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August 7, 2009

"Judge urges Obama to cut coke dealer's sentence"

The title of this post is the headline of this effective new piece by Josh Gerstein now up at Politico.  Here is how it starts:

A federal judge is calling attention to President Obama's uncertain stance on executive clemency by making a rare judicial plea for a presidential commutation of a drug convict. In an opinion issued Wednesday, U.S. District Court Judge Paul Friedman urged President Barack Obama to reduce the 27-year sentence Friedman imposed on Byron McDade back in 2002 after a jury found him guilty of conspiring to distribute more than five kilos of cocaine.

"Twenty-seven years is a very long time," Friedman wrote. "None of Mr. McDade's former co-defendants or co-conspirators received more than a seven-and-one-half year sentence. While each of them pled guilty and provided substantial assistance to the government by testifying against Mr. McDade (and some provided assistance in other ways), this sentence is disproportionate."

Friedman said that when McDade was sentenced, federal sentencing guidelines required the 324-month term. Those guidelines became advisory as the result of a Supreme Court decision in 2005, but Friedman said he had no authority to re-open McDade's sentence even though someone sentenced after him for the same offense may have gotten a much shorter term.

However, in an unusual move, the judge made a public appeal to Obama to use his constitutional power to shorten the convict's sentence. "The Court urges the President to consider executive clemency for Mr. McDade and to reduce Mr. McDade's sentence to fifteen years in prison followed by...supervised release," the judge wrote.

Judge Friedman's full opinion in US v. McDade is available at this link.  Here is more of what Judge Friedman had to say at the close of the opinion to explain his concerns with the sentence the defendant is serving:

Indeed, had Mr. McDade not exercised his constitutional right to a jury trial and instead pled guilty, the likely sentence under even a mandatory Guideline regime would have been approximately 168 months, approximately half the sentence the Court was required to impose after Mr. McDade was found guilty at trial.  Had the Sentencing Guidelines been advisory in 2002, or if Booker were retroactive now, the Court would vary substantially from the Guideline sentence of 324 months.  This Court, however, is without authority to reduce Mr. McDade’s sentence at this juncture.

As regular readers know, President Obama's failure to grant even a single clemency through now his second 100 days in office should keep McDade from expecting too much in response to Judge Friedman's call for presidential action.  Nevertheless, I think it is useful (and could eventually be consequential) for judges to vocally express concerns with particular sentencing outcomes they may be obliged by law to impose or uphold.

Some related posts on clemency:

August 7, 2009 at 12:49 PM | Permalink


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Almost all criminals are Democrats, as are most law professors. They hate the freedom loving patriot, the productive worker, and the innocent crime victim. The Democrats want more Democrat votes from criminals. He should make a wrong turn and go 1 block off course in Washington DC, and get jacked by a criminal lover lawyer client.

Posted by: Redundancy Clause | Aug 7, 2009 1:07:40 PM

Does commutation actually include the power to impose supervised release that wasn't part of the original sentence? Although I also don't know what term of SR if any was imposed in this case.

I know that commutation can't generally be refused the way pardon can, but still I could see conditions of SR that could sometimes make serving the full term preferable.

Posted by: Soronel Haetir | Aug 7, 2009 1:53:13 PM

Really? How is prison preferable to SR? I'd imagine that the thinking is that converting a year in prison to a year of SR is a form of commutation... i.e., if you start with a 15-year prison sentence, the president can commute it to 10 years of imprisonment plus 5 years of SR, but he can't turn it into 10 years & 6 years.

And I'm not being antagonistic. I don't know the answer and I'm genuinely curious.

Posted by: anonymous | Aug 7, 2009 2:19:53 PM

"Twenty-seven years is a very long time"? Perhaps Judge Friedman should consider the full context by which McDade came into the possession of the cocaine. Thousands of people, including many police officers and army soldiers, have been murdered by the Mexican drug cartels who bring the cocaine over the border for traffickers like McDade, and even if the dealers on the streets of the United States never pull a trigger they cannot conveniently extricate themselves from all the blood that has been spilled on both sides of the border in order for them to obtain their illicit product. All drug traffickers have blood on their hands, and accordingly should receive the death penalty rather than a plea for leniency.

Posted by: death penalty for drug traffickers | Aug 7, 2009 2:53:20 PM

First, I must note that DPFDT's logic can (and, if it is adopted at all, should) of course be extended to all *users* of illegal drugs, including our last three presidents.

My actual comment: Doug says that McDade shouldn't be hopeful because Obama has been keeping his head way down on this issue, but it also seems like McDade's case would provide the perfect political cover to make this "no clemencies" issue go away (at least for a while). I mean, it is a relatively non-violent offense (there is an argument that all narcotics offenses are inherently violent, but it is still not like he carjacked or shot someone---there is no directly identifiable crippled or dead victim), all of his collaborators received much lesser sentences, and, most importantly, the judge himself says that but for procedural problems, he would reduce the sentence himself.

A grant of clemency lets Obama pawn much of the "mercy"/"empathy"/softness-on-crime off on the trial judge, while also trumpeting an example of a (democrat-appointed) judge who acted within the law (i.e., not an "activist") but also found a way to facilitate a just outcome by getting the different branches of government to work together (we know Obama loves reconciliation and cooperation).

Finally, a grant gets Doug Berman off Obama's back. OK, probably not. But it at least undercuts Berman's argument by depriving him of the opportunity to say repeatedly (as he should), "it has been ____ days of the Obama presidency, and still zero clemencies."

Posted by: Observer | Aug 7, 2009 4:00:04 PM

Observer, once you start down the slippery slope of doing things to make individual bloggers stop whining...

Posted by: anonymous | Aug 7, 2009 4:48:17 PM

Observer: I am pleased and amused that you think the President cares at all about having me on his back. Maybe this means I have a shot at getting invited to the next beer summit (where I likely would request a New Castle, in case anyone cares what I like to drink).

Posted by: Doug B. | Aug 7, 2009 4:50:20 PM

Professor: I was being tongue-in-cheek about you personally, but I do think the point is valid if one sees you as a stand-in for a broader constituency of criminal-justice moderates/progressives who want to see at least some action---even symbolic---on mass incarceration/sentencing fairness issues. Obama might care somewhat about having these folks, as a group, on his back.

PS- If not the White House, maybe you can hope for a Newcastle at the offices of the Sentencing Commission?

Posted by: Observer | Aug 7, 2009 5:59:46 PM

Remember Doug B. the judiciary does not concern itself with sentences like "30 days in the hole" -- maybe you can interest the President

"New Castle Brown it'll sure smack you down."

Posted by: Humble Pie | Aug 7, 2009 11:34:23 PM

Does the pardon power extend to rewriting sentences so that the prisoner is released AFTER the pardoning President's term? I know that the power allows an executive to commute a sentence from death to life, but does it allow a President to cut a sentence without releasing the prisoner? Just curious.

Posted by: Mark | Aug 8, 2009 5:01:47 PM

Not everything is known, I
think God works things out for
a good reason with Mr. McDade?

Posted by: Guess | Sep 6, 2009 6:12:13 PM

Insurance Tacoma

Great article. I totally agree with your perspective.

(law student Gonzaga (my uncle owns this company)

Posted by: insurance tacoma | Feb 13, 2010 7:15:18 PM

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