CLE Written Materials

Center on the Administration of Criminal Law's 6th

Annual Conference

April 15, 2014

NYU School of Law

"Mercy in the Criminal Justice System"

Center on the Administration of Criminal Law’s 6th Annual Conference “Mercy in the Criminal Justice System”

Bios of Speakers Kathryn Ruemmler (Keynote Speaker) Kathryn Ruemmler currently serves as Counsel to the President, a position she has held since June of 2011. As the President’s chief lawyer, Ms. Ruemmler advises the President on all legal and Constitutional issues across a broad spectrum of domestic and foreign policy matters. She provides strategic advice on significant litigation matters, including Supreme Court cases. Ms. Ruemmler also manages the White House and the Executive Branch’s defense of congressional and other investigations and is responsible for the judicial selection and nomination process. Prior to becoming Counsel, Ms. Ruemmler served as Principal Deputy Counsel to the President. Ms. Ruemmler joined the Obama Administration on January 20, 2009 as Principal Associate Deputy Attorney General at the Justice Department. In this position, she was the most senior member of the Deputy Attorney General’s staff and served as the Deputy Attorney General’s primary advisor on a broad range of criminal, law enforcement, national security, and civil matters. She also assisted the Attorney General and the Deputy Attorney General in the overall management and oversight of DOJ operations, including the United States Attorney’s offices. Ms. Ruemmler left the Justice Department for the White House in January of 2010. Ms. Ruemmler was a litigation partner in the Washington, D.C. office of Latham & Watkins from 2007 to 2009. While at Latham, Ms. Ruemmler represented corporate and individual clients in a variety of enforcement matters, internal investigations, and trial matters. From 2001 to 2007, Ms. Ruemmler was an Assistant United States Attorney in the District of Columbia, and from 2003 to 2007, Ms. Ruemmler was assigned to the Enron Task Force, becoming the Deputy Director of the team in 2005. Ms. Ruemmler served as co-lead prosecutor in the successful prosecution of former Enron CEOs Ken Lay and Jeff Skilling, and she delivered the closing argument on behalf of the government in the four year trial. Ms. Ruemmler received the Attorney General’s Award for Exceptional Service for her work on the Enron investigation. From 2000 to 2001, Ms. Ruemmler served as Associate Counsel to President Clinton where she defended the White House in a variety of independent counsel and congressional investigations. Immediately prior to her White House service, she was a litigation associate at Zuckerman Spaeder LLP. Ms. Ruemmler received her law degree from Georgetown University Law Center where she was the Editor-in-Chief of the Georgetown Law Journal and her B.A. from the University of Washington. She clerked for the Honorable Timothy K. Lewis of the United States Court of Appeals for the Third Circuit.

Panel 1

Mark Osler (Moderator)

Mark Osler is a Professor of Law at the University of St. Thomas Law School in Minnesota. A graduate of the College of William and Mary and Yale Law School, Professor Osler is a former federal prosecutor whose work has consistently confronted the problem of inflexibility in sentencing and corrections. As lead counsel he won the case of Spears v. United States (2009) in the U.S. Supreme Court, where the Court held that sentencing judges can categorically reject the 100:1 ratio between crack and powder cocaine in the federal sentencing guidelines. Justice Stevens (in dissent) also quoted Professor Osler in the seminal case of United States v. Booker (2005), which struck down the mandatory guidelines. As an

appellate attorney, Osler has briefed or argued cases (often as Amicus for other sentencing experts) in six federal courts of appeal and in the United States Supreme Court, and as a sentencing expert he has testified in Congress (2009) and before the U.S. Sentencing Commission (2004). He serves as the head of the Association of Religiously Affiliated Law Schools, and often lectures on issues relating to sentencing, ethics, and faith and the law. His work on one case is portrayed in the Samuel Goldwyn film American Violet, where the character of Professor Joe Fischer is based on Osler’s role in working with a former student to address suspect practices by a District Attorney. His book, Jesus on Death Row (Abingdon, 2009) challenges the death penalty based on the experience of Christ as a criminal defendant. He has also authored over twenty academic articles and has been interviewed as a sentencing or Supreme Court expert on CNN, NPR’s Morning Edition, ABC’s Good Morning America, and in hundreds of newspapers. In 2009 (while serving as a professor at Baylor University) he was named “Wacoan of the Year” by Wacoan Magazine.

J.P. “Sandy” Ogilvy

Professor Ogilvy joined the faculty of the Columbus School of Law, The Catholic University of America, in 1991 to teach civil procedure and interviewing, counseling, and negotiation skills, and to become its Coordinator of Clinical Programs, a position he held until 2006. Currently, Professor Ogilvy is the Director of the Office of Law & Social Justice Initiatives and the Director of the National Archive of Clinical Legal Education, which is housed at the Kathryn J. DuFour Law Library at Columbus School of Law. He currently teaches Civil Procedure, Torts, and directs the Innocence Project Clinic & Clemency Project. Professor Ogilvy is a past chair of the AALS Section on Pro Bono and Public Service Opportunities and a past chair of the AALS Section on Clinical Legal Education and currently is the historian for the organization. In addition to articles on the courts, pedagogical issues, and clinical legal education, he is the author (with Professors Leah Wortham, Lisa Lerman, Lucia Silecchia, Stacy Brustin, Margaret Barry, Assistant Dean Georgia Niedzielko, and Professor Liz Ryan Cole of Vermont Law School) of Learning from Practice: A Professional Development Text for Legal Externs, 2d ed. (Thomson/West 2007). Professor Ogilvy was awarded the 2003 William Pincus Award by the Association of American Law Schools Section on Clinical Legal Education for outstanding contributions to the cause of clinical legal education and the advancement of justice. In 2013, he was awarded the Father Robert F. Drinan Award by the AALS Section on Pro Bono and Public Service Opportunities for forwarding the ethic of pro bono and public service in law schools through personal service, program design and management. Upon graduation from law school, Professor Ogilvy practiced law with Gregory, Clyman, and Ogilvy from 1973 to 1975 and then with Legal Services for Northwest Pennsylvania and the Legal Aid Society of Cincinnati from 1976 to 1979. He earned an LL.M in Advocacy from the Georgetown University Law Center in 1982 and worked in GULC's Center for Applied Legal Studies clinic during the 1982-83 academic year. He began full-time law teaching at Thurgood Marshall School of Law, Texas Southern University, in 1983, where he developed several clinical programs in which he taught and supervised students. He also taught civil procedure and contracts. Professor Ogilvy received his bachelor's degree from Portland State University in 1968 and, after a two-year hiatus defending our country's northern border as a member of the U.S. Army in Alaska, his J.D. from Northwestern School of Law of Lewis and Clark College in 1973. He and his wife, Louise Howells, who also is a law school professor, are the parents of twin boys.

Harlan Protass

Harlan Protass is a criminal defense lawyer at Clayman & Rosenberg LLP in New York and an adjunct professor at the Benjamin N. Cardozo School of Law, where he teaches sentencing law. He also serves on the Advisory Board of the Mercy Project at NYU Law School. In his private practice, Mr. Protass has successfully obtained resentencing hearings for two federal inmates serving life terms, both of whom were resentenced to time served – one after 17+ years and one after 22+ years of imprisonment. Mr. Protass also is a frequent contributor to publications including Slate, the Wall Street Journal, the Chicago Tribune, the LA Times, the National Law Journal and the New York Law Journal. He graduated from Cornell University and the Benjamin N. Cardozo School of Law, where he served as an Editor of the Cardozo Law Review.

Joann M. Sahl

Professor Sahl is the assistant director of the Legal Clinic at University of Akron Law School. She supervises the Civil Litigation Clinic and the Clemency Project. She is also the Director of the Trial Team Program as well as the Pro Bono Coordinator. Professor Sahl also serves as the site supervisor for the statewide Law and Leadership Institute. Prior to joining Akron Law, she served as a staff attorney in the housing unit of Community Legal Aid Services, Inc. in Akron, Ohio from 1999-2008. In that role she represented clients in housing cases and expungement cases including appearances at court and before administrative agencies. She also conducted community presentations on a variety of legal topics. Before that, Professor Sahl served as assistant state public defender at the Ohio Public Defender Commission, eventually rising to chief appellate counsel and supervisor of the Death Penalty section where she successfully argued before the US Supreme court in Ohio v. Huertas, 498 US 336 (1991). Ms. Sahl received her J.D. from The University of Akron School of Law in 1986, where she was a member of the National Moot Court Team. She received her B.A. from The Ohio State University in 1983.

Anthony Thompson

Professor Anthony Thompson is a Professor of Clinical Law at New York University School of Law. He teaches courses related to criminal law and civil litigation. His scholarship focuses on race, offender reentry, criminal justice issues and leadership. In his first book, published by NYU Press, Releasing Prisoners, Redeeming Communities, Professor Thompson takes an in-depth look at the issues of Reentry, Race and Politics. He analyzes the media’s involvement in shaping public policy as well as the role that race plays in reentry. Professor Thompson designed and developed the first course in the country focusing on offender reentry, formerly known as the Offender Reentry Clinic. In the 2013-2014 academic year, the clinic has been renamed the Community Reentry and Reintegration Clinic (“CRRC”) and will focus on individual client advocacy as well as policy work. The new name reflects a renewed emphasis on a more holistic approach to reentry work. CRRC explores, in depth, the legal, social and political impediments to the smooth reintegration of individuals into their communities after periods of incarceration. Courtroom advocacy, legislative advocacy and media advocacy are explored and utilized in the seminar and fieldwork. Professor Thompson’s scholarship explores many of the pressing issues in the justice system. In an expansive article titled, "Stopping the Usual Suspects: Race and the Fourth Amendment," Thompson demonstrates that the U.S. Supreme Court's treatment of racially motivated searches and seizures runs counter to the intention of the framers of the Fourth Amendment. In fact, he argues that the amendment was intended to protect minorities from selective search and seizure. Considered a substantial contribution to the field, it has been frequently cited by legal scholars and the media when exploring race and the criminal justice system. Professor Thompson’s teaching has focused

on many of the key roles in the criminal justice system. He has previously taught the Prosecution Clinic, a year-long seminar that placed students in the District Attorney’s offices in Manhattan and the Bronx. Students in that clinic maintained their own misdemeanor caseloads and examined ways that race, ethnicity and class influence discretion in the criminal justice system. In addition, he has participated on the faculty of the American Prosecutors Research Institute (APRI). These experiences have helped to provide material for his article, "It Takes a Community to Prosecute," which set out to define and shape the merging trend of community prosecution. Professor Thompson urged prosecutors to employ a "community-based" approach to their work. He presented a thorough, wide-ranging critical analysis of community prosecution programs, diagnosing the elements that have enabled some programs to succeed while others have failed. Professor Thompson has also taught the Criminal and Community Defense Clinic. In this clinic, students explore the ways that defenders can provide holistic representation to clients. Prior to his appointment to the NYU faculty, he was in private practice in Richmond, California where he handled criminal, civil, and entertainment matters. Before opening his own practice, Professor Thompson served for nine years as a Deputy Public Defender in Contra Costa County California. While there, he represented adults charged with criminal offenses and juveniles charged as delinquents. He also brought a major impact action which forced the county to provide confidential interview rooms for detained juveniles. Professor Thompson has published a wide range of articles examining various aspects of the criminal justice system and has contributed to the New York Times and El Diario/La Prensa. Professor Thompson’s most recent scholarship , examines leadership and the law. He is teaching a seminar in Spring 2014 in which he will examine the intersection of legal education and leadership in an increasingly globalized society. The course will expose students to some fundamental leadership theory and skills. Professor Thompson is part of the Duke Corporate Education Global Learning Research Network and has provided executive education to a number of global companies focusing on leadership and strategy execution. In 2007, Professor Thompson was awarded the Podell Distinguished Teaching Award by NYU School of Law. In 2010, he received the Martin Luther King Jr. Faculty Award and in 2010 he was also awarded the New York University Distinguished Teaching Award. Professor Thompson was also recognized by El Diario in 2011 with “The EL” Award, as one of the outstanding Latinos in the Tri-State area for his community service. Professor Thompson earned his J.D. at Harvard Law School and his B.S. Ed from Northwestern University.

Panel 2

Nancy Hoppock (Moderator)

Before joining NYU, Ms. Hoppock served as the Executive Deputy Attorney General for Criminal Justice at the New York Attorney General's Office supervising the six components of the Criminal Division: the Public Integrity Bureau, the Criminal Prosecutions Bureau, the Organized Crime Task Force, the Medicaid Fraud Control Unit, the Taxpayer Protection Unit, and the Investigations Division. Prior to joining the Attorney General’s Office, Ms. Hoppock served as an Assistant United States Attorney at the U.S. Attorney’s Office in the District of New Jersey from 2001 to 2010, where she handled a broad range of federal criminal prosecutions. During her tenure at the U.S. Attorney's Office, Hoppock was promoted to supervise the Government Fraud Unit, then became a Deputy Chief of the Criminal Division, and later the Chief of the Criminal Division. She was a recipient of the Department of Justice Director’s Award in 2010, for her work on the prosecution of a human trafficking case, United States vs. Afolabi. Ms. Hoppock started her career at the Manhattan District Attorney’s Office, where she spent seven years as

an Assistant District Attorney in the trial division. She received her B.A. from the University of Delaware and her law degree from Seton Hall Law School.

Lt. Governor Matt Denn

Lieutenant Governor Matt Denn of Delaware took office in January 2009. His office is dedicated to advocacy for Delaware's children. He also chairs the state's Criminal Justice Council, and works with the Governor on expanding employment opportunities for Delawareans. The Lieutenant Governor’s agenda includes: improving the state's schools, including getting more funding to the classroom, recruiting great teachers, and expanding parental involvement in schools; securing health coverage for Delaware kids; reducing environmental hazards faced by children; protecting abused and neglected children; and improving services to children with disabilities. He served as Delaware's elected Insurance Commissioner from 2005 through 2008, and was recognized for his fight to keep insurance rates under control and ensure that policyholders were treated fairly by their insurance companies. Lt. Governor Denn grew up in New Castle County, attending Yorklyn Elementary and H.B. du Pont Middle School before his family moved to California. He graduated from the University of California at Berkeley and Yale Law School. After law school, he returned to Delaware and sought out Delaware Volunteer Legal Services for his first job, providing free legal advice and representation to people who couldn't afford it. The Lt. Governor then began his public service in 1998 after he was asked by then-Governor Tom Carper to chair a commission charged with fixing state government's child protection system after a series of tragic child deaths.

Hon. Robert L. Ehrlich, Jr.

The Honorable Robert L. Ehrlich, Jr. is senior counsel in the Government Advocacy and Public Policy practice group at King & Spalding in Washington, D.C. He advises clients on a broad array of policy matters and their interactions with the federal government. Having served as Governor, a U.S. Congressman, state legislator, and civil litigator, he counsels clients on an array of government matters, with particular expertise in health care, finance and economic development. As Maryland’s first Republican Governor in 36 years when elected in 2002, he improved Maryland’s fiscal condition by turning $4 billion in inherited budget deficits into $2.3 billion in surpluses. His pro-growth economic policies helped create 100,000 new private sector jobs. He is an advocate for Maryland’s world-renown technology economy, enacting policies that positioned Maryland as a national leader in education, biotechnology, health care, and minority business advancement. He made record investments in public schools and authored Maryland’s first public charter schools law, enabling more than 7,000 students to attend 30 new public charter schools. He doubled funding for need-based college scholarships, helping college enrollment reach an all-time high. Governor Ehrlich authored the historic Chesapeake Bay Restoration Act to restore America’s largest estuary. The Chesapeake Bay Foundation called it, “the most important environmental achievement in twenty years.” Governor Ehrlich launched construction on 123 statewide transportation projects in four years, and managed the most successful military base realignment and closure strategy in the nation. He toughened penalties for sex offenders, drunk driving, and witness intimidation and established Maryland’s first Office of Homeland Security. Governor Ehrlich earned national commendation for empowering individuals with disabilities. He created the nation’s first cabinet-level Department of Disabilities, for which he earned the “Highest Recognition Award” from the U.S. Secretary of Health and Human Services, among other awards. Prior to serving as Governor, Congressman Ehrlich won four terms in the U.S. House of Representatives. In Congress, he served as a member of the House Majority Whip team, wherein he helped pass comprehensive tax relief, greater access to health care, federal education reform, and the first balanced budget in a generation. He also

served in the Maryland House of Delegates from 1986 to 1994, representing Baltimore County. He served on the House Judiciary Committee and was instrumental in shaping state policy on tort reform, juvenile justice, and child abuse and neglect. Prior to running for public office, Ehrlich was associated with the Baltimore law firm of Ober, Kaler, Grimes and Shriver, where he practiced civil litigation for eleven years. He served as a founding Member and Partner at the law firm Womble Carlyle Sandridge & Rice PLLC in Baltimore. He earned his Bachelor’s Degree in Politics from Princeton University in 1979, where he captained the freshman and varsity football teams, and his Juris Doctorate from Wake Forest University in 1982. Governor Ehrlich has been recognized on many occasions for his outstanding public service including in 2009, when he became one of a handful of U.S. Citizens to receive the Order of Diplomatic Service award from the Government of Korea.

Margaret Colgate Love

Margaret Love practices law in Washington, D.C., specializing in executive clemency and restoration of rights, and sentencing and corrections policy. A prolific author, Ms. Love represents applicants for presidential pardon and commutation of sentence, and also advises individuals with state convictions who are seeking to avoid or mitigate collateral consequences. She consults with legislatures, clemency and parole authorities, governors' offices, and other agencies on the development and operation of mechanisms for relief from collateral consequences. Ms. Love directs the ABA’s project to inventory the collateral consequences of conviction in each U.S. jurisdiction, and is co-author of a treatise on collateral consequences (Love, Roberts & Klingele, Collateral Consequences of a Criminal Conviction: Law, Policy and Practice (NACDL/West 2012). She serves as a member of the Task Force on Restoration of Rights and Status of the National Association of Criminal Defense Lawyers, as liaison to the ABA Standards Committee from the National Legal Aid and Defender Association, and as an Adviser to the American Law Institute Model Penal Code/Sentencing project. She chaired the drafting committee for the ABA Criminal Justice Standards on the Treatment of Prisoners, and the drafting committee for the Standards on Collateral Sanctions and Discretionary Disqualification of Convicted Persons. She participated in the drafting of the Uniform Collateral Consequences of Conviction Act, and is currently on its enactment committee. From 2005 to 2009 she directed the work of the ABA Commission on Effective Criminal Sanctions, and in 2003-2005 was reporter for the ABA Justice Kennedy Commission. She is currently an Adviser to the American Law Institute Model Penal Code/Sentencing project. Ms. Love served as United States Pardon Attorney in the Justice Department from 1990 to 1997, with overall responsibility for operation and management of Justice Department’s executive clemency program. She was Deputy Associate Attorney General and Associate Deputy Attorney General (1988-1990), and Senior Counsel in the Office of Legal Counsel (1979-1988). Ms. Love was awarded a Soros Senior Fellowship in 2004-2005. She is a former chair of the ABA Standing Committee on Ethics and Professional Responsibility, and member of the ABA Commission on Evaluation of the Rules of Professional Conduct ("Ethics 2000"). Ms. Love received her law degree from Yale, and has a Masters Degree in Medieval History from the University of Pennsylvania.

Jorge Montes

Jorge Montes is the principal at Montes & Associates in Chicago, Illinois. Mr. Montes earned a bachelor’s degree in journalism in 1985 from Loyola University of Chicago and his J.D. in 1988 from Loyola School of Law. He has served as supervising litigation attorney at the Cook County State's Attorney's Office; as editor for Passport, an American Bar Association publication; and as spokesman for the Office of the Illinois Attorney General. Having received appointments by various governors, he worked for the Illinois Prisoner Review Board for over 16 years, becoming the first Latino and youngest

Chairman of the Board in 2004. He worked in that position until 2010, when he resigned to return to law practice. Currently Mr. Montes combines a rich political background and a solid law career to reach creative solutions for his clients' legal problems, particularly in commercial and business matters. Mr. Montes has served on a number of bar association, college and medical clinic boards. He has been counsel for the Illinois Association of Hispanic State Employees for over 15 years. He is a frequent public speaker and often makes appearances on radio and television programs and is often quoted in newspapers. For his dedication to the legal community and contributions to society, Mr. Montes has earned numerous awards and honors from the Illinois State Bar Association, Chicago Bar Association, Hispanic lawyer's Association of Illinois and its predecessor organization and numerous public interest groups that Mr. Montes has assisted.

Panel 3

Rachel E. Barkow (Moderator)

Professor Barkow is the Segal Family Professor of Regulatory Law and Policy at New York University School of Law and is the Faculty Director of the Center on the Administration of Criminal Law. Professor Barkow also serves as a Commissioner on the United States Sentencing Commission. Professor Barkow’s scholarship focuses on applying the lessons and theory of administrative and constitutional law to the administration of criminal justice. She has written more than 20 articles, recently joined the leading criminal law casebook as a co-author, and is recognized as one of the country’s leading experts on criminal law and policy. She received the NYU Distinguished Teaching Award in 2013 and the Law School’s Podell Distinguished Teaching Award in 2007. In June 2013, the Senate confirmed her as a member of the United States Sentencing Commission. Since 2010, she has also been a member of the Manhattan District Attorney’s Office Conviction Integrity Policy Advisory Panel. After graduating from Northwestern University (BA ’93), Barkow attended Harvard Law School (’96), where she won the Sears Prize. She served as a law clerk to Judge Laurence H. Silberman of the DC Circuit and Justice Antonin Scalia of the US Supreme Court. Barkow was an associate at Kellogg, Huber, Hansen, Todd, Evans & Figel in Washington, DC, before joining the NYU Law faculty.

Amy Baron-Evans

Amy Baron-Evans is Sentencing Resource Counsel for the Federal Public and Community Defenders. She provides briefing and amicus support in cases before the Supreme Court and courts of appeals, represents Defenders’ interests in sentencing policy matters, and teaches sentencing advocacy. She has authored numerous articles on federal sentencing law and policy, search and seizure, discovery, evidence, victim rights, and other criminal and constitutional law issues. Before joining the Defenders, Amy was a partner at Dwyer & Collora LLP in Boston, where she represented clients in cases involving white collar crime, drug trafficking, terrorism, and murder. She is a past Co-Chair of the Federal Sentencing Guidelines Committee of the National Association of Criminal Defense Lawyers and of the Practitioners’ Advisory Group of the United States Sentencing Commission. Amy is a cum laude graduate of Harvard Law School and clerked for the Honorable Hugh H. Bownes of the First Circuit Court of Appeals. Douglas A. Berman Professor Douglas A. Berman is the Robert J. Watkins/Procter & Gamble Professor of Law at the Ohio State University School of Law. He attended Princeton University and Harvard Law School. In law school,

he was an editor and developments office chair of the Harvard Law Review and also served as a teaching assistant for a Harvard University philosophy course. After graduation from law school in 1993, Professor Berman served as a law clerk for Judge Jon O. Newman and then for Judge Guido Calabresi, both on the United States Court of Appeals for the Second Circuit. After clerking, Professor Berman was a litigation associate at the law firm of Paul, Weiss, Rifkind, Wharton, and Garrison in New York City. Professor Berman’s principal teaching and research focus is in the area of criminal law and criminal sentencing, though he also has teaching and practice experience in the fields of legislation and intellectual property. He has taught Criminal Law, Criminal Punishment and Sentencing, Criminal Procedure – Investigation, The Death Penalty, Legislation, Introduction to Intellectual Property, Second Amendment Seminar, and the Legislation Clinic. Professor Berman is the co-author of a casebook, Sentencing Law and Policy: Cases, Statutes and Guidelines, which is published by Aspen Publishers and is now in its second edition. In addition to authoring numerous publications on topics ranging from capital punishment to the federal sentencing guidelines, Professor Berman has served as an editor of the Federal Sentencing Reporter for more than a decade, and also now serves as co-managing editor of the Ohio State Journal of Criminal Law. During the 1999-2000 school year, Professor Berman received the Ohio State University Alumni Award for Distinguished Teaching, which is given to only 10 people each year from an eligible pool of nearly 3,000 faculty members. Professor Berman was one of the youngest faculty members to ever receive this award, and he was subsequently asked to chair the university committee that selected recipients in the 2002-03 school year. Professor Berman is the sole creator and author of the widely-read and widely-cited blog, Sentencing Law and Policy. The blog now receives nearly 100,000 page views per month (and had over 20,000 hits the day of the Supreme Court’s major sentencing decision in United States v. Booker). Professor Berman’s work on the Sentencing Law and Policy blog, which he describes as a form of “scholarship in action,” has been profiled or discussed at length in articles appearing in the Wall Street Journal, Legal Affairs magazine, Lawyers Weekly USA, Legal Times, Columbus Monthly, and in numerous other print and online publications. In addition, Sentencing Law and Policy has the distinction of being the first blog cited by the U.S. Supreme Court (for a document appearing exclusively on the site), and substantive analysis in particular blog posts has been cited in numerous appellate and district court rulings, in many briefs submitted to federal and state courts around the country, and in dozens of law review articles. Professor Berman frequently is consulted by national and state policymakers, sentencing commissioners, and public policy groups concerning sentencing law and policy reforms. He has testified before the U.S. House of Representatives and before numerous sentencing commissions. He also is frequently contacted by media concerning sentencing developments by national and local media concerning sentencing developments. In recent years, Professor Berman has appeared on national television and radio news programs and has been extensively quoted in newspaper articles appearing in nearly every major national paper and many local papers, including The New York Times, The Washington Post, The Wall Street Journal, Legal Times, and in pieces from the Associated Press, Reuters, and Knight-Ridder news services. Professor Berman sometimes serves as a consultant to lawyers working on important or interesting sentencing cases. In most instances, Professor Berman’s consulting has been on an ad hoc and pro bono basis, and it usually involves a quick review of draft briefs and other court filings and then providing general advice on litigation strategies. On some occasions, however, Professor Berman has been formally retained to play a more sustained role in certain cases, including being retained by law firms to provide consulting service on various cutting-edge federal sentencing issues.

Paul G. Cassell

Professor Cassell is the Ronald N. Boyce Presidential Professor of Criminal Law at the College of Law at the University of Utah. Professor Cassell received a B.A. (1981) and a J.D. (1984) from Stanford University, where he graduated Order of the Coif and was President of the Stanford Law Review. He clerked for then-Judge Antonin Scalia when Scalia was on the U.S. Court of Appeals for the D.C. Circuit (1984-85) and then for the Chief Justice of the United States, Warren Burger (1985-86). Professor Cassell then served as an Associate Deputy Attorney General with the U.S. Justice Department (1986-88) and as an Assistant U.S. Attorney for the Eastern District of Virginia (1988 to 1991). He joined the faculty at the University of Utah’s College of Law in 1992, where he taught full time until he was sworn in as a U.S. District Court Judge for the District of Utah on July 2, 2002. In November 2007, he resigned his judgeship to return full time to the College of Law, to teach, write, and litigate on issues relating to crime victims' rights and criminal justice reform. Professor Cassell teaches criminal procedure, crime victims' rights, criminal law, and related classes.

Sam Morison

Sam Morison has practiced law for more than 20 years and is a nationally recognized expert on federal

executive clemency and the restoration of civil rights. He is a member of the North Carolina and District

of Columbia bars, and is admitted to practice before several federal district and appellate courts. He

graduated with honors from the University of North Carolina School of Law, and then served as a law

clerk for Judge William Osteen, Sr. on the United States District Court for the Middle District of North

Carolina. After clerking, he practiced law for five years with two leading law firms in Washington, D.C.,

where he handled a range of litigation matters in several substantive areas, including white collar crime.

Mr. Morison then served for 13 years a staff attorney in the Office of the Pardon Attorney. In this

position, he was responsible for reviewing literally hundreds of clemency applications for all forms of

executive clemency, including pardon after completion of sentence, commutation of sentence, and

remission of fine; supervising the necessary background investigations conducted by the Federal Bureau

of Investigation to determine whether an applicant was a suitable candidate for executive clemency;

and preparing the Pardon Attorney’s recommendation to the President regarding the disposition of

individual cases. Prior to attending law school, Mr. Morison received a Bachelor of Arts in

interdisciplinary studies from George Mason University, and more recently completed a Master of Arts

in philosophy and social policy from American University. He has published widely in leading academic

journals on a variety of topics, including the history and theory of executive clemency. He is also quoted

frequently in the national press on the federal clemency process. Based on his experience, Mr. Morison

is intimately familiar with all phases of the clemency advisory process implemented by the Office of the

Pardon Attorney.

Dafna Linzer

Dafna Linzer is Managing Editor of MSNBC.com. Before joining MSNBC, she was an award-winning senior investigative reporter at ProPublica and is the author of “Shades of Mercy,” a series and e-book on racial bias in presidential pardons. Previously, she covered national security for the Washington Post and was a special projects reporter and foreign correspondent with the Associated Press, based in Jerusalem and at the United Nations.

Prepared by Harlan Protass of Clayman & Rosenberg LLP for the Mercy Project.

The Mercy Project

Center on Administration of Criminal Law

New York University Law School

Legal Primer

September 2013

i

TABLE OF CONTENTS

Page

I. INTRODUCTION ...............................................................................................................1

II. HISTORICAL BACKGROUND ........................................................................................2

A. The Sentencing Reform Act of 1984 and

the United States Sentencing Guidelines .................................................................2

B. The Advisory Nature of the Guidelines Today ........................................................3

C. The Antiterrorism and Effective Death Penalty Act of 1996 ..................................4

D. Rule 35(a) of the Federal Rules of Criminal Procedure ..........................................5

E. Limits on Available Remedies Today......................................................................6

III. POTENTIAL LEGAL GROUNDS FOR

SEEKING RE-SENTENCING HEARINGS .......................................................................7

A. Rule 60(b) of the Federal Rules of Civil Procedure ................................................7

B. Writ of Audita Querela ............................................................................................8

C. Writ of Error Coram Nobis ......................................................................................9

D. 28 U.S.C. § 2241 ....................................................................................................11

E. Suggested Procedure ..............................................................................................12

IV. RESENTENCING BASED ON RETROACTIVE AMENDMENTS

TO THE UNITED STATES SENTENCING GUIDELINES ...........................................13

A. Background ............................................................................................................13

B. The Sentencing Commission’s Power to Authorize Sentence Reductions………14

C. The Sentencing Court’s Power to Reduce Sentences ............................................14

D. Retroactive Amendments to the Guidelines Authorize

But Do Not Require Sentence Reductions .............................................................15

E. Caselaw Describing the Sentencing Court’s Power to Reduce Sentences ............15

ii

F. Developments Concerning the Fair Sentencing Act of 2010 and

Sentence Reduction Motions for Crack Cocaine Offenders ..................................15

G. Sentence Reductions Must Be Consistent With the

Policy Statements in Section 1B1.10 of the Guidelines ........................................16

H. Policy Statement #1 – Substitute Only the Amended Guidelines

Provision and Do Not Alter Any Other Guidelines Calculation............................17

I. Policy Statement #2 – Factors That Courts Should Consider

When Determining Whether a Sentence Reduction

Is Warranted and the Extent of Any Reduction .....................................................17

J. Policy Statement #3 – Factors That Courts May Consider

When Determining Whether a Sentence Reduction

Is Warranted and the Extent of Any Reduction .....................................................18

K. Policy Statement #4 – The Extent of Any Sentence Reduction.............................18

L. Calculating the Amended Guideline Range ...........................................................18

M. Suggested Procedure ..............................................................................................19

V. THE U.S. BUREAU OF PRISONS’

“COMPASSIONATE RELEASE” PROGRAM ...............................................................20

A. Background ............................................................................................................20

B. Initiation of Request for Compassionate Release ..................................................21

C. General Criteria for Compassionate Release .........................................................21

D. Compassionate Release Based on Medical Circumstance .....................................22

E. Compassionate Release Based on Non-

Medical Circumstances – Elderly Inmates ............................................................22

F. Compassionate Release for Elderly

Inmates with Medical Conditions ..........................................................................23

G. Compassionate Release for Other Elderly Inmates ...............................................23

H. Compassionate Release Based on the Death or

Incapacitation of A Family Member Caregiver .....................................................23

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I. Compassionate Release Based on Non-Medical Circumstances –

Incapacitation of a Spouse or Registered Partner ..................................................25

J. Process for Approval of Requests for Compassionate Release .............................27

VI. EXECUTIVE PARDONS AND SENTENCE COMMUTATIONS .................................29

A. The Pardon Attorney ..............................................................................................29

B. Timing of Petition ..................................................................................................30

C. Role of the United States Attorney

In Executive Clemency Petitions ...........................................................................30

D. Standards for Pardon Petitions ...............................................................................31

E. Standards for Sentence Commutation Petitions .....................................................33

1

I.

INTRODUCTION

The Mercy Project’s mission is to mitigate the effects of harsh federal sentencing laws by acting

as counsel to qualified federal defendants serving long prison terms who may be deserving of a

“second look” but for whom ordinary legal avenues of relief are closed. The Mercy Project will:

● Evaluate the convictions and sentences imposed on federal

defendants for purposes of identifying legal grounds for

new sentencing hearings, at which prison terms shorter than

those originally imposed may be sought;

● Petition the U.S. Bureau of Prisons for “compassionate

release” on behalf of federal defendants suffering from

serious and/or life-threatening medical conditions and

similar qualifying characteristics; and/or

● Petition for pardon or sentence commutation on behalf of

federal defendants who meet the standards and

requirements for executive clemency.

This legal primer is intended to educate those attorneys representing Mercy Project clients on

potential avenues of relief. It does not recommend one form of relief over another. And it does

not (and could not) identify specific legal or factual issues in any individual Mercy Project

client’s case. Rather, identification of legal or factual issues, and determination of the most

effective legal tool for achieving relief, can only be made through a careful and thorough review

of the entirety of a Mercy Project client’s legal record, personal history, disciplinary record, post-

conviction conduct and other similar facts and circumstances. Mercy Project staff are available

to assist and advise in doing so.

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II.

BACKGROUND

The absence of virtually any avenue of relief for federal defendants serving long prison terms is a

recent phenomenon. It arises from the combined effects of the Sentencing Reform Act of 1984

(the “SRA”) and the Antiterrorism and Effective Death Penalty Act of 1996 (the “AEDPA”).

A.

The Sentencing Reform Act of 1984 and

the United States Sentencing Guidelines

Until November 1, 1987 federal judges were authorized to impose any sentence (up to the

statutory maximum set by Congress) on defendants convicted of federal crimes. Consequently,

two similarly situated defendants could receive, and sometimes did receive, disparate sentences.

This inconsistency in the application of federal law troubled legislators, the criminal justice

community and the public. Congress therefore passed the SRA as part of the Comprehensive

Crime Control Act of 1984 in part to address the issue of nationwide sentencing disparity.

Among other things, the SRA created the United States Sentencing Commission (the

“Sentencing Commission”) as a permanent independent federal agency within the judicial branch

tasked with formulating nationwide standards to guide federal judges in their sentencing

decisions. Its authority and duties are specified in Chapter 58 of Title 28 of the U.S. Code, and

its principal purposes are to: (1) establish sentencing policies and practices for the federal courts,

including guidelines to be consulted regarding the appropriate form and severity of punishment

for offenders convicted of federal crimes; (2) advise and assist Congress, the federal judiciary

and the executive branch in the development of effective and efficient crime policy; and (3)

collect, analyze, research and distribute a broad array of information on federal crime and

sentencing issues, and serve as an information resource for Congress, the executive branch, the

courts, criminal justice practitioners, the academic community and the public. For purposes of

“truth in sentencing,” the SRA also abolished parole in the federal criminal justice system. Thus,

today federal prisoners must serve the entirety of their sentences less approximately 13% for

“good time” if they qualify for that benefit.

Organized in October 1985, the Sentencing Commission submitted its first set of proposed

United States Sentencing Guidelines (the “Guidelines”) to Congress on April 13, 1987. The

Guidelines thereafter became effective on November 1, 1987, and apply to federal felonies and

Class A misdemeanors committed on or after that date. The Sentencing Commission designed

the Guidelines to: (1) to take into account the purposes of sentencing (just punishment,

rehabilitation, deterrence and incapacitation); (2) promote fairness through the establishment of

sanctions proportionate to the severity of each crime; and (3) avoid unwarranted sentencing

disparity by setting similar penalties for similarly situated offenders nationwide. In keeping with

their evolutionary nature, the Sentencing Commission amends the Guidelines as necessary. As

originally enacted the SRA (pursuant to 18 U.S.C. § 3553(b)) required federal judges to impose

sentences within the ranges set by the Sentencing Commission except in the most unusual of

3

circumstances (those involving aggravating or mitigating facts and circumstances that the

Sentencing Commission did not consider in developing the Guidelines – that is, facts and

circumstances outside of the Guidelines’ “heartland”).

B.

The Advisory Nature of the Guidelines Today

On January 12, 2005 the U.S. Supreme Court decided United States v. Booker, 543 U.S. 220

(2005). Booker held that mandatory application of the Guidelines violates the Sixth Amendment

to the U.S. Constitution because offense level calculations under the Guidelines (and the

resultant punishment) was based on judicial findings of fact, rather than facts found by a jury or

admitted by a defendant. Rather than scrap the Guidelines in their entirety, however, the U.S.

Supreme Court remedied this constitutional defect by severing 18 U.S.C. 3553(b) (the statutory

provision making application of the Guidelines mandatory) from the SRA.

Thus, today, sentencing in federal court is governed entirely by 18 U.S.C. § 3553(a), pursuant to

which the Guidelines are advisory only. See United States v. Crosby, 397 F.3d 103, 113 (2d Cir.

2005). That statute provides that federal judges must consider all of the following factors when

determining and imposing sentence

● The nature and circumstances of the offense;

● The history and characteristics of the defendant;

● Whether the sentence is sufficient, but not greater than

necessary, to: (1) reflect the seriousness of the offense,

promote respect for the law and provide just punishment

for the offense; (2) afford adequate deterrence to criminal

conduct; (3) protect the public from further crimes of the

defendant; and (4) provide the defendant with needed

educational or vocational training, medical care or other

correctional treatment in the most effective manner;

● The kinds of sentences available; and

● The kinds of sentence and the sentencing range established

for the offense by the Guidelines.

See United States v. Cavera, 550 F.3d 180, 188 (2d Cir. 2008) (en banc) (district courts “have

discretion to select an appropriate sentence, and in doing so are statutorily bound to consider the

factors listed in § 3553(a), including the advisory Guidelines range”); United States v. Bartlett,

567 F.3d 901, 908 (7th Cir. 2009) (“A judge must respect all of the statutory criteria in order to

mete out a sentence sufficient, but not greater than necessary, to comply with the purposes” of

sentencing”) (internal quotations omitted).

4

District courts therefore have “very wide latitude to decide the proper degree of punishment for

an individual offender and a particular crime.” Cavera, 550 F.3d at 188. And they are

“generally free to impose sentences outside the [advisory Guidelines’] recommended range” of

imprisonment. Id. See also United States v. Innarelli, 524 F.3d 286, 292 (1st Cir. 2008) (once

the advisory Guidelines range is calculated, “sentencing becomes a judgment call for the court”);

United States v. Jones, 460 F.3d 191, 195 (2d Cir. 2006) (judges are empowered to consider their

“own sense of what is a fair and just sentence under all the circumstances”).

