Tag: osler

Can the pardon power be revived through procedural reforms?

Mark Osler has posted a new piece arguing for an overhaul of the federal pardon process so that it more closely resembles efficient and productive state clemency systems. He argues that flaws in the process for administering the power, rather than a failure of executive will, have prevented President Obama from carrying out his ambitious clemency agenda directed atlong-sentenced drug offenders.  Streamlining the process will enable presidents to use the power more generously and effectively. This seems to us to an oversimplified solution to the theoretical and practical problems with what President Obama has been trying to do. Moreover, at least in the absence of constitutional amendment, any structural changes in the federal pardon process would have to be reaffirmed by each new president, and would likely be opposed by the Justice Department and Congress. An alternative to trying to revive pardon as an integral part of the criminal justice system would be to concede that pardon cannot wholly compensate for shortcomings in the legal system, and work to develop statutory alternatives. Our preference would be for this alternative, and specifically to enlist the courts to shorten long prison sentences and avoid or mitigate collateral consequences. This is the approach proposed in the revised articles of the Model Penal Code: Sentencing. As President Obama’s term winds down, we expect to post additional commentary on his use of the pardon power, and on proposals floated by his putative successors about the pressing systemic problems for which pardon is now seen as the sole solution.  In the meantime, see these earlier posts on this subject: Prez promises to catch up on pardons — but he’s far behind Slate asks why presidents are granting less clemency; Justice answers Should DOJ be gatekeeper of president’s pardon power? Clemency is Not the Answer (Updated) “Poised to commute dozens of sentences, Obama remains the ‘Scrooge’ of pardons” The “president’s idle executive power” and collateral consequences     Read more

