Correcting mandatory injustice: Judicial recommendation of executive clemency

Duke Law Journal

Volumn 60, Issue 1, 2010, Pages 131-165

  Huang, Joanna M ^a  

^a QUEEN S UNIVERSITY   (Canada)

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EID: 78649385456     PISSN: 00127086     EISSN: None     Source Type: Journal    
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References (245)

1. U.S. CONST. art III, § 1.
2. See 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 21 (Max Farrand ed., rev. ed. 1966) (resolving in 1787 to establish a national judiciary).
3. To achieve independence of judgment, Article III of the Constitution gives federal judges life tenure, allowing them to "hold their Offices during good Behaviour" and warrants that their compensation "not be diminished during their Continuance in Office." U.S. CONST. art III, § 1.
4. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803) ("It is emphatically the province and duty of the judicial department to say what the law is.").
5. United States v. Booker, 543 U.S. 220 (2005).
6. The authority to establish the Federal Sentencing Guidelines was provided by the Sentencing Reform Act of 1984, Pub. L. No. 98-473, tit. II, ch. II, 98 Stat. 1837, 1987 (codified as amended in scattered sections of 18 and 28 U.S.C.).
7. While the eighteen years between the enactment of the mandatory Sentencing Guidelines and the Booker decision may seem too narrow a focus to warrant serious consideration, a sample of federal justice statistics proves otherwise. In just the eleven years from 1993 to 2004, an estimated 502,228 individuals were sentenced to prison.
8. See BUREAU OF JUSTICE STATISTICS, Publications and Products: Compendium of Federal Justice Statistics, http://bjs.ojp.usdoj.gov/index.cfm?ty=pbse&sid=4 (last revised May 5, 2010) (providing links to annual reports containing sentencing statistics).
9. See infra Part I.
10. Booker, 543 U.S. at 245.
11. Current sentencing-reform efforts continue the restoration process.
12. See, e.g., THE 2009 CRIMINAL JUSTICE TRANSITION COAL., SMART ON CRIME: RECOMMENDATIONS FOR THE NEXT ADMINISTRATION AND CONGRESS 30-73 (2008) (recommending a variety of sentencing reform policies).
13. see also id. at 113-17 (recommending reforms to revitalize the executive pardon power).
14. See infra note 38 and accompanying text.
15. See, e.g., GA. CODE ANN. § 16-13-31 (2000) (requiring mandatory minimum sentences for drug offenses).
16. MICH. COMP. LAWS ANN. §333.7403 (2000 & West Supp. 2001) (same); N.Y. PENAL LAW § 60.04 (McKinney 2009) (same).
17. See infra Part II.A.
18. See infra Part II.B.
19. See infra Part II.B.2.
20. See infra Part III.
21. FED. R. CRIM. P. 35.
22. United States v. Angelos, 345 F. Supp. 2d 1227 (D. Utah 2004), United States v. Harvey, 946 F.2d 1375 (8th Cir. 1991).
23. United States v. McDade, 639 F. Supp. 2d 77 (D.D.C. 2009) are three of a very few cases, both within federal and state case law, in which judges recommended clemency.
24. Other examples include United States v. Naples, 192 F. Supp. 23, 45-46 (D.D.C. 1961), rev'd on other grounds, 307 F.2d 618 (D.C. Cir. 1962) (en banc), and People v. White, 128 N.Y.S.2d 370, 375 (Ct. Gen. Sess. 1953).
25. Because of the lack of literature and study on judicial recommendation of executive clemency, one can only speculate about the reasons for such limited case law. Considering the declining exercise of clemency, it is not far-fetched to impute such a deficiency to the judiciary's belief, and rightly so, that such recommendations would yield few results.
26. United States v. Angelos, 345 F. Supp. 2d 1227 (D. Utah 2004).
27. United States v. Harvey, 946 F.2d 1375 (8th Cir. 1991).
28. United States v. McDade, 639 F. Supp. 2d 77 (D.D.C. 2009).
29. The mandatory Federal Sentencing Guidelines were enacted in 1984.
30. The U.S. Sentencing Commission first published a Federal Sentencing Guidelines Manual in 1987, U.S. SENTENCING COMM'N, GUIDELINES MANUAL (1987), and has published one annually since, e.g., U.S. SENTENCING COMM'N, GUIDELINES MANUAL (2009) [hereinafter 2009 GUIDELINES MANUAL].
31. Booker, making the Guidelines advisory, was decided in 2005.
32. Angelos, 345 F. Supp. 2d at 1231-32.
33. United States v. Harvey, 946 F.2d 1375, 1377-78 (8th Cir. 1991).
34. United States v. McDade, 639 F. Supp. 2d 77, 79, 86 (D.D.C. 2009).
35. McDade was sentenced by Judge Friedman on May 29, 2002.
36. This opinion, ruling on McDade's ineffective assistance of counsel claim, came after an evidentiary hearing on January 15, 2008.
37. See Harvey, 946 F.2d at 1378 (noting that the sentencing judge was "troubled" at being required to impose a life sentence).
38. McDade, 639 F. Supp. 2d at 86 (calling the defendant's sentence "disproportionate").
39. Angelos, 345 F. Supp. 2d at 1261 (describing the defendant's sentence as "unjust, disproportionate to his offense, demeaning to victims of actual criminal violence-but nonetheless constitutional").
40. Angelos, 345 F. Supp. 2d at 1261.
41. See Douglas A. Berman & Stephanos Bibas, Making Sentencing Sensible, 4 OHIO ST. J. CRIM. L. 37, 61 (2006) (noting that, even in cases in which mandatory sentences applied, judges could recommend executive clemency).
