US announces early release plan for nonviolent, low-level drug offenders

This is welcome news from Russia Today:

Jan. 30th-Feb. 1st  2014

The Obama administration announced Thursday a new clemency effort that encourages defense lawyers to refer to the Department of Justice low-level, nonviolent drug offenders for early release from federal prisons.
Speaking before the New York State Bar Association’s Criminal Justice Section, Deputy Attorney General James M. Cole unveiled the plan that seeks to determine possible clemency for inmates whose long-term incarceration “harms our criminal justice system.”
“You each can play a critical role in this process by providing a qualified petitioner – one who has a clean record in prison, does not present a threat to public safety, and who is facing a life or near-life sentence that is excessive under current law – with the opportunity to get a fresh start,” Cole said.
In addition, the US Bureau of Prisons will begin informing such low-level, nonviolent drug offenders of the opportunity to apply for early release, Cole said.
The announcement follows other initiatives and statements regarding prison reform made recently by top officials. Attorney General Eric Holder said in August that the same type of low-level drug offenders, with no ties to gangs or major drug trafficking organizations, would no longer be charged with certain offenses that instituted harsh mandatory sentences.
President Obama followed Holder in December with the commutation of sentences of eight inmates serving extensive terms in prison for crack cocaine convictions. All of the eight – recommended by the Justice Department – had served at least 15 years in jail and had been convicted before the 2010 Fair Sentencing Act, which was passed in effort to close large sentencing disparities between those convicted for crack and those for powder cocaine crimes.
Obama said at the time those eight inmates would have received shorter sentences had the law existed when they were convicted, adding some would have already served their time by then.
Cole said the Justice Department would like to send more of those kind of cases to the White House.
“The president’s grant of commutations for these eight individuals is only a first step,” he said. “There are more low-level, nonviolent drug offenders who remain in prison, and who would likely have received a substantially lower sentence if convicted of precisely the same offenses today.”
Cole did not specify how many candidates the White House will consider in the clemency program, though there are currently thousands of inmates serving time in federal prison for just crack cocaine crimes.
The Justice Department’s Office of the Pardon Attorney is in charge of advising the White House on the merits of specific cases.

Loss of Hope

Reblogged from the National Coalition to Abolish the Death Penalty, Aug. 6th, 2013

My name is Vicki Adams Werneke and I am a Federal Public Defender. My colleague Joseph (Joe) Wilhelm and I represented Billy Slagle. 

This Friday, August 9, will mark my 20th year of doing capital work. I was hoping the date would be celebrated with the saving of another life, and by all accounts it would have been. Sadly, as happens with our clients at times, he lost hope. Apparently Billy wanted to die on his own terms. Although I can’t fault him, I am dismayed and a little angry that he made that decision. Anyone who has been in this macabre business very long knows the emotional roller coaster that the clients and defense teams go through when trying to save a life. The roller coaster in Billy’s case had many high moments and many low moments.

Two years ago we conducted a clemency hearing with compelling reasons why Billy should not be executed. He was just 18 when the murder happened, and at that young age he was already a chronic alcoholic. In fact, he was highly intoxicated on drugs and alcohol at time of the crime. Billy came from a very dysfunctional family and with 90 proof roots. He did not enter the victim’s house with any intent to do her harm, just steal from her to get money for more alcohol and drugs, and was very remorseful from the beginning. At that time two years ago, the Governor did not make a final decision on clemency, but instead granted a reprieve because of the lethal injection litigation. The new execution date was set for August 7, 2013.

In the interim two years, Billy reconnected with his family. He had always been withdrawn and getting him to talk was difficult at times. He was always respectful, he just didn’t show emotion or want to be a bother to anyone. But in those two years, he was more communicative and talked about his dreams for what he would make of his life if given an opportunity to live the rest of his life in prison. He knew that he would never get out and would have accepted a life imprisonment without parole. He talked about learning his native language, so he could talk to his aunt. Our office got him a book and CD set so he could start learning. He wanted to work with animals and dreamed of being involved in the program that inmates are allowed to train service dogs. His family talked about he rescued injured animals when he was a child and how good he was with them. Billy talked about how he wanted to help his nieces and nephews and be the patriarch of the family.

