As set forth in the 2018 report “The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It,” authored by the National Association of Criminal Defense Lawyers in conjunction with the Foundation for Criminal Justice, trial by jury has declined to the point that less than 3% of state and federal criminal cases are tried to a jury. And, as set forth in the Report, many of those individuals who exercise their constitutionally guaranteed right to a jury trial have been severely penalized for doing so.

While society is awakening to the number of wrongs embodied in the trial penalty, there are a number of individuals living the trial penalty as they serve excessively long prison sentences as a result of electing to go to trial and holding the government to its burden. The only remedy for these individuals is executive clemency. The Trial Penalty Clemency Project aims to assist those individuals by pairing Applicants with Volunteer Attorneys who will assist them in preparing a clemency petition.

Reform is needed to end the trial penalty. In the interim, this Project provides an opportunity for a second chance to those individuals who are living it.

NACDL’s Federal Trial Penalty Clemency Project is made possible by generous support from the NACDL Foundation for Criminal Justice and the Howard S. and Deborah Jonas Foundation.

"The trial penalty - frequently wielded through mandatory minimum sentences - is at the heart of mass incarceration - driving not only severe sentences for those who exercise their right to trial but disproportionately excessive sentences for those who feel they have no choice but accept the prosecutor’s plea bargain."

NACDL Board Member and Volunteer Director of NACDL’s Trial Penalty Project JaneAnne Murray

Impacted Individuals

• Mohamed Taher

  • Mohamed Taher, 42, has served almost nine years of a 25-year sentence he received in 2014 for his unarmed, non-violent role in a marijuana importation and distribution conspiracy in the Western District of New York. When he rejected a plea offer to ten years, the government filed a superseding indictment carrying a mandatory minimum penalty of 22 years. Today, as a result of society’s changing views on the propriety of criminalizing marijuana, as well as enlightened federal charging policies, Mr. Taher’s likely prison sentence in this case would be less than half the time he has already served. Mr. Taher has an excellent release plan, with a large network of supportive family and friends and a solid job offer. He yearns to be reunited with his three children.

    Also supported by: Last Prisoner Project

• Kelli Caron

  • Kelli Caron is in her seventh year of a 14-year sentence she received for her non-violent, low-level role in a meth distribution conspiracy. Her participation was driven by her own meth addiction. After the prosecutor threatened her with a mandatory life sentence through the filing of a recidivist enhancement notice, Ms. Caron accepted a plea deal that would keep her incarcerated until the age of 43, robbing her of her child-bearing years. If sentenced today, Ms. Caron would receive a sentence that would be one quarter of her current one. Ms. Caron has been an exemplary prisoner. Sentenced to serve a concurrent sentence in state prison for a probation violation (related to her federal case), she enrolled in college, learned trades and took care of sick prisoners. Her extraordinary record earned her the first Minnesota state-level commutation to an incarcerated person in 28 years, granted by Minnesota Governor Tim Walz in 2020.

• Darius Reaux

  • At the age of 18, Darius Reaux, along with three other young men, committed a series of armed robberies. However, if sentenced today for the same offenses, he would not be sentenced to his current lengthy term of imprisonment. Today, Mr. Reaux is far from the troubled teenager he was at the time of his offenses. Mr. Reaux has taken full advantage of every opportunity provided to him in prison, and quickly obtained his GED and completed an intensive drug treatment program. After ten years of imprisonment, today Mr. Reaux is a mature, thoughtful young man who is a leader and mentor in the prison, has a spotless record of discipline, and is an exceptional employee in UNICOR.

• Benton Miley

  • Benton Miley is a 70-year-old U.S. Navy veteran who has served over 29 years in prison for drug-related offenses. Mr. Miley has worked for UNICOR and in various positions within the BOP for many years and has not had any disciplinary incidents in all his years of incarceration. Mr. Miley is now in poor health due to complications from colon cancer, and he suffers from periodontal disease and severe abdominal and joint pain. In addition, due to his compromised immune system, he remains at risk of suffering from severe illness if he were to contract COVID-19. Based on his length of sentence served and his demonstrated rehabilitation, Mr. Miley is deserving of clemency.

