Tag Archives: clemency

Obama Clemency Initiative Was As Arbitrary As We Thought It Was – Update for September 7, 2017

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

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THE SEVEN PERCENT SOLUTION

70908When President Obama (remember him?) announced an initiative in 2014 to grant clemency to people serving unduly harsh sentences in the federal prison system, there was a land rush to apply. Ultimately, about 12% of the federal prison submitted applications seeking executive grace.

By the time the dust settled on the morning of The Donald’s inauguration, President O had granted 1,696 of the applications filed. This number, about 7% of all applicants, was dwarfed by the 7,881 applications left stranded when the Obamas fled the coming Trumpocalypse in a Marine helicopter.

Obama leaves town, stranding 7,800 commutation applications.
Obama leaves town, stranding 7,881 commutation applications.

Many of the inmates whose applications were denied complained that racism played a role, favoritism played a role, or simply that the clemency staff was throwing darts at a wall, and granting applications they happened to hit. Last Tuesday, the U.S. Sentencing Commission issued a report on the late great 2014 Clemency Initiative, and what it found suggests that the race-conspiracy people are wrong, but the dart-at-the-wall folks are spot-on.

Initially, the report – entitled “An Analysis of the Implementation of the 2014 Clemency Initiative” – does not especially settle the dark theories, espoused chiefly by white inmates, that President Obama was only interested in pardoning minority inmates. The Bureau of Justice Statistics reports that 53% of all drug inmates are black, and 57% are Hispanic. However, 71% of all clemency recipients were black, 19% were white, and 9% were Hispanic.

The fact that crack cocaine defendants have been 81% black, and that crack sentencing ranges have traditionally been stratospheric, thanks to the previous 100:1 ratio of crack to powder – may account for this. However, it would seem that the people with the most right to complain about being excluded from clemency would be Hispanics.

star170908At the same time, the Report does substantiate the widely-held belief that the Clemency Initiative shut down any chances for commutation of sentences other than drug offenses. The real news, however, is that despite its criteria and processing standards and lofty rhetoric and self-congratulatory righteousness, the Clemency Initiative was as arbitrary as a Star Chamber proceeding.

At the outset, the Department of Justice announced six criteria for clemency. Initially, those were considered to be “processing” criteria, but later morphed into “eligibility” criteria. It turns out they could have been gumdrops or pixie dust, for all of the relevance they had to the process. The standards were that to qualify, a clemency applicant

• would have had to have gotten a lower sentence under   txxxx  h existing law;
• must be a low-level, nonviolent offender;
• must have served at least 10 years;
• must not have a significant criminal history;
• must have had good conduct in prison; and
• must have no history of violence

Deputy Attorney General James Cole made it clear at the outset that “the initiative is open to candidates who meet six criteria” and that “a good number of inmates will not meet the six criteria.”

The Sentencing Commission Report contains good news and bad news. The good news (already known to a lot of people) is that DOJ was just kidding. It turns out that people didn’t have to ring all six bells after all: only 54 of the 1,696 people receiving a commutation met all of the six criteria. Only 5% of the winners met five of the criteria, 35% met four, 38% met three, 19% met two and 3% met only one. Two guys got clemency after going 0-6: they were career criminals, violent, had bad conduct, were high-level drug people and hadn’t yet done 10 years. Sweet for them.

factorschart170908It turns out that 62% commutation recipients had criminal history scores of 3 points or higher, 23% were assigned to the highest Criminal History Category, and 16% were career offenders. Thirty percent had serious misconduct while in prison, and 13% had violent misconduct in prison.

Now the bad news, which was also suspected (if not known) by many people. Examining all the announced Clemency Initiative factors together, the Sentencing Commission report estimated that 2,687 inmates met all six of the Clemency Initiative criteria, yet only 92 of the got clemency. “Therefore,” the Report drily states, “there were 2,595 offenders incarcerated when the Clemency Initiative was announced who appear to have met all the factors for clemency under the Initiative at the end of President Obama’s term in office but who did not obtain relief.”

factorschart170908“The Obama administration’s 2014 clemency initiative helped reduce sentences for thousands of federal defendants at many times an historic rate,” the Marshall Project gushed the other day, “but it still was not as efficient or as organized as it could have been, a new federal report concludes. So many more candidates met the requirements of clemency than were granted it.”

