Tag: pardon

How risky is pardoning? Not as risky as committing uninformed journalism

An AP story about the perils of pardoning, picked up by newspapers and media outlets across the country, manages to convey three pieces of misinformation in its very first sentence.  Riffing off a recent high profile pardon application, it begins like this:  “Mark Wahlberg’s plea for a pardon has focused fresh attention on excusing criminal acts – something governors rarely do because it’s so politically risky.” But pardons do not “excuse” crimes, they forgive them; governors have been pardoning more and more generously in recent years; and pardoning, like any other government program involving personal participation by a high profile elected official, is generally not risky if done in a responsible manner with good staff support and without apology. The AP article (Steve LeBlanc, “Wahlberg Plea Underscores Risk of Issuing Pardons”) supports its tired “politically risky” thesis with three examples from the last twenty years of governors’ pardons gone bad: two involve bad staffing, and the third dubious causality.  (Mr. LeBlanc could have found plenty more examples of poor pardon staffing resulting in executive embarrassment in the recent annals of presidential pardoning.) The article does not mention that Massachusetts is one of only a handful of states whose governors have stubbornly refused to use their beneficent executive power even in the most sympathetic cases.  It fails to see any irony in Governor Patrick’s delay in acting on expanded criteria for issuing pardons he announced almost a year ago.  It also does not mention that pardoning has been alive and well for some time in more than a dozen states, and has enjoyed a renaissance under current governors in Illinois and California. While former Maryland governor Robert Ehrlich is no longer the only responsible living pardoner in the country, as this writer once proposed, he certainly has the right idea about pardon being “part of the job” for any governor.  Ehrlich has embarked on a commendable campaign to educate governors to this idea.  It would be nice if more members of the working press were interested in encouraging responsible executive action instead of using misinformation to discourage it.  At least the editorial pages seem to have figured it out. Read more

‘Tis the season for . . . . some presidential forgiveness

It’s that time of year again.  Odds are that sometime in the next two weeks President Obama will issue some pardons and commute some prison sentences.  I have never quite reconciled myself to the unfortunate and ahistorical  association of pardoning with the silly turkey ceremony (the Obama girls were right to roll their eyes) and Christmas gift-giving, the result of decades of presidential neglect and sometime Justice Department sabotage of the power.  But now that the season for forgiveness is upon us, I can’t wait to see what’s underneath the tree. It was my fondest hope during the 2008 campaign that this president would want to revive the practice of pardoning, like Jerry Brown in California and Pat Quinn in Illinois, and restore a degree of regularity and accountability to the federal pardon process.  But so far President Obama has issued only 52 full pardons, making him the least generous full-term president in our Nation’s history.  And so far there is no indication that he intends to reinvigorate the federal pardon process, as Justice Anthony Kennedy urged in an iconic speech to the American Bar Association more than a decade ago, and as scholars and practitioners have regularly urged in less exalted settings ever since.  Nor has his Administration proposed any alternative procedure by which individuals with federal convictions can avoid or mitigate collateral consequences, like the set-aside authority in the Youth Corrections Act that was repealed in 1984. But there is some reason for optimism even this late in the game.  President Obama’s evident willingness to use his constitutional power to reduce long drug sentences will hopefully have a spillover effect on the other half of the clemency caseload, the applications for full pardon from people who have long since served their sentences and gone on to live productive and law-abiding lives.  There are more than 800 applications for pardon pending in the Justice Department, many from people convicted decades ago whose lives of service have been exemplary.  They deserve something more than a gambler’s chance at forgiveness. Read more

