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On July 7, President Clinton commuted the sentences of five federal prisoners, four of whom were women. “The president felt they had served a disproportionate amount of time,” White House spokesman Jake Siewert told the Associated Press on July 9. “They received much more severe sentences than their husbands and boyfriends.” This is the closest there has been to an official explanation for the gender-heavy clemency. But a closer look at the president’s commutation poster children shows the spin about their release to be an oversimplification at best. Based on information obtained from clemency files, prosecutors, and court opinions, it appears that, of the four women just freed, only one was actually sentenced to a longer term than her significant other — and prosecutors paint that woman as far from a passive victim. Another of the four women may fairly be described as a drug kingpin, and only one indisputably is a low-level offender. It’s true that each was sentenced under the notoriously harsh mandatory minimum drug sentencing laws and that each received a sentence longer than a major co-conspirator. Their real stories are not necessarily sinister, just more complicated. “Probably all five of these cases were fine by historical standards,” says Margaret C. Love, who was the U.S. pardon attorney from 1990 to 1997. “Based on what I know, they appear well within traditional categories or criteria for granting clemency: undue severity or disparity of sentence, substantial assistance, old age, or critical illness. What makes people suspicious is the fact that the power is so rarely exercised. “If I were asking Clinton to do something, I’d say, ‘Look, there are a large number currently in prison whose cases are similar to the ones you’ve just commuted. I think you need to find a way to identify these people on a more systematic basis.’ “ For death row inmates, that may be in the works. President Clinton on Aug. 2 announced a new application system for clemency in capital cases. A LEGACY OF RANDOMNESS An examination of the president’s 21 commutations reveals just how random, political, and at times bizarre, they have been. Rooted in Article II, Section 2 of the Constitution, the clemency power encompasses both sentence commutations and outright pardons. Pardons, which are far more common, are usually extended after a sentence has been completed, for symbolic value or to restore an ex-offender’s full civil rights. The power has fallen on hard times — a victim, perhaps, of the war on crime. In a study just published in the Fordham Urban Law Journal, Love shows that the rate of action taken on pardon and commutation petitions, after fluctuating between 26 percent and 41 percent for four decades, plummeted to 13 percent under President Reagan, then to four percent in the 11 years since Reagan left office. In 1977, the U.S. pardon attorney ceased reporting directly to the U.S. attorney general and began reporting to a more junior official. (Under the early Reagan administration, it was Associate Attorney General Rudy Giuliani, now the pro-police mayor of New York.) Love believes this move put the decision under the undue influence of prosecutors. The 1988 election, when Michael Dukakis was politically pilloried for the recidivism of furloughed murderer Willie Horton, was another inflection point. Suddenly, there was a huge downside risk to sentence commutation. “Politicians don’t want to get ‘Willie Hortonized,’ ” says David Zlotnick, an ex-federal prosecutor who is a professor of criminal law at Roger Williams University School of Law. Since then, he says, the few commutations granted have tended to be safe ones, often coming at the tag end of a prisoner’s sentence. Clemency files are subject to the Privacy Act, and the government has given little clue as to the process behind the latest commutations. The current pardon attorney, Roger Adams, says, “We send a complete file to the White House. It’s up to the White House [to pick] the ones they want to act on.” Adds Love, “I can only assume somebody in the White House must have taken an interest in doing some clemency cases. I know what the standards were in the deputy attorney general’s office, and they were ‘Just say no.’ I was once told I need to use a ‘Joan of Arc’ standard — but I’m not sure I could even have got Joan through.” THE BEGINNINGS The first martyr who inspired President Clinton to exercise his venerable commutation power was a crusty hog farmer from Nebraska. Earnest C. Krikava was sentenced to five months for perjury in bankruptcy; he failed to disclose that he had sold $35,000 worth of hogs, purportedly in an attempt to save his farm and feed the other pigs. He became an ongoing cause celebre on the television tabloid show “A Current Affair,” and drew support from entertainers Willie Nelson and Tammie Wynette, as well as Senators Bob Dole and Bob Kerrey. Letters flooded into the Pardon Attorney, and his sentence was commuted with a week to go, on November 23, 1994. Krikava was also excused from five months of home confinement. On August 21, 1995, the president commuted the sentence of Johnny Palacios, who had been sentenced in October 1991, in the Middle District of Florida, to 71 months in prison, for conspiracy to possess with intent to distribute marijuana and possession with intent to distribute marijuana. Sources say prosecutors wished to reward Palacios for cooperation but were unable to do so at sentencing because they had missed the one-year deadline for filing a motion under federal criminal procedure Rule 35(b), which permits reduction of a sentence. According to press accounts, Palacios was rearrested in 1997 for consorting with other drug felons, in violation of the terms of his release. On April 17, 1995, in a case that experts cite as a model, the president commuted the sentence of Jackie Trautman Esselburn, who had been sentenced in October 1992 in the Northern District of Ohio for conspiracy to distribute cocaine to 33 months in prison. The commutation saved her 40 days in prison and five months of home detention. “If ever there was a reason to have the availability of commutation, it was this case,” says Trautman’s prosecutor, Jim Wooley, who now heads the white-collar crime practice at Cleveland’s Baker and Hostetler. Trautman, he says, risked her life to testify against Larry Dean Dusenberry, who led Ohio’s largest prison drug ring, as well as the head of the Cleveland mafia, who laundered Dusenberry’s money, and 15 others. Trautman had helped Dusenberry coordinate with suppliers outside prison, says Wooley, but she “voluntarily withdrew, got her husband clean, and put her life back together for two years before we arrived to arrest her in 1992. She went to school, got married, got pregnant. It was an extraordinary self-rehabilitation, and she did more for herself than any prison system could have done for anyone.” The only thing that cannot be said is that Trautman fits the White House generalization about women prisoners and their men. Her husband was sentenced to 41 months, and Dusenberry 40 years. Many people were reminded that the president has a commutation power in August 1999, when President Clinton commuted the sentences of 12 Puerto Rican separatists associated with the rebel FALN group, in return for their renunciation of violence. These individuals had been sentenced, most in the 1980s, for seditious conspiracy and firearms violations for periods ranging from 35 to 90 years. Critics said that the president sought to manipulate public opinion in New York, where many of Puerto Rican origin live, to favor his wife’s young Senate campaign there. President Clinton responded in a public letter to Rep. Henry Waxman, D-Calif., arguing that the sentences were “out of proportion to their crimes” and noting that none of the crimes had resulted in injury or death. On March 15, 2000 — in a case that went virtually unnoticed — President Clinton also commuted the sentence of George Franklin Dillman, an S&L bank official. Dillman, who had chaired Caprock Savings & Loan Association of Lubbock and Dallas, Tex., had been sentenced in 1992 in the Northern District of Texas to 108 months for conspiracy, bank fraud, misapplication of financial institution funds, unlawful participation in financial transactions by an officer of a financial institution, and bank bribery. Even prosecutors in his case appear not to have been informed of the commutation. “That pisses me off,” said Jennifer Bolen, now in the Eastern District of Tennessee, when she heard from an NLJ reporter. “That institution was literally raped.” Mr. Dillman and other bank officials made fraudulent real estate loans, laundered the money through several accounts to disguise it, pocketed some of the money, and reinjected some of it as capital to improve the bank’s apparent financial condition. “He did not receive a disproportionate sentence,” says Bolen, though Dillman is a senior citizen, which suggests the possibility of ill health. “Had I been consulted,” she says, “I would have asked if there are significant factors, like health reasons, or whether it’s just being done because he knows somebody.” Dillman’s clemency attorney, William King of Kemah, Tex., did not return phone calls. The outlier among the July Five was Alain Orozco — a man. Orozco’s clemency was initiated by prosecutors for reasons of criminal procedure. Like the Palacio case, the Orozco case resulted from a “botched Rule 35(b)” request. Orozco was sentenced in November 1990 to 151 months for conspiracy to transport cocaine hydrochloride from Miami to Atlanta and to manufacture crack. According to the petition for commutation filed by the U.S. Attorney for the Northern