Tag: Michigan

Michigan sex offender registration amendments held unconstitutional

A federal appeals court has concluded that Michigan’s amendments to its Sex Offender Registration Act (SORA) “impose[] punishment” and thus may not constitutionally be applied retroactively.  See Does v. Snyder, No. 15-1536 (6th Cir. Aug. 25, 2016).  Here is the concluding analysis from the Sixth Circuit’s unanimous panel decision reaching this result: So, is SORA’s actual effect punitive?  Many states confronting similar laws have said “yes.”  See, e.g., Doe v. State, 111 A.3d 1077, 1100 (N.H. 2015); State v. Letalien, 985 A.2d 4, 26 (Me. 2009); Starkey v. Oklahoma Dep’t of Corr., 305 P.3d 1004 (Okla. 2013); Commonwealth v. Baker, 295 S.W.3d 437 (Ky. 2009); Doe v. State, 189 P.3d 999, 1017 (Alaska 2008).  And we agree.  In reaching this conclusion, we are mindful that [consistent with the Supreme Court’s holding in Smith v. Doe, 538 U.S. 84, 92 (2003)] states are free to pass retroactive sex-offender registry laws and that those challenging an ostensibly non-punitive civil law must show by the “clearest proof” that the statute in fact inflicts punishment.  But difficult is not the same as impossible. Nor should Smith be understood as writing a blank check to states to do whatever they please in this arena. A regulatory regime that severely restricts where people can live, work, and “loiter,” that categorizes them into tiers ostensibly corresponding to present dangerousness without any individualized assessment thereof, and that requires time-consuming and cumbersome in-person reporting, all supported by — at best — scant evidence that such restrictions serve the professed purpose of keeping Michigan communities safe, is something altogether different from and more troubling than Alaska’s first-generation registry law.  SORA brands registrants as moral lepers solely on the basis of a prior conviction.  It consigns them to years, if not a lifetime, of existence on the margins, not only of society, but often, as the record in this case makes painfully evident, from their own families, with whom, due to school zone restrictions, they may not even live.  It directly regulates where registrants may go in their daily lives and compels them to interrupt those lives with great frequency in order to appear in person before law enforcement to report even minor changes to their information. We conclude that Michigan’s SORA imposes punishment.  And while many (certainly not all) sex offenses involve abominable, almost unspeakable, conduct that deserves severe legal penalties, punishment may never be retroactively imposed or increased.  Indeed, the fact that sex offenders are so widely feared and disdained by the general public implicates the core countermajoritarian principle embodied in the Ex Post Facto clause.  As the founders rightly perceived, as dangerous as it may be not to punish someone, it is far more dangerous to permit the government under guise of civil regulation to punish people without prior notice.  Such lawmaking has “been, in all ages, [a] favorite and most formidable instrument[] of tyranny.” The Federalist No. 84, supraat 444 (Alexander Hamilton).  It is, as Justice Chase argued, incompatible with both the words of the Constitution and the underlying first principles of “our free republican governments.” Calder, 3 U.S. at 388–89;accord The Federalist No. 44, supra at 232 (James Madison) (“[E]x post facto laws . . . are contrary to the first principles of the social compact, and to every principle of sound legislation.”). The retroactive application of SORA’s 2006 and 2011 amendments to Plaintiffs is unconstitutional, and it must therefore cease.   Read more

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

During 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: [W]hen I came into office, for the first couple of years I noticed that I wasn’t really getting a lot of recommendations for pardons that — at least not as many as I would expect. And many of them were from older folks. A lot of them were people just looking for a pardon so they could restore their gun rights. But sort of the more typical cases that I would have expected weren’t coming up.   So I asked Attorney General Holder to work with me to set up a new office, or at least a new approach, inside the Justice Department. Because historically, what happened was the President would get a big stack of recommendations and then he could sign off on them — because obviously, I don’t have time to go through each request. And so what we’ve done now is open it up so that people are more aware of the process.  And what you can do is contact the Justice Department. But essentially, we’re now working with the NAACP, we’re working with various public defenders offices and community organizations just to make people aware that this is a process that you can go through. The President advised that “typically we have a pretty strict set of criteria for whether we would even consider you for a pardon or commutation,” and directed the inquirer to the Justice Department website where he said those criteria can be found. So my first suggestion would be to go to the Justice Department website.  