CLE Written Materials
Center on the Administration of Criminal Law's
Annual Conference
April 15, 2014
NYU School of Law
"Mercy in the Criminal Justice System"
6th
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.
The Mercy Project
Center on Administration of Criminal Law
New York University Law School
Legal Primer
September 2013
Prepared by Harlan Protass of Clayman & Rosenberg LLP for the Mercy Project.
TABLE OF CONTENTS
Page
I.
INTRODUCTION ...............................................................................................................1
II.
HISTORICAL BACKGROUND ........................................................................................2
III.
IV.
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
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
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
i
V.
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
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 NonMedical 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
ii
VI.
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
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
iii
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, postconviction conduct and other similar facts and circumstances. Mercy Project staff are available
to assist and advise in doing so.
1
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
2
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).
3
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
4
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
5
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 preNovember 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.
6
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.
7
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.”
8
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
9
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.
10
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
11
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.
12
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 asyet 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.
13
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 previouslysentenced 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.
14
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
15
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, 125582, 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
16
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)).
17
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
18
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).
19
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.
20
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
21
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 NonMedical 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.
22
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.
23
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 prearrest 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
24
to which the inmate had contact with and/or cared for the child before arrest, pre-trial or presentence 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
25
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).
26
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;
27
●
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.
28
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.
29
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.
30
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 postconviction 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
31
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 employmentrelated 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.
32
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.
33
Innocence Project Clinic & Clemency Project
Columbus School of Law
The Catholic University of America
Federal Commutation Petition Checklist*
[Client Name] [BOP inmate number]
Task
PACER search
State databases civil and criminal
filings
Pre-Sentence
Report
BOP Inmate
Behavior Report
BOP Inmate
Progress Report
(summary of
educational and
other activities in
prison)
BOP Transfer
record
Materials from
attorney files;
e.g., Motions
briefs, etc. re
sentencing
Judgment Order
Sentencing
Hearing Transcript
Reported and
unreported cases
- both criminal
and related civil
cases
Judgment Orders
of Co-defendants:
reported and
unreported cases
Possible Source(s)
Request made
(date)
Request made By
Date received
PACER
(additional rows as
needed for all
states to search)
Case manager;
defense attorney
Petitioner; case
manager
Petitioner; case
manager
Case manager
Defense attorneys
Petitioner;
defense attorney;
court
Defense attorney;
court
Attorneys;
Lexis/Westlaw
Court; attorneys
1
Complete prior
record
Prior clemency
petitions
Research
Sentencing Law
Research
Alternatives to
clemency
Letters of Support
FBI form 1-783
CJIS Summary
Request
Petitioner; FOIA to
Pardon Attorney
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: _ _ __
(Month)
_ _ _ _ Place of B i r t h : - - - - - - - - - - - - - - - (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 f o r - - - - - - - - - - - (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)
*7. Are you eligible for parole? __Yes
(day)
(year)
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?
Is your appeal concluded?
Yes
Yes
No
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?
Is your appeal concluded?
Yes
Yes
No
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?
Yes
No
If yes, please describe in detail the challenge(s) and its status.
*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.)
(Firm name, address, phone number, if known)
Name
(For pre-trial, trial or appeals, etc.)
(Firm name, address, phone number, if known)
Name
(For pre-trial, trial or appeals, etc.)
13. Have you ever served in the armed forces of the United States?
Yes
No
If yes,
Dates of s e r v i c e s : - - - - - - - - - - - - Branch(e s ) : - - - - - - - - - - - - - - - -
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)
(Full address, including zip code)
(Date and place of marriage)
(Name of spouse)
(Full address, including zip code)
(Date and place of marriage)
(Date and place of birth)
(Telephone number)
(Date and place of divorce)
(Date and place of birth)
(Telephone number)
(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)
(Name of other parent)
(Name of child)
(Name of other parent)
(Name of child)
(Name of other parent)
(Date and place of birth)
(Address and telephone number)
(Date and place of birth)
(Address and telephone number)
(Date and place of birth)
(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
School ofLtw
Mail MSl.400
1000 LaSal!e Avenue
Minneapolis, MN 55403-2015
USA.
Tdephooe'. 1 (651) %2-4970
Facsunile: l (651) 962-4996
November 5, 2012
Office of the Pardon Attorney
1425 New York Ave. N. W.
Suite 11000
Washington DC 20530
Dear Mr. Rodgers,
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.
·
Yours Truly,
~Q~
Mark Osler
Prof. of Law
Univ. of St. Thomas (MN)
An Egtut{ Opporrunity/Affirmacive Ac:doti Employet
St. Pall), Minnesota
MioneapoJ!g, Minnesota
Owatonna, Minnts()ta
Rome, fraly
Table of Contents
Commutation Petition: Weldon Angelos
A) Petition Form
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, truthfolly and accuraiely. If the space for any answer is insid.ficient, you may
complete the answer on a separate sheet ofpaper and attach it to the petition. You may attach any additional documentation
that you believe is relevant to your petition. The submi.ssion ofany material, false information is punishable by up to five
years' Imprisonment andafine ofnot more than $250,000. 18 US. C. §§ 1001and3571.
Relief sought: (check one)
l£i'
Reduction of Prison Sentence Only
!QRemission of Fine and/or Restitution Only
filReduction of Prison Sentence and Remission
IQ)Other _ _ _ _ _ _ _ _ _ _ _~
To The President of the United States:
The undersigned petitioner, a Federal prisoner, prays for commutation of sentence and in
support thereof states as follows:
L
Reg. No, 10053-081
Social Security No. ~5"'2"-9--=2'-'-7--'-2""5""4"'3_ _ _ _ __
Confined in the Federal Institution
at 2L,,,o,,,m,,,p,,,,o"'c"',--'C"'a,,.li,,·~,,,o"'rn,,.i~a_ _ _ _ _ _ _ _ _ _ _ __
Date and place of birth: July 16, 1979 at Salt Lake City, Utah
Arc you a United States citizen?
Ifyou are not a U.S. citizen, indicate your country ofcitizenship
Have you ever applied for commutation of sentence before?
!IZi'yeSIOfno
Ifyes, state the date(s) on which you applied, aJJd the date(s) when you were notified of the final decision on your
petllion(s).
A petition was filed in 2009, but denied due to the then-pending habeas petition.
Offcnse(s) For Which Commutation ls Sought
2.
I was convicted on a plea of _ _ _~n~o~t'-'gu=il,,ty,___ _ _ in the United States District Court
(gWlty, not guf!ty, nolo contendere)
for the _ _~-~--~--District of _ _ _ _ _U=tah=------ of the crime of:
{Northern, Western, etc.)
UnittKlStat.es Depwtmenl ofJustice
Office ofthe Pardon Attorney
Washington, D.C. 20530
(ldenUfy stare)
Jam1ary 2002
Offense(s) For Which Commutation Is Sought
firearm in furtherance of a drug trafficking crime (counts 2, 4, and 10); Possession of a stolen
firearm (counts 6 and 11); User of a controlled substance in possession of firearm (counts 8 &
12); Poss. of firearm with removed serial number (ct. 7); Money lau11dering (cts. 18, 19 & 20).
I was sentenced on March 26 , 2004 to imprisonment for
(monthiday)
55 years+ one day
(length ofsentenc~)
(yeqr)
D a fine of$ (do not tnclilde special assessment) , 0
, to pay
restitution of$ _ _ _ _ _ _ _ _____:, and to
~ 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>fientence)
3.
I began service of the sentence of imprisonment on 11/16 , 2004 , and I am projected to
(month/day)
be released from confinement on
11/18
(monlh!da)')
&ear)
2051
(Vear)
Are you eligible for parole?
[J]yesll2!:no
Jfyeu, 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?
Ifthe fine or reslilurion has not been paid in full, state the remaining balance.
4.
Did you appeal yonr conviction ur sentence to the United States Court of
Appeals?
llZJyemno
Is your appeal concluded?
~ye.5[0no
Ifyes, 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 ofSentence
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. Ifyou have filed n1ore than one post-conviction motion provide the requested Information
for each tluch motion.