Let’s call it what it is. Despite the proclaimed “six criteria,” nearly 2,600 inmates who were perfect fits were ignored or denied while half of the clemency winners met only one-half or fewer of the standards. Obama Clemency was not a process: it was a crap shoot (unless, of course, you happened to be a trans-sexual darling of the left convicted of espionage against America).

tainwreck170908“Not as efficient or organized?” The same could be said of a train wreck.

U.S. Sentencing Commission, An Analysis of the Implementation of the 2014 Clemency Initiative (Sept. 5, 2017)

– Thomas L. Root

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Abandon Hope? Not this Congresswoman… – Update for April 18, 2017

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

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TILTING AT WINDMILLS

We had an email from an inmate this week asking whether we were aware of a bill pending in Congress that would reduce by the half sentences of nonviolent inmates over 45 years old without any shots.

retread170418The short answer is yes, there is such a bill. The long answer is that this bill – H.R. 64, Federal Prison Bureau Nonviolent Offender Relief Act of 2017 – is the mother of all retreads, having been pending in the last Congress as H.R. 71, Federal Prison Bureau Nonviolent Offender Relief Act of 2015, and the Congress before that (H.R. 62, Federal Prison Bureau Nonviolent Offender Relief Act of 2013), and the Congress before that (H.R. 223, Federal Prison Bureau Nonviolent Offender Relief Act of 2011), and… well, you get the picture.

We can track the pedigree of the Federal Prison Bureau Nonviolent Offender Relief Act all the way back to the 108th Congress (2003-2004), which is when lone wolf Sheila Jackson-Lee (D-Texas) first introduced the measure. She’s been tilting at the same windmill ever since, with her one-sponsor-only bill as certain a fixture in each new Congress as is the State of the Union address.

In 2015, one commentator wrote about Rep. Jackson-Lee’s bill (and others like it) that “these bills have very little likelihood of passage since only one representative, their author, has officially signed on as supporting them. Most of them were also introduced last Congress but were shelved.”

About 10,000 bills get introduced in every 2-year Congress, and only about 3% of them are passed. With the last Congress not able to even bring the Sentence Reform and Corrections Act of 2015 to the floor – after virtually all of its retroactive provisions (that would have helped federal inmates) were gutted – the “nonviolent offender” sentencing bill had no chance of even being taken up by a committee.

Attorney General Jeffrey Sessions
Attorney General Jeffrey Sessions

The new Administration, to put it charitably, is considerably less concerned than were Administrations of the past that federal inmates may be serving unfairly long sentences. Breitbart News, a right-wing website formerly run by Trump confidante Steve Bannon, was beating the drum last Saturday for a close audit of the 1,715 inmates whose sentences were commuted by President Obama. Most of those inmates are not released yet, but that did not deter Brietbart News, which quoted former federal prosecutor Bill Otis as saying, “What Attorney General Jeff Sessions’ Justice Department needs to do now is track the hundreds of fellows who got these pardons and commutations. With overall recidivism rates for drug offenses already being 77%, I think we have a pretty good idea, but the public should get specifics: How many of these guys re-offend; what’s the nature of the new crime; were there related violent crimes in the mix as well; and how many victims (including but not limited to addicts and overdose victims) were there?”

We monitor the bills being introduced in Congress every week. So far, nothing approaching the 2015 SCRA has been introduced.

Just last week, The Hill reported that Attorney General Jeffrey Sessions has directed federal prosecutors to crack down on violent crime. Sessions has tapped Steven Cook, a federal prosecutor and outspoken opponent of criminal justice reform, to lead Sessions’ new Task Force on Crime Reduction and Public Safety.