If the person doesn’t qualify because they may have served time but there were problems when they served time, or if it was a particularly violent crime, or they may just not fit the criteria where we would consider it — a lot of what we’re focused on is non-violent drug offenses where somebody might have gotten 25 years, and she was the girlfriend of somebody and somehow got caught up, and since then has led an exemplary life, but now really wants to be able to start a new career or something like that.  That’s the kind of person, typically, that would get through the process. So, a couple of things about the President’s comments.  As in his BuzzFeed interview ten days ago, and as reported by Greg Korte in USA TODAY, the President seems genuinely willing to consider requests for full pardon from people who have completed their sentences and “led an exemplary life, but now really want[] to be able to start a new career.” This is good news. President Obama has taken a commendable interest in prisoner requests for sentence commutation, but his record of granting full pardons to date has been disappointing: Available statistics indicate that he has granted fewer full pardons than any full-term president since John Adams. On the other hand, the President’s “new approach” to handling clemency requests, and his promise of a more “open” pardon process seems so far not to have materialized.  In fact, the Justice Department’s pardon process appears to be more opaque and overburdened than ever before. This is largely because of the “clemency initiative” announced by the Attorney General in April of last year, which invited federal prisoners serving long prison terms to apply for commutation of sentence. Not surprisingly, many have accepted this invitation. The Washington Post reported on February 29 that “more than 35,000 inmates — about 16 percent of the federal prison population — have applied to have their sentences shortened under the Justice Department-led initiative,” either directly with the Office of the Pardon Attorney (OPA), or with the consortium of private organizations known as Clemency Project 2014.  Most of the applications are being processed through this private screening process.  The Post reports that “a complicated review process” has “slowed” the processing of this “massive influx of applications.”  After a full year, no grants have yet been made to applicants vetted by Clemency Project 2014, and according to the Post article it has to date submitted only 14 petitions to be considered for clemency. In addition to the thousands of prisoner petitions, more than 800 applications for full pardon have been filed with OPA, some of which have been fully investigated and awaiting disposition for some time.  While it is true (as the President said) that many pardon petitioners are interested in restoration of their firearms rights (there is no other way), or are simply seeking official recognition that they have paid their debt to society, many others are badly in need of relief from the harsh consequences of conviction in the workplace and in the community.   With DOJ resources and attention focused on commutation requests, pardon cases appear to have been put on the back burner, and the newly appointed Pardon Attorney has so far declined requests to meet or speak about this neglected aspect of her office’s workload. Never before in our history has the pardon power played a more important role in the justice system, and never before has the official pardon process seemed so dysfunctional.  It is understandable that the President would be reluctant to use an extraordinary constitutional power to address systemic problems with the legal system, but then one might expect to see him encourage legislative substitutes for pardon, such as the judicial certificates whose enactment in Illinois he himself secured a decade ago, or even the federal expungement proposal sponsored by Senators Cory Booker and Rand Paul.  The Justice Department has available to it statutory authority for seeking sentence reduction from the courts, but it has been unwilling to use it except for prisoners who are dying or completely disabled. President Obama’s comments expressing impatience with the output of the Justice Department’s pardon process are eerily reminiscent of President Bill Clinton’s comments expressing frustration with the pardon process shortly before the end of his term: I have done–I haven’t seen the final numbers, but before the last batch at least, I had done fewer than any President in almost 30 years. And part of that, frankly, is the way the system works, something I’m not entirely satisfied with.   