Utah Law Review Lockhart Discretionary Clemency Mercy at the Prosecutors Option
The Mercy Lottery: A Report of the Middle on the A Review of the Administration of Obama Administration's Criminal Law at NYU Police force School Charity Initiative
Nigh the Centre Acknowledgments The Center on the Administration of Criminal The Center thanks Vital Projects Fund for Law at NYU Law School analyzes important providing financial support and making this issues of criminal constabulary, with a special focus on report possible. This report also could not prosecutorial power and discretion. It pursues take been possible without the people who are this mission in three main arenas: academia, incarcerated in federal prison, and whose stories the courts, and public policy debates. are told here. Give thanks you for trusting us to share Through the academic component, the your experiences. The Center is also grateful to Heart researches criminal justice practices at Amy Povah of Tin-DO Clemency for connecting all levels of government, produces scholarship united states of america to people who are currently incarcerated and on criminal justice issues, and hosts symposia who missed their gamble for clemency and for and conferences to accost significant topics generously providing us with photographs in criminal law and procedure. The litigation for some of these profiles. component uses the Center's research and The Center as well thanks Faculty Manager experience with criminal justice practices to Rachel Barkow, Mark Osler and Caitlin Glass inform courts in of import criminal justice for their insights into the inner workings of matters, particularly in cases in which exercises President Obama's clemency initiative. of prosecutorial discretion create significant The report was drafted past Center Executive legal issues. The public policy component Director Courtney 1000. Oliva. applies the Center's criminal justice expertise The report was designed by Michael Bierman, to improve practices in the criminal justice and product of the study was coordinated past organization and raise the public dialogue on Judy Zimmer at GHP Media. criminal justice matters. To contact, contribute to, or read more well-nigh the Center, please visit prosecutioncenter.org or write to info@prosecutioncenter.org.
The Mercy Lottery: A Review of the Obama Assistants's Clemency Initiative A Study of the Center on the Assistants of Criminal Police force at NYU Police force School © 2018
2 The Mercy Lottery: A Review of the Obama Administration's Clemency Initiative
Executive Summary Virtually a twelvemonth-and-a-half has passed since the conclusion of President Obama's ambitious clemency initiative (the Initiative). Through the Initiative, President Obama commuted the sentences of 1,696 men and women. Only this was only a small fraction of the 24,000 people incarcerated in the federal Agency of Prisons (BOP) who sought clem- ency. How were and so many applicants deemed unworthy? And what most the 7,881 people whose petitions were never reviewed? Some of these people met many, if not all, of the vi announced Initiative criteria that were weighed in determining whether to grant clem- ency. And so what separated them from the lucky few who got charity? How did a President who spring-started the clemency process also fail to grant clemency to so many people, despite an initial prediction that every bit many equally x,000 federally incarcerated people would qualify? The reply lies in the way the design and imple- whose petitions were never granted, despite being mentation of the Initiative. The Initiative was well platonic candidates by the Initiative's own terms. Their meaning, but it suffered from a lack of infrastructure stories are important, because they are prove and resources. It was also a bureaucratic maze that that the Initiative left behind many people who was controlled by the Department of Justice, and were worthy of a 2nd risk. Some of these this pattern increased the likelihood of a charity people are serving life sentences for non-violent petition beingness denied at whatever given point in the pro- offenses, some are serving functional life sentences, cess. To tackle clemency, the next administration having had sentences commuted to 30-yr terms, should do the following: while others never had the satisfaction of having their petitions decided. All of them share 1 thing • Build out infrastructure and secure in mutual: they were ideal candidates who were, resources before announcing an initiative for reasons unknown, passed over past the Initiative. Their stories are also important because they • Encourage transparency in the clemency highlight the flaws in the institutional design of the process, by clearly explaining how whatsoever clemency procedure and the criteria used to assess criteria will be used to screen petitions clemency petitions. While the Administration'due south The Centre on the Administration of Criminal Law 1,696 charity grants should be celebrated, as • Re-design the clemency process by moving information technology should the delivery to reinvigorating clem- out of the Section of Justice ency, we should not lose sight of the fact that in that location were flaws with the procedure that prevented • Re-imagine what clemency is, to ensure that many petitioners from getting relief from draco- whatsoever initiative is faithful to charity's roots. nian drug sentences. By highlighting problems that can be improved, the adjacent assistants to This report analyzes the Initiative that the Obama embrace clemency reform can improve upon the Administration implemented and ran from 2014 groundwork laid by the Obama Administration. to 2017. The report tells the stories of individual petitioners who were either denied clemency or 3
4 The Mercy Lottery: A Review of the Obama Administration's Clemency Initiative
