Monday, April 21, 2014
Our Judicial System Can Be Outrageous in Sentencing
DUBLIN, Calif—Scrawled on the inside of Barbara Scrivner's left arm is a primitive prison tattoo that says "Time Flies."
If only that were the case.
For Scrivner, time has crawled, it's dawdled, and on bad days, it's felt like it's stood completely still. She was 27 years old when she started serving a 30-year sentence in federal prison for selling a few ounces of methamphetamine. Now, 20 years later, she feels like she's still living in the early '90s—she's never seen or touched a cellphone, she still listens to her favorite band, the Scorpions, and she carefully coats her eyelids in electric blue eye shadow in the morning.
It's out there, outside of prison, where time flies.
On a sunny afternoon at a federal prison outside San Francisco last month, Scrivner nervously clutched a manila envelope full of photos of herself and her daughter that she keeps in her cell. As she displays the pictures, Scrivner’s daughter Alannah, who was just 2 years old when her mom was put away, changes from a redheaded, freckled young kid to a sullen teen to a struggling young mom. Scrivner changes in the photos, too. At first she's a plump-cheeked beauty with chestnut-brown hair, then she’s a bleached-blonde woman in her early 30s, before becoming increasingly gaunt as the years grind on.
Today, she most resembles a 40-something high school volleyball coach, in her grey sweatshirt and neatly brushed-out dark bangs. But instead of a whistle around her neck, Barbara wears a large silver crucifix — though she describes her relationship with God as "complicated."
"I believe in God," Scrivner says. "I'm really mad with him."
Her faith has helped her to try to make sense of what feels like an arbitrarily, even cruelly long sentence for her minor role helping her drug dealer husband. But 20 years behind bars has also tested that faith, and even caused her to question whether her life has any meaning or is worth living.
Scrivner is one of those rare prisoners who nearly everyone agrees is serving too much time for her crime. She started using drugs when she was just 8 years old, and moved on to meth as a freshman in high school, when she began dating the first of a long string of drug-using boyfriends. The drugs helped her escape the fog of depression that settled over her, in part created by the confused anguish she felt about being sexually abused as a child. By the time she was 20, she had been busted and served time in state prison for possessing meth — twice. That's when she met her husband, a heroin addict and meth dealer who became her downfall. When his drug ring was broken up by the feds, Scrivner refused to testify against him or any other members. She was prosecuted for conspiracy and slammed with a 30-year mandatory minimum, despite her minor role as an occasional helper to her husband.
The judge who sentenced her to 30 years said his hands were tied. He was forced to lock her up for that long because of a now-defunct mandatory minimum-sentencing regime. If he heard her case today, he'd give her 10 or 15 years, he's said. The prosecutors in the Portland, Ore., office that charged her agreed that if she were prosecuted today, she'd almost certainly get a sentence shorter than the 20 years she's already served.
Thousands and thousands of people like Scrivner are serving punishingly long sentences in federal prison based on draconian policies that were a relic of the "tough on crime" antidrug laws of the '80s and '90s. Thirty years after skyrocketing urban violence and drug use sparked politicians to impose longer and longer sentences for drug crimes, America now incarcerates a higher rate of its population than any other country in the world. This dubious record has finally provoked a bipartisan backlash against such stiff penalties. The old laws are slowly being repealed.
Now, in his final years in office, Obama has trained his sights on prisoners like Scrivner, and wants to use his previously dormant pardon power as part of a larger strategy to restore fairness to the criminal-justice system. A senior administration official tells Yahoo News the president could grant clemency to "hundreds, perhaps thousands" of people locked up for nonviolent drug crimes by the time he leaves office — a stunning number that hasn't been seen since Gerald Ford extended amnesty to Vietnam draft dodgers in the 1970s.
The scope of the new clemency initiative is so large that administration officials are preparing a series of personnel and process changes to help them manage the influx of petitions they expect Obama to approve. Among the changes is reforming the recently censured office within the Justice Department responsible for processing pardon petitions. Yahoo News has learned that the pardon attorney, Ronald Rodgers, who was criticized in a 2012 Internal watchdog report for mishandling a high-profile clemency petition, is likely to step down as part of that overhaul. Additional procedures for handling large numbers of clemency petitions could be announced as soon as this week, a senior administration official said, though it could take longer.
