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Good news in clemency, but far from enough


What you’ll read today

  • Spotlight: Good news in clemency, but far from enough

  • Disabled prisoners decry treatment in New York’s prison system

  • The newly re-enfranchised register to vote in Florida

  • California police departments greet new transparency law by shredding documents

  • Supreme Court orders Virginia court to hear vindictive-prosecution claim

In the Spotlight

Good news in clemency, but far from enough

The bright spot in justice news this week was the announcement that Cyntoia Brown, serving a life sentence in Tennessee for a fatal shooting committed when she was 16, will be released in August to parole supervision, after having been incarcerated for 15 years. Governor Bill Haslam, in his announcement that he will be commuting Brown’s sentence, pointed to her youth at the time of the shooting and her many accomplishments in the time since she was sentenced. [Adam Tamburin and Anita Wadhwani / Tennessean]

Also this week, Governor Jay Inslee of Washington announced a limited initiative to pardon people with marijuana convictions. The state legalized marijuana possession in 2012 and Inslee’s office announced the measure as a way to reconcile past treatment with the current legal landscape. The process for application is, according to the governor’s office, meant to be far simpler than for pardons in general. These pardons are only available, however, to those with no other criminal convictions and to those convicted under state law, not local ordinances. Furthermore, if questioned about a criminal record, people pardoned under this initiative must say they were convicted but subsequently pardoned. [Alex Bruell / The Daily News] The governor’s office estimates that 3,500 people are eligible for the pardons. For those who are not, the regular pardon process is an option. [Jim Brunner and Asia Fields / Seattle Times]

In two roundups at the end of 2018, the Sentencing Law and Policy blog highlighted several instances of governors granting clemency. These include Governor John Hickenlooper of Colorado making the first clemency grants in his eight years in office when he commuted six sentences. The commutations included Curtis Brooks’s sentence. Brooks was sentenced to life without parole in 1997 for his participation as a 15-year-old in a robbery that left one man dead. In 2012, the Supreme Court ruled in Miller v. Alabama that mandatory life without parole sentences for children were unconstitutional, and, four years later in Montgomery v. Louisiana, that its ruling was retroactive. Following that, a new law in Colorado guaranteed new sentences of 40 years to life to most of those sentenced to mandatory life without parole and shorter sentences for those convicted of crimes committed when they were children.

Hickenlooper and Inslee have been floated as potential Democratic presidential candidates, making their clemency decisions interesting for what it reveals about their beliefs in when clemency is necessary and when it is not.

Jerry Brown, as he wrapped up his final term as governor and his long political career, became the rare governor who actually granted clemency on a scale larger than single or double digits. During his first tenure as governor, from 1975-83, Brown granted 404 pardons and a single commutation. This was fewer than his immediate predecessor, Ronald Reagan, who issued 574 pardons and 17 commutations. But after taking office in 2011, Brown issued 1,189 pardons and 152 commutations. [Bob Egelko / San Francisco Chronicle]

The reason, Brown told the San Francisco Chronicle, is twofold. First, in 1975, there were around 25,000 people incarcerated in California and 12 prisons, according to the Chronicle. By 2011, there were 173,000 serving time in prison. (That number dropped to 128,000 after a federal court order to address overcrowding in California prisons.) Second, Brown pointed to the conditions in California prisons that offer so little by way of rehabilitation.  [Bob Egelko / San Francisco Chronicle]

But there has been pushback. Under California law, in cases where a person has two or more felony convictions, the state Supreme Court must, by a majority decision, approve a grant of clemency. In March, the court adopted a policy that it would not disallow a governor’s grants, unless they constituted an “abuse of power.” That policy was widely viewed as an effort to let Governor Brown know that his clemency decisions would not be second-guessed, while he prepared for a flood of applications in his final months in office. [Peter B. Collins / Mercury News]

Yet, in the past month, the court has rejected Brown’s decisions in 10 cases, marking the first time since 1930 that the court has so intervened. Writing in the Mercury News, Bay Area radio host Peter B. Collins criticizes the court’s actions, pointing out that according to its own opinion, only an abuse of discretion warrants these actions and the court failed to identify why these grants constituted that. Among the questions the court’s actions raise are: “Why…did the court overrule the governor’s pardon of Borey Ai, who won parole in 2016, and is now subject to mandatory deportation to Cambodia, the nation his parents fled before he was born? Why did the court consider Brown’s reduction of sentences—not immediate releases—for a number of second-degree murder convictions to meet the vague standard of ‘abuse of power’?” [Peter B. Collins / Mercury News]

