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For the past three years, a 75-year-old former banker from Miami named Peter Stanham has been marooned in an overcrowded, often violent federal immigration jail in Big Spring, Texas. He sleeps on a bottom bunk in a room with 16 other detainees.
In 2006, Stanham was convicted in connection with a bank-fraud case in Florida and was sentenced to nine years in prison. Because he wasn't a U.S. citizen, though he had lived here for 30 years, authorities sent him to the immigration system, rather than the minimum-security prison typically associated with white-collar criminals.
For five years, his family has been asking presidents Bush and Obama and the Justice Department for his release, so he can be deported to his native Uruguay to live out the rest of his days.
Even the judge who sentenced Stanham is on his side, and the prosecutor doesn't oppose it. Despite favorable letters from them and more than 400 people, including four former presidents of Uruguay, the Obama administration has neither ruled for nor against his petition—even as Stanham gets older and more frail.
"We don't say he's been wrongfully accused, but he's really being punished more than anyone wanted him to be punished," says Stanham's 43-year-old son, Nicholas, a Miami-based real estate lawyer. "He's still going to be deported, and that's still a punishment. He probably won't be able to come back here, a country he loves. Where he has six children and 14 grandchildren. That's the idea: Commute it, so he can be deported."
Drayton Curry is in even more danger of running out of time. At 92, he is the nation's oldest federal prisoner. In 1991, he was convicted in North Carolina of involvement in a drug-trafficking conspiracy. It was a nonviolent crime, but he was sentenced to life in prison under the nation's "three-strikes" laws, even though he had never been accused of committing any violent acts. (He had been convicted twice previously in connection with drug conspiracies, although the second of those convictions, in New York, was essentially for agreeing to pay someone's phone bill.)
Despite his age, his poor health, his good works in prison, and the fact that he has already served nearly 20 years, Curry cannot even get Barack Obama's pardon office, run by Bush holdover Ronald Rodgers, to rule on his petition.
The Stanham and Curry cases are only two of thousands of clemency applications pending before the U.S. Department of Justice, and they illustrate a troubling aspect of Obama's presidency: his resistance to using his power to grant pardons and reduce prison sentences. One could argue that, in this instance, Barack Obama has been less merciful than George W. Bush, who as Texas governor presided over more executions than any other governor in U.S. history.
Many people who are languishing in prison and pleading for pardons or commutations of sentences might not be the ideal sympathetic "victims" of the justice system who can garner public support. But the justice system does allow for pardons and commutations, and presidents have historically granted requests for clemency from thousands of people—not just people like financier Marc Rich, who had fled to Switzerland to escape prosecution. After high-powered lobbying and campaign contributions, Rich was pardoned by Bill Clinton at the end of his presidency; that and several other pardons and clemencies became highly controversial.
The Obama administration has been more than skittish. Obama took nearly two years to issue his first pardon and has granted a total of only 17—nearly all for old, relatively minor convictions—and either rejected or ignored every single clemency petition that has been filed. Last May, with one stroke, he denied some 2,000 clemency petitions without explanation. Is it really possible there wasn't one valid clemency petition out of 2,000? Could it be because the backlog was so big, it was becoming an embarrassment?
Some former Justice Department officials charge that a serious review of these petitions doesn't even really take place anymore—a criticism supported by a recent Justice Department Inspector General's probe.
Ten of Obama's 17 pardons involved crimes that took place prior to 1990, including a 1960 conviction of a moonshiner, a 1963 conviction for "mutilation of coins," a 1972 case involving a guy who stole plywood and nails from a construction site on a military base, and a 1985 conviction for the possession of alligator hides. Another, from 1991, involved stealing cable-TV signals. And yet another: conspiracy for trading away a firearm without paying the transfer tax.
Although there must be much more compelling cases, most of Obama's pardons (the power is written into the U.S. Constitution) don't seem to be great examples of a leader finally dispensing justice to the wronged or rehabilitated.
In fact, Obama is about to set a modern record for going the longest of any president without commuting a sentence, says P.S. Ruckman, Jr., editor of the Pardon Power blog and a political science professor at Rock Valley College in Rockford, Illinois.
Meanwhile, several governors are actively using the power—and for high-profile cases. For example, Ohio governor John Kasich, a conservative Republican who formerly hosted a Fox News show, recently commuted the death sentence of a man who murdered a 72-year-old woman, citing the man's "brutally abusive upbringing." Prior to that, Kasich commuted the sentence of another death-row inmate.