Alex Whiting, faculty co-director of the Criminal Justice Policy Program at Harvard Law School, was quoted as saying,

Obama moved away from that approach, and I think in the criminal justice world there seemed to be a consensus between the right and left that those policies, those rigid policies of the war on drugs and trying to get the highest sentence all the time, had failed… I don’t know if he is really going to be able to persuade the department to follow his lead on this.

Whiting questions whether Sessions would be able find 94 prosecutors to appoint as U.S. Attorneys who will back his new tough on immigration crime/violent crime approach.

windmill170418With this attitude prevailing in the Justice Department, any surge on sentencing reform (not to mention interest in executive clemency) is extraordinarily unlikely to occur. Nevertheless, a salute to Rep. Jackson-Lee, who makes Don Quixote look like a quitter.

Breitbart News, How Federal Agencies Keep Americans In The Dark About Crime Statistics (Apr. 16, 2017)

The Hill, Sweeping change at DOJ under Sessions (Apr. 16, 2017)

– Thomas L. Root

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No Action on Sentence Reform… and None Likely – Update for January 25, 2017

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

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YOU’LL GET NOTHING AND LIKE IT

The 115th Congress has been in session for about three weeks now. The incoming Trump Administration has kept it busy, but not on criminal justice reform.


nothing170125A session of Congress is two years long, meaning that the 115th will run until December 2018. Both Houses of Congress are controlled by Republicans, although the Party’s 52-48 hold on the Senate is slight.

Under the law, each Congress starts fresh. That means that all of the bills pending last year – including the Sentencing Reform and Corrections Act – are gone. Congress will be starting over fresh – bills will have to be reintroduced and go through all the normal steps before they can become law. To become law, the measures must be approved by the Judiciary Committee of each chamber, and then passed by the full U.S. House and U.S. Senate, and signed by the president.

So far, there’s been a whole lot of nothing on criminal justice. With over 600 House and 180 Senate bills introduced, none addresses sentencing reform.

But will there be? Sen. Jeff Sessions (R-Alabama), now in line to be Attorney General when the Senate votes on it after Jan. 31, previously called Obama’s commutations an “unprecedented” and “reckless” abuse of executive power. President Trump, before he was inaugurated, complained that the prisoners whose sentences were being commuted were “bad dudes.”

Like Trump, Sessions conflates drug offenders with violent criminals. He argues that “drug trafficking can in no way be considered a ‘non-violent’ crime,” even when it does not involve violence.

What happened in Saginaw, Michigan, earlier this week does nothing to convince Sen. Sessions that he’s over-reacting. Demarlon C. Thomas, a former member of Saginaw’s Sunny Side Gang who had his 19-year prison sentence commuted to 10 years by Obama last fall, was shot to death in what appears to have been an execution. Two rifle-wielding gunmen broke into the halfway house, and while one assailant held 23 halfway house residents at gunpoint, the other sought out Thomas and shot him five times.

callahan160208This kind of graphic shooting, like Wendell Callahan’s murder spree in Columbus a year ago, provide grist for those – like Sessions and Trump – “who reject a central point of agreement underlying bipartisan support for sentencing reform: that there is an important distinction between violent criminals and offenders who engage in peaceful activities arbitrarily proscribed by Congress,” as Reason put it. Although Sessions was a supporter of the Fair Sentencing Act of 2010 – which, ironically enough, was legislative inducement for the sentence reduction that put Wendell Callahan on the street – he opposed last year’s Sentencing Reform and Corrections Act, a bill that would have made the shorter crack sentences that the FSA approved in 2010 retroactive, reduced other drug penalties, tightened the standards for mandatory minimum enhancements for guns and career crime, and broadened the criteria for the “safety valve” that lets some drug offenders escape mandatory minimums.

So Congress has yet to propose any bipartisan sentencing reform. Given Trump’s pledge to stop the carnage, as well as the untimely demise of the recently commuted Mr. Thomas, expect nothing.

