Interview with Former US Pardon Attorney (Part II)

Today I present the second interview in a two-part series with Samuel Morrison, Esq. Sam is an attorney based in Washington, DC. For 12 years he worked as an attorney in the United States Pardon Attorney’s Office. People who have been convicted of a crime may want to learn about executive clemency. There are several different types of executive clemency. Most people in prison concern themselves with sentence commutations. People who have been released concern themselves with pardons. Readers who want to read or listen to Part I of the interview may click this link. Click the box above to listen to the podcast.

Discussing Pardons and Sentence Commutations

Michael:

Welcome to the Earning Freedom Podcast. I am Michael Santos with michaelsantos.com and prisonprofessor.com and we are always striving to provide information that will help individuals who are being prosecutor or facing time in federal prison or coming out of federal prison. Today we have the privilege of speaking in our episode number 2 with Sam Morrison. In our previous episode, Sam spoke with us about his experience of working in the office of the department of justice, pardon attorney’s office. He gave us a lot of background historical information. Notes are available at michaelsantos.com from the website. And in this episode I’d like to be asking Sam about what steps individuals can take to position himself or herself for some form of executive clemency. Sam what is the name of your office right now? And what is the type of work that you are doing?

Samuel:

Well, in my private practice is just the law office of Sam Morrison and I do a variety of things but primarily I represent individuals who are seeking some form of executive clemency and so what I do for them is assist them in putting together the clemency package whether is a commutation or a pardon and I’ve written it in such a way or helped them write it in such a way that will give them the best chance of getting a favorable recommendation from the office of department attorney. That’s basically what I am trying to do.

Michael:

Well, you certainly will have that level of insight in what the part attorney would expect. Would it be okay for you to help us understand what that process is? How can an individual who wants to retain you and position himself for some form of executive clemency, what can he be doing to make your job most effective or receiving the most favorable response?

Samuel:

Sure, well there is a, I guess there is a couple of things that you can do depending on what kind of relief you are seeking. If you have been convicted of an offense and you are headed to federal prison or you are in federal prison, one very practical thing you can do is get a hold of all the relevant documents that you are going to need in order to prepare a proper petition. And people who gather these things and if you have to give them to a family member, that’s fine. Or if you can keep them where you are at, that’s also good. But that saves a lot of time and potentially expense and it just makes it easier for me to do what I need to do. So that most importantly would be the pre-sentence report. Now I realize that if you are incarcerated they are not going to let you keep that in your cell but a family member may have a copy of it, a former criminal attorney defense may have it. If you are out of prison you can try to obtain it from the part, from the probation office in the district where you were convicted. But the pre-sentence report is absolutely critical and preparing any kind of clemency application. The other important documents would be the judgment order, your prison progress report, any disciplinary record, potentially a sentencing transcript if it says things that are helpful, publish legal opinions related to your case. Those are the basic documents that you will need, the building blocks if you will, to put together the pardon application or even a commutation application. Then there are some other components that are important because commutations are actually quite different than pardons. I’ll try to keep them separate. The one place where they overlap however is the applicant is always required to give an account of the offense, what happened, how did you find yourself in the position where this offense occurred. And here probably the most difficult issue for a lot of people is, there’s a natural human tendency that want to shade or minimize what happened and maybe something that they were embarrassed about, maybe something that we did that we are not proud of. But this is not a place to do that. This is a place to be completely honest, to just tell the unvarnished truth. And if you think that reflects badly on you it actually doesn’t. The more forthcoming you can be and the more honest you can be, the better off you, the better chance you are going to have of getting a favorable outcome. It is, you have to understand the form that you are in. This is not typically a place you go to get vindication. This is not typically the place you go to argue that you are innocent. This is typically the place that you go to ask for forgiveness and to ask for mercy. Then the second issue in a commutation petition would be your reasons for seeking commutation. And those could range very widely. It could depend on your rehabilitation while you were incarcerated, it can be based on your age. It can be based on your medical condition and under the department’s new clemency initiative it can be based on an argument if it’s true, that if you were sentenced today under today’s laws or DOGs policies is very likely that you will receive a different sentence. So all of those are recognized grounds for seeking executive clemency in the form of commutation. Go ahead.

Michael:

I was going to ask, if an individual is going in. I am going to give you 2 samples. Last week I worked with a medical doctor and preparing him for his sentence hearing. He lost a trial. So it was a very delicate situation because he believes that he is innocent. He didn’t break the law. And yet at the trial the sentencing preparing him for sentencing I had to show him how he can do exactly what you are saying, express your version of events but do so in such a way that you will try to humanize yourself and help the judge see how you got yourself into this position. How would somebody who believes he is innocent ask for mercy and forgiveness? Is that mutually exclusive? You’ve got to be asking for forgiveness, otherwise you’ve got to accept responsibility that you did it?

