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Dan Rodricks

Dan Rodricks: A retired judge pleaded for the release of men he sent to prison for life | COMMENTARY

Other inmates could not believe what Kevin Jones told them — that a federal judge named Andre Davis had sentenced him to life in prison because of his association with a Baltimore man who had been acquitted of murder.

Got that?

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It did not matter that Jones was only guilty of selling drugs. Did not matter that the leader of his drug operation had been acquitted of murder. They were both going to prison for life.

Some quick background: In the 1980s, at the start of the country’s long war on drugs, Congress passed several laws requiring judges to follow sentencing guidelines. One law called for judges to consider all charges, even those that did not result in guilty verdicts, when they sentenced defendants who faced multiple counts. The practice is called “acquitted conduct sentencing,” and it results in the lengthening of prison sentences.

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If you’ve never heard of it, and if you’re a bit shocked by it, you’re not alone. As constitutionally dubious as it sounds, the Supreme Court upheld acquitted conduct sentencing in 1997.

In the Jones case, in the mid-1990s, a drug dealer named Dwayne Holland had been accused of killing a man in connection with a yearslong conspiracy to sell heroin and crack in a public-housing project in Southwest Baltimore.

Though Holland was acquitted of that charge by a jury, the judge at sentencing found not only a preponderance of evidence, but “clear and convincing” evidence that Holland had committed the homicide. The consequence of that finding, under the federal sentencing requirements, was a life sentence for Holland as well as two of his confederates in the drug operation — Jones and another young man, a college student named Daniel Hill. Though they had only been convicted of drug charges, they each received life sentences.

“At that time, even people in prison had not heard of [acquitted conduct sentencing],” Jones tells me. “And they wouldn’t believe you. They thought it was impossible.”

Because they had been associated with Holland, Jones and Hill went from being classified as nonviolent drug offenders to violent offenders, and that had consequences, too. “We were barred from the benefits offered to nonviolent drug offenders,” Jones says. “We could have been home long ago.”

Jones and Hill ended up serving about 25 years in prison. They are free now because congressional reforms — the Fair Sentencing Act of 2010 and the First Step Act of 2018 — made it possible for them to have their sentences reviewed.

It also helped that the judge who sent them away for life made a point of pleading for their release.

Andre Davis, who served as a U.S. District Court judge in Baltimore before taking a seat on the U.S. Court of Appeals for the Fourth Circuit, was among the critics of mandatory minimum sentences, especially in drug cases. He spoke about it publicly and frequently, saying mandatory minimums kept judges from considering mitigating factors, shifted power over sentences to prosecutors and imposed harsh penalties on low-level drug offenders.

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After retiring from the bench, Davis served as city solicitor in Baltimore from 2017 to 2020.

During that time, Shari Silver Derrow, an assistant federal public defender, appealed to Chief District Judge James K. Bredar for a sentence reduction for Jones and Hill. Davis joined that effort.

“I believed that the life sentence mandated by law, though neither [Hill nor Jones] was personally responsible for anyone’s death, did not fit either man’s crime,” Davis wrote in a letter to Bredar. “I have since learned that during the more than two decades since Mr. Hill and Mr. Jones received their life sentences, each has grown into a mature, reflective, industrious man, validating my belief that a life sentence was unduly punitive and unjust.”

Davis said he never would have sentenced them to life had reforms spelled out in the Fair Sentencing Act been in place when they came before him in the 1990s.

Hill and Jones, wrote Davis, had outstanding records in prison, and both kept close ties with their children.

“Mr. Hill and Mr. Jones have served their time in custody gracefully, purposefully and without incident for over two decades,” Davis wrote. “They have behaved admirably, without the expectation of an early release or the hope of some external reward. It was only after they proved themselves to be worthy of consideration that the First Step Act even materialized as a source of hope.”

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The act, one of the few significant bipartisan achievements of recent years, rolled back the tough-on-crime sentencing laws that gave the U.S. the highest per capita incarceration rate in the world. The reform opened the door for thousands of inmates to ask for reductions in their sentences and plea for early release.

Hill and Jones were successful. Bredar reduced their life sentences in April 2020, and both men were released shortly after that.

Hill is 53, employed as a violence interrupter and youth outreach worker for Montgomery County.

Jones is 52, living in Baltimore with his mother. He counsels inmates preparing for release from prison; he also cares for his grandmother.

Holland’s life sentence was reduced to 35 years last summer. His projected release date is October 2026.

Acquitted conduct sentencing did not go away with congressional reforms. It remains a part of federal sentencing law. In October, the Supreme Court declined to consider a new challenge to it. There is, however, a bipartisan Senate bill calling for its overdue repeal.


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