1
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 ofcharge, the law enforcement authority involved, and the
final disposition ofthe 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)
~~
Signature OfPetitioner
Petition/or Commutation ofSentence
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 55year 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
1
8
Id.
Id.
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.''t 5 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
17
chorus. 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 ofSentencing 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 ofExecutive 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
19
Mr. Angelos was first a1Tosted and jailed on July 11, 2002.
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
ALP Construction Inc.
6566 west 13400 south
Herriman, Utah 84096
Office of the Pardon Attorney
Department of Justice
Washington, DC 20539-0001
Re: Weldon Angelos/Presidential Clemency
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 ¥,
Matthew Snyder, D.D.S.
0 Ds
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<[email protected].
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. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
I.
II.
THE LEAST RESPECTED POWER . . . . . . . . . . . . . . . . . . . . . . . . . . . .
WHAT THE PRESIDENT CAN LEARN FROM THE STATES
His PARDON POWER........................
A. Independent Board Model . . . . . . . . . . . . . . . . . . . . . . . . . . . .
B. Shared Power Model . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
C. Optional Consultation Model . . . . . . . . . . . . . . . . . . . . . . . . .
ABOUT USING
III.
731
734
743
744
745
747
RECOMMENDATIONS FOR REFORMING THE FEDERAL PARDON
PROCESS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
751
A. Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
B. Accountability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
C. Transparency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
751
752
753
754
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ' . . .
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 ad29. 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 recom37. 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
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/glQA 61 bV
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-told-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.").
OF JUSTICE PROCESSING OF CLEMENCY RECOMMENDATIONS
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-to49. 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 Ken52. 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).
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UNIVERSITY OF ST. THOMAS LAW JOURNAL
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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 applica61. 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 governor 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 predecessor74that 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 recommen-
dation 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"); lowA
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.
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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. 5/3-313(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 attor81. 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.
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UNIVERSITY OF ST. THOMAS LAW JOURNAL
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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 par85. 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. sj-r.com/top-stories/x537 697530/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
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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 appli92. 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.
Eligibility
Requirements
Following completion
State
Type Of Administration
Type Of Process
AL
Independent board appointed by
governor exercises pardon power,
except governor has authority in
capital cases.
Ala. Const. amend. 38 (amending
Art. V § 124); Ala. Code§§ 15-22-20
through 15-22-40. The board must
make a full annual report to the
governor.§ 15-22-24(b).
Public hearings at regular
intervals; 30 days' notice must
be given to the attorney
general, prosecutor, sentencing
judge, chief of police and the
county sheriff, and the victim.
Ala. Code§ 15-22-231. Each
board member gives reasons
for vote. Process takes about
one year.
AK
Governor decides, parole board must
be consulted but advice not binding.
Alaska Const. art. III, § 21; Alaska
Stat. § 33.20.080.
No formal regulations, no
public hearing. Parole board
staff investigates,. consults with
DA and court, prepares
confidential recommendation
to governor. Alaska Stat. §
33.20.080.
Parole board staff must
find a person eligible to
apply on merits.
AZ
Governor decides, may not act
without affirmative clemency board
recommendation. Ariz. Const. art. V,
§ 5; Ariz. Rev. Stat.§ 31-402(A).
Governor must publish reasons for
each grant, and report regularly to
legislature. Ariz. Rev. Stat.§§ 31445, -446.
Board meets monthly; must
publish application, hold public
hearing, publish
recommendation to governor
with reasons. Ariz. Rev. Stat.
§§ 31-401, 31-402.
Any Arizona felony
offender. Ariz. Rev.
Stat. § 31-402.
of sentence, incl. fine,
no pending charges, or
after 3 years
"permanent parole"
unless pardon sought
for actual innocence.
Ala. Code§ 15-2236(c). Federal and outof-state offenders
eligible.
Frequency of
Grants
Frequent and
Regular: More than
500 pardons granted
annually;2000+
restoration of rights.
Alternative
Restoration
None.
Conviction set aside
may not serve as
predicate or be used
by licensing board.
Rare: Only three
pardons since 1995.
Judicial set aside after
deferred sentencing.
Alaska Stat. §
12.55.085 et seq.
Pardon relieves
legal consequences,
but conviction must
still be reported and
is given predicate
effect. 68 Ariz. Op.
Att'y Gen. 17.
Infrequent: Pardons
increasingly rare
since 1990; Gov.
Brewer has issued no
pardons.
Judicial set-aside for
no~-Serious offenders;
court restores frrearms.
Ariz. Rev. Stat. §§ 13905 through 13-907.
Effect
Only as specified in
grant (full pardons
rare); predicate
unless expressly
provided. Ala. Code
§ 15-22-36.
Margaret Colgate Love, NACDL Restoration of Rights Resource Project, January 2014
AR
CA
co
Governor decides, parole board
must be consulted but advice not
binding. Ark. Const. art. VI, § 18;
Ark. Code Ann. § 16-93-204(a).
Governor must report to legislature
on all grants with reasons. Ark.
Const. art. VI,§ 18.
No public hearing. Parole board
must give 30 days' prior notice
of favorable recommendation,
and governor must give 30 days'
public notice (including
statement of reasons) to
prosecutor and victim. Ark. Code
Ann.§§ 5-4-607(d)(l);l6-93204(c)(l); 16-93-207(a).
No restrictions.
Federal and out-ofstate offenders are
eligible to apply. Ark.
Const. art. VI, § 18;
Ark. Code Ann. § 1693-204.
Governor decides, parole board may
be consulted. For recidivists, board
must be consulted, majority of
supreme justices must recommend ..
Cal. Const. art. V, § 8; Cal. Penal §§
4800, 4812-4813, 4852.16.
Governor report grants to
legislature, including facts and
reasons for grants. Cal. Const. art.
V, § 8; Cal. Penal§ 4852.16.
No provision for public hearing.
Certificate of rehabilitation from
court (PD representation), or
direct application to board if
non-resident or misdemeanant.
Cal. Penal Code § 4852 et seq.
10 years after
completion of
Governor decides ("subject to such
regulation as may be prescribed by
law relative to the manner of
applying"). Colo. Const. art. IV,§ 7.
Non-statutory advisory scheme;
Governor sends legislature "a
transcript of the petition, all
proceedings, and the reasons for his
action." Colo. Const. art. IV, § 7.
No hearing, governor as a matter
of policy seeks views of
corrections authorities, DA and
judge. Colo. Rev. Stat. §§ 16-17101; 16-17-102.
No eligibility
restrictions.
Frequent and
Regular: About JOO
grants each year,
300-500 applications
annually.
Sealing for first
offenders and
probationers. Ark.
Code Ann. § 16-931201
et seq.;§ 5-4-311.
Described as "an
honor," restores civil
rights and removes
occupational bars, but
no expungement;
guns separately
restored. Maybe
used as predicate.
Cal. Penal Code §§
4852.15, 4853.
Frequent and
regular: Very few
pardons between
1990 and 2011, but
Jerry Brown has
granted 336 pardons
through December
2013.
Set-aside for
probationers;
certificate of relief.
Cal. Penal Code §
1203.4(a).
Restores civil rights
and firearms privileges
assists with licensing
and employment,
recognizes meritorious
achievement and
rewards exceptional
citizenship.
Infrequent: Pardons
infrequent since
1990s, although
Governor Bill Ritter
issued almost 30
pardons at the end of
his term.
Drug convictions
may be sealed after
waiting periods from
3 to 10 yrs. Colo.
Rev. Stat. § 24-72308.6.
Relieves legal
disabilities, grounds
for expungement in
most cases; firearms
separately restored.
No predicate or
enhancement. Ark.
Code Ann. §§ 16-93301 to 16-93-303.
sentence.
Margaret Colgate Love, NACDL Restoration ofRights Resource Project, January 2014
State
CT
Type Of Administration
Type Of Process
Independent board appointed by
governor exercises pardon power.
Conn. Gen. Stat.§ 54-124a(f).
Eligibility
Requirements
Public hearings at regular
intervals at which applicant
must be present, with reasons
for denial given. Board may
dispense with hearing in
certain classes of cases.
