Mark Osler – Clemency Attorney

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University of St. Thomas School of Law professor Mark Osler (courtesy Mark Osler).

Mark Osler is a tireless advocate for sentencing and clemency reform.  He is currently a Law Professor and the Robert and Marion Short Distinguished Chair in Law at the University of St. Thomas School of Law, in Minneapolis, Minnesota, where he was recently selected as Professor of the Year by the graduating class of 2016.  At St. Thomas, he founded the nation’s first law school clinic devoted to federal commutation work.

Following Obama’s Clemency initiative in 2014, Osler, along with Rachel Barkow, Professor of Law at NYU School of Law, co-founded the Clemency Resource Center (CRC) within the Center on the Administration of Criminal Law (CACL), as “a factory of justice” to prepare and submit clemency petitions for federal prisoners.  Osler also trained hundreds of lawyers to work with the Clemency Project 2014 (now closed).

Osler helped get the mandatory 100-to-1 ratio in the federal sentencing guidelines between crack and powder cocaine struck down, first filing an amicus brief in Kimbrough v. United States (2007), and later by winning the case of Spears v. United States in the U.S. Supreme Court, which held that judges could categorically reject the crack/powder cocaine ratio.

He has testified as an expert before Congress and the United States Sentencing Commission.  He is sought-after as a guest on radio and television, appearing on NPR’s Morning Edition and ABC’s Good Morning America, and as a guest editorialist, appearing in The New York Times and The Washington Post.   He has been featured in Rolling Stone magazine and The American Prospect.

Osler’s sentencing and clemency reform work stems from his own experiences and Christian values.  He has authored two books describing those experiences and values: Jesus on Death Row: The Trial of Jesus and American Capital Punishment (Abingdon Press 2009), using the trial and execution of Jesus to critique the death penalty, and Prosecuting Jesus (Westminster John Knox Press 2016), describing his work performing Jesus’ trial throughout eleven states, in which he acted as prosecutor seeking the Jesus’ execution.

Osler has represented a number of Drug War prisoners and filed their commutation petitions pro bono, including for Weldon Angelos and Rudy Martinez, whose stories have been featured here.

Commuted Drug war prisoner Rudy Martinez meeting his clemency attorney, Mark Osler, for the first time (courtesy Rudy Martinez)

Osler grew up in Detroit, Michigan.  The 1967 Detroit riots are among his earliest memories and an initial source of his interest in the law. In the 1980s he saw Detroit, like so many other cities, ravaged by the crack cocaine epidemic and an increase in violent crime.  As a federal prosecutor in his native town, Osler initially thought he was doing something positive about these problems, but he eventually grew disillusioned, as he describes in the Introduction to his book, Prosecuting Jesus.

“… On trial or being sentenced, typically, was a young black man, often still a teenager … it was my job is prosecutor to put him, like thousands of others like him, in prison for selling crack …

… the evidence was simple: a cheap gun disabled by a plastic loop through its barrel and a handful of plastic bags holding small, white rocks. Those were my tools; they were what I had to define this young man as a ‘crack dealer.’ That’s what prosecutors do, after all; they defined a person, at trial and at sentencing, by the worst things that they have said and done. In the 90s, crack dealer was possibly the worst thing a person could be, with the possible exception of a ‘crack whore.’

… once the defense was done putting on what little evidence it had, it was time for me to make my closing argument … In this kind of case, I usually said about the same thing, regardless of which black man sat in judgment. ‘You know, 5 g of crack may not seem like much,’ I would say, holding the plastic bags in the palm of my hand, ‘but one hit of crack can weigh as little as one 1/10th of a gram. That means that what I have in my hand here could be 50 hits of crack – 50 rocks that will be smoked by someone’s daughter, someone’s son, someone’s mother.’ At this point I would turn and look at the defendant. ‘That’s what he was doing; selling crack. He’s a crack dealer.’

The jury would then look at the defendant like they were looking at a murderer. I knew that I would win, and I usually (though not always) did. I wasn’t a very good prosecutor, but it didn’t take a really good prosecutor to win that kind of case. When the jury would come back in the foreman would pronounce the defendant ‘guilty,’ I felt no leap of joy within. It was just a tragedy on top of the tragedy, and I knew that, at least in that spare moment.

