A clemency proposal that deserves strong support from President Obama and AG Holder

A helpful reader brought to my attention a piece on the New York Times editorial page that proposes a complete reworking of the clemency process. Specifically, it proposes a broadly representative and non-partisan commission to make recommendations to the President about pardons and clemency.

Given my awful experience with Hamedah Hasan (Merciless), I urge President Obama and Attorney General Holder to get behind this proposal, and strongly so. They should so if only to publicly proclaim “mea culpa, mea culpa, mea maxima culpa” – “through my fault, through my fault, through my most grievous fault.” A public expiation of their manifest sins would do them and the rest of us (not to mention those who deserve mercy) a world of good. If Obama and Holder aren’t total hypocrites they will do so.

I reprint the piece in full:

On Jan. 20, 2009, in his last moments as president, George W. Bush gave Barack Obama a hard-earned bit of wisdom: whatever you do, he said, pick a pardon policy and stick with it.

It was sage advice, yet, more than five years later, President Obama has not heeded it. As a result, as one former pardon attorney has said, the clemency power is “the least respected and most misunderstood” power a president has. Yet it is granted explicitly by the Constitution as a crucial backstop to undo an unjust conviction or to temper unreasonably harsh punishments approved by lawmakers. It also can restore basic rights, like the right to vote, that many people lose upon being convicted.

In the past, presidents made good use of it, but as tough-on-crime policies became more popular, the number of grants fell dramatically. Judging by the numbers, Mr. Obama, who has, so far, granted just 62 clemency petitions, is the least merciful president in modern history.

The Obama administration took a stab at remedying the situation in April when it replaced its feckless pardon attorney and announced that it would consider granting clemency to thousands of low-level drug offenders serving what Mr. Obama called “unjust” sentences. The effort, dubbed Clemency Project 2014, was a promising start, but it has already run into significant hurdles, most recently a ruling barring hundreds of federal public defenders from assisting inmates in filing their petitions.

Even if the project succeeds, it is a one-time fix that fails to address the core reasons behind the decades-long abandonment of the presidential power of mercy. A better solution would be a complete overhaul of the clemency process. First and foremost, this means taking it out of the hands of the Justice Department, where federal prosecutors with an inevitable conflict of interest recommend the denial of virtually all applications. Instead, give it to an independent commission that makes informed recommendations directly to the president.

That proposal, which has been made before, gets new attention in an upcoming article in the University of Chicago Law Review by two law professors, Rachel Barkow and Mark Osler. Such a commission’s membership, the authors write, must be politically balanced and have a wide range of perspectives, including those of prosecutors, defense lawyers, judges, inmates, academics, officials from corrections and law enforcement, and victims’ rights advocates.

This design would give the president bipartisan support in making what is often a politically sensitive decision. Particularly in a tough-on-crime age, the risk of even one person committing another crime is enough to deter grants of clemency across the board. That is another argument for a well-financed commission, which can collect data on the results of clemency grants — data that could then be used to better inform future decisions.

In several states that already have such commissions — such as Pennsylvania, South Carolina and Alabama — clemency decisions are more transparent, more predictable, and much more frequent than in the federal system.

Mr. Obama’s failure to wield the pardon power more forcefully is all the more frustrating when considered against the backdrop of endless accusations that he is exercising too much executive authority, sometimes — his critics say — arbitrarily if not illegally. In this case, he should take advantage of a crucial power that the Constitution unreservedly grants him.

The Editorial Board, It’s Time to Overhaul Clemency, New York Times, August 18, 2014.

RGK

No mercy, but plenty of naps

House Vote Aims To Derail DOJ Processing Of Clemency Petitions, reports NPR.  (“The House of Representatives has voted to prohibit the Justice Department from hiring more attorneys to deal with thousands of backlogged clemency petitions in a bid to block one of the Obama administration’s top criminal justice priorities.”)

This is just another outrage directed at the rule of law by the House of Representatives currently controlled by Republicans. They don’t give a damn about being intellectually honest when it comes to the rule of law, particularly when trashing the rule of law gins up a base consisting largely of nut jobs. Any idiot understands that no system of criminal law is worthy of respect if it lacks the essential component of mercy.

Rep. George Holding, R-N.C., a former U.S. attorney in the administration of President George W. Bush, sponsored the language added to the House bill. Here is the “reasoning”:

Holding said he objected to the DOJ’s new clemency initiative, saying the impetus for it is the administration’s disagreement with drug sentences “handed down by the courts according to the laws written by duly elected representatives.