• Karin Condon

  • Karin Condon, 63, has served almost 9 years of a 15-year sentence for her entirely nonviolent and unarmed role as a taxi-driver in a drug distribution scheme in the District of North Dakota - a role she assumed to support her own addiction. Her sentence was driven by the government’s decision to file notices of recidivist enhancements in her case. Such recidivist enhancements were intended by Congress to ensure that the most reprehensible of drug dealers were put behind bars for a long time. Instead, they have been used all too often to incarcerate low-level drug addicts on sentences that far exceed any public safety or punishment imperatives. Ms. Condon’s case is one such case. In sentencing her on her guilty plea, the court used the life sentence as a reference and noted that 15 years was the lowest sentence he had ever imposed on someone facing a mandatory life sentence. Her judge also noted that “her entire criminal history is the result of her addiction. She poses no threat of harm to others, or herself.” Ms. Condon would not face a life sentence today, and her plea-bargaining (and sentencing) landscape would be significantly more lenient. Ms. Condon has an exemplary prison record and a solid release plan.

• Barbara Williams

  • Barbara Williams, 47, has served 7 years of a 16-year sentence she received from her low-level, non-violent role in a drug distribution scheme in the District of North Dakota - which itself was driven by her drug addiction and experience of abuse in her personal history. Her sentence was dictated by the government’s decision to file notices of recidivist enhancements in her case. Such recidivist enhancements were intended by Congress to ensure that the most reprehensible of drug dealers were put behind bars for a long time. Instead, they have been used all too often to incarcerate low-level drug addicts on sentences that far exceed any public safety or punishment imperatives. Ms. Willaims’s case is one such case. In sentencing her on her guilty plea, the court used the life sentence as a reference to decide her lengthy sentence. Today, that frame would significantly lower, and her sentence would be proportionately lower. She has already served the likely sentence she would receive today. Ms. Williams has an exemplary prison record and an excellent release plan.

• Corvain Cooper - Sentence Commuted 1/20/2021

  • Corvain Cooper has served over seven years of a life sentence for his non-violent participation in a conspiracy to distribute marijuana. He exercised his constitutional right and went to trial rather than cooperate with the prosecution, as some of his co-defendants did, and he was the only one sentenced to die in prison, even though some of his co-defendants were more culpable. And due to the First Step Act, if Mr. Cooper were sentenced today on the same charges, the court could have followed its stated desire for a sentence less than mandatory life.

    Also supported by: Last Prisoner Project, Life for Pot, and CAN-DO

• Gordon Jackson

  • Gordon Jackson has served 23 years of a life sentence for a conspiracy drug charge. He would have been released over 15 years ago if he took his plea offer, like his co-defendants, instead of exercising his constitutional right to a trial. Mr. Jackson has been a model prisoner, helping his peers with their mental health, and has had only one minor disciplinary infraction in the last several years.

• John Knock - Sentence Commuted 1/20/2021

  • John Knock, a first-time offender, has served 24 years of a life sentence for marijuana charges. Unlike some of his co-conspirators who pled guilty and were freed decades ago, Mr. Knock exercised his constitutional right to a trial. He has had zero incident reports during his incarceration and would have broad family support and steady employment upon release.

    Also supported by: Life for Pot, Last Prisoner Project, and CAN-DO

• Lavonne Roach - Sentence Commuted 1/20/2021

  • Lavonne Roach has served 23 years of a 30-year sentence for non-violent drug charges. Instead of accepting the prosecution’s offer of 9 to 11 years, she exercised her constitutional right to a trial. Ms. Roach’s limited criminal history is entirely non-violent and she has been a model prisoner, using her education to tutor other prisoners. Due to her obesity, hypertension, and prescribed medication, she is at higher risk of contracting and suffering complications from COVID-19.

