Friday, June 30, 2023


Haiku Friday: What's Growing?


This is that time of year when the earth is just busting out with life! Here in Minnesota, we look forward to it through the 6 months of winter, so it is all the more sweet. 
Let's haiku this week about what is growing near you. Here, I will go first:
Sunflowers bust out
Like prehistoric plant beasts
 Soon, yellow blooms shine.
Now it is your turn! Just use the 5/7/5 syllable pattern and have some fun! [Especially the gardeners like Desiree and IPLawGuy and Christine....]

Thursday, June 29, 2023


Political Mayhem Thursday: When reform works

As some of you know, I have worked for years to reform the Minnesota clemency system-- and earlier this year, it worked. The legislature passed a law which, among other things, allows a grant of clemency where the vote is not unanimous. 

And this morning, that reform began to work. Here is part of how the Minneapolis Star-Tribune described the first non-unanimous grant:

The Minnesota Board of Pardons granted the first 2-1 pardon in state history to a St. Paul Public Works employee on Wednesday.

Walter Hooper Jr. cried as he told Gov. Tim Walz, Supreme Court Chief Justice Lorie Gildea and Attorney General Keith Ellison about his troubled past. He cried again as he said "thank you" to the panel after the vote that removed numerous felonies from his record.

The vote was the first under a new law passed during the recent legislative session and long supported by Walz. In the history of the board — dating back to 1897 — pardons could be granted only by a unanimous vote. Now a petitioner needs to receive only two of the three votes, provided one is the governor.

The effect was immediate, with the board granting six pardons by split votes, all with the DFL governor and attorney general in support and Gildea, appointed by a Republican governor, the dissenter. The board unanimously approved 11 pardons and rejected three.

Had the six split decisions been considered in January, they would have been denied under the longstanding unanimity requirement....

Hooper was tearful throughout his 10-minute speaking allotment. "I was raised around drugs, alcohol and violence," he said.

Married since 2016 and sober, Hooper said he wants his record cleared to be a better example for his children and to be able to chaperone on school trips. Ellison asked him how he feels about what he did to his victims.

In a shaky voice, Hooper said he understands that he took both security and what small amounts of cash his victims carried, money he now realizes their parents had worked hard to earn. "I know that was all they ever had," he said, adding that his oldest son has been a victim and "any normal person just comes up to him and he's afraid."

As the article mentions, I was there to see it. And my heart was full.

Wednesday, June 28, 2023


The Cement Coffin


Yesterday, the New York Times had a fascinating story about the environmental costs of cement, which creates 8% of the emissions that create global warning-- triple the percentage of the aviation industry. More of our planets mass is locked up in cement than in plants of all kinds. 
My least favorite part of Waco was the nearly unbroken ocean of cement it sits on-- parking lot after parking lot (many of them unused or almost unused) next to roads next to more parking lots, all of it radiating heat that shimmered like evil. Along Valley Mills Drive, one would probably assume that the surface of the earth was naturally made of concrete and asphalt. 
Much of it is driven, of course, by a car-based culture and a lack of zoning-- or, actually, sometimes too much zoning in that codes required a certain amount of parking for each building.
But... can we go back to another way?

Tuesday, June 27, 2023


Wait-- what was that all about?

 For about 24 hours last weekend, it seemed like Russia was embarking on a civil war. It had all the hallmarks: The troops advancing on Moscow, the barricades being thrown up, vows of retribution against the rebels, etc etc.

And then- poof!-- it all kind of went away as an amnesty deal was announced.

Is it just me, or did it feel kind of like one of those made-up feuds between pro wrestlers-- where the whole thing is scripted by the parent entity? And if so.... what was the point?

I get the feeling we will find out soon.

Monday, June 26, 2023


On Art

 Who knows art quite like Michimom? And she gave us this:
Painting of Yolaine,
all the colors of Provence
show her pensive mood.

