A distinguished group of American constitutional and criminal law scholars and practitioners have written to US President Obama requesting the commutation of Jonathan Pollard's sentence to time served.
As the letter puts it, "such commutation is more than warranted if the ends of justice are to be served, the rule of law respected and simple humanity secured."
Among the signatories are six professors from Harvard Law School, Obama's alma mater, including: Alan M. Dershowitz, Felix Frankfurter Professor of Law; Charles J. Ogletree, Jr., Jesse Climenko Professor of Law; Philip B. Heymann, James Barr Ames Professor of Law; and Mary Ann Glendon, Learned Hand Professor of Law. They are joined by Canadian law professor emeritus and former Minister of Justice & Attorney General of Canada, Irwin Cotler, a sometimes visiting professor at Harvard.
The letter sets forth ten compelling considerations for the exercise of executive clemency by President Obama, including:
The signatories conclude that, "it is precisely for standing injustices like this - and where the justice system has failed - that the U.S. Constitution has vested in the President the power of executive clemency. We urge you to exercise this power in the pursuit of justice, the rule of law and simple humanity."
June 20, 2014
President Barack H. Obama
President of the United States
1600 Pennsylvania Ave NW
Washington, DC, 20500
Re: Jonathan Pollard
Dear President Obama,
We, the undersigned, scholars and practitioners of American constitutional and criminal law, write to respectfully request the commutation of Jonathan Pollard's sentence to time served. Indeed, such commutation is more than warranted if the ends of justice are to be served, the rule of law respected and simple humanity secured - the whole as set forth in the following considerations:
First, Pollard was charged with, and pleaded guilty to, one count of conveying classified information to a foreign government, in this instance, Israel, an ally of the U.S. The usual sentence for this offense is no more than six or eight years, with actual jail time before release averaging two to four years. Pollard is now serving his twenty-ninth year of an unprecedented life sentence - an excessive, grossly disproportionate, unfair and unjust sentence.
Second, the sentence of life imprisonment was itself a breach of the plea bargain wherein the prosecution agreed not to seek life imprisonment in return for Pollard's guilty plea, his cooperation with the authorities and his agreement to waive his right to trial by jury, agreeing that a sentence of less than life imprisonment would serve the interests of justice and also act as a deterrent. This plea bargain also saved the government much time, money and prospective embarrassment of conducting a trial involving highly sensitive information, and where Pollard might well have been acquitted of the more serious charges. Indeed, Judge Stephen F. Williams of the U.S. Court of Appeals for the First District later referred to the government's breach of the plea-bargain as a "complete and gross miscarriage of justice."
Third, the life sentence was itself secured as a result of the submission - after the plea bargain and in violation of it - of a prejudicial ex parte affidavit to the sentencing judge by then Secretary of Defense Caspar Weinberger, to the effect that Pollard had compromised American National Security and was guilty of "treason." However, in a 2004 interview, Mr. Weinberger himself admitted that, in retrospect, the Pollard matter was "comparatively minor," and it is not even referenced in his memoires.
Fourth, Pollard has not only been excessively and disproportionately punished for the crime he did commit, but has been effectively punished for the crime he never committed - nor was ever charged or convicted of - namely, the crime of treason. Indeed, notwithstanding Weinberger's affidavit - which Pollard never saw nor was ever able to challenge - there was never anything in the Pollard indictment to suggest that he intended any harm to the U.S., or sought to benefit any country other than America's ally Israel. Yet, regrettably, prosecutorial "sources" in the Central Intelligence Agency, and the Defense, State and Justice Departments, continued to maintain, long after the plea bargain, that Pollard was charged with, and convicted of treason. Indeed, inspired media leaks, often coincident with Presidential reviews, sustained and amplified this false and misleading allegation.
Fifth, Pollard was also accused by government agencies over the years of having compromised intelligence "sources" and "methods" in Eastern Europe - a charge that was never part of the Pollard indictment, for which no evidence has ever been adduced, but whose recycling implicated Pollard in the deaths of at least a dozen U.S. informants in the former Soviet Union. Importantly, this last accusation is a case study of both government misrepresentation and cover-up. For while the CIA was accusing Pollard of this most egregious of charges, it knew - as it later became publicly known - that senior CIA official Aldridge Ames, the head of the CIA's Soviet/Eastern Europe Division, had himself been both the architect of those treasonable acts, and the original source of the false allegations against Pollard on those charges.
