Pubdate: Fri, 05 Jan 2001
Source: Bergen Record (NJ)
Copyright: 2001 Bergen Record Corp.
Contact:  150 River St., Hackensack, NJ 07601
Fax: (201) 646-4749
Feedback: http://www.bergen.com/cgi-bin/feedback
Website: http://www.bergen.com/
Author: Randy Barnett and Morgan Reynolds
Note: Randy E. Barnett is the Austin B. Fletcher professor at Boston
University School of Law and was a criminal prosecutor from 1977 to
1981. Morgan Reynolds is a professor of economics at Texas A&M
University and the director of the Criminal Justice Center for the
National Center for Policy Analysis in Dallas.

WELL-DESERVED COMMUTATION OF SENTENCES

IT IS NOT OFTEN that we find ourselves agreeing with President
Clinton, but after last week's sentence commutations of Kemba Smith
and Dorothy Gaines, two drug prisoners, we found ourselves shaking our
heads in agreement.

As a matter of policy Clinton does not comment on such commutations,
but in his recent interview in Rolling Stone magazine he characterized
America's imprisonment policies as counterproductive and observed
that, "I ran out of time before I could do ... a re-examination of our
entire policy on imprisonment."

Our message to him is that he still has time to provoke the kind of
re-examination he seeks by further exercising his pardon power and
granting executive clemency to many more of the low-level, non-violent
drug offenders who are serving lengthy terms of incarceration.

The Constitution gives the president extraordinary power to curb
excessive punishment. Clemency provides him the means to address, in a
small but significant way, his belief that mandatory sentencing
policies should be re-examined to prevent low-level offenders from
serving terms grossly out of proportion to their conduct.

By his act, he would rectify this disproportionate punishment, reunite
many parents with their children, and provoke a much-needed national
debate about how drug users should be treated by the law.

Since 1987, when mandatory drug sentencing laws went into effect,
federal judges have had to impose severe penalties for drug possession
and distribution. Because the sentences are based primarily on the
type and weight of the drug, judges cannot consider factors
traditionally taken into account when sentencing each defendant.

This year, more than 1,000 prisoners have petitioned the president for
sentence commutations. Many are young, non-violent drug offenders like
the two he freed last week, whose sentences are wildly
disproportionate to their roles in the drug trade.

Their continued incarceration serves little social
purpose.

They include Derrick Curry, at one time a promising high school
basketball player with a college sports scholarship, who was arrested
while serving as a drug mule and charged with conspiracy to distribute
crack cocaine. For his minor role, he received a sentence of 19 years
- -- a period of time equal to his age when he was arrested.

When arrested, Mr. Curry had $150 in a savings account and had to
borrow his mother's 1981 Chevy Citation and even the gas money to
drive it around. At sentencing his judge stated that "if I were
sentencing in a situation other than a guideline, I would not impose
the sentence that I am going to impose." Mr. Curry has spent seven
years in prison.

Some prisoners' mandatory sentences are compounded by procedural
obstacles to a fair sentence. Gerard Greenfield, whose petition for
commutation of sentence awaits the president's decision, has served
seven and a half years for his role on one occasion as a drug courier.
Greenfield's first attorney died of a drug overdose. His second
refused to allow Greenfield to continue plea negotiations, appeared
late to court, and put his client on the stand without prior warning.

The judge in Greenfield's trial was so disturbed that he submitted an
affidavit to the Court of Appeals delineating counsel's failures. Soon
thereafter, the attorney was disbarred. Greenfield got 16 years
because the judge was forced to impose a draconian mandatory sentence.
The judge has written to the president supporting Greenfield's
petition for commutation.

Derrick Curry, Gerard Greenfield, Kemba Smith, and Dorothy Gaines are
only a handful of the many prisoners serving sentences that, while
legally unassailable, are nothing less than miscarriages of justice.

Other examples include the entire class of prisoners who were unlucky
enough to have committed their offenses before 1994. That was the year
legislation was enacted to allow judges to sentence below the
mandatory minimum sentence if the defendant met strict congressional
criteria: first-time, non-violent drug offenders who were neither
leaders nor organizers, did not use firearms, and who provided the
government with all the information about their cases.

There are 487 of these stranded prisoners taking up valuable prison
space while serving unconscionably long sentences that similar
defendants today would not receive.

President Clinton has pledged to consider all of the commutation
petitions awaiting decision before he leaves office. He should do
justice by granting clemency to many of the low-level non-violent drug
offenders now warehoused in federal prisons across the country.

In dispensing mercy in this fashion, he will be remembered for sending
a powerful message to lawmakers about the shortcomings of America's
imprisonment policies while reassuring the public that the legal
system is capable of just and moral results. 
- ---
MAP posted-by: Richard Lake