Professors and students at the Columbus School of Law want a more just criminal justice system, and they are working to make that happen one inmate at a time.
By: Ellen N. Woods
On a Friday afternoon last December, Sandy Ogilvy, professor in the Columbus School of Law, received a call from the United States Office of the Pardon Attorney. The news was good.
Ogilvy learned that within hours President Barack Obama would announce that he was commuting the sentences of 95 federal prisoners. Two of them were men represented by Ogilvy and his students working through the law school’s clemency clinic. The administration official wanted the law professor to have the chance to tell the two inmates himself before the news broke publicly.
Acting quickly, Ogilvy placed a call to Talladega Federal Correctional Institution. Within minutes, Sherman Chester and Kevin McDonald, both serving life sentences without parole for nonviolent drug offenses, were brought to the phone.
No matter how many times Ogilvy relays the story, his voice catches as he fights back tears.
“That had to be one of the greatest moments in my law career,” he says.
He told them the news together over speaker phone. The two men, who were destined to die in prison, were stunned and after an initial pause of silence they each expressed gratitude. After the call, Ogilvy began spreading the word to his students and colleagues. One of the first emails went to Hyun Jin Kim, J.D. 2015, who as a student prepared Chester’s petition. “I was so happy I started calling my family and friends,” said Kim, now a prosecutor in Florida.
“Sherman is so deserving of clemency. He had served more than 20 years in prison for a non-violent drug offense, an insane sentence when you consider that convicted murderers can get less time. He has more than paid his debt to society. He had a spotless [prison] record and he used his time in prison to better himself, training to be an electrician,” says Kim.
“Through our work in the clinic we get to know our clients. And through that personal interaction, they become more than their crime. My experience working with Sherman and the clinic taught me that compassion and mercy are necessary to being a good prosecutor, and that my decisions can often have lasting impact on people’s lives.”
Kim smiles thinking about the many drafts she wrote of Chester’s petition before it went to the Department of Justice. “When submitting a petition for clemency, you only have one chance to get it right. Professor Ogilvy put us through countless rounds of edits to ensure the arguments were airtight and concise.”
Soon after his swift release from prison, Chester acknowledged those efforts in an email to the law students working in the clemency clinic.
“Thank you all for your help in finding a way to get me released … once the team got assembled I found a way to believe! And for that, I want to thank you all from the bottom of my heart for your efforts and support!”
McDonald too sent an email to Ogilvy and his students, thanking them for helping him “to see my kids grow older.”
Several weeks later, Ogilvy attended a fundraising dinner sponsored by Families Against Mandatory Minimums (FAMM), an advocacy group for criminal justice reform that refers clients to the Columbus law clinic. At the dinner, Ogilvy met Chester for the first time. “We hugged like long lost brothers,” he recalls.
For Sandy Ogilvy, professor of law and director of the Innocence Project Clinic and the Clemency Project, outcomes like this have been the goal of his 43-year law career. He was drafted into the Army out of college in 1968 as the Vietnam War was winding down. He served two years in Alaska. In the aftermath of the war, he enrolled in Northwestern School of Law at Lewis & Clark College in Portland, Ore., earning his J.D. degree in 1973.
Ogilvy says that he and his fellow law students, shaped by the decade of the 60s, were serious about their studies and wanted to use their skills to help people in need. Ogilvy found an internship with a small legal aid office near campus. “The attorneys were compassionate, smart people. I had immediate contact with the clients who were so in need of assistance, and I made a difference. Once you have that experience, you have to have a stone heart not to fall in love with legal aid work.”
After graduation, he began to shape a career dedicated to “making an impact on access to justice for marginalized people.” By the mid- 80s he made the move to academia and maintained his interest in greater access to justice for at-risk populations by working with law school clinics. In 1991 he joined the faculty at the Columbus School of Law, where he taught civil procedure and was the clinical coordinator. In 2003, Ogilvy, who is also director of the law school’s social justice initiatives, received the William Pincus Award for Outstanding Contributions to the Cause of Clinical Legal Education and the Advancement of Justice from the Association of American Law Schools. In 2006 he helped the student innocence group become the for-credit Innocence Project Clinic. The clemency component of the clinic didn’t come about until 2013.
