Washington, DC (Nov. 20, 2020) – As of this week, NACDL’s Trial Penalty Clemency Project submitted four more federal clemency petitions to the Office of the Pardon Attorney and the White House, adding to the first set of six petitions submitted on October 2, 2020. Of the four petitions, three concern individuals serving life or lengthy sentences for non-violent drug charges, and one concerns an individual serving over 35 years for a non-violent white-collar conviction.
As of late, increased attention to the criminal legal system has led to public outrage and calls to reform myriad facets of the American legal system. The trial penalty, though, which refers to coercive prosecutorial practices that induce accused persons to waive fundamental rights under threat of a vastly increased sentence when fundamental rights are asserted, persists in undermining the American criminal legal system. The most obvious examples of its impact are seen in those who assert their rights and receive a geometrically enhanced sentence. Though reform is badly needed to end the trial penalty, the only immediate remedy for those individuals living this injustice is executive clemency. NACDL’s Trial Penalty Clemency Project aims to assist those individuals by pairing applicants with volunteer attorneys who will assist them in preparing a clemency petition.
"The trial penalty makes a mockery of the Constitution’s Sixth Amendment right to trial and is a large and ever-growing cancer on the American criminal legal system," said NACDL President Chris Adams. "Every time a defendant opts to hold the government to its burden and go to trial, and receives a substantially more draconian sentence than was previously offered in a plea deal, the American legal system moves further away from justice. NACDL’s Trial Penalty Clemency Project is a vital step in beginning to remedy this great injustice."
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 addition to filing the petitions with the Office of the Pardon Attorney, the Project brought the four cases described below, in addition to six previous cases, 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.
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 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 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.
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.
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 Trial Penalty Clemency Project is led by NACDL Board Member and Volunteer Director JaneAnne Murray.
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.
Madeline Sklar, Public Affairs and Communications Associate, (202) 465-7647 or msklar@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.
