Biden freed a Florida man in his final days in office. A year later, the state pressed charges — for the same crime
Biden freed a Florida man in his final days in office. A year later, the state pressed charges — for the same crime
Oscar Freemond Fowler was a free man for only four days.
The convicted felon, whose federal prison sentence was commuted during the final days of Joe Biden’s presidency, was released from custody on February 19, only to be rearrested for the same crime less than a week later — this time on state charges.
In October 2023, Fowler was charged with possessing a firearm and ammunition as a convicted felon and for possessing cocaine with the intent to distribute it after a 9mm pistol, 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. About two years later, Fowler was one of nearly 2,500 people whose sentences Biden commuted.
Once he was released, however, his freedom did not last long.
What happened to Fowler is not new, and it’s a move that has happened before, most famously to former Donald Trump adviser Steve Bannon.
That’s in part because federal pardons and commutations don’t cover local charges, meaning defendants can be charged again for the same crime under state law, experts say.
“It’s completely plausible to be arrested for the same underlying acts on the state level as on the federal and to be pardoned on the federal level, but not the state,” said Bernadette Meyler, a law professor and associate dean at Stanford University. “The presidential pardon power under Article Two (of the Constitution) covers only federal offenses, so it extends to someone’s liability within the federal government.”
There’s nothing legally or constitutionally wrong with charging someone with state charges after their sentence was commuted on the federal level, CNN senior legal analyst Elie Honig said.
“It depends a bit on the nuances, but in general — and the Supreme Court reaffirmed this in 2019 — it does not violate double jeopardy for a person to be prosecuted separately in two separate cases by the state and then by the federal authorities,” he said.
Here’s how the Constitution and a Supreme Court ruling make that possible.
‘Dangerous repeat offender’ rearrested
Before Fowler’s release, the Oversight Project, a conservative watchdog group, warned officials that a “violent repeat offender and career criminal” was about to be set free.
There are more than 60 cases listing Fowler as a defendant in Pinellas County, Florida alone. His criminal record there — which ranges from simple traffic violations to aggravated assault — dates back to 1991, court records show.
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In a news release announcing Fowler’s rearrest, Florida Attorney General James Uthmeier called Fowler a “dangerous repeat offender” with a lengthy criminal record.
“The Biden administration’s use of the autopen is putting Floridians at risk by allowing dangerous felons back on the street, but we won’t put up with it,” Uthmeier said. An autopen — a device that writes the president’s signature for him — was used to sign Fowler’s commutation, a point of contention to those who opposed his release, as they argue it is not valid.
The Oversight Project later applauded Fowler’s rearrest.
“Florida is safer because a violent criminal is no longer on its streets,” the organization said in a statement.
In bodycam video released by Uthmeier’s office of Fowler’s arrest, the 50-year-old man is seen in handcuffs being searched by officers.
“I ain’t sell no cocaine, man,” Fowler is heard saying after an officer said he was being arrested on drug possession and distribution charges. “An old charge? How old? … I just got out of prison.”
Fowler’s attorney, Lee Pearlman, had no comment on the current case against his client.
SCOTUS ruling upholds dual-sovereignty doctrine
A 2019 Supreme Court ruling provides the legal basis for Fowler’s rearrest on the same charges.
That opinion, Gamble v. United States, upheld the dual-sovereignty doctrine, which says double jeopardy does not apply because two crimes are not the same if they are prosecuted by separate jurisdictions.
“That was saying that, yes, there can be separate state and federal prosecutions,” Meyler said.
The move to rearrest Fowler is possible both because of the Supreme Court ruling and because the federal pardon power doesn’t cover state offenses, Meyler stressed.
But it’s not just a question of whether it’s legal to re-charge someone — the prosecutor in the new case should ask themselves if the new charges are necessary or fair, Honig said.
“On the one hand, you could say, ‘No, this person’s already been fully prosecuted, and the pardon or commutation ended that case, and that’s the course of justice, and there’s no need to redo it,’” Honig said. “On the other hand, I suppose you could say, ‘Well, the pardon or commutation led to an unjust result. Therefore, there’s even more of a need for us to come in and prosecute it now.’”
The result of this case could end up depending on the double jeopardy laws of the state where it is prosecuted, Honig said.
“That person might be able to raise a double jeopardy argument, it would probably be an uphill climb, but the argument would have to be that it violates Florida’s state double jeopardy laws,” he said.
What presidential pardons cover
A commutation is a lesser included act of a pardon, Meyler explained.
“A pardon gets rid of all of the conviction and punishment for that conviction, and it can include one offense or multiple offenses,” Meyler said. “A commutation is a reduction in a sentence, so it doesn’t affect the underlying conviction.”
In the Bannon example, the former White House chief strategist was charged by federal prosecutors with money laundering, conspiracy and fraud. He was pardoned by Trump, but then faced charges in New York for the same offenses.
Last February, Bannon pleaded guilty to a state charge in a deal that allowed him to avoid prison time.
In another recent case, a Trump pardon did not affect state charges against a woman accused of election interference.
Late last year, Trump announced he would grant a full pardon to Tina Peters, the former Colorado clerk convicted of state charges for participating in a scheme to breach voting systems that hoped to prove Trump’s false claims of voter fraud in 2020.
The president announced the pardon even though he couldn’t erase her state charges, and his pardon had no legal impact on her state conviction and incarceration.
“The Trump pardon, because it can only extend to federal crimes, can’t extend to her state prosecution under Colorado State law, but Trump was kind of claiming that it did,” Meyler said.
Peters remains incarcerated in Colorado.
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