“This is not, as the Founders intended, an exercise of the power to provide for ‘exceptions in favor of unfortunate guilt,’ but the use of the pardon power to benefit an entire class of offenders,” Holding said in a statement, adding that it amounted to “another example of executive overreach from this administration.”

Holding is the same dumb ass who fell asleep when presiding over the House. That’s when he must have been channeling the Founders’ views on clemency.

snooze5n-1-web

RGK

PS.  Thanks Vince.

More on clemency from someone who saw it up close

From a former staff attorney at of the Office of the Pardon Attorney, I received the following e-mail regarding clemency. Because it speaks for itself, I merely reprint it:

I couldn’t help but notice your recent posts about commutation and the Hasan case. I am intimately familiar with the case because at the time her application was pending I was a staff attorney at the Office of the Pardon Attorney (my tenure was 1997-2010), although the case was not assigned to me. With respect to the recent clemency initiative, I will only say that your bullshit detector is as sharp as ever. Obama and Holder didn’t even have to read Margy’s excellent article to know that something was terribly wrong with the pardon advisory process. In September 2009, I delivered the attached letter to a lawyer in the West Wing in which I described in some detail what was going on. The letter does contain one error. I pointed out that during the entire Bush Administration, the Justice Department recommended favorably in a grand total of five commutation cases out of about 8,500 applications. Upon further review, I realized that I miscounted. Actually, there were six favorable recommendations. My bad.

The main reason they are getting around to this now, in my view, is that Dafna Linzer published a devastating series of articles in the Washington Post (collected here) documenting for a wide audience the deplorable stewardship of the pardon program by the Justice Department. Among other things, Dafna proved in a statistically rigorous fashion that whites were four times more likely get a pardon than blacks. Of course, if a private corporation had a similar record of racial discrimination the Civil Rights Division would file suit against it. In 2011, after I left the office, I highlighted Dafna’s findings in the attached post on the ACS Blog. Even then, the White House unwilling to pull the plug on the pardon office. In 2012, they directed the office to give them some favorable commutation recommendations. It took the Department more than a year to respond and they managed to find only eight cases that they thought were worthy of favorable consideration. Only then did the White House finally admit that they had to make a change.

Even so, the most ardent supporters of the new clemency initiative are letting the Department and the President off the hook too easily. Many who’ve been working on the problem of over-incarceration are so excited by the prospect that something significant might actually happen are either not noticing (or refusing to acknowledge) that the Department has articulated a very narrow conception of executive clemency. The criteria announced by the DAG are limited to cases in which, for one reason or another, the applicant would have received a shorter sentence if he or she was convicted and sentenced today. The margins are fuzzy, to be sure, but that’s the basic idea. This could be because of a change in the substantive law (like a Sup. Ct. case) or an amendment to the Sentencing Guidelines or the Department’s charging policies. It is simply not true that this represents an “expansion” of the traditional criteria for commutations, as the Department claims. In fact, it is a contraction of the criteria. The traditional criteria are listed in the US Attorneys Manual (posted on OPA’s website) and also include unrewarded cooperation, illness of the applicant or a family member and disparity of sentence with a similarly situated defendant. In practice, it has also included extraordinary rehabilitation while incarcerated, the defendant’s youth at the time of the offense, and his or her role in the offense, among other things. In short, any relevant equitable consideration may have weight in the clemency process.

Generally speaking, this broader conception of clemency is consistent with Hamilton’s statement in the Federalist Papers (No. 74) that the purpose of the pardon power is, in part, to provide “easy access” to mercy in cases of “unfortunate guilt.” This is necessary because we have a persistent tendency to be overly harsh when sentencing criminal defendants. Hence justice should be tempered by mercy. It means that forgiveness is a risk worth taking, even in a Republic otherwise dedicated to the rule of law. Forgiveness is rationally justified, because each of us runs a nonnegligible risk of finding ourselves in a situation in which we too will want to appeal for the lenient treatment that mercy affords, namely to be given less than the full measure of our just deserts. Everyone is thus better off living in a society in which there exists a mechanism for making exceptions to the strictures of retributive justice in cases of “unfortunate guilt.”

By contrast, notice that Obama and DOJ are still articulating a view that commutation should be limited to doing justice in some sense, confined to cases in which the applicant arguably deserves a lower sentence. For example, Obama recently granted commutation to a poor fellow who was serving a longer sentence because a typo in his PSR adversely affected his Guidelines range. But Obama wasn’t doing this guy a favor. After all, the defendant was serving an illegal sentence; he was entitled to a sentence reduction if anyone is. I’m not criticizing Obama for doing it. I’m simply saying that he wasn’t being merciful. Call this the “rule-of-law lite,” if you will. The inherent message is the President’s exercise of discretion is justified only if it serves or enhances retributive concerns.