Collateral consequences and the curious case of Mark Wahlberg

Actor-producer Mark Wahlberg has filed an application for pardon with the Governor of Massachusetts, seeking forgiveness for a 25-year old assault conviction that occurred when he was 16 years old.   The “onetime ruffian from Dorchester”  bases his request for pardon on his rehabilitation and contributions to society since his conviction.  He also specifies his desire to avoid certain legal restrictions that he claims are impeding his business endeavors and civic activities. By his own account, Mr. Wahlberg was a troubled teen who had a history of scrapes with the law by the time of the 1988 assault. He states in his pardon application that, if he had not turned his life around with the help of “faith, hard work, and guidance from some incredible mentors,” he “would likely have ended up like so many of my childhood friends from Dorchester: dead or in prison for a prolonged period of time.”   He expresses remorse for his actions on the night of the assault, as well as “any lasting damage that I may have caused the victims.” He does not specify what that damage might have been, though news reports indicate that it was serious and possibly permanent. As to his reasons for seeking a pardon, he claims that “my prior record can potentially be the basis to deny me a concessionaire’s license in California and elsewhere, “an important consideration given my personal involvement in various restaurant ventures,” presumably a reference to the fast-expanding chain of Wahlburgers.   He believes that, if pardoned, “I could not be denied a concessionaire’s license on the basis of my prior record,” which may or may not be the case.* Wahlberg also proposes that a pardon would enable him to become “more active in law enfor cement activities, including those that assist at-risk individuals.”  He states that only a full and unconditional pardon would, under California law, enable him to “obtain a position as a parole or probation officer.”  True enough, but an improbable ambition for an A-List movie star.  He disavows in his application any immediate interest in obtaining a firearms permit — leading this writer to wonder if one is required on location. Wahlberg offers another “more complex” reason for wanting a pardon: The more complex answer is that receiving a pardon would be a formal recognition that I am not the same person that I was on the night of April 8, 1988.    It would be formal recognition that someone like me can receive official public redemption if he devotes himself to personal improvement and a life of good works. My hope is that, if I receive a pardon, troubled youths will see this as an inspiration and motivation that they too can turn their lives around and be formally accepted back into society. It would also be an important capstone to the lessons that I try to teach my own children on a daily basis. Wahlberg’s pardon quest faces formidable procedural hurdles under Massachusetts law, though he may be able to take advantage of a special fast-track procedure for “particularly meritorious” applications put in place by Governor Patrick last January.  And, no pardons have been granted by a Massachusetts governor since 2002. (Governor Patrick has indicated his intention to grant four pardons, the first of his tenure, but any pardon grants must be approved by the State’s Executive Council, an elected body that has announced its intention to hold hearings on the four cases.) Wahlberg’s barebones description of the episode that led to his conviction, as well as his apparent failure to recognize the serious injuries he caused his victims and to apologize to them, may also be held against him. Finally, his road to redemption may have been somewhat rockier than would be suggested by the dated nature of his criminal record, and the redemption itself of relatively recent vintage. All the same, whenever a celebrity with a plausible case for pardon comes forward to request relief, it reminds the public of why the pardon power exists in the first place, both for the person requesting it and for the person of whom it is requested:  to recognize redemption, to set an example for others, and to avoid the legal disabilities and stigma that linger years after the fact of conviction.  Whatever the merits of Wahlberg’s request for pardon, and whatever its fate, it shines a light on a beneficent power that has atrophied in Massachusetts.  Hopefully it will encourage the revival of ordinary pardoning for the dozens of ordinary individuals whose futures may depend on it.  As one Boston defense lawyer told the Boston Globe, “If someone high-profile like Wahlberg wants to get a pardon and he’s able to secure a hearing then maybe it gives a road map to the rest of us.” LATE BREAKING NEWS – In a bit of good news for Mark Wahlberg’s otherwise-foundering pardon bid, one of his victims has come forward to say that 1) Wahlberg didn’t hurt him that badly; and 2) he forgives him.   On December 11, the Daily Mail reported that Johnny Trinh, who was thought to have been blinded by Wahlberg in the 1988 attack that resulted in his conviction, actually incurred this injury years before while fighting Communists in the Vietnam War.  “He did hurt me, but my left eye was already gone. He was not responsible for that.”  Now living in Arlington, Texas, Trinh told the Daily Mail that he is happy for Wahlberg to be given a pardon: “He was young and reckless but I forgive him now. Everyone deserves another chance.”   Trinh said that he would like to meet Wahlberg face-to-face to tell him he doesn’t bear a grudge.  Note to MW:  Go see Trinh if you want that pardon. * It appears that a pardon would preclude consideration of Wahlberg’s record by Massachusetts licensing authorities, but it is far from clear what effect a Massachusetts pardon would be given by licensing authorities of other states.  See Blackwell v. Haslam, 2013 WL 3379364 (Tenn. Ct. App. Jun 28, 2013) (remanding for consideration whether giving effect to a Georgia pardon restoring firearms rights to a drug offender violates Tennessee’s public policy against restoring firearms rights to violent drug offenders). In most U.S. jurisdictions, the conduct underlying the conviction could still be considered notwithstanding a pardon.See generally Flynn Patrick Carey, Extending the Home Court Advantage:  A Call to Update the Arizona Civil Rights Restoration Scheme, 48 Az. L. Rev. 1129 (2006), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=961965.    Read more