42. 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, 213 (2004) (describing methods whereby judges would petition the President for clemency).
43. DWIGHT F. HENDERSON, CONGRESS, COURTS, AND CRIMINALS: THE DEVELOPMENT OF FEDERAL CRIMINAL LAW, 1801-1829, at 46-47 (1985).
44. Carol. S. Steiker & Jordan M. Steiker, Sober Second Thoughts: Reflections on Two Decades of Constitutional Regulation of Capital Punishment, 109 HARV. L. REV. 355, 402 (1995) (applying a "sober second look" in the context of capital punishment).
45. FED. R. CRIM. P. 35(a) ("Within 7 days after sentencing, the court may correct a sentence that resulted from arithmetical, technical, or other clear error.").
46. See 18 U.S.C. § 3553(b)(1) (2000) ("The court shall impose a sentence of the kind, and within the range, [of the Sentencing Guidelines]....").
47. Mistretta v. United States, 488 U.S. 361, 367 (1989) ("[Section 3553] makes the Sentencing Commission's guidelines binding on the courts.").
48. United States v. Booker, 543 U.S. 220, 245 (2005).
49. Booker does not apply retroactively to cases that became final before it was decided on January 12, 2005. Duncan v. United States, 552 F.3d 442, 447 (6th Cir. 2009); United States v. Branham, 515 F.3d 1268, 1278 (D.C. Cir. 2008); Carrington v. United States, 503 F.3d 888, 890 (9th Cir. 2007); United States v. Gentry, 432 F.3d 600, 604 (5th Cir. 2005); United States v. Bellamy, 411 F.3d 1182, 1186-87 (10th Cir. 2005); Guzman v. United States, 404 F.3d 139, 144 (2d Cir. 2005); Lloyd v. United States, 407 F.3d 608, 615-16 (3d Cir. 2005); Varela v. United States, 400 F.3d 864, 868 (11th Cir. 2005); McReynolds v. United States, 397 F.3d 479, 481 (7th Cir. 2005).
50. United States v. Angelos, 345 F. Supp. 2d 1227, 1230 (D. Utah 2004).
51. The fifty-five years are the punishment for three counts of gun possession. Angelos's total sentence includes an additional six and a half years for the drug conviction.
52. United States v. Harvey, 946 F.2d 1375, 1378 (8th Cir. 1991) (quoting Sachs, C.J., from the Sentencing Transcript).
53. United States v. McDade, 639 F. Supp. 2d 77, 86 (D.D.C. 2009).
54. Angelos, 345 F. Supp. 2d at 1261 (footnotes omitted).
55. Harvey, 946 F.2d at 1378 (citing Harmelin v. Michigan, 501 U.S. 957, 996 (1991)).
56. McDade, 639 F. Supp. 2d at 86.
57. See Eric A. Posner, Does Political Bias in the Judiciary Matter?: Implications of Judicial Bias Studies for Legal and Constitutional Reform, 75 U. CHI. L. REV. 853, 858-68 (2008) (discussing how shifting political control and the interaction between the legislative and judicial branches can lead to legislative inefficiencies).
58. cf. Anita S. Krishnakumar, Representation Reinforcement: A Legislative Solution to a Legislative Process Problem, 46 HARV. J. ON LEGIS. 1, 14-16 (2009) ("[J]udicial correctives are both undemocratic and inefficient, and... our polity would be better off with a legislative solution to this legislative process dysfunction.").
59. See Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 219 (1995) ("[S]uch legislation bears not on the problem of interbranch review but on the problem of finality of judicial judgments.").
60. id. at 227 ("Having achieved finality, however, a judicial decision becomes the last word of the judicial department with regard to a particular case or controversy, and Congress may not declare by retroactive legislation that the law applicable to that very case was something other than what the courts said it was.
61. Finality of a legal judgment is determined by statute, just as entitlement to a government benefit is a statutory creation; but that no more deprives the former of its constitutional significance for separation-of-powers analysis than it deprives the latter of its significance for due process purposes.").
62. Jed Handelsman Shugerman, Economic Crisis and the Rise of Judicial Elections and Judicial Review, 123 HARV. L. REV. 1061, 1104 (2010) ("[Unconstitutional] retroactive legislation began and has been continued, because the judiciary has thought itself too weak to withstand; too weak, because it has neither the patronage nor the prestige necessary to sustain it against the antagonism of the legislature and the bar.
63. Instead of that, it pursued a temporizing course till the mischief had become intolerable, and till it was compelled... to invalidate certain acts of legislation, or rather to reverse certain legislative decrees.... Yet the legislature attempted to divest it, by a general law it is true, but one impinging on particular rights." (quoting Greenough v. Greenough, 11 Pa. 489, 495 (1849))).
64. RICHARD H. FALLON, JR., JOHN F. MANNING, DANIEL J. MELTZER & DAVID L. SHAPIRO, HART AND WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 93 (6th ed. 2009) ("The Supreme Court has seldom had to consider how much res judicata effect is necessary.").
65. See, e.g., Republic of Austria v. Altmann, 541 U.S. 677, 693 (2004) ("[R]etroactive statutes may upset settled expectations.").
66. Landgraf v. USI Film Prods., 511 U.S. 244, 265 (1994) ("[T]he presumption against retroactive legislation is deeply rooted in our jurisprudence, and embodies a legal doctrine centuries older than our Republic.").
67. Teague v. Lane, 489 U.S. 288, 310 (1989) ("Unless they fall within an exception to the general rule, new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced.").
68. Johnson v. New Jersey, 384 U.S. 719, 728 (1966) ("[T]he choice between retroactivity and nonretroactivity in no way turns on the value of the constitutional guarantee involved.").
