Tuesday, December 29, 2015


The Clemency Conundrum: It's not a mission accomplished

As you might imagine, I am still working through in my mind what has happened and what is yet to come with federal clemency. The next year will be crucial to resolving whether this principled tool of mercy will be revived.

 While I was very glad to see them, I was bothered by two things that the White House said after the set of grants earlier this month.

First, they sent out a press release announcing that this president has granted more commutations than his immediate predecessors. It was misleading, sure-- this president also has many more petitions before him, so the denominator of the equation (about 9,000) dwarfed the numerator (95 grants of commutation)-- but it also felt like a premature declaration of victory. By claiming success without emphasizing the hard road ahead, it was the moral equivalent of George Bush standing proudly in front of the "Mission Accomplished" banner well before a resolution of the Iraq conflict.

Second, the White House Counsel said this:

“The theory is not that this by itself is going to make a dent in the prison population — this is part of an overall approach,” W. Neil Eggleston, the White House counsel, said in an interview. “He thinks it fits into the broader effort of criminal justice reform. What it does show is, on a very individual basis, the way some sentences in the past have been excessive.”

At one level, Eggleston is exactly right: legislative reform and clemency are both important. Of course Congress should deliver to the President a clean and comprehensive bill that both changes the current law and grants relief to those serving sentences under laws that have been changed.  It is a good thing that the President has been a strong supporter of those changes through reform of the statutes. Those who think the current laws are too harsh, like me, applaud both the movement towards legislative reform and the recent grants of clemency and the promise of more.

However, only one of those things is really up to the President.

The core truth ignored in saying that commutations are "part of an overall approach" is that the Pardon Power is uniquely within the President's ability-- and he alone is accountable for it. The legislation that is the other part of the approach is moribund at the moment, and in the hands of a Congress that somehow is both inactive and unpredictable. That will be Congress's fault if it fails, and the President's victory if it passes-- a nifty deal for the administration. There is no political risk. In contrast, clemency offers a risk if he uses it, as he well knows, especially since he has waited until the last year rather than spreading that risk out over time.

The Pardon Power is a crucial Presidential power. Even setting aside the equities associated with mass incarceration, the fact is that the President has an obligation to save that power from abuse (Clinton) and disuse (the Bushes). He has the imperative to reclaim it as a tool of public morality, and in promoting a particular set of values: balance and mercy.  Clemency shouldn't merely be part of an "overall approach," secondary to legislation, because this tool is fit to the President's hand alone. His true intent, and clear virtue, will be revealed in how he uses it.

It could be that he is holding off on using clemency more aggressively in hopes that a reform bill will pass. I suppose it could be that some in Congress will be swayed against a bill if the President uses the Pardon Power, because it would seem to be furthering his agenda. That is some twisted logic given that the President has already made sentencing reform a clear part of his agenda in several speeches and statements, but the logic of Congress has been pretty twisted lately. More likely is that Ted Cruz, a staunch opponent of reform, will win in Iowa and his fellow Republicans will run away from the issue in deference to him.

The risk the President takes by relying primarily on a Congress that rarely functions rationally is that he could end up with next to nothing to show for his good intentions. For him, it would be a minor blow to his legacy. To those doing life sentences for low-level crimes, like Ronald Blount, the cost would be much higher.

Using clemency bears a risk. Saying you will wait for a bill does not. However, legacies are not measured by risk-averseness, but by bold moves toward a discernible good.

Well put. The rhetoric does raise the distinct possibility that the administration really believes it has accomplished something historic, by comparing itself to some of the worst administrations in history. As the administration closes, we can also worry about "the other shoe."

Last-minute pardoning is rarely ever viewed positively. While it would be easy enough for me to be pleased for the recipients of 5,000 commutations of sentence tomorrow morning, the fallout might be such that there is additional long-term damage to the pardon power.

It is the bed the president has made by failing to steadily, consistently pardon throughout the last 7 years.
1. I am a bit mystified by the focus on George Bush.