Process takes about one year.
Conn. Gen. Stat. § 54124a(e)--{k).
5 years following
completion of
sentence;
misdemeanants may
apply. Provisional
pardon may be
sought any time after
sentencing. Corut.
Gen. Stat. § 54130e(b).
Effect
Relieves all legal
disabilities, court may
"erase" conviction;
"erased;" may be
predicate unless records
destroyed. Provisional
pardon relieves one Or
more "barriers and
forfeitures." Conn. Gen.
Stat.§ 54-142a(d).
Frequency of
Grants
Frequent and
Regular: About 400
pardon grants
annually, including
provisional pardons
(about 30% of
applicants get
hearing, most of
those granted); more
than half to
misdemeanants.
Alternative
Restoration
None; law prohibits
discrimination in
licensing and
employment. Conn.
Gen. Stat. § 46a-80.
DE
Governor decides, may not act
without affirmative clemency
board reconunendation. Del. Const.
art Vil, § I. Governor must report
periodically to legislature. Id
Pardon board, chaired by
lieutenant governor, public
hearings at regular intervals,
recommendations and reasons
announced. Favorable
recommendations sent to
governor. Process takes about
six months. Del. Const. art.
Vil; Del. Code. Ann. tit.II,§
4362.
3-5 years following
completion of
sentence, absent
hardship;
misdemeanants may
apply.
Relieves disabilities ex.
constitutional prohibition
against holding state
office or employment.
May be used as predicate
and to enhance
subsequent sentence. Del.
Code. Ann. tit. 11, §
4364.
Frequent and
Regular: Over 200
pardons annually in
recent years, (about
75% of applications
received are granted).
Applications have
tripled since 2005.
Expungement for
deferred adjudication
and diversion,
pardoned
misdemeanor
convictions. Del.
Code Ann. tit.
11, §§ 4371-4375.
DC
President decides under a nonstatutory advisory scheme. U.S.
Const. art II, § 2.
Informal process described in
28 C.F.R. Part I and United
States Attorneys Manual. No
time limit, and applications
may remain pending for years.
5 years after sentence
or release from
confinement. 28
C.F.R. Part I.
Relieves legal disabilities
and signifies
rehabilitation and good
character. May be used as
predicate. 1995 WL
861618 (1995).
Rare: Only a handful
of DC offenders have
been pardoned by the
president since 1980.
Expungement of
minor D.C. Code
offenses. D.C. Code
§ 16-801 et seq.
Margaret Colgate Love, NACDL Restoration ofRights Resource Project, January 2014
FL
Governor decides with
concurrence of two cabinet
officials. The governor and
three cabinet officials act as
pardon board. Fla. Const. art.
IV, §8 (a); Fla. Stat. ch. 940.01,
940.05. Governor reports to
legislature each restoration and
pardon. Id. at 940.01.
Public hearing for pardon, and
for restoration of rights for many
offenders (offenses specified in
clemency rules). Hearings are
held on a quarterly basis, DA
and victims notified. Separate
process for firearms restoration.
Eligibility immediately
following completion
of sentence. Out-ofstate and federal
offenders eligible for
ROR but not pardon
(R. 9D).
ROR restores vote and
other basic civil rights.
(R. 4F) .. Pardon
"unconditionally releases
the person from
punishment and forgives
guilt." Id. Restores
frrearms rights. Id at 4A.
May be used as
predicate.
Sparing: 20-40 pardon
grants annually between
2006 and 2010; 20-30
frrearms restoration
grants annually (about
halfof applications).
Restorations of rights
number in thousands.
Sealing and
expungement for
misdemeanors and
minor felonies. Fla.
Stat. ch.
943.0585(!)(b)(l );
943.0585. Deferred
adjudication. Fla.
Stat. ch. 948.01(2).
GA
Independent board appointed
by governor exercises pardon
power. Ga. Const. art. IV, § 2,
para. II. Board must report
annually to legislature, the
Attorney General and the
Governor. Ga. Code Ann. §
42-9-19.
Paper review, no public hearing.
Board decides cases by majority
vote, and in a written opinion.
Ga. Code Ann. §§ 42-9-42(a)
and (b); 42-9-43.
5 years following
discharge; out-of state
offenses eligible for
restoration of rights
but not pardon. Drug
and violent offenses
ineligible to apply by
Board policy.
Relieves all legal
disabilities except return
to public office. May be
used as predicate. Ga.
Code Ann. § 42-9-54;
Morris v. Hartsfield, 197
S.E. 251(Ga.1938).
Frequent and Regular:
Between 300-400
pardons w/o gun rights;
100 pardons w/ gun
rights, several hundred
"restoration of rights"
(approx. 35% of
applicants); immigration
pardons.
Deferred
adjudication arid
'exoneration' for first
offenders. Ga. Code.
Ann. § 42-8-60 et
seq.
HI
Governor decides, parole board
may be consulted. Haw. Const.,
art. V, § 5; Haw. Rev. Stat.§
353-72.
No public hearing; parole boards
interviews applicant,
recommends to AG's office,
which conducts independent
investigation and makes
recommendation to governor.
Process takes 8 months. Haw.
Rev. Stat. § 353-72.
No eligibility
requirements.
A pardon will state that
the person has been
rehabilitated, relieves
legal disabilities and
prohibitions. No
expungement, may be
used as predicate. Haw.
Rev. Stat. §§ 353-62,
353-72.
Sparing: Gov. Lingle
granted 132 pardons in 8
yrs., 55 in her last year
(2010). About 50
applications filed per
year.
Deferred
adjudication and
expungement; state
FEP laws includes
conviction. Haw.
Rev. Stat. §§ 853-1;
831-3.
ID
Independent board appointed
by governor decides all but
violent and drug offenses,
which must be approved by
governor. Idaho Const. art. IV,
§ 7; Idaho Code Ann. §§ 20210, 20-240.
Public hearing at regular
intervals; reasons for each action
must be filed with Secretary of
State. Idaho Code§§ 20-210, 20240; see IDAPA § 50.01.01.
Three years for nonviolent offenses, five
years for violent. Idaho
Code§ 18-310(3).
Relieves certain legal
disabilities, including
frrearms. Idaho Code §
18-310.
Frequent and Regular:
In recent years 30-40
grants annually, about
half of applications filed.
Deferred
adjudication but no
expungement; ex.
for some juvenile
offenses. Idaho
Code§ 19-2601 et
seq.
Margaret Colgate Love, NACDL Restoration ofRights Resource Project, January 2014
State
Type Of Administration
Type Of Process
IL
Governor decides, although 'the
manner ofapplying therefore
may be regulated by law." Ill.
Const. art. V, § 12. Prisoner
Review Board authorized to
Public hearings at regular
intervals before the
Prisoner Review Board,
which makes confidential
recommendations to
Governor. 730 Ill. Comp.
Stat. 5/3-3-1 et seq.
provide advice to governor. 730
Ill. Comp. Stat, Ann. 5/3-31(a)(3).
IN
IA
Governor decides, "subject to
such regulations as may be
provided by law." Ind. Const.
art. 5, § 17. Parole board makes
advisory reconunendations to
governor. Ind. Const. art. 5, §
17; Ind. Code§§ 11-9-2-1 to II9-2-3. Governor reports to
legislature. Ind. Const. art. 5, §
17.
Public hearing; parole
board notifies victim,
court, and DA; conducts
investigation and holds
hearing at which
petitioner and other
interested parties are may
present their position. Ind.
Code § 11-9 et. seq.
Governor decides "subject to
such regulations as may be
provided by law." Iowa Const.
art. IV, § 16. Parole board
authorized to provide advice.
Iowa Code§§ 914.1-914.7. ,
Governor reports to legislature
on pardons issued and reasons.
Iowa Const. art. IV, § 16.
Paper review, no public
hearing for pardon and
restoration of rights.
Separate firearms
restoration procedure.
Iowa Code§ 914 et seq.
Eligibility
Requirements
No eligibility
requirements.
Recent governors
have required a 5M
year waiting period
and evidence of
rehabilitation. 15
years for firearms
restoration.
