Sentencing Class @ OSU Moritz College of Law

Excited for student presentations after a week of clemency commentary

Just a reminder to everyone that, as we start the first week of student presentations, we will be going back to meeting in Room 348.  I look forward to seeing everyone there no later than 4pm so we have adequate time for the scheduled presentations.

Meanwhile, I assume all clemency fans have been seeing some of the commentary that Prez Trump's grants last week have engendered.  Just a very small sample of the buzz his clemency work engendered is covered in these posts at my other blog:

• "Trump grants clemency to 11, including former junk bond king Michael Milken" 
• Recognizing historic modern first-term commutation work by Prez Trump in a single day 
• Lots of notable clemency news and notes and commentaries after Prez Trump's flourish of mercy 
• Whom else should Prez Trump pardon?

What went wrong (or right) with the Obama Administration's clemency initiative? What are its substantive and procedural lessons?

Our last class of general discussion (before we turn to student presentations) will focus on the ground-breaking and controversial clemency activity during the final years of the Obama Administration.  I handed out in class last week this basic web review of the initiative as described by the US Department of Justice.  Among many topics I am eager to discuss in class, I would like to get your reaction to the substantive criteria that the were set out as part of the initiative.  Specifically, as explained by DOJ:

Under the initiative, the Department prioritized clemency applications from inmates who met most, if not all of the following factors:

• They are currently serving a federal sentence in prison and, by operation of law, likely would have received a substantially lower sentence if convicted of the same offense(s) today;
• They are non-violent, low-level offenders without significant ties to large scale criminal organizations, gangs or cartels;
• They have served at least 10 years of their prison sentence;
• They do not have a significant criminal history;
• They have demonstrated good conduct in prison; and
• They have no history of violence prior to or during their current term of imprisonment.

I have linked in this prior post, and will link here again for convenience, two reports on the Obama Administration's clemency initiative that were prepared after President Obama left office: (1) U.S. Sentencing Commission, An Analysis of the 2014 Clemency Initiative (2017); (2) NYU Law School Center on the Administration of Criminal Law, The Mercy Lottery: A Review of the Obama Administration’s Clemency Initiative (2017).  Another important report reviewing the Obama Administration's clemency initiative came from the Department of Justice's own (3) Office of the Inspector General, Review of the Department’s Clemency Initiative (2018).  The executive summary of this OIG report provides important background as to some reasons why the clemency initiative was problematic and subject to considerable criticisms:

We found that the Department did not effectively plan, implement, or manage the Initiative at the outset.  However, subsequent actions by Department leadership enabled the Department to not only meet its goal of making recommendations to the White House on all drug petitions received by the deadline of August 31, 2016, but also to make recommendations on over 1,300 petitions received by OPA after the deadline.  In total, as a result of the Initiative, the Department made recommendations to the White House on over 13,000 petitions, resulting in 1,696 inmates receiving clemency.

Our review identified several shortcomings in the Department’s planning and implementation of the Initiative.  Because of philosophical differences between how the Office of the Deputy Attorney General (ODAG) and OPA viewed clemency, Department leadership did not sufficiently involve OPA in the Initiative’s preannouncement planning.  Moreover, despite the Department’s stated commitment to provide OPA with the necessary resources, the Department did not sufficiently do so once the Initiative began.

The Department also did not effectively implement the Initiative’s inmate survey, which was intended to help the Department identify potentially meritorious clemency petitioners. For example, rather than survey only those inmates who likely met the Initiative’s six criteria, the survey was sent to every Federal Bureau of Prisons inmate.  As a result, CP 14 and OPA received numerous survey responses and petitions from inmates who clearly did not meet the Initiative’s criteria, thereby delaying consideration of potentially meritorious petitions....

Further, the Department experienced challenges in working with external stakeholders to implement the Initiative.  For example, the Department did not anticipate that CP 14 attorneys would have challenges in obtaining inmate Pre-sentence Investigation Reports and, as a result, it took almost a year before the Administrative Office of the U.S. Courts allowed CP 14 attorneys to access them, which hampered CP 14’s ability to make timely eligibility determinations.  We also found that the Department and CP 14 had very different perspectives regarding CP 14’s role in the Initiative.  In particular, while the Department expected CP 14 to focus on identifying and submitting petitions on behalf of inmates who were strong candidates for clemency, CP 14 instead viewed its role as assisting and advocating for any inmate who wished to file a petition.  As a result, the Department believes CP 14 took longer to complete its work.

