Tag: clemency

Study measures gap between availability and delivery of “second chance” relief

Professor Colleen V. Chien of Santa Clara University has published a major empirical study in the Michigan Law Review that examines the gap between eligibility for and actual delivery of relief from contact with the criminal justice system, a construct she calls the “second chance gap.” (The term is defined with examples here.) Last week, Chien led a team of law students, researchers and data analysts from Santa Clara University in launching the Paper Prisons Initiative, a project that draws on her study’s methodology to estimate this gap for each state’s record relief laws.

During the current wave of criminal record reforms that began around 2013, every state legislature has taken steps to chip away at the negative effects of a record through authorizing or expanding expungement, sealing, and other forms of record relief. At the same time, it has become evident that bureaucratic and structural obstacles prevent many of these laws from achieving their full promise—particularly when they require a potential beneficiary to navigate a complex and burdensome judicial or administrative process.

Last June, Professors Sonja B. Starr and J.J. Prescott published the first broad-based empirical study of a state law limiting public access to criminal records, revealing that just 6.5% of those eligible for relief in Michigan successfully completed the application process within five years. This conclusion has given additional impetus to the movement to make record-sealing automatic: six states now authorize “clean slate” relief for a range of conviction records, 16 states do so for non-conviction records, and clean slate campaigns are underway in several additional states.

In “America’s Paper Prisons: The Second Chance Gap,”  Professor Chien provides a more general perspective on the gap between eligibility and delivery of second chance relief documented for Michigan by Starr and Prescott. In her article, Chien looks at three forms of relief from contact with the criminal justice system—record-clearing, restoration of voting rights, and shortening prison sentences. Based on her analysis, the paper concludes that in many cases only a small fraction of those eligible for relief (usually less than 10%) have received it. Most notably, she uses novel data collection and analysis to estimate that at least 20 to 30 million American adults have non-conviction records that appear to be clearable under existing law but that have not been cleared. In follow-up state-specific papers available on the Paper Prisons Initiative website, she and her team have estimated the second chance expungement gap in convictions relief for a number of states.

I.

The first part of “America’s Paper Prisons” explores the reasons for the “second chance gap”:

In the same way that the accused remain innocent until proven guilty in the U.S. criminal justice system, many second chance programs require defendants to “prove” that they deserve second chances before awarding them. As such, getting one’s second chance through petition-based processes may include enduring a bureaucratic process, amassing information through a variety of sources, and being evaluated by an adjudicative or administrative body. The high cost of doing so in many cases may be insurmountable.

Chien divides the barriers that contribute to the second chance gap into three categories: administrative barriers, like informational and transactional costs; structural barriers, like a requirement to pay court debt and participate in a formal court hearing; and substantive barriers, like perceptions that the costs of the process outweigh its benefits.[1]

II.

The second part of Chien’s paper estimates the second chance gap for an assortment of relief mechanisms, drawing on both original data collection and secondary sources. Chien uses two metrics: the “uptake gap,” which measures the share of individuals over time who are eligible and have not applied or not received relief; and the “current gap,” which looks at the share of individuals at the certain moment in time who are eligible but have not received relief. Her analysis shows, on a nearly uniform basis, that only a small percentage of eligible individuals obtain relief in petition-based programs.

The relief mechanisms she studies confer different benefits, are animated by differing policy objectives, and vary in eligibility criteria and administrative process. Still, a general pattern is clear across the following second chance gaps that Chien presents:

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Florida’s vote restoration process held unconstitutional

In a strongly-worded opinion, a federal judge has ruled that Florida’s method of restoring voting rights to individuals convicted of felonies violates the First and Fourteenth Amendments.  In Hand v. Scott, a suit brought by seven individuals either denied restoration of rights by the State Clemency Board or ineligible to apply, U.S. District Judge Mark E. Walker held that Florida’s “arbitrary” and “crushingly restrictive” restoration scheme, in which “elected, partisan officials have extraordinary authority to grant or withhold the right to vote from hundreds of thousands of people without any constraints, guidelines, or standards,” violates rights of free speech and association, and risks viewpoint and other discrimination.

As reported in this local press article, Governor Scott’s office issued a statement late Thursday, hinting at an appeal.  Scott was the principal architect of the current system that requires all applicants for clemency to wait at least five years after they complete their sentences, serve probation and pay all restitution, before they may be considered for restoration of the vote and other civil rights.  Throughout his 43-page ruling, Judge Walker cited the arbitrariness of Florida’s system, noting that people have been denied their voting rights because they received speeding tickets or failed to pay child support.

Scott and the Cabinet, meeting as a clemency board, consider cases four times a year, and usually fewer than 100 cases each time. It can take a decade or longer for a case to be heard, and at present the state has a backlog of more than 10,000 cases. Scott imposed the restrictions in 2011, soon after he was elected, with the support of three fellow Republicans who serve on the Cabinet, including Agriculture Commissioner Adam Putnam, now a leading candidate for governor. Scott’s actions in 2011 reversed a policy under which many felons, not including murderers and sex offenders, had their rights restored without application process and hearings. That streamlined process was instituted in 2007 by former Gov. Charlie Crist, then a Republican and now a Democratic member of Congress.

The context in which the case was decided is described in this NPR article.  Last month, Florida elections officials approved a November ballot measure that would automatically restore voting rights to people convicted of felonies who have completed their sentences, with exceptions for murder and serious sex offenses.

Life sentence is “slow death penalty”

The 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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Pardon Attorney says clock is ticking on Obama clemency initiative

h2_31.132.34The Justice Department is urging lawyers for federal prisoners to move quickly to file clemency petitions for their clients, lest the clock run out before the end of the President’s term.   U.S. Pardon Attorney Deborah Leff told volunteer lawyers in a video seminar last week that petitions not submitted until Obama’s final year may not be considered, at least by him.  As reported by Greg Korte of USA Today, Leff suggested that lawyers might be spending too much time briefing cases, and she encouraged them to file even if they have not been able to obtain all documents.

