February 24, 2020

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:

February 24, 2020 in Class activities, Clemency | Permalink | Comments (0)

February 17, 2020

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

Us_presidential_pardons_obamaOur 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:

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.

February 17, 2020 in Class activities, Clemency, Who decides | Permalink | Comments (0)

February 07, 2020

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)

February 7, 2020 in Clemency, Who decides | Permalink | Comments (0)

November 04, 2019

Understanding the challenges of criminal history through the Armed Career Criminal Act

Thanks to everyone for being a great audience for our special guest today, and now we get back to our regular programming.  As promised, we are starting a turn toward a discussion of whether, when and how "offender circumstances" should to be considered at sentencing.  Though I mentioned age in class, we will start with slightly less controversial topics like criminal history and plea/cooperation discounts.  I suspect we will only get through the criminal history discussion on Wednesday, in part because the issue is a lot harder than you might first imagine.

The Supreme Court's ruling in Johnson v. United States in particular, and the operation of the Armed Career Criminal Act (ACCA) in general, provide a great setting to unpack the challenges of criminal history.  The Johnson case is excerpted in our casebook at pp. 295-300, and you may find it helpful to first focus on the general provisions of ACCA at 18 U.S.C. § 924(e), which provides (with key language emphasized):

In the case of a person who violates section 922(g) [prohibiting certain kinds of illegal possession of a firearm] and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years, and, notwithstanding any other provision of law, the court shall not suspend the sentence of, or grant a probationary sentence to, such person with respect to the conviction under section 922(g).

In other words, commit a firearm possession offense when already having three significant priors and there is a mandatory minimum prison term of 15 years.  This US Sentencing Commission document provides some basic data about the sentencing of firearm offenders that shows ACCA's dramatic impact:

In other words, for the same basic offense conduct and convicted of the same criminal statute, federal defendants on average receive more than a decade longer in prison (roughly three times longer) due to having certain types of prior offenses.

ACCA was one part of the massive Comprehensive Crime Control Act of 1984 (the Act which also created the US Sentencing Commission), so this distinctive mandatory minimum sentencing statute was never voted on independently.  Imagine being a member of Congress right now being asked to sign on to a bill proposing to repeal ACCA in its entirety (as a partial response to Johnson).  Would you support outright repeal or instead seek to amend 924(e)?  What kind of amendment would you seek?

November 4, 2019 in Clemency, Guideline sentencing systems | Permalink | Comments (2)

December 30, 2017

Welcome the the class blog of Sentencing Law @ Moritz College of Law (with first week details)

This blog got started over 10 years ago (with the uninspired title of Death Penalty Course @ Moritz College of Law) to facilitate student engagement in a Spring 2007 course on the death penalty.  Because the blog proved successful during that semester, and because the students' hard work as reflected in the archives still generates web traffic, I have kept repeatedly building subsequent sentencing classes on this platform by rebooting this blog for each new course.  

On the eve of 2018, I am excited again to be gearing up again to teach Sentencing Law at the Moritz College of Law and to be again planning to use this blog to flag current events and cases to supplement our class readings and discussions.  Because I use this blog (rather than TWEN) as convenient place to post information about class activities and plans and assignments, students can and should be on the look out for class materials and announcement posted here. So, for example, here is a repeating of what is posted on the Moritz official website for our first assignments (along with electronic copies of the basic course documents):

In preparation for our first week of classes starting Monday, January 8, 2018 you should:

1.  Get a copy of the THIRD edition of the casebook for the course, along with the course description/syllabus.

2.  Access the questionnaire and fill it out before our first class.  (In addition to being posted below, the questionnaire and course description/syllabus are available in hard-copy in front of my office, Room 313.)

3.  Find/research on your own a real sentencing issue, case or story that is of significant interest to you, and come to our first week of classes prepared to explain this issue, case or story and why it is of significant interest to you. 

Download 2018 Course description

Download 2018 Fall pre Class Survey 

 

You will discover that the last item in the questionnaire references recent clemency activity by recent presidents, and here are a few links with background:

Background on President Obama's Clemency Initiative

"Obama used clemency power more often than any president since Truman"

An Analysis of the Implementation of the 2014 Clemency Initiative

 

"Trump commutes sentence of kosher meatpacking executive"

"Trump Did a Good Thing: In praise of the president’s decision to commute Sholom Rubashkin’s sentence."