Samuel:

Well, you know, the hard truth is generally it is a matter of accepting responsibility and it is very difficult to lock that line to say I didn’t really do it but I am asking for forgiveness anyway. Because that doesn’t really make sense. If you are innocent there’s nothing to be asking for forgiveness for. So I would simply, I certainly don’t think that you should exclude in theory the possibility that somebody was wrongfully convicted in some way. I think we have to recognize though that that’s fairly rare. What I think is very common however is people being overcharged or over punished. And that’s quite not the same thing as being claiming that you are innocent. Even that has to be handled delicately though because you don’t want to say anything that is going to antagonize the US attorney’s office. So even when it comes to things like, in drug offenses, for example, the amount of the drugs involved or the number of times you participated in drug transactions, or in a fraud cause, the amount of the loss involved or whatever. You are typically far better off describing the offense in terms that are consistent, at least consistent with what the government is saying and not disputing things that you don’t need to dispute. It’s just a matter of picking your battles. And if you really are trying to go hard and say I just didn’t deal that drug or they say that I was involved on a certain level that is simply not true, you can do that if you want but you are very unlikely to get a positive result if you do that.

Michael:

So let’s talk about the way an individual does get a positive result. And he recognizes, okay, now I want to put myself in the best possible position, not for today, but maybe 3 years from today, 5 years from today. And so Sam I want to hire you today because I am going into prison. I am going to act fast because my clients reach me, hire us before than going into prison. And I would love to tell them look if you have the resources, you need to go and call Sam Morrison right now and get some guidance on what deliberate steps you can start taking today so that in 3 years or in 5 years when you are going to need to ask for a commutation, you’ve got the strongest possible case. Or if you want to get a pardon, you’ve got the strongest possible case. You need to start planting that seed right now. Would be that be a service that you could offer? And if it is, what would you advise those types of people?

Samuel:

Sure, I think the advice that I would give is probably similar to what you would tell them in terms of how to successfully navigate the prison experience. They are quite similar I think. So you are obviously would want to maintain good relations with prison’s staff. You don’t want to have a contentious relationship with them if it all possible. You need to avoid getting disciplinary incidents on your record if you can. You need to participate on whatever programming is available to you. If you don’t have your GED you need to get your GED. If you have drug or alcohol problem, you need to deal with that. Maintaining family ties is very important. Another thing that I think is important for people that I didn’t mention before and this is also part of the any commutation request that’s going to be a serious one, is the release plan. What is it that you are going to do when you get out? The justice department is going to worry about particularly in a drug case, letting somebody out of prison and let them go back in the same environment they were in before. So where are you going to live? Do you have family members that are going to help you? How are you going to support yourself? Have you thought through those things? Have you learned a skill while you were in prison? I know several people who’ve been successful in getting commutations and one of the big reasons was they trained themselves in a trade. And so they could say credibly I am going to be a [0:11:25] maintenance person or I am going to be a plumber or electrician or whatever it is that they were doing. So getting those kind of life skills. Now, for pardons, a lot of it is what you do with your life once you get out. So there it’s going to be things like staying productively employed, how difficult that might be, again being married, having a stable home life is important, and doing charitable work, getting involved in a community is very important. A lot of people don’t think about that. But the more that you can do the better in terms of giving back to the community because it’s good to say I haven’t got in trouble with the law since I was released. But that’s fine but that’s what we expect from everyone. So what they really want to see is somebody who gives above and beyond, who gives back to the community in some way. And that can be in a wide variety of ways. It can be anything that interests you, anything that excites you, anything that is meaningful to you.

Michael:

Like cast in the Earning Freedom Podcast.

Samuel:

Exactly. That is a public service and that’s the sort of thing that they are looking for. I have clients for example who I have advised to go to the local half-way house and speak to the people who are there about their prison experience, about how they got in trouble, how they turned their lives around when they got out. And they go do that on a regular basis. That’s impressive to the pardon office because there’s not very many people who do things like that. I have clients who are employers and they go out of their way to employ ex-convicts who are deserving of a second chance. I think that’s a wonderful thing to do. In addition to traditional charity sort of things.

Michael:

Okay. So I think it’s also important to try and generate and support from the prosecutor, the judge, the stakeholders who are involved in the case, is that something that you typically see as part of a clemency application, to try and get support?

