President Biden, it’s time to use your pardon power.
By David Oscar Markus
The federal criminal justice system is littered with terribly unjust convictions and sentences. The President of the United States has the power, granted to him by our Constitution, to fix these injustices – either by pardoning a person convicted of a federal crime or by commuting a sentence. Unfortunately, President Biden has barely used that power to date. Putting aside pardons for possession of marijuana, he has granted only 25 pardons and 131 commutations (which is less than 1.5 percent of all the petitions submitted to the pardon office to date). And almost none of these are white collar offenses, which get very little attention for this sort of review.
But it is not too late, Mr. President. Traditionally, most presidents wait until the final few months of their presidency to use the wide power and discretion afforded them. Here are some cases that cry out for the President's intervention:
The first case, United States v. John Moore and Tanner Mansell, is the ideal candidate for a pardon. Moore and Mansell were crewmembers on a boat that facilitated shark encounters in South Florida. During one such trip, they spotted sharks caught on a long fishing line that they mistakenly believed was illegal. They recorded as they retrieved the line and released the sharks, and called Fish & Wildlife to notify law enforcement of what they had found. It turns out that the lines had been placed lawfully, an unusual circumstance. Despite that this was a good faith mistake, Moore and Mansell were indicted and convicted for theft of property within the special maritime jurisdiction of the United States, in violation of 18 U.S.C. 661. The appellate court affirmed the conviction, but Judge Lagoa said she did so "with reluctance" because she had never seen "in eighteen years on the bench and three years as a federal prosecutor," facts like these. She said that the prosecution "def[ied] understanding" and that the prosecutor took "a page out of Inspector Javert's playbook" for prosecuting this case. She said the facts "plainly suggest[] a good faith mistake" and she could not understand how "this case was worth the public expense of a criminal prosecution, and the lifelong yokes of felony convictions."
The next two cases are perfect for clemency. In United States v. Tyson Rhame, James Shaw, and Frank Bell, the defendants were charged with fraud for selling the Iraqi currency, called dinar (an entirely legal product). It was undisputed that every single customer got exactly what they paid for and that not one of the thousands of customers ever complained. In fact, the dinar is worth today almost the same amount it was worth when customers purchased it years ago. In other words, they did not lose anything. The defendants themselves did not say anything fraudulent to any of the customers and they spent millions of dollars on compliance to make sure that they did not cross any legal lines. Even the judge at trial said, "Let me put it this way: I don't know where this case is going to end up ... Well for one thing, I'm not prepared to even say, well this case is going to get past directed verdict. These people can be found completely not guilty." Unfortunately, the jury found them guilty. Ty Rhame -- an Iraqi war hero, has donated tens of millions to charity, always paid his taxes, and is a loving father -- was sentenced to 15 years (!!) in federal prison for selling a legal product that is still openly sold today.
In United States v. Johnny Grobman, Raoul Doekhie, and Sherida Nabi,
the defendants bought baby formula from manufacturers saying on the
basis that they would sell only in foreign markets, but they
actually sold in the United States. The “victims” in this case, primarily very large corporations, made a profit
from their sales to the defendants.
Their complaint is that they did not make as much money as they would have had they marked it up
to be resold in the U.S. Based on the premise
that these corporations may have been
able to make more profit from these
transactions, Grobman, a father to three young
daughters, was sentenced to 18 years in federal
prison even though he was a first time non-violent offender. 18
years! A co-conspirator in Johnny’s case who did not go to trial and
cooperated with the prosecution received a sentence of 2 years.
I am particularly attuned to the facts of Rhame and Grobman since I represent both of them on appeal (I was not the trial lawyer). I could go on and on with other cases that President Biden should look after. Another one of my clients who is currently appealing, Neil Cole, was acquitted of conspiracy to commit securities fraud in the Southern District of New York, which was the top and most serious count. The jury was unable to reach a verdict on the less serious counts, but the government decided to retry him anyway on the very same theory that the jury rejected for the conspiracy. It's hard to beat the government once; it's almost impossible to beat the feds twice, especially where the government scares away defense witnesses with threats of perjury and obstruction.
Many presidents issue a few pardons
and commutations at the end of the their term to show at least a little
mercy. But President Biden has the opportunity do something truly special
and unique -- clear the board of the many unjust convictions and sentences in
our federal system. Don't be stingy,
President Biden. Don't succumb to fear.
Do the right thing and make our criminal justice system just a little
more fair.
