published Sunday, May 4th, 2014

Clemency offers relief for prisons, prisoners: How Obama's effort to curtail unfair sentences would play

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    Mike Douglas sits by as Liz Henley talks about her son, David Henley, who was sentenced to life in prison for his first drug conviction in 2001. David Henley might qualify for a new clemency initiative that the justice department and President Barack Obama announced last week.
    Photo by Erin O. Smith.
    enlarge photo

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    East Ridge resident David Henley was sentenced to life without parole on his first criminal conviction, a drug charge.
    Photo by Contributed Photo /Chattanooga Times Free Press.

President Obama, meet David E. Henley.

As a man sentenced to life in prison on his first offense, Henley could be the kind of inmate Obama had in mind when he offered a clemency program to drug offenders who had received lengthy federal sentences that were potentially out of proportion with their crimes.

Henley, of East Ridge, was arrested in 2001 and convicted in 2002 of conspiracy to distribute methamphetamine.

He's no saint. He admits he dealt drugs, carried a weapon on at least one occasion and admitted during his trial he lied to police. Yet he maintained that the drug amounts being tied to him by a co-defendant -- one pound of meth per month for about a year, a total of 12 pounds -- were exaggerated.

"I sold drugs, I understand what I did to my community," Henley said in a phone interview. But, he said, "there's murderers, child molesters, rapists getting less time than I got."

A co-defendant who supplied him and others with the drugs pleaded guilty and was released in 2006. Two others charged in the case also pleaded guilty and were released in 2004 and 2008, according to prison records.

Henley went to trial thinking 32 years was the worst he could get. Now 13 years into his life sentence, hope has given way to hard truth: Any chance at leniency was gone.

An attorney told the family as much following Henley's most recent appeal in 2009.

"Forget about David," they remember him saying. "There's nothing you can do for David."

Then came an announcement from the U.S. Justice Department on April 23. Federal inmates could petition for clemency if they meet specific criteria.

This was the latest in a number of initiatives since 2010 that the Obama administration has pushed to reduce hefty drug-related federal sentences: first, by reducing disproportionate crack-cocaine sentences; then commuting a handful of nonviolent drug convictions last year; and issuing directives that prosecutors not seek mandatory minimum sentences in new, nonviolent drug cases.

All such measures aim to reduce lengthy sentences that disproportionately affect minority communities and overburden a federal prison system bursting at the seams -- and where more than half of the population is serving time for drug-related crimes.

U.S. Attorney Bill Killian said the initiative will extend "fairness to some of those currently serving under outdated, unfair sentences."

To be eligible, offenders must have been convicted of a nonviolent crime for which they would have received a lower sentence if convicted today. The program is not exclusive to drug offenses but is targeted primarily at drug crimes, the Justice Department said. Inmates must have served at least 10 years of their sentence and remained trouble-free in prison, and they can't have a significant criminal history or ties to gangs or organized crime.

The department estimates 23,000 federal inmates have served 10 years or more. Thousands of those offenders will likely apply but officials estimate the qualified candidates will be in the hundreds.

Henley hopes to be one of those candidates.

But the window is small and the obstacles are large.

The clemency program is not a change in federal law. Congress did not vote on this. It is a presidential power and the president who takes office in January 2017 could immediately halt the initiative, said Jesselyn McCurdy, senior legislative counsel to the ACLU.

But that's not all.

McCurdy said it's likely, based on recent work re-evaluating crack-cocaine convictions for reducing sentences, that the trial judge and prosecutor in Henley's case will be consulted. That's the same prosecutor who at trial called Henley a liar and said he "beat the tar" out of people who got in his way. And that's the same judge who gave him the maximum possible sentence.

•••

A drug policy expert who helped write the federal sentencing laws in the late 1980s that led to lengthy incarcerations said the laws were never intended for local, midlevel drug dealers such as Henley.

