Ferrell Scott was sentenced to life in prison for possession and conspiracy to distribute marijuana, a drug that’s now legal in many states and turning a handsome profit for the (primarily white) pot industry.
Scott, like many nonviolent drug offenders serving long sentences, is black. Without any chance at parole, despite an exemplary behavior record, he appealed to President Barack Obama for clemency. He found out that his bid had been denied when a friend emailed him about "bad news." Thinking something bad had happened to his 93-year-old mother, he called home. His daughter answered, crying, and told him the news.
"She cried like a baby and she was telling me that she didn’t know what she was supposed to do now. Couldn’t understand it," Scott said in a phone interview.
"Why haven’t I been contacted? I hope this is a mistake. My God I’m f——!" he wrote to Amy Povah, who runs CAN-DO, an advocacy group for prisoners incarcerated for nonviolent drug offenses.
It’s not a mistake. His name is on the list of clemency denials published Tuesday on the Justice Department’s website.
"I don’t know what I’m gonna do, what’s gonna happen," Scott said. "Well, I kind of know what’s going to happen. I’m going to be here for the rest of my life. I don’t know, man, I’m so depressed and shaken. I honestly thought I would get it." Scott then brought up a good point: Obama has admitted to using the drug that landed Scott in prison for life.
The list of prisoners denied clemency is headlined "COMMUTATIONS DENIED BY PRESIDENT BARACK OBAMA." But that language, which suggests that the president personally reviewed each prisoner’s petition and decided that it was not deserving of a shorter sentence, isn’t accurate.
Obama doesn’t look at each petition. Rather, he sees (at most) the advice of the Justice Department’s Office of the Pardon Attorney and then the White House counsel. The pardons office also often seeks input from the prosecutor’s office that led the initial trials. And while criminal-justice advocates have praised Obama for commuting the sentences of a record number of prisoners — more than 1,000 — some advocates say the decision-making process is too arbitrary and slow.
Mark Osler, a former federal prosecutor who worked in Detroit in the 1990s and is now a leading advocate for "sentencing and clemency policies rooted in principles of human dignity," said that the problem lies in the long and inefficient process: "It’s not like everyone sits down and decides together. It’s a bunch of different people in different offices, they all have different perspectives. Even a minor failure at any of those steps and everything grinds to a halt."
"The program is embedded in the DOJ, which is a building full of prosecutors," he said, and as a former prosecutor, Osler can tell you it’s not a profession that encourages self-reflection over past mistakes. The winding process can thwart even the best presidential intentions. "Obama clearly cared about the project of clemency, a fact that was reflected in the letter he sent to each clemency recipient," Osler wrote in "Fewer Hands, More Mercy: A Plea for a Better Federal Clemency System," a paper published in September. "Given that interest, one wonders why his administration was so slow to take up a significant number of clemency cases. The answer, very likely, lies in the layers of redundant bureaucracy."
Craig Cesal is another marijuana lifer who just found out his clemency was denied. "My crime was that my truck repair business in Chicago fixed trucks operated by a Florida long-haul trucking company whose drivers trafficked marijuana in the south," he wrote. He was convicted of conspiracy to distribute marijuana and, after a nightmarish plea process, the government pulled its offer. So he got life.
Cesal suspects that his clemency was denied because of a bogus motion filed in a Georgia court. Since presidential clemency is supposed to be a last resort, Cesal thinks that at some point in the process, someone saw there were ongoing court proceedings over his case and dismissed his application for clemency.
Other prisoners I interviewed previously were shocked when they found out they weren’t granted a commutation — as were the people advocating for them.
U.S. District Judge Mark W. Bennett called the sentence he was forced to give to Lori Kavitz for a nonviolent drug offense "idiotic" at the time, and has written to the Office of the Pardon Attorney begging for her release. Kavitz is still in prison.
As for Ferrell Scott, he may have been denied because he has been in prison for only eight years, and one of the guidelines for clemency under the program is that the person have served 10 years. But that is only a guideline — it doesn’t tie the president’s hands.
"We are devastated for Ferrell and his family and believe this is why President Obama must consider a plan that will reduce the life sentences of every nonviolent lifer to no more than 20 years, but in Ferrell’s case, a nonviolent pot case, we hope Obama will ask the pardon attorney for a reconsideration since it’s perfectly within his authority to do so," Povah, the advocacy group leader, wrote to me.
It can’t be overstated how much families and communities suffer when people are snatched away and put in prison for life. Scott’s son Skylar, who was so good at football that he got scholarship offers from dozens of colleges, kind of unraveled after his father’s sentence. "I started him playing football when he was 5 years old," Scott said. "When I got locked up in 2008, he was going into his senior year. He took it really hard. He had big plans, but all his plans included me being there. I was always in his life before.
"It’s hard on all my kids," Scott said, noting that his daughter Serrell "was so upset she couldn’t even talk to me on the phone."
Immediately after finding out the news, Scott wrote in a letter to Povah, "There are no words to describe how I’m feeling right now. I’m numb and there is a huge void in my chest. I wish I was f— dead right now but I have to talk to Skylar to make sure he’s alright."
Ganeva is a deputy editor who covers the drug war and criminal-justice policy at the Influence, a web magazine about drug policy and criminal justice.