Today’s post shares my answers to some of the questions I have been asked related to the impact of the coronavirus pandemic on the correctional system. As you might imagine, many of those questions are focused on ways to reduce jail and prison populations. Continue reading
Tag Archives: clemency
Under a law that existed from late 1994 to late 1998, North Carolina defendants sentenced to life without parole for offenses committed during that window are entitled to a judicial review after 25 years of imprisonment. I wrote about it here a few years ago, noting that the window for reviews would open in late 2019. Here we are. Continue reading →
Category: Sentencing, Uncategorized | Tags: 25-year review, clemency, life without parole, LWOP, parole
I have started to get questions about G.S. 15A-1380.5, a repealed statute that used to provide for judicial review of sentences to life without parole after 25 years of imprisonment. It’s too early for a court to be applying the law just yet—the first reviews shouldn’t happen until 2019—but we’re getting close, and people are talking about it. Today’s post describes the law. Continue reading →
It is a Thanksgiving tradition for the president to pardon a turkey. This year, CNN reports, it was a Minnesota bird named Popcorn. But is executive clemency limited to avians? This post briefly explores the available data.
Decline in federal clemency. Though he pardoned a turkey, President Obama has not pardoned many people. The New York Times observed here that “Obama’s use of the pardon power remains historically low. In four and a half years, he has received almost 10,000 applications for clemency and has granted just 39 pardons and one sentence commutation.” The graph below shows how President Obama compares to other two-term presidents in terms of pardons and commutations:
Obviously, there’s a modern trend towards more limited use of executive clemency that extends beyond the current president. I speculate that the increased media scrutiny given to pardons and commutations has made presidents reluctant to exercise clemency. Whether that’s a good thing (because it promotes consistency in the criminal justice system and minimizes the capricious and perhaps political amelioration of sentences) or a bad thing (because it mercilessly fails to recognize those who have truly changed their ways) is a question beyond the scope of this post.
North Carolina data. The same trend of more limited use of the clemency power may be present in North Carolina as well, though the effect of four terms of Governor Hunt is so strong that it is a bit hard to tell. I compiled data from the Governor’s Clemency Office into this chart:
I looked briefly for data from other states and didn’t find a clear trend. For example, Governor Brown in California appears to be granting clemency more often than his predecessors. However, I have heard that this book by Margaret Colgate Love contains nationwide analysis and statistics supporting the idea that clemency is increasingly infrequent.
Types of clemency. The Office of Executive Clemency has this helpful web page that discusses the various types of clemency in North Carolina, including commutations, pardons of forgiveness, pardons of innocence, and unconditional pardons. It’s worth remembering that some instances of clemency are acts of mercy, but others are acts of justice. For example, according to press reports, most of Governor Easley’s pardons were in cases in which DNA evidence exonerated the defendant, while almost all of Governor Perdue’s pardons concerned the racially tainted Wilmington 10 cases.
The future of clemency. It is too early to tell how much, or how little, Governor McCrory will exercise executive clemency. And the jury may still be out on President Obama, as well. As the graphic below from the Pardon Power blog shows, about half of all pardons occur in December, apparently in connection with the Christmas season, and a disproportionate number of pardons are granted in the final year of a president’s term.
Readers, what do you think? Are pardons just for turkeys now? What explains the decline? If we are witnessing the end of clemency, is that a good thing or a bad one?
Update: I spent some time over the weekend thinking about this case. It seems to me that one likely upshot of Harbison is that some states that currently provide for the appointment of counsel at the clemency stage will stop doing so. After all, why spend scarce state funds to provide for something that the federal government will provide? This is arguably an inefficient response from a global point of view, since the federal government pays lawyers $175 per hour in capital cases, while most states pay far less — for example, North Carolina pays $95 per hour in capital cases. But from the standpoint of any individual state, it’s fiscally sound.
Original Post: To paraphrase Bob Dylan, the times, they aren’t a-changin’. That’s the basic upshot of the United States Supreme Court’s latest criminal law pronouncement, Harbison v. Bell, available here. The fact that Harbison leaves the law unchanged justifies the title of this post, but I actually think that the issue is reasonably interesting, so I’m posting about it anyhow.
Harbison is a capital case from Tennessee. The defendant was convicted, sentenced to death, lost his direct appeals, and got no relief in the state post-conviction process. His case moved to federal court, and new counsel was appointed to represent him. He lost again in the district court, and lost a split decision in the circuit court. With the end of the road in sight, defense counsel then moved to expand the scope of counsel’s representation to include representation during state clemency proceedings. Tennessee law does not provide for the appointment of counsel at the clemency stage, so defense counsel viewed this as the only way to ensure that the defendant would be represented at clemency.
The district court denied the motion and the Sixth Circuit affirmed, relying on its own prior precedents regarding the proper scope of representation for federally-appointed counsel in death penalty cases, but the Supreme Court reversed. Interpreting 18 U.S.C. 3599, the Court ruled that death-sentenced inmates entitled to federally-appointed counsel are entitled to such counsel all the way, i.e., at all subsequent proceedings, even if the proceedings in question are state, rather than federal in nature. There’s some limit to the Court’s holding — for example, it indicated that the representation wouldn’t extend to a new state trial ordered by a federal court — but it certainly read the statute expansively to reach the result that it did.
North Carolina, like Tennessee, does not provide for appointed counsel at the clemency stage. See G.S. 7A-451. However, the Fourth Circuit has long taken the position that counsel appointed to represent a capital defendant in federal court should remain on the case through clemency, and has compensated counsel for the time spent on clemency. This practice doesn’t seem to have been litigated, nor does it seem to be based on anything in the court’s written plan for appointing counsel, available here, but I am assured that it is the case — apparently informally. Thus, while Harbison probably had some North Carolina capital defense lawyers worried, the ultimate result in North Carolina is, to paraphrase the Four Tops, the same old song.
