We Must Do Better: The Clemency Case of Charceil Kellam

By Richael Faithful

And while at the height of my addiction, I envisioned myself, imprisoned for life by my addiction, I never envisioned myself imprisoned for the rest of my life because of my addiction.

— Charceil Kellam’s Clemency Petition, June 28, 2015

On August 2, 2005, Charceil Kellam invited her cousin into her home. Like millions of others across the country, Charceil was struggling with drug addiction. In a moment of desperation, she asked her cousin to help her get a fix, and the cousin gave her a phone number. She made a phone call to a supplier that profoundly changed her life. It led to prison and a term of two life sentences plus thirty years. Charceil Kellam, a mother of two children, was going to spend the rest of her natural life and die in prison because of that one fateful phone call.

The only reason Charceil’s future will be different is because she was granted a commutation by President Barack Obama on August 3, 2016.1 I helped her prepare her clemency application.

How could Charceil did get such a harsh sentence in the first place? It can be attributed to the cumulative effect of a host of racially biased systems within the larger criminal justice system. Sadly, this outcome is not rare. Understanding the systemic design and perverse incentives of our criminal justice system will help explain how Charceil was sentenced to spend the rest of her life in prison. In this short essay I will focus on three elements of the system: racial profiling, prosecutorial discretion, and mandatory minimums.

Racial Profiling

Charceil Kellam was a long-time resident of Berryville, Virginia, a small town in the northwestern corner of the Commonwealth. Berryville is home to a few thousand people, 81 percent of whom are white and roughly 4 per­cent are Black.2 Historically, relations between the town’s white majority and Black residents haves been strained, as they are in many rural southern communities. Whites control the local government, racial segregation is a fact of life, and the over-policing of Black neighborhoods is common.  Ra­cial profiling operates freely and is experienced on at least two levels. On a systemic level, a federal investigation had focused on the drug ring that implicated Charceil. The ring was known as “The Block.” The Block was concentrated in the predominately Black corner of the town and brought yet more law enforcement and surveillance into the small communities of color in Berryville. This federal scrutiny and local police cooperation is the backdrop against which Charceil stumbled into The Block dragnet.

On an individual level, negative encounters with police were a fact of life for Black folks in Berryville. Charceil went through a traumatic traffic stop not long before she made her fateful phone call. Like many others, she was mistreated by the police officer who stopped her. The officer had no reasonable suspicion of criminal activity, as the law requires, to make the stop. Then he physically assaulted her after she invoked her constitutional protections. Unlike most other Black folks however, Charceil reported the abuse to the police department. Far from being met with concern about her treatment and respect for fulfilling her duty as a citizen, Charceil became known to the police as a troublemaker. The mostly white rural police depart­ment did not like troublemakers, especially in the form of  Black women with misdemeanor convictions.

Charceil was now in a precarious position which would later prove dev­astating in the world of small town politics. The pattern of systemic police scrutiny and mistreatment of Blacks is maintained by an absence of account­ability. It is from this impunity that movements like Black Lives Matter have been born. Charceil’s unconstitutional3 stop was the first in a chain of events that led to her multiple-life sentences.

Prosecutorial discretion

Charceil’s phone call to an undercover informant put her within scope of the federal government’s investigation of The Block. The local police coop­erated closely with the federal agencies. Even though she was a very minor character in the story of an investigation of a very sophisticated drug ring, she was aggressively prosecuted. The reasons remain unclear. Her family, who are activists, tend to assume that her previous challenges to the authority of the local police flagged her in some way. For a number of reasons, Charceil was at personal risk. This risk was compounded by the systemic racism and unchecked power in the offices of the prosecutors.

The role that prosecutorial discretion can play in the overpunishment of a criminal defendant should not be underestimated, particularly when it comes to drug cases involving Black defendants. Prosecutors are solely responsible for bringing charges, determining which charges to pursue, and securing convictions on behalf of the sovereign. Many knowledgeable crit­ics, including professor and former Public Defender, Angela J. Davis, author of Arbitrary Justice: The Power of the American Prosecutor, point out the systemic inequities that result because prosecutorial power is often hidden from public review and driven by perverse career-advancing incentives that do not deliver justice. “Very few are humbled by the power they held,” she writes. “[M]ost prosecutors with whom I had experience seemed to focus almost exclusively on securing convictions, without consideration of whether a conviction would result in the fairest or most satisfactory result for the ac­cused or even the victim.”4

