Tag: Pardon Attorney

Federal pardon filings skyrocket, but pardon grants still down

New clemency statistics just posted on the Pardon Attorney’s website show that almost 1000 petitions for full pardon were filed in FY 2016, and that more than 1900 pardon petitions are presently pending.   We have become accustomed to seeing huge numbers of commutation filings, but the large number of pardon filings is much more surprising in light of President Obama’s meager pardon grant rate to date.  The 998 petitions filed in the 12-month period just concluded are almost twice the number filed in any single year since the Roosevelt Administration, including in the analogous period in the Bush 43 presidency. We reported in August that there were 1378 pardon petitions pending in June – which means that 550 new petitions must have been filed in less than 4 months.  That’s as many pardon petitions as have been filed in any full year in the past 75 years. In August we reported on President Obama’s stated intention to grant a large number of full pardons before the end of his term, in addition to sentence commutations: “I would argue that by the time I leave office, the number of pardons that we grant will be roughly in line with what other presidents have done.”  But to match even George W. Bush’s 189 pardon grants, President Obama will have to grant more than 120 pardons in the next three months. White House Counsel Neil Eggleston stated yesterday that the number of commutation grants since 2014 “make clear that the President and his administration have succeeded in efforts to reinvigorate the clemency process.”  But without action on the pardon side of the clemency docket it is too early to claim more than partial success. Read more

Slate asks why presidents are granting less clemency; Justice answers

Slate has posted a new piece by Leon Neyfakh entitled “The Pardon Process Is Broken.”  The piece points out that “presidents are granting clemency far less often than they once did,” and asks “Why?”  It answers its own question by distilling an article by Margaret Love to be published in the Toledo Law Review, which argues that the low grant rate reflects overwhelmingly negative recommendations from the Justice Department.  In response to Slate’s invitation, Justice had the following comments on Love’s proposal: The mission of the Department of Justice is to enforce the law and defend the interests of the United States according to the law; to ensure public safety against threats foreign and domestic; to provide federal leadership in preventing and controlling crime; to seek just punishment for those guilty of unlawful behavior; and to ensure fair and impartial administration of justice for all Americans. The work of the Office of the Pardon Attorney is an integral part of the Department’s mission. These comments seem to concede the point that the Office of the Pardon Attorney has ceased to operate as an independent source of advice for the president in clemency matters, but instead has become an extension of the law enforcement agenda of the Department’s prosecutors.  They evidence the key role the Justice Department has played in the atrophy of the constitutional pardon power. A further examination of Justice Department clemency statistics since the 1930’s reveals an even more dramatic decline in favorable Justice Department recommendations in the past 25 years than is reported in the draft of Love’s article posted here 10 days ago. Between 1932 and 1988 the percentage of total cases acted on by the president that had been sent to him with the Justice Department’s blessing averaged around 30%.  The percentage of cases sent forward with a favorable recommendation dropped to single digits beginning with the presidency of George H.W. Bush, and it has dropped even lower in the past 15 years.  Under President Obama, the likely paucity of favorable recommendations from Justice has resulted in the lowest grant rate to date:  President Obama has made a total of 153 grants (89 commutations and 64 full pardons) while denying almost 9000 applications, for an overall grant rate of 1.6%. The absolute numbers also tell a tale: President Obama has granted more sentence commutations than any president since Richard Nixon, but fewer full pardons than any president since John Adams.  Pardon is the only clearly established way for federal offenders to avoid or mitigate collateral consequences. If Justice is unwilling to recommend pardons to the President, might it direct federal offenders to an alternative source of relief from collateral consequences?  That also does not appear to be in the cards: in a case currently pending before Judge John Gleeson in the Eastern District of New York, Justice has taken the position that a federal court has no authority to expunge a conviction or issue a certificate of rehabilitation. It remains to be seen whether Justice will recommend more pardons to the White House or, better yet, support legislative efforts to give courts the power to dispense with collateral consequences that it now finds lacking. Read more