    Also supported by: CAN-DO

• Blanca Virgen - Sentence Commuted 1/20/2021

  • Blanca Virgen, a mother of four imprisoned hundreds of miles from her family, has served 12 years of a 30-year sentence for drug charges. She exercised her constitutional right and went to trial rather than accepting the government’s plea offer of 10 years. Ms. Virgen is a model prisoner, having received countless achievement awards from her programming, and with only one minor infraction from seven years ago. Ms. Virgen wishes to go home and care for her children, two of whom recently lost their primary caregiver.

• Sholam Weiss - Sentence Commuted 1/20/2021

  • Sholam Weiss, the son of Holocaust survivors, has served 20 years of an 835-year sentence for fraud and related charges. Mr. Weiss exercised his constitutional right to a trial rather than accepting the prosecution’s plea deal for either five or 10 years. As a 66-year-old cancer survivor with cardiovascular disease and other medical conditions, he is particularly at risk for complications from COVID-19, which is spreading rapidly in federal prisons.

    Also supported by: Tzedek Association and CAN-DO

• Robert Francis - Sentence Commuted 1/20/2021

  • Robert Francis is serving his 19th year of a life sentence, after being offered a sentence of 25 to 30 years pre-trial. He is incarcerated on non-violent drug conspiracy charges. Had he accepted the government’s plea offer, he would be free soon, given the good time credits from his spotless disciplinary record and active efforts toward learning and rehabilitation. Instead, Mr. Francis went to trial. The prosecution held him accountable for greater drug weights and two enhancements, and, unlike some of his co-defendants who have been freed or resentenced, Mr. Francis is now slated to die in prison.

• Cleotha Young

  • Cleotha Young is serving his 7th year of a mandatory minimum 20-year sentence, after being offered a plea with a mandatory 10-year minimum prior to trial. Cleotha is a 37-year-old African-American man who is incarcerated on non-violent drug conspiracy charges. He played a minor role in the conspiracy, even according to the prosecution. However, the court was forced to sentence Mr. Young more severely than most of his co-defendants because the prosecution doubled his mandatory minimum after he decided to go to trial. Mr. Young has used his six years of incarceration to better himself, complete programs on drugs and victim impact, and gain new skills.

• Michael Montalvo

  • Michael Montalvo is serving his 32nd year of a life sentence, after being offered a sentence of 15 years pre-trial and 10 years mid-trial. Michael, a 74-year-old Vietnam War veteran, has been incarcerated for over 3 decades for a non-violent drug crime. Despite Mr. Montalvo’s leadership role in the conspiracy, he did not use violence or coercion, and the prosecution offered him 15-year and then 10-year plea deals. Mr. Montalvo is only incarcerated today because he went to trial. He has been a model prisoner, with numerous educational and rehabilitative accomplishments.

    Also supported by: CAN-DO

• Marian Morgan

  • Marian Morgan is serving her 12th year of a 35 years and 9 months sentence, although her co-defendants, including her husband, were all offered sentences capped at 15 years prior to trial, and even mid-trial, Marian was offered a sentence capped at 18 years. Marian is a 66-year-old woman who has been incarcerated for over a decade for a non-violent white-collar crime. Unlike her co-defendants, she went to trial and was sentenced to nearly twice the maximum sentence than she was offered in a mid-trial plea, and three times the highest sentence imposed on her co-defendants. She is remorseful, has been sufficiently punished, and is particularly vulnerable to COVID-19 due to her age and incarceration in a facility which has already seen one major outbreak that led to several deaths.

    Also supported by: CAN-DO

• Michelle Yvette Lee

  • Michelle Yvette Lee has served 10 years of a 30-year sentence, after being offered a sentence to a reduced charge that would have likely resulted in a sentence close to the time she has already served. Ms. Yvette Lee is a 40-year-old woman and mother of three children who has been incarcerated over a decade for a non-violent drug distribution offense, which was driven at the time by her own debilitating addiction. She went to trial with her co-defendant husband and was sentenced to over three times the sentence she would likely have received upon a guilty plea. She has had an exemplary prison history, including taking college accounting classes and completing an office management apprenticeship. Sober and remorseful, she remains close with her children and immediate family and is eager to return to a productive life in society where she plans to find gainful employment using the skills she perfected while in custody, and complete her college education.

