Obama’s Clemency Lottery

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Last week, The New York Times reported that President Obama plans to use clemency to free a multitude of nonviolent drug offenders. Everything is pointing to Obama using his clemency powers to free dozens of federal drug offenders, if not more. This will be a historic moment and a new foray into righting the wrongs of the drug war by Obama. He has been working steadily at correcting the draconian drug laws of the past but for many of those in prison it has been too little and too late. His track record in this forum has been spotty to say the least.

The question is, will President Obama give the other 3,200-plus federal prisoners serving life sentences for drugs the same opportunity?

During his first term in office President Obama declined to use his executive clemency powers, instead waiting until the end of his fifth year in office to grant just eight commutations and 13 pardons. In an interview with the Huffington Post, the President blamed the Office of the Pardon Attorney for his dismal clemency record, claiming that those who were overseeing the process—former Bush Administration employees—were only sending him "small-time crimes from long ago," meaning those seeking pardons for sentences already served. Also in the interview, Obama said that he had "revamped" the Office of the Pardon Attorney, and promised to be "more aggressive" with his clemency powers.

But memos from the White House obtained by USA TODAY revealed a different story. President Obama would "very rarely, if ever grant pardons for major drug offenses and guns crimes," said one memo, and during his first 18-months in office, the President knowingly and deliberately allowed the Bush Administration's clemency policies to remain in effect.

It wasn't until July of 2010 that Obama finally sent the Pardon Attorney his own set of guidelines, making only a few minor changes from those of former President George W. Bush. One notable difference was the softening of the former president's stance on drug crimes; Obama is now making clemency eligibility (for drug offenders) "rare only for large-scale drug trafficking offenses in which the applicant had a significant role." (USA TODAY May 1, 2015, "Obama Pardon Policy Revealed")

In April 2014, the Justice Department announced a new initiative to fast-track the clemency process, drafting an eight-point criteria that explains which inmates may be eligible for a sentence commutation. Specifically, inmates must currently be serving a sentence that would be lower today (there has been a series of changes in federal law dating back to 2001 that would substantially lower the sentences of thousands of prisoners currently behind bars); be a nonviolent offender; have no significant ties to large-scale criminal organizations or gangs; have served at least 10 years; does not have a significant criminal history; has demonstrated good conduct in prison; and has no history of violence prior to or during incarceration.

Although the criteria seems clear on its surface, the fact of the matter is, President Obama has already granted clemency to inmates who don't meet the criteria.

To date, President Obama has denied more than 9,000 clemency applications and granted just 38, all of whom were drug offenders. The names and offenses of these individuals can be located here, and a review of LexisNexis, a legal directory and research site, reveals that 18 of the 38 were serving life sentences, two were convicted of separate gun offenses, two were convicted of selling drugs within 1,000 feet of a school, and 12 were career offenders, serving mandatory minimum life sentences for having "three or more" drug convictions.

And then there was Reynolds Allen Wintersmith, Jr., a.k.a Bezel. A known member of the Gangster Disciples (G.D.), Bezel was convicted in a large-scale drug conspiracy and sentenced to life imprisonment for being part of "The Mob," the top five gang leaders of a 20-person conspiracy. According to one inmate who did time with Bezel at the United States Penitentiary in Hazelton, Virginia, but wishes to remain anonymous for fear of gang retribution, "Bezel was on G.D. time," meaning that while incarcerated he was still involved in gang activity. "He used to hustle and do what he had to do to represent his people. He didn't have no clear conduct—he wasn't no 'model inmate.' How’d he get out if they telling us we can't have no gang ties, and we need clear conduct, and can't be no part of no big conspiracy?"

Reynolds Allen Wintersmith Jr., the reputed gang member, has been out of prison for over a year now and has done several interviews. While it's true that there are media reports which suggest that Mr. Wintersmith may have had some political connection that helped his commutation application to find its way into the hands of President Obama, the fact is that Wintersmith free, has turned his life around, and is working with disadvantaged children.

The Clemency Project, a group of experienced criminal defense and non-profit lawyers have teamed up with the Justice Department to expedite the clemency process. Acting as gatekeepers for the Office of the Pardon Attorney by helping those who they believe have a legitimate chance of being granted clemency, and refusing those that don't, but many inmates who appear to meet the criteria are being turned away.

