Because Of a Technicality, Mr. Erwin Cannot Use the Compassionate Release Statute 

First, the post-First Step Act compassionate release framework was created with prisoners like Mr. Erwin in mind.

It’s the raison d’etre of the compassionate release statute—to show compassion in appropriate circumstances. 

Such a circumstance exists in Mr. Erwin’s case. 

Mr. Erwin, 81, a disabled Black inmate, has been incarcerated for 40 years—40 years—spread across 11 different facilities. For the past three years, his home has been the Federal Medical Center in Fort Worth, in a minimum-security unit with other disabled inmates. Partially paralyzed on his right side from a stroke a decade ago, Mr. Erwin relies on other inmates to push his wheelchair and to type his emails.

Unfortunately, he fell just outside the reach of a recent law’s “compassionate release.” 

With that, after the First Step Act expanded the scope and reach of the compassionate release framework, nearly 5,000 federal prisoners have been granted compassionate release for various reasons. 

In short, Mr. Erwin is a textbook case for compassionate release.

The New Compassionate Release Framework 

Before December 2018, courts were authorized to consider motions under section 3582(c)(1)(A) (commonly referred to as “compassionate release” motions) only if the Director of the Bureau of Prisons filed them. In December 2018, Congress amended that portion of section 3582 to authorize courts to also consider motions filed by offenders in certain circumstances.

For many years, the safety valve of § 3582 languished. The B.O.P. rarely filed motions on 

an inmate’s behalf. As a result, compassionate releases were exceedingly rare. See Hearing on 

Compassionate Release and the Conditions of Supervision Before the U.S. Sentencing Comm’n 66 (2016) (statement of Michael E. Horowitz, Inspector General, Dep’t of Justice) (observing that, on average, only 24 inmates were granted compassionate release per year between 1984 and 2013). 

As already mentioned, unfortunately, since Mr. Erwin was sentenced (in 1984) before the advent of the U.S. Sentencing Guidelines in 1987, he is not eligible for compassionate release. This cruel loophole slams shut a door that could free Mr. Erwin.

“I believe it was simply an oversight when they wrote the law,” said Charles Weisselberg, a law professor at the University of California, Berkeley, who has written extensively on the subject. “If I had to guess, I would say we’re talking about maybe one hundred inmates.”

With that, it serves no legitimate purpose to keep an 81-year-old man who is partially paralyzed to the point he cannot send an email, much less walk, in prison until he dies. No credible argument can be made that by releasing him at 81 after he spent 40 years in prison, he would be a danger to the public. 

It’s cruel, callous, and purely punitive. And our system of justice is supposed to be corrective, not punitive. But given Mr. Erwin’s advanced age and deteriorating medical condition, that’s precisely what his sentence has become—punitive.

The price tag of his round-the-clock medical care must be astronomical. And it will only increase as the 81-year-old ages and requires more and more health care. 

The Case

Make no mistake; Mr. Erwin was not a Boy Scout. And he certainly broke the law. I don’t think anyone is disputing that. But it’s more nuanced.

Mr. Erwin reflects an earlier era’s draconian prison sentences and shows how recent reforms can miss their mark. He was convicted by an all-white jury two years before the Supreme Court forbade the racial pruning of jury pools. He was sentenced three years too early to qualify for “compassionate release” under the terms of a law, the First Step Act, signed by President Trump in 2018.

Mr. Erwin’s nearly four decades of incarceration began in 1984 when he and ten other Black defendants were found guilty by an all-white jury in Dallas federal court of participating in a drug ring that mainly distributed painkillers and weight-loss pills. As the leader of the drug conspiracy, Mr. Erwin was an early test case of a newly codified “kingpin” provision in federal law that enabled the presiding judge to sentence him to life without parole plus 120 years.

His sentence was emblematic of a decade of tough-on-crime politicking that has come to be seen by members of both parties as a misguided era of mass incarceration. It took a particular toll on Black men like Mr. Erwin.

