Reflecting on mass incarceration in the United States, which he has experienced firsthand during his time in prison at the Federal Correctional Institution of Loretto, Pennsylvania, CIA whistleblower John Kiriakou advocates for prison sentencing reform in his latest letter from jail.

Firedoglake has been publishing “Letters from Loretto” by Kiriakou, who was the first member of the CIA to publicly acknowledge that torture was official US policy under the George W. Bush administration. He was convicted in October 2012 after he pled guilty to violating the Intelligence Identities Protection Act (IIPA) when he confirmed the name of an officer involved in the CIA’s Rendition, Detention and Interrogation (RDI) program to a reporter. He was sentenced in January 2013, and reported to prison on February 28, 2013.

Kiriakou describes the problem of overcrowding at Loretto, which is a direct symptom of mass incarceration in US prisons. He then adds, “In prison, from the time you wake up in the morning until the time you go to sleep at night, most people want to talk to you about their cases.”

“At first it’s fascinating,” Kiriakou continues. “After awhile, it’s tedious. Later, it becomes a real pain. But the truth is that many of them have been wronged, whether by a racist system, by incompetent attorneys, by overzealous prosecutors or by judges whose hands are tied because Congress has mandated long minimum sentences, especially for drug crimes.”

These “wrongs” have inspired Kiriakou to speak up for other prisoners. In fact, in the times that Firedoglake editor-in-chief Jane Hamsher and I have visited Kiriakou, there has not been a time where he has not brought up injustices that led to people becoming incarcerated.

Kiriakou highlights reforms being considered by the government. There is the Recidivism Reduction and Public Safety Act, which passed through the Senate Judiciary Committee in March. There is also the Smarter Sentencing Act, which Firedoglake has encouraged readers to support.

If this legislation were to pass, Kiriakou points out it would “allow for widely expanded good time credits, diversionary programs and educational opportunities.”

“For many progressives and libertarians, punitive over-punishment calls out for redress. For many conservatives, it simply costs too much to incarcerate so many people,” he says, referring to the incredible bipartisan support it currently
enjoys.

Additionally, Kiriakou outlines the positive impact, which the US Sentencing Commission’s vote to lower drug sentencing guidelines by two levels for all drug offenses could have.

“Eric,” who has no criminal history but made the decision to challenge prosecutors and go to trial, is charged with “conspiracy to manufacture and distribute one kilo of meth.” According to “Eric,” he “never made meth, sold meth or used meth, although some of his friends did. He pleads “not guilty” because he believes in the justice system and, when he gets to trial, he is found “guilty” because all the government had to do to prove “conspiracy” was show that he knew other people involved in making meth.

Now, this opens “Eric” up to something called “enhancements,” where his sentence can easily be increased. Kiriakou explains:

…Eric gets an extra two “points,” or levels, for “failure to accept responsibility. (He argued his innocence, after all.) He gets another two points for “obstruction of justice” because he wouldn’t testify against his co-defendants. Although he’s never been prosecuted for a serious crime before, he did have a DUI in college. That’s an extra four points for “criminal history,” even though it doesn’t raise his Criminal History Category. No federal taxes were paid on the proceeds of the meth so that’s another two points. At sentencing, instead of the 57-71 months that he might have gotten (or the 36-48 months he was probably offered as part of a plea deal) Eric goes from a level 25 to a level 35, which means 168-210 months. He’ll do around 15 years. This happens every day in America, where judges have no concept of time and prosecutors simply don’t care…

The Sentencing Commission has not decided on retroactivity and will not until November. If they did grant retroactivity, a person like “Eric” might have their sentence greatly reduced.

Kiriakou details the cases of two inmates, which he has come to learn about while imprisoned at Loretto. They are both examples of the cruel “War on Drugs” being perpetrated on Americans each and every day.

He concludes by suggesting that President Barack Obama can “do the right thing.” He can “announce his support for retroactivity of the Sentencing Commission’s two-level reduction” and “grant commutations and pardons.” Obama can also “sign the bipartisan legislation for reform that Congress sends him.” That can be his “legacy.”

BEGIN LETTER

Hello again from the Federal Correctional Institution at Loretto, PA. We’re grossly overcrowded at Loretto, like just about every other prison in America. Rooms for two now house four. Rooms for four now house six or eight. And rooms formerly used for recreation now house 14-20, all on steel-slab bunk beds. A staff member told me recently that when he began working at Loretto in the 1990s there were 645 prisoners. We now have over 1400. Besides making disease control nearly impossible, overcrowding leads to short tempers and increases in violence—never a good thing.

(Prison Legal News magazine reported this month that federal prisons as a whole in 2011 were 40% overcrowded. They will be 45% overcrowded by 2018. Meanwhile, the Supreme Court last year ordered the State of California, the prisons of which are 41% overcrowded, to begin releasing prisoners. There was no such order for federal prisons.)

