Recently in Clemency Category

This New York Times editorial spills the beans on the realistically possible scope of Pres. Obama's plans for mass clemency. Its most revealing sentences are:

After seven years in office, Mr. Obama has issued a total of 184 commutations and 66 pardons -- more grants, as the White House wasted no time in pointing out, than the last six presidents combined....By the administration's own estimates, [however], as many as 10,000 people could be released under the new criteria, former Attorney General Eric Holder Jr. told The Washington Post this month. So why is Mr. Obama continuing to make grants in the single or double digits?

The NYT misses the obvious answer to this question.  Mr. Obama, a shrewd politician if nothing else, is waiting for Republicans, sometimes (and often aptly) called the Stupid Party, to give him political cover.  He knows that, at his urging and with his support, the Republican Senate is considering its own mass clemency, to wit, a bill that would significantly lower sentences and do so retroactively.  That this is markedly unpopular with the public has not sunk in with the Stupid Party, at least not yet.

Why should Mr. Obama take the (fully deserved) political risks of mass clemency when the Stupid Party will do the work for him  --  and take the blame too?  Mr. Obama can kill two birds (actually, three) with one stone  --  he'll stoke his core liberal interest groups, weaken America with more crime, and quite plausibly pin it all on the political opposition!

Republicans often chide Obama for being full of himself.  But if he pulls off a trifecta like that, who could blame him?

The only fly in the ointment is that Republicans might wake up at the last minute and make Obama do the lifting for, and take  ownership of, his own pro-criminal agenda.  True, revived alertness from Republicans will do nothing to save the country from the Presidentially-engineered recidivist crime wave  --  this on top of the present murder and heroin crime wave  --  but it will have at least the virtue of pinning responsibility for it where it belongs.

Will the Republicans wake up?  Some, like Sen. Mike Lee, seem too ideologically dug in to hear the alarm clock.  But there is realistic hope that more serious men, like Senate Majority Leader Mitch McConnell, will understand how Republican-sponsored mass clemency will weaken both the Party, and more importantly, the country, and let the Senate sentence reduction bill die the quiet legislative death it deserves.

That way, if and when Obama goes through with his mass executive clemencies  --  say, the day after the election we're having in ten months  --  at least it will be clear who owns the ensuing recidivism spree.
The National Association of Assistant United States Attorneys has issued a press release questioning the President's mass clemency, and asking for disclosure of more information about its recipients.  NAAUSA notes:

On Friday, December 18, President Obama, working in conjunction with the Justice Department, ordered the early release of another 91 convicted drug traffickers from fully lawful sentences their criminal behavior had earned. This brings to approximately 150 the number of traffickers given early release through executive clemency in just the last 14 months.

When it announced the clemency project, the Administration committed to granting clemency only if six specific criteria were met, including that the defendant was a non-violent, low-level offender, did not have a significant criminal history, and had no history of violence. Sadly, that has not been the case.

In fact, many of the drug traffickers being released had armed themselves (one with 40 firearms); many were leaders or supervisors in their crimes (one was the lead defendant in a 69 day trial); many had multiple prior felony convictions (one had 8 prior felony drug trafficking convictions); and the vast majority were involved in conspiracies to distribute large quantities of dangerous drugs, often hundreds of thousands of dollars' worth of methamphetamine or cocaine.

Significantly, these clemency releases are in addition to the 46,000 drug traffickers who are being released through retroactive softer sentences the White House and the Justice Department sought from the U. S. Sentencing Commission. As has been widely reported, 6,000 to 8,000 of these convicted drug traffickers were released early last month, and another 8,500 will be released in the next ten months. 

No one is claiming these released traffickers are innocent, nor that the drugs they trafficked are harmless. No one is claiming that some -- probably most -- won't do it again. In fact, this class of drug offenders deals in potentially lethal drugs and has a high rate of recidivism (up to 77% according to a study by the Bureau of Justice Statistics). And no one can provide certainty that addicts - the young, the old, the weak and the vulnerable - will not die as a result of these releases.

That Didn't Take Long

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I noted last week that Washington state, ever in the vanguard of progressive criminal justice (such as its Governor's refusal to carry out lawful executions), had given early release to thousands of prisoners.  This was earlier than intended, mind you, and it was less progressivism than garden-variety carelessness, despite the numerous assurances we hear that early release programs will be carried out with great discretion.  They will, so we are told, keep us just as safe as we are now.

No doubt, unless you're Lindsay Hill, or, more correctly, the late Lindsay Hill.  Here's the story:

A Washington state prisoner mistakenly released early because of a computer error has been charged with killing his girlfriend in a car crash when he should have been behind bars, officials said Monday.

The revelation comes a week after Gov. Jay Inslee announced that a software coding error led as many as 3,200 offenders to be wrongly released since 2002. He has ordered a review of prisoner releases ahead of a broad fix to the software problem, which is expected early next month.

One of those freed was Robert Jackson, 38, who walked out of prison Aug. 10, four months too soon. He had been convicted of robbery with a deadly weapon and should have been released Dec. 6.

During that time, he fled from a Nov. 11 wreck in Bellevue that killed his girlfriend Lindsay Hill, 35, who was riding in the car he was driving, according to prosecutors and Department of Corrections officials.

Jackson has been charged with vehicular homicide and felony hit-and-run and is being held in jail on $2 million bail, prosecutors said.

He was speeding and impaired by drugs or alcohol at the time of the accident, prosecutors said.

Gosh, what a surprise that a previously convicted felon would flout the law again!

...until it actually starts, in which can read about it here.

This is enough to make Prop 47 seem like a model of paying attention.
The reason is that Barack Obama will do the "reforming" all by himself.  He showed this again today by issuing yet more (literal) "get-out-of-jail-free" cards.  He has now issued more commutations than his immediate four predecessors combined  -- Ronald Reagan, George H. W. Bush, Bill Clinton, and George W. Bush.  But that's OK, because we know that Obama is a more humane and far-sighted man than any of those cretins.  Either that, or his political base is rooted in criminality and the Soros-funded interest groups that speak up for it, and him.

There several notable things about today's dozens of clemencies  --  notable for their implications about politics, governance, and justice.  For now, I want to discuss just one: The red flag raised for pro-sentencing "reform" Republicans.

DOJ Formally Launches Next Crime Wave

The LA Times story begins:

About 6,000 drug offenders will be released from federal custody over the next few days, but some legal experts warn that the government has done too little to help many of them successfully reintegrate into society.

Note the assumption that responsibility rests with the government to "reintegrate" those released, rather than upon them to lead normal, honest lives.

Still, moving right along. let me ask this:  When these people start up with a criminal life again, as we know in advance many and very likely most of them will, who will be accountable for the release decisions, and who will pay the price for the harm then caused?

My prediction is nobody and nobody.

Hold me to it.
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?

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

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?

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