Justice For None:
How the Drug War Broke the Legal System

The Washington Post

Copyright

Diversion Books
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Copyright © 2015 by The Washington Post
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First Diversion Books edition December 2015
ISBN: 978-1-68230-317-7

Table of Contents

Introduction

The painful price of aging in prison

Against his better judgment

From a first arrest to a life sentence

Unlikely allies

Slow steps to freedom

A ‘virtual get-out-of-jail-free card’

Softening sentences, losing leverage

Struggling to fix a ‘broken’ system

President Obama commutes sentences of 95 federal drug offenders

Obama’s clemency list brings joy to the lucky and anguish to the disappointed

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Introduction

When tough-on-crime laws passed 30 years ago during an era of drug-fueled violence, they were supported across the political spectrum. The subsequent “war on drugs” sent non-violent offenders to prison for decades and, in some cases, life.

As a result, the nation’s prison and jail population today is 2.3 million, more than quadruple the number that were incarcerated in 1980. The United States has less than 5 percent of the world’s population, but nearly a quarter of the world’s prison population.

One in 100 adults is behind bars in America. As many as 100 million American adults now have criminal records.

Sixty percent of prisoners today are people of color. One in three black men face the likelihood of imprisonment, and black men are six times as likely to be incarcerated as white men, while Hispanic men are 2.5 times as likely.

Washington Post reporters, in a series of revealing and wrenching stories throughout 2015, unlocked the prison gates and allowed readers to experience the human devastation wrought by sentencing policies now under scrutiny.

Those stories, collected together in this e-book, paint an unnerving portrait of the American justice system: Judges who question the harsh sentences they have little choice but to impose. Prosecutors who are skeptical about the push for reform and fear they will lose a crime-fighting tool. Prisoners seizing a second chance, and others desperate for the hope of one. A rare inside look at how prisons have become nursing homes for sick and dying inmates. And families on both sides of the prison divide — those who have lost a family member to a life sentence and those whose lives have been ruined by the drug epidemic.

The federal Bureau of Prisons, at almost every turn, resisted the requests of our reporters and photographers to meet with inmates. Behind every chapter of this eBook is an excruciating negotiation for rare access to the federal prison system. One example: It took two months — and a sit-down with BOP officials — for the Post to get approval to interview and photograph Sharanda Jones, a woman serving a life sentence for her first offense. Jones was strip-searched before the interview, which was held in a waiting room under the watch of prison guards. After several stories, the reporters won the trust of BOP officials, who finally allowed more access.

In 2009, The Obama administration stopped using the term “War on Drugs,” saying the “war” approach to America’s drug problems was counterproductive. But now, nearly 2½ years after the administration officially promised to fix the “broken” legal system, Obama’s criminal justice overhaul has yielded mixed results. Post reporters closely scrutinized the process of unwinding the drug war, finding that the fixes often created new problems rather than solving the old ones.

Obama and former Attorney General Eric H. Holder did help launch a national conversation about mass incarceration. Last year, federal prosecutors pursued mandatory minimum sentences at the lowest rate on record — and sentencing reform legislation with bipartisan support has been introduced in Congress. And, following a 2005 Supreme Court decision, judges have much greater discretion when they mete out punishment.

But some prosecutors are continuing to resist changes to mandatory minimum sentencing, and the new leniency can have unintended effects.

A new California law, called Proposition 47, was intended to reduce crowding in the state’s overwhelmed prisons, save money and treat low-level criminals with more compassion. But along with the successes have come other consequences, which police departments and prosecutors refer to as the “unintended effects”: Robberies up 23 percent in San Francisco. Property theft up 11 percent in Los Angeles. Certain categories of crime rising 20 percent in Lake Tahoe, 36 percent in La Mirada, 22 percent in Chico and 68 percent in Desert Hot Springs.

It’s too early to know how much crime can be attributed to Prop 47, police chiefs caution, but what they do know is that instead of arresting criminals and removing them from the streets, their officers have been dealing with the same offenders again and again.

The White House’s criminal justice reform also has not yet made a significant dent in the number of inmates crowded into federal prisons. In the key executive action that Obama can take to undo unfair sentences, he has granted clemency to only 184 inmates of the thousands of federal drug offenders who have applied for release under a new Justice Department initiative. Only 25 of the 531 elderly inmates who have applied for compassionate release under the new policy have received it.

But Holder says he thinks “people just need to be patient.”

Obama “has talked about these issues in ways that no other president ever has,” Holder said. “I think the test will ultimately be, where do we stand at the end of the president’s term opposed to where do we stand now? He still has months to go.”

The painful price of aging in prison

Even as harsh sentences are reconsidered, the financial — and human — tolls mount

By Sari Horwitz
May 2, 2015

Twenty-one years into his nearly 50-year sentence, the graying man steps inside his stark cell in the largest federal prison complex in America. He wears special medical boots because of a foot condition that makes walking feel as if he’s “stepping on a needle.” He has undergone tests for a suspected heart condition and sometimes experiences vertigo.

“I get dizzy sometimes when I’m walking,” says the 63-year-old inmate, Bruce Harrison. “One time, I just couldn’t get up.”

In 1994, Harrison and other members of the motorcycle group he belonged to were caught up in a drug sting by undercover federal agents, who asked them to move huge volumes of cocaine and marijuana. After taking the job, making several runs and each collecting $1,000, Harrison and the others were arrested and later convicted. When their sentences were handed down, however, jurors objected.

“I am sincerely disheartened by the fact that these defendants, who participated in the staged off-loads and transports … are looking at life in prison or decades at best,” said one of several who wrote letters to the judge and prosecutor.

In recent years, federal sentencing guidelines have been revised, resulting in less severe prison terms for low-level drug offenders. But Harrison, a decorated Vietnam War veteran, remains one of tens of thousands of inmates who were convicted in the “war on drugs” of the 1980s and 1990s and who are still behind bars.

Harsh sentencing policies, including mandatory minimums, continue to have lasting consequences for inmates and the nation’s prison system. Today, prisoners 50 and older represent the fastest-growing population in crowded federal correctional facilities, their ranks having swelled by 25 percent to nearly 31,000 from 2009 to 2013.

Some prisons have needed to set up geriatric wards, while others have effectively been turned into convalescent homes.

The aging of the prison population is driving health-care costs being borne by American taxpayers. The Bureau of Prisons saw health-care expenses for inmates increase 55 percent from 2006 to 2013, when it spent more than $1 billion. That figure is nearly equal to the entire budget of the U.S. Marshals Service or the Bureau of Alcohol, Tobacco, Firearms and Explosives, according to the Justice Department’s inspector general, who is conducting a review of the impact of the aging inmate population on prison activities, housing and costs.

“Our federal prisons are starting to resemble nursing homes surrounded with razor wire,” said Julie Stewart, president and founder of Families Against Mandatory Minimums. “It makes no sense fiscally, or from the perspective of human compassion, to incarcerate men and women who pose no threat to public safety and have long since paid for their crime. We need to repeal the absurd mandatory minimum sentences that keep them there.”

The Obama administration is trying to overhaul the criminal justice system by allowing prisoners who meet certain criteria to be released early through clemency and urging prosecutors to reserve the most severe drug charges for serious, high-level offenders.

At the same time, the U.S. Sentencing Commission, an independent agency, has made tens of thousands of incarcerated drug offenders eligible for reduced sentences.

But until more elderly prisoners are discharged — either through compassionate release programs or the clemency initiative started by then-attorney general Eric H. Holder Jr. last year — the government will be forced to spend more to serve the population. Among other expenditures, that means hiring additional nurses and redesigning prisons — installing showers that can be used by the elderly, for instance, or ensuring that entryways are wheelchair-accessible.

“Prisons simply are not physically designed to accommodate the infirmities that come with age,” said Jamie Fellner, a senior advisor at Human Rights Watch and an author of a report titled “Old Behind Bars.”

“There are countless ways that the aging inmates, some with dementia, bump up against the prison culture,” she said. “It is difficult to climb to the upper bunk, walk up stairs, wait outside for pills, take showers in facilities without bars and even hear the commands to stand up for count or sit down when you’re told.”

For years, state prisons followed the federal government’s lead in enacting harsh sentencing laws. In 2010, there were some 246,000 prisoners age 50 and older in state and federal prisons combined, with nearly 90 percent of them held in state custody, the American Civil Liberties Union said in a report titled “At America’s Expense: The Mass Incarceration of the Elderly.”

On both the state and federal level, the spiraling costs are eating into funds that could be used to curtail violent crime, drug cartels, public corruption, financial fraud and human trafficking. The costs — as well as officials’ concerns about racial disparities in sentencing — are also driving efforts to reduce the federal prison population.

For now, however, prison officials say there is little they can do about the costs.

Edmond Ross, a spokesman for the Bureau of Prisons, said: “We have to provide a certain level of medical care for whoever comes to us.”

Except for the loud clang of heavy steel security doors that close behind a visitor, the Butner Federal Medical Center in North Carolina feels nothing like the prisons portrayed on television and in movies.

Elderly inmates dressed in khaki prison uniforms are not locked up during the day, but instead congregate with each other in their wheelchairs, wait for treatment in clinics and walk, sometimes with canes or walkers, through their living quarters.

Signs hang from the ceiling, directing prisoners to various units: “Urgent Care,” “Mental Health,” “Surgery,” “Ambulatory Care, “Oncology.”

“This facility mirrors a hospital more than a prison,” said Kenneth McKoy, acting executive assistant to the warden at Butner, a prison about 20 minutes northeast of Durham. “We provide long-term care.”

The facility is the largest medical complex in the Bureau of Prisons, which has 121 prisons, including six that have medical centers. With more than 900 inmates in need of medical care, Butner even provides hospice-like care for dying inmates.

In his “cell” on a recent day, Michael E. Hodge lay in a hospital-like bed where he spent his days mostly staring at the television. A prison official had just helped him get out of his wheelchair. A prison employee delivered his meals. He could hardly keep his eyes open.

In 2000, Hodge was convicted on charges of distribution and possession of marijuana and possessing a gun, and was sentenced to 20 years. When a Washington Post reporter visited Hodge in mid-April, he was dying of liver cancer. He died April 18, prison officials said.

“Tell my wife I love her,” said Hodge, who said he was in great pain.

Many prisoners at Butner are as sick as Hodge was, McKoy says.

“Why are we keeping someone behind bars who is bedridden and needs assistance to get out of bed and feed and clothe himself?” asked Fellner, of Human Rights Watch. “What do we gain from keeping people behind bars at an enormous cost when they no longer pose any danger to the public if they were released?”

Hodge submitted at least four requests for compassionate release over the past few years, but none were approved by officials, according to his ex-wife Kim Hodge, whom he still referred to as his wife.

“The man is 51 and dying,” Kim Hodge said in an interview last month. “He never killed nobody, he’s not a child molester, he’s not a bad person. Now he’s going to die in there.”

Taxpayers are increasingly picking up the tab for inmates who received lengthy mandatory sentences for drug offenses and have since aged and developed conditions that require around-the-clock medical care.

The average cost of housing federal inmates nearly doubles for aging prisoners. While the cost of a prisoner in the general population is $27,549 a year, the price tag associated with an older inmate who needs more medical care, including expensive prescription drugs and treatments, is $58,956, Justice Department officials say.

At Federal Medical Center Devens, a prison near Boston, 115 aging inmates with kidney failure receive treatment inside a dialysis unit.

“Renal failure is driving our costs up,” said Ted Eichel, the health-services administrator for Devens. “It costs $4 million to run this unit, not counting medications, which is half our budget.” Devens also employs 60 nurses, along with social workers, dietitians, psychologists, dentists and physical therapists. They look like medical workers, except for the cluster of prison keys they’re carrying.

Down the hallway, inmates in wheelchairs line up to receive their daily pills and insulin shots.

Although the prison houses about 1,000 low- to high-security inmates, they are not handcuffed or shackled, except when being transferred outside the facility. A golf cart has been redesigned into a mini-ambulance.

At prisons such as Devens, younger inmates are sometimes enlisted as “companion aides,” helping older inmates get out of bed, wheeling them down the halls to medical appointments and helping them take care of themselves.

“The population here is getting older and sicker,” said Michael Renshaw, a Devens clinical nurse and corrections officer who noted the differences between working as a nurse there and “on the outside.”

“Inmates get very good care here,” Renshaw said. “But on the outside, maybe you would give a patient a hug or he would hug you. Here, you have to be able to maintain your borders. It’s a prison.”

As with all prisons, fights occasionally break out. At Devens, it’s sometimes between patients who are in wheelchairs or, in at least one case, between an inmate who climbed out of his wheelchair and onto another prisoner’s bed to assault him.

John Thompson, a patient-care technician who works with Devens’s dialysis patients, said he knows a number of people who “want no part of” providing medical care to prisoners.

“But I just feel like they’re good people,” Thompson said. “And they’re doing their time. Some guys have an attitude, but I tell them, if you show me respect, I’ll show you respect.”

Jesse Owens, a dialysis patient serving about 12 years for cocaine charges, said he’s grateful for the care. “They’re keeping us alive,” he said.

Harrison’s crammed cell at the Federal Correctional Complex Coleman in Florida near Orlando is devoid of the clutter of life on the outside. The space he shares with another inmate has only a sink, a toilet, a bunk bed with cots, a steel cabinet, two plastic gray chairs, a desk and a bulletin board with a postcard of a Florida waterspout.

From a tiny window, he can see Spanish moss draped over trees in the distance.

Forty-five years ago, Harrison served with the Marines in Vietnam. A machine gunner, he was shot twice and was awarded two Purple Hearts. When he came back, he felt as though he had nowhere to turn. He later joined a motorcycle group known as the Outlaws.

Bruce Harrison, a 63-year-old Vietnam War veteran from Tampa, is shown during an interview inside Federal Correctional Complex Coleman in Florida. The grandfather was sentenced to nearly 50 years in prison and has been incarcerated for the past 21 years. (Nikki Kahn/The Washington Post)

Harrison was approached by an undercover agent who was part of a law enforcement team trying to bring down the group, which had been suspected of illegal activity. He and fellow members of the club were offered a kilogram of cocaine to offload and transport drugs. He declined, saying none of them wanted to be paid in drugs.

“I didn’t want drugs, because I really wouldn’t have known what to do with them,” Harrison said in an interview. “We didn’t sell them.”

But Harrison and the others took the job because the agents offered cash, and they needed the money. Over a period of several months, they would move what they believed to be real drugs — more than 1,400 kilos of cocaine and about 3,200 pounds of marijuana.

Harrison carried a gun for protection during two of the offloads. He didn’t use it, but after authorities arrested him and fellow members of his group, he was charged with possessing a firearm while committing a drug offense.

His 1995 trial in Tampa lasted four months. His lawyer at the time argued that “this was a government operation from beginning to end. … Everything was orchestrated by the government. … He was not a leader. The only leaders in this case, the only organizers in this case was the United States government.”

The jury, nonetheless, found Harrison and the others guilty of transporting the drugs.

Harrison was sentenced to roughly 24 years for possessing cocaine and marijuana with the intent to distribute. The conviction on the firearms charge carried a 25-year penalty, meaning he is effectively serving a life sentence.

“There’s no doubt that that’s a harsh penalty,” said U.S. District Judge Susan C. Bucklew during the sentencing hearing. “But that’s what the statute says, and I don’t think I have any alternative but to do that.”

“I don’t have a whole lot of discretion here,” she said at another point.

After Harrison and the others were sentenced, several of the jurors expressed shock to learn how long those convicted were to spend behind bars.

“If I would have been given the right to not only judge the facts in this case, but also the law and the actions taken by the government, the prosecutor, local and federal law enforcement officers connected in this case would be in jail and not the defendants,” juror Patrick L. McNeil wrote.

Six jurors signed a letter requesting a new trial be ordered, saying that if they had been told by the court that they could have found that the government had entrapped the defendants, they would have found them not guilty.

“Bruce Harrison had never been involved in unloading drugs,” said his current lawyer, Tom Dawson. “He didn’t arrange for any of these drugs. The government did.”

Andrea Strong, a childhood friend of Harrison, said he doesn’t claim to have been a saint.

“But, in a compassionate world, this man would not be less than halfway through a sentence for a drug offense that happened 20 years ago,” Strong said. “He would’ve done his time, paid his debt to society, and be released to his network of supportive family and friends.”

Along with tens of thousands of other inmates around the country, Harrison is applying for clemency under the Obama administration’s program to release drug offenders who have been in prison for at least 10 years and whose cases meet certain criteria.

“If I got out, I’d go back home and be with my three grandkids and help them out,” Harrison said.

LEFT: Bruce Harrison, a 63-year-old Vietnam veteran from Tampa, is shown during an interview inside Federal Correctional Complex Coleman in Florida. The grandfather was sentenced to nearly 50 years in prison and has been incarcerated for the past 21 years. RIGHT: Luis Anthony Rivera, a 58-year-old from Miami who has been imprisoned for 30 years, works in the commissary at Coleman. Rivera, a former pilot and an artist, was charged with federal drug offenses. (Nikki Kahn/The Washington Post)

Another aging inmate at Coleman, 58-year-old Luis Anthony Rivera of Miami, has also applied for clemency. He was convicted of conspiracy to import cocaine and has so far served 30 years.

