Just days before Trump 2.0 launched, Joe Biden’s final executive actions included commuting the sentences of thirty-seven federal death row inmates.
On Dec. 21, 1994, Anthony George Battle — a former Marine who had already been convicted of killing his wife at Camp Lejeune, North Carolina — was serving time at the U.S. Penitentiary-Atlanta when he struck and killed D’Antonio Washington, a prison guard, with a hammer.
Meier Jason Brown was found guilty of killing a postal worker during a Nov. 30, 2002 robbery attempt in Liberty County, located between Savannah and Brunswick on the Georgia coast.
“President Biden has answered the prayers of hundreds of Black faith leaders who urged him to make this courageous decision,” said Joia Erin Thornton, executive director of the Atlanta-based Faith Leaders of Color Coalition. “By commuting federal death sentences, the President has taken an important step to address the racial bias and arbitrariness that plague the federal death penalty system.
“This decision also ensures that the door to redemption remains open for the men who will now serve life sentences instead of facing execution.”
Executive Commutations and Pardons
Commutations end prison or other penal sentences early, or in the above case, change a death sentence to life in prison. Pardons erase criminal records, removing the direct and collateral consequences of criminal convictions.
An executive can combine these two clemency orders or, more frequently, issue them separately. A court sentenced troubled publishing heiress Patty Hearst to seven years in prison for her part in an armed robbery in 1974. Two years later, President Jimmy Carter commuted her sentence, freeing her from prison. Twenty-five years later, in the waning moments of his administration, President Bill Clinton pardoned her.
During his four years in office, Joe Biden issued 4,165 clemency orders, shattering the previous record of 1,715 held by Barak Obama, who served twice as long. Biden issued almost all those commutation and pardon orders during his last three months in office, underscoring the need for proper timing.
Preparation is just as important for a Marietta criminal defense lawyer. In most cases, the request shouldn’t second-guess a jury’s decision. Successful clemency applications usually highlight mitigating circumstances that have come to light since the jury’s verdict and the application’s consistency with the executive’s political agenda, which in this case was getting people off death row.
Perhaps more significantly, Biden received a little over 13,000 petitions during his four years in office. So, he granted about a third of them. A baseball player who hits safely in a third of his official plate appearances will probably be the batting champion. So, a pardon request is not a shot in the dark or even a desperation buzzer-beater. If properly prepared and presented, there’s an excellent chance the executive will at least consider the application, and a very good chance the executive will grant the petition.
Informal and Formal Record Sealing
Governors and presidents have almost unrestricted power to issue clemency orders at any time, subject to constitutional provisions. Similarly, trial judges may issue deferred adjudication orders at almost any time, subject to the Georgia First Offender Act.
A defendant with a criminal record may be a “first offender” for GFOA purposes. Joe is a first offender if he has a misdemeanor record, but he faces felony charges. This circumstance is one of the only exceptions to the wobbler rule. Normally, a Marietta criminal defense lawyer practically bends over backwards to reduce felony charges to misdemeanor charges. But if Mike was charged with aggravated assault (a felony), the GFOA wouldn’t apply if prosecutors reduced the charges to ordinary assault (a misdemeanor).
The GFOA only excludes a few offenses, such as most sex crimes, most violent felonies (e.g. armed robbery and murder), and DUI. In all other matters, the defendant pleads guilty, but the judge doesn’t utter the magic words “I find you guilty.” Instead, the judge defers that part of the proceeding until after probation ends. If the defendant mostly complies with all conditions, the judge dismisses the case. These conditions usually include:
- Remaining in the county,
- Reporting to a supervision officer,
- Paying fines, court costs, and other monies,
- Attending anger management and other self-help classes,
- Performing community service, and
- Avoiding further trouble with the law.
Now, here’s the downside of deferred disposition. If the defendant violates probation, the judge could sentence the defendant to any jail or prison term under the law.
Formal record sealing isn’t nearly as risky. If the defendant meets minimum qualifications and the request is in the best interests of society and the defendant, the judge will seal the judicial records. The downside is that most offenses aren’t eligible for sealing, which in Georgia is called record restriction.
Criminal Appeals and Probation Violations
We mentioned that a clemency application, while not a sure thing, is not a long shot. A criminal appeal, on the other hand, is usually a long shot.
Typically, a Marietta criminal defense lawyer must prove that a serious error occurred at trial, and that error affected the trial’s outcome.
Assume that, during Mike’s case, the prosecutor unlawfully withheld the statement of an alibi witness. But the witness’ brain injury-related memory issues affected his credibility. An appeals court would most likely rule that, although the prosecutor seriously messed up, that serious error didn’t change the trial’s outcome.
Alternatively, a Marietta criminal defense lawyer could advance an argument like ineffective assistance of counsel. Most appeals courts use the mirror test in these cases. If someone held a mirror under the lawyer’s nose and the mirror fogged up, the defendant had effective assistance of counsel.
Criminal appeals are uncertain, but probation violations are almost as certain as death and taxes. The aforementioned conditions are only a small sample. Most probationers must fully comply with hundreds of conditions. When, not if, the defendant violates a condition, one of several things happens.
- The probation officer determines that the violation was a technicality and not worth pursuing in court,
- A Marietta criminal defense lawyer settles the matter out of court, or
- The judge revokes probation and sends the probationer to jail or prison.
Judges may modify the terms of probation, making them more or less restrictive, at almost any time. Judges may also terminate or extend probation in some situations.
Post-conviction matters are often just as complex as pre-conviction matters. For a free consultation with an experienced Marietta criminal defense lawyer, contact The Phillips Law Firm, LLC. Virtual, home, and jail visits are available.
