DOJ. Still the House of "NO."

When President Obama launched Clemency Project 2014, - a call for more commutation of sentence applications - the Office of the Pardon Attorney was already getting record numbers of clemency applications. The announcement was made with aplomb, in April, but no grants (pardons or commutations) were made for the next 7 months.

So, in December of 2014, the first post CP14 grants were made. Here is what the number of denials looks like for commutation of sentence applications before and after December of 2014.

The critical factor in thinking about the data - of course - is the fact that the denials in the first bar (left) were generated over 6 years., a number comparable to the number denied by George W. Bush in 8 full years. The denials in the second bar (right) were generated over the last two years of the term.

OPA Chart. Weighed in the Balance ...

The homepage of the Office of the Pardon Attorney (Department of Justice) currently features this graph:

It is a fun exercise for a variety of reasons. First, well, we know how this administration is about folding data to make itself look really impressive (see posts here and here). Second, the OPA chart does not cover the entire administration. It simply cuts off a few years - about 6 - because, well, nothing was really happening then. Finally, the style is that of a cumulative line - for purposes of drama, no doubt. Edward Tufte would be proud. OK, maybe not.

We accept the challenge, however, and 1) cover the entire administration as well as provide important context by also 2) charting the number of commutation applications that have been denied - denials being something that happened well before the dramatic effects of a cumulative grant line ever showed up. Here are the results:

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O. Henry ... waits.

As readers of this blog are aware, we have filed a petition for posthumous pardon of the great American short story writer O. Henry.

Such a pardon would make eminent sense.

President Obama quoted O. Henry one Thanksgiving. Shortly thereafter, the U.S. Postal Service created a commemorative stamp, in honor of the 150th anniversary of his birth. And all with good reason. O. Henry lived such a commendable life after his time in prison that many could hardly believe that he had ever been convicted, or that such a conviction could have been just. Most of the world (including his own daughter) learned of his conviction - as Sidney Porter - after his death.

But, in fact, O. Henry was given a mandatory minimum sentence (for embezzlement of bank funds - a first and last offense), had an exemplary prison record, was released early and went on to live a productive, law-abiding life, with exceptional personal accomplishment and distinction to boot. He is - was - quite clearly a model example of what President Obama has repeatedly said he has an interest in: cases where second chances are deserved.

The symbolism of an O. Henry pardon would be 1) sensible 2) widely praised 3) intuitively and meaningfully symbolic and 4) non-controversial - quite unlike other applications for posthumous pardons floating around out there.

What makes us particularly excited about this year's effort - even with just six days left in the administration - is that we have been assured that our application will make it out of the bowels of the Department of Justice and that it (or some summary of it) will be put before the President. It will be given consideration. Some kind of decision will be made.

New York Post: "No" to Manning

The New York Post argues Pfc. Chelsea (née Bradley) Manning is on a "short list" for a commutation of sentence from President Obama. To date, he has served six years for espionage:

Manning leaked 700,000 documents — at the time, the largest-ever theft of classified US material — including confidential diplomatic and military communiques revealing the names of intelligence assets.

Will Obama grant the request? The Post says it hopes "the president declines to act." Manning is serving a 35-year sentence, but the Post notes he "is up for parole in just two more years, and also has an appeal before the courts." So, "if there’s any case for mercy," it should be "granted through the system — not via extraordinary executive action." See full editorial here.

Chicago Tribune: "No" to Peltier

The Chicago Tribune argues 72-year old Leonard Peltier, now in the 40th year of a life sentence for the murder of two FBI agents, "should stay in jail for the rest of his life."

Pielter has impressive supporters in his bid for executive clemency, including Desmond Tutu, Jesse Jackson and Robert Redford. Even a former U.S. attorney in the office that prosecuted him is "urging Obama" to consider "compassionate release."  Peltier also maintains his innocence, but the Tribune is not impressed:

Peltier was 30 when FBI agents Ronald Williams and Jack Coler arrived at the Pine Ridge Reservation in South Dakota on June 26, 1975, to arrest robbery suspect Jimmy Eagle. They were met with a torrent of bullets, from what prosecutors say were at least seven assailants. As the two agents lay in the dirt heavily wounded, three of the attackers walked up to them. One, armed with an AR-15 semiautomatic rifle, shot both in the head at close range ... Peltier was the only assailant wielding an AR-15 that day, according to eyewitness testimony. In 1977, a federal jury convicted Peltier of the agents' murders. He was sentenced to two consecutive life sentences.