Introduction President Obama's clemency initiative ran from 2014 Between 2014 and 2016, the CRC and Mercy Project to 2017.1 Commencement hinted at in a January 2014 oral communication filed approximately 200 petitions for clemency given to the New York State Bar Association by and then- with the Role of the Pardon Attorney. Of these Deputy Attorney General (DAG) James Cole and later applications, President Obama granted relief to formally announced in Apr 2014, the goal of the 2 96 of our clients. Initiative was to identify a greater number of people From 2014 to 2017, equally a result of CP14's efforts, in federal prison who were worthy of clemency. In more than 24,000 people in federal prison peti- identifying these people, Cole remarked that the tioned for clemency under the Initiative.6 Presi- Initiative was trying to bring fairness to, and pro- dent Obama granted one,696 clemency requests mote public confidence in, the justice system, past pursuant to the Initiative. As of Jan 19, 2017, identifying "older, stringent punishments that are vii,881 petitions remained pending before the out of line with sentences imposed nether today's Function of the Pardon Chaser (OPA).seven All told, laws" and reviewing these cases for clemency. iii these numbers were far beneath the 10,000 esti- In order to accommodate the predictable influx mate provided by Attorney General Eric Holder.8 of petitions in response to the Initiative, the Depart- This report aims to capitalize on the experi- ment of Justice (DOJ) partnered with a consor- ences and lessons learned as a outcome of the CRC and tium of criminal justice reform organizations to Mercy Project's work, and to provide a blueprint assist in screening petitioners. Clemency Project for future administrations on how to better the 2014 (CP14), as the consortium was known, was a clemency process. It also seeks to remind the public not-governmental working group of half dozen advocacy that executive charity reform is still urgently organizations whose goal was to identify people in 4 needed. The profiles of the individuals who whose federal prison who met the DOJ's clemency criteria petitions were either denied or were never acted and connect them to pro bono counsel who could upon make this articulate and demonstrate that a pro- assist them in filing charity petitions. NYU Police cess that fails to offer them relief is fundamentally Schoolhouse'due south Clemency Resource Center (CRC) and its broken. Part I describes the people who were left sister organization, the Mercy Project, stepped behind. Some of them are CRC and MP clients, upwardly to help CP14 screen petitions and file them for while others either submitted petitions on their people who met the Initiative'south criteria. Housed own or were represented through CP14. Some are within the Law Schoolhouse's Center on the Administra- serving life sentences for drug offenses, while oth- tion of Criminal Law, and with generous funding ers were given merely illusory 2nd chances, with from a private donor and the Open up Club Founda- life sentences commuted to thirty-twelvemonth terms. All tion, the CRC and Mercy Projection provided "pop up" share one commonality: despite being splendid legal services for people in the BOP who wanted to candidates for a 2d chance, none of them got petition for clemency nether the Initiative. 5 one. Role II details the Initiative's procedures, as well the statistics associated with grants and deni- als. Part 3 makes recommendations for future i United States Sentencing Commission, An Analysis of the Implementation of the 2014 Clemency Initiative, Sept. 2017 at Administrations regarding the exercise of the The Eye on the Administration of Criminal Law 1 (hereinafter, "USSC Report"), https://www.ussc.gov/sites/ default/files/pdf/research-and-publications/enquiry-publica- clemency power, based on lessons learned hither. tions/2017/20170901_clemency.pdf. 2 Press Release, U.S. Dep't of Justice, Announcing New Clemency Initiative, Deputy Attorney General James M. Cole Details Wide New Criteria for Applicants, Apr. 23, 2014 (hereinafter, "Cole Press Release"), https://www.justice.gov/opa/pr/announcing- new-clemency-initiative-deputy-attorney-general-james-thou- 6 USSC Report, supra at i. cole-details-broad-new. vii Id. 3 Ibid. 8 Alice Li, Eric Holder Discusses How Many Inmates Might 4 U.Due south. Section of Justice, Charity Initiative, Be Released Under Clemency Initiative, Wash. Mail, Dec. https://www.justice.gov/pardon/clemency-initiative. four, 2015, https://www.washingtonpost.com/video/national/ v Erin R. Collins, The Administration of Hope, 29 Fed. Sent'g. eric-holder-discusses-how-many-inmates-might-be-released- R. 263, 264 (June 2017), http://fsr.ucpress.edu/content/ under-clemency-initiative/2015/12/05/5259c596-9ad5-11e5-aca6- ucpfsr/29/5/263.total.pdf. 1ae3be6f06d2_video.html?utm_term=.5b3f3c2a0486. five
Role I Who Got Left Behind? For 1,696 people, the Initiative remedied draco- nian sentences (though some all the same ended upward with many years to serve before existence eligible for release, and with sentences still asymmetric to their crimes). For 7,881 people—3,469 of whom were convicted of drug offenses—their clemency peti- tions were never decided on and remain pending earlier OPA. And for the bulk of the 24,000 individuals who petitioned for clemency under the Initiative, their petitions were denied.9 Behind these statistics are human stories that illustrate not but the arbitrariness of the Initiative, but too the flaws in its design and administration, and why a renewed commitment to clemency is still so urgently needed. The Mercy Lottery: A Review of the Obama Assistants's Clemency Initiative 9 The CRC and Mercy Project filed petitions for many of these people. Likewise, other pro bono attorneys, and in some cases, the incarcerated people themselves, filed petitions with compel- 6 ling facts in favor of clemency.
Robert Michael Jordan In 2005, Robert Michael Jordan was sentenced to 240 history of violence, an enhancement would almost months in prison for a cleft conspiracy. At the time certainly never have been filed. Taken together with of his arrest, he had a little over 58 grams of scissure the downward revision of the Sentencing Guide- cocaine. His case presents a prime example of how lines, which reduced Hashemite kingdom of jordan's crime level to the prosecutorial discretion and harsh drug sentencing original statutory minimum (120 months), it is not laws can ratchet upwards a person'due south sentence beyond difficult to conclude that Jordan'due south sentence would anything proportionate to their crime. In Robert'due south be substantially lower. case, prosecutors successfully argued that he was Moreover, since his imprisonment, Robert has responsible for selling a much larger corporeality of taken extraordinary steps to rehabilitate himself. crevice (between 150 and 500 grams). To make this He earned his GED in 2008 and has taken over 300 argument, they relied on statements from co-defen- hours of classes, including anger direction, dants and other witnesses. It was parenting, child development, unclear why the United states of america and habit bug. Signifi- Probation Officer accepted pros- cantly, he has never earned a ecutors' version of events, given unmarried disciplinary infraction that one witness was unable to over his eleven years in prison, which quantify the amount that Robert is remarkable considering the sold, and another co-defendant adjustment associated with stated that he purchased simply transitioning to prison house. His past betwixt 7 to 14 grams of fissure progress reports as