Kilpatrick's bid for clemency a 'long shot'

Washington — Former Detroit Mayor Kwame Kilpatrick is hoping for clemency from President Donald Trump, but he might need friends in high places to plead his case directly with the White House.

The 48-year-old Democrat has filed a petition for commutation — a reduction of his sentence — but he doesn't appear to meet the Justice Department's standards for considering clemency.

Kilpatrick isn’t eligible for a pardon under the department’s guidelines because he’s still serving a prison sentence.

And he’s an unlikely candidate for commutation, in part, because Kilpatrick has served five years of his 28-year sentence. People granted commutations have typically served at least half of their sentences, said legal experts in the clemency process.

Grounds for commutation traditionally include disparity or "undue severity" of sentence, critical illness or old age, and meritorious service rendered to the government, according to the Justice Department’s website. 

Kilpatrick also has long maintained his innocence, and it’s rare that the Office of the Pardon Attorney grants clemency for convicts who haven’t accepted responsibility for their crimes, the experts say.

“Frankly, it’s supposed to be an act of mercy at some level, and part of mercy traditionally is that mercy is granted to those who admit their guilt,” said Mark Osler, a Detroit native and professor at the University of St. Thomas School of Law in Minneapolis.

There are notable exceptions, including former Arizona sheriff Joe Arpaio, who professed his innocence and last year received a pardon from the Republican president.

The good news for Kilpatrick is Trump is not bound by the Justice Department’s guidelines under the U.S. Constitution, which grants presidents broad executive power to exercise leniency for federal offenders.

Kilpatrick's kids launch campaign to free dad

“This president does seem to pay particular attention to public figures. Part of his outlook seems to be that public figures are sometimes treated unfairly — they’re picked on. That would seem to favor somebody like Kwame Kilpatrick, whether it should or not,” Osler said.

“I would tell him to go ahead and file it. It may be a long shot, but a long shot is better than no shot, particularly with this president.”

Trump's 'informal' process

Trump has made his own decisions on clemency matters, bypassing the Office of the Pardon Attorney.

Several individuals to whom he’s granted clemency didn't even apply for relief, including conservative commentator Dinesh D’Souza and Scooter Libby, former chief of staff to Vice President Dick Cheney.

Based on Trump’s track record, Kilpatrick needs a high-profile advocate to persuade Trump that he was treated “unfairly” by prosecutors, as those types of cases seem to appeal to the president, said Margaret Colgate Love, who served as U.S. pardon attorney from 1990-97.

“If he came to me and asked me for advice, that’s what I would tell him,” said Love, who now represents petitioners for presidential clemency.

“He’d have a hard row to hoe to try to convince the Justice Department. They had a lot tied up in his case.”

Kilpatrick was convicted in 2013 on 24 felony counts of using his positions as mayor and state representative to carry out a decade-long criminal racket involving extortion, bribery, conspiracy and fraud.

During a five-month trial, prosecutors said Kilpatrick headed a criminal enterprise out of the Detroit mayoral office and steered $84 million in city contracts to friend Bobby Ferguson, who shared the proceeds with Kilpatrick. 

Kilpatrick, who resigned in 2008, was sentenced to 28 years in prison. His release date is at least 19 years away in 2037, according to the federal Bureau of Prisons.

Kilpatrick has lost his post-conviction appeals to this point and continues to fight a $1.5 million restitution bill owed to Detroit taxpayers. In total, Kilpatrick owes $11.2 million to the city, Internal Revenue Service and others, including businessman Dan Gilbert.

Last year, Kilpatrick, representing himself, filed a habeas corpus petition in federal court asking a judge to set aside his sentence, decrying the "miscarriage of justice in this case." 

He's challenging in part the jury instructions and the basis for denying his request for new counsel during his trial. The petition is pending before the U.S. District Court in Detroit.

Quest for freedom

In a message posted last month on the Free Kwame Project website, Kilpatrick wrote that he was transformed in prison and "rediscovered my passion for service," mentoring and counseling other prisoners and helping them write appeals to win their freedom.

Kilpatrick said he made "some very bad decisions," betrayed his family, and failed the people of Detroit, but argues that "most Detroiters have forgiven me."

"I am hoping, confidently, expecting, that I will have the opportunity to boldly move into the next season of my life; outside these prison walls," Kilpatrick wrote. 

"By God's grace, I have received a pardon from him through Christ Jesus. I pray that I will receive the opportunity for Pardon/Clemency from the President of the United States as well."