69. U.S. CONST. art. II, § 2, cl. 1.
70. Washington Journal: History of Presidential Pardons (C-SPAN television broadcast Dec. 27, 2008).
71. see also Schick v. Reed, 419 U.S. 256, 260 (1974) (noting that the Founders "were well acquainted with the English Crown authority to alter and reduce punishments as it existed in 1787").
72. Chief Justice Marshall emphasized the clemency power as an executive act of grace. United States v. Wilson, 32 U.S. 150, 160 (1883).
73. According to Justice Holmes, "[w]hen granted[, clemency] is the determination of the ultimate authority that the public welfare will be better served." Biddle v. Perovich, 274 U.S. 480, 486 (1927).
74. The notion of "making exceptions... for the defendant's unusually hard circumstances" goes back as far as the laws of Hammurabi and classical Rome.
75. Samuel T. Morison, The Politics of Grace: On the Moral Justification of Executive Clemency, 9 BUFF. CRIM. L. REV. 1, 1 (2005).
76. (citing Andrew Brien, Mercy Within Legal Justice, 24 SOC. THEORY & PRAC. 83, 83 n.2 (1998)).
77. ADAM C. ORTIZ, AM. BAR ASS'N, CLEMENCY AND CONSEQUENCES: STATE GOVERNORS AND THE IMPACT OF GRANTING CLEMENCY TO DEATH ROW INMATES 1 (2002).
78. Ex parte Garland, 71 U.S. (4 Wall.) 333, 381 (1866).
79. Garland, 71 U.S. (4 Wall.) at 380.
80. Ex parte Grossman, 267 U.S. 87, 120 (1925).
81. Daniel Engber, How Does a Governor Grant Clemency? With a Signed Note, SLATE, (Nov. 30, 2005, 6:08 PM ET), http://www.slate.com/id/2131268.
82. The basis of this latitude of discretion is rooted in its conceptualization "as an act of grace, a gift freely given.".
83. KATHLEEN DEAN MOORE, PARDONS: JUSTICE, MERCY, AND THE PUBLIC INTEREST 8-9 (1989).
84. "Giftgiving is not something to criticize, analyze, scrutinize, demand, refuse, or justify.".
85. Kavan Peterson, Governors Shy from Clemency Power, STATELINE.ORG (Jan. 30, 2003), http://www.stateline.org/live/ViewPage.action?siteNodeId=136&languageId=1&contentId=15145.
86. Five states have clemency boards that make clemency decisions without the governor's participation: Alabama, Connecticut, Georgia, Idaho, and Texas.
87. The governor grants clemency only on the basis of recommendations by the board in nine states: Arizona, Delaware, Florida, Indiana, Louisiana, Montana, Oklahoma, Pennsylvania, and Texas. Id. In three states, Nebraska, Nevada, and Utah, the governor makes decisions with the board. Id.
88. Donald Leo Bach, To Forgive, Divine: The Governor's Pardoning Power, WIS. LAW., Feb. 2005, at 12, 62.
89. Some cases come to the attention of the president through informal channels. The president is not bound by formal executive clemency procedures.
90. ("[T]he president isn't bound by the 'official' rules for presidential pardons.").
91. For a detailed description of the procedures and roles of the officers involved, see U.S. DEP'T OF JUSTICE, United States Attorney's Manual Standards for Consideration of Clemency Petitions, http://www.justice.gov/pardon/petitions.htm (last visited Aug. 30, 2010).
92. Executive Clemency, 28 C.F.R. §§ 1.1-1.11 (2009).
93. The authority of the Department of Justice in the clemency process was granted by President Grover Cleveland on June 16, 1893.
94. GAILLARD HUNT, THE DEPARTMENT OF STATE OF THE UNITED STATES: ITS HISTORY AND FUNCTIONS 130 (1914) (ordering "all warrants of pardons and commutations of sentences... be prepared and recorded in the Department of Justice").
95. see also Executive Clemency, 27 Fed. Reg. 11,002, 11,002-03 (Oct. 30, 1962) (codified as amended at 28 C.F.R. §§ 1.1-1.11 (1975)) (describing the executive clemency process).
96. 28 C.F.R. §§ 0.35-0.36.
97. The language of the Constitution makes no mention of limitations or specific procedures to follow, "except in Cases of Impeachment," in which the president lacks clemency power. U.S. CONST. art II, § 2, cl. 1.
98. For a link to reports that provide a state-by-state description of the clemency process, see CRIMINAL JUSTICE POLICY FOUND., Clemency Policy: State Clemency Resources, http://www.cjpf.org/clemency/clemencystates.html (last visited Aug. 30, 2010).
99. Examples include Alaska, Arizona, Arkansas, Indiana, Iowa, Louisiana, Nebraska, and West Virginia. Id. (follow appropriate hyperlink).
100. Alabama is an example. Id. (follow "Alabama" hyperlink).
101. Cf. James Iredell, Assoc. Justice of the Supreme Court of the United States, Address at the North Carolina Ratifying Convention (July 28, 1788), in 4 THE FOUNDERS' CONSTITUTION 17, 17 (Philip B. Kurland & Ralph Lerner eds., 1987) ("It is impossible for any general law to foresee and provide for all possible cases that may arise; and therefore an inflexible adherence to it, in every instance, might frequently be the cause of very great injustice.").
102. Herrera v. Collins, 506 U.S. 390, 415 (1993).
103. CESARE BECCARIA, On Crimes and Punishments, in ON CRIMES AND PUNISHMENTS AND OTHER WRITINGS 1, 111 (Richard Bellamy ed., Richard Davies, Virginia Cox & Richard Bellamy trans., Cambridge Univ. Press 1995) (1764).
