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Ohio Lethal Injection Execution Method Ruled Constitutional

The U.S. Court of Appeals for the Sixth Circuit has upheld the constitutionality of Ohio's lethal injection protocol. In a unanimous ruling, a three judge panel upheld the district court's previous decision denying death-row inmates Raymond Tibbetts and Alva Campbell their request to enjoin their pending executions. It's the latest case in a string of stories concerning the state's method of execution. Ohio's Death Penalty Drama The Buckeye State's execution protocol has been a recurring news item. In November 2017, the state's attempted execution of Alva Campbell (one of the plaintiffs here) was cancelled when prison officials couldn't find a vein to inject the lethal mixture of drugs. Campbell was sentenced to death in 1998 after killing 18-year-old Charles Dials during a jail break attempt. Campbell's legal team has also requested execution by firing squad on numerous occasions, a request that state officials are (extremely) unlikely to grant. According to the state's current execution schedule, Raymond Tibbets's execution will occur next week, on February 13th, 2018. That's a date subject to change, however, as eleventh hour postponements are common. Tibbetts was sentenced to death for the brutal murder of his wife and landlord in 1997. Death Penalty and the Law State death penalty cases are among the most heavily-litigated cases. Trials commonly take years, appeals generally go through state and federal courts for decades, and last minute stay requests or clemency petitions are common. Challenges to the method of execution as violating the Eighth Amendment's Cruel and Unusual Punishments Clause have been common in recent years. An approaching execution is a common time for reigniting America's long-running debate over the wisdom -- and constitutionality -- of capital punishment. Related Resources In re Ohio Execution Protocol Litigation (FindLaw's Cases and Codes) Appeals Court Say Ohio Lethal Injection Execution Method Constitutional (Cleveland.com) Ohio May Give Botched Execution Another Try (FindLaw's Blotter)
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Humanity and Hope is the Only Thing that Can Save Our Criminal Justice System

Late in the morning, January 19th I received a message from a woman I didn’t know from the Department of Justice.  She wouldn’t tell my assistant the reason for her call.  As any criminal defense attorney knows, unexplained inquiries from the federal government are not typically welcome phone calls. I immediately went through a list of investigation matters which could have precipitated such a call. I reached out to my law partner to warn her that we might be in for some bad news.  Her response was more optimistic than mine, saying, “Are you sure this isn’t your clemency petition?” That thought hadn’t occurred to me, because, this being the day before Inauguration Day, I had assumed that President Obama, had already issued his last round of pardons and commutations.   I quickly hung up and called the number.  The woman who left me the message answered. I introduced myself and she said she was calling from the Office of the Pardon Attorney at the Department of Justice.  My heart was in my throat.  Then the message came: she told me that President Obama was commuting my client’s sentence. I started crying the moment the words came out of her mouth. Once I composed myself, I learned that her office had already set up a call between my client and me, so that I could be the first person to share the news with him.  Telling my client that President Obama himself had decided that he was deserving of a second chance will always remain a highlight of my career. In total, President Obama granted clemency to 1927 individuals. Of those, 1715 were commutations and 212 were pardons.  While that number may sounds high, it is in fact quite low considering the large number of nonviolent drug offenders who are languishing in federal prisons throughout this country. During the full course of his presidency, President Obama received 36,544 petitions for clemency, which means ultimately he only granted around 5% of those petitions. It has been hard for me to put into words the gratitude that I feel to President Obama for the humanity he showed my client.  Especially because my client is someone who is nameless and faceless to much of our society.  It is easy to get behind the cause of someone who has notoriety because of either their position or media spotlight given their incarceration.  But to care about someone who is regarded as nothing more than a number in our system – a person who few would even notice if they were walking by – that is the true mark of a leader and a hero by my standards. For me, this client isn’t a number; he is a human being and deserving of this chance. He has paid his debt to society and then some and deserves an opportunity to have a chance to reenter that society. The fact that the President of the United States agreed gives me renewed hope. I have begun to think about the lessons to draw from this experience and from the Obama presidency in general. For me, these lessons are centered on humanity and hope. There are so many ways that our system has been made better and stronger for the hope and humanity that has been infused into it. From the Clemency Project, to the Holder Memos, to the effort to improve prisons by reevaluating solitary confinement and the privatization of federal prisons, and to the Justice Department’s conducting of investigations and using  consent decrees to eliminate unlawful conduct in local law enforcement agencies. The common thread that runs through these initiatives is that they infuse both humanity and hope in our system – the heart and soul of criminal justice reform.   When I heard that President Obama had commuted my client’s sentence, I was overcome with emotion and gratitude. It was partially from the relief that someone finally cared enough to listen to this young man’s story. But it was also a greater sense of redemption for all the moments that I have had to stomach watching a system that previously didn’t care; one void of humanity or hope.  Today, because of criminal justice reform our system is stronger, fairer, and more just. And we must fight to keep it that way. The post Humanity and Hope is the Only Thing that Can Save Our Criminal Justice System appeared first on Women Criminal Defense Attorneys.