The notion that we can govern ourselves entirely by the rule of law is an illusion. As the great sociologist Otto Kirchheimer once observed, the idea that “an omniscient legislator could instruct and enlighten the judge enough to avoid any need for further consideration of the case did not survive the emergence of Napoleon. … [W]hatever the changing allocation principles, the need for an instrument with which to correct the actions of courts has never been doubted since the rationalist intermezzo of the Enlightenment.” The Framer’s decision to include the pardon power in the Constitution is a testament to the inherent limits of human reason. No matter how hard we try we will never reach a state of “administrative perfection.” Blakely v. Washington, 542 U.S. 296, 313 (2004) (noting that the Framers’ “paradigm for criminal justice” rejected “the civil-law ideal of administrative perfection”). Thus, in its first gloss on the substantive reach of the Pardon Clause, it seemed apparent to the Supreme Court that “[w]ithout such a power of clemency, to be exercised by some department or functionary of a government, it would be most imperfect and deficient in its political morality.” Ex parte Wells, 59 U.S. (18 How.) 307, 310 (1855) (emphasis added). In my view, Obama is systematically excluding mercy as a basis for clemency and he is presumably doing it to insulate himself from the charge that he is “soft on crime.”

I’ve been criticized for looking a gift horse in the mouth. That is not true; as a defense attorney, I’ll take what I can get. If the Department takes this project seriously and adheres to their own announced criteria, there are approximately five thousand prisoners who will be eligible to have their sentences reduced, even on a narrow view of the pardon power. And that is certainly an improvement over what we’ve seen for many years, as is the appointment of new Pardon Attorney. The problem is that Obama is setting a precedent. My concern is that we are implicitly accepting the assertion that these criteria define the scope of the proper use of the power. The new Pardon Attorney couldn’t be blamed if that’s the conclusion she draws from this experience. Nor could the next President. But I think it remains a morally impoverished and historically uninformed conception of the pardon power. Principles matter in the long run.

Best regards, Sam Samuel T. Morison

Letter to the White House: Cuellar letter (1)

UPDATE:  As I read this post over, I am afraid I condemned Sam’s analysis with faint praise. This is a powerful piece that deserves a lot of attention. 

A brief clemency follow-up and a question for Nebraska’s US Attorney

Yesterday, DOJ announced a new Pardon Attorney and six criteria to determine eligibility for the expanded commutation policy. Those new criteria apply to inmates like these:

1. They are currently serving a federal sentence in prison and, by operation of law, likely would have received a substantially lower sentence if convicted of the same offense(s) today;

2. They are non-violent, low-level offenders without significant ties to large scale criminal   organizations, gangs or cartels;

3. They have served at least 10 years of their prison sentence;

4. They do not have a significant criminal history;

5. They have demonstrated good conduct in prison; and

6. They have no history of violence prior to or during their current term of imprisonment.

Had these criteria been earlier adopted and implemented, Hamedah Ali Hasan would have become the prototypical candidate, freed of the nightmare I wrote about yesterday. For her, all this recent sound and fury signifies absolutely nothing.

Sorry Ms. Hasan. Time flies. In your absence, your children have grown up and have children of their own. Why did it take us so long? It’s complicated. Shit happens.

One last item.

Buried at the bottom of the DOJ’s statement is this little nugget:

Deputy Attorney General Cole sent a letter to all of the 93 U.S. attorneys asking for their assistance in identifying meritorious candidates and notifying them that the Pardon Attorney’s Office will be soliciting their views on petitions that appear to meet the criteria after an initial screening by the lawyers in the Office of the Pardon Attorney. (Emphasis added by Kopf.)

Note to self: What steps will the US Attorney’s office in Nebraska take to promptly comply in good faith with the new affirmative obligation to “identify[] meritorious candidates . . . .”  Mrs. Gilg, are you listening?

RGK

Merciless

Yesterday, I linked to SL&P and asked that you read Doug Berman’s post regarding President’s Obama’s newly announced policy, heralded by General Holder, to expand clemency for nonviolent drug dealers. Today, I write about my one utterly depressing experience with DOJ and the commutation process. I also criticize President Obama and Attorney General Holder for their tardy response to a national disgrace.

Preface

I loathe “crack.” I suppose that hatred comes from seeing up close the destruction of black communities caused by that cheap and effective drug. Having an aging and poor crack whore hang herself in a cell adjacent to the courtroom where I just pronounced a long sentence upon this poor woman perhaps provides a context for my strong views. Bestowing mercy on those predators who dealt drugs to that gal, even ones who are “nonviolent” (a term I find misleading), rubs me wrong and strongly so. But I also understand why Presidential clemency helps our criminal justice system dispense a needed degree of mercy by leavening sentences that now appear too long even for those who are unquestionably criminals whose behavior has done great harm.