District of Georgia, the prosecutors wished to reward Orozco for cooperating against a bigger fish, his Miami cocaine source Armando Rodriguez. However, Orozco gave a false name when he was arrested, because he was on bond for another drug offense. Prosecutors decided that this rendered Orozco too weak a witness for them to prosecute the bigger fish on the strength of his testimony alone. His assistance was of no use until 1996, when further evidence became available, and the bigger fish was tried. At that point, however, it was too late for the government to file a Rule 35(b) motion to reduce Orozco’s sentence. His attorney, Howard J. Manchel of Manchel Johnson & Wiggins, believes that this situation recurs around the country. Shawndra Mills was the least culpable of the four women freed on July 7. She was sentenced in January 1993 in the Eastern District of Kentucky to 120 months for conspiracy to possess cocaine with intent to distribute. According to a letter from the U.S. attorney in Lexington, Ky., written in response to an inquiry from the pardon attorney, Mills was a courier who was found with five kilos of coke in her airport bags. She immediately cooperated and identified a more culpable drug offender on the flight, Johnny L. Jackson. However, he cooperated, as well, and was sentenced to only 30 months. Mills received a longer sentence because his cooperation had rendered hers useless. The U.S. attorney wrote that a later-enacted “safety valve” clause of the U.S. Sentencing Guidelines, designed to shield cooperative low-level drug offenders from the effect of mandatory minimums, would have applied. But she got no such benefit. “This is a classic case for use of the pardon power,” says Prof. Zlotnick. “It addresses the case of a minimal participant getting paid very little to do the riskiest part of the job, who tried to cooperate but was punished for not knowing enough — and the judge had no discretion.” Louise Cain House, 63, is the “kingpin” — or queenpin? — in the batch. As reported by the San Francisco Chronicle, she was sentenced in January 1990 to 15 years in prison under the “kingpin statute,” 21 U.S.C. 848, for running a continuing criminal enterprise. In sentencing her to 15 years, the district court granted the government’s motion for a five-year downward departure for substantial assistance. Prosecutors called House an “organizer or supervisor” at her plea hearing, according to the appellate opinion in her case. She imported 100 grams of heroin a month from Chicago to St. Louis, but she helped take down her supplier, Elizabeth “Honey” Logan, and Logan, after a successful appeal, received a sentence eight months shorter. The prosecutor, Patricia McGarry, declined to give further information, except to say that poor health was also a factor. “The Republicans can say ‘heroin drug mama,’ and Democrats can say ‘ailing old woman,’” remarks Zlotnick. He adds that, in general, age and infirmity are valid grounds for clemency. “Our prisons are turning into geriatric wards because of these lengthy sentences. Studies say the elderly are not a risk to society.” That leaves the better-known cases of Serena Nunn and Amy Pofahl. Both, principally Pofahl, were profiled in Glamour magazine in June 1999, under the heading “A Crime Against Women.” Prosecutors in both cases say that they are uncomfortable with the feminist slant of the media coverage and with what they see as the sanitized portrait of the offenders. By all accounts, Nunn’s rehabilitation is inspiring. The prosecutor in her case, Jon Hopeman, now a partner at the Minneapolis firm Felhaber Larson Fenlon & Vogt, wrote in a letter that he had no objection to her clemency. He voices respect for Judge David Doty and Nunn’s pro bono attorney, Sam Sheldon. He continues to maintain, however, that she played an important conspiracy role. He also disputes the view, taken by both Glamour and the Minneapolis Star-Tribune in a profile of Nunn, that women are special victims of the drug laws. “Many young men find themselves in the same dilemma,” he says. Moreover, he argues, sloppy journalism promotes the random exercise of the clemency power. “The Clinton administration does a lot of poster boy and poster girl kind of work, and this is a pretty good example of it,” he says. “Commutation is a political process, not a legal process.” Pofahl is the one woman who neatly fits the White House’s rationale for commutation. Ms. Pofahl, who prefers to go by Ralston, was sentenced in 1992 to 292 months in prison for money laundering and conspiring to distribute and import the drug “ecstasy.” She has already served about nine years, but her kingpin husband, Charles “Sandy” Pofahl, a graduate of Stanford Law School, served less than five years in Germany, and no time in this country, after extensive cooperation with prosecutors. Mr. Pofahl imported chemicals from Germany