Eric Sterling, who since 1989 has led the Criminal Justice Policy Foundation, a nonprofit organization that raises awareness of what it calls failed global drug policy, said the intent was to pin long prison terms on the kingpin druglords, especially the international traffickers.

Sterling doesn't advocate eliminating prison time for drug offenders. He says the original intent -- severe sentences for major, violent drug traffickers -- should be followed.

And he favors the new clemency initiative.

"I'm extremely excited the administration wants to start using its constitutional power to correct the unjustly long sentences which have been imposed for many years which are causing a great deal of unnecessary suffering," Sterling said.

House Judiciary Committee Chairman Bob Goodlatte, R-Va., criticized the clemency announcement, saying it will endanger communities.

In a statement, Goodlatte said Obama "has again demonstrated his blatant disregard for our nation's laws and our system of checks and balances embedded in the U.S. Constitution."

McCurdy said the clemency program is a "mammoth undertaking" that will involve her organization, federal public defenders, pro bono attorneys, federal prison personnel, the National Association of Criminal Defense Lawyers and the nonprofit Families Against Mandatory Minimums.

Julie Stewart founded FAMM in 1991 after her brother was sentenced to a mandatory term for a drug conviction. Other than the Drug Safety Valve Act of 1994, which eliminated mandatory minimum sentences for certain drug offenses, she said there had been little success in reducing drug sentencing until 2010 when Congress overwhelmingly approved the Fair Sentencing Act. That law reduced the disparity between crack and powder cocaine sentences.

"My own suspicion is that the [Obama] administration wants to significantly impact the number of people who are serving sentences so disproportionately long compared to their crime," Stewart said.

•••

Henley said in a phone interview from the Atlanta federal prison last week that he went to trial because he thought the most he would face if convicted was 32 years and prosecutors were offering only a 25-year sentence.

"I just figured I really had nothing to lose," he said.

What pushed his sentence to life was testimony that in at least one instance Henley had a gun on him while dealing drugs. The jury acquitted him of that charge, but under federal guidelines judges can consider such evidence to enhance sentencing.

Henley also was carrying a pocketknife when he was arrested with a small amount of methamphetamine, which also counted toward extending his sentence to life, according to court transcripts.

Henley said that until a couple of weeks before his sentencing hearing he didn't know he could face life.

Post-conviction appeals on that issue have been dismissed. A federal magistrate judge said he didn't find Henley credible and as recently as 2009 thought that Henley misrepresented the facts in an appeal hearing.

The clemency process in some ways bypasses the standard appeals that are so often unsuccessful for federal drug offenders.

But Henley's case will face familiar hurdles if, as McCurdy suggests, the trial judge and prosecutors in Henley's case are consulted.

Assistant U.S. Attorney Perry Piper prosecuted Henley and declined to comment, citing office policy.

U.S. District Judge R. Allan Edgar, contacted Thursday in Michigan where he now sits as a semi-retired judge, said if he's asked to review the case for clemency and provide an opinion he would keep an open mind.

Meanwhile, Henley's family waits. His mother, Liz Henley, cares for his daughter -- her granddaughter -- Ashley Henley. The child was just 2 when her mother died. She was 4 when her father went to prison.

"I haven't had a dad my whole life growing up. I haven't had a mom my whole life growing up," said Ashley, now a teenager. "It would just really help if my dad was here ..."

Contact staff writer Todd South at tsouth@timesfreepress.com or 423-757-6347. Follow him on Twitter @tsouthCTFP.

about Todd South...

Todd South covers courts, poverty, technology, military and veterans for the Times Free Press. He has worked at the paper since 2008 and previously covered crime and safety in Southeast Tennessee and North Georgia. Todd’s hometown is Dodge City, Kan. He served five years in the U.S. Marine Corps and deployed to Iraq before returning to school for his journalism degree from the University of Georgia. Todd previously worked at the Anniston (Ala.) Star. Contact ...

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