Should DOJ be gatekeeper of president’s pardon power?

Last week Sentencing Law & Policy highlighted a new article by CCRC director Margaret Love that examines the Justice Department’s historical role in administering the president’s pardon power.  The article (“Justice Department Administration of the President’s Pardon Power: A Case Study in Institutional Conflict of Interest”) concludes that an institutional conflict of interest has made Justice a progressively less responsible and effective steward of the constitutional power, and urges the president to relocate the pardon program to the Executive Office of the President.  The article, to be published in a forthcoming issue of the University of Toledo Law Review, can be downloaded here.  Here is its abstract:

The president’s constitutional pardon power has been administered by the attorney general since before the Civil War, but this arrangement has never been adequately explained or justified. On its face it appears rife with conflict of institutional interests: how could the agency responsible for convicting people and putting them in prison also be tasked with forgiving them and setting them free? In spite of these apparently antithetical missions, the Justice Department managed the pardon program in a low-key and reliable manner for well over a century, staffing it with a handful of career lawyers operating on a shoestring budget, and churning out hundreds of favorable clemency recommendations each year for the president’s consideration. While there were occasionally controversial grants there were never scandalous ones, and the president was able to use his power to good effect in wartime and in peace.

It is only in the past two decades that questions have been raised about the integrity and functionality of the pardon process, focusing squarely on the agency and individuals standing as gatekeeper to the president’s power. President Obama’s decision in early 2014 to launch a large-scale clemency initiative, and the Justice Department’s unprecedented decision to rely upon a consortium of private organizations to manage it, make this a propitious time to consider whether the presidency is well-served by an arrangement making officials responsible for prosecuting crime the primary source of clemency advice.

This essay concludes that the culture and mission of the Justice Department have in recent years become determinedly and irreconcilably hostile to the beneficent purposes of the pardon power, and to its regular use by the president. The only way to deal with the institutional conflict that produced and perpetuates this situation is to transfer the pardon program to the president’s direct supervision in the Executive Office of the President. This move will have a variety of benefits, including facilitating the president’s ability to oversee the workings of the criminal justice system, for which he has a special responsibility under the Constitution. More specifically, it will introduce salutary political accountability to federal prosecutions through presidential oversight and potential revision. Finally, it will give the president control for the first time in decades over his own “benign prerogative.”

Book review: “The Eternal Criminal Record”

Nobody disputes that an enormous number of Americans have a criminal record.  For people with a criminal past, a segment of the population that in some cases faces a laundry list of social and economic challenges, these records define – and limit – their ability to reintegrate into the community.  This is a complex policy that has not received a fraction of the attention it deserves.

James Jacobs’ new book The Eternal Criminal Record (Harvard University Press, 2015) digs deeply into the issue with a nuanced analysis of how this system works.  Importantly, the book provides a step-by-step navigation though the process of how and when records are created, how they are shared for and, eventually, what these data can be used for.  What results is the most authoritative picture of how the pieces of the administrative universe of criminal history data fit together.

While criminal records can, and most often do, including information on past arrests, convictions and punishments, changes in the use and ownership of these files has changed the landscape.  These modifications are not necessarily all bad – for example, computerization and standardization have made instantaneous checks and intrajurisdiction data sharing possible – but they create significant challenges.  Some criminal data are part of the public domain, others are now owned by private companies.  Modernization cannot eliminate the creation and replication of errors- and these mistakes have meaningful consequences.

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Access to Individual Criminal History Information in India

 

imagesIndiaIndia, like the U.S., is a federal political system comprised of states. In both countries, the states have primary authority over creation, disclosure, use and collateral consequences of criminal records, albeit within a basic national framework. Police and courts both create and maintain criminal records required to carry out investigatory and adjudicatory functions. However, unlike in the U.S., Indian court records are not systematically available to the public and law enforcement agencies are generally prohibited from disclosing individual criminal history information for non-criminal justice purposes. There are no private information companies engaged in selling criminal background records to employers, landlords, volunteer organizations, and curious individuals.

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Amicus invited in federal expungement case

For those following developments in the federal expungement case currently pending before Judge John Gleeson in the Eastern District of New York, Jane Doe v. United States (Jane Doe II), the following order was entered by the court on August 6:

ORDER: Margaret Love, a nationally-recognized authority on collateral consequences and co-author of the treatise Collateral Consequences of a Criminal Conviction: Law, Policy and Practice (NACDL/West 2013), is respectfully invited to submit an amicus brief addressing the issues raised in my July 28, 2015 Order (i.e., the authority of the court to enter a certificate of rehabilitation and the appropriateness of doing so in this case) as well as any other matters that may be relevant to the adjudication of defendant’s motion.

The government’s brief is due on August 28, and petitioner’s brief is due September 11.  Argument is scheduled for September 18.  Meanwhile, no briefing schedule has yet been set in the appeal of Judge Gleeson’s May 21 expungement order in the first Jane Doe case.

Federal expungement case gets curiouser and curiouser

Visitors to this site are familiar with the expungement order issued by Federal District Judge John Gleeson on May 21.  See Jane Doe v. United States, now on appeal to the Second Circuit.  A second Jane Doe, a codefendant of the first, applied for expungement on June 23, and on June 29 Judge Gleeson ordered the government to show cause on or before August 28 why her application should not be granted.  A hearing has been scheduled for September 18.