Gov Track (Jan. 22, 2017)

Reason.com, In Sentencing, Tough Is Not Necessarily Smart (Jan. 25, 2017)

The Saginaw News, Ex-gang member ‘executed’ after Obama commutes sentence (Jan. 24, 2017)

– Thomas L. Root

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Parsimony is the Takeaway from Obama’s Clemency Initiative – Update for January 23, 2017

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

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COMMUTATIONS – THE FINAL NUMBERS

The clemency frenzy is over, Obama’s gone, and the final numbers are in. Mostly, they’re as depressing as they are confusing.

First, the depressing: Over his 8 years in office, Obama granted 1,715 commutations while denying 19,357 petitions, for a grant rate of 8.1%. This means he denied 92 of every 100 petitions he saw

226ASP6179944780Second, the confusing: Clemency Project 2014, the volunteer lawyers who screened the clemency petitions for Dept. of Justice, said last Friday that over its two year run, it “completed screening of the more than 36,000 federal prisoners who requested volunteer assistance.” The Clemency Project was entitled to withhold volunteer assistance from people it deemed not qualified – which is said was an “overwhelming majority” of the requests it received – but it was not entitled to deny the applications. Only the White House could do that.

So where did the rest of those applications go? In the final hours of Obama’s presidency, the DOJ Office of Pardon Attorney said it reviewed every drug-related petition filed prior to August 31, 2016. However, there appear to be a lot of clemency petitions that were left stranded last Friday when Obama flew out of town. DOJ said 3,469 drug-related petitions filed after last August remain on file, as well as 4,412 petitions from federal inmates imprisoned for offenses other than drugs.

We have heard from a number of inmates who say their drug-related clemency petitions were filed before the August deadline – even some recommended by the Clemency Project – who have been neither granted nor denied. We have no official verification that this is so, but likewise we have no basis for disbelieving the reports we have received.

Yesterday, one inmate at a federal low-security prison in Texas said, “there are over 40 plus inmates here (along with me) that never heard a thing about our clemency. Most of us submitted it well before September (11 of them back in March) of last year. All of them but me is a drug offender.”

DOJ says, “Consistent with historic practice, these remaining petitions will be processed by the Office of the Pardon Attorney and addressed by future Administrations.”

It is also puzzling that only 66% of the 2,600 petitions recommended by the Clemency Project were granted.

“I think Obama tried to use the existing structure to do something that really hadn’t been done before, and it think the structure just struggled,” said New York University law professor Rachel Barkow, who is on the U.S. Sentencing Commission. “There’s not enough people to deal with it, there was too much bureaucracy and it shouldn’t be in the DOJ. It’s asking too much to ask prosecutors to rethink what they already did.”

The Clemency Project 2014, a cooperative effort of the American Bar Association and National Association of Criminal Defense Lawyers, recruited and trained about 4,000 volunteer lawyers from diverse practice backgrounds.

awesome170123The Obama Administration was full of itself praising its record of 92 denials for every 8 grants. Deputy Attorney General Sally Q. Yates said, “With 1,715 commutations in total, this undertaking was as enormous as it was unprecedented, and I am incredibly grateful to the teams of people who devoted their time and energy to the project since its inception. By restoring proportionality to unnecessarily long drug sentences, this Administration has made a lasting impact on our criminal justice system.”

Julie Stewart, who chairs Families Against Mandatory Minimums, was more realistic. She praised the clemency grants for the ones who got one, but said, “my heart aches for those who will not make the cut. After over two years of believing they may have a chance for freedom, they now see that door of hope closing. I can’t imagine what the pall in the prisons will feel like on January 20 when President Obama leaves office.”