The United States has five percent of the world’s population and 25% of the world’s prison population. The US, on a per capita basis, has more prison inmates than Russia, China and Iran. This inexcusable fact is a result of our government’s ill-conceived and ill-advised “War on Drugs” and of Congress’ propensity in election years to prove that it is “tough on crime.” Indeed, according to the Congressional Research Service, Congress has created 50 new CRIMES per year over the past 10 years. Harvard School professor Harvey Silverglate argues in his book “Three Felonies a Day” that the US is so overlegislated and daily life is so over-criminalized that the average American going about his normal business on the average day commits three felonies. Every day! It’s no wonder that the Bureau of Prisons accounts for a quarter of the Justice Department’s budget. It’s no wonder that, according to the American Civil Liberties Union, there are 3,278 prisoners in the US serving sentences of life without parole for non-violent drug and property crimes.

In prison, from the time you wake up in the morning until the time you go to sleep at night, most people want to talk to you about their cases. At first it’s fascinating. After awhile, it’s tedious. Later it becomes a real pain. But the truth is that many of them have been wronged, whether by a racist system, by incompetent attorneys, by overzealous prosecutors or by judges whose hands are tied because Congress has mandated long minimum sentences, especially for drug crimes.

This year, though, some members of Congress and some Justice Department officials have initiated at least the beginning of change. On March 6, the Senate Judiciary Committee pass the Recidivism Reduction and Public Safety Act (S. 1675), sponsored by Senators Sheldon Whitehouse (D-RI) and John Cornyn (R-TX). The bill will next go to the Senate floor. Majority Leader Harry Reid (D-NV) said recently that the Senate also will take up the Smarter Sentencing Act this spring. That bill has the support of dozens of advocacy and civil rights groups ranging from the Heritage Foundation to the ACLU, former prosecutors, police and prison guard organizations, victim advocates, prominent conservatives and faith groups. The bills would allow for widely expanded good time credits, diversionary programs and educational opportunities. For many progressives and libertarians, punitive overpunishment calls out for redress. For many conservatives, it simply costs too much to incarcerate so many people.

More importantly, on April 10, the US Sentencing Commission voted unanimously to lower the drug sentencing guidelines by two levels all drug offenses. (Career offenders and those who used firearms or violence in their crimes get no relief.) Critically, the Commission will decide on retroactivity for the reduction by the end of November.

Here’s what this means (and pleased see the attached chart). Let’s say that “Eric” is involved in a methamphetamine case along with a bunch of other people. The charge is conspiracy to manufacture and distribute one kilo of meth. Let’s also say that Eric is a first time non violent offender. He has no gun in his case. Because he has no criminal history, Eric falls under Criminal History Category I on the chart. Prosecutors prefer not to go to trial. Indeed 98.2% of all federal inmates take a plea, rather than go to a trial, according to Pro Publica. If Eric takes a plea, his federal guideline would put him at a level 25 – 57-71 months. But Eric says he’s innocent. He never made meth, sold meth or used meth, although some of his friends did. He pleads “not guilty,” reasoning that a jury will see the truth. He goes to trial.

Unfortunately, when the government claims a “conspiracy,” it pretty much has to prove only that the people involved knew each other, not that they personally committed the crimes charged in the conspiracy. Eric is found guilty. When he goes for sentencing, he gets a level 25. But he also now faces “enhancements.” Enhancements are additions to a sentence that are given for a variety of reasons. Eric gets an extra two “points,” or levels, for “failure to accept responsibility. (He argued his innocence, after all.) He gets another two points for “obstruction of justice” because he wouldn’t testify against his co-defendants. Although he’s never been prosecuted for a serious crime before, he did have a DUI in college. That’s an extra four points for “criminal history,” even though it doesn’t raise his Criminal History Category. No federal taxes were paid on the proceeds of the meth so that’s another two points. At sentencing, instead of the 57-71 months that he might have gotten (or the 36-48 months he was probably offered as part of a plea deal) Eric goes from a level 25 to a level 35, which means 168-210 months. He’ll do around 15 years. This happens every day in America, where judges have no concept of time and prosecutors simply don’t care.

If the Sentencing Commission’s two level reduction is made retroactive, thousands of current prisoners will get relief for the first time since Congress outlawed parole in the 1980s. In addition, the Justice Department has begun a new clemency program that would allow drug offenders to apply for a pardon or commutation of their sentences. Prisoners would have to meet six criteria, which would serve to weed out the bad apples and keep the public safe.

Inmates:

1. Would likely have received a substantially lower sentence if convicted of the same offense today;

2. Must be non-violent, low-level offenders without any significant ties to large-scale criminal organizations, gangs or cartels;

3. Must have served at least 10 years of their sentence;

4. Must not have any significant criminal history;

5. Must have demonstrated good conduct in prison; and

6. Must have no history of violence before or during imprisonment

Realistically, pardons and commutations probably won’t happen. As President Obama has issued only 11 pardons and 40 commutations, the fewest of any president in American history, the two-level reduction is probably the only relief most prisoners will have to look forward to unless Congress passes a sentencing reform bill.