104. U.S. DEP'T OF JUSTICE, THE ATTORNEY GENERAL'S SURVEY OF RELEASE PROCEDURES 298 (1939).
105. Kathleen Dean Moore, Pardon for Good and Sufficient Reasons, 27 U. RICH. L. REV. 281, 284 (1993).
106. Justice Anthony Kennedy endorses executive clemency and urges the American Bar Association to "consider a recommendation to reinvigorate the pardon process at the state and federal levels.".
107. JUSTICE KENNEDY COMM'N, AM. BAR ASS'N, REPORT TO THE HOUSE OF DELEGATES, resolution 121C (2004), available at http://www.abanet.org/media/kencomm/rep 121c.pdf.
108. see also Herrera, 506 U.S. at 417 ("[T]he traditional remedy for claims of innocence based on new evidence, discovered too late in the day to file a new trial motion, has been executive clemency.").
109. See Alan M. Dershowitz, What's Mercy Got to Do with It?, N.Y. TIMES BOOK REV., July 16, 1989, at 7 ("[I]n a world in which errors are inevitable, it is better to err on the side of overly lenient, rather than overly harsh, punishment.").
110. This can be inferred from amendments V, VI, and XIV to the U.S. Constitution and the criminal defendant's presumption of innocence until proven guilty.
111. See Coffin v. United States, 156 U.S. 432, 453 (1895) ("The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.").
112. Brian M. Hoffstadt, Normalizing the Federal Clemency Power, 79 TEX. L. REV. 561, 594 (2001).
113. see also Harold J. Krent, The Lamentable Notion of Indefeasible Presidential Powers: A Reply to Professor Prakash, 91 CORNELL L. REV. 1383, 1399 (2006).
114. Presidential Pardon Power: Hearing Before the Subcomm. on the Constitution of the Comm. on the Judiciary, 107th Cong. 14 (2001) (statement of Daniel T. Kobil, Professor, Capital University Law School).
115. Margaret Colgate Love, Of Pardons, Politics and Collar Buttons: Reflections on the President's Duty to Be Merciful, 27 FORDHAM URB. L.J. 1483, 1506 (2000).
116. Biddle v. Perovich, 274 U.S. 480, 486 (1927).
117. see also Biddle, 274 U.S. at 486 ("A pardon in our days is not a private act of grace from an individual happening to possess power. It is a part of the Constitutional scheme.").
118. Legal and moral issues converge when considering liability outside the context of pardons as well.
119. See, e.g., MODEL RULES OF PROF'L CONDUCT EC 7-8 (2009) ("[I]t is often desirable for a lawyer to point out those factors which may lead to a decision that is morally just as well as legally permissible.").
120. June Fabian Witt, Contingency, Immanence, and Inevitability in the Law of Accidents, J. TORT L., 2007, at 1, 25-26 ("[B]oth the strict liability and negligence principles offer plausible strategies for economically functional and morally just approach to liability determinations.").
121. But see Joshua Wirth, Note, Federal Regulation and Legislation in the Wake of the Subprime Mortgage Meltdown: A Legal Philosophical Analysis of Federal Government Responses to Market Bubbles, 14 FORDHAM J. CORP. & FIN. L. 179, 207-09 (2008) (arguing that just because government regulations in response to the meltdown may be morally unjust does not mean the law failed).
122. THE FEDERALIST No. 74, at 447-49 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
123. Kemba Smith, The Wisdom of Pardons, AM. F. (Dec. 19, 2008, 08:22 AM), http://amforumbacklog.blogspot.com/2008/12/wisdom-of-pardons.html.
124. Kennedy v. Louisiana, 128 S. Ct. 2641 (2008).
125. Kansas v. Marsh, 548 U.S. 163, 193 (2006) (Scalia, J., concurring).
126. Kristen E. Eichensehr, Treason in the Age of Terrorism: An Explanation and Evaluation of Treason's Return in Democratic States, 42 VAND. J. TRANSNAT'L L. 1443, 1500 (2009).
127. Clemency, DEATH PENALTY INFO. CTR., http://www.deathpenaltyinfo.org/clemency (last visited Aug. 30, 2010).
128. Of this total, 172 were granted in Illinois, with the majority of states having granted one or two. Id.
129. Leona D. Jochnowitz, Public Access to State Clemency Petitions, 44 CRIM. L. BULL. 176, 178 (2008).
130. Confirmation Hearing on the Nomination of John G. Roberts, Jr. to Be Chief Justice of the United States: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 365 (2005) (statement of Sen. Feingold, Member, S. Comm. on the Judiciary).
131. (statement of John G. Roberts, Jr.).
132. Jonathan Aminoff, Something Very Wrong Is Taking Place Tonight: The Diminishing Impact of the Actual Innocence Exception on Eligibility for the Death Penalty, 46 CRIM. L. BULL. 86, 136 (2010).
133. see also Saad Gul, The Truth that Dare Not Speak Its Name: The Criminal Justice System's Treatment of Wrongly Convicted Defendants Through the Prism of DNA Exonerations, 42 CRIM. L. BULL. 687, 690 (2006) ("[F]ederal courts may not entertain habeas petitions on grounds of actual innocence, unless the claim is coupled with an independent constitutional violation. The[] only recourse may lie in executive clemency petitions."(footnote omitted)).
134. See KATHLEEN M. HEIDE, WHY KIDS KILL PARENTS: CHILD ABUSE AND ADOLESCENT HOMICIDE 143 (1992) ("Whenever possible the adolescent parricide offender should not be imprisoned; prison psychological services are rarely adequate to deal with the depth of his problems.").
