Clemency is tougher than getting into Harvard

Coronavirus highlights the plight of federal prisoners serving long sentences for nonviolent drug charges. They deserve a path to release.

Meet Charles “Duke Got Next” Tanner. A former undefeated boxer, and a local celebrity in Gary, Indiana. A loving father to his teenaged son, Charles Tanner III. An attentive partner to his fiancée, Rita. A kind and supportive friend.

Also he is an inmate in federal prison, where he could remain until late 2030. Despite his nearly perfect conduct for the past 16 years, and the army of supporters he has amassed, he was passed over for clemency by the Obama administration.

He is far from unique in that regard. Presidents receive thousands of petitions each year for clemency — either pardons, which expunge a conviction, or commutatations which keep the legal findings intact but allow for release from prison. Many come from nonviolent drug offenders serving sentences of 20 or 30 years or more based on mandatory minimums. There is no parole in the federal system, so a commutation is the best many prisoners can hope for. But statistically speaking, it’s harder to secure a commutation than to get into Harvard.

Unwilling to look like they’re handing out too many “get out of jail free” cards, presidents are understandably parsimonious about granting clemency petitions. When they do, they are usually more likely to grant pardons to curry favor with certain constituencies or reward supporters than to offer commutations to politically unconnected felons.

Making matters more difficult, prosecutors are ordinarily given a say over whether a petitioner should receive clemency — essentially allowing the same person who may have built their career on putting you in jail to decide if you should be let out.

“Prosecutors are not in the business of second-guessing their work and agreeing they made a mistake,” Weldon Angelos, a clemency recipient from the Obama years, told me.

“Most of the time they’re very hostile to these petitions, and most of the time they recommend denial.”

Angelos, a music producer, was sentenced in the early 2000s to 55 years in prison for selling $350 worth of marijuana. He faced stiff opposition from prosecutors for clemency, but was eventually able to win a reprieve through the support of several US lawmakers, his judge, and rapper Snoop Dogg.

President Donald Trump has faced criticism for granting very few pardons or commutations, and only to people who were well-connected enough to make their pitch to his inner circle. However, the way things worked before he took office was hardly much better. In the last six administrations, every president received hundreds or thousands of commutation petitions. Most approved just a scant handful. The lone exception was President Barack Obama, who granted a whopping 1,715 commutations. But he received more than 33,000 petitions, making the rate of approval about 5.2 percent. The Harvard acceptance rate, by comparison, was 5.9 percent in 2016.

(Note for simplicity’s sake, I did not include pending petitions in these calculations.)

In some ways, the Trump administration is moving in a more positive direction for petitioners, Angelos noted. The administration recently formed a clemency advisory committee outside of the Department of Justice to review applications. Taking the process out of DOJ is move clemency advocates have long argued was necessary to prevent conflicts of interest.

It’s impossible to say how many of the applicants passed over by Obama were potentially deserving, but we do know that Tanner was among them. So was Patrick Estelle Jones, a nonviolent offender serving a 27-year sentence for cocaine dealing. Jones, 49, a former resident of FCI Oakdale in Louisiana, was the first federal inmate to die of COVID-19 in March as the virus began to ravage the prison system. His death, as well as the deaths of at least four other nonviolent drug offenders amid the pandemic, highlight the need for clemency reform.

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Realities of prison life made it difficult for me to speak directly to Tanner for this piece. I had gotten to know him because I am close with an incarcerated friend of his at the institution where he is housed, FCI Allenwood Low. Corrections officers strenuously discourage prisoners from fraternizing with other inmates’ visitors, so I could not talk to him much in person. Communication restrictions imposed as part of coronavirus containment efforts also complicated matters. During a 14-day lockdown period imposed by the Bureau of Prisons to limit the spread of the virus, inmates at FCI Allenwood Low were banned from using the prison email system or phones.

However, I was moved by Tanner’s plight, and as a former legal news reporter, I could piece together his story from court documents. I supplemented this information via discussions with his fiancee Rita, along with other people who are his supporters. I reached out to the office of Thomas Kirsch, a prosecutor who originally brought the case against Tanner, but did not receive a response. Kirsch is now the US Attorney for the Northern District of Indiana.