Barack Obama's election in 2008 caused a jump in the number of requests for pardons and commuted sentences, perhaps fueled by assumptions that a Democrat would be more predisposed to rule favorably on these petitions. Right around his election, the number of clemency requests jumped to more than 2,600.
The conventional wisdom is that presidents don't want to grant clemency for fear of appearing soft on crime. Indeed, Obama has had a rough presidency in other ways, too, what with two wars and an enduring economic meltdown. With a bruising re-election campaign fast approaching and his approval rating falling, perhaps his advisers are telling him that using his pardon power will only damage his chances.
Meanwhile, Obama's attorney general, Eric Holder, was burned in the Clinton-era pardon scandals and thus might be a little clemency-averse himself.
"With Obama, I think it comes down to Eric Holder," Ruckman says. "I don't think he has a serious interest in clemency policy, so I don't think clemency policy is a serious concern in this administration."
In the Clinton era, Holder infamously overruled his pardon attorney and backed pardons for Rich, a fugitive financier who made illegal oil deals with Iran during the hostage crisis, and a group of Puerto Rican terrorists, the Fuerzas Armadas de Liberación Nacional, who conducted dozens of bomb attacks in the U.S. in the 1970s and early 1980s. Both issues dogged Holder during his confirmation hearings. ("Why would he recommend clemency for unrepentant terrorists?" one senator asked.)
But some observers think that presidential politics actually has little to do with why Obama has issued so few pardons and no sentence reductions. Staffing isn't so much of an issue, either—the number of people working in the Justice Department office, which reviews pardon and clemency requests, has changed little in more than five years.
Instead, they say, it's more a function of the arcane internal activities of the Justice Department: more policy than politics.
"Obama has effectively ceded control over the pardon program to career bureaucrats in the Justice Department, who merely parrot the views of line prosecutors," a former Justice Department official says.
In essence, these critics say, justice has dismantled the administrative functions of the pardon office, which is supposed to investigate the petitions filed by prisoners. As a result, all those carefully prepared requests for clemency aren't getting the kind of review they deserve.
Instead, a lot of petitions get a cursory review and are shipped off to the White House in minimalist lumps known as "summary group reports," which don't provide enough information to allow the president to make an informed choice.
The major change since 2008, when the current pardon attorney, Ronald Rodgers, took over, this former official says, is that the few early releases, or "commutations," done in the past have disappeared entirely.
"Virtually all commutations are simply round-filed as soon as they hit the door," the former justice official says. "They are no longer assigned to staff lawyers, and in all but a tiny handful of cases, no report or recommendation is forwarded to the White House."
Rather, the White House just gets a list of names and a memo saying that each case is without merit. In other words, the president has no idea what's behind each case.
"With that kind of 'advice,' the president has little choice but to deny the cases or risk granting commutations to people he knows nothing about," says the former justice official. "Justice knows this and cynically exploits the flow of information to achieve the desired result."
Indeed, adds former U.S. pardon attorney Margaret Colgate Love, "the president is getting a name on a piece of paper and very little more. What kind of decision can he make from that? And yet, that's what the pardon attorney is delivering."
Love, who ran the Justice Department's executive clemency program from 1990 to 1997, represents Stanham and Benjamin Share, among others seeking clemency. From her perspective, the policy change in justice began almost 20 years ago with the victory of the view that prosecutors who had handled the original cases shouldn't now be second-guessed.
Peter Stanham's plea for mercy has the support of both the prosecutor and judge in his case. But that example aside, Love argues that the most important negative influence on presidential pardoning was the "hostility of federal prosecutors and a change in the administration of the pardon program at the Justice Department that allowed prosecutors to control clemency recommendations."
"The story is that the Justice Department has essentially shut down the clemency process," Love says. "They are not fully investigating the applications. The pardon program lost independence and integrity, and Clinton suffered mightily for it at the end of his term."
Love is referring to the last-minute clemency grants made by Clinton on his final day in office. "Justice gave him no advice, and so he opened the door and let people in," she says. "As a result, there were so many bad grants. A similar thing happened at the end of the Bush administration, but he refused to repeat Clinton's mistake."
In "The Twilight of the Pardon Power," published in The Journal of Criminal Law and Criminology in 2010, Love argued that "the paucity of grants at the end of President Bush's term, like the torrent of grants at the end of President Clinton's, can be attributed to a chronically dysfunctional pardon-advisory system in the Justice Department, a system dominated by prosecutors that produces few favorable recommendations, and that serves its own institutional interest rather than that of the presidency. Clinton dealt with that problem by staffing pardons in the White House."
