Sentencing

Sentenced nearly two decades ago to three life prison sentences for his peripheral role in a crack cocaine deal, Clarence Aaron became a poster child for the inequities and harshness of drug war policing and sentencing policies. His case has garnered attention in media outlets from PBS to Fox News, and he was featured in the 1999 PBS documentary "Snitch."

Aaron, then a linebacker at Southern University in Baton Rouge, introduced the brother of a drug supplier to a cocaine dealer he knew from his high school days in Mobile and was present when a nine-pound cocaine deal went down. Despite his tangential involvement, when federal authorities busted the cocaine operation, Aaron ended up with by far the longest sentence of anyone involved, because the other players cooperated with the government and named him as a major player, and because he refused to testify against his friends.

Now, the 43-year-old Alabamian is becoming a poster child for yet another drug war inequity: the failure of the Justice Department's Office of the Pardon Attorney to promptly and accurately report to the president on requests for pardons and commutations.

In a pair of lengthy investigative reports, the most recent published last Saturday, ProPublica and the Washington Post revealed that when Aaron tried for commutation for a second time in 2008, Pardon Attorney Ronald Rodgers, who is still in the post, failed to convey critical information about his request to the Bush White House, including recommendations from the US Attorney and his sentencing judge that his application be granted. 

"I have reviewed various documents submitted by Clarence Aaron in support of his petition for commutation of sentence and agree that Aaron should receive a commutation of his life sentence," wrote US Attorney for the Southern District of Alabama Deborah Rhodes in her November 2008 memo to Rodgers.

US District Court Judge Charles Butler, Jr., also shifted from an earlier stance of neutrality on Aaron's request to one of support. "Looking through the prism of hindsight, and considering the many factors argued by the defendant that were not present at the time of his initial sentencing, one can argue that a less harsh sentence might have been more equitable," he wrote in response to a motion filed by Aaron’s attorneys.

Via a phone interview with the pardon office, Butler told staff attorney Samuel Morison that Aaron "should be granted relief" immediately by the president. Morison then sent an e-mail to Rodgers telling him what Butler had said and asking whether he should update Aaron's file with the new positions taken by the judge and the prosecutor. Rodgers responded by saying he would take care of it.

He didn't. Instead, he made no new recommendation to the White House and did not revise Aaron's file to reflect the new stances by the judge and prosecutor. Nor did he pass on years of favorable prison reports describing Aaron's rehabilitation or mention an affidavit Aaron filed with the pardons office in 2007 in which he expressed further remorse and asked "for a second chance to be a productive citizen."

The Bush administration, acting on the Office of the Pardon Attorney's recommendation, turned down Aaron's commutation request in December 2008.

When ProPublica showed the statements from the judge and prosecutor to Kenneth Lee, the White House lawyer working on Aaron's case, Lee was mind-boggled. He said that had he seen those statements, he would have recommended a commutation.

"This case was such a close call," Lee said. "We had been asking the pardons office to reconsider it all year. We made clear we were interested in this case."

Aaron isn't alone in getting sub-par treatment from the pardon office. ProPublica and the Post cited a former pardon office lawyer as saying some applicants have been turned down "en masse," with little or no review. But it gets worse. The first ProPublica and Post report on the pardon office, published in December, found that white offenders seeking pardons and commutations were four times more likely to receive them than black ones.

And, as the number of commutation requests has risen along with the prison population, the likelihood of actually winning one has been declining. It was one out of a hundred under Reagan and Clinton, but declined to little more than one out of a thousand under George Bush. President Obama so far has commuted the sentence of one person out of 3,800.

The Office of the Pardon Attorney has been backlogged for much of the last decade, and that may account for some of the problem. When Rodgers took over, he attempted to streamline the office to address the backlog. Instead of having office attorneys review and research each case, he turned them over to paralegals. The result was too often merely a pro forma review.

"The office types up a list of names, along with basic sentencing and offense information for each prisoner, and sends the list to the White House with a note that says the attached cases are meritless and should be denied," Morison said.

