A Knock at Midnight(56)
“I miss my mom so much,” she said on my next visit, looking crushed. “Now it’s just me here. This is starting to hurt, Brittany.” For Sharanda, that statement was tantamount to a scream for help. I knew I needed to act. There was no time to wait for more changes in the law, to hope legislators would see the light and put people over politics, to enact retroactivity so that Sharanda could be freed from her virtual death sentence. My friend was nearing the end of her incredible endurance. She needed out, and I was determined to get her out. Even if, as I’d told her the very first day we met, I had to go all the way to the White House to do it.
Chapter 11
PLEA FOR MERCY
“Clemency is where justice meets mercy,” said Sam Sheldon. “And it’s all about telling your client’s story in a way that makes it impossible to ignore.”
We’d been talking for over an hour, and my hand hurt from scribbling pages of notes on one of my legal pads. It was eleven o’clock at night. I’d left the office just two hours earlier, and exhaustion was bleeding into my penmanship. But what Sam had to say about clemency, I needed to hear.
After my last visit to Sharanda, when her grief was so palpable I could feel the weight of it, I’d called De-Ann. “There’s nothing else to do,” I said. “There are no avenues of relief left through the courts for Sharanda or the guys. I think we should look into clemency. I just have no clue where to begin. Do you think your former lawyer could help?”
De-Ann connected me immediately to Sam, who’d represented her when President Clinton granted her clemency in 2001. De-Ann was Sam’s second clemency success, and my late-night calls and emails with him were becoming routine. He took me under his wing, selflessly and patiently guiding me through the clemency process over the phone and via email. I’d get home from Winstead, have a quick shower, eat some dinner, and read anything I could get my hands on about clemency, trying to understand every aspect of the process.
“The Constitution gives the president of the United States sole and unchecked power to grant clemency,” Sam told me. The clemency power granted to the president is supposed to correct injustices that the ordinary criminal process seems unable or unwilling to consider. But the process itself was secretive and extremely subjective. The lack of transparency made it difficult to determine whether any set criteria were used to identify the most likely candidates. Bureaucratic hurdles made the process even more daunting: A petition filed with the Office of the Pardon Attorney has to make it through no fewer than four levels of review within the Department of Justice. If there is a favorable recommendation from the DOJ, the petition then goes to the Office of White House Counsel and hopefully from there to the president’s desk. But DOJ has no obligation to provide reasons for denial of clemency or to reveal aspects of the decision-making process.
“The essential thing is the story,” Sam explained. “How can you get your client’s story to stand out? How can you move them with the narrative so they’ll see the human side of it? You want to show tremendous rehabilitation efforts they’ve made in prison, plans upon reentry, support from family and the community. I always reach out to the judge and prosecutors to see if they’ve had a change of heart over the years. You should also show disparities in sentencing. But don’t relitigate the case. You have to swallow every ounce of irregularities in the trial. The goal of the petition is to show they are deserving of mercy.”
Show they are deserving of mercy. Sam’s advice echoed in my head after our call. My clients had all been incarcerated under drug laws that had since been deemed unfair and unconstitutional by the very system that now asked them to prove themselves exceptional. That they were still standing, still psychologically and emotionally intact, after what they’d been through, seemed qualification enough. But I had to follow Sam’s blueprint. This was our only hope.
“You remind me a lot of myself, Brittany,” Sam said one night after an hour of hashing through the process on the phone. “A young corporate lawyer with a humble background trying to do right. Anything you need, don’t hesitate to ask. Clemency is a long shot, but you can never make the shot you don’t take.”
* * *
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IN JANUARY 2013, when I began to seriously pursue clemency for my clients, the chances of its being granted were slim to none. Presidential clemencies had diminished greatly over the past twenty-five years. Scholars attributed the diminished role of clemency to a justice system that had become inhumane and politicized through a “tough on crime” agenda. Clemency petitions started to pile up, and the processing time increased from months to years.
There are two primary forms of clemency: A full pardon forgives the defendant and completely absolves the person of the crime. A commutation is a narrower grant of clemency used to simply reduce their prison sentence. I was seeking commutations for my clients. President Reagan had granted thirteen commutations, President George H. W. Bush only three. There was an uptick under President Clinton, who granted sixty-one commutations, including De-Ann’s, but the number drastically declined under President George W. Bush, down to just eleven. President Obama had been vocal about the need for criminal justice reform in a way that raised hope and expectations for many, but to date his clemency record was the worst of any American president. To put it mildly, the odds were not in our favor.