135. Jessica L. Hart & Jeffrey L. Helms, Factors of Parricide: Allowance of the Use of Battered Child Syndrome as a Defense, 8 AGGRESSION & VIOLENT BEHAV. 671, 680 (2003) ("[S]kepticism still remains of whether battered child syndrome is a legitimate syndrome.").
136. Rebecca A. Olla, Redefining the Objectively Reasonable Person in Texas: A Case for Battered Child Syndrome as Pure Self-Defense for Parricide, 17 TEX. ST. B. SEC. RPT. JUV. L. 5, 7-8 (2003) (advocating for the use of expert testimony on abused child syndrome in order to help judges and juries evaluate the reasonableness of a child's actions).
137. Susan C. Smith, Abused Children Who Kill Abusive Parents: Moving Toward an Appropriate Legal Response, 42 CATH. U.L. REV. 141, 165 n.164 (1992) ("Governor Ed Herschler commuted [the child defendant's] prison sentence and ordered her on probation for one year.").
138. Robert Hegadorn, Clemency: Doing Justice to Incarcerated Battered Children, 55 J. MO. B. 70, 78 (1999).
139. Virginia Young, Sentences Cut for 2 Who Killed Husbands, ST. LOUIS POST-DISPATCH, Dec. 17, 1992, at 1A.
140. JOHN LOCKE, TWO TREATISES OF GOVERNMENT 421-22 (Peter Laslett ed., Cambridge Univ. Press 1960) (1690).
141. Jeffrie Murphy, Mercy and Legal Justice, in FORGIVENESS AND MERCY 162, 181 (1988).
142. see also Coleen E. Klasmeier, Note, Towards a New Understanding of Capital Clemency and Procedural Due Process, 75 B.U.L. REV. 1507, 1535 (1995) (expressing unease about the "potential for arbitrary decisionmaking that inheres in the unfettered clemency power").
143. Rachel E. Barkow, The Ascent of the Administrative State and the Demise of Mercy, 121 HARV. L. REV. 1332, 1350 (2008).
144. Paul J. Haase, Note, "Oh My Darling Clemency": Existing or Possible Limitations on the Use of the Presidential Pardon Power, 39 AM. CRIM. L. REV. 1287, 1298 (2002) ("The main concern that surfaced in light of the Clinton pardons is that President Clinton bypassed the normal pardon procedures.").
145. William Glaberson, States' Pardons Now Looked at in Starker Light, N.Y. TIMES, Feb. 16, 2001, at A1.
146. See P.S. Ruckman, Jr., "Last-Minute" Pardon Scandals: Fact and Fiction 16-18, 22-27 (unpublished manuscript), available at http://www.rvc.cc.il.us/faclink/pruckman/pardoncharts/Paper2.pdf (presenting graphs that show a fairly even distribution of pardons between each month).
147. Margaret Colgate Love, Reinventing the President's Pardon Power, 20 FED. SENT'G. REP. 5, 7 (2007).
148. "[T]he duty to pardon is neither grounded in nor limited by considerations of law or morality, but is essentially one of politics."
149. P.S. Ruckman, Jr., Executive Clemency in the United States: Origins, Development and Analysis (1900-1993), 27 PRESIDENTIAL STUD. Q. 251, 258 (1997) ("[W]hen explaining an administration's use of clemency powers, the partisan identification and political ideology of the president cannot be ignored.").
150. ("The controversy over the Clinton pardons has highlighted a concern that clemency orders nationally are often based on inconsistent or unfair policies.").
151. Carma Storcella was pardoned by New Jersey Governor Christine Todd Whitman. The media later revealed that she was an "aunt of the director of the casino commission's division of licensing, Christopher Storcella.".
152. ("[T]he Libby commutation in context seemed to confirm the popular view of pardon as a personal prerogative of the president, a remnant of tribal kingship generally reserved for the well-heeled or well-connected.").
153. see also Amy Goldstein, Bush Commutes Libby's Prison Sentence, WASH. POST, July 3, 2007, at A1 ("Shortly after Libby was convicted in March, three national public opinion polls found that seven in 10 Americans said they would oppose a pardon of Libby.").
154. Oklahoma Governor J.C. Walton was removed from office for selling pardons. 100 Years of Oklahoma Governors, OKLA. DEP'T OF LIBRARIES, http://www.odl.state.ok.us/oar/governors/Walton.htm (last visited Aug. 30, 2010).
155. Former Ohio Governor Richard F. Celeste aroused public contempt for granting clemency to sixty-eight individuals at the end of his second term.
156. See generally Daniel T. Kobil, Do the Paperwork or Die: Clemency, Ohio Style?, 52 OHIO ST. L.J. 655 (1991) (discussing the political controversy surrounding Celeste's grants of clemency).
157. Bush Grants Clemency to Ex-Border Guards, CBS NEWS.COM (Jan. 19, 2009), http://www.cbsnews.com/stories/2009/01/19/politics/main4735156.shtml.
158. CHRISTOPHER REINHART, OFFICE OF LEGISLATIVE RESEARCH, CONN. GEN. ASSEMBLY, 2005-R-0065, RESEARCH REPORT, PARDON STATISTICS FROM OTHER STATES (2005), http://www.cga.ct.gov/2005/rpt/2005-R-0065.htm.
159. Although the statistics on California are the most thorough, some data from other states suggest that current governors are less likely to grant pardons than their recent predecessors. Cf. id. (indicating potential decreases in Minnesota, Ohio, and Florida).
160. (calculating a ratio of clemencies to executions throughout the United States, in Texas, Missouri, and Oklahoma).
