American Constitution Society Releases a Blue Print for Reinvigatoring the Pardon Power

The American Constitution Society for Law and Policy is an organization formed around the Jeffersonian interpretation of the constitution which states that it is a living document. They count amongst their ranks made appellate and Supreme Court jurists. They just released a fascinating document arguing for the reinvigoration of the pardon process. The principle author of the document is Margaret Colgate Love - one of our nation’s foremost authorities on presidential pardons.

President Obama is one of the Most Stingy Presidents When it Comes to Pardons - Updated and Remixed

I am voting for President Obama on Tuesday, but his pardon statistics have not been impressive. According to pardonpower.com (the leading blog on pardons), President Obama has been very stingy when it comes to pardons and clemency. Propublica is running an extensive series of articles on the pardon process and what is wrong with it.

In Michigan, executive clemency has been rarely granted. Between 1969 and present, only 58 pardons have been granted. I find the number a disgrace, but have not been able to figure out why everyone has reset the clock in 1969.

Clearly, Michigan used to be more generous with pardons. In doing some research, I found this turn of the
last century book on pardons granted by Michigan Governor Hazen S. Pingree between 1897 and 1900. He signed more pardons than Governors Milliken, Blanchard, Engler, Granholm, and Snyders combined! It is even more interesting because Governor Pingree gave a long statement of reasons in support of these pardons.

One of the more interesting federal applications was from
Serena Nunn. Ms. Nunn was convicted of a non-violent drug offense at age 19. She subsequently had her sentenced commuted by President Clinton. She attended Arizona State University and graduated. She then went to the University of Michigan Law School. She needs a pardon to be admitted to the practice of law in Georgia.

Update #1 What confuses me is that the National Conference of Bar Examiners says that a felony should not bar her admission. Further, the Georgia Supreme Court ruled in September of 2011 that an applicant with a felony conviction can be admitted if he/she proves by “clear and convincing evidence” that he/she has been rehabilitated. In re Yunker, 289 Ga 636; 715 SE2d 92 (2011). See also In re Payne, 289 Ga. 746, 715 S.E.2d 139 (2011),
Update #2 According to this FAMM press release, Ms. Nunn apparently was approved to be an attorney and will be sworn in.

Updated #3. Here is an interesting NPR article on President Obama and pardons.

“All I Want is a Time Cut:” Strategies for Getting a Sentence Reduction in Michigan

One of the most frequent calls I get is from family members who think they are sounding reasonable and saying “all I want is a time cut.” I understand that one of the things the family is trying to say is that they not contesting guilt. The problem is that Michigan has limited options for sentencing reductions. I wish it was that easy. The full blog article is my long response.
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NACDL Launches Former Offender Restoration Project

On November 24, 2012, NACDL launched a very valuable resource on the web which outlines the rights that are restored to former offenders after serving their sentence, together with a listing of many of the collateral consequences they still face. That resource is available here.

As Clear as Mud: A Detailed Look at the Presidential Pardon

Maryland’s Court of Appeals (its highest court) ruled today that, every person brought before a bail commissioner is entitled to have a lawyer argue for her release before bail is set, regardless of the individual’s financial situation. The case is DeWolfe v. Richmond, No. 34. (Click here for the NACDL amicus brief).
DeWolfe was a civil case. The plaintiff filed suit in 2007 claiming that (under Maryland’s Public Defender Act) they were entitled to a public defender at their initial bail hearing because they faced pretrial detention in jail. The defendants in the suit included the Chief Judge of the District Court of Maryland and the Baltimore City Commissioners who hold the hearings and set bail. The plaintiffs claimed that the hearings are held at the Central Booking Jail and “public defenders are never present.” The court noted, because of security concerns and procedural issues, retained lawyers seldom are allowed to attend an initial bail hearing. The Baltimore public defender office, which claimed it had neither the staff nor the funding to provide counsel at the Central Booking hearings, was added as a defendant in 2008.”

While the case was still being litigated, the U.S. Supreme Court held in 2008, as a matter of federal constitutional law, that poor defendants have a Sixth Amendment right to counsel at initial bail hearings. But the state high court decided the case under Maryland law. The court said that the plain language of the Maryland Public Defender Act provides that “Representation shall be provided to an indigent individual in all stages” of a criminal proceeding, and the plaintiffs argued that “all means all.” The trial court and the high court agreed. To make clear that its holding applies to all persons arrested in the state, the court said, “Moreover, notwithstanding that the present case deals only with bail hearings before Baltimore City Commissioners, our holding applies with equal force to initial appearances before Commissioners throughout Maryland.”