Scrivner's case has been emblematic of the harsh and inflexible sentencing regimes of the past, as well as the challenges of reforming them now. At the beginning of 2010, a year into Barack Obama’s presidency, she applied for clemency. She had petitioned once before, in 2005, and was denied under George W. Bush. "I was very hopeful when President Obama was elected president, because I listened to his speeches about reform in the prisons and I just knew he'd be fair with clemencies," she said.
But pinning her hopes on Obama turned out to be a dangerous thing.
"I'm tired, and if I don't get my clemency I'm going to try to kill myself. Bottom line," she says she told mental health professionals in the prison.
In November 2011, three years after Obama's re-election, she got the form rejection letter from Washington. Heartbroken and hopeless, she tried to overdose on a bottle of migraine medication, and was sent to a special mental health prison in Texas to recuperate.
As a candidate and civil rights law professor, President Barack Obama had spoken out about the need to reform the criminal-justice system, and clearly felt passionately about entrenched racial biases that resulted in people being treated unfairly by the courts based solely on the color of their skin. But in his crowded first term, his only foray into criminal justice was encouraging lawmakers to pass the Fair Sentencing Act, which he signed in 2010, to reduce the sentencing disparity between crack and powder cocaine. The disparity had the effect of punishing black drug offenders far more harshly than white ones, and was widely accepted to be outdated and unfair. (Obama's clemency push is meant to correct a broad set of inequities in the criminal-justice system, not just those that are racial. Scrivner, who might benefit from the program, is white.)
When it came to using his only unfettered presidential power — to pardon felons and to reduce the sentences of prisoners — Obama was incredibly stingy in his first term. Vanita Gupta, deputy legal director of the American Civil Liberties Union, calls his record on mercy "abysmal." He pardoned just 22 people — fewer than any modern president — and commuted the sentence of just one. An applicant for commutation like Scrivner had just a 1-in-5,000 chance of getting a reduced sentence with Obama in his first term — compared with a 1-in-100 chance under Presidents Reagan and Clinton, according to an analysis by ProPublica.
According to former and current administration officials, the fault for this lay mostly at the feet of the Office of the Pardon Attorney, a small corner of the Justice Department that sifts through thousands of pardon and commutation petitions each year. The pardon attorney, former military judge Ronald Rodgers, sends his recommendations of whether or not to grant the petitions to the Deputy Attorney General’s office, which then sends them on to the White House. The pardon attorney was recommending that the president deny nearly every single petition for a pardon or a reduced sentence, according to one senior official in the Obama administration.
But even though the president was almost certainly aware that the pardon process was deeply flawed, he took no steps to fix it. In 2009, Obama’s top lawyer, Gregory Craig, drafted a proposal urging a more aggressive use of the presidential pardon and clemency power, and calling the current system broken. One of Craig's recommendations was to take the pardon attorney's office out of the Department of Justice entirely, so that the people vetting clemency petitions were not so close to the system that put prisoners away in the first place.
"I was of the belief that the current system for making pardon decisions was broken and it needed to be reformed," Craig said. His suggested reforms weren't implemented, and he left the White House that year.
Craig wasn't the only one to raise concerns to the White House early in Obama's tenure. A staffer in the pardon attorney's office, Sam Morison, wrote to a West Wing attorney to blow the whistle on his own office shortly after Attorney General Eric Holder gave a speech in February 2009 saying America is a "nation of cowards" on race. The attorney general mentioned entrenched racial injustices in the criminal-justice system. In the spirit of that concern, Morison wrote, "I must bring to your attention the near total collapse of the pardon advisory process." He added that the pardon attorney's dysfunction disproportionately affected minorities, whose pardon petitions were far less likely to be approved than whites' over the years. Morison said the desire to reject petitions was so institutionally ingrained at the office that the president would never effectively be able to use his pardon power. No one replied to his memo.