An appellate court concluded that it really didn't matter whether or not it was proven that Peltier was the shooter. He was an "aider or abettor" in the murders, at a minimum. It has been claimed that the FBI "fabricated and withheld evidence," and appellate courts "have agreed that there were flaws in how the FBI — and prosecutors — handled the case," but not enough to warrant a new trial. The U.S. Supreme Court refuses to give the case further consideration and parole requests have been rejected. The Tribune says:

Peltier's supporters have always framed the plea for his release against the backdrop of long-standing mistreatment of Native Americans by the U.S. government. Pine Ridge is home to Wounded Knee, the site of a massacre of 200 Sioux men, women and children by the Army's 7th Cavalry in 1890. But Peltier's case is not about the plight of Native Americans. It's about justice for two men who were killed while carrying out their duties as law enforcement officers. Period.

See full Tribune editorial here.

Historic Denial of Clemency Applications

With 804 denials of commutation applications announced today, President Obama has denied more clemency applications than the last five presidents - over 32 years - combined.

It seem likely that, in the next seven days, this number will increase, by thousands.

Assange Forgets Thinking Cap?

The Hill reports that WikiLeaks founder Julian Assange "says he will agree to be extradited to the United States if President Obama grants clemency to Chelsea Manning."

So ... if Obama commutes Manning's 35-year sentence, to 34 years, Assange will agree to extradition?

Boom ! John O'Hara Gets Himself Some Justice !

(In the interest of full disclosure, the Editor confesses that John O'Hara has provided wonderful scrutiny of typographical errors in this blog. For this, we have always been thankful!) 

The New York Law Journal reports that, 18 years later, "an act of political retribution by former District Attorney Charles 'Joe' Hynes" has been "thrown out." John O'Hara's conviction - for illegal voting in New York, the first since suffragist Susan B. Anthony got pinched - was vacated at the state Supreme Court.

O'Hara has had his share of feeling like a "convicted felon ... a second-class citizen." Indeed, he was disbarred. But, in 2009, a unanimous 25-member Character and Fitness Committee concluded there were "grave doubts" that he "did anything that justified this criminal prosecution."

Here is a brief summary of this bizarro case from the Journal:

O'Hara, 54, worked on Hynes' first district attorney campaign in 1989. Following his own unsuccessful run for the New York State Assembly, the following year he began working on "insurgent" campaigns to challenge Hynes and other members of Brooklyn's Democratic establishment. O'Hara had lived in an apartment on 61st Street in Brooklyn and voted from that address, but redistricting in the early 1990s put his apartment in a different election district. O'Hara filed a new registration form stating his residence was at the 47th Street basement apartment of the building owned by his ex-girlfriend, which put O'Hara back in his old district. He voted under the 47th Street address five times. In October 1996, O'Hara was indicted on charges of offering a false instrument for filing in the first degree, false registration and five counts of illegal voting. O'Hara stood trial three times in cases that revolved around the question of principal residence under Election Law definitions. Neighbors testified that O'Hara did live at the address, but the previous owner of the building testified that the basement was unfinished at the time, and thus uninhabitable. The Appellate Division, Second Department, ordered retrial on the first conviction, citing an improper jury charge. The second trial ended with a hung jury and the third resulted in a guilty verdict in July 1999. 

The Journal reports the Brooklyn DA's conviction review unit scrutinized the conviction and determined the owner of the building recanted her testimony that the basement was uninhabitable.

For more, interesting background and commentary on John's case, see our previous posts here. See New York Times article here. See New York Daily News article here. See Journal article here.

Congratulations John O'Hara !!!

Request: "Pres. Obama, Please Pull a Clinton."

Mark Dent, at BillyPenn.com notes Lanny Davis, Bill Clinton’s lawyer and spokesperson during the Lewinsky Scandal, is asking President Obama to grant "relief through Presidential action” on behalf of Chaka Fattah, a person said to have "a close professional relationship with Obama over the years."

That is to say, Clinton's buddy is asking Obama to pull a Clinton, with just a few days left the administration!

To make things even better, Fattah - a former Democratic congressmen from Philadelphia - has been convicted on corruption charges ("accepting a bribe and using grant money to pay off an illegal campaign loan"), but has not yet been sentenced.

Now, how much more Clintonesque could that be?

Dent reports that Fattah is facing a 10-year prison sentence, but Davis says "his record of service" and "recognized irregularities in the process" merit executive action. On the first day of Fattah's trial, for example, a juror was dismissed. Davis also claims there is a "a lack of witnesses and evidence regarding, among other things, the illegal repayment of loans."