well evaluate from Mr. Robert. him as "Outstanding." Although Robert never com- Despite existence incarcerated, mitted or threatened violence, Robert has as well worked to primary- was non a leader, prosecutors nonetheless was not tain a relationship with his family. He has been a leader, doubled Jordan's sentence from 10 to 20 married to his married woman for viii years and has stiff years. This enhancement was based on Jordan's relationships with his children and stepchildren. unmarried prior drug offense, for which he received a Instead of shying away from his past, Robert has suspended sentence at the age of seventeen. As a shared his story with them to ensure that they issue, the court sentenced Robert to 240 months, make better decisions. His wife credits Robert with which was essentially longer than all merely one making their three sons laurels students and for of his co-defendants, despite the fact that Hashemite kingdom of jordan beingness a positive influence in their lives. Jordan'south was a modest player in the conspiracy. daughter described their potent "father-daughter" Robert'due south sentence nearly certainly would be bond built through letters, cards, emails, and visits. lower had he been sentenced during the Initia- Robert was the paradigmatic clemency candi- The Middle on the Administration of Criminal Police force tive. First, Chaser Full general Eric Holder directed ten date: he was charged with a scissure criminal offense, and he prosecutors to cease filing enhancements unless a was sentence would have been shorter had he been person is involved in conduct that makes the case sentenced during the Initiative. Just on January appropriate for astringent penalties. Given Robert'due south xiii, 2017, President Obama denied Jordan's peti- low position in the conspiracy, and that he had no tion. His estimated release date is Baronial 2022, when he will exist 49 years erstwhile. He will have spent nearly 204 months, or xx years, in prison for a 10 On May 10, 2017, Attorney General Jeff Sessions rescinded nonviolent drug offense. ROBERT MICHAEL JORDAN sure Obama-era DOJ charging policies, directing prosecutors to charge the most serious, readily provable offense, including charging offenses that carry mandatory minimums. Yet, at the time Robert applied for charity, the charging policy in performance meant that prosecutors would not take filed a sentencing enhancement in his case. vii
Lori Kavitz In 2002, United States Commune Judge Marking Ben- themselves are no longer mandatory—meaning nett remarked that, in sentencing Lori Kavitz to Judge Bennett would not be forced to mitt out 292 months for a methamphetamine conspiracy an "idiotic" or "unjust" sentence. In addition, the within 1,000 anxiety of a public park or playground,xi methamphetamine guidelines under which Lori it was "idiotic, arbitrary, unduly harsh, and grossly was sentenced accept come up nether attack as excessive, unfair" and said information technology was one of considering they were non based on many "unjust sentences" he was empirical data or national expe- forced to impose. Lori did not rience. Taken with Judge Ben- 12 appoint in violence, was non the nett'due south comments at sentencing leader of the operation, and did and his letter of the alphabet supporting Lori's not play whatever role in manufac- clemency petition, it is not hard turing the drugs, and there was to encounter how her judgement would never whatever proffer that she be essentially shorter today. had ties to a larger drug orga- Moreover, Lori did not requite nization. Notwithstanding, as was the up in the face up of this substan- law at the time, the sentencing tial sentence. Instead, she has court's hands were tied. Despite taken advantage of numerous his obligation to follow and apply the law, Guess BOP classes and programming. Her educational Bennett told the parties that he didn't "have to agree transcript is all-encompassing and includes over 170 hours with it, and I don't have to remain silent. Matter of of participation in the Alternatives to Violence fact, I tin can't remain silent and operate in proficient faith. program (including becoming a plan leader), So next to you lot and your family, there's nobody that numerous courses to prepare her for a hereafter career, regrets imposing this sentence more than I practice." and courses in Spanish, German language, and current affairs. When Lori applied for charity, Approximate Ben- She has likewise taken on leadership roles, facilitating nett wrote to OPA, telling them that her sen- classes and conflict resolution programming, and tence "screams out to me, for mercy and earned tutoring others in ESL courses and assisting them in charity." Judge Bennett's words are well taken: 13 attaining their GEDs. Notably, she has also gained Lori is serving a sentence that would nearly the trust of BOP officials: later on receiving her Com- certainly be substantially lower today. First, the mercial Drivers' License in 2014 (post-obit 1200 The Mercy Lottery: A Review of the Obama Administration's Clemency Initiative Us Sentencing Committee lowered hours of training), Lori was promoted to "town the drug guidelines in 2014, and the guidelines driver." In this position, she transports incarcerated people to doctors' appointments and runs errands 11 Many states take begun reconsidering drug-free school for the prison house exterior of camp. zone laws in an effort to cease long sentences for irenic Despite support from her sentencing judge and drug offenses and reduce mass incarceration. See, e.yard., http://www.pewtrusts.org/en/research-and-analysis/blogs/country- her own boggling rehabilitation, on Jan line/2016/09/15/why-states-are-taking-a-fresh-look-at-drug- 6, 2017, Lori'due south petition was denied. Her estimated free-zones; https://www.tennessean.com/story/news/2017/12/08/ nashville-council-members-urge-relief-man-sentenced-under- release appointment is September 15, 2018, i month earlier drug-free-schoolhouse-zone-police/934617001/; her 60th birthday. She will have served a fiddling over 12 Although she was given an enhancement for possessing a firearm, no weapon was ever found, and in that location was no evidence 194 months, or 16 years, in prison for a nonviolent presented at sentencing that she had ever used a weapon. drug law-breaking. Lori Kavitz Executive Charity Petition, June 28, 2015 (on file with author). AMY POVAH, Tin-DO Charity 13 Tana Ganeva, She Got 24 Years For Her Boyfriend's Meth. Fifty-fifty Her Sentencing Gauge Supports Clemency, launder. post, Nov. 29, 2016, https://www.washingtonpost.com/news/the-watch/ wp/2016/eleven/29/she-got-24-years-for-her-boyfriends-meth- even-her-sentencing-gauge-supports-clemency/?utm_ eight term=.343615679dcd.