When he was sentenced in 1985, it marked his first criminal offense.

While in Coleman’s maximum-security penitentiary, Rivera began painting with oil and watercolors, trying to re-create the world outside bars. When he was moved to the medium-security prison on the same grounds, he wasn’t allowed to bring his art supplies, and he can’t afford to buy new ones.

But the move brought a new joy. He saw a tree for the first time in 10 years.

“It was amazing to see a tree,” said Rivera, a former pilot who was in the National Guard and the Army and now spends his days working in the prison commissary stocking shelves and filling orders.

“I understand the system of putting people in prison. It works. No doubt,” Rivera said. “But how much time you put them in for makes a determination. For the first five years, you suffer. You really do. They keep everything away from you — food, all your basics. So you long for them, watching a commercial on TV, seeing a product that you can’t touch or have.”

“But after that, you start to get hardened,” Rivera said, his voice cracking.

If he does not receive clemency, how much time does he have to serve before getting out?

His lips quivered and his eyes filled with tears.

“I’m not,” Rivera said. “I have life, plus 140 years.”

At Devens, incarcerated “companion aides” Tyrell Wells, left background, and Joshua Brandao assist an inmate in his 70s who suffered a stroke. Devens employs 60 nurses, along with social workers, dieticians, psychologists, dentists and physical therapists. (Nikki Kahn/The Washington Post)

Julie Tate in Washington contributed to this report.

Against his better judgment

In the meth corridor of Iowa, a federal judge comes face to face with the reality of congressionally mandated sentencing

By Eli Saslow
June 6, 2015

(Danny Wilcox Frazier VII/The Washington Post)

They filtered into the courtroom and waited for the arrival of the judge, anxious to hear what he would decide. The defendant’s family knelt in the gallery to pray for a lenient sentence. A lawyer paced the entryway and rehearsed his final argument. The defendant reached into the pocket of his orange jumpsuit and pulled out a crumpled note he had written to the judge the night before: “Please, you have all the power,” it read. “Just try and be merciful.”

U.S. District Judge Mark Bennett entered and everyone stood. He sat and then they sat. “Another hard one,” he said, and the room fell silent. He was one of 670 federal district judges in the United States, appointed for life by a president and confirmed by the Senate, and he had taken an oath to “administer justice” in each case he heard. Now he read the sentencing documents at his bench and punched numbers into an oversize calculator. When he finally looked up, he raised his hands together in the air as if his wrists were handcuffed, and then he repeated the conclusion that had come to define so much about his career.

“My hands are tied on your sentence,” he said. “I’m sorry. This isn’t up to me.”

How many times had he issued judgments that were not his own? How often had he apologized to defendants who had come to apologize to him? For more than two decades as a federal judge, Bennett had often viewed his job as less about presiding than abiding by dozens of mandatory minimum sentences established by Congress in the late 1980s for federal offenses. Those mandatory penalties, many of which require at least a decade in prison for drug offenses, took discretion away from judges and fueled an unprecedented rise in prison populations, from 24,000 federal inmates in 1980 to more than 208,000 last year. Half of those inmates are nonviolent drug offenders. Federal prisons are overcrowded by 37 percent. The Justice Department recently called mass imprisonment a “budgetary nightmare” and a “growing and historic crisis.”

Politicians as disparate as President Obama and Sen. Rand Paul (R-Ky.) are pushing new legislation in Congress to weaken mandatory minimums, but neither has persuaded Sen. Charles E. Grassley (R-Iowa), who chairs the Senate Judiciary Committee that is responsible for holding initial votes on sentencing laws. Even as Obama has begun granting clemency to a small number of drug offenders, calling their sentences “outdated,” Grassley continues to credit strict sentencing with helping reduce violent crime by half in the past 25 years, and he has denounced the new proposals in a succession of speeches to Congress. “Mandatory minimum sentences play a vital role,” he told Congress again last month.

But back in Grassley’s home state, in Iowa’s busiest federal court, the judge who has handed down so many of those sentences has concluded something else about the legacy of his work. “Unjust and ineffective,” he wrote in one sentencing opinion. “Gut-wrenching,” he wrote in another. “Prisons filled, families divided, communities devastated,” he wrote in a third.

And now it was another Tuesday in Sioux City — five hearings listed on his docket, five more nonviolent offenders whose cases involved mandatory minimums of anywhere from five to 20 years without the possibility of release. Here in the methamphetamine corridor of middle America, Bennett averaged seven times as many cases each year as a federal judge in New York City or Washington. He had sentenced two convicted murderers to death and several drug cartel bosses to life in prison, but many of his defendants were addicts who had become middling dealers, people who sometimes sounded to him less like perpetrators than victims in the case reports now piled high on his bench. “History of family addiction.” “Mild mental retardation.” “PTSD after suffering multiple rapes.” “Victim of sexual abuse.” “Temporarily homeless.” “Heavy user since age 14.”

Bennett tried to forget the details of each case as soon as he issued a sentence. “You either drain the bathtub, or the guilt and sadness just overwhelms you,” he said once, in his chambers, but what he couldn’t forget was the total, more than 1,100 nonviolent offenders and counting to whom he had given mandatory minimum sentences he often considered unjust. That meant more than $200 million in taxpayer money he thought had been misspent. It meant a generation of rural Iowa drug addicts he had institutionalized. So he had begun traveling to dozens of prisons across the country to visit people he had sentenced, answering their legal questions and accompanying them to drug treatment classes, because if he couldn’t always fulfill his intention of justice from the bench, then at least he could offer empathy. He could look at defendants during their sentencing hearings and give them the dignity of saying exactly what he thought.

“Congress has tied my hands,” he told one defendant now.

“We are just going to be warehousing you,” he told another.

“I have to uphold the law whether I agree with it or not,” he said a few minutes later.

The courtroom emptied and then filled, emptied and then filled, until Bennett’s back stiffened and his robe twisted around his blue jeans. He was 65 years old, with uncombed hair, a relaxed posture and a midwestern unpretentiousness. “Let’s keep moving,” he said, and then in came his fourth case of the day, another methamphetamine addict facing his first federal drug charge, a defendant Bennett had been thinking about all week.

The Federal Building and U.S. Courthouse in Sioux City, Iowa, which sits within the methamphetamine corridor of middle America. (Danny Wilcox Frazier VII/The Washington Post)

His name was Mark Weller. He was 28 years old. He had pleaded guilty to two counts of distributing methamphetamine in his home town of Denison, Iowa, which meant his mandatory minimum sentence as established by Congress was 10 years in prison. His maximum sentence was life without parole. For four months, he had been awaiting his hearing while locked in a cell at the Fort Dodge Correctional Facility, where there was nothing to do but watch Fox News on TV, think over his life and write letters to people who usually didn’t write back.

“I can’t tell you how many times I’ve asked myself, ‘How did I get into the situation I’m in today?’ ” he had written.

Marijuana starting at age 12. Whiskey at 14. Cocaine at 16, and methamphetamine a few months later. “Always hooked on something” was how some family members described him in the pre-sentencing report, but for a while he had managed to hold his life together. He graduated from high school, married, had a daughter and worked for six years at a pork slaughterhouse, becoming a union steward and earning $18 an hour. He bought a doublewide trailer and a Harley, and he tattooed the names of his wife and daughter onto his shoulder. But then his wife met a man on the Internet and moved with their daughter to Missouri, and Weller started drinking some mornings before work. Soon he had lost his job, lost custody of his daughter and, in his own accounting, lost his “morals along with all self control.” He started spending as much as $200 each day on meth, selling off his Harley, his trailer and then selling meth, too. He traded meth to pay for his sister’s rent, for a used car, for gas money and then for an unregistered rifle, which was still in his car when he was pulled over with 223 grams of methamphetamine last year.

He was arrested and charged with a federal offense because he had been trafficking methamphetamine across state lines. Then he met for the first time with his public defender, considered one of the state’s best, Brad Hansen.

“How much is my bond?” Weller remembered asking that day.

“There is no bond in federal court,” Hansen told him.

“Then how many days until I get out?” Weller asked.

“We’re not just talking about days,” Hansen said, and so he began to explain the severity of a criminal charge in the federal system, in which all offenders are required to serve at least 85 percent of whatever sentence they receive. Weller didn’t yet know that a series of witnesses, hoping to escape their own mandatory minimum drug sentences, had informed the government that Weller had dealt 2.5 kilograms of methamphetamine over the course of eight months. He didn’t yet know that 2.5 kilograms was just barely enough for a mandatory minimum of 10 years, even for a first offense. He didn’t know that, after he pleaded guilty, the judge would receive a pre-sentencing report in which his case would be reduced to a series of calculations in the controversial math of federal sentencing.

“Victim impact: There is no identifiable victim.”

“Criminal history: Minimal.”

“Cost of imprisonment: $2,440.97 per month.”

“Guideline sentence: 151 to 188 months.”

What Weller knew — the only thing he knew — was the version of sentencing he had seen so many times on prime-time TV. He would have a legal right to speak in court. The court would have an obligation to listen. He asked his family to send testimonials about his character to the courthouse, believing his sentence would depend not only on Congress or on a calculator but also on another person, a judge.

The night before Weller’s hearing, Bennett returned to a home overlooking Sioux City and carried the pre-sentencing report to a recliner in his living room. He already had been through it twice, but he wanted to read it again. He put on glasses, poured a glass of wine and began with the letters.

“He was doing fine with his life, it seems, until his wife met another man on-line,” Weller’s father had written.

“After she left, the life was sucked out of him,” his sister had written.

“Broken is the only word,” his brother had written. “Meth sunk its dirty little fingers into him.”

“I hope this can explain how a child was set up for a fall in his life,” his mother had written, in the last letter and the longest one of all. “Growing up, all he pretty much had was an alcoholic mother who was manic depressive and schizophrenic. When I wasn’t cutting myself, I was getting drunk and beating the hell out of him in the middle of the night. When I wasn’t doing all that I was trying to kill myself and ending up in a mental hospital. Can you imagine being a four year old and getting beat up one day and having to go visit that same person in a mental hospital the next? No heat in the house, no lights, nothing. That was his starting point.”

Bennett set down the report, stood from his chair and paced across a room decorated with photos of his own daughter, in the house that had been her starting point. There were scrapbooks made to commemorate each year of her life. There were videotapes of her high school tennis matches and photos of her recent graduation from a private college near Chicago.

He had decided to become a judge just a few months after her birth, in the early 1990s. His wife had been expecting twins, a boy and a girl, and had gone into labor several months prematurely. Their daughter had survived, but their son had died when he was eight hours old, and the capriciousness of that tragedy had left him searching for order, for a life of deliberation and fairness. He had quit private practice and devoted himself to the judges’ oath of providing justice, first as a magistrate judge and then as a Bill Clinton appointee to the federal bench, going into his chambers to work six days each week.

Since then he had sent more than 4,000 people to federal prison, and he thought most of them had deserved at least some time in jail. There were meth addicts who promised to seek treatment but then showed up again in court as robbers or dealers. There were rapists and child pornographers that expressed little or no remorse. He had installed chains and bolts on the courtroom floor to restrain the most violent defendants. One of those had threatened to murder his family, which meant his daughter had spent her first three months of high school being shadowed by a U.S. marshal. “It is a view of humanity that can become disillusioning,” he said, and sometimes he thought that it required work to retain a sense of compassion.

Once, on the way to a family vacation, he had dropped his wife and daughter off at a shopping mall and detoured by himself to visit the prison in Marion, Ill., then the highest-security penitentiary in the country. He scheduled a tour with the warden, and at the end of the tour Bennett asked for a favor. Was there an empty cell where he could spend a few minutes alone? The warden led him to solitary confinement, where prisoners spent 23 hours each day in their cells, and he locked Bennett inside a unit about the size of a walk-in closet. Bennett sat on the concrete bed, ran his hands against the walls and listened to the hum of the fluorescent light. He imagined the minutes stretching into days and the days extending into years, and by the time the warden returned with the key Bennett’s mouth was dry and his hands were clammy, and he couldn’t wait to be back at the mall.

“Hell on earth,” he said, explaining what just five minutes as a visitor in a federal penitentiary could feel like, and he tried to recall those minutes each time he delivered a sentence. He often gave violent offenders more prison time than the government recommended. He had a reputation for harsh sentencing on white-collar crime. But much of his docket consisted of methamphetamine cases, 87 percent of which required a mandatory minimum as established in the late 1980s by lawmakers who had hoped to send a message about being tough on crime.

By some measures, their strategy had worked: Homicides had fallen by 54 percent since the late 1980s, and property crimes had dropped by a third. Prosecutors and police officers had used the threat of mandatory sentences to entice low-level criminals into cooperating with the government, exchanging information about accomplices in order to earn a plea deal. But most mandatory sentences applied to drug charges, and according to police data, drug use had remained steady since the 1980s even as the number of drug offenders in federal prison increased by 2,200 percent.

“A draconian, ineffective policy” was how then-Attorney General Eric H. Holder Jr. had described it.

“A system that’s overrun” was what Republican presidential candidate Mike Huckabee had said.

“Isn’t there anything you can do?” asked Bennett’s wife, joining him now in the living room. They rarely talked about his cases. But he had told her a little about Weller’s, and now she wanted to know what would happen.

“Childhood trauma is a mitigating factor, right?” she said. “Shouldn’t that impact his sentence?”

“Yes,” he said. “Neglect and abuse are mitigating. Definitely.”

“And addiction?”

“Yes.”

“Remorse?”

“Yes.”

“No history of violence?”

“Yes. Of course,” he said, standing up. “It’s all mitigating. His whole life is basically mitigating, but there still isn’t much I can do.”

The first people into the courtroom were Weller’s mother, his sister and then his father, who had driven 600 miles from Kansas to sit in the front row, where he was having trouble catching his breath. He gasped for air and rocked in his seat until two court marshals turned to stare. “Look away,” he told them. “Have a little respect on the worst day of our lives. Look the hell away.”

In came Weller. In came the judge. “This is United States of America versus Mark Paul Weller,” the court clerk said.

And then there was only so much left for the court to discuss. Hansen, the defense attorney, could only ask for the mandatory minimum sentence of 10 years, rather than the guideline sentence of 13 years or the maximum of life. The state prosecutor could only agree that 10 years was probably sufficient, because Weller had a “number of mitigating factors,” he said. Bennett could only delay the inevitable as the court played out a script written by Congress 30 years earlier.

“This is one of those cases where I wish the court could do more,” said Hansen, the defense attorney.

“He’s certainly not a drug kingpin,” the government prosecutor consented.

“He could use a wake-up call,” Hansen said. “But, come on, I mean …”

“He doesn’t need a 10-year wake-up call,” Bennett said.

“Ten years is not a wake-up call,” Hansen said. “It’s more like a sledgehammer to the face.”

“We talk about incremental punishment,” Bennett said. “This is not incremental.”

They stared at each other for a few more minutes until it was time for Weller to address the court. He leaned into a microphone and read a speech he had written in his holding cell the night before, a speech he now realized would do him no good. He apologized to his family. He apologized to the addicts who had bought his drugs. “There is no excuse for what I did,” he said. “I was a hardworking family man dedicated to my family. I turned to drugs, and that was the beginning of the end for me. I hope I get the chance to better my life in the future and put this behind me.”

“Thank you, Mr. Weller. Very thoughtful,” Bennett said, making a point to look him in the eye. “Very, very thoughtful,” he said again, and then he issued the sentence. “You are hereby committed to the custody of the bureau of prisons to be imprisoned for 120 months.” He lowered his gavel and walked out, and then the court marshal took Weller to his holding cell for a five-minute visitation with his family. He looked at them through a glass wall and tried to take measure of 10 years. His grandmother would probably be dead. His daughter would be in high school. He would be nearing 40, with half of his life behind him. “It’s weird to know that even the judge basically said it wasn’t fair,” he said.

Down the hall in his chambers, Bennett was also considering the weight of 10 years: one more nonviolent offender packed into an overcrowded prison; another $300,000 in government money spent. “I would have given him a year in rehab if I could,” he told his assistant. “How does 10 years make anything better? What good are we doing?”

But already his assistant was handing him another case file, the fifth of the day, and the courtroom was beginning to fill again. “I need five minutes,” he said. He went into his office, removed his robe and closed his eyes. He thought about the offer he had received a few weeks earlier from an old partner, who wanted him to return to private practice in Des Moines. No more sentencing hearings. No more bathtub of guilt to drain. “I’m going to think seriously about doing that,” Bennett had said, and he was still trying to make up his mind. Now he cleared Weller’s sentencing report from his desk and added it to a stack in the corner. He washed his face and changed back into his robe.

