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Denying Clemency for Draconian Sentencing Based on Bad Information

The Case of Clarence Aaron

by JOHN DEAN

On May 14, 2012, The Washington Posts headline reported “Inmate still in prison after facts kept from Bush team.”  The story, which was based on material developed by the public-interest investigative journalism of ProPublica, is devastating.  The online edition’s headline was more specific:  “Clarence Aaron was denied commutation, but Bush team wasn’t told all the facts.”

Because presidential clemency is completely discretionary, it cannot exactly be called an injustice when a president fails to act to free an inmate or save his life.  But here, we have a situation where bad information was given to the White House, at a time when that White House was interested in possibly commuting an individual’s over-the-top sentence.  This is a case that calls out, at a minimum, for fairness and honesty, neither of which we have seen a glimmer of, as of yet, in this case.

To be more specific, President George W. Bush’s staff was given bad information by the Pardon Attorney, the official in the Department of Justice who advises the Attorney General and the White House about clemency.  In the wake of the reporting about this situation, the silence by both the Attorney General and the Pardon Attorney is striking, and deeply troubling.

Here are the facts, in brief, based on reporting by The Washington Post and ProPublica:

Three Life Sentences for One Defendant, With No Hard Evidence Supporting Them

Clarence Aaron, at the time of his arrest, was a 23-year-old college senior and first-time offender.  Yet Aaron was convicted and given an extraordinary three life sentences without a chance for parole for his role in abetting a non-violent drug deal, although Aaron himself was neither a seller, nor a buyer, nor a supplier.  All of the other people who were involved in the crime—people who had made careers in the drug business—pled guilty, pointed their fingers at Aaron, and received comparatively light sentences, all of which have now been served.  Meanwhile, Aaron, the person with the least involvement in the transaction, is serving his three life sentences, as a model prisoner.

The true facts from this 1993 drug transaction are difficult to ascertain.  The U.S. Attorney’s Office that prosecuted Aaron relied on co-conspirators who turned on Aaron to gain their freedom.  These co-conspirators, however, proved to have testified falsely.  Yet when discussing this case, it seems that the office at issue is incapable of disavowing its own witnesses, despite the fact that those witnesses today admit that they lied about Aaron in order to get lesser sentences for themselves.

Aaron and his case first came to public attention in 1999, when PBS’s “Frontline” did a story entitled “Snitch.”  Its report addressed the manipulation of defendants who face harsh mandatory minimum sentences when caught violating federal drug laws.  Aaron claims that it all began when he foolishly and unwittingly became involved in two drug transactions, through a cousin.  But when everyone was caught, the others knew how to play the game, whereas Aaron did not.  Thus, the others gave the government the testimony it wanted, and made deals at the expense of Aaron, who refused to testify for the government.  The government claims, apparently also based on the testimony of the cooperating witnesses—that is, Aaron’s partners in crime—that Aaron perjured himself as well.  (Aaron’s situation is explained in these powerful video summaries, in which his attorneys report how he was given three life sentences despite the complete lack of any hard evidence of the amount of cocaine involved—a grave omission, given the fact that it was the amount of cocaine at issue that triggered Aaron’s life sentences.  The only other evidence against him was the testimony of discredited and untruthful witnesses.)

Other aspects of the case against Clarence Aaron would be striking even if that case had been based on unimpeachable evidence (which it surely was not).  Granted, crack cocaine can be a horrible blight; it is an evil drug.  Still, to send any young person to prison for a lifetime based on a non-violent drug transaction is inhumane and malicious, less than civilized, and absurdly heavy-handed.  To do this based on conspicuously dubious testimony, as occurred here, only makes the punishment all the more troubling.  Meanwhile, such Draconian drug sentencing has done no more to lessen drug trafficking than capital punishment has done to end murder.  Indeed, many experts believe that such absurd sentences have created more problems than they have resolved.

Aaron’s Pursuit of Clemency

Clarence Aaron has been in prison almost two decades.  Because of the “Frontline” story, others noticed his case, and in 2001, he was encouraged to file a petition for presidential clemency.  The man who prosecuted him, U.S. Attorney David York, the top federal prosecutor for the Southern District of Alabama, opposed reducing his sentence.  And the U.S. Pardon Attorney, Roger Adams, recommended that the Bush II White House turn down the request.

But Aaron’s clemency request was not turned down.  Rather, it languished at the Bush White House, along with hundreds of other such applications, until White House Counsel Fred Fielding arrived at the end of Bush’s presidency and began looking, in 2008, for clemency cases worthy of presidential consideration.  The White House then requested updated information on the Aaron application.

