Recently in Clemency Category

CJLF has blogged from time to time about the mass clemencies the President is planning (now that he will not have to face the voters again).  In order to facilitate the clemencies, and the spike in crime we know is sure to follow, the Clemency Project is busy as a bee. Indeed, they're so busy that, according to this National Journal article, they're making up their own rules and setting the deadlines under which judges must act in authorizing the release of case information.

N.B. The article names two lawyers in particular.  I have deleted their names because I have not independently fact-checked the piece and, even more important, this blog is about issues  --  like mass clemency to by-pass judicial outcomes deemed not favorable enough to the criminal  --  and not about personalities. 
In my last entry, I introduced Daniel Horowitz's analysis of the origin of the push for mass de-incarceration (called by the intentionally opaque name "sentencing reform"), and where the movement is headed.  I want to continue to explore the ideological anchors of "sentencing reform," and what they tell us about the movement's eventual destination.  (Hint:  Although sentencing reform has attracted some prominent libertarian allies, libertarianism is not its wellspring, nor liberty its goal):

Horowitz notes:

Given Obama's disregard for enforcing laws he dislikes and his aggressive desire to transform the country and dismantle law enforcement, this development [much greater use of clemency than in recent decades] should put goose bumps on anyone concerned with the rule of law, aka, most Americans outside of public policy circles. If Obama is this alacritous to sign a get-out-of-jail free card with 18 months left to his presidency, it's clear that this is the tip of the iceberg. 

This is, in an odd way, a bit unfair to Obama, who has disregarded laws he likes, not just those he doesn't.  He has, for example, repeatedly ignored ACA deadlines when it became clear that enforcing them as written would be politically inapt.

The more troubling question for our purposes, however, is what exactly lies beneath the tip of the sentencing transformation iceberg.


Is the Criminal Justice System Broken?

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There are two central themes in the President's Criminals-Are-Cool week-long campaign:  That the criminal justice system is "broken," and that the way to fix it is through softer sentencing and earlier release for convicted felons, mostly including (so far) dealers in hard drugs.

As I show after the break, both themes are breathtakingly false.  For now, however, I want to ask why the press (and almost all of academia) is so ready to believe them.  I think the answer is deeper than merely their affinity for a Democratic President.  The answer hinges on who the questioner thinks is more worth focusing on.

The outlook taken by the President and his backers focuses on convicts.  They are, in the view of leftist ideology, "the other"  --  the downtrodden, the "marginalized," society's victims.  Questions about how, specifically, they wound up in prison are not encouraged, nor are questions about their exact number. Simply letting it go with the catchy phrase "incarceration nation" will do.  (In fact, zero point seven percent of the population is incarcerated and ninety-nine point three percent is not).

The opposing outlook focuses on normal people with families and jobs, people who are not looking to make a fast buck stealing or swindling or selling coke to your 15 year-old.  To these people, is the criminal justice system "broken?"
Do criminals owe a debt to society, or is it the other way 'round?  

The Obama Administration's answer is no longer open to serious doubt.  As ABC News reports:

The 46 sentence reductions [Obama granted today] are the most presidential commutations in a single day since at least the administration of President Lyndon Johnson, according to the White House. Overall, Obama has commuted sentences of 89 people, surpassing the combined number of commutations granted by Presidents Ronald Reagan, George H.W. Bush, Bill Clinton and George W. Bush.

They represent a sliver of all those seeking clemency: Justice Department statistics show that roughly 2,100 commutation petitions have been received so far this fiscal year, and about 7,900 are pending.

White House counsel Neil Eggleston predicted the president would issue even more commutations before leaving office, but added that "clemency alone will not fix decades of overly punitive sentencing policies."

The president this week is devoting considerable attention to criminal justice. In addition to his speech Tuesday [to the NAACP Convention] in Philadelphia, he is to become the first sitting president to visit a federal prison when he goes to the El Reno Federal Correctional Institution outside of Oklahoma City on Thursday. He'll meet with both law enforcement officials and inmates.

Some might think that "overly punitive sentencing policies" had something to do with the dramatic drop in crime in the last quarter century, but that goes unmentioned in the story and unseen in the President's outlook.  



No Remedy for Wrongful Clemency

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I have previously noted on this blog the infamous clemency granted by former California Governor Schwarzenegger to the son of a political buddy, as well as my assessment that attempts to fix this judicially were hopeless.  (See posts here and here.)  Today we got the expected result from the California Court of Appeal, Third District, in an unpublished decision (C072785):

We are compelled to conclude that, while Schwarzenegger's conduct could be seen as deserving of censure and grossly unjust, it was not illegal. Marsy's Law, despite its obviously expansive protection of victims' rights does not restrict the executive's clemency powers under California Constitution, article V, section 8, subdivision (a) or the clemency statutes, and we must affirm the judgment. Our holding is limited to subdivision (a) executive clemency and does not apply to the Governor's power under subdivision (b) of the same constitutional provision to reverse or modify a parole decision of the Board of Parole Hearings "on the basis of the same factors" the board is required to consider.
On the last day of March (thus shrewdly avoiding April Fools Day), President Obama granted 22 clemencies, the great majority to cases involving hard drugs.  I blogged about it here.  

