Tag: pardon

President declares U.S. a “nation of second chances” but issues no pardons

In commuting the sentences of 46 individuals serving long drug sentences, President Obama declared that America is a “nation of second chances” in a video address posted on the White House website.  But that sunny optimism about our country’s willingness to forgive hasn’t led him to grant very many pardons, the relief whose purpose is to restore rights and status to those who have fully served their sentences, to give them a second chance at first class citizenship.  Indeed, as Michael Isikoff reported the same day the commutations were issued, Obama’s 64 pardons are the fewest issued by any full-term president since John Adams.  Indeed, the President has commuted more in the past six months than he has pardoned in his entire time in office. The President’s determination to reduce unjustly lengthy prison sentences is commendable and historically significant.  But it need and should not lead him to the neglect the other part of the clemency caseload, the petitions filed by individuals who have led exemplary lives for many years but are still burdened by severe collateral consequences and the stigma of conviction. Unfortunately those petitions appear to have have been shunted to the back burner in the excitement of the so-called “clemency initiative.” As exemplified by the case of Sala Udin described in Isikoff’s article, deserving pardon applicants have seen their petitions languish for years in the Office of the Pardon Attorney. These days pardon investigations are not progressing past the intake stage, and it is very hard to find out what the hold-up is.  It is tempting to fault the Justice Department for the glacial pace of pardoning, but in truth it is the President’s agenda that controls. A presidential pardon is the only relief from collateral consequences available to those convicted of federal offenses.  Expungement is not authorized by any federal statute, and most federal courts have held that they have no inherent authority to issue this kind of relief.  A more definitive answer to that question may come with the government’s appeal of Judge John Gleeson’s recent expungement order. But until that legal question is settled, and legislation either enacted or found unnecessary, we must hope that the President will expand his view of “second chances” beyond the prison gates to the communities where those who are burdened by a criminal record live and work.   Read more

“Poised to commute dozens of sentences, Obama remains the ‘Scrooge’ of pardons”