Notwithstanding Booker and the caselaw that followed, the Guidelines still play a central role

and exert a gravitational pull in the sentencing process. See Gall v. United States, 552 U.S. 38,

49 (2007) (district courts are required to “begin all sentencing proceedings by correctly

calculating the applicable Guidelines range”); Rita v. United States, 551 U.S. 338, 348 (2007)

(courts of appeal may apply a presumption of reasonableness when reviewing a sentence

imposed within the Guideline sentencing range).

C.

The Antiterrorism and Effective Death Penalty Act of 1996

Other than direct appeal, 28 U.S.C. § 2255 is the primary means by which federal defendants

may collaterally challenge their convictions and detention. It provides (in relevant part) that:

A prisoner in custody under sentence of a court established by Act

of Congress claiming the right to be released upon the ground that

the sentence was imposed in violation of the Constitution or laws

of the United States, or that the court was without jurisdiction to

impose such sentence, or that the sentence was in excess of the

maximum authorized by law, or is otherwise subject to collateral

attack, may move the court which imposed the sentence to vacate,

set aside or correct the sentence.

Before passage of the AEDPA no limit existed on the number of 28 U.S.C. § 2255 motions that

federal inmates could file. Today, however, 28 U.S.C. § 2255(h) provides that federal

defendants are limited to one such motion unless a “second or successive” motion is certified by

a panel of an appropriate court of appeals to contain: (1) newly discovered evidence that, if

proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear

and convincing evidence that no reasonable fact finder would have found the movant guilty of

the offense; or (2) a new rule of constitutional law, made retroactive to cases on collateral review

by the U.S. Supreme Court, that was previously unavailable.

Additionally, the AEDPA imposes a 1 year statute of limitations on 28 U.S.C. § 2255 motions.

More particularly, it provides that such motions must be filed within 1 year of the latest of: (1)

the date on which the judgment of conviction becomes final; (2) the date on which the

impediment to making a motion created by governmental action in violation of the U.S.

Constitution or United States law is removed, if the movant was prevented from making a

motion by such governmental action; (3) the date on which the right asserted was first

5

recognized by the U.S. Supreme Court, if that right has been newly recognized by the U.S.

Supreme Court and made retroactively applicable to cases on collateral review; or (4) the date on

which facts supporting the claim or claims presented could have been discovered through the

exercise of due diligence.

The U.S. Supreme Court laid out principles governing the retroactivity of new constitutional

rules in Teague v. Lane, 489 U.S. 288 (1989). Under Teague, new constitutional rules are

defined as those that break new ground or impose new obligations on federal or state

governments. Id. at 301. More recently, the U.S. Supreme Court found that retroactivity is

based on the concept that “new” rules come from the Constitution. Danforth v. Minnesota, 552

U.S. 264 (2008). Thus, retroactivity analysis does not turn on the question of whether a newly

announced right previously existed in temporal terms, but whether a violation of a right that

occurred prior to the new rule (but had always existed even prior to its recognition) entitles a

criminal defendant to relief. Significantly for purposes of the Mercy Project, the U.S. Supreme

Court is the only court that can make a new rule of constitutional retroactive. Tyler v. Cain, 533

U.S. 656, 663 (2001).

Since Teague courts have evaluated 28 U.S.C. § 2255 motions under the presumption that “new

constitutional rules of criminal procedure” – contrasted with substantive changes in the law –

“will not be applicable to those cases which have become final before the new rules are

announced.” Teague, 489 U.S. at 310. But there are two exceptions to this general rule: (1) a

new rule that “places ‘certain kinds of primary, private individual conduct beyond the power of

the criminal law-making authority to proscribe’”; and (2) allowing for retroactive application of

a new rule “if it requires the observance of ‘those procedures that . . . are implicit in the concept

of ordered liberty.’” Teague, 489 U.S. at 307 (citations omitted).

D.

Rule 35(a) of the Federal Rules of Criminal Procedure

In addition to establishing the Sentencing Commission and the Guidelines, the SRA also revised

Rule 35(a) of the Federal Rules of Criminal Procedure (“Rule 35(a)”), which formerly authorized

district courts to “correct an illegal sentence at any time” (emphasis added). Lawmakers

eliminated the old version of Rule 35(a) in part because it was redundant of the potential relief

afforded by 22 U.S.C. § 2255. They therefore adopted a new Rule 35(a) that only allows for

sentence modification within 14 days of sentencing to “correct a sentence that resulted from

arithmetical, technical, or other clear error.” As described by the Advisory Committee on

Criminal Rules (the “Advisory Committee”), the elimination of the former Rule 35(a) and the

adoption of a new Rule 35(a):

provides an efficient and prompt method for correcting obvious

technical errors that are called to the court’s attention immediately

after sentencing. But the addition of this subdivision is not

intended to preclude a defendant from obtaining statutory relief

from a plainly illegal sentence. The Committee’s assumption is

that a defendant detained pursuant to such a sentence could seek

6

relief under 28 U.S.C. § 2255 if the [fourteen] day period provided

in [Rule 35(a)] has elapsed. [Rule 35(a)] and § 2255 thus provide

sufficient authority for a district court to correct obvious

sentencing errors.

Advisory Comm. on Criminal Rules (Jud. Conf. of U.S.), Note on 1991 Amend. to Rule 35

(emphasis added). See also United States v. Rivera, 376 F.3d 86, 91-93 (2d Cir. 2004)

(discussing the scope and history of former Rule 35(a)); United States v. Blackmer, 909 F.2d 66,

67 (2d Cir. 1990) (per curiam) (noting the former Rule 35(a)’s continuing applicability to pre-

November 1987 cases).

In other words and because of the potential relief afforded by 28 U.S.C. § 2255, the Advisory

Committee believed that the elimination of former Rule 35(a) would not impact the ability of

federal defendants to collaterally attack illegal sentences or detention. The AEDPA, however,

limited federal defendants to one 28 U.S.C. § 2255 motion (except in very limited

circumstances) and established a 1 year statute of limitations on those motions. Thus, when

Congress passed the AEDPA, the validity of the Advisory Committee’s critical assumption

concerning elimination of former Rule 35(a) was lost.

E.

Limits on Available Remedies Today

Notwithstanding the SRA and the AEDPA, there is no reason to believe that Congress ever

contemplated, much less intended, that circumstances would exist in which federal defendants

would be without any recourse for review of their convictions and sentences (other than direct

appeal and a motion pursuant to 28 U.S.C. § 2255). The alternative forms of relief detailed in

this Legal Primer, while not necessarily relevant before the SRA and AEDPA, are critical today

because they are the only legal grounds available for obtaining the type of relief afforded by

former Rule 35(a) and the pre-AEDPA version of 28 U.S.C. § 2255.

7

III.

POTENTIAL LEGAL GROUNDS FOR

SEEKING RE-SENTENCING HEARINGS

Four potential grounds exist by which federal defendants may seek to have a district court take a

“second look” at previously imposed sentences: (1) Rule 60(b) of the Federal Rules of Civil

Procedure; (2) the Writ of Audita Querela; (3) the Writ of Error Coram Nobis; and (4) 28 U.S.C.

§ 22411.

A.

Rule 60(b) of the Federal Rules of Civil Procedure

Rule 60(b) of the Federal Rules of Civil Procedure (“Rule 60(b)”) – “Grounds for Relief from a

Final Judgment, Order, or Proceeding” – provides several exceptions to the favored rule

concerning finality of judgments. It provides that “[o]n motion and just terms,” a district court

“may [relieve] a party or its representative party from a final judgment, order, or proceeding” for

the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly

discovered evidence that, with reasonable diligence, could not have been discovered in time to

move for a new trial under Rule 59(b) of the Federal Rules of Civil Procedure; (3) fraud

(whether previously called intrinsic or extrinsic), misrepresentation or misconduct by an

opposing party; (5) the judgment is void; (6) the judgment has been satisfied, released or

discharged, it is based on an earlier judgment that has been reversed or vacated, or applying it

prospectively is no longer equitable; or (7) any other reason that justifies relief. Rule 60(b) may

be used, for example, in an attempt to re-open a motion pursuant to 28 U.S.C. § 2255 (a civil,

rather than criminal, proceeding) that has been denied.

Rule 60(c) of the Federal Rules of Civil Procedure, in turn, provides that Rule 60(b) motions

must be made within a “reasonable time.” There is “no hard and fast rule as to how much time is

reasonable for filing of a Rule 60(b) motion.” Kagan v. Caterpillar Tractor Co., 795 F.2d 601,

610 (7th Cir. 1986). Instead, courts will consider “the interest in finality, the reason for delay,

the practical ability of the litigant to learn earlier of the grounds relied upon, and the

consideration of prejudice if any to other parties.” Ashford v. Stueart, 657 F.2d 1053, 1055 (9th

Cir. 1981). For purposes of Rule 60(b)(1)-(3), though, a “reasonable time” is no more than 1

year, although the allowed time may be less than 1 year depending on circumstances. Brown v.

Rubin, 1997 U.S. App. LEXIS 16370, 1997 WL 362494, at *1 (D.C. Cir. [DATE] 1997).

No time limit exists, however, for motions brought pursuant to Rule 60(b)(6)’s “catch-all”

provision, which provides for potential relief for “any other reason that justifies relief.” Rather,

Rule 60(b)(6) affords district courts “a grand reservoir or equitable power to do justice.” Radack

v. Norwegian Am. Line Agency, Inc., 318 F.2d 538, 542 (2d Cir. 1963).

1 Examples of motions pursuant to Rule 60(b) of the Federal Rules of Civil Procedure, the Writ of Audita

Querela, the Writ of Error Coram Nobis and 28 U.S.C. § 2241 are available from the Mercy Project.

8

Still, even this “catch-all” provision is somewhat limited. The U.S. Supreme Court directed that

it should only be utilized in “extraordinary circumstances.” Ackermann v. United States, 340

U.S. 193, 199 (1950). Moreover, the U.S. Supreme Court described cases involving

“extraordinary circumstances” as those involving situations beyond the control of the party

requesting relief. Ackermann, 340 U.S. at 202 (“The comparison [of prior precedent] strikingly

points up the difference between no choice and choice; imprisonment and freedom of action; no

trial and trial; no counsel and counsel; no chance for negligence and inexcusable negligence.”).

Significantly, the U.S. Supreme Court also noted that to qualify under Rule 60(b)(6), “a party

must show ‘extraordinary circumstances’ suggesting that the party is faultless in the delay.”

Pioneer Investment Services Co. v. Brunswick Associates Limited Partnership, 507 U.S. 380,

393 (1993). And, perhaps most significantly, a party seeking Rule 60(b)(6) relief must establish

that the requested relief does not fall within the provisions of Rule 60(b)(1)-(3), for which a 1

year statute of limitations applies. See Klapprott v. United States, 335 U.S. 601, 613 (1949).

Applications for Relief pursuant to Rule 60(b)(4)-(5) must be submitted within a “reasonable

time.” Thus, in making a motion pursuant to Rule 60(b)(6), it may be prudent to explain the

reasons that the grounds relied upon do not fit within any of the other Rule 60(b) sections.

B.

Writ of Audita Querela

Rule 60(b) abolished the writ of audita querela in civil cases. It remains available, however, as a

form of collateral attack “with respect to criminal convictions” through the All Writs Act, 28

U.S.C. § 1651(a).2 United States v. LaPlante, 57 F.3d 252, 253 (2d Cir. 1995). Jurisdiction for

audita querela motions lies in the sentencing court, and the procedure is by simple motion.

Audita querela is “available where there is a legal, as contrasted with an equitable, objection to a

conviction [or judgment of sentence] that has arisen subsequent to the conviction and that is not

redressable pursuant to another post-conviction remedy.” LaPlante, 57 F.3d at 253 (citing

Holder, 936 F.2d at 5). See also United States v. Valdez Pacheco, 237 F.3d 1077, 1079 (9th Cir.

2001) (audita querela is available to “fill the interstices of the federal post-conviction remedial

framework”); United States v. Sperling, No. 73 Cr. 441 (MBM), 81 Civ. 6387 (MBM), 86 Civ.

1687 (MBM), 2003 WL 21518359, at *4 (S.D.N.Y. June 27, 2003) (audita querela is “a means

of attacking a judgment that was correct at the time rendered but which is rendered infirm by

matters which arise after its rendition”) (quoting United States v. Reyes, 945 F.2d 862, 863 n.1

(5th Cir. 1991)).

In essence, audita querela is available to address changes in the law – arising after conviction and

sentence – that affect a conviction or sentence and that cannot otherwise be addressed through

another post-conviction remedy, such as a direct appeal, coram nobis or a 28 U.S.C. § 2255

motion. Courts, however, have consistently found that audita querela relief is not available to

collaterally attack sentences imposed before Booker made the Guidelines advisory.

2 28 U.S.C. § 1651(a) provides that: “The Supreme Court and all courts established by Act

of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions

agreeable to the usages and principles of law.”

9

C.

Writ of Error Coram Nobis

Rule 60(b) also abolished the writ of error coram nobis in civil cases. But, like audita querela,

coram nobis remains as a form of collateral attack with respect to criminal cases through the All

Writs Act, 28 U.S.C. § 1651(a). United States v. Morgan, 346 U.S. 502, 505-06 n. 4 and 5,

(1954). Additionally, the U.S. Supreme Court held that 28 U.S.C. § 2255 did not replace coram

nobis. Rather, district courts retain the authority to entertain coram nobis motions: “We do not

think that the enactment of § 2255 is a bar to [a coram nobis] motion, and we hold that the

District Court has power to grant such a motion.” Id. at 511, 74 S.Ct. 252. Jurisdiction for

coram nobis motions lies in the sentencing court, and the procedure is by simple motion.

Coram nobis provides sentencing courts with the authority to correct errors of “the most

fundamental character.” Id. at 512, 74 S.Ct. at 253. As the U.S. Court of Appeals for the Second

Circuit put it, coram nobis “is available to redress an adverse consequence resulting from an

illegally imposed criminal conviction or sentence.” LaPlante, 57 F.3d at 253. Coram nobis,

however, “will issue only where extraordinary circumstances are present.” Nicks v. United

States, 955 F.2d 161, 167 (2d Cir. 1992). Some courts require the satisfaction of a three-part test

before moving to the question of whether a case warrants this form of extraordinary relief.

Under this three-part test, the petitioner must 1) explain his failure to seek relief from judgment

earlier 2) demonstrate continuing collateral consequences from the conviction and 3) prove the

error is fundamental to the validity of the judgment. United States v. George, 676 F. 3d 249 (1st

Cir. 2012).

Courts have, in general, relied on coram nobis only where there is no jurisdiction under 28

U.S.C. § § 2255, such as when a defendant is no longer in custody. See United States v.

Loschiavo, 631 F.2d 651, 662 (2d Cir. 1976). But it is not limited to those who have finished

their prison terms. The commonly held but mistaken notion that completion of a prison term is a

prerequisite to coram nobis relief likely derives from language in cases decided before the

AEDPA. Until then, the remedies of habeas corpus or 28 U.S.C. § 2255 were available to

correct fundamental injustices, as long as the prisoner remained in custody. Thus, during

confinement, coram nobis was rarely if ever used or needed. When a motion for coram nobis

relief is filed by a defendant who is no longer in custody, though, courts require proof of

collateral adverse legal consequences. Fleming v. United States, 146 F.3d 88 (2d Cir. 1998) (per

curiam). For those who remain confined, continued imprisonment may satisfy the collateral

adverse consequences requirement. Those effects might include: (1) a higher security

classification within the U.S. Bureau of Prisons, and, thus, among other things, the kind of

institution in which a defendant is housed and the freedoms afforded to the defendant: (2) the

type of programming for which a defendant is qualified to participate; (3) a defendant’s job

placement and other prison administrative decisions.

Recently, the Second Circuit granted a writ of coram nobis based on defense counsel’s

ineffective assistance during plea negotiations by erroneously advising the defendant that a

10

conviction for misprision of a felony was not a deportable offense. Kovacs v. United States, 744

F. 3d 44 (2nd

Cir. 2014).

While coram nobis is not limited by any statutory language to situations in which 28 U.S.C.

§ 2255 relief would be “inadequate,” courts that have considered the issue have ruled that it

cannot be invoked to avoid the AEDPA’s “gatekeeping” provision (that is, the requirement to

obtain to obtain permission from an appropriate Court of Appeals before filing a second or

successive 28 U.S.C § 2255 motion). Like audita querela, courts have consistently found that

coram nobis is not available to collaterally attack sentences imposed before Booker made the

Guidelines advisory.

11

D

28 U.S.C. § 2241

28 U.S.C. § 2255 is the primary post-appellate means by which federal defendants may

collaterally attack their convictions and detention. It provides, however, that any motion must be

brought within 1 year of latest of several potential triggering events (detailed above). It further

provides that federal defendants are limited to one 28 U.S.C. § 2255 motion (except in certain

limited circumstances).

Defendants who cannot meet these procedural criteria, however, are not without recourse.

Rather, 28 U.S.C. § 2255(e) contains a “savings clause” authorizing district courts to entertain 28

U.S.C. § 2241 petitions in lieu of a motion pursuant to 28 U.S.C. § 2255 if it “appears that

remedy by motion” under 28 U.S.C. § 2255 “is inadequate or ineffective to test the legality of . .

. detention.” (Likewise, 28 U.S.C. § 2255 places no restriction on motions for any other

extraordinary writ, such as audita querela or coram nobis). This “savings clause” allows federal

defendants to obtain relief where:

(1) at the time of conviction settled law . . . established the legality

of the conviction; (2) subsequent to the prisoner’s direct appeal and

first § 2255 motion, the substantive law changed such that the

conduct of which the prisoner was convicted is deemed not to be

criminal; and (3) the prisoner cannot satisfy the gatekeeping

provisions of § 2255 because the new rule is not one of

constitutional law.

In re Jones, 226 F.3d 328, 333-34 (4th Cir. 2008).

The AEDPA’s gatekeeping requirement is intended “to eliminate the abuse of writ, not [to]

unintentionally bar a prisoner from challenging his conviction for a crime that an intervening

change in substantive law may negate.” In re Dorsainvil, 119 F.3d 245, 251 (3d Cir. 1997). 28

U.S.C. § 2255(e) prevents situations where collateral remedy by way of a substantive change in

constitutional law is blocked by the other sections of 28 U.S.C. § 2255.

Most appellate courts base determinations as to whether 28 U.S.C. § 2255 is “inadequate or

ineffective” by evaluating the question of whether a legal argument existed at the time that a

defendant filed an original 28 U.S.C. § 2255 motion. See Triestman v. United States, 124 F.3d

361, 363 (2d Cir. 1997) (recognizing that only cases involving prisoners who can “prove

innocence on the existing record” and “could not have effectively raise [their] claims of

innocence at an earlier time” are eligible for “savings clause” relief). The Tenth Circuit,

however, has rejected the “circuit foreclosure test” and instead evaluates 28 U.S.C. § 2255(e)

arguments by looking at “whether a challenge of the legality of . . . detention could have been

tested in an initial 2255 motion.” Prost v. Anderson, 636 F.3d 578, 584 (10th Cir. 2011). See

also Sines v. Wilner, 609 F.3d 1070, 1073 (10th Cir. 2010) (noting that “an erroneous decision

on an initial § 2255 motion doesn’t suffice to render the § 2255 remedy itself inadequate or

12

ineffective”). See Exhibit A (a comprehensive list of “savings clause” decisions in all thirteen

federal circuits).

E.

Suggested Procedure

Any examination of the question of whether a Mercy Project client might qualify for relief

pursuant to Rule 60(b), audita querela, error coram nobis or 28 U.S.C. § 2241 requires a detailed

review and analysis of a defendant’s record. The Mercy Project recommends the following

procedure for considering such motions:

1. Identify a legal issue from the record that might be

presented for purposes of seeking a new sentencing

hearing;

2. Determine which procedural means is best for presenting

that legal issue to a district court (more than one might

sometimes be appropriate);

3. Prepare and submit a motion seeking a new sentencing

hearing;

4. Gather all mitigating information (such as family letters,

letters from BOP officials, BOP inmate skills progress

report and other traditional mitigation materials) and make

a presentation to the United States Attorney’s Office for the

relevant district in an effort at persuading the government

to consent to the motion and a new sentencing hearing ;3

and

5. If the government does not consent, vigorously and

zealously litigate the motion.

3 Attorneys should consult with the Mercy Project before making any presentation to a

United States Attorney’s Office.

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IV.

RESENTENCING BASED ON RETROACTIVE AMENDMENTS

TO THE UNITED STATES SENTENCING GUIDELINES4

A.

Background

18 U.S.C. § 3582(c)(2) is a powerful tool for defendants sentenced based on sections of the

Guidelines that the Sentencing Commission subsequently reduced and made retroactively

applicable. It “empowers district judges to correct sentences that depend on frameworks that

later prove unjustified.” Freeman v. United States, 131 S.Ct. 2685, 2690 (2011). Section

1B1.10(c) of the Guidelines lists those Guidelines amendments that may be applied retroactively.

If a defendant’s sentence did not involve one of those amendments (or if the Sentencing

Commission did not direct that an amendment should be applied retroactively), no grounds for

an 18 U.S.C. § 3582(c)(2) motion will exist.

Even if grounds for an 18 U.S.C. § 3582 motion exist, a sentence reduction is not guaranteed.

Rather, new sentences must be requested by motion under 18 U.S.C. § 3582(c)(2) to the court

that originally sentenced the defendant. That court is authorized to give all, part or none of the

requested sentence reduction (but, in any event, cannot re-sentence a defendant to a term of

imprisonment shorter than any applicable statutory mandatory minimum or the bottom end of the

revised Guidelines range of imprisonment). Thus, there is no guarantee that any defendant will

receive a sentence reduction, even if they qualify for one. The U.S. Supreme Court has found,

however, that “[t]here is no reason to deny § 3582(c)(2) relief to defendants who linger in prison

pursuant to sentences that would not have been imposed but for a since-rejected, excessive

range” of imprisonment under the Guidelines. Id. Motions brought pursuant to 18 U.S.C. §

3582(c)(2) therefore “exist to allow inequalities to be fixed.” United States v. Rivera, 662 F.3d

166, 176 (2d Cir. 2011). See also Freeman, 131 S.Ct. at 2690 (18 U.S.C. § 3582(c)(2) allows for

a sentence reduction when a particular guideline becomes “a cause of inequality”).

Most defendants who qualify for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2) likely

already have sought that relief, including those defendants convicted of crack cocaine offenses

whose sentences were impacted by the Fair Sentencing Act of 2010 (the “FSA”).5 But there

also likely are some defendants who have not yet realized that they are eligible for a sentence

reduction. It is therefore critical in every case to review the court’s offense level calculation, and

the sections of the Guidelines used to calculate those offense levels, to determine whether any as-

yet unapplied retroactive Guidelines amendments exist.

4 Examples of motions for resentencing based on retroactive amendments to the Guidelines

pursuant to 18 U.S.C. § 3582 are available from the Mercy Project.

5 Section F below provides more detailed information about the FSA and sentence

reduction motions for crack cocaine offenders.

14

B.

The Sentencing Commission’s Power to Authorize Sentence Reductions

The SRA requires the Sentencing Commission to periodically review the Guidelines and to

revise them as appropriate. See 28 U.S.C. § 994(o). When an amendment to the Guidelines is

adopted that has the effect of reducing the sentencing range for a particular offense, the

Sentencing Commission also is authorized to determine whether and to what extent previously-

sentenced offenders should benefit from the change – in other words, whether amendments to the

Guidelines should be applied retroactively. See 28 U.S.C. § 994(u) (“If the Commission reduces

the term of imprisonment recommended in the guidelines applicable to a particular offense or

category of offenses, it shall specify in what circumstances and by what amount the sentences of

prisoners serving terms of imprisonment for the offense may be reduced”).

C.

The Sentencing Court’s Power to Reduce Sentences

Sentencing courts generally have no authority to modify sentences after they have been imposed.

See 18 U.S.C. § 3582(c) (“court may not modify a term of imprisonment once it has been

imposed”). But 18 U.S.C. § 3582(c)(2) provides an important exception to that rule. It specifies

that:

[I]n a case of a defendant who has been sentenced to a term of

imprisonment based on a sentencing range that has subsequently

been lowered by the Sentencing Commission pursuant to 28 U.S.C.

§ 994(o), upon motion of the defendant . . . or its own motion, the

court may reduce the term of imprisonment, after considering the

factors set forth in section 3553(a) to the extent they are applicable,

if such a reduction is consistent with applicable policy statements

issued by the Sentencing Commission.

Thus, 18 U.S.C. § 3582(c)(2) provides that district courts: (1) “may reduce the term of

imprisonment” imposed on a defendant if that defendant was “sentenced to a term of

imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing

Commission pursuant to 28 U.S.C. § 994(o)” (that is, an amendment that has been made

retroactive); (2) must consider “the factors set forth in [18 U.S.C. §] 3553(a) to the extent they

are applicable” in determining whether a sentence should be reduced and the extent of any

reduction; and (3) must consider whether a sentence reduction “is consistent with applicable

policy statements issued by the Sentencing Commission” found in Section 1B.10 of the

Guidelines.

15

D.

Retroactive Amendments to the Guidelines Authorize

But Do Not Require Sentence Reductions

Retroactive amendments to the Guidelines merely authorize a sentence reduction. They do not

require one. Rather, sentence reductions are in the court’s discretion based essentially on a

balancing of the equities. In exercising their discretion, district courts must consider not only the

traditional sentencing factors set forth in 18 U.S.C. § 3553(a) but also the policy statements set

forth in Section 1B1.10 of the Guidelines. A decision granting or denying a sentence reduction

is reviewed for abuse of discretion. United States v. Borden, 564 F.3d 100, 103-04 (2d Cir.

2009).

E.

Caselaw Describing the Sentencing Court’s Power to Reduce Sentences

18 U.S.C. § 3582(c)(2) “empowers district judges to correct sentences that depend on

frameworks that later prove unjustified.” Freeman, 131 S.Ct. at 2690. There “is no reason to

deny § 3582(c)(2) relief to defendants who linger in prison pursuant to sentences that would not

have been imposed but for a since-rejected, excessive range” of imprisonment under the

Guidelines. Id. Thus, motions brought pursuant to 18 U.S.C. § 3582(c)(2) “exist to allow

inequalities to be fixed.” Rivera, 662 F.3d at 166. See also Freeman, 131 S.Ct. at 2690 (18

U.S.C. § 3582(c)(2) allows for a sentence reduction when a particular Guidelines provision

becomes “a cause of inequality”).

Additionally, while the task of district courts in considering 18 U.S.C. § 3582(c)(2) motions “is

limited to construing the relevant statutory and Guidelines provisions,” it is not required to do so

“wearing blinders.” Rivera, 662 F.3d at 176. See also Dorsey v. United States, 132 S.Ct. 2321,

2334 (2012) (finding that refusing retroactive application of revised crack cocaine guidelines

“would involve imposing upon the pre-[amendment] offender a pre-[amendment] sentence at a

time after Congress had specifically found . . . that such a sentence was unfairly long”); United

States v. Marshall, Civil Action No. 93-20048-01, 1997 WL 158295, at *1 (D. Kan. March 18,

1997) (reducing a defendant’s sentence pursuant to 18 U.S.C. § 3582(c)(2) after finding that it

was at “the very top of the range of permissible punishments and as serious as [defendant’s]

offenses were, the court could envision a defendant possessing the same guideline calculation

whose conduct established for sentencing purposes would have been even significantly worse”).

F.

Developments Concerning the Fair Sentencing Act of 2010 and

Sentence Reduction Motions for Crack Cocaine Offenders

Since the late 1980s federal law has punished crack cocaine offenses more severely than

comparable crimes involving powder cocaine. For example, 21 U.S.C. §§ 841(a) and

841(b)(1)(B) required a 5 year mandatory minimum sentence for those convicted of dealing in

16

more than 5 grams of crack. Likewise, 21 U.S.C. §§ 841(a) and 841(b)(1)(A) required a 10 year

mandatory minimum sentence for those convicted of dealing in more than 50 grams of crack.

Today, roughly 30,000 federal inmates, representing approximately 15% of the entire federal

prison population, are serving time for crack cocaine offenses.

In 2010, recognizing the racial impact of and bias reflected in these drug laws, as well as the

profound impact they had on African American offenders and communities, Congress passed the

FSA to reduce the penalties for crack cocaine offenses. Thus, today, 21 U.S.C. §§ 841(a) and

841(b)(1)(B) require a 5 year mandatory minimum sentence for those convicted of dealing in

more than 28 grams of crack, and 21 U.S.C. §§ 841(a) and 841(b)(1)(A) require a 10 year

mandatory minimum sentence for those convicted of dealing in more than 280 grams of crack.

Congress, however, did not make the FSA retroactive. It therefore does not apply to those

convicted of and sentenced for crack cocaine offenses before the date it was signed into law.

Federal courts have been powerless to provide relief because Congress never expressly

authorized them to do so. Recently, though, a divided panel of the U.S. Court of Appeals for the

Sixth Circuit found a way to do so. United States v. Blewett, --- F.3d ---, Nos. 12-5226, 12-

5582, 2013 WL 2121945 (6th Cir. May 17, 2013). While conceding that lawmakers had no

discriminatory intent when they passed the original crack laws, those judges said that they could

not ignore their real world impact in application of the law. For example, they noted that from

1988 to 1995 not a single white person was charged with a crack-related crime in 17 states,

including major cities such as Boston, Denver, Chicago, Miami, Dallas, and Los Angeles. The

panel further observed that in 2010, before passage of the FSA, almost 4,000 defendants, mostly

African-American, received mandatory minimum sentences for crack crimes. That court

therefore concluded that, because of the racial bias endemic to the now-repealed laws, the

Constitution’s commitment to equal protection of the laws required application of the new law to

old cases, even though Congress did not authorize it. The Obama Administration asked for en

banc review, and it is expected that more conservative judges on the Sixth Circuit will reject the

“equal protection” theory upon which the Blewett panel based retroactive application of the FSA.

G.

Sentence Reductions Must Be Consistent With the

Policy Statements in Section 1B1.10 of the Guidelines

Sentence reductions are only authorized if a district court judge finds that a reduction is

consistent with the Sentencing Commission’s policy statements. Section 1B1.10 of the

Guidelines (“Reduction in Term of Imprisonment as a Result of Amended Guidelines Range”)

details those policy statements. See Dillon v. United States, 130 S.Ct. 2683, 2691 (2010)

(district courts must “determine that a reduction is consistent with § 1B1.10” by “determin[ing]

the prisoner’s eligibility for a sentence modification and the extent of the reduction authorized”).

In particular, Section 1B1.10 of the Guidelines specifies that when a defendant is serving a term

of imprisonment and the Guidelines range applicable to that defendant has been lowered as a

result of a Guidelines amendment – that is, a retroactive amendment – “the court may reduce the

defendant’s term of imprisonment as provided by 18 U.S.C. § 3582(c)(2). As required by 18

17

U.S.C. § 3582(c)(2), any such reduction in the defendant’s term of imprisonment shall be

consistent with this policy statement.” See also Dillon, 130 S.Ct. at 2692 (district courts must

“consider any applicable § 3553(a) factors and determine whether, in its discretion, the reduction

authorized by reference to the policies . . . is warranted in whole or in part under the particular

circumstances of the case”); United States v. Logan, 845 F. Supp. 2d 499, 521 (E.D.N.Y. 2012)

(“Whether a defendant’s guideline range would be lowered under the Guidelines Amendment

requires a court to determine the amended guideline range that would have been applicable to the

defendant if the [Guideline Amendment] had been in effect at the time the defendant was

sentenced”) (internal quotations omitted).

H.

Policy Statement #1 – Substitute Only the Amended Guidelines

Provision and Do Not Alter Any Other Guidelines Calculation

Section 1B1.10(b)(1) of the Guidelines provides that, when considering whether a sentence

reduction is warranted, district courts:

shall determine the amended guideline range that would have been

applicable to the defendant if the amendment(s) to the guidelines

listed in subsection (c) had been in effect at the time the defendant

was sentenced. In making such determination, the court shall

substitute only the amendments listed in subsection (c) for the

corresponding guideline provisions that were applied when the

defendant was sentenced and shall leave all other guideline

applications decisions unaffected.

An 18 U.S.C. § 3582(c)(2) proceeding therefore “is limited to revisiting of a previously-imposed

sentence, during which the analytic framework of the sentence is replicated with one exception[:]

the provision that has been retroactively amended is substituted for the corresponding provision

applied at the time of sentencing.” United States v. Buissereth, No. 08-CR-567 (SJF), 2012 WL

2357860, at * 3 (E.D.N.Y. June 19, 2012) (internal quotations omitted).

I.

Policy Statement #2 – Factors That Courts Should Consider

When Determining Whether a Sentence Reduction

Is Warranted and the Extent of Any Reduction

The Application Notes to Section 1B1.10 of the Guidelines list the factors that courts should

consider in determining whether a sentence reduction is warranted and the extent of any such

reduction. In particular, district courts should consider: (1) the sentencing factors set forth in 18

U.S.C. § 3553(a) (U.S.S.G. § 1B1.10, Application Note B(i)); and (2) “the nature and

seriousness of the danger to any person or the community that may be posed by a reduction in

the defendant’s term of imprisonment” (U.S.S.G. § 1B1.10, Application Note B(ii)).

18

Policy Statement #3 – Factors That Courts May Consider

When Determining Whether a Sentence Reduction

Is Warranted and the Extent of Any Reduction

District courts also “may consider post-sentencing conduct of the defendant that occurred after

imposition of the term of imprisonment.” U.S.S.G. § 1.10, Application Note B(iii). See also

Logan, 854 F. Supp. 2d at 521 (district courts “may” consider the “post-sentencing conduct of

the defendant that occurred after imposition of the term of imprisonment”).

K.

Policy Statement #4 – The Extent of Any Sentence Reduction

Section 1B1.10(b)(2)(A) of the Guidelines provides that district courts “shall not reduce the

defendant’s term of imprisonment under 18 U.S.C. § 3582(c)(2) and this policy statement to a

term that is less than the minimum of the amended guideline range . . . .” See United States v.

Savoy, 567 F.3d 71, 74 (2d Cir. 2009) (“district courts lacked the authority . . . to reduce [a]

sentence below the amended Guidelines range where the original sentence fell within the

applicable pre-amendment Guidelines range”); Logan, 854 F. Supp. 2d at 522 (“the court cannot

reduce the defendant’s sentence ‘to a term that is less than the minimum of the amended

guidelines range’”). “[P]roceedings under 18 U.S.C. § 3582(c)(2)” therefore “do not constitute a

full resentencing of the defendant.” See Dillon, 130 S.Ct. at 2692-93 (“neither Booker’s

constitutional nor remedial holding requires” application in 18 U.S.C. § 3582(c)(2) proceedings,

and does not require “that the Guidelines be treated as advisory in such proceedings just as they

are in other sentencing proceedings”); Savoy, 567 F.3d at 74 (holding that “district courts lack

the authority when reducing a sentence pursuant to [18 U.S.C.] § 3582(c)(2) to reduce that

sentence below the amended Guidelines range when the original sentence fell within the

applicable pre-amendment Guidelines range”).

L.

Calculating the Amended Guideline Range

Ordinarily sentencing courts use the version of the Guidelines Manual in effect at the time of

sentencing (not the one in effect at the time of the offense) to calculate a defendant’s offense

level unless doing so would precipitate a violation of the Constitution’s ex post facto clause. See

18 U.S.C. § 3553(a)(4); U.S.S.G. § 1B1.11(a). And, as this “one book” rule proscribes,

sentencing courts must apply the correct version of the Guidelines Manual in its entirety, and not

pick and choose provisions from different versions of the Guidelines Manual. See United States

v. Stephenson, 921 F.2d 438, 441 (2d Cir. 1990).

However, when a district court adjudicates an 18 U.S.C. § 3582 motion, the “one book” rule

does not apply. Rather, pursuant to Section 1B1.10(b)(1) of the Guidelines (detailed above),

district courts are required to substitute only the retroactive amended Guidelines provision for

the corresponding Guidelines provision applicable when the defendant was originally sentenced.

All other Guidelines determinations and calculations remain undisturbed, regardless of which

19

Guidelines Manual was used. See U.S.S.G. § 1B1.10(b)(1) (when considering whether a

sentence reduction is warranted, district courts “shall substitute only the amendments listed in

subsection (c) for the corresponding guideline provisions that were applied when the defendant

was sentenced and shall leave all other guideline applications decisions unaffected”).

M.

Suggested Procedure

Any examination of the question of whether grounds exist for a sentence reduction motion

pursuant to 18 U.S.C. § 3582 should include the following steps:

1. Confirm that no motion pursuant to 18 U.S.C. § 3582 was

previously filed;

2. Determine the district court’s calculation of the defendant’s

offense level, which may be reflected on the Judgment, the

PSR, the plea agreement or the minutes of a defendant’s

sentencing hearing;

3. Identify each Guidelines section used to calculate that

offense level (including the base offense level, all specific

offense characteristics and all Chapter Three enhancements

under Chapter 3 of the Guidelines);

4. Consult Section 1B1.10(c) of the Guidelines to identify

those amendments that the Commission determined should

apply retroactively.

5. Determine whether any Guidelines provision used by the

Court to calculate a defendant’s offenses level has been

amended and made retroactive; and

6. If so, file a motion for a sentence reduction pursuant to 18

U.S.C. § 3582(c)(2).

20

V.

THE U.S. BUREAU OF PRISONS’

“COMPASSIONATE RELEASE” PROGRAM6

A.

Background

Although Congress advanced the goal of “truth in sentencing” by eliminating parole and limiting

court’s jurisdiction over cases once a conviction has become final, lawmakers recognized that

circumstances could arise that would render a final sentence unjust or unfair. They therefore

included “safety valves” in the SRA, authorizing federal courts to revisit sentences in limited

situations and to reduce them if appropriate. One of those “safety valves,” known as

“compassionate release,” enables courts to reduce sentences for “extraordinary and compelling”

reasons. Codified at 18 U.S.C. § 3582(c)(1)(A)(i), it provides that courts may not modify a term

of imprisonment once it has been imposed except that:

the court, upon motion of the Director of the Bureau of Prisons,

may reduce the term of imprisonment (and may impose a term of

probation or supervised release with or without conditions that

does not exceed the unserved portion of the original term of

imprisonment), after considering the factors set forth in [18 U.S.C.

§ 3553(a)] to the extent that they are applicable, if it finds that . . .

extraordinary and compelling reasons warrant such a reduction . . .

and that such a reduction is consistent with applicable policy

statements issued by the Sentencing Commission.

The Senate Judiciary Committee’s Report on the SRA explained the need for “compassionate

release” as follows:

The first “safety valve” applies, regardless of the length of

sentence, to the unusual case in which the defendant’s

circumstances are so changed, such as by terminal illness, that it

would be inequitable to continue the confinement of the prisoner.