Given that this piece is perhaps a bit tough on federal prosecutors, I should say that I got to know several in my past life when I was working as a legal reporter in New York. In general, those I met or saw in action in the courtroom struck me as intelligent, passionate and dedicated to justice. Their power, though, is terrifying. The grand jury process, through which an indictment is obtained, is run by prosecutors. Once a case is initiated, they will fight to win with every tool at their disposal, and their tactics are rarely questioned seriously by judges.

Tanner was caught by federal agents on September 1, 2004 — at the peak of his boxing career — loading what he thought was 15 kilograms of cocaine into the trunk of a Pontiac Grand Am. The sale, which took place in a Walgreens parking lot, was a sting orchestrated with help from a career drug dealer who had been arrested a day earlier. Tanner was immediately taken into custody and hasn’t been home since.

Prosecutors leaned heavily into their case against Tanner, painting him as a life-long criminal. Tanner, who had no prior convictions, and had done nothing violent, considered pleading guilty to buying the drugs. His defense lawyer encouraged him to fight the charges instead. He lost, brutally.

At trial, he was convicted of conspiracy and possession with intent to distribute, and faced a mandatory minimum of 10 years. Although numerous friends and family members, a pastor, coworkers and professionals spoke favorably about Tanner’s character, US District Judge Rudy Lozano sentenced him to the statutory maximum: life.

“I look as to whether or not you were one of the worst offenders of the laws of the United States, and I believe that you were,” said Lozano, a Reagan appointee, during Tanner’s sentencing in 2007. He bemoaned effects on “kids” and “what a high number of people get addicted to these drugs.”

“Maybe some of these sentences will send the message out: ‘Not on my watch.’”

Other defendants charged along with Tanner ended up with far lower sentences. The dealer who set him up got 10 years. Another co-defendant got 20. Another major conspirator got seven years.

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The War on Drugs, as most people know, flourished in the 1980s and 1990s. Old Millennials like me (I’m 37) remember police officers coming to our elementary schools, filling our minds with fear and lurid curiosity about some “drug dealer,” always a shady character in the hypothetical scenario, trying to get us hooked on a litany of dangerous-sounding substances. Of course our real-world experiences did not match those caricatures. The Drug Abuse Resistance Education (DARE) program was later proven to do virtually nothing to prevent drug and alcohol use by naturally curious adolescents.

At the same time, Congress was passing tough laws imposing harsh sentences of 10 years to life for the possession and distribution of a variety of recreational drugs. We now know that those laws, likewise, did very little to curb the availability of illegal substances. They did, however, put many people — especially minorities — in jail for a very long time. Nearly half of all federal inmates are currently in prison for drug offenses, and roughly two thirds of inmates are black or Hispanic.

Thanks to other criminal justice legislation in the 1980s and 1990s, there was also limited chance for any of these prisoners to get out ahead of schedule, regardless of whether they had been rehabilitated. The 1980s saw the imposition of federal sentencing guidelines which were at first mandatory and intended to correct disparities. Then, after they seemed unduly harsh and restrictive to many judges, they became advisory — allowing disparities to persist anyway. Alongside the adoption of the guidelines, federal parole was abolished.

That’s right: Abolished. Instead of having a standardized process, the type that exists in many state corrections systems, where inmates come before a board to be regularly evaluated about whether they need to continue to be incarcerated, federal prisoners are stuck in jail for almost all of their sentences. About 15 percent is shaved off for “good time,” but this can be added back on for any number of rule infractions, from fighting, to possessing contraband to giving a gift to another inmate, to taking food out of the cafeteria.

Federal prisons currently house about 74,000 drug offenders, many of whom are serving long sentences triggered by amounts of drugs at issue and the possibility of a gun being present, among other factors. Through a practice known as “924(c) stacking” the government can greatly multiply penalties for a single crime, even for a first-time offender, by breaking the incident into a number of separate charges.