• Michael Schutte

  • Michael Schutte is serving his 23rd year of a 30-year sentence, after co-conspirators pled guilty and were sentenced to 10 and 14 years. Mr. Schutte has been incarcerated over two decades for a non-violent drug crime on a sentence that would be much lower today. Mr. Schutte has used this time to take a broad range of vocational classes, complete a twelve-step program, and complete other rehabilitative achievements. He is particularly vulnerable to COVID-19 due to his age and medical conditions and has a re-entry plan with family support.

• John Dade

  • John Dade has served 18 years of a 28-year sentence, after being offered a sentence of three years pre-trial. Mr. Dade is a 64-year-old Afghanistan War veteran with several medical conditions that put him at severe risk of illness or death from COVID-19. Mr. Dade has been incarcerated for nearly 20 years after being convicted of interstate domestic violence, stemming from a burglary and simple assault and battery. Had he accepted the prosecution’s three-year plea offer in his case, he would have been released from prison 15 years ago. Instead, Mr. Dade went to trial and has suffered from a trial penalty which, due to the pandemic, could now result in his death.

• Way Quoe Long - Sentence Commuted 1/20/2021

  • Way Quoe Long is serving his 22nd year of a 50-year sentence. The co-conspirators pled guilty and were sentenced to between 10 months and 10 years of incarceration. Mr. Long has been incarcerated for over two decades for a non-violent conviction. Mr. Long’s 50-year sentence is five times longer than the next longest sentence imposed on his co-defendants. Mr. Long has spent his 22 years of incarceration striving to better himself through 20 classes, including English proficiency and obtaining his General Educational Development Diploma. Mr. Long has only incurred four non-violent disciplinary infractions, most more than a decade ago.

    Also supported by: Last Prisoner Project and Life for Pot

• Luke Scarmazzo

  • Luke Scarmazzo has served more than 12 years of a 22-year sentence. The co-defendants who pled guilty received sentences ranging from probation to one year of incarceration. Mr. Scarmazzo has been incarcerated for over a decade following a conviction for operating a medical marijuana dispensary which was legal under California law. Mr. Scarmazzo and one co-defendant (of seven) were charged under the continuing criminal enterprise statute and remain the only two convicted. As the judge noted at sentencing, Mr. Scarmazzo’s decision to go to trial was conscious and political: he genuinely believed that his delivery of marijuana for medicinal reasons was legal under prevailing law (just like John Paul Zenger in his 1735 trial believed that it was legal to recount truthful facts about the governor of New York). Mr. Scarmazzo has completed numerous classes and received an Associate's Degree.

    Also supported by: CAN-DO

• Kenneth Charles Fragoso - Sentence Commuted 1/20/2021

  • Kenneth Charles Fragoso (“Charlie”) is a 66-year-old U.S. Navy veteran who has served over 30 years for a nonviolent drug offense. He is currently serving a life sentence. If he were sentenced today for the same offense, he would already be released. Mr. Fragoso has a completely clean disciplinary record without a single instance of prohibited conduct during his three decades in prison. While in prison, Mr. Fragoso has worked for UNICOR for over 20 years, learned new trades, and mentored fellow inmates. Due to his age and medical conditions, he is facing a serious decline in his health and is at high risk of severe illness or death if he were to catch COVID-19.

    Also supported by: CAN-DO

• Chalana McFarland - Sentence Commuted 1/20/2021

  • Chalana McFarland has served 15 years of a 30-year sentence, after being offered a pre-trial plea deal with a sentence as low as 87 months (just over 7 years). The government offered Ms. McFarland a plea to fewer counts which carried a range of 87 to 327 months, with the amount depending on sentencing aspects like attributable loss and her role in the crime. Though she went to trial, Ms. McFarland actually cooperated with authorities by informing them of a potential attack on the US Attorney – but only her co-defendants, who pled guilty, received lesser sentences of 5 to 87 months. Ms. McFarland was a model incarcerated person and is now under home confinement.