Stephanie Lomax, now known as Hamedah Ali Hasan

In 1993, after a jury trial, Hamedah Ali Hasan was found guilty of the following Counts in the Superseding Indictment: I (conspiracy to distribute and possess with intent to distribute cocaine), IV-VIII (distribution of and/or possession with intent to distribute cocaine), IX (interstate travel in aid of racketeering), and X (use of a communication facility in furtherance of a conspiracy). She committed the offenses between 1988 and 1991.

She had no criminal history and she had no misconduct while on pretrial release in 1992 and 1993. She had two children and was pregnant with a third at the time I sentenced her. Hasan, who is black, was fleeing an abusive relationship when she moved from Oregon to Omaha to operate a drug business with two relatives. She was in her early twenties.

Hasan was held responsible for 5.9 kilograms of cocaine base, placing her at base offense level 40. She received a three-level upward departure for her role as a manager in the conspiracy.  On October 20, 1993, I sentenced Hasan to the following concurrent terms of imprisonment: Counts I and VII — life; Counts IV and V — 480 months; Counts VI and VIII — 240 months; Count IX — 60 months; and Count X — 48 months.  I wrote a very long opinion explaining why I felt bound to impose the life sentence even though I thought it was far too harsh.

On November 1, 1994, Amendment 505 to the Sentencing Guidelines eliminated base offense levels 42 and 40 from the drug quantity table in U.S.S.G. § 2D1.1. The amendment was made retroactive. In 1998, Hasan filed a motion to reduce her sentence under 18 U.S.C. § 3582(c)(2)[1] in light of retroactive Amendment 505. Hasan also asked the Court to consider her post-sentencing rehabilitative conduct during her imprisonment as grounds for a downward departure under U.S.S.G. § 5K2.0. In resentencing Hasan in 1999, under § 3582(c)(2), I applied Amendment 505 and reached a new total offense level of 41. I also departed 8 levels downward to offense level 33 based on her post-sentencing in-prison rehabilitative conduct under U.S.S.G. § 5K2.0.

I, therefore, granted Hasan’s motion to reduce her sentence and sentenced her to the following concurrent terms of imprisonment: Counts I, IV, V, VI, VII, and VIII — 144 months; Count IX — 60 months; and Count X — 48 months. The Eighth Circuit initially affirmed the sentence; however, the panel’s opinion was vacated and the case was heard en banc. United States v. Hasan, 205 F.3d 1072, 1075-76 (8th Cir. Feb. 29, 2000), vacated, 213 F.3d 1049 (8th Cir. 2000). The original panel  majority concluded the opinion stressing Hasan’s extraordinary rehabilitation in prison, and stated, “Although the Government does not argue Hasan’s rehabilitative efforts are not extraordinary, we agree with the district court that they are. We thus affirm the district court’s resentencing order.”

There was never any doubt that Hasan had been rehabilitated.  The evidence presented at my hearing and otherwise proved her rehabilitation beyond question. It is accurately itemized in detail in her counsel’s 2010 letter supporting the second application for commutation which may be found here on pages 8 through 11. So far as I know, no government official has ever disputed any of this evidence.

The en banc Eighth Circuit Court concluded that the I abused my discretion in granting a downward departure under § 5K 2.0 in a § 3582(c)(2) resentencing. United States v. Hasan, 245 F.3d 682, 684-85 (8th Cir. 2001). The Eighth Circuit explained that a district court under the relevant circumstances must make two determinations: (1) the sentence that it would have imposed had the new sentencing range been the applicable range at the time of the original sentencing; and (2) whether to give the defendant the benefit of that reduced sentence. Id. At step (2) the district court may consider any applicable factors listed in 18 U.S.C. § 3553(a) only insofar as it considers where within the new guideline range to sentence the defendant; § 3553(a) may not serve as a mechanism for a departure below the guideline range. Id. at 685. Therefore, the Eighth Circuit concluded that I abused my discretion in departing below the new guideline range under § 3553(a) because a downward departure was not granted at the original sentencing. Id. at 686 (discussing U.S.S.G. § 1B1.10). Since post-sentencing conduct could not have been a factor at the original sentencing, the Eighth Circuit stated that the below-the-guideline sentence could not stand. Id. at 686-90. The court reversed my grant of the downward departure motion and remanded the case for imposition of a 324-month sentence. Four judges dissented, stating that the earlier panel decision explained their reasoning. Id. at 690-91. Hasan’s petition for certiorari was denied. Hasan v. United States, 534 U.S. 905 (2001).