Chad Marks Chad Marks grew upwardly in Rochester, with parents who GED program to other people in prison, as well suffered from drug and alcohol habit. At the age equally a seminar on alternatives to violence, and he of three, his mother left his calumniating father, who shot co-authored a prison reentry program, "Ascent." BOP at them as they left. Eventually, she married a human being staff accept praised his work assisting others in prison. who sold drugs. At some point, Republic of chad began sell- In fact, Chad assisted another person with whom ing drugs and became involved he was incarcerated with his selling cocaine. Republic of chad exercised clemency petition, which was his right to get to trial, and in eventually granted by President March 2008 he was sentenced Obama on January 19, 2017. to 40 years in prison. The sen- In October 2016, Chad wrote tence was a outcome of "stacking" President Obama a letter almost together mandatory minimums prison, rehabilitation, and sec- for two charges related to pos- ond chances. President Obama sessing a weapon. Notably, pre- wrote dorsum, conveying his conventionalities trial plea discussions between that even people who make Chad'south attorney and prosecutors significant mistakes accept the revealed that the latter was will- capacity to modify and posi- ing to offer Chad x or 20 years—it was merely when tively impact the lives of others, and that he was Chad opted for trial that a "trial penalty" in the form trying to brand the justice system one that rehabili- of the firearms charges were added. This do tates and allows people to forge a brighter futurity of adding charges to coerce plea bargains or other- ahead. Unfortunately, this take chances was not given wise punish people for going to trial, has since been to Chad. On January eighteen, 2017—the same day the discouraged past AG Holder, and then it is highly unlikely 14 inmate whom Chad assisted received clemency— prosecutors would have added those charges during Republic of chad's petition was denied. His projected release the Initiative's time frame. date is March 12, 2038, when he volition be nearly threescore Chad's' rehabilitation has been remarkable. He years old. He will accept served over 420 months, or has completed more than twenty life skills courses, every bit 35 years, in prison house for a nonviolent drug offense. well equally personal development courses, such as anger management. He at present teaches a fast-track The Center on the Administration of Criminal Law AMY POVAH, Tin can-Practice Clemency fourteen See Dep't of Justice Memorandum, Dep't Policy on Charging and Sentencing (May nineteen, 2010), https://www.justice.gov/sites/ default/files/oip/legacy/2014/07/23/holder-memo-charging- sentencing.pdf (directing prosecutors not to file charges to exert pressure to plead). nine
Seth Cox Seth Cox began using methamphetamine at the he chose to tackle his drug addiction through drug age of twelve. He sold whatsoever he could to sup- education programming, and he has taken courses port his addiction, from small amounts of drugs varying from financial literacy to communications. to household items. Eventually, Seth plant his Seth worked hard to prepare himself for life later manner to a methamphetamine producer and sup- prison house, enrolling in a resume and task skills course plier. Over the adjacent two years, and working to become a certi- he agreed to get supplies for this fied welder. He has researched person in exchange for meth- how to brand his welder dream amphetamine, which he used a reality, even speaking with and sold to others. At that place was his BOP Didactics Supervisor no indication Seth ever fabricated to coordinate eventual reentry the drugs himself—or that he efforts with outside organiza- was present when it was made. tions. Seth also works as a lead Nor were in that location allegations of technician in the maintenance violence, or that Seth was some- section, where he has how a leader in the arrangement. earned the trust of his supervi- Instead, information technology appeared that Seth's sor, who complimented him on drug habit was a major factor in his involve- his difficult work and diligence, going so far equally to say ment. Seth was convicted and given a 300-month that he would hire Seth outside of prison. Finally, sentence, which was later on reduced to 262 months. Seth has recommitted himself to his family, includ- If he were sentenced today, Seth would benefit ing his fifteen-year-quondam girl. He has taken parenting from the Guidelines' across-the-board reduction, classes to improve himself, and he hopes to get likewise every bit the increased judicial scrutiny given to the the parent she deserves. methamphetamine Guidelines, which has resulted On September 30, 2016, Seth was denied clem- in judges giving an increasing number of below- ency. His projected release appointment is July 20, 2025, Guidelines range sentences over the past v years. when he will be 44 years old. He will take served What is about striking is how Seth turned his life more than 228 months, or xix years, in prison for a around in prison house. Facing a long prison sentence, nonviolent drug offense. The Mercy Lottery: A Review of the Obama Administration's Charity Initiative SETH COX x
LaVonne Roach Equally a kid, LaVonne Roach'southward mother abused her, and abuse she suffered and her life-long habit she began using drugs at the age of xi to cope with to drugs—would also be compelling grounds for the misery of her home life. She was in a cord of a Booker variance.xvi Like the other people whose calumniating relationships and had a child at the age of stories are told here, LaVonne did not give up or xiv. It was this blueprint—of drug habit and the quit in the face of a long prison sentence. Instead, bike of abuse—that contributed she took it equally an opportunity to to her determination to assistance her then- rehabilitate herself. She enrolled fiancé distribute methamphet- in a non-residential drug treat- amine. In 1998, LaVonne was ment program (fifty-fifty after being sentenced to 360 months for her turned down from the residen- role in this conspiracy. Despite tial programme due to the length prove at trial that LaVonne of her sentence), and she com- was following her fiancé'due south orders, pleted thousands of hours of and that the conspiracy splin- educational programs, includ- tered afterward her fiancé died, the ing obtaining her GED. LaVonne court enhanced her sentence also prepared for her eventual afterward finding that she was a release by taking professional leader in the conspiracy. In making this conclusion, courses, earning certificates in office systems and there was no evidence that the court considered any documents, bookkeeping, and completing a two-twelvemonth of the sentencing guideline factors relevant to this paralegal program. She also committed to personal decision.15 Instead, the court accepted state- evolution, enrolling in weekly therapy and self- ments fabricated by cooperating witnesses, who testified aid groups, and her psychologist recommended to the unremarkable fact that Roach bought and her to participate in the CHOICES plan, which sold methamphetamine—not the type of conduct allows her to mentor high-risk youth. that generally merits a sentencing. LaVonne was not on President Obama's final Despite the court's barebones findings, in that location is a listing of clemency grantees, and her petition remains high likelihood that LaVonne would take received pending with OPA. Her estimated release appointment is a lower sentence today. Aside from the Guidelines' January 28, 2024, when she will be 59 years erstwhile. reduction of offense levels for methamphetamine, She volition have spent well-nigh 27 years in prison for a LaVonne'southward criminal history was miscalculated, result- nonviolent drug offense. ing in a higher criminal history category (category III, instead of category II). In reality, her only prior convictions were for three misdemeanor shoplift- ing crimes, committed over ten years earlier she The Center on the Administration of Criminal Law was sentenced. LaVonne's personal history—the 15 These factors include (i) whether Roach had decision- making authority, (ii) the nature of her participation in the AMY POVAH, Can-DO CLEMENCY criminal offence, (3) whether she recruited accomplices, (iv) whether she had a right to a larger share of profits, (5) the degree of her participation or planning in the crime, (six) the nature and scope of her illegal action, and (vii) the caste of control- 16 In United States five. Booker, 543 U.S. 220 (2005), the Supreme ling authority she had over others. See Federal Sentencing Courtroom held that the Guidelines were merely advisory, opening the Guidelines Manual § 3B1.1 (2016), https://www.ussc.gov/ door for judges to accept into business relationship personal circumstances guidelines/2016-guidelines-transmission/2016-chapter-3#NaN. when arriving at a judgement. xi