In Charceil’s case, federal prosecutors abused their discretion in two significant ways, which led directly to a sentence that was grossly unfair. First, federal prosecutors connected Charceil to The Block through con­spiracy charges. There was no evidence that Charceil had any meaningful relationships to the drug ring architects, major distributors, or any other person connected to the inner-workings of the operation. According to court records, prosecutors didn’t even try to argue that she was a main player or proffer evidence to support such a claim. Rather, prosecutors brought her into the ring because Charceil met the barest of technical definitions of federal conspiracy from her single phone call to the informant. Prosecutors could have used their discretion to treat Charceil differently. Instead, they chose to increase their conviction count and incidentally ruin her life.

Second, federal prosecutors’ dependence on informants to induce plea bargains was shocking in this case. Many criminal justice stakeholders have roundly criticized the over-reliance on informants during criminal proceed­ings over the last two decades. Professor Paul Butler in his criminal justice critique, Let’s Get Free: A Hip Hop Theory of Justice, explains that the per­vasive and uncontrolled use of informants compromises community safety because it often produces unreliable evidence, encourages laziness in police investigations, and undermines the community’s social fabric.5 As informants become extensions of the police through their cooperation, their incentives can become pretty sweet deals compared to the hard alternatives. These deals undermine any rational sense of justice to those who aren’t granted the privilege of informing on their fellow citizens or who simply refuse to cooperate. Plea bargains as used by prosecutors these days also exacerbate the worst aspects of the U.S. criminal justice system—by forcing criminal­ized people with few choices and resources to choose their own well-being over others. Charceil’s case is a prime example of the abuse of informants and their “incentives.”

The main miscarriage of justice in this case comes down to Charceil’s extremely disproportionate sentence compared to others implicated in The Block case. When Charceil was charged and convicted of conspiracy, her sentence was subject to mandatory minimum enhancements, which will be discussed below. Other more highly involved members of The Block enjoyed generous plea deals which significantly reduced their time. She received the longest sentence among the 28 co-conspirators named in the federal case. It is striking that Michael Adelson, The Block kingpin and architect, received no prison time, while Charceil, whose involvement with The Block was barely a blip on the investigation’s radar, received more than two life sentences.

Clearly, this outcome would not have been consistent with the spirit of the law. Prosecutors’ overzealousness against Charceil, and their decision to  offer plea deals to more serious offenders were abuses of their power. Drug addiction treatment, a more rational and productive response to her conduct, was never an option for her. This  illustrates how the War on Drugs uniquely impacts Black women, who are often mere associates to drug dealers but are sentenced as just as harshly. They are also more likely to be responsible for families that are shattered by draconian anti-drug policies.6 Charceil’s two children were left to be taken care of by other women in her family. The children had to deal with the fact that they were never going to see their mother outside an institution again. Charceil is a quintessential casualty of the War on Drugs.

Mandatory minimums

Having been imperiled by her effort to hold local police accountable for their unconstitutional actions against her, targeted by a racialized federal investigation, charged with a conspiracy of which she was not a part, and thrown under a metaphorical bus by informants who were given plea deals, Charceil was convicted and found herself subject to mandatory minimums at sentencing. Mandatory minimums are sentence enhancements for people with multiple drug convictions. Prior to her federal conviction Charceil had three non-violent, small quantity, state misdemeanor drug convictions stem­ming from two incidents. However, because this time Charceil was convicted of conspiracy on the federal level, harsh penalties were activated. This is how she reached two lifetime sentences plus thirty years—for a single phone call.

Mandatory minimums, passed in the heyday of the War on Drugs, have since been discredited and repealed. They are congressionally mandated au­tomatic sentence prison terms for certain crimes, mostly drug-related. They are triggered by drug quantity and the number of convictions. By passing them Congress stripped judges of their ability to use their own discretion during the sentencing process. Instead, there is a baseline offense upon which a Sentencing Table is applied. The combination of Charceil’s prior convictions and federal conspiracy conviction took the matter largely out of the judge’s hands.7 It is well documented that mandatory minimums most gravely impact “low-level offenders”8 and are directly responsible for the mass incarceration crisis for Blacks in the U.S.9  As the crisis deepens, more people are learning about the alarming statistics connecting the War on Drugs in general, and mandatory minimums in particular, with mass incarceration and our current carceral state. But statistics are abstract.  Charceil is not. She is a real person whose life was taken away from her—almost permanently. It is especially frustrating that although many mandatory minimum laws have been ended in practice, legal relief does not always apply retroactively.10 Plainly put, everyone knew (or should have known) that the laws were wrong, and yet not everyone suffering under them received justice because of the political reality that releasing these folks from prisons would be too disturbing to the American majority. We’d rather warehouse humans unfairly for long periods of time than admit that we enacted and enforced apartheid laws against our own citizens. This is just shameful.

