Colorado: Illegal Pardon?

Gov. Hickenlooper

The Colorado Statesman reports that George Brauchler, district attorney for the 18th Judicial District (CO) believes Gov. John Hickenlooper has granted an illegal pardon. The pardon was granted to one Rene Lima-Marin, a man who faces deportation after being freed him from State prison. As it happens, Brauchler is also "a candidate for the Republican nomination for governor in next year’s election,"

Brauchler claims there are several statutory requirements the governor must meet before granting a pardon:

"There must be an application for a pardon, and that application must be provided by the governor’s office to the current district attorney, the prosecutor who initially prosecuted the applicant, and the sentencing judge ... We never, ever received an application for a pardon. Never ... We never had the victims consulted about a pardon. We never had input with the governor about a pardon. I was caught completely unaware the governor was considering a pardon. ... Seven years must have elapsed since completion of sentence ... In this case, it wasn’t even seven days since he’d been released from custody.”

Brauchler also notes Hickenlooper has numerous applications for pardons and sentence commutations approved by the governor’s Executive Clemency Advisory Board. But Hickenlooper has taken no action on them. “Where are they?” Brauchler asked. “They all complied with the law.”

State Sen. Owen Hill, who sponsored legislation last month calling on Hickenlooper to grant clemency to Lima-Marin, says “Reuniting Rene with his family is the right thing to do for him, his wife and his children,” State Sen. Dominick Moreno adds, “The governor’s authority to pardon Mr. Lima-Marin is pretty clear from my point of view,” State Rep. Joe Salazar is confused as to why Brauchler even cares. "Seems to me that once the judge freed Lima-Marin, Brauchler became irrelevant,”

The Statesman observes "the state constitution gives Colorado’s governor nearly limitless authority to grant reprieves, clemency and pardons — except in cases of treason." But, in 1978, "a state appeals court decision that ruled a 1978 pardon invalid because it hadn’t been issued in accordance with state law and the established procedures."

Hickenlooper has only granted clemency twice in his more than six years in office. His immediate predecessor, Democrat Bill Ritter, pardoned 42 in a single term. Bill Owens granted 13 pardons across eight years in office. Roy Romer granted more than 50 over the 12 years, and Dick Lamm granted more than 150 in the same period of time. See story here.

Illinois: Clemency, or Deportation

The Chicago Tribune reports Miguel Perez Jr., a "decorated Army veteran with a green card" has been "ordered back to his native Mexico," but will ask the Illinois Prisoner Review Board to ask Governor Rauner "to pardon his felony drug conviction."

Currently in a Wisconsin detention center, Perez says he has "faith" in Rauner because he is the Governor.  But, the Tribune reports, of 2,333 petitions, Rauner has granted a mere 79 pardons and a single commutation of sentence. In contrast, the previous Governor, Pat Quinn, "approved roughly 36 percent of petitions." Says the Tribune:

According to the governor's office, Rauner considers how long it has been since petitioners completed their sentences, why they need clemency and whether it's affecting their ability to get professional businesses licenses or a job. He also takes into account the applicant's military and community service records, the nature of the crime and their acceptance of responsibility. 

It is not altogether clear that any Illinois governor has ever considered much of anything else, as a mater of general practice. Perez is said to have "accepted" responsibility for his crime, but his application emphasizes a diagnosis of post-traumatic stress disorder and possible traumatic brain injury. He is also the father of two U.S. citizen children. See story here.

Iowa: Branstad Asleep at the Wheel

Erin Murphy of the Sioux City Journal has written a great piece on Iowa Gov. Terry Branstad, who has, on average, granted "fewer pardons than any Iowa governor dating to the late-1940s." Murphy notes the governor has received nearly 400 requests for pardons since 2011, but approved only 26:

Branstad is closer to the middle of that pack for granting commutations, or reduced sentences, since 2011. However, remove the roughly three dozen commutations that were the direct result of a 2012 U.S. Supreme Court ruling that negated lifetime sentences for juveniles, and Branstad once again drops to the fewest granted since 1949. 

Branstad says that he has always "tried to be very thoughtful and very judicious in making these decisions" - as if anyone, anywhere is asking him to be otherwise. More notably, he believes the power to pardon should be used sparingly because it is "an extraordinary power" (language found nowhere in the Iowa State Constitution).