The consequences of President Clinton’s dissatisfaction with the official pardon process at the end of his term are well known.  President Bush experienced a similar disappointment in the official process, and attempted to warn his successor.  George W. Bush, Decision Points 105 (2010)(““On the ride up Pennsylvania Avenue on Inauguration Day, I told Barack Obama about my frustrations with the pardon system. I gave him a suggestion: announce a pardon policy early on, and stick to it.”) Let us hope that there is still time before the end of his term for President Obama to get what he wants from the Justice Department’s pardon process, something Presidents Clinton and Bush were not able to do, or to put in place a substitute for it.  If past is prologue, this will not happen if the Justice Department is left to its own devices. Getting the Justice Department’s pardon process to deliver a substantial number of favorable recommendations, whether in commutation or pardon cases, will take direct hands-on intervention from the White House, by people who have an understanding of how the process can and should work to serve the presidency as well as the American public.  Otherwise, one can predict only a token number of commutation grants and a scrum of pardon favor-seekers outside the White House Counsel’s door in the final days of President Obama’s term.  He can’t say he wasn’t warned.     Read more

Moral panic over sex offenses results in cruel and self-defeating overpunishment

National Lawyers Guild Review Editor-in-Chief Nathan Goetting has published a thought-provoking piece in the most recent issue of the Review, commenting on America’s “moral panic” over sexual offenses, which has “created self-defeating policies, unconstitutional laws, and cruel punishments.”   Among those punishments are a plethora of collateral consequences that stigmatize and shame without regard to actual risk.  We reprint the editorial here in its entirety, with permission.       It should go without saying that human sexuality is rife with complexity and mystifying contradictions. It’s a puzzle palace from which all sorts of behaviors—routine, bizarre, and sometimes dangerous—can emanate. Yet our criminal laws and procedures regarding sex crimes respond to this swirling welter of incomprehensible impulses with stubborn and self-defeating simplicity. We choose to punish that which we fear to understand, as if learning what motivates the behavior is to show a little too much sympathy and solidarity with “perverts,” toward whom only contempt can be shown. As with suspected terrorists since 9/11, our mercilessness leaves no room for anything else, not even enlightened self-interest. I can think of no area of the criminal law, except perhaps international terrorism, into which contemporary American society has terrified itself into more ignorance than this. One of the guiding principles of western philosophy, etched in same Greek language spoken by Socrates and Plato into Apollo’s shrine at Delphi, is the maxim “Know Thyself.” When it comes to the darker side of human sexual conduct, we’d rather not. To do so will almost certainly force us to reckon with the fact that many of us aren’t the neat and tidy sexual beings we’ve convinced ourselves we need to be. For a dangerous minority, certain impulses emanating from this darker side—dark in the twofold sense of being both dangerous and unknown—result in obvious and devastating social harms, especially against children. Such atrocities against the innocent and vulnerable inevitably cause panic and fury among adults charged with protecting them. However understandable these emotions are among those victimized by these crimes, allowing them to form the bases of our law and policy can only be self-defeating. The proper response to these harms is to harness the spirit of inquiry and problem-solving to discern their ultimate causes so as to better prevent them. The drafting and enforcement of our criminal sexual conduct laws, particularly those targeting crimes against children, are driven by a powerful collective feeling of visceral revulsion. Our shared emotional response to these crimes has created self-defeating policies, unconstitutional laws, and cruel punishments. We aren’t reasoning toward justice and prevention. We’re raging toward vengeance—and are abandoning basic constitutional values in the process. We suffer from a problem as ancient as it is apparently incurable— how to prioritize enlightenment over prejudice and devise a system capable of fairly judging a small and intensely hated minority. Only in this instance the problem is especially acute because the rancor toward the minority group is especially virulent. Sex offenders are the safest and easiest people to hate. Politicians, a category that certainly includes judges, never lose by condemning them and never win by coming to their defense. To argue too forcefully even for core legal protections afforded in other types of criminal cases is, in many contexts, to risk ostracism and raise suspicion. For this reason, politicians routinely lapse into self-serving demagogy, often deploying morally charged and unhelpful metaphysical terms like “evil” as substitutes for scientific or clinical concepts that might inform and enlighten. Demonizing sex offenders has become a reliable and effective campaign strategy in judicial elections. To appear “soft” toward a sex offender is to draft a campaign ad for one’s next opponent. 