In such a case, under Subsection (c)(1)(A), the director of the

Bureau of Prisons could petition the court for a reduction in the

sentence, and the court could grant a reduction if it found that the

reduction was justified by “extraordinary and compelling reasons”

and was consistent with applicable policy statements issued by the

Sentencing Commission.

6 Examples of applications for compassionate release from the BOP are available from the

Mercy Project.

21

Although 18 U.S.C. § 3582(c)(1)(A) is broadly drafted, until recently the U.S. Bureau of Prisons

(the “BOP”) narrowly construed “compassionate release” to terminally ill inmates. Moreover,

until recently the BOP did not have: (1) clear standards on when “compassionate release” is

warranted; (2) formal timeliness standards for reviewing requests for “compassionate release”

and appeals of same; (3) effective procedures to inform inmates about the “compassionate

release” program; or (4) a system to track requests, the timeliness of review and whether

decisions made by Wardens and Regional Directors are consistent with each other and BOP

policy. Thus, until recently, only roughly twenty-four inmates were released each year through

the BOP’s “compassionate release” program.

On August 12, 2013, however, the BOP issued a revised Program Statement for implementation

of its compassionate release program – BOP Program Statement 505.49. The details of that

revised programs are explained below and the Program Statement itself can be found at

http://www.bop.gov/policy/progstat/5050_049.pdf.

B.

Initiation of Request for Compassionate Release

A request for compassionate release initially must be submitted to the Warden of the facility in

which an inmate is housed. Ordinarily, such a request must be made in writing and submitted by

the inmate seeking compassionate release. The BOP, however, processes requests for

compassionate release that are submitted by persons other than the inmate (such as a

representative of the Mercy Project) in the same manner as an inmate request. An inmate may

make such a request only where there are “extraordinary or compelling circumstances which

could not reasonably have been foreseen by the court at the time of sentencing.”

A request for compassionate release must at a minimum contain the following information: (1)

an explanation of the extraordinary or compelling circumstances warranting consideration; (2)

proposed release plans, including where the inmate will reside, how the inmate will support

himself/herself, and, if the basis for the request involves the inmate’s health, information on

where s/he will receive medical treatment, and how s/he will pay for that treatment.

C.

General Criteria for Compassionate Release

The BOP considers the following general factors in making compassionate release decisions: (1)

the nature and circumstances of the inmate’s offense; (2) the inmate’s history; (3) victim

comments; (4) unresolved detainers; (5) supervised release violations; (6) “institutional

adjustment”; (7) disciplinary infractions; (8) personal history derived from the PSR; (9) length of

sentence and amount of time served; (10) inmate’s current age; (11) inmate’s age at the time of

offense and sentencing; (12) inmate’s release plans (employment, medical, financial, etc.); and

(13) whether release would minimize the severity of the offense. These factors are neither

exclusive nor weighted. Rather, they are considered as part of the process of assessing whether a

request for compassionate release presents particularly extraordinary and compelling

22

circumstances. Additionally, for each compassionate release request, the BOP considers whether

the inmate’s release would pose a danger to the safety of any other person or the community.

D.

Compassionate Release Based on Medical Circumstance

The BOP’s criteria for compassionate release based on medical circumstances include the

following:

● Terminal Medical Condition – Compassionate release may be

given to inmates diagnosed with a terminal, incurable disease and

whose life expectancy is eighteen (18) months or less. The BOP’s

evaluation includes an assessment of the primary (terminal)

disease, prognosis, impact of other serious medical conditions of

the defendant and the degree of functional impairment (if any).

Functional impairment (e.g., limitations on activities of daily living

such as feeding and dressing oneself), however, is not required for

inmates diagnosed with terminal medical conditions. But

functional impairment may be a factor when considering an

inmate’s ability or inability to reoffend.

● Debilitated Medical Condition – Compassionate release may be

given to inmates who have incurable, progressive illnesses or who

have suffered a debilitating injury from which they will not

recover. The BOP’s evaluation includes an assessment of whether

an inmate is: (1) completely disabled, meaning s/he cannot carry

on any self-care and is totally confined to a bed or chair; or (2)

capable of only limited self-care and is confined to a bed or chair

more than 50% of waking hours.

The BOP’s review also includes consideration of any cognitive deficits (e.g., Alzheimer’s

disease or traumatic brain injury that has affected the inmate’s mental capacity or function). A

cognitive deficit, however, is not required in cases of severe physical impairment, but may be a

factor when considering an inmate’s ability or inability to reoffend.

E.

Compassionate Release Based on Non-

Medical Circumstances – Elderly Inmates

The BOP’s criteria for compassionate release based on non-medical circumstances for elderly

inmates include the following: (1) whether the inmate was sentenced for an offense that occurred

on or after November 1, 1987 (and, thus, whether the inmate might be eligible for parole, which

remains available to inmates sentenced before November 1, 1987); (2) whether the inmate is 70

years old or older; and (3) whether the inmate has served 30 years or more of his/her prison term.

23

F.

Compassionate Release for Elderly

Inmates with Medical Conditions

The BOP’s criteria for compassionate release of elderly inmates with medical conditions include

the following: (1) whether the inmate is 65 years old and older; (2) whether the inmate suffers

from a chronic or serious medical condition(s) related to the aging process; (3) whether the

inmate is experiencing deteriorating mental or physical health that substantially diminishes

his/her ability to function in a correctional facility; (4) whether conventional treatment promises

no substantial improvement to mental or physical condition; and (5) whether an inmate has

served at least 50% of his/her sentence.

Additionally, for elderly inmates with medical conditions, the BOP also considers the following

factors when evaluating the risk of recidivism: (1) the age at which the inmate committed his/her

offense; (2) whether the inmate suffered from these medical conditions at the time that s/he

committed the offense of conviction; and (3) whether the inmate suffered from these medical

conditions at the time of sentencing and whether the PSR mentions these conditions.

G.

Compassionate Release for Other Elderly Inmates

The BOP also considers applications for compassionate release of other elderly inmates who are

65 years old or older and who have served the greater of 10 years or 75% of their prison terms.

Elderly inmates who were age 60 or older at the time they were sentenced ordinarily are not be

considered for compassionate release if their current conviction is for certain offenses listed in

the BOP’s “Categorization of Offenses Program Statement.” All applications for such

compassionate release are assessed using the general criteria outlined in Section C above.

H.

Compassionate Release Based on the Death or

Incapacitation of A Family Member Caregiver

The BOP can consider compassionate release for inmates who suffer the death or incapacitation

of a family member who provides unique and irreplaceable care to another family member, such

as an inmate’s child. For these purposes, “child” means a person under the age of 18 and

“incapacitation” means that the family member caregiver suffered a severe injury (e.g., auto

accident) or suffers from a severe illness (e.g., cancer) that renders the caregiver incapable of

caring for the child. In reviewing these types of requests, the BOP assesses whether release of

the inmate to care for the inmate’s child is in the child’s best interest. Such a request involves

two stages of review.

24

First, the following information must be provided in writing to the Warden of the facility in

which an inmate is housed: (1) a statement explaining that the inmate’s family member caregiver

has died or become incapacitated and that that person was the caregiver for the inmate’s

biological or legally adopted child; (2) a statement that this person was the only family member

capable of caring for the inmate’s child; (3) the name of the deceased or incapacitated family

member caregiver and the relationship of that person to the inmate (e.g., spouse, common-law

spouse, mother, sister) as well as a statement that the caregiver is a family member of the child;

(4) for requests based on a deceased family member caregiver, an official copy of the family

member caregiver’s death certificate; (5) for requests based on an incapacitated family member

caregiver, verifiable medical documentation of that incapacitation; (6) verifiable documentation

that the inmate is the parent of the child (such as a birth certificate, adoption papers or

verification of the inmate’s paternity); (7) verifiable documentation providing the name and age

of the child; (8) a clear statement and documentation that the inmate has a release plan (including

housing) and the financial means to care for the child immediately upon the inmate’s release; and

(9) authorization from the inmate for the BOP to obtain any information or documents from any

individual, medical entity, doctor or any government agency about the inmate, family members

and minor child. The Warden may deny the inmate’s request at the institution level if the

Warden finds that the inmate has not provided adequate information and documentation.

Second, even if the inmate provides adequate and sufficient information and documentation,

further investigation may be appropriate. Accordingly, the Warden may convene a committee

consisting of the inmate’s unit manager, correctional counselor and any other relevant staff

(social worker, physician, psychologist, etc.) to investigate the facts and circumstances provided

by the inmate and to review supporting letters and documents before the Warden makes a

recommendation to approve or deny the request for compassionate release based on the death or

incapacitation of a family member caregiver.

In this regard, additional information and supporting documentation gathered by the committee

for the Warden’s review should include: (1) a general description of the child’s physical and

mental condition; (2) a description of the nature of the child’s care both during the inmate’s pre-

arrest and pre-sentence period, and during the inmate’s incarceration; and (3) letters or

documentation that the deceased/incapacitated family member was and still is the only family

member caregiver capable of caring for the inmate’s minor child. Such letters or documentation,

in turn, should include: (1) information indicating whether this family member was, in fact,

caring for the child during the inmate’s incarceration and immediately prior to the family

member’s death or incapacitation; (2) an explanation of who has been caring for the child since

the family member’s death or incapacitation; and (3) if the child is in foster care, documentation

verifying that the inmate will be able to immediately obtain custody of the child if granted

compassionate release.

All requests for compassionate release based on the death or incapacitation of a family member

caregiver are assessed based on the general factors detailed above in Section C above as well as

the following additional factors: (1) whether the inmate committed violent acts before or during

the period of incarceration as reflected in the PSR, institutional disciplinary records or other

appropriate documentation; (2) whether the inmate had drugs, drug paraphernalia, firearms or

other dangerous substances at home while caring for the child before incarceration; (3) the extent

25

to which the inmate had contact with and/or cared for the child before arrest, pre-trial or pre-

sentence and during incarceration (including a review of institution records for evidence of

telephone, mail, e-mail and/or visit records); (4) whether there is any evidence of child abuse,

neglect or exploitation in the PSR or other documents; (5) whether there are any documents

regarding the inmate’s parenting skills or obligations (e.g., child support orders, restraining

orders for physical or emotional abuse of spouse, registered partner or children, certificates for

classes in anger management or other types of counseling, removal of child from the home for

any reasons); (6) whether there are records regarding the termination of parental rights or loss of

custody of any other child by the inmate; (7) whether the inmate has a detainer as a deportable

alien to a country other than where the child resides; (8) whether the inmate received public

funding or had a job with a living wage for any period of time before incarceration; and (9)

whether the inmate engaged in programming (e.g., parenting, anger management) during

incarceration so as to indicate efforts to improve parenting skills or that otherwise would indicate

a commitment to caring for the child upon release.

I.

Compassionate Release Based on Non-Medical Circumstances –

Incapacitation of a Spouse or Registered Partner

Compassionate release may also be based on the incapacitation of an inmate’s spouse or

registered partner when the inmate would be the only available caregiver for the spouse or

registered partner. For these types of requests, “spouse” means an individual in a relationship

with the inmate, where that relationship has been legally recognized as a marriage, including a

legally-recognized common-law marriage. “Registered partner” means an individual in a

relationship with the inmate, where that relationship has been legally recognized as a civil union

or registered domestic partnership. Any such relationship should have been established before

the inmate’s arrest, and should be verified by information in the PSR or other administratively

acceptable documentation (e.g., marriage certificate).

For these types of requests, “incapacitation” means the inmate’s spouse or registered partner has:

(1) suffered a serious injury or a debilitating physical illness and the result of the injury or illness

is that the spouse or registered partner is completely disabled, meaning that the spouse or

registered partner cannot carry on any self-care and is totally confined to a bed or chair; or (2) a

severe cognitive deficit (e.g., Alzheimer’s disease or traumatic brain injury that has severely

affected the mental capacity or function of the spouse or registered partner) but may not be

confined to a bed or chair. Additionally, for these types of requests, inmates must demonstrate

that they are the only available caregiver for the spouse or registered partner.

The following information should be provided to the Warden in connection with this type of

compassionate release application: (1) a statement explaining that the inmate’s spouse or

registered partner has become incapacitated; (2) a statement that the inmate is the only family

member capable of caring for the spouse or registered partner; (3) verifiable medical

documentation of the incapacitation of the spouse or registered partner; (4) a clear statement and

documentation of the inmate’s release plan, including housing, and the financial means to care

for the spouse or registered partner immediately upon release; (5) written authorization from the

26

inmate and others (as needed) for the BOP to obtain any information or documents from any

individual, medical entity or doctor, or any government agency, about the inmate, the spouse or

registered partner or other family members.

Even if an inmate provides the foregoing information and documentation, further investigation

may be appropriate. If so, the Warden will convene a committee consisting of the inmate’s unit

manager, correctional counselor and any other relevant staff (social worker, physician,

psychologist, etc.) to investigate the facts and circumstances provided by the inmate and to

review supporting letters and documents before the a recommendation to approve or deny

compassionate release is made. The information and supporting documentation gathered by such

a committee for the Warden’s review should include: (1) a general description of the physical

and mental condition of the spouse or registered partner; (2) a description of the nature of the

spouse’s or registered partner’s care, as relevant, during the inmate’s pre-arrest and pre-sentence

period, and during the inmate’s incarceration; (3) letters or documentation indicating whether the

inmate is the only family member caregiver capable of caring for the spouse or registered

partner, including an explanation of who has been caring for the spouse or registered partner

during the inmate’s prison term; (4) letters or documentation indicating the spouse or registered

partner is, or would be, supportive of the inmate’s release and of the inmate assuming the role of

the primary caregiver.

All such requests for compassionate release are evaluated using the general factors detailed in

Section C above as well as the following additional factors: (1) whether the inmate committed

violent acts before or during the period of incarceration, as reflected in the PSR, institution

disciplinary records or other appropriate documentation; (2) the extent to which the inmate and

spouse or registered partner will be relying on publicly available resources (e.g., financial or

medical) to provide care to the spouse or registered partner; (3) whether the inmate had ever been

charged with, or convicted of, a crime of domestic violence; (4) whether the inmate shared a

residence with the spouse or registered partner before incarceration; (5) whether the inmate had

drugs, drug paraphernalia, firearms or other dangerous substances in the home shared with the

spouse or registered partner before incarceration; (6) the degree to which the inmate had contact

with (or cared for) the spouse or registered partner before arrest, pre-trial or pre-sentence, and

during incarceration; (7) evidence of abuse or neglect involving the spouse or registered partner

in the PSR or other documents; (8) documents pertaining to the inmate’s custodial skills or

obligations (e.g., child support orders, restraining orders for physical or emotional abuse of

spouse or registered partner or children, certificates for classes in anger management or other

types of counseling, removal of children from the home for any reasons); (9) whether the inmate

has a detainer as a deportable alien to a country other than where the spouse or registered partner

resides; (10) whether the inmate received public funding or had a job with a living wage for any

period of time before incarceration; and (11) whether the inmate engaged in BOP programming

(e.g., anger management, financial responsibility program) during incarceration that would

indicate efforts to improve custodial skills and/or that would indicate a commitment to the

inmate’s spouse or registered partner upon release. Wardens are also required to consider any

additional reliable documentation (e.g., letters of support from family members, neighbors,

doctors, hospitals, and state or local agencies).

27

J.

Process for Approval of Requests for Compassionate Release

If a compassionate release application is approved by the Warden, the BOP’s General Counsel,

and either the BOP’s Medical Director for medical referrals or the BOP’s Assistant Director,

Correctional Programs Division for non-medical referrals (and with the approval of the BOP’s

Director), the BOP will make a motion under 18 U.S.C. 4205(g) or 3582(c)(1)(A) to the

sentencing court requesting a sentence reduction. In particular, the BOP follows the following

procedure in evaluating compassionate release applications:

If the Warden of the facility in which the inmate is incarcerated approves of an application, the

Warden refers the matter in writing with a recommendation to the BOP’s Office of General

Counsel, and includes the following materials:

● The Warden’s written recommendation and any other

pertinent written recommendations or comments made by

institution staff during the review of the request;

● A complete copy of Judgment and Commitment Order or

Judgment in a Criminal Case and sentence computation

data;

● A BOP progress report that is not more than 30 days old;

● All pertinent medical records if the reason for the request

involves the inmate’s health (including, at a minimum, a

Comprehensive Medical Summary by the attending

physician, which should include an estimate of life

expectancy, and all relevant test results, consultations, and

referral reports/opinions);

● A copy of the PSR and Form U.S.A. 792, Report on

Convicted Offender by U.S. Attorney, Custody

Classification form, Notice of Action forms, Probation

form 7a, information on fines, CIM Case Information

Summary (BP-A0339), and any other documented

information that is pertinent to the request;

● If the inmate is subject to the Victim and Witness

Protection Act of 1982 (VWPA), confirmation of

notification to the appropriate victim(s) or witness(es) (A

summary of any comments received must also be

incorporated into the referral.) If the inmate is not subject

to the VWPA, a statement to that effect must be in the

referral;

28

● For a request under 18 U.S.C. 3582(c)(1)(A), when a term

of supervised release follows the term of imprisonment,

confirmation that release plans have been approved by the

appropriate U.S. Probation Office (If the inmate will be

released to an area outside the sentencing district, the U.S.

Probation Office assuming supervision must be contacted.

If no supervision follows the term of imprisonment, release

plans must still be developed); and

● The development of release plans must include, at a

minimum, a place of residence and the method of financial

support, and may require coordination with various

segments of the community, such as hospices, the

Department of Veterans Affairs or veterans’ groups, Social

Security Administration, welfare agencies, local medical

organizations or the inmate’s family.

If the BOP’s General Counsel determines that the request warrants approval, the BOP’s General

Counsel shall solicit the opinion of either the Medical Director or the Assistant Director,

Correctional Programs Division, depending upon the nature of the basis for the request. With

this opinion, the General Counsel shall forward the entire matter to the Director, Bureau of

Prisons, for final decision.

If the Director, Bureau of Prisons, grants a request for compassionate release, the Director will

contact the U.S. Attorney in the district in which the inmate was sentenced regarding moving the

sentencing court on behalf of the BOP to reduce the minimum term of the inmate’s sentence to

time served.

Upon receipt of notice that the sentencing court has entered an order granting the motion under

18 U.S.C. 3582(c)(1)(A), the Warden of the institution where the inmate is confined shall release

the inmate. In the event the basis of the request is the medical condition of the inmate, the BOP

is required to expedite the request at all levels.

29

VI.

EXECUTIVE PARDONS AND SENTENCE COMMUTATIONS7

The power of the President to grant pardons and sentence commutations is provided for in

Article II, Section 2, Clause 1 of the U.S. Constitution and 28 U.S.C. §§ 509, 510. The rules

governing the procedure for obtaining a pardon or sentence commutation are codified at 28

C.F.R. § 1.1 et seq. (the “Rules Governing the Processing of Petitions for Executive Clemency,

which may be found at www.usdoj.gov/pardon). The procedure for obtaining a pardon or

sentence commutation begins with the filing of a petition (with supporting documentation) with

the office of the Pardon Attorney (an attorney with the U.S. Department of Justice). The forms

of petitions for a pardon or sentence commutation are found at

http://www.justice.gov/pardon/forms.htm#s1.

According to 28 C.F.R. § 1.11, the regulations concerning pardon and sentence commutation

“are advisory only and for the internal guidance of Department of Justice personnel. They create

no enforceable rights in persons applying for executive clemency, nor do they restrict the

authority granted to the President under Article II, Section 2 of the Constitution.” Thus, given

the constitutional authority of Article II, Section 2, the president does not have to follow the

regulations and, presidents, for various reasons, have historically gone outside them. For

example, neither the pardon granted to former President Richard Nixon (by President Gerald

Ford) nor the pardon granted to financier Marc Rich (by President Bill Clinton) went through

standard channels.

A.

The Pardon Attorney

The Pardon Attorney assists the President in the exercise of his pardon and sentence

commutation power. See Executive Order dated June 16, 1893 (transferring clemency petition

processing and advisory functions to the Justice Department); Rules Governing the Processing

of Petitions for Executive Clemency (codified at 28 CFR Sections 1.1 et seq.); 28 CFR Sections

0.35 and 0.36 (relating to the authority of the Pardon Attorney). The Pardon Attorney, under

the direction of the Deputy Attorney General, receives and reviews all petitions for executive

clemency, initiates and directs the necessary investigations, and prepares a report and

recommendation for submission to the President. In addition, the Pardon Attorney acts as a

liaison with the public during the pendency of a clemency petition, responding to

correspondence and answering inquiries about clemency cases and issues.

7 Examples of applications or executive clemency (both pardon and sentence commutation)

are available from the Mercy Project.

30

B.

Timing of Petition

Petitioners generally must wait 5 years after the date of release to file a pardon petition. More

specifically, “[n]o petition for pardon should be filed until the expiration of a waiting period of at

least five years after the date of the release of the petitioner from confinement or, in the case no

prison sentence was imposed, until the expiration of a period of at least five years after the date

of the conviction of the petitioner. Generally, no petition should be submitted by a person who is

on probation, parole, or supervised release.” See 28 C.F.R. § 1.2; United States Attorney’s

Manual, Standards for Consideration of Clemency Petitions §1-2.112 (“USAM”). Similarly,

petitioners generally must wait until they start serving their sentences before filing a sentence

commutation petition. See USAM § 1-2.113 (“[r]equests for commutation generally are not

accepted unless and until a person has begun serving that sentence”). Still, as detailed above, the

regulations concerning pardon and sentence commutation are advisory only. These time frames

therefore are not absolutes.

C.

Role of the United States Attorney

In Executive Clemency Petitions

The United States Attorney for the judicial district of conviction (the “U.S. Attorney”) plays an

important role in all executive clemency applications. The Pardon Attorney routinely requests

that the U.S. Attorney provide comments and a recommendation on executive clemency cases

that appear to have merit, as well as on cases that raise issues of fact about which the U.S.

Attorney may be in a position to provide information. Occasionally, the United States Attorney

in the district in which a petitioner currently resides also may be contacted. In addition, in cases

in which a petitioner seeks executive clemency based on cooperation with the government, the

Pardon Attorney may solicit the views of the United States Attorney in the district(s) in which

the petitioner cooperated, if different from the district of conviction. While the decision to grant

clemency generally is driven by considerations that differ from those that dictate the decision to

prosecute, the U.S. Attorney’s perspective lends valuable insight to the clemency process.

The views of the U.S. Attorney are given considerable weight in determining what

recommendation the Pardon Attorney will make to the President. Each petition is presented for

action to the President with a report and recommendation from the Pardon Attorney, and the

recommendation by the U.S. Attorney is included in this report. The U.S. Attorney can

contribute significantly to the clemency process by providing factual information and

perspectives about the offense of conviction that may not be reflected in the presentence or

background investigation reports or other sources, e.g., the extent of a petitioner’s wrongdoing

and the attendant circumstances, the amount of money involved or losses sustained, a petitioner’s

involvement in other criminal activity, a petitioner’s reputation in the community and, if

appropriate, the victim impact of a petitioner’s crime. On occasion, the Pardon Attorney also

may request information from prosecution records that may not be readily available from other

sources.

31

As a general matter, the correctness of an underlying conviction is assumed, and the question of

guilt or innocence is not at issue. However, if a petitioner refuses to accept responsibility for

his/her offense, minimizes culpability or raises a claim of innocence or miscarriage of justice, the

U.S. Attorney typically will address those issues. In cases involving a pardon application after

completion of sentence, the U.S. Attorney is expected to comment on a petitioner’s post-

conviction rehabilitation, particularly anything that may evidence a desire to atone for the

offense. Similarly, in commutation cases, comments may be sought on developments after

sentencing that are relevant to the merits of a petitioner’s request for mercy. In pardon cases, the

Pardon Attorney forwards to the U.S. Attorney copies of the pardon petition and relevant

investigative reports. In cases involving requests for other forms of executive clemency (i.e.,

commutation of sentence or remission of fine), copies of the clemency petition and related

records (e.g., presentence report, judgment of conviction, prison progress reports, and completed

statement of debtor forms) are provided.

The Pardon Attorney also routinely requests that the U.S. Attorney solicit the views and

recommendation of the sentencing judge. If the sentencing judge is retired, deceased or

otherwise unavailable, the U.S. Attorney advises concerning same. In the event that the U.S.

Attorney does not wish to contact the sentencing judge, the Pardon Attorney may directly solicit

the sentencing judge’s views. Absent an express request for confidentiality, the Pardon Attorney

may share the comments of the U.S. Attorney with the sentencing judge or other concerned

officials whose views are solicited. The U.S. Attorney may support, oppose or take no position

on an executive clemency request.

Thus, in sum, the Pardon Attorney may consider the following in reviewing petitions for

executive clemency: (1) comments and recommendations of the U.S. Attorney; (2) comments

and recommendations of the United States Attorney for the judicial district in which the

petitioner resides; and (3) comments and recommendations of the United States Attorney in the

judicial districts in which the petitioner has cooperated, if different from the judicial district of

conviction. And, among other things, those Department of Justice officials can provide

information concerning: (1) the extent of the petitioner’s wrongdoing and the attendant

circumstances; (2) the amount of money involved or losses sustained; (3) the petitioner’s

involvement in other criminal activity; (4) the petitioner’s reputation in the community; and (5) if

appropriate, the impact on victims of the petitioner’s offense.

D.

Standards for Pardon Petitions

According to Section 1-2.112 of the USAM, in general, a pardon is granted on the basis of a

petitioner’s demonstrated good conduct for a substantial period of time after conviction and

sentence. In determining whether a particular petitioner should be recommended for a pardon,

the following are the principal factors that the Pardon Attorney takes into account:

Post-Conviction Conduct, Character and Reputation – A petitioner’s demonstrated ability to

lead a responsible and productive life for a significant period of time after conviction or release

32

from confinement is strong evidence of rehabilitation and worthiness for pardon. Background

investigations customarily conducted by the FBI in pardon cases focus on petitioners’ financial

and employment stability, responsibility toward family, reputation in the community,

participation in community service, charitable or other meritorious activities and, if applicable,

military service record. In assessing post-conviction accomplishments, each petitioner’s life

circumstances are considered in their totality. It may not be appropriate or realistic to expect

“extraordinary” post-conviction achievements from individuals who are less fortunately situated

in terms of cultural, educational or economic background.

Seriousness and Relative Recentness of the Offense – When an offense is serious (e.g., a violent

crime, major drug trafficking, breach of public trust or fraud involving substantial sums of

money) a suitable length of time should elapse before an application for clemency is filed to

avoid denigrating the seriousness of the offense or undermining the deterrent effect of conviction

and sentence. In cases involving prominent individuals or notorious crimes, the likely effect of a

pardon on law enforcement interests or the general public is taken into account. When an

offense is very old and relatively minor, the equities may weigh more heavily in favor of

forgiveness, provided the petitioner is otherwise a suitable candidate for pardon.

Acceptance of Responsibility, Remorse and Atonement – The extent to which a petitioner has

accepted responsibility for his/her criminal conduct and made restitution to its victims are

important considerations. A petitioner should be genuinely desirous of forgiveness rather than

vindication. While the absence of expressions of remorse do not preclude favorable

consideration, a petitioner’s attempt to minimize or rationalize culpability does not advance the

case for pardon. Thus, statements made in mitigation (e.g., “Everybody was doing it” or “I didn't

realize it was illegal”) are generally not helpful. Persons seeking a pardon on grounds of

innocence or miscarriage of justice bear a formidable burden of persuasion.

Need for Relief – The purpose for which a pardon is sought may influence an application’s

disposition. A felony conviction may result in a variety of collateral legal disabilities, some of

which can provide persuasive grounds for clemency. For example, a specific employment-

related need for pardon, such as removal of a bar to licensure or bonding, may make an

otherwise marginal case sufficiently compelling to warrant a grant in aid of the individual’s

continuing rehabilitation. The absence of a specific need, though, is not held against an

otherwise deserving applicant, who understandably may be motivated solely by a strong personal

desire for a sign of forgiveness.

Official Recommendations and Reports – The comments and recommendations of concerned and

knowledgeable officials, particularly the U.S. Attorney and the sentencing judge, are carefully

considered. The likely impact of favorable action in the district or nationally, particularly on

current law enforcement priorities, will always be relevant to the pardon decision. Apart from

their significance to those who seek them, pardons can play an important role in defining and

furthering the rehabilitative goals of the criminal justice system.

33

E.

Standards for Sentence Commutation Petitions

The standards for sentence commutation petitions are set forth in USAM Section 1-2.113. A

sentence commutation reduces the period of incarceration. It does not imply forgiveness for the

underlying offense. It also has no effect upon the underlying conviction and does not necessarily

reflect upon the fairness of the sentence originally imposed. Requests for sentence commutation

generally are not accepted unless and until a person has begun serving that sentence. Nor are

sentence commutation requests generally accepted from persons who are presently challenging

their convictions or sentences through appeal or other court proceeding. The President may

commute a sentence to time served or may reduce a sentence, either merely for the purpose of

advancing a defendant’s parole eligibility (for those convicted and sentenced before November

1, 1987) or to achieve the defendant’s release after a specified period of time. Commutation may

be granted upon conditions similar to those imposed pursuant to parole or supervised release.

Sentence commutation is an extraordinary remedy that is rarely granted. Appropriate grounds

for considering sentence commutation have traditionally included disparity or undue severity of

sentence, critical illness or old age and meritorious service rendered to the government by the

petitioner (e.g., cooperation with investigative or prosecutive efforts that has not been adequately

rewarded by other official action). A combination of these and/or other equitable factors may

also provide a basis for recommending commutation.

The amount of time served and the availability of other remedies (such as parole for defendants

convicted and sentenced before November 1, 1987) are taken into account in evaluating sentence

commutation applications. The possibility that the U.S. Department of Justice itself could

accomplish the same result by petitioning the sentencing court, through a motion to reward

substantial assistance under Rule 35 of the Federal Rules of Criminal Procedure, a motion for

modification or remission of fine under 18 U.S.C. § 3573, or a request for compassionate relief

under 18 U.S.C. § 3582(c)(1), will also bear on the Pardon Attorney’s decision whether to

recommend sentence commutation.

Innocence Project Clinic & Clemency Project

Columbus School of Law

The Catholic University of America

Federal Commutation Petition Checklist*

[Client Name] [BOP inmate number]

Task Possible Source(s) Request made Request made By (date)

PACER search PACER State databases - (additional rows as civil and criminal needed for all filings states to search) Pre-Sentence Case manager; Report defense attorney BOP Inmate Petitioner; case Behavior Report manager BOP Inmate Petitioner; case Progress Report manager (summary of educational and other activities in prison) BOP Transfer Case manager record

Materials from Defense attorneys attorney files; e.g., Motions briefs, etc. re sentencing Judgment Order Petitioner;

defense attorney; court

Sentencing Defense attorney; Hearing Transcript court Reported and Attorneys; unreported cases Lexis/Westlaw - both criminal and related civil cases Judgment Orders Court; attorneys of Co-defendants: reported and unreported cases

Date received

1

Complete prior FBI form 1-783 record CJIS Summary

Request Prior clemency Petitioner; FOIA to petitions Pardon Attorney Research Sentencing Law Research Alternatives to clemency Letters of Support Trial attorney

Appellate attorney

Family

Support: Housing, medical

Employment

Investigators

Prosecutor

Judge

(add additional as needed)

Attachments certificates

• Essential documents are in bold and italicized

2

THE CATHOLIC UNIVERSITY OF AMERICA Columbus School of Law

Clemency Project 3600 John McCormack Road, NE

Washington, DC 20064 202-319-5154

Applicant Screening Questionnaire - For Commutation of Sentence

If you were not convicted in a federal district court, please do not continue. We are currently able to accept matters only from persons convicted in a federal district court.

This questionnaire will assist the Clemency Project in evaluating your case and help us to decide whether we can offer assistance to you in preparing an application for executive clemency. Please provide as much detail for each question as you can, but do not delay returning the completed questionnaire to us. Add additional sheets if necessary. If you cannot answer all of the questions in detail, we may be able to supplement your answers from other sources. (Note the questions marked with an asterisk * are also asked on the formal petition form that must be submitted as part of an application for executive clemency.)

(Last) (First) (Middle)

Other names you have used or.been known by (include your "street names," if any):

*Prisoner number: _____________ _

*Date of Birth: ___ _ ____ Place of Birth:----------------

(Month) (Day) (Year)

*Social Security Number: __ _

*Current Correctional Facility and Address:

1

Current Prison Counselor or Case Manager (if more than one, please list all):

(Name) (Phone number)

(Name) (Phone number)

*2. Are you a United States citizen? __ Yes _No

If you are not a U.S. citizen, indicate your country of citizenship. ----------------

*3. Have you ever applied for commutation of sentence before? __ Yes __ No

If yes, provide the date(s) on which you applied, and the date(s) you were notified of the final decision on your petition( s).

Date applied Date notified of final decision on petition

*4. Offense(s) for which commutation is sought

I was convicted in the United States District Court for the ___________ District of

(Northern, Western, etc.)

________________ of the crime(s) of:

(identify state)

(State the specific offense(s); provide citation of statute(s) violated, if known.)

I entered a plea of __guilty, __ not guilty, __ no!o contendere to each offense listed above.

2

I was sentenced on _____________ to imprisonment for------------

(month) (day) (year) (total length of sentence)

to pay a fine of $ ______________ , restitution of $ ___________ , and to

supervised release or special parole for _________ , and/ or to probation for

Oength of sentence)

Oength of sentence)

5. The offense(s) for which I was/were convicted was/were committed on

(provide a date or range of dates for each)

*6. I began service of the sentence of imprisonment on ____________ ,, and I am projected

(month) (day) (year)

to be released from confinement on ____ , __ , ___ _

(month) (day) (year)

*7. Are you eligible for parole? __ Yes No

If yes, indicate the date when you became eligible for release, and state whether your application for parole was granted or denied.

*8. Have you paid in full any fine or restitution imposed on you? Yes __ No

If the fine or restitution has not been paid in full, state the remaining balance $ _________ _

*9. Did you appeal your conviction or sentence to the United States Court of Appeals? Yes No

Is your appeal concluded? Yes No

If yes, indicate whether your conviction or sentence was affirmed or reversed, the date of the decision, and the citation(s) to any published court opinions. Provide copies of any unpublished court decisions concerning such appeals, if they are available to you.

3

Did you seek review by the Supreme Court? Yes No

Is your appeal concluded? Yes No

If yes, indicate whether your petition was granted or denied and the date of the decision.

Have you filed a challenge to your conviction or sentence under 28 U.S.C. § 2255 (habeas corpus)?

Yes No

Is your challenge concluded? Yes No

If yes, indicate whether your motion was granted or denied, the date of the decision, and the citation(s) to any published court opinions, if known. Provide copies of any unpublished court decisions concerning such motions, if they are available to you. If you have filed more than one post-conviction motion, provide the requested information for each motion.

10. Do you currently have any pending challenges to your conviction( s) or sentence?

If yes, please describe in detail the challenge(s) and its status.

Yes No

*11. Aside from the offense(s) for which commutation is sought, have you ever been arrested or taken into custody by any law enforcement authority, or convicted in any court, either as a juvenile or an adult, for any other incident?

For each such incident, provide the date, the nature of the charge, the law enforcement authority involved, and the final disposition of the incident. Please list every violation, including traffic violations that resulted in an arrest or in a criminal charge, such as driving under the influence. (Add additional pages, if necessary.)

Arrests:

4

Convictions:

12. Please provide the names and contact information for all attorneys who have represented you in connection with the offense(s) for which you are seeking commutation. Indicate whether the attorney represented you in pre­trial matters, trial, appeal, or post-conviction. (Add additional sheets if necessary.)

Name (Firm name, address, phone number, if known)

(For pre-ttial, trial or appeals, etc.)

5

Name (Firm name, address, phone number, if known)

(For pre-trial, trial or appeals, etc.)

Name (Firm name, address, phone number, if known)

(For pre-trial, trial or appeals, etc.)

Name (Firm name, address, phone number, if known)

(For pre-trial, trial or appeals, etc.)

Name (Firm name, address, phone number, if known)

(For pre-trial, trial or appeals, etc.)

13. Have you ever served in the armed forces of the United States?

If yes,

Yes No

Dates of services:------------ Branch( es):----------------

Serial number: _____________ Type of discharge: _____________ ~

If you were discharged other than honorably, describe in detail the facts surrounding your discharge.

6

If you served in the armed forces, did you receive any non-judicial punishment, or were you the defendant in any courts-martial proceedings? __ Yes __ No

If yes, state fully the nature of the charge, the relevant facts, the date and disposition of the proceedings.

14. Current marital status: __ Never Married __ Married __ Divorced __ Widowed __ Separated

For each marriage, state the following: name of spouse, date and place of each spouse's birth, date and place of marriage, and, if applicable, date and place of divorce, and the current or last known address and telephone number of your current and each former spouse.

(Name of spouse) (Date and place of birth)

(Full address, including zip code) (Telephone number)

(Date and place of marriage) (Date and place of divorce)

(Name of spouse) (Date and place of birth)

(Full address, including zip code) (Telephone number)

(Date and place of marriage) (Date and place of divorce)

7

15. List your children by name and furnish the date and place of birth for each and indicate the name and contact information for the other parent of each child:

(Name of child) (Date and place of birth)

(Name of other parent) (Address and telephone number)

(Name of child) (Date and place of birth)

(Name of other parent) (Address and telephone number)

(Name of child) (Date and place of birth)

(Name of other parent) (Address and telephone number)

Add additional sheets as necessary to provide information on all children.

16. Physical and Mental Health

Describe in detail any physical or mental health issues that you current have, including the diagnosis, treatment, and the names and contact information for any health care providers who are treating you.

8

17. Activities while in prison

Briefly describe your activities while imprisoned, including work assignments, education undertaken, and other activities.

18. Before your incarceration, what schools had you attended and what certificates or awards did you receive? Include information about your grade school, middle school, high school, college or university and post-graduate studies, if any.

19. Prior to your incarceration what jobs did you hold. Include information about your job title, tasks, employer (name, address, phone number, if known), dates of employment, and reason for termination.

20. Have you been cited for any infractions of prison rules while in prison? Yes No

If yes, describe the dates of the incidents, the nature of the incidents charges, the disposition of the charges.

9

21. Please provide the names and contact information for anyone (inside or outside of prison) who may be willing to write a letter in support of your application for commutation of sentence. Describe briefly what information each person may have to support your application.

(Name and Title) (Address and telephone number)

(What might this person say in support of your application for commutation of sentence?)

(Name and Title) (Address and telephone number)

(What might this person say in support of your application for commutation of sentence?)

(Name and Title) (Address and telephone number)

(What might this person say in support of your application for commutation of sentence?)

10

(Name and Title) (Address and telephone number)

(What might this person say in support of your application for commutation of sentence?)

(Name and Title) (Address and telephone number)

(What might this person say in support of your application for commutation of sentence?)

*22. Please provide a complete and detailed account of the offense(s) for which you seek commutation, including the full extent of your involvement. If you need additional space, use additional sheets of paper.

11

*23. Briefly state your reasons for seeking commutation of sentence. If the Clinic agrees to assist you, you will need to provide a detailed statement of reasons to put into the petition for commutation.

