A Knock at Midnight(62)

I kept my head up, too, following Sharanda’s lead. But the guard was right. It had been almost four years since Sharanda had come into my life, almost four years since we’d been saying this together. And Sharanda had spent ten years in the hell of prison before I’d even come across her name. Please, I prayed on the way home from the prison. Please let my clients be next.



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    ON APRIL 23, 2014, the Obama administration announced the historic Clemency Initiative to restore vigor and integrity to the clemency process and a sense of fairness to the heart of the justice system. In particular, Obama and his administration had been concerned about people serving decades in prison who were convicted of drug crimes during the height of the “tough on crime” era and who would get shorter sentences if they committed the same crimes today. Congress had the opportunity to make the Fair Sentencing Act of 2010 retroactive but failed to do so. And as far as the Obama administration was concerned, people still serving time under the outdated law were in prison as an accident of history.

Under the new initiative, the Obama administration invited people in federal prison to submit clemency petitions if they met all of the following benchmarks: “They must be (1) serving a federal sentence in prison and, by operation of law, likely would have received a substantially lower sentence if convicted of the same offense today; (2) are nonviolent, low-level offenders without significant ties to large-scale criminal organizations, gangs, or cartels; (3) have served at least 10 years of their sentence; (4) do not have a significant criminal history; (5) have demonstrated good conduct in prison; and (6) have no history of violence prior to or during their current term of imprisonment.”

Federal prisoners were notified of the project, and more than twenty-five thousand responded by submitting surveys to begin the process. Clemency Project 2014 launched after the Obama administration asked the legal profession to provide pro bono assistance to people in prison who met the president’s clemency criteria. Thousands of lawyers signed up to assist, including myself. Jennifer Turner, the author of the “A Living Death” report, was a member of Clemency Project 2014’s founding working group, and she asked me to serve as a member of the screening committee. In this volunteer role, I performed extensive legal analysis of hundreds of federal cases to determine eligibility for clemency. I also trained and supervised the work of pro bono attorneys to help shepherd cases to the White House. After reviewing so many cases, I had a completely different understanding of the sheer magnitude of the problem. Reviewing hundreds of cases put everything into perspective.

    I also immediately filed supplemental petitions for Sharanda and Donel through Clemency Project 2014, specifically highlighting that my clients easily met the criteria. For sure they would be in the next round of clemencies. I imagined that after launching his initiative with so much fanfare, Obama would go bold, granting hundreds at a time.

That summer, I took a big leap in my own career, moving on from Winstead to serve as assistant general counsel at ORIX Corporation’s U.S. and Latin business hub in Dallas. ORIX, headquartered in Tokyo, was a leading international financial services firm with global reach. Typically, attorneys work at least five to seven years at a firm like Winstead to become an attractive candidate to transition to an in-house counsel job. I had just three years’ experience when ORIX offered me a position in its legal department. I enjoyed my new job, though I can’t say I worked any less. I loved having a longer-term, more interactive relationship with a client. I was able to understand the bigger picture to advise ORIX on not only the law but business strategy, and to see every legal opportunity or crisis, big or small, through to the very end. Working in-house was a great fit for my skill set, and professionally, I was challenged, stimulated, and happy.

But outside work, as I continued to review petitions and got deeper into volunteering with Clemency Project 2014, I was frustrated by the pace of Obama’s commutations. Because there weren’t any. As summer turned to fall, there was no news from the White House. It didn’t make sense. Why announce a big project and then slow-roll the actual decision making? Why build up the hopes of so many people only to keep them on tenterhooks?

Then, on December 17, 2014, President Obama granted clemency to eight more people. While this was welcome news, it was crushing for my clients and for the hundreds I’d helped to screen who were not in that number. At the time, the U.S. Pardon Attorney’s Office had received 15,646 petitions for commutation since 2009. In 2014 alone, the Pardon Attorney received 6,561 applications. Yet throughout Obama’s time in office, a total of 6,596 petitions had been denied while only eighteen, including these eight, had been granted. It was underwhelming, to say the least, and my joy was restrained.

    On the afternoon of the last day of March 2015, I was sitting in my office at ORIX reviewing a stock purchase agreement when my phone lit up with a number from the 202 area code: Washington, D.C. I had been expecting a call from Cynthia Roseberry, Clemency Project 2014’s project manager, to discuss one of the cases I was screening, and I was looking forward to digging in with her.

“This is Brittany,” I answered, but the voice in response wasn’t Cynthia’s.

“Is this Ms. Brittany Barnett, attorney of record for Donel Marcus Clark?” My breath caught in my throat. Had something happened to Donel?