Robert Shipp In 1988, Robert Shipp was an honor student in loftier Robert has at present spent nearly half his life in school when his older brother was stabbed to death. prison. He has missed his daughter abound into an Information technology was around this point when, according to Shipp's adult, now with a family unit of her own, and he missed mother and sister, he began having trouble in his the death of his father, with whom he was very close. life. Somewhen, that problem led Robert to par- Despite these hurdles, Robert has conducted him- ticipate in a conspiracy to sell cocky admirably in prison even every bit crack cocaine. Even though he he was moved between 11 dif- was but involved for five brusk ferent prisons. His BOP prog- months, Robert was sentenced ress reports note his positive to life in prison (which was later aligning and good rapport cut to 360 months). In another with staff, as well every bit good work example of how disproportion- reports. Robert has participated ate Robert's judgement was, the in over 85 different classes in a sentencing court expressed dis- wide diverseness of subjects, from belief at the fact that the sup- completing a college grade pliers in this conspiracy were with a 4.0 GPA, to a lifestyle given much shorter sentences. intervention class, where he Robert was sentenced before Booker, and it is was a great student and active participant, besides highly probable that his sentence would be lower today. as a good function model for younger students. Most For ane thing, his sentencing judge, Us importantly, he has maintained a loving and close District Judge Marvin Aspen, expressed disbelief at relationship with his family, who have offered to having to sentence Robert to life, given his young support him and let him work in the family unit business. age and the fact that his co-defendants were older Despite his harsh sentence for what amounted and more involved in the conspiracy, including to 5 months of misconduct, the back up of his recruiting Robert to join information technology. Judge Aspen was simi- sentencing judge and his family, on January 6, larly troubled by the fact that the suppliers in the 2017, Robert was denied clemency. His projected conspiracy were given much shorter sentences of release date is November 26, 2019, when he will 12 and 14 years. In fact, Judge Aspen reiterated his exist 47 years old. Based on a mistake he made that views in a letter to Robert's, which was submitted lasted simply five months, he will have spent 304 The Mercy Lottery: A Review of the Obama Administration's Clemency Initiative in support of Robert's application for clemency. months, or 25 years, in prison for committing a irenic drug law-breaking. VEDA AJAMU 12
Edwin Alvarez Edwin Alvarez's childhood was marked by a father across-the-board reduction ways that Edwin's who abused him until he was fifteen, at which indicate base law-breaking level would exist lower. The ATF prac- Edwin fled home. When his parents divorced, Edwin tice of using reverse stings has also come nether struggled with this, dropping out of high school and increasing scrutiny,eighteen which raises the likelihood drinking and doing drugs. By his access, Edwin that Alvarez'due south gun charge would either be folded knew his life was in "freefall." into a sentencing enhancement, It was during this period that or perhaps not charged at all. he began selling methamphet- In the twelve years that he amine with his girlfriend. In has been imprisoned, Edwin Feb 2006, a confidential has turned his life around, informant who purchased drugs acknowledging that he was no from Alvarez also offered to longer the 21-yr-old child who sell him guns. The informant, idea he knew everything. He working with ATF, engaged in earned his GED, an Associate's a "reverse sting," offering to sell Degree in Accounting and Busi- a number of different guns to ness Administration, and he has Edwin, many of which carried taken a broad range of additional severe mandatory minimum sentences, despite the classes, including courses on parenting, money fact that Edwin was non looking for these specific management, and anger management. His brother, types of firearms. a CPA, offered him a chore if Edwin were released. Alvarez's sentencing guess, The states Dis- He has worked to keep his personal connections trict Courtroom Gauge Mark Bennett was disquisitional of despite beingness incarcerated, maintaining a rela- ATF'south "reverse sting" approach and the possibil- tionship with his son, whom he shares with his ity of "sentencing manipulation,"17 so he initially girlfriend (who was also convicted with Edwin in set an evidentiary hearing on these sentencing the drug conspiracy). In fact, despite the fact that bug. While the hearing was somewhen cancelled, her daughter became involved with drugs through the government agreed to allow Alvarez plead to a Edwin, his girlfriend's female parent wrote a letter of bottom gun charge that carried a lower mandatory back up praising Edwin every bit a loving male parent and the minimum, and Judge Bennett varied substantially, son she never had. sentencing Alvarez to the mandatory minimum of Despite his remarkable turnaround, Edwin's 15 years in prison. petition is nevertheless sitting with OPA. His estimated All things considered, Edwin'south sentence would release engagement is November 18, 2019. He volition have probable exist lower if he had been sentenced at the spent 164 months, or xiii-and-a-half years, in time he applied for clemency. First, the Guidelines prison for a nonviolent drug criminal offense. The Center on the Administration of Criminal Law xviii In 2015, federal litigation over ATF's use of reverse stings was brought in Chicago, where a federal judge criticized the practice as "self-inflicted wounds" that should be "relegated to the dark 17 Judge Bennett'due south reference to "sentencing manipulation" corridors of our past." See Jon Seidel, Approximate Blasts ATF's Stash- refers to the fact that ATF directed the confidential informant House Stings But Declines to Toss Criminal Charges, chicago EDWIN ALVAREZ to sell specific firearms to Alvarez that would trigger higher lord's day-times, Mar. 12, 2018, https://chicago.suntimes.com/news/ sentencing penalties. See Edwin Alvarez Clemency Petition judge-blasts-atfs-stash-house-stings-but-declines-to-toss- Executive Summary, Oct. 21, 2016 (on file with writer). criminal-charges/. 13
