Pro Bono Petitions Prepared and Submitted through the NACDL Trial Penalty Clemency Project
Washington, DC (Jan. 20, 2021) – In the early morning hours today, President Trump granted commutations to 14 deserving individuals whose petitions were submitted to the Office of the Pardon Attorney and the White House through the National Association of Criminal Defense Lawyers’ (NACDL) Trial Penalty Clemency Project. Of those 14, seven were serving life sentences.
Launched in 2020, NACDL’s Trial Penalty Clemency Project has thus far submitted federal clemency petitions on behalf of 24 individuals seeking the commutation of excessive sentences owing to the trial penalty. Together, the sentences of the 14 petitioners through the Project who received clemency today, as compared to the sentences of their co-defendants or to the plea offers extended to them, represent over 200 years of punishment solely because they exercised their Sixth Amendment right to go to trial. Of those 200 years, today’s commutations saved approximately 185 years of incarceration. Learn more about these individuals below.
“NACDL will not relent,” said NACDL President Chris Adams. “NACDL will pursue every available legal avenue to redress the egregious wrongs that happen daily in the nation’s criminal legal system. In doing so, NACDL will persist in shining the light on the profound challenges we face, like the trial penalty, as we pursue a more fair, just, and humane criminal legal system.”
“I cannot emphasize enough how critical it is that we take on the trial penalty and limit the unbridled prosecutorial abuse of sentencing provisions. This will ensure that accused persons may freely exercise their right to go to trial and are not forced to accept guilty pleas to excessively long sentences. It is only in this way that we can bring humanity and individualization back to federal sentencing,” said NACDL Board Member and Director of NACDL’s Trial Penalty Clemency Project JaneAnne Murray.
“The commutation of these individuals’ sentences, each unreasonably excessive in length owing to the trial penalty, represents a very important recognition of the tyranny of the trial penalty,” said NACDL Executive Director Norman L. Reimer. “The constitutional right to a jury trial is supposed to be a critical check on the power of government, but the right has virtually disappeared because the prosecutorial power to punish those who exercise it results in accused persons getting crushed by the trial penalty. These commutations recognize the need to curb that power.”
The trial penalty has become a defining feature of the modern American criminal legal system. As increased attention is given to the criminal legal system, this deeply flawed, and ever-growing fountain of injustice – the trial penalty – must be uprooted. Coercive prosecutorial practices that induce accused persons to waive fundamental rights under threat of a vastly increased sentence when those rights are asserted, is undermining the American criminal legal system. The most obvious examples of its impact are seen in those who assert their rights and receive a geometrically enhanced sentence. Though reform is badly needed to end the trial penalty, the only immediate remedy for those individuals living this injustice is executive clemency. NACDL’s Trial Penalty Clemency Project aims to assist those individuals by pairing applicants with volunteer attorneys who will assist them in preparing a clemency petition.
In 2018, NACDL released a groundbreaking report – The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It. Information and a PDF of NACDL’s 2018 Trial Penalty report, as well as video of the entire 90-minute launch event at the National Press Club in Washington, DC, and other trial penalty-related videos and materials are available at www.nacdl.org/
trialpenaltyreport.
In 2019, The Federal Sentencing Reporter, published by University of California Press, released a double issue covering April and June 2019, edited by NACDL Executive Director Norman L. Reimer and NACDL President-Elect Martín Antonio Sabelli, entitled “The Tyranny of the Trial Penalty: The Consensus that Coercive Plea Practices Must End.”
And in 2020, NACDL and FAMM released a documentary on the trial penalty, The Vanishing Trial. The trailer for that film is available here.
NACDL’s Return to Freedom Project is led by NACDL Executive Director Norman L. Reimer and Project Manager Steven Logan. NACDL’s Trial Penalty Clemency Project is led by NACDL Board Member and Volunteer Director JaneAnne Murray.
NACDL’s Federal Trial Penalty Clemency Project is made possible by generous support from the NACDL Foundation for Criminal Justice and the Howard S. and Deborah Jonas Foundation.
NACDL Trial Penalty Project Applicants Granted Clemency Today
Corvain Cooper has served over seven years of a life sentence for his non-violent participation in a conspiracy to distribute marijuana. He exercised his constitutional right and went to trial rather than cooperate with the prosecution, as some of his co-defendants did, and he was the only one sentenced to die in prison, even though some of his co-defendants were more culpable. And due to the First Step Act, if Mr. Cooper were sentenced today on the same charges, the court could have followed its stated desire for a sentence less than mandatory life.
Also supported by: Last Prisoner Project, Life for Pot, and CAN-DO
Anthony DeJohn is serving his 13th year of a life sentence after being offered a pre-trial plea deal carrying a sentence as low as 20 years. The prosecution filed an information for one of Mr. DeJohn’s prior drug convictions, and when he refused to plead guilty, they followed through on their threat to file an information on the second prior conviction, resulting in a mandatory life sentence. Other codefendants who were more culpable have since been released after pleading guilty and receiving lesser sentences. Even without the prospect of release, however, Mr. DeJohn has maintained a clear disciplinary record for years and is known in prison for his outstanding work ethic.
Kenneth Charles Fragoso (“Charlie”) is a 66-year-old U.S. Navy veteran who has served over 30 years for a nonviolent drug offense. He is currently serving a life sentence. If he were sentenced today for the same offense, he would already be released. Mr. Fragoso has a completely clean disciplinary record without a single instance of prohibited conduct during his three decades in prison. While in prison, Mr. Fragoso has worked for UNICOR for over 20 years, learned new trades, and mentored fellow inmates. Due to his age and medical conditions, he is facing a serious decline in his health and is at high risk of severe illness or death if he were to catch COVID-19.