The spirit of criminal-justice reform that interested the president had not trickled down to the pardon attorney. "There's all this bipartisan reform going on, but you have these people down there in their own little insular world and they just don't get it," one senior administration official said of the pardon attorney's office.
Near the end of his first term, Obama expressed his frustration with how few positive clemency petitions were landing on his desk. He began meeting with White House Counsel Kathy Ruemmler and Holder to discuss how his pardon power could fit into his larger strategy of making the criminal-justice system fairer. (In mid-December, Holder followed up with a memo to Obama laying out his priorities for a second term in which he endorsed a more robust use of the pardon power as part of a broader criminal-justice reform initiative.) Over a series of five or 10 discussions, the president said he wanted more recommendations for pardons and commutations getting to his desk. The president complained that the pardon attorney's office favored petitions from wealthy and connected people, who had good lawyers and knew how to game the system. The typical felon recommended for clemency by the pardon attorney was a hunter who wanted a pardon so that he could apply for a hunting license.
Meanwhile, the pardon attorney became the target of a scathing Justice Department Inspector General report in December 2012, furthering the suspicion in the White House that the culture of the office was to reflexively deny petitions. Rodgers fell "substantially short of the high standards to be expected of Department of Justice employees and of the duty he owed to the President of the United States," the Inspector General said. The report concluded that Rodgers misrepresented the facts to the White House of a commutation request from Clarence Aaron, a man serving a triple life sentence for facilitating a drug deal. The pardon attorney's advice to the president to deny the grant, even though the prosecutor and judge supported it, "was colored by his concern ... that the White House might grant Aaron clemency presently and his desire that this not happen," the report concluded.
A year later, and after prodding from the Obama administration, the pardon attorney's office finally sent the president recommendations to commute the sentences of eight people serving life or near-life sentences for drug crimes, including Aaron. None of the eight people was politically connected or wealthy, traits that the president wants to avoid rewarding with his clemency power. A year after Rodgers was taken to task for denying Aaron's petition, Obama freed Aaron and seven others from prison. According to Ruemmler, the commutations were a message that the president was serious about wanting to see more clemency recommendations.
Even with these eight, Obama has granted just 10 commutations out of 10,000 requests. He granted 52 of the 1,600 pardon requests that made it to his desk. But a new initiative he directed the Justice Department to begin this spring might increase that number by hundreds, or even thousands.
SCRIVNER’S SECOND CHANCE
Far away from the policy debates in Washington, Barbara Scrivner recovered from her suicide attempt in Texas and was sent back to the federal prison in Dublin, Calif. Scrivner told herself she'd never let herself get her hopes up again, and returned to her daily routine of working in the kitchens all day and then beading and playing cards after work to keep her mind off the sluggish passage of time.
But last February, the Justice Department announced a new push for clemency for nonviolent drug offenders — an initiative that came out of Obama's meetings with Ruemmler and Holder. Deputy Attorney General Jim Cole solicited private defense attorneys around the country for more petitions for mercy from prisoners serving lengthy sentences for drug crimes that would most likely be prosecuted differently today, due to changes in the law. A group of advocates have created "Clemency Project 2014" to organize the petitions and send them to the Justice Department — they expect thousands to pour in.
Despite her trepidation about being let down again, one of those petitions is Scrivner's.
In theory, she is a model candidate for the initiative — a nonviolent drug offender who was subjected to a lengthy sentence because of mandatory minimum penalties that are no longer in effect. She graduated from a drug-addiction program in prison and became a certified drug counselor; she nearly completed her bachelor’s degree in Bible studies; and she's finally dealing with her previously undiagnosed mental illness issues.
But this isn't a story about someone who was falsely accused of a crime and wrongly locked up, and Scrivner is the first to admit that. She started dating drug dealers when she was just 14 and a freshman in high school. That’s when she first tried meth and got hooked on it. "It made me feel different than I felt before," Scrivner says. "It made me feel more euphoric, more happier. I was a pretty depressed kid."