In preparation for the clemency hearing in July, we approached the county prosecutor to see if they would at least not oppose our clemency request. The prosecutor had made many public statements that he was approaching capital cases differently, but we weren’t sure whether that meant newly indicted cases or older ones like Billy’s. To our great surprise, the prosecutor actually joined our request! His written response indicated that he agreed clemency was warranted in Billy’s case. The Parole Board still had a clemency hearing and the prosecutor said reiterated his support for a commutation of sentence and explained why the office was taking that position. The prosecutor also told the Board that the murder victim’s family supported the prosecutor’s position. It was incredible and we were so hopeful. So was Billy.

The parole board issued their report on July 16 and the vote was 6-4 against clemency, which meant we had 4 votes for clemency! Of those 4 board members who voted for clemency, 3 were on the board in 2011 and had voted to deny clemency. We were disappointed that 6 members voted against, but again were hopeful. So was Billy.

But then Governor Kasich denied clemency on July 24. No explanation given other than “nothing had changed in two years.” We were devastated and felt like we had been punched in the stomach. So was Billy.
Circumstances had changed in two years, but I guess it didn’t matter to Governor Kasich that the county prosecutor stated Billy was not the worse of the worst and did not deserve execution. I guess it didn’t matter that the victim’s family was in favor of clemency.

Since the prosecutor supported clemency, we reached out to him again to see if he would agree to a judicial proceeding that would result in Billy’s sentence being modified to life imprisonment. The assistant prosecutor said he would discuss it with Prosecutor McGinty and get back to us. We waited as long as we could, and on Tuesday, July 30, 2013, we filed a Request for Leave to File a Motion for New Trial asking the trial court to vacate the death sentence. We hoped the prosecutor would not oppose the motion and we could work out a deal where Billy would be resentenced to life imprisonment. We also filed a Motion for Stay of Execution with the Ohio Supreme Court and a Motion to Vacate the Sentence. The thought was to give every court and judicial officer the tools to do the right thing and stop the execution. The judge summarily denied the motion the Motion for a New Trial on Wednesday, July 31, 2013, without a response from the prosecutor. We learned of the denial when I checked the online court docket at 4:30pm that day, which showed the order was posted at 2:30 that afternoon. No call from the court and so far not even a copy of the order in the mail.

In the meantime, the Ohio Supreme Court ordered the prosecutor to respond to the stay motion and the motion to vacate by Friday, August 2, 2013, at noon. The prosecutor responded late in the afternoon on Thursday, August 1, 2013.The prosecutor said they were opposing our motion seven though they admitted that at the clemency hearing they were in favor of a sentence commutation.

On Thursday, August 1, 2013, we filed a notice of appeal of the summary denial of our request for leave to file a Motion for New Trial. The same day, the Court of Appeals sua sponte ordered the briefs to be filed by Monday, August 5, 2013, by 9:00 am and that oral argument would be at1:30 pm. We were pleased, although knew it would have been difficult for us to win. We still had hope.

Our investigator Jan and I went to the prison on Friday, August 2, 2013, to visit with Billy. I shared with him the responses from the prosecutor to our stay motion and the motion to vacate. I also gave him the brief that Joe was filing with the Court of Appeals that day. He was very sad and obviously disappointed, but there was no indication that he was thinking of taking his life. I had documents for him to sign so we could take further appeals and he signed them without hesitation. I tried to give him hope, but also to prepare him for the worse. I told him we had the oral argument on Monday and that we were still fighting for him. Billy has always been somewhat withdrawn so it wasn’t unusual for him to not be very talkative. He was grateful for our visit, but was ready to go back to his cell after about an hour. I told Billy God didn’t want him executed. After Governor Kasich denied clemency, Billy told his family he didn’t want them to visit in person anymore. However, he did call them every day.

While Jan and I were driving the long 4 hours back to Cleveland, Joe called me. At about 5:00that evening, Joe had received a call from Prosecutor McGinty and his two assistants. Apparently one of the assistant prosecutors from the 1988 trial told McGinty that there had been a plea deal offered to Billy’s trial attorney back then. If Billy plead guilty, they would agree that he would be sentenced to life imprisonment with parole after 30 years. The assistant prosecutor said Billy’s trial attorney rejected the offer. However, it appears that Billy had never been informed of the plea deal. Billy even told us that had he been given a deal back then, he would have taken it. He did not know that he could have plead guilty back then and been spared the death penalty. About an hour after Joe talked with McGinty, one of the assistants called asking if we were going to file another stay motion with the Ohio Supreme Court. Joe replied “Of course”, especially based on this new information. The prosecutor told Joe they would not oppose the motion, meaning the Ohio Supreme Court would most likely grant the motion and the execution would be stopped. We would have been able to work out a deal where Billy’s death sentence would be vacated and he would have been sentenced to life imprisonment.