“Ready to go?” his assistant asked.

“Ready,” he said.

From a first arrest to a life sentence

Clemency is the only way out for the thousands of nonviolent drug offenders serving life terms in federal prison

By Sari Horwitz
July 15, 2015

(Nikki Kahn/The Washington Post)

Sharanda Jones — prisoner 33177-077 — struggled to describe the moment in 1999 when a federal judge sentenced her to life in prison after her conviction on a single cocaine offense.

She was a first-time, nonviolent offender.

“I was numb,” Jones said in an interview at the Carswell women’s prison here. “I was thinking about my baby. I thought it can’t be real life in prison.”

Jones, who will turn 48 next week, is one of tens of thousands of inmates who received harsh mandatory minimum sentences for drug offenses during the crack-cocaine epidemic, and whose cases are drawing new attention.

President Obama is visiting a federal prison in Oklahoma Thursday to promote his plan to overhaul the criminal justice system, saying Wednesday, “this huge spike in incarcerations is also driven by nonviolent drug offenses where the sentencing is completely out of proportion with the crime.”

Clenesha Garland is in her own kind of prison, living a life without her mother. (Nikki Kahn/The Washington Post)

Because of her role as a middle woman between a cocaine buyer and supplier, Jones was accused of being part of a “drug conspiracy” and should have known that the powder would be converted to crack — triggering a greater penalty.

Her sentence was then made even more severe with a punishment tool introduced at the height of the drug war that allowed judges in certain cases to “enhance” sentences — or make them longer.

Jones was hit with a barrage of “enhancements.”

Her license for a concealed weapon amounted to carrying a gun “in furtherance of a drug conspiracy.”

Enhancement.

When she was convicted on one count of seven, prosecutors said her testimony in her defense had been false and therefore an “obstruction of justice.”

Enhancement.

Although she was neither the supplier nor the buyer, prosecutors described her as a leader in a drug ring.

Enhancement.

By the end, Jones’s sentencing had so many that the federal judge had only one punishment option. With no possibility of parole in the federal system, she was, in effect, sentenced to die in prison.

Jones almost certainly would not receive such a sentence today. Federal sentencing guidelines in similar drug cases have changed, in particular to end disparities in how the courts treat crack cocaine vs. powder cocaine. And, following a 2005 Supreme Court decision, judges have much greater discretion when they mete out punishment. In the past decade, they gave lower sentences by an average of one-third the guideline range, according to the U.S. Sentencing Commission.

But a lingering legacy of the crack epidemic are inmates such as Jones. About 100,000 federal inmates — or nearly half — are serving time for drug offenses, among them thousands of nonviolent offenders sentenced to life without the possibility of parole, according to the American Civil Liberties Union. Most are poor, and four in five are African American or Hispanic.

In the spring of 2014, then-Attorney General Eric H. Holder Jr. — who had called mandatory minimum sentences “draconian” — started an initiative to grant clemency to certain nonviolent drug offenders in federal prison. They had to have served at least 10 years of their sentence, have no significant criminal history, and no connection to gangs, cartels or organized crime. They must have demonstrated good conduct in prison. And they also must be inmates who probably would have received a “substantially lower sentence” if convicted of the same offense today.

Jones applied. It has been a halting process, however. Only 89 prisoners of the more than 35,000 who have filed applications have been freed. They include 46 inmates who were granted clemency on Monday by Obama.

Jones wasn’t among them.

“I take full responsibility for my actions and know that I deserve to be punished … but, for the rest of my life for my first-ever arrest and conviction?” Sharanda Jones wrote in a letter to President Obama that accompanied her petition for clemency. (Nikki Kahn/The Washington Post)

Her case began in November 1997 when the Kaufman County Sheriff’s Department conducted a large drug sweep in the city of Terrell, about 30 miles east of Dallas, netting more than 100 people, all of them black.

Among those arrested was Julie Franklin and her husband, Keith “Baby Jack” Jackson, who agreed to plead guilty and cooperate with the government for a reduced sentence. They told investigators that over several years, they bought about 30 kilograms of powder cocaine, each for about $18,000, from Jones, who they said had purchased the cocaine from a drug dealer in Houston.

Two years later, Jones and several others were indicted by a federal grand jury. Jones was charged with six counts of possession with intent to distribute crack cocaine and aiding and abetting, and one count of conspiracy to distribute crack cocaine.

Clenesha Garland was 8 when her mother, Sharanda Jones, was imprisoned. She remembers being confused when her mother seemed to vanish. (Nikki Kahn/The Washington Post)

Jones had grown up poor, raised by her grandmother after her mother was left quadriplegic by a car crash. But Jones, who started working when she was 14, had an entrepreneurial streak, opening her own hair salon and a burger joint before starting a Southern-style restaurant in Dallas with a woman from Terrell who was a Dallas police officer.

A friend told Jones she could earn thousands more if she “got into the game.”

“It was fast money,” she says now. “Biggest mistake I ever made.”

During a six-day trial in Dallas in August 1999, Franklin and Jackson — the cooperating couple arrested in Terrell — testified that they drove with Jones several times from Dallas to Houston where they would give Jones money and she would buy powder cocaine for them from her drug supplier.

Joseph Antoine III, who also cooperated with the government in exchange for a lower sentence, testified that he was the person in Houston who sold kilograms of cocaine to Jones.

Assistant U.S. Attorney William C. McMurrey argued to the jury that Jones was involved in selling crack in Terrell, along with her brother, sister and mother. Investigators pressed Jones to implicate her business partner, the Dallas police officer, saying it could help reduce her sentence. The officer testified and said she was not involved. And Jones also said the officer had nothing to do with drugs. The officer, who is still with the department, declined to be interviewed.

McMurrey said Jones also turned down a plea deal, but Jones and her current attorney said there was never a formal offer that specified how much time she would serve.

On Aug. 26, 1999 — after days of testimony about drug deals by people nicknamed “Weasel,” “Spider,” “Baby Jack” and “Kilo,” and a dramatic moment when Jones’s quadriplegic mother was wheeled into the courtroom — the jury acquitted Jones of all six charges of possession with intent to distribute crack cocaine and aiding and abetting. But they found her guilty of one count of conspiracy to distribute crack cocaine.

Although no drugs were ever found, U.S. District Judge Jorge Solis determined that Jones was responsible for the distribution of 30 kilograms of cocaine. He arrived at that number based on the testimony of the co-conspirators — the couple who received sentences of seven and eight years, and the Houston dealer, who got 19 1/2 years.

All have since been released.

The judge determined that Jones knew or should have known that the powder was going to be “rocked up” — or converted to crack. Using a government formula, the prosecutor said that the 30 kilograms of powder was equal to 13.39 kilograms of crack cocaine.

He then added 10.528 kilograms of crack cocaine that the prosecutors said had been distributed in Terrell and was linked to Jones’s brother. (The U.S. Court of Appeals for the 5th Circuit affirmed the conviction, but said there was “barely” any evidence of Jones’s connection to the crack distributed in Terrell.)

The judge’s calculation made Jones accountable for 23.92 kilograms of crack. That, added to the gun and obstruction enhancements, as well as Jones’s role as an “organizer,” sealed her sentence under federal rules that assign numbers to offenses and enhancements. The final number — 46 — dictated the sentence, leaving the judge no discretion.

“Under the guidelines, that sets a life sentence, mandatory life sentence,” Solis said at a hearing in November 1999. “So, Ms. Jones, it will be the judgment of the court that you be sentenced to the custody of the U.S. Bureau of Prisons for a term of life imprisonment.”

Solis declined to be interviewed. Said McMurrey: “In light of the law and the guidelines and what the court heard during the trial, I know Judge Solis followed the law. He’s a very fair man.”

Ronald Weich, who was a special counsel to the U.S. Sentencing Commission during the late 1980s, said that mandatory minimum sentences and their enhancements were all about math, not about people.

“These laws forced judges to look at their calculators instead of into the eyes of the defendants they were sentencing,” said Weich, now the dean of the University of Baltimore School of Law. “They weren’t allowed to ask, ‘How did they get to this point in their lives?’ and ‘Who were they going to be in five or 20 years?’ ”

The sentencing scheme that sent Jones to prison has been widely denounced by lawmakers from both political parties. And sentences have been greatly reduced for drug offenses. But the differing approaches over time have led to striking disparities.

One illustration: The Justice Department announced last month that one of Colombia’s most notorious drug traffickers and a senior paramilitary leader will serve about 15 years in prison for leading an international drug trafficking conspiracy that imported more than 100,000 kilograms of cocaine into the United States.

The jurors who found Jones guilty were never told about the life sentence, which came months after the trial. Several of them, when contacted by The Washington Post, were dismayed.

“Life in prison? My God, that is too harsh,” said James J. Siwinski, a retired worker for a glass company. “That is too severe. There’s people killing people and getting less time than that. She wasn’t an angel. But enough is enough already.”

Lawyer Brittany K. Byrd goes through boxes filled with court documents and the clemency petition she filed for Sharanda Jones with the Justice Department and the White House. “I'm not going to give up. I can't give up,” Byrd says. (Nikki Kahn/The Washington Post)

Brittany K. Byrd was in her second year of law school at Southern Methodist University in Dallas in 2009 when she heard about Jones. She was taking Critical Race Theory, a seminar class that analyzed the intersection of race and the law. For her final paper, Byrd wanted to write about the disparity between crack-cocaine and powder-cocaine sentences and the disparate effect on African Americans and Hispanics, but she needed real cases to humanize her argument.

During her research, Byrd found that Jones’s mother was later sentenced to 17 years in a separate trial for her role in drug dealing in Terrell. The quadriplegic woman died after 12 years behind bars, and Jones was not allowed to attend her funeral.

“I wanted to show the class and my professor a human face behind the numbers and show the sacrifice of human capital for the war on drugs,” Byrd said.

After she turned in her paper, Byrd couldn’t stop thinking about Jones. “Her case did not allow me to sleep,” she said. “It just tugged at my soul.” She sent a card to Jones in prison, telling her that she was a law student and she wanted to try to help.

“She wrote me back and it was really a generic type of letter,” Byrd said. “It was more like, ‘Been there, heard that before and no one’s really helped me.’ ”

Brittany K. Byrd, left, Sharanda Jones’s clemency attorney, admires a handmade 24th-birthday card that Jones sent to her daughter, Clenesha Garland, 24. Byrd came across Jones's case as a law school student in 2009 and has spent years working pro bono to try to get President Obama to grant Jones clemency. (Nikki Kahn/The Washington Post)

Jones had been a model inmate, taking dozens of classes and mentoring other prisoners, but no amount of good behavior would get her out. The only option was clemency from the president.

By November 2013, Byrd was at a private law firm in Dallas and also running an organization for inmates and their daughters. Working pro bono, she filed a clemency petition for Jones with the Justice Department’s Office of the Pardon Attorney and the White House counsel and included a petition signed by thousands, letters of support from local churches and a job offer for Jones.

“There is no doubt that Sharanda’s crime harmed society,” Byrd wrote in a 200-page petition. “However, there is also no doubt that she has been hurt back and paid her debt to society by serving the past 14 years of her life in prison as a first-time nonviolent offender and being away from her one and only child.”

Byrd received no response, but more than a year later the Obama administration began its clemency initiative. Jones appeared to meet the criteria.

“I got really excited,” Byrd said. She filed a supplemental petition to her original application that included a letter from Jones to Obama.

“I began dealing drugs out of desperation to be able to sufficiently support myself and my family,” Jones wrote. “I now understand to the fullest level the destruction caused by drugs. I take full responsibility for my actions and know that I deserve to be punished … but for the rest of my life for my first ever arrest and conviction? … My deepest sorrow is being separated from my only child, Clenesha.”

Byrd heard nothing for months. In late March, she received a phone call from the pardon attorney’s office. Obama had granted clemency to 22 inmates, including another of Byrd’s clients, a young man who had served 22 years for a nonviolent drug offense. She was ecstatic to call the prison and tell him.

But she had one question.

“What about Sharanda Jones?” she asked. The official on the other end of the line said she didn’t know anything about Jones.

“It was a bittersweet day,” Byrd recalled. “I was elated. But I just kept thinking about Sharanda and how she would feel when she saw her name wasn’t on that list.”

Nor did it appear on the new list released Monday by Obama.

“She’s the light of my life,” Clenesha Garland said during a recent visit with her mother at Carswell federal prison. “She’s such a good person, and she’s stuck in this place where she doesn’t belong.” (Nikki Kahn/The Washington Post)

Inside Carswell’s visiting room one recent afternoon, Jones opened the tattered blue Bible she brought in with her 16 years ago and turned to her daughter, Clenesha Garland. She gently pushed a strand of hair off her daughter’s forehead. They read the Bible together when Garland visits every couple of weeks. They talk on the phone every day.

This sterile space — a room of 64 mauve-colored chairs, a few vending machines, a miniature table, chairs for toddlers and a big clock on the wall — has been the weekly aperture through which Jones has seen her daughter grow.

Inside Carswell federal prison for women, Sharanda Jones, prisoner 33177-077, marks “The Lord’s Prayer,” her favorite passage, in her Bible. (Nikki Kahn/The Washington Post)

Garland was 8 when her mother was imprisoned. She remembers being confused when her mother seemed to vanish.

“Is she dead?” she asked her father after moving to his house.

“No, she’s in a place like a college,” he said. “We’ll go see her. But not for a while.”

Garland was 18 before she realized that her mother had a life sentence.

“My world as I knew it was shattered,” she said in a recent interview.

When she graduated high school, Garland did not want to walk across the stage without her mother in the audience. She doesn’t like to travel outside of Texas, because she wants to remain close to the prison.

“I want you to live your life,” Jones said.

“I can’t live my life when you’re still in here,” Garland replied. “I’m worried all the time about how they are treating you. I’ll start living when you get out.”

Garland puts her hand on her mother’s shoulder and softly murmurs, “Mama.”

Two years ago, Garland wrote to Obama, pleading for her mother’s release. “Being without my mother for over 14 years of my life has been extremely difficult,” she wrote. “But the thought she is set to spend the rest of her life in prison as a first-time non-violent offender is absolutely devastating.”

After an hour together, the guards told them their time was up. They hugged tightly for the permitted 30 seconds.

Garland walked past the razor wire to the front lobby where she gave her badge to a guard, as she had hundreds of times before. She passed her hand under a light where an officer checked to make sure it had a security stamp. The drive back to Dallas took about 30 minutes. She cried most of the way.

Jones left the visiting room and entered a side room where a guard was waiting, as she does after every visit. She took off her tan prison uniform, her brown T-shirt, her bra and her underwear, and waited for the guard to search every part of her body.

She showed no emotion. After 16 years, she has learned not to cry.

“I’ve been going through this for so long,” Clenesha Garland said of her mother’s imprisonment. “It’s like a pain you can’t explain.” (Nikki Kahn/The Washington Post)

Julie Tate contributed to this report.

Unlikely allies

A bipartisan push for sentencing reform unites President Obama and the Koch brothers, but many are still waiting behind bars

By Sari Horwitz
August 15, 2015

Serving a 55-year sentence, Weldon Angelos is the face of the Koch campaign for criminal justice reform. (Nikki Kahn/The Washington Post)

The gleaming black granite tower where conservative billionaire Charles Koch oversees an empire of multinational corporations is 1,500 miles and worlds away from the California prison cell of Weldon Angelos.

But Angelos sits at the intersection of an unusual alliance between the industrialist and President Obama — longtime political nemeses. Their cooperation illustrates the depth of a bipartisan effort to reduce the nation’s overcrowded prisons and undo the show-no-mercy sentences meted out to drug offenders in recent decades.

As Koch has emerged as one of the most influential advocates of sentencing reform, he has seized on the Angelos story to illustrate the inequities of the American criminal justice system. And Angelos is one of thousands of prisoners who have applied for clemency from the president under an initiative launched by the Obama administration.

But Angelos sits at the intersection of an unusual alliance between the industrialist and President Obama — longtime political nemeses. Their cooperation illustrates the depth of a bipartisan effort to reduce the nation’s overcrowded prisons and undo the show-no-mercy sentences meted out to drug offenders in recent decades.

As Koch has emerged as one of the most influential advocates of sentencing reform, he has seized on the Angelos story to illustrate the inequities of the American criminal justice system. And Angelos is one of thousands of prisoners who have applied for clemency from the president under an initiative launched by the Obama administration.

When he gives speeches, Charles Koch says he asks those in the audience to raise their hand if they have never made a mistake that could have gotten them in serious trouble.

“I’ve never had anyone raise his or her hand,” he said in his office on the sprawling Koch Industries campus here. “There, but for the grace of God or good luck or good fortune go all of us.”

The industrialist said his interest in overhauling the criminal justice system is not new. For 12 years, Koch Industries, the country’s second-largest private company with a $115 billion valuation according to Forbes, has been working with the National Association of Criminal Defense Lawyers, and is providing funding to train lawyers who represent indigent defendants. The group honored Koch Industries a few years ago with its Defender of Justice Leadership award.