One such inmate was Dennis Hearron, a 75-year-old who has been in prison over 23 years, has no ties to gangs or criminal organizations, was not the kingpin of his conspiracy, and has an exemplary prison record. According to Hearron, the Clemency Project representative who handled his case said that his request for seeking help in preparing a clemency application had been denied but that the decision was not unanimous, implying that there is a panel of sorts who determine which inmate will move ahead in the process.

"The Clemency Project and this criteria of whose petition gets to Obama seems like a big lottery to me," said William Walker, an inmate currently housed at the Federal Institution in Terre Haute, Indiana, who is serving a 15-year sentence for guns and drugs. "They talk about Obama wanting people with clear conduct—people who were told they were never getting out or who had to do years and years in prison with no chance of parole all because we sold some drugs, and [are] supposed to behave, not be mad, and obey the rules. And if we didn't, or if we have prior drug convictions, then the Clemency Project turns us down and Obama won't let us out unless we have inside connections or millions of dollars to spend on a lawyer. It just don't seem right."

Another inmate who is also serving time at Terre Haute for drugs was recently denied by the Clemency Project based on his institutional behavior and criminal history, having three prior drug offenses. "My lawyer told me I was doing 30 years when I plead guilty, and I wouldn't be getting out anytime sooner than 25 years. I was 25-years-old at the time. Of course, I got into fights, and got drunk and got high back then—but that was years ago."

He also said that after being denied by the Clemency Project, he received a notice from FAMM saying to be patient and someone from the Clemency Project would contact him. "I don't think the Clemency Project is very organized,” he said. "But I think their intentions were good." He wished to remain anonymous because he is still hopeful that his clemency application will make its way into the hands of President Obama. "I have a co-defendant who was convicted in the same conspiracy as me, has the same criminal history as me, and has the same institutional record as me but the Clemency Project accepted him and denied me. Then I went and looked up all of the cases of those people Obama released and realized that some were big players—I was just a little guy. That's when I decided to file for clemency by myself."

Shortly after the Department of Justice implemented the new criteria for clemency applicants in 2014, the Federal Bureau of Prisons posted a questionnaire on the inmate electronic messaging system, encouraging all convicted drug offenders who feel they might be eligible for clemency under the new criteria to complete all of the questions. If an inmate wanted an attorney, the questionnaire informed, simply check the box and in due time someone from the Clemency Project would be contacting them.

Needless to say, the Clemency Project received more than 30,000 requests and was completely overwhelmed.

Margaret Love, the former U.S. Pardon Attorney for the Justice Department who served under former Presidents George H. Bush and William Jefferson Clinton, recognizes that more needs to be done. "I know that President Obama is committed to redressing some of the wrongs of federal sentencing, but I think he is going to need to put a system in place for handling hundreds as opposed to dozens of cases that deserve a sentence reduction." (April 1, Huffington Post).

Kenneth Choice, a first-time nonviolent drug offender serving a life sentence feels pretty good about his chances of being released. Not only does he fit the new criteria perfectly, but a lawyer from the Clemency Project has already contacted him and will soon be working on his case. Yet still, he wonders why Obama won't act alone.

"If you read the Commutation Policy it says two reasons why we can apply is severity of sentence and no chance of parole—it doesn't say a thing about clear conduct or prior convictions or nothing else. Then when you watch the news and see everything Obama is doing without Congress—Cuba, letting Gitmo detainees go, letting five million illegal immigrants stay, and so on and so forth, then you stop and think about how there's only less than 4,000 people in here with life sentences for drugs, you have to wonder why Obama just can't do it by himself? What would be so hard [about] reducing everybody's life sentence to 20 years if we haven't hurt no kids, or killed nobody, or ran a major cartel? Obama already said he thinks these kind of life sentences are wrong, so why put everyone through this—why put the Clemency Project lawyers through this when they can be doing something else—and just go take care of it yourself? I don't think it's asking too much to correct an injustice."

The question is, will President Obama give the other 3,200-plus federal prisoners serving life sentences for drugs the same opportunity? Or will he let Congress, an old White House policy, the Justice Department criteria and an over-burdened Clemency Project stand in his way? That remains to be seen. Hopefully, this new initiative by Obama can start righting the tremendous wrongs done by the drug war, a war on America’s people.

Seth Ferranti has been a regular contributor to The Fix since 2012. He most recently wrote about his relapse. He also writes for Vice. He has a book out—The Supreme Team.

Robert Rosso is a federal prisoner serving life for a drug conspiracy. He writes for gorilla convict. This is his first piece for The Fix.

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