The Innocent Project Clinic partners with the Mid-Atlantic Innocence Project, a D.C. area nonprofit that works to prevent and correct wrongful convictions. They refer cases to the CUA law clinic that on their face, merit some reinvestigation.
“I came to the Columbus School of Law for the innocence clinic,” says Janette Richardson, J.D. 2015, who wanted to study law at a school “where social justice is important.”
Richardson says the learning curve when she began her work in the clinic was steep, but the skills she learned were invaluable. “We would pore over large binders of trial transcripts. We learned to pull and evaluate court records, analyze testimony and evidence, interview witnesses, meet with defendants,” says Richardson.
“Along the way as you study trial records, you realize how difficult it can be for clients who don’t have the resources to hire private counsel to get a fair trial. State’s attorneys and private attorneys have the resources to hire investigators and experts and to get depositions and psych evaluations. Public defenders are doing the best they can, but they are at a disadvantage when it comes to resources,” says Richardson, whose work in the Innocence Project Clinic and Clemency Project influenced her decision to become a public defender.
“Innocence work is demanding,” says Ogilvy. “The cases might be decades old. Finding records and witnesses can be difficult. Our job is strictly investigation and our goal is to find enough evidence that the client is innocent so the case can be referred to a law firm in order to seek a retrial. The process can take years. We learn to celebrate the small victories, like finding a new witness or having a Freedom of Information Act request fulfilled. Often the same cases are handed off to new clinic students each year in the hope they will uncover something new. Our mantra is ‘leave no stone unturned.’”
“As valuable as the innocence work is, I wanted to find something that each class of clinic students could start and finish. I wanted them to have closure,” says Ogilvy. “So about four years ago, I started looking at the idea of adding clemency work to the clinic. This would be very different. We would be filing petitions for individuals who are guilty but are deserving of a pardon or commutation of their sentence.” His timing couldn’t have been better.
Currently, 2.2 million people are behind bars in the United States — an incarceration rate that is the highest in the world relative to population.
In 2013, criminal justice reform had become a rare “purple” issue in Congress as it garnered bipartisan support. The war on drugs, launched in the 1980s, largely to address the violence spawned by the crack cocaine epidemic, had led to overly harsh sentences and mass incarceration. Mandatory minimums and three-strikes rules left judges bound by law to issue life sentences to thousands of low-level, non-violent drug offenders.
Both Chester and McDonald were victims of those mandatory minimums. At Chester’s sentencing in 1994, the judge acknowledged the shortcomings in the criminal justice system, stating, “This man doesn’t deserve a life sentence, and there is no way that I can legally keep from giving it to him.”
In early 2013, Eric Holder, then Attorney General, directed the Department of Justice to undertake a comprehensive review of a criminal justice system that Holder deemed “broken.” The attorney general then traveled across the country showcasing the administration’s “Smart on Crime” plan that would put an end to harsh mandatory sentences for nonviolent crimes, offer more drug diversion programs as an alternative to prison, provide assistance for former prisoners re-entering their communities, and stop sentencing disparities for vulnerable populations.
At the same time, Robert L. Ehrlich, Jr., who served as Maryland’s Republican governor from 2003 to 2007 after serving eight years in Congress, was looking to initiate a formal clemency partnership with a law school clinic. Clemency was a high priority for Ehrlich during his time as Maryland’s chief executive in a way that set him apart from other governors. He dedicated two of the state’s five attorneys in the governor’s office of legal counsel to study requests for pardon and reduced sentences. “He really saw that one of the jobs of governors was to exercise executive powers of pardon and clemency in a merciful, responsible way,” says Ogilvy.
In early 2013, Ehrlich chose the Columbus School of Law as the home for the newly formed CUA Law/Ehrlich Partnership on Clemency, citing its well-established innocence clinic as one of the reasons for his choice. Ehrlich called the partnership a “model in the country for a law school clinic on this topic.”
The partnership was announced at the National Press Club in Washington, D.C., in February 2013 as part of a CUA Law sponsored symposium “Smart on Crime: A New Era of Bipartisan Criminal Justice Reform” that featured some of the country’s leading voices on the topic.
Under Ogilvy’s direction, the innocence clinic became the Innocence Project Clinic and Clemency Project and began to take clemency petitions.