He describes his focus on sentencing reform as part of his libertarian philosophy of limited government and his commitment to removing barriers of opportunity for the poor. He said Obama should do more and do it faster to rectify the effects of mandatory minimum sentences, especially for the disadvantaged and men and women of color.

“Clemency for a few — to me, that isn’t just,” said Koch, noting that the president has not granted clemency to Angelos despite appeals to do so from a large group of bipartisan lawmakers. “If you have 1,000 people who got unjust sentences, to give clemency to [a few] — what about the others? Why should they suffer?”

But some Democratic groups remain skeptical about any recasting of the Kochs’ image as anything other than megadonors who have long backed Republican politicians, including tea party candidates.

They’ve ridiculed the effort as “Kochshank Redemption,” playing off the name of the 1994 movie “Shawshank Redemption,” about an inmate sentenced to two life terms.

Liberal blog ThinkProgress has questioned how the Kochs can support criminal justice reform while also supporting candidates such as Wisconsin Gov. Scott Walker. As a state legislator, Walker sponsored dozens of tough-on-crime bills, including ones to increase mandatory minimum sentences and not allow parole for many offenders.

Critics have also noted the Kochs’ support for the American Legislative Exchange Council (ALEC), an advocacy group that helped push for mandatory minimum sentences, tough three-strikes laws and privatization of the prison industry.

Liberal watchdog group Bridge Project last month released a report, “The Koch Brothers’ Criminal Justice Pump-Fake,” attacking their work on criminal justice issues, saying the Kochs’ interest in reform stems from a 97-count indictment and prosecution charging the Koch Petroleum Group and several employees with violating the Clean Air Act at its refinery in Corpus Christi, Tex.

David Uhlmann — the federal prosecutor who was head of the environmental crimes section of the Justice Department — described the lawsuit as “a classic case of environmental crime: illegal emissions of benzene — a known carcinogen — at levels 15 times greater than those allowed under federal law.”

“Koch pleaded guilty and admitted that its employees engaged in an orchestrated scheme to conceal the benzene violations from state regulators and the Corpus Christi community,” said Uhlmann, now a law professor at the University of Michigan Law School.

Uhlmann, along with other critics, are reluctant to accept the Kochs’ support for criminal justice reform at face value, and believe there must be a deeper political agenda — possibly to include the later pursuit of legal reforms that will benefit corporations.

“Their advocacy for less draconian drug laws could prove to be a stalking horse for their long-standing efforts to protect corporate criminals and roll back environmental, health and safety laws,” he said.

Koch Petroleum was fined $10 million in the Corpus Christi case and ordered to pay another $10 million to fund environmental projects. In a plea agreement, the charges were dropped against the four employees.

In Charles Koch’s opinion, the federal case was unjust.

“We had four innocent employees indicted,” he said. “Okay, the company can handle it. Okay, we pay a fine and so on. What’s so upsetting is seeing what it did to them personally and their families.”

And Mark Holden, Koch Industries’ general counsel and senior vice president, said the company “was railroaded” and its experience in the Corpus Christi case “is what really started us working on criminal justice issues.”

Of the skeptics, Holden said, “People are going to believe what they want to believe. We’ve been working on these issues for 12 years now. Charles has had these views his whole life, by and large. Just judge us by our actions. We’re in this for the long haul.”

In a nod to the moment, Holden has a T-shirt in his office with the words: “Koch. Not Entirely Awful,” playing off the words of a recent article.

Van Jones, the president of #Cut50, a group seeking to cut the incarcerated population by 50 percent over the next 10 years, and the former special adviser on Obama’s Council on Environmental Quality, defends the Kochs.

“In a democracy, when you disagree with somebody, you should really work hard against them,” Jones said. “We oppose the Koch agenda when it comes to their pro-polluter, extremist agenda for the environment, and we fight real hard. But when you agree with them, you should work really hard alongside them. On criminal justice reform, we’re very proud to work alongside them.”

“And,” Jones added, “I never met a single person in prison who said, ‘I sure hope the Republicans and the Koch brothers don’t help me.’ ”

Mark V. Holden, senior vice president and general counsel for Koch Industries, left, is photographed with his boss, Charles Koch, in Koch’s office in Wichita. (Nikki Kahn/The Washington Post)

The Koch-Obama alliance began to take shape at the Washington Marriott Wardman Park hotel in March. In a hotel ballroom, #Cut50 held a bipartisan criminal justice summit, hosted by former Obama administration official Jones and former Republican speaker of the House Newt Gingrich.

Roy Austin Jr., a deputy assistant to President Obama, approached Holden at the gathering and they traded business cards.

“Both our bosses care a lot about these issues,” Austin said, according to Holden. He later invited him to the White House.

When Holden walked in to a West Wing office to meet Austin on April 16, one of Obama’s closest advisers, Valerie Jarrett, was waiting for him, along with other White House officials.

“I decided to participate in the meeting to signal to him how important this effort is to President Obama,” Jarrett said in an interview.

Jarrett was struck by Holden’s sincerity and personal engagement with the issue.

“Mark was very forthcoming about why he thought it was important to his company and also why it was of personal importance to him,” Jarrett said. “He shared his story about working as a prison guard.”

After high school and during summer breaks in college, Holden had worked as a guard in a prison in Worcester, Mass., where he grew up. He said there weren’t “a lot of rich people in prison” and that many of the inmates were kids he knew who had drug problems.

But what convinced Jarrett of Koch Industries’ commitment was when she asked Holden’s position on “ban the box,” the effort to remove the criminal-record check box from job applications. It is a defining issue for reformers because the box has proven to be a critical barrier to getting former prisoners into the workforce. Employers tend to see the tick and dismiss the application.

Holden told her that Koch Industries, which has about 100,000 employees worldwide, had joined Wal-Mart, Target, Bed Bath and Beyond and others in the “ban the box” movement.

Surprised, she asked Holden if he was willing to talk about it publicly and encourage other companies to do the same. He said he would.

“You have made my day,” Jarrett said.

She told Obama about the meeting and said that she believed Holden and the Koch brothers were “very committed” to criminal justice reform.

Obama didn’t hesitate.

“The president’s message to us was “work with whoever will help form that coalition of the willing,” Jarrett said. “He’s always been willing to work with people with whom he disagrees on many issues, searching for that common ground.”

At the Aspen Ideas Festival in June, Jarrett met Charles Koch’s brother and in her speech there, mentioned the Koch brothers. The next month, Obama would do the same.

Holden, who is Charles Koch’s point person on criminal justice reform, said he is now focused on convincing more Republicans to pass criminal justice legislation, including the Safe, Accountable, Fair and Effective Justice Act introduced in June and sponsored by Reps. F. James Sensenbrenner Jr. (R-Wis.) and Robert C. “Bobby” Scott (D-Va.).

The bill would impose mandatory minimum sentences on high-level drug traffickers rather than low-level, nonviolent ones; apply life sentences for drug trafficking only in egregious cases; and allow eligible offenders to petition for resentencing under new trafficking laws.

The criminal justice effort is being led by Charles Koch, Holden and a Koch Industries team in Washington. Much less involved is the network of conservative advocacy groups backed by Koch, such as Americans for Prosperity, which is more focused on energy regulation and government spending, and the LIBRE Initiative, which is working on immigration and education.

Holden declined to discuss the funding and resources dedicated to sentencing reform, except to say they were “significant.” He also said Freedom Partners, which oversees the donor network the Koch brothers created, sent a questionnaire to all the 2016 presidential candidates that included two prominent questions on criminal justice issues.

Holden sometimes talks to people about Angelos, who was featured in a video that the Kochs helped produce.

“They all shake their heads and say, ‘That was an unintended consequence and an outlier,’ ” Holden said. “I say, ‘Well maybe, but Angelos is more than that. He’s a human being. And it’s wrong. He’s just one of many, many stories like that. The bad news is that this happened. The good news is we can fix this.’ ”

Weldon Angelos was 25 when he was sentenced to 55 years in prison after selling marijuana to a police informant. His sons, now 16 and 18, look back on the childhood they missed without their father. But the boys and Weldon's sister remain hopeful for an early release, as billionaire Charles Koch campaigns for clemency for Weldon. (Nikki Kahn/The Washington Post)

Weldon Aangelos has never met Charles Koch or anyone from Koch Industries. While people in Washington and Wichita debate sentencing reform and Justice Department lawyers sift through clemency petitions, he and thousands of others are still waiting for relief.

But he is acutely aware of the interest of politicians and activists in his case. Recently, he was holding up a radio to the window to get better reception and listen to a talk show on criminal justice issues. He heard Republican presidential candidate Rand Paul invoke his name.

“I heard him say, ‘There’s this guy, Weldon Angelos, and he got 55 years’ and I was like, ‘Wow, he’s talking about me!’ ”

He is hopeful that the influence of the Koch brothers and others could secure his release through presidential clemency, and help other inmates.

“Their support is definitely going to make a difference,” Angelos said. “I think it has already. Their coming out on this and telling Obama to grant these commutations and pass these bills has brought some Republicans around. We need that conservative support.”

The son of a Greek immigrant, Angelos grew up poor and on food stamps. His escape was music. In his early 20s, Angelos founded a Utah-based rap label, Extravagant Records. Trying to break into the industry, he wrote and produced songs with several well-known artists, including Snoop Dogg.

As the issue of sentencing reform brings together President Obama and the Koch brothers, prisoners like Weldon Angelos are still waiting to be reunited with their families. (Nikki Kahn/The Washington Post)

“It was really promising,” Angelos said. “But I just didn’t have the financial backing I needed.” In 2002, when he was 23, Angelos was arrested for selling marijuana to a Salt Lake City police informant.

“It ruined my career and my life,” he said.

Inside the cell he shares with another inmate, Angelos has a small library of books. He is taking classes to get a college degree. Every night he calls his children. He hasn’t had a visitor in three years.

Angelos hasn’t seen his two boys — Anthony, 18, and Jesse, 16 — in eight years because they can’t afford to travel to California. The boys and their mother recently moved in with Angelos’s sister near Salt Lake City after they were evicted. His 12-year-old daughter, Meranda, who has a different mother, lives nearby. He last saw her three years ago.

Anthony reflected on his father’s life in a video produced by Generation Opportunity Institute, a group backed by the Koch brothers, and Families Against Mandatory Minimums, the group that first told the Kochs about the Angelos case.

“I think it’s cruel,” he said. “I’m not saying he doesn’t deserve anything, but he did serve his time and I think he’s in there long enough. The minimum should have been five years maybe. Fifty-five years is way too much. Way too much.”

Angelos never used or pulled a gun, but the informant later testified in court that he saw one in Angelos’s car during the first buy. He said that during the second buy, Angelos was wearing an ankle holster holding a firearm. Officers later searched his home and found guns.

The sentence Angelos received as a nonviolent first-time offender fell under a law called 924(c).

Federal drug laws require 5- to 30-year mandatory minimum sentences for possessing, brandishing or discharging a gun during a drug-trafficking crime. For each subsequent gun conviction, there is a mandatory sentence of 25 years that must be served consecutively. This is often referred to as “gun stacking,” which is why Angelos received 55 years without parole.

He received five years for the gun in the car; 25 years for the second gun charge, having one in an ankle strap; and another 25 years for a third firearms charge, the gun police found in his home. He got one day for the marijuana.

At Angelos’s 2004 sentencing, Utah U.S. District Court Judge Paul G. Cassell, appointed by President George W. Bush, compared Weldon’s sentence (738 months) with the guideline sentences for the kingpin of three major drug trafficking rings that caused three deaths (465 months), a three-time aircraft hijacker (405 months), a second-degree murderer of three victims (235 months) and the rapist of three 10-year-olds (188 months).

“This is the most difficult case that I’ve faced since taking the bench 2 ½ years ago,” said Cassell, now a professor at the University of Utah’s law school.

“I believe that to sentence Mr. Angelos to prison for what would essentially be the rest of his natural life is unjust, cruel and even irrational.”

From left, Weldon Angelos's children Meranda, Jesse and Anthony walk along a trail near their new home in Utah. Every night he calls his children. (Nikki Kahn/The Washington Post)

Matea Gold and Julie Tate contributed to this report.

Slow steps to freedom

A nonviolent drug offender who was granted clemency after 22 years adjusts to life on the outside

By Sari Horwitz
October 7, 2015

(Nikki Kahn/The Washington Post)

The recently released federal prisoner sat down at his sister’s dining room table. He pulled out a legal pad and began the letter he had been turning over in his mind for several months:

“Dear Mr. President, I am writing you today with the utmost gratitude to personally thank you for granting my petition for clemency on March 31, 2015. Your actions have given me a second chance to start living life normally again and mere words can’t express how truly grateful I am for your making this moment possible. The Bible says, ‘To whom much is given, much is required,’ and I vow to make the most of this unique opportunity that I’ve been given.”

He went back and crossed out the words, “second chance,” replacing them with “unique opportunity.” He frowned. The change made the letter look sloppy. He tore out the page and started again. After writing the lines in neat print, he paused and took off his reading glasses.

How would he end it, he asked?

“When I read the president’s letter to me, I could hear Obama’s voice,” he said as he wrote the letter last month. “I could just hear him saying those things to me personally, particularly when he said, ‘You’ve been given a unique opportunity.’ He was saying, don’t mess it up for the guys behind you. I took that to heart.”

There is a lot to do. He has to find a permanent place to live. He has to avoid old friends who might have drugs, guns or felony records. He has to build relationships with sons who have only ever known him as a voice on the telephone. And he has to decide if he wants to get back with his wife, the woman who broke his heart.

He picked up the pen again.

“I vow to do many good things with the rest of my life. I realize that I am only one of many whom you have granted clemency to, but I want to assure you that I won’t let you down.

Sincerely, Donel Marcus Clark.”

A 51-year-old who has spent more than two decades behind bars, Clark is one of 22 nonviolent drug offenders whom Obama granted clemency in March in an effort to shorten the harsh mandatory minimum sentences imposed on thousands of mostly African American men during the war on drugs in the 1980s and 1990s.

Those ex-convicts, along with 46 others given commutations in July, are making their way from federal prison back into neighborhoods around the country. Separately, 6,000 federal prisoners will be released at the end of the month after retroactive changes in sentencing guidelines.

After receiving Obama’s clemency letter six months ago in the Seagoville federal prison, just southeast of here, Clark was surrounded by guards and inmates who shook his hand and congratulated him.

He was free, they told him. But freedom, he learned, comes step by bureaucratic step.

Inmates granted clemency are first moved to lower-security prisons, then to halfway houses before home-confinement and, finally, probation.

Clark was initially transferred to a minimum-security prison camp at Seagoville, but outside the high razor-wire fence.

“I was like, man, I’m out here outside the fence and it was so weird,” Clark said.

TOP: A letter from President Obama granting Donel Marcus Clark's commutation. BOTTOM: A draft of a letter Clark is writing to thank Obama. “When I read the president’s letter to me, I could hear Obama’s voice,” he said. (Nikki Kahn/The Washington Post)

An inmate who took care of the prison grounds offered him a ride around the area on a four-wheel John Deere that resembled a golf cart.

“I said, ‘Hey, can I do this?’ ” asked Clark, who said he learned to be obedient in prison and worried he was breaking a rule. The prisoner assured him it was okay. Clark felt the unfamiliar sensation of the breeze on his face as the inmate drove down to a pond so they could look at the turtles.

“After 22 years, it was my first taste of freedom,” Clark said.

Three weeks later, at 7:25 a.m. on April 30, Clark was released from Seagoville prison. “Don’t come back,” a guard said. “Don’t worry about that,” Clark replied.

He pushed open the front glass door to a bright, chilly morning. His sister and his niece were waiting in the parking lot.

“My uncle Marc is coming home!” his niece, Kristen, yelled. “A long time coming. Oh my God!”

Clark, dressed in drab gray prison shorts and a T-shirt, tried not to show any emotion as he walked down the long prison sidewalk.

When he reached their car, he broke into laughter and hugged them tight.

After being sentenced to 35 years in prison for a nonviolent drug offense, Donel Clark was granted clemency by President Obama in March 2015. Now living in Fort Worth, Clark is adjusting to life on the outside. (Nikki Kahn/The Washington Post)

Donel Marcus “Marc” Clark was known as a “square” in the southeast Dallas neighborhood where he grew up.

Raised by his grandmother after his mother died of cancer when he was 13, Clark went to church regularly and worked at a grocery store during high school. He was hired to work full time after graduating and a few years later took on a second job managing a liquor store for a friend. At 24 he married Ceyita Sampson, a neighborhood girl. They had a son and bought a house.

But Clark’s life began unraveling when he got fired after getting into an argument with his manager at the grocery store when he was not paid for doing extra work.

Clark fills out paperwork before meeting with his probation officer hours after being permanently released from the halfway house and out of the custody of the Bureau of Prisons. “Today is my first day of real freedom,” he said. (Nikki Kahn/The Washington Post)

“I was young and stupid,” Clark said.

