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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.”

A police officer and his union defended the arrest and tasing of an 11-year-old girl

A police officer and his union defended the arrest and tasing of an 11-year-old girl

What you’ll read today

  • Spotlight:  A police officer and his union defended the arrest and tasing of an 11-year-old girl

  • How decriminalizing sex work became a campaign issue in 2018

  • A new power for prosecutors is on the horizon—reducing harsh sentences

  • Dallas police officer arrested three days after fatal shooting of Botham Shem Jean

  • Harris County jail fails to meet state standards

  • Oregon lawsuit challenges driver’s license suspensions

  • Lawyers for exoneree ask disciplinary board to take action against prosecutor

In the Spotlight

A police officer and his union defended the arrest and tasing of an 11-year-old girl

Last month, a Cincinnati police officer, while working security at a grocery store, tased an 11-year-old girl whom he suspected of shoplifting. An internal review, released last week, concluded that the officer, Kevin Brown, had violated multiple rules. His police powers have been suspended pending a departmental hearing. After the hearing, the police chief will decide what, if any, disciplinary action to take against Brown. [Mihir Zaveri / New York Times] See also Our Aug. 16 newsletter looks at police use of Tasers on people who are considered “high risk” by Taser’s manufacturer.

The footage from Brown’s body camera was also released last week. The video, which begins after Brown shot the girl with the Taser, shows Brown taking her into an office in the grocery store and questioning her. “The last thing I want to do is tase you like that,” he tells her. “When I say stop, you stop. You know you’re caught, just stop.” [Mihir Zaveri / New York Times]

Brown tells the girl, “You know, sweetheart, this is why there’s no grocery stores in the black community.” Both the girl and Brown are Black. The internal review concluded that the remark constituted prejudice in violation of departmental rules. [Sharon Coolidge, Cameron Knight and Mark Curnutte / Cincinnati Enquirer]

Brown’s other violations of department rules were for using the Taser in the first place, not warning the girl before firing the Taser at her, and not turning on his body camera until after he had shot her with the stun gun. The internal review concluded that the incident did not warrant the use of the Taser, especially as officers are required to use the least amount of force necessary when dealing with children. [Sharon Coolidge, Cameron Knight, and Mark Curnutte / Cincinnati Enquirer]

Immediately after reports that Brown fired his Taser at the 11-year-old, some elected officials called for revisions to the department’s use of force policy, which allows the use of Tasers on children as young as 7. The police chief, Eliot Isaac, has said the department would examine its policy. [James Leggate, Evan Millward, and Abby Anstead / WCPO]

After an intervention by the Cincinnati mayor, the county prosecutor dropped all charges against the girl, “saying police are supposed to confer with his office on charges related to children and that did not happen.” [Cincinnati Enquirer] The girl was alleged to have taken a backpack, candy, beef jerky, and baby clothes. [Sharon Coolidge, Cameron Knight and Mark Curnutte / Cincinnati Enquirer]

In the Cincinnati Enquirer, columnist Kevin S. Aldridge asks whether an 11-year-old suspected of shoplifting should have been arrested at all. “Is stealing a candy bar, or whatever food items this little girl took, a crime punishable by 50,000 volts of electricity?”  Aldridge described his own experience stealing a toy car from Kmart as a 9-year-old and how, “instead of treating a little boy like a hardened criminal, the adults in my case handled me like the kid I was. Irresponsible, but not irredeemable.” [Kevin S. Aldridge / Cincinnati Enquirer]

A 2016 report from the Sentencing Project looked at the disparities, by race, in the incarceration of youth—disparities that are set in motion by differing arrest rates. It found that between 2003 and 2013, despite a decline in the rate of youth sent to juvenile facilities, the disparity in the treatment of Black and white youth went up. As of 2013, Black youth were four times more likely to be incarcerated in juvenile facilities than white youth and “[t]he growth in commitment disparities begins with the growth in arrest disparities.” Despite little difference in behavior across the most common categories of youth arrests, including stealing property, “black teenagers are far more likely than their white peers to be arrested … a vital step toward creating the difference in commitments.” [Sentencing Project]

These disparities are compounded for girls of color. Girls are more likely than boys to be arrested and locked up for minor offenses and the majority of girls in the juvenile justice system are there on low-level offenses. In New York City, Black girls under the age of 16 face a misdemeanor arrest rate more than 20 times higher than the rate for their white peers. Latinx girls are arrested for misdemeanors at six times the rate of white girls. [Lindsay Rosenthal with Michelle Diaz / Bustle]

