Tag: Obama

A tale of two (or three) pardoners from Illinois

Illinois Governor Pat Quinn spent his first and last days in office considering pardons.  On April 10, 2009, referring to the hundreds of cases left untouched by his impeached predecessor Rod Blagojevich, he declared that “Justice delayed is justice denied,” and promised that “My administration is fully-committed to erasing this shameful log jam of cases in a methodical manner and with all deliberate speed.” Quinn was as good as his word.  His interest in erasing the pardon backlog never flagged, even during his two reelection campaigns.  By the time he left office earlier this week, he had acted on more than 5,000 pardon applications and granted full pardons to 1,789 people, more than any other Illinois governor in history.  In his final week he also pardoned a man found innocent by the courts, making him eligible for compensation from the state, and commuted a number of prison sentences, freeing two men whose guilt had been drawn into question. Far from being critical, the press was full of praise for his courage and compassion.  It was a fitting way to ring the curtain down on a tenure that saw the pardon power restored to a respectable and fully operational role in the Illinois criminal justice system. Governor Quinn told the Tribune that he had tried throughout his time in office to rectify his predecessor’s indifference toward clemency requests: “there are a lot of cases where people made mistakes in their youth . . . and they shouldn’t have to suffer the rest of their life with the repercussions for jobs, for scholarships, for just their peace of mind. I understand that.” After the word got out that Quinn was interested in granting pardons, the rate of application increased, so that on his final day there were still 2,000 applications in the pipeline.  But all in all it was a record to marvel at. A majority of Quinn’s pardons involved non-violent crimes such as drug possession and theft, and came to his desk with a recommendation from the Illinois Prisoner Review Board. The PRB holds public hearings four times a year at which pardon applicants make their case for relief, and then makes confidential recommendations to the governor.  I have some familiarity with that process and those who manage it, and can attest to its accessibility, productivity, and integrity.  The PRB served Pat Quinn well, and it will serve his successor well. President Obama’s pardoning record presents quite a contrast.  So does the administrative apparatus that supports it, and the public reaction to his use of the power to date.  In six years he has granted only 64 full pardons, and denied 1,629 pardon applications.  (He has also granted 20 requests for commutation of sentence, and denied 7,378 requests.)   This puts his favorable pardon grant rate at 4% (Quinn’s was 37%.)  He has made fewer pardon grants and denied more applications than either of his two predecessors at this point in their tenures:  President Bush had granted 113 pardons (about 10% of those acted on) and President Clinton had granted 108 (about 20%).  Indeed, President Obama’s grant rate is presently the lowest since the Justice Department began keeping clemency statistics 1881.  Of course this can still change, since there are more than 800 pardon applications currently pending for consideration — although, predictably, the rate of application has dropped off in the last year since potential applicants are discouraged from making the effort in light of the unlikelihood of success. If their pardon grant rates reflect the importance each man places on giving those who have served their sentences a second chance, Quinn and Obama could not be more different. The only way in which their pardoning is similar is that they both seem to favor non-violent drug and theft cases. Governor Quinn has gotten a lot of public credit for his pardoning, including for the risky grants made in his final days.  In many respects, his approach to using his constitutional power resembles that of another Illinois politician, one who served long ago and on a national stage.  Abraham Lincoln’s pardons are the stuff of legend.  Indeed, he was so susceptible to supplications for mercy that his attorney general Edward Bates felt it necessary to interpose himself between his boss and those seeking presidential favor. (Thus began the system for administering the president’s power that is still with us today — though it is now far less accessible and reliable than it was for its first hundred years, and considerably less so than the Illinois process that protected Governor Quinn so well.) Let us hope that Illinois’s new Governor Rauner has heard the public applause for his predecessor’s record of pardoning, and that he will want to continue the practice of issuing grants at regular intervals throughout the year.  Perhaps President Obama has been listening too, though he does not have the benefit of a transparent and accountable administrative process to encourage him.  And, with a few conspicuous exceptions, no one has publicly held him to account.  In light of the President’s stated interest in considering prisoner petitions, at this point it is entirely possible that for the first time in almost a century there will be more sentence commutations issued by a president than post-sentence pardons. 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A pardon celebrates the life of a public defender

