Category: Commentary

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.

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Why should expungement be limited to “nonviolent” crimes? Dissecting the REDEEM Act (II)

The REDEEM Act currently in committee in the U.S. Senate provides the first authority for “sealing” federal criminal records since the repeal of the Youth Corrections Act in 1984.  As we described in an earlier post, the Act would provide significant relief from many of the collateral consequences imposed on those with a federal rap sheet.  But the Act’s limitation on eligibility to “nonviolent” crimes, together with its corresponding restriction on consideration of state priors, threaten to undermine the Act’s beneficent purpose — not simply by categorically excluding many deserving individuals from relief, but also by inviting endless wrangling over which particular individuals are deserving.

Increasingly, scholars and advocates are questioning the glib and thoughtless distinction politicians have for years drawn between violent and non-violent crimes for purposes of sentencing.  The unfairness of categorically excluding all offenses falling within a broad definition of violence, without regard to how long ago the conduct occurred or how minor, is compounded when the record sought to be sealed did not result in a conviction.

But perhaps the most persuasive reason for federal lawmakers to junk the distinction between violent and nonviolent offenses is a practical one, since it is frequently impossible to determine if a particular federal crime is violent or not, as the Supreme Court’s recent decision in Johnson v. United States demonstrates.  If the distinction must be retained, definitions need to be clarified lest disputes over coverage result in few people actually getting relief.  The good news is that the necessary fix is a simple one:  rather than defining vaguely which offenses are eligible for sealing, the REDEEM Act should define precisely which offenses are not.

We start with a description of the REDEEM Act’s eligibility criteria, then show why they will give the government an opportunity to frustrate the Act’s intent.  Indeed, a wag has described them as catnip for the litigious.

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President urged to make federal hiring fairer — but is the “ask” enough to get the right result?

A coalition of national advocacy organizations has again urged President Obama to implement a robust federal hiring policy to give people with a criminal record a fair chance to compete for federal agency and contractor jobs.[1]  In an open letter dated July 20, the coalition called upon the President to issue an executive order requiring employers to conduct a criminal records check only after a conditional hiring offer has been made, and to adhere to current EEOC guidance on considering the results of a records check.

The administration’s recent rhetoric indicates that it may be receptive to the coalition’s proposed reforms. On July 14, the President explicitly endorsed so-called “ban-the-box” policies in his speech on criminal justice reform at the NAACP annual convention:

Let’s follow the growing number of our states, and cities, and private companies who’ve decided to ban the box on job applications so that former prisoners who have done their time and are now trying to get straight with society have a decent shot in a job interview.

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Life sentence is “slow death penalty”

The Guardian has published a detailed account of a case in the queue awaiting consideration by the President for commutation of sentence.  Ray Bennett was convicted in 1991 of acting as a courier for a crack cocaine distributor, and sentenced to life in prison based on two prior state misdemeanors.  “The judge who sentenced Bennett did his duty reluctantly, saying the drug runners were ‘just country folks’ and not the major traffickers that Congress likely had in mind.”

Bennett has now served more than 24 years in prison, has an exemplary record of conduct while incarcerated, and has long since conquered the addiction to drugs that led to his conviction.  His clemency application was filed with the Pardon Attorney through Clemency Project 2014 in early April.  We reprint substantial portions of the Guardian article to show the kinds of cases that may be acted on by the President in coming months.

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Clemency is Not the Answer (Updated)

This piece was originally published in The Crime Report on July 13, and republished in revised form on July 16.

On Monday President Obama announced in a video address that he had commuted the sentences of 46 people sentenced to long prison terms for drug offenses.  His counsel, Neil Eggleston, stated that “While I expect the President will issue additional commutations and pardons before the end of his term, it is important to recognize that clemency alone will not fix decades of overly punitive sentencing policies.“

Mr. Eggleston added that “the President is committed to using all the tools at his disposal to remedy unfairness in our criminal justice system.” However, judging from his speech to the NAACP the next day, clemency is the only one of those tools that is calculated to result in any more prison releases.

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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.”

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White House escort insults and humiliates people with a record

June 25, 2015
President Barack Obama
1600 Pennsylvania Avenue Northwest
Washington, DC 20500

Dear President Obama,

I write to you as a national leader, criminal justice reform advocate, and founder of JustLeadershipUSA, a bold new organization dedicated to cutting the US correctional population in half by 2030 on the guiding principle that those closest to the problem are closest to the solution.