Megan Willome graced us with one of my favorites (because I would love to see the show):
Two friends and forty
painting-poems pairs. Spring fling!
Crossroads Art Show.

As did Desiree:
Four bears dance across
the canvas. A children’s book
painted by my son.

The Spanish Medievalist gave us one in, well:
Zurburán bodegón
Con cuatro cacharros es
Cuadro perfecto.

IPLawGuy told us a story:
Jeu de Paume, Paris
First time I "understood" art
Impression was made!

Or two:

Art that moves- music
Little Richard to Johnny Thunders
My backbone will twitch!!
And Christine knew what I was talking about:

Not one favorite
evoking moods, memories,
and special places.

Sunday, June 25, 2023


Sunday Reflection: On Women and Church


Over 170 years ago, in Seneca Falls, New York, the Declaration of Sentiments issued at the Seneca Falls convention contained the words above.
And still... nearly two centuries later two of our largest religious entities-- the Southern Baptist Convention and the Catholic Church-- bar women from ministry.  It's a tragedy that these institutions continue to exclude half the population from leadership. 
The loss is very real. If the Christian church as a whole is to thrive again, it will have to acknowledge the gifts of all people. The patriarchy stifles full human flourishing-- just as it always has. 
Churches struggle to change, I know, and that might be a challenge for the Catholics, but the Baptists changed towards excluding women only 23 years ago. 
Those with power rarely cede it willingly, and that is certainly true of men. But ceding power is at the center of the Christian faith-- it is a part of so much of what Christ taught, over and over. Perhaps it is time to heed that lesson.

Saturday, June 24, 2023


On Thursday

 Here is the video of my Congressional testimony on Thursday. You have to fast-forward past some dead air at the start, but I encourage you to listen to Doug Berman, who goes before me, and at least some of the statements by the Members.

Friday, June 23, 2023


Haiku Friday: The Art That Moves Us


I have this painting up in my office. Actually, I have it's fraternal twin; my dad did two studies of the same thing, and they are slightly different. It hung up on the porch, and got a little damaged in the weather. I'm keeping it that way; somehow it seems more whole with that part of my life-- those summer evenings on the porch-- marking it.
We all have a piece of art that moves us. Let's haiku about that this week! Here, I will go first:
Blue goes on for miles
Like a summer sky, water
Blue, but not the blues.
Now it is your turn! Just use the 5/7/5 syllable formula and have some fun!

Thursday, June 22, 2023


PMT: My own mayhem!

 Today I will be testifying in front of the House Judiciary Committee's subcommittee on Crime and Federal Government Surveillance. For these things, people submit written testimony which is different than their oral testimony (but usually makes the same points). If you are interested, I have pasted in my written testimony below. I've taken out the footnotes and the chart, since they messed up the formatting.

Before the House Committee on the Judiciary

Subcommittee on Crime and Fed. Government Surveillance

Hearing on “Examination of Clemency at the Department of Justice”

June 22, 2023


Statement of Mark Osler

Robert & Marion Short Prof., Univ. of St. Thomas (MN) (on leave 2023-24);

Dep. Hennepin County Attorney/Director of Criminal Division (2023-24);

Ruthie Mattox Chair of Preaching, 1st Covenant Church—Minneapolis


Chair and Members of the Subcommittee,


         I’m grateful to be before you again to discuss this important topic. I am a former federal prosecutor and currently work as a professor of law at the University of St. Thomas in Minneapolis. Beginning in August of this year, I will take a leave of absence to serve as the Deputy Hennepin County Attorney in my home state of Minnesota, overseeing the criminal division. Though I have a law enforcement background, my interest in clemency is not casual. I moved to Minnesota in 2010 from a tenured position at Baylor in part because St. Thomas would allow me to start a clinic focused on federal clemency. It is the first such clinic in the nation. My writing on clemency has appeared in The New York Times (2016 and 2021), the Washington Post (2014, 2018, 2019, 2020, 2021), the University of Chicago Law Review, the William and Mary Law Review, and many other places (often in collaboration with Rachel Barkow, a professor at NYU). I work in this field of measured mercy because it is one of the few areas where constitutional imperatives are so consistent with my own faith imperatives. I have worked on, reviewed, and supervised hundreds of clemency petitions.


