Get Informed

Regular updates, analysis and context straight to your email

Close Newsletter Signup

Man Sentenced As ‘Career Criminal’ Gets His First Chance At Freedom In 48 Years

Despite a 2015 Supreme Court ruling limiting the mandatory minimum law, few people are seeing relief.

Ken Agtuca and his family at a 2017 pow wow.
Courtesy of the Agtuca family

Man Sentenced As ‘Career Criminal’ Gets His First Chance At Freedom In 48 Years

Despite a 2015 Supreme Court ruling limiting the mandatory minimum law, few people are seeing relief.

Kenneth Agtuca had been a lifer for most of his life.

Imprisoned for all but six months since he was 17, Agtuca was sentenced to life for unlawful gun possession in 1993 under an unforgiving Reagan-era law, the Armed Career Criminal Act. About 5,500 federal prisoners are serving time on sentences enhanced by ACCA, which carries a mandatory 15-year term and opens the door to life without parole.

In August, Agtuca became one of a handful of prisoners whose sentences were ruled unconstitutional after a 2015 U.S. Supreme Court decision. Having served nearly twice the usual sentence for his crime, Agtuca at 65 is now on track to head home.

“I have traveled full circle and arrived back at the point where I do not believe myself to be a criminal,” the Seattle man said in a letter to U.S. District Judge Robert Lasnik of the Western District of Washington, who resentenced him in August to a time-served term.

A run of Supreme Court decisions capped by the 2015 ruling brought relief to some prisoners who were sentenced under ACCA. The ruling found part of the act to be unconstitutionally vague—it wasn’t clear what qualified a defendant as a “career criminal.”  The decision made hundreds of prisoners serving ACCA-enhanced sentences eligible for resentencing.

The Supreme Court limited the prior convictions that qualified a person for sentencing under the act. It did not eliminate prosecutors’ ability to seek ACCA-enhanced sentences, and U.S. attorney’s offices in a handful of jurisdictions continue to regularly use the enhancement against defendants with prior convictions for drug dealing and qualifying violent crimes.

Agtuca was the youngest prisoner at Washington State Penitentiary in Walla Walla when he arrived there in 1970 under a parole-eligible life sentence for armed robbery. He was awakened just after midnight and walked out of prison in March 1992.

“Looking back,” his wife Susan recalled in a letter to the court, “Kenney was not prepared for freedom and I was very naïve.”

Agtuca was back behind bars by October after robbing a Seattle bank. Then 40, he was prosecuted federally and sentenced to life. Anyone with a gun and three prior convictions for violent crimes or drug distribution offenses could face a 15-year mandatory term, among the longest mandatory minimum sentences in the federal system.

After 25 years in prison, Agtuca crochets pillows for corrections officers, knits winter clothes for prisoners’ children, and raises service dogs.

Agtuca’s Native heritage became a bridge to the outside. He connected with his father’s family and enrolled in their tribe, the northern Wintu. He became an elder to imprisoned Natives, participating in sweat lodge ceremonies and in White Bison, a 12-step program aligned with Native culture. His family has joined him for prison powwows.

“It is important for the younger offenders to see someone who’s been around the block ‘walk the walk,’” said Winona Stevens, executive director of Native American Reentry Services.

Ken Agtuca at his wedding
Courtesy of the Agtuca family

It’s not clear how many other prisoners serving ACCA sentences will get the reconsideration Agtuca received. On Aug. 13, Pennsylvania resident Ronald Peppers’s 15-year sentence was revoked after the Third Circuit Court of Appeals found that, like Agtuca, his prior convictions should not have qualified him for an ACCA sentence. A Washington state man previously sentenced to the 15-year minimum under ACCA saw his sentence halved on Wednesday after a similar finding by the Ninth Circuit.

Three years after the Supreme Court decision, prosecutors continue to use ACCA mandatory sentences in patterns that vary significantly from state to state. Whether a defendant faces an ACCA sentence depends on who is prosecuting. Prosecutors in California won just one ACCA sentence in 2016, while New York had only two prosecutions. Florida had 61; Missouri had 29 and Tennessee had 26. Washington state had one ACCA prosecution in 2016.

“It is incredibly arbitrary,” said Molly Gill, vice president for policy at FAMM, an advocacy organization opposed to mandatory sentences.

“One of the ideas behind mandatory minimums … is that they increase the certainty of punishment,” Gill told The Appeal. “When you look at how the law’s applied, that’s really not true.”

