In a five page letter sent to President Barak Obama late this evening, Rabbi Dovid Zweibel, Vice president of Agudath Israel of America urged the President to grant clemency to Jonathan Pollard in the spirit of the holiday season, describing Pollards as “in declining health” and “a broken man”.
R’ Zweibel stresses that while Pollard’s crime was serious his sentence was unduly harsh, especially compared to others who committed similar crimes, he has already served a long prison term and has expressed remorse for his actions.
The letter stressed the growing importance of pardoning Pollard with each passing year and cites a congressional letter sent in October to President Obama. The letter, initiated by Massachusetts congressman Barney Frank, was signed by thirty nine democratic members of the House of Representative urging the President to release Pollard on the grounds that Pollard’s life sentence is unjust considering the nature of his actions and that the twenty five years Pollard has already served are both punishment enough to atone for his crime and severe enough to serve as a deterrent against any further wrongdoing.
Additionally, Rabbi Zweibel also suggests two more reasons why Pollard should be granted clemency. Firstly, the letter calls the government’s actions in the Pollard case troubling and quotes Judge Stephen Williams, the dissenting vote in the 1992 Court of Appeals ruling rejecting Pollard’s motion to withdraw his guilty plea, calling the government’s actions “a fundamental miscarriage of justice” and describes how the government initially downplayed the severity of Pollard’s actions in order to convince Pollard to plead guilty and after securing the guilty plea playing up the severity of Pollard’s crime during sentencing. Secondly, the letter speculates that Pollard’s own lawyer was guilty of gross negligence by inexplicably failing to appeal the life sentence due to the government’s breaching of the plea bargain agreement.
The letter ends with a heartfelt plea to the President quoting the words of former CIA director James Woolsey who said simply of Pollard “He’s served long enough.”
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December 14, 2010
BY FAX & OVERNIGHT MAIL
The Honorable Barack Obama
President of the United States
The White House
1600 Pennsylvania Avenue, N.W.
Washington, DC 20500
Dear Mr. President:
On behalf of Agudath Israel of America, a national Orthodox Jewish organization,
I wish to renew our longstanding humanitarian plea that Jonathan Pollard, who has
already served 25 years of his life sentence, be granted executive clemency. We have
made this plea to several presidents over the years – but with each passing year that Mr.
Pollard languishes in prison, the urgency of the plea is compounded.
We acknowledge, as we always have, that Pollard’s crime was extremely serious.
But we maintain, also as we always have, that the exceptional severity of his sentence is
troubling. His espionage took place during a time of peace. The country for which he
was charged with spying, Israel, was and is a staunch ally of the United States. He
received his sentence after a plea bargain, not a trial. Each of these factors, on its own,
should have softened the harshness of his sentence; taken collectively, they render his
sentence of life in prison virtually incomprehensible.
Indeed, the 25 years Pollard has already served – let alone the life sentence
imposed upon him – is entirely out of line with sentences served by others convicted of
spying for friendly governments. As Representative Barney Frank and 38 of his
colleagues wrote to you last month:
We believe that there has been a great disparity from the standpoint of
justice between the amount of time Mr. Pollard has served and the
time that has been served — or not served at all — by many others
who were found guilty of similar activity on behalf of nations that,
like Israel, are not adversarial to us. It is indisputable in our view that
the nearly twenty-five years that Mr. Pollard has served stands as a
sufficient time from the standpoint of either punishment or deterrence.
We respectfully add our voice to those of Representative Frank and his colleagues
in asking you to recognize that Jonathan Pollard has more than adequately repaid his debt
to society through the quarter-century he has already spent in federal prison. The length
of his incarceration, considering the nature of his crime and the fact that he entered into a
plea bargain, is itself a compelling justification for the humanitarian exercise of your
executive clemency authority.
There are, however, two additional factors that strongly militate in favor of
clemency: the fact that the government, in a variety of ways, did not play fair in the
process leading up to the imposition of Pollard’s life sentence; and the fact that Pollard
lost his opportunity to appeal his life sentence due solely to his own attorney’s shoddy
lawyering. It is fair to assume that Pollard is still sitting in jail today only because both
the government and his lawyer deviated from the norms that characterize our system and
sense of American justice. There is something very wrong with that picture, and we
respectfully ask you to set it right.
Let me elaborate on these two additional points:
1. The Government’s Troubling Conduct: After entering into a plea bargain
agreement with Pollard, the government proceeded in a manner that was in substantial
tension with the commitments it had made under the agreement. In the words of Judge
Stephen Williams, the dissenting vote in the 1992 D.C. Circuit Court of Appeals 2-1
ruling rejecting Pollard’s §2255 motion to withdraw his guilty plea:
On its side, the government made three promises of significance
here. First, it would bring to the court’s attention “the nature, extent
and value of [Pollard’s] cooperation and testimony” and would
represent that the information supplied was of “considerable value to
the Government’s damage assessment analysis, its investigation of
this criminal case, and the enforcement of the espionage laws.”
Second, it would not ask for a life sentence (this promise was
implicit but is not contested by the government), though it would be
free to recommend a “substantial period of incarceration”. Third, the
government limited its reserved right of allocution to “the facts and
circumstances” of Pollard’s crimes. The government complied in
spirit with none of its promises; with the third, it complied in
neither letter nor spirit. [United States v. Pollard, 959 F2d 1011,
1034 (D.C. Cir. 1992) (Williams, J., dissenting) (citations omitted;
emphasis added).]
These factors led Judge Williams to describe the government’s conduct as “a
fundamental miscarriage of justice.” Id. at 1032.