DOJ Office of Pardon Attorney, Overview Of DOJ’s Clemency Initiative (Jan. 19, 2017)

ProPublica, Obama Picks Up the Pace on Commutations, But Pardon Changes Still in Limbo (Jan. 5, 2017)

Clemency Project 2014, President Obama Caps Final Full Day in Office with 330 More Commutations (Jan. 20, 2017)

DOJ, Deputy Attorney General Sally Q. Yates Statement on the Clemency Initiative (Jan. 19, 2017)

Washington Post, Obama grants final 330 commutations to nonviolent drug offenders (Jan. 20, 2017)

– Thomas L. Root

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DOJ Completes Processing 16,000+ Clemency Requests – Update for January 17, 2017

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

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WASHINGTON POST REPORTS JUSTICE HAS SENT FINAL COMMUTATION LIST TO PRESIDENT; “HUNDREDS MORE” TO GET CLEMENCY

pardon160321President Obama promised to commute up to 2,000 drug sentences. He has about 75 hours left to come up with the final 850 he needs.

The Washington Post reported yesterday afternoon that Justice Department officials have completed their review of more than 16,000 clemency petitions filed by federal prisoners over the past two years and sent their last recommendations to Obama. The President is reportedly set to grant “hundreds” more commutations to drug offenders during his final days in office, but apparently not the grand categorical gesture than some have urged him to approve.

The national discourse on commutations – which had mostly focused on drug defendants – changed dramatically last Wednesday when NBC News reported Army Private Bradley Manning – who released a trove of U.S. secrets to Wikileaks, leading to an espionage conviction in 2013 – is on Obama’s “short list” for a sentence commutation. Manning, who reportedly suffers from gender dysphoria, got a 35-year sentence, but is eligible for parole in three more years.

hugs170117The media have been speculating about a Manning commutation for months. Last Friday, White House press secretary Josh Earnest, answered a media question about Manning and Edward Snowden (who stole thousands of secrets from the government and fled to hide in Russia). “So, I think the situation of these two individuals is quite different,” Earnest suggested. “I can’t speculate at this point about to what degree that will have an impact on the President’s consideration of clemency requests. I know that there’s a temptation because the crimes were relatively similar to lump the cases together, but there are some important differences, including the scale of the crimes that were committed and the consequences of their crimes.”

Earnest suggested Obama may be willing to offer Manning relief because – unlike Snowdon – Manning took responsibility for his actions in court. It also implies that Obama is willing to commute Manning’s sentence, an act that will be enormously unpopular with a lot of people. Obama’s willingness to do so increases the likelihood he will “go long” on the final commutations to BOP prisoners.

While the media was atwitter about Manning, DOJ was burining the midnight oil to slog through thousands of remaining clemency applications from less-known federal drug offenders. “We were in overdrive,” Deputy Attorney General Sally Q. Yates said. “We were determined to live up to our commitment. It was 24-7 over the Christmas break.”

With 11 days to go, burning the midnight oil...
      Burning the midnight oil at Justice…

At the end of last August, Yates promised DOJ would review every petition from a drug offender that was still in the department’s possession at that time — about 6,195 at that time. The DOJ did that, and even included several hundred petitions received through September 15, after her cutoff date, as well as petition from people with life sentences filed as late as November 30. The final count of petitions reviewed was 16,776.

The urgency arises from the generally-accepted perception that President-elect Donald Trump will dismantle Obama’s clemency initiative, which has resulted in commutation of sentence for 1,176 drug thus far. More than 400 were serving life sentences.

Yates said Obama will grant “a significant” number of commutations this week, but would not specify a number. The Post quoted several people close to the process as saying it will be several hundred. Perhaps in preparation for the announcement this week, last Friday the White House issued with its usual stealth a list of 804 clemency denials, which could be a final cleanup before the major commutation announcement this week.

Ohio State University law professor Douglas Berman wrote last night that DOJ and Obama deserve credit for “ultimately making clemency an 11th hour priority. But given that Prez Obama set of modern record for fewest clemencies during his first term in office, and especially because he leaves in place the same troublesome clemency process that has contributed to problems in the past, I will still look at Obama’s tenure largely as an opportunity missed.”