Rodgers reverted back to the old system in 2010, but that was too late for Clarence Aaron and the thousands of others summarily rejected by the pardon office. The apparent problems at the pardon office have sentencing advocates calling for changes.

"We need to see some change on several fronts," said Marc Mauer, executive director of the Sentencing Project. "First, the administration needs to look at what's happening or not happening at the Office of the Pardon Attorney, and some of that should include a rethinking of how the pardon process takes place. There are calls for an independent commission to make these recommendations to the president, not an entity within the Justice Department. That's at least worthy of consideration to see what the trade-offs are," he mused.

"Also, the White House should make it clear that to be consistent with its longstanding support or the reform of crack cocaine sentencing, there should be an examination of those older cases currently in prison," Mauer added. "They should consider recalculating those mandatory minimum sentences as if they were sentenced today, to put them in sync with the new law. That would not only be consistent, it could have a substantial effect on the federal prison population."

Mauer's first suggestion echoes one made by former Obama White House counsel Gregory Craig, who told an American Constitution Society panel on the pardons issue last week that the president could eliminate the pardon office by executive order. He suggested a bipartisan review panel reporting directly to the president.

"We cannot improve or strengthen the exercise of this power without taking it out of the Department of Justice," Craig said.

Families Against Mandatory Minimums (FAMM), which has championed Aaron's case as well as many others, called the ProPublica report "extremely disturbing but not surprising." The organization is calling for a congressional investigation and, on Monday, issued a sign-on letter to demonstrate public support for the call.

"Between this report and ProPublica's earlier report on the pardon process, the Pardon Attorney's office has been shown to willfully misrepresent the facts of commutation requests to the President and contribute to a racial imbalance among pardon recipients. The Pardon Attorney's office is not a gatekeeper but a brick wall," said FAMM president Julie Stewart. "Congress should investigate this egregious behavior immediately with oversight hearings. The entire clemency process should be removed from the Department of Justice's control. It is not in the president or the public's interest to have a Pardon Attorney's office that is captive to a prosecutorial agenda, doesn't take clemency cases seriously, and doesn't treat applicants fairly."

FAMM pointed to other cases it said suggested something was seriously wrong with the pardon office.

"We have long believed that the Pardon Attorney's case evaluations have been subjective and misleading," said Stewart. "Now we know that is true in the case of Clarence Aaron. Many other cases are suspect, too. President Obama denied a commutation to Barbara Scrivner, a low-level, nonviolent drug offender who has served 16 years of her 30-year sentence for her minor and addiction-driven role in her husband's methamphetamine activity. Did the Pardon Attorney ever inform President Obama of Scrivner's extraordinary rehabilitation and the support she had from the prosecutors who tried her, the judge who sentenced her, and her congressman? If someone with that much support cannot get a favorable recommendation from the Pardon Attorney, who can?" she asked.
 

"We learned there have been only 12 commutations in the past 12 years, and only one under this president, and at least one derailed under Bush," said FAMM general counsel Mary Price. "And then there are the problems with the pardons. There is a lot more to investigate. I don't see how lawmakers can come to the conclusion there's not a serious problem. Not only Congress, but the administration and the Justice Department ought to be taking notice of this and acting accordingly."

"The letter sent today demonstrates that this story is not going to go away and that DOJ cannot sweep the Office of the Pardon Attorney's disturbing behavior under the rug," said Stewart.

Whether the Obama administration or the Congress will be moved to act on these latest revelations remains to be seen. Meanwhile, Clarence Aaron sits in federal prison, where he will die if he does not win a commutation. He filed a new application in 2010. That one is still pending.

A bill that would ease penalties on some small-time drug offenders has been approved by the Kansas legislature and awaits the governor's signature. The bill, House Bill 2318, won final approval in the House Monday on a 94-23 vote.

The bill would give judges more discretion when sentencing drug offenders for small-time possession or dealing to support their own habits, if they have no more than a single prior conviction on their record.