“While I greatly admire your legal skills, this is not the time to prepare a treatise of hundreds of pages,” she told the lawyers.

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Should clemency substitute for the rule of law? “A Modest Proposal” says no

We cross-post a recent comment about the Obama clemency initiative from Professor Doug Berman’s Sentencing Law and Policy blog because it proposes to supplement the constitutional pardon power with a relief mechanism built into the legal system (there, a sentence reduction by the court rather than presidential commutation).  It reflects the institutional and practical concerns of Enlightenment philosopher Cesare Beccaria, who proposed in 1764 that

Clemency is a virtue which belongs to the legislator, and not to the executor of the laws; a virtue which ought to shine in the code, and not in private judgment.

Beccaria’s view that clemency should “shine in the code” has a special resonance where collateral consequences are concerned since pardons have become so rare in recent years. Indeed, Judge John Gleeson might have invoked Beccaria when he expunged the conviction of a woman who was unable to find employment because of her criminal record.  We intend to keep arguing in this space for a statutory restoration remedy for the federal system, whatever form it may take.    Read more

Obama clemency process reportedly “more backlogged than it was before”

USA Today reports that unexpected administrative complications continue to delay the clemency initiative launched by the Obama administration last year.  More than a year after the Justice Department sought assistance from private organizations in identifying federal prisoners deserving of sentence commutation, that ancillary process has submitted only 31 cases for favorable presidential action.  In light of the fact that more than 1500 volunteer lawyers have been working since last fall on cases assigned by Clemency Project 2014, this modest number is surprising.

Lawyers involved in the effort say the year-old clemency initiative has been hampered by the complexity of the cases and questions about the eligibility criteria, which may still be too strict to help most of the prison population.

The result is a system that appears even more backlogged than it was before the initiative began.

President promises a more “open” pardon process, more pardon grants

1024px-Pascal_Dagnan-Bouveret_(1852-1929)_-_Les_Bretonnes_au_pardon_-_Lissabon_Museu_Calouste_Gulbenkian_21-10-2010_13-52-01During a Town Hall in South Carolina on March 6, President Obama spoke for the second time in recent weeks about his intention to use his pardon power more generously in the final two years of his term.

Responding to a criminal defense attorney who asked what she could do to “increase the number of federal pardons,” the President explained that he was taking a “new approach” to pardons after receiving surprisingly few favorable recommendations from the Justice Department during his first term.  He said he had asked the Attorney General to “open up” the pardon process, and to work with advocacy groups and public defenders to make people more aware of the availability of this relief:

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‘Tis the season for . . . . some presidential forgiveness

It’s that time of year again.  Odds are that sometime in the next two weeks President Obama will issue some pardons and commute some prison sentences.  I have never quite reconciled myself to the unfortunate and ahistorical  association of pardoning with the silly turkey ceremony (the Obama girls were right to roll their eyes) and Christmas gift-giving, the result of decades of presidential neglect and sometime Justice Department sabotage of the power.  But now that the season for forgiveness is upon us, I can’t wait to see what’s underneath the tree.

It was my fondest hope during the 2008 campaign that this president would want to revive the practice of pardoning, like Jerry Brown in California and Pat Quinn in Illinois, and restore a degree of regularity and accountability to the federal pardon process.  But so far President Obama has issued only 52 full pardons, making him the least generous full-term president in our Nation’s history.  And so far there is no indication that he intends to reinvigorate the federal pardon process, as Justice Anthony Kennedy urged in an iconic speech to the American Bar Association more than a decade ago, and as scholars and practitioners have regularly urged in less exalted settings ever since.  Nor has his Administration proposed any alternative procedure by which individuals with federal convictions can avoid or mitigate collateral consequences, like the set-aside authority in the Youth Corrections Act that was repealed in 1984.

But there is some reason for optimism even this late in the game.  President Obama’s evident willingness to use his constitutional power to reduce long drug sentences will hopefully have a spillover effect on the other half of the clemency caseload, the applications for full pardon from people who have long since served their sentences and gone on to live productive and law-abiding lives.  There are more than 800 applications for pardon pending in the Justice Department, many from people convicted decades ago whose lives of service have been exemplary.  They deserve something more than a gambler’s chance at forgiveness.

The “president’s idle executive power” and collateral consequences

In their Washington Post op ed on the President’s neglect of his pardon power posted earlier on this site, Rachel Barkow and Mark Osler are critical of the Justice Department’s us-department-of-justice-squarelogobureaucratic process for processing applications for executive clemency, which they argue takes a very long time and yields very little.  (The New York Times editorialized last year in a similar vein about how DOJ has effectively sidelined the president’s power as a tool for justice for more than 20 years.)  Barkow and Osler ask why Justice considered it necessary or wise to farm out the processing of thousands of petitions from federal prisoners to a private consortium called Clemency Project 2014, rather than reform the official process:  “such a short-term program does nothing to fix the problematic regular clemency process that will survive this administration unless action is taken.”

Barkow and Osler focus on sentence commutations, and not on the other common type of clemency grant: a full pardon, typically sought by those who have fully served their court-imposed sentences, to avoid or mitigate collateral consequences.  In addition to the thousands of prisoner petitions awaiting consideration by DOJ’s Pardon Attorney, there are now more than 800 petitions for full pardon pending in the Justice Department.  Most of these petitions were filed by individuals who completed their court-imposed sentences long ago but remain burdened by legal restrictions and social stigma.  A majority of the pending petitions were filed years ago and have long since been fully investigated.  What can be holding things up?

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