Update, Dec. 19: President Obama ordered today that Clarence Aaron be released in April 2014. Seven others convicted of drug offenses also had their sentences shortened. Read our new story.
Clarence Aaron seemed to be especially deserving of a federal commutation, an immediate release from prison granted by the president of the United States.
At 24, he was sentenced to three life terms for his role in a cocaine deal, even though it was his first criminal offense and he was not the buyer, seller or supplier of the drugs. Of all those convicted in the case, Aaron received the stiffest sentence.
And, ultimately, the prosecutor's office and the sentencing judge supported an immediate commutation for Aaron.
Yet the George W. Bush administration, in its final year in office, never knew the full extent of their views, which were compiled in a confidential Justice Department review, and Aaron's application was denied, according to an examination of the case by ProPublica based on interviews with participants and internal records.
That Aaron joined the long line of rejected applicants illuminates the extraordinary, secretive powers wielded by the Office of the Pardon Attorney, the branch of the Justice Department that reviews commutation requests. Records show that Ronald Rodgers, the current pardon attorney, left out critical information in recommending that the White House deny Aaron's application. In a confidential note to a White House lawyer, Rodgers failed to accurately convey the views of the prosecutor and judge and did not disclose that they had advocated for Aaron's immediate commutation.
Kenneth Lee, the lawyer who shepherded Aaron's case on behalf of the White House, was aghast when ProPublica provided him with original statements from the judge and prosecutor to compare with Rodgers's summary. Had he read the statements at the time, Lee said, he would have urged Bush to commute Aaron's sentence.
"This case was such a close call," Lee said. "We had been asking the pardons office to reconsider it all year. We made clear we were interested in this case."
The work of the pardon office has come under heightened scrutiny since December, when ProPublica and The Washington Post published stories showing that, from 2001 to 2008, white applicants were nearly four times as likely to receive presidential pardons as minorities. The pardon office, which recommends applicants to the White House, is reviewing a new application from Aaron. Without a commutation, he will die in prison.
Through the Justice Department, Rodgers declined repeated requests for an interview, and the department itself declined to comment on any aspect of the Aaron case, citing "privacy and privilege concerns."
"Every clemency request — whether it be for commutation of sentence or for pardon — is considered carefully and thoroughly by the Office of the Pardon Attorney," spokeswoman Laura Sweeney said.
Last week, the American Constitution Society sponsored a panel discussion on Capitol Hill devoted to the pardon issue. President Obama's former White House counsel Gregory B. Craig said the president could issue an executive order eliminating the pardon office.
"We cannot improve or strengthen the exercise of this power without taking it out of the Department of Justice," Craig said.
He advocated for a bipartisan review panel that would report directly to the president.
The number of pardons awarded has declined sharply in the past 30 years, as have commutations. Obama has rejected nearly 3,800 commutation requests from prisoners. He has approved one. Bush commuted the sentences of 11 people, turning down nearly 7,500 applicants.
A former pardon office lawyer said some applicants have been turned down "en masse" with little, if any, review, a claim the Justice Department disputes.
Aaron, now 43 and in his 19th year behind bars, had not known how close to success his request had come, or what had barred his way, until he was contacted by ProPublica. Still, he said, it gave him hope.
"I didn't know I had that type of support" from the judge and prosecutor, he said in a phone interview from the Alabama correctional facility where he is held. "When you do the right things each day, there really are people out there watching, and for those who still haven't given me their support, I will keep working for them, too."
A High Hurdle
Aaron stumbled into the "war on drugs" near its peak, in 1992. Then a linebacker at Southern University in Baton Rouge, he introduced a classmate whose brother was a drug supplier to a cocaine dealer he knew from high school in Mobile, Ala.
Aaron was present for the sale of nine kilograms of cocaine and the conversion of one kilogram to crack, according to court records. He was paid $1,500 by the dealer.
After federal authorities busted the ring and the case went to trial, Aaron claimed his role was so limited that he knew almost nothing about the deal. But he refused to testify against friends, and others fingered Aaron as a major player and testified against him in exchange for reduced sentences.
Though it was Aaron's first criminal offense, he received the stiffest sentence of anyone involved in the conspiracy. Only Aaron and the drug supplier, who is scheduled to be released in 2014, remain behind bars.
Aaron's case gained national attention in 1999 when he appeared in "Snitch," a PBS "Frontline" documentary about prisoners serving long sentences after refusing to turn informant. The film helped him garner support in Congress and from civil rights organizations.
In January 2001, Aaron submitted an application for a commutation. He faced a high hurdle.
Between 1980 and 2010, requests for commutations rose sharply, reflecting lengthier sentences and the elimination of paroles for federal inmates, while the number of successful applicants plummeted.
"The reason that some people should have their sentences commuted is because they have been over-sentenced," said Mark Osler, a former federal prosecutor who runs the country's only law school clinic for commutations.