to manufacture ecstasy in Guatemala, and he then imported the drug to the United States, an operation he started when the drug was still legal. Beyond that, the facts are hotly disputed, although you wouldn’t know it from the Glamour article. According to the account given by the prosecutors and the appellate court opinion, testimony showed that Ms. Pofahl traveled to Guatemala, was present in a room with drugs on several occasions, helped to count and bottle tablets and continued to deal ecstasy after her husband’s arrest, handing out pills at the Los Angeles clubs where she was a promoter. According to testimony, she told one co-conspirator’s wife “that there was enough product in Guatemala to take care of everyone.” Ms. Pofahl continues to maintain that although she knew her husband had access to ecstasy, she was shielded from knowledge of the manufacturing operation. Richard Durbin, the criminal chief at the U.S. attorney’s office in San Antonio, Tex., says that his office did not support or recommend the commutation. He disagreed vigorously with the facts put forward by Ms. Pofahl in her application. He says that his office did, however, lay out a sentencing argument favorable to Ms. Pofahl in its submission to the pardon attorney. He declined to be more specific. Charlie Strauss, one of the prosecutors in the case, takes issue with the feminist argument. “Defendants, regardless of their sex, may receive longer time than others, regardless of their sex, where their involvement was more minor, in this case because of cooperation,” he says. “There’s nothing sinister about it. I don’t think anybody’s being discriminated against.” Ms. Pofahl, who is living with her parents in her childhood town of Charleston, Ark., says that 17 politicians supported her, including former senators David Pryor and Dale Bumpurs. The latter, she says, hails from her hometown and attached a copy of the Glamour article with his letter on her behalf. Her attorney fees for the clemency application, Ms. Pofahl says, were paid by a friend whom she knows through a group that researches the beneficial aspects of ecstasy. Her attorney, C. David Parker, of Rockwall, Tex., says that the disparity between spouses’ sentences was the primary reason for the clemency. Zlotnick says, “Maybe the president’s pollsters told him the Glamour magazine vote is the suburban soccer vote this year. It just seems very calculating.” But judging from all the July 7 cases, he says, it doesn’t look as though disparity between the sentences of women and their lovers was the chief criterion for clemency. If it were, he says, and “if the president took the responsibility seriously and were not afraid of the political fallout, that would be a valuable, sound basis.” Monica Pratt of Families Against Mandatory Minimums confesses ambivalence about some of the cases the president chose. “No one called us from the White House for cases that would fit the description of disproportionate sentences for low-level offenders. But it’s not about the level of culpability in these particular cases. It’s about changing the laws so judges can fit the punishment to the crimes.” Nunn, who has internalized her guilt and aspires toward law school despite the bar admission problems of a felony record, takes a similar position: “There are hundreds of women incarcerated under the mandatory minimums. There’s the unfairness. There’s also criminal conduct. I just think a judge is a human being, and he was given that position to use his judgment.” Ms. Pofahl reacts more militantly, and with equal eloquence, to probing questions about her case. “We can tear this apart and turn this into something controversial, or we can applaud a rare compassionate gesture,” she says. “I’ve been reading in the press how stingy Clinton is. So when do you applaud something? Clinton is damned if you do, damned if you don’t.” Ex-Pardon Attorney Margaret Love applauds the president’s July clemencies. Citing the precedent of Gerald Ford’s clemency for Vietnam draft dodgers, she encourages Clinton to undertake at the end of his term a more systematic clemency — for instance, for all pre-1994 offenders who would have qualified for the safety-valve provision of the sentencing guidelines. “His action sends a signal to the legislature that the drug laws may need to be reviewed. It also encourages judges and prosecutors to rethink their own discretionary powers. There’s a public perception that there are lots of people in prison who are doing very long sentences and shouldn’t be there. That perception tended to be confirmed by the applications we received when I was pardon attorney. The pardon power is the most terrific force for good we could possibly have, and I’d be thrilled if this means it will be reestablished in the role the framers thought it would play.”

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