Debate intensifying in political and legal circles over decades of get-tough laws
By Sharon Cohen
AP National Writer
GREENVILLE, Ill. (AP) — From the very start, Scott Walker refused to believe he would die in prison.
Arrested and jailed at 25, then sent to prison more than two years later, Walker couldn’t imagine spending his life behind bars for dealing drugs. He told himself this wasn’t the end, that someday he’d be released. But the years passed, his appeals failed and nothing changed.
Now, after 17 1/2 years as an inmate, Walker may have his best shot at freedom. The Obama administration — responding to mounting concerns about decades of harsh penalties and overcrowded prisons — recently announced it will consider clemency for possibly thousands of non-violent federal inmates, most drug offenders.
Walker hopes this new offer holds the key to his cell door.
His lawyers are optimistic, too, noting in a July letter to the Justice Department that he meets all the criteria for possible release, including serving a sentence that would have been substantially lower if imposed today.
Add to that support from an unlikely corner: Walker’s trial judge, who’s on record urging the president to reduce the sentence to 20 years. He calls a life term “excessive and disproportionate” and says Walker’s time in prison has been “a handbook on self-improvement.”
Scott Walker’s story reflects a debate now intensifying in political and legal circles over decades of get-tough laws that have jammed America’s prisons with drug offenders, produced a growing outcry for sentencing reform and posed perhaps the trickiest question of all: How do you make sure the punishment fits the crime?
Walker says he knows he did wrong and should have paid a price. But surely not for the rest of his life.
“From the time you’re a kid ... you hear America is the land of redemption, the land of liberty and the land of justice,” he says, sitting in a conference room at the Federal Correctional Institution here in southern Illinois. “Where’s the land of mercy? Is there mercy for people who have made mistakes?”
Walker pauses, then adds:
“I believe everyone deserves a second chance in life.”
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Looking back, Walker says he’s ashamed of what he did in his teens and 20s.
“I find it very hard to relate to the person that I once was, which makes it all the more difficult for me to live with my past mistakes,” he wrote in a 2009 letter to one of his lawyers. “Age and experience have given me new values, hopes, dreams and goals. ... This is something we don’t comprehend when we are young.”
Walker now blames his past behavior on immaturity. “You feel like you’re invincible, that you’re never going to grow old,” he says.
With straight brown hair parted down the middle framing his unlined face, Walker looks a decade younger than 42. Speaking with a slight twang, he remembers being so naive he thought he could be arrested for drug dealing only if caught in the act.
Growing up in southern Illinois, Walker started using marijuana around age 14, then graduated to meth, becoming a hard-core addict. He played guitar in a band, and drugs, he says, were an accessory to his rock-’n’-roll lifestyle.
“Scott was a very strong-willed young man,” says Keith Shelton, his stepfather. “He did not listen. He didn’t want to listen. He felt like most kids do. ... You’re made out of steel. You’re never going to get caught. Things are always going to be the way you want them to turn out.”
By his late teens, when his family moved to Arizona, Walker began trafficking marijuana, meth and LSD, carrying drugs to Illinois, where he funneled his profits into a $350-to-$400-a-week meth habit. He became part of a loose-knit ring, sometimes selling drugs, sometimes enlisting others, mostly childhood friends.
His mother, Brenda, recalls knocking on her son’s door during the peak of his meth use, alarmed to see him rail thin. “I looked at him and said, ‘What are you doing? What is wrong with you?’” She took custody of his infant daughter — the child’s mother approved — and with her husband, raised the little girl as their own. “I think she kept me sane,” Shelton says.
After his arrest on Nov. 12, 1996 as part of a drug conspiracy, Walker’s troubles only deepened, partly because of some bad decisions.
He didn’t cooperate with authorities because he didn’t want his friends to suffer. Informal discussions about a plea never went anywhere. Walker, unaware he was facing life, chose to go trial, despite overwhelming evidence against him. Then his lawyer withdrew because of a conflict of interest. When a public defender took over, trial preparations had begun and it was too late for a plea.
Judge J. Phil Gilbert followed mandatory sentencing guidelines that added years for aggravating factors such as the amount of drugs, his organizing role (which included enlisting minors in the ring) and previous misdemeanors. The result: a sentence of life with no chance for parole.