One of the 12 pardons granted by President Obama on December 17 went to Albert Stork of Delta, Colorado, long-time advocate for indigent criminal defendants on the rural Western Slope.  Al Stork pled guilty in 1987 to filing a false tax return, and served six months in federal prison. While his conviction came about in an unusual way, what makes Al’s case so special is what he did with his life afterwards. Al Stork’s conviction arose out of his family circumstances. In the early 1980s, one of his two older brothers was an elected prosecutor in Colorado’s Sixteenth Judicial District; the other was a fugitive from Colorado authorities, having spent most of his life (as Al put it) “either in jail or on the lam.” Al himself, then in his early 20s, was leading what his defense lawyer described years later as “an unexceptional and unmotivated middle class life,” working construction and selling a little marijuana on the side. The four-year federal investigation that resulted in Al’s 1987 tax conviction was focused on an effort to identify his fugitive brother Wayne’s assets. Al’s downfall was his inability to help in this effort, coupled with his failure to report as income the small amount of money Wayne had given him over the years. (Al recounted in his pardon application that his DA brother was “embarrassed at having to testify in the grand jury that some of the down payment for his house had come from his fugitive brother.”)  During the course of the investigation Al and his wife lost all of their assets, including the house he had built, and were forced to move into one room in a neighbor’s basement. After Al pled guilty and was sentenced to a short prison term, he and his wife separated. He described the period as one in which his life was “crumbling.” Twenty-five years later, his defense lawyer Hal Haddon described what happened next in a letter supporting his former client’s request for a pardon: Mr. Stork . . . emerged from federal prison with a passion to assist the indigent prisoners with whom he had lived — a disadvantaged segment of the community he had never previously known or understood. In pursuit of that commitment, Mr. Stork attended law school, successfully graduated and was admitted to the Colorado Bar after persuading the Bar Admissions Committee of the Colorado Supreme Court that he had learned a huge lesson and was a mentally and morally fit to join the legal profession. Al’s path to law school was not quite as smooth as Mr. Haddon’s letter might suggest, since he left prison with no college education and no source of support. Undaunted, he borrowed money to attend community college and later graduated from the University of Denver, though it took him another three years to find a law school that would admit him. He and his wife Carol had by then reconciled, and he supported himself by waiting tables. In his pardon application he credited his prosecutor brother as a role model: “His encouragement and my observations of him prosecuting cases but at the same time having compassion for those he was prosecuting provided me the impetus to pursue my law career.” (His prosecutor brother is now an elected judge, while Wayne Stork is serving a federal prison sentence for drug trafficking, with state gigs for parole violations to follow.) After graduating from law school in 1999, Al went to work for the Colorado State Public Defender’s office. Eight years later, he opened his own law office and began taking cases through the State Office of Alternate Defense Counsel, becoming the principal court-appointed attorney for indigent defendants in several rural Colorado counties. He kept a low profile but was obviously held in high esteem by his colleagues, judging by the many letters they wrote in support of his pardon application. They described him as a modest and generous colleague, a skilled and thorough advocate, and an empathetic counselor who saw his clients as individuals and did not “judge them or categorize them.” One described how he “consistently encourages his clients to be better than they think they are, and certainly better than those who are about to judge them think they are.” Another described how diplomatic Al had been when a county judicial selection committee tried to recruit him to run for a judgeship, not knowing about his conviction. In his pardon application Al described how his own experience with the criminal justice system informed his work as a defense lawyer: I felt I had already received somewhat of an education in criminal law, though I was a reluctant student. I understood choices that one makes that can place them on the other side of the law, the power of the legal hammer when such choices are made, and the consequences thereof. I also understood the anxiety, the fear, and the unknowns that gnaw at a person every moment of every day when you are under scrutiny by law enforcement for those bad choices. I carried that knowledge when I pursued my legal education, and continue to carry that knowledge with me as a practicing attorney. I take the title counselor seriously in the sense that my job is not just to get the best result for my client legally but also to empower each individual I represent to help them realize they too can rise above their past. . . . My belief that I carry over into my representation of indigent clients comes from a belief that we all have a spark of light within us even in the darkest of times. That is not abstract for me — it comes from my own experience. By way of apology for not being able to report more varied community service in his pardon application, Al noted how he had cared for his seriously-ill mother throughout his early years as a public defender, until her death. In explaining his reasons for seeking a pardon, Al mentioned how much his brother had loved serving as a judge, and how he himself might like to run for local office but was afraid his conviction would prove “distracting” in a campaign unless he could “give public assurance” that he had put his past behind him and been “officially forgiven.” * * * * * * * * * * * * Al Stork was one of my favorite pardon clients. It was therefore particularly sad for me when his wife Carol called me last spring, when Al’s application had been pending for about three years, to report that Al had been suddenly and catastrophically struck by irreversible and inoperable brain cancer. By the time the pardon came seven months later, Al was no longer able to appreciate that he had won the prize he sought, an affirmation of a life well-lived from the highest levels of government. Still, the pardon means a great deal to Carol Stork, and to Al’s friends and colleagues who were inspired by his perseverance in the face of adversity and by his dedication to defending the poor against the power of the state. It means a great deal to me, who was honored to have been able to help him present his case for forgiveness. That said, while Al’s case is exceptional, it is not unique. There are many other applicants for pardon whose stories can tell good news about the justice system through recognition of redemption by the government that once condemned them. I hope that in days to come the president will want to use his benign power to even greater public advantage. Postscript:  Al Stork died of brain cancer on January 2, 2015.  He is mourned by his family and friends, and by the many people who never met him but were inspired by his story.     Read more

