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For Families Denied Clemency Under Obama, What Now?

Despite Trump’s contempt for the clemency initiative, families of the incarcerated will continue their campaigns.

William Underwood, center, surrounded by his four children on Father's Day 1997. (Photo courtesy of Ebony Underwood)

When her mother called, Miquelle West was in Michigan spending the holidays with a friend. The two were using Miquelle’s phone to watch a documentary about Miquelle’s quest for clemency for her mother, Michelle West, who had been given two life sentences for drug conspiracy and abetting a drug-related murder; the man who had committed the murder testified against her in exchange for full immunity. West, who has always maintained her innocence, had filed a petition for clemency, hoping that Obama would commute her sentence so that she could rejoin her daughter, who was 10 years old when she was arrested in 1993.

“She called and asked if I was sitting down,” Miquelle told Truthout. “She said she had bad news for me.” Hearing those words, Miquelle knew that her mother’s petition had been denied.

Miquelle West holds a photo of her mother, Michelle West, Los Angeles, 2016. (Photo: Victoria Law)Miquelle West holds a photo of her mother, Michelle West, Los Angeles, 2016. (Photo: Victoria Law)Once their call was over, Miquelle didn’t tell her friend what had happened. Instead, she simply handed the phone back to her friend, who continued to watch the documentary. “I needed to process it myself first,” she explained. “I didn’t feel like I could break down. I was holding it together and also trying to piece it together.”

As the impact of the denial sank in, Miquelle, who had spent the past year telling her mother’s story and advocating for clemency, wondered, “Did I not put in enough work? Should I have done something different?”

Thousands of Clemency Denials

In the last weeks of Obama’s presidency, thousands of people in federal prisons — and thousands of family members outside of prison — had similar questions as the Office of the Pardon Attorney released lengthy lists of clemency denials. While Obama ultimately commuted the prison sentences of 1,715 people, including Chelsea Manning and Oscar Lopez Rivera, he denied 18,749 clemency applications and closed another 4,250 without taking action. This adds up to 22,999 people whose hopes are now on hold.

Amy Povah, the founder of CAN-Do Justice Through Clemency, has been advocating for clemency for Michelle West and many others in federal prison, particularly women serving draconian drug war sentences. A large part of the problem, said Povah, who was granted clemency by Clinton, lies in the fact that the Department of Justice (DOJ) has complete control over the Office of the Pardon Attorney, a fact that former Pardon Attorney Deborah Leff , who resigned in January 2016, after less than two years on the job, noted in her resignation letter. “I have reached this decision because I am unable to carry out my job effectively, despite my intense efforts to do so,” wrote Leff in her open letter to then-Deputy Attorney General Sally Q. Yates.

“If you read Leff’s resignation letter, it’s obvious that she resigned due to frustration that petitions she was giving favorable recommendations for were never making it to the White House,” noted Povah. “Plus, the Department of Justice severed her ability to communicate with the White House, which is a complete departure from protocol. What is DOJ afraid of?”

On January 6, 2017, Michelle West was one of 1,161 hopefuls who were denied commutation. That morning, she was called into the office of her prison counselor and handed a form letter from the Office of the Pardon Attorney. “The application of Michelle West for commutation of sentence was carefully considered in this Department and the White House, and the decision was reached that favorable action is not warranted,” the letter stated.

Reasons for the decision are confidential and not subject to freedom of information requests, so the Wests most likely will never know why Michelle’s petition was denied. They only know that there is no appealing the decision and that West must wait a full year before submitting another application.

Even if she does submit another application, West most likely faces an even harder battle under the new administration. During his campaign, Trump slammed Obama’s clemency initiative, calling recipients “bad dudes.” Attorney General Jeff Sessions has similarly denounced the initiative, stating that “low-level, non-violent offenders … do not exist in the federal system” and calling it a “dangerous game to advance [Obama’s] political ideology.”

Under the current clemency process, the Deputy Attorney General, who is appointed by the president, makes the final determination on any application that is sent to the White House.