On remand in 2002, and pursuant to the mandate of the Circuit, I resentenced Hasan to the following concurrent terms of imprisonment: Counts I, IV, V and VII — 324 months; Counts VI and VIII — 240 months; Count IX — 60 months; and Count X — 48 months.

Several years later, Hasan filed motion, and a supporting brief, relying on the then recent retroactive amendments to the existing crack cocaine sentencing guidelines set out in U.S.S.G. § 2D1.1 as well as U.S.S.G. § 1B1.10. The government filed no brief in opposition. I recused himself from that case.  On July 8, 2008, I wrote that:

ORDER as to defendant Hamedah A. Hasan Hamedah Hasan has filed a motion to reduce her sentence due to the amendment of the crack cocaine Guidelines which have now been made retroactive. I am no longer impartial when it comes to Hamedah Hasan. I asked the President to commute her sentence* and I appeared in a film** about her, urging that she be given relief. More recently, I was advised by the Justice Department that the commutation request was denied by the President, and I expressed my disgust about that decision to her lawyer.*** Therefore, IT IS ORDERED that I recuse myself from Hamedah Hasan’s case . . .

The case was reassigned to Judge Smith Camp.  Although initially agreeing that Ms. Hasan’s sentence ought to be reduced, Judge Smith Camp ultimately denied the motion on June 24, 2009 concluding that the law was against Hasan because of the highly intricate way the statutes defined “original sentence” for purpose of determining whether the amendments applied. Judge Smith Camp’s decision was correct in all particulars, although her heart was certainly not in it.

The second application for clemency followed on or about February 11, 2010 and a national campaign was begun to free Hasan. See, e.g., here (scroll down). So far as I know, that clemency application was never ruled upon.

On November 7, 2011, and applying the 2011 amendments to the “crack” Guidelines, and based upon the government’s stipulation, Judge Smith Camp reduced Hasan’s sentence of 324 months (my 2002 sentence compelled by the en banc opinion of the Court of Appeals) to 262 months. With credit for good time, Hasan was released a few minutes before 9 a.m. on Feb. 7, 2012. See here for a poignant account of that release. She had served between 18 and 19 years in federal prison having convinced everyone with knowledge that she had been fully rehabilitated long before. The child that Hasan gave birth to in prison was nearly an adult. The clemency provisions of the Constitution and our laws on clemency had failed Hasan and the rest of us. Her treatment was merciless rather than merciful.

President Obama and Attorney General Holder

It is worth remembering that clemency is entrusted to the President under the Constitution. Article I, Section 2, Clause 1 of the Constitution. (The President “shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.”) Clemency is not some incidental matter found in some long forgotten phrase in some dusty statute.

President Obama and Attorney General Holder have known for a long time that the clemency process was a sham.  For example, in 2010, Margaret Love, former U.S. Pardon Attorney (1990-1997), warned President Obama and Attorney General Holder that “To date, President Obama has taken no steps to reform and reinvigorate a pardon process that has, in Justice Anthony Kennedy’s words, been ‘drained of its moral force.'” Margaret Colgate Love, THE TWILIGHT OF THE PARDON POWER, 100 Northwestern University, School of Law, Journal of Criminal Law & Criminology, 1169 (2010). Ms. Love asked: “Why has the president’s pardon power essentially ceased to function?”**** She provided objective and detailed answers to that question. Until this week, President Obama and Attorney General Holder ignored the red flags and did nothing.

Why do they act now?  I have my own cynical speculations, but they are only speculations. What I do know is this:  President Obama and Attorney General Holder deserve no credit for doing the right thing at this late date. The federal criminal justice system has been sullied and harmed by their sloth-like approach to this pressing national problem of Constitutional dimensions. They deserve no praise. On the contrary, they deserve the same merciless treatment that Hasan received. It is time for them to shut up, stop crowing, and get on with fixing the problem once and for all.

RGK

*In 2003, I advised the Pardon Attorney that I vigorously supported the clemency application of Hasan. However, that application was denied by the Bush administration.

**I appeared in Reverend Melissa Mummert’s 2008 award winning documentary “Perversion of Justice” where I decried the failure to release Hasan. As the film documents, the title “Perversion of Justice” are my words. The link provides a short version of the documentary.

***That lawyer was Korey Reiman, whose young head is as bald as my old one. Korey began to help Ms. Hasan as a law student and continued to assist her throughout the nearly 20 years that followed. Korey makes me proud to be lawyer.

****For clemency statistics for each President, see here.

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