Yahoo News has published a piece by its chief investigative reporter Michael Isikoff commenting on how few pardons President Obama has granted, and how backed up the Justice Department’s pardon office seems to be.  He illustrates the problem of presidential inaction with the case of Sala Udin, a Pittsburgh community activist and former City Council member, whose application for pardon of a 1970 firearms conviction has been awaiting decision for several years. Isikoff reports that while the President is likely to issue a number of sentence commutations this week, no pardons will be forthcoming. This leaves the 800 people whose pardon applications are pending in the Justice Department wondering whether there is hope for forgiveness during this president’s term. What does it take to get a pardon from President Obama? It’s a question Sala Udin, a former Pittsburgh City Council member and onetime civil rights Freedom Rider, is asking a lot this summer, more than three years after he first asked a president he deeply admires to grant him a pardon for a 44-year-old federal firearms conviction. “It’s downright depressing,” says Udin, 72. “I don’t know whether [my application] has gotten lost in the back of the file, but I haven’t heard anything. It’s very frustrating.” The White House is planning to announce this week that Obama has commuted the sentences of more than 40 nonviolent offenders, a move that officials say illustrates his commitment to criminal justice reform. But this week’s announcement, sources tell Yahoo News, is unlikely to include any actual pardons of petitioners like Udin, one of the more than 800 people whose applications for presidential mercy are stacked up at the Justice Department’s Office of the Pardon Attorney. That would extend a record of parsimony on pardons that critics say is one of the paradoxes of Obama’s presidency: Obama, who has spoken with eloquence about grace and redemption, has granted fewer pardons (43) than any president since James Garfield (who died from an assassin’s bullet in 1881 barely six months after he had been sworn in). “He’s been unusually stingy — he’s a clemency Grinch,” says Douglas Berman, an Ohio State law professor who has studied presidential pardons. Obama’s reluctance to use his constitutional power to pardon to some extent reflects his determination to avoid controversies, such as the uproar that followed Bill Clinton’s pardon of fugitive financier Marc Rich on his last day in office, critics and current and former officials say. Even the relatively few pardons Obama has granted — such as one for an aging bootlegger and another for a man convicted of mutilating coins in the early 1960s — have been largely trivial, and missed opportunities to correct past injustices or excesses in the criminal justice system, his critics say. “It’s just not something that he’s interested in,” says P.S. Ruckman Jr., a political science professor who writes a blog, Pardon Power, and ranks Obama as “the seventh least merciful” president in history. Obama, for his part, has blamed the Office of Pardon Attorney, whose chief, Ronald Rodgers, resigned last year amid disclosures that he had misrepresented a commutation applicant’s record to the White House. (The relatively small office — with about seven lawyers — that reviews all pardon and commutation applications is now headed by a former journalist, Deborah Leff.) “I noticed that what I was getting [from the Pardon Office] was mostly small-time crimes from very long ago,” Obama said in an interview with the Huffington Post last March, in which he vowed to move “more aggressively” on petitions during his remaining time in office. Sources have also told Yahoo News’ Liz Goodwin that the president complained that the pardon attorney’s office was sending him petitions from wealthy and connected applicants, who typically wanted a pardon so that they could get a hunting license. Whatever the reasons for past inaction, it has been little comfort so far to Udin, whose lawyer, Margaret Love (the former chief of the Justice Department’s pardon office), calls him a “poster child” for a pardon. In his youth, Udin (who changed his name from Samuel Howze) was a Freedom Rider for the Student Nonviolent Coordinating Committee who braved racist cops while registering black voters in the Mississippi Delta. “I was beaten up pretty bad and thought I was going to die,” said Udin, recalling an incident in which he was pulled over and ordered to “get out of the car, n—–!” In 1970, while driving back from Mississippi, Udin was stopped for speeding outside Louisville and an unloaded rifle was found in the trunk of his car, resulting in his conviction for interstate commerce of firearms and his incarceration for eight months in federal prison. Udin doesn’t dispute his guilt, but he offered an explanation in his application to the Justice Department: “At that point, although I was previously committed to nonviolence, I concluded that if I was trapped on some lonely, dark road in the South and confronted by Klansmen who threatened to kill me, I would be prepared to defend my life,” he wrote in his petition. “I concluded that I would rather be caught by the police with defensive weapons than to be caught by the Klan without them.” Udin had had a few other earlier minor brushes with the law — including state convictions for having an unregistered handgun in his car in Pittsburgh and receiving stolen property, both of which were wiped clean by a pardon from then Pennsylvania Gov. Ed Rendell in 2007. But following his convictions more than four decades ago, Udin made what Pennsyvlania Sen. Bob Casey called (in a letter to Obama last year endorsing his petition) “extraordinary contributions to the community.” He founded an African-American Culture Center in Pittsburgh, headed up a national leadership institute, and served three terms on the Pittsburgh City Council (from 1995 to 2006), spearheading the creation of the city’s police civilian review board. Udin acknowledges one possible obstacle in his petition: In 2007, he campaigned for Obama and made a $500 contribution to his campaign. Could the White House be reluctant to endorse Udin’s pardon petition for fear it would look like a political favor for a past supporter? “I don’t want to say or do anything that would cause a problem for President Obama,” Udin said. “I love him. If that’s the reason, I’ll accept it. I just don’t want it to be for any other reason.” The White House wouldn’t comment on Udin’s (or any other) case, nor would the Justice Department say whether his application has even made it to the president’s desk. But a White House spokeswoman, when asked about the president’s record on pardons generally, said, “The president’s term isn’t over yet,” adding in an email: “The president believes strongly that the ability to petition for clemency is a critical component of our criminal justice system. He looks forward to reviewing additional requests for clemency in the coming months.” Read more

Leaked White House memos detail president’s pardon policy

USA Today has published a White House document detailing President Obama’s policy on granting clemency, including both sentence commutation and post-sentence pardons.  In a memorandum dated July 13, 2010 to the Acting Deputy Attorney General, White House Counsel Robert Bauer “convey[ed] the President’s views” on the exercise of his constitutional pardon power, affirming traditional standards but emphasizing that there are “certain offenses for which a pardon should very rarely, if ever, be granted absent truly exceptional circumstances.”  Among these were “large-scale drug trafficking” in which the applicant had “a significant role,” and financial fraud cases involving “substantial loss to the federal government or its programs.” The memo affirmed the five-year eligibility waiting period for a pardon, overriding a 2001 policy of the Bush Administration (also published for the first time) that imposed an informal 10-year waiting period.  At the same time, it emphasized that the passage of additional time may strengthen an applicant’s case for pardon: The recentness of the offense should be evaluated in the context of the entire application, including the offense’s seriousness, The President believes, however, that where more time has passed since conviction or release, applications will tend to be stronger, in part because the extended time period provides a greater opportunity for the applicant to establish exemplary post-conviction conduct and demonstrate true acceptance of responsibility, remorse and atonement. In fact, the USA Today article points out that only five of Obama’s 64 pardons were granted within 15 years of an individual’s eligibility.  With respect to commutations, the memo expresses a policy of parsimony: The President agrees with the Department’s view that a commutation of sentence is an extraordinary remedy that should be granted only in extraordinary circumstances. The President further believes that the guidance governing offenses for which there should be a presumption against pardons applies with even greater force to applications for commutation. The USA Today article notes apparent inconsistencies between the 2010 Bauer memo and the President’s more recent comments about what he is seeking from Justice in terms of clemency recommendations.  It remains to be seen how these comments will play out in the months ahead, and in particular whether he will grant more commutations while post-sentence pardons remain at an all-time low. 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