Sixth, interestingly enough, a largely ignored December 2012 declassification of a 1987 CIA damage assessment concerning Pollard shows, as Lawrence orb, assistant Secretary of Defense from 1981-1985 under Caspar Weinberger reported, that "Pollard had cooperated with them fully and in good faith, acknowledged that Pollard did not divulge the most sensitive U.S. national security programs, including military activities, plans, capabilities, equipment, or communications that Pollard provided intelligence only on the Soviet Union's activities in the Middle East, the Arab States and Pakistan." Yet CIA officials, as set forth above, continued to knowingly and falsely accuse Pollard of actions prejudicial to U.S. national security.
Seventh, Pollard was himself deprived of the right to effective legal counsel and defense as his attorney neglected to file a notice of intent to appeal following the prejudicial sentencing hearing, and Pollard was therefore forever deprived of his right to a direct appeal against his life sentence. The only appeals he has been able to bring have been of a collateral nature only, were dismissed on technical and procedural grounds, and were never addressed on the merits. Indeed, American former prosecutors and directors intentionally mislead when they write that Pollards' life sentence "was subsequently upheld by the Appellate Court" - masking the fact that the U.S. Court of Appeals for the First District had rejected Pollard's appeal in a two to one decision on narrow technical grounds; and that the only comment on the merits was that of the dissenting Judge Stephen F. Williams, who - as we previously discussed- had castigated the government for its breach of the plea bargain agreement.?
Eighth, as Governor Bill Richardson recently wrote to you, "virtually everyone who was in a high position of government - and dealt with the ramifications of what Pollard did at the time - now support his release. They include Secretary of State George Shultz, FBI Director and subsequent CIA Director William Webster, Chairman of the Senate Intelligence David Durenberger, and Chairman of House Intelligence Lee Hamilton." Indeed, those in the Clinton and Bush administrations who have seen the classified information have come out for Pollard's release, including major figures from both the Republican and Democratic parties.?
Ninth, it is important to recall and to note that Pollard fully honored the plea agreement that the government violated; that he fully cooperated with the authorities; that he has been a model prisoner; that he has apologized and expressed remorse for his actions; that he has been falsely accused over the years - by those in a position to know better - of compromising American security if not American lives - that in a word, Pollard was guilty of treason; that his sentence and imprisonment is as unjust as it is unprecedented; that Pollard is aging, in deteriorating health and deserving of release.
Finally, in the words of Lawrence Korb, "We believe that commuting Pollard's sentence to time served is the right and compassionate thing to do. We believe that his continued incarceration constitutes a travesty of justice and a stain on the American system of justice."
Mr. President, it is precisely for standing injustices like this - and where the justice system has failed and cannot provide relief - that the U.S. Constitution has vested in the President the power of executive clemency. We urge you to exercise this power in the pursuit of justice, the rule of law and simple humanity.
Alan M. Dershowitz
Felix Frankfurter Professor of Law at Harvard Law School
Charles J. Ogletree, Jr.
Jesse Climenko Professor of Law at Harvad Law School
Director, Charles Hamilton Houston Institute for Race & Justice
Philip B. Heymann
James Barr Ames Professor of Law at Harvard Law School
Former Deputy Attorney General of the US
Emeritus Professor of Law at McGill University, and sometimes Visiting Professor at Harvard Law School
Former Minister of Justice and Attorney General of Canada
Rita E. Hauser Professor of Human Rights and Humanitarian Law at Harvard Law School
Frank I. Michelman
Robert Walmsley University Professor Emeritus at Harvard University
Mary Ann Glendon
Learned Hand Professor of Law at Harvard University
President of the Pontifical Academy of Social Sciences
Professor of Law, New York Law School
Former President, American Civil Liberties Union, 1991-2008
Professor of law, Hofstra University
Former Dean at the Maurice A. Deane School of Law at Hofstra University
Suzanne Last Stone
Professor of Law at Benjamin N. Cardozo School of Law, Yeshiva University