Recently, I had the honor of participating in a strategic planning initiative that addressed both the intersection of, and possible remedies to, the issues of gun violence, policing, and mass incarceration in the United States.  On Wednesday, June 17, 2015, George Washington University Law School served as host to a select group of civil rights and religious leaders, scholars, elected officials, law enforcement officials and foundation officers brought together by The Joint Center for Political and Economic Studies and The Joyce Foundation.

Our day culminated with an invitation to join members of your domestic policy staff in the Eisenhower Executive Office Building for a discussion about their work on these issues. A day of thoughtful and inspired dialogue, however, quickly turned into one of needless humiliation and stigma for me. As each of my colleagues received green passes granting them immediate access, I received a pink ID bearing the label: “Needs Escort.” Its inspiration was quickly and unsurprisingly confirmed: anyone with a criminal conviction requires an escort at all times on the White House grounds. The staggering symbolism of the ordeal was not lost on me, Mr. President. In a country where 65 million people have a criminal record on file, being selectively barred from entering the White House for a discussion about those very same people was as insulting as it was indicative of the broader problem.

Along with millions of others, I have watched with tremendous pride and optimism as your administration has stated that our carceral policies are patently counterproductive. Further, those policies disproportionately target communities of color, running roughshod over our declared principles of justice, fairness, and proportionality in the process. I submit to you that the treatment I received as an invited White House guest, and by extension all others with prior convictions, further erodes the life of those principles. In your letters of commutation you have concluded, “Remember that you have the capacity to make good choices. By doing so, you will affect not only your own life, but those close to you. You will also influence, through your example, the possibility that others in your circumstances get their own second chance in the future.” This counsel is as applicable to our nation’s corridors of power as it is to our most travailed citizens. The work of the mature democracy is to organize itself in such a way that best enables that process without undue hardship.

Along my journey to national advocacy, I’ve disabused myself of several of our national delusions, the most poignant being the myth of the voiceless masses who require the spokesmanship of a noble and courageous few. I never met any of the alleged voiceless during my incarceration, only the deliberately silenced. In the corridors of our nation’s highest office, I found my voice and my person restricted in an agonizingly similar way to that which I encountered in prison. Rather than being debilitated, I walked away further emboldened and hopeful that when guided by a commitment to justice, power might listen.

There is strong evidence to believe that is the case. In your March interview with David Simon you stated rightfully: “Part of the challenge is going to be making sure, number one, that we humanize what so often on the local news is just a bunch of shadowy characters and tell their stories.” There is no expression capable of fully capturing how uplifting these remarks are for millions of our country’s men and women. In the spirit of that conviction, I humbly request a meeting with myself and a select group of other formerly incarcerated leaders at your earliest convenience.

Sincerely,

Glenn E. Martin
Founder and President
JustLeadershipUSA

 

 

Ban-the-box featured on PBS NewsHour

On June 17 the PBS NewsHour featured a debate over ban-the-box policies in hiring. Daryl Atkinson, an attorney with the Southern Coalition for Justice in Raleigh, North Carolina, presented the case in favor of eliminating threshold questions about criminal record on employment applications.  Elizabeth Milito of the National Federal of Independent Business argued the other side, claiming that the costs of ban-the-box for a small business “can be pretty steep.” Read more

Should guilty corporations avoid collateral consequences?

In the June 2 issue of the New York Law Journal, Robert J. Anello and Richard F. Albert argue that “criminal law concepts designed to punish human beings—bad boys and girls—are ill-suited to corporate beings.”  They point out that corporations convicted of crime are rarely required to live with the kind of collateral consequences that result in loss of livelihood and social stigma for individuals (“Convicted Corporations Aren’t Really Bad Boys“).   They describe how the government recently made “significant efforts to blunt the effects” of conviction on four major international banks that pleaded guilty to manipulation of foreign exchange rates, so that none of them ended up subject to “rules that would have restricted [their] ability to continue doing business in the United States.”  The banks are currently seeking a waiver of Labor Department rules that would otherwise bar them from dealing with pension and retirement plans, and the government has postponed sentencing pending the outcome of these efforts.   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.    Read more

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