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The Prisoners Left Behind

The last full day of Barack Obama’s presidency sent years of hopes crashing down for John Richard Knock.

On January 19, 2017, Knock sat in his federal prison cell in the middle of Pennsylvania, waiting for a letter. He listened to a small radio that played an NPR station’s reporting on the state’s recently adopted medical marijuana program. For Knock, the report felt like bitter irony: For years, he had watched as cannabis investors began to reel in money for the same activities that had put him behind bars twenty-one years earlier.

Knock was arrested in 1996 on charges of importing and distributing large amounts of cannabis–crimes that would eventually carry the harshest possible sentence outside the death penalty: life in prison without the possibility of parole. By this day in January 2017, eight states and Washington, D.C. had legalized recreational cannabis and over half the country had legalized it medically. But unless President Barack Obama–just one day from leaving office–granted his petition for clemency, Knock knew he would probably die in prison.

Obama’s clemency program was a recourse for low-level, non-violent offenders to apply for reduced prison sentences. It especially targeted drug offenders who would have likely received lower sentences if convicted today.

But Knock’s optimism had waned because more than two years had passed since he’d applied. Still, he tried to hold onto slim hope for the sake of his son, his siblings, and his ex-wife, who had all been counting on this chance for years. In the decades since his arrest, Knock’s youthful, dirty blonde hair had given way to baldness. His hearing was diminished. He was forty-eight when he was arrested, and was sixty-nine as he waited to hear from the Department of Justice.

While aging in prison, he had watched from the sidelines as his only son, who last saw him free at age five, grow up without him. He’d had limited opportunities to talk to his mother as she slipped into dementia and death. Meanwhile, inmate after inmate–including those convicted of violent crimes–came in and out of the facility.

Under Obama’s presidency, Knock’s relatives thought his chances for clemency were excellent. After all, he’d received the harshest sentence possible for his part in smuggling a drug now legal in nine states and the nation’s capital. It was his first-time offense, and the charges were all nonviolent. Plus, there was his prison resume: Since his arrest, he’d taught home-building classes and become a mentor to other incarcerated fathers.

Photo provided by Beth Curtis

But on January 19, 2017, while listening to the NPR medical cannabis report, Knock heard a shuffling by the cell gate as his inmate counselor approached. “Here, Mr. Knock,” she said, and handed him a letter.

Clemency request denied, it said.

Like all federal clemency rejections, the letter from the Department of Justice came with no explanation–leaving Knock and his closest relatives to guess what could have gone wrong. “We really couldn’t believe it,” said Beth Curtis, Knock’s eldest sister. “It’s very hard to recover from all that hope.”

Life for Pot

Beth Curtis knows the anguish of dashed hope better than most. Shocked and frustrated by the severity of her brother’s sentence, she decided in 2008 to compile a database of other “marijuana lifers” like him, to bring more attention to their cases. After poring through newspaper articles and reaching out to prisoners and advocacy organizations, she published the website Life for Pot in 2010.

“People would tell me who they were, and then I would have to vet them and look at legal documents until I could see whether they were really marijuana offenders, or if they had other convictions,” Curtis said.

Her site now features about two dozen prisoners across ages and races. Of those, sixteen inmates were either denied clemency under Obama or are still pending. Seven others were granted clemency or otherwise released early. In total, Curtis said she is in touch with an estimated fifty inmates who have faced lifelong sentences for nonviolent marijuana conspiracies. “There aren’t hundreds like some people think, but to think that there are any is kind of remarkable,” she said.

Beth Curtis looks through hundreds of prisoners’ documents she’s collected over the years. (Raishad Hardnett)

The key to their long sentences boils down to one word: conspiracy.

Under US conspiracy law, defendants can be held responsible for all crimes that were “reasonably foreseeable” in the original conspiracy. In other words, even if they get out of the business, defendants are on the hook for drug quantities that other people sold—regardless of their knowledge or specific role in it. “If you are a part of a drug conspiracy under federal law,” said Rachel Barkow, clemency expert at the NYU School of Law, where she is a vice dean, “you’re responsible for things that other people in that group undertaking have done. And it doesn’t matter whether or not you knew that was going to happen or not.”