Geary Waters In 2002, Geary Waters was sentenced to 360 months ultimately ignored. Geary was repeatedly mugged in prison house for selling crevice and marijuana. The gov- as a teenager by older men in his neighborhood, ernment did non charge him with a conspiracy, and including being held up at gunpoint, causing him he was not accused of using violence or threats of to seek friendship with older men, one of whom violence. Nor were there whatever allegations that Geary ultimately convinced Geary to brainstorm selling drugs. was office of a larger drug trafficking ring or dare. Geary's home life was also challenging, as his par- While Geary did have prior criminal convictions, ents divorced when he was fourteen, and his father none of them involved violence. Geary exercised his was an alcoholic, which fueled arguments and occa- correct to a trial, and two weeks before it was sched- sional abuse betwixt his parents. uled to showtime, the authorities successfully enhanced In the face of his 360-month sentence, Geary his mandatory minimum sentence from ten years to made positive decisions in an effort to rehabilitate 20 years' imprisonment. The enhancement, which himself. He has taken a diversity of courses designed was seemingly triggered past Geary'southward insistence on to develop marketable skills should he be released proceeding to trial, was filed without regard to the from prison. This includes taking over fifty courses fact that Geary was charged with a irenic drug on everything from employability, basic business criminal offence and had no record of violence. Geary's prior finance, and job interview skills, and resume writing. convictions, the bulk of which were for low-level drug Many of these rehabilitative efforts occurred when offenses, including a marijuana confidence, made Geary was housed at FCI Victorville, a federal facility him a career offender, and he was ultimately given notorious for violence.xx In fact, Geary was attacked a sentence of 360 months. there during a riot, which resulted in his but serious Geary, like the other people profiled here, was BOP infraction—for having a "lock in a sock" that a strong clemency candidate. Starting time, he was given he used for protection. This infraction occurred over a sentencing enhancement that no longer aligned x years before Geary applied for clemency. with the principles of the Obama-era DOJ, which Geary also worked hard to maintain strong famil- discourage the apply of enhancements unless someone ial relationships. He has taken courses on parenting is involved in conduct that merits severe sanctions.19 and has continued to be involved in raising his only Given that Geary (i) was not an organizer or leader daughter, despite existence in prison. Although his of a conspiracy (which was not even charged), (ii) daughter was a child when Geary was sent to prison house, did not use or threaten violence, and (iii) had no she wrote that her begetter has consistently sent her The Mercy Lottery: A Review of the Obama Administration's Clemency Initiative ties to a larger organization or cartel. educational letters and news clippings in an effort Second, he was besides sentenced before Booker, to assist her expand her cognition and proceed her which meant that the court was prevented from on the right path. His daughter wrote that she was exercising whatever discretion to sentence Geary below proud of her father for his continuing self-pedagogy the applicative Guidelines of 360 months to life. and his dedication to her, despite the fact that he This meant that Geary's difficult upbringing was has been in prison. Despite all of Geary's difficult piece of work in the xiv years since he was imprisoned, President Obama 19 Former AG Eric Holder issued a memorandum detailing the denied Geary clemency on January xviii, 2017. His factors to consider before seeking a sentencing enhancement. They include (i) whether someone is a leader, organizer, or estimate release date is May 29, 2026. Geary volition exist director in a conspiracy, (ii) if violence was used or threatened, 56 years old and will have spent 26 years in prison (iii) any ties to larger drug trafficking organizations or cartels, and (4) any co-defendant sentencing disparities that could for a nonviolent drug offense. issue if an enhancement is sought. Run into United States Dep't of Justice, Office of the Att'y Gen., Department Policy on Charging Mandatory Minimum Sentences and Recidivist Enhancements in 20 See Alphabetic character fr. E.J. Hurst, Esq. to Comm'north on Safey and Certain Drug Cases at three (Aug. 12, 2013), https://www.justice.gov/ Violence in America'south Prisons at 1-eleven (April. 20, 2005) http:// sites/default/files/oip/legacy/2014/07/23/ag-memo-department- world wide web.victorvillefoia.org/downloads/Hurst_Victorville_Prison_ 14 policypon-charging-mandatory-minimum-sentences-recidivist- Comm_04202005.pdf (detailing violence and security incidents enhancements-in-sure-drugcases.pdf. at FCI Victorville).
Michael Pelletier In 2008, Michael Pelletier was sentenced to life interest in marijuana stemmed largely from without parole for conspiring to import and dis- his emotional response to the fact that he would tribute marijuana. He became involved with mari- never walk again. Michael has since found an outlet juana to alleviate the physical pain and emotional in art every bit an oil painter. The BOP has certified him to stress he suffered after he was crushed by a tractor teach an art form to other people in prison, and he and paralyzed from the waist uses his talent to assist others and downward when he was 11 years sometime. go on himself distracted from When he was involved in dis- his handicap, which restricts tributing marijuana, in that location was his activities and has led to a never whatsoever indication Michael host of physical complications, was violent, or that he had ties including urinary tract infec- to whatever larger drug organization. tions and spasms, astringent osteo- Michael opted to become to trial and porosis that has led to multiple his co-defendants took plea fractures, and foot drop due to deals and cooperated against a lack of physical therapy. him. Michael was the only per- Michael now has been son to receive a life sentence: imprisoned in connection with his half dozen co-defendants received substantially lower his marijuana offense since 2006. Since that fourth dimension, sentences ranging from 24 months to 145 months. his elderly father passed away. He has no children Since his incarceration, Michael has accepted and would like to repair the damage he has done responsibility for his actions. In his petition, he told to order and his family by working in the com- OPA that he wanted to live a productive life, even with munity and using his art talents. Despite having his disability, just that he had gone about it the incorrect served more than twelve years in prison, Michael'southward way. From the benefit of counseling and other pro- petition was never ruled on earlier President Obama gramming he has taken while in prison house, such every bit anger left office. Without further activeness, Michael volition die management, Michael at present understands that his in prison house for a nonviolent drug offense. The Heart on the Administration of Criminal Law AMY POVAH, Tin-Do CLEMENCY 15