“The president’s idle executive power: pardoning”

As the presidential pardon of everyone’s favorite Thanksgiving galliformes makes front-page news across the country (a tradition that the many human clemency petitioners who have spent years awaiting action must struggle to find the whimsy in), two law professors take the federal clemency system to task in a new Washington Post opinion piece.  In the piece, professors Rachel E. Barkow (NYU) and Mark Osler (University of St. Thomas) argue that the long and multi-tiered review process for federal clemency petitions could be significantly improved if the president would minimize the Justice Department’s involvement in the process while shifting responsibility to a bi-partisan review commission.  From the article: What is broken is no mystery. The key gatekeepers for this process are in the Justice Department — the same agency that prosecutes federal crimes. Unsurprisingly, the department has been reluctant to second-guess its own decisions and rarely recommends that the White House approve a clemency petition. Moreover, each petition must pass through as many as seven levels of review prior to approval, and many of those doing the reviewing (such as the deputy attorney general and the White House counsel) have plates already full with other duties. That’s why the average review time for approved clemency petitions in this administration has been about four years, according to P.S. Ruckman Jr., a political science professor who edits the Pardon Power blog. It’s easy to envision a better method. As in countless other areas of law, from communications and securities regulation to establishing sentencing guidelines, a dedicated agency comprising experts could address the problem efficiently and effectively. The president should appoint a bipartisan commission of Democrats and Republicans with expertise in criminal law to consider all applications and track data on recidivism and other outcomes. The agency can work with the president’s reentry council to coordinate prisoners’ transitions back to civil society. And because the commission would be politically balanced, the president would not need to worry about being exposed to Willie Horton-style attacks, should a convict commit some new crime after being freed; these will be cases that people of all political stripes agreed deserved relief. Read the full article here. Read more

Labels and stereotypes in the President’s immigration speech

The President’s decision to take unilateral executive action to insulate certain undocumented immigrants from the immediate threat of deportation has provoked outrage in some quarters and profound relief in others.   The legal issues raised by this decision are important and debatable, some of its line-drawing is problematic, and its success stands or falls on the uncertain terrain of bureaucratic discretion.  No doubt its political implications are yet to be revealed. But amid all the uncertainty, one thing is clear.  In his speech announcing the initiative the President said, repeatedly and definitively, that no one with a criminal record would benefit from his reprieve.   Thus, he emphasized that enforcement resources would remain focused on “actual threats to our security,” by which he meant “Felons, not families. Criminals, not children.”   Again, it is possible to benefit from the law if you can “pass a criminal background check” (whatever that means), but “[i]f you’re a criminal, you’ll be deported.”   Even people convicted of misdemeanors will not be spared under the new DHS enforcement priorities. Entirely apart from the wisdom or fairness of the immigration policy choice involved in this broad blanket exclusion (and there are good reasons to be critical of it), it was disheartening to hear the President present it in such unfortunate language.  The ugly labels of “felon” and “criminal” do, after all, at least technically describe a status shared by 25% of adult Americans.  Labels like these serve only to demonize and exclude, and they are fundamentally at odds with our national policy of encouraging rehabilitation to reduce crime.  There were other ways the President could have justified continuing his policy of deporting based on criminal record than by using words that do more to stir up fear of “the other” than to describe relevant functional attributes. The President’s words suggest that people who have been convicted of a crime are evermore to be regarded as “felons” and “criminals,” categorically threatening to our safety and security, and uniformly deserving to be segregated and sent away.  But he himself pardoned such a person less than two years ago, precisely to keep her from being deported. And he is surely aware of the bipartisan conversation now underway about the need to curb over-criminalization, one of the few matters on which Republicans and Democrats can agree.   It is tempting to take linguistic shortcuts when politically expedient, but it is a temptation he might have resisted without jeopardizing his larger objective. It is time we stopped using negative stereotypes and labels to describe people who at some point in their past have committed a crime, in the immigration context or otherwise.  It is no longer acceptable to describe undocumented immigrants as “illegal aliens.”  Our language needs a similar makeover where past convictions are concerned. Read more