During Fattah’s unsuccessful 2007 mayoral run, Obama, then an Illinois Senator, wrote a message Fattah used in an email blast to gain supporters. Even while the Feds were circling, Fattah flew with Obama on Air Force One to an NAACP conference in Philly. Last April, as Fattah attempted to get re-elected to his Congressional seat, he used Obama’s voice on a robocall to prospective voters. The White House said Obama did not approve.

An appellate court judge rejected Fattah's motion to stay out of prison during an appeal. See story here.

Missouri: Post-Dispatch is Not Impressed

The St. Louis Post-Dispatch notes that "one of former Gov. Jay Nixon’s final official acts" was to grant 16 pardons.  The Post Dispatch says, "It was the right thing to do, but not a particularly courageous move by Nixon."

A riskier but justified call would have been to commute the sentences of 15 women who were victims of severe domestic abuse and received exceptionally harsh sentences. St. Louis University’s Legal Clinics, the Community Coalition for Clemency, and local clergy members requested clemency for the women in November. Several of the women are serving life terms. Some have spent more than 30 years in prison. Eleven are 60 or older; the oldest is 74. Many of the women have been active in prison social outreach programs, and coalition members, including former Gov. Bob Holden and retired Missouri Appeals Court Judge James R. Dowd, said the women pose no threat to society. Why not release them to live out the rest of their days with family and friends, instead of spending about $21,000 of taxpayer revenue annually to keep each of them in jail? 

The Post-Dispatch also notes the Governor refused to pardon Alvis Williams:

... despite a request from Jackson County Prosecutor Jean Peters Baker. Williams drew an 80-year sentence in 1994 for second-degree burglary and stealing. The maximum sentence for conviction on those charges today would be seven years. 

Nixon also "left in prison" a man (supported by The Midwest Innocence Project) who is serving two life sentences for a double murder "that no physical evidence links him to and that someone else has confessed to committing." See full editorial here.

The Daily News, Longview WA

The Daily News of Longview, WA, has an editorial entitled, "One Foot Out the Door." As much as we hate to say it (really, really hate to say it), they are something. Here are some excerpts:

Lately outgoing politicians, especially governors and the president of the United States, are handing out pardons and commutations like candy on Halloween — and the longstanding practice should come to an end.

... The constitution gives the president of the United States the power to pardon or commute a sentence, state governors have similar power too. We think it’s important to have the power to pardon and commute sentences, but don’t like how or when politicians do it. For decades, politicians have mostly used their pardon powers when leaving office. In other words, with one foot out the door, a president or governor signs hundreds of pardons and commutations. 

... Government works best when checks and balances are in place, but there’s nobody to balance out the pardon process. With no checks in place, politicians on the way out the door, have made some seemingly bad decisions.

... New York Governor Andrew Cuomo, in the last weeks of his term, has pardoned 101 people

... It seems Governor Cuomo is giving Judith Clark a chance at parole. Clark, who was part of a radical group who robbed an armored truck in Maryland. Two police officers and a security officer died as a result of the robbery, and Clark was the getaway driver.

... This type of last-minute, “one foot out the door” action needs to be stopped. While the power to give pardons should remain in case of unique circumstances, a system of checks and balances needs to be put in place.

... The current pardon system is so out of whack, the last days of a president’s term are almost like a game show. Everyone’s on watch to see who’s going to get the big prize.

No doubt some people deserve to be pardoned, but not when politicians are walking out the door. 

See full editorial here.

Manning on So-Called "Short List"

Business Insider reports President Barack Obama is "seriously considering" a pardon for Chelsea Manning. The report is based on another report from NBC News.

More specifically, a "Justice Department source" told NBC News that "Manning was on the president's 'short list' for commutations."

Good luck figuring out what that means! See story here.

What a "Sincere" Commutation Denial Looks Like

U.S. Department of Justice
Office of the Pardon Attorney
Washington, D.C. 20530

January 6, 2017

(Address)

Re: Mr. X
Case No. xxxxxxx

Dear Mr. Y

The application for commutation of sentence of your client, X, was carefully considered in this Department and the White House, and the decision was reached that favorable action is not warranted. Your client’s application was therefore denied by the President on January 6, 2017 .  Please advise your client accordingly.

Under the Constitution, there is no appeal from this decision.  As a matter of well-established policy, we do not disclose the reasons for the decision in a clemency matter.  In addition, deliberative communications pertaining to agency and presidential decision-making are confidential and not available under existing case law interpreting the Freedom of Information Act and Privacy Act.  Your client will become eligible to reapply for commutation one year from the date on which the President denied the current application.