10 years for
pardon, 5 years for
firearms; no
waiting period for
restoration of
rights. Out-of-state
and federal eligible
for ROR. Iowa
Code§ 914.2.
Frequency of Grants
Alternative
Restoration
Relieves legal disabilities;
expungement may be
authorized by the grant.
People v. Glisson,
358 N.E.2d 35 (Ill. App.
Ct. 1976).
Frequent and Regular:
Between 2009 and
December 2013 Gov. Quinn
granted 1032 pardons, about
half of those that applied.
Board hears 800
applications each year.
Judicial certificates;
sealing for certain
misdemeanors and
minor felonies. 730 Ill.
Comp. Stat. 5/5-5.5-5
et seq.; 20 Ill. Comp.
Stat. 2630/5 et seq.
Pardon wipes out both the
punishment and the guilt,
basis for expungement.
Kelley v. State, 185 N.E.
453 (Ind. 1933). See also
State v. Bergman, 558
N.E.2d 1111 (Ind. Ct. App.
1990); Ind. Code§ 35-472-20(a); § 11-9-2-4.
Sparing: Gov. Daniels:
granted 62 pardons during
his eight years in office,
acting favorably on about
half of those recommended
by board.
Pardon relieves of all legal
disabilities (incl. public
employment disabilities).
See Slater v. Olson, 299
N.W. 879 (Iowa 1941).
Restoration ofrights
restores right to vote and
hold public office, may
also restore firearms rights.
Frequent and Regular:
Average of35 full pardons
each year between 2005 and
2011 (fewer since 2009),
with another 30-60 grants to
restore civil rights and
firearms privileges
Effect
Margaret Colgate Love, NACDL Restoration ofRights Resource Project, January 2014
Expungement for most
offenses; sealing for
misdemeanors, Class
D felonies, and
nonconviction records.
Ind. Code § 35-38-9;
§ 10-13-3-27(a).
Restoration of gun
rights by governor;
Deferred adjudication
and expungement for
some first offenders.
Iowa Code§§ 907.3;
914.7
KS
Expungement for
mauy felony
offenses. Kan. Stat.
Ann.§ 21-4619 et
Governor decides, subject to
regulations and restrictions by
law. Kan. Const. art. I, § 7. The
governor required to seek the
advice of the prisoner review
board, though not bound to
follow it, Kau. Stat. Ann. § 223701(4). Reports to legislature
on each pardon application but
need not give reasons. Kan.
Stat. Ann. § 22-3703.
Paper review. Applicant
must publish a copy of the
application in a newspaper
in county of conviction at
least 30 days before graut
or pardon is void.
Applicaut must also
provide notice of
application to DA, judge
aud victim. Kan. Stat. Ann.
§ 22-3701 et seq.
No eligibility
requirements, except that
only Kansas state
convictions are eligible to
be pardoned or commuted.
Kan. Stat. Ann. § 223701.
Pardon removes
disabilities imposed
under state law, but
does not expunge
conviction or lift bar to
service as a law
enforcement officer.
Cf Kan. Att 'y Gen.
Op. No. 85-165 (1985).
May be used as
predicate.
Rare: Pardons very rare,
primarily for miscarriage of
justice
KY
Governor decides, parole board
may be consulted. Ky. Const. §
77. Governor may also restore
rights of citizenship, office. Id.
§§ 145, 150. Governor reports
to legislature reasons for each
graut. Id. § 77.
No public hearing. Pardon
applications sent directly to
the governor with reasons
for seeking relief and
letters of recommendation.
Simplified ROR process
administered by DOC. Ky.
Rev. Stat. Ann. § 439 et
seq.
For restoration of rights,
expiration of sentence
with no pending charges.
For pardon 7-year waiting
period. Federal and outof-state offenders eligible
for restoration of rights.
Arnett v. Stumbo, 153
S.W.2d 889 (1941).
Restoration of
citizenship restores a
person's right to vote
aud eligibility for jury
service. A full pardon
relieves additional legal
disabilities. May be
used as predicate. Ky.
Const. § 145(1).
Rare: Pardons during tenn
rare; ROR frequent
Misdemeanor
expungement. Ky.
Rev. Stat. Ann. §
431.078.
LA
"Upon favorable
recommendation of the Board of
Pardons," the Governor may
pardon "those convicted of
offenses against the state." La.
Const. art. IV,§ 5(E)(l); La.
Rev. Stat. Ann. § 15:572(A).
Regular public hearings,
approval by four of five
board members; DA aud
victim notified by board,
aud by applicant through
publication of application
in newspaper. La. Const.
art. IV,§ 5(E)(2); La. Rev.
Stat. Ann. 15:572.1.
Completion of sentence,
plus payment of costs. La.
Const. art. IV,§ 5(E)(l);
La. Rev. Stat. Ann. §
15:572(A); see Op. La.
Att'y Gen. No. 04-0080
(2005).
Full pardon restores to
"status of innocence,"
conviction cannot be
used to enhance
punishment. State v.
Riser, 30,201 (La. App.
2 Cir. 12/12/97).
Infrequent/uneven: In 4
years, Gov. Jindal issued 36
pardons and commuted one
sentence in his first term.
Previous governors granted
331 (in 4 years) aud 476 (in
8 years). Edwin Edwards
granted over 3,000 in 16
years.
Deferred
adjudication aud
expungement. La.
Const. art. IV, §
5(E)(l); La. Rev.
Stat. Ann.§
15:572(8)(1).
seq.
Margaret Colgate Love, NACDL Restoration ofRights Resource Project, January 2014
Public hearings at regular intervals;
Eligibility
Requirements
5 years following
Relieves legal
board makes confidential
completion of sentence.
disabilities. Me.
State
Type Of Administration
Type Of Process
ME
Governor decides, subject to
regulation "relative to the manner
ofapplying." Non-statutory
advisory scheme. Me. Const. art.
V, pt. 1, § 11.
recommendations to governor.
Parole board conducts
investigation. Applicant notifies
Effect
Rev. Stat. Ann.
tit. 16, §§ 611-622.
Frequency of Grants
Infrequent/uneven: As
of April 2012, Gov.
Lepage had granted no
pardons. Between
2002 and 2010,
Alternative
Restoration
No other relief
provided
Governor Baldacci
DA, publishes notice of hearing in
a newspaper 4 weeks beforehand.
granted 131 pardons,
51 in his final year. In
past about 50 hearings
Me. Rev. Stat. Ann. tit. 34-A, §
5210(4); tit. 15, § 2161.
each year, 25% result
in pardon.
MD
Governor decides, parole board
may be consulted. Md. Const. art.
II, § 20; Md. Code Ann.,
Correctional Services § 7206(3)(ii). Constitution requires
governor to publish notice of
intention to grant, and to report
grants to legislature with reasons.
Md. Const. art. II, § 20.
Paper review by Parole
Commission, whose
recommendations to the governor
are not binding. Md. Code Ann. §
7-206(3)(ii).
Felony convictions must
have 10 crime-free years
to be eligible (seven if
Parole Commission
waiver granted);
misdemeanants must
have 5 crimeM :free years.
20wyear wait for crimes
Pardon lifts all
disabilities and
penalties imposed.
Firearms privileges
must be specifically
restored in pardon
document.
Sparing: Governor
O'Malley granted 105
pardons in his frrst six
years in office,
Ehrlich (2003-2007)
granted 228 pardons.
out of a total of 439
applications.
of violence and drugs (or
15 if waiver granted).
Margaret Colgate Love, NACDL Restoration ofRights Resource Project, January 2014
Probation before
judgment and
expungement. Md.
Code Ann., Crim.
Proc.§ 6-220(b)(l);
§ 10-105(a)(8).
MA
Governor may not act without
affirmative recommendation of
Governor's Council. Mass. Const.
pt. 2, ch. II, sec. I, art. VIII.
Governor must report to
legislature annually with a list of
pardons granted, but not required
to give reasons. Mass. Gen. Laws
ch. 127, § 152 (2011).
Petitions filed with Parole Board,
which recommends to Governor
and Council. Mass. Gen. Laws
ch. 127, § 152 (2011). Public
hearing, referral to AG, DA,
court, notice to victim. 120 Mass.