Samuel:

Absolutely, that’s something that I would do in every case. The way the advisory process works if I can step back for just a second, is you file your application. In a commutation case there is not a background investigation. They are just going to look at the case-specific documents, like the pre-sentence report and the sentencing transcript and things like that and they may go to the US attorney’s office, the prosecutor of the case and the sentence judge and ask them for their opinion. And you will never going to get a favorable recommendation without their opinion being solicited anyway. So in fact, you have nothing to lose by doing that yourself. So I would always go to the US attorney’s office and to the sentencing judge, present them with a copy of the petition and ask them if they would be willing to support it. The worst thing that is going to happen is they are going to say no, and sometimes they will support it. And of course, the better relationship you have with those people, the better off you are going to be. And that might sound strange because it’s a criminal prosecution and so on, but it’s actually not unheard of for people to end up with a decent relationship with the people on the other side, or with the judge. And in a pardon case is probably even more important. So I will always go back to the US attorney’s office and to the judge and to solicit their support. I would even go to former prosecutors if they are no longer with the US attorney’s office and ask them if they would be willing to.

Michael:

Now when you get all of that, do you have direct contact with the current pardon attorney’s office when you are presenting, do you have an opportunity to plead the case with the current people who are staffed at the DOGs department office?

Samuel:

Typically no. There’s no provision for hearing. It’s really all a paper process. And that puts a premium on that written package because that is primarily what the case is going to be decided on. So everything writes, is not so much the identity of the person who submits it for you, is what the application actually says.

Michael:

And could you give us some insights in some of the successful applications that you have represented? I know some of them but I’d love to hear a story about a case that you represented that you are able to navigate, if you have liberty to talk about it, even if you withhold the name.

Samuel:

Boy that’s tough because every case is so unique. I’ve certainly given you the general parameters of what gives.

Michael:

I understand and there’s an attorney-client privilege information that might be not able to give away. Maybe you can give us some other insight about what is an actual clemency petition look like, a commutation petition. What do we anticipate seeing on the actual form, how long can it be, could you give us that insight?

Samuel:

Sure, there is a standard form that you can get from the pardon office and you can also get it from your case manager. It’s relatively short. It just says your name, your prison number, sort of obvious information like that. The few most important parts are, as I say, one question is tell us what happened, and that’s what I like to call one of the essay questions, where you have a lot of flexibility and how you answer it. What they don’t tell is that for most people fall down because they either don’t answer it adequately or they say they are innocent or something like that and that’s often why the cases [0:17:49]

Michael:

It ends right there in most cases.

Samuel:

That’s it. That’s where most people get denied, right there. And then the other essay question is why do you want a pardon. So what I tell people on these 2 pieces and there are analysis questions in the pardon application form as well and there are also the 2 most important pieces of that application. The pardon application, the difference is much longer, it asks for a whole lot more information because it’s looking at your life, not just what happened, the crime for what you are seeking pardon, but what you have done with your life since you got out. And in a pardon case, to be successful you’ve got to through a full background investigation by the FBI which is now goes to what you go through the security clearance for example. So it’s actually much more elaborate process to get a full pardon even than a commutation. But in both cases when I have clients, whether it’s a commutation or a pardon, I will give them a lot of homework and the primary homework is I make them do the first draft of those 2 essays. So I make them write their account of what happened and their account of why they want a pardon. And the reason I do that is for a couple of reasons. One I want to make them think about it and 2 I want it to sound like them. I don’t want it to sound as something that I wrote and put the words in their mouth. I want it to be their voice. And then I will take what they write and I will develop it. I am not going to just cut and paste and submit what they say if it’s not going to work. But I find that’s a useful exercise for them and it gives me sort of the material I need to work with, to work it into a good petition. But the account of the offense, I tell people it’s like if you are going to sit down and write a chapter of your autobiography, that’s the level of detail that needs to be. It would include not just exactly what you did. It will include how you got yourself into that position, what is it in your background that lead you to that point in your life. Maybe it was a difficult family circumstance. Maybe it was substance abuse. Maybe it was just bad luck. But it was a story. Everyone has a story to tell and the more personal you can make that story and the more context you can give, the more compelling that story is going to be. And part of it also is what lessons did you learn from it.

Michael:

Tell me, when your clients retain you, does it seem like a daunting task for them or when you embark them on that as therapeutic exercise, cathartic or they are just overwhelmed with that question?

Samuel:

I think a lot of times the reason people come to me is that they are overwhelmed by it. It’s actually harder than it sounds for most people when they actually sit down and try to put pen to paper. And let’s face it, as I said before, they are revisiting maybe the lowest point in their life. They are certainly revisiting something that they would rather or not think about. And so I do sometimes feel like I am playing an amateur psychologist because I am forcing them to re-live it. I am forcing them to think through it and express how they feel about it. But that is the process you need to go through and the people that do best I think are the ones that can embrace that and really sort of get into it.