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President Bill Clinton received 2,001 requests for pardons and 5,488 commutation petitions. He granted a reasonably hefty 396 pardons but only 61 commutations. One of those lucky few commutation recipients was Amy Ralston Povah.

In the late 1980s, Povah had recently gotten out of a troubled and abusive marriage with a man she later discovered was an ecstasy manufacturer. While investigating his operation, federal agents burst into Povah’s home and demanded she cooperate in the probe by wearing a wire and infiltrating the organization. Fearful, Povah refused, and suffered severe consequences. She was charged and convicted of conspiracy, effectively put on the hook for his crimes, and sentenced to more than 24 years. The ex-husband, meanwhile, eventually cooperated with the feds and got three years of probation.

By the time she had spent nine years in prison, Povah’s gripping and outrage-inducing story was profiled in Glamour, which highlighted instances of women facing especially harsh penalties when charged as conspirators in drug cases. The article got the attention of people in high places, including President Clinton, who granted her clemency on July 7, 2000.

Povah became a writer, a speaker, and an activist, founding the CAN-DO Justice through Clemency nonprofit which advocates for sentencing commutations for non-violent drug offenders. The organization seeks to generate public awareness of incarcerated individuals who are serving sentences that are “outrageously disproportional” relative to crimes of violence, such as rape and murder. One of the people she has been pushing for is Tanner.

“Charles is such a beautiful soul,” Povah told me over the phone. “He doesn’t shy away from guilt. His son is a victim here. His fiancee wants to get her life going. And they’re suffering.”

“This is not anybody our society needs to have the slightest concern over,” she added, meaning he should not need to be incarcerated. “He messed up and he wants to move on.”

Povah, who also advocated for Tanner and other prisoners during the Obama administration, described the clemency process as an uncertain gauntlet of crafting petitions, elbow-rubbing with influential people, drafting short list after short list, and usually suffering crushing disappointments. Meanwhile, there were so many deserving-sounding petitioners, including women like her who had been punished for their partners’ crimes, and hundreds upon hundreds of nonviolent drug offenders with severe sentences like Tanner.

“We have been hoaxed into believing that people in prison serving time for drug cases were a bogeyman. Someone standing out in the school yard with a heroin needle. It used to be called recreational drugs, a youthful indiscretion,” Povah said.

“How did it morph into every person associated with drugs could get life as a first-time offender? That’s a red flag.”

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Federal prisoners sentenced to life are generally placed in maximum-security penitentiaries — the logic being that they pose a substantial escape risk. Charles Tanner was initially shipped to the US penitentiary in Terre Haute, Indiana. The foreboding compound houses some of the toughest and most dangerous inmates in the federal system, as well as the system’s Death Row and a Communications Management Unit, where prisoners are almost completely cut off from friends and family.

Like all federal penitentiaries, Terre Haute is a dangerous place. Violence is common. Gang activity is rampant. A murder happened every year in Tanner’s unit, and on one occasion a man he knew was stabbed 72 times. Being there he said he felt like “an animal that was taken from a pet shop and put into the wild.”

Despite this bleak situation, Tanner held himself together mentally. He managed to avoid getting in trouble, maintaining a near-perfect conduct record and becoming a commissary clerk. He completed hundreds of hours of programming, parenting and educational classes, as well as the Bureau’s well-regarded Life Connections Program — an intensive, faith-based rehabilitation curriculim.

In 2016, based on a revision to the federal sentencing guidelines governing amounts of drugs, Judge Lozano reduced the penalty imposed on Tanner from life to 30 years. Tanner took the change as a sign the winds were shifting in his favor.

“For the first time in 12 years, I woke up with a release date, and knew I was on the right track,” Tanner said in a profile featured on the CAN-DO website.

Things were indeed on a positive track. He met and fell in love with Rita, a woman who was from his home state of Indiana. With his good conduct record and a reduced sentence, he was able to win a transfer to a medium security facility, and then low-security facility in Allenwood, Pennsylvania, where living conditions were not fraught with danger. (At least until the coronavirus pandemic.)