The two judges who formed the court’s majority disagreed with their colleague’s
bottom line, but they too acknowledged “the grudging nature of the government’s
compliance,” 959 F.2d at 1026; that “the government’s presentation was certainly not
generous – it could well be thought stingy,” id.; and that “the government was engaged in
rather hard-nosed dealings with the defendant,” id. at 1030. The majority took note of the
“rather polemical tone” of Secretary Caspar Weinberger’s pre-sentencing memorandum
to the district judge, id. at 1017, conceding that the Secretary’s words might accurately be
characterized as “rank hyperbole.” Id. at 1025. The majority did not disagree that the
government’s unflattering description of Pollard’s character and motivation constituted a
breach of its pledge to limit its allocution to the “facts and circumstances” of the case; it
merely held that any such breach, “troublesome” though it may be (id. at 1026), did not
rise to the level of a “fundamental defect” in the sentence that resulted in a “complete
miscarriage of justice” sufficient to warrant §2255 collateral relief. Id. at 1028.
The government’s inappropriate handling of the case after it entered into the plea
agreement extends beyond the manner in which it carried out its terms of the bargain with
Pollard. As I pointed out in an article I wrote for the June 1997 Middle East Quarterly, it
was only after the government had secured Pollard’s guilty plea that it began speaking in
terms of the harm Pollard caused to the United States. Pollard’s indictment had charged
him under the federal law that makes it a crime to deliver defense information “to the
advantage of a foreign nation” – conspicuously avoiding charging him under the parallel
law that makes it a crime to deliver such information “to the injury of the United States.”
Pollard thus had good reason to assume, when he agreed to plead guilty to a criminal
charge of spying for an ally where there had been no charge of harm to the United States,
that he would receive something less than a life sentence.
After his plea, though, the government began to sing a different tune, essentially
converting the charge from the less morally culpable crime of benefiting a foreign nation
to the more serious crime of injuring the United States. Thus, as elaborated in the afore-
mentioned Middle East Quarterly article, the government submitted a Victim Impact
Statement that spoke in various ways of the harm Pollard had caused to American
interests; Secretary Weinberger submitted a declaration raising the specter that Pollard
had endangered American lives; and then, in a second submission on the eve of
sentencing, the Secretary went so far as to accuse Pollard of “treason” – a legal term that
Article III, Section 3 of our Constitution defines as levying war against the United States
or aiding America’s enemies.
What happened, in other words, is that the government leveled a charge of lesser
moral magnitude against Pollard, secured his guilty plea, and then post-facto changed the
focus of the sentencing process by upping the ante on Pollard’s crime. This may have
been clever prosecutorial strategy – but it was not fair play.
2. Pollard’s Lawyer’s Failure to Appeal the Sentence: There is yet another
reason why there is something fundamentally unfair about Pollard’s life sentence. It is by
now clear that Pollard’s original lawyer made a number of serious tactical mistakes in his
representation of Pollard – most egregiously his failure directly to appeal Pollard’s life
sentence.
The devastating consequences of that failure are spelled out quite clearly in the
D.C. Court of Appeals’ aforementioned 2-1 ruling against Pollard’s §2255 motion to
withdraw his guilty plea, in which the majority point out that “in a §2255 collateral
challenge, an appellant, in order to gain relief under any claim, is obliged to show a good
deal more than would be sufficient on a direct appeal from his sentence. §2255 is not a
substitute for a direct appeal. ...The mood, atmosphere or ‘rhetoric’ of the
government’s allocution – upon which the dissent relies – might justify relief on
direct appeal of the sentence, but it is unlikely to satisfy the rigorous test of §2255.”
(United States v. Pollard, supra, 959 F.2d at 1020, 1029-30 [emphasis added].) In other
words, had Pollard’s lawyer decided directly to appeal the life sentence on the grounds
that the government had breached the plea bargain agreement, chances are that he would
have prevailed on that appeal. But the lawyer, for whatever reason (or for no reason), did
not file an appeal – and the rest is tragic history. It is therefore fair to ask as a matter of
simple justice whether Pollard should be made to suffer such severe consequences –
spending the rest of his life in prison – as a result of his lawyer’s egregious mistake.
That Pollard committed an extremely serious crime and deserved to pay for it is
clear. But it is also clear that for a man to spend his entire life in prison based on
questionable tactics by the government in its prosecution of a case and an inexplicable
blunder by his lawyer simply does not comport with fundamental fairness. It may be too
late, under the applicable statutes of limitations, for a court of law to allow Pollard to
withdraw his guilty plea or appeal his sentence on the basis of these considerations.
United States v. Pollard, 290 F. Supp. 2d 153 (D.D.C. 2003). But it is not too late for the
President of the United States to take them into account when considering Pollard’s
clemency application. The genius of our constitutional system is that the Chief Executive
has the power, entirely independent of the courts, to act in a humanitarian manner that
upholds our nation’s most noble traditions of fair play and compassionate justice. This is
a case that screams out for the exercise of such humanitarian executive authority.
Let me conclude with a simple plea from the heart. By no means does Agudath
Israel of America condone what Pollard did. He is no hero. But he committed his crime
more than a quarter-of-a-century ago. He has expressed remorse for his actions. He has
languished in prison for 25 years. He is in declining health. He is a broken man. We
respectfully echo the words of former CIA director James Woolsey: “He’s served long
enough.”
During this holiday season, Mr. President, Agudath Israel of America implores
you, respectfully but urgently, to grant clemency to Jonathan Pollard.
Many thanks for your consideration of this plea – and many thanks for your
courageous leadership of our great nation. As always, you have our blessings and every
good wish.
Sincerely,
Rabbi David Zwiebel, Esq.
Executive Vice President