         My goal in this hearing is to describe how the core problem in the case of Philip Esformes—a clemency warrant that did not explicitly address the hung counts—is a product of a dysfunctional system for evaluating clemency petitions largely created and overseen by the Department of Justice. This Committee can do little that will directly impact the Esformes case, but Congress does have the power to address the underlying dynamic that created the issue in his case and generated an astonishing backlog of nearly 17,000 unresolved clemency petitions.


         If President Donald Trump intended to prevent Philip Esformes from being retried on hung jury charges, he could have pardoned him on those charges at the same time he partially commuted Esformes’ sentence for the charges of conviction. President Trump did not do so. His failure to explicitly deal with the hung counts was likely a casualty of the mad rush of clemency considerations at the end of his administration, which is one symptom of the broken clemency evaluation system that has brought disrepute to pardoning and undermines an Executive function the framers of the Constitution saw as essential to the justice system as a whole.


I.       President Trump and the Philip Esformes Commutation


A.  The Esformes Conviction and Commutation


Philip Esformes was charged by indictment with charges relating to health care fraud, money laundering and illegal kickbacks. During the investigation, the government seized business records which contained documents covered by attorney-client privilege. The government created a screening protocol in which a “taint team” was tasked with removing documents subject to privilege. That team failed in their task, and at least a hundred privileged documents were passed through to the prosecutors.


Based on this misconduct, Esformes moved to dismiss the indictment and to remove the prosecutors involved from the case. A Magistrate Judge initially issued a report and recommendation that concluded there was prosecutorial misconduct which was in bad faith, but recommended that Esformes be denied a dismissal or removal of the prosecutors because once the privileged materials were suppressed there would be no prejudice to Esformes. The District Court judge subsequently held that while there was misconduct, it was not in bad faith, and allowed the government lawyers to proceed with the case. This decision by the District Court and the subsequent conviction were later affirmed in an 11th Circuit opinion written by Judge William Pryor, the former Attorney General of Alabama and former Acting Chair of the United States Sentencing Commission.


At trial, Esformes was convicted of 20 counts, and the jury deadlocked on the remaining six counts they considered. In September of 2019, he was sentenced to 240 months of imprisonment, forfeiture of $38.7 million, about $5.5 million in restitution, and a three-year term of supervised release.


On December 22, 2023, President Donald Trump granted Esformes a partial commutation of his sentence. In a document titled “Executive Grant of Clemency,” (often referred to as a “pardon warrant”) President Trump commuted the remaining prison sentence while explicitly leaving “intact and in effect” the restitution order and the term of supervised release along with “all other components of the sentence”. The pardon warrant was silent as to the hung charges. Subsequently, the Department of Justice signaled a desire to pursue a conviction on those hung charges.


There are four possibilities regarding those hung counts, given that President Trump easily could have dealt with them explicitly through a pardon:


n  First, President Trump may not have been made aware of the hung counts at the time he issued the commutation—something his advisors should have told him about.

n  Second, he may have not known that hung counts can be retried—something else a good advisor would have described.

n  Third, he may have been aware of the hung counts and that they could be retried, but assumed they were covered by the commutation of sentence. If this is true, then the warrant is poorly drafted at best.

n  Finally, he may have known about hung counts and assumed the warrant made clear they were unaffected by the commutation. In this scenario, there was never an intent to clear the hung counts, and the warrant is poorly drafted in not making that clear.


Importantly, under any of these scenarios, President Trump was failed by the system in place to advise him on clemency and by the process he elected to use, which often meant conducing little to no investigation into details of cases or asking DOJ to do that for him. A good system would have made him aware of the hung counts and the fact they could be retried and directed him to pardon the hung counts explicitly if that was his intent-- or expressly state he was letting them stand for retrial if that was what he wanted.