About the same time, his friend decided to sell the liquor store and Clark knew he was about to lose that job as well. By then he was supporting three children, including one with an ex-girlfriend and his wife’s son from a previous relationship.

When a former classmate and known drug dealer came into the liquor store, Clark noticed his new truck with new jet skis on the back. Clark asked if there was a role for him in the business.

“He said, ‘This isn’t for you,’ ” Clark recalled. “I wasn’t a street guy. But I told him, ‘I’ve got bills, I’ve got family. I need some help.’ ”

His friend offered him a job packaging the drugs and supervising the “kitchen crew” — which cooked the powdered cocaine into crack. He would get paid $1,000 a week.

“I was like, man, $1,000 a week!” Clark said. He didn’t worry about money for a year and a half. He bought his wife jewelry and a car.

Then in May 1992, he was arrested. Police raided his house, and the recently purchased cars, televisions sets and electronic gear were all seized.

After a three-week trial a year later, Clark, then 29, was convicted of conspiracy with intent to distribute cocaine, using the phone to commit a felony and manufacturing cocaine near a school — one member of the group lived within 1,000 feet of one. The judge determined that the group distributed more than 50 kilos of crack.

Clark, who had never been arrested before, was sentenced to 35 years.

Later, the prosecutor in the case said she always believed Clark’s sentence was too severe, but in court the judge said his hands were tied.

Clark was sent about 1,500 miles away from his wife and three sons — then 12, 8 and 4 — to Allenwood prison in Pennsylvania.

“They punished all of us for not pleading out and going to trial by sending us as far away from Texas as they could,” Clark said.

Two years later, Clark’s prison was one of four that erupted in what became known as the crack riots of 1995.

After Congress rejected a proposal by the U.S. Sentencing Commission to undo the huge disparity in sentencing between possession of cocaine powder and crack, uprisings broke out at four federal prisons. Inmates smashed windows, set fire to mattresses and attacked guards. Dozens of prisoners, guards and staff were hurt.

Although Clark was not involved in the rioting, he, like all the other inmates, was confined to his cell in a prison-wide lockdown for weeks afterward. It was during that time that a guard delivered a letter informing him that his appeal had been denied.

Soon after that, Clark’s wife stopped sending the money he needed to make phone calls, buy food at the commissary and send e-mails. “It’s hard out here,” she told him, saying she needed to take care of their sons.

He asked her to stay in touch with letters and photos. The birthday cards kept coming, but eventually the anniversary cards stopped.

“She pretty much faded out,” he said.

Clark got a letter from a friend who told him his wife was seeing someone else. He was deeply wounded.

To survive life behind bars, Clark adopted a three-part strategy: He woke early every morning and ran three miles. Although many inmates chose not to work for the low wages, he went to a prison job in the textile factory every day, sewing pockets on military jackets for $1.24 an hour. And he studied the Bible.

“My faith in Christ is what sustained me,” Clark said. He maintained a perfect disciplinary record.

In 2004, following five years in a Louisiana prison, Clark was finally transferred to Texas and his sister, Barbara McNair, could visit, along with his sons and his wife. Prison rules dictate how long spouses can hug and kiss in the visiting room. But, by that time, it didn’t matter.

“We weren’t in a kissing frame of mind,” Clark said.

TOP LEFT: After the halfway house, Clark was moved to home confinement and was allowed to sleep at his sister’s house, where he is seen in the kitchen. TOP RIGHT: Clark leaves work, where he wakes at 3:30 a.m. and starts at 5 a.m. after slipping on thick, mustard-colored gloves and liners, and a “cold suit” to pull grocery orders in the 15-degrees-below section of the Kroger warehouse. BOTTOM: Clark walks to his truck after his final release from the halfway house. With the warehouse job, a place to live temporarily, a vehicle to use and a cellphone, Clark is in better shape than many other ex-offenders. (Nikki Kahn/The Washington Post)

When Clark was released from the low-security camp, his sister and niece drove him to a Fort Worth halfway house where he had to report immediately. On the way, he rushed into a Whataburger to pick up fries and a burger to go.

When they arrived at the facility, Clark was told he couldn’t eat. He had to fill out forms and take a drug test. Two hours later, an administrator allowed him to take out his food, now cold. “It was still good,” Clark said, “because it was real food, not prison food.”

Still under the custody of the Bureau of Prisons, Clark was assigned for the next three months to a bunk bed in a room with 18 other men in a squat brick building run by the Volunteers of America.

“You think you’re free, but this was just a different prison with a new set of rules,” Clark said. “You’re looking to get back into society, get back to your family and get back into the world. They give you a taste of freedom but say, ‘We’re not going to give it all to you yet.’ ”

Clark could only leave to look for a job, go to work or attend church. He could only have a basic flip phone with no ability to use the Internet. He had to report in every few hours from a landline.

One day he went to get a driver’s license. After waiting in a long line, Clark realized it was time to call to check in. He walked to the front counter to ask a woman to use the phone. “You need to call YOUR HALFWAY HOUSE?” she said so loudly that everyone in line could hear.

“It was so embarrassing,” Clark said.

After the halfway house, Clark was moved to “home confinement” and was allowed to sleep at his sister’s house. He was subject to random searches and phone calls, including in the middle of the night. A staffer showed up unannounced one time to see if there were drugs or alcohol in the house or if Clark had a smartphone.

Clark finally landed a job, at $13.45 an hour, in the freezer section of a warehouse run by the grocery chain Kroger, which, like a growing number of companies, is willing to give ex-offenders a second chance.

He wakes at 3:30 a.m. and starts work at 5 a.m. after slipping on thick, mustard-colored gloves and liners, and a “cold suit” to pull grocery orders in the 15-degrees-below section of the warehouse. He is working so many hours that it’s hard to find time to spend with his grown sons or the grandchildren he doesn’t know.

Clark’s dream job is driving a truck to haul new cars, work that he’s heard pays good money. But first he’ll need enough money to stop working and take four weeks of classes to get a commercial driver’s license.

With the warehouse job, a place to live temporarily, a vehicle to use and a cellphone, Clark is in better shape than many other ex-offenders. Former prisoners like Clark, who are first-time, non-violent offenders, are less likely than other convicts to commit another crime, according to studies of recidivism rates.

But a recent report by the Ella Baker Center for Human Rights in Oakland, Calif., found that the impact of incarceration is often economically crippling for former inmates and their families. According to the study, 67 percent of former prisoners surveyed were unemployed or underemployed five years after release.

LEFT: As Clark leaves the halfway house for the last time, he sees a former inmate doing the janitorial job he used to have. RIGHT: Brittany K. Byrd meets for lunch with her client, Clark, following his release from the halfway house. (Nikki Kahn/The Washington Post)

At 6:05 a.m. on July 28, Clark signed his name on the Justice Department’s “Notice of Release” form at the front counter.

“You’re out,” said Merrill Wells, facility director of the halfway house. “Good luck! Take care.”

Clark had to report to a nearby U.S. Probation and Pretrial Services office where he filled out more forms and was given a new set of restrictions. He was told that he can’t communicate with anyone with a felony conviction or travel beyond a certain area without permission. He took another drug test and is subject to one at any moment over the next four years.

Clark drove to downtown Dallas for a celebratory lunch with his lawyer, Brittany Byrd. In a sleek restaurant in Klyde Warren Park, Clark ordered Atlantic hake fish and chips and looked out the floor-to-ceiling windows, watching children playing and splashing in the park’s water fountain. He bowed his head and prayed.

“Today is my first day of real freedom,” he said.

That night, Clark drove to the apartment of his wife, Ceyita. She had come to visit him in the halfway house and told him that she wanted him back. She said she still loved him and had not gone out with another man in two years.

In her apartment, Clark looked around for signs of another man. He peeked in the medicine cabinet and her closet. No sign.

Ceyita played him a song by Tyrese called “Shame”:

“I need your forgiveness and your mercy, too. I must be all kinda crazy for what I’ve done to you. I hope you understand that my heart is true. … This is not an excuse. I’m just telling the truth. Baby, I’m so sorry for hurting you.”

Clark was touched but uncertain. This was a complicated decision. His wife abandoned him, he felt, yet she never divorced him. With his deep religious faith, Clark does not want to violate his marriage vows.

“I don’t know,” Clark said. “I need to take it slow.”

He agreed to date her to see if “the old feeling is there.”

One recent evening, Clark put on a new shirt. His wife picked him up at his sister’s house and they drove to a nearby T.G.I. Friday’s. Over $12 endless appetizers, they laughed about how they first met at a carwash three decades ago. Then Clark pulled out his new smartphone, and they looked at photos of their sons and grandchildren — another step in his struggle to catch up with the past 22 years.

Clark laughs with his wife during a recent dinner date. He agreed to date her to see if “the old feeling is there.” (Nikki Kahn/The Washington Post)

A ‘virtual get-out-of-jail-free card’

A new California law to reduce prison crowding keeps one addict out of jail, but not out of trouble

By Eli Saslow
October 10, 2015

(Jahi Chikwendiu/The Washington Post)

They gathered outside the courthouse in November for a celebration on Election Day, dozens of people wearing fake handcuffs and carrying handwritten signs. “End mass incarceration!” read one. “Justice not jail,” read another. California voters had just approved a historic measure that would reduce punishments for more than 1 million nonviolent offenders, most of whom had been arrested on drug charges. “No more drug war,” people chanted that night, as the vote became official.

The new law, called Proposition 47, was intended to reduce crowding in the state’s overwhelmed prisons, save money and treat low-level criminals with more compassion, and inside the courthouse that day was one of its first tests: James Lewis Rabenberg, 36, a homeless resident of San Diego. He had been found in possession of a small amount of methamphetamine at a local park, a crime that had been considered a felony on the morning of his Nov. 4 sentencing hearing but by nightfall would be reclassified to a misdemeanor. Instead of facing more than a year in jail or in a residential drug treatment program, Rabenberg delayed his sentencing so he would be looking at the prospect of a small fine, some probation and his immediate release.

“The ideal example of a Prop 47 case,” a public defender had written in a motion to delay sentencing, because Rabenberg had no history of violence and had never been convicted of selling drugs. He had moved to California a decade earlier from Illinois, lost his job in construction, become addicted to meth, lost his house and then been caught several times with drugs. He was sick and sometimes trying to get better, and a few months earlier he had posted a message on his Facebook page. “Saving money, working, going to meetings, clean over 100 days and feeling good,” he had written. “Time for James to do James.”

The new consensus in California and beyond was that it was the role of the criminal justice system to give him that chance.

“This is about putting compassion first,” San Diego’s recently retired police chief said when Prop 47 passed. “We cannot solve crime by warehousing people.”

“Releasing some nonviolent offenders is the smart thing to do,” said Newt Gingrich, a 2012 GOP presidential candidate, explaining the conservative perspective.

“We cannot incarcerate our way out of a drug problem,” said Sen. Rand Paul (R-Ky.), explaining the libertarian perspective.

“It is abundantly clear that America needs a new strategy,” President Obama had said, in a speech about the failures of mass incarceration, and now California was beginning the country’s largest experiment yet as the judge decided Rabenberg’s sentence.

A $700 fine and three years probation, the judge announced at Rabenberg’s rescheduled hearing in early December.

“You’re free to go, Mr. Rabenberg,” he said. “Please consider this an opportunity. Good luck. I hope we don’t see each other again.”

TOP LEFT: Feb. 6: James Rabenberg was arrested for possessing drug paraphernalia near 4040 30th St. TOP RIGHT: Feb. 19: Rabenberg was arrested on a drug charge near the 2500 block of Albatross Street. BOTTOM LEFT: March 8: Rabenberg was arrested on a drug charge in the 1900 block of Adams Street. BOTTOM RIGHT: April 1: Rabenberg was arrested in the early evening in the 400 block of Cedar Street. (Jahi Chikwendiu/The Washington Post)

Off came the county-issued jumpsuit, off came the handcuffs and out Rabenberg went into a state where so many other people were being granted new opportunities, too. In the 11 months since the passage of Prop 47, more than 4,300 state prisoners have been resentenced and then released. Drug arrests in Los Angeles County have dropped by a third. Jail bookings are down by a quarter. Hundreds of thousands of ex-felons have applied to get their previous drug convictions revised or erased.

But along with the successes have come other consequences, which police departments and prosecutors refer to as the “unintended effects”: Robberies up 23 percent in San Francisco. Property theft up 11 percent in Los Angeles. Certain categories of crime rising 20 percent in Lake Tahoe, 36 percent in La Mirada, 22 percent in Chico and 68percent in Desert Hot Springs.

It’s too early to know how much crime can be attributed to Prop 47, police chiefs caution, but what they do know is that instead of arresting criminals and removing them from the streets, their officers have been dealing with the same offenders again and again. Caught in possession of drugs? That usually means a misdemeanor citation under Prop 47, or essentially a ticket. Caught stealing something worth less than $950? That means a ticket, too. Caught using some of that $950 to buy more drugs? Another citation.

“It’s a slap on the wrist the first time and the third time and the 30th time, so it’s a virtual get-out-of-jail-free card,” said Shelley Zimmerman, who became San Diego’s police chief in March 2014. “We’re catching and releasing the same people over and over.”

Officers have begun calling those people “frequent fliers,” offenders who knew the specifics of Prop 47 and how to use it to their advantage. There was the thief in San Bernardino County who had been caught shoplifting with his calculator, which he said he used to make sure he never stole the equivalent of $950 or more. There was the “Hoover Heister” in Riverside, who was arrested for stealing vacuum cleaners and other appliances 13 different times over the course of three months, each misdemeanor charge followed by his quick release.

There was also the known gang member near Palm Springs who had been caught with a stolen gun valued at $625 and then reacted incredulously when the arresting officer explained that he would not be taken to jail but instead written a citation. “But I had a gun. What is wrong with this country?” the offender said, according to the police report.

And then, in San Diego, there was Rabenberg, who just weeks after being released because of Prop 47 was caught breaking the law again.

He was arrested for possession of meth on Jan. 2 and released from jail Jan. 3.

He was arrested for having drug paraphernalia on Feb. 6 and issued a citation.

He was arrested again for having drugs on Feb. 19. And then again on March 1. And then again on March 8. And then again on April 1.

By April 26, he had been arrested for six misdemeanors in less than four months and been released all six times, so he was free to occupy a table outside Starbucks when a man named Kevin Zempko arrived to have coffee with his wife. Zempko sat at a table next to Rabenberg, who was picking apart the seams of his coat and dumping the contents of his pockets onto the table: some nickels, two $1 bills, a few scraps of paper, a dingy plastic cup and a lighter. Zempko watched for a few seconds and concluded that Rabenberg was probably a vagrant and an addict. “I just felt bad for him,” he said.

Rabenberg noticed Zempko looking his way and began to stare back, mumbling, gesturing, standing up and now pulling something new from the pocket of his coat. It was a small wooden steak knife. Rabenberg slammed it down on the table. He picked it up again, jabbed at the air and started moving with the knife toward Zempko, who stood up and placed a chair between them.

Zempko had been in the Marine Corps for 11 years, trained to recognize a threat, and he escaped into the Starbucks and warned other customers. The manager called the police. Another Starbucks employee tried to pacify Rabenberg with a free cup of coffee. By the time two police officers arrived, Rabenberg seemed mostly confused and tired. “Disoriented” was how a police report described him. The officers handcuffed Rabenberg and placed him in the back of their police car.

“What will happen to him?” Zempko asked, because now the threat had passed and what he felt most was concern for Rabenberg, even guilt.

“He needs help,” Zempko told the officers, and they asked for his phone number and said they would call as part of their investigation. For a few days, Zempko waited and wondered: If they asked him to testify, would he push for leniency or a strict sentence? Which would be better for the city? Which would be better for Rabenberg?

But the police never called. The arrest had been for possession of drugs and brandishing a deadly weapon — both misdemeanors. Rabenberg was booked into jail and released three days later.

Kevin Zempko was sitting near James Rabenberg outside this Starbucks on April 26 when the homeless man became agitated, pulled a small knife from his pocket and started moving toward Zempko, who was able to avert the threat. After police arrested a “disoriented” Rabenberg, he was booked into jail and released three days later. (Jahi Chikwendiu/The Washington Post)

“What are we supposed to do here?” asked Jan Goldsmith, the San Diego city attorney. “How do we end this cycle?”

He was sitting at the conference table in his downtown office, trying to solve the problem that had been troubling him for months. His staff was in charge of prosecuting all misdemeanors in San Diego, and now it was dealing with dozens of people like Rabenberg, frequent fliers who no longer overcrowded the prison but whose cases continued to clog the courts. “How can we change behavior when they know there’s no real threat of punishment, no incentive?” Goldsmith wondered.

He had liked many of the theories behind Prop 47: a system designed to be merciful, with more emphasis on treatment and fewer jail sentences. These were ideas he had once pursued himself.