In addition, cannabis is still considered a Schedule I drug, one deemed to have the highest potential for abuse and no accepted medical value under the Controlled Substances Act. That regulatory class, coupled with the logistics of conspiracy law, is why life-long sentences are possible for people like John Knock.

Knock is one of more than 1,500 drug offenders set to die in federal prison under 1980s-era drug sentencing laws, despite a critical shift in drug punishments since then. Dozens of those lifers are marijuana offenders like him. With no other recourse, Knock had turned to clemency as his best chance at freedom.

Obama’s program was well intentioned but hobbled by poor planning. Trump has commuted the sentence of just one drug offender so far, but that’s enough to give some inmates a shred of hope.

But those hopes were misplaced. Although President Obama’s program did grant more than 1,700 commutations—more than any other president—clemency experts say bureaucracy and poor planning stifled the program’s ability to free many more. Out of the 13,000 people denied between 2014 and 2017, thousands appeared to be worthy candidates—at least on paper, according to a 2017 analysis by the U.S. Sentencing Commission.

The independent analysis found that more than 2,500 of the inmates who were denied appeared to meet all of the guidelines for the types of cases the DOJ claimed to prioritize. The guidelines were supposed to prioritize nonviolent, low-level offenders who served at least ten years in prison, did not have significant criminal history, demonstrated good conduct in prison, and had no history of violence.

Obama’s program was well intentioned but hobbled by poor planning. Trump has commuted the sentence of just one drug offender so far, but that’s enough to give some inmates a shred of hope.

But in fact, the commission found that only 3 percent of drug offenders who appeared to meet all of the DOJ’s criteria actually received clemency. Conversely, only 5 percent of the people who did receive clemency appeared to meet all of the criteria. Without much transparency in the review process, several critics now compare it to a “lottery system.”

“It felt like a lottery, in the sense that if you say you need six criteria to be considered, people are going to take you at your face value,” said Courtney Oliva, executive director of NYU’s Center on the Administration of Criminal Law.

Thousands of other petitions got no response at all. On Obama’s final day in office, 11,000 pending petitions rolled over into President Donald Trump’s administration, leaving thousands of cases still languishing in limbo as inmates looked to another president for mercy.

Clemency under Obama: What went wrong

Several top defense lawyers agree on one thing: Obama’s clemency program, though well-intentioned, was far from perfect. Critics say it showed several levels of mismanagement, including a lack of foresight at the outset as well as structural issues that prevented it from handling the surge of clemency requests that flooded in.

The clemency program came as attention focused on the country’s mass incarceration problem: The US holds about 1.5 million people in state and federal prisons, more than any other country in the world. And despite an overall decrease in crime, the incarcerated population has exploded to more than four times its size since 1980. Black and Latino communities bear the brunt of the impact, having endured disproportionate policing and sentencing since the War on Drugs was launched under the Nixon administration. Black people are nearly four times as likely to be arrested for marijuana than their white counterparts, even though black Americans use drugs at similar rates as whites, according to the American Civil Liberties Union.

But “it became clear pretty early on that [the DOJ] didn’t have a system set up to achieve what they had announced,” said Barkow, who is also a US Sentencing Commission member. “I watched from the sidelines and thought, ‘This is awful, they’re going to leave thousands of people behind.’”

At first, Obama’s administration hoped federal defenders could be the ones to identify strong candidates for clemency, but the Administrative Office of the US Courts ruled public defenders did not have that statutory authority. “So they were taken out of the process,” said Barkow, “and there was a real void for who was going to identify these people.”

In response to the void, an independent group of legal organizations stepped in by forming an umbrella organization called Clemency Project 2014. The organization—which was separate from the Justice Department—aimed to pair pro-bono attorneys with eligible inmates, but several obstacles delayed the project from getting off the ground. First, managers had to recruit volunteer lawyers who were willing to take on pro-bono work in addition to their day jobs. In addition, many of the selected lawyers were unfamiliar with federal sentencing law, which required training.

Yet the need was overwhelming. As many as 36,000 inmates requested counsel. “People responded in such a way that it was abundantly clear that [they] had been so hopeless for so long,” said Cynthia Roseberry, who oversaw Clemency Project 2014 as the project manager.  

