Recently in Clemency Category

The Parameters for Pardons

| No Comments
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

| 1 Comment
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

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

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

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

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.

Get Ready for the Legalized Jailbreak

| No Comments
If there were any remaining doubt about how thoroughly this Administration is determined to put the interests of criminals over those of ordinary people, let that doubt now be resolved. The new Pardon Attorney, Deborah Leff, might as  well have been chosen by the NACDL (if she wasn't). 

To my knowledge, Ms. Leff has never spent ten minutes prosecuting a federal felony, but will now be principally in charge of a vastly expanded Pardon Office to evaluate the release-worthiness of thousands of federal felons.

Read for yourself what she has said, and tell me she thinks there is any criminal, anywhere, for whom an excuse can't be cobbled together.

Silver lining:  With every harshly sentenced drug pusher now on the fast road to a commutation, the engine behind Smarter Sentencing Act has just blown a gasket.

DOJ Switches Sides

| 1 Comment
Yesterday, I wrote about the political motivation that lies behind DOJ's push to commute the sentences of thousands of drug dealers.  Essentially, it's a move to spike turnout among Obama's base in the mid-term elections later this year.

Of course, to say that the coming mass of sentence commutations is politically motivated is not necessarily to say that it's a bad idea on the merits.

And it's not a bad idea.  It's a truly awful idea  --  technically legal but actually lawless, and certain to produce more of the social destructiveness and misery that comes with drug trafficking.  The Administration is simply ignoring what its own data, released this week, demonstrate:  That more than three-quarters of convicted drug offenders go back to crime after their release from prison.

There are those of us who thought the prosecuting arm of the government was there to put bad guys away.  Under this Administration and its view of America as the oppressor and criminals as the oppressed, all that has been reversed.  The Justice Department exists, not to incapacitate lawbreakers, but to put them back in business.

Your tax dollars at work.

The Racial Politics of Clemency

The Obama Administration's Department of Justice is going all-out in its drive for clemency for a large segment of federal inmates convicted of drug offenses. It's also making a big display of it, with a prominent rollout this week.

Why?  And why now?

This is the depressing answer:  Politics, and specifically the politics of the mid-term elections, in which control of the Senate is widely thought to be at stake.

That answer probably seems counter-intuitive. The conventional wisdom is that Presidential clemency is a political loser.  It got a bad name with Clinton's midnight pardons on the way out the door, and hasn't really recovered. Polling confirms what common sense and experience tell us:  The public overwhelmingly thinks that the problem in the criminal justice system is not that we have too many prisoners serving sentences that are too long, but that too many criminals are released too early. This is why Presidential pardons have so often been given at Christmastime, which provides the cover of compassion in addition to being conveniently the month after the election.

So what's the difference this time?
...there were leaders who sought to put criminals in jail, rather than get them out.  

Yes, well, that was then.  The Justice Department that exists now goes hat-in-hand to pro-criminal groups, seeking their assistance in snuffing perfectly legal sentences for guilty men.  It does this while turning its back on the career prosecutors who, under increasing hardships and sometimes under threat, work to enforce laws the Attorney General sniffs at.  Meanwhile, DOJ embraces as one of the Attorney General's top Assistants a man who made his bones doing a PR campaign for a cop killer.

At this point, it's fair to ask:  Who is the Department of Justice working for?

Why Executive Clemency Has a Foul Aroma

| 1 Comment
The frequency of executive clemency in this and the previous Administration is far short of the historical norm.  I suspect this is soon to change; DOJ has all but begged its numerous friends (and future law partners) in the defense bar to "suggest" good candidates for pardons or commutations. 

Many, including me, believe that the recent reluctance to use clemency stems in part from its scandalous misuse by Bill Clinton on his way out the door on January 20, 2001. Probably the most famous of these episodes was the pardon granted fugitive billionaire Marc Rich  --  a pardon facilitated by then-Deputy AG Eric Holder, through a series of (at the time) undisclosed calls to White House Counsel's Office, calls that intentionally circumvented normal DOJ procedures. Another was for the President's half-brother, Roger Clinton, a drug dealer who had finished his prison sentence.  Yet a third was for Susan McDougal, who stonewalled the grand jury investigating the Whitewater scandal and had served 18 months for criminal contempt.

Given that illustrious lineup, people generally do not remember the pardon given Mel Reynolds, a Democratic Congressman from Chicago (where else?), who had been convicted of an odd combination of bank fraud, sexual assault, obstruction of justice and solicitation of child pornography. (Mr. Reynolds' seat was filled by that relative choirboy, Jesse Jackson, Jr., who merely swindled his campaign for three-quarters of a million dollars).

If you were wondering why reluctance to grant clemency lingers, here's a clue:  Mel is back in the news.
Federal public defenders are screaming loudly across the country that the sequester has cut their budgets below what is necessary to perform their essential functions.  Yet some FPDs continue to squander public funds filing claims they should not be filing.

Edward Schad's long-overdue execution is scheduled for tomorrow in Arizona.  The US Supreme Court opinion affirming the judgment on direct appeal 22 years ago is here.

In addition to all the challenges to the court proceedings, the federal public defender filed an action attacking the executive clemency proceedings.  The primary US Supreme Court precedent on such an attack is Ohio Adult Parole Authority v. Woodard (1998).  This is a 4-4-1 split opinion, so we have to pick our way through two opinions to decide what has been decided and what is open.  Judicial review of executive clemency, a core function of a coordinate branch of government, is allowed either (1) never, or (2) only under extreme circumstances, such as decision by flipping a coin or cases of bribery.  Which of these alternatives is correct is unresolved, but the law is certainly no more favorable to the inmate than (2).

As is evident from the Ninth Circuit's opinion in Schad's case, nothing remotely close to alternative (2) is involved in this case.

So why were scarce resources, needed to perform the FPD's core functions, squandered on this patently meritless action? 

Arnold's Buddy Commutation Stands

| 1 Comment
A lot of us in California had great hope for change when the Governator blew into office, but he slid downhill and ended on an especially ignominious note.  He granted a commutation to the son of a former Speaker of the Assembly, just because the ex-Speaker was his buddy.  The son had already received leniency in the form of a manslaughter conviction for an act that was probably murder.

The victim's parents filed suit to attack the commutation.  Today, the SacBee reports, Sacramento Judge Lloyd Connelly denied relief.

From the bench, Connelly said that even though he found the commutation of Esteban Núñez "distasteful," "repugnant," and "outside the normal realm...of fundamental justice," he said that the executive authority of the governor gives the office the right to make such decisions.

"It's a discretionary right," Connelly said of the governor's power to commute sentences. He added that the people, through the state constitution, have given the governor the right "to make decisions outside the normal criminal justice process."

That is completely correct.  As repugnant as the result is in this case, this is a fundamental separation of powers matter.

Monthly Archives