Eventually, I had enough of tragedy…” Prosecuting Jesus , pp. 2-3.

Later, when Osler left his role as a prosecutor to become a law professor at Baylor Law School, he had an epiphany on the “connection between the crucifixion and capital punishment.”  In Prosecuting Jesus, Osler describes that experience:

“… I woke up and opened the Waco Tribune – Herald to find the report of an execution in Huntsville, not too far away. The prisoner was a murderer … Before describing the crime, though, the article first detailed the last meal the condemned man had requested before his execution. It was probably something typical: a cheeseburger, a Dr. Pepper, a cupcake. The whole thing, the terrible crime, the little meal on a tray, the tragedy of all the deaths, struck me as unbearably sad. There was no victory in any of it.

Then I went to church … It was communion Sunday … The communion plate was passed down to me, and I took the bit of bread and held it in my palm. It felt heavy in my hand. I looked down, and in that spare short moment I saw it: this thing in my hand represented the last meal of a man who knew he was about to be executed. It was the liturgical equivalent of that cheeseburger, Dr. Pepper, and cupcake.

That juxtaposition was yet another awkward thing to carry with me out of church, like a stone in my shoe while I walked. I knew that this odd combination or social belief and religious narrative meant something, but I did not like the clear meaning: that Christ had something in common with the murderer. That just didn’t seem right. One was impossibly bad; the other, impossibly good. How could there be an intersection between the two? There is a simple answer to that paradox and a more complex, challenging one. The simple answer is that what the perfect and the utterly flawed share is food and the table around which we gather, all of us. We all must eat. The complex answer is what this book is about and largely what the last decade of my life has been dedicated to. Like most hard questions, the best answer lies within a story rather than an argument. And that story took me to a truer self, one that sees the strength and truth and light in Jesus the disruptor…”  Prosecuting Jesus , p. 6.

Osler’s epiphany led him to performing Jesus’ trial throughout eleven states while acting as the prosecutor seeking the death penalty against him.  Osler describes the experience as “intense, complex, and often very dark.”  Osler continues,

“Some would comment on the proceeding or shake my hand, but all of them looked troubled. Really there is no other word for it than ‘troubled.’ Only rarely did someone say we changed his or her mind or assert that we didn’t. Instead, they all seemed lost in thought. There is good in that. In the realm of my passion, troubling the waters is the best I can hope for, a first step toward change and a sharing of my own soul’s hue.”  Prosecuting Jesus , p. 7.

While Osler has advocated for Drug War prisoners and actively pursued clemency and commutation of their unnecessarily harsh and unjust sentences, he has been critical of the failure of presidents to adequately use their pardon powers and of the clemency process generally.

As he described it in an Op-Ed in The New York Times,

“Clemency petitions undergo no fewer than seven levels of review, four of them within the Department of Justice. Within the Justice Department, clemency petitions run not only through the Office of the Pardon Attorney but also through the office of the deputy attorney general.

When the Department of Justice reviews clemency cases, the opinions of prosecutors in the district of conviction are solicited and given considerable weight. But prosecutors are the wrong people for the task of vetting clemency cases. I was a federal prosecutor for five years. In that job, deciding someone’s fate is a necessary but difficult emotional commitment. The prospect of being wrong — and a clemency initiative like Mr. Obama’s can feel like a judgment that prosecutors were wrong — can be a lot to bear. We should not be surprised if, when it comes to Mr. Obama’s clemency initiative, prosecutors systematically resist what is, in effect, an indictment of their work.” Mark Osler, Obama’s Clemency Problem, The New York Times, April 1, 2016.

He had written earlier, with Rachel Barkow, in an opinion piece in The Washington Post, while the problems are not mysterious, there is a solution:

“What is broken is no mystery. The key gatekeepers for this process are in the Justice Department — the same agency that prosecutes federal crimes. Unsurprisingly, the department has been reluctant to second-guess its own decisions and rarely recommends that the White House approve a clemency petition …

It’s easy to envision a better method. As in countless other areas of law, from communications and securities regulation to establishing sentencing guidelines, a dedicated agency comprising experts could address the problem efficiently and effectively. The president should appoint a bipartisan commission of Democrats and Republicans with expertise in criminal law to consider all applications and track data on recidivism and other outcomes. The agency can work with the president’s reentry council to coordinate prisoners’ transitions back to civil society. And because the commission would be politically balanced, the president would not need to worry about being exposed to Willie Horton-style attacks, should a convict commit some new crime after being freed; these will be cases that people of all political stripes agreed deserved relief. President Gerald Ford used this device in 1974 when he created a temporary board to quickly process about 21,000 Vietnam-era draft evasion and deserter cases. One reason we know the Ford plan was a political success is because so few people remember it.” Rachel E. Barkow and Mark Osler, The President’s Idle Executive Power: Pardoning, The Washington Post, November 26, 2014.