Code Regs. 902.02-.12 (2011).
Public report to governor and
Council. Mass. Gen. Laws ch.
127, § 154 (2011).
15 years after
conviction or release
from prison for
felonies, 10 years for
misdemeanors.
Governor's Executive
Clemency Guidelines
(April 22, 2003) at 2.
MI
Governor decides, parole board
must be consulted but advice not
binding. Mich. Const. Art. 5, §
14; Mich. Comp. Laws §§
791.243, 791.244. Must inform
the legislature annually of
pardons and reasons. Const. Art.
5, § 14.
All applications referred to the
board; if board decides to hold
hearing, relevant officials must be
notified. Recommendation of the
board is a matter of public record.
Mich. Comp. Laws§ 791.244.
No eligibility criteria
Pardon "releases the
Rare: Post-sentence
pardons rare in recent
punishment and blots
years (only 34 pardons
out of existence the
guilt, so that in the eye
between 1969 and
of the law the offender is 2006). Gov. Granholm
granted 20 pardons,
as innocent as if he had
100 commutations; as
never committed the
of September 2013 her
offense." People v. Van
successor had granted
Heck, 651N.W.2d174,
179 (Mich. App. 2002). ,no pardons.
First offender
set-aside;
probation
before
judgment for
drug offenders.
Mich. Comp.
Laws§
780.6211; §
333.7411.
MN
Governor and high officials
(attorney general, chief justice)
act as board exercising power.
Minn. Const. art. V, § 7. Board
required to report to legislature by
February 15 each year. Minn.
Stat. § 638.075.
Commissioner of corrections
screens applications, decides
which cases should be heard by
board. Minn. Stat.§ 638.07.
Public hearing, notice to officials
and victim, decision announced at
conclusion of hearing.
For "pardon
extraordinary," 5 crimefree years from final
discharge for
nonviolent crimes, or
I 0 crime-free years
from final discharge for
"violent" offenses.
Minn. Stat. §638.02.
A "pardon
extraordinary" restores
all rights, including
firearms rights, and has
"the effect of setting
aside and nullifying the
coriviction," so that it
need not be disclosed.
Minn. Stat. § 638.02.
Does not seal or
expunge the record, may
be used as predicate.
Common law
and (narrow)
statutory
expungement.
Minn. Stat. §
609A.
The governor, upon
granting a pardon, orders
the records of a state
conviction sealed;
thereafter, the records of
the conviction may not
be accessed by the
·public, and existence
may be denied. Mass.
Gen. Laws ch. 127, §
152 (2011). May be used
as predicate.
Margaret Colgate Love, NACDL Restoration ofRights Resource Project, January 2014
Rare: Pardons
infrequent since early
1990s, none at all
under Govs. Patrick
and Romney.
Sparing: 10-25
pardons each year,
about halfofthose
whose cases are heard.
Many more apply than
get hearings.
Sealing
available for
felonies after 5
years,
misdemeanors
after 10. Mass.
Gen. Laws ch.
276, § lOOA.
State
MS
Type Of Administration
Governor decides, parole board may
be consulted. Miss. Const. art. 5, §
124. Miss. Code Ann.§ 47-7-5(3).
Type Of Process
Applicants publish notice 30 days
before applying, stating reasons.
Miss. Const. art. 5, § 124. Facially
meritorious cases sent to the parole
board, which investigates and
ho Ids hearing. Board reports to
Governor and legislature annually.
Miss. Code Ann.§ 47-7-15.
Eligibility
Requirements
Seven years
since
completion of
sentence by
governor's
office policy.
Effect
Frequency of Grants
Pardon restores civil
rights and removes
employment
disabilities, gun
restrictions,
obligation to register.
No expungement.
No regular process.
Almost 200 postsentence pardons at
end of Barbour's term
considered irregular
and unusual.
Infrequent/uneven
Alternative
Restoration
First misdemeanor and
a few minor felony
convictions may be
expunged. Miss. Code
Ann.§ 99-19-71.
MO
Governor grants reprieves and
pardons, subject to rules and
regulations prescribed for '1he
manner of applying." Mo. Const. art.
IV, § 7. Parole board must be
consulted, but advice not binding.
Mo. Rev. Stat.§ 217.800.2.
Applications referred to board for
investigation and recommendation.
See Mo. Rev. Stat. § 217.800.2.
No provision for public hearing.
Board meetings on clemency
matters may be closed to public.
Mo. Rev. Stat. § 217.670.5.
If still in jail,
apply at any
time. If out,
eligible three
years from
discharge.
Pardon "obliterates"
conviction, relieves
of all obligations
associated with the
conviction (including
obligation to register
as sex offender). No
predicate effect. No
expungement.
Infrequent: Very few
in recent years,
although the number
ofapplications has
increased
dramatically, in part
because of extension
offrrearms restrictions
to long guns in 2008.
Bad check convictions,
some public order
misdemeanors, and
frrst~time minor
alcohol offenses may
be expunged. Mo. Rev.
Stat.§§ 610.140, §
577.054(1). Sealing of
some cases sentenced
to probation. §
311.326.
MT
Governor may not act without
affirmative recommendation of board
of pardons and paroles, except in
capital cases. Mont. Const. art. VI, §
12; Mont. Code Ann. §§ 46-23104(1 ), 46-23-301(3). Must report
grants to legislature including
reasons. Mont. Code Ann. § 46-23316.
Board may hold a hearing in
meritorious cases where all sides
are ·heard and a record made, but is
not required to do so. See Mont.
Code. Ann. § 46-23-302.
No eligibility
criteria.
Pardon removes "all
legal consequences"
of conviction,
including licensing
bars, and is grounds
for expungement.
Infrequent: No
pardons granted since
2009. Between 2005
and 2009, 22
individuals pardoned.
Deferred adjudication
and expungement.
Mont. Code. Ann. §
46-18-201.
Margaret Colgate Love, NA CDL Restoration of Rights Resource Project, January 2014
NE
· Public hearings held quarterly,
victims notified. No reasons given.
Board of Parole may advise the
Board of Pardon "on the merits of
any application ... but such advice
shall not be binding on them."
Neb. Const. art. IV,§ 13. Process
takes about one year.
Informal rule of
10 years
following
completion of
sentence for
felonies, 3 years
for misdemeanors.
Restores civil rights
other than vote; gun
rights must be separately
restored. Neb. Rev. Stat.
§ 83-1,130.
Frequent and Regular:
Over 100 pardons granted
each year between 2002
and 2013, plus reprieves
from driver's license
revocations. About 70% of
grantees also regained
frrearms privileges. 50% of
applicants are granted, 1/3
misdemeanants.
Governor and high officials
(justices of state supreme court,
and attorney general) act as board
exercising power. Nev. Const. art.
5, § 14. Governor must report to
the legislature at the beginning of
each session every clemency action
(no reasons necessary). Nev.
Const. art. 5, § 13.
Public hearings at regular intervals,
at which applicant must attend; ex.
non-violent first offenders may be
considered on a paper record.
County attorney, court and victim
notified 30 days before hearing.
Decision by majority (must include
governor). One-year process. Nev.
Rev. Stat.§§ 213.010, 213.020.
Variable, between
five and twelve
years from release
from prison or
discharge from
parole. Waivable
with consent of a
board member.
Nev. Admin.
Code§ 213.065.
Removes all disabilities,
including gun disabilities
and licensing bars, but
Frequent and Regular:
An average of20 grants
each year since 2005,
about half of those that
apply.
NH
Governor acts upon the advice of
the Executive Council. N.H. Const.
pt. 2, art. 52. Governor
traditionally will not act without
majority recommendation from
Council.
Notice to state's attorney. N.H.
Rev. Stat. Ann. § 4.21. Hearing at
direction of Governor. N.H. Rev.
Stat. Ann. § 4.28.
Persons eligible
for "annulment"
under N.H. Rev.
Stat. Ann. § 651 :5
will generally not
be considered for
a pardon.
A pardon eliminates all
consequences of
conviction, but it does
not expunge record. Doe
v. State, 328 A.2d 784
(N.H. 1974).