"Immigration hawks protest Trump giving Sholom Rubashkin first prison commutation"

December 30, 2017 in About this blog, Class activities, Clemency, Course requirements | Permalink | Comments (0)

October 17, 2016

Lies, damn lies and federal prison and commutations statistics

As I mentioned in class, as we turn our attention more to the history and modern realities of non-capital sentencing and especially to the history and modern realities of incarceration, having a basic understanding of a lot of number becomes important.   The title of this post is designed to make sure, before you dive too much into these data, that you keep in mind perhaps the most famous quote about statistics.  Once you have that quote in mind, consider some of the data and their sources.

The latest detailed breakdown of the federal prison population comes from this terrific "Quick Facts" document released this month by the US Sentencing Commission titled "Federal Offenders in Prison – March 2016."  Here are just some of the data therein that caught my eye:

• A large majority of offenders in the federal prison population are male (93.3%).

• Hispanic offenders make up the largest group of the federal prison population(35.2%), followed by Black offenders (34.4%), White offenders (27.0%), and Other Races (3.5%).

• More than three-quarters (77.9%) of these offenders are United States citizens.

• The majority of offenders pleaded guilty (88.5%).

• Nearly one-quarter (23.9%) of all offenders serving a sentence for a federal conviction possessed a firearm or other weapon in connection with their offenses.

• Half of all offenders (50.2%) in the federal prison population were sentenced to more than ten years in prison, while 5.2% were sentenced to 30 years or longer, and 2.7% were sentenced to life in prison.

• Approximately 17,000 offenders (9.9% of all incarcerated offenders) have served more than 10 years in prison.

• More than half (56.8%) of offenders in the federal prison population were convicted of an offense carrying a mandatory minimum penalty.

The data in the USSC report is already significantly dated because it analyzed a federal prison population of 195,676 "offenders in the custody of the Federal Bureau of Prisons on March 27, 2016."   But, just a little more than six months later according to the Federal Bureau of Prisons latest inmate population report, it is now only in charge of 191,322 total federal inmates.  In other words, in just the last 6 months alone, there has been more than a 2% decline in the overall federal prison population!

Speaking of changes over time in the population levels in the Federal Bureau of Prison, check out this BOP year-by-year report of the past federal prison population in modern times, which includes these numbers:

Fiscal Year      BOP Population

1983                 33,216

1993                 88,565

2003                 172,499

2013                 219,218

In other words, in just the last 20 years up to 2013 (12 of which had a Democrat in charge in the Oval Office and his appointees running the US Department of justice), there was 250% increase in the overall federal prison population!

As you may now realize, the number of federal prisoners for fiscal year 2013 was the year with the highest ever federal prison population (it was also, of course, the first year of Prez Obama's second term in office and the fifth year of the US Department of Justice being run by former US Attorney General Eric Holder). 

Also, as of the end of Fiscal Year 2013, this webpage from the Office of the Pardon Attorney reports that Prez Obama had received well over 8,000 federal commutation petitions and had granted a grand total of 1 commutation.  (If you are running the numbers, this means that as of the end of 2013, Prez Obama had granted only about .01% of commutation petitions received from federal prisoners.)

Of course, Prez Obama has picked up the pace on commutation grants: as this White House website highlights, by having now granted a total of 774 commutations, Prez Obama "has granted commutations to more prisoners than the past 11 presidents combined."  But his actions here ought to be put in some other statistical context, as does this webpage from the Office of Pardon Attorney, which reports that Prez Obama has received 29,078 commutation petitions during his time an office.  So, by having now granted 774 commutations from among the 29,078 commutation petitions received, Prez Obama has now upped his granted rate to about 2.5% of all commutation petitions received from federal prisoners.

As always, a great way for students to earn extra credit for the class would be to mine these numbers for further insights and data points worthy of highlighting in the comments to the blog (or in class).  And any student who can find good data on the race/gender of the 774 persons to have received commutations from Prez Obama and compares them to the general federal prison population will be sure to receive extra, extra, extra credit.

October 17, 2016 in Class activities, Clemency, Data on sentencing, Race and gender issues, Scope of imprisonment, Sentencing data, Who decides | Permalink | Comments (0)

February 21, 2015

Some notable gubenatorial capital developments

Though I am eager to start migrating our class discussions away from capital sentencing and punishment to non-capital sentencing and punishments, the notable death penalty news keeps coming.  Specifically, check out these two recent posts from my main blog:

As always, I am eager to hear student reactions to these developments and others in the comments or elsewhere.