Drug War Stories conducted the following interview with Mr. Osler via email on March 30, 2017:

DWS: You’ve written that you carry a 1,700-year-old Roman coin with you, bearing the word “Clementia” the Roman goddess of mercy – do you still carry that coin and what meaning does it hold for you?

I do! It amazes me that the Romans had a goddess of clemency. They recognized two things that our own society too often forgets, and both are embodied by that coin. The first is that to have genuine authority, a governing power must embody both justice and mercy—a government that just embraces unremitting harshness will lose the support of the people being governed. We are seeing that loss of authority in our country now after a long and fruitless war on drugs.  The second thing is that mercy isn’t just a personal value, but should be a guiding principle of our societal institutions as well.

DWS: Articles about you have described your involvement in cases against a public defender named Andrew Densemo, who would invariably give what has been called his “futile” arguments against mandatory drug sentencing.   What effect did that have on your decision to stop working as a federal prosecutor and start advocating for sentencing reform and clemency?

The sentencing arguments in drug cases I prosecuted—particularly those “futile speeches” by two federal defenders, Andrew Densemo and Richard Helfrick—are what really convinced me that our project of enforcing harsh mandatory minimums was wrong. In retrospect, I really admire their perseverance in an era where it must have felt useless to assert the humanity of defendants in the face of mandatory minimums on top of harsh mandatory guidelines. I couldn’t get their voices out of my head. More than anything, they convinced me (by telling the stories of their clients) that what we were doing was creating tragedy without solving a problem. When I left prosecution after five years, it really was their arguments that pushed me towards what I do. I am grateful to them for that.

DWS: Your Christian beliefs and morality inform you regarding sentencing reform, especially regarding the Death Penalty.   How do those beliefs and morals influence your continuing clemency efforts for prisoners of the Drug War?

Whoever it was that society marginalized, Jesus loved. He sought out the beggars, the disabled, the people possessed by demons, and had little use for the people with power and money. And he didn’t focus on those who were “innocent,” either: He saved the adultress in John 8 from death, and sought out others like the woman at the well. In his parables, he teaches about redemption and acceptance for characters like the prodigal son, who had made some bad choices.  In our society, the “least of these,” those who are most disfavored by society, are found in our prisons.  I’m happy and fulfilled when I follow people like Sister Helen Prejean on that path, and it turns out that I meet some remarkable and admirable people behind bars.

DWS: How do you think Christians (or believers of any faith) and advocates of social justice should perceive and react to the Drug War and Mass Incarceration in the nation generally?

I find that most of my fellow-travelers on this path are Jewish, agnostic, or atheists. That makes me really disappointed. Jesus expressly taught that when we visit those in prison we visit Him, and didn’t qualify it to mean political prisoners or those who are innocent. If we take on the cause of people who are over-sentenced, who are robbed of human dignity, we do exactly what Christ urged—we go into the prisons. Christians believe that everyone is capable of redemption, but long sentences (and especially life sentences) deny that fundamental truth.

DWS: You’ve been very critical of Obama’s Clemency Initiative and his use of (or failure to use) his pardon powers while he was in office – now that his administration is over, what are your thoughts about President Obama’s clemency efforts and actions overall, and what would you like to see moving forward?

Actually, I very much admired President Obama’s heart for the project of clemency; I think he very much believed in it. By all accounts, he spent a lot of time reading commutation files.  Unfortunately, he never fixed the system funneling cases to his desk, and kept it embedded in the Department of Justice. The conflict of interest inherent in having prosecutors review clemency should be obvious to anyone. I did that job. I know what it means to stand a few feet away from someone and argue to a judge that they should lose their freedom, lose their family, lose whatever they have. Think about the emotional impact of that, the commitment! Of course prosecutors have a hard time going the other way. That should not surprise us.