I did not put forth a comprehensive theory of the standards for executive clemency, and it's probably imprudent to attempt such an ambitious enterprise on a blog. Nonetheless, and with all the modesty due from someone who involved himself more in putting criminals in prison rather than taking them out, I'll attempt at least a brief sketch.

The Flood Begins

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If you like your drug dealing, you can keep your drug dealing.

That's the message President Obama sent with the numerous drug clemencies he granted yesterday, as detailed in this article from USA Today. And plenty more are coming:

[I]t could represent the crest of a new wave of commutations that could come in Obama's last two years in office. Last year, the Justice Department announced a new clemency initiative to try to encourage more low-level drug offenders to apply to have their sentences reduced. That resulted in a record 6,561 applications in the last fiscal year...

It's scarcely news that this Administration is as soft on drugs as it is on deserters  -- that's depressing but not surprising.  What's surprising is this, also from the article:

Obama wrote each of the 22 Tuesday, saying they had demonstrated the potential to turn their lives around...."Now it is up to you to make the most of this opportunity. It will not be easy, and you will encounter many who doubt people with criminal records can change," Obama wrote. "I believe in your ability to prove the doubters wrong."


Question:  Did Obama ever write a warm, personal note to the soldiers who risked life and limb trying to recover Bowe Bergdahl?

The Parameters for Pardons

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The New York Times invited my participation in its "Room for Debate," on the subject of executive clemency.  The immediate cause of the Times's interest in clemency might be the talented movie star and former teenage thug Mark Wahlberg, but there is a much larger move afoot here, signaled by the Administration's massive effort to enlist the defense bar and allied organizations in proposing literally thousands of clemency candidates  --  a thoroughly unprecedented approach to pardoning.

My take on it in the Times is much what you'd expect from a person with generally conservative principles:  The system is certain to make errors and we should try to correct them.  We need to be clear, however, about the further errors we'll make in the attempt, and understand the different, but no less real, set of costs and risks we will create.  Finally, the Constitution should be honored both in its provision of plenary power to the President in this area, and in its overriding instruction to him that he take care faithfully to execute the laws as Congress wrote them.  

Taken together, what those things mean is that the President should not fear to use clemency in cases of clear-cut injustice worked on individual defendants.  But he should take equal care that his clemencies are not undertaken simply as an expression of disagreement with existing law, or any set of such laws.  If the President ignores this latter caution, he will effectively re-write the Constitution to provide a "forever" veto-option, in which Presidents months, years or decades after duly enacted statutes take effect could issue the new, omnipresent, limitless "veto" against any not then to his liking, simply by pardoning every federal felon convicted under them.

That would be exploding  the pardon power beyond recognition, to the point of constituting a quasi-usurpation of Congress's sole  authority as the law-making body.

The Bergdahl Non-Pardon

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Early last month, on Sgt. Bowe Bergdahl's return to American forces in Afghanistan, I wrote the following:  

In recent days, the Administration has justified releasing five top terrorist commanders to return to the battlefield (after a fig-leaf stopover in Qatar) on the grounds that Bergdahl was still an American soldier, and America does not leave its people behind.  The President's supporters tell us that, if Bergdahl deserted  -- or even became a collaborator  --  we have the military justice system that will, at the right time, fully investigate the matter, put the facts on the table, and, if warranted, impose punishment.

Ladies and gentlemen, it's not gonna happen.  There isn't going to be any honest investigation, and there isn't going to be any punishment.  The President is going to issue a preemptive pardon to make sure the process never gets off the ground.

It may be time for me to confess error.  I overestimated the President's willingness to act directly and take responsibility for letting Bergdahl off the hook.  It now appears more likely that, while I was correct in saying there isn't going to be any honest investigation, there may not be any pardon as such, either.  Why should there be? Why should there be, that is, when the President can just believe  --  not unintelligently  -- that, if dragged out for long enough, the whole thing will disappear into the fog of even more prominent scandals?

The Coming Bergdahl Pardon

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Most reliable reports suggest that five years ago, as the battle against the Taliban was fully underway, Sgt. Bowe  Bergdahl voluntarily left his post after becoming disillusioned with what he viewed as the enormous damage the United States had done to Afghanistan.  In other words, he deserted.  He may have defected; that is unknown for the moment.

In recent days, the Administration has justified releasing five top terrorist commanders to return to the battlefield (after a fig-leaf stopover in Qatar) on the grounds that Bergdahl was still an American soldier, and America does not leave its people behind.  The President's supporters tell us that, if Bergdahl deserted  -- or even became a collaborator  --  we have the military justice system that will, at the right time, fully investigate the matter, put the facts on the table, and, if warranted, impose punishment.

Ladies and gentlemen, it's not gonna happen.  There isn't going to be any honest investigation, and there isn't going to be any punishment.  The President is going to issue a preemptive pardon to make sure the process never gets off the ground.