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Dear President Obama

Dear President Obama, I am a criminal defense attorney, and at the prodding of one of my colleagues, Marjorie Peerce of Ballard Spahr, I have volunteered my time to screen clemency petitions through the Clemency Project, a project to provide free legal assistance to federal prisoners serving longer sentences than they would have received if sentenced today.  In this role, I review multiple clemency petitions and evaluate whether an executive summary should move on to the project’s steering committee.  It is overwhelming how many individuals are languishing in prison with life sentences who are low level drug offenders with no history of violence. Being a small part of helping to right the wrongs created through overcriminalization has been rewarding beyond belief. But it has also been a stark reminder of the injustice endured by so many of our nation’s prisoners. In my work with the Clemency Project, I agreed to prepare an executive summary to support a petition for clemency for an old CJA (Criminal Justice Act) client of mine who received a 200 month sentence for selling 58 grams of crack. The importance of this responsibility cannot be overstated.  It feels different than defending someone facing a charge – this is a person’s last chance in my hands. To get to know the personal story again behind this human being is both tragic and disturbing. He grew up with parents plagued by addiction and witnessed both his mother and father using cocaine in the family home from an early age.  His father died when he was twelve, a tragedy that sent him into a downward spiral.  He dropped out of school in the ninth grade and became so addicted to narcotics himself that, for the six years leading up to his arrest, he spent every day getting high on drugs to feed his crippling addiction.  Eight months after he was sentenced in this case, his mother died from HIV.  My heart broke when I discovered that, in the close to ten years he has been incarcerated, no one has gone to visit him. I wanted to get in my car and go visit him myself. The facts of the case and his criminal history don’t even begin to justify a double-digit prison sentence for a 23 year-old young man. I am disturbed and outraged at how our system has hurt this young man. All I can think about as I am finalizing the executive summary to submit to the Clemency Project is that my work is not enough. I am consumed with the thought that I must reach out directly to you, Mr. President. My hope is that I can express to you the magnitude of the injustice that occurred here, and that I can implore you to use your discretion to right this wrong.  My hope is that I can help you see what I see about this young humble and kind man who never had a chance in life to be more than a small time street level drug dealer. My fellow defense attorneys who’ve seen these kind of injustices might say that no one is ever going to see this letter, that it is a useless effort.  We know that we are up against steep odds whenever we represent a defendant charged with a drug offense.  We tell ourselves these are the crack guidelines, and we can’t change that.  We tell ourselves that this is a tough judge, and we can’t change that.  And in spite of our pleas for leniency or even just a fair sentence, we walk away having to swallow our outrage, understanding that we can only do so much to change the system. Our cynicism, shaped by years of injustice, makes us think that no one in power is ever going to care about the cause of an insignificant young man like my client, certainly not the President of the United States. I am writing to you, Mr. President, because I believe you do care. I have been troubled by this case for ten years and although I am grateful that, in your presidency, you have shown concern for these issues, I somehow want you to hear that a young man was designated a career offender for selling 58 grams of crack when he had previously been charged with having sold cocaine on only two prior occasions of such small quantities that in one instance he only made $15.00. And as this was unfolding, like in so many other cases, those entrusted as officers of the court stood by and acted as if it was normal and commonplace: simply our criminal justice system at work. I want to ask you to meet my client and learn the tragic story that brought him to where he now sits, in prison. I want you to be the one that finally visits this young man, not as a PR opportunity but to truly see him and talk to him. This act would serve as an acknowledgment that his life really does matter.  I want you to bear witness, with me, to the severity of what our criminal justice system did to him.  In my mind, this would be a meaningful step in repairing the injustice, which could change his life forever. The post Dear President Obama appeared first on Women Criminal Defense Attorneys.