Relief from sex offender registration and notification requirements

Update (5/14/15): We have published a 50 state chart detailing relief from registration requirements on the Restoration of Rights page. The chart is based in part on Wayne Logan’s work. You can find the chart at this link.   Wayne Logan has summarized his research on relief from sex offender registration and community notification requirements for a forthcoming Wisconsin Law Review article in an excerpt from the second edition of Love, Roberts & Klingele, Collateral Consequences of Criminal Conviction: Law, Policy & Practice (West/NACDL, 2d ed. 2015)(forthcoming). This is the first of many tidbits from the book that will appear in this space from time to time: 2:42. Sex offense-related collateral consequences — Constitutional challenges to registration and community notification laws:  post-application challenges Given the extended potential duration of registration and community notification (RCN) application, ranging from ten years to life, the question naturally arises over whether relief from its requirements and burdens can be attained at some point. While the federal Adam Walsh Act allows states to provide relief to registrants with a “clean record” for ten years,[1] states typically afford only very limited opportunity to registrants to exit registries. South Carolina is most limited, offering no opportunity to petition for relief from lifetime registration and community notification;[2] only a pardon will trigger removal, and then only if the pardon is based “on a finding of not guilty specifically stated.”[3] In other states, opportunity for relief is only somewhat broadened, to include such sub-populations as juvenile offenders and those convicted of less serious offenses.[4] In still others, the eligibility group is again broadened, and petition is allowed after a period of years (e.g., 25),[5] and in several states select registrant groups can seek early relief.[6] Early relief, however, can be less than it seems:  in Hawaii, for instance, only lifetime registrants can petition for early relief—after forty years on the registry;[7] ten- and 25-year class registrants must satisfy their terms.[8] Petition criteria and procedures vary considerably among the states,[9] and to date the lack of opportunity for relief has not triggered constitutional concern.  In In re Jimmy M.W.,[10] for instance, the petitioner was placed on the West Virginia registry in 1998 as a result of pleading no contest to sexual abuse in the third degree, a misdemeanor, for touching the breast of a fourteen-year-old girl.  Because the conviction involved a minor, the state required that the petitioner register for his lifetime.[11] In 2012, after remaining compliant with registration requirements for fourteen years, and marrying the victim and raising children with her, petitioner’s effort to be removed from the registry was rebuffed by a state trial court.[12] The state’s highest court affirmed, reasoning that state law did not extend any opportunity for relief to lifetime registrants such as petitioner, and neither the U.S. nor West Virginia Constitutions required any such opportunity.[13] Finally, to date, courts have been disinclined to conclude that the effects of RCN qualify as “custody” sufficient to trigger federal habeas corpus coverage.[14]   [1] Under the Adam Walsh Act, the following registrants can have their statutorily designated RCN periods reduced: (i) Tier I (usually subject to 15-year period) reduced by five years if “clean record” for ten years (ten-year total duration) and Tier III juveniles (usually subject to lifetime period) reduced to twenty-five years if “clean record” for twenty-five years (twenty-five year total duration). See 42 U.S.C.A. §16915(b)(2),(3). [2] S.C. Code § 23-3-460 (2014). [3] S.C. Code § 23-3-430(F). [4] See, e.g., Ala. Code § 15-20A-24 (2014); S.D. Code § 22-24B-19 (2014); Neb. Code § 29-4005(1)(b)(i) (2014). [5] See, e.g., Ariz. Stat. § 13-3821(D); D.C. Code 22-4002 (2014); Va. Code § 9.1-910 (2014). [6] See, e.g., Fla. Stat. § 943.0435(11) (2014); N.D. Stat. § 12.1-32-14(16); Wyo. Stat. § 7-19-304 (2014). [7] Haw. Rev. Stat. § 846E-10(e). [8]. Id. at § 846E-10(b). [9] See Wayne A. Logan, Database Infamia: Exit from the Sex Offender Registries, 2015 Wis. L. Rev.___ (2015)(forthcoming). [10] 2014 WL 24042298 (W. Va. 2014). [11] Id. at *1. [12] Id. at *3. [13] Id. [14] See Wayne A. Logan, Federal Habeas in the Information Age, 85 Minn. L. Rev. 147 (2000). 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