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The year 2021 ended with unpredictable holiday weather from Colorado to Kentucky, but one foreseeable development based on recent history was the dearth of pardons and commutations. In his first year in office, President Biden
Joe BidenBiden coronavirus vaccine-or-test mandate goes into effect On the Money — Democrats grow less confident in Manchin Fed Vice Chair Clarida to resign over pandemic stock trades MORE failed to issue any; though in late December, a revised Department of Justice legal opinion that engendered bipartisan support allowed thousands placed on home confinement at the start of the pandemic to avoid being returned to prison as long as they follow the rules. Still, even with 30 pardons in Wisconsin, ten in New York, and eight in Texas, another holiday season passed with this constitutional power remaining largely underutilized in a nation where more than one in four adults have a criminal history.
Despite this predictable pattern, there was one dramatic exception that could cast a long shadow: the high-profile commutation offered by Colorado Gov. Jared Polis
Jared Schutz PolisColorado trucker’s case provides pathways to revive pardon power Biden addresses Coloradans after wildfires: ‘Incredible courage and resolve’ Overnight Energy & Environment — Virginia gears up for fight on Trump-era official MORE that reduced a 110-year sentence to 10 years in the case of truck driver Rogel Aguilera-Mederos.
This case should shine a light on others where relief may be similarly warranted because they share one or more of the same attributes: unintentional conduct, a disproportionate “trial penalty” in which the sentence following a trial far exceeds a plea offer, and a sentence to be served consecutively instead of concurrently.
To recap, Aguilera-Mederos killed four people in a 2019 interstate pileup he attributed to the brakes on his semitrailer malfunctioning while he sped down a highway near Denver with a load of lumber. More than 5 million Americans signed an online petition seeking clemency, no doubt motivated by the stark contrast between what was negligent — or at most reckless — conduct and the original sentence of 110 years, a term that far exceeds typical sentences for premeditated murder.
While the visceral public reaction was rare, it is also understandable. It reflects our common acknowledgment that unintentional conduct — even when it inflicts serious harm — is less blameworthy, thereby weakening the justification for the moral condemnation associated with punishment. Secondarily, accidental conduct may be less susceptible to deterrence, another customary rationale for sentencing, than cases involving a conscious decision to harm another.
Cases such as this one that involve unintentional conduct illustrate the limits of the traditional dichotomy between nonviolent and violent crime and highlight the support, in legal theory and public opinion, for expanding the scope of clemency beyond the lowest-level offenses like drug possession.
While many cases involving long prison terms for unintentional conduct arise under involuntary or voluntary manslaughter laws, others could be identified through examining sentences associated with statutes focused on classes of victims, such as Texas’ statute on injury to an elderly person, which parallels laws in many other states. Even if such an injury is not serious and results from mere negligence, a prison sentence of up to ten years is possible.
The Aguilera-Mederos case also should trigger a reexamination of cases where the “trial penalty” played an outsized role, resulting in a sentence that far exceeds both the prosecutor’s plea offer and the term imposed in comparable cases. Aguilera-Mederos declined opportunities to enter a plea deal and pursued his constitutional right to trial. Disturbingly, the prosecutor cited this as a rationale for imposing a much longer sentence.
Research indicates the trial penalty can result in sentences nearly eight times higher than plea deals, effectively imposing a steep tax on exercising one’s constitutional right to contest guilt before a jury of one’s peers. Although numerous reforms are warranted to rein in this disparity, simply requiring that all plea offers be documented would be a good place to start, allowing parole and pardoning authorities to better identify cases where extreme trial penalties were imposed.
Finally, under a Colorado law also on the books in other states, the court was required to order Aguilera-Mederos to serve his sentences consecutively, even though they stemmed from the same incident. Such policies substitute the prerogative of lawmakers for the authority of judges, and also for juries in states where jury sentencing is an option. This results in cookie-cutter justice, removing discretion from a judge or jurors who have access to the specific case facts and can justly determine how multiple sentences should be served.
Regardless of whether they are mandated or merely an option, consecutive sentences arising from the same incident are far more common in the U.S. than in other advanced nations and can lead to questionable outcomes. For example, in one California case, a defendant prosecuted for dealing both cocaine and methamphetamine received a 19-year sentence in part because a prior drug conviction was used to enhance both current offenses, adding a consecutive three-year enhancement to each.
The clemency process presents an opportunity to identify cases where consecutive sentences created an unjust result, keeping someone behind bars long beyond both a punishment commensurate with the crime and the time when they posed a danger to society.
In each of these categories, the commitment to a robust clemency review process must overcome the lack of data needed to identify cases involving these and other factors that are suggestive of excessive sentences without sifting through electronic or even paper records of each file. While eventually case files should be made searchable based on numerous factors such as the statute involved and whether consecutive sentences were imposed, in the near term more staff resources devoted to clemency may be needed to unearth such cases.
The case of Aguilera-Maderos uniquely captured public attention, but the key elements involving unintentional conduct, the trial penalty, and consecutive sentencing that contributed to his unjustly long initial sentence are likely present in other cases. More frequent exercise of clemency powers at the federal and state level coupled with more accessible case data to facilitate this process is vital to ensuring relief is available in other deserving cases before it is too late.
Marc Levin, Esq. is Chief Policy Counsel for the Council on Criminal Justice. Follow him on Twittter @marcalevin
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