161. This figure reflects that approximately six inmates were pardoned for every onehundred executed.
162. AM. BAR ASS'N, CLEMENCY AND CONSEQUENCES: STATE GOVERNORS AND THE IMPACT OF GRANTING CLEMENCY TO DEATH ROW INMATES 8 (2002), available at http://www.abanet.org/crimjust/juvjus/jdpclemeffect02.pdf.
163. Margaret Colgate Love, Reviving the Benign Prerogative of Pardoning, LITIGATION, Winter 2006, at 25.
164. see also Austin Sarat & Nasser Hussain, On Lawful Lawlessness: George Ryan, Executive Clemency, and the Rhetoric of Sparing Life, 56 STAN. L. REV. 1307, 1310 (2004).
165. ("During the 1990s, from one to three death row inmates were granted clemency every year in the entire nation-compared to approximately sixty to eighty executions each year. This is a dramatic shift from several decades ago, when governors granted clemency in 20% to 25% of the death penalty cases they reviewed. In Florida, one of the pillars of the 'death belt,' governors commuted 23% of death sentences between 1924 and 1966, yet no Florida death penalty sentences were commuted in the 1990s." (footnotes omitted)).
166. ("Of the 15 governors who granted clemency since 1993, only one was defeated for re-election (James) while three were re-elected or elected to higher office (Carnahan re-elected Governor, Allen, Bush, Carnahan elected Senator).
167. Five were barred by law from seeking re-election (Wilder, Gilmore, Hunt, Glendening, Keating); two retired (Edgar, Batt); and three face re-election in 2002 or 2004 (Huckabee, Easley, Barnes)." (footnote and citation omitted)).
168. "President Ford's pardon of Richard Nixon may have cost him reelection; several Governors have been impeached or driven from office for abusing their power to pardon."
169. (quoting Margaret Love, former U.S. Pardon Att'y, U.S. Department of Justice).
170. ("[T]he reluctance of recent presidents to exercise the clemency power more generously perhaps can be criticized for displaying a certain lack of moral imagination and political courage, particularly given the advent in the last twenty years of strict mandatory minimum statutes and rigid sentencing guidelines, together with a burgeoning federal prison population.").
171. Chief Judge Sachs recommended clemency at sentencing, and the decision was affirmed by the Eighth Circuit. United States v. Harvey, 946 F.2d 1375, 1378-79 (8th Cir. 1991).
172. Judge Friedman appealed to the executive branch after hearing, and rejecting, McDade's claims of ineffective assistance of counsel on collateral review. United States v. McDade, 639 F. Supp. 2d 77, 86-87 (D.D.C. 2009).
173. Judge Cassell recommended clemency at the sentencing stage of Angelos. United States v. Angelos, 345 F. Supp. 2d 1227, 1262-63 (D. Utah 2004).
174. See generally Kathleen M. Ridolfi, Not Just an Act of Mercy: The Demise of Post-Conviction Relief and a Rightful Claim to Clemency, 24 N.Y.U. REV. L. & SOC. CHANGE 43 (1998) (reasoning that clemency could either be "an act of mercy" or "an instrument of justice").
175. See, e.g., United States v. Harvey, 946 F.2d 1375, 1378 (8th Cir. 1991) (recommending executive clemency to modify a convicted person's sentence).
176. Major Drug Trafficking Prosecution Act, H.R. 1466, 111th Cong. (2009).
177. Controlled Substances Act, 21 U.S.C. §§ 801-971 (2006).
178. Controlled Substances Import and Export Act, Id. § 951.
179. H.R. 1466 (replacing various provisions reading "which may not be less than [x] years" with "for any terms of years").
180. Fairness in Cocaine Sentencing Act, H.R. 1459, 111th Cong. (2009); H.R. 3245, 111th Cong. (2009).
181. Both bills are sponsored by Representative Robert Scott, D-VA. Bill H.R. 1459 was introduced in the House on March 12, 2009, and bill H.R. 3245 was introduced on July 16, 2009.
182. H.R. 1459; H.R. 3245.
183. H.R. 1459. In addition to eliminating the crack-powder cocaine sentencing disparity, this bill calls for judicial discretion in other areas of drug sentencing. Id.
184. The safety valve allows judges to deviate below mandatory minimum sentences. 18 U.S.C. § 3553(f) (2006).
185. This proposal will become moot if either bill H.R. 1459, H.R. 1466, or H.R. 3245 are enacted into law. Each bill would eliminate mandatory minimums, thereby rendering safety valves unnecessary.
186. ("Due to the peculiarities of the sentencing guidelines' criminal history provisions, people who have been convicted of more than one very minor offense, such as driving on a suspended license or passing a bad check, can be considered to have too much criminal background to qualify for the safety valve.").
187. (noting that crimes including gun offenses, sex crimes, and identity fraud became subject to mandatory minimums without a safety valve).
188. Former Inmate Believes in the Power of Pardons (NPR radio broadcast Dec. 17, 2008), available at http://www.npr.org/templates/story/story.php?storyId=98399545.
189. United States v. Angelos, 345 F. Supp. 2d 1227, 1261 (D. Utah 2004).
190. See, e.g., Margaret Colgate Love, The Pardon Paradox: Lessons of Clinton's Last Pardons, 31 CAP. U. L. REV. 185, 217 (2003) ("[A]n unlimited power to make exceptions to the law depends for its legitimacy upon a process that at least appears to limit it.").