Black defendants are far more likely to receive ACCA-enhanced sentences. According to U.S. Sentencing Commission statistics, 70 percent of defendants sentenced under the act in 2016 were Black. Whites, who outnumbered Black defendants that year, accounted for 24 percent of ACCA-enhanced sentences.

Severe sentences and mandatory minimums have long been faulted as unnecessary; the U.S. Sentencing Commission found them onerous and inconsistently applied. They also deliver a compelling advantage to prosecutors during negotiations.

Questioning the government during oral arguments in Johnson v. United States, the case that resulted in the 2015 ruling, Chief Justice John Roberts commented that defendants facing a 15-year minimum will take a deal.

“You said … because there are so many years involved, people will litigate hard,” Roberts remarked to Deputy Solicitor General Michael Dreeben during the April 2015 hearing. “I think because there are so many years involved, people won’t litigate at all. … It gives so much more power to the prosecutor in the plea negotiations.”

About 97 percent of defendants convicted in federal court plead guilty prior to trial. Though ACCA sentences have been declining in recent years, 304 people were sentenced under the act in 2016.

Speaking with The Appeal, JaneAnne Murray, co-chairperson of the National Association of Criminal Defense Lawyers’ sentencing committee, said Johnson and other recent Supreme Court decisions have focused on sentencing enhancements tied to defendants’ criminal histories.  Murray said those decisions may indicate the Supreme Court is troubled by mass incarceration.

Murray, a professor of practice with University of Minnesota Law School, said U.S. attorneys’ offices have wide discretion in pulling defendants into the federal system from state courts. She described unlawful gun possession charges as the “low-hanging fruit.” Generally, prosecutors need to prove just two facts to convict: that a defendant has a felony record and that the person had access to a gun.

“State and federal prosecutors may cooperate to charge someone federally because of a particularly egregious criminal record. … Or, more cynically, the local federal prosecutor’s office may simply want to increase case numbers,” Murray said.

Lengthy sentences for people with prior convictions drive incarceration in America. The average sentence for a federal prisoner doubled between 1988 and 2012, and tripled for prisoners serving time on weapons offenses, as prison admissions also increased.

Gill argued that Congress should reduce the length of ACCA-enhanced sentences, make it so older convictions don’t qualify a defendant for harsh punishments, or remove the mandatory minimum entirely.

Currently on his way out of state prison, Agtuca will have a gradual release. He will be moved to a halfway house and slowly returned to free society. He hopes to work as a paralegal and finally make a home with Susan, whom he married in prison.

“I cannot make up for the time I have lost and do not intend to try,” Agtuca told Judge Lasnik. “What I intend is to, for the rest of my days, commit myself to achieving balance.”

Queens Prosecutor: Kalief Browder’s Suicide Wasn’t About Rikers

City Council Member Rory Lancman, who was debating Assistant District Attorney James Quinn over the future of Rikers Island, blasted Quinn's comments on Browder, who spent three years incarcerated without a trial.

Protesters at a rally for Kalief Browder
Flickr/Felton Davis (CC by 2.0)

Queens Prosecutor: Kalief Browder’s Suicide Wasn’t About Rikers

City Council Member Rory Lancman, who was debating Assistant District Attorney James Quinn over the future of Rikers Island, blasted Quinn's comments on Browder, who spent three years incarcerated without a trial.

In a heated debate last week over whether New York City should close Rikers Island, Queens Assistant District Attorney James Quinn sparred with City Council Member Rory Lancman, chairperson of the council’s Committee on the Justice System, who could become Quinn’s boss in next year’s election for Queens DA. The debate highlighted the tensions between Lancman, a self-professed reformer, and an office that has been notably slow to reform.

Led by an 85-year-old incumbent who has been in power for nearly three decades, the Queens district attorney’s office is one of only two in the city (Staten Island’s is the other) that publicly opposes the slow-moving closure of Rikers. Some advocates have also questioned the plan, which aims to reduce the jail population while increasing the number of jails.

At the debate, Quinn defended his office’s stance, arguing that the city’s jail population should not be cut to what he considers an arbitrary number to fulfill demands for the jail’s closure. Quinn said he stood by his past comment that people detained at Rikers “belong in Rikers.”

Lancman disagreed. “With all due respect,” he said, “there are many policies from the Queens district attorney’s office that contribute to incarcerating poor Black and Latino people.” He pointed out that, unlike other city DA’s offices, the Queens DA has not vowed to reduce its prosecution of low-level offenses. “You cannot avoid the fact that the policies of the Queens district attorney’s office put more people in jail than ought to be.”