The former justice official cited earlier, who would speak only on condition of anonymity, says Obama should appoint his own pardon attorney (Rodgers is a Bush appointee) and place him under control of the White House Counsel, rather than the Justice Department.
In any case, the current system is doubly difficult bureaucratically. The White House is actually re-reviewing the recommendations, which adds yet another layer of scrutiny to the process and further winnows the field.
Adding evidence to this official's comments is the recent report issued by the Justice Department's Inspector General. The report charitably points out that the Pardon Attorney's Office "utilized a reasonable approach" to investigating the merits of these requests and is "processing" petitions faster. But the meat of the document is actually a fairly tough criticism of that office's work during the current administration.
One of the pardons granted by Obama does seem to fit with the goals of the program: that of Allen Peratt, a former drug addict and methamphetamine trafficker who found God in prison and became a minister. Peratt set up a church in Sioux Falls, South Dakota, and spent the past 20 years ministering to convicts and other people living on the margins of society.
But by the numbers, at least, Obama's quality of mercy in this sphere is rock-bottom. Over the past 100 years, 22 percent of clemency petitions were granted. Between 2005 and 2010, that number dropped to 3 percent. In the period solely under Obama, who has been in office since January 2009, the number is zero.
Meanwhile, the backlog has only blossomed, doubling in six years. The IG report says that, as the number of petitions increased, the president "did not make any decisions on clemency, either up or down, for his first two years in office."
Meanwhile, half of that backlog was stuck in the White House for an average of almost 10 months. So Obama simply wasn't acting on the requests. Moreover, the FBI, U.S. Attorneys' Offices, and other federal law-enforcement agencies weren't responding quickly to the pardon attorney's requests for paperwork. In one case, an agency didn't respond for 16 months.
"We found that on average it took almost two years to process clemency petitions from the receipt to the president's final decision, which may have contributed to the growing backlog," the report says.
The report also indicates that Rodgers himself handles all of the commutation petitions. "Presently, the Pardon Attorney processes all commutation petitions with the assistance of two OPA support staff members, rather than assigning the commutations to OPA attorneys," the report says.
Love, one of Rodgers's predecessors, says: "It's hard to see how one lawyer could possibly have investigated and prepared a meaningful report on the over 3,000 petitions that have been denied by Obama and another 1,000 apparently awaiting action. This report is very revealing. It documents the destruction of the apparatus."
Whether by political consideration or internal politics, people like Peter Stanham and Benjamin Share are languishing in this clemency purgatory created by the Obama administration. And they're not even receiving either a thumbs-up or thumbs-down.
Share was convicted six years ago in connection with a scheme to bribe an official to obtain a government contract for a Navy base in Mechanicsburg, Pennsylvania. Share was 76 years old at the time and was owner and operator of Vector Systems Inc., a Pennsylvania defense contractor. Before that, he had been chief legal counsel for the Navy base. He was sentenced to serve 10 years, with a release date in 2015. Now 83 and in worsening health, Share is housed in the Minersville, Pennsylvania, minimum-security federal prison.
For the past year, his daughter, Linda Share, has been waiting for an answer to her clemency appeal from the White House and the Justice Department. She has heard only silence.
Once her own daughter graduated from high school, Linda Share sold her home and relocated to her father's house, so she could be closer to him and conduct what has become a full-time campaign to win his release. She wants her father to be allowed to go home and serve out the rest of his sentence under house arrest, under which he would get better medical care than he would in prison.
In a letter to Obama's pardon attorney, Linda Share writes that her father feels profound remorse for his conviction. "His age and health, coupled with the time he has left to serve, make it highly unlikely that he will live to serve out his sentence," she wrote. "So he comes before you now a different and broken old man . . . His sentence is truly a death sentence . . . I am seeking your compassion as one who hopes you can understand the depth of love a daughter has for her ailing yet imperfect father."
In addition to more than a dozen of letters of support filed with the pardon attorney's office on behalf of Benjamin Share, the judge who sentenced him to prison has also written that she backs the home-confinement request. Moreover, the case prosecutor provided a letter saying he "neither supports nor opposes" home confinement.
Despite that, there has been no sign of any action one way or the other. "I moved with the hopes that I could care for him if he was placed in home confinement," Linda Share says. "I'm not asking for his sentence to be changed, but I believe he's served enough time in prison at this point. So far, we haven't heard anything."