DWS: For every person Obama commuted, there were dozens more who were denied clemency.  Do you see any pattern to those who granted clemency and those who were denied?

It’s tragic. Amy Povah recently posted a photo of the mail she receives, stacks of letters from people who did not get clemency, and I empathize—the same people write to me. There are thousands who were worthy of clemency who were passed by because of the lousy system of review President Obama kept in place. I wish I could see a pattern, but I really don’t. It was to some extent a lottery, and grant or denial was likely a function not only of the merits but the moment a petition came in, which staff member in the Office of the Pardon Attorney reviewed it, and what that staff member’s mood was the morning it crossed her desk. A few things we know: people with domestic violence allegations in their background apparently got denied, as did immigrants subject to deportation and those with even a hint of violence within a conspiracy they were alleged to be a part of.

DWS: What do you think will happen with clemency efforts and the War on Drugs under the Trump/Sessions Administration?

Sadly, I fear not much will happen, and that’s a terrible lost opportunity. 

Look, this is a businessman-president, someone who understands markets. That means that he should understand three facts:

First, the most drug interdiction will ever achieve is to temporarily raise the price of a given narcotic. That’s because narcotics are a market, and that’s how markets work—they adjust. You don’t shut down one vendor and the whole thing collapses. As long as there is demand, there will be supply, and that supply will flow until prices adjust. So is all this expenditure of tax dollars and freedom worth it if all we hope to gain is a slight rise for a little while in the price of drugs. 

Second, you don’t shut down a business by sweeping up low wage labor, but that is exactly what the war on drugs has tried to do. No wonder it has failed! Mandating a stiff sentence for selling 5 grams of meth just creates an incentive to agents to go after those relatively low-level dealers, the ones who are most quickly replaced in the market.

Third, anyone with management training would look at the chart of decision for clemency cases—a sequential path across the desks of seven different officials—and know it is a disaster. If you hire good people to evaluate petitions and trust them, just have them report to the President. Gumming up the works with multiple levels of bureaucracy adds no value, and creates both inefficiencies and injustices.

DWS: You’ve been active in a number of high profile clemency projects, including for Weldon Angelos and Rudy Martinez, who have been featured on our site.  Most Drug War prisoners were not so lucky, of course.  Can you tell us about some other Drug War prisoners you have been advocating for and the status of their cases? 

That’s a painful question. I feel like I failed each of the people who did not get clemency. A few weeks ago I went up to Sandstone FCI to visit one of my clients, Robert Shipp, who inexplicably was denied clemency twice by President Obama. I sat with him on the hard plastic chairs, and after a while it was clear that he was consoling me, not vice versa. Many others are in limbo—the balky Obama machine never got to their cases, and they are lodged now somewhere in the empty halls of the Trump administration.   

DWS: What frustrates or discourages you the most about the work you do?

I was never able to convince the press or the President of the urgency of the project under Obama. I tried. My frustration was reflected in this message to a well-known writer who had written a profile of Obama that appeared before the end of his term, when there was still time to do much more with clemency:

Your piece.. was a revelation—it brought out a side of the president that was hidden to many of us. These eight years have been fleeting, and complicated. 

The part about clemency was a gut-punch for me, though. You graciously called me and gave me a chance. While you did acknowledge in the article that there is a lot left undone with clemency (even raising the 10,000 target number), I didn’t dissuade you from uncritically repeating their talking point– “more than the last 11 presidents combined”– and there are two big failures imbedded in that.

The first is that the party line is deeply misleading. They get there by ignoring the 1974-75 Ford Clemency Board that granted clemency to over 13,000 draft dodgers and the like. They ignore it because Ford phrased the grants as “earned pardons” rather than commutations, and because Ford took the whole process out of the DOJ. But that is just the point—that to do this well, you take it out of the hands of the DOJ, that big gray building full of prosecutors like me, for whom admitting a mistake means acknowledging that your work has needlessly destroyed lives. Even worse, it is misleading because it includes the numerator (the number of grants) and ignores the denominator (the number of denials). Obama granted a lot of petitions, but also received far more petitions than prior presidents. He has granted about 6% of commutation petitions, and about 3% of pardon petitions [filed]. In comparison, President Kennedy granted 36% of the pardon and commutation petitions filed, Johnson 31%, Nixon 36%, Ford 27%, … Carter 21%, Reagan 12%, George H.W. Bush 5%, Clinton 6%, and George W. Bush 2%. So of the last 11 presidents, he is really just better than the Bushes.

