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FreedomWorks recently announced the launch of the American Freedom Initiative (AFI), a collaboration headed by former acting U.S. Attorney General Matt Whitaker. This project aims to help relieve injustices committed against Americans under the criminal justice system and the regulatory state. As part of this project, we will shine a spotlight on some of the individuals the AFI has identified under its National Pardon Project as being particularly hard hit by unjustly harsh criminal sentences for non-violent crimes.
Chad Marks is the first to admit he deserved to go to prison after being caught along with three associates dealing large quantities of cocaine in Rochester, NY in 2003. His first misfortune was in having poor legal counsel, as his defense attorney admitted on the record that he failed to tell Marks about a plea deal offered by the prosecution that would have netted him a far shorter sentence - possibly as few as 10 years. So while his co-conspirators all accepted plea bargains in exchange for more reasonable sentences, and are all free after having received no more than 15-year sentences, Marks went to trial and received a 40-year sentence at the age of 27, in 2008.
Marks is thus one of many who have suffered what is often referred to as the “trial penalty,” where exercising one’s right to a jury trial under the Sixth Amendment is seen as justification to levy the harshest possible sentence if convicted. In addition, because Marks was merely in possession of two firearms (a shotgun and a rifle), he was subject to automatic “stacking” sentence enhancements under 18 U.S.C. 924(c) . While the landmark First Step Act lessened the impact of these unfair stacking provisions by making it truly a recidivist penalty only, as originally intended by Congress, it did not make the changes retroactive, leaving prisoners like Marks stranded. The result was yet another sentence for a non-violent drug crime far longer than given to many murderers under New York law.
To say that Marks saw the light during his incarceration seems to be an understatement. He not only completed 78 rehabilitation and reentry programs, he also earned a college degree. He has since designed new programs to help fellow inmates, including teaching G.E.D. and anger-management classes, and works with other prisoners to help them file their appeals, helping many gain their freedom.
Even U.S. District Court Judge David Larimer, who handed down Marks’ original sentence, filed in support of reducing his sentence, noting, “In my 30 years as a district court judge, I have never known a prisoner to do more to make changes in his life while incarcerated.” When state prosecutors refused, Judge Larimer decided that although the First Step Act did not allow him to simply dismiss the 924(c) stacking charges against Marks, he did have the latitude under another provision of the law (§ 3582(c)(1)(A)) to vacate a portion of his sentence, and reduced it from 40 to 20 years.
Furthermore, with COVID-19 spreading fast in the Kentucky federal prison where Marks was being held, he was finally granted compassionate release, with his freedom set to arrive on June 4th. Instead, as he was being prepared for release, a stay was issued against Judge Larimer’s sentence reduction and Marks was shown back to his cell. Not only did he not get to go home, if he does not defeat this legal challenge his sentence could revert back to keeping him in prison until 2038.
Instead of languishing in jail for the years it could take to fight to keep his judge-appointed sentence reduction, Marks is a clear candidate for his only other path to freedom - a presidential pardon.