February 21, 2015 in Clemency, Current Affairs, Death penalty history | Permalink | Comments (2) | TrackBack

February 13, 2015

Speaking of "who" and the death penalty...

check out what new Pennsylvania Gov Tom Wolf did on Friday the 13th.  Turns out it was a lucky day for those on death row in the state.

Thoughts?  The Marshall Hypothesis as applied by a Governor?

February 13, 2015 in Clemency, Who decides | Permalink | Comments (5) | TrackBack

April 21, 2014

Helping President Obama use his constitutional clemency powers

In our last few classes, I want to wrap up our discussions of modern federal drug sentencing by turning attention to the work of the most powerful of sentencing "whos": the President of the United States.  There are lots of ways the President can and does make sentencing decisions, but the most historic means is through the exercise of his (constitutionally enshrined) power to grant clemency.  

There are lots of stories to discuss and debate relating to the President's clemency power and its use throughout American history, but I will want us to focus on how it might still be used (and/or should be used) by President Obama as he heads into his final few years in office.  This new Reason.com piece by Jacob Sullum provides some useful background and context for our discussions:

President Obama made appropriate use of his clemency powers this week, shortening the prison term of a drug offender who received a sentence that everyone agreed was too long but for which there was no other legal remedy. In 2006 Ceasar Huerta Cantu was sentenced to 17.5 years in federal prison after he pleaded guilty to conspiracy and money laundering charges related to shipping marijuana from Mexico to Virginia. That term was three-and-a-half years longer than it should have been under federal sentencing guidelines because of a mistake in Cantu's presentence report, which erroneously listed his "base offense level" as 36 instead of 34. Cantu's lawyer never noticed the mistake, which Cantu himself discovered in 2012 after his family mailed him a copy of the report. By then he had missed the deadline for asking the courts to shorten his sentence....

"It's hard to imagine that someone in the federal criminal justice system could serve an extra three-plus years in prison because of a typographical error," said White House Counsel Kathryn Ruemmler in a speech at NYU Law School on Tuesday....

Obama should [not] be so stingy with commutations, which he so far has issued at a slower rate than all but three other modern presidents: George W. Bush (11 commutations in 96 months), George H.W. Bush (three in 48 months), and Ronald Reagan (13 in 96 months). Obama has now issued 10 commutations in 64 months, which by that measure makes him about 26 percent more merciful than Bush II, 46 percent more merciful than Bush I, and 14 percent more merciful than Reagan. (Obama still lags all three on pardons, which clear people's records, typically after they have completed their sentences.) But surely a man who has repeatedly criticized excessively long prison sentences should aspire to do more than surpass these truly awful commutation records. Obama is still a long way from Nixonian levels of mercy, since Tricky Dick shortened 60 sentences...

A few months ago, Deputy Attorney General James Cole indicated that Obama planned to pick up the pace, which was encouraging. Not so encouraging: Cole, whose department had at that point received about 9,000 commutation petitions since Obama took office, asked for help in finding worthy applicants, which suggested the government's lawyers are either lazy or extremely picky. Cantu's case seems to fit the latter theory....

By the president's own account, there are thousands of other clear injustices that he has the power to remedy. He could start with all of the crack offenders sentenced under pre-2010 rules that almost everyone now agrees were unreasonably harsh. The Smarter Sentencing Act would make the shorter crack sentences enacted in 2010 retroactive. But if Congress fails to approve that bill, Obama still has the authority to act on his own, which would be consistent with the statements he and his underlings have made regarding our excessively punitive criminal justice system.

"The president believes that one important purpose [of clemency] can be to help correct the effects of outdated and overly harsh sentences that Congress and the American people have since recognized are no longer in the best interests of justice," Ruemmler said in her NYU speech. "This effort also reflects the reality that our overburdened federal prison population includes many low-level, nonviolent offenders without significant criminal histories." Probably more than 10. The president's pitiful performance so far falls far short of these aspirations.