Gilbert told Walker while he needed to be punished severely, “whether this is the right sentence or not, is not for me to judge.”
Walker, later described by the judge as a middleman in the ring, was the only one to receive life.
Three others went to trial and five pleaded guilty, including the kingpin, a two-time drug felon who cooperated and testified against Walker. He served about five years.
“I’m happy they’re all out and free,” Walker says. “They didn’t deserve to go through what I’m going through now.”
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By the time Walker was sentenced, the nation was already reassessing two decades of stiff, punitive drug laws.
In the 1970s and 1980s, the “war on drugs” ushered in a dramatic transformation. State and federal lawmakers, fed up with rising crime rates, increasing street violence and growing concerns about drug abuse, responded with new measures imposing fixed, severe sentences.
In New York, for example, the Rockefeller laws, named after then-Gov. Nelson Rockefeller, were passed in 1973, enacting severe penalties for selling or possessing drugs. That same year in Michigan, the “650-lifer” law passed, mandating life without parole for possessing, intending to or delivering more than 650 grams of cocaine or heroin.
In 1980s, as the crack epidemic ravaged big cities, Congress responded. In 1986, the federal Anti-Drug Abuse Act imposed mandatory minimums for nearly all drugs.
“The only thing was ‘How tough can we be?’” says Eric Sterling, who helped draft the bill as counsel for the House Judiciary Committee. “The general sentiment was the public wants it and this is what we should do.”
The goal was to go after high-level traffickers, he says, but the way the law was written, relatively small amounts triggered lengthy punishments, such as five grams of crack — the size of five packets of artificial sweeteners — bringing a 5-to-40-year sentence.
While lawmakers’ intentions were good, the approach “was heavily focused on supply side: If we punish, we can smash the supply,” says Sterling, who now heads the Criminal Justice Policy Foundation, a drug policy and sentencing reform group. “There wasn’t any real understanding this was a flawed premise.”
Support for the crackdown came from both sides of the political aisle, for different reasons, says Douglas Berman, a law professor at Ohio State University and expert on sentencing laws.
“The right looked at rising crime rates and broader concern about social problems as a sign that we’ve been too soft, too lenient, that we need to just get tougher,” he says. “That’s where the length of sentences came in. ... The left was more concerned about disproportionate and unequal treatment between folks who came from prominent groups and had money and those who didn’t. That’s where the mandatory part came in. “
By the early ‘90s, though, many judges began expressing doubts about mandatory minimums, Sterling says, with some refusing to take cases and many calling them unjust.
In 1994, a federal sentencing law allowed judges leeway to reduce sentences for some drug offenders, but it was narrow in scope and Walker did not qualify.
It wasn’t until 2005 that a Supreme Court ruling gave judges more discretion, with sentencing guidelines no longer mandatory. That decision, however, applied only to future cases. Again, Walker was out of luck.
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David Zlotnick first encountered Walker as part of a research project. A former federal prosecutor, Zlotnick received a grant in 2002 to study Republican-appointed federal judges who’d publicly disagreed with mandatory sentences they’d imposed in drug and gun cases. He interviewed Walker and his judge, an appointee of President George H.W. Bush.
Over the years, the lawyer and inmate stayed in touch, forging a friendship through calls and letters.
“This is really somebody who could be bitter, could be angry, could be hopeless,” says Zlotnick, a professor at Roger Williams University School of Law. “He’s tried to make amends. He’s usually in a pretty good mood. ... He sort of won me over.”
Zlotnick agreed to represent Walker in a commutation request. He enlisted other lawyers and approached Gilbert, now a senior judge, seeking his support.
In a 2011 letter to the president, Gilbert said this was his first recommendation for commutation in nearly two decades as a federal judge and called the case one of his most difficult.
Glibert noted Walker was not a kingpin, the intended targets of life sentences. Another factor that should be considered, he said, was that Walker’s first attorney hadn’t conveyed an offer of a plea agreement from the government. Noting he wouldn’t have been forced to impose a life term now, the judge recommended a reduction to 20 years to “correct the injustice.” And he praised Walker as “an example of the human spirit at its strongest.”