On the eve of his trial, federal prosecutors succeeded in striking from the jury pool every Black potential juror. Throughout the three-week trial, one government witness testified that he saw Mr. Erwin kidnap, torture, and murder an underling. However, a different witness fingered the first witness as the actual killer — an account that yet another witness said she corroborated to the prosecutors before trial. That key government witness was granted immunity for pointing the finger at Mr. Erwin.

Two months later, Mr. Erwin stood trial again, this time on state charges for the kidnapping and murder of the underling. The judge denied a request by Mr. Erwin’s attorney to locate the witness who testified at the federal trial that another witness had been the murderer. Absent such exculpatory testimony, it took less than three hours for the all-white jury to convict Mr. Erwin, who was sent to death row.

His appellate brief argued that the trial judge had “misstated facts” in dismissing the request for a witness to provide exculpatory testimony. The Texas Court of Criminal Appeals agreed with Mr. Gohmert and ordered a retrial.

But that never happened. A Smith County district attorney, Jack Skeen Jr., filed a motion to the presiding state district judge claiming that a retrial would constitute a needless expense because the federal court considered the kidnap and murder of the underling in assessing Mr. Erwin’s life sentence. By the time of Mr. Skeen’s motion in 1989, Mr. Erwin was already two years into his sentence at Fort Leavenworth.

Since 1999, Mr. Erwin has been the only member of his former drug confederation to remain in prison. Several key players in his legal saga — both trial judges, his federal trial attorney, his wife, and several witnesses — are now dead.

Efforts led by Senator Richard J. Durbin, Democrat of Illinois, to widen the First Step Act’s reach to include pre-1987 inmates like Mr. Erwin have stalled in committee. Advocates for granting early release to lifers who have fallen through the legislative cracks are left grappling for a solution.

“There must be a way smart lawyers doing clemency work and people of goodwill in the Bureau of Prisons and the Biden administration can get this done,” said Barry Scheck, a Cardozo School of Law professor and co-founder of the Innocence Project. “It’s a matter of common decency.”

“He’s the worst-case scenario in all the highly racialized policies that were enacted in the eighties,” said Dr. Ashley Nellis, co-director of research for the Sentencing Project. This nonprofit organization studies inequalities in the American criminal justice system.

Ms. Nellis was referring to Mr. Erwin’s status as among the less than 1 percent of roughly 158,000 inmates in the custody of the U.S. Bureau of Prisons who are serving a life sentence for drug-related offenses. The vast majority of them are Black. Most of them can apply for what is known as “compassionate release” under the First Step Act. Not Mr. Erwin.

Using the Compassionate Release Statute, Many Courts Have Granted Compassionate Release in Similar Cases 

Next, we want to examine other cases in which similarly situated defendants were granted compassionate release.

Defendant Raymund Harrison, the leader of a drug trafficking organization, entered a plea of guilty on November 21, 1996, to Count One of a Second Superseding Indictment, charging the offense of Racketeering, in violation of 18 U.S.C. § 1962(c). The plea was tendered under a Plea Agreement, in which Harrison agreed, inter alia, that he murdered DeShane Carter in an act of retaliation. Id. On February 21, 1997, Judge William M. Nickerson, to whom the case was initially assigned, sentenced Harrison to a total term of 420 months of imprisonment (35 years). 

After Harrison filed a compassionate release, the court reduced his sentence to 366 months. In doing so, the court cited a laundry list of other cases in which defendants who were charged with murder also received reductions. Here’s what the court said:

Nevertheless, Harrison’s sentence is arguably disparate when compared to at least some defendants sentenced more recently for similar conduct. In United States v. Bryant, CCB-95-202, 2020 (D. Md. Apr. 30, 2020), Judge Blake observed, id. at *5 n.8: “According to statistics released by the United States Sentencing Commission for fiscal year 2018, the national average sentence for murder was 291 months, and the Fourth Circuit average was 327 months.” (citing United States v. Redd, 444 F. Supp. 3d 717, 728 (E.D. Va. 2020), in turn, citing United States Sentencing Commission, Statistical Information Packet, Fiscal Year 2018, Fourth Circuit. For example, in United States v. Floyd, after a 25-day trial, Floyd was convicted of a racketeering conspiracy that included murders and drug trafficking. Floyd was not the shooter, however. Although his offense level and criminal history category called for a life sentence, Judge Blake imposed a total sentence of 360 months of imprisonment. 