2014 was perhaps the best year yet for cynical judicial campaign ads showing how inflexibly punitive incumbent judges have been toward sex offenders. In my own state, Michigan, a television ad ran on behalf of two sitting state Supreme Court justices, Brian Zahra and David Viviano, entirely devoted to convincing viewers that the justices have “thrown the book at child predators” and that they will “keep affirming tough sentences.” Sex crimes represent a tiny fraction of that court’s docket, but the ad would have you think that Zahra and Viviano together composed the state’s only bulwark against an onslaught of slavering pedophiles. In “Disgust, Dehumanization, and the Courts’ Response to Sex Offender Legislation,” Alexandra Stupple argues that the fears such ads engender and exploit are radically out of proportion to the actual dangers we face. Friends and family members are far more likely to sexually abuse children than strangers are. Stranger child predator cases are actually quite rare, especially when measured against public perception, and recidivism rates are lower for these types of crimes than those for many other violent offenses. The popular image of the lurking child molester is largely a “myth . . . which serves to distort perceptions of everyday risks.” This isn’t to say that such attackers don’t exist or that they don’t inflict incalculable pain and anguish when they strike. But stranger sex crimes, including those against children, don’t occur with the kind of epidemic frequency one would expect given the hysterical laws and practices that have been created to combat them. Stoking panic this way helps judges and legislators get elected. Stupple explains the psychological underpinnings that have caused and continue to sustain the moral panic against child sex offenders. Just because politicians luxuriate in chest-thumping rhetoric against sex offenders doesn’t mean that they don’t take their own message seriously. Stupple argues that the “disgust” legislators and judges feel toward sex offenders has led to their dehumanization in our courts. This dehumanization has in turn resulted in a failure in the courts’ essential function of protecting the individual liberties of criminal defendants. The more despised the accused, the more vital it is to our constitutional scheme that courts protect him or her from any temptations legislators might feel toward circumventing their rights. The failure of the courts in this regard has resulted in the continuation of a host of inhumane and ineffective punishments. These include massive, over-inclusive sex offender registries, which do far more to stigmatize and shame offenders, many of whom pose only a minimal recidivism threat, than protect the public. In many instances, inclusion on the registry is simply an internet-friendly method of public branding, what puritan judges would’ve done to Hester Prynne had laptops been available. Judges have also imposed and upheld a vast array of behavioral and residency restrictions on released sex offenders. They’re applied broadly and on a massive scale, often in purely punitive ways that make assimilation back into society even more difficult. Perhaps most troubling, both ethically and constitutionally, is the rise of civil commitment laws that redirect inmates who have served their sentences into mental institutions. These laws often function as de facto sentence-extenders. They turn medical professionals into jailers and punish the same individual twice, and the second time indefinitely, for the same offense. Stupple doesn’t deny that there are a certain number of repeat-offending sexual psychopaths from whom society must be protected. Rather, she argues that the response to this threat has been hysterical, disproportionate, and emotional rather than rational and effective. It has inflicted the double harm of exacerbating old problems, such as mass ignorance, fear, and the reinforcement of stereotypes, while creating new ones, including a metastasizing system of widespread overpunishment. Our legislatures and courts have promoted myths, exaggerated bogeymen, and recklessly fanned the flames of thoughtless rage and panic. Read more

Michigan takes baby steps on criminal justice reform