Lancman also criticized the Queens DA’s office for its failure to approve a conviction review unit, as the other four boroughs have done, and for its controversial plea deal practices. Under that system, Lancman argued, defendants charged with felonies are coerced into waiving their speedy trial rights.

Quinn didn’t deny that the intent of this practice is to have defendants waive their rights to a speedy trial, but justified the practice by arguing it is highly inconvenient for Queens residents to be called for a grand jury. “If they don’t waive, we have to bring people like this”—he pointed to the audience—“from all across Queens County to go into the grand jury and take a day off and testify against that defendant in order to indict him.”  

But perhaps the most contentious moment of the night came when Quinn lashed out at the anti-mass incarceration movement, taking aim at the national outcry that followed the death of Kalief Browder, a Bronx teenager who spent three years in jail without trial for an alleged theft of a backpack.

While in Rikers, Browder endured beatings by guards and inmates and roughly two years of solitary confinement. In solitary, Browder attempted suicide once. After being released, Browder told The New Yorker, “I’m not all right. I’m messed up.” Six months after getting out, he tried again. Two years later, the 22-year-old took his life.

Quinn sought to minimize the role Browder’s time in jail played in his death. “Kalief Browder did not commit suicide at Rikers Island,” Quinn said, his finger wagging at the crowd. “He committed suicide two years after he got out of Rikers Island. That is a fact. Everybody knows it.”

Quinn was loudly applauded for these comments during the debate, which took place in Kew Gardens Hills, a majority white neighborhood in Queens.

In his retelling of Browder’s case, Quinn also asserted that Browder had been held on a high bail because he “went out and committed another robbery,” violating his probation for a previous incident. In fact, Browder spent three years in jail denying that he committed that robbery, and he was released in year 2013 when the charges were dropped.

In response to Quinn’s applauded comments, Lancman hit back. “I do not know what satisfaction you get by the potential fact that he killed himself two years after he was in Rikers Island,” Lancman said. “And not in Rikers Island itself.” He subsequently issued a statement via Twitter. “This moment from my debate with the Queens D.A.’s office floored me – I still haven’t gotten over it,” Lancman wrote. “No matter what you believe about Rikers Island, human decency demands that no one applaud when we discuss Kalief Browder committing suicide.”

Akeem Browder, Kalief’s brother and president of the Kalief Browder Foundation, called Quinn’s comments “disrespectful” and argued that Quinn was lying about his brother’s history in an attempt to defend Rikers. During the debate, Quinn asserted that Kalief Browder had mental health issues before his time at Rikers, a claim that Browder claimed was baseless and disrespectful. “This is 100 percent wrong,” Browder said in a phone call. “Where did he get his facts or information from?”

The Queens district attorney’s office did not respond by press time to The Appeal’s queries about Quinn’s explanation and evidence for these comments.

Findayawah Gbollie, a Legal Aid Society attorney practicing in Queens, called the comments “shameful.” “He said that he had committed another robbery, not even that he was accused of committing another robbery,” said Gbollie. “They don’t see a difference between committing a crime and being accused. So what’s even the point of having a jury, having a judicial process, if the mere accusation is equal to a crime itself?”

More in Explainers

A Grand Jury Indicted An Alabama Police Officer For Murder. Then A Mayor Came To His Defense.

Jeffery Parker was shot to death by a police officer in his Huntsville home. A grand jury handed up an indictment for murder, but the mayor and City Council appear to be throwing their support behind the officer.

Jeffery Parker and his fiancée Michele Louthan
Michele Louthan

A Grand Jury Indicted An Alabama Police Officer For Murder. Then A Mayor Came To His Defense.

Jeffery Parker was shot to death by a police officer in his Huntsville home. A grand jury handed up an indictment for murder, but the mayor and City Council appear to be throwing their support behind the officer.

On most mornings, Michele Louthan woke to her fiancé, Jeffery Parker, in their Huntsville, Alabama, home asking her what day it was. They had attended the same high school during the 1980s and after reconnecting in 2017, the two decided to get married this year on April 20. “In 21 more days you’ll officially be Mrs. Parker,” Parker would tell her, counting down the days.

On April 3, Louthan instead awakened to the sound of heavy stomping downstairs. This struck her as strange and frightening because she thought Parker had gone to the store. There was shouting, with a woman’s voice being the loudest, and then an unmistakable “pow”: the sound of a gunshot ringing through the house.  