A banker convicted of fraud might not win over the public's heart. But Peter Stanham makes what could be considered a strong case for sympathy.
Stanham moved to the United States in 1972 from Uruguay and settled in the Miami area. He and his wife raised six children there and now have 14 grandchildren. He worked his entire career in the U.S. for Bankest, a Florida-based company. In addition to his career, Stanham assisted hundreds if not thousands of Uruguayan visitors to the U.S. over many years—work that earned him honors from the Uruguayan government.
In 1998, Bankest founded a joint venture with Espirito Santo Bank, and that's where the fraud began. At the time, Stanham was on the board of directors, reporting to two brothers, Eduardo and Hector Orlansky. In the fraud, Bankest presented false invoices to the joint venture, which led ESB to increase its investment in the company. That money was used to finance several bad investments, which grew the debt to $150 million.
Stanham wasn't directly involved in the fraud, but he knew about it and failed to report it, according to his commutation petition. By the time he was indicted, he had retired and moved to Uruguay, but he agreed to return to the U.S. to face the charges. Five of his co-defendants—including the two main people behind the scheme—pleaded guilty, served their time, and have since been released. But Stanham elected to go to trial. In 2006, after a lengthy trial on charges of conspiracy, bank fraud, and money laundering, he was convicted.
The judge sentenced him to nine years in prison and ordered him along with his co-defendants to repay $164 million. That was actually a significant departure from the sentencing guidelines, which called for a 16- to 20-year sentence. The judge made a point of saying that the evidence showed "overwhelmingly" that Stanham was not involved in the actual fraud and never made a nickel from it. The judge went on to describe Stanham as a "very good man," who led an "exemplary life." A man of fairly modest means, Stanham couldn't hope to pay off his debt, but he did repay some of it.
Ironically, Stanham got a worse sentence than just about everyone but Hector and Eduardo Orlansky, the key figures in the scheme. Moreover, because of his status as a noncitizen (he had a green card but never obtained U.S. citizenship), Stanham couldn't be housed in a minimum-security camp, nor could he take advantage of other programs that would reduce his sentence.
And then it got even worse. He was initially housed at an immigration facility in Miami, where he could see his family. In April 2008, he was abruptly transferred 1,000 miles to a facility in Big Spring, Texas, that is run by a private contractor. The Bureau of Prisons has thus far refused to return Stanham to Miami, which forces his family to take two airplane flights and an hour's ride across Texas to arrive by 5 a.m. just to see him.
"He has spent over three and a half years in conditions more punitive and restrictive than any of his co-defendants, even including the masterminds of the fraud whose sentences are more than twice as long as his," his clemency petition argues. (In all, he has been incarcerated 62 months.)
Stanham was also diagnosed with prostate cancer and currently takes eight medications for various ailments. He has written of his "deep remorse" for his role in the fraud and noted that he got a nine-year sentence for a crime he didn't create, manage, or profit from.
As for supporters, Stanham has many. Writing in 2007, then Uruguayan president Tabaré Vázquez noted that under his country's laws, Stanham's age alone would have been enough to allow home confinement. "This long prison term seems a severe punishment for an elderly man with no prior criminal record, particularly in light of his many years of public service," Vázquez wrote. Luis Herrera, the Uruguayan president from 1990 to 1995, described Stanham as a "good and decent man."
Such letters might not mean much. But even the man who sentenced him, U.S. District Judge Adalberto Jordan, wrote to Obama's pardon attorney in 2008 to say that he supported a reduction of Stanham's sentence to three years, given his "lack of personal profit motive, health, age, conditions of confinement," and agreement to be deported.
Even the bank, which was the victim of the fraud, took no position either for or against Stanham's deportation.
In part as a result of the Stanham case, Uruguay in 2009 signed an international treaty that would have allowed his transfer to his home country, and then the Uruguayan government immediately made that request.
But the Justice Department rejected the transfer because Stanham still technically owed that $164 million restitution—again, an amount he could never hope to pay, an amount from which he didn't profit. And there it stands. Every month, Stanham's wife makes the long journey to Texas to see him, and son Nicholas follows every other month.
Peter Stanham's habit in prison is to write a letter a week, which he mails to his family. The letter is then retransmitted via e-mail to hundreds of his supporters. In return, he gets about 50 letters a week. "That system has helped him stay sane and in touch," Nicholas Stanham says.
The paralyzed process under Obama in which requests remain ignored does have one perverse advantage.
"Of course it's frustrating," says Nicholas Stanham, "but in some ways, I would rather have no answer than a negative answer."