Whatever the failure, it was the product of a larger problem that should be rectified: a clemency review and evaluation process that is bureaucratic, inefficient, locked into a conflicted and biased Department of Justice, and the source of a remarkable and historic backlog of cases. One reason presidents opt to bypass the Department at the end of their terms in office is that DOJ is not capable of providing them with the kind of advice and efficiency they want. A better system would avoid the rush at the end of a term and provide the kind of advice that would have made the debate over the Esformes grant unnecessary.



II.      The Broken Clemency Process


Our clemency system has been broken for four decades. Before that, pardons and commutations were issued at regular intervals and in numbers we would find remarkable today. Through most of the 20th Century, it was not unusual to see presidents grant clemency with great frequency: Theodore Roosevelt granted over a thousand, with a dramatically smaller number of federal convictions per year than we see today. Other 20th-century presidents showed the same kind of consistency: typical of the predominant trend, Coolidge granted nearly 1700 in his six years in office, Hoover approved almost 1200 over four years, Eisenhower granted over 1100 (with his fifth of eight years bearing the highest numbers), and Nixon approved over 900. President Ford created a special clemency commission that led to clemency for at least 6,000 Vietnam-era recipients.


         Then, something went wrong. President Reagan was a transitional figure—stingier than his predecessors, but not nearly as stingy as the men who followed him. President Reagan received 3,404 petitions for clemency during his two terms in office, and granted 406 of them—about 12%. Reagan looks profligate compared to George H.W. Bush, who granted only 77 (5% of the petitions received), Bill Clinton’s 459 out of 7,489 received (6%), and George W. Bush’s 200 (2%). Even Barack Obama, who actively solicited petitions, had only a 5% grant rate, far behind that of Reagan. Donald Trump granted 238 petitions, for a 2% grant rate. What went wrong? As is so often true with government, process and bureaucracy.


         The current clemency review system developed haphazardly in the 1970s and 1980s. From a relatively simple system in which a petition was reviewed by the pardon attorney and then a recommendation conveyed from the Attorney General to the President, bureaucracy grew and metastasized until the process came to include seven distinct actors, each with their own interests and biases, acting sequentially. Today, a clemency petition will be considered in turn by the staff of the Pardon Attorney, the Pardon Attorney, the staff of the Deputy Attorney General, the Deputy Attorney General, the staff of the White House Counsel, the White House Counsel, and finally by the President.


         The chart on the next page (prepared for the 2022 hearing on this issue by this committee) depicts this awkward process. It could be, of course, that the Biden administration has added new levels of review to those already known because the backlog has not been addressed under his watch.


         Any rational analyst would find that the system described above is dysfunctional. It has failed over and over, under different presidents, even in identifying the easiest cases for clemency such as marijuana cases from states where marijuana is now legal. The problem is not the pardon attorney, as such, but the system as a whole.


         No one intentionally created this process in any kind of coherent way; rather, it developed organically over decades as officials delegated parts of the process (primarily, the Attorney General delegating evaluation to the Deputy Attorney General) and decision makers tasked staff members with independent substantive reviews. The problems with the haphazard result nearly leap off the page of the chart above, but I will summarize the major issues below.


         First, the process is simply too long, too complex, and too opaque. No state has a system with nearly this many hands involved, and for good reason: It’s just bad management. While a thorough review is necessary, these redundant reviews add nothing. You won’t find a decision chart like this at a business—at least not at a good one. 


         Second, the reviews are sequential to one another. The absurd inefficiency of seven reviewers seeing a petition only after a predecessor is done—rather than simultaneously as part of a board—is striking. On top of that, baked into this system is negative decision bias; reviewers know they can get in trouble only for a bad “yes,” which incentivizes “no’s.” It is seven valves, all spring-loaded shut, on the same pipe.