Shadowproof, White House justifies Chelsea Manning’s possible commutation (Jan. 13, 2017)

Washington Post, Obama to commute hundreds of federal drug sentences in final grants of clemency (Jan. 16, 2017)

Sentencing Law and Policy, After reviewing tens of thousands of requests, Obama Administration reportedly finds a few hundred more prisoners worthy of clemency (Jan. 16, 2017)

– Thomas L. Root

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Is There Big Clemency News Coming? – Update for January 9, 2017

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

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CLEMENCY: SOMETHING’S HAPPENIN’ HERE

We’re down to 11 more days of President Obama to finish whatever he has planned on commutation of sentences, and we’re hearing a couple of things to suggest that something big is about to happen.

whatsgoingon170109A few weeks ago, we heard that the Obama Administration had asked the Dept. of Justice for an opinion as to whether Obama could commute sentences without naming individual names, more of a blanket commutation for those who met certain criteria on their sentences, prison conduct and the like. The rumor was second-hand, but we did confirm that the source was likely in a position to be aware of the information he was quoted as passing along.

We don’t know what advice the DOJ provided on the subject (or even if it did), but the question tantalizingly suggests White House interest in a large-scale across-the-board commutation.

Then last Thursday, we learned from a Clemency Project 2014 lawyer that one of the cases we had been working on with her – a guy who had been rejected for clemency by the Project last summer – had been reconsidered. The Project needed a formal application worked up and filed with the Pardon Attorney promptly. We made the Friday midnight deadline, and we were interested at the sudden flurry of interest and demand for an immediate filing.

We think something’s up.

The media still include the predictable skeptics – including the incoming Attorney General – criticizing the Obama clemency push. Jeffrey Sessions, a former U.S. attorney whom Trump has tapped to be the next AG, complains that “so-called ‘low-level, non-violent’ offenders” do not exist in the federal prison system. Other complain that with a recidivism rate of 75%, three out of four people getting commutations will commit new crimes. 

Another critic argued that with the commutations, “Obama has effectively undermined the justice systems of the states and… puts Americans’ lives and property at risk.”  (This, of course, is nonsense: Obama cannot pardon state inmates, only federal ones).

pardon160321But beyond the naysayers’ cants, report are increasingly speculating about clemencies to come. In a piece about commuting the sentencing of Obama’s old friend and Illinois governor Rod Blagojevich, Obama himself suggested that he planned to do more: “I study these cases on an individual basis. As you know, I have exercised my commutation powers very aggressively to make sure that we are not over sentencing people, particularly low-level drug crimes. Some of these higher-profiler cases, we’ll see what gets to my desk.”

P.S. Ruckman, a political science professor at Northern Illinois University and author of the PardonPower blog – which tracks clemency decisions by presidents and state governors – said he expects “commutations to a few hundred more drug offenders, and a handful of pardons,” mostly in drug cases, before Obama leaves office.” Douglas Berman, an Ohio State University law professor and sentencing expert, speculated that because Obama’s “shown a commitment to reduce sentences that he thinks are unjust or excessive, maybe his last few batches will include some high-profile folks.”

With 11 days to go, burning the midnight oil...
With 11 days to go, burning the midnight oil…

Margaret Colgate Love, the Pardon Attorney under President George W. Bush, told Slate magazine that the Obama administration has “already had perhaps the most prolific final year of any president. But that’s only when measured against his fairly barren first seven years. His administration has pledged to act on every one of the thousands of commutation applications filed pursuant to the 2014 initiative, which means that there will either be thousands of grants or thousands of denials in the final weeks. Either way, he will be subject to criticism—and the pardon power itself may be the main casualty.”

Slate, The George W. Bush Advice Obama Should Have Taken (Jan. 5, 2017)

Chicago Sun-Times, Patti Blagojevich on Obama commutation hope: ‘He didn’t say no’ (Jan. 6, 2017)

The Lens, Obama commutes sentences of hundreds of cocaine dealers who targeted kids (Jan. 4, 2017)

The Hill, Last gasps of Obama’s imperial presidency (Jan. 5, 2017)

San Francisco Chronicle, Prominent prisoners’ supporters pin pardon hopes on Obama (Jan. 7, 2017)

 –Thomas L. Root

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