President Obama is expected to approve a major new batch of clemency petitions this week in his landmark effort to revamp federal prison sentencing, and when he does, a group of churchgoers in Minnesota will be looking for the name of a North Carolina man they’ve come to know as “Kenny.”
Since Obama began granting pardons and commuting sentences in large batches in 2014, a familiar rhythm has emerged: First there are rumors, then hope, and then, for many, crushing disappointment.
“You try not to get excited, but you want it to happen so bad,” said Paul “Butch” White, a Detroit Lakes resident who developed a long-distance friendship with a North Carolina prisoner serving 25 years for meth and gun possession. “We’re running out of time.”
White will be one among several Minnesotans, including two law professors who lead clemency projects, watching this week to see if their clients make the president’s list. All seem to accept that the presidency of Donald Trump — with an attorney general nominee who has explicitly scorned Obama’s initiative — means the door will soon swing shut.
“You’re just watching the ship sink and you’re in the lifeboat. And there’s not enough room for everyone,” said Mark Osler, a University of St. Thomas law professor and former federal prosecutor who runs a clemency clinic for law students. “These last few weeks — it’s deep joy and it’s deep tragedy.”
By Inauguration Day, Obama is expected to have granted clemency to at least 1,500 people — a number whose closest parallel is President Gerald Ford’s decision to pardon 13,000 draft dodgers and deserters after the Vietnam War. Obama’s rationale, widely shared by jurists and attorneys, is that under mandatory-sentencing laws dating from the war on drugs, American judges handed down hundreds or thousands of prison sentences now deemed unnecessarily harsh.
But some attorneys say more reform is needed: The clemency process takes petitions through seven levels of bureaucracy, and efforts to change federal sentencing laws have stalled since a 2010 law reduced the disparity in sentences for crack vs. powder cocaine.
Osler’s St. Thomas clinic has helped win clemency for eight federal inmates. He co-founded a similar clinic at the New York University Law School that has won more than 60 grants. Another clinic, one of dozens triggered nationally by Obama’s initiative, is at the University of Minnesota law school, run by Minneapolis professor and attorney JaneAnne Murray, who has enlisted peers and students to help.
Friends in Detroit Lakes
Obama has so far commuted the sentences of six Minnesota offenders — including one serving a life term — and pardoned two others. But when he announces his next round of clemencies, several Detroit Lakes churchgoers will be listening eagerly.
White, a retired small-business owner who races cars, struck up a friendship with Kenneth Wayne Gragg years before clemency became a possibility. His nephew was housed with Gragg in a Texas prison and Gragg, himself a former race car driver, offered to advise White on the mechanics of his own car.
White has since traveled to visit Gragg in person, bringing home photographs and sharing the bond with fellow parishioners at United Methodist Church, some of whom joined White and his family in keeping in touch with Gragg.
Gragg now says that being arrested probably saved his life — he was living out of a car, selling drugs to fuel his own habit and had lost his marriage and his share of a family business. He pleaded guilty to a charge that had a mandatory minimum 20-year sentence after prosecutors filed a “recidivist enhancement” motion that toughened penalties for defendants with prior drug convictions.
But in 2010, then-Attorney General Eric Holder instructed federal prosecutors to not seek such enhancements and to charge cases based on individual circumstances.
“Minimum, maximum sentences — when they started, they sounded like a great thing to do to solve the drug problem,” White said. “Well, it didn’t. … We all make mistakes, but how long should you pay for that mistake?”
By chance, Murray offered to take on Gragg’s clemency petition. White meanwhile found two local employers willing to hire Gragg if he is released from prison soon.
Despite his support in Minnesota, Gragg feels moments of desolation. In an e-mail to White, he wrote: “I’ve done [nearly] 12 years now and feel like I don’t have 10 more in me if I do not get this. [It] feels like someone has a foot on your chest pushing the air out.”
Today, more than half the federal prison population is serving sentences of more than 10 years, according to the U.S. Sentencing Commission.
In a stunning report last month, the Brennan Center for Justice at the New York University School of Law estimated that 39 percent of the nation’s 1.46 million state and federal prisoners are incarcerated “with little public safety rationale.”
If they were released or sentenced to alternatives like community service or treatment, the report said, the United States could save $20 billion a year.
“What we’re doing now is … warehousing human beings,” said Lauren-Brooke Eisen, senior counsel at the center’s Justice Program and one of the report’s authors.
Clemency, Eisen said, can only chip away at what she says is needed, a “wholesale rethinking of why we punish and for how long.”
Writing in this month’s Harvard Law Review, Obama said his clemency initiative was no substitute for what can be achieved through legislation, “but they are a way to restore a degree of justice, fairness and proportionality to the system.”
U.S. Sen. Jeff Sessions, R-Ala., who will appear before a Senate committee this week for hearings on his nomination for attorney general, has sharply criticized Obama’s effort. After Obama announced 214 commutations in one day last August, Sessions said the president was abusing his executive power “in an unprecedented, reckless manner.”
In Detroit Lakes, the Rev. Brenda North of United Methodist Church said her “blood boiled” on hearing Sessions’ comments. At some point, she said, a sentence can become more immoral than the crime it intends to punish.
“I believe God weeps at that loss of human potential,” North said. “We all do.”