Obama Should Use His Remaining Hours To Deliver On His Clemency Promise

Time really is running out.

As part of the research for my book on federal drug sentencing, I came across the story of a man I’ll call Devon. I detail Devon’s case in the book because it epitomizes the abuses of prosecutorial power that are possible under our current drug laws.  Devon was just a passenger in a drug dealer’s car on the night that dealer was brought down in a federal sting. Despite essentially being at the very wrong place at the very wrong time, Devon was arrested, convicted of conspiracy to sell crack, and then sentenced to life in prison without the possibility of parole.

Despite his tangential connection to this conspiracy, Devon received an immeasurably harsher punishment than the target of the sting, because he declined to plead guilty to the charges. Devon had an eminently triable case, but when he exercised that right to trial, his prosecutor upped the ante to force a mandatory life sentence upon conviction. Devon was acquitted of actually possessing crack for sale—the jury understood that the drugs in the car were not his—but due to the broad reach of the conspiracy statute, he was convicted on that charge.

The sting’s target, who did plead guilty, is about to be released from prison. Devon’s hope for ever leaving prison in his lifetime fades a little bit more with each passing day. That is because Devon’s only chance for freedom rests with his clemency petition to President Obama, whose term is about to end.

Since I first heard of Devon’s story, I have followed his clemency effort. Right away, he was identified by the federal defender’s office in the court where he was convicted as the most deserving inmate in their jurisdiction for relief under Obama’s 2014 clemency initiative. His case still haunted the defense bar, 10 years later, for its extreme disproportionality and for someone with so little culpability, so they forwarded his name to the Clemency Project.

Devon’s clemency attorney put forth a compelling case in his petition, which was filed with the Pardon Attorney’s office in 2015. As she outlined in the petition, Devon has absolutely no history of violence, and was only a low-level drug offender.  Because his sentence was based on punitive threats, made good, against those who go to trial—a practice since condemned as a matter of policy by the Department of Justice—she was able to demonstrate that his sentence would not have been nearly so harsh today, even if he still went to trial. The petition, in short, made crystal clear that Devon fit all of the criteria the Obama administration had devised for worthy candidates, and that he indeed epitomized the kind of person the initiative was meant for.

Since then, Devon has had his hopes dashed upon every pronouncement of clemency recipients. Although he should not yet give up, he does have reason to be concerned. Relatively few cases have been granted clemency out of his district, despite it being one of the most overzealous and punitive jurisdictions in regard to drug cases, and especially crack cases, in the nation. Over the fifteen-year period from 1992-2007, courts in his jurisdiction imposed the second-highest number (and second-highest rate), among the 94 federal districts, of drug sentences that are 30 or more years in length.

This may be because one of the steps in the clemency process allows the very prosecutors who sought the original sentences to weigh in on whether the petitioner deserves relief. This procedural step all but guarantees that candidates from those places with the most egregious practices will be the least likely to garner prosecutorial support. It is asking an awful lot to expect those folks to say they were wrong when they originally prosecuted the case, especially when their actions reflect regularly-used tactics. The risk that comes with this is that people like Devon may be left behind, punished once again for having the geographic misfortune of being prosecuted in an exceptionally punitive district. 

Early on in this clemency initiative, President Obama expressed his commitment to using the clemency authority “where justice, fairness, and proportionality demand it.” Devon’s case demands it. I have faith that the President recognizes this and will devote some of his remaining hours in office to fixing the injustice, unfairness, and disproportionality that characterize cases like Devon’s. But time really is running out. 

 

Mona Lynch is a professor of criminology, law and society at the University of California, Irvine and author of Hard Bargains: The Coercive Power of Drug Laws in Federal Court.

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