And through the Ehrlich partnership, the clemency project also functions as a resource for governors and their staffs across the country on how to use clemency in a way that is fair and transparent.
Cara Drinan, professor of law, oversees the programming and research side of the Ehrlich partnership. “The partnership with Governor Ehrlich is great for the law school and our students in so many ways, not the least of which is the skills training that comes with working in the clinic. In addition, they have exposure to someone who was an elected official and who used his authority really well. He regularly gives talks to our students. Hopefully he has inspired some of them to consider elected office, and to aspire to do so as fair, ethical, compassionate leaders.”
As the clemency clinic was up and running, the Department of Justice announced a major initiative in 2014 as part of its Smart on Crime plan allowing certain federal inmates to apply for clemency. Among the criteria for applying, prisoners had to have served at least 10 years of their sentence, would likely have received a substantially lower sentence if convicted under current sentencing guidelines for the same offense, and be low-level, nonviolent offenders with no significant criminal history and good conduct while incarcerated.
Deputy Attorney General James Cole urged the legal community in the United States to rise to the challenge and help review the applications of 33,000 inmates who applied for relief to determine those with merit and to help file petitions. The American Bar Association, the ACLU, FAMM, and other groups came together and formed Clemency Project 2014, asking for help from attorneys and law schools nationwide.
CUA Law’s Clemency Project stepped up, taking on several petitions including Chester’s and McDonald’s.
“It’s been an amazing time to be a law student working in our clemency clinic and to be in Washington, D.C., during these historic justice reform efforts,” says third-year law student Bridget Byrne. “Working with our clients and being exposed to top policymakers on the topic has given me incredible perspective. We need a criminal justice system that allows for individual circumstances such as mental health issues and drug addiction in order to offer rehab and treatment when appropriate instead of jail time. As a student and as a future attorney, it’s exciting to be part of the discussion and the push for reform.”
In April of this year, the law school hosted “Federal Clemency: What’s Next?” The event featured talks by representatives from the Office of White House Counsel and U.S. Pardon Attorney Robert Zauzmer, as well as Ehrlich. Ogilvy says the partnership with Ehrlich and the reputation of the clinic played a role in the ability to put together a program featuring top legal experts and administration officials. Ogilvy worked with Mark Osler, law professor at St. Thomas University School of Law, to put the program together. Students and professors from a number of law schools attended. Among the topics discussed was what role law schools can continue to play in clemency efforts as the Obama Administration comes to an end.
Thousands of inmates with petitions still pending are hoping for clemency before the president leaves office, and they fear time is running out. Among them is Tim Tyler, whose petition was prepared by Janette Richardson while she was a law student in 2014 and 2015. He was sentenced in 1994 to life without parole for drug possession with intent to distribute. “He was a peaceful young man who followed the Grateful Dead around the country,” says Richardson. “He would have been out of jail by now under current sentencing guidelines. He’s a sweet individual who made some very poor choices, and had extenuating circumstances such as mental illness and past abuse by a family member. He deserves a second chance.”
Richardson keeps in touch with Tyler and his sister, who has advocated tirelessly on his behalf. “I keep imagining sitting down to dinner with them when Tim gets released.”
Byrne too holds out hope for one of her clemency clients. “I’m working with an individual who was convicted in 2003 in a drug conspiracy with 29 co-defendants. He is an immigrant with a fourth-grade education who entered the country legally and worked in Oregon in the logging industry to support his family,” explains Byrne. “When the company he worked for closed, he worked two jobs just to make ends meet. In early 2003, he moved to Atlanta where he heard the job market was good. He fell in with the wrong crowd and about three months after his arrival, he was swept up in a drug bust. Despite his minor role — he staffed a house where drugs were stored — he was charged as severely as the kingpins, and sentenced to over 28 years in prison. He has served nearly 13 years. We are his last shot at freedom. I take that very seriously.”
As Richardson and Byrne and all the other law students working in the Innocence Project Clinic and Clemency Project continue to hope for their clients’ release, Ogilvy says just knowing that these students won’t give up can give the inmates reason to keep going every day. “Our students treat them with respect and compassion, and offer them hope,” he says. “And to someone behind bars that can be just as powerful as the legal work being done on their behalf.”