Michael:

You mentioned that the questions are essay type of short, is there a tendency to be brief on this or elaborate? What is the length of work that somebody can produce? Are they limited?

Samuel:

Well, the space on the form itself is fairly limited. It’s too limited. So I would always say to have people write it on a separate word document, on a separate piece of paper and just attach it. It’s just much easier to do it that way than to try to fit it within the confines of the form itself. So in the form you simply say see attached the answer and then you attach whatever answer you want. I would say that 2 to 3 pages, single-spaced is probably a good average for both of these essays. Some can be quite long, much longer than that. I wouldn’t go too much shorter than that. Again there’s always a story to tell and if it’s not developed enough than the pardon office has a tendency to say, this person is not really taking this too seriously. They must not want it that bad. So there is one other piece that I should mention that I do that I think a lot of people don’t and I think most lawyers wouldn’t even know to do it and that is this whole thing is leading up to a letter of advice from the justice department to the president. I know how those letters of advice look like because when I was a staff attorney I wrote thousands of them. So what I do in addition to preparing the petition itself, Is I will draft what I call a cover memo, you might call it a brief, but it’s written in the form and the style of a letter of advice. And I put that on top of the petition and submit it with the petition. And it is an effort in a narrative form written by an attorney in the third person to explain why this person is deserving a relief, whether it’s commutation or pardon. And it looks just like a letter of advice. And I do that for a couple of reasons. One is that I know that I want the staff attorney to read it and think, this looks like a good case. If everything in this petition checks out and we decide that is all true, then it’s probably a favorable. The other reason I do it is just the practical one is that I want to make it easy for the staff attorney to process the case. If they agree with us that it should be a favorable recommendation, I’ve already done most of the work for them. And it’s just human nature, busy attorneys with a huge stack of stuff on their desk. If we make it easy, they are more likely to do it.

Michael:

Awesome, and how soon should somebody retain you in advance of this process? Should they get you years before they are ready to file or just when they think that they are ready?

Samuel:

I think it’s helpful if they can consult with me at least as early as possible. I recently got a call from somebody who I thought was very clever, very smart. He is a white-collar offender who hasn’t even pled guilty yet. But there is a deal essentially negotiated. He knows that he is going to plead guilty. He knows that it is going to be a pre-sentence investigation. He knows that pre-sentence report is going to be historical record. And so he called me and said, what should I be thinking about in terms of commutation and eventually pardon what do I want that pre-sentence report to look like? And that was the first time somebody had ever come to me that early in the game. But that was a very smart thing for him to do. So we are now working to try to get that, position him the best way that we can, avoid the things that he should avoid, say the things that he should say. He knows that he is going to plead guilty. So there is no issue there. Other people sometimes will call me and I will tell them, I think it’s pretty mature for you to file. If I think you haven’t built up enough of a record that’s going to give you a good chance, I am not going to take your case. Basically, you are not cooked yet. So I will send you back with some guidelines on what I think you need to do and then so, it’s not unheard for somebody to call me back a year later or 2 years later and say let’s look at it again.

Michael:

The best time to plant an oak tree is 20 years ago, the second best time is today. So we are going to start planting seeds today for the best possible outcome. Do you have any final words of wisdom that you want to share with your Earning Freedom audience, Sam?

Samuel:

Well, I guess that I would just simply say this it’s always going to be a big lift. [0:26:29] is not going to be easy and I don’t want to try to convince people that I can do magic, that if you hire me you will get a pardon, that’s not true. What I can say is that you get good advice and you do it right, and you are patient, there is hope. And that’s the way that you should be thinking about it. There’s a long-term project but let’s do it right rather than do it fast and then you have a chance.

Michael:

Have a chance. So I am going to have short notes at michaelsantos.com and I will have links directly to the pardonattorney.com or is it just pardonattorney.com?

Samuel:

Yes.

Michael:

To pardonattorney.com with Sam’s bio, you will be able to see that is the exceptional person to advise you in the event that you want to start positioning yourself for clemency and you heard about the wisdom of the white collar offender who retained it before he even pleaded guilty. So if that’s you and you want to position yourself to emerge from the criminal justice system successfully, then you should start thinking about pardon because it is a very heavy lift. The sooner you prepare, the more ammunition you can give to Sam. Thank you so much Sam for sharing your wisdom with our audience today.

Samuel:

Thanks for having me. I appreciate it.

Michael:

And I will appreciate you in the audience. Go to iTunes, subscribe to the Earning Freedom podcast and review the show if you like the content that we are producing because that is the way we can distribute it to more people. That’s all iTunes cares about is how many ratings and reviews we have. So give us whatever you think it’s worth. Thank you so much. I am Michael Santos. Show notes at michaelsantos.com