army Pfc. Bradley Manning’s statement that will be sent to the president, as read by defense attorney David Coombs following Manning’s sentencing Wednesday:

The decisions that I made in 2010 were made out of a concern for my country and the world that we live in. Since the tragic events of 9/11, our country has been at war.

We’ve been at war with an enemy that chooses not to meet us on any traditional battlefield, and due to this fact we’ve had to alter our methods of combating the risks posed to us and our way of life. I initially agreed with these methods and chose to volunteer to help defend my country. It was not until I was in Iraq and reading secret military reports on a daily basis that I started to question the morality of what we were doing.

Arizona: Jan Brewer's Clemency Train Wreck Continues

This blog has followed the train wreck that is Governor Jan Brewer for years - our interest first being peaked when the State clemency board she appointed recommended clemency for William Macumber, whose guilt was in serious doubt. Brewer simply ignored the Board and repeatedly refused to explain (much less justify) her decision when asked by reporters and family members. Brewer unmistakably carried herself as a kind of Mayberry tyrant, above the law, accountable to no one, and damn proud of it.  

It later dawned on Brewer that, the best way to avoid such hassle in the future would be to remove three members of the five-member Board and replace them with persons less likely to care if their considered judgement about guilt, innocence, justice, blah, blah, blah, is loudly ignored! The result? Today, AZCentral reports:
... recently departed state Board of Executive Clemency chief Jesse Hernandez unsuccessfully tried to help shorten the prison sentence of NBA superstar Amar’e Stoudemire’s half brother after Hernandez had established a relationship with the one-time Phoenix Suns player ...
In fact, Hernandez "suddenly quit" last week after an investigation revealed found no less than nine cases of inappropriate behavior! Says AZCentral:
Gov. Jan Brewer, who has made personnel reform a priority of her administration, named Hernandez executive director and board chairman last year despite his not having any criminal-justice experience.
See full story here.

Thursday, August 22, 2013

Times: Disappointment Without Focus

Today, the Editorial Board of the New York Times mildly rebukes the Obama "administration" for having a "low pardon rate." Among other things, the piece finds the "most striking thing" about Attorney General Eric Holder's recent "encouraging" commentary on sentencing reform was that "there was not one mention of executive clemency."

The Times argues clemency is "an indispensable check on the injustices of the legal system and as a means of demonstrating forgiveness where it is called for" and suggests that it was "once used freely." Today, however, politicians compete "to see who can be toughest on crime" and "pardons of powerful, well-connected individuals like Marc Rich, by Bill Clinton, and Lewis Libby, by George W. Bush, have only increased cynicism about the process." [our general cynicism about clemency reporting thus being increased, as Mr. Libby was not pardoned]. Finally, says the Times, "no one seems to know why some requests are granted and others denied" and that:
... it is disheartening that the Obama administration continues to resist calls to remove the current head of the pardon office, Ronald L. Rodgers, despite a finding by the Justice Department’s inspector general that in 2008, Mr. Rodgers misrepresented material information in recommending that the president deny a petition for clemency. 

Saturday, August 17, 2013

Osler on Holder, Myths and Remedies

Prof. Marc Osler has an editorial at the Minneapolis Star Tribune entitled, "Why Eric Holder's Drug Policy Changes Won't Work."

Osler notes that Attorney General Eric Holder's recent speech to American Bar Association conference "was exactly right about the scope and nature of our troubling levels of incarceration, which too often have little to do with limiting crime. However, his cures are unlikely to have much of an impact." Why? Because Holder's they are primarily based on three "myths":

1. That "directives from Main Justice are of primary importance at the ground level, where discretion is actually employed by assistant U.S. attorneys. Says Osler, "federal prosecutors who want to charge harshly will find a way to do so, and those who want to avoid mandatory minimums already have ways to do that."

Friday, August 16, 2013

Lardner on Obama, Pardons and Presidential Duty

George Lardner has a notable piece in Sunday's Washington Post entitled, "A Shameful Inaction on Pardons." It begins by sharply noting that "more than four years after President Obama and [Eric] Holder were sworn in" they have done "almost nothing" to "reform some of the most disgraceful features of imprisonment on a federal level."