He continued to push for other options to further reduce his sentence, including clemency. Then came a cruel twist. Obama declined to grant Tanner’s petition, but he commuted the sentence of one of Tanner’s co-defendants. Lance Foster has been accused of taking part in a conspiracy with Tanner, but he was found guilty of intending to distribute “crack” rather than cocaine. Foster won clemency in February 2017 after serving approximately 9 years of a 20-year sentence.

While it’s unclear why Obama chose Foster over Tanner for clemency, the difference in the drugs at issue could play a role. Obama signed the Fair Sentencing Act of 2010, which did away with a five-year mandatory minimum for possession of five grams of crack cocaine. The move was heralded as much-needed reform to help address sentencing disparities for people of color who had faced steeper penalties sometimes for possession or sale of crack than other drugs.

Mercy for Foster, convicted of dealing crack, may have fallen more in line with Obama’s policy goals than it did for Tanner, who was caught buying regular cocaine instead.

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Prison visitor rooms are strange places. Always loud and crowded and smelling like microwave chicken wings, they bring to mind a school cafeteria. Packed closely together, face to face, in plastic chairs, visitors and inmates forge an instant intimacy. Yet a natural inclination toward friendly interactions is curtailed by constant surveillance. Corrections officers rove around, much like school recess ladies, and are quick to issue severe admonishment or punishment to any inmate sitting too close to his visitor or talking to someone else’s visitor.

Through my past work as a legal reporter, and then while working on a book project, I became close with another incarcerated man at Allenwood Low who was one of Tanner’s friends. I met Tanner while visiting my companion. Although he was officially forbidden from conversing with me in the visitor room, Tanner would catch my eye and smile, and say a few kind words. It was all that was needed for me to feel an instant connection. His warm heart and decency were apparent to me right away.

In no time at all, I became friendly with Rita — an energetic, cheerful woman who loved going out to eat at Ruby Tuesday’s and had a weakness for spoiling her two “grand-babies.” Having been close with Tanner for more than five years, her dedication to him was deeply rooted. In order to visit, she flew from Indiana, drove rental cars out to the prison, and stayed in hotels overnight.

“He is my best friend. He is amazing,” she told me one night after a visit, over glasses of wine at a bar attached to a nearby Holiday Inn. When the topic changed to his clemency bid, however, her soft face turned hard and fierce.

“He deserves to get out,” she said. Keeping him in “just doesn’t make sense.”

COVID-19 and the fear pervading prisons about the plight of inmates has added an element of urgency and anxiety to the equation. A day before the Bureau of Prisons shut down visitation nationwide in March because of coronavirus concerns, Rita had flown out to Pennsylvania to see Tanner. She had just gotten settled in at her hotel and was preparing to get a good night sleep and see him first thing in the morning when she heard the news. She flew back the next day, sad but cognizant the agency had probably made the right call to try to curb the disease. As has become clear in federal prisons such as FCI Oakdale in Louisiana and FCI Elkton in Ohio, the deadly infection can spread like wildfire in such facilities. As of writing this it’s unclear when visitation will be permitted again.

Remarkably neither Tanner nor Rita display much bitterness about his circumstances, although they yearn to move on with their life together. Tanner hopes to return to boxing, to become a clemency advocate and to help mentor youth. He also desperately hopes to be home to help usher his son into adulthood.

In a video posted to the CAN-DO website, Charles Tanner III asks President Trump “to please release my dad from prison.”

“My dad has been in my life since I was young. We have a great relationship. He’s been helping me every step of the way,” Charles III said. “He does a lot for me that some parents don’t even do, and he is incarcerated.”

In his CAN-DO profile, Tanner said his plans “are to live in Indiana to be close to my son and where my significant other resides.”

“My goal is to pick up where my life was cut short and make it a favorable ending with a substantial positive contribution to society, utilizing all of my abilities and skills I have worked hard to acquire.”

“God had a plan for me,” he added. “I had to go through this ordeal to be the man I am today.”