This was great news! Joe and I worked on Saturday to prepare a strategy and the pleadings .However, we were not able to tell Billy because we didn’t have access to him after hours. We didn’t tell his family out of concern that if the information leaked, others would try to stop the support from prosecutor’s office. We sent an email to the case manager at the prison requesting a phone call first thing Monday morning.

But then Sunday morning, the world shattered. I was in church with my dad and my phone kept vibrating in the middle of the sermon. I could tell I was getting phone calls, but didn’t look at my phone. As soon as I could find a discreet time to take a glance at my phone, I saw a text message from Jan telling me that Billy’s sister called to tell us that he had hanged himself. He was gone.

No one from the prison called us, his attorneys. I learned that after they called Billy’s family, the prison media person called the press. By the time I got out of church, it was all over the news.

There are lessons to learn from this case for everyone. I hope those in position to make the final decisions about a man’s life or death take heed of these lessons. The roller coaster of emotions that I, as a lawyer, experience is heart wrenching—but that is only a fraction of how Billy felt. Even in a case where there is no question of guilt, there remain serious questions about whether the death sentence was the appropriate punishment and the cat and mouse games played by those in power. Hope is a powerful thing and loss of hope can be deadly.

"Prisons director removes 2 from Ohio Parole Board"

OH PW was alerted to this headline by someone who rightly asked: how is it possible that the prisons director has a say in who is on the Parole Board? And that this director can remove people from this Board? Sounds like a conflict of interest?

“The members who were removed had participated in the most recent clemency decision, (death row inmate John Eley) with one in favor of mercy and the other against it.”

From: Youngstown Vindicator:
June 22nd 2012

COLUMBUS (AP) — The state prisons chief has removed two of the nine members of the Ohio Parole Board.

The Dayton Daily News reports Director Gary Mohr removed Cathy Collins-Taylor and Jose Torres from the board this week without much explanation. A spokeswoman said only that Mohr is making changes to improve the prisons system and is looking to find “the right people for the right positions.”

The board considers the possible release of thousands of inmates. Ohio’s parole rate was 6.9 percent last year, down from about 26 percent in 2001 and more than 48 percent in 2004.

The board also reviews clemency requests from condemned inmates.
The members who were removed had participated in the most recent clemency decision, with one in favor of mercy and the other against it.

NEW VOICES: Former Prosecutor and Sentencing Judge Say Ohio Death Sentence Inappropriate

From: DeathPenalty Info:

The prosecutor who helped secure the death sentence of John Eley (pictured) and one of the presiding judges who sentenced him to death recently asked the Ohio Parole Board to recommend clemency instead. Former Mahoning County prosecutor Gary Van Brocklin told the state parole board that Eley should be spared from execution because the type of crime he committed is no longer usually prosecuted as a death penalty case and is not so egregious as to deserve capital punishment. Van Brocklin said, “It wasn’t in the more heinous nature of cases that now receive the death penalty.” Van Brocklin also said that Eley was acting under the instruction of a man named Melvin Green, who was the mastermind behind the shooting. Green was acquitted of the murder, in part because Eley refused to testify against him.

Judge Peter C. Economus, who is now a federal judge but who had voted for Eley’s death sentence in Ohio, wrote to the Parole Board, saying he originally agreed with the death sentence only because Eley’s attorneys presented little mitigating evidence:  “If I had been presented the additional mitigating evidence outlined in the clemency petition at the time of the trial, especially evidence of Mr. Eley’s low intellectual functioning, his impoverished chidhood, his significant alcohol and substance abuse, and his probable brain impairment, I would have voted for a sentence less than death.”  The judge asked that clemency be given and expressed surprise that the sentence had not been lowered earlier by the courts.

Attorneys for John Eley presented evidence of his mental disabilities, alcohol and drug abuse, and of his mental illness in their petition for clemency. Eley is scheduled for execution on July 26 unless Governor John Kasich decides to spare his life.