Sincerely,

Office of the Pardon Attorney

Open Letter to President

January 6, 2017

Dear President Obama:

I am a 65 year old African-American veteran of the U.S. Navy, [honorably] discharged in 1982.  I held a top secret security clearance for nuclear weapons training.  I am now the founder of Veteran Community Mentors and author of its Mission Statement (enclosed).  I cannot accomplish the mission unless I receive a sentence commutation from you.

I hope that you are concerned that after serving my country from 1976 until 1982, I was convicted and sentenced to life imprisonment without parole possibility having no prior criminal history except for a few traffic violations.  No one was killed in the incident for which I was incarcerated where I brought 4 hammers, cartons of nails, $700 in cash, an uncharged pneumatic speargun which could not have been fired, along with other personal paraphernalia on board a FedEx cargo flight that I had been scheduled to fly the previous and subsequent days.  Although I incurred the most serious injuries in the fracas, I took full responsibility and apologized to my fellow crew members in a letter that was published in the local newspaper.  I derived no possible benefit from my conduct, which makes what I did a self-victimizing "crime" with no criminal intent.  The trial judge, a conservative Republican who removed my case from a rotating docket which would have sent it to the late District Court Judge Jerome Turner (a liberal), instructed the jury with a "general intent" instead of the legally required "specific intent" mens rea element.  That was enough to get a guilty verdict instead of a not guilty by reason of insanity verdict, which would have allowed me to receive treatment and be released long ago.

The most important question now remaining is whether (A) justice and (B) the public welfare is better served by your exercising your power of clemency in my particular case.  The answer to (A) is provided by law professor Kenneth Gallant.  The answer to (B) is given by my Mission Statement at VeteranCommunityMentors.org and by my good conduct record for more than two decades of imprisonment.  Mercy is yours to grant or deny.

President Ford defended his pardon of Richard Nixon by advising the American people to consider how much Nixon had already suffered as a result of his crimes.  Ford said "I feel that Richard Nixon and his loved ones  have suffered enough and will continue to suffer no matter what I do, no matter what we, as a great and good nation, can do together."(see "Someone Must Write, the End." Newsweek, Sept. 16, 1974, 22).  This is where you can direct any naysayers and clemency critics.

I hope you agree that it's time for reciprocity for your clemency, which you will get from me and other incarcerated veteran clemency recipients who, like me, dedicate themselves to pursuing a rescue effort in economically and socially beleaguered communities across the United States.

I go beyond my request that you grant my clemency with immediate release, and commutations for honorably discharged veterans, by asking that you also stand beside us, shoulder to shoulder, in places like Chicago, when we make our presence known.  With you standing there with us, no one will doubt our legitimacy nor oppose our mission!

What matters most is that there are good people who have served our country honorably and sacrificially in every branch of the U.S. military, but have also suffered misfortunes under the criminal justice system.  From the highest general to the lowest private, we have all served and suffered in one way or another.

I believe that incarcerated U.S. veterans deserve clemency despite having no assistance from a "Clemency Project" like that which has helped nonviolent drug offenders.

I will close by reminding you that we all love you and your family out here in common-class America.  I hope you will reciprocate our love for you with love and mercy toward incarcerated veterans and our families.

Thank you in advance for your personal consideration of this clemency request.

God Bless You,

Auburn Calloway

Obama's Commutations: Grants, Effect, Impact

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Obama's Historic Denial of Clemency Applications

While the Obama administration has been all about manipulating numbers to create the aura of an exceptional record on executive clemency, it is worth nothing that, over 8 years, this administration has denied almost as many clemency applications, or closed them without presidential action, as the last four administrations (over the previous 28 years) combined.

Missouri: 18 Pardons

It is reported that, "as he nears the end of his tenure as governor," Gov. Jay Nixon is "showing mercy." What a thing to have written about oneself. "I was a merciless, un-caring jerk. But now, just before I leave, I will don the mannerisms of human types!"

Nixon pardoned 18 people today. "including 16 religious leaders who had been convicted of trespassing for protesting in the Missouri Senate in support of Medicaid expansion." He also commuted one sentence, bringing his total clemency grant total to 110 - again, most granted near the end of the term.

It is also report that 110 is "more than any Missouri governor in the past three decades." Nixon explains:

"When you're attorney general, you're on one side of the case ... As governor, it's a position of consensus and you have executive authority ... It's not that I'm a different human being; it's a different job." 

Brilliant. Republican Gov. Christopher Bond approved a total of 201 clemency actions (1973 to 1977, 1981 to 1985). Democratic Gov. Joseph Teasdale issued 196 clemency actions (1977 to 1981). From 1847 to 1930, governors issued a total of between 4,000 and 5,000 commutations, according to the state archives. See story here.