“My Father Met All the Criteria”

William Underwood never received a letter informing him that his clemency application had been denied. Instead, his daughter Ebony received a call from her father’s attorney informing her that her father’s name was among the 600 denials issued on November 29, five days after Thanksgiving. But Underwood, now in his 29th year of a life sentence for conducting or participating in a racketeering enterprise (RICO), drug conspiracy and a continuing criminal enterprise, has yet to receive his form letter.

In 1988, 33-year-old Underwood was a prominent music manager and promoter, working with musicians like Keith Sweat, Johnny Gill, MC Hammer, Ray Charles and Michael Jackson. He had four children, two of whom — Ebony and Anthony — were in high school; the others were 12 and five years old. He raised his children around music. Both Ebony and Anthony remember hanging out in the offices of MCA Records with musicians who later became superstars, and going to concerts.

“I remember playing ping pong and pool with Madonna before she blew up,” recalled Anthony. When the Jacksons played the Meadowlands during their 1984 Victory Tour, their father not only procured tickets but also rented two passenger vans to bring family and friends to the show.

Three days before William Underwood’s 34th birthday, federal agents arrested him. Anthony, who had turned 18 the previous day, was shocked when he came home from school and found police and federal authorities in their home.

“They had already searched the house,” he told Truthout. “They really destroyed our house.” The agents had ripped the shelves and the walls and punched holes in the closets. But no one told him why the authorities had ransacked the house or taken his father away. It was not until he saw the papers the next morning that he learned that his father had, as a teen dad in 1970s Harlem, been involved in selling drugs. By 1988, Underwood’s drug-dealing days were long over, a fact that the FBI noted two years earlier when it closed its investigation on him “due to lack of activity.” But others, facing lengthy prison sentences for drugs, named Underwood as part of a drug conspiracy, a practice known in New York City as “testalying.” Under the Anti-Drug Abuse Act of 1988, prosecutors need not prove that someone ever trafficked, sold or even possessed drugs to convict a person for conspiracy; they simply need testimony stating that the person did so.

William Underwood took his case to trial. He lost and, in 1990, was sentenced to a concurrent 20 years plus a life sentence. He has since completed the 20-year sentence, but the life sentence looms over him and his family. His appeals have been denied and, despite recent changes in drug sentencing laws, none apply retroactively to his case.

During his 29 years behind bars, Underwood’s children have grown up and started families of their own. He has been incarcerated in at least eight different federal prisons across the country, making visits difficult and expensive. Nevertheless, he, his children and his three grandchildren have managed to maintain a strong bond.

“It’s all him,” reflected Ebony. She says that her father calls consistently, sends emails via the prison’s e-messaging system, and never forgets to send birthday and holiday cards. When his children walked across the stage to Pomp and Circumstance to get their diplomas, he sent them graduation cards. When they began having children of their own, he sent Mother’s Day and Father’s Day cards. It’s something that he’s kept up for the past 29 years, a feat that most people on the outside can’t keep up. “I don’t always send a birthday card,” admits Ebony. “I don’t always send a holiday card. But he always sends a card.”

When Obama announced his clemency initiative, the family began to hope that their father would finally be able to come home. Underwood, then 61, had already served 27 years in prison under a sentence that would have been much more lenient had he gone to trial today.

For the Underwood children, the clemency initiative pushed them to begin speaking out about their father’s case, breaking a decades-long silence and uncovering pain that had long been buried.

“As a child of incarcerated parents, you create a wall of resilience just to operate,” explained Ebony. “In speaking out, I realized how much pain I had buried. I had no idea I had all this stuff festering inside.”

Despite the pain, she and Anthony jumped into advocating for their father’s release. They started a petition, garnering nearly 72,000 signatures. Ebony, a filmmaker, created the documentary and campaign #HopeforFathersDay to show the effects of harsh sentencing on children of incarcerated parents, her (and her siblings’) efforts to sustain a relationship with their father, and their advocacy to free him. Anthony attended the Justice Roundtable in Washington, DC. He also started Celebrities for Justice, calling upon over 100 musicians and entertainers who had worked with his father to support efforts to bring home his father and others sentenced under draconian drug laws. Both traveled to Washington, DC, to draw awareness to their father’s imprisonment and his bid for clemency. In March 2016 they were invited to the White House for an event entitled Life After Clemency about the challenges facing clemency recipients as they try to rebuild their lives. They even got the support of Sen. Cory Booker, who met Underwood during his August 2016 visit to the federal prison in Fairton, New Jersey.