Parker, a 49-year-old plumber and musician with three grandchildren who affectionately called him “Papa Jeff,” was shot to death by a Huntsville police officer in the home he shared with Louthan after he had called 911 to report that he was suicidal and had a gun. Parker suffered from post-traumatic stress disorder after a home invasion in the early 2000s, according to Louthan. After a “brief verbal exchange” in which police say officers instructed Parker to drop his gun, Officer William Darby fired one shot, killing him. Louthan later wrote that Parker’s  gun was most likely a flare gun that he painted black. She declined an interview with The Appeal because of a gag order that the judge issued to all parties involved in the case.

To Taylor Lively, Parker’s death occurred not because he posed a threat, but because of excessive force by the police. “Knowing Jeff, I know he didn’t deserve to die,” Lively told The Appeal. “Bad policies and procedures, as well as an itchy trigger finger led to the death of my friend who wouldn’t hurt a soul.”

The Huntsville police chief supported Darby, issuing a press release after his arrest in August, declaring that he is “by no means a ‘Murderer.’” In May, a police incident review board cleared Darby, finding that he had acted in accordance with departmental policy that permits the use of force in situations in which an officer feels threatened.

But Madison County District Attorney Rob Broussard said he was “gravely concerned” by the review board decision and that the case should go to a grand jury. “Usually what you are looking at [is] whether an officer reasonably feared for his life before he was forced to take deadly physical force,” Broussard said, “and on these particular facts of the case we had concern that this was not a justified shooting and because of that we put it to a grand jury.” Grand juries rarely hand down indictments in police killings, even in high-profile cases like Michael Brown in Ferguson, Missouri, and Eric Garner in New York. In 2015, California became the first state to ban grand juries in police shooting cases because, according to one state senator, “the use of the criminal grand jury process, and the refusal to indict as occurred in Ferguson and other communities of color, has fostered an atmosphere of suspicion that threatens to compromise our justice system.”

But on Aug. 3, a Madison County grand jury indicted Darby for murder. This was the first time in Broussard’s 30 years as Madison County district attorney that he prosecuted a police officer for murder, an attorney from his office told The Appeal.

Since the indictment, however, the Huntsville Police Department has refused to release body camera footage to the public because of “matters of privacy,” a City Hall spokeswoman told The Appeal. And Mayor Tommy Battle has publicly blasted Broussard’s decision to bring the police killing to a grand jury.  “We have a different opinion than the district attorney has,” Battle said after an Aug. 9 City Council meeting. During that meeting, the five-member council voted to use city funds to pay for $75,000 of Darby’s defense, an idea for which Battle claimed credit. Four out of the five council members said they had not seen the body camera footage before voting 4-0, with one abstention, to authorize the payment. Citing the gag order, which they are not under, City Council members and Battle declined requests for comment from The Appeal.

“It is odd and particularly troubling for a mayor to be interfering in the prosecution of any criminal case,” Angela J. Davis, a professor at the American University Washington College of Law and expert in criminal law and procedure, told The Appeal. “He is clearly biased towards the police officer, and his public statements may taint the jury pool. He’s basically saying that the grand jury, who are the citizens of this city, were wrong in executing their duties on the grand jury and that’s just extraordinarily and and incredibly inappropriate for him to do that.”

Because Battle is not under the judge’s gag order, Davis explained, he cannot be legally prevented from talking about the case.

Lively, Parker’s friend, told that The Appeal that he’s angry with Battle for both defending Darby and arguing for the city to fund the officer’s defense. But he said he isn’t surprised by Battle’s behavior, given that Madison County has a history of excessive force by the police. In February 2015, Sureshbhai Patel was thrown to the ground by a Madison police officer who confronted the then 57-year-old after the department received a call from a neighbor describing him as suspicious and claiming he was looking into garages. (According to a federal civil rights lawsuit filed by Patel, however, “whether there actually was a call or whether the caller actually accused Patel of looking into garages cannot be verified because to date the City refuses to release any recordings or reports that exist related to the incident.”) Patel was left partially paralyzed from the incident and his family claimed that Patel, who was visiting his grandson in Madison from his home in India, did not understand the officer during the encounter.

“Of course he is going to” defend Darby, Lively said of Battle. “He doesn’t want it to look like there’s a problem with his city and police brutality or ill trained officers.”

Huntsville Police spokesman Michael Johnson refused to answer questions about the Darby case, saying instead that “there’s a lot of questions and that will come out in trial,” which is scheduled for Oct. 29.  

Parker’s friends and family, meanwhile, want to know how a cry for help during a mental health crisis ended in a fatal police shooting.

“He called the police because he wanted help to stay alive,” Lively said, “to help to keep him from hurting himself … not help to kill himself.”

More in Podcasts