Michigan spends one in five tax dollars on corrections so the state continues to explore strategies to safely reduce these costs.  In its most recent session, the legislature considered bold criminal justice reforms, but strenuous last minute objections from the Attorney General succeeded in halting much of the reform agenda. In the end, only a few reforms were implemented and most of them were passed in watered-down form. The new laws include (1) the establishment of a Criminal Justice Policy Commission; (2) narrow expansion of set-aside eligibility to victims of human trafficking; and (3) authorization for Certificates of Employability for prisoners who complete certain in-prison training programs.  A more ambitious (though still narrow) expansion of the set-aside law is currently on the Governor’s desk for signature.  These “baby steps” leave lots of room for improvement, but constitute a blueprint for future reform efforts. Sentencing reforms – why reform was suggested and what was actually achieved In 2013, led by consultants from the Council of State Governments, Michigan undertook an in-depth study of its sentencing system for its impact on public safety, recidivism, and state and local spending. The study included analysis of 7.5 million data records, and over 300 in-person meetings and calls with stakeholders, such as law enforcement officials and legislators. The study concluded that (1) people throughout Michigan with similar criminal histories and convictions get significantly different sentences; (2) the time a person will actually serve in prison or under supervision cannot be predicted; (3) resources are not prioritized to reduce recidivism; (4) high rates of recidivism generate unnecessary costs and public safety risks, and current funding does not adequately fund reentry programs; and (5) there is no effective mechanism to track sentencing outcomes. Reformers responded.  Leading the charge was Representative Joseph Haveman, a Republican representing one of the most conservative districts in the state. His proposals would have reduced the discretion of judges and the parole board, created consistency in sentencing and supervision, allowed certain offenders to leave prison on parole earlier, decreased probation time, and established swift and predictable sanctions for probation violations. Opposition came from those who wanted to keep the current level of judicial and parole board discretion, and from sheriffs who worried about higher costs to local jails. The strongest opposition came from Michigan Attorney General Bill Schuette, who sent letters to lawmakers urging them to reject the bills, claiming that they were being rushed through Michigan’s “lame duck” session.  In the end, the House “gutted” the bills and they died in the Senate. One residual part of Haveman’s package, however, soared through both chambers:  a Criminal Justice Policy Commission was established to review the effectiveness of sentencing guidelines, release and supervision policies, and the use of prisons and jails. Expansion of set-aside authority A set-aside, frequently called “expungement,” makes criminal records unavailable to anyone other than courts, law enforcement agencies, and certain agencies.  Until recently, persons were eligible for set-aside under Michigan law only if they had fewer than two prior “minor offenses,” a term that was very narrowly defined.  See Mich. Comp. Laws 780.621.   Amendments to this provision signed into law by the governor on January 12, 2014, enlarge the category of priors a person may and still remain eligible for set-aside, from “minor offenses” to “misdemeanors.”  (A traffic offense would not constitute a misdemeanor, unless it had been for operating while intoxicated).  In addition, a person convicted of not more than two misdemeanors and no felonies may apply to have either or both of the misdemeanor convictions set aside.  As a result of amendments to 780.621 enacted in the fall of 2014, victims of human trafficking are now permitted to apply to set aside a conviction committed as a result of the trafficking. This new legislation allows more people to apply for a set-aside, but does not go as far as Minnesota’s new law, which extends expungement to a broader range of offenses, requires data-mining companies to honor expungements, addresses victimization and housing evictions, and protects landlords and employers.   [NOTE:  Another law enlarging the basic set-aside authority was signed by the governor in early 2015.  Under this bill, which has been in the works for years, a person who is convicted of not more than one felony offense and not more than two misdemeanors offenses may petition the court to set aside the felony offense.] Certificates of Employability Lastly, a bill authorizing a Certificate of Employability for certain persons currently serving a prison term in Michigan’s Department of Corrections provides some protection against liability for hiring or renting to the holder of a Certificate.  