Is this the American way?

http://www.charlotteobserver.com/opinion/op-ed/article31469141.html

Aug. 18, 2015
By Alec Karakatsanis, The New York Times

Last month, President Obama used his clemency power to reduce the sentences of 46 federal prisoners locked up on drug-related charges. But for the last six years, his administration has worked behind the scenes to ensure that tens of thousands of poor people – disproportionately minorities – languish in federal prison on sentences declared by the courts and the president to be illegal and unjustifiable.

The case of Ezell Gilbert is emblematic of this injustice. In March 1997, he was sentenced to 24 years and four months in federal prison for possession with the intent to distribute more than 50 grams of crack cocaine. Because of mandatory sentencing laws, Mr. Gilbert was automatically sentenced to a quarter-century in prison, though even the judge who sentenced him admitted that this was too harsh.

At his sentencing, Mr. Gilbert noted a legal error that improperly increased his sentence by approximately a decade. In 1999, he filed a petition seeking his release. A court ruled against him.

Nearly 10 years later, the Supreme Court issued a ruling confirming that Mr. Gilbert had been right. A public defender helped him file a new petition for immediate release. Obama’s Justice Department, however, convinced a Florida federal judge that even if Mr. Gilbert’s sentence was illegal, he had to remain in prison because prisoners should not be able to petition more than once for release.

A federal appellate court disagreed, and in June 2010, three judges set Mr. Gilbert free. The judges explained that it could not be the law in America that a person had to serve a prison sentence that everyone admitted was illegal. Mr. Gilbert returned home and stayed out of trouble.

Here’s where it gets interesting. There are many people like Mr. Gilbert in America’s federal prisons – people whose sentences are now obviously illegal. Instead of rushing to ensure that all those thousands of men and women illegally imprisoned at taxpayer expense were set free, the Justice Department said that if the “floodgates” were opened, too many others would have to be released.

In May 2011, the same court, led by a different group of judges, said that the “finality” of sentences was too important a principle to allow prisoners to be released, even if the prison sentence was illegal. Mr. Gilbert was rearrested and sent back to prison to serve out his illegal sentence.

Judge James Hill, then an 87-year-old senior judge on the appellate court in Atlanta, wrote a passionate dissent. Judge Hill, a conservative appointed by Richard M. Nixon, declared that the result was “urged by a department of the United States that calls itself, without a trace of irony, the Department of Justice.”

Judge Hill concluded: “The government hints that there are many others in Gilbert’s position – sitting in prison serving sentences that were illegally imposed. We used to call such systems ‘gulags.’ Now, apparently, we call them the United States.”

In 2013, years after sending him back to prison, Obama granted Mr. Gilbert clemency, and the president recently won praise for doing the same for several dozen other prisoners of the war on drugs.

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