Rare: The Attorney
General's office receives
about 25 applications for
clemency per year, but
only two pardons and two
sentence commutations
since 1996.
Annulment
available for
most felony
convictions.
N.H. Rev. Stat.
Ann.§ 651:5.
NJ
Governor decides, parole board
may be consulted. N.J. Const. art.
V, § 2, 1f 1. Governor must report
annually to the legislature the
particulars of each grant, with the
reasons. N.J. Stat. Ann.§ 2A:l673.1.
The Governor may refer
applications for pardon to the
Parole Board for recommendation.
N.J. Stat. Ann.§ 2A:l67-7, but the
recommendation does not bind
Governor.
No eligibility
criteria.
Restores rights and make
eligible for
expungement. In the
Infrequent: Recent
governors have granted
relatively few pardons, and
generally only at end of
their terms.
First offender
set-aside. N.J.
Stat. Ann. §§
2C: 52-1-32.
NV
Governor and high officials
(secretary of state and attorney
general) act as board of pardon
which exercises power. Neb.
Const. art. IV, § 13. Governor
chairs board.
does not "erase
conviction" and
licensing boards may
condition licensure on
finding of good moral
character. May serve as
predicate. Nev. Rev.
Stat. § 213.090.
Matter of the Petition of
L.B., 848 A.2d 899, 900
(N.J. Super. 2004).
Margaret Colgate Love, NACDL Restoration ofRights Resource Project, January 2014
Set-aside for
probationers,
no sealing.
Sealing for
most
convictions
after eligibility
period of7-15
years.
State
NM
Type Of Administration
Type Of Process
Eligibility
Requirements
Frequency of Grants
Effect
Governor decides, ("[s]ubject to
such regulations as may be
prescribed by law"). N.M. Const.
art. V, § 6. Parole board may be
consulted. N.M. Stat. Ann.§ 3121-17.
Governor may send application to
parole board for investigation.
N.M. Stat. Ann.§ 31-21-17. Board
seeks recommendation from
attorney general, judge,
prosecuting attorney, and/or the
corrections secretary. The victim
must be notified.
Completion of
sentence (by
statute). Gov.
guidelines require
lengthy waiting
periods depending
on offense; no
first degree
felonies, DV or
sex offenses, or
multiple
convictions.
Restores rights of
citizenship and relieves
other legal disabilities
under state law, but does
not expunge records, or
preclude use of
conviction as predicate
offense and to enhance
subsequent sentence.
Infrequent: Pardons
granted only in
"extraordinary
NY
Governor decides, subject to
regulation in "the manner of
applying for pardons." N.Y. Const.
art. IV, § 4.Governor must report
annually to legislature on pardons
but not his reasons for granting
them. Id.
Board of Parole must advise the
governor on clemency cases if
requested. N. Y. Exec. Law § 259c (8). Absent exceptional or
compelling circumstances, a
pardon will not be considered if
there is an adequate administrative
remedy available.
No eligibility
criteria
NC
Governor's power unlimited,
subject only to regulation in the
manner of applying. N.C. Const.
art. lll, § 5( 6). Post Release
Supervision and Parole
Commission has authority to assist
the Governor in exercising his
power. N.C. Gen. Stat. § 143B720(a).
Applications must be submitted to
the governor in writing, with
statement of reasons. Governor's
office of executive clemency
(OEC) processes requests, oversees
investigations by Parole
Commission, and prepares reports.
Victim may present a written
statement. N.C. Gen. Stat. § 15A838. DA must also be notified.
General waiting
period of 5 years
after completion
of sentence, per
executive policy.
Alternative
Restoration
Expungement
for first
offender drug
circumstances." Relatively
possession;
infrequent (Gov. Martinez
has issued no pardons;
Gov. Richardson issued 80
pardons in 10 years).
deferred
adjudication
but conviction
remains on
record. N .M.
Stat. Ann § 3031-28.
A pardon addresses
unusual circumstances
when adequate relief
cannot be obtained by
certificate; effect to
"exempt from further
punishment." May serve
as predicate.
Rare: Governor Cuomo
has granted only three
pardons, two to avoid
deportation. Governor
Paterson granted 33
immigration pardons in
2010.
Certificates of
relief from
disabilities and
certificates of
good conduct.
3 types of pardon:
pardon of forgiveness
(useful in seeking
employment); pardon of
innocence; and
unconditional pardon
("granted primarily to
restore an individual's
right to own or possess a
firearm").
Rare: Pardons in recent
years have been rare - only
six pardons since 2001, all
granted for innocence.
Pardon applications
average about 150
annually.
Minor
nonviolent
felonies and
misdemeanors
eligible for
expungement
after 15 years,
N.C. Gen Stat.
§ 15A-145.5.
Margaret Colgate Love, NACDL Restoration ofRights Resource Project, January 2014
ND
Governor decides, N.D. Const. art.
V, § 7, and may appoint a "pardon
advisory board," consisting of the
state attorney general, two
members of the parole board, and
two citizens. N.D. Cent. Code§
12-55.1-02.
No public hearing; board meets
twice a year, applications must be
filed 90 days in advance; DA
notified.
Governor decides in consultation
with parole board. Must report to
legislature details of each
commutation and pardon granted,
and reasons for each. Ohio Const.
art. III, § II; Ohio Rev. Code Ann.
§ 2967.07.
OK
OR
OH
Inmates who are
not eligible for
parole can apply to
the pardon board;
as may non
incarcerated
offenders or others
who demonstrate
"compelling need."
Relieves collateral
penalties, but no
expungement; may
serve as predicate.
N.D. Cent. Code§ 1255.1-01.
Infrequent: Between 2005
and 2009, 163 applications
received but only six
pardons granted.
Deferred
sentencing;
reduction of
minor felony
offenses to
misdemeanors.
N.D. Cent
Code§ 12.132-07.
Application to Parole Board, which
conducts investigation. Ohio Rev.
Code Ann. § 2967.07. Prior notice
to court, prosecutor, victim. Ohio
Rev. Code Ann. § 2967.12.
Meritorious cases may be granted a
hearing, and a recommendation
made to governor.
Eligibility at any
time.
Pardon "erases" the
conviction, and
entitles recipient to
have court records
sealed. Ohio Rev.
Code Ann. § 2967.04.
Infrequent/uneven Gov.
First offender
sealing.
Governor decides, may not act
without affl!mative
recommendation of board of
pardons and parole. Okla. Const.
art. VI, § 10. The governor must
report to the legislature on each
grant at regular session, though not
required to give reasons. Id.
Public hearings at regular intervals,
but applicant generally does not
appear; favorable recommendations
announced publicly and sent to
governor; no reasons given. Process
generally takes about six months.
Following
completion of
sentence or 5 years
under supervision;
misdemeanants
eligible.
Relieves legal
disabilities, including
firearms. Okla. Stat.
tit. 21, § 1283A.
Grounds for
expungement for nonviolent first offenders
10 years after
conviction. Okla. Stat.
tit. 22, § 18.
Frequent and Regular:
About 100 pardon grants
annually (80% of those that
apply).
Judicial
sealing for first
offender
misdemeanant
s after 10
years. Okla.
Stat. tit. 22, §
18.
Governor decides with no
provision for advice. Or. Const. art.
V, § 14. Governor must report to
the legislature each grant of
clemency, including the reasons for
the grant. Or. Rev. Stat.§ 144.660.
Applications filed with governor's
office, copy to DA and correctional
officials; review by governor's legal
staff. By statute, governor may not
act for 30 days after receipt of
application. Or. Rev. Stat. §
144.650( 4).
Generally governor
will not consider
misdemeanors and
minor felonies, for
which set-aside is
available.
Relieves legal
disabilities.
Infrequent: Between 2005
and January 2011, Gov.
Kulongoski granted 20
pardons out of several
hundred applications.
Set-aside for
misdemeanor
and minor
felonies. Or.
Rev. Stat. §
137.225.
8
Kasich has granted 22
pardons through 2013.
Gov. Strickland granted
290 pardons in four years,
mostly to minor nonviolent offenses.