The most visible support for Officer Brown’s actions has come from the police union. The president of the local chapter of the Fraternal Order of Police told the New York Times that “there seems to be a lack of shock that a juvenile suspect of this age has no respect for people’s property rights.” In a Facebook post shortly after the incident, he criticized the “knee-jerk reaction” from local officials and argued that Brown’s actions were justified to prevent injuries to himself and the girl. [Cincinnati Enquirer]  Yet, after watching the body-camera video, few would argue that the girl escaped without experiencing injury or trauma. It shows her asking Brown if the Taser barbs are still in her skin, saying, ”It’s in my body? They in my body?” and then crying and gasping as a team of all-male team of EMTs remove them. She was then taken to the local children’s hospital. [Sharon Coolidge, Cameron Knight, and Mark Curnutte / Cincinnati Enquirer]

Stories From The Appeal

Julia Salazar speaking to canvassers in August. [Melissa Gira Grant/Anagraph]

How Decriminalizing Sex Work Became a Campaign Issue in 2018. State Senate candidate Julia Salazar explains how sex workers’ rights is a key part of reforming criminal justice in New York. [Melissa Gira Grant]

A New Power for Prosecutors Is on the Horizon—Reducing Harsh Sentences. Legislation in California would provide a direct route to resentencing, and a new tool for activists. [Kyle C. Barry]

Stories From Around the Country

Dallas police officer arrested three days after fatal shooting of Botham Shem Jean: On Thursday, Amber Guyger, an off-duty police officer, shot and killed Botham Shem Jean in Jean’s apartment. Jean, a 26-year old accountant with Pricewaterhouse Coopers, lived in the same building as Guyger, in an apartment directly above hers. Jean was Black and Guyger is white. Police waited until Sunday to arrest Guyger on manslaughter charges. She was released from jail on $300,000 bail. The Dallas police department said Guyger had mistaken Jean’s apartment for her own. The police chief had explained the delay in arresting Guyger as the product of another agency, called in to investigate the case, asking the police department to hold off on obtaining an arrest warrant. [Kristine Phillips / Washington Post] Guyger shot and wounded another man, while on duty, in 2017. She was not charged in connection with that shooting. [Ryan Tarinelli / Associated Press]

Harris County jail fails to meet state standards for monitoring those at risk:  After two deaths by suicide in the Harris County jail in a month, the Texas Commission on Jail Standards has found that the jail failed to meet state requirements for supervision and observation, in the latest in a string of noncompliance findings since last year. The jail must submit a corrective action plan next month. The jail commission executive director told the Houston Chronicle that if the jails fails to demonstrate “a consistent pattern of compliance,” it could result in a remedial order to the facility to reduce the number of people incarcerated there or close portions of the jail. The most recent noncompliance finding came after the death of Debora Lyons, jailed on a theft charge, who died by suicide in a common area of the jail. [Keri Blakinger / Houston Chronicle]

Oregon lawsuit challenges driver’s license suspensions over unpaid traffic fines: A class-action lawsuit filed last week seeks an end to license suspensions for traffic fines until the Oregon Department of Motor Vehicles provides drivers a chance to demonstrate their inability to pay. Between 2007 and 2017, the Oregon DMV issued over 300,000 license suspensions for unpaid fines. Lawyers at the Oregon Law Center, who represent the plaintiffs, argue that those unable to pay a several hundred dollar fine are left with no good options: “They either stop driving, making it impossible to meet their work and family obligations, or drive illegally, placing themselves at risk of being cited for driving with a suspended license and further compounding their traffic debt.” One plaintiff received a $300 speeding ticket in 2010 when she was unemployed and caring for a new baby. Since then her license has been suspended, she has received multiple citations for driving with a suspended license, and her traffic violation debt has ballooned to over $11,000. [Maxine Bernstein / The Oregonian]

Lawyers for exoneree ask disciplinary board to take action against prosecutor:  Anthony Wright spent 25 years in prison before being exonerated. The Philadelphia district attorney’s office, under Seth Williams, then unsuccessfully tried him again. The blog “Open File” looks at the bar complaint Mr. Wright’s lawyers from the Innocent Project recently filed against Bridget Kirn, the lead prosecutor in that second trial. Detectives who had testified at Wright’s first trial also testified at the second. Kirn had informed them of exculpatory DNA test results but the detectives testified that they had no knowledge of any DNA testing or results and Kirn failed to inform the judge, jurors, and defense counsel about her witnesses’ perjured statements. In her deposition during Wright’s civil trial, Kirn acknowledges that she had briefed the detectives on the DNA results but said, “I didn’t correct the record because it didn’t seem inaccurate to me.” Kirn, who was fired shortly after current DA Larry Krasner took office, now works for the Montgomery County district attorney’s office on a contract basis. [Open File]

Correction: In Friday’s newsletter, a news brief and headline on a debate about closing Rikers Island misidentified New York City Council Member Rory Lancman’s debate opponent. He was Queens Assistant District Attorney James Quinn, not District Attorney Richard A. Brown.

Thanks for reading. We’ll see you tomorrow.

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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?”

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