This is not just because the entire episode has turned into a P.R. disaster for the White  House, one that started when Bergdahl's  father showed up arm-in-arm with Obama wearing a Taliban-style beard and praising Allah in Arabic, although that's a good deal of it.  It's because, among other things, Obama doesn't see that much wrong with Sgt. Bergdahl's view of the matter.


It's difficult to imagine an episode in which the President's disregard of a major national security law he signed last year is the least important part of the story, but Obama has pulled it off in his terror-abetting deal that will bring home Sgt. Bergdahl.

Paul Mirengoff leaves nothing to the imagination in his Powerline piece, in which he notes, inter alia:

Nearly all of the exceptional elements of Obamaism are present. The president appeases a deadly enemy (recall his statement that he hopes through the exchange to gain the trust of the Taliban); makes life more dangerous for an ally we are about to abandon (Afghanistan will bear the brunt of the terrorism unleashed by the five Taliban commanders); and disregards American law (which required him to consult with Congress). Moreover, he does all of this on behalf of an anti-American deserter and his jihadist-sympathizing father.

You couldn't make this up.


At the end of the piece, Paul quotes me asking what more Obama can do to damage the country.  Of course I don't know exactly, but there are those thousands of heroin pushers yet to get their promised clemency....

America's Political Prisoner

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I wrote earlier about how the Administration's on-the-fly (and false) explanation of the Benghazi murders led to the imprisonment  --  on a "parole violation"  -- of Nakoula Nakoula.  Mr. Nakoula had the misfortune of having produced the snarky Internet video, the "Innocence of Muslims," that got dragooned as the State Department's excuse for the attack on our embassy.  The video whipped up a spontaneous mob, so the tale would be told.

Only it was a classic Inside-the-Beltway cover story.  There never was a spontaneous mob.  There was a planned terror attack, one the embassy was ill-equipped to repel because the State Department for months had been turning a deaf ear to requests for more security.

That would have made a really, really bad story for an Administration that's been telling us al Qaeda is on the run, and an even worse story for the head of the bungling, distracted State Department, a lady rumored to have political ambitions.

What to do?  What else  --  create a fall guy!!!  And who better than a shady swindler with a funny name like "Nakoula Nakoula."  Put it on him and take him off to the slammer.

The only real problem is that America, up to now, doesn't have much of a tradition of taking political prisoners.

What Clemency Will Actually Look Like

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The Justice Department, and Deputy Attorney General James Cole in particular, have been broadcasting loud and clear that they intend aggressively to seek out, and recommend the granting of Presidential clemency for, hundreds if not thousands of federal inmates.  We have been assured, of course, that only non-violent inmates will be included, and that there will be no or negligible risk to public safety.

Do you believe that?

One way of assessing how future discretionary release decisions are likely to be made is by looking at how the present ones are made.  And that's where an item in today's News Scan comes in.  It referred to a Fox News story to the effect that, last year,  "Immigration and Customs Enforcement (ICE)  released more than 36,000 'convicted criminal aliens' who represented a total of 88,000 convictions." 

I think the story is more notable than just recounting it in the News Scan might suggest, not least because it's a window into how much we can trust the Administration's promise that its clemency grants will not degrade our safety. 

The Forgotten Scapegoat Defendant

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It's a  staple of the defense bar that an accused should not wind up in prison in the service of a political agenda.  Although I often disagree with the defense, in this they are 100% correct.  Putting people in the slammer because of the political needs of those in power is odious to American justice.  It's the stuff of banana republics  -- banana republics and tyrannies.

In all the recent talk of mass clemency for hundreds or thousands of drug pushers, I have yet to hear anyone in DOJ or elsewhere in the Administration mention giving consideration of clemency to the one non-violent federal defendant who, more obviously than any other I can remember, wound up behind bars (now in a halfway house) in the service of political expediency.  That would be Nakoula Nakoula.

And who, you ask, is Nakoula Nakoula?

He's the fellow who produced the famous Internet video, "Innocence of Muslims," that the Administration ubiquitously, immediately and aggressively  --  but falsely  -- blamed for the Benghazi attack, saying that it whipped up a frenzy among random Islamic passers-by.  

This was a point-blank lie.  It was  a pre-planned terrorist attack, something the CIA and the State Department knew almost immediately, and that is now no longer questioned by anyone.
I have opposed the Smarter Sentencing Act because it's bad policy:  It turns its back on our success in reducing crime to re-embrace our past failures, and it does so because, perversely, it views the incarceration rate as more important than the crime rate.

It is now clear, however, that even accepting the arguments for the SSA on their own terms, recent developments show that the Act is unnecessary.

The primary arguments for this legislation are twofold:  First, that, with tight budgets and so much borrowing, we can't keep spending more on prisons; and second, that some mandatory minimum sentences under existing law are excessive, given the (to some) sympathetic circumstances of the defendants serving them.

Assuming agruendo (and only arguendo) that these arguments had merit last summer when support for sentencing "reform" started percolating to the surface, I have good news. Times have changed.

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