Under PA 360 of 2014, an employer or other person may introduce a Certificate as evidence of due care in hiring, retaining, licensing, leasing to, admitting to a school or program, or otherwise transacting business or engaging in activity with someone who has the Certificate, if the employer knew of the Certificate when hiring or otherwise engaging with its holder.  Like other states with similar employer protections–such as Ohio,[2] Tennessee,[3] and North Carolina,[4] and New York[5] — the Michigan law protects anyone who knows about the Certificate. However, in contrast with those states, most Michigan citizens with a criminal record are not eligible for a Certificate.[6]  The Michigan Chamber of Commerce, which opposes a ban-the-box proposal for job applications, supported the Certificate legislation. The Michigan Department of Corrections is authorized to issue Certificates only to incarcerated people no more than 30 days before release, and only if all of the following apply: (a) The prisoner successfully completed a career and technical education course; (b) The prisoner received no major misconducts during the two years preceding his or her release; (c) The prisoner received no more than three minor misconducts during the two years preceding his or her release; and (d) The prisoner received a “silver level” or better on his or her national work-readiness certificate, or a similar score as determined by the Department on an alternative job skills assessment test administered by the Department.  The Certificate is only valid for 4 years after issuance. Because nearly 80% of Michigan felony offenders since 1999 have been sentenced to community-based sanctions, the vast majority of Michiganders with a felony record will not be eligible for a Certificate. Also ineligible are those who are no longer incarcerated, so that the 163,861 people who have moved from the Department of Corrections to parole since 2000 will be unable to qualify, and neither will people with federal convictions or convictions from other jurisdictions. Finally, people currently at MDOC will be eligible only if they have access to education and training programs, which vary by facility throughout the state. Still, to those who are currently incarcerated by the Department of Corrections, receive education, get training, and are awarded a work-readiness certificate, the Employability Certificate may be helpful – if only for 4 years. Heather Garretson is a Scholar in Residence at City University of New York Law School, the premier public interest law school in the country.  She is a former federal prosecutor, defense attorney, and Professor of Law at Western Michigan University Cooley Law School in Grand Rapids, Michigan. [1] House Bill 5025, MCL 780.621,amended [2] Ohio Rev. Code Ann § 2953.25(G). [3] Tenn. Code Ann § 40-29-107(n)(1). [4] N.C. Gen. Stat. § 15A-173.5 [5] N.Y. Exec. Law § 296(15) [6] Iowa and Ohio have certificates that are similarly limited to prisoners, but neither of them include protections against negligent hiring. See Iowa Code § 906.19(2), Ohio Rev. Code Ann. §§ 2961.21.     Read more

Jerry Brown takes back a pardon . . . really?

Jerry Brown reportedly regretted one of his 105 Christmas Eve pardons, after learning from an LA Times article that the recipient had recently been disciplined by federal financial regulators.  He therefore announced that he was rescinding his grant, claiming that the pardon was not yet final because the Secretary of State had not signed the document evidencing it. This is not the first time that a governor or president has had second thoughts about a pardon, but it is unusual for a chief executive to attempt to undo one that has been made public.  Governor Brown’s attempt to retract the pardon may or may not be effective, but it certainly reflects unfortunate disarray in the administration of the pardon power in California for which other deserving pardon candidates may end up paying. Glen Williams Carnes was pardoned on December 24 for a 1989 drug-related offense committed while he was a teenager, for which he spent three years on probation.  In the pardon document, Brown stated the Carnes had received an order from the Orange County Superior Court “evidencing … he has lived an honest and upright life, exhibited good moral character and conducted himself as a law-abiding citizen.” This judicial order, styled a “Certificate of Rehabilitation,” is the first step in the California pardon process, after which applications are submitted by the governor’s office for a second vetting by the Board of Parole Hearings. Later that same day, the Times reported that [F]ederal records show Carnes was disciplined by investment regulators in May 2013. He signed a consent settlement with the Financial Industry Regulatory Authority that states he agreed to be barred from financial investment. The document alleged that he hid an outside business deal and provided investigators with “false and