Oscar Freemond Fowler was free for only four days.
The convicted felon had his federal prison sentence commuted in the final days of President Joe Biden’s term and was released on February 19, but was arrested again less than a week later on state charges for the same crime.
In October 2023, Fowler was charged with possession of a firearm and ammunition as a convicted felon and possession of cocaine with intent to distribute after a 9 mm handgun, 29 rounds of ammunition, cocaine and methamphetamine were found in his Florida home.
He pleaded guilty and was sentenced to more than 12 years in prison. Nearly two years later, Fowler became one of nearly 2,500 people whose sentences were commuted by Biden.
However, after he was released, his freedom did not last long.
What happened to Fowler is not new, this type of behavior has happened before, most notably to former Donald Trump adviser Steve Bannon.
Experts say that’s partly because federal pardons and commutations don’t cover local charges, meaning a defendant can be charged again for the same crime under state law.
“It is entirely possible to be arrested for the same basic conduct at the state level and receive a pardon at the federal level, but not at the state level,” said Bernadette Meyler, a law professor and associate dean at Stanford University. “The presidential pardon power under Article II (of the Constitution) only covers federal crimes, so it extends to the liability of someone within the federal government.”
Elie Honig, a senior CNN legal analyst, said there is nothing legally or constitutionally wrong with bringing state charges against someone after their sentence is commuted at the federal level.
“It depends in part on the nuances, but in general — and the Supreme Court reiterated this in 2019 — it does not violate double jeopardy for a person to be prosecuted by state and federal authorities in two separate cases,” he said.
Here’s how the Constitution and Supreme Court rulings make this possible.
‘Dangerous habitual criminal’ arrested again
Ahead of Fowler’s release, the conservative watchdog group Project Oversight warned officials that a “violent repeat offender and career criminal” was about to be released.
Fowler is named as a defendant in more than 60 cases in Pinellas County, Florida alone. His criminal history there – ranging from simple traffic violations to aggravated assault – dates back to 1991, court records show.
In a press release announcing Fowler’s rearrest, Florida Attorney General James Usmeier called Fowler a “dangerous repeat offender” with a lengthy criminal record.
“The Biden administration is putting Floridians at risk by putting dangerous felons back on the streets, but we will not tolerate this behavior,” Usmeier said. The automatic pen — a device that writes the president’s signature for Fowler — was used to sign Fowler’s commutation order, sparking controversy among those who opposed his release because they believed it was ineffective.
The Oversight Project later applauded Fowler’s re-arrest.
“Florida is safer because there are no more violent criminals on the streets,” the organization said in a statement.
In body camera video of Fowler’s arrest released by Usmeier’s office, the 50-year-old man can be seen in handcuffs and being searched by police.
“I don’t sell cocaine, man,” Fowler said after an officer said he was arrested on drug possession and distribution charges. “An old crime? How old? … I just got out of jail.”
Fowler’s attorney, Lee Pearlman, had no comment on the current case against his client.
Supreme Court rules in favor of dual sovereignty principle
A 2019 Supreme Court ruling provided the legal basis for Fowler to be rearrested on the same charges.
The opinion in Gamble v. United States supports the doctrine of dual sovereignty that the doctrine of double jeopardy does not apply because two crimes are not identical if they are prosecuted in different jurisdictions.
“That said, yes, there can be separate state and federal prosecutions,” Mele said.
Mailer stressed that the move to rearrest Fowler was possible both because of the Supreme Court ruling and because federal pardon power does not cover state crimes.
But it’s not just a matter of whether it’s legal to recharge someone, prosecutors in new cases should ask themselves whether new charges are necessary or fair, Honig said.
“On the one hand, you can say, ‘No, this person has been fully prosecuted, a pardon or a commutation ends the case, that’s the process of justice, there’s no need to redo it,'” Honig said. “On the other hand, I guess you could say, ‘Well, a pardon or a commutation resulted in an unjust outcome. So it’s more important now for us to step in and prosecute it.'”
Honig said the outcome of the case may ultimately depend on the double jeopardy laws of the state where the prosecution is filed.
“That person may be able to make a double jeopardy argument, which may be a difficult process, but the argument has to be that it violates Florida’s double jeopardy law,” he said.
What does a presidential pardon cover?
Mailer explained that commutation is a less inclusive act of pardon.
“A pardon removes all convictions and penalties for that conviction, and it can cover one crime or multiple crimes,” Mele said. “A commutation is a reduction in sentence so it does not affect the underlying conviction.”
In Bannon’s case, the former White House chief strategist was charged by federal prosecutors with money laundering, conspiracy and fraud. He was pardoned by Trump but later faced charges in New York for the same crimes.
Last February, Bannon pleaded guilty to a state charge in a deal that allowed him to avoid jail time.
In another recent case, Trump’s pardon did not affect state charges against a woman accused of election interference.
Late last year, Trump announced a full pardon for former Colorado clerk Tina Peters, who was indicted by the state for her role in a scheme to undermine voting systems and to prove Trump’s false claims of voter fraud in 2020.
The president issued the pardon even though he was unable to dismiss the state charges against her, and his pardon had no legal impact on her state conviction and incarceration.
“Trump’s pardon, because it only applies to federal crimes, cannot apply to her state prosecution under Colorado law, but Trump is kind of claiming it can,” Mele said.
Peters remains incarcerated in Colorado.
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