But Roseberry said the next step, locating inmates’ court records, proved arduous because many of the documents predated electronic filing. It did not help that some judges refused to release certain key files, such as Pre-Sentence Investigation Reports (comprehensive documents that detail a person’s crime and criminal history). PSIRs are “like the Bible for sentencing. You can’t proceed to sentencing without it,” said Courtney Oliva, executive director of NYU’s Center on the Administration of Criminal Law.

According to Roseberry, it took a full year after Clemency Project 2014 formed before it successfully negotiated with judges and the Administrative Office of US Courts to create a streamlined system for obtaining necessary court documents. Some judges were resistant.

“I had one judge who called me and said, ‘In my nine years on the bench, I’ve been careful about sentencing, so you don’t need to look at anybody that I’ve sentenced,’” she said.

Frustrated with Clemency Project 2014’s slow start, Rachel Barkow co-founded a law clinic at NYU to process as many clemency applications as possible. In the end, her clinic successfully secured clemency for more than ninety people. Meanwhile, Clemency Project 2014 submitted about 2,600 petitions in all, including about 900 that Obama’s administration actually granted. But those numbers were but a small portion of the 24,000 inmates who sent in petitions.

Nearly every clemency expert interviewed for this article mentioned a lack of time as a prime reason why so many inmates were left behind. Critics of the initiative blame two factors: Obama’s decision to wait until his final two years in office before announcing the program, and ill-conceived planning to process the influx of commutation requests.

“The DOJ didn’t even do a data-run at the outset to try to figure out how many people were likely to be eligible,” Barkow said. “Instead, they made the announcement and then just sort of hoped for the best with this consortium of pro-bono lawyers. And unfortunately, the effort didn’t meet up with the need.”

There was also another factor that helped explain the slow process and the rejection of many petitions: politics and bureaucracy. Elected officials are often reluctant to risk freeing prisoners early, in case they commit a similar crime.

This challenge was exacerbated by the several steps of review each petition went through—including several levels through the Justice Department before reaching the White House counsel’s office and finally Obama’s desk.

“You’ve got seven levels of the review in four different buildings, all of which have a negative decision bias,” said Mark Osler, a University of St. Thomas law professor. “That is, it’s safer to say No than it is to say Yes.”

Osler has spent years urging presidents to move the clemency process out of the DOJ entirely, arguing that federal prosecutors have an inherent bias in deciding whether other federal cases deserve revisiting.

But few expected that Donald Trump might be one to break that mold.

Clemency in the age of Trump

For months, many inmates who Obama denied were skeptical of reapplying under Trump and Attorney General Jeff Sessions. That included John Knock.

And all early signs indicated they were not wrong. Just two months into the new administration, Sessions reversed an Obama-era policy that had eased penalties for low level drug offenders. Then in early March 2018, while speaking at a White House summit on the opioid epidemic, Trump suggested the US should enhance its punishment for drug dealing by handing down “the ultimate penalty” to dealers.

“There is no way–no way–that someone is going to get clemency as a drug offender under this administration,” said Courtney Oliva, in an interview last November.

But in fact, in early June the president did commute the life sentence of Alice Johnson, who had served twenty years in prison for her role in a large cocaine distribution ring. Before Trump, President Obama had denied Johnson’s requests for clemency three times.

Trump’s move came at the request of a celebrity, Kim Kardashian West, who visited the White House again this week to discuss criminal justice reform. Kardashian also said this week she has a second candidate for clemency in mind, a man named Chris Young who is serving a life sentence for cannabis and cocaine convictions. He was thirty years old when he was sent to prison almost a decade ago. Two days after granting Johnson’s clemency, Trump said he was considering other pardons from a list of 3,000 names. But despite his decision for Alice Johnson, some still doubt the possibility of a wholesale initiative like Obama’s.

“I think there’s a lot of uncertainty as to what it means because I don’t trust this administration,” said Courtney Oliva. “Assuming we have a normal president again someday, you’re going to want a system that’s not path-dependent on Kim Kardashian.”

But to John Knock and his family, the latest clemency approval has ushered in a surge of optimism.