Massachusetts: Governor Meets Council

It is reported that Governor Charlie Baker recently made "a rare appearance" at a meeting of the so-called Governor’s Council. Some councilors asked him if he planned to recommend any pardons or commutations and argued some convicted criminals a "second chance." Baker is reported to have responded, "Not today."

Councilor Terrence Kennedy has particular interest in the topic. He told a local news station it is difficult for convicts to get their lives back on track after they’re released from prison and clemency could help many former inmates find a job. Kennedy also notes, “It’s been many, many years since they’ve been done on a regular basis.”

Councilor Marilyn Devaney says she hopes Baker will exercise the pardon power. She claims the councilors have "drawers and drawers" full of pardon and commutation materials (including materials associated with applicants who have since died). She says the council had received "not enough" pardon recommendations during her 18-year tenure.

Without any supporting evidence, a local news station reports:

Pardons and commutations are controversial. That’s why governors typically wait until the end of their term to make these recommendations. 

... which is utter nonsense. Hundreds, if not thousands, are granted every year in the United States, at the state and federal level. Very few have any degree of controversy, or even potential for controversy. See story here. And here.

Creepy Cloud of Error / Ignorance in the Air

Recently, U.S. Attorney General Loretta Lynch appeared on the Rachel Maddow Show and said the granting of a pardon is “an individual decision that’s made on a case-by-case basis.” Consequently, “There’s no legal framework or regulatory framework that allows for a pardon of a group en masse,” The statement was, of course, a preposterous blunder. Amnesties and group pardons are a great American tradition.

While the blunder could have been spun as the by-product of context (being tied to the reasonable conclusion that an amnesty, or group pardon, would not be appropriate for so-called "Dreamers," seeking citizenship), Lynch, at the a POLITICO Playbook breakfast event, went on to tie the error to the possibility of a "blanket clemency for drug offenders." Said Lynch:

We obviously have been doing a great deal of work on the president’s clemency initiative for several years now, and [I'm] very, very gratified [he] has taken the recommendation of the Department of Justice, although I will tell you he reviews every file himself. These are very individual decisions, ... When you’re talking about clemency, the same as with pardons, it’s a very individualized decision. I think it would be hard to craft a system for a blanket commutation of a class of people.

If an Attorney General has ever said something so erroneous / ignorant re the pardon power, we are not aware of it. It was certainly a bad sign for those with high hopes for thousands in our federal prisons.

Now comes a Harvard Law Review article by no less than the president of the United States. President Obama has written, "the Framers gave the President this authority to remedy individual cases of injustice" - which is patently false. He also writes that he "asked" his "team" to "look more systematically at how clemency could be used to address particularly unjust sentences in individual cases" - as if there were no other way, which is also patently false.

How is this madness even possible?

Obama: A Crack in the Wall?

For weeks, there has been fairly uninhibited media speculation about whom Obama may or may not pardon, or commentary about whom he should or should not pardon. Will he pardon Hillary Clinton? Edward Snowden? Leonard Peltier? former Illinois governor Rod Blagojevich? former CIA director David Petraeus? US Army Sgt. Bowe Bergdahl? Chelsea Manning? Marcus Garvey? Jack Johnson? Julius and Ethel Rosenberg?

Cooler heads (we like to think we are among them) have noted that President Obama has been wildly stingy with pardons and his clemency record, overall, has featured no stunts. There are no grants to friends, family members, partisan hacks and donors. Applications have not by-passed the Justice Department. Waiting period guidelines have not been violated. The President himself has said pardons and applications have to go through the vetting process. As he put it in August, he said:

“The process that I put in place is not going to vary depending on how close I get to the election ... So it's going to be reviewed by the pardon attorney, it will be reviewed by my White House counsel, and I'm going to, as best as I can, make these decisions based on the merits, as opposed to political considerations.”

Whatever one wants to say about Obama, he has played it straight. And, he has avoided high-profile, controversial cases. While, yes, anything could happen, there is simply nothing on the radar screen that would encourage any reasonable person that the Bill Clinton last-minute craziness will ensue.

Today, Gregory Korte of USA Today tweets:

On a commutation for Blagojevich, Obama tells @CarolMarin: "On some of these high-profile cases, we'll see what gets to my desk."

Of course, the language is just Delphic enough to hold up on the flight to Vegas. Does he mean what "gets to" his desk formally? after going through the process? Or does he mean "get to" his desk by whatever pathway there is to his desk?