President Obama, who has exercised his presidential pardon power less frequently than any other modern president, showed a rare moment of criminal justice mercy Tuesday, cutting short the sentence of Ceasar Huerta Cantu for two drug trafficking offenses. There were no indications that the commutation was a sweeping policy statement on those facing draconian drug sentences: He issued the commutation to fix a particularly incendiary typo. But Cantu’s story does shed a light on the potential for serious errors in the criminal justice system that remain unnoticed or unremedied.
Cantu pleaded guilty in 2006 to money laundering and conspiracy to possess marijuana. For those offenses, Cantu should have been designated what is known as a “base offense level” under federal sentencing guidelines that would have recommended a minimum prison sentence of 138 months. But the level was mistakenly typed in as 36 rather than 34 in the presentence investigation report given to Virginia federal judge Jackson L. Kiser, meaning he instead based on his sentence on a “base level” of 180 months (ratcheted up because of other factors), or an extra 3.5 years.
Cantu was not aware of this error at his sentencing, and the lawyer representing him didn’t raise it. But several years later, Cantu discovered the error when he learned he was able to request his presentencing investigation report. He explains in a motion he filed on his own:
In the Bureau of Prisons, men in custody are not supposed to have a copy of their Presentence Investigative Report in their possession. I having never had a copy of this document in my possession to do due diligence have been truly handicaped [sic]. So, on a lark I requested a copy of it be sent to me along with my plea agreement. Frankly, I was surprised that it got through the mail system but [it] did …
I received it and promptly reviewed and found errors so obvious that even one such as I, with no legal training or any real help was able to find. … Clearly, either the defense counsel did not even bother to go over the PSR himself much less go over it with me or was so incompetent as to have missed such a simple error that this example brings [a] whole new category of ineffective assistance of counsel to the Court.
Cantu was later assigned a lawyer, who argued that that Cantu should be entitled to post-conviction relief. But Judge Kiser found that because Cantu didn’t file his motion within the one-year statute of limitations, he could not challenge the mistake. Cantu has now completed the 11.5 years of his shortened sentence, and he will be released from prison.
Cantu’s case is not just an example of the draconian sentences doled out to federal drug offenders. It also demonstrates just now difficult it is to challenge a case based on mistake by the lawyer or court. Federal law allows a defendant to challenge his incarceration at any time on the basis of ineffective of counsel, even if those mistakes are discovered later. But it requires that those challenges be filed within a year of “the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.” In this case, Judge Kiser agreed that Cantu was not permitted by the Bureau of Prisons to possess the crucial PSR report in prison. But he pointed to a regulation suggesting that inmates are entitled to view the report at any time. Kiser, a Reagan appointee to the U.S. District Court for the Western District of Virginia, suggested that Cantu should have had knowledge to this regulation and therefore had access to the report from the very first day he entered prison. That alone was his justification for finding that Cantu did not act within the statute of limitations, even though Cantu effectively did not know about the mistake for years later.
As is so often the case, Cantu’s court challenge did not even survive this procedural hurdle. But even if it had, proving “ineffective assistance of counsel” is exceedingly difficult. An analysis of the first 255 DNA exonerations by the Innocence Project found that although one in five of those defendants raised this argument, and all of these defendants were ultimately deemed wrongfully convicted, courts rejected this argument or found that the error was harmless in 87 percent of those cases. Other studies of all cases have found that courts accept ineffective assistance of counsel claims in just 4 percent of cases.
Although the justice system should be the primary remedy in all cases, perhaps the only check in extraordinary cases like Cantu’s is the presidential pardon power, which allows the president to revoke a sentence through a pardon, or to shorten it through what is known as a commutation. Earlier this year, President Obama commuted the sentences of eight individuals whose punishment was the result of an outdated racist sentencing disparity. While the Department of Justice recently encouraged defendants to submit more clemency applications, Obama had until December commuted just one sentence out of 8,700 applications, according to Families Against Mandatory Minimums.