UPDATE: This brand new post at my main blog provides more explanation for how timely our discussion on clemency now is as a result this notable new and lengthy Yahoo News article headlined "Obama plans clemency for hundreds of drug offenders: Barbara Scrivner's long quest for mercy tests a president's will — and her own faith."  I highly recommend reading the full Yahoo piece.

April 21, 2014 in Clemency, Who decides | Permalink | Comments (6) | TrackBack

February 06, 2009

Breaking Ohio death penalty news (allowing more "who" analysis)

While we were starting to work through some "who" issues in class today, an Ohio agency made a notable decision in a notable death penalty case.  Here are the basics from this Columbus Dispatch article:

A Hamilton County man who stabbed his 62-year-old mother to death while he was on a crack-cocaine binge should not be executed and should be released in as little as seven years, the Ohio Parole Board recommended to Gov. Ted Strickland.

Jeffrey Hill, 44, is scheduled to be lethally injected March 3 at the Southern Ohio Correctional Facility near Lucasville unless Strickland or a court intervenes. Parole board members were clearly impressed with what a report released today called the "compelling and unanimous opinion" of the family of victim Emma Hill that her son and killer should not be executed. "They have suffered tremendous loss, and execution would add further to their suffering," the board said.

Hamilton County Prosecutor Joseph T. Deters, a strong capital punishment supporter, opposed clemency.  But he said today he will no longer pursue it given the parole board recommendation and strong support from the family.  "I would have preferred he stayed in jail the rest of his life," Deters said. "We've done our job. Part of the law says this is something the governor can do."

The board recommended to Strickland that Hill's death sentence be commuted to life in prison with parole eligibility after 25 years, meaning he could be released in as little as seven years.

Hill was high on crack cocaine on March 23, 1991, when he stabbed his mother 10 times in the back and chest, stole $100 and made two trips to buy cocaine.  In a letter to the editor last month [available here], Hill's uncle, Eddie Sanders of Mount Healthy, urged public support for clemency....

All county, state and federal courts have upheld Hills conviction and death sentence.

Though everyone is encourage to comment on any aspect of this story, I would be especially interested in whether anyone might be able to develop a viable argument suggesting that Governor Strickland ought not follow the parole board's recommendation.

UPDATE:  I just found this link to the Ohio Parole Board's full order in this case.

February 6, 2009 in Clemency | Permalink | Comments (6) | TrackBack

January 31, 2007

Should former Illinois Governor George Ryan get the Nobel Peace Prize?

Soon we will discuss the role of executive clemency, focused in part on the speech (which is at the end of our reading packet) delivered by former Illinois Governor George Ryan to support the "mass clemency" at the end of his term of given to everyone then on Illinois' death row.  In light of that reading and our coming discussion, I thought everyone might find this press release interesting:

University of Illinois College of Law Professor Francis A. Boyle has nominated former Illinois Governor George Ryan for the 2007 Nobel Peace Prize because of his courageous and heroic opposition to the death penalty system in America. 

Despite tremendous opposition and criticism, Ryan single-handedly started what he calls a "rational discussion" on capital punishment in 2000 when he declared the Illinois death penalty moratorium. To this day, despite paying a heavy personal price for his courage, integrity, and principles, Ryan remains committed to the principle of seeking justice for the poor and oppressed. Ryan now takes his message globally, recently speaking before the United Nations Commission on Human Rights in Switzerland, continuing to initiate dialogue against the barbaric use of capital punishment around the world....

As Governor Ryan exposed to the country in 2000, the burden of capital punishment consistently falls upon the poor, the ignorant and the forgotten underpriviledged members of society, and is often used as a racist institution against people of color.  The United States' attitude towards capital punishment is undeniably changing, and as a direct result of Ryan’s historical acts as former Governor of Illinois. 

Ryan exposed capital punishment to be a distorted means of justice rife with flaws and defects, and he began the dialogue that will one day abolish capital punishment in America. Professor Francis A. Boyle has stated that, "George Ryan is the beginning of the end of the death penalty in America," and it is for this reason that he richly deserves to win the 2007 Nobel Peace Prize.

This press release seems notable not only for what it says, but also for what it does not say.  There is no discussion of wrongful convictions or innocence issues, even though it was innocence concerns that first drew Ryan's attention to the death penalty.  Also, the press release also does not mention that Ryan is now a convicted felon recently sentenced to more than six years in federal prison.

January 31, 2007 in Clemency | Permalink | Comments (3) | TrackBack