Many judges in the District of Maryland and elsewhere have reduced pre-Booker lengthy sentences for defendants whose offenses included participation in a drug-related killing or a drug conspiracy that involved murder. See, e.g., United States v. Russo, F.__ Supp. 3d,__ 2022 (E.D.N.Y. Nov. 28, 2022) (reducing life sentences to 35 years for one defendant incarcerated for 29 years and another incarcerated for 32 years); United States v. Fenner, (D. Md. Apr. 8, 2022) and ECF 235 (reducing 55-year sentence to 27 years imprisonment); United States v. Gray,  (D. Md. May 10, 2021) (reducing life sentence to 27 years in prison); United States v. Hill, (D. Md. Apr. 30, 2020) (reducing sentence from 480 months to 330 months); United States v. Cruz, (D. Conn. Apr. 9, 2021) (reducing life sentence to time-served after about 27 years); United States v. Perez, (D. Conn. Mar. 4, 2021) (reducing life sentence to time-served after 23 years); see also United States v. Stockton,  (D. Md. Mar. 17, 2021) (reducing a 40 year sentence to approximately 22 years of imprisonment); Carter v. United States,  (D. Md. Apr. 17, 2020) (reducing life sentence plus 30 years to 35 years in prison); United States v. Cheese,  (D. Md. July 2, 2020) (reducing life sentence to 28 years of imprisonment); Brown v. United States,  (D. Md. Mar. 16, 2020) (reducing life sentence plus 30 years to 40 years in prison for defendant who led a violent drug trafficking organization and committed a murder in furtherance of the drug conspiracy). But, see United States v. Whisonant, ELH-17-191 (involving several defendants and a drug-related murder; one defendant initially received a sentence of 360 months, another defendant received a sentence of 420 months, and another defendant received a sentence of 480 months; the 360-month sentence was later reduced to 295 months, pursuant to a motion for compassionate release).

In short, in Harrison, as in a litany of similar cases, the court reduced his sentence using the compassionate release vehicle.

The takeaway is clear. There is a glaring disparity between Mr. Erwin’s life without parole plus 105 years in prison and similarly situated defendants serving federal sentences. The problem is they had a procedural vehicle to receive a sentence reduction, while, because of an unfair loophole, Mr. Erwin does not.

Mr. Erwin

Joshua Bevill is part of The Justice Project team. He is currently serving his 14th year of a 30-year federal sentence.  Joshua has helped facilitate the release of more than 15 different federal prisoners.  When he recently spoke face-to-face with Mr. Erwin, at the prison in Fort Worth, this is what Joshua told us in a phone call

“Injustice can be abstract. Many people hear about someone such as Mr. Erwin who is serving an excessive sentence and they might feel a pang of compassion or sympathy, but it passes. It's not real to them. A few days ago, I had the pleasure of meeting Mr. Erwin. He was in a wheelchair. He is partially blind. Very fragile. He's about 80, obviously. And I told him that The Justice Project was going to help him. He started glorifying God, talking about how great God is. And, as he thanked me profusely and squeezed my hand, a tear ran down his cheek. He has a pure soul and just radiates gratitude and humility. After 40 long years in prison, there's not a bit of bitterness in him. It’s galvanizing. It lights a fire in me. I'll do everything in my power to help him as well as people like him. Mercy and compassion are not feelings; they act. Like love, they are verbs. The Book of James says that when we need mercy, God will take into account whether we've shown others mercy. There are real souls behind these cases. Meeting Mr. Erwin was a powerful event. There's a time for punishment. And there's a time for mercy and compassion. It's time for mercy and compassion.”

Clemency for Mr. Erwin

As it stands, if Mr. Erwin is not granted Clemency, he will die alone in federal prison. 

Every single person reading this has needed and will need compassion and mercy in this life. Mr. Erwin needs both. 

We are currently working on connecting Mr. Erwin with a skilled Clemency advocate who can free him.