Phyllis Hood In 2006, Phyllis Hood was sentenced to 262 months Today, the court would exist required to conduct a in prison for her function in a methamphetamine con- more comprehensive look at Phyllis' characteristics, spiracy, which was driven past her long addiction the nature of her offense. to the drug. The government engaged in the very Phyllis was nearly 54 years old when she entered practice that the AG Holder sought to discourage prison to serve her 21-twelvemonth-plus sentence. Since through its Smart on Crime ini- then, her mother and father tiative: despite having no his- take died. She tried to keep tory of violence or ties a cartels her vocational and job skills or larger drug organizations, the upward-to-engagement in the outcome she is regime filed a sentencing released, taking keyboarding enhancement to double Phyl- and word processing skills. lis' mandatory minimum to Phyllis has also taken command xx years. In a rare move, the of and accepted her responsi- sentencing court, in its state- bility for her habit, which ment of reasons, specifically she has kicked in prison. Phyllis' declined to sentence Phyllis work ethic is as well strong, and to the enhanced mandatory she has consistently received minimum. good work evaluations. BOP staff trust Phyllis to exist Phyllis was an splendid clemency candidate. a driver around the federal penitentiary where she Her sentence would nearly certainly be lower at is incarcerated. Phyllis planned to reunite with her the time she practical for clemency, due to a number brothers in the family unit habitation that her parents one time of factors. First, no reasonable prosecutor would owned—a program that the BOP believes was stable. In file an enhancement today, given Holder's policy fact, the BOP began preparing for Phyllis' eventual discouraging prosecutors from filing sentencing release past submitting a relocation asking to the enhancements. Second, the Guidelines beyond-the- probation function where Hood would be supervised. lath reduction lowered Phyllis' sentencing range. Despite BOP'southward conventionalities that Phyllis was going to become Furthermore, the Guideline for methamphetamine clemency, her petition never received any decision. has increasingly come nether assault by federal Her petition was sent in September 2016, less than judges, with 33.6 percent of sentences below the one month afterwards the DOJ appear an August The Mercy Lottery: A Review of the Obama Administration'south Clemency Initiative Guidelines range. Finally, Phyllis was sentenced ane 2016 cutoff for all petitions. Her projected release year after Booker, and the court fabricated but a passing date is July 28, 2023, when she volition be 68 years reference to whether the sentence was "reasonable." old. She will have served xix years in prison for a nonviolent drug offense. AMY POVAH, Can-DO CLEMENCY sixteen
Craig Cesal In 2003, Craig Cesal was sentenced to life in prison house would almost certainly be lower today, even if pros- for a marijuana conspiracy in which he used his ecutors took the hardline position in response to business to help in transporting marijuana. Up Craig breaching his plea. The beyond-the-board to that bespeak, Craig had never been in trouble and reduction of the drug Sentencing Guidelines meant was a businessman and active customs mem- that Craig would no longer exist facing a mandatory ber. Although he was initially life sentence, and the repeal of offered a plea bargain that would Booker also meant that the sen- have allowed him to admit tencing judge would no longer to a smaller amount of mari- take his easily tied—a signifi- juana and avoid a life sentence, deceit fact, given that about 67 prosecutors pushed for the life pct of marijuana sentences judgement in response to Craig were below the Guidelines breaching his plea agreement range in 2014. at his plea hearing by waver- Craig's conduct while incar- ing when asked about his role cerated has been exemplary. He in the drug conspiracy (despite has taken a number of profes- the fact that probation even so rec- sional development courses, ommended that Craig was responsible for a lesser acted equally a Suicide Lookout Companion for other corporeality of marijuana). Craig was sentenced in a inmates, and became a Eucharistic Minister with pre-Booker world: the prosecutor noted that information technology was the Cosmic Church to be able to counsel other "sad" that the but sentence available was life, and people in prison. Despite the toll that his life sen- the sentencing approximate also acknowledged that his tence took on his family—his children went from hands were tied. As a result, Craig is the only mem- excelling in schoolhouse to barely graduating, and his son ber of his conspiracy who volition die in prison: his ended upwardly homeless and fond to heroin, dying co-defendants take all served their prison terms at 23 while Craig was in prison—Craig has also and have returned home. In fact, one co-defendant tried to maintain a relationship with his daughter. served his term, left prison house and was subsequently Despite his clean record and his commitment to convicted of second crime, served a second sen- rehabilitating himself, Craig's petition was denied tence, and has again returned home. on Nov 29, 2016. He will probable die in prison Craig was a prime candidate for the Initiative. for a get-go-fourth dimension, non-vehement drug offense, involv- As a first-time, non-violent offender without ties 21 ing a drug that is now legal in at least nine states. to any large-calibration drug organizations, his sentence The Eye on the Administration of Criminal Law AMY POVAH, Tin can-Practice Clemency 21 A legally owned and registered gun was institute at Cesal's concern, but the government argued that this should heighten Cesal'southward sentence, because he used his business concern in the conspiracy. Cesal did not have any weapons on him when he was arrested subsequently agreeing to assist in the transport of marijuana. Encounter Craig Cesal Executive Clemency Petition (on file with author). 17
From Life… to Life? For some, the shortcomings of the Initiative were For these people who were given "term" com- not in the denials, but in the grants themselves. As mutations, these grants were bittersweet and in the initiative progressed, the Obama Administra- many respects illusory, because they were withal tion began changing its arroyo to commutations. facing the reality of serving a substantial amount A Usa Today analysis of the President'south 673 grants of time—in some cases up to 22 years—in prison. as of September 2016 showed a precipitous change in Finally, commutation—even from life to a term of strategy: starting in August 2016, many people years—is hard to square with President Obama's whose sentences were commuted were withal left own words, written in a 2016 blog post, that "it merely with a year or more, and in some cases, more than doesn't make sense to require a irenic drug a decade, to serve on their sentences.22 In October offender to serve 20 years, or in some cases, life, in 2016, President Obama announced the commuta- prison."25 It is also frustrating to clemency reform tion of 102 sentences, with only 21 people scheduled advocates who urged that, if the Obama Admin- for release from federal prison in February 2017. istration was shifting its strategy to increasingly The majority of the recipients would not be release grant "term" commutations where people would until after in 2017 or years in the future. 23 all the same be serving portions of their sentence, then the Aside from being a "remarkable departure from Administration should also make larger groups of recent past exercise," the turn toward "term" com- people eligible for relief, even if it only results in a mutations (commuting sentences of people with- curt reduction of a prison sentence.26 out making them immediately eligible for release) appeared to be the Obama Administration'south try to effectively recalculate peoples' sentences using electric current federal sentencing guidelines, and not the harsher sentencing practices that were in effect in earlier time periods.24 The Mercy Lottery: A Review of the Obama Assistants's Clemency Initiative 22 Gregory Korte, Cells Stay Locked After Obama Clemency: President Grants Requests, But Inmates Nonetheless Accept Years To Serve, 25 Posting of President Barack Obama, A Nation of Second usa today, Sept. 16, 2016. Chances, May five, 2016, https://obamawhitehouse.archives.gov/ 23 Ray Locker, Obama Commutes Record Total 774 blog/2016/05/05/nation-second-chances. Sentences, usa todayY, October. 6, 2016, https://www. 26 Josh Siegel, Obama Could Expand 'Unprecedented' Clemency usatoday.com/story/news/politics/2016/x/06/ Push for Prisoners, Daily Signal, Dec. ane, 2016, https://www.dai- obama-commutes-20-more-sentences/91685468/. lysignal.com/2016/12/01/obama-could-expand-unprecedented- 18 24 Korte, supra notation 18. clemency-button-for-prisoners/.