Fortunately, Deborah J. Rhodes, a new U.S. Attorney for the Southern District of Alabama, did not follow her predecessor’s lead. Rather, she supported Aaron’s petition.  In a letter to a new U.S. Pardon Attorney, Ronald Rodgers, Rhodes wrote in November 2008, “I have reviewed various documents submitted by Clarence Aaron in support of his petition for commutation of sentence and agree that Aaron should receive a commutation of his life sentence.”  Ms. Rhodes, who does not question the government’s case against Aaron, suggested that his triple life sentence be commuted to the equivalent of a 25-year sentence, which with credit for good behavior, ProPublica reports, would lead to his being released in 2014.

Most strikingly, U.S. District Court Judge Charles Butler Jr., who had sentenced Aaron, had changed his mind.  While Judge Butler had earlier taken no position regarding clemency for Aaron, he responded to a motion by Aaron’s attorney with a very different perspective.  Judge Butler wrote, “Looking through the prism of hindsight, and considering the many factors argued by the defendant that were not present at the time of his initial sentencing, one can argue that a less harsh sentence might have been more equitable.”  Then, in a subsequent telephone conversation with a staff lawyer in the Office of the Pardon Attorney, on December 2, 2008, Judge Butler flatly declared that Aaron “should be granted relief” by the president immediately.  Contemporaneous notes of the conversation with Judge Butler were sent by email to Pardon Attorney Ronald Rogers.

What did the Pardon Attorney do with this rather important new information?  Nothing.  Rather, he resubmitted his 2004 recommendation for a denial of clemency for Clarence Aaron, without even mentioning the changed position of the U.S. Attorney’s Office that prosecuted Aaron, the recommendation of the sentencing judge, or additional new information regarding Aaron’s exemplary record in prison and his acknowledgement of his misconduct.  In fact, the record shows that the Pardon Attorney provided the White House with false and misleading information in an email, claiming (among other misrepresentations) that the U.S. Attorney thought clemency was “about 10 years premature” for Aaron, when in fact Ms. Rhodes thought very much otherwise, taking a position that, as noted above, would have led to a 2014 release.

How can these actions by Pardon Attorney Ronald Rodgers be explained?  It appears that they cannot, for he has refused to discuss his actions publicly.

Reactions to Rodgers’ Actions

In digging out this information, ProPublica spoke with the former Associate White House Counsel who handled the Aaron case in 2008, Kenneth Lee.  When Lee was given the information developed by ProPublica that the Office of Pardon Attorney had received, and was able to contrast that information with what the White House had been told at the time, Lee was “aghast.”  Indeed, Lee noted that the Pardon Attorney “had presented the views of [U.S. Attorney] Rhodes and [Judge] Butler ‘in the least favorable light to the applicant.’”

Lee further noted—due to the racial bias in the work of the Office of Pardon Attorney that ProPublica has uncovered, such that “whites were nearly four times as likely to be pardoned than minorities”—relying on the Pardon Attorney in the case of Aaron, who is African-American, had been a mistake. “Had we known before about a potential subconscious bias in the [Office of the Pardon Attorney],” Lee said, “we would have liked to look at the actual letters in the Aaron case rather than rely on the Pardon Attorney’s summary.”

While Lee could not speak to what President Bush would have done had a fair assessment of Aaron’s case for a pardon been sent to him, I can tell you, from my personal experience of sending a president such recommendations, that the president accepts without question the recommendation of his White House Counsel.  Associate White House Counsel Kenneth Lee says that had he known the true facts, he would have recommended Aaron’s commutation to President Bush.

Debra Saunders at the San Francisco Chronicle, whose only interest in the case is journalistic, has been recommending that Aaron’s sentence be commuted for over a decade.  She explains what should happen in this case, given these latest revelations: “The president has the power to pardon when the criminal justice system overreaches. The court put away a first-time nonviolent offender for life with no chance of parole, but because the feds do not want to admit they made a mistake, [Pardon Attorney] Rodgers and his ilk have been willing to let a young man rot in prison for the rest of his life. The only question is: Will [President Obama] let him get away with it?”

We’ll see.  The pardon issue is not likely to be addressed by President Obama before the November 2012 election. (Mitt Romney was one of those rare governors who never granted any pardons, not one.)  But if this issue not cleaned up after the election, it will make a travesty into a tragedy for Aaron.  His case has supporters, including both conservatives and liberals, all over the world.  Hopefully, the Pardon Attorney will one day explain why he refused to provide the full information regarding Aaron’s case in 2008, and why he has insisted on acting without mercy in the case of Clarence Aaron.

John Dean served as Counsel to the President of the United States from July 1970 to April 1973.

This column originally appeared in Justia‘s Verdict.