Washington, DC (Dec. 4, 2020) – This week, NACDL’s Trial Penalty Clemency Project submitted five more federal clemency petitions to the Office of the Pardon Attorney and the White House, adding to the previous ten submitted between October and November, which are still awaiting action by the White House. Together, the sentences of these five individuals, as compared to the sentences of their co-defendants or to the plea offers extended to them, represent over 150 years of punishment solely because they exercised their Sixth Amendment right to go to trial. This type of punishment, known as the trial penalty, has become a defining feature of the modern American criminal legal system.
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 those 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.
"A bedrock principle of the American criminal legal system is the Sixth Amendment right to trial, but every day in our criminal legal system we are punishing individuals for exercising this fundamental constitutional right," said NACDL President Chris Adams. "The trial penalty is forcing defendants to plead guilty, or punishing them when they choose to put the government to its proof by going to trial. It is a grave injustice which ultimately requires serious criminal legal reform to remedy. In the present, however, we must seek executive clemency for those serving these unduly harsh sentences."
NACDL Board Member and Director of NACDL’s Trial Penalty Project JaneAnne Murray adds: "In the cases we are submitting today, we once again see prosecutorial use of mandatory minimum sentences and recidivist enhancements to produce sentences that are typically imposed on convicted murderers. It is critical to limit unbridled prosecutorial abuse of sentencing provisions to ensure that accused persons may freely exercise their right to go to trial, and to bring sanity and individualization back to federal sentencing."
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 five 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.
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.
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.
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. This submission is also supported by the Last Prisoner Project and Life for Pot.
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. This submission is also supported by CAN-DO.
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.
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.
Kate Holden, NACDL Public Affairs and Communications Assistant, (202) 465-76624 or kholden@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.