(“Prosecutor seeks mercy for condemned Ohio killer,” Associated Press, June 13, 2012; letter of Judge Economus to Ohio Parole Board and Gov. Kasich, June 7, 2012).  See Clemency and New Voices.  Listen to DPIC’s audio podcast on ClemencyUPDATE: Follow-up letter of Van Brocklin to Ohio Parole Board, June 13, 2012.

Kasich grants clemency to Death Row inmate


By Mark Curnutte, June 8, 2011
Shawn Hawkins was admitted to Ohio’s death row on Feb. 1, 1990.

On Wednesday, Gov. John Kasich commuted the death sentence of the Springfield Township man, who was scheduled to be executed Tuesday, to life in prison without parole.

Kasich signed the warrant of commutation and released the following statement:

“There is no doubt that the defendant played a significant, material role in this heinous crime, but precise details of that role are frustratingly unclear to the point that Ohio shouldn’t deliver the ultimate penalty in this case. Therefore, I am ordering that he spend the rest of his life in prison and have no chance of ever getting out.

“As someone who has experienced sudden and tragic loss, I know the pain that comes with losing loved ones. My prayers go out to the families of Diamond Marteen and Terrance Richard in the hope that they may find peace.”

Read the rest here.

Uncertainty demands clemency for death-row inmate

By Marilou Johanek, Blade Commentary writer
June 2nd 2011
Toledo Blade

Shawn Hawkins has friends in high places. Not only does the Ohio death row inmate have all the usual opponents of capital punishment working to spare his life, set to end in 13 days, but even conservative, pro-death penalty Republicans are on board.

Last weekend, an unusual appeal on Hawkins’ behalf appeared in some Toledo Diocese parish bulletins. It encouraged the faithful to contact Gov. John Kasich and press for leniency.

In February, the Catholic Bishops of Ohio, including Bishop Leonard Blair of Toledo, called on lawmakers to abolish executions. Now the Catholic Church appears determined to bring its influence to bear on a particular clemency cause.

So who is Shawn Hawkins, and why should we care whether he dies by lethal injection on June 14th? Court records show he was a small-time criminal and convicted drug dealer before a jury found him guilty of killing two Cincinnati men in 1989 in an apparent drug deal gone bad.

He admits he helped arrange the deal, but he has steadfastly denied that he committed the double-murder. If it weren’t for the powerful backing his case has received from prominent death-penalty proponents, I’d plead indifference.

I have little interest in or sympathy for the doomed on death row who proclaim their innocence or find religion as their date with the grim reaper nears. The brutal murder of my cousin years ago hardened me to prison compassion.

Yet when state Sen. Bill Seitz (R., Cincinnati) and former Ohio Secretary of State Ken Blackwell, both well-known conservatives who support the death penalty, said they believed Hawkins should receive mercy, I was intrigued. Former Ohio Attorney General Jim Petro, now Mr. Kasich’s chancellor of higher education, agreed with his Republican colleagues and joined them to write to the governor and Ohio Parole Board asking that Hawkins be spared.

Then, in a most uncommon development, the parole board voted unanimously to recommend clemency. That’s happened only a handful of times since Ohio resumed executions in 1999, putting 44 convicted killers to death since then.

Only six condemned inmates have had their execution sentences commuted to life in prison without parole. Three argued successfully that addiction or disease warranted mercy, and three, like Hawkins, contended their innocence did.

The parole board said it wasn’t convinced that Hawkins, who at 42 has spent half his life in prison, was innocent. But the clemency report said uncertainty about the appropriateness of the death sentence in his case sealed the recommendation.

Read the rest here.

The Governor of Ohio is not God’s agent on earth. He is our agent.