These are not nameless, faceless people we’re talking about. There is a human face to this. We’re talking about people made a mistake, usually in their youth, and are paying for it with their lives. Their families are also victims. Rather than being in prison, where each prisoner costs the American taxpayers $29,291.25 per year, they could be out working, paying taxes, paying child support and contributing to society. Remember, career criminals are exempt from this plan. Only those who deserve it would get relief.

Two friends of mine are waiting anxiously to see if the two-level reduction will be made retroactive and if the clemency program moves forward. Mark and Clint are, I believe, the poster children for what is wrong with current system.

Mark is a 45-year-old Italian-American from the south side of Philadelphia. He grew up there and in the working class suburbs in New Jersey. A few years after graduating from high school, his mother’s boyfriend introduced him to the world of meth. The boyfriend taught Mark, who has never used drugs, how to manufacture high-quality meth, which the boyfriend then sold to an organized crime gang in Philadelphia. After six months, Mark decided that this wasn’t the life for him; he was the only person in an eight-man operation to leave the conspiracy. He then opened a care detailing business. Six months after leaving the meth business, DEA, FBI and ATF agents arrested the conspirators—but not the boyfriend or Mark—and charged them with multiple counts of conspiring to manufacture and distribute meth. As the conspirators negotiated plea deals, they began informing on each other, and on Mark. He was arrested and charged a year later.

The boyfriend hired an attorney for Mark with the proviso that he not testify against any of his codefendants. If he decided to testify, the boyfriend said, he was on his own. Besides, the attorney told him, “I don’t represent rats.” All of the co-conspirators received sentences of five years. They all testified against Mark. But his attorney never told him that the government had offered him a non-cooperation deal of 10 years. Twice. Against his better judgment, Mark went to trial. Not surprisingly, he was quickly found guilty. With enhancements, for failure to accept responsibility, having a “leadership” role as the rats had testified, and un upgrade for the total amount of meth produced, Mark received three life sentences without parole. On appeal, in which he argued that he had received ineffective assistance of counsel, his sentence was reduced to 30 years. Mark has finished 13 years of his sentence. With good time credit, he has 13 years to go. He’ll be in his late 50s when he’s released.

Clint owned a highly-regarded heating and air conditioning business in Texas. Like Mark, he has never used drugs. After a very difficult divorce, he sought help for depression from his doctor, who prescribed Xanax, which did not seem to have any effect. Clint decided that he needed to start dating again. At 42, he met a 22-year-old woman who was just getting out of a bad relationship. Her ex-boyfriend was a meth cook who later accidentally killed himself playing Russian Roulette. After Clint’s relationship with the woman ran its course, she began dating another meth cook, who had just been released from prison. Three years later, the woman and her boyfriend were arrested for manufacturing meth.

Clint’s phone number was in her cell phone, and Clint’s father had once called the woman looking for Clint, so his home number was in her phone records, too. Under questioning, Clint told the FBI that when he and the woman were dating, he had hosted a cookout at his home and she had invited several friends. A conspiracy! In truth, Clint had never met or never heard of most of the other conspirators. He had never used, manufactured, possessed or distributed drugs. Charged with conspiracy, Clint was convinced that a jury would see the ridiculousness of his arrest. He pleaded not guilty. Outraged that he would go to trial, prosecutors added a gun charge, even though Clint had no gun. You see, in a conspiracy every defendant is guilty of every other defendant’s crime. His attorney explained to him that a conspiracy is like a wheel with you as the hub. Whatever the spokes are guilty of, YOU’RE guilty of. But Clint believed in the justice system. He was confident that a jury would see reason and find him not guilty.

Clint went to trial in 2006. Four of the other defendants agreed as part of their plea deals to testify that Clint owned “the party house.” The jury made its decision after a three-day trial. Guilty. At sentencing, Clint, who had never been in trouble with the law, and who had a Criminal History Category I, started at a level 32, 121-151 months. The government sought a two-level enhancement for environmental waste as a result of the meth manufacturing process. The pre-sentence investigation report recommended a level 34, 151-188 months. At the formal sentencing, the judge added on extra four levels without explanation (which Clint is appealing), bringing him to a level 38, 235-293 months. The gun added another 60 months, which brought his sentence to 295 months [or] 24 years, 7 months. For nothing. Clint has spent nine years in prison. Without relief, he will be in his 70s when he’s released.

These accounts are not unique. Similar things have happened to hundreds, if not thousands, of Americans. President Obama can do the right thing to correct these wrongs. He can announce his support for retroactivity of the Sentencing Commission’s two-level reduction. He can grant commutations and pardons. And he can sign the bipartisan legislation for reform that Congress sends him. Fairness in sentencing—”mercy” I would call it—can be his legacy. With barely more than two years left in his presidency, he can be a part of the problem or a part of the solution.

To learn more about my case, please visit defendjohnk.com.

Best regards,

John