Yesterday the Judge issued a new order directing the government to include in its briefing “its view as to whether I have authority to enter a certificate of rehabilitation in lieu of expungement, and if so, the appropriateness of entering such a certificate in this case.”

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Why should expungement be limited to “nonviolent” crimes? Dissecting the REDEEM Act (II)

The REDEEM Act currently in committee in the U.S. Senate provides the first authority for “sealing” federal criminal records since the repeal of the Youth Corrections Act in 1984.  As we described in an earlier post, the Act would provide significant relief from many of the collateral consequences imposed on those with a federal rap sheet.  But the Act’s limitation on eligibility to “nonviolent” crimes, together with its corresponding restriction on consideration of state priors, threaten to undermine the Act’s beneficent purpose — not simply by categorically excluding many deserving individuals from relief, but also by inviting endless wrangling over which particular individuals are deserving.

Increasingly, scholars and advocates are questioning the glib and thoughtless distinction politicians have for years drawn between violent and non-violent crimes for purposes of sentencing.  The unfairness of categorically excluding all offenses falling within a broad definition of violence, without regard to how long ago the conduct occurred or how minor, is compounded when the record sought to be sealed did not result in a conviction.

But perhaps the most persuasive reason for federal lawmakers to junk the distinction between violent and nonviolent offenses is a practical one, since it is frequently impossible to determine if a particular federal crime is violent or not, as the Supreme Court’s recent decision in Johnson v. United States demonstrates.  If the distinction must be retained, definitions need to be clarified lest disputes over coverage result in few people actually getting relief.  The good news is that the necessary fix is a simple one:  rather than defining vaguely which offenses are eligible for sealing, the REDEEM Act should define precisely which offenses are not.

We start with a description of the REDEEM Act’s eligibility criteria, then show why they will give the government an opportunity to frustrate the Act’s intent.  Indeed, a wag has described them as catnip for the litigious.

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President urged to make federal hiring fairer — but is the “ask” enough to get the right result?

A coalition of national advocacy organizations has again urged President Obama to implement a robust federal hiring policy to give people with a criminal record a fair chance to compete for federal agency and contractor jobs.[1]  In an open letter dated July 20, the coalition called upon the President to issue an executive order requiring employers to conduct a criminal records check only after a conditional hiring offer has been made, and to adhere to current EEOC guidance on considering the results of a records check.

The administration’s recent rhetoric indicates that it may be receptive to the coalition’s proposed reforms. On July 14, the President explicitly endorsed so-called “ban-the-box” policies in his speech on criminal justice reform at the NAACP annual convention:

Let’s follow the growing number of our states, and cities, and private companies who’ve decided to ban the box on job applications so that former prisoners who have done their time and are now trying to get straight with society have a decent shot in a job interview.

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Life sentence is “slow death penalty”

dc6f447a-1e48-41f2-9575-42e280e493bd-bestSizeAvailableThe Guardian has published a detailed account of a case in the queue awaiting consideration by the President for commutation of sentence.  Ray Bennett was convicted in 1991 of acting as a courier for a crack cocaine distributor, and sentenced to life in prison based on two prior state misdemeanors.  “The judge who sentenced Bennett did his duty reluctantly, saying the drug runners were ‘just country folks’ and not the major traffickers that Congress likely had in mind.”

Bennett has now served more than 24 years in prison, has an exemplary record of conduct while incarcerated, and has long since conquered the addiction to drugs that led to his conviction.  His clemency application was filed with the Pardon Attorney through Clemency Project 2014 in early April.  We reprint substantial portions of the Guardian article to show the kinds of cases that may be acted on by the President in coming months.

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Clemency is Not the Answer (Updated)

This piece was originally published in The Crime Report on July 13, and republished in revised form on July 16.

On Monday President Obama announced in a video address that he had commuted the sentences of 46 people sentenced to long prison terms for drug offenses.  His counsel, Neil Eggleston, stated that “While I expect the President will issue additional commutations and pardons before the end of his term, it is important to recognize that clemency alone will not fix decades of overly punitive sentencing policies.“

Mr. Eggleston added that “the President is committed to using all the tools at his disposal to remedy unfairness in our criminal justice system.” However, judging from his speech to the NAACP the next day, clemency is the only one of those tools that is calculated to result in any more prison releases.

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President declares U.S. a “nation of second chances” but issues no pardons

In commuting the sentences of 46 individuals serving long drug sentences, President Obama declared that America is a “nation of second chances” in a video address posted on the White House website.  But that sunny optimism about our country’s willingness to forgive hasn’t led him to grant very many pardons, the relief whose purpose is to restore rights and status to those who have fully served their sentences, to give them a second chance at first class citizenship.  Indeed, as Michael Isikoff reported the same day the commutations were issued, Obama’s 64 pardons are the fewest issued by any full-term president since John Adams.  Indeed, the President has commuted more in the past six months than he has pardoned in his entire time in office.

The President’s determination to reduce unjustly lengthy prison sentences is commendable and historically significant.  But it need and should not lead him to the neglect the other part of the clemency caseload, the petitions filed by individuals who have led exemplary lives for many years but are still burdened by severe collateral consequences and the stigma of conviction. Unfortunately those petitions appear to have have been shunted to the back burner in the excitement of the so-called “clemency initiative.”

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