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Guest Post: Marjorie Peerce’s Commitment to Clemency Project Should Be an Inspiration to All

Every once in awhile, we meet people who truly inspire us to be better people and better lawyers. Marjorie Peerce is one of those people. As a partner in the New York office of Ballard Spahr she focuses her practice on white collar, regulatory and commercial defense. Yet since 2014, in addition to her busy practice, she has made time to work tirelessly to recruit and train volunteer lawyers to provide free legal assistance to federal inmates who may be eligible to have their sentences commuted or reduced by the President of the United States. Over 3,000 attorneys across the country have volunteered their time to work on this project, including 100 lawyers from Ballard Spahr. Every application submitted by Ballard Spahr is reviewed by Marjorie. She recently saw the first fruits of her labor and that of her colleagues when, on March 29, 2016, Obama granted clemency to 61 federal inmates, 25 of whom came through Clemency Project 2014 and two of whom were represented by Ballard Spahr attorneys. To put this in context, on April 23, 2014, former Deputy Attorney General James M. Cole announced the DOJ’s initiative to encourage qualified federal inmates to petition to have their sentences commuted or reduced by the President. Under the clemency initiative, the DOJ is prioritizing applications from inmates who meet the following criteria: • Currently serving a federal prison sentence and likely would have received a substantially lower sentence if convicted of the same offense today; • Non-violent, low-level offender without significant ties to large-scale criminal organizations, gangs or cartels; • Have served at least 10 years of their prison sentence; • Do not have a significant criminal history; • Have demonstrated good conduct in prison; and • Have no history of violence prior to or during their current term of imprisonment. Approximately 35,000 inmates responded to a Bureau of Prisons questionnaire indicating that they believe they meet the clemency criteria. After the clemency initiative was announced, the Administrative Office of Courts determined that inmates do not have a 6th Amendment right to counsel for the purpose of seeking clemency. As a result, federal money cannot be used to pay attorneys employed by the Federal Defenders or through the Criminal Justice Act to represent inmates under this initiative. In an effort to address the need for federal inmates to obtain legal assistance in submitting clemency applications, Clemency Project 2014 (“CP 2014)” was formed by lawyers from the Federal Defenders, American Civil Liberties Union, Families Against Mandatory Minimums, the American Bar Association, and the National Association of Criminal Defense Lawyers (“NACDL”). CP 2014 lawyers screen inmate requests to determine if they meet the clemency criteria, assign a volunteer lawyer to prisoners who appear to qualify, then assist the inmate in filing the clemency request. To date, 250 clemency applications have been granted by the President; approximately 60 of those applications came through CP 2014. I spoke to Marjorie about the two individuals recently granted clemency by the President who had been assisted by Ballard Spahr attorneys. Kevin County, a 43 year old African American, was convicted in New Orleans for selling small amounts of crack cocaine and heroin. Because he had a prior felony conviction, he received a sentence of 20 years (240 months) in prison and has already served 167 months. He was scheduled for release in 2020. Under current law, Mr. County would have been sentenced to 70-80 months in prison. Last week, Marjorie, together with Joanna Jiang and Erica Leatham, the Ballard Spahr attorneys who worked directly with Mr. County, called Mr. County in prison to tell him that he had been granted clemency by the President and would be released in July. Mr. County’s response was simple but powerful: “God bless you! Thank you!” Marjorie spoke to the New York Times after the announcement and praised President Obama for commuting the sentences of 61 federal inmates including Mr. County and stated “[t]he war on drugs from the 1990s resulted in inordinately harsh and long prison sentences for offenders who did not deserve to