Pardons and commutations are often confused. Commutation reduces a sentence being served, but the conviction is not expunged or erased. A pardon nullifies the conviction itself and restores the offender's civil rights.

In 2016, nearly 29,000 people signed a Change.org petition asking President Barack Obama to grant clemency to Kilpatrick, arguing that while Kilpatrick was “wrong,” 28 years in prison is "excessive."

“That’s something I’ve complained about a lot. I think it’s substantially excessive,” said Harold Gurewitz, Kilpatrick’s attorney.

At sentencing, Gurewitz told the judge a prison term of no more than 15 years would have been comparable with other public-corruption convictions.

At the time, Gurewitz found only one other sentence of the same length (28 years) involving a county commissioner in Cuyahoga County, Ohio, and that was an outlier, he said.

Gurewitz declined to comment on Kilpatrick’s petition for commutation, saying he was not involved in it and does not know the grounds that Kilpatrick relied on to make his case.  

“Certainly, a 28-year sentence is among the longest given for a public corruption case ever. That’s the basis for a claim of unfairness. Whether that resonates is a different question,” said Peter Henning, a law professor at Wayne State University and a former federal prosecutor.

“I think you can make an argument that he’s received a substantial punishment so far, but whether that results in a reduction in his sentence is very much an open question.”

Henning added: “I suspect the local U.S. Attorney’s Office would not look upon it favorably on a pardon or clemency, but that doesn’t preclude it from happening.”

Samuel R. Gross, a former criminal defense lawyer who teaches at the University of Michigan Law School, said 28 years is a "long time" but not out of step with the sort of sentences that people receive in federal court for similar crimes. 

Federal defendants granted clemency are "overwhelmingly" people who were convicted under circumstances that seriously mitigate their culpability — for instance, they were acting under duress, had good motives or didn’t understand law, Gross said.

“In Kilpatrick’s case, I can’t think why he would be pardoned, but then again I can’t think of why Sheriff Arpaio was pardoned," the UM professor said.

"I don’t know of any mitigating circumstances. And my impression from a distance was that the evidence wasn’t in serious doubt."

The U.S. attorney would typically be consulted by the Office of the Pardon Attorney if a clemency petition gets to the point that things look favorable.

A spokeswoman for Detroit U.S. Attorney Matthew Schneider declined to comment on potential clemency for Kilpatrick or whether the office had been contacted by the U.S. pardon attorney.

Neither the White House nor the Justice Department would comment on the status of Kilpatrick’s pending petition for clemency.

Kilpatrick lands in New Jersey prison

Trump's commutations

Trump has commuted four sentences to date. They include Sholom Rubashkin, a former meatpacking executive serving 27 years for bank fraud, and Alice Marie Johnson, a first-time offender sentenced to life without parole on conspiracy drug and money laundering charges.

Johnson had the aid of celebrity Kim Kardashian, who met with Trump about her case.

Rubashkin had the support of several former high-ranking Justice Department officials including President Ronald Reagan’s Attorney General Edwin Meese, as well as more than two dozen members of Congress.

This month, Trump pardoned and commuted the sentences of cattle ranchers Dwight and Steven Hammond.

In a statement, Trump said “justice is overdue,” and that the Obama administration had filed “an overzealous appeal” that resulted in the Hammonds being sentenced to five years in prison for arson on federal lands.

The Hammonds’ sentence had sparked the armed occupation of a wildlife refuge in Oregon in 2016.  

“Every time he does one, he talks about fairness and how something was not fair,” Love said.

“He has articulated this as the reasons he’s been moved to grant clemency to the ones he’s granted to. That’s not the typical reason someone gets their sentence commuted.”

While at times unpopular, there is a precedent for presidents granting clemency to individuals convicted in public corruption cases, including former U.S. Rep. Mel Reynolds of Illinois, a Democrat whose sentence was commuted by President Bill Clinton.

Love has expressed concern over the process that Trump has used to produce his pardons, relying on “random, unofficial sources of information and advice to select the lucky beneficiaries of his official mercy,” she wrote last month in the Washington Post.

Osler has similar concerns.

Over 8,900 petitions for commutation are pending before the Office of the Pardon Attorney and nearly 2,300 petitions for pardon, according to Justice Department statistics. If denied, a petitioner for commutation must wait a year before applying again.

“It’s troubling that there’s a formal process that thousands of people have submitted to following the rules, which are on the pardon attorney’s website and promoted by the Department of Justice," Osler said.

"Whereas, there seems to be an informal process that’s actually functioning."

mburke@detroitnews.com

Twitter: @nannburke