Margaret Colgate Love, NACDL Restoration ofRights Resource Project, January 2014
State
Type Of Administration
Type Of Process
PA
Governor decides, may not act
without affrrmative
recommendation of pardon board
chaired by lieutenant governor. Pa.
Const. art. IV,§ 9(a).
Public hearings at regular
intervals; notice published
prior to hearing. 37 Pa. Cons.
Stat. 81.233. Favorable
recommendations are
announced publicly and sent
to governor; no reasons given.
37 Pa. Cons. Stat. § 81.30 I.
Eligibility
Requirements
No eligibility
requirements.
Effect
Relieves all legal
disabilities, including
employment and
licensing bars; provides
grounds for
expungement.
Commonwealth v. C. S.,
534 A.2d 1053 (Pa.
1987),
Frequency of
Grants
Frequent and
Regular: Of 500600 applications,
Board recommends
about 150
favorably each
year, most of
which are granted;
Alternative
Restoration
Expungement for
"violations"; law
prohibits
discrimination in
employment and
licensing. 18 Pa.
Cons. Stat. § 9124.
20%to
misdemeanors and
summary offenses.
RI
Governor pardons "by and with the
advice and consent of the senate."
R.I. Const. art. IX, § 13.
No process specified.
No requirements.
Restores right to hold
public office and lifts
occupational and
licensing bars.
Rare: No pardon
issued to a living
person in ten years.
First offender
expungement after
10 yrs for felonies, 5
for misdemeanors.
R.I. Gen. Laws § 121.3-3.
SC
Independent board appointed by
governor exercises pardon power
except in capital cases (where
governor retains pow'er). S. C.
Const. art. IV, § 14; S.C. Code
Ann. § 24-21-920.
Board required to hold
hearings at least four times a
year, and in recent years every
two months, at which it is
required to allow the applicant
to appear.
Following completion
for sentence, or after 5
years under supervision,
payment of restitution in
full; state of!enders only.
S.C. Code Ann. § 24-21950.
Erases legal effect of
conviction, including
obligation to register and
use as predicate. S.C.
Code Ann. §§ 24-21990, 1000. Does not
expunge, and conviction
must be reported on
applications.
Frequent and
Regular: Board
issues 300-400
Various
expungement
authorities for minor
offenses.
.
Margaret Colgate Love, NACDL Restoration ofRights Resource Project, January 2014
grants per year,
hearing about 8085 cases every two
months; grants 6065% of applicants.
Few
misdemeanants.
SD
Governor decides, Board of
Pardons and Paroles may be
consulted. S.D. Const. Article IV,
§ 3. Board 1nust reconnnend
pardon in order to obtain sealing
relief S.D. Codified Laws § 2414-11.
Public hearings at regular
intervals, recommendations
sent to governor. Applicant
must notify DA and
sentencing judge, and must
publish notice of application
in a newspaper once a week
for three weeks. Typically, six
months to process a case. S.D.
Codified Laws§§ 24-14-3, 4.
No eligibility period
except 5~year waiting
period after release for
first offenders to apply
for "exceptional
pardon." S.D. Codified
Laws§ 24-14-8.
Persons released from all
disabilities, including
frrearms if specified.
Record sealed and
conviction denied, unless
pardon was issued by
governor alone. S.D.
Codified Laws § 24-1411. No predicate effect.
Frequent and
Regular: Between 60
and 70 applications
filed annually, about
60o/o recommended to
the governor, who
grants most of those
recommended.
Deferred
adjudication and
judicial sealing
for first
offenders
TN
Governor has the power to
pardon. Tenn. Const. art. III, § 6.
Governor advised by the parole
board. Tenn. Code Ann. § 40-28104. Must report grants and
reasons to legislature ''when
requested."
Tenn. Code Ann.§§ 40-27-101,
107.
Public hearing and notice to
prosecutor is required. Board
must send names of those it is
recommending and those it is
not to legislative committees.
Governor must notify AG and
DA before grant is made
public; they notify victim.
Tenn. Code Ann.§ 40-27-110.
Completion of sentence;
additional period of good
conduct and
demonstration of
rehabilitation and need.
Pardon has limited legal
effect, and does not
restore civil or other
rights, for which one
must go to court. Tenn.
Code. Ann. § 40-29105(c).
Infrequent: In
January 2011, Gov.
Bredesen granted 22
pardons ("collected
over his eight years in
office"), 16 of which
were recommended by
the Board.
Expungement of
certain less
serious nonviolent offenses
after 5 yrs.
Judicial
restoration of
rights.
TX
Governor decides, may not act
without affirmative
recommendation of Board of
Pardons and Paroles. Tex. Const.
art. IV,§ ll(b).
No public hearing, informal
review process.
Upon completion of
sentence, including
misdemeanants. Tex.
Admin. Cod. §§ 143.2,
143.10. First offender
restoration to federal
and foreign offenders.
Tex. Admin. Code §
143.7.
Restores civil rights, and
removes barriers "to
some, but not all, types
of employment and
profesSional licensing."
Basis for expungement.
Predicate effect.
Sparing: Eight to ten
pardons annually most
years since 2001, and
113 of those
reconunended. 200
applications are
received annually.
Expungement of
pardoned
convictions;
deferred
adjudication and
nondisclosure.
Margaret Colgate Love, NACDL Restoration ofRights Resource Project, January 2014
Eligibility
Requirements
State
Type Of Administration
UT
Independent board appointed by
the governor. Utah Const. art. VII,
§ 12; Utah Code Ann. § 77-275(1).
Public hearing at regular
intervals, notice to DA and
victim, majority vote, with
reasons given. Utah Code
Ann. § 77-27-5(2).
Five years after
expiration of sentence;
offenses for which
expungement not
available. Utah Admin
Coder. 671-315.
Restores civil
rights.
VT
Governor decides, parole board
may be consulted. Vt. Const. ch. II,
§ 20.
No hearing; parole board
investigates and recommends.
Vt. Stat. Ann. tit. 28, § 453.
Generally 10 years,
must show
rehabilitation and
employment-related
need, benefit to
society.
VA
Governor decides, parole board
may be consulted. Va. Const. art.
V, § 12. Constitution also requires
governor to make annual report to
the legislature setting forth "the
particulars of every case" of pardon
or commutation granted, with
reasons. Id.
No hearing, paper review by
parole board. Restoration of
rights applications processed
in 60-days by Secretary of the
Commonwealth.
Governor decides "under such
regulations and restrictions as may
be prescribed by law." Wash.
Const. art. III, §§ 9. Clemency
board may be consulted. Wash.
Rev. Code§§ 9.94A.885 (1),
10.01.120. Governor reports to
legislature with reasons. Wash.
Const. art. III, § I I.
Public hearing, DA and
victims must be notified.
Wash. Rev. Code § 9.94A.885
(3).
WA
Type Of Process
Effect
Frequency of Grants
Alternative
Restoration
Infrequent: Board receives
Expungement for
only three to five requests for
pardon a year, and only about
10 pardons have been granted
in the past decade (availability
of expungement makes less
necessary).
many offenses.
Restores rights,
relieves
disabilities,
including
firearms.
Infrequent: Governor
Shumlin has granted only two
pardons since taking office in
201 I. In his nearly 8 years in
office (2003-2011), Governor
Douglas granted thirteen
pardons, fewer than two a year.
Deferred
adjudication and
expungement.
5-yr eligibility waiting
period for restoration
ofrights after violent
or drug crime, 2~yr for
non~violent crime;
ROR available for
out-of-state and
federal offenders.
"Simple" pardon
does not expunge
the record, but
helps with
employment,
education, and
self~esteem. No
expungement, has
predicate effect.
Sparing: Gov. McConnell has
restored rights generously, but
through August 2013 had
pardoned only seven
individuals. He also commuted
two sentences retroactively to
avoid deportation. Governor
Kaine pardoned 108 individuals
in his four years in office.
Deferred
adjudication but
no expungement;
judicial
restoration of
firearms.
None
Vacates
conviction,
relieves all legal
disabilities;
conviction need
not be reported, no
predicate effect.
Wash. Rev. Code
§ 994A.030
(l l)(b).