David Vaught In 2010, David Vaught was sentenced to life in Since his incarceration, David has turned his life prison house for his function in a methamphetamine drug around, becoming precisely the blazon of person the ring. At the time of his judgement, he was 43 years Initiative was meant to reward. He has been drug-free old and had been addicted to methamphetamine since entering prison, and he has never had a single since 1984, when he was a senior in loftier school. disciplinary incident in the entire time he has been His addiction drove his deci- incarcerated. He works total-time sion-making, including the in a Unicor factory making cloth- decision to become involved ing for the U.S. Military, and he is in the methamphetamine ring pursuing theological and values that led to his confidence. This and character-based coursework was apparent to his sentencing to one day fulfill his goal of open- guess, the United States District ing a ministry to aid people Gauge Terry R. Ways, who took suffering from drug addiction. the extraordinary pace of writing His teachers take praised him BOP later he sentenced David to as exemplary and one of the tell them that he would never "brightest and all-time" participants. have sentenced him to life in On January 17, 2017, in one of prison if the statute had not required it. Judge his terminal acts of charity, President Obama com- Ways reiterated this view in a letter he submitted muted David'southward judgement to 324 months, or 27 years, in support of David'south clemency, explaining that a in prison. David, who has been incarcerated since life sentence was "disproportionately harsh." May 2009, nonetheless must serve almost 24 years earlier David'southward sentence was all just ensured by the pros- his projected release appointment of November 2032. He ecutor, who extracted a trial punishment when David will be a month shy of his 66th birthday by this exercised his correct to get to trial, rather than plead, as point. While the clemency grant is certainly better all his other co-defendants did. The prosecutor filed than the death sentence David previously received, a new indictment charging only David, and not his it is difficult to reconcile David's grant with the co-defendants, with a higher drug weight, and he Administration's description of charity as given also enhanced David's mandatory sentence to life to people "who are ready to make use … of a second in prison house, thereby tying Judge Means' hands in the chance."27 David will not have his "second chance" process. As a effect, David—who was never a leader opportunity for 16 more years. or manager or supplier and was past all accounts the lowest member of the conspiracy—received a life sentence. The Center on the Administration of Criminal Law 27 Ryan J. Reilly, Obama Commutes 153 Sentences, Pardons 78, in DAVID VAUGHT Clemency Push button, Huffington Post, December. 19, 2016, https://www. huffingtonpost.com/entry/obama-substitution-pardon-clem- ency_us_58581b72e4b0b3ddfd8db881. 19
Marvin Anthony In 2007, Marvin Anthony was sentenced for his role come up close to meeting the factors that the DOJ in a crack conspiracy. The government saw Marvin required before a prosecutor could seek a sentenc- every bit a low-level participant—they did non make whatever ing enhancement. allegations at trial or at sentencing that he should Moreover, since his confidence Marvin has- receive an enhancement for being an organizer or rehabilitated himself. Bated from two low-level leader. Nor did the government criminate or nowadays infractions, over his well-nigh-decade in prison house, he took testify of violence or ties to larger drug organi- all-encompassing personal, educational, and vocational zations or cartels. programming, including obtaining his GED and Yet, despite these facts, the government taking anger management and communication ensured Marvin would die in federal prison house. But classes. Marvin has too recommitted himself to days before his trial was scheduled to start—in a religion, taking several courses on Christianity and movement that looked a lot like a "trial penalty"—pros- the Bible. Rediscovering his faith helped Marvin ecutors successfully enhanced Marvin'southward mandatory bargain with missing the births of his grandchildren, minimum sentence from ten years to life impris- and the death of his son. onment. In enhancing Marvin's sentence to life, He has besides received commendations for his prosecutors relied on ii former drug convictions work as a UNICOR employee, where is a cook and that occurred in 1989 and 1991, which occurred 12 orderly. The BOP has also consistently given him years before Marvin'southward conduct in his federal instance. positive remarks in progress reports, noting that Marvin's judgement was essentially longer than he receives skilful work reports and maintains com- all simply one of his four co-defendants, who were munication with his family. sentenced to terms of 5 years' probation, 60-months, Despite the hardship of prison, Marvin never 70-months, and 360-months. Only one other person lost contact with his family. To the contrary, he received a life sentence. That Marvin received a remained with his fiancée, with whom he had been life sentence when he was not seen as a leader or with since 2001. They share a kid together, and organizer shows the gross sentencing disparity he she wrote a letter of support indicating that Marvin received as a result of the government's decision was also a male parent to her two other children. If he to utilize the trial punishment. had been granted clemency, Marvin would have Marvin met all the factors for clemency. He was returned to his fiancée and their girl, who was charged and bedevilled under the onetime crack cocaine but a toddler when Marvin was sent to prison. The The Mercy Lottery: A Review of the Obama Assistants's Clemency Initiative sentencing disparities. Today, the amount of drugs two of them had dreams of opening a eatery involved in his conspiracy would not even trigger before Marvin left for prison, and they planned to the 10-twelvemonth mandatory minimum; Marvin would kickstart that dream, had Marvin been released. face a 5-twelvemonth mandatory minimum sentence. Nor On October 26, 2016, President Obama com- would prosecutors have been able to reflexively file muted Marvin's sentence from life to 262 months, a sentencing enhancement. Offset, DOJ policy under or almost 22 years in prison house. At the time of the grant, Obama counseled confronting coercing plea agreements Marvin nonetheless had to serve about ten more years in through the threat of enhanced penalties. 2d, prison. Marvin has been incarcerated since 2007 the DOJ announced a policy cabining the utilize of and will have spent most xix years in prison for a sentencing enhancements unless a defendant was nonviolent drug offense involving a drug whose involved in conduct made the instance appropriate for sentencing penalties have been decreased in the severe sanctions. Marvin's comport did not even years after Marvin's conviction. When he receives AMY POVAH, Tin can-DO Charity his "2nd chance," he volition be 61 years old. twenty
whitakerphers1985.blogspot.com
Source: https://www.readkong.com/page/a-review-of-the-obama-administration-s-clemency-nyu-law-8509536
0 Response to "Utah Law Review Lockhart Discretionary Clemency Mercy at the Prosecutors Option"
Post a Comment