Pardon Attorney says clock is ticking on Obama clemency initiative

The 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. James Felman, a Tampa lawyer who represents the American Bar Association on the Steering Committee of Clemency Project 2014, told the volunteers they ought to disclose both the strengths and weaknesses of a client’s case: “Aggressive lawyering is not necessarily going to pay off.” I think that there is a traditional sense that when you represent a client, your job is to make the best argument for relief you can possibly make no matter what.  Understand that here, this is not a court case; clemency is a grace.  And there is an utmost need for candor.   They’re not going to grant clemency to someone who does not meet the criteria.  So you may make the best argument you could make, but please understand that, from our perspective, time spent making a weak argument for an undeserving client is time that we can’t get you to spend making a good argument for a deserving client.  And we have many many clients that we have not yet assigned. Other members of the Clemency Project 2014 Steering Committee also emphasized the need for speed and full disclosure.  Norman Reimer, Executive Director of the National Association of Criminal Defense Lawyers, told lawyers that “The clock is ticking,” and that “Only you volunteers can help us beat the clock.”  Mary Price, General Counsel of Families Against Mandatory Minimums, advised that lawyers must be candid in briefing the project about their client’s case: “We have to know if we have bad facts.” Margaret Love, a Washington attorney who had Leff’s job in the Clinton administration, said she worries that an emphasis on the volume and speed of cases could compromise the ability of attorneys to make the best argument for their clients. “What I heard was hurry up, hurry up, deliver as many cases as quickly as you possibly can,” she said. “If it’s true that there were only 31 cases submitted by the project by the end of May, that’s surprising given the number of lawyers they have working on them.” While Obama’s 43 commutations put him ahead of the pace of presidents since Richard Nixon as far as sentence reductions are concerned, he has still acted favorably in only a small percentage of cases filed with the Justice Department: Thus far, President Obama has granted less than 0.3% of commutation petitions during his presidency, which has seen a record 16,911 petitions through May. Another 44% were denied, 12% were closed for other reasons, and 56% remain pending. Obama has said he wants that to change. “I think what you’ll see is not only me exercising that pardon power and clemency power more aggressively for people who meet the criteria — nonviolent crimes, have served already a long period of time, have shown that they’re rehabilitated,” he said in a March interview with the Huffington Post. Read more

President plans “aggressive” use of pardon power to commute drug sentences but perhaps not to relieve collateral consequences

For the third time in six weeks, President Obama has spoken on the record about his intention to make more “aggressive” use of his pardon power in the final months of his term to commute long drug sentences.   It appears he really means it — and the only thing that may stop him from setting a modern record (perhaps even more impressive than the drug commutations of John Kennedy and Lyndon Johnson) is the pace of recommendations coming from the Justice Department via Clemency Project 2014.  (Comments on his other recent statements are here and here.) Hopefully the President will grant more full pardons as well, though his comments on that score have been less encouraging. When the President was confronted about his “slow rate” of pardoning by an interviewer from the Huffington Post, he attributed this to the fact that most of the recommendations coming from the Justice Department in his first year in office were from “older individuals” convicted of “small-time crimes from long ago,” who were simply seeking to regain their firearms rights.  He said he had wanted to deal with the “broader” criminal justice problem represented by long drug sentences, and so he took steps last year to “revamp” the Justice Department’s pardon office (mainly by replacing its Bush-era manager) so that “we are now getting more representative applicants.”  The first fruits of that new aggressive use of the power were the eight commutations granted last December. But it is important to correct the record on one matter:  President Obama’s record of commuting prison sentences has not been “slow” at all, at least not in the past 18 months. Indeed, it compares favorably with that of his four immediate predecessors: to date he has granted 21 commutations, whereas the two President Bushes granted a total of 14 commutations between them, President Reagan granted only 13 in eight years, and President Clinton had granted only three commutations after six years in office.  (President Clinton granted another 58 commutations in his last two years, but by-passing the Justice Department’s established process in most of these cases.) Where the President lags behind is in granting full pardons: he has not only granted fewer in absolute numbers but his ratio of favorable to unfavorable actions is the lowest of any full-term president in our Nation’s history.  There are more than 800 applications for full pardon currently pending in the Justice Department, and many of these are likely just as deserving as Albert Stork, whose case was profiled on this website in December.  See “A Pardon celebrates the life of a public defender,” December 29, 2014. So while we commend the President’s intention to tackle the problem of reducing lengthy mandatory drug sentences, and wish both him and the Justice Department the best in processing the 35,000 applications that have reportedly been filed, we hope the Justice Department will also help the President pick up the pace in granting full pardons.  Given the disabling effect of a criminal record for people who have fully served their sentences, and the absence of any alternative relief mechanism to help federal offenders overcome collateral consequences and the stigma of conviction, it would be a shame if the revamped Office of the Pardon Attorney neglected this historically very important aspect of the clemency caseload because it didn’t think the President was interested.     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