I understand that by completing and returning this questionnaire to the Clemency Project (Clinic) at Columbus School of Law, the Clinic is not agreeing to represent me in preparing and filing an application for executive clemency. I understand that after review of the answers I am providing and some further investigation, as needed, the Clinic will inform me of its decision whether to offer to assist me with an application for executive clemency.

(Date) (Signature)

(Printed name)

12

The Catholic University of America Columbus School of Law CUA Clemency Project

Limited Legal Services Retainer Agreement

We encourage you to review this agreement carefully and ask us any questions you may have

before signing. By signing this agreement you acknowledge that you have read and fully

understand all its terms and you intend to be legally bound by them.

I. Authority to Represent

This Limited Services Agreement ("Agreement") is between ____________ _

(hereafter referred to as "Client" or "!") and the Clemency Project Clinic, Columbus School of

Law, The Catholic University of America (hereafter referred to as "Clinic").

II. Scope of Representation

1. I request and authorize representation by the Clinic, to assist me in preparing and filing an Application for Commutation of Sentence to the President of the United States ("Application") through the Office of the Pardon Attorney, U.S. Department of Justice.

2. I understand that the Clinic has not agreed to represent me in connection with any matter other than the above-mentioned Application. If the Clinic agrees to represent me in any other matter, a separate written retainer agreement will be signed by me and the Clinic before that representation begins.

3. I understand that this Agreement is different from the usual attorney-client agreement because this Agreement is for limited legal services only, rather than for the complete array of services that lawyers often provide to their clients. In addition, I have been informed and fully understand that my case will be handled primarily by law students enrolled in the CUA Clemency Project Clinic under the supervision of an attorney who is a member of the faculty of Columbus School of Law.

4. I authorize and who are law students enrolled in the Clinic, to assist me m preparing and filing my Application. I understand that the students will have primary responsibility for my case but will work under the direction of a supervising attorney.

Page I of 4 __ _ Initial

5. I consent to the release to the Clinic, including to students who are not specifically assigned to my case and other supervising attorneys, all information that is pertinent to my case.

6. I agree to cooperate with the Clinic by complying with all reasonable requests for information that is within my custody or control.

7. I agree to promptly inform the Clinic about any new developments or information pertinent to my Application, such as completion of a vocational or educational course, a new job assignment, a disciplinary violation, or similar matters.

8. I understand that my Application cannot be filed if I have a challenge to my conviction or sentence, an appeal, or other post-conviction relief pending in any court. I agree not to file any such challenge while the Clinic is representing me in this Application. If at any time while the Clinic is representing me I decide to file such challenge, I will first terminate this Agreement in writing as outlined below in Section IV.

9. I agree to respond to the Clinic's communications (letters, telephone calls, or other forms of communication) as soon as reasonably possible.

10. I understand that the Clinic is primarily staffed by law students. I understand and agree that if the students specifically authorized by this Agreement to assist me are not able to file my Application by the end of the academic year, the matter can be transferred to other law students and/or supervising attorneys in the Clinic. I understand that I will be promptly informed by the Clinic if the matter is transferred to other students.

11. Due to the academic nature of the Clinic, I understand that there may be some delay in working on my Application during the summer and other school breaks.

12. I understand that the Clinic agrees to provide conscientious, competent, and diligent services and at all times will seek to achieve my goals. However, I understand that the Clinic cannot predict or guarantee the final outcome of the Application.

III. Fees, Costs, and Expenses

I understand that the Clinic will not charge me a fee for the services provided under this Agreement.

I understand that there may be certain costs and expenses associated with my case. Such costs may include, but are not limited to fees for copies of necessary records, expenses for transcripts, and other similar expenses. I understand that the Clinic will not incur any costs for which I will be liable or expected to pay without first obtaining my consent.

Page 2 of 4 __ _ Initial

IV. Termination of This Agreement

I. I understand that I may terminate the Clinic's representation of me at any time for any reason by providing the Clinic with written notice of termination. If this agreement is terminated by me, I understand that the Clinic is under no obligation to find a replacement attorney.

2. I understand that the Clinic may withdraw as my counsel and terminate its assistance to me for any reason consistent with the requirements of professional responsibility by providing me with written notice of termination.

3. I understand that the Clinic represents other clients and also undertakes efforts to improve the administration of justice. I understand that during the time the Clinic is representing one client it may take positions on matters of law or policy on behalf of other clients or as part of its law reform efforts that are different from the position that the Clinic has taken or will take in its representation of the first client. I agree that the Clinic may start or continue the other representations or legal reform efforts that pose positional conflicts with the Clinic's representation of me, as long as I) the matters in which those positional conflicts arise are not substantially related to the Clinic's representation of me; and 2) those positional conflicts will not materially and adversely affect the Clinic's representation of me.

V. Confidentiality

All communications between the Clinic attorneys, student interns and the Client that are related

to the representation of the Client will be strictly confidential and, will not be shared with anyone

outside of the Clinic without the Client's prior approval, unless required by law or the rules of

professional conduct.

VI. Effective Date of This Agreement

This Agreement will take effect upon the execution of it by both parties, i.e., at a time when both

parties have signed it.

VII. Entire Agreement

I understand that this written Agreement, consisting of four pages, governs the entire relationship

between myself and the Clinic and that any changes to this Agreement must be made in a writing

signed by me and the Clinic to be effective.

Page 3 of 4 __ _ Initial

VIII. Client's Informed Consent

I have carefully read this Agreement and fully understand the limited-service representation

described in this Agreement. I voluntarily, knowingly, and intentionally enter into this

Agreement with the Clinic.

Accepted

Date Signature

Printed Name

Accepted

Date Signature

James P. Ogilvy, Esq. Director, CUA Clemency Project Clinic

Page 4 of 4 __ _ Initial

= V UNIVERSITY of ST.THOMAS

Office of the Pardon Attorney 1425 New York Ave. N. W. Suite 11000 Washington DC 20530

Dear Mr. Rodgers,

November 5, 2012

School ofLtw

Mail MSl.400 1000 LaSal!e Avenue Minneapolis, MN 55403-2015 USA.

Tdephooe'. 1 (651) %2-4970 Facsunile: l (651) 962-4996

Enclosed is the Commutation Petition for Mr.Weldon Angelos. Ifthere are any questions about the petition, they can be directed to me at the address above. My cell phone number, should you need to reach me, is (254) 717-7032. ·

An Egtut{ Opporrunity/Affirmacive Ac:doti Employet

Yours Truly,

~Q~ Mark Osler Prof. of Law Univ. of St. Thomas (MN)

St. Pall), Minnesota MioneapoJ!g, Minnesota Owatonna, Minnts()ta Rome, fraly

A) Petition Form

Table of Contents Commutation Petition: Weldon Angelos

B) Answer to Question 5 C) Answer to Question 7 D) Basis for Clemency Memorandum E) Letters in Support F) Documents re Prison Record G) Opinion of Judge Cassell H) Supreme Court Amicus Brief I) Unreported opinion denying habeas J) Sentence computation

r

I I i

Petition for Commutation of Sentence

Please read the accompanying instructions carefally before completing the application. Type or print the answers in ink. Each question must be answered.fully, truth folly and accuraiely. If the space for any answer is insid.ficient, you may complete the answer on a separate sheet of paper and attach it to the petition. You may attach any additional documentation that you believe is relevant to your petition. The submi.ssion of any material, false information is punishable by up to five years' Imprisonment andafine of not more than $250,000. 18 US. C. §§ 1001and3571.

Relief sought: (check one)

l£i' Reduction of Prison Sentence Only !QRemission of Fine and/or Restitution Only

filReduction of Prison Sentence and Remission IQ)Other ___________ ~

To The President of the United States:

L

2.

The undersigned petitioner, a Federal prisoner, prays for commutation of sentence and in support thereof states as follows:

Reg. No, 10053-081 Social Security No. ~5"'2"-9--=2'-'-7--'-2""5""4"'3 _____ _

Confined in the Federal Institution at 2L,,,o,,,m,,,p,,,,o"'c"',--'C"'a,,.li,,·~,,,o"'rn,,.i~a ____________ _

Date and place of birth: July 16, 1979 at Salt Lake City, Utah

Arc you a United States citizen? If you are not a U.S. citizen, indicate your country of citizenship

Have you ever applied for commutation of sentence before? !IZi'yeSIOfno If yes, state the date(s) on which you applied, aJJd the date(s) when you were notified of the final decision on your petllion(s).

A petition was filed in 2009, but denied due to the then-pending habeas petition.

Offcnse(s) For Which Commutation ls Sought

I was convicted on a plea of ___ ~n~o~t'-'gu=il,,ty,__ ___ in the United States District Court (gWlty, not guf!ty, nolo contendere)

for the __ ~-~--~--District of _____ U=tah=------ of the crime of: {Northern, Western, etc.) (ldenUfy stare)

UnittKlStat.es Depwtmenl of Justice Office of the Pardon Attorney Washington, D.C. 20530

Jam1ary 2002

Offense(s) For Which Commutation Is Sought

firearm in furtherance of a drug trafficking crime (counts 2, 4, and 10); Possession of a stolen

firearm (counts 6 and 11); User of a controlled substance in possession of firearm (counts 8 &

12); Poss. of firearm with removed serial number (ct. 7); Money lau11dering ( cts. 18, 19 & 20).

I was sentenced on March 26 , 2004 to imprisonment for 55 years+ one day , to pay (monthiday) (yeqr) (length ofsentenc~)

D a fine of$ , 0 restitution of$ , and to (do not tnclilde special assessment) ________ ____:

~ supel'Vised release or D special parole for __ _,thr=e"'-e.;_y"'ear=s __ , and/or to probation for

--~~~==~--· I was -~2=2-~ years of age when the offense was committed, {lengj}j r>f ientence)

3. I began service of the sentence of imprisonment on 11/16 , 2004 , and I am projected to (month/day) &ear)

4.

be released from confinement on 11/18 2051 (monlh!da)') (Vear)

Are you eligible for parole? [J]yesll2!:no Jf yeu, indicate fhe date when you became eligible for rel.ease, and state whether your applicaJion for parole was grcmted or denied

Have you paid in full any fine or restitution imposed on yon? If the fine or reslilurion has not been paid in full, state the remaining balance.

Did you appeal yonr conviction ur sentence to the United States Court of Appeals? llZJyemno

Is your appeal concluded? ~ye.5[0no If yes, indicate whether yow conviction or sentence was qffirmed or reversed, the date offhe decision, and the citalion(s) to any published COUJ't opinions. Provide copies of any unpublished court decisions concerning 8Uch appeals, if they are available lo you.

The conviction and sentence were affirmed on Jan. 9, 2006. The opinion is reported 433 F. 3d

733 (10th Cir. 2006).

Did you seek review by the Supreme Court? llZfye;jQno

Is your appeal concluded? llZI ye~O no lfye.v, indicate whether your petition was granted or denied and the date of the decision.

Certiorari was denied on Dec. 4 2006.

Petltlonfcr Com1t1utatto11 of Sentence Page2

Oll'cuse(s) Foi· Which Commutation Is Sought

Have you filed a challenge to your conviction or sentence nuder 28 U .S.C. § 2255 (habeas corpus)? ll2Jyci'fano

Is your challenge concluded? ~esOno lfyes, indicate whether your motion was granted or denied, the date of the decision, and the citation(s) lo any published court opinions, if known. Provide copies of any unpublished court decisions concerning such motions, if they are available to you. If you have filed n1ore than one post-conviction motion1 provide the requested Information for each tluch motion.

It is concluded. A habeas petition was denied on December 8. 2008, the denial was affinned

by the 10th Circuit on March 3, 2011 (417 Fed. Appx. 786), and certiorari was denied on

October 3, 2011 (132 S. Ct. 342).

5. Provide a complete and detailed account of the offeuse for which you seek commutation, including the full extent of your involvement. If you need more space, you may complete your answer on a separate sheet of paper and attach it to the petition.

See attached statement.

PetillonforCtimmulatiori oJSenfence Page3

Other Criminal Record

6. Aside from the offense for which commutation is sought, have you ever been arrested or taken into custody by any law enforcement authority, or convicted in any court, either as a juvenile or an adult, for any other incident? llZ!yesfOno For each such incident, provide: the date, the nature of charge, the law enforcement authority involved, and the final disposition of the incident. You must list every violalion1 including traffic violations that resulted arrest or in an criminal charge, such as driving under the influence.

Arrests: 10/30/92: Burglary of a dwelling, Salt Lake County Juvenile Ct., case dismissed.

10130/92: Bike theft, Salt Lake County Juvenile Ct .. case dismissed.

11121/92: Destruction of property under $250, Salt Lake County Juv. Ct., Counseled, warned, released.

02/21/95: Graffiti. Salt Lalrn County Juv. Ct., Petition denied.

09/23/95: Curfew violation, Salt Lake City Juv. Ct,, Assessment and diversion.

11/16/95: Dist. of marijuana/ drug-free zone, Salt Lake City Juv. Ct., Insufficient facts

[None of these resulted in a conviction; the only prior conviction is listed below]

Convictions: 06/03/96: Possession of a handgun, Salt Lake City Juvenile Court, Stayed detention (6 days), probation

Petitfonfor CommutaJion ofS<Jntence Page4

Reasons for Seeking Clemency

7. State your reasons for seeking commutation of sentence. If you need more space, you may complete your answer on a separate sheet of paper and attach it to the petition,

See attached.

Petition far Commutcrl/on of Sentence PageJ

C~rtification lHld Pe1·so1rnl Oath

I hereby certify that all answers to the above questions and all statement contained herein are true and correct to the best of my knowledge, information, and belief. I understand that any intentional misstatements of material facts contained in this application form may cause adverse action on my petition for executive clemency and may subject me to criminal prosecution.

Respectfully submitted this t.J \") day of N<N ~ (month)

Petition/or Commutation of Sentence

~~ Signature Of Petitioner

Page6

Response to Question 7

I am seeking clemency for a second chance at life, and for the opportunity to help raise my children and care for my aging and ailing father. Through extensive education and self-reflection, and that much needed feedback, I was able to root out my old way of thinking and develop better character and judgment. As an adolescent I was overly energetic, and my decisions were not fully thought through or rational. But during my incarceration I have learned to channel that energy in positive and productive ways. I have taken advantage of every educational opportunity that's been presented to me. I have gained a better understanding of life by studying the history of our world and of our country and was blessed with the opportunity to obtain a formal education in business management to complement my prior business experience. I was also able to learn valuable critical thinking skills, which enabled me to understand where I went wrong, but more importantly, why my conduct was wrong. I am now more objective of my own actions and evaluate my intentions before acting on them.

If given clemency, I would transfer my college credits to a four-year college to complete my Bachelor's degree in Business Management, and I would pursue further education if necessary. With three young children to think about, one in high school, an 84-year-old father, and middle age quickly approaching, I would focus my life on rebuilding my relationship with my children and family, and relieve my sister of the burden ofbeing my father's sole caregiver.

For these reasons, along with those described in the attached "Basis for Clemency" Memorandum, I ask the Pardon Attorney and the President of the United States to commute my sentence.

1

Basis for Clemency Weldon Angelos, Petitioner

This is a rare and important case. The sentencing judge, national commentators, and leading legal scholars have all published compelling arguments that Mr. Angelos was grossly over-sentenced for his crime. Mr. Angelos has accepted responsibility for that crime and achieved rehabilitation while incarcerated. Upon these unusual circumstances, the petitioner asks that the remainder of his sentence be commuted.

Three reasons compel a commutation of Weldon Angelos' sentence of55 years for a first offense of marijuana distribution and the possession of three firearms. First, the sentence was grossly disproportional to the crime-a truth articulated best by the sentencing judge himself, who issued an unusual and lengthy opinion decrying this disproportionality and expressly requesting a presidential commutation of the sentence at two points in that opinion. 1 Second, Mr. Angelos has been an exemplary prisoner who has sought and achieved rehabilitation. Finally, Mr. Angelos has a supportive family willing and able to facilitate his re-entry to society, which will be made easier by his significant job skills and work opportunities.

I. Disproportionality

A. Judge Paul Cassell

The judge who sentenced Weldon Angelos was Paul G. Cassell, who was appointed to the bench by President George W. Bush in 2002. In sentencing Mr. Angelos, Judge Cassell concluded in a lengthy and award-winning2 opinion that he was compelled by statute to issue a 55-year sentence to Mr. Angelos for selling "small amounts ofmarijuana"3 and the possession of firearms on three occasions. Remarkably, Judge Cassell offered an extended analysis of why this sentence was disproportionate to the crime, concluding with this recommendation:

For all the reasons previously given, an additional 55-year sentence for Mr. Angelos under§ 924(c) is unjust, disproportionate to his offense, demeaning to victims of

1 United States v. Angelos, 345 F. Supp. 2d 1227, at 1230 & 1262-1263 (2004). 'The Green Bag, a quarterly joumal dedicated to good writing about the law, awal'ded Judge Cass ell's Angelos opinion its award for outstanding legal wl'iting. hUp://www.law.gmu.edu/assets/files/news/GB_Almanac. 3 345 F. Supp. 2d at 1258.

1

actual criminal violence-but nonetheless constitutional. While I must impose the unjust sentence, our system of separated powers provides a means of redress.. . . One of the purposes of executive clemency is "to afford relief from undue harshness." This power is absolute ...

Given that the President has the exclusive power to commute sentences, the question arises as to whether I have any role to play in commutation decision .... Having carefully reviewed the issue, I believe that such a recommendation is entirely proper ....

I therefore believe that it is appropriate for me to communicate to the President, through the Office of the Pardon Attorney, my views regarding Mr. Angelos' sentence. I recommend that the president commute Mr. Angelos' sentence to a prison term of no more than 18 years, the average sentence recommended by the jury that heard this case. The court agrees with the jury that this is an appropriate sentence in this matter in light of all other facts discussed in this opinion.4 [citations omitted]

Judge Cassell painstakingly substantiated this recommendation. For example, he held up the sentence he was forced by statute to issue (on facts that involved only gun possession where the guns were not used or brandished and selling small amounts of marijuana) against other, more serious crimes. In a set of two tables, Judge Cassell set out the crimes which would receive a much shorter sentence than that received by Mr. Angelos, including:

Leading three major narcotics trafficking rings, resulting in three deaths. 5

Hijacking three aircraft on separate occasions.6

Raping three 10-year-old children,7 and Committing a second-degree murderer (who would receive less than

one-fourth the sentence received by Mr. Angelos).8

4 345 F, Supp. 2d at 1262·1263. ' 345 F. Supp. 2d at 1247. 6 Id. 1 Id. 8 Id.

2

Anticipating the sentence that later became a reality, Judge Cassell also took the unusual step of polling the trial jurors about their views of an appropriate sentence in the case. None of the jurors recommended a sentence even close to the sentence created by the statute.9

Moreover, Judge Cassell investigated what a likely sentence would have been had the case been pursued in state court. He found that if Mr. Angelos had been convicted in the state courts of Utah, he "would likely have been paroled after serving about two to three years ill prison.''10

Finally, and perhaps most compellingly, Judge Cassell held out as reasonable the sentence which results from a straight application of the sentencing guidelines as applied to all of the conduct Mr. Angelos was convicted of, including the gun counts: 97-121 months. Importantly, such a range would allow for a sentence shorter than that which has already been served by Mr. Angelos, meaning that he would now be free. 1 t In fact, as shown in the attached sentence computation, as ofNoveinber 16, 2012, Mr. Angelos will have completed service of a sentence at the top of that guideline range; 121 months.

The strength of Judge Cassell's analysis thoroughly substantiates both his conclusion that the sentence required by statute was "unjust, cruel, and even irrational," ti and his recommendation to the President that he commute Mr. Angelos' sentence.13 Judge Cassell has confirmed (as of October, 2012) that his views on this case have not changed.14

B. Legal Scholars and Commentators

The sentencing of Weldon Angelos attracted wide attention. Typical of the reporting in the national press was a story in the New York Times by Adam Liptak, who described.Judge Cassel[ as a "brainy, conservative former law professor.''t5 The article noted that 29 former judges and prosecutors had argued

' 345 F. Supp. 2d at 1242. " 345 F. Supp. 2d at 1243. II 345 F. Supp. 2d at 1241. 12 345 F. supp. 2d at 1230. 13 Id. " Judge Cassell now serves as ti1c Ronald N. Boyce Presidential Professor of Criminal Law at the University of Utah's S.J. Quinney College ofLaw.

15 Adam Liptak, ''Long Term Jn Drug Case Fuels Debate on Sentencing," New York Times, September 12, 2004, available at http://www.nytlmes.com/2004/09/12/national/12sentence.html?_r~o&pagewanted=print&position~.

3

that Mr. Angelos' sentence amounted to cruel and unusual punishment, and catalogued criticisms of the mandatory minimum sentencing scheme from experts including Professor Doug Berman of Ohio State and Supreme Court Justice Anthony Kennedy, while providing a response in defense of the sentence from DOJ spokesperson Monica Goodling.

Two years after the sentencing, a Washington Post editorial convincingly called for the commutation of Mr. Weldon's sentence. 16 Terming the sentence "obscene," the Post noted that Judge Cassell was "a staunch advocate of tough justice" who had sought to overturn the Miranda rule. If even Judge Cassell found the Angelos case worthy of commutation, the Post reasoned, it must be extraordinary.

A myriad of other journalists, editorial boards, and academics joined this chorus.17 There is a reason that experts across the political spectrum agree on the bare fact that justice requires a commutation in this case: because it is so objectively true, as comprehensively established in Judge Cassell's remarkable opinion.

IT. The Successful Rehabilitation of Weldon Angelos

Of course, Mr. Angelos must do his part in earning commutation, and he has. The prison record reveals that he has avoided trouble while working hard to gain the skills he will need to succeed when he re-enters civil society.

16 "Co1nmute This Sentence," Washington Post, December 9, 2006, available at http://www. washlngtonpostcomlwp-dyn/contenVarticle/2006/12/08/ AR2006120801567 _pf.html. 17 See, e.g., Jennifer Seltzer Stitt, Worlh Fighting For: The Promise of Sentencing Reform, 23 FED. SENT'G REP. 126 (2010); Erik Luna & Paul G. Cassell, Mandat01y Minimalism, 32 CARDOZO L. REV. I (2010); Joanna M. Huang, Correcting Mandatory Injustice: .Judicial Recommendalion of Executive Clemency, 60 DUKE L.J. 131 (ZO!O); David J. Savage, Judges Seek Leeway in Prison Sentences, L.A. TIMES, Sept. 29, 20.07; End Mandatory Sentences, DESERB'f MORNING NEWS, June 28, 2007; Chuck Colson, Justice That Restores: A Paradigm Shift in Criminal Jwtice Practices, 36 GEO. L.J. iii, ix (2007); James Kilpatrick, Sentence is lawfal, but is It just?, TULSA WORLD, Aug. 17, 2006; Sasha Abramsky, The dope dealer who got 55 years: Even the judge called it cruel unusual and irrational, THE PROGRESSIVE, June I, 2006; Eva S. Nilsen, Indecent Standard.,: The Case of U.S. Versus Weldon Angelos, 11 ROGER WILLIAMS U. L, REY. 537 (2006); Paul Campos, When Our Justice Is Ulifust, DENVER ROCKY MOUNTAIN NEWS, Feb. 22, 2005; Remedying an Injustice, MILWAUKEE JOURNAL SENTJNEL, Jan. I 7, 2005; Charles Peters, Tiiting at Windmills, WASHINGTON MONTHLY, Jan. 1, 2005; Rockefeller Reform, WASHINGTON POST, Dec. 17, 2004; Bany C. Scheck, A mandatory miscarriage of justice, STAR-LEDGER (Newark N.J.), Dec. 9, 2004; Overturn sentencing guidelines and create a fairer system, MAINE SUNDAY TELEGRAM, Nov. 21, 2004; Cruel, but Not That Unusual, L.A. TIMBS, Nov. 19, 2004; Kmt Williamsen, Judges Getting Creative, NEW AMERICAN, Dec. 27, 2004; John S. Martin, Jr., Why Mandatory Minimums Make No Sense, 18 NOTRE DAME J,L. ETHICS & Pun. POL'Y3Il, 316 (2004).

4

In the ten years that Weldon Angelos has been incarcerated, 18 he has received only one incident report-for using a cell phone in 2005 .19

That lone negative is overwhelmed by the good things Mr. Angelos has achieved while incarcerated, as a student, a worker, and as a person intending to re­enter society as a productive citizen.

As a student, Mr. Angelos has accumulated 63 college credits. His course load has included five business classes, four philosophy classes, three English classes, and courses in biology, health, history, management, mass communication, math, psychology, sociology, speech, and political science.

Mr. Angelos has also diligently pursued practical vocational training while incarcerated at the U.S. Penitentiary at Lompoc, California. Most significantly, he completed a 3000 hour program in managing a dental laboratory. He also finished a 480-hour class in graphic design, as well as shorter programs in small business, computers, basic life .skills, and writing.

Moreover, he has put these skills to use during his incarceration. From 2005-2009, he was employed within the prison as a dental laboratory clerk. Since then, he has served as both a photo editing tutor and a typing instructor. What is revealed by this combination of study and work is a strong desire to succeed, the ability to work hard, and a willingness to take advantage of what opportunities are available-all skills that will be essential to his re-entry into society.

ill. A Path to Re-Entry

Weldon Angelos is unusually well-situated to re-enter society as a productive citizen. He has strong family support; the ability, opportunity, and desire to work immediately upon release; and an equally strong desire to become a responsible father to his three children and supportive son to his ailing father.

The primary point of contact for Mr. Angelos' re-entry will be his sister, Lisa Angelos, who lives with her husband in Sandy, Utah. Ms. Angelos and her family look forward to having Weldon Angelos live in their home when he is released.

18 Mr. Angelos was first a1Tosted and jailed on July 11, 2002. 19 The incident repo~ along with documentation ofMr. Angelos• achievements in prison, is attached.

5

Ms. Angelopos is a Quality Assurance Specialist at Watson Pharmaceutical, and her husband, Matt Weygandt, is a fireman for Salt Lake County. Mr. Weygandt also does finish work and tiling as a second job, and has offered to train Weldon with these skills. Together with his existing training and experience in business, dental lab work, and graphic design, Weldon Angelos will have unusually broad work options. Lisa Angelos reports that she has already contacted a temporary employment agency which would be willing to help Weldon Angelos find his first job.

Weldon Angelos also wishes to complete his 4-year college degree, using the 60+ credits he has earned while incarcerated. He was successful in the music business prior to his conviction, and his maturity and training would only make him better suited to success in the business world now.

Finally, Mr. Angelos (in his answer to Question 7) has expressed a sincere desire to be both a true father to his three children and a caring son to his elderly father, who lives near Lisa Angelos.

In sum, Weldon Angelos will walk out of prison and into a life of family responsibilities, work, and support that will enable him to fulfill the opportunity that clemency would afford to him.

This is a rare and compelling case. Clemency would serve the interests of justice (as articulated by Judge Cassell), society (as established by Mr. Angelos himself), and a core purpose of the pardon power, which was created to provide relief from "undue harshness."20

There may be no other case before this president which presents such a combination of factors, and the petitioner humbly seeks a commutation of the remainder of his sentence with the promise that he will do his part to prove himself worthy of this action.

20 Ex Parte Grossman, 267 U.S. 87,120 (1925).

6

Office of the Pardon Attorney Department of Justice Washington, DC 20539-0001

Re: Weldon Angelos/Presidential Clemency

ALP Construction Inc. 6566 west 13400 south Herriman, Utah 84096

This letter is written in behalf of Weldon Angelos. I write this letter to state that if Weldon were pardoned, AIP Construction Inc, would, with out question have a position available for his employment Weldon's punishment has been excessive, and his ability to contribute to my business and/or to society should be acknowledged. Upon Weldon's release I, Adam Park, President of ALP Construction, would without question give Weldon a position within my company.

Sincerely, Adam Park

(l_L. {JJ__

~/---~~~~~~~~~~~--~C_A_s_T_R_A __ c_a_N_,_L_L~C

Office of the Pardon Attorney Department of Justice Washington, DC 20539-0001

RE: Weldon Angelos/Presidential Clemency

Dear President Obama:

My name is York Martinez, I am the owner of CastraCon, LLC, a full service construction company and Service Disabled Veteran owned Small Business (SDVOSB). If Weldon were to receive clemency, I would be more than willing to hire him as a full time employee. While employed, Weldon would learn trade skills that would be beneficial through out his life.

I believe Weldon would be a productive member of society that would contribute greatly to the local community.

Thank you.

Sincerely,

(IJr§llf---= York Martinez

Office of the Pardon Attorney Department of Justice Washington, DC 20539-0-001

Re: Weldon Angelos/Presidential Clemency

My name is Matthew Snyder, D.D.S and I am writing this letter in support of a full commutation for Weldon Angelos. I am the owner of Advanced Dentistry and if Weldon were pardoned I would give him a job at my place of business. I believe Weldon's crimes do not present a threat to society, or the individuals he interacts with. The pwrishment he has received is excessive and his ability to work, and function in society should not be compensated.

Sincerely,

,JJ/wJ ¥, 0 D s Matthew Snyder, D.D.S.

Office of the Pardon Attomey Department of Justice Washington, DC 20539-0001

Re: Weldon Angelos/Presidential Clemency

Dear President Obama:

I'm writing this letter not only as a friend to Weldon but also as his brother. J am a former musician who appeared on more than 40 million records sales worldwide. I am the artist known as Napoleon, and was a part of a hip-hop group put together by the late Tupac Shalcur. I met Weldon during my days as an entertainer and from then on we became brothers. I left the music industry to travel the world as a motivational speaker. I work closely with the government of Britain and the council throughout various locations in the UK. I speak to troubled youth about the downfalls of the street life that I once

· promoted in my music.

The reason I'm writing is because I believe everybody deserves a second chance. I grew up in a troubled society and even witnessed my parents get murdered in front of me when I was only three years old and from that day I lived a life that was full of trouble and violence. Now that I've had a chance to learn and become wiser, and understand the lifestyle I was living wasn't productive, by the permission of God, I was able to change my life around. When I travel the world speaking to the youth they listen to me because they know the life I once lived. I believe everyone deserves ano1her chance.

I also believe that we live in a country that was founded on justice and rights for all. We believe that justice has been served and Weldon has done the time and paid for his actions. We also believe that he shouldn't suffer in prison any longer as he has already served enough time for what he was involved in. He has a family who deserve to see their father at home with them. He has kids that he deserves to walk to and from school with but the most important thing is he can be a benefit to the troubled kids as Weldon is a changed man. I travel the world and deal with top police and government officials and they would love to have Weldon traveling around speaking to the youth about his experiences so they won't make the same mistakes as he did.

lfwe live in a society that truly cares about our troubled youth I believe now is the time to show it. If Weldon can change and save lives of thousands of kids then he should be out rather than behind bars. We are no! saying he is above the law and don't deserve to pay for what he did, as he served the time for the mistakes he m<.dc. All we are asking is for you to dig deep in your heart and ask yourself should Weldon be able to hug his kids, walk them to school, and be able to help troubled kids and guide them from the mistakes he made as a kid? So please think about what our goals are when it comes to prison. Is it there to rehabilitate or to punish with no limits? If it's to rehabilitate people for their wrong actions then I'm here to tell you Weldon has been rehabilitated a long time ago.

Thank you,

7~1id:/i t~k-------... Mutah Beale President Beale Holdings lnc v,ww.Bealeholdings.com

Office of the Pardon Attorney Department of Justice Washington, DC 20539-000 l

Re: Weldon Angelos/Presidential Clemency

My name is W. Andrew McCullough and I am writing this letter in support of full commutation for Weldon Angelos. I am an Attorney at law in Utah and New York and feel that the current sentence for Weldon Angelos far exceeds the crime. He is a young man who is fully capable of reintegrating and being a productive citizen of society. If pardoned, Weldon would be considered for a position in my office.

smw W.Andrew

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The balance of Angelos Sample commutation materials can be found at www.nationaljournal.com/free/document/ .. /4795-1

And additional Angelos materials at:

http://sentencing.typepad.com/files/angelos­clemency-petition-bush.pdf

University of St. Thomas Law Journal

Volume 9 I Issue 3 Article S

2012

Reinvigorating the Federal Pardon Process: What the President Can Learn from the States Margaret Colgate Love

Recommended Citation Love, Margaret Colgate (2012) "Reinvigorating the Federal Pardon Process: What the President Can Learn from the States," University of St. Thomas Law Journal: Vol. 9: Iss. 3, Article 5. Available at: http:/ /ir.stthon1as.edu/ustlj/vol9/iss3/S

1his Article is brought to you for free and open access by UST Research Online. It has been accepted for inclusion in University of St. Thomas Law

Journal by an authorized administrator of UST Research Online. For more information, please contact libroa<lmin@lstthomas.edu.

ARTICLE

REINVIGORATING THE FEDERAL PARDON

PROCESS: WHAT THE PRESIDENT CAN

LEARN FROM THE STATES

MARGARET COLGATE LOVE*

ABSTRACT

In the past thirty years the president has been increasingly reluctant to use his constitutional power to pardon, although the demand for pardon has also increased, to restore rights and shorten sentences. The primary reason is that the process for the administration of the power has lost its vigor, its integrity, and its sense of purpose. The attorney general, steward of the power since the Civil War, has allowed a parochial institutional agenda to inform pardon recommendations instead of broadly defined pres­idential policy goals. The three most recent presidents have been willing to live with a dysfunctional pardon process, evidently because they did not regard pardoning as a duty of office and perceived its risks to outweigh its rewards. Without a plan for using the power, and without a reliable system for executing it, pardoning has become a dangerous activity for any presi­dent, and a useless vestigial appendage of the presidency. The failure of the pardon process during the 1990s explains why President Clinton's final days in office were marred by pardon-related scandal, a fate only narrowly averted by his successor, George W. Bush. It appears that President Obama believes he can avoid scandal by not pardoning at all, or by making only token use of the power.

State pardon procedures suggest ways that presidential pardoning could be restored to a useful place in the federal justice system. While states follow a variety of different administrative models, most have proce­dures that are more transparent, accountable, and authoritative than the federal process. Some states mandate consultation with elected or ap­pointed boards, some require pre-pardon publication of applications or in-

* Law Office of Margaret Love. Former U.S. Pardon Attorney (1990-1997). Thanks to Jeffrey Crouch for helpful comments on an earlier version of this Article. I am particularly grate­ful to T.J. Lang for his assistance in preparing the pardon chart at the end of this article and to Evan Everist for his patience and editing skill.

730

2012] REINVIGORATING THE FEDERAL PARDON PROCESS 731

tended executive action, and some require public hearings and consultation with responsible justice officials. In thirty-two of the forty-four states where the governor is responsible for pardoning, the state constitution requires an annual report to the legislature on pardon grants for that year. Experience in the states that have a sound administrative structure suggests that even if a reliable process does not guarantee vigorous pardoning, it at least dis­courages the sort of irresponsible use (or disuse) of the power that has become the norm in the federal system.

Three reforms could reinvigorate the federal pardon process and re­store its moral force. First, the process should be guided by clear standards that are applied consistently, and grants should be reasoned and defensible. Second, the process must be administered by individuals who are indepen­dent and authoritative,· who have the confidence of the president, and who are given the necessary resources to carry out the president's pardoning agenda. Third, the process must be accessible and responsive to people of all walks of life, and take into account the likelihood that many deserving pardon applicants will not have skilled counsel or well-connected support­ers to advocate on their behalf.

TABLE OF CONTENTS:

INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 731

I. THE LEAST RESPECTED POWER . . . . . . . . . . . . . . . . . . . . . . . . . . . . 734 II. WHAT THE PRESIDENT CAN LEARN FROM THE STATES

ABOUT USING His PARDON POWER........................ 743 A. Independent Board Model . . . . . . . . . . . . . . . . . . . . . . . . . . . . 744

B. Shared Power Model . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 745

C. Optional Consultation Model . . . . . . . . . . . . . . . . . . . . . . . . . 747 III. RECOMMENDATIONS FOR REFORMING THE FEDERAL PARDON

PROCESS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 51

A. Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 751 B. Accountability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 752

C. Transparency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 753 CONCLUSION ................................................. ' . . . 754

INTRODUCTION

Pardon has fallen into disuse in the American criminal justice system and yet there has never been a greater need for it. A power to pardon was included in the federal Constitution because its framers understood that leg­islative punishments tend to be harsh and courts strict about imposing them, so that there must be some power in the executive to make "exceptions in favor of unfortunate guilt" lest justice "wear a countenance too sanguinary

732 UNIVERSITY OF ST. THOMAS LAW JOURNAL [Vol. 9:3

and cruel."' From the earliest years of our nation's history, the power to pardon was used routinely by the president, as it was by state governors under their own constitutions, to correct unjust or unpopular results of a legal system whose procedural protections were crude and punishments harsh, supplementing (or curbing) the power of other actors in the justice system.2 For a time during the middle of the twentieth century, it seemed that pardon had "outlived its usefulness" because of better procedural pro­tections for the criminally charged and flexible alternative early release mechanisms like parole. 3 By that time, most states had dismantled the old apparatus of civil death in favor of a new emphasis on rehabilitation and restoration of rights.4 With the abolition of federal parole in 1984 and the growth of a punitive regime of collateral consequences, some predicted that pardon would reclaim a useful role as an instrument of justice. 5 That this has not happened is largely because of the way the pardon power is pres­ently administered by the Justice Department.

As originally conceived by Lincoln's Attorney General, Edward Bates, during the Civil War, the federal pardon process was intended to protect the president from his own generous impulses and the power of his office from those with special access. As elaborated by Bates' successors to meet opera­tional needs of the federal justice system, the federal pardon process served

1. THE FEDERALIST No. 74, at 447 (Alexander Hamilton) (Clinton Rossiter ed., 1961) (Hamilton also justified giving the president exclusive control of the "benign prerogative of par­doning" for reasons of statecraft, to defuse a politically inflammatory situation.). See also Douglas Hay, Property, Authority and the Criminal Law, in ALBION'S FATAL TREE: CRIME AND SOCIETY IN

18TH CENTURY ENGLAND 44 (Douglas Hay et al. eds., 1975) (describing how pardon in eight­eenth-century England "moderated the barbarity of the criminal law in the interests of humanity. It was erratic and capricious, but a useful palliative until Parliament reformed the law in the nine­teenth century."). For a recent exegesis of the thinking of the framers about the pardon power, see Paul Rosenzweig, Reflections on the Atrophying Pardon Power, 102 J. CRIM. L. & CRIMINOLOGY 593, 595-603 (2012).

2. See W.H. HUMBERT, THE PARDONING POWER OF THE PRESIDENT 95-133 (1941) (describ­ing the Justice Department's administration of the pardon power through the administration of Franklin Roosevelt (1860-1936)); Margaret Colgate Love, The Twilight of the Pardon Power, 100 J. CRIM. L. & CRIMINOLOGY 1169, 1175-93 (2010) (describing the administration of the presi­dent's pardon power from the earliest years of the Republic through 1980). The president's inter­vention to ameliorate harsh sentencing laws at the request of judges in the earliest years of the Republic is described in George Lardner, Jr. & Margaret Colgate Love, Mandatory Sentences and Presidential Mercy: The Role of Judges in Pardon Cases, 1790-1850, 16 FED. SENT'G REP. 212 (2004).