When they learned about their father’s denial, both siblings were shocked. “My father met all the criteria,” noted Ebony. “We had so much support from so many different people. We went to the White House several times. And then, to not be heard? It’s really heartbreaking.”

After 40 Years in Prison, Leonard Peltier Still Denied Clemency

Shortly before leaving office, Obama commuted the sentences of political prisoners Oscar Lopez Rivera and Chelsea Manning. But the following day, he denied clemency to Leonard Peltier, a member of the American Indian Movement (AIM) sentenced to two consecutive life sentences for allegedly shooting FBI agents on the Pine Ridge Indian Reservation in 1975 — charges that he has always denied. Now 72, Peltier has suffered from heart problems, a stroke that has left him partially blind in one eye, and diabetes. Even his prosecuting attorney, James Reynold, urged Obama to commute Peltier’s sentence.

But opposition to clemency for the aging AIM activist, whose trial and conviction have been fraught with controversy, has been fierce. When Peltier applied for clemency during Clinton’s presidency, nearly 500 FBI agents and their families protested outside the White House. Clinton, who granted clemency to political prisoner Susan Rosenberg and 16 members of the FALN (Fuerzas Armadas de Liberación Nacional or Armed Forces of National Liberation, a Puerto Rican independence group), took no action on Peltier’s application.

Peter Clark, the former codirector of the International Leonard Peltier Defense Committee, visited Peltier at the federal prison in Coleman, Florida, days after the denial. “He was understandably upset and disappointed in President Obama,” he told Truthout. “We don’t know why Obama denied him clemency this time, but we know there was FBI pressure.”

Unlike William Underwood and Michelle West, who were convicted in 1990 and 1993, Leonard Peltier has a shot at parole. In the federal prison system, parole was abolished in the late 1980s. However, the parole ban was not retroactive, so people convicted before November 1, 1987, can still apply for parole. Peltier, who was convicted in 1977, had his first full parole hearing in 2009; he was denied. His next full parole hearing will not be until 2024, but the Parole Commission is legally required to conduct interim hearings every 18 to 24 months. At these hearings, the Commission considers any factors that may warrant modifying the person’s release date.

While they’re not ruling out future clemency applications or compassionate release, given Peltier’s age and declining health, neither Clark nor Paulette D’Auteuil, one of the Defense Committee’s new directors, is overly hopeful about those options. Given Trump’s executive order to prevent violence against law enforcement and establish new mandatory minimum sentences for existing crimes of violence against law enforcement, clemency seems even less attainable over the next four years. “We’re looking into new legal strategies and a broader international perspective,” D’Auteuil told Truthout.

“It’s Not Going to Crush Us. We’re Going Around It.”

Despite the denials, no one is giving up hope. Ebony said her father’s denial “is another boulder. It’s not going to crush us. We’re going around it.” Her siblings and she are not giving up on their father’s freedom. They are heartened by the support of people from the music industry, even after her father’s 29-year absence. “I was floored that so many people remembered,” she said. Understanding that the pain of her father’s imprisonment is currently shared by 2.7 million children, Ebony is also creating We Got Us Now, a digital hub with resources for children of incarcerated parents. It’s a resource that she and her siblings never had while growing up and one that she hopes will lead to greater change in policies around incarcerated parents.

Miquelle West also remains resolute in seeking her mother’s release. “I’m going to continue advocating,” she told Truthout. “I’m not going to change anything.” She and Ebony are both members of the National Council for Incarcerated and Formerly Incarcerated Women and Girls, and often speak at public events about their parents’ incarceration and their fight for freedom.

Miquelle noted that, under Obama, over 1,700 people were granted clemency and were able to return home early. “That’s a lot,” she reflected. “We do know it’s possible. We have to continue to keep our faith, to keep our strength. If we lose hope, then we’re losing out.”

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