July 24, 2019 CONVENER’S CORNER
Notes by Nkechi Taifa, convener of Justice Roundtable
“We Have Taken a First Step, Its Now Time for a Second Look!”
The Justice Roundtable’s advocacy since 2002 helped to bring about passage of the 2008 Second Chance Act, the 2010 Fair Sentencing Act, and the inclusion of critical sentencing provisions in the 2018 First Step Act. We heralded Supreme Court cases mandating jury fact-finding, worked with the U.S. Sentencing Commission to insure retroactive application of targeted guideline amendments, and supported reforms recommended by the bipartisan Charles Colson Task Force on Federal Sentencing. We helped to stimulate the wave of clemencies initiated during the Obama Administration, applauded the commutation of Alice Marie Johnson by Donald Trump, and continually bolster the call for reform to the clemency process.
These important changes to sentencing policies on the “front-end” and to release procedures on the “back-end” however, have not been ample enough to abate the out-of-control growth of this country’s system of over criminalization and over incarceration.
As such, the Justice Roundtable has long called for the implementation of a Second Look process as a remedy to the extremely limited options for federal review of lengthy sentences. Such a process would allow incarcerated individuals, many of whom have aged behind bars, an opportunity to demonstrate to a judge that their continued incarceration does not serve the interests of justice and that their sentence at conviction is no longer appropriate in light of current circumstances.
Senator Cory Booker proclaims it is now time for that second look, and, along with Representative Karen Bass, has introduced the Second Look Act of 2019. The bill is inspired by Matthew Charles, the first person to be released pursuant to the First Step Act, and William Underwood, a 65 year old incarcerated grandfather who has been in prison for 30 years.
I consider Mr. Underwood representative of the critical importance of a second look at federal sentences. I have unsuccessfully represented him in seeking clemency since the Obama Administration, and it has been a painful and difficult journey for him and his family. Unfortunately, he has been precluded from benefiting from any of the landmark criminal punishment system legislative and judicial reforms I have championed over the past several decades, due to their lack of retroactivity in his case.
But finally, the bill that stands to not only benefit him, but scores of others, will allow them the chance for that second look that they have been denied. Booker’s Second Look Act is the bill that would have helped Alice Marie Jonson and Norman Brown be released if both had not been granted clemency. It is the bill that could benefit Michele West and Corey Evans, allowing them to rejoin their children outside prison walls. Johnson, Brown, West and Evans are all worthy people who were not released pursuant to previous legislative and judicial enactments. And they are all people who, like William Underwood, were deserving of a second look, a second chance, and a fair sentence as a critical step in criminal punishment system reform.
Spending decades behind bars without review of sentence does not allow an individual to show they have benefited from personal growth they make while incarcerated and does not allow them to benefit from laws and public attitudes that may have changed over time. And unjustifiably lengthy sentences not only affect the individual, but society at large. Caring for people in prison over long periods of time is costly, and such costs increase as incarcerated people age.
In 2016, 161,957 people were serving a life sentence and 53,290 people were serving life without parole in the United States, compared to a total of 50 people serving a life sentence without the possibility of release in the United Kingdom. Indeed, sentence lengths in the U.S. are far more punitive than the rest of the world. Sentencing in most European countries rarely exceed 20 years. Belgian law requires a parole review of life sentences after 10 years, Germany after 15 years, and the International Criminal Court after 25 years. Norway has a 21-year maximum prison sentence regardless of offense, with an average of eight months’ time served.
In 1990, Mr. Underwood received a 20-year concurrent sentence on RICO drug conspiracy charges, and life without parole on a continuing criminal enterprise count. The government alleged that he supervised a narcotics trafficking gang from 1971 to 1988 that involved heroin distribution and resulted in homicides. He completed serving this 20-year sentence over ten years ago. The life sentence, however, involving conspiracy to distribute narcotics and containing no allegations of homicide, was the result of a judicial finding by a mere preponderance of the evidence standard that the criminal enterprise continued, despite a 1986 Federal Bureau of Investigation document stating, “(d)ue to the lack of current updated information concerning [his] alleged activities, this case is being closed at this time.”
Mr. Underwood was nevertheless arrested two and a half years later and charged with a continuing leadership role in a narcotics conspiracy, despite his assertions that he was engaged in a legitimate fulltime career in the music industry. Indeed, the charges underlying Mr. Underwood’s conviction were serious and a lengthy prison term may have been warranted. But the life without parole sentence was not warranted and most likely would not have been imposed had he been tried just a bit earlier or years later. Tragically, because of major changes in sentencing policy over the years, if Mr. Underwood had been sentenced in 1990 under today’s current law, he would probably be free today, having already completed the twenty-year concurrent sentence.
It has been suggested that the first defendants to be tried under the new Anti-Drug Abuse Act of 1988 were used as examples to demonstrate the harshness of mandatory minimum sentences, and the use of broad conspiracy charges was a way to clean the streets of unsolved gang-related murders. Indeed, the first two Counts of the indictment in Mr. Underwood’s case is riddled with such homicides that had been outstanding for years. Those who actually committed the homicides in the indictment pled guilty, pointed the finger at him, received truncated sentences, and have long since been released. Only William Underwood, who went to trial and completed his concurrent 20 year sentence a decade ago, still languishes behind prison walls.
Absent executive clemency, Mr. Underwood’s only hope to rejoin his family and community is through passage of the Second Look Act.
Life without the possibility of parole has tragically meant that William Underwood, no matter how long he lives, no matter what steps he has taken to better himself, no matter how many laws have changed – can never, ever leave prison alive. Such a sentence, devoid of hope and compassion, is inhumane and akin to a living death. He has a window of opportunity right now with the Second Look Act, to have his excessive sentence re-examined in light of current circumstances. There is a point where incarceration no longer serves the interests of justice. That point was reached long ago in this case.
The First Step Act was a start. Its now time for a critical Second Look. I commend Senator Booker for his courage in introducing a bill that focuses on compassion and redemption, rather than on the unchangeable characteristics of one’s conviction.
Nkechi Taifa is the convener of the Justice Roundtable. An expert in the field of criminal justice, she is President and CEO of The Taifa Group, LLC.