         Third, the decision process is upside-down. The specialists with the most knowledge in this area are in the Office of the Pardon Attorney, but they are at the very bottom of the vertical line of decision. At the top we find generalists who usually will lack a depth of knowledge in this field—and they are asked not to generally provide guidance or oversight, but to individually review each petition.


         Fourth, two of the key reviewers are generalists who have inherent conflicts. The Deputy Attorney General is the direct supervisor of the United States Attorneys, and essentially overturning the sentences they successfully argued for threatens that relationship. The White House Counsel, in turn, may seek to steer the President away from controversy, and that is achieved by avoiding the risks inherent in granting clemency. Both the DAG and the White House Counsel have other pressing and often episodic duties, and this means that clemency decisions can constantly be pushed to the back of the line of priorities.


         Finally, and perhaps most importantly, the central role accorded to the Department of Justice—both in the four levels of review ensconced there and through the policy directive that the views of local prosecutors be solicited and “given considerable weight.” It’s not hard to see the nature of this conflict of interest: the very people who sought an outcome are being asked to review it.


         This flawed process has also led to a pattern of hasty clemency grants in the last days of an administration. Americans often assume that presidents waiting until the end of their final term to issue commutations and pardons is some kind of grand tradition with roots in the early Republic. In fact, this “tradition” began with Bill Clinton—and is likely a product of the rotten process we now employ. Ronald Reagan granted far more petitions in 1982 and 1983 than he did in 1988 and 1989, for example. Jimmy Carter’s biggest year for grants was 1978, not 1980 or 1981, Nixon peaked in 1972, and Johnson in 1966—smack in the middle of their time in office.


         It’s probably not a coincidence that the shift in timing for grants roughly correlates with the shift in the system of evaluation. Facing the prospect of leaving the pardon power unused because good candidates have not been advanced, it would be understandable that an Executive would want to do something with the power before leaving office. The story of Bill Clinton wandering through the press section of Air Force One asking “You got anybody you want to pardon?” as his administration wound down may sum up the problem in a nutshell.


         Just like Clinton and other immediate successors, Donald Trump’s last-minute flurry of clemency decisions is fairly well documented. Philip Esformes was granted a commutation on December 22, 2020, just three days before Christmas, and in the last month of the Trump presidency. This was in the mad rush at the end of the term: Trump granted 16 commutations in the nearly four years before that last month, and 78 within those last 31 days. Within that context, it is easy to understand how full advisement becomes almost impossible.


III.    A Better Plan for Philip Esformes—and 17,000 others


         The dispute over the Esformes commutation would not exist if the warrant issued by Donald Trump had been clear and explicitly addressed the hung counts. That would have been much more likely if clemency was granted regularly and with proper advice and counsel, as was true for most of American history. Moreover, it would create hope and fairness for the nearly 17,000 people who have petitions pending, most of whom have waited for years.


         I would urge all of you to consider the solution proposed in the H.R. 6234, the Fair and Independent Experts in Clemency Act” or “Fix Clemency Act,” introduced last year as H.R. 6234. It would implement a coherent system for analyzing petitions and advising the president on clemency. This bill would create a presidentially-appointed board, working outside the Department of Justice, that would analyze clemency petitions and advise the president directly on outcomes.  Specifically, the FIX Clemency Act would get rid of the bureaucratic bloat that has developed within the DOJ and allow for thorough and regular evaluations of clemency—getting rid of the last-minute rush which failed both Philip Esformes and President Trump.


         As someone who pursues better clemency systems as a faith imperative, people often remind me of Micah 6:8:


He has told you, O mortal, what is good,
    and what does the Lord require of you
but to do justice and to love kindness
    and to walk humbly with your God?