The judge also mentioned Walker’s ties to his family — newly hopeful because of the Justice Department review.
Angela Marvel, one of Walker’s three sisters, says that for years, she found it difficult to listen to her brother’s optimism.
“It just drives you crazy because it hurts so hard,” she says. “I know what he was doing was wrong. But he doesn’t deserve to die there. ... In my heart, I thought, ‘you’re never going to get out’ and it killed me. I could never say that to him. Now I feel differently.”
Walker’s daughter, Rae’le, was just 4 when he was imprisoned. Now about to turn 22, she’s delaying her wedding, hoping for her father’s release. (She brought her fiance to prison to meet him.)
Though she has maintained contact with her father through visits, calls and emails, Rae’le acknowledges the strain of growing up without him. “I get angry sometimes or upset that he had to miss milestones in my life — starting college and graduating high school,” she says. “I feel we just got robbed of a lot of time together.”
An Arizona college student, Rae’le plans to become a substance abuse counselor — a career, she says, inspired by her father. “I want to keep people from making these bad decisions,” she says.
Walker’s mother, Brenda Shelton, says throughout all these years, her son has never felt sorry for himself. “He says, ‘I’m not going to let the system beat me.’ .... Most guys get very hardened. But Scott never gave up hope. Hope springs eternal for Scott.”
Walker occupies his time reading, writing music — he’s in a prison band called Ball and Chain — and taking trade courses. He’d like to become a commercial truck driver.
“I’ve seen people go to prison and just go buck wild and just join gangs and give in to that finality,” he says. “I always wanted to better myself and educate myself more. I always felt that maybe I’d go home eventually and I just wanted to make sure that I didn’t become a worse person by being in prison.”
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Whether Scott Walker goes free ultimately depends on the president.
A recommendation from the office of the pardon attorney in the Justice Department will be forwarded to the White House.
Walker’s lawyers say he meets all six criteria for release, including a good prison record and having served at least 10 years. In their petition, they’ve included a plan for post-prison life. He’d live with his sister, Angela, in her family’s house in Illinois. A pastor, a longtime friend, has written commitments from two trucking companies who’d consider hiring Walker.
“I believe that he is ready to re-enter society and contribute as a law-abiding and tax-paying citizen and devoted son, grandson, and father,” wrote Darin Schultz, one of his lawyers, seeking a commutation to 20 years. If the petition is granted and Walker is given credit for good behavior while incarcerated, he could be released soon.
Walker’s bid comes amid years of deepening reservations by the public and elected officials about tough drug sentences. From 2009 to 2013, 40 states — many facing tight budgets and overcrowded prisons — took steps to ease their drug laws, according to a Pew Research Center analysis.
On the federal level, U.S. Attorney General Eric Holder has urged drug sentencing reform but proposals have stalled in Congress despite bipartisan support.
The clemency review, focusing on non-violent offenders, aims to reduce the bloated federal prison system, where about half the inmates are serving time for drug crimes. It also is designed to scale back stringent penalties and address disproportionately tough sentences imposed on black offenders during the 1980s crack epidemic. A 2010 law narrowed some of those gaps.
Not everyone, though, feels a need for change.
William Otis, an adjunct law professor at Georgetown who was special counsel to George H. W. Bush, says to categorize drug cases as non-violent ignores the “social destructiveness that goes on from the consumption and dealing in illegal drugs. ... Was Scott Walker thinking about what’s going to happen to the people who used the LSD or who used the meth?”
Otis also rejects the notion Walker and others merely made a mistake.
“They made decisions about how they wanted to live and how they wanted to make money,” he says. “The whole meaning of accountability is people have to take the consequences of their conscious decisions.”
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Sitting in prison looking out at lush farm fields, Walker ponders a future on the other side.
“I’m always thinking that I’m going home tomorrow,” he says with a laugh. “I think it’s probably the healthiest way you can live.”
He says he tries to tamp down “rosy pictures” he has about being free, realizing “life ain’t all that wonderful at times. ... I have to remind myself that not everything is so easy. I try to stay grounded and think about once I’m released.”
He pauses.
“If I’m released.”