True, Mr. Holder has recently talked about reducing sentences for "older, nonviolent inmates" and finding better ways to "deal with nonviolent criminals." He has also discussed "harsh mandatory sentences on low-level drug offenders" and his desire for "legislation that would give federal judges more leeway in imposing mandatory minimum sentences." But, notes Lardner, these "cures" are largely "prospective" and Holder may not be able to do much on his own for the thousands of prisoners already behind bars because of excessive sentences."

JFK Stuff: Powerful, Dramatic ... Wrong.

We have noted John F. Kennedy's pardon of jazz great Hampton Hawes (here and here and here). So we are pleased to see this piece appear at the DailyBeast, entitled, "The Jazz Pianist that John F. Kennedy Saved," and written by Ted Gioia The piece begins with an anecdotes suggesting Hawes heard John F. Kennedy's 1961 inaugural address while serving a ten year sentence for a drug conviction. Hawes supposedly said, in response, "That’s the right cat ... looks like he got some soul and might listen” and decided that he would apply for a presidential pardon! Notes Gioia:
Against all odds, President Kennedy responded. Although many major jazz stars spent time in prison on narcotics charges during the middle decades of the 20th century, only Hawes received a presidential pardon. Fifty years ago, on August 16, 1963, JFK granted executive clemency to the pianist, and thus allowed one of the most talented jazz artists of the era to resume his career. The Hawes pardon would be one of Kennedy’s last executive acts. Only 98 days later, Lee Harvey Oswald shot JFK in Dallas, not far from the prison Hawes recently left. Kennedy only granted clemency to 43 people during his last year in office. Hawes received pardon number 42.
It sure would be nice to know who the "many major jazz stars" were, but we know pardons, And we know pardon data. That's what we do.

Hampton Hawes' clemency warrant is actually dated August 14th (not the 16th - click on image to the left to see an image of the warrant). Hawes was not one of only 43 people granted clemency in Kennedy's last year in office (year three of the term). Kennedy granted 268 pardons that year. If the author meant a twelve-month period, the figure is 268. And after the day Hawes was pardoned, President Kennedy went on to grant 78 additional pardons before being assassinated. Goodness.

Thursday, August 15, 2013

Updated Application / Grant Statistics

Granted Pardon Applications
Granted Commutation Applications
All Applications
1 in every 2
1 in every 15
1 in every 3
1 in every 3
1 in every 25
1 in every 4
1 in every 3
1 in every 36
1 in every 5
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
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
1 in every 37
1 in every 8,126
1 in every 239

Source: U.S. Department of Justice, Office of the Pardon Attorney

Chris Daniel Show: Today!

The Editor of the Pardon Power Blog will be doing an hour-long interview on the "The Chris Daniel Show" KMJ 580-AM & 105.9-FM (Fresno, CA), this afternoon, at 3 pm Pacific (5 pm Central).

If you are interested, you can listen live here The last interview with Chris was absolutely fantastic. He is well informed, and knows how to guide a conversation with vigor and great skill. It will not go slow.

Chris also has great callers! And, yes, you can be one of them! (559) 490-5858 or (800) 776-5858.

Among today's likely topics :

-  What the pardon power is, and what it isn't.
-  How often the pardon power is used, and why.
-  Famous / controversial presidential pardons.
-  Obama's very sorry clemency record (the most merciless since John Adams).
-  Racial discrimination in the justice system and the Trayvon Martin case.
-  Applying the recent sentencing act retrospectively.
-  O. Henry, Andrew Suh.
-  Recent calls (need) for an overhaul of the clemency process.