2. I am also a bit mystified that this President who seems to so enjoy taking presidential authority to new heights--but, for some reason, seems so reticent to use this actual constitutional executive power.

3. On the other hand, as I have indicated before, because the President sees this movement as a no-brainer in terms of his "legacy," because the politics is actually on the side of reform, and because I have absolutely no doubt that the President truly believes in his heart that commutation and relief represents the moral good, I have no doubt that we will see some VERY BIG moves that you will deem unambiguously positive before January 20, 2017 (how long? not long). Take heart.

4. On the other other hand, you and your fellow reformers would be foolish to take anything for granted. As Frederick Douglass would surely say: "Agitate! Agitate! Agitate!"
There are thousands of nonviolent drug offenders with life sentences or egregiously long sentences. They are all holding their breath hoping for the lottery.

The promise was made and friends and family of these incarcerated citizens believed it. Slowly as time passes, the anxiety level rises and a pain in the chest or lump in the throat presents itself on occasion. There is a frantic feeling that the window will close and we have not done enough to win the prize.

We're waiting for the Jan.2016 commutations, jumping up and down screaming our case and hoping for relief.

Commutations can save lives and renew the desire to live and give deserving nonviolent people a chance for a second chapter of their live. This is a powerful executive privilege that can be exercised with no questions asked. We hope for the redemption that the President can grant.
WF, good advice, and well taken.
How do you address criticism that DOJ and the White House refuse to permit transparency in the process? There are already reports emerging that some petitioners granted clemency do not seemingly meet the criteria set to evaluate the petitions. While some (many) may be appropriately granted clemency, do you harbor any fear that the lack of transparency will lead to a perception that this project has already been corrupted by the White House?
Well, the White House and has no obligation for transparency when granting clemency. There is no criteria that the President has to meet when making clemency decisions for anyone.

The criteria that was announced for CP-14 was to be used by CP-14 to evaluate and submit petitions to the Pardon Attorney for clemency requests. As far as I know, a process to make this procedure transparent was never established.

Inmates are notified when they are assigned a pro bono attorney and they are notified when their petition is submitted to the Pardon Attorney's Office, but for inmates and advocates the procedure seems to be fairly opaque.

I'm not really clear about what percentage of clemency's that have been granted have been part of the CP-14 project. That is the disappointing aspect of the process.
Brian, I am all for transparency. This process has a bad combination-- it is both opaque and complex.
I agree mark, we do indeed have a long road ahead of us in criminal justice reform. And federal pardons are only a drop in the bucket. If states don't follow the President's lead, we truly have a very long way to go. And sentencing disparity is one of the major issues we are faced with as a nation and within each state. Unfortunately, I am quite familiar with one of the worst cases of sentencing disparity in this country -- Lenny Singleton. Lenny committed 8 "grab and dash" robberies in a 7 day period while high on alcohol and crack cocaine. He did not have a gun. He did not murder anyone. In fact, he did not even physically injure anyone. Not one person filed as his victim. He stole a total of less than $550 and these were his first felonies. He wasn't a habitual criminal or part of a gang. He earned a college degree and served in our Navy before he allowed his addiction to destroy his life. The judge, without any explanation to Lenny or the court, sentenced him to more time than repeat violent offenders, rapists, child molesters, or murderers - 2 Life Sentences plus 100 years with no chance of parole. To illustrate Lenny's reformed nature, during the 20 years he has served so far, he has not received a single infraction for anything - rare for lifers. His only recourse for release is through a conditional pardon made by the Governor of Virginia. The American taxpayers will pay well over a million dollars to keep Lenny behind bars for the rest of his life -- for stealing $550 in crimes where no one was physically injured? This is absolutely ridiculous. So not only do things need to chance on the federal level, they also need to change on the state level. And past cases need to seriously be reviewed for this kind of sentencing disparity. To learn more about Lenny and sign his petition, please visit www.justice4lenny.org.
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