3. See U.S. DEP'T OF JUSTICE, 3 THE ATTORNEY GENERAL'S SURVEY OF RELEASE PROCE­DURES: PARDON 296 (1939) [hereinafter ATTORNEY GENERAL'S SURVEY]. See also KATHLEEN DEAN MOORE, PARDONS: JUSTICE, MERCY, AND THE PUBLIC INTEREST 84 (1989) (noting that the prevalent view was that "the time [has come] for 'pardons silently to fade away-like collar buttons, thefr usefulness at an end"').

4. Gabriel J. Chin, The New Civil Death: Rethinking Punishment in the Era of Mass Convic­tion, 160 U. PA. L. REV. 1789, 1793-1803 (2012).

5. See MooRE, supra note 3, at 86 (speculating that the abolition of federal parole could lead to "an expanded and crucial role for pardon").

2012] REINVIGORATING THE FEDERAL PARDON PROCESS 733

both objectives because it was trausparent, authoritative, aud accountable.6

But federal pardoning lost its transparency under Franklin Roosevelt, its authority under Ronald Reagan, and its accountability under Bill Clinton, setting the stage for an end-of-term scramble for mercy that "disgusted" George W. Bush and engulfed Bill Clinton in scandal.7 Unrepaired and ne­glected by President Obama, aud evidently "drained of its moral force,"8

the federal pardon process begau to generate mini-scandals of its own.9 Per­haps as a result, by the end of his first term President Obama had pardoned less generously than any president since John Adams. 10

A new administrative paradigm must be developed if President Obama is to use his constitutional power with the courage and capacity the framers intended. Useful models for a restructured and reinvigorated federal pardon process cau be found in the states, which have experimented with various arrangements for managing their own pardon power that are conducive to transparency, authority, aud accountability. 11 While a sound administrative structure does not guarantee vigorous pardoning, at least it discourages the

6. See Love, supra note 2, at 1172-93, for an overview of presidential pardoning from 1789 until 1980. See also P.S. Ruckman, Jr., Federal Executive Clemency in the United States, 1789-1995, Paper presented at the annual meeting of the Southern Political Science Association: Tampa, Florida (November 1995), available at http://pardonresearch.com/papers/4.pdf (providing an overview of presidential pardoning from 1789 to 1995).

7. See GEORGE w. BUSH, DECISION POINTS 104 (2010) ("One of the biggest surprises of my presidency was the flood of pardon requests at the end. I could not believe the number of people who pulled me aside to suggest that a friend or former colleague deserved a pardon. At first I was frustrated. Then I was disgusted. I came to see the massive injustice in the system. If you had connections to the president, you could insert your case into the last-minute frenzy."). See also Margaret Colgate Love, The Pardon Paradox: Lessons from Clinton's Last Pardons, 31 CAP. U. L. Rsv. 185, 196 n.38 (2003) [hereinafter Paradax] (describing the breakdown of the federal pardon process at the end of the Clinton presidency).

8. Anthony M. Kennedy, Associate Justice, U.S. Supreme Court, Speech at the American Bar Association (Aug. 9, 2003), in 16 FED. SENT'o REP. 126, 128 (2003) ("The pardon process, of late, seems to have been drained of its moral force. Pardons have become infrequent. A people confident in its laws and institutions should not be ashamed of mercy.").

9. See infra Part II. See, e.g., Dafna Linzer, IG Criticizes Justice Pardon Attorney over His Handling of Inmate's Plea for Release, WASH. PosT, Dec. 18, 2012, http://www.washingtonpost. com/politics/ig-criticizes-justice-pardon-attorney-over-his-handling-of-inmates-plea-for-release/ 2012/12/18/a6440c6a-495d-l le2-820e-17eefac2f939_story.html (describing one scandal regard­ing Pardon Attorney Ronald L. Rodgers' handling of a pardon denied at the end of President George W. Bush's administration).

10. P.S. Ruckman, Jr., SHOCK: Obama's Pardon Disaster. The Merciless Term, PARDON POWER (Jan. 20, 2013), http://www.pardonpower.com/2013/01/shock-obamas-pardon-disaster­merciless.html (containing data collected by P.S. Ruckman, Jr. from copies of State Department clemency warrants found on Microfilm Set T969, National Archives, the Annual Report of the U.S. Attorney General and a CD set of clemency warrants issued by the Office of the Pardon Attorney, U.S. Department of Justice). As of January 20, 2013, President Obama had pardoned twenty-two people, commuted one sentence, and denied 4,812 petitions. The president closest to his record in modern times was George W. Bush, who by the end of his first term had issued twenty-nine pardons, commuted two sentences, and denied 3,595 petitions. Clemency Statistics, U.S. DEP'T OF JusTrCE, http://www.justice.gov/pardon/statistics.htm (last visited Jan. 25, 2013).

11. A chart summarizing pardoning practices and frequency of grants in each U.S. jurisdic­tion is appended to this article. For more detailed state-by-state summaries of pardoning policy

734 UNIVERSITY OF ST. THOMAS LAW JOURNAL [Vol. 9:3

sort of irresponsible use (or disuse) of the power that has marred the federal experience in the three most recent presidencies.

Part I of this article explains how the process for administering the presidential pardon power has lost both its vigor and its integrity, frustrating the power's responsible exercise. Part II describes the transparency, author­ity, and accountability features that encourage responsible pardoning in many of the states. Part III makes specific recommendations for restoring integrity and vigor to the federal pardon process.

I. THE LEAST REsPECTED POWER

Pardon is the least respected and most misunderstood of presidential powers. The public associates pardoning with holiday gift-giving and end­of-term scandals, 12 and periodic pardon-related controversies seem to con­firm this skepticism. 13 A pardon seems to most people like a winning lot­tery ticket or a lightning strike, not something one can earn or deserve like other benefits in a democracy. Scholars treat pardon as a constitutional anomaly, a remnant of tribal kingship that is not part of the checks-and­balances package. 14 Practitioners rarely account for pardon in discussions

and practice, see Margaret Colgate Love, Restoration of Rights Project, NACDL, www.nacdl.org/ rightsrestoration (last visited Jan. 25, 2013).

12. Sixty years ago, when pardoning was far more frequent, the introduction to a study of the federal pardon power noted that "the vast majority of people have a very hazy idea of the meaning and of the implications of the President's pardoning power. The persistence of erroneous ideas, the lack of exact information, and the absence of publicity concerning the acts of the pardoning authority envelop the power in a veil of mystery." HUMBERT, supra note 2, at 5-6.

13. In January 2012, Mississippi Governor Haley Barbour granted clemency to 222 individu­als, some, but apparently not all of whom had applied for pardon through the established proce­dure. Himanshu Ojha, Marcus Stern & Robbie Ward, Insight: Mississippi Pardons Benefited Whites by Big Margin, REUTERS, Jan. 20, 2012, http://www.reuters.com/article/2012/01/20/us-usa­mississippi-pardons-idUSTRE80J25K20120120. See alsa In re Hooker, 87 So. 3d 401 (Miss. 2012) (upholding the validity of pardons whose beneficiaries had failed to comply with the notice requirement in the Mississippi Constitution).

14. The legal scholars who have written about the pardon power can be counted on the fingers of one hand, and constitutional texts mention it only as an afterthought. See, e.g., AKHIL REED AMAR, AMERICA'S CONSTITUTION: A BIOGRAPHY 61, 131, 179, 187, 189, 226, 239, 316 (2012) (referencing without discussion the president's pardon power on eight of 672 pages of text); PETER M. SHANE & HAROLD H. BRUFF, THE LAW OF PRESIDENTIAL POWER 439-43 (1988) (referencing the pardon power on five of 811 pages of text). See also Daniel T. Kobil, The Quality of Mercy Strained: Wresting the Pardoning Power from the King, 69 Tux. L. REV. 569, 604, 611 (1991) (explaining that the clemency power has been "trivialized," having "failed to evolve with the rest of the judicial system").

2012] REINVIGORATING THE FEDERAL PARDON PROCESS 735

about doing justice, 15 notwithstanding the occasional hat-tip from the Su­preme Court. 16

Few know that for the first 180 years of our nation's history presidents made liberal and regular use of their constitutional power, as governors did ih the states.17 Indeed, the earliest presidents pardoned routinely, sometimes at the request of federal judges and prosecutors, to correct unjust or unpopu­lar results of a legal system that had few built-in correctives. 18 Before there was a federal prison system and the possibility of early release on parole, when prison sentences were mandatory and served in squalid county jails, hundreds of federal prisoners were freed by presidential fiat every year. 19

When conviction of a felony resulted in civil death in many states, full pardons restored repentant federal criminals to their rights and status.20

From time to time, the president was criticized for granting particular par­dons, but the ordinary business of pardoning went on month after month, year after year, out of the public eye and without fanfare or controversy, until the 1980s.21 What Alexander Hamilton called the "benign preroga­tive" also played a critical role in resolving political crises, from the Whis-

15. Capital cases are a significant exception, where clemency has continued to play an im­portant role. See Clemency, DEATII PENALTY INFO. CENTER (2012), http:!/www.deathpenaltyinfo. org/clemency (comprehensive listing of clemency grants in capital cases since the reinstatement of the death penalty in 1976).

16. See, e.g., Herrera v. Collins, 506 U.S. 390, 411-12 (1993) ("Clemency is deeply rooted in our Anglo-American tradition of law, and is the historic remedy for preventing miscarriages of justice where judicial process has been exhausted.").

17. ATIORNEY GENERAL'S SURVEY, supra note 3, at 44-52, 155-85 (describing the role of pardon in the American colonies, and the regularization of pardoning procedures in the late nine­teenth century); U.S. DEP'T OF JUSTICE, 4 THE ATIORNEY GENERAL'S SURVEY OF RELEASE PRO­CEDURES: PAROLE 41-54 ( 1939) (describing evolution of parole from pardon in the early twentieth century). Parole apparently was originally introduced in some states not for any new interest in encouraging rehabilitation, but for a simple desire to relieve administrative .burdens on the gover­nor. See, e.g., Sheldon L. Messinger et al., The Foundations of Parole in California, 19 LAw & Soc'y REV. 69, 69 (1985) ("Parole was introduced in California, and used for over a decade, primarily to relieve governors of part of the burden of exercising clemency to reduce the excessive sentences of selected state prisoners.").

18. George Lardner, Jr. & Margaret Colgate Love, Mandatory Sentences and Presidential Mercy: The Role of Judges in Pardon Cases, 1790-1850, 16 FED. SENT'o REP. I, 1-2 (2004).

19. See P.S. Ruckman, Jr., Presidential Pardons/Commutations by Term, 1789-2009, PARDONRESEARCH.COM, http://pardonresearch.com/prescomp/pardcommTerm.htm (last visited Jan. 25, 2013) (providing a graph displaying the number of pardons by each president). See also Love, supra note 2, at 1175-87 (describing the early process for granting pardons).

20. See HUMBERT, supra note 2, at 100-01 (noting an increase of pardons "to restore civil rights" after 1895).

21. See Samuel T. Morison, The Politics of Grace: On the Moral Justification of Executive Clemency, 9 BuFF. CRIM. L. REV. 1, 2 (2005) ("For most of this country's history, the practice of executive clemency has quietly functioned as an ancillary feature of the criminal justice system, without attracting much attention or generating much controversy in the vast majority of cases.").

736 UNIVERSITY OF ST. THOMAS LAW JOURNAL [Vol. 9:3

key Rebellion to the Vietnam War and even President Nixon's resignation. 22

Pardon played a constructive and varied role in the federal justice sys­tem largely because of the attorney general's central role in administering the power.23 Lincoln's Attorney General, Edward Bates, was the first to see the institutional advantages of controlling access to the president and har­nessing the pardon power to the needs of the justice system.24 Before that time, pardoning took place on an ad hoc basis, either because some official recommended it or because some interested party had personal access to the president.25 Lincoln's inclination to be merciful and his sensitivity to par­don's symbolic value were the sources of some frustration to his generals, though his pardoning apparently inspired the troops.26 White House Secre­tary John Hay reported that the president spent long hours reviewing clem­ency requests from soldiers and their families and famously entertained pardon petitioners at the White House. 27 This was all too much for Lin­coln's rather stern attorney general, who opined that his chief was "unfit to be trusted with the pardoning power" because he was too susceptible to women's tears.28 Convinced that discipline and regularity needed to be brought to pardoning, Bates persuaded Lincoln that pardon petitions should be submitted first to him. Edmund Stedman, the Attorney General's per­sonal secretary, was given the job of managing the flow of pardon petitions and the title of "clerk of pardons." Stedman later recalled that "I soon dis­covered that my most important duty was to keep all but the most deserving

22. THE FEDERALIST No. 74, supra note 1, at 446. The pardon power was used as a tool of statecraft to "restore the tranquility of the commonwealth." Id. at 449. See JEFFREY CROUCH, THE PRESIDENTIAL PARDON POWER 53-85 (2009); Love, supra note 2, at 1173-75.

23. See Love, supra note 2, at 1175-95 (describing the administration of the president's pardon power from the earliest years of the Republic through 1980); HUMBERT, supra note 2, at 95-136 (describing the Justice Department's administration of the pardon power through the Ad~ ministration of Franklin Roosevelt).

24. Bates declared that President Lincoln was "unfit to be trusted with the pardoning power" because he was too susceptible to women's tears. RICHARD N. CURRENT, THE LINCOLN NOBODY KNows 169 (1958). Pardon Clerk Edmund Stedman reported, "My chief, Attorney General Bates, soon discovered that my most important duty was to keep all but the most deserving cases from coming before the kind Mr. Lincoln at all; since there was nothing harder for him to do than put aside a prisoner's application .... " J. T. Dorris, President Lincoln's Clemency, 20 J. ILL. ST. HisT. Soc'y 547, 550 (1953) (citing 1 LAURA STEDMAN & GEORGE M. GouLD, LIFE AND LETTERS OF EDMUND CLARENCE STEDMAN 265 (1910)).

25. See Love, supra note 2, at 1175-78 (describing the administration of the pardon power before 1870).

26. Dorris, supra note 24, at 553. 27. See INSIDE LINCOLN'S WHITE HousE: THE CoMPLETE CIVIL WAR DIARY OF JOHN HAY

64 (Michael Burlingame & John R. Turner eds., 1997) (describing a six-hour session in which Lincoln eagerly "caught at any fact which would justify him in saving the life of a condemned soldier").

28. CURRENT, supra note 24, at 169. People joked that enterprising merchants in the District of Columbia rented weeping children and widow's weeds to the mothers of condemned soldiers before their audiences with the President. WILLIAM E. BARTON, THE LIFE OF ABRAHAM LINCOLN 255 (1925).

2012] REINVIGORATING THE FEDERAL PARDON PROCESS 737

cases from coming before the kind Mr. Lincoln at all, since there was noth­ing harder for him to do than put aside a prisoner's application .... "29 If a regime based on personal influence made it too hard for the president to say no, it also made it too easy for individuals with a personal or political agenda to adversely affect the more accountable functions of government.

Thus began the president's practice of referring all pardon petitions to the attorney general for investigation and recommendation. It soon became apparent that this practice made sense not only to avoid compromising the president or wasting his time, but also to ensure that the pardon power would function as an efficient adjunct to the justice system. After the estab­lishment of the Justice Department in 1870, the attorney general also be­came responsible for the proper care of federal prisoners, then mostly housed in state facilities, and he made it a priority to ensure their access to the clemency process.30 In 1893, President Cleveland formally transferred all administrative duties in pardon matters from the secretary of state to the attorney general,31 who in turn delegated this responsibility to a department official known thenceforth as the pardon attorney. In 1898, the first clem­ency regulations jointly signed by President McKinley and Attorney Gen­eral John Griggs formalized a system whereby all seekers of a presidential pardon were required to call at the Justice Department rather than at the White House. 32

In this fashion, the president's constitutional power became part and parcel of the more general transformation of the federal justice system to a centralized administrative state.33 And because the pardon power was ad-

29. Dorris, supra note 24, at 550. Edmund Clarence Stedman (1833-1908) is primarily re­nowned for his later contributions to poetry and literary criticism. In 1904, Stedman was one of the first seven chosen for membership in the American Academy of Arts and Letters. In addition to his literary achievements, Stedman pursued scientific and technical endeavors, and his design for an airship inspired by the anatomy of a fish foreshadowed the dirigibles of the early twentieth century. See ENCYCLOPEDIA BRITIANICA 861 (Hugh Chisholm ed., 11th ed., 1911) (entry on the life of Edmund Clarence Stedman).

30. The Annual Report of the Attorney General for 1880-1881 describes a system of regular inspections of state and local prisons and jails where federal prisoners were housed, through which deserving cases of "sick and friendless prisoners who might otherwise have no means of commuM nicating with the pardoning power" would be "[brought], through this department, to the attention of the President" for consideration of clemency. 1880-1881 Arr'y GEN. ANN. REP. 20. See Love, supra note 2, at 1178-87 (describing the system for handling pardons between 1870 and 1930).

31. See Exec. Order of June 16, 1893 (on file with author). See also Reed Cozart, Clemency under the Federal System, 13 FED. PROBATION 3, 3 n.l (1959).

32. See Rules Relating to Applications for Pardon, 1, 3, 4 (Feb. 3, 1898) [hereinafter 1898 Clemency Rules] (containing rules signed by President William McKinley and Attorney General John Griggs). A complete set of clemency regulations, from the 1898 McKinley regulations to the current regulations approved by President Clinton in 1993, is on file with the author.

33. See Love, supra note 2, at 1179 ("The administrative system formalized after the DepartM ment of Justice was established in 1870 made the unruly power part of the more general transforM mation of the justice system tu an administrative state, steering most clemency suitors away from the president's door for over 100 years."). See also HUMBERT, supra note 2, at 82-94 (describing its operation between 1870 and 1940); Morison, supra note 21, at 28-47 (describing the operation of the federal pardon process in recent years).

738 UNIVERSITY OF ST. THOMAS LAW JOURNAL [Vol. 9:3

ministered and to some extent controlled by the Justice Department, its ex­ercise necessarily reflected the values and policy preferences of those responsible for prosecuting crime and administering punishment. 34 At the same time, the advisory role of a member of the president's cabinet ensured that political as well as law enforcement considerations would dictate par­don's role in the justice system, and that it would operate with authority. Each year, between 1885 and 1932, the annual report of the attorney general detailed (sometimes extensively) his reasons for recommending each of the hundreds of annual clemency grants, providing an unparalleled basis for holding publicly accountable an otherwise unrestrained power of government. 35

Until quite recently this administrative system did what it was de­signed to do. While over the years there have been controversial grants, there were no genuine pardon-related scandals in the federal system until the process broke down in the Clinton Administration. The story of that breakdown has been told elsewhere, but suffice it to say that the Clinton Justice Department failed to develop a responsible pardoning policy or edu­cate President Clinton on his pardoning responsibilities, ignored his re­quests at the end of his term for more favorable pardon recommendations, and stood by while the president indulged in an unprecedented orgy of final pardoning that scandalized the nation. 36

34. This means that the president did not always take the rather stem advice that came to him from the Justice Department. For example, in 1932, Attorney General William Mitchell com­mented in a speech to the American Bar Association on the tension that sometimes arose between Justice Department prosecutors, determined to enforce the criminal laws severely, and President Hoover, a veteran practitioner of humanitarian relief:

Reviewing the past three years, I believe that it is in respect to pardons that President Hoover has most often shown an inclination to disagree with the Department of Justice. I suspect he thinks we are too rigid. The pitiful result of criminal misconduct is that the burden of misery falls most heavily on the women and children. If executive clemency were granted in all cases of suffering families, the result would be a general jail deliv­ery, so we have to steel ourselves against such appeals. President Hoover, with a human sympathy born of his great experiences in the relief of human misery, has now and again, not for great malefactors but for humble persons in cases you never heard of, been inclined to disagree with the prosecutor's viewpoint and extend mercy. We have been glad when such incidents occurred.

HUMBERT, supra note 2, at 121 (quoting Attorney General William D. Mitchell, Address at An­nual American Bar Association: Reform in Criminal Procedure (Oct. 13, 1932)).

35. See Love, supra note 2, at 1180 n.43, 1191. 36. See The Controversial Pardon of International Fugitive Marc Rich: Hearings before the

H. Comm. on Government Reform, 107th Cong., 1st Sess. 342-43 (2001) [hereinafter The Contro­versial Pardon of International Fugitive Marc Rich] (containing testimony of Beth Nolan, Coun­sel to former President Clinton, describing the unresponsive Justice Department pardon process at the conclusion of the Clinton Administration, and the ensuing frantic effort at the White House in the final weeks to process the hundreds of clemency requests coming directly to the White House). See also Love, supra note 7, at 188-202 (describing run-up to final Clinton pardons, the failure of the Justice Department pardon process, staffing of pardons in the White House, and the grants themselves). For a colorful account by a member of the loyal opposition, including a repre­sentative sampling of the extensive contemporary press coverage, see BARBARA OLSON, THE F1"

NAL DAYS 113-93 (2001).

2012] REINVIGORATING THE FEDERAL PARDON PROCESS 739

After the tidal wave of irregular grants on Clinton's final day in office, some urged that responsibility for administering the president's power be removed from the Justice Department,37 while others thought the Justice Department process could be reformed.38 But the problems in the Justice Department's pardon process persisted into the presidency of George W. Bush. Requests from the White House for more favorable recommendations were once again ignored by the Justice Department, 39 and once again White House officials found themselves unable to count on support from the Jus­tice Department when they were deluged with applications from well-con­nected favor-seekers at the end of President Bush's second term.40 In 2007, the pardon attorney was forced to resign as a result of an internal investiga­tion into mismanagement of the pardon program.41 Three years later, the Justice Department's Inspector General reported that the new pardon attor­ney (a former military judge and narcotics prosecutor) was personally processing and sending forward to the White House hundreds of recom-

37. See, e.g., Daniel T. Kobil, Reviving Presidential Clemency in Cases of "Unfortunate Guilt'', 21 FED. SENT'o REP. 160, 163 (2009) ("Given the prosecutorial responsibilities of the Justice Department, there is a conflict of interest present when its attorneys must also serve as the gatekeepers for clemency."); Evan P. Schultz, Does the Fox Control Pardons in the Henhouse?, 13 FED. SENT' a REP. 177, 177-78 (2001) ("[A]n organization with a vested interest in prosecuting and convicting people is in charge of recommending whether those convictions should be put aside .. ' .. The real solution is removal of the process from Justice.").

38. See Brian M. Hoffstadt, Guarding the Integrity of the Clemency Power, 13 FEo. SENT'o REP. 180, 181-82 (2001) (discussing ways the clemency review process could remain within the Justice Department without being unduly influenced by the perspective of prosecutors).

39. See Dafna Linzer & Jennifer Lafleur, ProPublica R"eview of Pardons in Past Decade Slwws Process Heavily Favored Whites, WASH. POST, Dec. 3, 2011, http://www.washingtonpost. com/investigations/propublica-review-of-pardons-in-past-decade-shows-process-heavily-favored­whites/2011/11/23/glQAElnVQO_story.html:

In 2006, White House Counsel Harriet Miers became so frustrated with the paucity of recorrunended candidates that she met with Adams and his boss, Deputy Attorney Gen­eral Paul McNulty. Adams said he told Miers that if she wanted more recorrunendations, he would need more staff. Adams said he did not get any extra help. Nothing changed. "It became very frustrating, because we repeatedly asked the office for ~ore favorable recorrunendations for the president to consider," said Fielding, who was Bush's last White House counsel. "But all we got were more recommendations for denials."

40. See, e.g., Hearing before the H. Comm. on Government Reform on the Pardon of Marc Rich, 107th Cong., 1st Sess. 316-437 (2001) (containing testimony of Beth Nolan, White House Counsel during President Clinton's final days in office); Love, supra note 7, at 198 n.41 (confirm­ing that the Justice Department informed the White House in the fall of 2000 that "they couldn't take any more pardon applications and that they weren't going to be able to review them or get the infonnation to the White House." (internal quotations omitted)); Charlie Savage, On Clemency Fast Track, Via Oval Office, N.Y. TIMES, Jan. 1, 2009, http://www.nytimes.com/2009/0l/OI/ washington/Olpardon.html?pagewanted=all&_r=O (discussing pardon granted to Isaac Toussie without a recommendation from the Justice Department that was later revoked after the White House became aware of his controversial reputation in the community).

41. See George Lardner, Jr., Begging Bush's Pardon, N.Y. TIMES, Feb. 4, 2008, http://www. nytimes.com/2008/02/04/opinion/04lardner.html (describing the backlog of clemency applications in the Justice Department, and the charges that resulted in the pardon attorney Roger Adams' resignation). A more recent scandal regarding racial disparity in pardon recipients and inmate Clarence Aaron's plea for release has involved his successor, Ronald L. Rogers. See Linzer, supra note 9.

740 UNIVERSITY OF ST. THOMAS LAW JOURNAL [Vol. 9:3

mendations in commutation cases, assisted only by unpaid law-student in­terns, establishing that most prisoner petitions were getting short shrift.42

The pardon process was described as a "bottomless black box" where appli­cations lingered for years before finally being denied without explanation. 43

In 2011, investigative reporting published in the Washington Post docu­mented outcomes of pardon cases evidently disfavoring racial minorities, undue influence by members of Congress in favor of wealthy constituents,44

and misleading advice to the White House in a case involving a prisoner serving three life sentences for distributing crack cocaine.45 In the wake of these revelations, the White House asked the Bureau of Justice Statistics to report on how pardons were processed,46 members of Congress and advo­cacy organizations called for an investigation of the pardon attorney's of­fice,47 and the Department's Inspector General recommended that the pardon attorney be disciplined.48 The New York Times editorialized how the

42. See AUDIT REPORT 11~45, OFFICE OF THE INSPECTOR GEN., AUDIT OF THE DEPARTMENT

OF JUSTICE PROCESSING OF CLEMENCY RECOMMENDATIONS 31-32 (Sept. 2011) (providing that in the past it took more time to process petitions but now that the pardon attorney has gained more staff, including law students, the turnaround time on these petitions has gone down).

43. See Molly Gill, Into the Bottomless Black Box: The Prisoner's Perspective on the Com~ mutation Process, 20 FED. SENT'o REP. 16, 16 (2007) (''The process is a black box because it gives applicants no meaningful guidance and few updates as their applications are reviewed by the Office of the Pardon Attorney and the Deputy Attorney General and granted or denied by the president.''). The federal pardon process is described in detail in Morison, supra note 21, at 35-46.

44. See Dafna Linzer, Presidential Pardons: A Lawmaker's Support Improves Criminals' Odds/or Mercy, WASH. PosT, Dec. 4, 2011, http://www.washingtonpost.com/investigations/presi­dential-pardons-a-la wmakers-support -improves-criminals-odds-for-mercy /20 11 /l 1 /23/ gl QA 61 b V UO_story.httnl.

45. See Dafna Linzer, Clarence Aaron Was Denied Commutation, but Bush Team Wasn't Told All the Facts, WASH. PosT, May 3, 2012, http://www.washingtonpost.com/investigations/ clarence-aaron-was-denied-commutati on-but-bush-team-wasnt-to ld-all-the-facts/2012/05/13/ gl Q AEZLRNU_story.html. See also Dafna Linzer, Obama Administration Seeks New Review of Com­mutation Request from Clarence Aaron, WASH. PosT, July 18, 2012, http://www.washingtonpost. com/politics/obama-seeks-fresh-review-of-federal-prisoners-commutation-request/2012/07/18/gJ QApDm6tW _story.html (recounting the story of Clarence Aaron discussing President Obama's approach to pardoning).

46. The Department of Justice inquiry is intended to test the conclusion of the investigative series described in notes 39 and 60 that whites are favored in the pardon process. See Dafna Linzer, Details Emerge on Government Study of Presidential Pardons, PRoPusLICA (Aug. 8, 2012), http://www.propublica.org/article/details-emerge-on-governmen t-study-of-presidential-par­dons. A contract to conduct this study has been awarded to the Rand Corporation. Detailed Infor­mation for Award 2012-MU-CX-K045, U.S. DEP'T. JusTICE., http://grants.ojp.usdoj.gov:85/ selector/awardDetail?awardNumber=2012-MU-CX-K045&fisca1Year=2012&applicationNum­ber=2012-30210-CA-BJ&program0ffice=BJS&po=BJS (last visited Feb. 19, 2013).

47. See Dafna Linzer, Congressional Leader Calls for Investigation of the Pardon Office, PRoPUBLICA (May 23, 2012), http://www.propublica.org/article/congressional-leader-calls-for-in­vestigation-of-the-pardon-office.

48. See OFFICE OF THE INSPECTOR GEN., OVERSIGHT AND REVIEW Drv ., A REVIEW OF THE PARDON ATIORNEY'S RECONSIDERATION OF CLARENCE AARON'S PETITION FOR CLEMENCY 21 (Dec. 2012) ("[Pardon Attorney Ronald] Rodgers did not represent [the United States Attorney's] position accurately, and his conduct fell substantially short of the high standards to be expected of Department of Justice employees and of the duty that he owed to the President of the United States.").

2012] REINVIGORATING THE FEDERAL PARDON PROCESS 741

Justice Department's "prosecutorial mindset" had "undermined the process with huge backlogs and delays."49 Meanwhile, by the end of his first term in office President Obama had issued even fewer pardons than his two pred­ecessors, 50 perhaps hoping to avoid scandal by making only token use of his power. Reports from inside the Obama Administration suggested that only a fraction of the favorable recommendations received from the Justice De­partment had been acted on favorably, with many left pending or returned for a different recommendation, seeming to confirm President Obama's lack of confidence in the pardon process.

The disintegration of the federal pardon process, which began in ear­nest in the Clinton Administration and has continued to the present, can be traced to three fateful decisions. The first was Franklin Roosevelt's deci­sion, in 1933, to have the Justice Department stop publishing the reasons for its favorable clemency recommendations.51 This decision deprived the public of the factual predicate necessary to hold pardon decision-makers accountable; reinforced the impression that pardoning was mysterious, ca­pricious, and possibly corrupt; and encouraged the president in thinking that he did not need to be accountable to the public for his pardoning.

The second decision came half a century later when Ronald Reagan agreed to a delegation of responsibility for making pardon recommenda­tions within the Justice Department from the attorney general to a career civil servant who reported to officials responsible for overseeing the day-to-

49. See Editorial, The Quality of Mercy, Strained, N.Y. TIMES, Jan. 5, 2013, http://www. nytimes.com/2013/01/06/opinion/sunday/the-quality-of-mercy-strained.html?ref=opinion&_r=O:

Presumably, the president is willing to use acts of clemency to right the wrongs of the sentencing and judicial systems. Yet the same cannot be said of the Justice Department, which has a prosecutorial mind-set. It has undermined the process with huge backlogs and delays, and sometimes views pardons as an affront to federal efforts to fight crime.

See also Samuel T. Morison, A no-pardon Justice Department, L.A. TIMES, Nov. 6, 2010, http:// articles.latimes .com/201 O/nov /06/opinion/la-oew-morison-pardon-20101106 ("[T]he bureaucratic managers of the Justice Department's clemency program continue to churn out a steady stream of almost uniformly negative advice, in a politically calculated attempt to restrain (rather than in­form) the president's exercise of discretion.").

50. See Linzer, supra note 9 and accompanying text ("President Obama has granted clem­ency at a lower rate than any modem president.").

51. The practice of publishing reasons for pardon recommendations began in the first Cleve­land Administration, and for almost half a century opened a fascinating window into the operation of the post-Civil War federal justice system. Each year, between 1885 and 1932, the annual report of the attorney general detailed (sometimes extensively) his reasons for recommending each of the hundreds of annual clemency grants, providing an unparalleled basis for holding publicly account­able an otherwise unrestrained power of government. But in 1933 this practice ceased, reportedly at the direction of President Roosevelt himself, and the Justice Department's annual report on the pardon program thereafter contained little more than opaque case processing statistics. See Love, supra note 2, at 1191 (noting that for the twenty-five years after 1932, "published reports of the pardon attorney contained only bare case statistics, and between 1941 and 1955 no reports were published at all"). Between 1958 and 1963 the reports of the pardon attorney detailed policy aspects of the pardon program, as well as President Kennedy's decision to commute dozens of mandatory minimum drug sentences, but thereafter the reports returned to being generally uninformative.

742 UNIVERSITY OF ST. THOMAS LAW JOURNAL [Vol. 9:3

day work of federal prosecutors.52 This delegation deprived the president of authoritative and accountable advice from a Senate-confirmed member of his Cabinet, and marginalized the pardon program within the Justice Department.

The third fateful decision was President Clinton's unprecedented pub­lic distancing from the Justice Department's pardon process in several high profile cases,53 which together with his long-running neglect of the routine pardon caseload54 set the stage for the undisciplined orgy of pardoning on the final day of his term. 55 The loss of public confidence in the pardon process that resulted from the blatant cronyism of Clinton's final grants has never been acknowledged or addressed. Then, as now, the pardon process was seen to favor the wealthy and well-connected, and not ordinary people with garden-variety cases. Then, as now, the Justice Department process produced few favorable recommendations,56 gave undue advantage to ap­plicants with influential advocates, 57 and generally appeared to operate in a random and unfair fashion. 58 Over the past fifteen years the pardon process has become so compromised in the public mind, and so unfriendly to any­one outside the Justice Department, that the president himself no longer relies on it.

Many doubt that the Justice Department process is capable of the kind of reform necessary to restore what Supreme Court Justice Anthony Ken-

52. See 28 C.F.R. § 0 (1983). The 1982 revision of Part I of 28 C.F.R. formalized the attor­ney general's responsibility for making clemency recommendations to the president, but at the same time it authorized the delegation of this responsibility within the Justice Department to a career official who at the time did not even enjoy executive status. That official's recommenda­tions were to be communicated to the White House through subordinate political appointees .in the Justice Department whose primary management responsibilities involved oversight of federal prosecution policy and practice.

53. See, e.g.; THE PARDON ATTORNEY REFORM AND INTEGRITY Acr, s. REP. No. 106-231, at 8 (2000) (allowing for commutation of sixteen Puerto Rican terrorists without Justice Department advice). See also Darryl W. Jackson et al., Bending toward Justice: The Posthumous Pardon of Lieutenant Henry Ossian Flipper, 74 IND. L.J. 1251 (1999) (describing the pardon attorney's refusal to docket posthumous pardon application on behalf of first Black West Point graduate).

54. See Love, supra note 7, at 196 n.38 (2003) (describing irregular consideration of pardons at the White House throughout the Clinton presidency).

55. See The· Controversial Pardon of International Fugitive Marc Rich, supra note 36, at 342-43 (containing testimony of Beth Nolan, Counsel to former President Clinton, describing unresponsive Justice Department pardon process at the conclusion of the Clinton Administration, and the ensuing frantic effort at the White House in the final weeks to process the hundreds of clemency requests corning directly to the White House). See also Love, supra note 7, at 191-97 (describing run-up to final Clinton pardons, the failure of the Justice Department pardon process, staffing of pardons in the White House, and the grants themselves).

56. See Dafna Linzer, Obama Has Granted Clemency More Rarely Than Any Modern Presi­dent, PRoPuBLICA (Nov. 4, 2012), http://www.propublica.org/article/obama-has-granted-clem­ency-more-rarely-than-any-modem-president.

57. See Linzer, supra note 44 (chronicling the pardon of Dale Critz Jr. whose pardon was secured with the assistance of a congressman).

58. See, e.g., Gill, supra note 43, at 16 (juxtaposing the pardon of Scooter Libby with the experience of a nonviolent drug offender serving a long prison sentence).

2012] REINVIGORATING THE FEDERAL PARDON PROCESS 743

nedy called its "moral force."59 But whether or not the Justice Department remains in its stewardship role, it is clear that major reforms are necessary to restore the pardon process to something that protects and serves both the president and the justice system. State pardon procedures discussed in the following section suggest ways that the federal pardon process could regain the transparency, authority, and accountability that are conducive to more frequent and responsible use of the power. While the president could not constitutionally be compelled to adopt such procedures, he could do so vol­untarily, adapting elements of functional state systems to the federal context.

IL WHAT THE PRESIDENT CAN LEARN FROM THE STATES ABOUT USING

His PARDON PowER

The constitutions of most states provide for regulation of the pardon power at least to some extent. Even where the governor's constitutional power is unlimited, creative legislatures have found ways to introduce a degree of accountability and transparency into the pardon process that is foreign to the federal system. In some states no pardon may issue without a public hearing, and in others pardon applications must be published in the newspaper or tacked on the courthouse door. Frequently the governor is happy to cede some of his power as a way of avoiding unwanted favor­seekers and the controversy that frequently follows an irregular grant. Even in those states where the constitution contemplates no legislative control over the pardon process, the state constitution may require the governor to report after the fact about the pardons he or she has granted, including the reasons for each grant. This modest degree of legislative and popular over­sight does not guarantee that the governor will grant many pardons, but it does seem to ensure that the pardons that are granted will be defensible. It seems noteworthy that none of the states in which pardon-related scandals have recently engulfed the governor insist that the governor share the power or report to the legislature.60

There are three basic administrative models that govern pardoning in the United States. In six states, the governor plays almost no part in the

59. See Kennedy, supra note 8, at 128. 60. See, e.g., In re Hooker, 87 So. 3d 401, 414 (Miss. 2012) (upholding Mississippi Governor

Haley Barbour's controversial final grants despite applicants' failure to comply with constitutional notice provisions); Doe v. Nelson, 680 N.W.2d 302, 313 (S.D. 2004) (unsealing pardons granted by South Dakota Governor Bill Janklow that did not comply with statutory process). In 1991, the departing Ohio governor, Richard F. Celeste, drew protests with clemency orders for a number of individuals on death row, including a man who had raped and killed a seven-year-old girl. After that, Ohio amended the state constitution to require the governor to obtain a nonbinding recom­mendation from the parole board before making a clemency decision. William Glaberson, States' Pardons Now Looked at in a Starker Light, N.Y. TIMES, Feb. 16, 2001, http://www.nytimes.com/ 2001/02/16/us/states-pardons-now-looked-at-in-starker-light.html (reporting on a number of par­don controversies in states whose laws place few controls on the governor's pardon power).

744 UNIVERSITY OF ST. THOMAS LAW JOURNAL [Vol. 9:3

pardon process, and the pardon power resides in a governor-appointed inde­pendent board. In twenty-one states, the governor shares power with other elected or appointed officials. In twenty-three states, the governor is author­ized to pardon by law but is not required to consult with other officials before doing so. The wide variety in pardoning policies and practices from jurisdiction to jurisdiction makes it hard to generalize about the effective­ness of any particular administrative model, though some generally tend to produce more pardon grants and fewer pardon-related controversies than others. Based on the frequency of pardon grants over time and the regularity of the pardon process, it would appear that the jurisdictions in which pardon plays the most functional role are those in which the decision-making au­thority is exercised by or shared with other executive officials. 61

A. Independent Board Model

In six states, the governor has little or no role in pardoning, and the pardon power is exercised by a governor-appointed board that is also re­sponsible for prison releases.62 These independent pardoning boards are heavily regulated in terms of their procedures and conduct most of their business in public. The boards in Alabama, Connecticut, Idaho, South Caro­lina, and Utah are each required by statute to hold a full public hearing before granting a pardon and to notify concerned state officials and victims beforehand to enable them to attend the hearing and state their reasons for or against the pardon on the record. The Georgia board reviews all cases on a paper record, issues a written opinion in each case, and is required to report annually to the legislature, the attorney general, and the governor. The Alabama board is required to report annually to the governor.