Because she received executive clemency, Charceil will go home in about a year, perhaps less if she is able to transition into a group home for the remainder of her sentence.  Clemency is a sentence reduction—not a full pardon that absolves her of all wrongdoing. Essentially, the commutation amounts to a resentencing of time served.

Executive clemency is an incredibly rare form of legal relief. Charceil had to exhaust all of her other legal options and then petition the President of the United States to intervene and reduce her sentence. She became an exception to a very harsh rule. She has been (partially) rescued from laws designed to punish Blacks in the wake of a national drug panic of nearly thirty years ago. Charceil was able to avail herself of a historic initiative by President Barack Obama to use his executive authority to correct some of these injustices. To my mind President Obama did not always act bravely throughout his presidency. At times he even perpetuated harms, as he did through his administration’s cruel deportation policies. But he did the right thing by granting clemency to an unprecedented number of people, including Charceil. He took a political risk for the moral good.

There are two lessons that observers should take from Charceil’s case. First, racism is pervasive in all of our legal systems. It devastates real lives, real families, and real communities that are already facing economic exploi­tation and other systems of oppression. Charceil’s conviction is a case study of our racial caste system as described by critical legal scholars of color.  Second, the clemency process isn’t heroic. It is the last stop in a system rife with major failures, and in the case of Black folks in the U.S., one that is ef­ficiently designed to control and discipline them. Drafting Charceil’s petition with her was painful because there were so many things that we could not mention—including her abuse by police—if we wanted a successful peti­tion. We had to play the game. We won this round, but she had lost so many already.  Yet she is far luckier than the countless inmates who, due to cruel and outrageous circumstances, never even get a chance to play.

We should celebrate the perhaps thousands of people who have and will go home before the end of President Obama’s term. They are proof that miracles can happen. The only issue is that our systems of justice should not target certain communities and then depend on miracles to correct injustice. It is evil, and sloppy, and backward. We must do better.

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NOTES

  1. President Obama Grants Commutations, Dept. of Justice (Aug. 3, 2016), https://www.justice.gov/opa/pr/president-obama-grants-commutations-5.
  2. Berryville, Virginia Population: Census 2010 and 2000 Interactive Map, Demographics, Statistics, Quick Facts, CensusViewer, http://censusviewer.com/city/VA/Berryville (last visited Dec. 21, 2016).
  3. No court has ruled on the constitutionality of the traffic stop. I base my assessment that it was unconstitutional on my viewing of the police video available here: http://www.clarkedailynews.com/local-family-claims-conspiracy-responsible-for-conviction/”
  4. Angela J. Davis, Arbitrary Justice: The Power of the American Prosecutor 4 (2009).
  5. Paul Butler, Let’s Get Free: A Hip Hop Theory of Justice (2010), available at https://books.google.com/books?id=gWpa8PhRkEUC&printsec=frontcover&dq=let%27s+get+free+a+hip-hop+theory+of+justice&hl=en&sa=X&ved=0ahUKEwj9vbHOt-XQAhWC7iYKH­SnLBncQ6AEIGjAA#v=onepage&q=informant&f=false.
  6. Women and Gender in the Drug War, We Are The Drug Policy Alliance, http://www.drugpolicy.org/women-and-gender-drug-war (last visited Dec. 21, 2016).
  7. Sentencing 101, FAMM, http://famm.org/sentencing-101/ (last visited Dec. 21, 2016).
  8. Unjust Mandatory Minimums, N.Y. Times (Feb. 18, 2013), http://www.nytimes.com/2013/02/19/opinion/unjust-mandatory-minimum-prison-sentences.html.
  9. See Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2012).
  10. Scott Shackford, Supreme Court Makes Important Mandatory Minimum Ruling Retroac­tive, Reason.com (Apr. 19, 2016, 2:00 PM), http://reason.com/blog/2016/04/19/supreme-court-makes-important-mandatory.

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Richael Faithful is a folk healer and lawyer based in Washington DC.

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