    Also supported by: CAN-DO

• Luis Gonzalez - Sentence Commuted 1/20/2021

  • Luis Gonzalez is a 78-year-old non-violent drug offender who has served over 27 years in prison. If he were sentenced today, he would have been released more than 8 years ago. Mr. Gonzalez worked for UNICOR producing military uniforms for over 20 years and has only one non-violent discipline incident in all his years of incarceration. Mr. Gonzalez is now in poor health due to chronic illness and aging. Due to his length of sentence served, his demonstrated rehabilitation, and the fact that he would not be sentenced to life today, Mr. Gonzalez is deserving of clemency.

• Derrick Smith - Sentence Commuted 1/20/2021

  • Derrick Smith is serving his 20th year of a sentence of 28 years and 4 months, after being offered a maximum pre-trial sentence of 20 years. Mr. Smith gave drugs to a party companion. The young woman tragically over-dosed. Smith brought her to the hospital and prayed by her bedside, but medics were not able to save her. He was charged with distributing cocaine causing death, rejecting a pre-trial offer that would have capped his sentencing exposure at 20 years. Mr. Smith is deeply remorseful for his role in this tragic death. Mr. Smith grew up in a difficult environment with little family support but has a stellar record while incarcerated. Even aside from the trial penalty, Mr. Smith’s sentence would likely be significantly lower today under recent Supreme Court jurisprudence.

• Dwayne White

  • Dwayne White is serving his 12th year of a 25-year sentence, after being offered a sentence of 15 years with a guilty plea. Mr. White’s conviction stems from a sordid government sting: the phony stash house operation. While many co-defendants pled guilty and received lesser sentences despite being more culpable – the person who recruited Mr. White was released 2 years ago – Mr. White went to trial and the government doubled his mandatory minimum sentence. While incarcerated, Mr. White has maintained a spotless disciplinary record, earned his GED, and took numerous classes.

• Robert Bernhardt

  • Robert Bernhardt is serving his 25th year of a life sentence after rejecting a cooperation and plea deal which would have likely carried a sentence of 151 months (12 and a half years). Just a few months prior to trial, the prosecution filed an information of a prior conviction (for which Mr. Bernhardt served no time) that doubled his mandatory minimum. Along with the “stacking” enhancement of § 924(c) – which is now prohibited by the First Step Act – that resulted in a life sentence. Even without the prospect of release, Mr. Bernhardt has maintained a spotless disciplinary record while incarcerated and has completed nearly 2,000 hours of education.

• Anthony DeJohn - Sentence Commuted 1/20/2021

  • Anthony DeJohn is serving his 13th year of a life sentence after being offered a pre-trial plea deal carrying a sentence as low as 20 years. The prosecution filed an information for one of Mr. DeJohn’s prior drug convictions, and when he refused to plead guilty, they followed through on their threat to file an information on the second prior conviction, resulting in a mandatory life sentence. Other codefendants who were more culpable have since been released after pleading guilty and receiving lesser sentences. Even without the prospect of release, however, Mr. DeJohn has maintained a clear disciplinary record for years and is known in prison for his outstanding work ethic.

• Raymond Hersman - Sentence Commuted 1/20/2021

  • Raymond Hersman is serving his 9th year of a 20-year sentence, after discussing a pre-trial plea deal with the prosecution that likely would have been 7 to 10 years. The day before trial, the prosecution filed an information of a prior conviction that doubled the minimum term for Mr. Hersman’s underlying charges – from 10 to 20 years. While incarcerated, Mr. Hersman has maintained a spotless disciplinary record, worked steadily, and participated in programming and educational opportunities.

• Brian Simmons - Sentence Commuted 1/20/2021

  • Brian Simmons is serving his 5th year of a 15-year sentence after rejecting a plea deal that would have sent him home already. His equally culpable co-defendant and business partner, however, pled guilty and was sentenced to just one and a half years – a nearly 10-fold decrease compared to Mr. Simmons’ sentence. Mr. Simmons regrets his involvement in the marijuana conspiracy and his post-sentencing escape, but he has been serving his sentence since then as an exemplary inmate. His fiancée and community will support him upon his release.

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