         Three values are required: justice, mercy, and humility. Each of these was embodied and expressed by the Founding Fathers. Justice was at the center of establishing ourselves as a new nation—to address the injustices of colonial rule. Mercy was placed in the Constitution itself in the form of the pardon power, and promoted by Alexander Hamilton as the Constitution was debated. Humility—perhaps the hardest virtue—was displayed by George Washington, as he stepped away from power and resigned from his commission as Commander in Chief of the Continental Army after the Treaty of Paris was signed.


         The legal limbo Philip Esfortes finds himself in is the product of the same dysfunction that thousands of people with fewer resources are stymied by as they seek the Constitutionally-mandated pathway to mercy. We must now have the humility to step away from DOJ hegemony and create a functioning machine for mercy within our system of justice that both provides clear guidance to the President and hope to those who petition for freedom.










[1] Modern clemency is nearly always expressed in one of two ways. Commutations of sentence mitigate punishment while leaving the conviction intact. Pardons affect the conviction (or charge) directly.

[2] United States v. Esformes, 60 F. 4th 621 (2023).

[3] It appears that an additional six counts were dismissed by the District Court prior to jury deliberation.

[4] U.S. Department of Justice, Clemency Statistics, available at

[5] Mark Osler, Clemency as the Soul of the Constitution, 34 Journal of Law & Politics 131, 135-137 (2019).

[6] Id.

[7] For a broader indictment of the DOJ’s role in clemency and other areas needing reform, see Rachel E. Barkow & Mark Osler, Designed to Fail: The President’s Deference to the Department of Justice in Advancing Criminal Law Reform, 59 William & Mary Law Review 387 (2017).

[8] Mark Osler, Clementia, Obama, and Deborah Leff, 28 Fed. Sent. Rep. 309, 309 (2016).

[9] United States Department of Justice, Justice Manual, §9-140.111.

[10] U.S. Department of Justice, Clemency Statistics, available at Note that these statistics are by fiscal year.

[11] Weston Kosova, Backstage at the Finale, NEWSWEEK, Feb. 26, 2001, at 30.

[12] U.S. Department of Justice, Clemency Recipients, available at

[13] Federalist 74.

Wednesday, June 21, 2023


The Mall Problem


The town I live in, Edina, is unusual in that it has not only a little downtown area with a theater and restaurants and shops, but two malls. One of those malls, the upscale Galleria, seems to be thriving. People from the upper Midwest seem to flock there. The other one, Southdale, has struggled.
Southdale was, in fact, the first enclosed mall in the United States. It went through stages of change before, but the pandemic hit it hard.
Intriguingly, though, it seems to have had a pretty good strategy for survival. Instead of continuing to try to find retail stores to fill up storefronts, it changed pace. First came lots of apartments and a hotel in the parking lots. Then came a huge LifeTime fitness center, and next is a grocery store. It won't be the same kind of mall, but it will be a thing-- and that is probably good. 

Tuesday, June 20, 2023


Back to DC!


Thursday of this week I'll be in DC to testify in front of the House Judiciary Committee's subcommittee on Crime and Federal Government Surveillance to talk about clemency. There will only be three witnesses, so I better be ready! I very much enjoy these discussions, and love the chance to make my case to people who can actually do something about it.

The hearing will be in room 2141 of the Rayburn Building-- the same room where impeachment hearings are held, and pretty much every other House hearing dealing with most of the things I care about. This will be my fourth time testifying in that room, so hopefully I have gotten the hang of it!

Monday, June 19, 2023


On the road, badly

 Ok, I gotta say I feel kind of judged by this haiku by IPLawGuy:

Drove for five long hours
NO ice cream or BBQ
How did I survive?
But not this one of his:
Minivan Flat Tire
Midnight, Busy interstate
Tiny shoulder, scary.

And Michimom! I think I was there for this:

We all smell popcorn.
It is the engine burning
in our camper van.
The Spanish Medievalist has a poem about going to, duh, Spain:

Guy with oxygen
Dies before reaching Madrid,
Extra stop New York.

And Christine, I hope, filed a claim:

Business trip London
Luggage missing in action
Wash undies in sink.

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