Crack and cocaine. Photo by Paul Howell/Liaison
Crack and cocaine. Photo by Paul Howell/Liaison
When I first took the job in Georgia, we were focusing on places where there was major drug trafficking, and specifically a really rough neighborhood in Atlanta where a lot of dealers were selling crack. At that time—around 2001, 2002—crack was still the focus, before meth had staked its claim in the Southeast. The conventional wisdom was that if we just got these guys and gave them a good, harsh sentence, we'd do something about this problem, and we'd win the war on drugs. Prosecutors tend to see the world in black and white. Lewis Clay was one of the guys we prosecuted. We caught him selling a small amount of crack, only 57 grams. That's about two ounces, which is roughly the weight of a bag of M&Ms or a candy bar. One time, way after that, when I was defending a guy facing drug charges in federal court, I actually used the M&Ms thing to demonstrate to the judge just how small of a quantity we were talking about, and it really made the point. The judge laughed and smiled, and he agreed with the sentence I requested. But in Clay's case, the 57 grams of crack cocaine required a mandatory sentence of ten years. With one prior conviction, the sentence would be doubled to 20 years. Two prior felony drugs convictions, which Clay had, would result in a sentence of life without parole. Shortly after Clay's arrest, I reached out to his attorney and said that if he wanted to come in and cooperate, we could cut Clay's sentence down a whole lot. The attorney said no. As prosecutors, we tend to think, OK, we gave him an opportunity to cooperate, and he passed on it. Prosecutors have a goal: to move up the food chain to bigger fish. You say, "Hey, you give us your source, and we'll help you with your sentence." I tried to be as generous as I could with people who helped me. So Lewis Clay went to trial and was convicted in 2003, and based on those two prior convictions, he was sentenced to life. He's the only person I prosecuted who got a life sentence for selling drugs. He could have entered a plea and been given 17 years. But he didn't want to take that. He made a mistake, but the fact that he rejected that offer shouldn't have moved it from 17 years all the way to life. His sentence should have been a number, not a word. At that time, I thought I was part of the solution: That if we just arrested these guys and got them off the streets, the problem would evaporate. I thought, This is the law, and I'm here to enforce the law. Then-US Attorney General John Ashcroft had issued the famous Ashcroft Memo, which dictated that the highest provable crime should be pursued in all federal cases. Those were my marching orders. I'm still not certain that approach was entirely wrong. But I did become convinced that a life sentence for drug charges is too extreme. Lewis is two months younger than me, and every year on my birthday, I realized he would be turning the same age. Every year, as I looked forward to the rest of my life, I thought, This just seems like too long for this man to sit in prison for something he did in his mid-30s.Lewis and I will both be 50 this year. I began to think that whatever I could do to undo this excess would be a good thing. At the end of my career and at the end of my life, I'd like to know that I wasn't responsible for Lewis Clay spending his final days in prison. And frankly, I got burnt out on prosecuting drug cases and sentencing people. My last day as a prosecutor was my 40th birthday. I thought, Am I going to keep on doing this? I wanted to own a business, not work for the Man. In July 2006, I went into private practice as a defense attorney. And I reached out to Lewis, sending him a letter in prison to let him know I'd had a chance to think about his case, and no longer believed he should spend the rest of his life inside. I added that if there was anything I could do to get his sentence reduced, I was willing to do it. He wrote back quickly and accepted my offer. It seemed that if he had had animosity toward me, it was gone. I was busy at the time, so I hired an attorney, Victoria Brunner, to start researching his case. When the Clemency Project** was announced in 2014, I immediately realized that it was the best opportunity Clay had to get a sentence reduction. The director of the group is a friend of mine; I spoke to her about my relationship with Lewis and the fact that I had prosecuted his case. She recommended that someone else, someone with no connection to the case, file the petition. So I reached out to Brunner and asked if she would be willing to take it on a pro-bono basis. She agreed, wrote the petition, and it was granted. About a month or so before that was announced, I was informed that the judge who presided over the case had been contacted and gave a favorable recommendation for Lewis's clemency. I thought it was in the bag, but being in this business, I was cautiously optimistic. I didn't want to tell Lewis until we were sure, because the government has a way of snatching away good news sometimes. It's thrilling to know Lewis is going to get out and have another chance at life. Now I'm thinking about what I can do to help him transition. He will be on probation for ten years. He has to stay crime-free, and part of that is being gainfully employed, so now I'm going to do what I can to help him find a job. You're talking about a decade and a half in prison. It's a big transition, going from confinement to freedom in one day. * John Lovell and Alysia Santo, the writer who conducted this interview, are cousins. **The Clemency Project is a group of lawyers and advocates who vet applications and write petitions to help eligible prisoners submit requests for clemency.