The twin requirements of transparency and accountability enforced on all of these six independent boards are conducive to issuing numerous par­dons at regular intervals (although the fact that the pardon process involves no elected officials is at least equally important to their effective operation). Each year more than 400 pardons are granted by the boards in Alabama, Connecticut, and Georgia, and 200 pardons are granted each year in South Carolina, with an approval rate that ranges in these states from 30% to 60% of all applications received. While the Idaho board grants only thirty to forty pardons each year, this represents more than half of all applications filed, and grants are issued at regular intervals. These boards accept applica-

61. Specific constitutional or statutory sources of authority for the statements made in this section can be found in the chart appended to this article, reprinted from Love, supra note 11. See also the state-specific profiles at id.

62. See ALA. CONST. amend. 38 (amending art. V § 124); GA. CoNST. art. IV, § 2, para. II; IDAHO CONST. art. IV, § 7; s.c. CONST. art. IV, § 14; UTAH CONST. art. VII, § 12; CONN. GEN. STAT.§ 54-124a(f) (2010). In Alabama and South Carolina, the governor retains clemency power in capital cases; in Idaho, pardons of some serious offenses must be approved by the governor. The pardon procedures that apply in each of these states are detailed in the statewspecific profiles at Love, supra note 11.

2012] REINVIGORATING THE FEDERAL PARDON PROCESS 745

tions as soon as a person's sentence is completed or after a brief additional eligibility period, and most of their business comes from people seeking to avoid employment bars or firearms disabilities. None takes more than a year to process a typical pardon request.

B. Shared Power Model

In twenty-one of the forty-four states where the governor exercises most or all of the pardon power, the governor's power is limited, either by specific constraints spelled out in the state constitution or by statutory con­ditions enacted pursuant to specific constitutional authority to regulate the practice of pardoning.63 In some of these states, the constitution itself pro­vides for a sharing of the power to pardon, sometimes with other elected or appointed officials and sometimes with an administrative board that is also responsible for prison releases. In every one of these "shared power" states, there is a degree of transparency and accountability that seems to encourage responsible (if not reliably generous) pardoning.

There are three basic variations on the "shared power" model. In four states, a pardon may not be granted except with the consent of other high officials sitting with the governor as a board of pardon. 64 In nine states, the governor may not grant a pardon without an affirmative recommendation from a body of elected or appointed officials.65 In Rhode Island, the gover­nor may not pardon except with the advice and consent of the state legisla­ture.66 In six states, the governor is required to seek an advisory recommendation from an appointed administrative board before a pardon may issue, though the board's advice is not binding.67 California's system is a hybrid that places constraints on the governor only if the person seeking clemency has more than one conviction, in which case the governor must obtain a recommendation from the parole board and approval from a major­ity of the justices of the state supreme court. 68

Most of the administrative boards that have constitutional status in this "shared power" model are required by law to hold public hearings at which the prosecutor and victim are allowed to speak, and to make public their

63. A summary of the states that have implemented the "shared power" model can be found in the chart in the Appendix. See Love, supra note 11.

64. See FLA. CoNST. art. IV, § 8(a); MINN. CONST. art. V, § 7; NEB. CONST. art. JV, § 13; NEv. CoNST. art. 5, § 14. For further details, see Love, supra note 11.

65. ARIZ. CoNST. art. V, § 5; DEL. CoNST. art. VII,§ l; LA. CONST. art. IV,§ 5(E)(J); MASS. CONST. pt. 2, ch. II, sec. I, art. VIII; MoNT. CONST. art. VI,§ 12; N.H. CoNsT. pt. 2, art. 52; OKLA. CoNsT. art. VI, § JO; PA. CoNsT. art. JV, § 9(a); TEX. CoNsT. art. 4, § l l(b). For further details see Love, supra note 11.

66. R.I. CoNST. art. IX, § 13. 67. ALASKA CoNsT. art. III,§ 21; ARK. CoNST. art. 6, § 18; M1ctt. CONST. art. 5, § 14; Mo.

CoNST. art. IV,§ 7; OHIO CoNST. art. III,§ 11; KAN. STAT. ANN.§ 22-3701(4) (2012). For further details on each of these state specific profiles see Love, supra note 11.

68. CAL. CoNsT. art. V, § 8; CAL. PENAL CooE 4803 (2012).

746 UNIVERSITY OF ST. THOMAS LAW JOURNAL [Vol. 9:3

recommendations to the governor. Most of these boards clearly set forth the standards they expect a successful pardon applicant to meet. Some of the "shared power" states impose additional transparency and accountability constraints on the governor over and above those that apply to the adminis­trative board, such as a requirement of advance public notice of an intention to grant a pardon. The governor is required under the constitution in a ma­jority of these "shared power" states to make regular periodic reports to the legislature about the pardons he or she has issued, including the reasons for each grant.

Sharing the power with other officials or an administrative board does not guarantee gubernatorial enthusiasm for pardoning, and the experience of the twenty-one states in the "shared power" model is much more mixed than the "independent board" model. Within each of the three basic varia­tions on the shared power model, there are some states where pardoning is regular and generous, and some where it is infrequent or rare. For example, of the four states that follow the "governor-on-the-board" model, two pro­duce quite a few pardons (Nevada and Nebraska) and two do not (Florida and Minnesota). The "governor-on-the-board" model has resulted in partic­ular mischief in Florida, a state where felony offenders cannot even regain the right to vote unless they are personally approved through a complex clemency procedure that usually involves a public hearing before the gover­nor and three of his cabinet appointees. 69 Of the nine "gatekeeper board" states, three (Delaware, Pennsylvania, and Oklahoma) produce a regular stream of pardon grants, while pardons in the other six states in this group are infrequent (Texas, Montana, and Louisiana) or vanishingly rare (Ari­zona, Massachusetts, and New Hampshire).7° There has not been a pardon in Rhode Island for many years, which is hardly surprising considering its requirement of legislative advice and consent. Of the six states where the constitution requires the governor to consult with an administrative board, only Ohio and Arkansas have a lively tradition of pardoning.

It is hard to draw any general conclusions about why pardoning thrives in some of these "shared power" states and is either ineffectual or moribund in others. It may be that in some states, there is strong cultural as well as institutional support for pardoning, and few alternative relief mechanisms. This could expl,ain why the governors of Oklahoma and Arkansas have con­tinued to pardon generously while just slightly to the north, the governors of Kansas and Missouri have not. 71 Custom and expectation could explain why pardoning thrives in Delaware and Nebraska while there has not been a pardon in Arizona and Rhode Island in years. 72 These factors could also

69. See FLA. CoNsT. art. IV,§ 8; FLA. STAT. §§ 940.01, 940.05 (2012) (stating that the gov-ernor may restore civil rights of a convicted felon if that person has met certain requirements).

70. For a summary of the frequency of pardoning in all 50 states see Love, supra note 11. 71. See Love, supra note 11. 72. Id.

2012] REINVIGORATING THE FEDERAL PARDON PROCESS 747

explain why progressive governors in Minnesota and Massachusetts appear uninterested in pardoning while conservative governors in Nevada and Pennsylvania continue to approve dozens of grants each yearn Pardoning is simply a fact of life in some states, a part of the routine housekeeping business of government as opposed to a perk of office or an alien presence in the justice system. Finally, the influence of personal inclinations and po­litical ambition cannot be discounted, even in states where the governor shares power with a board, which may account for the waxing and waning fortunes of the pardon power in Ohio and Florida. There are numerous vari­ables-for example, a recent politically costly mistake by a predecessor74-

that may disincline a governor to pardon even in states where institutional arrangements seem to expect it. The one thing that seems fairly clear and constant in the otherwise decidedly mixed experience of these "shared power" states is that even if institutional support does not guarantee vigor­ous pardoning, it seems to forestall irresponsible pardoning-unless of course a failure to pardon at all, in the face of compelling circumstances, can be so characterized.

C. Optional Consultation Model

In twenty-three states, the constitution imposes no prior restrictions on the governor's pardon power, though some constitutions permit a degree of legislative regulation of the "manner of applying,"75 and some require the governor to report to the legislature about pardons granted after the fact. 76

73. Id. 74. See, e.g., Adam Liptak, To More Inmates, Life Term Means Dying Behind Bars, N.Y.

TIMES, Oct 2, 2005, http://www.nytimes.com/2005/10/02/national/02life. web.html?pagewanted= all&_r=O (describing the 1992 release of convicted murderer Reginald McFadden on recommen­dation of the Pennsylvania Board of Pardons as "the reason lifers no longer get pardons in Pennsylvania").

75. See, e.g., Cow. CONST. art. IV,§ 7 (governor pardons "subject to such regulation as may be prescribed by law relative to the manner of applying"); ILL. CONST. art. V, § 12 (same); ME. CONST. art. V, pt. 1, § 11 (same); Mo. CONST. art. IV,§ 7 (same); N.Y. CONST. art. IV,§ 4 (same); N.C. CoNST. art. IIL § 5(6) (same); WYO. CONST. art 4, § 5 (same). Some state constitu­tions give the legislature a broader authority to regulate the pardon power. See, e.g., IND. CONST.

art. 5, § 17 (governor may pardon "subject to such regulations as may be provided by law"); low A

CONST. art. IV, § 16 (same); KAN. CONST. art. I. § 7 (same); N.M. CONST. art. V. § 6 (same); WASH. CoNsT. art. III, § 9 (same).

76. See, e.g., CAL. CONST. art. V, § 8 (governor must report to legislature each pardon, stat~ ing the facts of the case and giving reasons for grant); CoLO. CoNST. art. IV, § 7 (governor must report to legislature "a transcript of the petition, all proceedings, and the reasons for his action"); INo. CONST. art. 5, § 17 (governor must report to legislature at next scheduled meeting); IowA CONST. art. IV, § 16 (governor must report to the legislature every two years on pardons issued and the reasons therefor); Kv. CoNST. § 77 (governor must file with legislature a statement of reasons with each pardon grant, which must be available to the public); Mo. CoNsT. art. II, § 20 (governor must report to the legislature each grant and reasons therefor); N.Y. CoNsT. art. IV, § 4 (governor must report annually on the particulars of each grant but not his reasons for granting them); VA. CoNsT. art. V, § 12 (governor must report annually to the legislature setting forth "the particulars of every case" of pardon granted, with reasons); Wis. CONST. art. V, § 6 (governor must communicate annually with legislature each case of clemency and the reasons); Wvo.

748 UNIVERSITY OF ST. THOMAS LAW JOURNAL [Vol. 9:3

In eighteen of these states, the legislature has attempted to impose a degree of discipline on the pardon process by authorizing an administrative agency to investigate pardon applicants, hold public hearings, notify concerned of­ficials and victims, and make public recommendations to the governor. 77

While the governor is not constitutionally required to avail himself of the assistance offered, in most cases he does. The Tennessee Constitution does not give the state legislature power to regulate the governor's pardon power, but it has asserted this power nonetheless, requiring the governor to keep a record of the reasons for each clemency grant and to "submit the same to the general assembly when requested.'"8 In California, the courts are the first stop for residents seeking pardon, with the parole board consti­tuting a second level review process.79

In almost every one of these "optional consultation" states, there is some provision for informing the public about who has applied for a par­don, either before or after the governor acts. Some states impose this notice obligation on pardon applicants themselves, requiring them to publish their applications in a newspaper and notify concerned officials and victims. 80 In this fashion, legislatures impose a degree of transparency and accountability on the pardon process even where the constitution does not. While courts have resisted arguments that these legislative restrictions are anything more

CoNsT. art. 4, § 5 (governor must report every two years to legislature on pardons granted, with the reasons for each one); N.J. STAT. ANN.§ 2A:l67-3.1 (2012) (governor must report annually to the legislature the particulars of each grant, with the reasons); TENN. CooE ANN. § 40-27-107 (2012) (governor must report to the legislature the reasons for each clemency grant "when re­quested"); W. VA. CoDE § 5-1-16 (2012) (governor required to report the particulars of every clemency grant to the legislature, with reasons for the grant). The states whose governors are not required to report to the legislature are Hawaii, Illinois, Mississippi, New Mexico, North Carolina, North Dakota, Oregon, South Dakota, and Vermont.

77. Of the states in this group, Illinois, Indiana, South Dakota, and Washington are required by law to hold public hearings on all pardon cases they intend to recommend to the governor and to invite participation by the district attorney and victim. See 730 ILL. CoMP. STAT. ANN. 5/3-3-13(b) (West 2012); IND. CODE§ 11-9-2-2(b) (2012); S.D. CODIFIED LAws § 24-14-3 (2012): WASH. REV. CODE § 9.94A.885(3) (2012).

78. TENN. CODE ANN. §§ 40-27-101, 40-27-107 (2012). The governor is also required to notify the attorney general and relevant district attorney before any grant of executive clemency is made public, and they in tum are required to notify the victim. Id.§ 40-27-110. The Tenne.ssee parole board conducts a review of every case. TENN. COMP. R. & REos. § I 100-0l-Ol-.16(1)(b)2, (c)l (2012).

79. The California pardon process. is unique in involving the courts in the pardon process. It begins with a recommendation from the court in the county of an individual's residence. It then proceeds to the parole board which reviews the case and makes a second recommendation to the governor. See CAL. PENAL CODE§§ 4852.06, 4852.19 (2012). Most of the pardons granted by Governor Jerry Brown to California residents in 2011-2012 were first considered by the Califor­nia courts, with those residing out of state filing their applications directly with the parole board. See Margaret Colgate Love, Op-Ed., Governor's Pardon Power Used Too Rarely, S.F. CHRON. Dec. 28, 2012, http://www.sfgate.com/opinion/openforum/article/Govemor-s-pardon-power-used­too-rarely-4153130.php#page-l.

80. See, e.g., WIS. STAT.§§ 304.09, 304.10 (2012) (applicant required to publish notice of application in county paper, or posted on courthouse door, deliver it to district attorney, judge, and victim).

2012] REINVIGORATING THE FEDERAL PARDON PROCESS 749

than simply an effort to be helpful to the governor, they do appear to en­courage governors to exercise their power responsibly.

Governors in these "optional consultation" states appear to have con­cluded that they are on politically firmer ground, and are likely to be more efficient in exercising their pardon power, if they rely voluntarily upon ex­perienced professionals even where they are not required to do so. Thus, for example, all of the 825 pardons granted by Governor Pat Quinn of Illinois between April 2009 and November 2012 were recommended to him by the Prisoner Review Board after hearing from each applicant at one of its regu­lar quarterly hearings. The governor of Iowa issues several dozen pardons annually, pursuant to recommendations he receives from his parole board, and the governors of Indiana and Washington consider granting a pardon only after a public hearing process that enables anyone who has a view about a case to express it. Almost all of the 144 grants issued by California Governor Jerry Brown in his first two years in office were first considered by the California courts and parole board. 81

There is good reason to abide by the process established by law since governors who issue pardons without doing so frequently find themselves in political hot water over ill-advised grants. For example, Governor Haley Barbour of Mississippi was pilloried in the press and by crime victims after he bypassed the regularly established review process in many of the par­dons granted at the conclusion of his term, or else disregarded the advice he got pursuant to that process. 82

The South Dakota legislature has been particularly creative in manag­ing the governor's pardon power since its constitntional role in the pardon process was eliminated in 1972. The forced deregulation of the pardon power in South Dakota meant that pardon applicants could petition the gov­ernor directly without going through the Board of Pardons and Paroles and that the governor was no longer required to report his pardons to the legisla­ture. Undaunted by this executive power grab, the South Dakota legislature proceeded to replicate the constitutional transparency and accountability safeguards lost in 1972 in a new statute. 83 Thus, in addition to petitioning the governor directly, people interested in obtaining a pardon may file a petition with the Board of Pardons and Paroles seeking its favorable recom­mendation; publish their petition in a newspaper of general circulation in the county where the crime was committed once a week for three weeks;84

and come before the Board for a public hearing in which the district attor-

81. See Love, supra note 79 and accompanying text. 82. See In re Hooker, 87 So. 3d 401, 403 (Miss. 2012) (noting that the Mississippi Attorney

General filed a civil action alleging that Governor Barbour's pardons during his last days in office violated the state constitution).

83. See S.D. ComFIED LAws ch. 24-14 (2012).

84. Id. § 24-14-4.

750 UNIVERSITY OF ST. THOMAS LAW JOURNAL [Vol. 9:3

ney, sentencing judge,85 and victim may all participate.86 The legislature cleverly made this alternative statutory route to obtaining a pardon more appealing to petitioners by authorizing courts to seal the record of convic­tion and the pardon itself. 87 Equally clever, it divided responsibility for ap­pointing the nine-member Board between the governor, the attorney general, and the state supreme court, thereby avoiding any suggestion of undue gubernatorial influence over Board recommendations. 88 The South Dakota Supreme Court confirmed in 2004 that sealing is available only for pardons vetted through this public process,89 and since then the governors of South Dakota have refused to grant a pardon except upon the Board's recommendation. The public pardon process turns out to be a very efficient one: between sixty and seventy people apply for a pardon each year, the Board recommends more than half of them to the governor, and the gover­nor customarily accepts the Board's recommendations. The entire process takes less than six months from beginning to end.

With the exception of South Dakota, however, the pardon power in the "optional consultation" states has, for the most part, ceased to play a relia­bly vital role in the justice system, primarily because it depends so heavily upon the personal predilections of the incumbent governor. Thus, for exam­ple, the immediate past governors of Maryland, Michigan, Virginia, and Wisconsin were enthusiastic about using their pardon power, but the incum­bents have been parsimonious in the extreme.9° Conversely, the current governors of Illinois and California have revitalized pardoning in their states after decades of neglect and abuse.91

While the sort of institutional support for pardoning represented by the "shared power" model does not guarantee a regular stream of pardon grants, it is far more likely to lead to productive pardoning than the personality­driven "consultation" model. Because "shared power" systems generally tend to function with greater transparency and accountability, they inspire public confidence and avoid the kind of scandal that has paralyzed the par-

85. Id. § 24-14-3. 86. Id. § 24-14-4.1. 87. Id.§24-14-11. 88. Id. § 24-13-1. 89. See Doe v. Nelson, 680 N.W.2d 302, 313 (S.D. 2004) (holding that the governor had no

authority to order the sealing of 279 pardons granted between 1995 and 2002 without consultation with the board). The history of the pardon power in South Dakota, including the involvement of the legislature, is reviewed in Eric R. Johnson, Doe v. Nelson: The Wrongful Assumption of Gu­bernatorial Plenary Authority Over the Pardoning Process, 50 S.D. L. REv. 156 (2005).

90. See Love, supra note 11. 91. See Chris Wetterich, Gov. Quinn Makes Dent in Clemency Backlog, ST. J.-REo., July 7,

2012, http://www. s j-r .com/top-stories/x537 697 5 30/Quinn-makes-dent-in-clemency-backlog (Gov­ernor Quinn spent his first three years in office dealing with a 2,500-case backlog of recommenda­tions from the state parole board); Love, supra note 79 (California Governor Jerry Brown pardons 144 in two years, reviving pardon process abused and neglected by his three predecessors); see also Love, supra note 11 (Illinois and California profiles).

2012] REINVIGORATING THE FEDERAL PARDON PROCESS 751

don power in jurisdictions where the power is subject to fewer constraints. The bottom line is that while constraints on the exercise of the pardon power do not guarantee its responsible and constructive use, they certainly seem conducive to that end.

III. RECOMMENDATIONS FOR REFORMING THE FEDERAL

p ARDON PROCESS

State pardoning procedures suggest ways in which the federal pardon process could be restored to its former healthy state so as to make it easier for the president to use his power in a constructive manner. The three char­acteristics that are keys to this restoration are:

• Authority: The process must be administered by individuals who are independent and authoritative, who have the confi­dence of the president, and who are given the necessary re­sources to carry out the president's pardoning agenda.

• Accountability: The process must be accessible and respon­sive to people of all walks of life, and account for the likeli­hood that many deserving pardon applicants will not have skilled counsel or well-connected supporters to advocate on their behalf.

• Transparency: The process must be guided by clear standards that are applied consistently, producing grants that are publicly defensible.

A. Authority

A degree of authority must be restored to the federal pardon process, whether or not it remains housed in the Justice Department. This benefits both the institution of the presidency and the justice system, as well as those who seek and deserve the forgiveness. The delegation of responsibility for making pardon recommendations during the Reagan Administration to a subordinate career civil servant in the Justice Department went hand-in­hand with a devaluation of pardon as a tool of justice, and produced a pros­ecutor-controlled pardon process that neither serves nor protects the presi­dent. That decision should be reversed.

The president must be able to rely on a process that serves his interests above all, one that functions independent of other actors in a justice system in which it is expected to play an integral role. The person or persons re­sponsible for administering such a system must have the confidence of the president, and the necessary resources to carry out the president's pardoning agenda. For example,

One simple and immediate way for the president to reinvigorate the pardons process is to choose a person of stature and energy­say, a federal judge-to steward his administration's pardon du­ties. At the same time, he can end the department's conflict of

752 UNIVERSITY OF ST. THOMAS LAW JOURNAL [Vol. 9:3

interest by replacing the pardons office with a new bipartisan commission under the White House's aegis, giving it ample re­sources and real independence. 92

Ideally, making pardon recommendations should remain a responsibil­ity of the attorney general, underscoring the relationship of pardon to the justice system on the one hand and to the political process on the other.

But it is essential that control of the process be removed from the dead hand of federal prosecutors who have come to view pardon as "an affront to federal efforts to fight crime."93 Establishing a panel of distinguished citi­zens to advise on pardon policy and make recommendations in particular cases would be one way to do this.94 Giving the courts responsibility for making pardon recommendations, as they do in California, would be an­other. 95 The first could be accomplished by unilateral presidential action, though the second would require congressional action.

B. Accountability

The president should publicly announce a pardoning policy and stan­dards for considering particular cases, and commit himself to abide by the recommendations of the attorney. general. If those recommendations are made public once a grant has been made, whether for or against pardon, a degree of accountability will have been restored to the process.

In addition, the pardon process must at least appear to operate fairly and regularly in order to command the kind of public confidence necessary to enable the president to pardon confidently. It cannot be seen to favor the wealthy, the famous, or the well-connected. It must be made accessible and responsive to all who apply, taking into account the likelihood that many deserving applicants will not have skilled counsel or well-connected sup­porters to advocate on their behalf.

Those responsible for administering the process should welcome appli­cants, and not penalize them for failing to make a full and polished presen­tation on their own behalf, or subject them to an investigative process that is burdensome and unwelcoming. While it is perfectly reasonable to inquire into a pardon applicant's background, to ensnre that the president has all the information he needs to make a decision to bestow the sort of mark of favor represented by a pardon, it is not reasonable or fair to disadvantage appli-

92. The Quality of Mercy, Strained, supra note 49. 93. Id.; see also Morison, supra note 21. 94. See Rachel E. Barkow, The Politics of Forgiveness: Reconceptualizing Clemency, 21

FED. SENT'o REP. 153, 157 (2009) (stating that administrative clemency boards can "take the heat for decisions that tum out badly"); Kobil, supra note 14, at 622-23 (urging the president to "look for advice from either a body of professionals charged with the sole task of reviewing clemency requests, or to a group of volunteers appointed because of their expertise"). A catalogue of past uses of specialized clemency panels to handle large-scale amnesties in the federal system can be found at Love, supra note 2, at 1173-74 n.16.

95. See Love, supra note 79 and accompanying text.

2012] REINVIGORATING THE FEDERAL PARDONPROCESS 753

cants without education and resources by subjecting them to extensive in­quiries even before the customary FBI investigation has been authorized.

As to prisoner petitions, the federal courts should permit federal de­fenders to represent their former clients in clemency proceedings. In recent years it has been possible to evade and manipulate the federal pardon pro­cess precisely because the process was not an open one that gave a fair hearing to all. It would be sensible to restore efficiency to the process so that applicants did not have to wait years for a decision. It would also be sensible to apply a presumption in favor of pardon in cases where the appli­cant had a record of law-abiding conduct and a sensible reason for seeking a pardon.

C. Transparency

The standards that now guide the Justice Department in deciding whether to recommend that the president grant a pardon or commute a sen­tence are set forth on the pardon attorney's website, and are generally clear and unexceptionable. Circumstances that might warrant sentence commuta­tions are: "disparity or undue severity of sentence, critical illness or old age, and meritorious service rendered to the government by the petitioner. "96

The inquiry for those seeking post-sentence pardon will look at post-con­viction conduct, character, and reputation; seriousness and relative recent­ness of the offense; acceptance of responsibility, remorse, and atonement; need for relief; and official recommendations and reports.97

While these criteria appear reasonable enough on paper, in practice their very subjectivity invites abuse. Because the process itself is not open for public inspection, the only way to monitor how the criteria are applied in practice is to study its results. Until recently, the only results that were publicly available were cases in which a pardon was granted. However, the names of those denied pardon are now also available through the Freedom of Information Act. 98 An investigation conducted by ProPublica compared cases in which pardon was granted with cases in which pardon was denied during the administration of George W. Bush, and concluded that the pub­lished criteria were not applied consistently to cases with similar characteristics. 99

The key to restoring a degree of transparency in the pardon process is for the Justice Department to return to the practice, abandoned in FDR's

96. Standards for Considering Pardon Petitions, U.S. DEP'T OF JUSTICE,§ 1-2.113 (Sept. 1997), http://www.justice.gov/usao/eousa/foia_readingJoom/usam/title l/2mdoj.htm# 1-2.110.

97. Id.§ 1-2.112. 98. See Lardner v. Dep't of Justice, 638 F. Supp. 2d 14 (D.D.C. 2009), ajj'd 398 F. App'x

609 (D.C. Cir. 2010) (Justice Department obliged to release existing lists of the names of persons who have been denied executive clemency by the President to anyone who requests such records pursuant to the Freedom of Information Act).

99. See Linzer & LaFleur, supra note 39.

754 UNIVERSITY OF ST. THOMAS LAW JOURNAL [Vol. 9:3

Administration, of publishing an annual report explaining the president's pardon policy and practice, and setting forth the reasons for each grant. While publication of pardon applications and public hearings would also go some way to establishing the necessary transparency, they would also bur­den applicants and discourage pardons in controversial cases. Defending a grant after the fact best balances considerations of efficiency with the need to ensure that subjective standards are being applied fairly. The requirement in many state constitutions of providing an annual report to the legislature on pardon grants, including the reasons for each one, could be transposed into the federal process to considerable advantage.

It is true that the president could not be compelled to adopt any of these reforms, short of an amendment to the Constitution. But there is no reason why the president should not impose a degree of discipline on the way he uses his power, even if the other branches of government could not require him to do so. Congress might encourage the president to issue grants through a regular accountable process (as the South Dakota legisla­ture has encouraged the governor) by offering a premium legal effect for a pardon obtained through a more functional process (perhaps a vacatur of the conviction record). It might also create a process by which the federal courts could funnel meritorious cases to the president, accompanied by a recommendation for pardon, like the "certificate of rehabilitation" process that constitutes the first step in California's pardon process.

CONCLUSION

There is not a single state where the governor is as completely un­restricted and unprotected in pardoning as the president. There is not a sin­gle state whose pardon process is as poorly conceived and managed as the federal government's, which has failed to evolve with the changing needs of the presidency and the justice system over the past one hundred years. The Justice Department's program is hard to understand and even harder to penetrate, operating in secret and accountable to no one. Three successive presidents have been willing to live with this dysfunction, perhaps because they did not regard pardoning as a duty of office, and perhaps because they perceived its risks to far outweigh its rewards. But inaction as a strategy has proved to have risks of its own, as both Presidents Clinton and Bush could attest. Without a plan for using the power, and without a reliable system for carrying it out, pardoning will remain a dangerous activity for the president, and Hamilton's "benign prerogative" consigned to a useless vestigial appendage.

State pardon systems suggest ways that federal pardoning could regain its moral force and be reinvigorated, through the articulation of a purposeful pardoning philosophy and a strategy for putting it into practice, including: clear standards, a transparent investigative process, the participation of rep-

2012] REINVIGORATING THE FEDERAL PARDON PROCESS 755

utable advisors, and disclosure of the reasons for particular grants. While the president could not constitutionally be compelled to adopt such provi­sions, he could do so voluntarily by adapting elements of functional state systems to the federal context. In the end, it is important to restore "moral force" to the pardon process for the institution of the presidency, the presi­dent's personal reputation, and the integrity of the justice system itself.

Chart# 3 - CHARACTERISTICS OF PARDON AUTHORITIES Note: The information in this chart is summarized in charts in Chapter 7 ("Models for the Administration of the Pardon Power," and "Pardoning Practices in the States.") In states where pardoning is characterized as "frequent and regular," there is a regular pardon process with a high percentage of applications granted (30% or more); where pardoning is "sparing," there is a regular process but a low grant rate; where pardons are infrequent, uneven, or rare, the chart will generally indicate numbers.

State Type Of Administration Type Of Process Eligibility Effect Frequency of Alternative

Requirements Grants Restoration AL Independent board appointed by Public hearings at regular Following completion Only as specified in Frequent and None.

governor exercises pardon power, intervals; 30 days' notice must of sentence, incl. fine, grant (full pardons Regular: More than except governor has authority in be given to the attorney no pending charges, or rare); predicate 500 pardons granted capital cases. general, prosecutor, sentencing after 3 years unless expressly annually;2000+ Ala. Const. amend. 38 (amending judge, chief of police and the "permanent parole" provided. Ala. Code restoration of rights. Art. V § 124); Ala. Code§§ 15-22-20 county sheriff, and the victim. unless pardon sought § 15-22-36. through 15-22-40. The board must Ala. Code§ 15-22-231. Each for actual innocence. make a full annual report to the board member gives reasons Ala. Code§ 15-22-governor.§ 15-22-24(b). for vote. Process takes about 36(c). Federal and out-

one year. of-state offenders eligible.

AK Governor decides, parole board must No formal regulations, no Parole board staff must Conviction set aside Rare: Only three Judicial set aside after be consulted but advice not binding. public hearing. Parole board find a person eligible to may not serve as pardons since 1995. deferred sentencing. Alaska Const. art. III, § 21; Alaska staff investigates,. consults with apply on merits. predicate or be used Alaska Stat. § Stat. § 33.20.080. DA and court, prepares by licensing board. 12.55.085 et seq.

confidential recommendation to governor. Alaska Stat. § 33.20.080.

AZ Governor decides, may not act Board meets monthly; must Any Arizona felony Pardon relieves Infrequent: Pardons Judicial set-aside for without affirmative clemency board publish application, hold public offender. Ariz. Rev. legal consequences, increasingly rare no~-Serious offenders; recommendation. Ariz. Const. art. V, hearing, publish Stat. § 31-402. but conviction must since 1990; Gov. court restores frrearms. § 5; Ariz. Rev. Stat.§ 31-402(A). recommendation to governor still be reported and Brewer has issued no Ariz. Rev. Stat. §§ 13-Governor must publish reasons for with reasons. Ariz. Rev. Stat. is given predicate pardons. 905 through 13-907. each grant, and report regularly to §§ 31-401, 31-402. effect. 68 Ariz. Op. legislature. Ariz. Rev. Stat.§§ 31- Att'y Gen. 17. 445, -446.

Margaret Colgate Love, NACDL Restoration of Rights Resource Project, January 2014

AR Governor decides, parole board No public hearing. Parole board No restrictions. Relieves legal Frequent and Sealing for first must be consulted but advice not must give 30 days' prior notice Federal and out-of- disabilities, grounds Regular: About JOO offenders and binding. Ark. Const. art. VI, § 18; of favorable recommendation, state offenders are for expungement in grants each year, probationers. Ark. Ark. Code Ann. § 16-93-204(a). and governor must give 30 days' eligible to apply. Ark. most cases; firearms 300-500 applications Code Ann. § 16-93-Governor must report to legislature public notice (including Const. art. VI, § 18; separately restored. annually. 1201 on all grants with reasons. Ark. statement of reasons) to Ark. Code Ann. § 16- No predicate or et seq.;§ 5-4-311. Const. art. VI,§ 18. prosecutor and victim. Ark. Code 93-204. enhancement. Ark.

Ann.§§ 5-4-607(d)(l);l6-93- Code Ann. §§ 16-93-204(c)(l); 16-93-207(a). 301 to 16-93-303.

CA Governor decides, parole board may No provision for public hearing. 10 years after Described as "an Frequent and Set-aside for be consulted. For recidivists, board Certificate of rehabilitation from completion of honor," restores civil regular: Very few probationers; must be consulted, majority of court (PD representation), or sentence. rights and removes pardons between certificate of relief. supreme justices must recommend .. direct application to board if occupational bars, but 1990 and 2011, but Cal. Penal Code § Cal. Const. art. V, § 8; Cal. Penal §§ non-resident or misdemeanant. no expungement; Jerry Brown has 1203.4(a). 4800, 4812-4813, 4852.16. Cal. Penal Code § 4852 et seq. guns separately granted 336 pardons Governor report grants to restored. Maybe through December legislature, including facts and used as predicate. 2013. reasons for grants. Cal. Const. art. Cal. Penal Code §§ V, § 8; Cal. Penal§ 4852.16. 4852.15, 4853.

co Governor decides ("subject to such No hearing, governor as a matter No eligibility Restores civil rights Infrequent: Pardons Drug convictions regulation as may be prescribed by of policy seeks views of restrictions. and firearms privileges infrequent since may be sealed after law relative to the manner of corrections authorities, DA and assists with licensing 1990s, although waiting periods from applying"). Colo. Const. art. IV,§ 7. judge. Colo. Rev. Stat. §§ 16-17- and employment, Governor Bill Ritter 3 to 10 yrs. Colo. Non-statutory advisory scheme; 101; 16-17-102. recognizes meritorious issued almost 30 Rev. Stat. § 24-72-Governor sends legislature "a achievement and pardons at the end of 308.6. transcript of the petition, all rewards exceptional his term. proceedings, and the reasons for his citizenship. action." Colo. Const. art. IV, § 7.

Margaret Colgate Love, NACDL Restoration of Rights Resource Project, January 2014

State Type Of Administration Type Of Process Eligibility

Effect Frequency of Alternative

Requirements Grants Restoration CT Independent board appointed by Public hearings at regular 5 years following Relieves all legal Frequent and None; law prohibits

governor exercises pardon power. intervals at which applicant completion of disabilities, court may Regular: About 400 discrimination in Conn. Gen. Stat.§ 54-124a(f). must be present, with reasons sentence; "erase" conviction; pardon grants licensing and

for denial given. Board may misdemeanants may "erased;" may be annually, including employment. Conn. dispense with hearing in apply. Provisional predicate unless records provisional pardons Gen. Stat. § 46a-80. certain classes of cases. pardon may be destroyed. Provisional (about 30% of Process takes about one year. sought any time after pardon relieves one Or applicants get Conn. Gen. Stat. § 54- sentencing. Corut. more "barriers and hearing, most of 124a(e)--{k). Gen. Stat. § 54- forfeitures." Conn. Gen. those granted); more

130e(b). Stat.§ 54-142a(d). than half to misdemeanants.

DE Governor decides, may not act Pardon board, chaired by 3-5 years following Relieves disabilities ex. Frequent and Expungement for without affirmative clemency lieutenant governor, public completion of constitutional prohibition Regular: Over 200 deferred adjudication board reconunendation. Del. Const. hearings at regular intervals, sentence, absent against holding state pardons annually in and diversion, art Vil, § I. Governor must report recommendations and reasons hardship; office or employment. recent years, (about pardoned periodically to legislature. Id announced. Favorable misdemeanants may May be used as predicate 75% of applications misdemeanor

recommendations sent to apply. and to enhance received are granted). convictions. Del. governor. Process takes about subsequent sentence. Del. Applications have Code Ann. tit. six months. Del. Const. art. Code. Ann. tit. 11, § tripled since 2005. 11, §§ 4371-4375. Vil; Del. Code. Ann. tit.II,§ 4364. 4362.

DC President decides under a non- Informal process described in 5 years after sentence Relieves legal disabilities Rare: Only a handful Expungement of statutory advisory scheme. U.S. 28 C.F.R. Part I and United or release from and signifies of DC offenders have minor D.C. Code Const. art II, § 2. States Attorneys Manual. No confinement. 28 rehabilitation and good been pardoned by the offenses. D.C. Code

time limit, and applications C.F.R. Part I. character. May be used as president since 1980. § 16-801 et seq. may remain pending for years. predicate. 1995 WL

861618 (1995).

Margaret Colgate Love, NACDL Restoration of Rights Resource Project, January 2014

FL Governor decides with Public hearing for pardon, and Eligibility immediately ROR restores vote and Sparing: 20-40 pardon Sealing and concurrence of two cabinet for restoration of rights for many following completion other basic civil rights. grants annually between expungement for officials. The governor and offenders (offenses specified in of sentence. Out-of- (R. 4F) .. Pardon 2006 and 2010; 20-30 misdemeanors and three cabinet officials act as clemency rules). Hearings are state and federal "unconditionally releases frrearms restoration minor felonies. Fla. pardon board. Fla. Const. art. held on a quarterly basis, DA offenders eligible for the person from grants annually (about Stat. ch. IV, §8 (a); Fla. Stat. ch. 940.01, and victims notified. Separate ROR but not pardon punishment and forgives halfof applications). 943.0585(!)(b)(l ); 940.05. Governor reports to process for firearms restoration. (R. 9D). guilt." Id. Restores Restorations of rights 943.0585. Deferred legislature each restoration and frrearms rights. Id at 4A. number in thousands. adjudication. Fla. pardon. Id. at 940.01. May be used as Stat. ch. 948.01(2).

predicate.

GA Independent board appointed Paper review, no public hearing. 5 years following Relieves all legal Frequent and Regular: Deferred by governor exercises pardon Board decides cases by majority discharge; out-of state disabilities except return Between 300-400 adjudication arid power. Ga. Const. art. IV, § 2, vote, and in a written opinion. offenses eligible for to public office. May be pardons w/o gun rights; 'exoneration' for first para. II. Board must report Ga. Code Ann. §§ 42-9-42(a) restoration of rights used as predicate. Ga. 100 pardons w/ gun offenders. Ga. Code. annually to legislature, the and (b); 42-9-43. but not pardon. Drug Code Ann. § 42-9-54; rights, several hundred Ann. § 42-8-60 et Attorney General and the and violent offenses Morris v. Hartsfield, 197 "restoration of rights" seq. Governor. Ga. Code Ann. § ineligible to apply by S.E. 251(Ga.1938). (approx. 35% of 42-9-19. Board policy. applicants); immigration

pardons.