Under Ronald Reagan and Bill Clinton, both two-term presidents, one applicant in 100 was successful. Under Bush, approvals fell to barely better than one in 1,000. So far, Obama has commuted the sentences of fewer than one in 5,000. The only person freed by Obama had support from one of the president’s closest congressional allies, Illinois Democratic Sen. Dick Durbin.
Aaron's high profile boosted his chances, as did his track records as a model inmate. He wrote in an amended petition that he was deeply ashamed of his actions and felt "terrible remorse. I also regret that I further compounded my mistake by not admitting to my participation at trial."
But his petition had a critical weakness.
U.S. Attorney David York, the top prosecutor for the Southern District of Alabama, opposed reducing Aaron's sentence.
In 2004, then-Pardon Attorney Roger Adams recommended the White House deny Aaron's request. Adams said in a recent interview that he wrote the recommendation with some ambivalence.
"Anyone who looks at Clarence Aaron will see a really, really tough case of a young guy in prison for the rest of his life," Adams said.
His report went to the White House, where it sat for three years among a growing stack of recommendations.
A Cursory Review
In 2008, Rodgers, a former military judge and federal prosecutor, took over the pardon office and changed the way it handled commutation applications.
Under Rodgers's predecessors, staff lawyers reviewed each case, gathered pre-sentence and Bureau of Prisons progress reports and wrote recommendations based on their research.
"Some reports were shorter, just a paragraph or two," said Margaret Love, who served as a pardon attorney from 1990 to 1997. "But there was always enough of a report that you could get an idea of what the basic facts and issues were."
For the first 2 1/2 years under Rodgers, however, most petitions were handled by paralegals, not staff attorneys, and recommended for denial in batches, said Samuel Morison, a lawyer who spent more than a decade in the pardons office before leaving in 2010 to work for the Defense Department. He said Rodgers instituted the change when there was a significant backlog.
"The office types up a list of names, along with basic sentencing and offense information for each prisoner, and sends the list to the White House with a note that says the attached cases are meritless and should be denied," Morison said.
At the end of 2010, Rodgers reverted to the old system. He now assigns a lawyer, along with paralegals, to review commutation requests, the Justice Department said.
Still, in the past four years, applications from more than 7,000 prisoners have been denied — 22 times as many as were rejected during Reagan's eight-year presidency.
The Justice Department insists the accelerated process did not mean applicants got short shrift.
Rodgers "personally reviewed every application for commutation of sentence before recommending their disposition," a Justice Department official said.
The dwindling numbers have caught the eye of Supreme Court Justice Anthony M. Kennedy, who has complained publicly about the lack of commutations. "A people confident in its laws and institutions should not be ashamed of mercy," Kennedy said in a 2003 speech to the American Bar Association. He urged members to tell president and governors, "this young man has not served his full sentence but he has served long enough. Give him what only you can give him. Give him another chance. Give him a priceless gift. Give him liberty."
But applicants who most need the pardon office’s support have increasingly hit a wall, advocates say.
"We have never found a political opposition to the idea or concept of commutations," said Mary Price, vice president of Families Against Mandatory Minimums, a group that pushes for judicial discretion in sentencing and, in certain cases, shortening of terms. "The chief impediment lies in the pardon attorney’s office."
A Nine-Year Odyssey
The White House sent Aaron's application back to the pardon office for reconsideration in early 2008 as part of a larger push to find clemency candidates.
According to former White House counsel Fred Fielding, his staff had become frustrated by the lack of positive recommendations from the pardon office. In Bush's final year in office, lawyers began searching through denial recommendations for promising cases and found Aaron.
This time, key elements shifted in Aaron's favor. Unlike her predecessor, Deborah J. Rhodes, the new U.S. attorney for the Southern District of Alabama, supported the petition.
"I have reviewed various documents submitted by Clarence Aaron in support of his petition for commutation of sentence and agree that Aaron should receive a commutation of his life sentence," her November 2008 memo to Rodgers began.
Rhodes suggested Aaron's triple life sentence be commuted to the equivalent of a 25-year sentence, with credit for good behavior. Under this calculation, Aaron would be released in 2014.
U.S. District Court Judge Charles Butler Jr., who had sentenced Aaron, changed his earlier stance of no position, opting this time to support commutation.
"Looking through the prism of hindsight, and considering the many factors argued by the defendant that were not present at the time of his initial sentencing, one can argue that a less harsh sentence might have been more equitable," he wrote in response to a motion filed by Aaron's attorneys.
In a phone interview with the pardons office on Dec. 2, 2008, Butler told Morison, the lawyer in the office, that Aaron "should be granted relief" by the president immediately.
Morison sent an e-mail to Rodgers sharing his transcribed notes from the call with Butler. Morison asked Rodgers if he should update the draft recommendation on file for Aaron's release in light of the views expressed by Rhodes and the judge. Rodgers responded minutes later: "Thanks Sam. I'll take it from here."