Under the current Kansas sentencing scheme, drug offenses are determined by a sentencing grid, and drug possession and small-time dealing offenses are considered "presumptively prison" sentences. That means judges currently have to state specific findings if they want to depart downward from the grid by handing out a lesser sentence.

The bill creates a "border box" on the grid, which would allow judges to order drug treatment or a lesser sentence without having to formally justify such a decision.

The bill also creates harsher penalties for big-time drug manufacturing or sales, but legislators said those big cases are more likely to be prosecuted by federal authorities.

Kansas has been wrestling with ways of reducing its prison population in recent years, and passage of this bill is another move in that direction.

Oklahoma Gov. Mary Fallin (R) last Thursday signed into law a bill designed to lower the state's prison population. The state's incarceration rate is first in the nation for female prisoners and third highest for males.

The bill, House Bill 3052, is expected to control the increase in prison growth by increasing substance abuse treatment, reducing violent crime, strengthening supervision, and reducing recidivism. The aim is to reduce prison costs, which have risen 41% in the past decade, while the prison population increased 15% and violent crime decreased 4%.

The bill requires substance abuse and mental health screening of defendants before they are sentenced so those who need treatment will be able to access it. It also requires that all freed prisoners do at least nine months of parole in a bid to reduce recidivism. And it provides for "intermediate revocation facilities" for parole and probation violators short of sending them back to prison. A measure that would have effectively reduced some sentences by allowing good time to accrue from the beginning of the sentence was dropped in the face of legislative opposition.

"Increasing public safety is a top priority of my administration and a primary function of state government. The reforms in HB 3052 will help to reduce crime and ensure our streets are safer for Oklahoma families," Fallin said in a signing statement. "In addition to lowering crime rates, reducing the incarceration rate and giving law enforcement more resources to fight crime, this bill will help us to save taxpayer dollars by helping our corrections system operate in a more efficient and effective way."

The bill was the result of years of effort by House Speaker Kris Steele (R-Shawnee) and Senate President Pro Tem Brian Bingman (R-Sapulpa), who shepherded it through the legislature. It came as part of the Oklahoma Justice Reinvestment initiative, a project of the Council of State Governments' Justice Center designed to enact "smart on crime" policies.

"Today marks the beginning of a tougher, smarter fight against crime," said Steele. "Police will get more resources, offenders will be held more accountable, prisons will have the space to incarcerate dangerous criminals and Oklahoma will be much safer as a result. We’re thrilled to have been part of the unprecedented collaboration across our entire criminal justice system that has delivered this meaningful law to the people of Oklahoma."

"We've made a historic public safety reform that puts Oklahoma's broken criminal justice system back on a sustainable path," said Bingman. "By being both tough on crime and fiscally conservative, this law will reduce violent crime, give crime fighters the tools to do their job and ensure our criminal justice system keeps Oklahoma families and communities safe."

The new law goes into effect November 1.

The Missouri House of Representatives last Thursday approved reducing the sentencing disparity between crack and powder cocaine offenses. The move came as the House approved a larger judiciary bill, which now heads to the Senate.

The disparity in Missouri's crack sentencing law, adopted in 1989 in the midst of drug war hysteria, is the most extreme in the nation. Under the law, a person convicted of selling 2.5 grams of crack cocaine earns the same mandatory minimum 10-year prison sentence as someone selling 425 grams of powder cocaine.

Under the measure approved by the House, it would take the sale of 28 grams of crack to generate that same mandatory minimum sentence.

"I think it's a matter of fairness," House Speaker Steven Tilley (R-Perryville) explained.

The move to address the disparity gained traction after a Sentencing Project report last year highlighted the extreme nature of the Missouri disparity. "Harsh drug penalties like these are a contributing factor to the exceptionally high rates of incarceration and overcrowding in state prison facilities," the report noted.

While the measure had bipartisan support in the House with only one no vote, the judiciary bill's prospects in the Senate are unclear. The bill deals with a variety of other issues, ranging from fees for trial transcripts to guidelines to licensing foster care providers to making the St. Louis circuit clerk position an appointed one, rather than an elected one.