Nov. 3, 2016
Taifa’s Reflection on Hatch and Clemency
I can’t believe something I just did. After reading Senator Orrin Hatch’s November 2, 2016 National Review article, “The President Needs to Show More Caution in Commuting Felons’ Sentences,” I immediately scribbled off an email to five of my criminal justice reform colleagues (Doug Berman, Mark Osler, Rachel Barkow, Marc Mauer and Marc Schindler), attached the article and pleaded, “Can someone please respond to this nonsense?!”
Immediately after pressing “send,” I thought, ‘damn – why am I requesting that they respond? ‘Ain’t I an expert too?’ I chastized myself, channeling anti-slavery orator Sojourner Truth’s poignant demand back in the day, of Ain’t I a woman?’
And especially since my article equating the U.S. criminal justice system with the international definition of genocide was just published by the American Constitution Society today, I’m feeling fired up and decided to write this speedy reflection to the comments made by the long-standing senator from Utah.
During the midst of crime bill hysteria over two decades ago, I was elated when I read Senator Hatch’s concerns about mandatory minimum sentences in his 1993 Wake Forest Law Review article. However, I am totally disappointed with the position he has embraced today. The President needs to be “very careful about letting convicted criminals out of jail early, particularly ones convicted of serious drug and firearm offenses,” he recently wrote.
Having just watched a very touching documentary produced by Revolt TV, highlighting the case of a mother who received two life sentences plus 50 years for aiding and abetting a drug-related murder, my heart is heavy with outrage. You see, I have had the distinct opportunity to, in the words of McArthur awardee Bryan Stevenson, become very “proximate” to families and friends of people convicted of serious drug offenses. As convener of The Justice Roundtable, I helped to provide the opportunity for the documentary’s feature, Miquelle West, daughter of incarcerated Michelle West, to travel to Washington, DC last March to participate in activities at the Justice Roundtable and White House around clemency. Miquelle, who has not seen her mother outside of prison walls since she was 10 years old, is now thriving as a celebrity stylist, and has grown as an ardent supporter for her mother’s release. But even more captivating than the film’s riveting depictions of Miquelle, are the personal stories I constantly hear from women who served time with her mother, Michelle, some of whom have been released pursuant to executive clemency. Although Mchelle’s case may not fit the trendy “nonviolent” narrative, is she really a “violent” person and will society be unsafe should she, after 23 years, be released from prison?
In the documentary’s background images I caught a glimpse of Miko and Ebony Underwood, 2 of 4 siblings whose father, William Underwood, was sentenced to die in prison. I happen to be their father’s pro bono clemency attorney, and have become very close to his now-adult children, who spend untold hours organizing in support of release for their father. Mr. Underwood was sentenced to a concurrent 20-year sentence on RICO, RICO conspiracy and drug conspiracy charges (Counts 1, 2 &3), and received mandatory life without parole on a continuing criminal enterprise charge (count 4). Counts 1 and 2, which he completed serving nearly 8 years ago, included predicate acts of gang-related homicides, although there was never a suggestion, evidence or finding that he pulled the trigger. He seeks commutation of Count 4’s life sentence for conspiracy to distribute narcotics, to time-served. The life sentence was the result of the judge’s finding by the lowest evidentiary standard that he continued in the conspiracy as a principal, despite an FBI memo that states his case was being closed due to lack of information. He was arrested 2-1/2 years after that memo, and charged with a continuing leadership role in a narcotics conspiracy, despite his assertions that he was no longer involved in criminal activity, but engaged in a legitimate fulltime career in the music industry. But because the judge’s ruling had the effect of enhancing his sentence to life without parole, the issue of whether and when he left the conspiracy should have been presented to a jury to prove by evidence beyond a reasonable doubt, the standard of today’s law.
Life without the possibility of parole has meant that William Underwood and Michelle West, no matter how long they live, no matter how much their lives have changed, no matter what steps they have taken to better themselves, no matter how many laws have changed – can never, ever leave prison alive. Such sentences, devoid of hope and compassion, is inhumane and akin to a living death. Both Underwood and West have a window of opportunity right now, with this Administration’s willingness to re-examine and correct excessive sentences through the constitutional executive clemency power, and Senator Hatch should not deny them that opportunity.
Senator Hatch says he has taken “a cautious approach” to recent Congressional initiatives for criminal-justice reform, and likewise urges caution in releasing those currently in prison. The reality however, is that if Congress had taken “a cautious approach” when it enacted slews of mandatory minimum sentences over the past thirty years, President Obama may not have felt as obliged to intervene now, decades later.
The Senator also spoke of his concern that because of the plea bargaining process “an offender’s crime of conviction does not necessarily reflect his or her actual danger to the community.” This concern, however is twisted, if it fails to include violent people who receive less or no time if they inform on others or otherwise cooperate with the government, while those who exercise their constitutional right to go to trial are often penalized with what amounts to death sentences. The Senator’s article also fails to acknowledge issues with wide-ranging conspiracy laws that sweep broadly and the continued incarceration of elders who have aged out of criminality and pose no risk to society.
If we are to stunt the spiraling growth of the prison population and tackle rampant racism in our system of punishment, then we must express outrage and act to end unconscionably lengthy sentencing schemes. Correcting the injustice of such sentences through clemency is imperative, particularly where the legislature has failed to act, as it is the remedy most immediately attainable and shielded from reversal. And armed with this constitutional authority, President Obama should proceed full steam ahead to review and remedy these lengthy sentences as a fundamental public policy objective.
I will leave it to Marc Schindler to expound on the results of the Justice Policy Institute’s report on rethinking violence. I will leave it to Marc Mauer to stress the trends in U.S. corrections. I will leave it to Mark Osler and Rachel Barkow to chart out how to make the clemency process more robust, and to Doug Berman to highlight all on his blog.
As for me, I will emphasize the personal stories of very real people. And I will express my personal indignation and the outrage of my community to sentences that have resulted in the removal of vast numbers of people from their families and communities, sometimes for decades, and in the cases of Michelle West, William Underwood and countless others, for life.
No, Senator Hatch, the President does not need to show “more caution” in commuting sentences. The President needs to be more robust and go even bolder in commuting sentences, consistent with public safety, to rectify the sentencing abuses of the past. And the Congress needs to stop procrastinating in passing sensible bipartisan sentencing reform, and do its job.