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29 Fed. Sent'g Rep. 234 (2016-2017)
Clemency: An inside Story from a Progressive Advocate

handle is hein.journals/fedsen29 and id is 250 raw text is: Clemency: An Inside Story from a Progressive Advocate NKECHI TAIFA, ESQ.* Advocacy Director for Criminal Justice, Open Society Foundations In 1998, I authored an article for the Federal Sentencing Reporter (FSR), Reflections From the Frontlines,' which chronicled my view of the evolution of the campaign to eliminate the disparity in federal sentencing between crack and powder cocaine. I continued the account in 2010, when I penned A Bittersweet Moment in History,2 written on the cusp of the passage of the Fair Sentencing Act, which reduced that disparity. Now, nearly 20 years from my first FSR article, I continue the odyssey with this inside story on clemency-the newest frontier in the ongoing drug war saga, from my perspective as a progressive advocate. President Obama signed the Fair Sentencing Act into law in 2010. I worked on the issue for 17 long years, over- lapping my work with three different employers-the ACLU Washington Legislative Office, Howard University School of Law, and the Open Society Foundations. Although the Fair Sentencing Act reduced the disparity in penalty between crack and powder cocaine offenses, it was prospective only, not applying to people already sentenced at the time of its passage. Since the bill had bipartisan support, progressive advocates strategically chose to keep the retroactivity issue off the table because we felt attaching it would have been legislative suicide. But the lack of retroactivity was fundamentally unfair- sentences should not be based on a fluke-whether one is lucky enough to have committed a drug crime after August 3, 2010, the effective date of the Act, as opposed to a mere day before. If the disparity is wrong today, it was wrong yesterday. Fairness means that the new law had to apply retroactively, particularly since it was the egregious- . ness of the sentences of people already incarcerated that inspired the change in the law. Now that the bill had passed and the storm had blown over, I knew there had to be a solution to this nonsensical conundrum. Always on a quest for justice, I scrambled to come up with a remedy. I. The Beginning I have it! I shrieked, several months after passage of the 2010 bill as I breathlessly blurted my master plan to col- leagues. Mass clemency for those who did not benefit from the Fair Sentencing Act! Unfortunately, my excitement was short-lived. Nkechi, don't be ridiculous, a close colleague chided. Be realistic, that will never happen, another admonished. Although this proposed remedy was shot down by coalition members as unrealistic, I knew I was on the right track. I just needed to find the right mechanism and fashion a winning Federal Sentencing Reporter, Vol. 29, No. 5, PP. 234-246, ISSN 1053-9867, electronic ISSN 1533-8363. @ 2017 Vera Institute of Justice. All rights reserved. Please direct requests for permission to photocopy or reproduce article content through the University of California Press's Reprints and Permissions web page, http://www.ucpress.edu/journals.php?p=reprints. DOI: https://doi.org/IO.1525/fsr.2017.29.5.234. FEDERAL SENTENCING REPORTER * VOL. 29, NO. 5 * JUNE 2017 narrative that would provide critical cover in a politically volatile criminal punishment regime. The following year someone handed me an article co-written by Mark Osler,3 an unknown-to-me law professor from Minnesota's University of St. Thomas Law School. My eyes got big and my brain started racing. This is really it! I confidently proclaimed to myself. This is it, and hallelujah, it's coming from a White former prosecutor turned professor who established the first law school clemency clinic in the country. Perfect. The article provided a framework for a solution to my problem. It focused on nearly 14,000 people convicted of anti-draft offenses whose sentences were commuted through a fed- eral clemency commission established by President Gerald Ford in the wake of the Viet Nam War. It also described President Jimmy Carter's amnesty for draft dodgers that followed. I was obsessed as I scrutinized this possible pre- cedent. Hmmm, in the clemency commission approach, each case was individually reviewed, a remedy that was not seen as the proverbial get out of jail free card, and a strategy that would alleviate current fears of releasing those who could pose a threat to public safety. It sounded like a plausible model to replicate, and I was excited. I needed a platform to introduce Professor Osler's Ford Clemency Commission model as a serious pursuit, espe- cially since my mass clemency brainchild idea failed to pass the laugh test, even amongst some of my progressive peers. As I usually do when stuck and needing to generate attention to an issue and garner buy-in from colleagues, I contemplated an educational policy event. This approach worked at the onset of the crack disparity campaign I led in 1993 while at the ACLU, when the bud- *ding C-SPAN broadcast our day-long symposium,4 helping to thrust the issue into the national consciousness. It was likewise successful as I sought to revive the campaign in 2006 with an historic thematic hearing before the Inter- American Commission on Human Rights. This hearing included a riveting testimony from Judge Patricia Wald, who castigated long and punitive sentences, stating that not only did they approach the cruel and unusual level, but that sentences she saw imposed on war crimes perpetrators responsible for the deaths and sufferings of innocent civi- lians often did not come near those imposed in my own country for dealing in a few bags of illegal drugs.5 I teamed up with Kanya Bennett, a former Congressio- nal Black Caucus fellow who had recently joined the staff of the American Constitution Society for Law and Policy. We 234

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