“How do I feel? Hopeful,” Knock wrote in a letter, days after Johnson’s release. “Obama had seven layers of bureaucracy one had to pass through. Trump has one.”

“It’s disruptive to the way the system has always worked,” Knock’s sister Beth Curtis said. “If it is done directly through the White House, and the White House considers petitions that had been carefully vetted by people in the criminal justice community, that’s a very positive thing.”

As of August, Trump had granted pardons to five people, including former Arizona sheriff Joe Arpaio, and commuted the sentences of two, including Alice Johnson.

Assuming we have a normal president again someday, you’re going to want a system that’s not path-dependent on Kim Kardashian.

Courtney Oliva, executive director of NYU’s Center on the Administration of Criminal Law

On a cloudy Sunday back in February, Knock sat inside a noisy visitation room in FCI Fairton, a federal prison in New Jersey. The hall was packed with other inmates and their chattering families. Both Beth Curtis and his ex-wife, who he hadn’t seen in nearly six months, had driven from far to visit.

With a grin, he greeted the two of them with a quick hug, and they quickly pulled apart. That is all the physical contact he is allowed.

He is older now and had to lean in to hear the conversation. He cupped his hands behind his ears to amplify voices over the constant ringing in his ears. It’s not ideal, but these moments are what he lives for now–and the hope that one day, their embrace might last longer than just a fleeting moment under medium security.

“I still have hope,” Knock said.

Knock’s name is among the several that have been sent directly to senior advisor Jared Kushner, according to Curtis, and Knock’s was sent by “a man who knew John in high school who is a friend of Mike Pence.”

In an email, a spokesperson for the Department of Justice declined to comment on how clemency has changed as a priority under Trump or Attorney General Jeff Sessions. The spokesperson also declined to comment on whether the administration has indicated which types of cases, if any, will be prioritized for clemency.

More than 11,000 clemency petitions are pending, but it is not clear at what exact stage those petitions stand in the review process.

Before the Alice Johnson decision, many advocates and lawyers had already switched gears. In response to Trump’s election, some university-based law clinics moved their attention from federal clemency to state clemency–which is granted by state governors rather than the president. But that’s a smaller playing field. “What we are doing now is definitely not as big as what we did with the federal initiative,” said Courtney Oliva at the NYU law clinic. In comparison to the dozens of federal inmates the clinic helped under Obama’s program, Oliva said the program is currently focusing on helping just three state inmates.

And state clemency offers little hope for most drug offenders behind bars, who tend to have federal charges. In comparison to federal prisons, where almost half of inmates are drug offenders, only about 15 percent of state prisoners are in primarily in for drug offenses, according to the Bureau of Justice Statistics. Inmates convicted on federal drug charges have no shot at state clemency.

Some legal clinics, like one at the University of St. Thomas in Minnesota, are continuing to push out federal clemency petitions with the hopes that “things may change,” as professor Mark Osler put it. Osler leads the law clinic there and founded the first university-based clinic in the country to specialize in federal commutations. “I think it’s still worthwhile,” he said. “I just think the chances are much less than they have been.”

But instead of focusing on drug offenders, which Obama’s program prioritized, his students are petitioning for human trafficking victims.

Photo provided by Beth Curtis

Without clemency, John Knock’s last chance at freedom could either lie in compassionate release (a historically rare form of release for the elderly and terminally ill) or the federal decriminalization of cannabis, which stands a better chance of happening today than in years past. Senator Chuck Schumer announced in April that he planned to introduce federal decriminalization legislation, because, he said, “My thinking–as well as the general population’s views–on the issue has evolved, and so I believe there’s no better time than the present to get this done. It’s simply the right thing to do.”

But even if decriminalization passes, Congress would still have to pass retroactive laws to release drug traffickers already convicted of selling cannabis. Such laws are not unprecedented at a state level: In August, California lawmakers passed a measure that would require prosecutors to expunge or reduce many cannabis-related convictions.

For now, John Knock is placing his bets on the prospect for decriminalization on a federal level. He hopes this is only a matter of time.

“All I can do is hope that society will go, ‘Hey, let’s just change this.’ That’s always in the back of my mind,” he said. “It’s been in the back of my mind for the last twenty-one years.”

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