Because of the Court’s reliance on the Public Defender Act, it is unclear whether the ruling will help criminal defendants in Michigan. In Michigan, criminal defendants rarely have counsel at the initial arraignment and are given very high bonds. In the two to three weeks it takes to get to a preliminary examination and a reevaluation of the bail decision, a defendant can lose employment, be evicted, be denied critical medication, and loses the ability to make essential plans to start the defense of their case.

New Parole Board Announced

As was noted earlier, Governor Snyder issued an executive order reorganizing the Parole Board and moving them from an executive level position to a position under the Department of Corrections. Because of this, a new Board was appointed. The MDOC issued a press release yesterday containing the composition of the new Board. Many of the old Board members will remain, but Tom Combs is now the chair. Barb Sampson is now just an ordinary Board Member. The new appointments seem to come mostly from law enforcement. It is unclear how this will effect the policies of the Board.

Governor Snyder Reorganizes Michigan Parole Board & Abolishes Clemency Advisory Council.

On February 7, 2011, Governor Snyder signed Executive Order No. 2011-3 which effectively restored the state of the Michigan’s Parole and Commutation System to where it was before 2007. The order moves the Parole & Commutation Board (now renamed the “Parole Board”) back to the Department of Corrections, places it under the control of the Director of the Department of Corrections, and abolishes the Executive Clemency Advisory Council. The order also reduces the size of the Board from fifteen to ten members and makes them all reapply for their jobs. Prior to 2007, the Board was also at ten members.

It is unclear what other policy changes are lurking under this change, but this could mean that the current administration is deemphasizing community reintegration as part of its corrections strategy. The extra five members were added to the Board could keep up with its increased workload. The downsizing in staff could mean a corresponding downsizing in the amount of paroles and clemencies.

Update: I just found an article on this order by Paul Eagan of the Detroit News. His article makes a couple of points. First, it quotes Governor Snyder saying that “we need to let the professionals in the Corrections Department determine whether it’s appropriate to release prisoners.” This could mean that Snyder is intending to be more deferential to his Corrections Director’s policies. That Director still needs to be named. Second, it could be a SOP to prosecutors who complained that Governor Granholm’s accelerated process was too accelerated. Mr. Eagan ran a similar article yesterday, but it seems to have similar content.

Yesterday’s
Grand Rapids Press stated that Governor Snyder was actually doing this with the intent to do de-politicize the process. It cited to a commitment by the Snyder Administration to continue to “right size” Michigan prisons. Their article cited to a National Council of State Legislature’s expert who stated that Michigan was holding prisoners too long and that that prisoners should be presumptively entitled to parole after serving 120% of their sentence.

Last month, I commented on
New York Governor Cuomo’s decision to right size New York prisons and the fighting he was facing from their unions and politicians. For those who are interested, here is a link to the Governor’s Press release. It doesn’t appear to add anything new. Stay tuned.

President Obama is One of the Slowest Presidents for Pardons

According to Pardon Power, President Obama has now gone 735 days without singing a pardon. While President G.W. Bush was slower, President Obama is quickly tying the second President Bush for last place. Currently, we still don’t have any indication where Michigan Governor Snyder’s position will be with respect to pardons.

Governor Granholm Was Generous With Commutation Power

According to the Blog “Pardon Power,” Governor Granholm was one of the more forgiving governors in recent times. It listed roughly 130 commutations attributable to the Governor. While the final statistics are not out, it appears that she granted roughly thirty pardons as well. A commutation reduces a prison sentence or releases an individual. A pardon undoes the effect of a criminal conviction. For individuals with more than one criminal conviction, a pardon is often the only way to undue the effect of a criminal conviction.

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Ohio Governor Strickland Grants 78 Commutations

According to Professor Berman’s Blog, Ohio’s Governor Ted Strickland granted 78 commutations this Thanksgiving. Conversely, President Obama only pardoned a turkey. Click here to read the Columbus Dispatch’s article on the subject. Click here to read about’s President Obama’s disappointing clemency history.