The end-of-year flurry of activity in various states, while welcome, was simply not enough. In New York, Governor Andrew Cuomo issued only 29 clemency grants last month, focusing, as he has in the past, on those who might be otherwise be targeted for deportation.  Though Cuomo’s focus on protecting those at risk of deportation is important, his clemency grants were insufficient, particularly given the fanfare with which he launched a clemency initiative in 2015. [Victoria Law / Rewire.News] Organizers with the #FreeThemNY campaign and advocates for criminalized survivors of sexual violence have also pointed out that even though the state corrections department estimates that two-thirds of women in prison are survivors, Cuomo’s clemency process has largely ignored pardons or commutations for survivors of sexual violence and abuse. [Natalie Pattillo / Pacific Standard]

Stories From The Appeal

 

Photo illustration by Anagraph. Photo by Andrew Burton/Getty Images

Disabled Prisoners Decry Their Treatment in New York’s Prison System. Prisoners in the state’s Regional Medical Units allege that they are being denied access to essential programs and services like law libraries. [Keri Blakinger]

Stories From Around the Country

The newly re-enfranchised register to vote in Florida: Yesterday was the first day for people re-enfranchised by Amendment 4 to register to vote. Amendment 4, a ballot measure that passed in November, restored voting rights for people convicted of felonies, other than murder and sex offenses, who have completed their sentences. The Sentencing Project estimated in 2016 that nearly 1.5 million people in Florida were disenfranchised. Accounting for those with convictions that make them ineligible for restoration, it is estimated that well over a million people are newly eligible to vote. [German Lopez / Vox] The Florida Times-Union reported that in Jacksonville alone over a hundred people went to the county supervisor of elections office to register in person. Many more are assumed to have applied online or registered at public library branches around town. One man told the paper that previously, “I didn’t have a whole lot of confidence in the voting process,” but “now the people making laws and writing laws are going to be listening to me.” [Andrew Pantazi / Florida Times-Union]

California police departments greet new transparency law by shredding documents: Even before a new transparency law went into effect Jan. 1, California police agencies began shredding records that could be subject to disclosure and law enforcement unions began legal challenges to the law. This could mean that disclosures could be delayed for several months or, in some cases, never happen. Until this year, California was the only state in the nation where neither the public nor prosecutors could access police disciplinary records outside of court. Under the law, which police unions bitterly opposed, records on internal investigations of police shootings and other major uses of force, as well as cases of sexual assault and lying while on duty, are subject to disclosure. The Inglewood and Long Beach police departments are two agencies that, beginning last month, after the law was signed by Governor Jerry Brown, shredded internal affairs files dating back two decades or longer. Both departments claim they did this for reasons that had nothing to do with the new transparency law. [Liam Dillon and Maya Lau / Los Angeles Times]

Supreme Court orders Virginia court to hear vindictive-prosecution claim: Justin Wolfe was found guilty in a murder-for-hire plot and sentenced to death in 2002, in a case that has attracted sustained attention, including from the blog Prosecutorial Accountability and Dahlia Lithwick at Slate. After Wolfe won federal habeas relief based on prosecutorial misconduct a decade later, prosecutors for Prince William County, Virginia, recused themselves and asked the court to appoint another prosecutor that their office had selected. That new prosecutor filed new charges, based entirely on the original investigation. Faced with the prospect of another unfair trial on even more charges, Wolfe decided to plead guilty. Wolfe turned to the Supreme Court, invoking its 2018 decision in Class v. United States in which the Court held that a guilty plea does not bar a person from raising the question on appeal of whether the government had the constitutional authority to carry out the prosecution. The Court has now vacated the lower court’s judgment and remanded the case to the Supreme Court of Virginia to hear Wolfe’s vindictive-prosecution claim despite his guilty plea. [Prosecutorial Accountability]

Correction: An earlier version of this newsletter misnamed a publication. It is Rewire.News, not Rewire.

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