Washington, DC (Oct. 13, 2020)– On October 2, 2020, NACDL’s Trial Penalty Clemency Project submitted its first set of federal clemency petitions to the Office of the Pardon Attorney and to the White House. Of the six petitions, three concern individuals serving life sentences and a fourth concerns an individual serving an 835-year sentence. Taken together, the sentences of these six individuals, as compared to the sentences of their co-defendants or to the plea deals offered to them, represent over 100 years of punishment solely due to the fact that these individuals exercised their Sixth Amendment right to go to trial – a defining feature of the modern American criminal legal system known as the trial penalty.
While society is awakening to the number of wrongs embodied in the trial penalty, there are a number of individuals enduring 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.
“There is no justice in a system of pleas where the government wields the power to exponentially increase the punishment sought against the accused simply because the individual elects to exercise their Sixth Amendment right to go to trial,” said NACDL President Chris Adams. “Extreme punishments sought against individuals because they elect to go to trial drive innocent people to plead guilty to avoid the risk of trial. This undermines the bedrock presumption of innocence. With fewer than 3% of criminal cases now being tried in court, the United States is now at a point at which its criminal legal system would be unrecognizable to those who laid out the rights of the accused in our Constitution. The wide-ranging consequences of such system of pleas are unacceptable – from inducing the accused to waive a wide range of rights beyond the right to a trial itself, such as discovery, to shielding law enforcement and the prosecution from challenges to unlawfully obtained evidence and other misconduct. And as evidenced by the first six petitions submitted by NACDL’s Trial Penalty Clemency Project, it is a significant driver of mass incarceration.”
NACDL Executive Director Norman L. Reimer noted: “The crushing sentences imposed on these six individuals serve as warnings by the government to any accused person: If you dare to assert your fundamental right to a trial, we will bury you. If there is any hope of bringing justice to America’s criminal legal system, it is imperative that all stakeholders take on the scourge of the trial penalty.”
NACDL Board Member and Volunteer Director of NACDL’s Trial Penalty Project JaneAnne Murray adds: “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. Until our system eliminates the prosecutor’s sentencing power, we cannot achieve the goal that a sentencing judge treat each person as an individual, in all their unvarnished humanity.”
Thus far, through affiliates, members, and the assistance of organizations in this space like the CAN-DO Foundation, the Last Prisoner Project, and Life For Pot, the Project has identified, reviewed, and assigned more than 20 cases with attorneys. The attorneys are crafting petitions or supplements to existing petitions focusing on the impact of the trial penalty. In additional to filing the petitions with the Office of Pardon Attorney, the Project brought the six cases described below to the attention of the White House panel on clemency. NACDL’s Trial Penalty Clemency Project is a component of NACDL’s Return to Freedom Project.
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.
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, 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.
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 medical conditions, she is at higher risk of contracting and suffering complications from COVID-19.
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.
Sholem 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.
In 2018, NACDL released a groundbreaking report – The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It. Information and a PDF of NACDL’s 2018 Trial Penalty report, as well as video of the entire 90-minute launch event at the National Press Club in Washington, DC, and other trial penalty-related videos and materials are available at www.nacdl.org/trialpenaltyreport.
In 2019, The Federal Sentencing Reporter, published by University of California Press, released a double issue covering April and June 2019, edited by NACDL Executive Director Norman L. Reimer and NACDL President-Elect MartÃn Antonio Sabelli, entitled "The Tyranny of the Trial Penalty: The Consensus that Coercive Plea Practices Must End."
And in 2020, NACDL and FAMM released a documentary on the trial penalty, The Vanishing Trial. The trailer for that film is available here.
NACDL’s Return to Freedom Project is led by NACDL Executive Director Norman L. Reimer and Project Manager Steven Logan.
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.
Ivan Dominguez, NACDL Senior Director of Public Affairs and Communications, (202) 465-7662 or idominguez@nacdl.org
The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's many thousands of direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal justice system.