	Party	Comm	Pardons	Total	Months
Terry Branstad (2011-2017)	R	39	26	65	75
Chet Culver (2007-2011)	D	0	95	95	48
Tom Vilsack (1999-2007)	D	7	97	104	96
Terry Branstad (1983-1999)	R	2	112	114	192
Robert Ray (1969-1983)	R	27	163	190	168
Harold Hughes (1963-1969)	D	39	44	83	72
Norman A. Erbe (1961-1963)	R	11	11	22	24
Herschel C. Loveless (1957-1961)	D	46	19	65	48
Leo Hoegh (1955-1957)	R	30	12	42	24
Leo Elthon (1954-1955)	R	17	1	18	2
William S. Beardsley (1949-1954)	R	26	26	52	70

More to the point, Robert Rigg, a Drake University law school professor, says,“Most governors keep in mind they’re running for re-election almost always" and the worst thing they can do is be "called soft on crime.” So, more tellingly, Branstad says, "The good news is we’ve not had the tragedies that have occurred in some other states where governors haven’t been as careful or judicious and people that they pardoned have then committed other serious crimes.”

However, the Editor of this blog says:

“When I see a pardon number that low, I just don’t get why that is not in the hundreds. Because, again, the political risks there are just about zero ...If you look into those high-profile things, they’re almost always about commutations (not pardons). The idea that there is some risk to restoring rights is just lunacy.” 

See full story here.

Louisiana: The Woe of Prosecutors

Great reporting on clemency in Louisiana by Julia O'Donoghue at Nola.com (link). She reports that Governor John Bel Edwards "has reduced more prison sentences at this point in his term than his three immediate predecessors." But this is said to put "more pressure on district attorneys" in the State because "they must devote more resources and investigators to researching old cases, some closed by former district attorneys 30 to 40 years ago, in order to provide an informed opinion at clemency and parole hearings. " Oh my!

Edwards actually only commuted 22 sentences his first year in office, but that was "far more" than were granted in the first year of the administrations of Mike Foster (who commuted 53 sentences in eight years), Kathleen Blanco (who commuted 129 sentences in four years) and Bobby Jindal (who only commuted 3 sentences in  eight years).

Prosecutors say they "want more time to be able to find surviving victims and gather information about old cases" and they are tired of having to "scramble to get everything together" for clemency hearings. They complain that "pulling information for the cases can be complicated." Victims don't always live in the same places and, in one case, the "original prosecutor and the arresting police officer were both dead."

The piece also says "word has gotten out" among inmates and "there has been an uptick in applications for clemency." See full story here.

Louisiana: Sentencing / Clemency Reform

Gov. Edwards

NOLA.com reports Gov. John Bel Edwards is expected "to make his big push to change criminal sentencing laws and reduce Louisiana's highest-in-the-world incarceration rate during the Legislature's regular session starting April 10."

Edwards commuted 22 prison sentences, "far more than the first-year totals of predecessors Mike Foster, Kathleen Blanco and Bobby Jindal." The totals for previous governors were as follows: Foster (52), Blanco (129) and Jindal (3). It is reported that Edwards' actions "have raised the spirits of lifers at the Louisiana State Penitentiary."

Jindal didn't necessarily turn down offenders' requests so much as he ignored about 700 recommendations from the Pardons and Parole Board for commutations, pardons and other forms of relief  "without any action." So, Edwards' Pardons and Parole Board has implemented a new rule: If Jindal's board recommended clemency and there was no action on the case, an inmate can reapply over the next year (as opposed to waiting 2 to 5 years) to Edwards' board "and be considered quickly." See full story here.

Massachusetts: Governor Barker Does Obama Routine

Gov. Barker Waiting Till End of Term?

NewBuryPort.com has a wonderful story on the clemency situation in Massachusetts. It notes 71 people applied for pardons and commutations last year and none of their applications has reached Gov. Charlie Baker for consideration. One application is from 54 year old Alfred Waitt, who was arrested "more than 35 years ago on charges of underage drinking, possession of marijuana and a pocket knife."

Baker, however, hasn't granted a single pardon or commutations since he took office January of 2015. Perhaps he has been encouraged by President Obama's record on clemency and is waiting for he term to near its end. Barker has received over one hundred requests, but says he relies on State's Parole Board to reviews them before he acts.

“It’s really up to them ... If they were to send me something, I would review it and make a decision based on the facts of the case. But I’m certainly not going to tell them what to do.” 

Since 1945, Massachusetts governors have granted 5,772 pardons and 267 commutations, with "more than than two-thirds of the pardons, and a third of the commutations" being granted from 1964 to 1971. In the past five years, there have been "230 pardon requests and 356 commutation requests" and "just five pardons and a single commutation" have been granted. See full article here.