He had served as a judge before becoming the city’s top prosecutor, and for a while he had presided over San Diego’s alternative drug court. That was a system that seemed intuitive to him — a logic he could easily explain to addicts from the bench. Get caught with drugs once and maybe you would only get charged with a misdemeanor. But by the second time, or certainly the third, the charge became a felony and most offenders were faced with a choice: Go to state prison or participate in drug court, which usually meant at least 18 months of mandatory drug testing, treatment and supervision under the constant threat of prison time. Many chose drug court and entered into treatment. Sixty percent of those who enrolled graduated. Seventy percent of graduates stayed out of trouble for at least three years.

“I don’t know many addicts who magically wake up and say, ‘Hey, I want help,’ ” Goldsmith said. “They have a terrible, horrible disease. They’re addicted to drugs. Often times, they’re stealing to buy those drugs. You need consequences. They don’t get better on the honor system. You need to nudge them, shove them, kick them in the door.”

But now more addicts were declining drug court, because spending a few days in jail on a misdemeanor charge was easier than 18 months of intensive rehab. Without the threat of a felony, there was little incentive to get treatment. Drug court programs had closed in Fresno and Riverside. Enrollments had dipped by more than a quarter in many places across the state. Rabenberg had been offered drug court three times and always declined, choosing instead to plead guilty to a misdemeanor. California had promised to use some of the savings generated by Prop 47 for drug treatment. But that money wouldn’t be available until 2016, which to Goldsmith seemed like a long time to wait.

Rabenberg was arrested again May 29 with meth while panhandling near Balboa Park.

“Frustrating, frustrating,” said Zimmerman, the police chief, speaking not just about Rabenberg but all frequent fliers. “Just sending our officers to deal with problems that never get solved.”

He was arrested again for drugs July 4.

“We are enabling this kind of behavior,” said Bonnie Dumanis, the district attorney for San Diego County.

He was arrested again July 29 and Aug. 9.

“Aren’t we lulling him into a sense of security?” Goldsmith said. “How does it end? There’s no more incremental punishment. We let the behavior continue. We let the problems get worse. And all we can do is wait until he does something terrible, until he stabs somebody or kills somebody, and then we can finally take him off the street.”

San Diego City Attorney Jan Goldsmith’s office is in charge of prosecuting all misdemeanors in the city, including Proposition 47 cases. (Jahi Chikwendiu/The Washington Post)

There was another possible outcome for Rabenberg, too — one that was sending his mother, Denise Klemz, to visit a psychiatrist each month in Joliet, Ill., prompting her to hire a private investigator, compelling her to look up phone numbers in San Diego for the police station, shelters, hospitals and the morgue. “Is he dead?” she would sometimes ask people about her son, whom she had been trying to locate for more than three years.

“A bighearted, free-spirited type person” was how she sometimes described him in those phone calls to San Diego, because for a while after high school his life had been going pretty well. He had gone backpacking through Yellowstone National Park, moved in with a girlfriend and taken a job at the Illinois Tollway. Then he had crashed his car after a party and sent one of his passengers through the windshield. The passenger had survived, barely, but Rabenberg was never the same. He had started regularly using cocaine, Klemz said, and then he caught hepatitis C by sharing needles in Chicago.

She had sent him to live with her brother in California in the late 1990s, and that was the last time she had seen him. Her brother had kicked Rabenberg out when he started using meth, and for the past dozen years, Klemz suspected that her son had been mostly homeless. He had called her one time, after his grandmother died, asking her to send money for a bus ticket home. She had offered to send him the bus ticket instead, because she didn’t trust him with money. “Don’t bother,” he had told her, and they hadn’t spoken since.

She had an old cellphone number for him, and even though she knew the phone had been shut off, she still sent him a text message every few days, just in case. “Please come home,” she wrote. “I’m sorry.” “Are you safe?” “Starting to get cold here. Is it cold there?”

The private investigator had taught her how to type Rabenberg’s name into the San Diego jail database to see whether he was in custody. A few times she had seen his name in the arrest logs and felt some measure of relief. Maybe he would be forced to detox. Maybe he would get help. She had called the jail once to inquire about visiting him, or writing a letter, but by the time she reached a receptionist, she was told that Rabenberg had been released. He had not left an address or a phone number, so she sent another message to the number she already had.

“What’s happening to you?” she had written.

TOP LEFT: From the outreach workers’ van, which is painted with the slogan “Where Miracles Happen,” Carlos Juarez talks with homeless man, Chris Wallace, on a street in San Diego. TOP RIGHT: Larissa Wimberly, one of the three outreach workers whose salaries are being paid by a downtown business association, fills out a form for Paul Gaston. BOTTOM: As he encourages the homeless to move away from business storefronts, Cain Mariscal checks on the well-being of “Dollar Man,” the nickname for one of the outreach workers’ regulars. (Jahi Chikwendiu/The Washington Post)

No one knew, and under Prop 47, nobody had a compelling reason to find out. The reality was that no one was really looking for Rabenberg at all, except for three nonprofit workers who had recently begun driving loops through the sprawling parks and homeless encampments of San Diego.

Their salaries were being funded in part by a downtown business association to address problems created by the homeless population, which had increased noticeably since the passage of Prop 47. More than 1,200 fewer people were in the local jail each night. Meanwhile the number of unsheltered homeless people in downtown San Diego had grown 24 percent based on the city’s latest count, and more than 8,000 homeless people stayed in the city on any given night. The city estimated that a third of those people were chronic substance abusers. Emergency room visits for drug overdoses had begun to tick up. Assaults on police officers had risen by more than half in precincts with high homeless populations. So local businesses had pooled together $50,000 to hire three outreach workers, all formerly homeless themselves, to deal with the problems of frequent fliers in a system that no longer could.

They patrolled the neighborhood in a van painted with the slogan “Where Miracles Happen” and moved drug users away from businesses and back into the hidden canyons of Balboa Park. They offered rides and free food to addicts who were loitering or harassing customers outside the 7-Eleven.

“We used to call the police, but they don’t want to waste all their time writing tickets,” said Larissa Wimberly, one of the outreach workers. “We just try to handle it.”

They had built relationships with many of the homeless people, and they knew about Rabenberg, too. He had filled out one of their enrollment forms a while back, asking for help, and he had even checked himself into a treatment facility once before bailing after three days. Now they sometimes saw him straggling around the Hillcrest neighborhood, always in the same jeans and sweatshirt, or staying in a tent behind the manicured lawn bowling facility in Balboa Park. “A regular,” they called him, and on this day they saw many of their regulars, who they referred to by nicknames.

There was Dead Leg limping up the sidewalk, and Cry Baby complaining about the heat, and Dollar Man panhandling at the Starbucks. The van stopped at a major intersection where some homeless men were pushing along shopping carts in the middle of busy roads. “You can’t be doing this stuff right here,” Wimberly told them, suspecting that they were high. After that, the workers responded to a call about an “aggressive panhandler” at a local craft market. “You’re scaring these people,” Wimberly told the man.

They drove seven loops through downtown until it started to get dark. They saw dozens of tents scattered in the unincorporated canyons, too far from any road to approach. They passed an encampment of 200 people near the freeway, a group so notorious for theft and drug use that police had warned outreach workers not to visit. Some people didn’t want help, Wimberly said. Others were beyond it. They drove back downtown as their shift ended.

“All we can do is deal with people who want our help or people who are causing problems,” Wimberly said, and on this day, at least, Rabenberg was neither of those.

TOP: July 4: Rabenberg was arrested for drug possession in an alley east of Illinois Street. BOTTOM LEFT: Aug. 9: Rabenberg had drugs impounded during his arrest in an alley west of Louisiana Street. BOTTOM RIGHT: Aug. 28: Rabenberg was arrested for possession of meth in the 3900 block of Texas Street. (Jahi Chikwendiu/The Washington Post)

On Aug. 14, he was arrested for failing to appear in court on two drug charges. He was released Aug. 18.

On Aug. 28, he was arrested for possession of meth and then released Sept. 1.

On Sept. 19, he was due to appear in court for a hearing on three of his cases. A note on his file read, “Enough!” because Rabenberg had now been arrested 13 times.

He had failed to appear in court seven times. He had threatened the public safety. He had endangered his own health. “Who exactly is benefiting here?” said Goldsmith, the city attorney, who hoped that the judge would compile Rabenberg’s misdemeanors into one sentence and force him into an extended jail term or at least drug treatment.

Now the clerk called the courtroom to order. Lawyers wheeled in carts of alphabetized files. The judge announced the beginning of another busy docket in the era of Prop 47.

“Mr. Rabenberg,” the judge said, calling out the next case.

“Mr. Rabenberg,” he said again.

“Where is Mr. Rabenberg?” the judge asked, finally, but wherever Rabenberg was, he wasn’t here.

Softening sentences, losing leverage

Some prosecutors fear the consequences of weakening mandatory minimums for drug convictions

By Ann E. Marimow
October 31, 2015

(Nikki Kahn/The Washington Post)

In Portland, Ore.

When the judge entered the wood-paneled courtroom to begin the sentencing hearing this fall, 19-year-old Morgan Brittain was the only one who didn’t stand. She remained seated in her wheelchair in the front row.

Brittain looked in many ways like the girl she once was: Nike sneakers with hot pink laces, nails painted maroon and silver. She still had the slender frame of the dancer and runner she was before she overdosed two years ago on a half a gram of heroin she split with a friend.

The drugs had done serious harm. A younger cousin had to read Brittain’s statement to the judge on her behalf:

“I constantly feel like a burden on everyone because of all the things I can’t do: walk, talk easily, feed myself, bathe myself, drive, draw or even write this statement out. … The damage it has caused to my family and I is too much to even begin to describe.”

Brittain and her family had come to court to face German Tovar-Ramos, a man authorities described as a key supplier in the organization that sold the heroin to Brittain’s friend.

Within days, police arrested Tovar-Ramos because investigators and prosecutors had threatened people on lower rungs of the organization with stiff mandatory sentences: A girl is on life-support, they said; help us get to the higher-level traffickers, or you could end up in federal court facing 20 years in prison.

In court, prosecutors portrayed Tovar-Ramos as a high-level drug dealer who moved pounds of heroin every week. His defense attorney argued that his client was no more than a glorified delivery boy, and certainly not a kingpin.

When it was his turn to speak, Tovar-Ramos rose to apologize, dressed in a gray-striped county jail uniform. “I am very sorry about everything I have done to this family,” he said in Spanish, looking straight ahead at the judge. “I was simply trying to help out my own family.”

The story of how Tovar-Ramos was apprehended illustrates how heavily prosecutors rely on mandatory minimum sentences to take down drug networks. But this leverage could soon be diminished because of concerns that it has been used too liberally to lock up low-level nonviolent offenders who face punishments that are much more severe than their crimes.

Morgan Brittain suffered serious brain damage after overdosing on heroin in 2013. Now 19, she lives with her grandparents and can't walk or feed herself.(Nikki Kahn/The Washington Post)

A broad coalition — including President Obama, Koch Industries, the American Civil Liberties Union and some police chiefs and district attorneys — is calling for the country to recalibrate the scales of justice, especially when it comes to the harsh drug sentences that have driven a decades-long surge in the U.S. prison population. Many advocates say that the war on drugs has led to needlessly long prison terms. The policies have disproportionately affected minority communities, since so many of those incarcerated have been black or Latino.

Legislation introduced this month in the House and Senate would shorten the length of some mandatory minimums created beginning in the 1980s and would give judges more leeway in sentencing. The Senate version was recently approved by the Judiciary Committee, but no vote has been scheduled yet.

Defense attorneys and others pushing to reduce mandatory sentences say that the threat of decades in prison leaves defendants without a choice at the plea bargaining table. Advocates for sentencing reform have also said that judges should have the flexibility to better match prison sentences with the threat defendants pose to public safety.

Deputy Attorney General Sally Quillian Yates has expressed the administration’s support for legislation to reduce some mandatory penalties and said prosecutors and investigators could still effectively do their jobs without such sentences.

But some prosecutors and other law enforcement officials are lobbying against the changes, saying the legislation will make it harder for them to dismantle criminal organizations or uncover other crimes, including homicides.

“The leverage, the hammer we have comes in those penalties,” said federal prosecutor Steven H. Cook, who is part of a group of law enforcement officials who oppose the sentencing reform legislation. “It is the one and only tool we have on the other side.”

In Oregon, federal prosecutors said they had no interest in taking sides in a politically sensitive policy debate. They agreed, however, to talk specifically about how and why they have repeatedly relied on mandatory prison sentences to respond to a heroin epidemic that nationally accounts for more than 8,250 overdose deaths a year.

Morgan Brittain was nearly one of them.

TOP LEFT: Larry Linenko struggles to pick up his 19-year-old granddaughter, Morgan Brittain, as he helps put her in his pickup truck to drive her to a physical therapy appointment. TOP RIGHT: Ann Linenko, an addiction counselor, administers one of three daily feedings of food and medicine to her granddaughter. BOTTOM: Brittain has trouble bathing herself and often gets assistance from her cousin. (Nikki Kahn/The Washington Post)

In May 2013, Brittain was a junior in high school, struggling with addiction just as her mother had. After two months at an in-patient treatment program, she was excited about coming home to her grandmother’s house on a weekend pass.

That night, after a few text messages back and forth with a friend, Brittain paid her $45 for part of a plastic bag containing half a gram of black tar heroin, the size of a pencil eraser. Then she smoked it.

Brittain’s grandmother, Ann Linenko, awoke on Mother’s Day to the crying screams of her two young grandchildren. They had found Brittain unconscious on the bedroom floor. Her lips were purple. She would spend the next four months in a coma.

Brittain was not expected to live. Her family was days away from taking her off a respirator. Slowly, that August, she began to regain some brain function.

By then, law enforcement officials had already figured out the source of the heroin.

On the morning of her overdose, police relied on the text messages and interviews with Brittain’s family to track down the friend who provided the drug.

The friend pointed police to the street-level dealer, who was arrested the next day after a drug sale monitored by police.

What matters most in these cases is not the amount of drugs sold, but that a person died or was seriously harmed from the drugs that came from a specific dealer. Investigators quickly leapfrog up the organization because the low-level players are willing to cooperate when they learn about the 20-year-mandatory penalty, a potent provision of the anti-drug trafficking law.

Congress created the 20-year mandatory minimum penalty in 1986 just months after University of Maryland basketball star Len Bias overdosed on cocaine. The provision, informally named after Bias, allows prosecutors to implicate an entire drug-trafficking enterprise — every step up the ladder from street dealer to supplier — if they can determine that the drugs the operation sold caused the overdose.

Proving that an overdose is the result of a particular drug from a specific dealer is often difficult. Local police must investigate fatal overdoses as potential homicides, collecting cellphone data, fingerprints and other evidence. The medical examiner is quickly called in to determine the likely cause of death.

Four days after Brittain’s overdose, police arrested Tovar-Ramos after watching him attempt to deliver a paper bag containing about three pounds of heroin worth more than $45,000. After they found a digital scale and red notebook listing drug sales while searching his apartment, police arrested two others.

In all, four men were hit with two charges that carried mandatory federal sentences: 10 years for a conspiracy that involved 1 kilo or more of heroin and 20 years for the connection to an overdose. Prosecutors said the organization was responsible for distributing a total of 50 kilos, or enough heroin for an estimated 500,000 individual hits.

In court, Tovar-Ramos’s attorney argued that prosecutors were overstating his client’s role in the drug supply chain. He was not out recruiting new customers. He didn’t package or weigh the drugs or count the money.

Tovar-Ramos, called “Gordito” by his friends, was an undocumented immigrant who had come to the United States from Mexico as a teenager with a sixth-grade education. He worked on farms and as a roofer in California to send money to his family. In Las Vegas, he became addicted to cocaine and began selling drugs to support his habit, according to court records.

He was arrested twice in less than two years for selling small amounts of cocaine and heroin. He spent a total of 15 months in custody for both convictions and was deported in 2008.

Back in Mexico, Tovar-Ramos found work at a Puerto Vallarta hotel that paid about $100 a week. He returned to the United States to pick strawberries on an Oregon farm. When the season ended, he was offered $500 a week — plus a car, phone and place to live — to work as a drug courier for the organization that would supply Brittain with the heroin that almost killed her, according to court records.

Tovar-Ramos was paid the least but took on the highest risk, his lawyer Thomas K. Coan said in court. Tovar-Ramos’s roommate was paid twice as much, according to the defense, and the general manager of the operation earned $5,000 per week.

In the past two years, Coan has represented at least three defendants in heroin overdose cases. He is impressed with but not surprised by how quickly investigators move up the chain in an organization.

“It scares the pants off anyone who is looking at that amount of time,” Coan said. “The police know the law and the hammer it holds for them.”

In courtrooms throughout the country, about 97 percent of people accused of committing federal crimes plead guilty instead of going to trial, where prosecutors would have to prove their cases beyond a reasonable doubt.

The case involving Tovar-Ramos was no different.