misleading statements that minimized and mischaracterized his involvement.” Carnes did not admit guilt. Securities and Exchange Commission records show the business deal that led to the sanction became what is now Carnes’ company: Global Vision Holdings, a publicly traded corporate umbrella of which Carnes is listed as CEO, chairman of the board and chief financial officer. Currently, Global Vision owns The Place Media, which publishes local magazines placed in hotels, Mamma’s Best, a line of organic food products, and a financial consulting firm. However, SEC records show Global Vision’s last financial report was made in late 2013. In April, it informed the SEC it could not complete its year-end 2013 filing in time “due to recent turnover in its accounting department.” Upon learning from the newspapers of the FINRA sanctions, Governor Brown moved that same afternoon to withdraw the pardon, stating that he had relied to his detriment on the court’s order of rehabilitation, and that in any case the pardon had not yet become final: “This information was not disclosed by the applicant,” Brown’s spokesman, Evan Westrup, said in a written response to The Times. “Without the certificate of rehabilitation, this individual would not have been considered for a pardon. This particular pardon has not yet been attested by the Secretary of State and it has subsequently been withdrawn.” For his part, the disappointed Mr. Carnes told the Times that he planned to contact Brown’s office “first thing on Friday morning as tomorrow is Christmas, to refute your allegations.” The Associated Press reported that Carnes said he was unaware he needed to report the regulatory settlement on his clemency application. Stay tuned for further details in this most recent pardon soap.  In the meantime, we have a couple of comments on the episode.  First of all, it is not at all clear that the Governor’s effort to retract a pardon he had already announced, on grounds that a ministerial formality had not yet been performed, will be held effective if challenged.  The Supreme Court of Michigan recently invalidated a similar attempted retraction by Governor Granholm, there of a commutation she later regretted after protests by his victim’s family.  See Makowski v. Governor, 495 Mich. 465; 852 N.W.2d 61 (June 3, 2014).  See also Marbury v. Madison, 5 U.S. 137 (1803).  We don’t know if Mr. Carnes plans to take his case to court — though the possibility of further embarrassment may discourage him.  (This is apparently why Isaac Toussie didn’t contest President George W. Bush’s retraction of his pardon under similar circumstances — a pardon that was also granted apparently without adequate staffing.) The Carnes episode also reflects poorly on the present state of the California pardon process, and on its reliability in service to the Governor.   Carnes reportedly told the Times that “he went through an extensive background check that took over a year making him eligible for his gubernatorial pardon.”   However, that background check (presumably by the BPH and the governor’s staff) evidently didn’t dig very deep to reassure the Governor that Carnes was a suitable recipient of his public mercy:  A simple Google search by CCRC staff finds Carnes listed on the website of the CFA Institute as an individual “currently serving public disciplinary sanctions for violations of the CFA Institute Code of Ethics and Standards of Professional Conduct or who have resigned their memberships while under investigation for industry-related misconduct.” Nor was the court’s certification of Carnes’ rehabilitation a very effective filter in this case. Carnes was reportedly granted his COR in August 2013, several months after the FINRA sanctions were imposed.  It is unclear whether the court knew of the sanctions when it granted the COR, though they would certainly seem to have reflected poorly on Mr. Carnes’ rehabilitation in that context as well. Finally, while the retraction is unfortunate for Mr. Carnes, it is even more unfortunate for others who are seeking a pardon from Governor Brown, since it is inevitable that an episode like this may dampen his general enthusiasm for pardoning.  This is why it is so very important that those staffing pardons for an elected official do a thorough investigation and be very sure there is nothing about a case that might cause embarrassment.  Neither the BPH nor the court appears not to have done a very thorough job in this case, if our own crude Google-limited investigative efforts are any guide.  And now others awaiting the Governor’s favor may suffer for this poor staffing. We will have more to say in this space about the administration of the pardon power in California.  We believe that its basic framework, notably its reliance on a prior judicial finding of rehabilitation, could be adapted into a comprehensive functional relief system second to none in the country. Read more