Court Imposes Probation On Obama Clemency Grantee

By Seth Ferranti 01/13/17

Jimmy Walden, serving a life sentence for a minor drug offense, was ecstatic when his sentence was commuted to expire after ten years. But then he got an unpleasant surprise.

Hands balled into fists, in handcuffs.
“When I was praying before I was given the life sentence, God said that he would deliver me from this."

When Jimmy Walden was granted clemency by President Obama, it was the happiest day of his life. Walden was locked up on May 19, 2008 and given a life sentence under federal sentencing guidelines for a very minor drug offense in Tennessee. On August 4, 2016, Walden received an Executive Grant of Clemency commuting his total trial sentence of imprisonment to expire on August 3, 2018. He was ecstatic, but then he got a letter from the court informing him that they wanted to impose a 10-year term of supervised release. The court hadn’t deemed it necessary at the time due to Walden’s life sentence, but since he was getting out, his judge now wanted to impose probation, which in effect is another sentence.

“I was arrested in September 2007. My case was possession with attempt to distribute crack cocaine and marijuana,” Walden tells The Fix from Federal Correctional Institution, Jesup in Georgia. “They arrested me and wanted me to tell. I refused and went to trial. They found me not guilty of count one and guilty of counts two to five. They gave me life from enhancing me because of my priors.”

The two priors were for very small amounts of crack. Walden got caught with 1.3 grams the first time and .5 grams the second time. He was charged with possession with intent to sell. He was sentenced to probation in both cases. But the federal government used those two priors to trigger the career criminal statute and sentenced Walden to life. He was effectively doing life for around 50 grams of crack cocaine. That’s why Obama pardoned him, because he was serving a disproportionate sentence.

“I felt that the Lord would deliver me from the life sentence,” Walden tells The Fix. “When I was praying before I was given the life sentence, God said that he would deliver me from this. I felt like I only had one year because I knew God was going to keep his word. I felt discouraged after time passed, but I continued to pray and every time I engaged someone in conversation I’d tell them that I’m going home. I just never accepted that fact that I would be serving life. I kept a positive attitude that I would get another chance at freedom.”

But at the same time he was getting congratulated on his presidential commutation, he received a disconcerting letter from the sentencing court saying that even though his judge omitted to sentence him to probation at his original sentencing, the judge now wanted to impose a term of supervised release on Walden once he was released. The judge went back and did a re-do, issuing an order that would amend a judgement that was final nine years ago. If Walden tried to get back in court on some issue and change his sentence, he’d be time barred by the court—but it seems the court can do as it pleases when it comes to drug war prisoners, while those unjustly incarcerated must follow the rules.

“I don’t think they can do it,” Walden says. “Their justification is that the judge forgot to give it to me 10 years ago. He made a mistake and omitted it from my sentencing. I disagree with it because I have been unable to get into court based on out of time. I would think that should apply to the court too. The judge omitted the probation in his sentencing. Now that the president gave me another chance the judge wants to try to give me 10 years probation.

“They are trying to give me probation after the fact. If I had never been granted clemency then they would never have paid attention to me. Many have said that adding probation 10 years after sentencing is illegal. They had plenty of time at sentencing to give me the supervised release. Other judges gave other defendants supervised release even after giving out life sentences to them. Some did not, and some of those people are home right now. The court should not be trying to add things to my sentence after the president showed me some mercy.”

For some clarity on the matter, The Fix reached out to some clemency experts—P.S. Ruckman Jr., a professor of political science who runs the Pardon Power blog, and Margaret Love, the former pardon attorney under former President Bill Clinton—to get their opinions on the legalities involved with pardons and what the courts can or can’t do in this situation.

“The president has the power to grant commutations of sentence, with or without conditions,” Ruckman tells The Fix. “I know of no limitations save the fact that they (the conditions) cannot violate the Constitution. That being said, presidents have pushed the boundaries of that 'understood' limit. Jimmy Hoffa, in my mind, had a pretty good case until he disappeared and his argument became moot.

“Presidents have commuted sentences on the condition that prisoners never drink again, that they live with their parents, that they leave D.C., that they join the army, that they leave the United States and never return, etc. In the past, prisoners have refused attached conditions and chosen to remain in prison. My understanding is that this was a conditional pardon.”

If 10 years probation was one of the conditions of clemency like attending the Bureau of Prisons’ Residential Drug Abuse Program was then Walden has to accept it as part of the clemency grant or stay in prison like Ruckman said. No one would do that, but if the 10 years supervised release wasn’t a condition of the grant of clemency, then the court shouldn’t have any right to impose it. That would be illegal.

“I understand that the president’s commutation order did not mention a term of supervised release,” Margaret Love tells The Fix. “In any case, the pardon power does not authorize the president to impose a new sentence (which is what a term of supervised release is). The court's power to amend the original judgment to impose a new sentence of supervised release at this point, or to impose any conditions on his release, seems highly doubtful. At this point the court has no power to impose a term of supervised release, effectively a new sentence.”

But prison sentences have been commuted by the president on condition of deportation or service in the military, perhaps not punishment in a constitutional sense. There is also U.S. precedent that the prisoner must accept the condition—see the D.C. Circuit decision in the aforementioned Hoffa case, where his commutation was conditioned on his not returning to union office during the period of his supervision. But imposing a new sentence on someone who was granted clemency is contrary to the mercy that Obama is showing.

Pursuant to Rule 36, the court sent notice to Walden that it intends to amend the Judgment and Commitment Order to correct the Court's omission of failing to impose mandatory terms of supervised release as required by the statute. The court intends to order that all terms of supervised release run concurrently for a net effective term of 10 years of supervised release. The court also intends to impose the Standards Conditions of Supervision that have been adopted by his Court. The court appointed a public defender and informed Walden that he could object to the imposition of the term of supervised release.

“I objected,” Walden says. “The point is I have remained in zero trouble inside prison. The president gave me clemency because he believed in me. The judge now wants to add 10 years supervised release onto my sentence after my sentence has been final for over nine years. This is a violation of due process. As an inmate I have no legal way to get back into court. They had their chance at sentencing. I disagree with this reasoning and I have filed a statement that I object to this addition with my attorney. This is an interesting situation. Many people seem interested in the outcome. It is illegal and should be brought to the public's attention.”

Even Walden’s public defender wasn’t sure about the legalities involved in this case, “I am currently reaching out to defenders across the nation to see if they have input on whether this is permissible post-grant of clemency,” she wrote him. Currently the public defender is in the process of making a supplement to the objections that Walden has. Plus other prisoners who received clemency grants from Obama have not received letters from their judge and court attempting to amend a judgment that is already final. Walden is ready to get on with his life without probation hovering over his head.

“I would like to drive trucks after getting my CDL license,” Walden says. “I thank God for another chance. I have this desire to drive trucks and see the country at the same time. Perhaps I will have a chance to speak to younger people and explain to them how unwise choices have consequences. I can stop youth from making the same mistakes I have. I am blessed that Obama came into office and helped me, or I’d be just another number serving life behind bars. There may not always be a President Obama around to give people another chance. I will definitely take the opportunity to prove to people like the President-elect that some people are deserving of a second chance. I would certainly not want to mess up someone down the line from getting the same relief as me.”

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