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May 16, 2014

New commentary highlights why DOJ's new clemency initiative is not enough of a good thing

Megan Quattlebaum has this notable new commentary up at Huffington Post under the headline "2,785 Petitioners for Clemency Need All of the Mercy Obama Can Give."  It highlights one of many cases not formally covered by the new DOJ clemency guidelines but still subject to what seems like an unfair federal drug sentencing system. Here are excerpts:

Shortly after high school, Michael Keating fell in with a bad crowd in his rural hometown in Missouri, and began experimenting with meth. By the age of 20, he was hooked and using the drug on a daily basis.  He met a man who said that if Michael allowed him to use the woods behind his house to produce drugs, he would give the young addict some of what he made.

Soon thereafter, police officers received information that meth was being made at Michael's home. They searched his property and found a bucket of waste water in the backyard. Although the waste water contained less than a gram of methamphetamine, pursuant to the Eastern District of Missouri's practice (which has been rejected by the majority of federal circuit courts and the U.S. Sentencing Commission) Michael, the sole defendant in the case, was charged as though the entire weight of the water in the bucket -- more than 2,700 grams -- was a marketable drug. He was sentenced to serve more than 11 years in federal prison.

Late last month, the Department of Justice announced a laudable initiative to seek out nonviolent drug offenders with long prison sentences whom it will consider for clemency. The initiative is open to federal prisoners who meet six criteria, including that they have served at least ten years of their sentence and likely would have received a substantially lower sentence if convicted of the same offense today. The goal, according to President Obama, is to help "restor[e] fundamental ideals of justice and fairness" to our penal system by releasing those who "would have already served their time and paid their debt to society" had they been sentenced under current law.

This is a tremendous step forward, but it won't help Michael Keating. He has only served seven and a half years in prison, not ten, as the initiative requires. And the law under which he was sentenced hasn't changed -- in Missouri, possession of the un-ingestible by-product of drug production is still punished just as harshly as possession of the same amount of marketable drugs. Michael's case is emblematic of our need to go even further to right the wrongs of failed sentencing policies.

Still, some who have commented on the initiative seem to view it as too much justice. One group of critics fears the "early" release of convicted felons into our communities. But, as Michael's story demonstrates, we need to take a hard look at individual cases before we assume that those with past convictions pose a present danger....

[W]hile President Obama is right to search out new candidates for sentence mitigation, he shouldn't neglect those meritorious individuals whose cases are already before him. Michael Keating's application has been pending for over two years; it is one of the 2,785 sentence commutation petitions on which the Pardon Attorney has not yet acted. In addition to seeking out new submissions, the President should take a close look at those he has in hand. On the path to saner sentencing policy, we will need all of the mercy that he can give.

May 16, 2014 at 11:02 AM | Permalink


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One major problem---the "facts" set forth in the story are highly misleading. According to the publicly available court documents, Mr. Keating pleaded guilty to manufacturing 500 grams or more of methamphetamine. In his plea agreement, Mr. Keating specifically AGREED that 2,700 grams of methamphetamine were found in his house. (See USA v. Keating, 4:06-CR-323, Doc. 44, E.D. Missouri, Apr. 25, 2007). The plea agreement also clearly stated that Mr. Keating would be held responsible at sentencing for more than 1.5 kilograms but less than 5 kilograms of methamphetamine. (Id. at 3.)

Six months after his guilty plea, Mr. Keating tried to withdraw his plea based on this "waste-water" argument. The district court found the "waste-water" argument to be "flatly contradicted" by the record. (Id. at 3.) The district court also found that another argument made by Mr. Keating was "not credible." (Id. at 5.) Finally, it should be mentioned that Mr. Keating likely possessed a firearm in furtherance of his drug crimes. The USAO, however, agreed not to pursue the 924(c) charge in return for Mr. Keating's guilty plea to the methamphetamine charge. (See Keating v. USA, 4:07-CV-1966, Doc. 24, E.D. Missouri, Nov. 12, 2009, at 3.) The USAO also dismissed a 922(g) charge that had been brought against Mr. Keating based on his possession of a 9mm handgun. (USA v. Keating, 4:06-CR-323, Doc. 44, E.D. Missouri, Apr. 25, 2007, at n.1).

Do the authors of these news articles actually do any research? Or, do they simply take the self-serving statements of a criminal and his family members as the gospel truth? I guess the old-adage holds true: don't ever let the facts get in the way of a good story.

Posted by: Zachary B. | May 17, 2014 10:53:25 PM

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