NACDL News
November 2007, Page 8

NACDL News
By ; ; Molly M. FAMM

FAMM Seeks Commutation Cases To Spark Sentencing Reform

On September 20, 2007, Richard Paey, a wheelchair-bound chronic pain patient, left the prison in which he had once expected to die and went home to his wife and children. Paey had served over three years of a 25-year mandatory minimum sentence when he sought a commutation from Gov. Charlie Crist (R) and the Florida Executive Clemency Board. The governor and the board surprisingly and unanimously agreed that Paey should go home early — with a full pardon in hand.

Paey’s case drew nationwide media attention — and ultimately Gov. Crist’s favor — because his lengthy prison sentence was not punishment for murder or for being a drug kingpin. Instead, Paey was convicted under Florida’s drug trafficking statute because he wrongfully acquired the prescription drug oxycodone for his own use, to ease the continuous pain he suffered as a result of a car accident, multiple sclerosis, and several failed back surgeries. He did not abuse the pills or earn a profit by selling them. But, under the trafficking statute, Fla. Stat. ch. 893.135(c)1, simply possessing the pills can trigger any one of over 20 mandatory minimum sentences. Paey, a first-time offender, became a textbook example of how overly broad drug laws and the mandatory sentencing schemes that so often accompany them can produce unjust sentences and unintended, absurd consequences.

Getting a commutation anywhere is no easy feat, and it was Paey’s wife, Linda, and attorney, John Flannery of Virginia, who fought the hardest to get him home. Concerns about the validity of his conviction and sentence were evident from the beginning. The Florida Second District Court of Appeal upheld Paey’s conviction, but noted that Paey’s case was sympathetic and that his argument that his sentence should be reduced “does not fall on deaf ears, but it falls on the wrong ears.” Paey v. State, 943 So. 2d 919, 927 (Fla. 2d DCA 2006). Paey’s case was profiled on the Web sites of sentencing reform advocacy groups like Families Against Mandatory Minimums (FAMM) and eventually garnered local and national media attention. Flannery and Linda Paey asked supporters to write to the governor on Paey’s behalf, and Flannery created a presentation detailing Paey’s condition and proving that Paey truly suffered from chronic pain.

Up to the last minute, no one knew whether the governor would order Paey’s release. The Florida Parole Commission had recommended that the Clemency Board deny Paey a commutation. Undeterred, Flannery told a reporter at the hearing, “We’re going to convince the board that the commission is wrong.” After lengthy testimony from Flannery and Paey’s family members, Gov. Crist moved for a full pardon. A full pardon would include, in addition to releasing Paey immediately, eliminating the $500,000 fine in his sentence and restoring his civil liberties. When the Clemency Board (composed of Gov. Crist, Florida Attorney General Bill McCollum, Chief Financial Officer Alex Sink, and Commissioner of Agriculture Charles Bronson) voted unanimously in favor of the pardon, “the whole place went crazy,” said Flannery. “There was not a dry eye in the house. Linda told me she felt like she was in a Rocky movie.”

Despite its obvious ability to change lives and correct injustices, the use of executive clemency appears to be dangerously in decline. Since the Reagan administration, there has been a precipitous drop in the number of federal pardons and commutations — even President Clinton’s famous last-minute efforts to beef up his clemency record (396 pardons and 61 commutations over 96 months in office) fell far short of predecessors like Presidents Jimmy Carter (534 pardons and 29 commutations over 48 months in office) or Richard Nixon (863 pardons and 60 commutations over 67 months in office). To date, President George W. Bush has pardoned just a little over 100 people and commuted only four sentences, despite requests from thousands of prisoners.

When it comes to pardons, most states seem to do just as poorly as the federal executive. According to a recent study of pardoning practices published by former United States Pardon Attorney Margaret Colgate Love, only nine states — Alabama, Arkansas, Connecticut, Delaware, Georgia, Nebraska, Oklahoma, Pennsylvania, and South Carolina — have granted pardons somewhat regularly in recent history. All of these states have review boards that handle parole requests, clemency requests, or both, and in many, those boards are appointed and can either grant pardons themselves or issue binding pardon recommendations to their governors. There is no up-to-date and comprehensive data available on state commutation rates, but even a small sampling of statistics from state parole and pardon boards shows how rare they have become: Ohio granted only three in 2006; Gov. Mitt Romney denied every application for clemency filed during his four years in office in Massachusetts; between 1980 and 2006, only 132 people received commutations in Florida. Paey’s pardon, like most other grants of clemency around the country, is as rare as it is extraordinary. “I was told there hadn’t been a full pardon [in Florida] in 23 years,” reported Flannery. “The prison officials asked me if they could keep the fax the governor sent them telling them that Richard had been pardoned, because they’d never seen one before and wanted to frame it.” In Flannery’s opinion, “[t]he trouble with the clemency process is the decision makers. At the end of the day, [Gov. Crist’s] cabinet had an open mind and the law enforcement experience to make the decision to pardon Richard. Personnel matters.”

