Tag: Commentary

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 bureaucratic 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? Among the hundreds of pending petitions is one filed almost five years ago by Nigerian national Chibueze Okorie, who for the past 20 years has managed the prison ministry program at the Church of Gethsemane in Park Slope, Brooklyn.  Shortly after arriving in this country in 1989, Okorie was caught chauffeuring a heroin dealer in his taxi and went to federal prison for 18 months.  The New York Times reported in 2005 that Okorie “found God while serving his time and dedicated his life to helping current and former prisoners and their families.” Okorie is seeking a pardon of his only conviction to enable him to become a U.S. citizen, and his case for clemency has substantial support from members of the community and local politicians. His first petition was denied in 2008 by President George W. Bush, despite a racially-tainted DOJ recommendation that ultimately cost the then-Pardon Attorney his job.  An FBI investigation of Okorie’s current pardon application was completed several years ago, but no action has yet been taken on it by the President.  (I assisted Mr. Okorie in filing his second petition in 2010, and continue to represent him.) While Mr. Okorie and others like him wait, President Obama has issued no pardons for almost a year.  In fact, in his six years in office Obama has issued fewer pardons than any full-term president in history, despite his administration’s claimed support for reentry and restoration of rights.  There has also been no apparent effort by the Justice Department to develop a statutory substitute for pardon that would address the problem of collateral consequences for federal offenders without the necessity of presidential intervention. The federal government lags well behind many states in addressing issues of restoration of rights and status, as an NACDL report earlier this year documented. Two successive presidents have been embarrassed at the end of their terms by DOJ’s sluggish administration of the pardon power, which prompted end-runs around the regular process by hundreds of well-connected favor-seekers, and resulted in scandal for Bill Clinton and “frustration” and “disgust” for George W. Bush.  Will Obama permit DOJ a hat trick?  It is high time someone in the White House took an interest in what is going on in DOJ with the pardon caseload before it is too late. Read more about this topic: The New York Times: The Quality of Mercy Strained The Washington Post: Obama neglects his power to pardon George Lardner: Obama’s pardon power is underutilized Samuel T. Morison:  A no-pardon Justice Department    Read more

Minnesota project examines how different life would be with a criminal record

One in four people in the United States has a criminal record. It’s a record used by the vast majority of employers, legislators, landlords, and licensing boards to craft policies and determine the character of an individual.  In our electronic and data age, it typically does not disappear, regardless of how long it’s been or how far one’s come. The effect is an endless sentence, precluding countless opportunities to move on or move up in life. But what about the other 75%? We Are All Criminals is a documentary project that looks at the three in four people in the US who have the luxury of living without an official reminder of a past mistake.  Participants tell stories of crimes they got away with.  They are doctors and lawyers, social workers and students, retailers and retirees who consider how very different their lives could have been had they been caught; these confessions are juxtaposed with stories of people who were caught for similar offenses. The stories are of youth, boredom, intoxication, and porta potties. They are humorous, humiliating, and humbling in turn. They are privately held memories without public stigma; they are criminal histories without criminal records. The project includes a wide range of current professions and severity of past offenses: a pediatrician who experimented with explosives as a bored teen; a biophysicist who seriously assaulted a child when he was just one himself; a legislator who disarmed a cop; a corrections professional who sold meth; a social worker who tipped over a porta potty with a high school rival inside; a retailer who slashed her cheating fiancé’s tires; a medical researcher who tagged playground equipment; a counselor who gave her Klonopin to a friend who had difficulty sleeping. A photograph that protects the participant’s identity while attempting to convey individuality and personality accompanies every story; each is taken in the participant’s home, office, crime scene, or neighborhood. While there are some exceptions, the majority of the people interviewed recounted numerous times they avoided getting caught in criminal activity.  In most cases, only one of these instances has been cataloged. The first 80 of more than 200 interviews can be found online, at www.weareallcriminals.org. Viewers will find varying responses to recollections of transgressions: people who laughed throughout their interview (a mechanic who ‘liberated’ forty dollars worth of quarters from a parking meter with a single, drunken rifle shot); people who wept throughout theirs (a restaurant manager who had swiped extra money when swapping out her tips at a coffee shop); people who were terribly sorry for what they had done (a teacher who furnished alcohol to a minor); and those who can’t believe that something they did might be prosecuted (a research scientist who stole items ranging from salt and pepper shakers, to street signs, to a fire hydrant). I hope viewers also find a bit of themselves in the photos or stories of We Are All Criminals. For those who have had the luxury to forget, I hope they remember events that haven’t been used to define their character at life’s every opportunity and turn. I hope in that reflection, viewers take note of the context they may have allowed themselves (I was young, I was drunk, I was stupid, I was in a bad relationship, I gave it back anyway, no one got hurt, It wasn’t my idea) and acknowledge that others may have been in a similar situation but were caught. I hope some recognize the privilege they’ve experienced (the cop just told us to go home, the manager didn’t even question us, we didn’t have a police liaison in school—we went to the counselor if we got in trouble) and appreciate that not everyone has benefited from that same privilege. I hope that viewers reflect upon how very different their own lives might have been had they been burdened by a record, and consider the foreclosed futures of those who have been caught. In this way, We Are All Criminals seeks to challenge society’s perception of what it means to be a criminal and how much weight a record should be given, when we have all violated the law. It is also a commentary on the disparate impact of our nation’s policies, policing, and prosecution: many of the participants benefited from belonging to a class and race that is not overrepresented in the criminal justice system. It’s true: we are all criminals. But more importantly, we are all human. With that in mind, we must work to reduce our criminal code (over the last few decades, our criminal code has exploded in size; we can reel that back by reducing the criminalization of homelessness, mental illness, juvenile behavior, poverty, and drugs); support and increase restorative justice alternatives; reduce the collection, retention, and dissemination of criminal and juvenile records; create meaningful remedies to those records that allow people a true chance to move beyond their records; reduce the collateral sanctions attached to criminal records; and importantly, begin the dialogue change in your own community. We Are All Criminals isn’t just about background checks. It isn’t just about the choices we make of whom to interview or hire, rent to, grant licensure to, or allow to cast a ballot.  It is about how we view others measured by how we view ourselves. And some of us, perhaps one in four of us, may be in need of a second chance.   Read more