A friend of her mother's boyfriend sexually abused her when she was just 6 years old — a secret she kept until telling a prison therapist during her first psychiatric evaluation years ago. The men her mother hung out with also gave her marijuana to smoke when she was just 8 years old. In prison, she was diagnosed as bipolar, and it dawned on her that she had been using drugs to self-medicate all through her childhood and early 20s. "I just went from one older man with drugs to another older man with drugs to another older man with drugs," she said. "And I just felt loyalties to them."
She has a lengthy rap sheet and went to prison twice before — both times when she was arrested for possession after police raided homes where her boyfriends stashed drugs. She met her husband when she was 20 years old, after she had just gotten out of jail the second time. A friend told her she thought she'd like him, because he also had just gotten out of jail. "I just clicked with him," she recalls. It was a bad match.
Scrivner decided to get clean when she discovered she was pregnant. Her husband continued using heroin and dealing meth, and was caught and sent to prison shortly after the baby was born. While he was there, Scrivner fell behind on the bills, and hocked her jewelry and other valuables to keep the lights on. She made a desperate jailhouse call to her husband, who said he’d get in touch with his friends and have them help her.
Some of his friends visited her shortly afterward, and dropped off a few ounces of meth. Scrivner sold it, paid her bills, and got her jewelry back. Little did she know that the feds were about to bust her husband’s drug ring. They showed up a few months later and demanded she tell them everything she knew about the larger operation. When she didn't, they prosecuted her for conspiracy and slammed her with responsibility for the whole drug operation — more than 100 kilograms of meth. Mandatory sentencing guidelines at the time meant the judge had no choice but to give her 30 years. Her daughter, Alannah, has grown up since she was just a toddler with both her mother and father behind bars in federal prison on 30-year sentences.
Scrivner's case is unusual in that both the judge who sentenced her and the prosecutor's office that charged her say she has served enough time. It's rare for cases like hers to be turned down by the pardon attorney, according to Sam Morison, but not unheard of. The office does not disclose why it rejects candidates, so Scrivner has been left wondering what went wrong.
"It would be fair to say that this is an unusual case," said Kent Robinson, the First Assistant U.S. Attorney in Oregon, where Scrivner was originally prosecuted. Robinson's office supported Scrivner's earlier clemency petition with a letter calling for her release. "Certainly in the last 10 years we haven’t written a letter like this."
But questions still remain about whether the pardon attorney's office is actually capable of fairly and quickly processing Scrivner's and the thousands of other expected petitions. Holder has asked for seven additional staffers for the office in his 2015 budget request, but it's unclear when they would start.
Meanwhile, more than a year after pardon attorney Rodgers was called out by the Justice Department for misrepresenting Aaron's petition to the White House, the former prosecutor and military judge is likely to finally be pushed out and replaced, a senior administration official tells Yahoo News. Rodgers was not present in a March meeting of the Justice Department, White House officials and advocates about "Clemency Project 2014," suggesting that he was already being internally marginalized.
Advocates have long been skeptical that a significant number of clemency petitions will actually get processed quickly if the current pardon attorney remained in place, given the entrenched culture there. A former pardon attorney's office employee said he believes the office could try to run out the clock on the petitions, knowing full well that the president has only a few years left. New leadership could change that.
Meanwhile, Scrivner is trying not to get her hopes up that this time will be different. She struggles to understand what her life's purpose is and why her seemingly robust clemency application has not been successful.
If her petition is denied again, she has a little bit more than five years until she can be released to a halfway house near her daughter in Fresno. Her daughter Alannah says it will be strange to see her mother for the first time outside of prison walls.
Scrivner says the new petition has filled her with hope, which scares her, because she doesn't want to be let down again. The eye shadow runs down her face, creating blue tracks on her tanned cheeks. "Ten years is a long time to be in prison. And now it’s been 20 years."
"It just doesn't seem real to me," she said.
Last month, the president walked into the East Room to greet dozens of U.S. attorneys who traveled to the White House to discuss criminal-justice issues. The president told them he was expecting an influx of clemency applications for his new push, and warned that he wanted them to personally examine them all and not "reflexively" deny them.
"I take my clemency authority very seriously," he told them.
With just a few years left of Obama's presidency, Scrivner, and others, will soon find out if he means it.