Also supported by: CAN-DO
Robert Francis is serving his 19th year of a life sentence, after being offered a sentence of 25 to 30 years pre-trial. He is incarcerated on non-violent drug conspiracy charges. Had he accepted the government’s plea offer, he would be free soon, given the good time credits from his spotless disciplinary record and active efforts toward learning and rehabilitation. Instead, Mr. Francis went to trial. The prosecution held him accountable for greater drug weights and two enhancements, and, unlike some of his co-defendants who have been freed or resentenced, Mr. Francis is now slated to die in prison.
Luis Gonzalez is a 78-year-old non-violent drug offender who has served over 27 years in prison. If he were sentenced today, he would have been released more than 8 years ago. Mr. Gonzalez worked for UNICOR producing military uniforms for over 20 years and has only one non-violent discipline incident in all his years of incarceration. Mr. Gonzalez is now in poor health due to chronic illness and aging. Due to his length of sentence served, his demonstrated rehabilitation, and the fact that he would not be sentenced to life today, Mr. Gonzalez is deserving of clemency.
Raymond Hersman is serving his 9th year of a 20-year sentence, after discussing a pre-trial plea deal with the prosecution that likely would have been 7 to 10 years. The day before trial, the prosecution filed an information of a prior conviction that doubled the minimum term for Mr. Hersman’s underlying charges – from 10 to 20 years. While incarcerated, Mr. Hersman has maintained a spotless disciplinary record, worked steadily, and participated in programming and educational opportunities.
John Knock, a first-time offender, has served 24 years of a life sentence for marijuana charges. Unlike some of his co-conspirators who pled guilty and were freed decades ago, Mr. Knock exercised his constitutional right to a trial. He has had zero incident reports during his incarceration and would have broad family support and steady employment upon release.
Also supported by: Last Prisoner Project, Life for Pot, and CAN-DO
Way Quoe Long is serving his 22nd year of a 50-year sentence. The co-conspirators pled guilty and were sentenced to between 10 months and 10 years of incarceration. Mr. Long has been incarcerated for over two decades for a non-violent conviction. Mr. Long’s 50-year sentence is five times longer than the next longest sentence imposed on his co-defendants. Mr. Long has spent his 22 years of incarceration striving to better himself through 20 classes, including English proficiency and obtaining his General Educational Development Diploma. Mr. Long has only incurred four non-violent disciplinary infractions, most more than a decade ago.
Also supported by: Last Prisoner Project and Life for Pot
Chalana McFarland has served 15 years of a 30-year sentence, after being offered a pre-trial plea deal with a sentence as low as 87 months (just over 7 years). The government offered Ms. McFarland a plea to fewer counts which carried a range of 87 to 327 months, with the amount depending on sentencing aspects like attributable loss and her role in the crime. Though she went to trial, Ms. McFarland actually cooperated with authorities by informing them of a potential attack on the US Attorney – but only her co-defendants, who pled guilty, received lesser sentences of 5 to 87 months. Ms. McFarland was a model incarcerated person and is now under home confinement.
Also supported by: CAN-DO
Lavonne Roach has served 23 years of a 30-year sentence for non-violent drug charges. Instead of accepting the prosecution’s offer of 9 to 11 years, she exercised her constitutional right to a trial. Ms. Roach’s limited criminal history is entirely non-violent, and she has been a model prisoner, using her education to tutor other prisoners. Due to her obesity, hypertension, and prescribed medication, she is at higher risk of contracting and suffering complications from COVID-19.
Also supported by: CAN-DO
Brian Simmons is serving his 5th year of a 15-year sentence after rejecting a plea deal that would have sent him home already. His equally culpable co-defendant and business partner, however, pled guilty and was sentenced to just one and a half years – a nearly ten-fold increase. Mr. Simmons regrets his involvement in the marijuana conspiracy and his post-sentencing escape, but he has been serving his sentence since then as an exemplary inmate. His fiancée and community will support him upon his release.
Derrick Smith is serving his 20th year of a sentence of 28 years and 4 months, after being offered a maximum pre-trial sentence of 20 years. Mr. Smith gave drugs to a party companion. The young woman tragically over-dosed. Smith brought her to the hospital and prayed by her bedside, but medics were not able to save her. He was charged with distributing cocaine causing death, rejecting a pre-trial offer that would have capped his sentencing exposure at 20 years. Mr. Smith is deeply remorseful for his role in this tragic death. Mr. Smith grew up in a difficult environment with little family support but has a stellar record while incarcerated. Even aside from the trial penalty, Mr. Smith’s sentence would likely be significantly lower today under recent Supreme Court jurisprudence.
Blanca Virgen, a mother of four imprisoned hundreds of miles from her family, has served 12 years of a 30-year sentence for drug charges. She exercised her constitutional right and went to trial rather than accepting the government’s plea offer of 10 years. Ms. Virgen is a model prisoner, having received countless achievement awards from her programming, and with only one minor infraction from seven years ago. Ms. Virgen wishes to go home and care for her children, two of whom recently lost their primary caregiver.
Sholam Weiss, the son of Holocaust survivors, has served 20 years of an 835-year sentence for fraud and related charges. Mr. Weiss exercised his constitutional right to a trial rather than accepting the prosecution’s plea deal for either five or 10 years. As a 66-year-old cancer survivor with cardiovascular disease and other medical conditions, he is particularly at risk for complications from COVID-19, which is spreading rapidly in federal prisons.