191. For the requests in each opinion, see United States v. Harvey, 946 F.2d 1375, 1378-79 (8th Cir. 1991).
192. United States v. McDade, 639 F. Supp. 2d 77, 86-87 (D.D.C. 2009).
193. Angelos, 345 F. Supp. 2d at 1230-31.
194. Lee Kovarsky, Death Ineligibility and Habeas Corpus, 95 CORNELL L. REV. 329, 371 (2010) (footnotes omitted).
195. see also Elizabeth Rapaport, Straight Is the Gate: Capital Clemency in the United States from Gregg to Atkins, 33 N.M.L. REV. 349, 353-55 (2003) (discussing the reasons judges have issued clemency for capital cases, including "to achieve justice or bestow mercy" and "to prevent the loss of convictions and to conserve judicial resources").
196. Richard A. Rosen, Innocence and Death, 82 N.C.L. REV. 61, 87-88 (2003) ("But clemency is, at bottom, a political crapshoot that forces the innocent and guilty alike to rely on popularly elected politicians, or their political appointees, to ensure that ultimate justice is done.").
197. See Michael Davis, Sentencing: Must Justice Be Even-Handed?, 1 LAW & PHIL. 77, 86 (1982) (discussing how the circumstances of the crime may affect sentencing).
198. United States v. Angelos, 345 F. Supp. 2d 1227, 1230 (D. Utah 2004).
199. United States v. Harvey, 946 F.2d 1375, 1378 (8th Cir. 1991) (quoting Sachs, C.J., from the Sentencing Transcript).
200. United States v. McDade, 639 F. Supp. 2d 77, 86 (D.D.C. 2009).
201. JOHN KAPLAN, ROBERT WEISBERG & BUYORA BINDER, CRIMINAL LAW: CASES AND MATERIALS 21 (6th ed. 2008).
202. McDade exemplifies how the sentencing "point" system works: Under the Federal Sentencing Guidelines, the Base Offense Level for 150 kilograms or more of cocaine is 38.
203. Had Mr. McDade pled guilty, he would have received a three level downward adjustment for acceptance of responsibility pursuant to Section 3E1. 1 of the Guidelines, to Offense Level 35.
204. As part of the plea agreement, Mr. McDade's managerial role in the conspiracy, a three level upward adjustment under Section 3B1.1, likely would have been negotiated away, leaving the Offense Level at 35. At Criminal History Category I, Mr. McDade's sentence would have been between 168 and 210 months. The Court would have imposed a sentence of 168 months.
205. McDade, 639 F. Supp. 2d at 86.
206. The statute, in relevant part, states that the court shall impose a sentence pursuant to guidelines promulgated by the United States Sentencing Commission... without regard to any statutory minimum sentence, if the court finds at sentencing, after the Government has been afforded the opportunity to make a recommendation, that... the defendant did not use violence or credible threats of violence or possess a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense.
207. U.S.C. § 3553(f)(2) (2006).
208. See, e.g., Farmer v. Brennan, 511 U.S. 825, 831 (1994) ("[T]he penitentiary had a violent environment and a history of inmate assaults... and petitioner... would be particularly vulnerable to sexual attack.").
209. Hudson v. Palmer, 468 U.S. 517, 526 (1984) ("Even a partial survey of the statistics on violent crime in our Nation's prisons illustrates the magnitude of the problem.
210. During 1981 and the first half of 1982, there were over 120 prisoners murdered by fellow inmates in state and federal prisons. A number of prison personnel were murdered by prisoners during this period.
211. Over 29 riots or similar disturbances were reported in these facilities for the same time frame. And there were over 125 suicides in these institutions. Additionally, informal statistics from the United States Bureau of Prisons show that in the federal system during 1983, there were 11 inmate homicides, 359 inmate assaults on other inmates, 227 inmate assaults on prison staff, and 10 suicides.
212. There were in the same system in 1981 and 1982 over 750 inmate assaults on other inmates and over 570 inmate assaults on prison personnel." (citations omitted)).
213. Jones v. N.C. Prisoners' Labor Union, Inc., 433 U.S. 119, 132 (1977) ("Prison life, and relations between the inmates themselves and between the inmates and prison officials or staff, contain the ever-present potential for violent confrontation and conflagration." (citing Wolff v. McDonnell, 418 U.S. 539, 561-62 (1974)).
214. See, e.g., S. REP. NO. 89-1667, at 17 (1966) ("The net effect is to confine eligibility for the benefits of the legislation to addicts accused of nonviolent crimes who show good prospects for rehabilitation, while retaining strict criminal punishment for dangerous or hardened offenders, narcotics pushers, and persons with a history of failure to respond to treatment.").
215. Lauren M. Cutler, Note, Arizona's Drug Sentencing Statute: Is Rehabilitation a Better Approach to the "War on Drugs"?, 35 NEW ENG. J. ON CRIM. & CIV. CONFINEMENT 397, 419 (2009) ("[R]esearch conducted by experts in recent years has demonstrated that rehabilitation offers a more comprehensive, long-term solution to nonviolent criminals....").
216. Jing Tsang, Note, California's Drug Reform Policies: Past, Present, Future, 30 WHITTIER L. REV. 887, 889 (2009) ("Due to the increasing number of nonviolent criminals in its prison system, California has made it a goal to reduce the number of nonviolent drug offenders in its prisons.
217. It hopes to reduce the overpopulated system by offering rehabilitation programs in lieu of incarceration...." (footnote omitted)).
218. S. REP. NO. 89-1667, at 17.
219. see also Note, Manufacturing Social Violence: The Prison Paradox & Future Escapes, 11 BERKLEY J. AFR.-AM. L. & POL'Y 84, 108 (2009) ("The prison is not a place where prisoners rehabilitate.
220. In fact, it seems that at a place like Terminal Island which is a middle security Federal Prison, many prisoners come in for nonviolent crimes and soon find their personalities shifting towards violence and survival." (quoting an inmate)).
