LUNA: A case for mercy

A failed Obama promise cries for review of harsh sentences

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During his 2007 presidential campaign, Barack Obama decried then-President Bush’s failure to find merciful alternatives to the harsh sentences given to low-level, nonviolent drug offenders under the federal mandatory-minimum regime. He promised to “review these sentences to see where we can be smarter on crime.” For the most part, however, President Obama has not kept that promise. To date, he has granted clemency in only 61 cases, the lowest total of any president since 1881. The commutation of eight sentences last week is welcome news, for sure, but hardly sufficient given scores of inmates who have been unjustly sentenced pursuant to mandatory minimums.

Take, for example, the case of Weldon Angelos. In his early 20s, Angelos was arrested, convicted in federal court and sentenced to a mandatory 55-year prison term. Absent extraordinary relief, this father of three children and first-time offender will likely die in prison. But even if Angelos survives until 2051, the earliest possible release date, his incarceration will have cost the American taxpayer more than $1.5 million.

What was Angelos‘ crime? Kidnapping or child rape? Espionage or terrorism? Did he hijack an airplane? No — but had Angelos committed such deadly serious crimes, he would have received a far shorter sentence.

Instead, Angelos was found to have possessed a firearm during two undercover buys of $350 worth of marijuana, with a subsequent police search of his home uncovering several other weapons. Angelos never brandished or used the firearms, nor did he cause or threaten any violence or injury. Had he been prosecuted in local state court, Angelos may have received a short prison term, and he certainly would have been released years ago.

No matter. Draconian federal mandatory-minimum penalties ensured a virtual life sentence for simply possessing a firearm in connection with small sales of a drug that is now legalized in two states, decriminalized in several others and accepted for medicinal use across the country. The outcome is all the more perverse, given that Angelos‘ punishment is more than twice the federal sentence for a kingpin of a major drug-trafficking ring in which a death results, and more than four times the sentence for a marijuana dealer who shoots an innocent person during a drug transaction.

This was too much for then-U.S. District Court Judge Paul Cassell, a conservative Bush appointee known for being tough on crime. In a compelling opinion, he called Angelos‘ sentence “unjust, cruel and irrational.” Judge Cassell was not alone in his evaluation. In an unprecedented show of support, a large and distinguished group of former federal judges, prosecutors and high-ranking Justice Department officials (including four former U.S. attorneys general) filed briefs asking that Angelos‘ punishment be declared unconstitutional. In the end, however, the lower courts were bound to uphold the sentence, and the one tribunal that could remedy the injustice, the U.S. Supreme Court, took a pass.

Nonetheless, the case continues to resonate outside of the courtroom. Among others, representatives of the U.S. Judicial Conference, the U.S. Sentencing Commission in a report to Congress, and the drafters revising the Model Penal Code’s sentencing provisions have all cited Angelos‘ case as a vivid illustration of the injustices of mandatory minimums. In recent months, members of Congress, including Sens. Orrin G. Hatch, Utah Republican; Patrick J. Leahy, Vermont Democrat; and Rand Paul, Kentucky Republican, have also questioned Angelos‘ 55-year sentence. In Mr. Leahy’s words, “We must stop and ask ourselves what good does that sentence do society?”

As the law stands today, relief for Angelos must come by an act of executive clemency. Judge Cassell recognized this in his sentencing opinion. Because Angelos‘ punishment was “one of those rare cases where the system has malfunctioned,” Judge Cassell recommended that “the president commute this unjust sentence.”

On Nov. 13, a letter to Mr. Obama in support of granting clemency to Angelos was delivered to the Office of the Pardon Attorney. The letter is signed by more than 100 prominent individuals, including former members of Congress and the Executive Branch, former federal and state judges, former governors and state attorneys general, former law enforcement and corrections officials, and former military leaders. These authorities are joined by more than 187,000 Americans who have signed an online petition calling for Mr. Obama to commute Angelos‘ sentence.

The Founding Fathers recognized the importance of the presidential clemency power as a final safety valve to correct injustice. In Federalist No. 74, Alexander Hamilton wrote: “The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel.”

In the past, Mr. Obama has denounced “the blind and counterproductive warehousing of nonviolent offenders.” He has also said that “one of the great things about America is that we give people second chances.” The case of Weldon Angelos provides a golden opportunity for the president to start giving meaning to his words.

Erik Luna, who worked on Weldon Angelos‘ appeal and authored the letter in support of his clemency petition, is the Sydney & Frances Lewis professor of law at Washington and Lee University.

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