Instead, Rodgers offered no new recommendation to the White House and did not revise the old one. He did not pass on years of favorable prisoner reports describing Aaron's successful rehabilitation. He also made no mention of an affidavit Aaron filed with the pardons office in 2007 in which he expressed further remorse and asked "for a second chance to be a productive citizen."
Rodgers resubmitted the 2004 denial recommendation, unchanged, to the White House.
In an email the next day to Kenneth Lee, associate White House counsel, Rodgers did not disclose that Rhodes and the sentencing judge now agreed that Aaron should receive an immediate commutation. He told Lee that Rhodes suggested Aaron's sentence should be commuted to a term of 25 years "at some point." Rodgers also said that Rhodes believed "Aaron's commutation request is about 10 years premature."
No such language is in Rhodes's memo.
All Rodgers told the White House about Butler's views was that the judge had "no objection to commuting the sentence presently."
Rhodes would not comment on Rodgers's handling of the petition except to reiterate that she had recommended an immediate commutation for Aaron.
"I reviewed the case myself and thought it was a good one," she said.
Butler declined to comment for this story.
The Justice Department would not answer questions about the way Rodgers characterized the views of Rhodes and Butler, or how Rodgers had arrived at his recommendation on Aaron.
Lee, the former associate White House counsel, said Rodgers had presented the views of Rhodes and Butler "in the least favorable light to the applicant."
Referencing ProPublica's findings on presidential pardons — that whites were nearly four times as likely to be pardoned than minorities — he also expressed concern that the office's approach to the case could have been affected by race. Aaron is African American.
"Had we known before about a potential subconscious bias in the office," Lee said, "we would have liked to look at the actual letters in the Aaron case rather than rely on the pardon attorney's summary."
In response to the ProPublica findings, the Justice Department said it took the concerns seriously and was reviewing the statistical analysis in the article.
On Dec. 23, 2008, the day Bush denied Aaron's petition, he commuted the term of another man, Reed Prior, who was serving a life sentence for his fourth drug offense.
Prior was a major dealer of methamphetamine at the time of his conviction in 1996, according to Justice Department records.
When he was busted, police found 869 grams of meth plus nearly $18,000 in cash. He was convicted for possession, with intend to distribute.
Prior refused to cooperate with prosecutors in the Southern District of Iowa. At 46, he received a mandatory life sentence.
Prosecutors in Des Moines vehemently opposed Prior's commutation request.
According to a copy of the recommendation sent from the pardon attorney to the White House, U.S. Attorney Matthew G. Whitaker wrote that a commutation for Prior "would have a detrimental impact on law enforcement efforts in this community as (Prior) would essentially be rewarded despite his failure to provide full and truthful information about his criminal activity and his associates."
Prior's initial application for commutation was denied in December 2007. A year later, he reapplied.
This time, he had the support of influential family friends, senior judges and the wife of Iowa's then-governor. In addition to petitioning through the pardon office, Prior's lawyer met with Fred Fielding, the White House counsel.
A week later, Prior was ordered freed after 14 years of incarceration.
"Going through the pardons office didn't work," said Robert Holliday, the Des Moines lawyer who handled Prior's case for free.
"Going directly to the White House did."
Prior, who is writing a memoir, compared his fortune to that of winning a lottery. "When I see those megamillions ticket-buyers, I think about myself sometimes." Of Aaron, Prior said he hoped President Obama would commute his sentence. "I watched 'Snitch' while in prison and remember his case."
Lee said the White House was persuaded that Prior deserved to be released.
"There was evidence that he had been rehabilitated and adjusted well during his prison sentence," Lee said. "He seemed to have shown remorse for his actions and was very active in his prison community, helping others out and had been a changed man."
Aaron remains in a federal penitentiary in Talladega, Ala.
He spent the first dozen years of his sentence at maximum security prisons in Florida and Georgia, where he completed a two-year religious-studies correspondence course through Emory University. He also took courses in microeconomics, Spanish, photography and behavioral development.
In 2007, he was transferred to the medium-security facility in Talladega, where he helped bring a new textiles factory onlineand works as a clerk, assisting the factory accountant.
"A lot of people think I'm crazy, to do self-help programs and stay out of trouble with a sentence like mine," Aaron said. But "from the first day I walked into the federal prison system, I just continued to better myself and educate myself."
He's acutely aware of all the milestones he has missed - family birthdays, his college graduation. In 2005, his younger sister Stephaine died suddenly during radiation treatment for skin cancer. Aaron said he calls her daughters every week.
Bush formally denied Aaron's request on Dec. 23, 2008. Aaron learned of the decision three weeks later when Rodgers sent formal notification to his attorney.
In April 2010, Aaron submitted a new petition for commutation. It is pending.
"If I was to be granted that commutation," Aaron said, "the president who backed me wouldn't regret it, because I would work hard every day to prove my worthiness."