221. United States v. McDade, 639 F. Supp. 2d 77, 86 (D.D.C. 2009).
222. JEREMY BENTHAM, THE THEORY OF LEGISLATION 326 (C.K. Ogden ed., Richard Hildreth trans., Kegan Paul, Trench, Trübner & Co. 1931) (1802) (emphasis omitted).
223. United States v. Angelos, 345 F. Supp. 2d 1227, 1239-43 (D. Utah 2004) (citing 18 U.S.C. § 924(c) (2000)).
224. See 2009 CRIMINAL JUSTICE TRANSITION COAL., ("For example, a defendant who, over the course of three days, carried a gun while making three drug sales (prosecuted in a single indictment resulting in three separate convictions) can be sentenced to a minimum sentence of 55 years for the gun charges, plus whatever other sentences result from the underlying conviction.
225. This defendant, if convicted in one trial of three instances of carrying a gun in relation to a drug trafficking offense, will be sentenced to (1) whatever sentence the drug trafficking conviction carries; (2) a five-year mandatory minimum sentence consecutive to the drug sentence, and (3) two 25-year mandatory minimum sentences consecutive to the drug sentence, consecutive to the five-year mandatory minimum and consecutive to each other.").
226. CAL. PENAL CODE § 667(b) (West 2010) ("It is the intent of the Legislature... to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offenses.").
227. See, e.g., Adriaan Lanni, The Future of Community Justice, 40 HARV. C.R.-C.L.L. REV. 359, 393 (2005) ("Studies have shown, for example, that public opinion tends to be much more punitive with regard to violent than nonviolent crimes").
228. (citing Francis T. Cullen, Bonnie S. Fisher & Brandon K. Applegate, Public Opinion About Punishment and Corrections, 27 CRIME & JUST. 1, 59 (2000))).
229. The Federal Sentencing Guidelines assign criminal-history levels based on the number of offenses a defendant has committed prior to the offense being sentenced. The categories range from I to VI, which puts defendants into different zones of potential incarceration lengths.
230. Pablo Martinez & Joycelyn M. Pollock, Impact of Type of Attorney on Sentencing, 44 CRIM. L. BULL. 652, 653 (2008) ("Research on sentencing has examined what factors go into the decision to incarcerate versus giving the offender a 'second chance' with a community supervision sentence.
231. Obvious factors that have been examined include: crime of conviction, criminal history, race, and gender.").
232. United States v. Harvey, 946 F.2d 1375, 1378 (8th Cir. 1991).
233. United States v. Angelos, 345 F. Supp. 2d 1227, 1231-32 (D. Utah 2004).
234. Delo v. Lashley, 507 U.S. 272, 288 (1993) (Stevens, J., dissenting) ("[I]mportant protections that the law has traditionally provided to youthful offenders because of their... greater potential for rehabilitation [should be observed].").
235. Hitchcock v. Dugger, 481 U.S. 393, 398 (1987) ("The only mitigating circumstance [against the death penalty the sentencing judge] found was petitioner's youth.").
236. Terry A. Maroney, The False Promise of Adolescent Brain Science in Juvenile Justice, 85 NOTRE DAME L. REV. 89, 91 (2009) ("Crimes committed by still-developing young people, these scholars urge, are less blameworthy than equivalent acts by adults; further, youths' developmental plasticity makes them more likely to stop offending-if, that is, we provide them with conditions conducive to rehabilitation.".
237. (citing ELIZABETH S. SCOTT & LAURENCE STEINBERG, RETHINKING JUVENILE JUSTICE 13-16 (2008))).
238. ("[F]amily ties and responsibilities are not ordinarily relevant in determining whether a departure may be warranted." (emphasis added)).
239. See, e.g., Mogens Nygaard Christoffersen, Brian Francis & Keith Soothill, An Upbringing to Violence? Identifying the Likelihood of Violent Crime Among the 1966 Birth Cohort in Denmark, 14 J. FORENSIC PSYCHIATRY & PSYCHOL. 367, 367 (2003) ("First-time convicted offenders have an increased risk of coming from seriously disadvantaged families....").
240. DeAnna Pratt Swearingen, Comment, Innocent Until Arrested?: Deliberate Indifference Toward Detainee's Due-Process Rights, 62 ARK. L. REV. 101, 103 (2009) ("[E]arly American scholars attributed deviant behavior to the poor upbringing of the offender and the vices of the community.").
241. Crime: What The Country Really Thinks: Children's Upbringing Seen as Key to a Law-Abiding Society, INDEPENDENT (London), May 7, 1994, at 3 ("Raising the moral climate started off as the most outstandingly popular tactic for tackling crime: teaching children the difference between right from wrong was identified by more than 90 per cent of people as one of the most effective ways of tackling crime, parents spending more time with their children by 85 per cent and firmer discipline in schools by 83 per cent.").
242. Although the sources cited above also speak to this point, the lyrics of a popular song may paint a clearer picture.
243. Oh, there ain't no rest for the wicked / Money don't grow on trees / I got bills to pay / I got mouths to feed / There ain't nothing in this world for free. / I know I can't slow down / I can't hold back / Though you know, I wish I could / No there ain't no rest for the wicked / Until we close our eyes for good.
244. CAGE THE ELEPHANT, AIN'T NO REST FOR THE WICKED (Jive Records 2009) (quoting a prostitute, a street robber, and an embezzler).
245. U.S. SENTENCING COMM'N, AN OVERVIEW OF THE UNITED STATES SENTENCING COMMISSION 1 (2009), available at http://www.ussc.gov/general/USSC_overview_200906.pdf.