Clemency is tougher than getting into Harvard

Original article by Christie Smythe via Medium | Apr 5, 2020

Coronavirus highlights the plight of federal prisoners serving long sentences for nonviolent drug charges. They deserve a path to release.

Meet Charles “Duke Got Next” Tanner. A former undefeated boxer, and a local celebrity in Gary, Indiana. A loving father to his teenaged son, Charles Tanner III. An attentive partner to hisfiancée, Rita. A kind and supportive friend.

Also he is an inmate in federal prison, where he could remain until late 2030. Despite his nearly perfect conduct for the past 16 years, and the army of supporters he has amassed, he was passed over for clemency by the Obama administration.

He is far from unique in that regard. Presidents receive thousands of petitions each year for clemency — either pardons, which expunge a conviction, or commutations which keep the legal findings intact but allow for release from prison. Many come from nonviolent drug offenders serving sentences of 20 or 30 years or more based on mandatory minimums. There is no parole in the federal system, so a commutation is the best many prisoners can hope for. But statistically speaking, it’s harder to secure a commutation than to get into Harvard.

Unwilling to look like they’re handing out too many “get out of jail free” cards, presidents are understandably parsimonious about granting clemency petitions. When they do, they are usually more likely to grant pardons to curry favor with certain constituencies or reward supporters than to offer commutations to politically unconnected felons.

Making matters more difficult, prosecutors are ordinarily given a say over whether a petitioner should receive clemency — essentially allowing the same person who may have built their career on putting you in jail to decide if you should be let out.

“Prosecutors are not in the business of second-guessing their work and agreeing they made a mistake,” Weldon Angelos, a clemency recipient from the Obama years, told me.

“Most of the time they’re very hostile to these petitions, and most of the time they recommend denial.”

Angelos, a music producer, was sentenced in the early 2000s to 55 years in prison for selling $350 worth of marijuana. He faced stiff opposition from prosecutors for clemency, but was eventually able to win a reprieve through the support of several US lawmakers, his judge, and rapper Snoop Dogg.

President Donald Trump has faced criticism for granting very few pardons or commutations, and only to people who were well-connected enough to make their pitch to his inner circle. However, the way things worked before he took office was hardly much better. In the last six administrations, every president received hundreds or thousands of commutation petitions. Most approved just a scant handful. The lone exception was President Barack Obama, who granted a whopping 1,715 commutations. But he received more than 33,000 petitions, making the rate of approval about 5.2 percent. The Harvard acceptance rate, by comparison, was 5.9 percent in 2016.

(Note for simplicity’s sake, I did not include pending petitions in these calculations.)

In some ways, the Trump administration is moving in a more positive direction for petitioners, Angelos noted. The administration recently formed a clemency advisory committee outside of the Department of Justice to review applications. Taking the process out of DOJ is move clemency advocates have long argued was necessary to prevent conflicts of interest.

It’s impossible to say how many of the applicants passed over by Obama were potentially deserving, but we do know that Tanner was among them. So was Patrick Estelle Jones, a nonviolent offender serving a 27-year sentence for cocaine dealing. Jones, 49, a former resident of FCI Oakdale in Louisiana, was the first federal inmate to die of COVID-19 in March as the virus began to ravage the prison system. His death, as well as the deaths of at least four other nonviolent drug offenders amid the pandemic, highlight the need for clemency reform.

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Realities of prison life made it difficult for me to speak directly to Tanner for this piece. I had gotten to know him because I am close with an incarcerated friend of his at the institution where he is housed, FCI Allenwood Low. Corrections officers strenuously discourage prisoners from fraternizing with other inmates’ visitors, so I could not talk to him much in person. Communication restrictions imposed as part of coronavirus containment efforts also complicated matters. During a 14-day lockdown period imposed by the Bureau of Prisons to limit the spread of the virus, inmates at FCI Allenwood Low were banned from using the prison email system or phones.

However, I was moved by Tanner’s plight, and as a former legal news reporter, I could piece together his story from court documents. I supplemented this information via discussions with his fiancee Rita, along with other people who are his supporters. I reached out to the office of Thomas Kirsch, a prosecutor who originally brought the case against Tanner, but did not receive a response. Kirsch is now the US Attorney for the Northern District of Indiana.