Wednesday, August 14, 2013

Osler: On Legacies and Responsibilities

In response to Attorney General Holder's recent announcement re mandatory minimum sentences and compassionate release, we noted Holder's "legacy" :
... includes a mere 39 pardons and one commutation of sentence across two terms - the most stingy clemency record since the administration of John Adams. It also includes thousands upon thousands of young, first-time, non-violent drug offenders rotting away in prisons under sentences imposed by a law which both parties in both houses of Congress has since rejected as unsound and unjust. The legacy also includes a record number of clemency petition rejections and a Pardon Attorney rebuked by the Office of the Inspector General for manipulating information and misleading the president with respect to the clemency application of an African American (the previous Pardon Attorney having been removed for making racist remarks re an applicant). In other words, compassion has simply not been a hallmark of the Obama administration, or Mr. Holder's Justice Department. It is encouraging to see discussion (Holder's gig, since 1999!), and changes in policy, as well as the creation of apparatus and an accompanying mindset to enforce such policies. But, in their wisdom, the Founding Fathers created their own compassionate release program and put it in the Constitution. It is called the pardon power. Long before prison crowding and tax payers were forking out millions for incarcerations, Alexander Hamilton argued there should be "easy access" to mercy. We will see if any of that logic is reflected in this "major shift."
In an editorial for MSNBC, Prof. Marc Osler mirrors our sentiments. Osler calls Holder's speech "remarkable," but "striking" for its "lack of ambition or imagination" because it "did not even mention the presidential power crafted by the framers specifically for such injustices: Clemency." Writes Osler:
[Holder's] remedies address only a thimbleful out of the ocean of tragedy that misguided drug policies have created. Hopefully, further initiatives will be announced. The first, and most obvious, would be a vigorous use of the clemency power to free those who continue to serve long federal sentences under sentencing schemes the nation has abandoned. ... The Fair Sentencing Act was not retroactive. That means that the only realistic path to fulfilling the important principle Holder articulated so well (that “we need to ensure that incarceration is used to punish, deter, and rehabilitate—not merely to warehouse and forget”) is through the president’s pardon power. If the administration really believes in this principle, the next step should be a mass commutation of those prisoners’ sentences. 
Osler suggests that, if Holder and Obama are concerned about their legacies, "the pardon power would be a good place for firm action." Moreover, this administration, "the least active of any modern presidency in the use of this important presidential tool" should recognize clemency "is a constitutional responsibility to use clemency in the face of injustice, just as much as it is a constitutional responsibility to use military force as commander in chief in the face of a military threat to our nation." See Osler's full editorial here.

Watch List: Jackson Jr. Sentenced, Pardon to Follow?

Jesse Jackson, Jr.
Jesse Jackson, Jr., who, along with his wife, pilfered more than a quarter of a million dollars of campaign donations has been sentenced to 30 months in federal prison - with the possibility of a four month reduction.

As he got into a car to drive away from reporters, Jackson, who used checks and credit cards more than 3,000 times for "personal items (such as multiple flat screen televisions, sports club memberships, nightclubs and lounges, a gold-plated Rolex watch, fur capes and parkas), said:
"I still believe in forgiveness and redemption ... and I still believe in the resurrection." 

Holder Mandatory Minimum Memo

Interested readers can view the complete text of Attorney General Eric Holder's recent memo to U.S. Attorneys re mandatory minimum sentences. To view memo (as .pdf) click here.

Among other things, the document notes:

Current policy requires prosecutors to conduct an individualized assessment of the extent to which charges fit the specific circumstances of the case, are consistent with the purpose of the federal criminal code, and maximize the impact of federal resources on crime ... Now that our charging decisions also affect when a defendant is subject to a mandatory minimum sentence, prosecutors must evaluate these factors in an equally thoughtful and reasoned manner. 

Tuesday, August 13, 2013

Chris Daniel Show: Interview

The Editor of the Pardon Power Blog will be doing an hour-long interview on the "The Chris Daniel Show" KMJ 580-AM & 105.9-FM (Fresno, CA), Thursday, 3 or 4 Pacific (TBA).

If you are interested, you can listen live here The last interview with Chris was fantastic. He knows how to guide a conversation with skill and has great callers!

Monday, August 12, 2013

NR on Federal Prison Population

National Review notes:
While the total prison population declined 1.7 percent in 2012 from 2011, the federal prison population increased by approximately 1,500. Federal prisons are currently operating at nearly 40 percent above capacity with more than 219,000 inmates, a growth since 1980 of almost 800 percent. Almost half the federal prison population is serving time for drug-related crimes, in addition to more than 9 million who go through local jails each year. 
See full article here.

Holder: Compassionate Release?

Charley Savage of the New York Times reports that there has been a "major shift in criminal justice policy" in the Obama administration. According to Savage the administration "will move on Monday to ease overcrowding in federal prisons by ordering prosecutors to omit listing quantities of illegal substances in indictments for low-level drug cases." The effect will be to "sidestep" federal laws that impose strict mandatory minimum sentences for drug-related offenses.