Pardons and commutations by Massachusetts governors:

Charlie Baker (Republican) 2015 - present Pardons 0 Commutations 0
Deval Patrick (Democrat) 2007 - 2015 Pardons 4 Commutations 1
Mitt Romney (Republican) 2003 - 2007 Pardons 0 Commutations 0
Jane Swift (Republican) 2001 - 2002 Pardons 7 Commutations 0
Paul Cellucci (Republican) 1997 - 2001 Pardons 20 Commutations 0
Bill Weld (Republican) 1991 - 1997 Pardons 45 Commutations 6
Michael Dukakis (Democrat) 1975 - 1979; 1983 - 1991 Pardons 838 Commutations 59
Edward King (Democrat) 1979 - 1983 Pardons 212 Commutations 11
Frank Sargent (Republican) 1969 - 1975 Pardons 1,754 Commutations 40

Missouri: 18 Pardons

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

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

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

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

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

Ricky Ray, Karla Faye and Keith Cooper

According to the Washington Post, Republican Vice-Presidential candidate Mike Pence "has issued only three pardons in Indiana since he took office in 2012." The Post notes that, in contrast, his predecessor, Mitch Daniels, "issued more than 60 during his eight years" as governor of Indiana. The Post probably should have also noted Daniels granted only 1 request in his first four years.

In addition, there is the case of Keith Cooper, which the Post describes as "complicated." Cooper and another suspect were arrested for attempted murder and armed robbery in 1997. Cooper claimed he had never even met his co-defendant, but matched a description, was convicted and given a 40-year prison sentence. The Post says "evidence of Cooper’s innocence surfaced years later."

DNA from a hat left at the crime scene "belonged to someone else." It was later traced to another man who had committed a murder in Michigan some years later. Victims and eyewitnesses have also "since recanted their original statements about Cooper" and have accused a police detective of "manipulating" them into "identifying" him. Consequently, Cooper left prison in 2006, after serving less than 10 years. Amazingly:

... Cooper’s co-defendant, Parish, had been exonerated. In 2005, the Indiana Court of Appeals overturned his conviction. Parish also had won a civil rights lawsuit against Elkhart County officials, along with a nearly $5 million settlement ...

However, the Post reports, a judge gave Cooper "two options." He could "pursue a new trial" and possibly remain in prison a few more years, awaiting the outcome, or he could "accept a deal" allowing him to exit prison with his felony conviction "intact." Cooper chose a "deal" in 2006, but is now seeking a new trial ... and a pardon ... from Mike Pence.

Hard not to recall candidate Bill Clinton trying to out "law and order" his Republican opponent by allowing the execution of the "mentally insufficient" African-American Ricky Ray Rector, in 1992. Hard not to think of George W. Bush's seeming callousness toward the reformed Karla Faye Tucker, who was executed in 1998.

Pence’s general counsel says Cooper must exhaust all of his appeal options in court before petitioning for a pardon. The judicial process must first take its course. Blah. Blah. Everyone with even casual familiarity with the pardon power (state or federal) knows such matters constitute no real limitation on a governor's use of the pardon power, or a president's ... unless they chose to make such things a limitation. This a matter of discretion, not law. The truly critical thing here is how Pence uses the power given to him and the discretion he has to employ that power.

Posing as if he is constricted by law is ... quite unimpressive ... a giant red flag.

See full story here.

Oklahoma: 2 Commutations

Jennifer Palmer of The Oklahoman reports Governor Fallin "has approved shortening the prison sentences of two state inmates — the first commutations since 2012." The commutations were recommended by the State's Pardon and Parole Board.

One goes to 53 year old drug offender Donnie Daniel, who is serving a life sentence without the possibility of parole. Daniel has served 18 years now and is terminally ill. The sentence was commuted to life with the possibility of parole.

The second recipient is 60 year old William Wood Jr., another drug offender whose 117-year-sentence "will be shortened to time served." Wood has been in prison for 10 years and still "has to serve an 81-year sentence for possession of a controlled dangerous substance plus one year for drug paraphernalia." See story here.

Louisiana: It Takes More Than a Board

NOLA.com reports that, in the final week of his administration, Gov. Jindal has decided to grant 20 pardons and 1 commutation of sentence. The grants brought the total for his governorship to 83, in eight years. Quite pitiful. Perhaps, in preparation for his run for the presidency, Jindal pardoned no one in 2015. NOLA.com also reports the aggregate data are "far lower than his predecessors."