Our review also identified several weaknesses in the management of the Initiative in its early stages.  For example, there were differing views on how to interpret the Initiative’s six criteria.  The Initiative’s announcement stated that the criteria would be used to prioritize consideration of clemency petitions.  However, we were told by then Deputy Attorney General James Cole that petitions from inmates who did not meet all six criteria would not be considered.  Yet, then Pardon Attorney Deborah Leff directed OPA staff to review and provide recommendations to ODAG on every clemency petition, regardless of whether the inmates met all six criteria.  We found that OPA continued to view the criteria as subjective even after being advised by ODAG that it was applying the criteria strictly.  Lastly, although not one of the six criteria, the Administration decided that non-citizens would not be considered for clemency.  This was a significant criterion given that, at the time, approximately 25 percent of all federal inmates were non-citizen; yet the Administration did not publicly announce this decision and, as a result, non-citizen inmates filed clemency petitions and OPA spent time reviewing and processing them.  While under Deputy Attorney General Sally Yates, the Department did recommend clemency for some non-citizens, President Obama ultimately did not grant clemency to any non-citizens under the Initiative.

Additionally, we found that U.S. Attorneys did not always provide their views on clemency petitions to OPA within 30 days, as required by Department policy.  For example, as of December 1, 2016, nearly 600 OPA requests to U.S. Attorneys had been awaiting a response for more than 30 days.

There has been some writing in various law reviews about the Obama Administration clemency initiative, and here are examples:

• Mark Osler, Fewer Hands, More Mercy: A Plea for a Better Federal Clemency System
• Paul J. Larkin, Jr., 'A Day Late and a Dollar Short': President Obama's Clemency Initiative 2014
• Multiple authors in special June 2017 issue of the Federal Sentencing Reporter, "Obama’s Clemency Project: Looking Back"

I do not expect students to read all that much of all these materials, but I will like to talk about how you think future Presidents will react and should react to all that transpired with President Obama's clemency work.

The rest of our class readings ("save the trees" edition)

Though you are soon to turn to conducting research and preparing your presentation/papers, I am here going to be recommending additional reading for background information to advance our on-going class discussions.  Specifically, there are two sets of readings that were on the syllabus that I want to provide here (and I may print out and distribute some of these pieces, but for now I am going to spare the trees and just enable/encourage your review on-line).

For some more history and ideas about the federal clemency power: (1) Charles Shanor & Marc Miller, Pardon Us: Systematic Presidential Pardons, 13 Fed. Sent’g Rept. 13 (2000); (2) Margaret Colgate Love, The Twilight of the Pardon Power, 100 J. Crim. L. & Criminology 1169 (2010)

For lots of details on Prez Obama's use of the federal clemency power: (1) U.S. Sentencing Commission, An Analysis of the 2014 Clemency Initiative (2017); (2) NYU Law School Center on the Administration of Criminal Law, The Mercy Lottery: A Review of the Obama Administration’s Clemency Initiative (2017)

Continuing discussion of "ideal" clemency process

In class this week, we will finish up discussing Woodard's account of what the Constitution demands (and does not demand) in the form of required process for those seeking clemency.  And then, as mentioned at the end of last class, I want us to explore various visions of what we might view as an ideal clemency process.

As we think about the clemency process, we might find it useful to discuss both (A) the broad "system structure" for clemency decision-making, and (B) the individual "case specific" process.  As for structure, questions arise concerning, e.g., whether to prefer decisions to be entirely in the hands of Governors/Presidents or to involve some kind of reviewing board; whether to want a legislature to create some standards or limits for clemency work. As for the case-specific, questions arise concerning, e.g., whether and how defendants can have legal counsel and present evidence; whether clemency decision-makers should provide some formal explanation for its rulings.

In addition to contemplating these sort of matters, please also remember to send me your top two presentation dates from these options.

Another round-up of clemency news and notes

I will here continue rounding up of some clemency news and commentary from a little Google news searching.  Once again, here I will provided the jurisdiction, headline and link:

• Federal: "Trump’s Super Bowl Commercial Features Alice Johnson Discussing Her Clemency"

• Florida: "Florida Clemency Panel Gives Felons Path to Regain Vote"

• Louisiana: "Will Gov. John Bel Edwards ramp up use of clemency power as part of criminal justice reform efforts?"

• Michigan: "Michigan inmate serving 60-year sentence for selling weed requests clemency"

• Mississippi: "Granting Clemency One Solution to Mississippi Prison Crisis"

• Ohio: "Governor DeWine grants pardon to Columbus man, 31 years after crimes"

UPDATE:  The Washington Post has this long new article about the federal clemency power headlined "Most Trump clemency grants bypass DOJ and go to well-connected offenders."  It gets into the nitty-gritty of the federal clemency process.