serve that length of time.” The other Ballard Spahr client, Angela Laplatney, was represented by Ballard’s Salt Lake City office, including Blake Wade and Melanie Clarke, also received a grant of clemency from a 20 year sentence for selling methamphetamine in Wyoming. Ms. Laplatney had served over 10 years of her sentence and was scheduled to be released in 2022. She, like Mr. County, will be released in July. Marjorie is grateful to Ballard Spahr for supporting the work of CP 2014, and noted that “pro bono is ingrained in the DNA of the firm.” She likewise praised the work of her NACDL partners, Jane Anne Murray and Norman Reimer, who serve on CP 2014’s Steering Committee with her, through which they certify that applications submitted through CP 2014 meet the clemency criteria. Marjorie told me that in over 30 years of practicing law, her work with CP 2014 has been “the single best thing” she’s done. She is on a mission to help as many federal inmates as possible who are serving sentences that, under current law, are “obscenely severe.” The recent grants of clemency by the President have further fueled Marjorie’s drive to help these inmates, and there is no doubt that her efforts in recruiting, training, and mentoring volunteer attorneys will pay off and change the lives of people who, until now, have been resigned to spending many more years in prison. Marjorie’s enthusiasm for CP 2014 is contagious. Lawyers who, like Marjorie Peerce, are willing to give up some of their time to work on this project will cherish the rare opportunity to change lives. By: Sharon L. McCarthy Partner, Kostelanetz & Fink, LLP New York, New York The post Guest Post: Marjorie Peerce’s Commitment to Clemency Project Should Be an Inspiration to All appeared first on Women Criminal Defense Attorneys.
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Are There Limits to Presidential Pardons?

President Obama commuted prison sentences for 46 drug offenders on Monday, noting that their long sentences (lifelong in 14 cases) didn't fit their crimes. The commutations reflect a trend at federal, state, and local levels of relaxing harsh minimum sentences for non-violent drug offenses. These commutations also reflect Mr. Obama's view of America, which he called "a nation of second chances." As The New York Times pointed out, this brings the President's commutation total to 89, the most by any president since Lyndon Johnson, and more than the last four presidents combined. So what are the differences between commutations and pardons, and what are the limits to the presidential pardon? Commutations vs. Pardons A commutation is a form of clemency whereby an official lessens an offender's punishment after he or she has been convicted. Whereas a pardon removes the conviction and any civil disabilities that come from it (like restricted voting rights), a commutation just removes the remaining sentence. So while these 46 drug offenders will be released from prison, their criminal convictions will remain on their records. This is compared to the pardon that new President Gerald Ford gave to former President Richard Nixon regarding the Watergate scandal, which was a "full, free, and absolute" pardon, precluding any potential criminal trial and conviction. The Pardoning Power The power to pardon comes from Article II of the U.S. Constitution, which gives the president "Power to Grant Reprieves and Pardons for Offenses against the United States." While the Supreme Court has interpreted the power broadly -- "It extends to every offense known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment" -- it is limited to those offenses falling under the jurisdiction of the pardoning official. Therefore, Mr. Obama has the authority to issue pardons for federal crimes. There are no statutory or judicial limits on the number of pardons or commutations a president can grant. (Lyndon Johnson commuted 226 sentences.) And while some commutations are often reserved for political allies, these 46 seem representative of larger criminal justice reforms. Related Resources: Pardons Aren't Just for Turkeys (FindLaw Blotter) Obama Commutes Sentences in 8 Crack Cocaine Cases (FindLaw Blotter) Obama Pardons Humans, Not Turkeys (FindLaw Blotter) Post-Conviction Proceedings (FindLaw)
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