Given that this piece is perhaps a bit tough on federal prosecutors, I should say that I got to know several in my past life when I was working as a legal reporter in New York. In general, those I met or saw in action in the courtroom struck me as intelligent, passionate and dedicated to justice. Their power, though, is terrifying. The grand jury process, through which an indictment is obtained, is run by prosecutors. Once a case is initiated, they will fight to win with every tool at their disposal, and their tactics are rarely questioned seriously by judges.

Tanner was caught by federal agents on September 1, 2004 — at the peak of his boxing career — loading what he thought was 15 kilograms of cocaine into the trunk of a Pontiac Grand Am. The sale, which took place in a Walgreens parking lot, was a sting orchestrated with help from a career drug dealer who had been arrested a day earlier. Tanner was immediately taken into custody and hasn’t been home since.

Prosecutors leaned heavily into their case against Tanner, painting him as a life-long criminal. Tanner, who had no prior convictions, and had done nothing violent, considered pleading guilty to buying the drugs. His defense lawyer encouraged him to fight the charges instead. He lost, brutally.

At trial, he was convicted of conspiracy and possession with intent to distribute, and faced a mandatory minimum of 10 years. Although numerous friends and family members, a pastor, coworkers and professionals spoke favorably about Tanner’s character, US District Judge Rudy Lozano sentenced him to the statutory maximum: life.

“I look as to whether or not you were one of the worst offenders of the laws of the United States, and I believe that you were,” said Lozano, a Reagan appointee, during Tanner’s sentencing in 2007. He bemoaned effects on “kids” and “what a high number of people get addicted to these drugs.”

“Maybe some of these sentences will send the message out: ‘Not on my watch.’”

Other defendants charged along with Tanner ended up with far lower sentences. The dealer who set him up got 10 years. Another co-defendant got 20. Another major conspirator got seven years.

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The War on Drugs, as most people know, flourished in the 1980s and 1990s. Old Millennials like me (I’m 37) remember police officers coming to our elementary schools, filling our minds with fear and lurid curiosity about some “drug dealer,” always a shady character in the hypothetical scenario, trying to get us hooked on a litany of dangerous-sounding substances. Of course our real-world experiences did not match those caricatures. The Drug Abuse Resistance Education (DARE) program was later proven to do virtually nothing to prevent drug and alcohol use by naturally curious adolescents.

At the same time, Congress was passing tough laws imposing harsh sentences of 10 years to life for the possession and distribution of a variety of recreational drugs. We now know that those laws, likewise, did very little to curb the availability of illegal substances. They did, however, put many people — especially minorities — in jail for a very long time. Nearly half of all federal inmates are currently in prison for drug offenses, and roughly two thirds of inmates are black or Hispanic.

Thanks to other criminal justice legislation in the 1980s and 1990s, there was also limited chance for any of these prisoners to get out ahead of schedule, regardless of whether they had been rehabilitated. The 1980s saw the imposition of federal sentencing guidelines which were at first mandatory and intended to correct disparities. Then, after they seemed unduly harsh and restrictive to many judges, they became advisory — allowing disparities to persist anyway. Alongside the adoption of the guidelines, federal parole was abolished.

That’s right: Abolished. Instead of having a standardized process, the type that exists in many state corrections systems, where inmates come before a board to be regularly evaluated about whether they need to continue to be incarcerated, federal prisoners are stuck in jail for almost all of their sentences. About 15 percent is shaved off for “good time,” but this can be added back on for any number of rule infractions, from fighting, to possessing contraband to giving a gift to another inmate, to taking food out of the cafeteria.

Federal prisons currently house about 74,000 drug offenders, many of whom are serving long sentences triggered by amounts of drugs at issue and the possibility of a gun being present, among other factors. Through a practice known as “924(c) stacking” the government can greatly multiply penalties for a single crime, even for a first-time offender, by breaking the incident into a number of separate charges.

Read the full article here.