Community pro bono effort leads to commutations for low-level drug offenders

February 3, 2017Duke Law News

A team of Duke Law students, faculty, and staff recently helped three federal inmates gain commutations of their lengthy sentences for low-level, non-violent drug offenses.

Beginning in the spring 2016 semester, the volunteers researched the eligibility of seven inmates for commutations under former President Barack Obama’s Clemency Initiative, which prioritized applications from inmates who met specific criteria. Supervised by Associate Clinical Professor Jamie Lau ’09, they prepared and filed petitions on behalf of five inmates, three of which were granted by the former president before he left office. Those individuals, among the 1,715 drug offenders to receive commutations from Obama, had their sentences reduced by several years.

The inmates the Duke team represented had been serving lengthy terms of incarceration imposed under outdated mandatory-minimum sentencing rules for convictions primarily relating to the possession or distribution of crack cocaine and would have received substantially lighter sentences under laws and guidelines now in place. In April 2014, the Obama administration announced that it would prioritize review of clemency petitions for inmates in that situation who had been imprisoned for at least 10 years if they also met four other criteria: they were non-violent, low-level offenders without significant ties to large scale criminal organizations, gangs, or cartels; they did not have significant criminal histories; they demonstrated good conduct in prison; and they had no history of violence prior to or during their current term of incarceration.

Nicole Amsler ’17, Boykin Lucas ’17, Shannon Welch ’17, and Felix Aden LLM ’16 answered Lau’s call for volunteers to handle petition requests last spring, as did Sarah Holsapple, a staff assistant who supports the Duke Law Center for Criminal Justice and Professional Responsibility and is a certified paralegal. They were connected with inmates seeking legal assistance by Clemency Project 2014, a coalition of criminal justice organizations that screened petitions for compliance with the Clemency Initiative’s criteria before they were forwarded to the U.S. Department of Justice’s Pardon Attorney.

After immersing themselves in the nuances of federal sentencing laws and guidelines, the volunteers compared the sentences their clients received to those that would have likely been imposed under current rules, and checked to see if any factors in their clients’ records mitigated against a commutation. “The students had to vet the details of any infractions their clients had on their prison records,” Lau said. “They also had to check for such disqualifying factors as an earlier violent crime.” The volunteers got to know their clients and learn their post-release plans during telephone interviews and visits to the Federal Correctional Complex in Butner, N.C, where most were incarcerated.

Two Duke Law clients, Shon-Du Dawson and James Burns, received commutations after their applications were pre-screened by Clemency Project 2014. A third client, Michael Potts, was granted clemency based partly on his exemplary prison record, although he was disqualified from the initiative due to a 26-year-old conspiracy to commit armed robbery charge.

“Undoubtedly, it’s been one of my best experiences at Duke,” said Lucas, who handled two clemency petitions, including Potts’. “Knowing that I played a small part in helping to reduce Mr. Potts’ sentence by several years is immensely satisfying. What’s more, I’m confident that he’ll make the most of his commutation, which makes the news even sweeter.” Under the terms of his commutation, Potts will be released from prison in January 2019, after completing a residential drug-treatment program.

Seeing the human side of "over-criminalization"

Potts’ sentence illustrates the sentencing disparities the Clemency Initiative sought to correct. In 1998, at the age of 24, the Greensboro, N.C. native was given a 30-year sentence for possessing a total of 9.2 grams of crack cocaine. Although it was a non-violent crime, the sentence was the minimum for which he was eligible, based on both the laws and sentencing guidelines mandating penalties for possession and distribution of crack cocaine that were higher than for the powdered form of the drug by a 100-to-one ratio. In 2010, Congress lowered its statutory crack-to-powder ratio to 18-to-one, and the U.S. Sentencing Commission subsequently lowered penalties for drug crimes across the board. If sentenced today, Potts would likely have received a sentence ranging from 13 to 15 years, but he has served more than 18.

“Over-criminalization is something law students learn about in classes, but nothing compares to actually meeting people whose lives have been completely transformed, or taken away, by laws that over-punish,” said Amsler.