Sparing: About 35 petitions
each year, 8-10 of which go to
hearing. From 2006 through
January 2011, Gov. Gregoire
granted 27 pardons, two
conditional, and two to avoid
deportation.
Judicial vacatur
for most
convictions;
separate firearms
restoration
procedure.
Margaret Colgate Love, NACDL Restoration ofRights Resource Project, January 2014
Lifts most legal
barriers, but does
not restore
firearms rights.
Perito v. County
of Brooke, 597 SE
2d 311, 321 (W.
Va. 2004). May
be given predicate
effect.
Rare: Governor receives from
50-100 applications each year,
but pardon grants are rare (only
121 in 36 years, by nine
governors).
Misdemeanor
first offender
Relieves legal
disabilities and
signals
rehabilitation, but
does not expunge
or seal the
conviction. May
be given predicate
effect.
Infrequent/uneven: Governor
Walker has granted no pardons
to date, and has stated an intent
to accept no applications. Gov.
Doyle granted 293 pardons
overall, 176 in his final year,
mainly for dated minor offenses,
representing 15% of applicants,
all with Board recommendation.
Few misdemeanants.
Expungement or
sealing of certain
adult
misdemeanor
convictions. Wis.
Stat.§ 973.015.
I 0 years after
sentence for pardon,
5 years for restoration
of rights. Excludes
sex offenses.
Relieves legal
disabilities but
does not expunge.
Maybe given
predicate effect.
Sparing: Current governor has
issued no pardons. From 2005 to
2010, 22 pardons and 28
restorations of rights (25% of
applications filed).
Governor also
grants restoration
of rights upon
recommendation
of parole board.
Federal and state
offenders
eligible.
5 years after sentence
or release from
confinement. 28
C.F.R. § 1.2.
Generally not eligible
ifon parole. Id.
Relieves legal
disabilities
signifies
rehabilitation.
Does not
expunge, has
predicate effect.
Sparing: Only about 10-15
pardons per year over the past
twenty years, representing less
than 5% of those who apply.
President Obama has issued only
52 pardons in five years and
denied more than 1300
applications with more than 800
awaiting decision.
None
Governor decides, may seek
advice from parole board. W. Va.
Const. art. 7, § 11; W. Va. Code§
5-1-16. Governor reports facts of
grants with reasons. W. Va.
Const. art. 7, § 11; W. Va. Code§
5-1-16.
No public hearing; board must
notify DA and judge 10 days
before making
recommendation to governor.
As a matter of policy,
governor always seeks
recommendation from board.
None
Governor decides under a nonstatutory pardon advisory board.
Wis. Const. art. V, § 6. Governor
must communicate annually with
legislature each case of clemency
and the reasons. Wis. Const. art.
v, § 6.
Public hearings at regular
intervals for those applicants
that show "a demonstrated
need for a pardon." Applicant
must publish notice in county
paper or on courthouse door,
and deliver to DA, judge and
victim. Wis. Stat. §§ 304.09.10.
Five-year eligibility
WY
Governor decides, subject to
legislative controls on the manner
of applying. Wyo. Const. art. 4, §
5. Governor must report every
two years to legislature on grants,
with the reasons for each one. Id
Statutory application process
involves review by governor's
staff. Process takes 4-6
weeks. Notice to DA three
weeks prior to acting, and DA
must provide details of
offense. Wyo. Stat. Ann. § 713-801 et seq.
FD
President decides under a nonstatutory advisory scheme. U.S.
Const. art. II, § 2; 28 CFR Part I.
No reporting requirement, no
notice.
Informal process described in
28 C.F.R. Part 1 and United
States Attorneys Manual. No
time limit, and applications
may remain pending for years.
WV
WI
.
waiting period;
misdemeanants
ineligible unless
waiver granted.
Margaret Colgate Love, NACDL Restoration of Rights Resource Project, January 2014
expungements.
The Politics of Forgiveness: Reconceptualizing Clemency
Executive clemency is no longer a robust feature of American 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 sentences 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 jurisdictions, 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. Politicians 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 reenergizing 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.
RACHELE.
BARK OW*
Beneficial Visiting
Professor of Law,
Harvard Law School,
Fall 2008
Professor of Law,
NYU School of Law
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 exceptions. 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
or reproduce article content through the University of California Press's Rights and Permissions website,
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FEDERAL SENTENCING REPORTER
• VOL. 21, NO. 3
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153
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 Kentucky 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 pardon 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 climate 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 redemption 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 pardon power from attack. Governors Huckabee and Kaine
were explicit in the role that religion played in their executive 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 dutybased 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
154
FEDERAL SENTENCING REPORTER
approach in particular is likely to resonate with many voters. 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 legislation 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 society 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 reinstating 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 Governor 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 fortynine-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,
• 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 ineligibility or disqualification for.government benefits.
Like other sentencing determinations, clemency decisions 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 frequent 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.3 1 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
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 ofthe
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
156
FEDERAL SENTENCING REPORTER
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
• VOL. 21, NO. 3
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and for clemency determinations. Clemency has tradition·
ally been seen as an act of individualized mercy, not as a
means ofcost-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 reasonable 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
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
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 Iitics
Notes
11
2
3
4
5
6
7
8
9
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).
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.
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.").
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
See Rachel E. Barkow, The Ascent of the Administrative State
and the Demise of Mercy, 121 HARV. L. REV. 1332 (2008).
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).
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).
Adam Nossiter & David Barstow, Charming and Aloof, Huckabee 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.
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
2005 (describing the influence of religion on Kaine's poli·
tics).
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Clemency to 18; 249 Commutations and Pardons Issued During
4·Year Term, BALTIMORE SuN, Jan. 13, 2007, at 58; Editorial,
158
FEDERAL SENTENCING REPORTER
Adam Nossiter & David Barstow, Charming and Aloot Huckabee 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, Catholicism, Politics a Careful Mix for Kaine, WASH. POST, Oct. 31,
• VOL. 21, NO. 3
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).
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.
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
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.
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.
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 .
Love, supra note 3, at 8 (listing Alabama, Arkansas. Connecti·
cut, Delaware, Georgia, Nebraska, Oklahoma, Pennsylvania,
and South Carolina).
Id. at App. A tbl. 1 (Alabama, Connecticut, Georgia, and
South Carolina).
Id. (Arkansas, Delaware, Oklahoma, and Pennsylvania).
Id. (Nebraska).
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).
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).
See Chris Suellentrop, The Right Has a Jailhouse Conversion,
N.Y. TIMES MAGAZINE, Dec. 24, 2006.
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
•
FEBRUARY 2009
26
27
28
29
(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.")
Love, supra note 3, at 11.
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.
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).
Mark Martin, Governor to Consider Early Inmate Release; Giving
35
36
37
38
39
Nonviolent Convicts a Break Could Ease Crowding, stave off
Judges, S.F. CHRONICLE, Feb. 23, 2007' at Al (citing a federal
30
31
study finding a 3% recidivism rate among ex·convicts over 55
compared to a 45% recidivism rate among 18·49 year.old ex
convicts).
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.
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
34
8arkow, supra note 31.
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
40
41
42
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.
Mosk, supra note 9.
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 Issue%20Brief%20·%200ctober%20200 7. pdf
See 8arkow, supra note 31, at 803 (cautioning against imbal·
ance on sentencing commissions).
8arkow, supra note 31, at 804·05.
Thomas 8. Marvell, Sentencing Guidelines and Prison Population 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).
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").
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).
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 mlartic le/20081030/N EWS/81
0299954/1070&ParentProfi le= 1058&title=Pardons%20boa r
d%20to%201ook%20at%20reducing%20prison%20over·
crowding.
4 s 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
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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
Nixon
Ford
Carter
Reagan
George H.W. Bush
Clinton
Georne W. Bush
Avg. Grants per
Clemency Grant Rate
35.7%
26.8%
21.5%
11.9%
5.3%
6.1%
1.8%
Month in Office
Number of Total
Grants
13.8
14.1
11.8
4.8
1.6
4.8
2.1
926
409
566
410
77
457
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
2
president since George Washington. 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