Better Justice? Better Days?
Justice Reform has been in the hearts of many of our top law makers as of lately. In fact, the last few years have shown encouraging effort in correcting some of the most broken areas of our judicial system. To chart some of the slow but steady progression, you can look as far back as the 2008 Crack Reform bill, which reduced sentences for select prisoners by automatically lowering their base offense level by 2. Though the bill was not retroactive–leaving many crack offenders who had been sentenced before it became law stuck with harsh prison time–it did get the ball rolling with correcting disproportionate sentences. In 2010 the bill was improved through the Fair Sentencing Act, which reduced the disparity between crack and powder from 100:1 to 18:1 ratio and made it possible for more over-sentenced prisoners to get relief. Then in 2014 the US Sentencing Commission–understanding the bill still did not help those incarcerated before the law– passed Amendment 782 to the Guidelines, making the 2 level reduction retroactive and finally available to those who had been left out. Which were many prisoners languishing in jail for over 20 years already–casualties of the 80s and 90s draconian crack laws.
And then came some good rulings from the US Supreme Court that would correct some of the fractures in the judicial system. Amongst the most notables were Henderson V. US (2013) which fixed a problem that many of us face with losing the right to raise a constitutional violation on appeal because we did not first raise the claim at trial or sentencing. Henderson established, whether the claims were preserved in the lower court or not, they can be presented on appeal. Particularly if a new law came after the trial and sentencing–reasoning that the law was unsettled at the time of those proceedings. Great for some. But it was not a retroactive ruling. Many of us were left out of receiving relief.
Nevertheless, in 2013 another landmark decision was made in the US Supreme Court. Alleyne v. US, which I have expounded on a lot in my other pieces, said it is a Six Amendment violation for a judge, rather than a jury, decide factors that enhances a defendant’s sentence beyond the penalty for the crime he was charged and convicted of. Once again, the ruling corrected the sentences for all those who had suffered the violation around the time it was made. And since it was not made to apply retroactively, those of us who had already argued and lost this issue years earlier on direct appeal were left serving illegally enhanced sentences.
In 2016 came Johnson V. US, which declared the residual clause of the Armed Career Criminal Act unconstitutionally vague. A criminal statute with hidden language, or language that is unclear, denies the accused the right to know his crime and punishment as provided by the 14th Amendment, due process of law, which also adds no person shall suffer the loss of life, liberty, or property without proper notice. Unfortunately, many prisoners had. However, the Supreme Court was generous enough to make that ruling retroactive. And I’ve never seen so many guys get immediate release from prison the way that they did after the Johnson ruling. Only problem was, the ruling was limited to just the ACCA victims of due process violation despite vagueness existing in other criminal statutes as well.
While that stroke of fortune was happening at the hands of the Supreme Court, the spirit of Justice Reform was spreading in the Department of Justice and the White House. The then president, Barrack Obama, and his Attorney General, Eric Holder, initiated the Clemency Project that resulted in 1,715 federal prisoners qualifying for cuts in their exorbitant sentences.
In keeping with the climate of things, the US Sentencing Guideline Commission has now introduced changes for its 2017 and 2018 Guideline Amendment cycle that will further assure fairer sentences. It’s too much to detail, but if the amendments get passing votes, many more of the 189,202 federal prisoners who remain in this cast iron system will see some relief.
The epidemic of mass incarceration in this country is well-recognized today. Barry Pollack, president of the National Association of Criminal Defense Lawyers, was quoted by reporter Jessica Dasilva saying the entire nation spent 20-30 years swinging so far toward tough-on-crime policies that the nation is seeing politicians and policy makers at every level recognize the need to swing back. He said, “We dug a hole so deep it might take a generation or two to get out of it, but only if the effort to continue reform is sustained.” I just chronolized one generation of digging. We’re on that second one now.
The Sentencing Reform and Corrections Act of 2017-18 could be the thing to get the rest of the job done. Like the USSG Commission pending amendments, this bill is full of good stuff to add some more fine tuning to the system. To name just a few things, if it clears Congress, it will reform and target enhanced mandatory minimum sentences, lower life sentences for drug offenders to 25 years, and reduce every other mandatory minimum under the 841 drug statute by five years, and it will increase judicial discretion for sentencing.
The bill is supported by bipartisan members in the House and Senate. It has gained endorsements from big groups like the NFL, NAACP, American Civil Liberties Union, the Charles Koch Institute and Americans for Tax Reform. Even president Trump has stated his support of the bill. And if that’s not shocking enough, how about even his Attorney General, Jeff Sessions, has said he’s willing to compromise. Which is a huge difference from what he was saying in the beginning of last year.
It’s been a long journey getting to where we are today with Justice Reform. Especially for those of us who have been behind bars for decades, watching laws change but excluding us. It’s like the courts have been saying, “Yep, your sentence is unconstitutional but you got to go on serving it anyway.” So let us hope there’s something amongst the corrective efforts in progress to finally issue our justice.
The over-punitive sanctions serve no purpose other than to slowly eat away a man’s life like a buzzard over a carcass. I can assure you, from nearly 20 years of experience inside the belly of this beast, it don’t take all that to rehabilitate criminals. Ten years of what I have experienced will reform any man who loves life, family, and GOD–particularly a drug offender. Twenty years; the psychology of that man is so inundated with all he’s lost behind a poor choice–with worries of what kind of meaning can he make of what is left of his life–he doesn’t have any compartments in his mental to store a shilling of criminal intent. What moves him in life now is making sure he proves that he is worthy of the love from those that suffered with him. And of the opportunity to be free again.
To those that are pushing Justice Reform, thank you. I represent the living, breathing flesh of those numbers you see on paper–the buried alive and unlawfully kept from reentering society. You are right to know that we don’t all deserve this. I encourage you to continue fighting for ways to help us get around the time bars and procedural hurdles that keep us here when a law changes but does not apply retroactive. To this day, quite unfortunately, there is no remedy for fixing situations when a defendant properly raises a constitutional violation on his initial appeal, and gets a bad ruling from a judge, only for some change in law to occur a time later that supports his claim.
It is immoral that a man should decay in prison on a technicality. It is criminal when it’s for conduct he was never charged and convicted of.