The Innocence Project Clinic and the Clemency Project is among a number of clinics offered to students at the Columbus School of Law. Columbus Community Legal Services includes the Advocacy for Elderly Clinic, the Civil Practice Clinic, Families and the Law Clinic, and Low Income Taxpayer Clinic. The law school also sponsors the Criminal Prosecution Clinic, with placements in Montgomery and Prince George’s counties in Maryland, and the Virginia Criminal Defense Clinic. The CUA Law clinics are consistently rated in the top 25 for clinical training by U.S. News & World Report’s Best Grad Schools.
Are you interested in supporting the Innocence Project Clinic and Clemency Project? Visit law.cua/give and select “Innocence Project Clinic” under designations or call 202-319-5670.
It’s May and Cara Drinan, professor of law, has a dozen roses on her desk. “They were sent to me by an inmate,” she says. “I frequently receive letters, cards, even drawings from inmates, but flowers for Mother’s Day — that’s a first.”
The young man who sent them was incarcerated as a juvenile. He had read articles written by Drinan about Graham v. Florida. In that 2010 case, the Supreme Court ruled it is a violation of the Eighth Amendment to sentence juvenile offenders to life in prison without parole for non-homicide crimes. “His parents called and asked if I would talk to him. He wanted to know if he could benefit from Graham and other recent Supreme Court juvenile sentencing decisions,” says Drinan. “We spoke at length. I told him I could not represent him but I could act as a clearinghouse and I could help find him a pro bono attorney.
“After talking shop for a while, I asked if his living conditions were decent. His answer was ‘define decent.’ Clearly they were not good, but he said, ‘I keep telling myself that if I keep working on being a better person, God will change my circumstances.’ I was blown away by that. I wrote it down because I didn’t want to forget those words.”
Drinan, a leading advocate and expert on juvenile justice reform, is working on a book titled The War on Kids: How American Juvenile Justice Lost Its Way. The inspiration for the book, she says, is Terrence Graham of Graham v. Florida. At age 16, Graham, along with two other teens, attempted to rob a barbecue restaurant. They came through an unlocked back door and fled when they confronted the manager. Graham was sentenced to life without parole for his involvement in that case.
Drinan has met with Graham and continues regular correspondence with him. After the Supreme Court decision, he was resentenced and received 25 years. He’s now 29 and will be released at 39. “Even 25 years for a crime where no money was taken and no one was killed is extreme for a 16-year-old,” says Drinan. “What will he do when he gets out at 39? The skills he needs to survive in prison are exactly the opposite of the skills he needs to be a functioning member of society.
“Terrence’s story is like that of so many other juveniles sitting in prison. His mom was drug addicted when he was a young child. He lived amid poverty and abuse, and he was using drugs and alcohol himself as an early teen,” says Drinan, whose passion comes through when she talks about children sentenced as adults. “It’s so frustrating to think of a Florida judge throwing the book at him. Where was the state of Florida when he was four years old roaming the streets because his mom was smoking crack all the time?”
In writing the book, Drinan wants to raise awareness, and she wants readers to see Graham and the others she writes about as human beings.
“In the late 19th century the United States invented juvenile court based on a belief that children are malleable and if given reform tools, they can change. Other developed nations followed our lead,” says Drinan.
“Then in the 1980s, we abandoned that model, opting instead for transfer laws that gave prosecutors discretion to try juveniles in adult courts. The United Nations, the pope, and human rights commissions around the world have condemned how we treat children in the criminal justice system.
“By and large, most children who have been convicted of a crime have been tremendously victimized themselves — they’ve been exposed to violence, have an incarcerated parent, they live amid substance abuse and poverty. They have a name and a face and a story. And they want a second chance.”
Drinan says she’s hopeful when she looks at recent Supreme Court rulings on juveniles, which are trickling down to states. “The Supreme Court is acknowledging the brain science that tells us children are less culpable and more amenable to rehabilitation,” she says.
“It’s also really powerful to see bipartisan support on the Hill for criminal justice reform in general,” says Drinan, who was one of the original drafters of The Equal Justice Under Law Act of 2016, which enforces the Sixth Amendment Right to effective counsel.
“There is a growing realization that this is not who we are as a country. We don’t throw people away.”