Prof. Murray, King & Spalding Score Major Victory in Pro Bono Clemency Work
When Derrin Perkins declined a plea offer of five years in a federal drug distribution case in 1992, little did he know that this decision set him on path to a life sentence without the possibility of parole. But after 27 years in custody, he is now finally preparing to go home—thanks to the dogged efforts of Professor JaneAnne Murray’s Clemency Project at the Law School and Pro Bono Partner Joshua Toll at King & Spalding.
With William Hamilton ’15, Murray represented Perkins in his federal clemency petition under the umbrella of Clemency Project 2014 (CP2014), a joint initiative of the American Bar Association, the National Association of Criminal Defense Lawyers, and other organizations. That project recruited and trained volunteer lawyers to work in a clemency program on behalf of nonviolent federal inmates. “I was advising volunteer lawyers who were writing petitions,” recalls Murray, who was on the CP2014 Steering Committee. “I felt I would only be useful if I actually did some cases myself. Derrin’s case was the first one assigned to me.”
Perkins fit the CP2014 criteria perfectly. He was arrested in 1991, unarmed, in possession of just 17 grams of crack cocaine. Prosecuted in both local and federal courts for drug distribution, he was convicted in both and handed a sentence of life without the possibility of parole in federal court and a consecutive sentence of 6 to 18 years in the D.C. Superior Court.
There was no allegation that he carried a weapon or acted violently. In addition, Perkins was a model prisoner, using his time behind bars to obtain his GED and complete thousands of hours of professional training programs.
Unfortunately, Perkins’ clemency application was denied just days before President Obama left office. Immediately thereafter, Murray teamed with Toll to explore judicial avenues for Perkins’ release.
The procedural obstacles involved in getting a court to look at someone serving a long sentence can be daunting, though. In the federal case, Murray and Toll tried to get a second look via a habeas procedure: Perkins was arrested in 1991, when he was 25, but the indictment in the federal case covered the years 1983-91.
“We argued that because the indictment straddled Derrin’s juvenile and adult years, he could not lawfully receive a sentence of life without parole under new Supreme Court caselaw relating to juvenile sentences,” says Murray.
The D.C. Circuit Court of Appeals allowed Perkins’ attorneys to go back to the district court with that juvenile sentencing argument. In addition, there had been retroactive changes to the sentencing guidelines, so the team made an additional motion to the district court that Perkins should get the benefit of those changes as well.
Ultimately, it was the motion based on guideline changes that won the day. The prosecutor agreed that Perkins was entitled to a resentencing to 30 years—a sentence Perkins had just about served. In August 2017, District Judge Thomas F. Hogan (who had written to President Obama in support of Perkins’ clemency petition) issued the revised sentencing order.
That left the consecutive Superior Court sentence of 6 to 18 years.
“We went back to Superior Court seeking a resentencing on the grounds that new sentencing guidelines in that court would dictate a sentence today of 16 to 38 months, but we faced the not-so-minor hurdle that we were about two decades out of time,” says Murray. “In the end, to the prosecutor”s credit, the government agreed to waive its timeliness objection in return for a 16-month sentence, which would be close to time-served for Derrin.”
Superior Court Judge Todd Edelman, after a careful review of all submissions, agreed this new sentence was appropriate, and now Perkins is in the process of being transitioned to a halfway house, after which he plans to live with family in Washington, D.C.
“It was an honor to work with JaneAnne and to stand up for the proposition that non-violent drug offenders deserve an opportunity for a second chance,” says Toll.
And while happy with the result in this case, Murray will keep pushing for “second-look” mechanisms such as those used in Perkins’ case to be used in other cases.
“What Derrin’s two cases show is that our judicial system is an ideal place for such reconsideration,” concludes Murray. “Justice was served—in a careful, transparent, and compassionate way.”
—By Dan Heilman