Unfortunately, this administration has primarily focused on granting clemency to low-level, non-violent drug offenders, which, while important, neglects many other deserving cases of injustice in our federal criminal justice system. Clemency is meant to correct manifest wrongs, especially for those serving lengthy sentences for offenses that often don’t reflect the severity of the punishment. Yet, countless individuals, like those mentioned in this blog post, remain overlooked. Others are serving hundreds of years due to stash house stings, but they are denied clemency because of the nature of their conviction.
ReplyDeleteThe cases of Moore and Mansell, Rhame, Grobman, and others highlight profound injustices. These individuals either made honest mistakes or were convicted for conduct that, while questionable, did not warrant the extreme sentences they received. The federal system is filled with similar cases that could benefit from a fair and nuanced review to grant them the second chance they deserve.
Moreover, many justice-impacted individuals who have successfully re-entered society, living law-abiding lives, engaging in restorative justice, and giving back to their communities do not meet the criteria of this administration simply because of the nature of their offenses. These individuals have proven their capacity for rehabilitation and positive contribution, yet their past convictions still exclude them from consideration for clemency.
President Biden still has the opportunity to make a broader impact through his clemency power. While there has been a focus on drug offenses, clemency should not be limited to a single category of crime. Many deserving individuals have already paid a high price for breaking the law, who now live productive and restorative lives, and who remain stuck under the weight of a system that failed them.
It’s time for the clemency process to expand beyond these narrow criteria and extend mercy to those who have shown they can contribute positively to society. They deserve the chance to move forward and for the criminal justice system to correct its wrongs.
Well said.
DeleteI'm with this commenter.
DeleteThe ongoing saga of Leonard Peltier is one that cries for executive clemency. The misconduct by the government, discovered only after after appeal due to FOIA and has been undisputed in habeas opinions, is simply astounding. At 80 years old and in poor health, Peltier has been imprisoned since a controversial conviction in 1975 for the murders of two FBI agents on the Pine Ridge Reservation of which two others were convicted in an earlier trial based on self-defense. Peltier’s freedom has been called for over the years by the Pope, the Dalai Lama, Mother Teresa, Nelson Mandela, Coretta Scott King, Chief Wilma Mankiller, as well as documentary by Robert Redford, and everyone from Bob Dylan to Willie Nelson to Madonna to Rage Against the Machine has repeatedly spoken up for him. Notably, both the lead prosecutor at the time and a federal appeals court judge who heard case have spoken publicly urging clemency by the President. Notably, both the lead prosecutor at the time and a federal appeals court judge who heard case have spoken publicly urging clemency by the President.
ReplyDeleteThe presidential pardon power is a political power that I think is far over used. I think the framers would be shocked how ALL presidents have used the pardon. Major donors or connections to presidents have always been given priority. During Trump, he was handing out pardons to people so they would not implicate him in crimes. That is not what the founders ever imagined. Because the pardon is a political issue, it was put in the constitution because they feared a political prosecution and gave the president this power to over come the mob mentality. Having said all that, sit down because Biden will soon be on a roll. He's leaving office and has no political blowback to worry about. I predict he will pardon Trump and Hunter on the same day. Hunter pled guilty with no benefits. That tells you he must have been told he would be pardoned. Where are the independent judges? Every appeals court has ruled the firearms charge against Hunter is too vague and always thrown out. When you dont pay your income taxes, the IRS will not prosecute you if you pay back the taxes with penalty and interest. Hunter did all that yet no judge will be independent and look at the law because they will look like they are being partisan and giving the president's son a pardon. If his name was Hunter Smith or anyone else, he would never have been charged. So Hunter Biden is the exact scenario the founders spoke about. Grab some popcorn because unless Trump wins, Biden will pardon Trump and Hunter along with lots of other people.
ReplyDeleteBingo on the Trump/Hunter angle. Trump is salivating on firing Jack Smith. Will never happen. Biden will beat him to the punch to soften the PR disaster that will follow Hunter's pardon. The fix was in all along. Pardons and commutations are an invitation to corruption. My ATF in this category is Nixon commuting Hoffa's sentence in exchange for the Teamsters' support in the '72 blowout. Hoffa also agreed to not ever run for Teamsters president again. Look where that got him.
DeleteMore on the Rhame case. How did it get past a rule 29 and with the judge’s comments how did he get 15 years?
ReplyDeleteThese sound like three worthy cases. Shame that there wasn't more judicial courage here, political courage is needed.
ReplyDeleteMoore should never have been prosecuted. But Grobman only sounds like a worthy case when described by his own defense lawyer. The evidence presented at trial tells a very, very different story.
DeleteRead the opinion. Lot of people got hurt.
ReplyDeleteMost abused power by so many presidents. Trumps pardons were appalling mostly rich white collar criminals. Pathetic.
ReplyDeleteSurely all that you have argued could occur after Election Day, no?
ReplyDelete