Writes Savage:
Attorney General Eric H. Holder Jr., in a speech at the American Bar Association’s annual meeting in San Francisco on Monday, is expected to announce the new policy as one of several steps intended to curb soaring taxpayer spending on prisons and help correct what he regards as unfairness in the justice system, according to his prepared remarks. Saying that “too many Americans go to too many prisons for far too long and for no good law enforcement reason,” Mr. Holder is planning to justify his policy push in both moral and economic terms. “Although incarceration has a role to play in our justice system, widespread incarceration at the federal, state and local levels is both ineffective and unsustainable,” Mr. Holder’s speech says. “It imposes a significant economic burden — totaling $80 billion in 2010 alone — and it comes with human and moral costs that are impossible to calculate.” 

Friday, August 9, 2013

Maryland: Clemency Clinic

The Washington Post reports that former Maryland governor Robert Ehrlich is "partnering" with Catholic University for a "legal clinic on clemency." Similar such programs exist at the University of St. Thomas School of Law (Minneapolis) and at the University of Akron. The difference, it is said, is that this clinic will "also will take up advocacy for reforms."  It will also "include a workshop for newly elected governors and their staff."

The CUA Law/Ehrlich Partnership on Clemency will be part of the law school’s Innocence Project Clinic. Says the Post:
Ehrlich, who became Maryland’s first Republican governor in 36 years when he was elected in 2002, made clemency requests a priority of his administration from 2003 to 2007. Ehrlich assigned five lawyers in his office to consider clemency cases, with two of them fully devoted to them. He met with them once a month to consider cases. 
It is also reported that, in a four-year term, Ehrlich granted 227 pardons and 21 commutations, which was "far more than his predecessor" (Democratic Gov. Parris Glendening - who granted a mere 134 pardons and six medical paroles across eight years). According to the Post, Democratic Gov. Martin O’Malley (who defeated Ehrlich in 2006 and 2010) has granted 105 pardons, three commutations and two medical paroles in more than six and a half years in office. See full story here.

Wednesday, August 7, 2013

NR on the Prison Industrial Complex

At National Review, Rich Lowry has written a piece entitles, "Reforming the Prison-Industrial Complex Our penal system is out of control, and conservatives have the right values to fix it."

Lowry notes prison is "one of the most important institutions in American life" as "about a quarter of all the world’s prisoners are behind bars in the United States, a total of roughly 2 million people." He then notes that it costs "about $60 billion a year to imprison them."

Lowry says this "vast prison-industrial complex" has "succeeded in reducing crime but is a blunt instrument."  Unfortunately, "prison stays often constitute a graduate seminar in crime, and at the very least, the system does a poor job preparing prisoners to return to the real world."

Obama: Rhetoric v. Action

At Slate.Com, Douglas Berman and Harlan Protass pen what is surely one of the best pieces of its kind, entitled, Obama Can Fix the Race Gap in Sentencing Law A stroke of the pen can undo vast racial disparities in criminal sentences.

The piece observes that our nation’s first African-American president and first African-American attorney general "are aware of serious racial discrimination in the administration of our nation’s criminal laws," but pointedly asks: "What they plan to do about it?" Berman and Protass note:

Harvard Professor: Pardon Snowden !

Stephen Walt, a professor of International Affairs at Harvard, is calling on President Obama to grant a pardon to Edward Snowden, in order to "preserve America’s ideals of individual freedom and equality." Walt says Snowden was like the Nation’s “founding fathers” in that he was "also defying the usurpations of an increasingly intrusive government."

Walt also points out that "did not pass valuable secrets to a foreign government or sell them for personal gain." Instead, he "gave up a well-paid job and put his own freedom in jeopardy for a principle." As such Snowden's motives were "laudable." Writes Walt:

Virginia: Request

PilotOnline reports that Del. Joseph Morrissey, D-Henrico, has written to the governor in order to seek a pardon for an "innocent" man. More specifically, Governor Bob McDonnell is being asked to pardon former Navy SEAL trainee Dustin Turner clemency for the 1995 murder of Jennifer Evans. According to PilotOnline, in 2002, "Billy Joe Brown, his co-defendant, confessed he acted alone, triggering Turner's petition." Morrissey has also referenced "a new, less strict standard for overturning convictions that cleared the General Assembly this year." See story here.

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