To Lucas, both Potts and his other client in Butner seemed “perfectly capable” of integrating back into society, yet were not scheduled for release for at least seven more years. “This drove home the idea that our criminal justice system saddles certain drug offenders, who tend to be from disadvantaged backgrounds, with draconian sentences going well beyond the time needed for rehabilitation.” Witnessing inmates talking with visitors left him with “a visceral impression that we lock up too many people for too long, without regard for the broader effects on families and communities,” he said.

In fact, the heavier federal sentences for crack cocaine than for powder, combined with other elements of state criminal justice policy, had a pernicious impact on minority communities where it was more prevalent, said James Felman ’87, a partner at Kynes Markman and Felman in Tampa and a member of the Steering Committee for Clemency Project 2014. “It is well-documented that these longer sentences fell disproportionately on African Americans and Hispanics. And when you lock somebody up, it doesn’t just affect that person but their whole family and their whole network.”

A rewarding experience

Having long pushed for sentencing reform, Felman, the immediate past chair of the Criminal Justice Section of the American Bar Association, immediately saw Obama’s effort as a “once-in-a-lifetime” opportunity to address unfairness. In addition to representing inmates directly — of the 115 petitions he and his law partner filed since the start of the Clemency Initiative, 44 were granted — he encouraged Lau to get Duke Law students working on them, too, part of an “all-hands-on-deck” strategy to recruit as many lawyers as possible to the effort.

“It became evident early on to those of us on the Steering Committee that law students could do the work under the guidance of a professor or practitioner,” he said. “These were self-contained projects that a student could knock out in a semester with a potential payoff: getting somebody freed.”

Lau agreed: “This was a fantastic initiative and, I think, a good learning experience for our team. I wish we could have been involved earlier and been able to take on more clients.”

Holsapple’s client, James Burns, will be released in March, after serving 11 years of a sentence of more than 19 for selling crack cocaine to police informants. Under current rules his maximum sentence would have likely been for fewer than 12, but he was sentenced as a career criminal due to three previous low-level, non-violent drug offenses. A father of seven and grandfather of seven, Burns has spent the past eight years working for the prison-based textile manufacturer, with steadily increasing responsibilities.

“He’s a good guy and very grateful,” said Holsapple, who met with him several times. “He just wants to work and to spend time with his family. I think that’s something most of us can relate to.” She said that she was grateful for the opportunity to be a “small cog” in a large machine, including “legions” of pro bono attorneys nation-wide. “It’s an unprecedented initiative to right some of the wrongs of the past, and I’m just proud to have been a part of it.”

Welch, who serves as executive director of the Duke Law Innocence Project and is enrolled in the Advanced Wrongful Convictions Clinic, recalled a talk by Equal Justice Initiative founder Bryan Stevenson that she attended as part of her clinic experience: “He said, ‘Each of us is more than the worst thing we’ve ever done.’ The Clemency Project embodies this. These men and women have earned the opportunity not only for a second chance at life, but an affirmation from the president that they are a deserving person defined by more than this one mistake they made.”

Her client, Shon-Du Dawson, an inmate at the Federal Correctional Institution in Yazoo City, Miss., had been incarcerated for almost 13 years at the time his clemency petition was filed. Although a judge had already reduced his original 20-year sentence to under 18, it still far exceeded the 94 months recommended by prosecutors. His court-imposed sentence would have been lower under the current sentencing guidelines, Welch wrote in the petition, because two previous convictions for possession with the intent to sell cocaine and marijuana no longer quality as “predicate felonies” that trigger a “career-offender” sentencing enhancement.  While incarcerated, she reported, Dawson became trained in heating and air-conditioning repair and enrolled in apprenticeships, college courses, and parenting classes, having stayed closely in touch with two daughters who are now in their teens.

“What I took away was an overwhelming respect for Shon-Du,” said Welch. “I gained so much having to work through the federal guidelines and advocate for his position. But he had to, for almost 13 years, improve his life in the face of a lengthy sentence and a dangerous environment. He had to maintain connections with his fiancé and daughters and continue to support them while he was far away. He made my work easy.”

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