HI Governor decides, parole board No public hearing; parole boards No eligibility A pardon will state that Sparing: Gov. Lingle Deferred may be consulted. Haw. Const., interviews applicant, requirements. the person has been granted 132 pardons in 8 adjudication and art. V, § 5; Haw. Rev. Stat.§ recommends to AG's office, rehabilitated, relieves yrs., 55 in her last year expungement; state 353-72. which conducts independent legal disabilities and (2010). About 50 FEP laws includes

investigation and makes prohibitions. No applications filed per conviction. Haw. recommendation to governor. expungement, may be year. Rev. Stat. §§ 853-1; Process takes 8 months. Haw. used as predicate. Haw. 831-3. Rev. Stat. § 353-72. Rev. Stat. §§ 353-62,

353-72.

ID Independent board appointed Public hearing at regular Three years for non- Relieves certain legal Frequent and Regular: Deferred by governor decides all but intervals; reasons for each action violent offenses, five disabilities, including In recent years 30-40 adjudication but no violent and drug offenses, must be filed with Secretary of years for violent. Idaho frrearms. Idaho Code § grants annually, about expungement; ex. which must be approved by State. Idaho Code§§ 20-210, 20- Code§ 18-310(3). 18-310. half of applications filed. for some juvenile governor. Idaho Const. art. IV, 240; see IDAPA § 50.01.01. offenses. Idaho § 7; Idaho Code Ann. §§ 20- Code§ 19-2601 et 210, 20-240. seq.

Margaret Colgate Love, NACDL Restoration of Rights Resource Project, January 2014

State Type Of Administration Type Of Process Eligibility

Effect Frequency of Grants Alternative

Requirements Restoration IL Governor decides, although 'the Public hearings at regular No eligibility Relieves legal disabilities; Frequent and Regular: Judicial certificates;

manner ofapplying therefore intervals before the requirements. expungement may be Between 2009 and sealing for certain may be regulated by law." Ill. Prisoner Review Board, authorized by the grant. December 2013 Gov. Quinn misdemeanors and Const. art. V, § 12. Prisoner which makes confidential People v. Glisson, granted 1032 pardons, about minor felonies. 730 Ill. Review Board authorized to recommendations to 358 N.E.2d 35 (Ill. App. half of those that applied. Comp. Stat. 5/5-5.5-5 provide advice to governor. 730 Governor. 730 Ill. Comp. Ct. 1976). Board hears 800 et seq.; 20 Ill. Comp. Ill. Comp. Stat, Ann. 5/3-3- Stat. 5/3-3-1 et seq. applications each year. Stat. 2630/5 et seq. 1(a)(3).

IN Governor decides, "subject to Public hearing; parole Recent governors Pardon wipes out both the Sparing: Gov. Daniels: Expungement for most such regulations as may be board notifies victim, have required a 5M punishment and the guilt, granted 62 pardons during offenses; sealing for provided by law." Ind. Const. court, and DA; conducts year waiting period basis for expungement. his eight years in office, misdemeanors, Class art. 5, § 17. Parole board makes investigation and holds and evidence of Kelley v. State, 185 N.E. acting favorably on about D felonies, and advisory reconunendations to hearing at which rehabilitation. 15 453 (Ind. 1933). See also half of those recommended nonconviction records. governor. Ind. Const. art. 5, § petitioner and other years for firearms State v. Bergman, 558 by board. Ind. Code § 35-38-9; 17; Ind. Code§§ 11-9-2-1 to II- interested parties are may restoration. N.E.2d 1111 (Ind. Ct. App. § 10-13-3-27(a). 9-2-3. Governor reports to present their position. Ind. 1990); Ind. Code§ 35-47-legislature. Ind. Const. art. 5, § Code § 11-9 et. seq. 2-20(a); § 11-9-2-4. 17.

IA Governor decides "subject to Paper review, no public 10 years for Pardon relieves of all legal Frequent and Regular: Restoration of gun such regulations as may be hearing for pardon and pardon, 5 years for disabilities (incl. public Average of35 full pardons rights by governor; provided by law." Iowa Const. restoration of rights. firearms; no employment disabilities). each year between 2005 and Deferred adjudication art. IV, § 16. Parole board Separate firearms waiting period for See Slater v. Olson, 299 2011 (fewer since 2009), and expungement for authorized to provide advice. restoration procedure. restoration of N.W. 879 (Iowa 1941). with another 30-60 grants to some first offenders. Iowa Code§§ 914.1-914.7. , Iowa Code§ 914 et seq. rights. Out-of-state Restoration ofrights restore civil rights and Iowa Code§§ 907.3; Governor reports to legislature and federal eligible restores right to vote and firearms privileges 914.7 on pardons issued and reasons. for ROR. Iowa hold public office, may Iowa Const. art. IV, § 16. Code§ 914.2. also restore firearms rights.

Margaret Colgate Love, NACDL Restoration of Rights Resource Project, January 2014

KS Governor decides, subject to Paper review. Applicant No eligibility Pardon removes Rare: Pardons very rare, Expungement for regulations and restrictions by must publish a copy of the requirements, except that disabilities imposed primarily for miscarriage of mauy felony law. Kan. Const. art. I, § 7. The application in a newspaper only Kansas state under state law, but justice offenses. Kan. Stat. governor required to seek the in county of conviction at convictions are eligible to does not expunge Ann.§ 21-4619 et advice of the prisoner review least 30 days before graut be pardoned or commuted. conviction or lift bar to seq. board, though not bound to or pardon is void. Kan. Stat. Ann. § 22- service as a law follow it, Kau. Stat. Ann. § 22- Applicaut must also 3701. enforcement officer. 3701(4). Reports to legislature provide notice of Cf Kan. Att 'y Gen. on each pardon application but application to DA, judge Op. No. 85-165 (1985). need not give reasons. Kan. aud victim. Kan. Stat. Ann. May be used as Stat. Ann. § 22-3703. § 22-3701 et seq. predicate.

KY Governor decides, parole board No public hearing. Pardon For restoration of rights, Restoration of Rare: Pardons during tenn Misdemeanor may be consulted. Ky. Const. § applications sent directly to expiration of sentence citizenship restores a rare; ROR frequent expungement. Ky. 77. Governor may also restore the governor with reasons with no pending charges. person's right to vote Rev. Stat. Ann. § rights of citizenship, office. Id. for seeking relief and For pardon 7-year waiting aud eligibility for jury 431.078. §§ 145, 150. Governor reports letters of recommendation. period. Federal and out- service. A full pardon to legislature reasons for each Simplified ROR process of-state offenders eligible relieves additional legal graut. Id. § 77. administered by DOC. Ky. for restoration of rights. disabilities. May be

Rev. Stat. Ann. § 439 et Arnett v. Stumbo, 153 used as predicate. Ky. seq. S.W.2d 889 (1941). Const. § 145(1).

LA "Upon favorable Regular public hearings, Completion of sentence, Full pardon restores to Infrequent/uneven: In 4 Deferred recommendation of the Board of approval by four of five plus payment of costs. La. "status of innocence," years, Gov. Jindal issued 36 adjudication aud Pardons," the Governor may board members; DA aud Const. art. IV,§ 5(E)(l); conviction cannot be pardons and commuted one expungement. La. pardon "those convicted of victim notified by board, La. Rev. Stat. Ann. § used to enhance sentence in his first term. Const. art. IV, § offenses against the state." La. aud by applicant through 15:572(A); see Op. La. punishment. State v. Previous governors granted 5(E)(l); La. Rev. Const. art. IV,§ 5(E)(l); La. publication of application Att'y Gen. No. 04-0080 Riser, 30,201 (La. App. 331 (in 4 years) aud 476 (in Stat. Ann.§ Rev. Stat. Ann. § 15:572(A). in newspaper. La. Const. (2005). 2 Cir. 12/12/97). 8 years). Edwin Edwards 15:572(8)(1).

art. IV,§ 5(E)(2); La. Rev. granted over 3,000 in 16 Stat. Ann. 15:572.1. years.

Margaret Colgate Love, NACDL Restoration of Rights Resource Project, January 2014

State Type Of Administration Type Of Process Eligibility

Effect Frequency of Grants Alternative

Requirements Restoration ME Governor decides, subject to Public hearings at regular intervals; 5 years following Relieves legal Infrequent/uneven: As No other relief

regulation "relative to the manner board makes confidential completion of sentence. disabilities. Me. of April 2012, Gov. provided ofapplying." Non-statutory recommendations to governor. Rev. Stat. Ann. Lepage had granted no advisory scheme. Me. Const. art. Parole board conducts tit. 16, §§ 611-622. pardons. Between V, pt. 1, § 11. investigation. Applicant notifies 2002 and 2010,

DA, publishes notice of hearing in Governor Baldacci a newspaper 4 weeks beforehand. granted 131 pardons, Me. Rev. Stat. Ann. tit. 34-A, § 51 in his final year. In 5210(4); tit. 15, § 2161. past about 50 hearings

each year, 25% result in pardon.

MD Governor decides, parole board Paper review by Parole Felony convictions must Pardon lifts all Sparing: Governor Probation before may be consulted. Md. Const. art. Commission, whose have 10 crime-free years disabilities and O'Malley granted 105 judgment and II, § 20; Md. Code Ann., recommendations to the governor to be eligible (seven if penalties imposed. pardons in his frrst six expungement. Md. Correctional Services § 7- are not binding. Md. Code Ann. § Parole Commission Firearms privileges years in office, Code Ann., Crim. 206(3)(ii). Constitution requires 7-206(3)(ii). waiver granted); must be specifically Ehrlich (2003-2007) Proc.§ 6-220(b)(l); governor to publish notice of misdemeanants must restored in pardon granted 228 pardons. § 10-105(a)(8). intention to grant, and to report have 5 crimeM :free years. document. out of a total of 439 grants to legislature with reasons. 20wyear wait for crimes applications. Md. Const. art. II, § 20. of violence and drugs (or

15 if waiver granted).

Margaret Colgate Love, NACDL Restoration of Rights Resource Project, January 2014

MA Governor may not act without Petitions filed with Parole Board, 15 years after The governor, upon Rare: Pardons Sealing affirmative recommendation of which recommends to Governor conviction or release granting a pardon, orders infrequent since early available for Governor's Council. Mass. Const. and Council. Mass. Gen. Laws from prison for the records of a state 1990s, none at all felonies after 5 pt. 2, ch. II, sec. I, art. VIII. ch. 127, § 152 (2011). Public felonies, 10 years for conviction sealed; under Govs. Patrick years, Governor must report to hearing, referral to AG, DA, misdemeanors. thereafter, the records of and Romney. misdemeanors legislature annually with a list of court, notice to victim. 120 Mass. Governor's Executive the conviction may not after 10. Mass. pardons granted, but not required Code Regs. 902.02-.12 (2011). Clemency Guidelines be accessed by the Gen. Laws ch. to give reasons. Mass. Gen. Laws Public report to governor and (April 22, 2003) at 2. ·public, and existence 276, § lOOA. ch. 127, § 152 (2011). Council. Mass. Gen. Laws ch. may be denied. Mass.

127, § 154 (2011). Gen. Laws ch. 127, § 152 (2011). May be used as predicate.

MI Governor decides, parole board All applications referred to the No eligibility criteria Pardon "releases the Rare: Post-sentence First offender must be consulted but advice not board; if board decides to hold punishment and blots pardons rare in recent set-aside; binding. Mich. Const. Art. 5, § hearing, relevant officials must be out of existence the years (only 34 pardons probation 14; Mich. Comp. Laws §§ notified. Recommendation of the guilt, so that in the eye between 1969 and before 791.243, 791.244. Must inform board is a matter of public record. of the law the offender is 2006). Gov. Granholm judgment for the legislature annually of Mich. Comp. Laws§ 791.244. as innocent as if he had granted 20 pardons, drug offenders. pardons and reasons. Const. Art. never committed the 100 commutations; as Mich. Comp. 5, § 14. offense." People v. Van of September 2013 her Laws§

Heck, 651N.W.2d174, successor had granted 780.6211; § 179 (Mich. App. 2002). , no pardons. 333.7411.

MN Governor and high officials Commissioner of corrections For "pardon A "pardon Sparing: 10-25 Common law (attorney general, chief justice) screens applications, decides extraordinary," 5 crime- extraordinary" restores pardons each year, and (narrow) act as board exercising power. which cases should be heard by free years from final all rights, including about halfofthose statutory Minn. Const. art. V, § 7. Board board. Minn. Stat.§ 638.07. discharge for firearms rights, and has whose cases are heard. expungement. required to report to legislature by Public hearing, notice to officials nonviolent crimes, or "the effect of setting Many more apply than Minn. Stat. § February 15 each year. Minn. and victim, decision announced at I 0 crime-free years aside and nullifying the get hearings. 609A. Stat. § 638.075. conclusion of hearing. from final discharge for coriviction," so that it

"violent" offenses. need not be disclosed. Minn. Stat. §638.02. Minn. Stat. § 638.02.

Does not seal or expunge the record, may be used as predicate.

Margaret Colgate Love, NACDL Restoration of Rights Resource Project, January 2014

State Type Of Administration Type Of Process Eligibility

Effect Frequency of Grants Alternative

Requirements Restoration

MS Governor decides, parole board may Applicants publish notice 30 days Seven years Pardon restores civil Infrequent/uneven First misdemeanor and be consulted. Miss. Const. art. 5, § before applying, stating reasons. since rights and removes No regular process. a few minor felony 124. Miss. Code Ann.§ 47-7-5(3). Miss. Const. art. 5, § 124. Facially completion of employment Almost 200 post- convictions may be

meritorious cases sent to the parole sentence by disabilities, gun sentence pardons at expunged. Miss. Code board, which investigates and governor's restrictions, end of Barbour's term Ann.§ 99-19-71. ho Ids hearing. Board reports to office policy. obligation to register. considered irregular Governor and legislature annually. No expungement. and unusual. Miss. Code Ann.§ 47-7-15.

MO Governor grants reprieves and Applications referred to board for If still in jail, Pardon "obliterates" Infrequent: Very few Bad check convictions, pardons, subject to rules and investigation and recommendation. apply at any conviction, relieves in recent years, some public order regulations prescribed for '1he See Mo. Rev. Stat. § 217.800.2. time. If out, of all obligations although the number misdemeanors, and manner of applying." Mo. Const. art. No provision for public hearing. eligible three associated with the ofapplications has frrst~time minor IV, § 7. Parole board must be Board meetings on clemency years from conviction (including increased alcohol offenses may consulted, but advice not binding. matters may be closed to public. discharge. obligation to register dramatically, in part be expunged. Mo. Rev. Mo. Rev. Stat.§ 217.800.2. Mo. Rev. Stat. § 217.670.5. as sex offender). No because of extension Stat.§§ 610.140, §

predicate effect. No offrrearms restrictions 577.054(1). Sealing of expungement. to long guns in 2008. some cases sentenced

to probation. § 311.326.

MT Governor may not act without Board may hold a hearing in No eligibility Pardon removes "all Infrequent: No Deferred adjudication affirmative recommendation of board meritorious cases where all sides criteria. legal consequences" pardons granted since and expungement. of pardons and paroles, except in are ·heard and a record made, but is of conviction, 2009. Between 2005 Mont. Code. Ann. § capital cases. Mont. Const. art. VI, § not required to do so. See Mont. including licensing and 2009, 22 46-18-201. 12; Mont. Code Ann. §§ 46-23- Code. Ann. § 46-23-302. bars, and is grounds individuals pardoned. 104(1 ), 46-23-301(3). Must report for expungement. grants to legislature including reasons. Mont. Code Ann. § 46-23-316.

Margaret Colgate Love, NA CDL Restoration of Rights Resource Project, January 2014

NE Governor and high officials · Public hearings held quarterly, Informal rule of Restores civil rights Frequent and Regular: Set-aside for (secretary of state and attorney victims notified. No reasons given. 10 years other than vote; gun Over 100 pardons granted probationers, general) act as board of pardon Board of Parole may advise the following rights must be separately each year between 2002 no sealing. which exercises power. Neb. Board of Pardon "on the merits of completion of restored. Neb. Rev. Stat. and 2013, plus reprieves Const. art. IV, § 13. Governor any application ... but such advice sentence for § 83-1,130. from driver's license chairs board. shall not be binding on them." felonies, 3 years revocations. About 70% of

Neb. Const. art. IV,§ 13. Process for misdemeanors. grantees also regained takes about one year. frrearms privileges. 50% of

applicants are granted, 1/3 misdemeanants.

NV Governor and high officials Public hearings at regular intervals, Variable, between Removes all disabilities, Frequent and Regular: Sealing for (justices of state supreme court, at which applicant must attend; ex. five and twelve including gun disabilities An average of20 grants most and attorney general) act as board non-violent first offenders may be years from release and licensing bars, but each year since 2005, convictions exercising power. Nev. Const. art. considered on a paper record. from prison or does not "erase about half of those that after eligibility 5, § 14. Governor must report to County attorney, court and victim discharge from conviction" and apply. period of7-15 the legislature at the beginning of notified 30 days before hearing. parole. Waivable licensing boards may years. each session every clemency action Decision by majority (must include with consent of a condition licensure on (no reasons necessary). Nev. governor). One-year process. Nev. board member. finding of good moral Const. art. 5, § 13. Rev. Stat.§§ 213.010, 213.020. Nev. Admin. character. May serve as

Code§ 213.065. predicate. Nev. Rev. Stat. § 213.090.

NH Governor acts upon the advice of Notice to state's attorney. N.H. Persons eligible A pardon eliminates all Rare: The Attorney Annulment the Executive Council. N.H. Const. Rev. Stat. Ann. § 4.21. Hearing at for "annulment" consequences of General's office receives available for pt. 2, art. 52. Governor direction of Governor. N.H. Rev. under N.H. Rev. conviction, but it does about 25 applications for most felony traditionally will not act without Stat. Ann. § 4.28. Stat. Ann. § 651 :5 not expunge record. Doe clemency per year, but convictions. majority recommendation from will generally not v. State, 328 A.2d 784 only two pardons and two N.H. Rev. Stat. Council. be considered for (N.H. 1974). sentence commutations Ann.§ 651:5.

a pardon. since 1996.

NJ Governor decides, parole board The Governor may refer No eligibility Restores rights and make Infrequent: Recent First offender may be consulted. N.J. Const. art. applications for pardon to the criteria. eligible for governors have granted set-aside. N.J. V, § 2, 1f 1. Governor must report Parole Board for recommendation. expungement. In the relatively few pardons, and Stat. Ann. §§ annually to the legislature the N.J. Stat. Ann.§ 2A:l67-7, but the Matter of the Petition of generally only at end of 2C: 52-1-32. particulars of each grant, with the recommendation does not bind L.B., 848 A.2d 899, 900 their terms. reasons. N.J. Stat. Ann.§ 2A:l67- Governor. (N.J. Super. 2004). 3.1.

Margaret Colgate Love, NACDL Restoration of Rights Resource Project, January 2014

State Type Of Administration Type Of Process Eligibility

Effect Frequency of Grants Alternative

Requirements Restoration

NM Governor decides, ("[s]ubject to Governor may send application to Completion of Restores rights of Infrequent: Pardons Expungement such regulations as may be parole board for investigation. sentence (by citizenship and relieves granted only in for first prescribed by law"). N.M. Const. N.M. Stat. Ann.§ 31-21-17. Board statute). Gov. other legal disabilities "extraordinary offender drug art. V, § 6. Parole board may be seeks recommendation from guidelines require under state law, but does circumstances." Relatively possession; consulted. N.M. Stat. Ann.§ 31- attorney general, judge, lengthy waiting not expunge records, or infrequent (Gov. Martinez deferred 21-17. prosecuting attorney, and/or the periods depending preclude use of has issued no pardons; adjudication

corrections secretary. The victim on offense; no conviction as predicate Gov. Richardson issued 80 but conviction must be notified. first degree offense and to enhance pardons in 10 years). remains on

felonies, DV or subsequent sentence. record. N .M. sex offenses, or Stat. Ann § 30-multiple 31-28. convictions.

NY Governor decides, subject to Board of Parole must advise the No eligibility A pardon addresses Rare: Governor Cuomo Certificates of regulation in "the manner of governor on clemency cases if criteria unusual circumstances has granted only three relief from applying for pardons." N.Y. Const. requested. N. Y. Exec. Law § 259- when adequate relief pardons, two to avoid disabilities and art. IV, § 4.Governor must report c (8). Absent exceptional or cannot be obtained by deportation. Governor certificates of annually to legislature on pardons compelling circumstances, a certificate; effect to Paterson granted 33 good conduct. but not his reasons for granting pardon will not be considered if "exempt from further immigration pardons in them. Id. there is an adequate administrative punishment." May serve 2010.

remedy available. as predicate.

NC Governor's power unlimited, Applications must be submitted to General waiting 3 types of pardon: Rare: Pardons in recent Minor subject only to regulation in the the governor in writing, with period of 5 years pardon of forgiveness years have been rare - only nonviolent manner of applying. N.C. Const. statement of reasons. Governor's after completion (useful in seeking six pardons since 2001, all felonies and art. lll, § 5( 6). Post Release office of executive clemency of sentence, per employment); pardon of granted for innocence. misdemeanors Supervision and Parole (OEC) processes requests, oversees executive policy. innocence; and Pardon applications eligible for Commission has authority to assist investigations by Parole unconditional pardon average about 150 expungement the Governor in exercising his Commission, and prepares reports. ("granted primarily to annually. after 15 years, power. N.C. Gen. Stat. § 143B- Victim may present a written restore an individual's N.C. Gen Stat. 720(a). statement. N.C. Gen. Stat. § 15A- right to own or possess a § 15A-145.5.

838. DA must also be notified. firearm").

Margaret Colgate Love, NACDL Restoration of Rights Resource Project, January 2014

ND Governor decides, N.D. Const. art. No public hearing; board meets Inmates who are Relieves collateral Infrequent: Between 2005 Deferred V, § 7, and may appoint a "pardon twice a year, applications must be not eligible for penalties, but no and 2009, 163 applications sentencing; advisory board," consisting of the filed 90 days in advance; DA parole can apply to expungement; may received but only six reduction of state attorney general, two notified. the pardon board; serve as predicate. pardons granted. minor felony members of the parole board, and as may non8 N.D. Cent. Code§ 12- offenses to two citizens. N.D. Cent. Code§ incarcerated 55.1-01. misdemeanors. 12-55.1-02. offenders or others N.D. Cent

who demonstrate Code§ 12.1-"compelling need." 32-07.

OH Governor decides in consultation Application to Parole Board, which Eligibility at any Pardon "erases" the Infrequent/uneven Gov. First offender with parole board. Must report to conducts investigation. Ohio Rev. time. conviction, and Kasich has granted 22 sealing. legislature details of each Code Ann. § 2967.07. Prior notice entitles recipient to pardons through 2013. commutation and pardon granted, to court, prosecutor, victim. Ohio have court records Gov. Strickland granted and reasons for each. Ohio Const. Rev. Code Ann. § 2967.12. sealed. Ohio Rev. 290 pardons in four years, art. III, § II; Ohio Rev. Code Ann. Meritorious cases may be granted a Code Ann. § 2967.04. mostly to minor non-§ 2967.07. hearing, and a recommendation violent offenses.

made to governor.

OK Governor decides, may not act Public hearings at regular intervals, Following Relieves legal Frequent and Regular: Judicial without affl!mative but applicant generally does not completion of disabilities, including About 100 pardon grants sealing for first recommendation of board of appear; favorable recommendations sentence or 5 years firearms. Okla. Stat. annually (80% of those that offender pardons and parole. Okla. Const. announced publicly and sent to under supervision; tit. 21, § 1283A. apply). misdemeanant art. VI, § 10. The governor must governor; no reasons given. Process misdemeanants Grounds for s after 10 report to the legislature on each generally takes about six months. eligible. expungement for non- years. Okla. grant at regular session, though not violent first offenders Stat. tit. 22, § required to give reasons. Id. 10 years after 18.

conviction. Okla. Stat. tit. 22, § 18.

OR Governor decides with no Applications filed with governor's Generally governor Relieves legal Infrequent: Between 2005 Set-aside for provision for advice. Or. Const. art. office, copy to DA and correctional will not consider disabilities. and January 2011, Gov. misdemeanor V, § 14. Governor must report to officials; review by governor's legal misdemeanors and Kulongoski granted 20 and minor the legislature each grant of staff. By statute, governor may not minor felonies, for pardons out of several felonies. Or. clemency, including the reasons for act for 30 days after receipt of which set-aside is hundred applications. Rev. Stat. § the grant. Or. Rev. Stat.§ 144.660. application. Or. Rev. Stat. § available. 137.225.

144.650( 4).

Margaret Colgate Love, NACDL Restoration of Rights Resource Project, January 2014

State Type Of Administration Type Of Process Eligibility Effect

Frequency of Alternative Requirements Grants Restoration

PA Governor decides, may not act Public hearings at regular No eligibility Relieves all legal Frequent and Expungement for without affrrmative intervals; notice published requirements. disabilities, including Regular: Of 500- "violations"; law recommendation of pardon board prior to hearing. 37 Pa. Cons. employment and 600 applications, prohibits chaired by lieutenant governor. Pa. Stat. 81.233. Favorable licensing bars; provides Board recommends discrimination in Const. art. IV,§ 9(a). recommendations are grounds for about 150 employment and

announced publicly and sent expungement. favorably each licensing. 18 Pa. to governor; no reasons given. Commonwealth v. C. S., year, most of Cons. Stat. § 9124. 37 Pa. Cons. Stat. § 81.30 I. 534 A.2d 1053 (Pa. which are granted;

1987), 20%to misdemeanors and summary offenses.

RI Governor pardons "by and with the No process specified. No requirements. Restores right to hold Rare: No pardon First offender advice and consent of the senate." public office and lifts issued to a living expungement after R.I. Const. art. IX, § 13. occupational and person in ten years. 10 yrs for felonies, 5

licensing bars. for misdemeanors. R.I. Gen. Laws § 12-1.3-3.

SC Independent board appointed by Board required to hold Following completion Erases legal effect of Frequent and Various governor exercises pardon power hearings at least four times a for sentence, or after 5 conviction, including Regular: Board expungement except in capital cases (where year, and in recent years every years under supervision, obligation to register and issues 300-400 authorities for minor governor retains pow'er). S. C. two months, at which it is payment of restitution in use as predicate. S.C. grants per year, offenses. Const. art. IV, § 14; S.C. Code required to allow the applicant full; state of!enders only. Code Ann. §§ 24-21- hearing about 80-Ann. § 24-21-920. to appear. S.C. Code Ann. § 24-21- 990, 1000. Does not 85 cases every two

950. expunge, and conviction months; grants 60-must be reported on 65% of applicants. applications. Few

misdemeanants .

.

Margaret Colgate Love, NACDL Restoration of Rights Resource Project, January 2014

SD Governor decides, Board of Public hearings at regular No eligibility period Persons released from all Frequent and Deferred Pardons and Paroles may be intervals, recommendations except 5~year waiting disabilities, including Regular: Between 60 adjudication and consulted. S.D. Const. Article IV, sent to governor. Applicant period after release for frrearms if specified. and 70 applications judicial sealing § 3. Board 1nust reconnnend must notify DA and first offenders to apply Record sealed and filed annually, about for first pardon in order to obtain sealing sentencing judge, and must for "exceptional conviction denied, unless 60o/o recommended to offenders relief S.D. Codified Laws § 24- publish notice of application pardon." S.D. Codified pardon was issued by the governor, who 14-11. in a newspaper once a week Laws§ 24-14-8. governor alone. S.D. grants most of those

for three weeks. Typically, six Codified Laws § 24-14- recommended. months to process a case. S.D. 11. No predicate effect. Codified Laws§§ 24-14-3, 4.

TN Governor has the power to Public hearing and notice to Completion of sentence; Pardon has limited legal Infrequent: In Expungement of pardon. Tenn. Const. art. III, § 6. prosecutor is required. Board additional period of good effect, and does not January 2011, Gov. certain less Governor advised by the parole must send names of those it is conduct and restore civil or other Bredesen granted 22 serious non-board. Tenn. Code Ann. § 40-28- recommending and those it is demonstration of rights, for which one pardons ("collected violent offenses 104. Must report grants and not to legislative committees. rehabilitation and need. must go to court. Tenn. over his eight years in after 5 yrs. reasons to legislature ''when Governor must notify AG and Code. Ann. § 40-29- office"), 16 of which Judicial requested." DA before grant is made 105(c). were recommended by restoration of Tenn. Code Ann.§§ 40-27-101, public; they notify victim. the Board. rights. 107. Tenn. Code Ann.§ 40-27-110.

TX Governor decides, may not act No public hearing, informal Upon completion of Restores civil rights, and Sparing: Eight to ten Expungement of without affirmative review process. sentence, including removes barriers "to pardons annually most pardoned recommendation of Board of misdemeanants. Tex. some, but not all, types years since 2001, and convictions; Pardons and Paroles. Tex. Const. Admin. Cod. §§ 143.2, of employment and 113 of those deferred art. IV,§ ll(b). 143.10. First offender profesSional licensing." reconunended. 200 adjudication and

restoration to federal Basis for expungement. applications are nondisclosure. and foreign offenders. Predicate effect. received annually. Tex. Admin. Code § 143.7.

Margaret Colgate Love, NACDL Restoration of Rights Resource Project, January 2014

State Type Of Administration Type Of Process Eligibility Effect Frequency of Grants

Alternative Requirements Restoration

UT Independent board appointed by Public hearing at regular Five years after Restores civil Infrequent: Board receives Expungement for the governor. Utah Const. art. VII, intervals, notice to DA and expiration of sentence; rights. only three to five requests for many offenses. § 12; Utah Code Ann. § 77-27- victim, majority vote, with offenses for which pardon a year, and only about 5(1). reasons given. Utah Code expungement not 10 pardons have been granted

Ann. § 77-27-5(2). available. Utah Admin in the past decade (availability Coder. 671-315. of expungement makes less

necessary).

VT Governor decides, parole board No hearing; parole board Generally 10 years, Restores rights, Infrequent: Governor Deferred may be consulted. Vt. Const. ch. II, investigates and recommends. must show relieves Shumlin has granted only two adjudication and § 20. Vt. Stat. Ann. tit. 28, § 453. rehabilitation and disabilities, pardons since taking office in expungement.

employment-related including 201 I. In his nearly 8 years in need, benefit to firearms. office (2003-2011), Governor society. Douglas granted thirteen

pardons, fewer than two a year.

VA Governor decides, parole board No hearing, paper review by 5-yr eligibility waiting "Simple" pardon Sparing: Gov. McConnell has Deferred may be consulted. Va. Const. art. parole board. Restoration of period for restoration does not expunge restored rights generously, but adjudication but V, § 12. Constitution also requires rights applications processed ofrights after violent the record, but through August 2013 had no expungement; governor to make annual report to in 60-days by Secretary of the or drug crime, 2~yr for helps with pardoned only seven judicial the legislature setting forth "the Commonwealth. non~violent crime; employment, individuals. He also commuted restoration of particulars of every case" of pardon ROR available for education, and two sentences retroactively to firearms. or commutation granted, with out-of-state and self~esteem. No avoid deportation. Governor reasons. Id. federal offenders. expungement, has Kaine pardoned 108 individuals

predicate effect. in his four years in office.

WA Governor decides "under such Public hearing, DA and None Vacates Sparing: About 35 petitions Judicial vacatur regulations and restrictions as may victims must be notified. conviction, each year, 8-10 of which go to for most be prescribed by law." Wash. Wash. Rev. Code § 9.94A.885 relieves all legal hearing. From 2006 through convictions; Const. art. III, §§ 9. Clemency (3). disabilities; January 2011, Gov. Gregoire separate firearms board may be consulted. Wash. conviction need granted 27 pardons, two restoration Rev. Code§§ 9.94A.885 (1), not be reported, no conditional, and two to avoid procedure. 10.01.120. Governor reports to predicate effect. deportation. legislature with reasons. Wash. Wash. Rev. Code Const. art. III, § I I. § 994A.030

(l l)(b).

Margaret Colgate Love, NACDL Restoration of Rights Resource Project, January 2014

WV Governor decides, may seek No public hearing; board must None Lifts most legal Rare: Governor receives from Misdemeanor advice from parole board. W. Va. notify DA and judge 10 days barriers, but does 50-100 applications each year, first offender Const. art. 7, § 11; W. Va. Code§ before making not restore but pardon grants are rare (only expungements.

.

5-1-16. Governor reports facts of recommendation to governor. firearms rights. 121 in 36 years, by nine grants with reasons. W. Va. As a matter of policy, Perito v. County governors). Const. art. 7, § 11; W. Va. Code§ governor always seeks of Brooke, 597 SE 5-1-16. recommendation from board. 2d 311, 321 (W.

Va. 2004). May be given predicate effect.

WI Governor decides under a non- Public hearings at regular Five-year eligibility Relieves legal Infrequent/uneven: Governor Expungement or statutory pardon advisory board. intervals for those applicants waiting period; disabilities and Walker has granted no pardons sealing of certain Wis. Const. art. V, § 6. Governor that show "a demonstrated misdemeanants signals to date, and has stated an intent adult must communicate annually with need for a pardon." Applicant ineligible unless rehabilitation, but to accept no applications. Gov. misdemeanor legislature each case of clemency must publish notice in county waiver granted. does not expunge Doyle granted 293 pardons convictions. Wis. and the reasons. Wis. Const. art. paper or on courthouse door, or seal the overall, 176 in his final year, Stat.§ 973.015. v, § 6. and deliver to DA, judge and conviction. May mainly for dated minor offenses,

victim. Wis. Stat. §§ 304.09- be given predicate representing 15% of applicants, .10. effect. all with Board recommendation.

Few misdemeanants.

WY Governor decides, subject to Statutory application process I 0 years after Relieves legal Sparing: Current governor has Governor also legislative controls on the manner involves review by governor's sentence for pardon, disabilities but issued no pardons. From 2005 to grants restoration of applying. Wyo. Const. art. 4, § staff. Process takes 4-6 5 years for restoration does not expunge. 2010, 22 pardons and 28 of rights upon 5. Governor must report every weeks. Notice to DA three of rights. Excludes Maybe given restorations of rights (25% of recommendation two years to legislature on grants, weeks prior to acting, and DA sex offenses. predicate effect. applications filed). of parole board. with the reasons for each one. Id must provide details of Federal and state

offense. Wyo. Stat. Ann. § 7- offenders 13-801 et seq. eligible.

FD President decides under a non- Informal process described in 5 years after sentence Relieves legal Sparing: Only about 10-15 None statutory advisory scheme. U.S. 28 C.F.R. Part 1 and United or release from disabilities pardons per year over the past Const. art. II, § 2; 28 CFR Part I. States Attorneys Manual. No confinement. 28 signifies twenty years, representing less No reporting requirement, no time limit, and applications C.F.R. § 1.2. rehabilitation. than 5% of those who apply. notice. may remain pending for years. Generally not eligible Does not President Obama has issued only

ifon parole. Id. expunge, has 52 pardons in five years and predicate effect. denied more than 1300

applications with more than 800 awaiting decision.

Margaret Colgate Love, NACDL Restoration of Rights Resource Project, January 2014

The Politics of Forgiveness: Reconceptualizing Clemency

Executive clemency is no longer a robust feature of Ameri­

can government. In recent decades, only a small handful

of state governors have exercised their clemency power with any kind of regularity. Most governors, like recent

presidents, have rarely used their power to commute sen­

tences and have issued pardons sporadically and erratically.

In an era with more than seven million people either

serving time in prison or under some form of supervised release, 1 the question of how to reinvigorate clemency has

become an urgent one. Commutation through executive

clemency is often the only hope for correcting a sentence

after it has been imposed by a judge because parole has

been abolished or dramatically curtailed in many jurisdic­

tions, and judicial sentencing reduction power after a

sentence has been handed down is weak or nonexistent in

most places.2 Even after an offender has served his or her

sentence in full, clemency is important because the collat·

eral consequences of conviction do not end with release

from prison. The executive's power to pardon is often the

only means by which offenders can remove or limit legal

restrictions to enable them to reenter and reintegrate into

society.3

The dilemma is that the pressing need for robust

clemency is equaled by the difficulty of achieving it. Politi­

cians remain afraid of soft·on·crime accusations or facing

a Willie Horton-style advertisement4 should an individual

on the receiving end of a pardon or commutation go on to

commit another crime. And in a legal era that calls for

transparency and regularity of process, an unfettered and

undisclosed clemency power has been under attack by

legal reformers and scholars.5

This essay considers possible approaches for reenergiz­

ing clemency in this hostile political and jurisprudential

climate. It draws inspiration from two main sources. Part I

begins by analyzing more closely clemency practice in

recent years, with a specific focus on those relatively few

governors in recent times who have made or proposed greater use of their clemency power. Part II broadens the

inquiry by looking to sentencing reform in general.

Because the decision to grant clemency shares many traits

in common with judicial sentencing discretion, it is valu· able to look to changes in sentencing law and policy to

identify how successful reform efforts have taken hold in

that context and how the lessons of sentencing reform

could be applied to clemency reform.

No magical formula will rejuvenate clemency. But the

experience in some states with particular governors and

the sentencing reform movement generally hold promise

for structural changes and framing techniques to produce modest increases in clemency grants. And if clemency

rates increase without a political backlash, that experience

might pave the way for more dramatic improvements.