During negotiations with Tovar-Ramos, prosecutors agreed not to seek the 20-year mandatory sentence. All four men would eventually plead guilty to the conspiracy charge that carried a 10-year mandatory penalty because it involved 1 kilo or more of heroin.

But, at his sentencing hearing, prosecutors were allowed to ask for more than double the time — nearly 22 years — for Tovar-Ramos. He had two prior drug convictions and had acknowledged the connection to the overdose. Tovar-Ramos also had not helped prosecutors with their case, so he did not qualify for a formal sentence reduction.

At the Senate Judiciary Committee hearing earlier this month, deputy attorney general Yates said that the “prospect of a lengthy sentence certainly provides a powerful incentive for a defendant to cooperate, but I don’t think that it has to be a mandatory minimum sentence.” Mandatory penalties, she said, are “most effective when they are targeted at the most serious crimes and at the most serious offenders.”

She also pointed to the department’s change in policy two years ago: Former attorney general Eric H. Holder Jr. directed prosecutors not to charge lower-level, nonviolent drug dealers with certain drug offenses that carry severe mandatory sentences. Since the 2013 Holder memo was issued, Yates said, defendants have continued to plead guilty at the same rates.

But Cook, the head of the National Association of Assistant United States Attorneys, said the rates of cooperation have not changed in part because mandatory sentences are still in play as leverage in negotiations. The Holder memo, he said, has been interpreted differently by individual prosecutors, sometimes in the same office.

Defense attorneys “understand that this tool is still in our pocket,” Cook said.

The legislation under consideration in Congress would not modify the 20-year mandatory penalty that applies in overdose cases. But Cook’s group says the bills would undercut the threat of a 10-year mandatory minimum for a kilo or more of heroin, for instance, because a judge would have the discretion to drop the sentence to five years for certain defendants.

For Portland-based federal prosecutor Kathleen Bickers — who has handled most of the office’s 41 overdose cases involving 76 defendants — the mandatory minimum sentences are not merely part of a strategy for securing cooperation in her cases.

Prosecutors in the Oregon U.S. attorneys’ office said they do not want to be perceived as heavy-handed bullies or as arbitrary in their charging decisions.

Under the law, someone like supplier Tovar-Ramos has not committed a violent crime. But Bickers and her colleagues believe that those who supply dangerous drugs like heroin are in essence doing violence against people, wrecking families and communities, and deserve harsh sentences.

“Those who deal in heroin deal in death. They need to know that we’re not going to tolerate this,” Assistant U.S. Attorney Steven T. Mygrant said after the sentencing hearing in September at the towering courthouse in downtown Portland.

“Morgan Brittain is paying a much worse price than any drug dealer with a stiff sentence.”

LEFT: Criminal defense attorney Thomas K. Coan leaves the Columbia County Jail after meeting with his client, Tovar-Ramos. He argued that his client did not need to spend two decades in prison to learn a lesson. RIGHT: Assistant U.S. Attorneys Steven T. Mygrant and Kathleen Bickers pose for a portrait inside the courthouse. “The drug trade is inherently a very violent operation,” said Bickers, who has handled most of the office’s 41 overdose cases. (Nikki Kahn/The Washington Post)

Mygrant had recommended that Tovar-Ramos be sentenced to more than 21 years.

Coan, the defense attorney, told the judge that his client did not need to spend two decades in prison to learn a lesson.

Five, 10, 15 years in prison, he said later, would not change the nation’s drug problem or reduce demand for heroin. He doubted that such a long sentence would deter other men like Tovar-Ramos from making the same journey from Mexico in search of easy cash. More than 20 percent of federal prison inmates are non-U.S. nationals. Nearly half are doing time for drug-related crimes.

Coan also pointed out that two other participants in the drug ring — all higher up the chain than Tovar-Ramos, he said — had received shorter sentences than what prosecutors were asking for his client. One of those men didn’t have his record; the other had cooperated.

U.S. District Judge Anna J. Brown was clearly moved by the presence in the courtroom of Brittain and her family, a circumstance she called “heartbreaking.”

No matter the sentence or amount of money the men involved would have to pay in restitution to the family, Brown said, it “can’t really in any way make whole the family’s losses here.”

When the judge turned her attention to Tovar-Ramos, she took into consideration how his less serious earlier convictions for dealing drugs in Nevada had driven up the formula for determining his sentence.

But the judge was also firm in rejecting the argument that Tovar-Ramos’s smaller share of the profits made him any less culpable for Brittain’s overdose.

“Not one of these defendants would say he intended this kind of harm,” said Brown, who was appointed to the bench by then-President Bill Clinton in 1999.

“The harm doesn’t change,” she continued. “A young user was seriously injured, and Mr. Tovar-Ramos is as responsible as the others in this group.”

The final judgment: 17 years, 6 months.

The judge wished Brittain and her family well. Tovar-Ramos waited to be shackled and returned to jail, where he would be assigned to a federal prison.

Brittain sits outside her grandparents' home in a suburb of Portland, Ore. Two years after her overdose, she has re-enrolled in high school and is on track to graduate. (Nikki Kahn/The Washington Post)

Sari Horwitz contributed from Washington.

Struggling to fix a ‘broken’ system

By Sari Horwitz
December 5, 2015

The summer after President Obama began his second term in office, he and then-Attorney General Eric H. Holder Jr. were relaxing and watching fireworks from a porch on Martha’s Vineyard. Holder was about to interrupt his family vacation to fly to San Francisco and deliver a speech unveiling their plans to make the most significant changes in the country’s criminal justice system in decades.

“I’m the only one who hasn’t seen your speech,” Obama said teasingly to Holder while the two enjoyed drinks and appetizers at the rented beach house of the president’s senior adviser, Valerie Jarrett.

But the president really already knew what Holder planned to say.

The text was the culmination of countless conversations over the years between Holder and Obama about how this country prosecutes and incarcerates its citizens. Obama had seen the racial disparities of the decades-long war on drugs as a community organizer on the South Side of Chicago; Holder experienced them as a former D.C. judge and prosecutor. The two men met in 2004 at a small Washington dinner party shortly after Obama was elected to the Senate, and there was an instant connection. “We share a worldview,” Holder said recently. “We kind of feel each other.”

Now, they were finally ready to act. Some of Holder’s top advisers were nervous about his speech, which was to be delivered before the American Bar Association, and wanted him to take out a word they thought was too strong. Early in the president’s term, Holder had set off a political firestorm by slipping a controversial phrase into a speech — without running it by the White House first. But this time, he knew the president had his back, and Holder left the word in.

“While I have the utmost faith in — and dedication to — America’s legal system, we must face the reality that, as it stands, our system is in too many ways broken,” Holder told the hundreds of lawyers who filled the Moscone Center West that morning in August 2013, emphasizing the much-debated word: broken.

Laying out a three-part plan he called Smart on Crime, Holder said that he was directing his prosecutors nationwide to stop bringing charges that would impose harsh mandatory minimum sentences, except in the most egregious cases.

He called for more compassionate release of aging and ill inmates, more drug diversion programs as alternatives to prison and spoke of “shameful” sentencing disparities, a hint of Obama’s plans to use his clemency power to correct the disparities and release certain drug offenders early.

Holder’s remarks were interrupted with applause, and he received a standing ovation at the end. As he left the podium, an ABA official leaned over. “Courageous speech,” he said. It was front-page news across the country.

Nearly 2^1/2 years later, the administration’s major criminal justice overhaul has yielded mixed results. Obama and Holder helped launch a national conversation about mass incarceration. Last year, federal prosecutors pursued mandatory minimum sentences at the lowest rate on record — and sentencing reform legislation with bipartisan support has been introduced in Congress.

But some prosecutors are continuing to resist changes to mandatory minimum sentencing. The initiative has also not yet made a significant dent in the number of inmates crowded into federal prisons. Only 25 of the 531 elderly inmates who have applied for compassionate release under the new policy have received it.

And in the key executive action that Obama can take to undo unfair sentences, he has granted clemency to only 89 inmates of the thousands of federal drug offenders who have applied. The president is expected to grant clemency to about 100 prisoners in the coming weeks.

But Holder said he initially thought that as many as 10,000 of the federal prison’s nearly 200,000 inmates “were potentially going to be released” under the new clemency initiative. Other Justice officials say the number is closer to 1,000 or 2,000.

Criminal justice reform advocates are criticizing the president for moving too slowly and are calling on him to speed up the clemency process before his administration runs out of time.

“Given the president’s repeated concern about the numbers of people in prison serving excessive sentences, he has done little to alleviate the problem through clemency,” said Julie Stewart, president and founder of Families Against Mandatory Minimums. “The president has all the constitutional authority he needs to do the right thing. Failure here cannot be blamed on partisanship in Congress. If the president wants to correct past injustices, he can.”

Smart on Crime tour

The real planning for how to unwind the country’s war on drugs began the summer before Holder’s speech. He and Obama anticipated a successful second-term election. They were past the financial crisis and the president’s fight for health-care reform. Holder had survived a bruising battle with Congress over the release of internal Justice documents in the aftermath of a botched gun operation.

“Let’s go big,” Holder recalls Obama saying that August, again on the Vineyard. “It’s gutsy. It’s risky. But it’s something we ought to do.”

A few months later, in January 2013, Holder directed his senior Justice officials to break into groups and bring him recommendations. Holder and Obama were concerned about the backlash. Could they pull off this huge reversal of drug policy and sentencing? Would they be accused by Republicans of being soft on crime?

The pushback did come — but it was from within Holder’s department. In U.S. attorneys’ offices around the country, some prosecutors were supportive of the new policy, but others grumbled that Holder was taking away their most effective tool to get cooperation from drug offenders. The organization representing line prosecutors wrote a letter to Holder and then went over his head and sent letters to top congressional leaders, urging them not to change the sentencing rules.

During the fall of 2013, the responsibility to calm the troops mostly fell to Holder’s deputy attorney general, James M. Cole. He had visited federal prisons, seen the chaos and overcrowding firsthand and learned that one-third of the Justice Department’s $27 billion budget going toward prisons was taking away money from the FBI and other law enforcement operations.

James M. Cole, Holder’s deputy attorney general, traveled to U.S. attorneys’ offices and tried to persuade prosecutors to support the huge reversal of drug policy and sentencing. He was also responsible for recommending to the White House inmates for clemency. (Nikki Kahn/The Washington Post)

As he and Holder rolled out their policy changes, Cole traveled to U.S. attorneys’ offices to meet with rooms of federal agents and prosecutors.

“I still have the scars to show from my Smart on Crime tour,” Cole said recently.

When prosecutors demanded to know how they would make their cases now, Cole said he told them, “You see how much gray hair I have here? I was prosecuting cases before there were sentencing guidelines.”

“You know how I dealt with sentencing? I advocated. I went into the court, and I built my case on why I thought that person ought to get a higher sentence,” he said. “You advocate. You’re all good lawyers. You’re all good advocates. You go back to that.”

‘I look at you all, and I see myself’

While Cole was trying to persuade prosecutors, Holder took to the road to highlight successful substance-abuse treatment programs in Philadelphia, St. Louis and Peoria, Ill., as an alternative to prison.

At each stop that fall, Holder drew from his years as a D.C. Superior Court judge at the height of the crack-cocaine epidemic in the late 1980s and early 1990s, when the city was labeled the “murder capital” and his courtroom was filled with drug offenders.

“For five years, I saw this ocean of young black men come before me who should have been the future of Washington, D.C., and I sent them to jail,” Holder said later. “It was one of the reasons why I ultimately left the bench. The system was pushing me to put people in jail for longer periods of time than I thought were appropriate.”

He also witnessed how city residents were pushing back against a system they perceived as unfair. Trials where Holder thought the government had proved its cases beyond a reasonable doubt would instead end in hung juries. When he asked the juries afterward what happened, “they would say, ‘I voted not guilty, because I’m not going to send another black guy to jail,’ for what they considered an inappropriately long period of time.”

Holder’s push for drug treatment rather than incarceration was also personal.

As he spoke to young men and women in the drug diversion programs, he revealed that he had a nephew who had also struggled with drug addiction and had been in and out of jail. He mentioned close childhood friends from his lower-middle-class neighborhood of East Elmhurst, Queens, who battled with heroin and cocaine addiction.

“I look at you all, and I see myself,” he told them. “I grew up in a neighborhood in New York City where people like you would have been my friends. We would have gone to school together. We would have tried to learn about girls together. We would have played basketball together. So, I can’t help but feel mindful of the fact that, although I’m here in my capacity as attorney general of the United States, a few of the people I grew up with, good people like you, ended up taking different paths.”

Those different paths haunt Holder. To this day, when he talks about “my boys” and how their lives were destroyed by drug addiction, his voice cracks.

“I wasn’t just looking at statistics as attorney general,” Holder said. “For me, this is real, being Ricky Holder from 24th Avenue and 101st Street.”

TOP: Holder visits his childhood home, now owned by another family, in the lower-middle-class neighborhood of East Elmhurst, Queens. BOTTOM LEFT: Holder looks around his old bedroom. Some of his close childhood friends battled with heroin and cocaine addiction. BOTTOM RIGHT: Holder plays a game of basketball with his son near his home in Northwest Washington. (Nikki Kahn/The Washington Post)

Logistical nightmare

Every Saturday that fall, Cole carried home piles of documents. It was the one day when he could sit and think without being distracted. As the deputy attorney general, Cole — not Holder — was in charge of recommending which federal prisoners deserved presidential clemency. As Cole sifted through the petitions at the kitchen table in his Northwest Washington home, a pattern emerged.

“There were the traditional, what I called Mother Teresa ones — ‘I’m a really wonderful person. I’m totally rehabilitated. I’m ministering to people who really need it in prison,’ ” Cole said. But there was another much bigger group, the one Cole called “The Guys Who Got Screwed.” They were the drug offenders who “got sentenced way beyond what they would be sentenced today.”

Many of the latter had been sentenced under laws passed by Congress after University of Maryland basketball star Len Bias died of a cocaine overdose in 1986.

Both Republican and Democratic legislators, including senator Ted Kennedy (D-Mass.) and former senator Joe Biden (D-Del.), wanted to protect minority neighborhoods exploding in violence tied to crack. Under the leadership of Rep. Charles B. Rangel (D-N.Y.), many members of the Congressional Black Caucus had also voted for some of the most harsh sentencing legislation.

In the first eight names Cole recommended, he included three first-time nonviolent offenders who were serving life sentences. “I wanted to pick some that made your eyes pop out to make the point,” he said. On Dec. 19, 2013, Obama granted clemency to the eight, each of whom had spent more than 15 years in prison.

But Cole knew there were so many more who deserved presidential mercy. He also knew his department didn’t have the resources or the number of attorneys to find them.

So in January 2014, he went before the New York State Bar Association with an unorthodox idea: He asked lawyers around the country to help him find deserving inmates for clemency and prepare their petitions.

In response to Cole’s plea, four groups — Families Against Mandatory Minimums, the American Civil Liberties Union, the American Bar Association and the National Association of Criminal Defense Lawyers — came together to create Clemency Project 2014.

The umbrella group of pro bono lawyers wasn’t prepared for what happened next. More than 33,000 prisoners — about 15 percent of the federal prison population — applied for clemency.

“It turned into a logistical nightmare,” Cole said.

To write the petitions, the hundreds of lawyers involved had to locate old legal documents, contact prosecutors and judges who imposed the sentences, and try to get pre-sentencing reports and sentencing transcripts, some of which had not been transcribed.

It took nearly an entire year for Clemency Project 2014 to start recommending inmates for clemency.

From there, the process became even more cumbersome. The files had to be physically transferred to four federal buildings: first to the U.S. Pardon Attorney Deborah Leff, who oversees pardons and clemencies. Lawyers in her D.C. office on New York Avenue NW reviewed the petitions. Next they went to the deputy attorney general, now Sally Quillian Yates, for an additional review.

The deputy attorney general then sent the petitions with recommendations to the White House counsel in the Eisenhower Executive Office Building. Then more lawyers conducted another review to decide which ones go on to Obama to sign.

The criteria for figuring out whether to recommend clemency requests to Obama: Inmates had to have served at least 10 years, have no significant criminal history and have no connection to gangs, cartels or organized crime. They would also have to likely receive a substantially lower sentence if convicted of the same offense today, and they must have demonstrated good conduct in prison.

With the process taking longer than many had anticipated, everyone began pointing fingers. Justice officials complained they didn’t have enough attorneys to sort through the more than 9,000 petitions that are pending — and that the Clemency Project wasn’t getting them eligible candidates fast enough. Sometimes five different lawyers reviewed a petition before sending it on. Project attorneys said they were trying to be extremely careful in who they recommended and that their process is getting better.

“There’s no question that the president is frustrated with the numbers of people who have been sent to him,” Holder said recently.

The White House declined requests to interview the president about criminal justice reform.

Heather Childs, the chief of staff to Yates, said that the Justice Department is processing the applications “as thoroughly and expeditiously as we can.”