From: Gamso – For the Defense Blog

Friday, March 4, 2011

Tears Come Early

They won’t be killing him for another few days, not until Thursday next week.
I’m not sure why this one is hitting me so hard.  They’re all tough, of course.  Especially the ones I worked on.  But this is worst than most.
Maybe it’s because it’s so clearly wrong.
So a bit more background, maybe.
Johnnie Baston was sentenced to die by a three-judge panel that exhibited bias and prejudice against him at sentencing.  That’s basic error.  So basic that it should get an automatic new sentencing.  But the court of appeals, while acknowledging (though not in so many words) that the panel was biased, said that it’s mandated independent reweighing of the sentencing issues would cure the problem.
That’s wrong.  Fundamentally, legally wrong.
Then we went to the Supreme Court.  They said (again not in so many words) that they were legally obligated to agree that the three-judge panel was biased and prejudiced.  But because the panel wasn’t, it didn’t matter.
Are you deeply enough in fantasy yet?
Baston said from the time he was arrested that he didn’t shoot Chong Mah.  Some guy named “Ray” did the killing, Baston says.  It’s possible that one of the witnesses, a passer-by outside the wig shop, might have seen this Ray.  But the panel misrepresented his testimony so that it seemed the witness saw Baston, which the witness was clear he did not.  There’s other evidence that might be exculpatory.  Or maybe not.  But it doesn’t matter much now.
The victim’s family doesn’t want Baston killed.  I made a couple of efforts (here and here) last month to explain why their feelings should, at this stage, control.  I don’t know that I did a very good job of it, so let me try it much more simply now.
Clemency (which is what we’re talking about) isn’t about the law.  The law controls the procedures to be followed – the Parole Board must make a recommendation to the governor, after which the governor can do whatever he wants – but the law says nothing about how the decision to grant or deny clemency should be made.  That’s because clemency is a vestige of the divine right of kings.  The king, you see, was God’s agent in these matters, granting mercy whenever he wished.  Not because the recipient deserved it but because mercy is a gift to be bestowed at will.
The Governor of Ohio is not God’s agent on earth.  He is our agent.  So executive clemency isn’t about what God would do but what we would.   Here and now, as in medieval England, clemency isn’t (or at least shouldn’t be) about the recipient of the gift.  It’s about the giver.  About us.
We have been asked to spare him as a gesture to the family of the victim.  Surely we can do that.  Because we can be merciful even to those who themselves denied mercy.
Because we are better than that.
Or maybe not.
This afternoon, without comment, Governor Kasich said we’re not.  He denied clemency to Johnnie Baston.
Next Thursday, agents of the State of Ohio will kill him.
Not because he deserves to die.
But because we aren’t decent enough to let him live.
Baston, according to the prosecutor, the three-judge panel, the appellate courts, and the Parole Board, chose to murder Chong Mah.  He didn’t have to.  He chose to.
The panel, the appellate courts, the Parole Board, and now the Governor all chose to murder Johnnie Baston.  They didn’t have to.  They chose to.  On our behalf.
Only Baston (if it was he who killed Chong Mah) and the Governor made the decisions alone.  
Only they have nobody to whom the buck can be passed.
Baston still says he didn’t kill anyone.
We know for sure that Kasich is a killer.  

Barry Massey, Sentenced to Life for Crime He Committed at 13, Loses Shot at Clemency Recommendation Because He Fell in Love

Are they crazy? A sound relationship is a very good thing for everyone! Wake up!

From Seattle Weekly

By Nina Shapiro, Thu., Dec. 16 2010

Barry Massey, one of the youngest people ever to be sentenced to life in prison, came back to the state Clemency and Pardons Board today looking for another shot at mercy. Governor Chris Gregorie turned down the board’s recommendation for clemency four years ago, and since then he has only drawn more supporters locally and nationally. This time, however, a deeply-torn board rejected Massey’s application.

After a hearing that stretched on for hours beyond its alloted time, with some 75 Massey supporters packing the room, the board this evening voted three to two to recommend against clemency. Massey was 13 when he participated in the 1987 robbery and murder of a Steilacoom store owner.

The board changed its mind in part because Massey fell in love. Around the time of his last clemency hearing, Massey embarked upon a relationship with a prison guard. This was no liason in a broom closet. The woman, who left the prison system after the forbidden love was discovered, later became his wife (see picture of Barry and Rhonda Massey above).

But board member Raul Almeida, among others, said he was disturbed by Massey’s “error in judgement”– a decision Almeida stressed Massey made as an adult.
He so noted because much of the support for Massey has focused on the fact that the man who has now served 24 years in prison was so young when he committed his crime.

“I can’t make sense of the notion that a board that was inclined to grant clemency four years ago is now inclined to deny it because he engaged in the most basic and positive endavor,” board member Amanda Lee countered.

Read the rest here.