I. The Practice of Clemency Today

Recent decades have seen a precipitous drop in the num·

ber of clemency requests being granted by state executives

and the president. 6 The number of pardons has decreased,

and commutations are particularly rare, with the president

and the vast majority of states governors granting only a

handful of commutations in the past decade-all while the

number of people being sentenced escalates at a rapid

rate.7

But the general pattern masks some notable excep­

tions. First, individual governors have bucked this trend,

granting a high number of clemency requests in a variety

of cases even when facing reelection or with the goal of

seeking a higher office. Former Arkansas Governor Mike Huckabee, for example, stands out for having granted

clemency (pardons and commutations) to more than

r,ooo individuals in his time as governor, many of which

occurred in his first term in office. 8 Former Maryland Gov·

emor Robert Erlich similarly granted a high number of

pardons and commutations.9 Virginia Governor Timothy

Kaine is also granting clemency requests at a rapid clip. In

only his first fourteen months in office, he granted nine

commutations and restored the rights of768 individu­als.10 Huckabee and Kaine's approach to clemency seems

to have been driven in part by their religious faith and

moral convictions. 11 Ehrlich's view was that he had a con·

stitutional duty to take pardon seriously.12 Notably, none of them have appeared to have suffered politically for their

clemency decisions.13

Second, some governors have targeted specific popula·

tions for relief or granted only a narrow form of relief. In Colorado, Governor Bill Ritter established a new board to

Federal Sentencing Reporter, Vol. 21, No. 3, pp. 153-159, ISSN 1053-9867 electronic ISSN 1533-8363 ©2009 Vera Institute of Justice. All rights reserved. Please direct requests for permission to photocopy

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FEDERAL SENTENCING REPORTER • VOL. 21, NO. 3 • FEBRUARY 2009

RACHELE. BARK OW*

Beneficial Visiting

Professor of Law,

Harvard Law School,

Fall 2008

Professor of Law,

NYU School of Law

153

154

review clemency applications of juveniles who were tried

as adults and imprisoned in adult facilities.14 This may or

may not signal a greater willingness to grant clemency, but

it does show the governor's interest in giving these cases greater scrutiny. Other governors have also been willing to give relief on a more targeted basis. In particular, some

governors have focused on restoring voting rights for offenders who have served their sentences. In Florida, for

example, Governor Charlie Crist urged the state's parole

commission to reinstate the voting rights of 600,000

offenders who had completed their sentences.15 Governor

Tom Vilsack of Iowa, before leaving office, issued an exec­utive order reinstating rights to those felons who had completed their sentences.16 Governor Beshear of Ken­

tucky has pushed for legislation to restore rights to felons.17

In fact, there are nine states in which pardons have

been regularly available to ordinary citizens to restore their rights.18 Of these states, four vest the pardon power in an

independent board,19 four require the governor and a par­

don board to agree on pardon decisions, 20 and one vests

the pardon decision in a board of high officials that

includes the governor.21 Thus, in each of these states, an

agency possesses significant, if not exclusive, power to

make the pardoning decision, thereby taking some or all of the political heat off the governor. 22

Although none of these categories represents a seismic shift in clemency practice, each provides a window to how

clemency grants could be increased even in a political cli­

mate that is otherwise hostile to their issuance. The experience of Governors Huckabee, Ehrlich, and

Kaine shows two things. First, it demonstrates that some

executives have an incentive to pardon, out of a sense of either faith or duty. Second, using the themes of redemp­

tion and forgiveness as tenets of religious faith or constitutional duty can, in turn, offer a competing political

narrative that may shield governors who exercise their par­

don power from attack. Governors Huckabee and Kaine were explicit in the role that religion played in their execu­

tive decisions, and their decisions to forgive offenders and

give them a second chance fit well within a faith-based

narrative. For his part, Ehrlich relied on his constitutional duty to ensure that errors were corrected in criminal cases

and that just sentences were meted out. Of course these approaches are not going to translate

to all governors or all voters. Some executives will not be

comfortable employing a rationale based in religion because they do not believe it, either because it is not the

message of their religion or because religion does not play

a role in their approach to governance. And although there

is an argument to be made that executives have a duty to pardon,21 as Ehrlich emphasized, some executives may

disagree, particularly if they are concerned that a duty­

based explanation will seem too abstract and legalistic to

appeal to voters. But while the value of giving a second chance may not work for all executives or for all popula­tions, it should appeal to some. And the faith-based

approach in particular is likely to resonate with many vot­

ers. Religion is a key force in politics, and it has emerged

as an important catalyst of criminal justice reforms in

recent years. Faith-based interests have been one of the leading forces driving the reentry movement and legisla­

tion like the Second Chance Act.24 The experience of these

governors shows that these same political forces could be marshaled to support a more generous clemency approach

as well.

Another lesson from the aforementioned examples is

that governors could increase clemency grants with less political risk if they were to approach clemency in a more surgical fashion, focusing on forms of relief that are not as

vulnerable to political attack. Pardons issued after an offender has served a sentence in full and has lived in soci­

ety for some number of years without reoffending are certainly less risky than commutations that set someone free before the end of the judicially imposed sentence.~5 To

take the sliding scale concept further, it is also less risky to

grant a former felon only a modest form of relief by rein­

stating his or her right to vote but granting no other relie£

Most states already grant offenders the right to vote once a

sentence has been served in full. 26 This fact shows that voters, in the main, are comfortable with giving offenders

who have served their time the right to participate in elec­tions. A governor like Charlie Crist who wishes to grant this right as a matter of the clemency power is therefore

not going against a strong political current in opposition to these rights.27 And it is hard to imagine a successful

attack ad along the lines of the Willie Horton technique

that would highlight a link between giving an offender the

right to vote and the commission of another crime. Taking this lesson a bit further, governors can narrow

not simply the forms of relief they make available, but the

types of offenders whom they deem eligible. It is less polit­ically risky to show mercy on first-time offenders and/or

those who have committed nonviolent offenses. In this

regard, drug cases may be particularly good candidates for more clemency grants because narcotics laws frequently

impose mandatory sentences that are harsher than the

specific facts of a case warrant. A more generous approach to clemency for those who were very young when they

committed their offense might also be feasible, as Gover­

nor Ritter's efforts seem to indicate, because these offenders can be very sympathetic figures whose claims of rehabilitation may be seen as more believable than most

because of the maturation that comes with getting older. 28

At the opposite end of the spectrum, clemency for elderly inmates is viable for similar reasons. These offenders can

plausibly argue that age has given them the wisdom to see how wrong their crimes were. Moreover, these claims can

be bolstered by data; ex-convicts over the age of fifty-five

have a much lower recidivism rate than eighteen· to forty­

nine-year-olds.29 Of course, the narrower the approach, the less valuable

clemency is at checking legislative and prosecutorial over­reaching and ensuring individualized justice. Moreover,

FEDERAL SENTENCING REPORTER • VOL. 21, NO. 3 • FEBRUARY 2009

most of the narrower approaches to clemency still come with risks. It takes just one offender who benefited from a pardon or commutation to reoffend to call into question an executive's judgment. Nonviolent or elderly offenders may be less likely to commit additional crimes, but some of them undoubtedly will. And while voters might respect governors who pardon as part of their religious faith, that may not be a sufficient defense if someone pardoned goes on to commit a particularly heinous crime.

It is this risk of the one bad apple that serves as the greatest deterrent for an executive deciding whether to use his pardon or commutation powers. While some gover­nors will take the risk because their faith or a sense of duty is sufficiently strong, others-from the empirical evi­dence, most-will resist. For these governors, the risk either needs to approach zero or be eliminated, or it needs to be seen as worth taking because of the benefit it brings.

The use of independent commissions is a possible strat­egy for helping to reduce the risk. In the nine states with a more robust clemency practice, the governor can shift the blame to the clemency board if someone pardoned reof­fends. The problem with the independent agency model as a cure-all is that not every state with a pardon board as part of the process has seen an increase in clemency grants. Indeed, many of the states with low grants of clemency have such a board.3° These boards might be necessary for increased clemency power, but they are not sufficient. And getting these boards formed in the first instance in states that do not have them requires political will.

Thus, to make clemency a more robust practice in more than a handful of jurisdictions requires looking beyond the practice of clemency itself.

II. Clemency as Sentencing Reform If one must search elsewhere for clues on how clemency can be reinvigorated, the most logical place to look is to sentencing reform more generally. A decision to grant clemency is, after all, a sentencing determination, albeit one made atthe back-end of the process, after a judge or jury has already set a punishment. Commutations are decisions to reduce or modify a judicial sentence. Pardons also alter a sentence, either by erasing one or more of a defendant's convictions and thereby reducing a sentence as a result, or by negating what would otherwise be the consequences of a criminal conviction, such as voter ineli­

gibility or disqualification for.government benefits. Like other sentencing determinations, clemency deci­

sions must negotiate the modem politics of crime in order to be exercised with any frequency. While that political landscape presents formidable obstacles for those seeking to reform sentencing in any matter that benefits criminal defendaiits, the politics of sentencing in recent years reveals that modest improvements in that direction are possible, and the lessons translate well to clemency. Part A begins by discussing the sentencing commission move­ment and the lessons it offers for using an agency model in clemency. Part B turns to the many sentencing reforms

in various states that have been driven by fiscal conser­vatism and highlights how the push for those reforms could be channeled into clemency determinations.

A. The Agency Model Grants of clemency, as already noted, have been more fre­

quent in those states that use independent pardon boards. But it is not enough simply to call for all jurisdictions to use these boards. There are political hurdles to establishing them in the first instance, and even when they do exist, they are not always effective in influencing gubernatorial decisions. Only a portion of the states with these boards have seen appreciable grants of clemency applications.

Here the sentencing reform movement may offer valu­able lessons on how to maximize the effectiveness of such a board and, in tum, how to get jurisdictions that do not already have one interested in establishing one in the first place. The use of an expert agency to help set sentencing policy has been the defining feature of sentencing reform in the last three decades. Reformers looked to an agency model to help insulate sentencing decisions from the immediate pressures of the political process and achieve greater uniformity in sentencing.31 Roughly one-third of the states and the federal government now use an agency to help set sentencing policy within their respective juris­dictions.32 These agencies vary in their powers and structure, but they all possess some influence in establish­ing a jurisdiction's sentencing laws, and many of these commissions have been quite successful.n

What does the sentencing commission experience teach us about how these clemency boards can be made most effective in our political climate? The first lesson is that the composition of these boards has been critically important to their success. The most influential state sen­tencing commissions include representatives from all the interest groups. They include representatives from the defense bar as well as prosecutors, judges, members of the community, and often legislators themselves.34 Thus, the successful commissions include not only those groups that typically get muted in the legislative process, such as defense interests, but also those powerful groups who are readily heard. Both groups are important so that all points of view are aired and so that the final proposal of the com­mission is more likely to have political influence.

In the context of clemency boards, it is likewise impor­tant to have a diverse membership and to include groups most likely to oppose such grants to become part of the process. Thus, pardon boards should include not only experts who can evaluate future risks of offending but also prosecutors and representatives of victims' rights groups. Having these individuals on board with the executive's decision is a critical means of muting any subsequent criti­cism that the governor's deference to the board or decision to grant clemency was ill·placed. Consider in this regard Governor Ehrliclis active pardon practice. One of his strate­gies was to seek input from victims before granting a clemency application.35 This tactic probably helped to

FEDERAL SENTENCING REPORTER •VOL. 21, NO. 3 • FEBRUARY 2009 155

156

neutralize political opposition and may partially explain why EhrlicHs clemency record did not figure heavily when he stood for reelection. A more recent example comes from Nevada, where the placement of the attorney general on the state's pardon board could provide cover for the governor if he wishes to adopt the board's recent proposal for early

release of nonviolent offenders. Having a prosecutor pro­vide a stamp of approval for such a proposal provides a strong defense against any criticism that the decision was made without a concern for law enforcement.

Ensuring that potential opponents are part of the process is arguably even more important in clemency than in other sentencing decisions because of the point at which a clemency decision is made. Sentencing commis­sions set policies in the abstract, without an eye toward how a particular, identifiable offender should be treated. Clemency, in contrast, is a decision about a particular per­son, and it takes place after some other actor has already determined how that individual should be sentenced Thus, the decision to relieve that person from his or her sentence is not merely an abstract policy judgment or an act of mercy. Unless the grant is based on an unforeseen change of circumstance, the decision to grant clemency is implicitly a judgment that some other actor in the system­the judge, the jury, the prosecutor, or the legislator-made a mistake. The people who are having their decisions sec­ond-guessed therefore stand as potential voices in opposition to the grant-unless they have been made part of the decision-making process. That does not mean that the same prosecutor who brought the case must agree to a clemency decision, though it is probably valuable to get that person's input. Nor does it mean that the judge who issued a sentence must agree, though here, too, his or her perspective is valuable. What it does mean is that the interests of these groups-prosecutors and judicial actors-should get an airing in the board's process so that the ultimate decision can be seen as sensitive to law enforcement concerns and respectful of the sentencing process.36

This need for diversity means that clemency boards should not be mere arms of law enforcement interests, for that could skew them too far in the opposite direction, against issuing any grants at all.37 The pardon process at the Deparbnent of Justice, for instance, has become domi­nated by prosecutors, which helps explain the anemic role pardons play at the federal level. Instead, clemency boards should mimic the most successful state sentencing com­missions, which are careful to mix law enforcement interests with those of defense lawyers and former offend­ers so that each side can learn from the other and increase the likelihood that sound conclusions will be reached and be less subject to political attack later.

B. Data- and Cost-Driven Decision Making

The most successful sentencing commissions share in common not only a diverse membership but also a focus on reducing the costs of incarceration. In particular, those

commissions that produce prison capacity impact state· ments-statements that show what a proposed sentencing increase will cost the state-have been the most successful at pushing back tough-on-crime posturing.38 When con­fronted with the real dollar costs of a sentence increase, politicians take a closer look at whether the proposed increase actually makes sense. It is therefore not surpris­ing that states with prison capacity impact requirements have experienced slower prison growth than states without such requirements39 and that a concern with lowering incarceration costs is a key predictor of whether a jurisdic­tion establishes a commission in the first place.4°

While commissions are well placed to reduce costs because of the systematic data analysis they can perform, jurisdictions have adopted sentencing reforms to save money even without the help of a commission. In the beginning of the twenty-first century, many states have repealed mandatory minimum sentencing laws, reduced sentence lengths for some offenses, or provided opportu· nities for alternatives to incarceration.4' And almost all of these efforts have focused on the need to stop the bur­geoning costs of incarceration.42

This same focus on cost savings could be used in clemency decisions. Indeed, there is emerging evidence that governors are starting to look at the cost-savings rationale for clemency. Take, for example, some recent proposals from California and Nevada, states which face extreme prison overcrowding. Governor Schwarzenegger recently proposed granting early release to approximately 22,000 inmates to address the crisis in prison overcrowd· ing in California.41 In Nevada, the Pardon Board recently

proposed releasing those inmates who are first-time offenders with no history of violence who are within two years of finishing their sentence.44

Pardon boards can not only highlight the cost savings associated with more robust clemency but also serve as repositories of data on what benefits clemency decisions actually bring. These boards can maintain a record of who has received a pardon or commutation and what they have done since that time. They can keep track of the good things people do after receiving a second chance-the jobs they take, the families they support, the communities they serve. This information can tap into a politics of redemp· tion and hope to counteract the usual politics of fear. Narratives are powerful in criminal law, and a governor facing an attack based on a grant of clemency-gone-wrong can employ examples of clemency decisions that have yielded positive results as a counterattack. More systemati­cally, these boards should be able to quantify the fiscal benefits of clemency decisions, including the savings in incarcerations costs (including medical costs for elderly inmates who have been released), the economic benefits of getting former offenders reemployed, and the crime reduction that may result from successfully reintegrating offenders into a community.

There are, of course, fnndamental differences between using cost savings as a justification for sentencing reforms

FEDERAL SENTENCING REPORTER • VOL. 21, NO. 3 • FEBRUARY 2009

and for clemency determinations. Clemency has tradition· ally been seen as an act of individualized mercy, not as a means of cost-cutting or an economic stimulus. Cost con­siderations have not typically been part of the pardoning or commutation process, and certainly other mecha­nisms-like front-end sentencing reform or even parole on the back-end-offer more systematic and rational means of confronting the ballooning costs of rising incar· ceration rates.

But considering fiscal concerns as part of a clemency decision would not necessarily conflict with the vision of clemency as the power to dispense mercy. In an era of widespread cost-benefit analysis throughout the executive branch, it is far from irrational to put clemency determina­tions within the same general framework. If an elderly prisoner is unlikely to commit more crimes because of his or her advanced age and the cost of keeping him or her in prison is expensive, particularly in light of large medical costs, it is reasonable for an executive to take that into account as part of the determination of whether that pris­oner should have a sentence commuted. Similarly, if particular restrictions on ex-offenders, such as the loss of license eligibility or the right to vote, are causing harm not just to the ex-offender but to society generally because those restrictions prevent offenders from reentering soci· ety as productive members of the economy, that should factor into a pardon determination. These factors need not replace traditional inquiries made at the pardon stage. Rather, they can serve as supplemental data points that can highlight for executives and the voting public that the risk associated with a commutation or pardon is worth taking because of the benefits it can bring.

The broader point is that cost·benefit analysis as a mechanism for decision making can improve all kinds of decisions, including clemency. A governor or president who seeks to make rational decisions about the dispensa­tion of government benefits and the trimming of government costs should embrace this means of analysis. If clemency is a sentencing decision, it should be as rea­

sonable as any other. That does not mean that mercy has no place in the

equation. Forgiveness, rehabilitation, and reformation can and should be considered. But in the current political cli­mate, considering only those factors has meant that individuals rarely, if ever, get relief. The reason is that executives are weighing the benefits of forgiveness against the obvious costs of pardons. Indeed, it is hard to explain their rapid decline on any basis other than executives' pre­occupation with the risk of having a pardoned offender commit another crime and being blamed for it because the pardon or commutation diminished deterrence or let a previously incapacitated offender go free. Executives are well aware of the costs of commuting a sentence or grant­ing a pardon. So, encouraging executives to do a cost-benefit analysis as part of the clemency determination would not change how executives are already analyzing the cost side of the equation.

Instead, focusing on the costs and benefits of a grant of clemency would highlight that clemency brings societal benefits, and not simply benefits to the individual. Clemency can correct a sentence that has proven itself to be too long-either by a comparison to other cases, a closer look at the facts of an individual case that might have been ignored because of a mandatory sentencing law, or because circumstances have changed. Correcting an excessive sentence can save the state money, free up a prison bed, and give the individual serving the sentence the opportunity to reenter society earlier and become a productive member. And to the extent boards can help achieve these cost-savings benefits, that is an argument for forming them in the first place. Indeed, it is the cost-sav­ings potential of a sentencing commission that has led so many states in recent years to turn to an agency model, and that same concern might push toward an independent agency model for clemency as well.

To be sure, even this expanded notion of the benefits of clemency might not be enough to outweigh the main cost, which is the increased risk of an additional crime by the individual who receives the pardon or commutation. But putting these benefits at the fore helps to improve the decision-making process and makes it more likely that the public and the executives they elect will see that clemency is a risk worth taking.

Ill. Conclusion Reinvigorating clemency is no easy task. The costs of get­ting a clemency decision wrong-resulting in an individual whose application for clemency was granted then going on to commit another crime, particularly a vio­lent one-are high in this political climate of thirty-second ads and sound bites. Executives will nm that risk only if there are corresponding benefits that are greater.

Looking to the actual practice of clemency today as well as sentencing reform more generally, this essay suggested a two-prong strategy for strengthening clemency in a tough-on-crime environment. The first part of the strategy aims to reduce the risk associated with clemency. This means creating boards that can take the heat for decisions that turn out badly. It may also mean focusing on specific categories of offenders and forms of relief that pose less risk for clemency.

The second part of the strategy involves highlighting the benefits of clemency beyond individual justice. Of course individual justice remains central to clemency determinations, but a more robust clemency scheme in todays political landscape will require a broader vision of what second chances mean to society. Commutations are about cost savings as well as individual justice. Pardons are not just about forgiving an individual but about mak· ing offenders productive members of communities and lowering the risk that they will reoffend.

While these changes may yield only modest improve­ments initially, each successful clemency grant makes the case for additional grants. That is, as the practice of

FEDERAL SENTENCING REPORTER • VOL. 21, NO. 3 • FEBRUARY 2009 157

158

clemency once again becomes a regular one, bearing soci·

etal benefits, the risk of any one decision going wrong is

not as great.45 The result should be, over time, a return to an era in which clemency is a key part of a functioning system of justice. For it is as true today as it was at the

Framing that "the criminal code of every country partakes

so much of necessary severity that, without an easy access to exceptions in favor of un_fortunate guilt, justice would wear a countenance too sanguinary and cruel."46

Notes I am grateful to Margy Love for comments and to Ross Cuff and Mark Samburg for excellent research assistance.

Bureau of Justice Statistics, US. Dep't of Justice, Prison Sta· tistics (Dec. 16, 2007),

http:/ /www.ojp.usdoj.gov/bjs/prisons.htm (at year·end 2006,

there were 2,258,983 prisoners in the U.S.); Bureau of Jus· tice Statistics, U.S. Dep't of Justice, Probation and Parole Statistics (Dec. 5, 2007),

http://www.ojp.usdoj.gov/bjs/pandp.htm (at year·end 2006,

4,237,000 people were on probation and 798,200 were on parole).

2 Where back·end sentencing reform is available through these

other means, clemency may be less important. For example, Connecticut governors rarely grant commutations, but the courts have authority to modify sentences without input from

either the governor or the state board of pardons. Connecti· cut General Statutes Annotated sec 53a·39. Illinois, in contrast, has non·parole·eligible determinate sentencing,

making clemency the only option for early release for many of its inmates.

3 MARGARET COLGATE LOVE, RELIEF FROM THE COLLATERAL CONSE·

QUENCES OF A CRIMINAL CONVICTION, A STATE·BY·STATE RESOURCE

Gu10E 7 (July 2005) ("[l]n 42 states, and for federal offend· ers, pardon provides the only system·wide relief from

collateral sanctions and disqualifications based on convic· tion.").

4 See, e.g., A 30·Second Ad on Crime, N.Y. T1MES, Nov. 3, 1988, at B20; http://www.youtube.com/watch?v=EC9j6Wfdq3o &feature=related

5 See Rachel E. Barkow, The Ascent of the Administrative State

and the Demise of Mercy, 121 HARV. L. REV. 1332 (2008). 6 Barkow, supra note 5, at 1349 n.78 (describing decline in fed·

eral clemency grants since the 1970s); Daniel T. Kobil, Should

Mercy Have a Place in Clemency Decisions? in FORGIVENESS,

MERCY, AND CLEMENCY at 36, 37 (Austin Sarat & Nasser HUS· sain eds., 2007) (citing a survey of commutations from 1995 to 2003 showing a decline at the state level).

7 Kobit, supra note 6, at 36, 37 (noting that 34 states granted 20 or fewer commutations from 1995 to 2003); Barkow,

supra note 5, at 1349 n.78 (noting that as of 2007, President George W. Bush had granted only 5 commutations).

8 Adam Nossiter & David Barstow, Charming and Aloof, Huck­

abee Changed State, N.Y. T1MES, Dec. 22, 2007, at Al.

Huckabee's successor, Mark Beebe, has also granted clemency applications at a relatively high rate, though most of his grants have been pardons for individuals who have

already completed the terms of their sentences instead of commutations. For a catalog of Beebe's grants, see Pardon

Power Blog, at http://pardonpower.com/labels/ Arkansas.html.

9 See Love, supra note 3, Maryland section (noting that between August 2003 and March 2006, Ehrlich granted 150 pardons and 15 commutations); see also Ehrlich Grants

Clemency to 18; 249 Commutations and Pardons Issued During 4·Year Term, BALTIMORE SuN, Jan. 13, 2007, at 58; Editorial,

Mr. Ehrlich and Clemency, WASH POST, Aug. 27' 2006, at B6; Matthew Mosk, Ehrlich Prolific in Granting Clemency, WASH POST, Aug. 25. 2006, at Al.

10 Margaret Colgate Love, Relief from the Collateral Conse.

quences of a Criminal Conviction (2008 ed.), available at

http:/ /www. sente nc ingproject. org/tm p/Fi le/Virgin ia08. pdf.

Although Kaine is barred by Virginia law from seeking reelec· tion, he has been mentioned as a candidate for other offices,

including the vice presidency. Kate Zernlke, Charismatic Gov·

ernor Rises to the Short·List, N.Y. TIMES, Aug, 13, 2008, available at http://www.nytimes.com/2008/08/14/us/poti· tics/14ka i ne. html?ref=po I itics

11 Adam Nossiter & David Barstow, Charming and Aloot Huck­

abee Changed State, N.Y. TIMES, Dec. 22, 2008 ("By every account, Mr. Huckabee's approach to clemency was heavily influenced by his religious beliefs."); Caryle Murphy, Catholi­

cism, Politics a Careful Mix for Kaine, WASH. POST, Oct. 31,

2005 (describing the influence of religion on Kaine's poli· tics).

12 Mosk, supra note 9 (quoting Ehrlich as stating that his law school training and his marriage to a public defender instilled in him a sense of duty).

13 While Ehrlich was a one·term governor who failed to win

reelection, there is little evidence that his record on clemency played a major role in his defeat. See Mask, supra note 9.

14 Office of Governor Bill Ritter, Gov. Ritter Establishes Juvenile

Clemency Board (Aug. 29, 2007), available at https://www . advanceco lorado.com/ governor /press/ august07 /juven i !e· clemency·board.html

15 Florida excepted murderers, violent sex offenders, and cer· tain career criminals. See Abby Goodnough, In a Break from

the Past, Florida Will Felons Vote, N.Y. TIMES, April 6, 2007,

available at http://www.nytimes.com/2007 /04/06/us/ 06florida.html.

16 Todd Dorman, Former Governor Criticizes Vi/sack's Voting

Rights for Felons Decision, QUAD·CITY TIMES, June 21, 2005, available at http:/ /www.qctimes.com/articles/2005/06/21/

news/state/doc42b79d842d833543812069.txt; Kate Zer·

nicke, Iowa Governor ltVil/ Give Felons the Right to Vote, N. Y. TIMES, June 18, 2005.

17 Beshear removed obstacles to restoration, see Beshear simpli·

fies process to restore voting rights for felons, HERALD·DISPATCH,

March 4, 2008, available at http://www.herald·dispatch.com/ homepage/x1657944652, and he praised leglslation aimed at automatic restoration, Beshear to help more felons vote, March

4, 2008, available at http://polwatchers.typepad.com/ po l_watchers/2008/03/beshear· to· help.html .

18 Love, supra note 3, at 8 (listing Alabama, Arkansas. Connecti· cut, Delaware, Georgia, Nebraska, Oklahoma, Pennsylvania, and South Carolina).

19 Id. at App. A tbl. 1 (Alabama, Connecticut, Georgia, and South Carolina).

20 Id. (Arkansas, Delaware, Oklahoma, and Pennsylvania). 21 Id. (Nebraska). 22 Scholars such as Michael Heise have found that clemency in

capital cases is also more likely with a board. See Michael Heise, Mercy by the Numbers: An Empirical Analysis of

Clemency and Its Structure, 89 VA. L. REV. 239, 297·302 (2003).

23 See Margaret Colgate Love, Of Pardons, Politics and Collar But·

tons: Reflections on the President's Duty to be Merciful, 27 FORDHAM URB. l.J. 1483, 1506·09 (2000).

24 See Chris Suellentrop, The Right Has a Jailhouse Conversion,

N.Y. TIMES MAGAZINE, Dec. 24, 2006. 25 Thus, in the nine states with a robust pardon practice, com·

mutations are far less frequent. See also President William J. Clinton, Remarks at the ceremony appointing Roger Gregory to an interim seat on the Fourth Circuit Court of Appeals

FEDERAL SENTENCING REPORTER • VOL. 21, NO. 3 • FEBRUARY 2009

(Dec. 27' 2000), reprinted in 13 FED. SENT'G REP. 228 ("Presi· dents and governors should be quite conservative on commutations ... but more broad.minded about pardons.")

26 Love, supra note 3, at 11. 27 Only Florida, Kentucky, and Virginia disenfranchise all felony

offenders for life until they receive a pardon or judicial

restoration of rights. Love, supra note 3, at 12. 28 See, e.g., Adam Liptak, To More Inmates, Life Term Means

Dying Behind Bars, N.Y. T!MES, Oct. 2, 2005, at Al (describing convincing claims of rehabilitation made by a Pennsylvania man convicted of a murder committed when he was 15); see

also EQUAL JUSTICE INITIATIVE, CRUEL AND UNUSUAL: SENTENCING 13· AND 14·YEAR·Ot.o CHILDREN To DIE IN PRISON, available at http://eji.org/eji/ (cataloging cases of 13 and 14·year.o!ds serving life sentences).

29 Mark Martin, Governor to Consider Early Inmate Release; Giving Nonviolent Convicts a Break Could Ease Crowding, stave off Judges, S.F. CHRONICLE, Feb. 23, 2007' at Al (citing a federal study finding a 3% recidivism rate among ex·convicts over 55

compared to a 45% recidivism rate among 18·49 year.old ex convicts).

30 In states like Illinois, Kansas, Missouri, New Hampshire, and

Ohio, to name just a few examples, there are boards that have to be consulted, but low clemency rates. See Love, supra note 3. Former California Governor Gray Davis, for example,

vetoed parole for 278 of the 284 convicted murderers for

whom the state parole board recommended release. Editor· ia!, Models for Mr. Bush, WASH. POST, Dec. 28, 2004, at Al8.

31 Rachel E. Barkow, Administering Crime, 52 UCLA L REv. 715

(2005). 32 Rachel E. Barkow & Kathleen M. O'Neill, Delegating Punitive

Power: The Political Economy of Sentencing Commission and Guideline Formation, 84 TEX. L. REV. 1973, 1974 and tbl. 1 (2006).

33 8arkow, supra note 31. 34 In the case of sentencing commissions, either having legisla·

tors on the commission or otherwise in a close relationship

with the commission is critical because of the role that tegis· lators can play in overruling the commission. See 8arkow,

supra note 31, at 800·04. Legislators should not serve on

clemency boards because of separation of powers concerns, so in the context of clemency, the key is to get the political

interests who would oppose clemency grants (namely prose· cutors and victims groups) to participate.

35 Mosk, supra note 9. 36 Here it is noteworthy that in the early days of the republic,

the prosecutor or the sentencing judge often recommended an executive pardon or commutation. MARGARET COLGATE LovE, REINVENTING THE PRESIDENT'S PAROON POWER 4 (Oct. 2007), ava1/. able at http://www.acslaw.org/files/Presidential%20 Pardons%20 I ssue%20Brief%20·%200ctober%20200 7. pdf

37 See 8arkow, supra note 31, at 803 (cautioning against imbal·

ance on sentencing commissions). 38 8arkow, supra note 31, at 804·05. 39 Thomas 8. Marvell, Sentencing Guidelines and Prison Popula­

tion Growth, 85 J. CRlM, L. & CRIMINOLOGY 696, 703·04 (1995); Kevin R. Reitz, The status of Sentencing Guideline Reforms in the U.S., in PENAL REFORM IN OVERCROWDED TIMES 31 (Michael Tonry ed., 2001).

40 Barkow & O'Neill, supra note 32, at 1976 (finding among other things that "corrections as a large percentage of state expenditures and a high incarceration rate are positively cor. related with the presence of sentencing commissions").

41 See generally Rachel E. 8arkow, Federalism and the Politics of Sentencing, 105 COLUM. L. REV. 1276, 1285·90 (2005)

(describing state sentencing reforms based in cost con· cerns).

42 Id. 43 Keith 8. Richburg & Ashley Surdin, Fiscal Pressures Lead

Some states to Free Inmates Early, WASH. POST, May 5, 2008, at Al.

44 Geoff Dornan, Pardons board to look at reducing prison over­crowding, NEVADA APPEAL; Oct. 30, 2008, available at http:/ /www. nevadaappea!. co ml artic le/20081030/N EWS/81

0299954/1070&ParentProfi le= 1058&title=Pardons%20boa r

d%20to%201ook%20at%20reducing%20prison%20over· crowding.

4s Love, supra note 36, at 14. 46 The Federalist No. 74, at 422 (Alexander Hamilton) (Penguin

Books ed. 1987).

FEDERAL SENTENCING REPORTER • VOL. 21, NO. 3 • FEBRUARY 2009 159

Clemency for the 21 '1 Century: A Systemic Reform of the Federal Clemency Process

Mark Osler & The Clemency Reform Project

I. Introduction

Federal clemency is in crisis. In response to that crisis, a remarkable bipartisan consensus has formed in support of systemic reform. This statement acknowledges that consensus, and lays out a framework for change. The reforms described here are achievable without significant congressional action, consistent with best practices in the states, and cost-effective. To summarize our conclusions, we urge that this administration take the clemency process out of the Department of Justice, create an independent and bipartisan Clemency Board that would report directly to the President, and establish a regular and systemic process for executive consideration of individual cases.

II. The Need for Reform

The need for reform of the federal clemency process has become particularly apparent. Criticism has focused on a wide range of problems, but the most notable are the paucity of clemency grants and the inconsistency in how petitions are treated.

This critique has come from a remarkable range of observers that include leaders among the judiciary, press, academy, and both conservative and liberal political commentators.

Hard data supports these criticisms. The decline in clemency grants has been steady and steep.

President Clemency Grant Rate Avg. Grants per Number of Total Month in Office Grants

Nixon 35.7% 13.8 926 Ford 26.8% 14.1 409 Carter 21.5% 11.8 566 Reagan 11.9% 4.8 410 George H.W. Bush 5.3% 1.6 77 Clinton 6.1% 4.8 457 Georne W. Bush 1.8% 2.1 200

1

Electronic copy available at: http://ssrn.com/abstract=2248361

The current administration has extended this trend, using the pardon power less often than any other modem executive. President Obama ended his first term with 22 pardons and one commutation, 1 giving him a grant rate of less than 1 for each month he has been in office and the lowest total number for a full-term president since George Washington.2 With almost 400,000 people currently under federal supervision,3 and hundreds of thousands more living with federal records, this decline cannot be attributed to lack of appropriate candidates for clemency. Moreover, a recent internal review by the DOJ's Inspector General concluded that Pardon Attorney Ronald L. Rodgers engaged in "conduct that fell substantially short of the high standards expected of Department of Justice employees and the duty he owed the President of the United States."

Even the Supreme Court has drawn attention to the Obama administration's failure to use its clemency power. While hearing argument in Dillon v. United States on March 30, 2010, Justice Anthony Kennedy unexpectedly raised the paucity of grants. In challenging the government, he asked, "And were there­how many commutations last year? None. And how many commutations the year before? Five. Does that show that something is not working in the system?" The national press took note of this striking exchange.

The following year, ProPublica Journalist Dafua Linzer began a remarkable series of articles in the Washington Post which have painstakingly described the slow work, the inconsistencies, and the ethical breakdowns within the Pardon Attorney's office.

Many others joined this chorus and called for systemic reform of the federal clemency process, and on January 5, 2013 the editorial board of the New York Times concluded that the problem was serious and largely structural, concluding that "It is time for Mr. Obama to vigorously exercise this august and singular responsibility."

Within the span of a few months and in a rare showing of consensus, both the American Constitution Society and the Heritage Foundation issued reports condemning the federal clemency process and urging broad reforms. The ACS report, authored by former U.S. Pardon Attorney Margaret Love, and a Heritage

1 Datha Linzer, Commutation request will get a new look: U.S. inmate's case sparked criticism, Wash. Post, July 19, 2012, atA3. 2 Obama: More Dubious Pardon History-Making, Pardon Power Blog, http://www.pafdonpower.com/, Jan. 24, 2013. 3 Federal Justice Statistics 2009, at 17, available at http://bjs.ojp.usdoj.gov/content/pub/pdf/fjs09.pdf

2

Electronic copy available at: http://ssrn.com/abstract=2248361

Foundation Legal Memorandum, written by Paul Rosenzweig, both described the atrophy of the pardon power, identified the placement of the pardon attorney within the Department of Justice as a cause, and commonly urged that the process be pried loose from the hierarchies of the Justice Department.

The reforms recommended here respond to the concerns which underlay this broad and remarkable consensus for reform, and seek to reverse the atrophy of the pardon power through the creation of a better process that will enhance transparency, the application of consistent principles, and the fair consideration of clemency petitions.

III. Three Essential Reform Elements

A. Taking Clemency Out of the DOJ

Expert analysts from across the political spectrum have identified one factor above all other in accounting for the problems with clemency: The placement of the person responsible for evaluating petitions deep within the bureaucracy of the Department of Justice. This delegation of responsibility creates a clear conflict of interest, since pardons and commutations necessarily involve undoing convictions and/or sentences obtained by that same agency. Writing for the American Constitution Society, Margaret Colgate Love argued that "it is essential that control of the process be removed from the dead hand of federal prosecutors who have come to view pardon as 'an affront to federal efforts to fight crime." Paul Rosenzweig, in his Heritage Foundation Legal Memorandum, was just as pointed: " ... using career prosecutors to screen pardon applications has the natural tendency of subjecting pardon applications to greater scrutiny with less lenity to be expected, because career prosecutors (like any human beings) are products of their culture and less likely to see flaws in the actions of their colleagues."

It is no accident that the precipitous decline in the use of the pardon power coincided with President Reagan's delegation of responsibility to an office nested within the lower tiers of the Department of Justice. The first step in restoring a constitutionally appropriate use of clemency will be to reverse that choice.

To be sure, the lower clemency rate also corresponds with a changing political landscape on criminal justice that has made it more politically costly for any elected official to use this authority. But even in this climate, the federal government's drop in clemency stands out. Many states have not experienced the same standstill in clemency, which suggests something more is going on at the

3

federal level. The obvious conflict of interest that presents itself when the agency responsible for prosecutors is also responsible for clemency grants certainly stands out as a contributing factor to the decline. There is no reason to keep this power within the Department.

B. Creating a Modem Clemency Board

The president should be advised on clemency petitions by a diverse and distinguished panel rather than a single official. Forty-nine states and the District of Columbia have established a board rather than an individual officer to evaluate clemency petitions (with varying levels of authority), while Rhode Island puts clemency in the hands of the legislature. Only the federal system eschews the wisdom of a small group to leave clemency analysis in the hands of a single lower­level officer.

The key to the success of this board is to make sure it is populated by individuals that represent all the interests at stake in a clemency petition as well as top experts in relevant fields. The board should thus include experts on recidivism risks, sentencing policy, and reentry. A well-rounded clemency board should also include a judge or former judge, a prosecutor, and a defense attorney to help assess the merits of particular cases from all angles.

Just as important as the board's composition is the information it uses to make decisions. In addition to the individual applications before it, the board should be driven by empirical data wherever possible. Therefore, the board should be rigorous in its use of data to assess risks of reoffending and to identify outlier sentences that are disproportionate for the type of offense or offender. Similarly, the board should pay careful attention to the collateral consequences of convictions and data that either support or undermine those consequences in particular instances, so that the board is well positioned to determine when it should relieve individuals of collateral consequences to ease reentry into community and reduce recidivism. Just like any other regulatory agency, this board should be attuned to and report on the costs and benefits of sentences and collateral consequences as well as the costs and benefits of relief from those sentences and collateral consequences.

C. Routinizing Executive Consideration of Clemency

While the present federal clemency system sets out a number of formal obstacles to the consideration of an individual petition, it does not contain any

4

process elements that help ensure the fair consideration of worthwhile petitions. We propose that a reformed system contain at least three elements that would augur in favor of the fair consideration of well-supported clemency pleas.

First, there should be regular and periodic meetings between the president and the members of a clemency board for the discussion of petitions which have been thoroughly analyzed and found to have merit. Regular meetings will ensure that clemency not fade into the background among the many responsibilities of the president, and would also spur the clemency board to be consistent in its work.

Second, greater transparency should be among the elements of a new system. This should take at least two forms: Proactively describing the primary factors which will support clemency in the present moment, and announcing the reasons for the granting of clemency petitions. Both should be included in an annual report, prepared by the clemency board.

Third, as discussed above, data should support the board's analysis wherever possible, and that data analysis should be included with reports evaluating any commutation petition and in the explanation of petitions which are granted.

IV. The Path to Reform

The current process of clemency consideration was created by executive order, and the creation of a clemency panel outside of the Department of Justice could be established in the same manner. In addition, the establishment of regular meetings with that board and the transparent articulation of clemency standards and relative costs would be solely within the executive's power.

Embracing these recommendations would send a clear and defining message: That the vagaries, abuse, and disuse of this important constitutional power will be addressed, and that the pardon power will be used with principle, regularity, and transparency. The unusual challenge of the pardon power is to do justice while loving mercy, a job made possible by the humble acknowledgment that our laws at times are not perfectly fit to the shapes of human frailties and that our knowledge and experience with laws grows over time, sometimes exposing injustices that were not initially seen or recognized. Constructing a better system for the evaluation of clemency petitions will move our presidents closer to achieving this difficult but important task.

5