Former Gov. Kathleen Blanco granted clemency to 285 offenders in her four years in office, and former Gov. Mike Foster issued pardons to 455 people in his eight years. 

It was not that recommendations were not being made by the State's pardon board. It was more a matter of Jindal routinely ignoring the recommendations of those who knew more about applications than anyone else. Jindal granted a mere 11 percent of the recommendations for clemency that he received. By contrast, Blanco and Foster granted 86 and 65 percent respectively.

Jindal is reported to have "defended" his record on the ground that "Louisiana families and communities" deserve "safety" - a particularly bone-headed "defense" since pardons merely restore the rights of persons who, more often than not, committed minor / non-violent offenses many years (if not decades) ago.

He also offers that recommendations are reviewed "on a case-by-case basis" (Good God, we would hope so!) and the "impact" of pardons on "victims, law enforcement officials, and the communities where these individuals are from" is also considered. We are all left to suppose that the Board recommending pardons has, in Jindal's view, overlooked / ignored all of these things 89 percent of the time. How easy it is to suspect that was not the case. See more on this story here.

Ohio: Four Years of Legislative and Judicial Perfection

There is, apparently little need for traditional notion of checks and balances in Ohio as the Columbus Dispatch is reporting on the "sparing" use of clemency by Gov. John Kasich. According to the dispatch, in 2015, Kasich 2 of 244 requests he "considered." Both pardons:

... were for old crimes: a burglary case from 1954 and a prostitution conviction from 1965, both from Cuyahoga County. 

Consequently, Kasich has "signed off on less than 1 percent of clemency requests, below the 4.4 percent rate during his first four years in office." The Dispatch says his "use of the power" is "the most conservative of any governor of either party in the past three decades."

A "spokesman" says there not need for concern. It is all about "timing." Some pardons "will show up in 2016’s numbers." Brilliant.

The Dispatch reports:

Ted Strickland, a Democrat, approved 20 percent of 1,615 clemency requests he handled between 2007 and 2011, many of them near the end of his administration ... Republicans George V. Voinovich (1991-98) and Bob Taft (1999-2007) each approved less than 10 percent of the clemency requests he received. James A. Rhodes, a Republican, approved 17.5 percent of clemencies in 1982, his last year in office. Democrat Richard F. Celeste, governor from 1983 to 1991, touched off a legal battle in the waning days of his term when he commuted the death sentences of eight men on Death Row and granted clemency to 25 female prisoners because they were victims of “battered-woman syndrome.”

See full article here.

California: 91 Pardons

The Los Angeles Times reports that Gov. Jerry Brown has pardoned 91 "for past crimes, most of them minor drug offenses that no longer are felonies under California law, as well as robbery and burglary." The Times says pardoning  "has become an annual Christmas Eve tradition." Last year, Brown granted 105 pardons during the holiday (but "withdrew" one).

The Times also reports that, to date, Brown has granted clemency to 1,087 people ("including 683 since returning to office in 2011"). His Democrat predecessor Gray Davis granted zero pardons and Republican Arnold Schwarzenegger granted 15. Ronald Reagan, on the other hand, pardoned 574 individuals and Earl Warren pardoned 522 people across 10 years in office. See story here.

Illinois: 10 Pardons

Governor Bruce Rauner acted on 210 clemency petitions on Wednesday, granting ten. According to a release from Governor Rauner's Office, all petitions acted upon are part of dockets dating back to April 2007, and that almost 1,200 clemency petitions remain from previous administrations. Officials say this is the fifth set of clemency petitions that Governor Rauner has reviewed during his tenure. Two hundred petitions were denied by Governor Rauner. Officials also say all 10 individuals granted clemency have undergone a recent criminal background check through the ISP's Law Enforcement Agencies Data System.

Oklahoma: Commutations Requests

The Daily Oklahoman has a intriguing story out on three applications for commutation of sentence that Gov. Mary Fallin will be considering. The State's Pardon and Parole Board has recommended that commutations be granted in all three cases. It is also reported that a commutation has not been granted in the State since 2012!

Donnie Daniel is serving life without parole under the state's mandatory three strikes law. He has served 18 years and the Board has unanimously voted to recommend his sentence be reduced to allow him the possibility of parole. Daniel claims he is terminally ill.

William Wood Jr., an army veteran and former minister, is serving a 199 year sentence for drug crime. He has been in prison for 10 years and never been disciplined. The board recommended that his sentence be commuted to 20 years by a vote of 4-1.

Michael Tippin is serving a life sentence for manufacturing methamphetamine and burglary. The Board also recommended that his sentence be reduced by a vote of 4-1.