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.    Sentencing Law and Policy Friday June 5, 2015 Former Pardon Attorney: “A Modest Proposal to Expedite the Administration’s Clemency Initiative” Regular readers know I have given lots of space this week to coverage and criticism of federal clemency efforts.  I am pleased to continue now with a guest post via former Pardon Attorney Margaret Love, which she sent my way under the title “A Modest Proposal to Expedite the Administration’s Clemency Initiative”: Mark Osler’s post in this space on June 4 (“Another View on Clemency Project 2014”) recounts his unsuccessful effort several years ago to persuade the Administration to establish a presidential commission, similar to the one that handled cases of Vietnam draft evaders and deserters during the Ford Administration, to review and recommend clemency relief for the thousands of prisoners serving prison sentences imposed more than a decade ago that are now generally considered far too severe.  He suggests that the reason the Administration chose not to follow this path relates to its doubt that Congress would fund such an effort. Instead, the Justice Department chose to address the problem of excessive sentences by asking a consortium of private organizations to manage it through the volunteer efforts of the private bar. We will never know whether Professor Osler’s commission idea would have worked, or whether lack of funding was the reason it was rejected.  But it does appear that the structure put in place instead to manage the Administration’s clemency initiative has (in his words) “struggled with the overwhelming number of cases (over 30,000) referred to it.” It did not help that the Administrative Office for U.S. Courts sharply limited the role that Federal Public Defender Organizations could play in the clemency initiative, by declaring that CJA funds could not be spent on clemency representations.  Many, including myself, believe that the sentencing expertise and advocacy of the Federal Defenders is critical to implementing the sort of large scale program of sentence reduction the Administration evidently had in mind. But there is another approach that might have been taken by the Administration that would have ensured a central role for the Federal Defenders.  This approach, which might still be taken, would make extraordinary sentence reduction the responsibility of the federal courts as well as of the President.  Bringing cases back to court would not require new legislation or new funds, since there is already on the books a judicial sentence reduction authority that could achieve the same result as executive clemency, through court proceedings where CJA appointments are clearly authorized.  And, because a large scale sentence reduction program is already underway in the federal courts, economies of scale are possible. Specifically, 18 U.S.C. § 3582(c)(1)(A)(i) provides that a court may at any time reduce a sentence upon motion of the Bureau of Prisons for “extraordinary and compelling reasons.” The Sentencing Commission is authorized under 28 U.S.C. § 994(t) to establish policy for courts considering BOP motions under § 3582(c)(1)(A)(i), which it has done under USSG ¶ 1B1.13.  Under this policy guideline, “extraordinary and compelling reasons” that may justify sentence reduction include terminal illness, a physical or medical condition that diminishes a person’s ability to provide self-care in a prison environment, the death or incapacitation of a child’s only caregiver, and any other reason that may be determined to be “extraordinary and compelling” by the Director of BOP.  It is noteworthy that several of the organizations represented on the Clemency Project 2014 steering committee are on record with the Sentencing Commission as favoring a more expansive menu of “extraordinary and compelling reasons” warranting sentence reduction, including one that now seems prescient: “the defendant would have received a significantly lower sentence under a subsequent change in applicable law that has not been made retroactive.” Less than two years ago BOP issued a new policy statement with a list of circumstances in which it may seek a sentence reduction, a list that is evidently not intended to be exhaustive. See Program Statement 5050.46, as amended (August 12, 2013).  Accordingly, there is no reason why BOP could not determine, with or without an amendment to ¶ 1B1.13, that “extraordinary and compelling reasons” exist in any case meeting the criteria set forth by the Deputy Attorney General as warranting a grant of clemency. The coincidence of the standards in the two contexts would be particularly fitting in light of the fact that the judicial sentence reduction authority in § 3582(c)(1)(A)(i) was originally enacted in 1976, at the Justice Department’s instance, to expedite sentence reductions that previously had required a clemency application to be submitted to the President through the Office of the Pardon Attorney. There are in addition other reasons why it would be appropriate to supplement the clemency initiative with a statutory sentence reduction initiative implemented through the courts, including a general preference for a judicial decision-maker under federal sentencing law and policy, and for a congressionally authorized approach over an extra-legal use of executive power. Most scholars agree that clemency ought always to be a second choice where the law provides a remedy for sentencing unfairness or undue severity, as it does in this case.  See, e.g., Daniel J. Freed & Steven L. Chanenson, Pardon Power and Sentencing Policy, 13 Fed. Sent. Rptr. 119, 124 (2001) (“Wherever a rule can be structured to guide the discretion of judges or administrative agencies in determining – with reasons – whether to mitigate the sentences of similarly situated offenders, we think such a system should ordinarily be accorded priority over one that relies exclusively upon the unstructured, unexplained discretion of a president to grant or deny individual pardons or commutations.”) Traditionally, the Federal Defenders have played a central role in proceedings involving judicial consideration of sentence reduction under § 3582(c)(2) where guideline ranges have been lowered, even though there is no constitutional right to counsel in such proceedings.  They are key players in the massive effort to reduce sentences now underway under the so-called “Drugs Minus Two” guidelines amendment. There is no reason why the Defenders should not play a similar role in judicial sentence reduction proceedings under § 3582(c)(1).  There does not appear to be any relevant difference between the two types of proceedings as far as the discretionary appointment power in 18 U.S.C. § 3006A(a)(2) is concerned. In the interests of judicial economy, these proceedings might even be combined. All it would take to make this happen would be a resolve on the part of the Department of Justice to use this statute for the purpose it was originally intended. Augmenting the Administration’s sentence reduction program through broader use of a judicial sentence reduction mechanism, which the Justice Department’s own Inspector General has repeatedly criticized as underutilized (most recently for aging prisoners), would accomplish the Administration’s goals in reducing unduly severe sentences, while at the same time regularizing sentence reduction through the courts pursuant to statute.  It would put sentence reduction on a sounder long-term footing that is more consistent with the principles of determinate sentencing, be more predictable and accountable as a practical matter, and respond to any concerns about the unaccountable use of executive power. Many years ago, when I was serving as Pardon Attorney, then-Deputy Attorney General Philip Heymann asked me why we should ask the President to commute the sentence of an elderly prisoner when (he said) “we can do the job ourselves.”  Now I would ask the new DAG the same question. 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. The system for briefing cases that has been developed by Clemency Project 2014 may have contributed to the slow pace.  Mary Davis, a veteran federal defense lawyer who has handled several cases through that process, commented that “I know there were attorneys signing up for this who don’t do criminal defense work, and I would think it would be extremely difficult.”  Two law students working with her on one case she submitted spent a combined 122 hours helping her with it. But it now appears that a shortage of resources in the Justice Department may also be a contributing factor. The Department told USA Today’s Greg Korte that while it “expects to recommend more commutations to Obama,” this “could take a while.” In its 2016 budget request to Congress, the department said the deluge of clemency applications is too much for the current staff to manage. “As OPA’s existing staff has discovered, expending the substantial resources required simply to manage such a volume of clemency requests significantly decreases those available for analyzing and evaluating the merits of individual applications and preparing the appropriate letters of advice to inform the president,” the Justice Department said in its congressional budget justification. Obama has proposed a 66% budget increase for the Office of Pardon Attorney in 2016, and is seeking twice as many lawyers to process all the paperwork. It was originally hoped that Clemency Project 2014 could “cut through the process by helping to provide the Justice Department with better, more complete case files to review,” but “that solution has also led to criticism from Capitol Hill, where Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, says that the administration is outsourcing a government responsibility.” Even beyond resource problems, the Justice Department’s enthusiasm for the clemency initiative appears to be waning.  A Department spokesperson told USA Today: “The clemency process is just one prong in the department’s efforts on sentencing changes. The department has successfully urged the Sentencing Commission to make changes and continues to push for legislation in Congress as well.”  (While it is true that the Sentencing Commission’s recent reduction of the drug guidelines will accomplish for many prisoners what a grant of clemency would, it won’t help people serving mandatory minimum sentences, or people sentenced under other guidelines, such as the career offender guidelines.) Johanna Markind, an attorney who until recently worked in the Office of the Pardon Attorney, told USA Today that few cases fit the criteria for clemency set forth by former Deputy Attorney General Jim Cole: “The criteria basically suggest that a whole bunch of good citizens who committed one little mistake got significantly more than 10 years in prison, and fortunately that’s pretty rare,” said Johanna Markind, a former attorney-adviser in the Office of Pardon Attorney who left in March. “I think they’ve kind of belatedly realized that people are doing their jobs, and those perfect cases they think are there don’t really exist,” she said. “For all the sound and fury about the commutations, the clemency initiative has only come up with a handful of cases that fit” the criteria. Markind also told USA Today that “the clemency initiative did not relax Obama’s ‘three strikes’ policy making anyone with three or more criminal convictions ineligible for clemency. “‘Criminals with a record do not make the most appealing poster children,’ she said.”  (This statement seems odd in light of the fact that almost all of the 40 individuals whose sentences were commuted by President Obama had prior records, and many had three or more convictions.) Professor Mark Osler, who has in the past been critical of the way the Obama Administration set up its clemency initiative, now seems genuinely discouraged about the prospects for smooth sailing in the months ahead: “We’ve failed the same way through different kinds of administrations, and the problem isn’t the administration, it’s the process,” Osler said. “The sad thing is, every president recently has gotten to the end of their term and said, ‘Hey, where are all the good clemency cases?’   ” I sure hope that will change, but it’s going to be a furious last year as these things start to come in even greater numbers.”   Read more

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