The second thing is about that denominator, and the people still waiting.

There are a lot of people in the administration who are intent on defining his legacy. Our battle for the past year has been against their constant insistence that the legacy is already established on clemency—they started doing that after only 200 were granted. We kept pushing for more, and it worked because they feared their legacy would be defined by what was left undone. We wouldn’t let them declare victory before the game was over.

But, I didn’t convince you of that, and that’s on me. I think I was starstruck by having one of my favorite authors call me. Now the voice the President’s people might care about the most, yours, has said it is enough. And that could leave hundreds of people in prison, victims of an absence of urgency. They are staring at an abyss.

I grieve for that.

It isn’t your job to advocate; as a writer, I understand that. You had a bigger story to tell, and you did it very well. But it was my job to advocate to you, and in that I failed both you and I and those hundreds, the multitudes now swallowed up. ([T]o his credit, the writer responded to my note very empathetically).

DWS: What gives you the most encouragement or hope?

I’m not the best advocate for clemency. The people who have received clemency are the best advocates, and they are the ones who give me hope—people like Rudy and Weldon and Amy who are leading the conversation, and should. I am working now on a book with Jason Hernandez, who had a life sentence commuted in 2013. It will be an intertwined memoir of our experiences, ending with a jointly-written chapter on what should change. I love that project, and the work I do with my students and those who have come out of the prisons.

DWS: What do you think are the most important things for the American people to know about the War on Drugs?

We don’t have to convince liberals and even moderates that the War on Drugs is a mistake; they already agree. We need to convince conservatives. And there is a good argument to be made: That the War on Drugs doesn’t work. It’s a waste of money. The most we can hope for is that the street price might go up for a little bit, and even that hasn’t happened.

DWS: What are your thoughts on the use and application of conspiracy laws in drug-related cases?

I teach my law students about this, and when I lay out the reality of how weight of narcotics as a metric of culpability, conspiracy laws, and relevant conduct rules work together to create bizarre upside-down outcomes, the reaction is always the same: outrage. One of my students, Sara Sommervold, threw both of her hands straight up and said “no way!” My sad response: “Way.” Because these things give prosecutors great power, it is hard to dislodge them.

DWS: What are your thoughts on the use and application of mandatory minimum sentencing laws in drug-related cases?

They create perverse incentives, like going after 5-gram cases and acting like you have captured a “kingpin.” They don’t solve problems. And they certainly don’t create deterrence. To believe in them, you have to accept a myth (the 5-gram kingpin) on top of a myth (deterrence) on top of a myth (that it solves a problem), and ignore anything you know about markets and how they work. 

DWS: What would you like to see Congress do?

They should have lunch with Weldon or Amy or Rudy or Jason. They should meet the people who were imprisoned for years or decades, the real people rather than the imaginary drug lords they imagine they are locking up.  Then I would want them to commission a blue-ribbon panel composed not of drug warriors and DEA veterans, but businesspeople. Their mandate should be to answer one question: “Would mass incarceration ever really affect the availability of narcotics in the market?” And once that question is answered by people conservatives respect, the whole game would change.

DWS: What do you suggest that our readers can/ should do?

First, it is imperative that narcotics policy and clemency play a bigger role in our political discourse. Neither came up in the presidential debates, and that’s tragic. We need to insist that candidates for Congress and President take a stand on this, and that will only happen if we demand it. In the 2018 and 2020 election cycles we can’t let that happen again—we need to raise these issues at candidate forums, at town halls, at debates, and online.

Second, they should write Rachel Barkow a thank-you note. Her unheralded leadership as a member of the US Sentencing Commission in implementing the “Drugs -2” reform was remarkable. That reform affected far more people than clemency, and has played a significant role in reducing the prison population. We need more of that kind of bravery.

DWS: Thank you Mark.

Jason Hernandez and Mark Osler in Detroit. Hernandez’s sentence was commuted in 2013 (courtesy of Mark Osler).

Drug War Stories recognizes and would like to thank Mark Osler for his work as a warrior against the War on Drugs and for being a champion of justice and mercy.