DOJ Seeks Drug Defendants for Clemency Requests

Best news yesterday: Obama is searching for inmates who could use a sentence commutation. Deputy AG James Cole said during a speech:

It is the department's goal to find additional candidates, who are similarly situated to the eight granted clemency last year, and recommend them to the president for clemency consideration,"

Candidates for clemency would include inmates who have had clean records in prison, do not present a threat to public safety and are facing excessive sentences, according to the speech.


Cole asked public defenders to search their files and identify those who would be a good fit for a pardon. I assume he has no problem with private defenders doing the same. I'd like to nominate Dracy McKneely.

I wrote about Dracy here.

Dracy McKneely got a life sentence on a conviction of 251 grams of crack. I did not represent him at trial, only in his appeal. The last words of the appeals court opinion affirming his conviction are:
Although it is tragic for a twenty-three-year-old to spend the rest of his life in prison, Congress has provided this penalty for drug crimes involving large quantities of cocaine. We must follow the law.

The law must be changed. Very few of my clients are going to benefit from Durbin's law. It has too many exclusions. Commutation may be the way to go. I suspect Obama will do as he says. At least he'll earn the unwavering praise of two groups: Inmates and criminal defense lawyers.

I'm still in touch with Dracy, after 20 years. He emails from prison and writes letters. He's never given up hope. He keeps filing pro se lawsuits with new claims, and appealing the denials to the court of appeals. Right now he has a FOIA lawsuit going in D.C. seeking discovery of missing phone calls he says the Government failed to turn over at this trial.

Dracy never should have gotten a life sentence for a first felony and 251 grams of crack. Nor would he have, had the judge not added 4,000 grams of crack to the 251 grams, because a cooperating defendant in another case who pleaded guilty and refused to testify against Dracy at Dracy's trial, invoking his 5th Amendment privilege, changed his mind by sentencing and sang like a bird, claiming he had worked for Dracy for four months and moved "a bird" a month for him. Without any corroboration of this person's story, and even though he was testifying in hope of a sentence break in his own case, the Judge found him credible and added 4 kilos of crack cocaine to Dracy's relevant conduct.

And the Judge didn't stop there. Months before the Colorado charges, Dracy and two friends had been stopped while driving through Utah in a rental car. Dracy was a passenger. The cops discovered 1 pound of cocaine in the car and a gun in the locked glove compartment. Dracy and one of the other two guys said the gun wasn't Dracy's. The third guy claimed ownership of the gun. None of them had a key to open the locked glove compartment, thus the gun wasn't accessible. Nonetheless, the judge added one pound of crack to Dracy's guidelines as relevant conduct, and 2 points for the gun that wasn't accessible to him.

(The Utah court found the car search illegal and suppressed the evidence, but the judge still considered it. The Government appealed and the Court of Appeals later reversed the suppression order.)

Then the judge added 2 points to Dracy's offense level for having a manager or supervisory role. (Even though two of the defendants involved in the deal, including the mule said Dracy wasn't the source of the drugs or the person who gave the drugs to the mule to bring to Colorado.)

The judge also struck the testimony of Dracy's sole defense witness, holding him in contempt because the witness, who admitted he was a drug dealer in California, wouldn't answer a question about who he worked for in California, which had nothing to do with Dracy's case. He did say he didn't know who the source was for the particular drugs in Dracy's case, but he knew it wasn't Dracy. The judge struck all of his testimony for not answering the question about who the witness worked for, telling the jury to disregard it.

Last but not least: Dracy's lawyer, who was from out of state, entered his appearance just 10 days before trial and asked for a continuance. The judge refused and said the lawyer knew Dracy well enough to proceed on the 20th (Christmas week.) I don't know anyone who could be prepared to try a federal criminal case in 10 days, especially when your client is detained without bond in another state. So, Dracy went to trial with lawyers who had 10 days to prepare, on a charge that resulted in a sentence of life without parole.

There's something seriously out of whack with our drug laws, and I think Dracy's case is a great example of the unfairness, the disparity, and the callousness displayed to some minority defendants.

As I wrote yesterday, Congress and the Senate are close to worthless for getting any real reform bills passed. The Democrats let the Republicans water the bills down to the bone, and then issued press releases patting themselves on the back for a bill that will not result in any relief for hundreds, if not thousands of defendants.

But based on Obama's holiday commutations a few months ago, I'm hoping he'll keep his good cheer and forgiving spirit for a few months more -- at least until Dracy can submit a petition for clemency.

The judge, who is no longer on the bench, did reduce Dracy's sentence to 30 years from life a few years ago. Without a commutation, he'll be in prison until 2019-- 26 years.

Dracy is unlikely to qualify for relief under Durbin's new bill because he has a pending motion to reduce his sentence which the Government is objecting to. The Government argues because of the gun and managerial enhancement, his guidelines would be the same whether the lower crack ratio was applied or not, so he's not entitled to a reduction. If the judge sides with the Government, he will be expressly exempted from obtaining relief under Durbin's bill.

Here's a Change.Org petition someone started for Dracy. It includes:

Dracy has a loving family/friends ,and granddaughter 3, with a well defined support system for reasons of never returning to prison or criminal association what so ever.
Dracy has acquired the following skills while in prison. Cooking, electrician and is presently pursuing his AA degree in Psychology.

Dracy's story is probably not that unique. He's not the only one doing life for a modest drug offense. Consider that if we catch and extradite the biggest cartel leader in the world, one responsible for bringing tens of thousands of kilos of drugs into the U.S., he will get the same or a lesser sentence than Dracy. How is that possible? How is it rational? How is it fair?

Free Dracy. And the hundreds like him who remain languishing in our prisons. President Obama has the power to do it through clemency orders that commute the sentences. He said he wants to use it. If you are a defense lawyer, comb through your files and see if you have anyone who fits. BOP facilities have the clemency applications and will hand them out to inmates. You can get more information about the Pardon Attorney and requirements for clemency, as well as the forms here.

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  • Display: Sort:
    Sadly, there are so many out there in our prisons (5.00 / 3) (#1)
    by Peter G on Sat Feb 01, 2014 at 03:03:52 PM EST
    with ridiculous sentences like your former client's. Still, what excuse did Comey offer for the fact that there are already as many as 6000 clemency petitions sitting, without action, in a file drawer somewhere in his division of the Department of Justice?  None. The Office of Pardon Attorney, which is supposed to be reviewing those applications and recommending appropriate ones to the President, is (to use the current expression) "broken."  I don't understand how getting more applications submitted will make things better, if they all have to be funneled through that same clogged artery.

    Have to admit that I cringed at (none / 0) (#2)
    by andgarden on Mon Feb 03, 2014 at 11:30:42 PM EST
    He keeps filing pro se lawsuits with new claims, and appealing the denials to the court of appeals.

    Perhaps a collateral benefit to expanded clemency is that these may go away!