Though rare, commutations and pardons have a largely untapped potential to spark reforms of drug laws and drug sentencing policies. By their very nature, commutations and pardons cannot bring relief to the thousands of people serving excessive sentences or mandatory minimums. But clemency can — and should — be used as a catalyst for repealing or fixing sentencing laws that are unjust, irrational, and cost taxpayers thousands in prison costs while failing to reduce crime. In granting a commutation or a pardon, an executive has the opportunity to make a broad, lasting, public statement about crime and sentencing policies. Indeed, according to Flannery, “The most significant thing about Richard’s release is that we actually had a dialogue with the elected officials. Vigilance and continuing the dialogue are required so that others can benefit.” Now is the optimal time for Gov. Crist to call on the Florida Legislature to reform its own drug trafficking statute. Executive clemency cannot undo or prevent every bad sentence, but, if used wisely and effectively, it can create a positive public discourse on what drug sentences should look like.

In light of the reform-triggering potential of executive clemency, FAMM has launched a Commutations Project. FAMM is a nonpartisan, non-profit sentencing reform advocacy group committed to seeing mandatory minimums repealed and sentencing discretion returned to judges so that they can impose sentences that fit the crime and the individual offender. The mission of the Commutations Project is to correct individual cases of severe injustice in an effort to spark reforms that will prevent those injustices from occurring again. To accomplish this mission, FAMM will need cases that illustrate unjust and excessive sentencing policies for low-level, first-time, or non-violent drug offenders. FAMM is launching its first state commutation campaigns in Florida, Massachusetts, and Ohio. Additionally, FAMM is seeking federal cases.

Appropriate cases should meet most or all of the following criteria:
  • The prisoner is a first-time, low-level, or non-kingpin drug offender;
  • The case did not involve violence (“violence” means any situation in which another human being was held at gunpoint, kidnapped or forcibly restrained, beaten, shot, stabbed, killed, raped, molested, or otherwise wounded or harmed, including domestic assault and child abuse);
  • The prisoner has no prior arrests or convictions for a crime of violence (see definition of “violence” above);
  • The prisoner has no prior arrests or convictions for a sex crime (including statutory rape and child pornography);
  • The sentence is at least 10 years in length and is excessive for the crime/offender;
  • The prisoner has served at least 5 years of the sentence;
  • The prisoner shows remorse or accepts responsibility for the offense (i.e., no innocence claims);
  • The prisoner has shown extraordinary rehabilitation, including completing drug treatment;
  • The prisoner has shown good conduct in prison, with no disciplinary problems; and
  • All legal remedies have been exhausted, and no other actions or motions are pending.

Other positive factors in a potential commutation case might include:
  • The crime did not involve a gun;
  • Serious sentencing disparity exists in relation to codefendants or others similarly charged;
  • The sentencing judge made statements against the sentence before imposing it;
  • Serious abuses of prosecutorial discretion (e.g., bad charging decisions, seeking an enhanced sentence, trying juveniles as adults);
  • “Unintended consequences” cases (the conviction results from an overly broad or flawed interpretation of a statute);
  • Drug trafficking cases involving chronic pain patients who were acquiring prescription medications solely for their own use;
  • The prisoner is elderly and terminally ill; and
  • Relevant or acquitted conduct was used to produce a lengthier sentence.

In addition to cases, FAMM is looking for volunteer attorneys who want a unique and potentially life-changing pro bono opportunity. In addition to good writing skills, volunteers will need to have patience, determination, and the willingness to work with the prisoner, his or her family, and the clemency review mechanisms that are in place at the state and federal level. According to Flannery, it is also vital that attorneys working on clemency petitions “think more politically and less like lawyers.” Attorneys will not only help prisoners draft and submit a clemency petition, but should also seek to promote the prisoner’s case in the media and garner the support of political representatives. FAMM’s staff will be available to provide guidance and support along the way, if needed. As Paey’s case shows, the life-changing impact of clemency and the joy of winning against the odds make the effort worthwhile.

If you know of a case that meets FAMM’s criteria, or you would like to volunteer on a case, please contact Molly Gill at (202) 822-6700 or mgill@famm.org, or write to FAMM at 1612 K Street NW, Washington, DC 20006.


National Association of Criminal Defense Lawyers (NACDL)
1660 L St., NW, 12th Floor, Washington, DC 20036
(202) 872-8600 • Fax (202) 872-8690 • assist@nacdl.org