It reported that the Board has a backlog of 166 applications. 12 were granted a hearing. Eight of them received unanimous no votes. One was Tondalo Hall, a mother of three serving a 30-year sentence "for permitting child abuse, while the abuser was convicted but released at his trial after two years in jail." Hall claims she was beaten by the children's father as well. See full story here.

Massachusetts: Clemency Application Slowdown

Click on Image (Above) to Enlarge

The Boston Herald reports that, through last week:

... just 35 people submitted petitions for pardons and another 12 applied for commutations to shorten their sentences. 
The combined 47 applications stands among the fewest in the last decade, though by year’s end could pass the 48 turned in in 2013, and the 49 in 2006, Mitt Romney’s final year in office. 

It is suggest that the election of Democrat Patrick,"a former Department of Justice civil rights attorney" may have "spurred hope for more pardons" So, 131 applications arrived in the first year alone. Patrick then "remade" clemency guidelines twice (in 2014). This sparked "another flood."

Baker (a Republican) "immediately rescinded the guidelines" that Patrick put in place, "saying he intended to release his own." The Herald notes that development is apparently still in progress. An interested party notes, "It’s always helpful to know before you apply, are you including the right stuff? Are you even eligible?”

The Herald suggests pardons "are often viewed as politically prickly, particularly in Massachusetts" and they are "often" left for the "final days" of office, if there are any at all.

See full story here.

The Problem, in a Nutshell

In a recent editorial for CNN, the Editor of this blog called on President Obama to

... grant a steady stream of individual pardons and commutations of sentence, every month, just like most presidents have done, throughout most of our nation's history.

How does the President compare on this front? A four-year presidential term covers all, or part, of 49 months. Below, the reader can see the number of months where at least one person was granted clemency over the last 20 presidential terms.

Click on Image (Above) to Enlarge

Obama: The Basement of Two-Term Mercy

As has been the case for most of the Hope and Change presidency of Barack Obama, the number of pardons and commutations continues to lag behind that of recent two-term presidents, including Republican presidents Eisenhower, Reagan and George W. Bush.

Click on Image (Above) to Enlarge

Delaware: Pardons!

DelawareOnline reports Gov. Jack Markell "has signed 1,569 pardons during his six-plus years in office, more than any other Delaware governor." Data suggest the record of previous governors is as follows:

1977-1984, Du Pont: 238 grants, 39 denials
1985-1992, Castle: 382 grants, 17 denials
1993-2000, Carper: 675 grants, 123 denials
2001-2008: Miner: 940 grants, 82 denials
2009/2014, Markell: 1339 grants, 887 denials

Since 1950, "the board has recommended pardons for about 85 percent of 4,800 applicants. Governors have granted 93 percent of the board-approved bids." It is reported that "the vast majority" of Markell's pardons were given to "people with minor offenses" but some went to "criminals with serious felonies. The News Journal is concerned that the state "doesn't track the progress of those who have received pardons" and "has no system to follow whether a person who receives a pardon commits another crime."

Obama Grants 43rd Commutation of Sentence

With Tuesday's granting of 22 commutations of sentence, President Obama has now granted a total of 43 commutations of sentence. 

Click on Image (Above) to Enlarge

Florida: Life Sentence

The Florida Courier has an interesting piece entitled, "Life Sentence." It being with some rather startling statistics:

More than 1.6 million Floridians – about 9 percent – cannot vote, hold office or serve on a jury, according to The Sentencing Project, a prison reform group. In most states, it’s less than two percent. Only two other states have that tough a policy. Twenty-five percent of Florida’s Black population – that’s 1 in 4 – can’t vote, even though just 17 percent of the state’s population is Black. 

In sharp contrast, in Vermont and Maine, "the currently incarcerated can vote by absentee ballot."

The piece then explains why getting such rights back, in Florida, "has become far tougher in the past four years." Governor Scott's administration has restored the rights of 1,534 nonviolent felons, but more than 11,000 have applied and are waiting. Unfortunately, the clemency board only meets four times a year and the application process requires "a five-year wait for less-serious felonies and seven years for others, along with an application form and, for each felony count, certified copies of the charging document, judgment and sentencing from the clerk of the county where the felony occurred."

Under former Gov. Crist, the Board "automatically restored the rights of nonviolent offenders who served their time." The result was 155,315 were restored in four-years Under Gov. Bush, "sentencing forms were not required of people trying to get their rights back, and there was no wait period for the less-serious felonies."

See more of this interesting report here.