Ohio pardons provide “only forgiveness, not forgetfulness”

On January 28, 2015, the Ohio Supreme Court settled an issue it has toyed with for several years, relating to the inherent power of courts to seal criminal records.  In State v. Radcliff, a closely divided court held that judicial power to seal a conviction record, including the record of a conviction that has been pardoned, is limited by law. In Ohio, there is no statutory basis for sealing a pardoned conviction as there is in many (though not most) states.  The majority evidently found this conclusion an unhappy one, lamenting that “until the General Assembly acts, we are left with the understanding that a pardon provides only forgiveness, not forgetfulness.” “Only forgiveness.”  Is pardon then such a second class prize?  What makes an official determination of the recipient’s good character by the state’s highest elected official so much less attractive an option for mitigating the adverse consequences of conviction than pretending it never occurred?  If the answer is that the American people are relentlessly unforgiving, we clearly have some national soul-searching to do. As will come clear from the following discussion, I do not share the Radcliff majority’s evident belief that a pardon is worth little unless it results in a court expunging the record of the pardoned conviction (and presumably the pardon itself). In January 2011, Governor Ted Strickland pardoned James Radcliff’s five dated convictions (which included “a 1982 felony conviction in Franklin County for breaking and entering a donut shop while possessing a screwdriver”) in recognition of his 30 years of law-abiding conduct.  A month later Radcliff went to court to have his record sealed, even though the sheer number of his crimes put him outside the category of people authorized to pursue that relief under Ohio Rev. Code Ann. §§ 2953.31.  The court of appeals thought Radcliffe’s record of rehabilitation “deserves redemption,” and ordered that his petition be granted. The government appealed, arguing that the court had no inherent power to seal a record of conviction, even a pardoned one.  The high court held that “if he is to have that redemption, it must come from the General Assembly.” Earlier decisions of the Ohio Supreme Court had found inherent judicial power to expunge or seal convictions, but that was before the legislature entered the conversation to define with some precision exactly what convictions it wanted courts to be able to seal.  The enactment of sealing legislation meant there was no longer a role for the court to take an independent view of the matter.  Over and above the detailed sealing law, the Radcliffe court pointed out that the legislature had also made certain provisions for retaining pardon documents, noting that “[t]he fact that the General Assembly has required that a record of a defendant’s pardon be filed in the same court where the pardoned offense was originally adjudicated expresses the General Assembly’s intent that courts must preserve the record of a pardon, not conceal it.” In determining that courts had no power independent of statute, the Ohio high court expressed disappointment over the legislature’s failure to provide for a broader sealing remedy in cases like Mr. Radcliff’s: Despite any frustrations judges may have with their inability to do justice in any given case of a pardoned offender, judges must respect that it is the role of the legislature to address the statutory scheme on sealing records, even in cases in which gubernatorial pardons are granted. Until the General Assembly acts, we are left with the understanding that a pardon provides only forgiveness, not forgetfulness. . . . . The pardon does not wipe the slate clean. If the slate is to be wiped clean for those pardoned of crimes, including Radcliff, the General Assembly must act. The majority associated itself with the Pennsylvania Supreme Court in stating that “[a] pardon without expungement is not a pardon.”   The three dissenting justices thought it “unnecessary in this case to state the proposition so unequivocally,” though they thought there was enough left of the inherent judicial power to order expungement in the “unusual and exceptional circumstances” of a pardon. In concluding that courts have no inherent authority to seal pardoned convictions, the Ohio court is in good company.  The Supreme Court of Mississippi recently came to a similar conclusion about the limits of judicial authority in closing records, so that pardon in that state also “provides only forgiveness, not forgetfulness.” In this regard, it seems worth noting that a majority of states do not authorize sealing or expungement of pardoned convictions.  Of those that do, it is by statute in all but three states (Indiana, New Jersey, and Pennsylvania).  Even a presidential pardon provides “only” forgiveness. It appears that a national discussion of the relative merits of forgiving and forgetting as a way of restoring rights and status may be well underway. NOTE: It seems anomalous that Ohio law would provide for “forgetting” out-of-state and federal convictions by authorizing Ohio courts to seal them, but not for “forgiving” them through a Certificate of Qualification for Employment.  (See today’s post on CQE’s here.) How will an Ohio court enforce its sealing order directed to a foreign jurisdiction?   Read more