“To do that, we’re prioritizing the good applications, those that we think have a good shot and are meritorious,” she said. “We’re really focusing on those and sending them to the White House as they’re done.”

Childs said Justice lawyers have looked at all the prisoner petitions that have come in and are focusing on the ones they think have the “biggest injustice” and would not pose a public safety risk.

While the administration’s process was taking longer than expected, the independent U.S. Sentencing Commission ended up taking the most dramatic action of all to reduce the prison population.

The seven-member bipartisan commission made a change in the federal sentencing guidelines that retroactively made more than 40,000 drug offenders eligible for an average two-year reduction if a judge, in each case, found that they were not a public safety risk. Holder had supported the action, but again faced internal dissent. Many of his U.S. attorneys opposed the idea of reducing the sentences in their drug trafficking cases.

On Oct. 28, more than 6,000 inmates across the country began walking out of prisons and halfway houses in the first wave of early releases, the biggest ever to occur at one time. Another 8,550 inmates are expected to be released early by next November.

A weekly call

Holder and Cole have left the Justice Department and returned to private practice. In their absence, Obama has spoken out more about criminal justice reform in recent months.

In July, Obama gave his first major criminal justice speech to a crowd of more than 3,000 at the NAACP convention in Philadelphia, saying that “mass incarceration makes our entire country worse off, and we need to do something about it.” The next day he became the first sitting president to visit a federal prison by traveling to El Reno Federal Correctional Institution in Oklahoma.

But thousands of inmates with harsh sentences tied to the war on drugs, some with life without parole, are still waiting for relief in cramped prison cells. Their only hope is Obama’s unique clemency power. And time is running out.

Every Friday, Mark Osler, a law professor at the University of St. Thomas in Minnesota and an advocate for inmates petitioning for clemency, takes a phone call in his office from an inmate in a Texas prison.

The caller is Ronald Blount, 53, a former crack addict who was convicted of conspiracy to sell crack cocaine and given a life sentence in federal prison. He has been there for 16 years.

Holder reads a note on his desk as he arrives for his last day as attorney general in April. (Nikki Kahn/The Washington Post)

“Every Friday morning, Ronald Blount calls me on the phone, and I have to tell him nothing has happened,” Osler said. “It breaks my heart. I have to tell him, not only that he has gone another week, but that everyone has. That the entire system has failed for another week.

“Something about that call gives me an urgency that I wish the president felt,” Osler said. “I wish he would take a call from a prisoner every Friday and then decide if it’s worth putting this off for another week, another month, another year.”

Holder says he thinks “people just need to be patient.”

“He has talked about these issues in ways that no other president ever has,” Holder said. “He wants to use the power of his office and his persuasive abilities to get Congress to pass legislation that would put into law the changes that we have made.

“I think the test will ultimately be, where do we stand at the end of the president’s term opposed to where do we stand now? He still has months to go.”

President Obama commutes sentences of 95 federal drug offenders

By Sari Horwitz
December 18, 2015

President Obama commuted the sentences of 95 drug offenders Friday, more than double the number he granted this summer, in an effort to give relief to drug offenders who were harshly sentenced in the nation’s war on drugs.

It is the third time this year that the president has used his unique clemency power to release federal drug offenders, whose harsh sentences have contributed to the phenomenon of mass incarceration.

The commutations are a centerpiece of the president’s effort to make the most significant changes in the nation’s criminal justice system in decades. He and former attorney general Eric H. Holder Jr. have spoken passionately about the need to fix what they say is a broken system — one they argue has subjected too many nonviolent inmates to decades behind bars, disproportionately hurting minority communities.

“I commuted the sentences of 95 men and women who had served their debt to society, another step forward in upholding our ideals of justice and fairness,” Obama said.

One of the inmates Obama granted clemency was Sharanda Jones, a 48-year-old Texas woman who was sentenced to life in prison without parole for a single cocaine offense. She was a first-time, nonviolent offender.

The Washington Post highlighted Jones’s story in July as an example of the tens of thousands of inmates in crowded federal prisons who received severe mandatory minimum sentences for drug offenses during the crack-cocaine epidemic. Jones has spent 16 years behind bars, leaving an 8-year-old daughter to grow up without her mother.

Her daughter, now 24, broke down in tears when she heard that her mother will be coming home April 16.

“I’m so happy,” said Clenesha Garland, who lives in Dallas. “This is the best Christmas present for the rest of my life.”

Brittany Byrd, the Dallas attorney who first heard of Jones’s case when she wrote about Jones for a law school class, filed the clemency petition two years ago that Obama signed.

“Yesterday, Sharanda was set to die in prison as a first-time nonviolent offender,” Byrd said. “The president literally saved her life. She has more than paid her debt to society and is truly deserving of the mercy she was given today.”

Byrd said she called Jones from her car with the news shortly before Obama made his announcement.

“You’re coming home!” she told Jones, who is in Carswell women’s prison in Fort Worth.

Byrd said Jones seemed in shock at first. She was quiet on the other end of the line and then started crying softly.

“Thank you, Jesus, thank you,” Jones said on the phone with her attorney. “It’s been so long.”

In spring 2014, then-Attorney General Holder — who once called the harsh mandatory-minimum drug sentences “draconian” — started an initiative to grant clemency to certain nonviolent drug offenders in federal prison.

To qualify, prisoners had to have served at least 10 years of their sentence, and have no significant criminal history and no connection to gangs, cartels or organized crime. They must have demonstrated good conduct in prison. And they also must be inmates who probably would have received a “substantially lower sentence” if convicted of the same offense today.

“This is precisely the kind of case for which our reform efforts are designed,” Holder said in an interview Friday about Jones’s commutation. “We must use our limited resources in more appropriate, more just ways. The president has acted in a significant way today. Now Congress must act and pass meaningful criminal justice reform legislation.”

Lawmakers are debating several bipartisan bills to change sentencing laws.

In his last news conference before leaving for Hawaii for the holidays, Obama said he supported the Senate bill on criminal justice reform and hoped the House would pass a similar piece of legislation.

“There have been sincere negotiations and efforts by Republicans and Democrats to create a criminal justice system that is more fair and even-handed,” Obama said. “There is a good bill in the Senate. My hope is that it gets to the floor and gets paired with a bill in the House.”

After Holder announced the new criteria last year to open up the clemency process to more federal inmates, a massive number — about 33,000 — applied for relief.

“The response was overwhelming and enthusiastic and elevated the level of hope in prison that they may not actually die there,” said Julie Stewart, president and founder of Families Against Mandatory Minimums.

But it also created a logistical nightmare for a new group of private attorneys and law school students that had formed, with the encouragement of the Justice Department, to help find inmates who met the criteria set out by Holder. The group, called Clemency Project 2014, includes Families Against Mandatory Minimums, the American Civil Liberties Union, the American Bar Association and the National Association of Criminal Defense Lawyers.

The extensive number of applications and the complicated review process by the outside lawyers, the Justice Department and the White House has slowed the effort, advocates say.

It took about a year for the group to get organized and train lawyers for the massive effort, included locating old legal documents, contacting prosecutors and judges who imposed the sentences, and trying to get pre-sentencing reports and sentencing transcripts, some of which had not been transcribed.

Of the 33,000 inmates who applied and asked for help from attorneys, the clemency project weeded out about 18,000 applications that did not meet the criteria, according to Cynthia W. Roseberry, the project manager.

James E. Felman, an attorney and one of the leaders of CP14 who visited prisons to help find inmates who met the criteria, said the process is much more streamlined now. The group of lawyers has sent 263 petitions to the Justice Department’s Office of the Pardon Attorney to be considered.

Of the commutations Obama granted on Friday, 27 were prepared by pro-bono lawyers across the country and students in 24 law schools working with the clemency project.

Once the pardon attorney reviews the petitions, she sends them to Deputy Attorney General Sally Quillian Yates to be reviewed.

“While the clemency initiative is just one prong in the larger effort to reform sentencing practices, it is one to which we are strongly committed,” Yates said in a statement Friday.

Yates then sends the petitions and her recommendations to White House Counsel Neil Eggleston. More than 9,000 clemency petitions are pending, either at the Justice Department or the White House.

“It remains the case that with a year left in his term, the president has already commuted the sentences of more individuals than the past five presidents combined, and we expect that the president will grant more commutations and pardons to deserving individuals in his final year in office,” Eggleston said Friday.

But several advocates interviewed Friday said that the comparison with other presidents is not a meaningful one because no other president has launched a clemency initiative to grant an early release to drug offenders who meet criteria laid out by the Justice Department.

NYU Law Professor Rachel Barkow, an advocate for clemency reform, called the current clemency process with so many prisoner petitions backlogged “a disaster.”

“Once the president lays out the criteria for the cases he wants to grant clemency, the measure of success for that program is: Have you processed all the people who meet those criteria?” she said.

By the end of this year, Obama will have commuted the sentences of 184 federal inmates.

“American presidents have had the power to show mercy since the founding of our republic,” said Stewart, of Families Against Mandatory Minimums. “President Obama is the first president in decades to use it as the Founders intended. For that reason, we commend him for showing more mercy than his predecessors. But his work is not done.”

Obama’s clemency list brings joy to the lucky and anguish to the disappointed

By Sari Horwitz
December 23, 2015

MENDOTA, Calif. — At 9:10 a.m. Friday, the intercom blared at the federal prison here as Weldon Angelos walked the track on this sprawling campus of drab gray buildings in California’s Central Valley.

The booming voice of a prison official called an inmate to the main office. About 25 minutes later, the official came on the intercom again, summoning another prisoner.

Angelos knew exactly what was happening. The prisoners had heard a rumor the night before that President Obama might grant early release to certain drug offenders before he left Washington for the holidays. Angelos was excited, anxious. This was it. The lucky inmates on Obama’s list were being called inside to take phone calls from their attorneys, who would tell them the good news.

After the two inmates were called, the minutes ticked past 30, then 45, and the intercom remained silent.

“I felt sick,” said Angelos, 36, who is serving a 55-year sentence for selling about $1,000 worth of marijuana. “It was devastating.”

And for Angelos and his supporters, that is the cruelty of the clemency process set up by the Obama administration to give relief to drug offenders who received harsh sentences over the past couple of decades in the nation’s war on drugs.

The president wants to use his clemency power to undo past injustices, and on Friday, in the largest single-day grant of his presidency, he signed 95 commutations.

They brought joy to families across the country.

“God be the Glory,” said Sharanda Jones, a 48-year-old Texas woman who was sentenced to life in prison without parole for a cocaine offense. She was a first-time, nonviolent offender. “I am overjoyed.”

But for thousands of other prisoners, who may also meet the president’s criteria, their exclusion was a hard blow.

“It was a great day for those who won the lottery and one more disappointment for everyone in the pipeline who should be on the list,” said Amy Povah, a former inmate and the founder of the Can-Do Foundation, a clemency advocacy group.

Feeling ‘punched’ in the gut

Angelos, the son of a Greek immigrant, is one of the country’s more famous prisoners — a symbol for some criminal justice reform advocates of an irrationally severe system. He was sentenced in 2004 to a mandatory 55 years in prison without the possibility of parole after he was arrested for selling marijuana in three separate transactions with a Salt Lake City police informant, while possessing a firearm. Angelos never used or pulled out the gun, but the informant testified that he saw a gun when he made the buys, and that triggered a statute referred to as “gun stacking,” which forced the judge to give him a long sentence.

Angelos’s case has been widely championed, including by Families Against Mandatory Minimums and conservative billionaire Charles Koch.

Former U.S. District Court judge Paul G. Cassell, who was appointed by President George W. Bush, has called the sentence he imposed on Angelos “unjust, cruel and even irrational.”

Mark Holden, general counsel and senior vice president of Koch Industries, said the failure to commute Angelos’s sentence Friday was “disappointing and devastating for Weldon and his family.”

“Think of anything in your life that you’ve waited for,” Holden said. “Everything else pales in comparison to this.

It is unclear why Angelos failed to get clemency. A Justice Department spokeswoman said that officials do not discuss individual clemency petitions. Another official noted that the department is processing them “as thoroughly and expeditiously as we can.”

Each of the four times that the president has announced his commutations has been difficult for Angelos, but this time cut the deepest. And it’s not because it came around the holidays.

It’s because this group of inmates will be released on April 16.

“If I had been given clemency this time,” Angelos, a father of three, said in an interview at the Federal Correctional Institution at Mendota, “I would have been out for my oldest son’s graduation from high school in June.”

When he came in from the track, Angelos called his sister, Lisa. She had heard he wasn’t on the list, and she was crying. While talking to her, he looked up and saw Obama on the prison television set making his official announcement at his end-of-year news conference.

“I felt like someone had punched me in the stomach,” he said.

Clemency clinic

Similar scenes were playing out in other federal prisons, said Angelos’s lawyer, Mark Osler, a law professor at the University of St. Thomas in Minnesota and a co-founder of New York University’s Clemency Resource Center. He represents nine clients who are seeking clemency.

“I dreaded the phone ringing,” Osler said in a blog post he called “Sunday Reflection: The sad call”: “I looked at the screen and it said what I feared it would: ‘Unknown,’ which is how calls from prison always come up. I let it ring once, twice, three times before pressing ‘answer.’ . . . And each time I talked to them about what had happened, how I did not know how they picked the lucky ones. They told me, in heavy voices, what they would miss: a son’s graduation, the last days of a mother in fading health. And each time I hung up and sat in silence.”

White House Counsel W. Neil Eggleston said last week that Obama, who has granted 184 clemencies, has already commuted the sentences of more individuals than the past five presidents combined. “We expect that the president will grant more commutations and pardons to deserving individuals in his final year in office,” Eggleston added.

But clemency advocates say that Obama has put himself in a different position than previous presidents. Instead of granting a moment of mercy to an inmate — much like the odds of being struck by lightning — Obama’s Justice Department set out eight specific clemency criteria, including having served at least 10 years, having no significant criminal history prior to conviction and demonstrating good behavior in prison. And he raised the hopes of thousands who believed they could qualify.

“What the president announced was a categorical grant to people who met those eight criteria,” Osler said. “If it’s a categorical grant, we should be seeing consistency.”

A better comparison, he said, would be former president Gerald Ford, who created a special commission, set out specific criteria and granted more than 14,000 clemencies in one year to people who had either deserted the Army or failed to show up for the draft during the Vietnam War.

Angelos, himself, is somewhat of an expert on clemency: He knows all about the intricacies of the process and the names of the key players. He cites the latest comments by Deputy Attorney General Sally Quillian Yates and notes the date that U.S. Senate sentencing reform legislation made it out of committee.

He even runs a “clemency clinic” Monday through Friday nights in the prison library to help other inmates prepare their petitions. He advised Alex Contreras, who is in prison on the same drug and gun charges (except it was crack instead of marijuana). Contreras filed for clemency in May. To strengthen his petition, Contreras’s lawyer cited Angelos’s severe sentence and noted that the judge on Angelos’s case called it an injustice.

On Friday, Contreras was on Obama’s list.

They met up that night in the library to say goodbye; Contreras will be moved to a halfway house before going home.

“I was happy for him,” Angelos said, tears filling his eyes.

Christmas bags

Angelos’s two sons came to visit him twice this fall. Anthony, now 18, was 6 when his father was sent to prison. Jesse was 4. He hadn’t seen them for eight years because they live near Salt Lake City with their mother and couldn’t afford to travel to California.

In October, Koch Industries’ Holden paid to fly them and Angelos’s sister to see him. It was awkward at first. The little boys Angelos last saw now towered over their father.

“It didn’t feel real,” he said. “It felt like a dream.”

Holden flew them back again a few weeks ago for a holiday visit, and this time the conversation came more easily, and they laughed and joked. Angelos told them to focus on school, to not cheat on their girlfriends — and that maybe this would be the last time they would have to visit him in prison.

“I’m trying to keep my sons positive and hopeful,” Angelos said. His petition has been pending before the Obama administration for four years.

His sons are fascinated by Angelos’s career in the music industry. A former rapper, Angelos produced songs with Snoop Dogg. He is close to the rapper Napoleon, who used to be a member of Tupac Shakur’s group, Outlawz. Napoleon, as well as politicians, scholars, artists and other musicians, signeda 16-page letter of support for Angelos that was sent to Obama.

“Maybe I just need to get Jay Z and then Obama will do it,” Angelos joked in a moment of levity, noting that Jay Z and Beyoncé were at Obama’s inauguration.

As with all federal inmates, Angelos’s sons aren’t allowed to give their father Christmas presents. They can send him cards.

Christmas is a dreary time in prison. No trees with the trimmings are allowed in areas where there are inmates. Prison guards distribute plastic “Christmas bags” filled with little gifts, a corrections officer said.

Angelos got his last week. Inside were “bags of chips, popcorn, candy, beef jerky, Pop Tarts, a Rice Krispie Treat,” Angelos said. “I ate everything in two days.”

Christmas, he said, “used to be tough. But now, sad to say, it’s just like another day.”

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