Case Story: Overturning a Life Sentence

In the late 1980s, Congress passed a series of federal laws related to criminal law and sentencing. And by and large, these laws were harsh and punitive. Perhaps the most well-known was something that’s become known as the “three strikes you’re out” law.

The law basically says that if you’re found guilty of a federal crime, and you have three prior felony convictions on your record, you must receive a life sentence. 

The idea is you have had three chances before, you haven’t learned your lesson, and so now you don’t get any more chances. And while such a structure has some appeal in the abstract, in practice, what resulted was an explosion in life sentences for people who didn’t necessarily deserve it.

That’s what happened to our client, Donavan Slagg. 

A long-time drug addict, Donavan racked up a number of low-level drug possession convictions. Then, to pay for his addiction, he made the terrible decision to sell a small quantity of drugs.

You know the rest.

He was eventually caught, charged federally, and convicted. And while he normally would have faced between 15-and-20 years in prison (still a long sentence for small-time drug dealing!), because of his prior convictions, the judge had no choice but to sentence him to life in prison.

Life in prison for selling drugs.

And that’s the way it stayed for nearly 20 years. Then, by sheer luck, we got involved and things began to change. Using a change in federal law, we were eventually able to overturn his life sentence and get him an “out date.”

Here’s how.

The Conviction

Donovan lived and used drugs in Bismarck in the early 2000s. He was an addict and making poor life choices. These choices caused him to be convicted of various state drug possession crimes. He never sold, he only used.

That changed around 2009.

Out of money, but still in the throes of addiction, he made the fateful decision to begin to sell drugs to pay for his drug habit.

A stupid choice, no doubt. But also a common one.

And in fact, in our experience, usually the number-one reason people begin selling drugs in the first place. They aren’t looking to get rich; they’re just trying to get high.

Donavan was no different.

So he began selling, and as is also usually the case, he eventually got caught. Once caught, he was charged federally. Importantly, all this happened long before he was our client.

And so when the case was about to go to trial, he had to make a choice: take a deal and receive an objectively long prison sentence (somewhere around 15-and-20 years) or go to trial and either go free or face life.

Why life?

As noted above, because of the “three strikes you’re out” law.

Against the advice of his lawyer, he rolled the dice, went to trial, and lost. Which meant a life sentence for selling drugs.

It’s hard to even write that sentence with a straight face. A life sentence for selling some drugs to pay for his addiction. It’s hard to understand in what world that is even remotely fair.

And don’t just take our word for it. Even the judge who sentenced him knew it, as during sentencing he noted how he did not think a life sentence was appropriate or fair, but that he had no choice and his hands were tied.

Basically the law is the law, and it is what it is.

So Donavan went to federal prison for what he thought would be forever. He’d only get out in a body bag. And that’s exactly what he believed for nearly 20 years.

He did his time. Things stayed the same. And it didn’t seem like anything would ever change.

But then, miraculously, in 2018 it did.

The Change

In 2018, Congress passed a law called the First Step Act. And while it did many things, its main goal was to overturn some of the harshest parts of the federal laws passed back in the 1980s.

One such “fix” was the “three strikes you’re out” law that doomed Donavan.

The details are complicated, but basically the First Step Act said that people should not get life sentences under the old “three strikes you’re out” regime and instead should just get long prison sentences.

Basically a return to the way it was before.

Now this was a huge victory in its own right. Because going forward, nobody in the federal courts would get life sentences under “three strikes you’re out.”

But what about the people who were sentenced under three strikes? Do their sentences still stand? Or do they benefit from the new law?

Congress, like it loves to do, split the baby.

It did not automatically make the First Step Act retroactive—meaning applying to people already sentenced—nor did it say it could never be retroactive.

Instead, it adopted a case-by-case approach.

The way it works is simple. And Donavan’s case is the perfect example.

He was sentenced to life in prison under the “three strikes you’re out” law before the First Step Act was passed. Had he been sentenced after the First Step Act was passed, he would with 100% certainty not have been sentenced to life in prison.

Because he could prove that his sentence would have been different had he been sentenced after 2018 instead of before 2018, he had the ability to ask a judge to “fix” his sentence and give him the “new” sentence under the First Step Act.

And so that’s what we did.

We filed a motion with a federal judge and made that very argument: had Donavan been sentenced after 2018 instead of in 2010, he would not have received a life sentence, and so his sentence should be changed to fit the new law.

Now on its own, we thought this was a good challenge and we felt it had a good chance of succeeding. But as with everything in federal court, things take time.

And what that means practically speaking is more time in prison for Donavan.

He didn’t want that.

We didn’t want that.

So we began to brainstorm other possible options to get him out as soon as possible.

What we landed on was a pardon.

The Pardon Request

The reason we landed on a pardon was mostly just lucky timing. It was the end of a presidential administration, and usually when presidents are leaving office, they are more willing to pardon people.

It’s politics. Both sides do it. We take no position on that.

We always just do whatever we can for our clients.

So when we realized a pardon was an option, we began doing some more research into Donavan’s issue and realized it was an issue that was bubbling up around the country.

In short—thousands of people had been sentenced to life in prison for nonviolent drug offenses under the “three strikes you’re out” law. And many people working in the criminal justice space believed this was wrong. And that something should be done about it.

Sure, everyone could go through the courts.

But to save time, an idea had been floated to ask the administration’s pardon attorney to grant a mass pardon to all the people who fit in this “life for nonviolent drug crimes” bucket.

So that’s what we did.

We reformatted our motion to the federal judge and transformed it into a “request for a pardon.” We explained the situation, the unfairness, and most importantly, how Donavan had fundamentally turned his life around in prison.

That was really important for us to tell.

Because when people are sentenced to life in prison, it’s common for them to get a case of the “screw its” and not be the best inmate.

Donavan was the exact opposite.

He believed 100% that he was going to die in prison. And yet he never gave up, he never stopped trying to better himself, he never stopped turning his life around.

He exemplified the adage: “The true measure of a man is what he does when nobody’s looking.”

The Grant

Luckily, the pardon attorney took notice.

And saw that Donavan 1) didn’t deserve a life sentence for a nonviolent drug offense, and 2) had turned around his life and was exactly the type of person who deserved a pardon.

So they gave him one.

With a stroke of the president’s pen, Donavan’s life sentence was reduced to 280 months. Still very long (to account for his large number of addiction-related crimes), but far shorter than life.

He got his out date. He got his second chance. He got his life back.

And although the current state of American politics maybe makes it seem like this isn’t the case, getting a pardon is actually extremely rare.

The fact we got one for Donavan is a huge deal. It literally saved his life. He’ll breathe free air again one day, when for nearly 20 years he did not think that would ever happen.

While the administration deserves credit for pardoning all these nonviolent drug “lifers,” Donavan also deserves credit.

He did the hard work. All alone. With nobody watching. With no “end” in sight.

This was simply the just culmination of all he worked for.

The Takeaway

This job is like solving a Rubik’s Cube. 

When the first pattern (relief from the court) doesn’t seem to work, you have to just twist the cube and look for a new pattern that works (pardon). 

The only thing you cannot do—and something, sadly, far too many attorneys do—is give up.

You can never ever give up.

For it’s only then that things become impossible.

Donavan never gave up. He could have.

But he didn’t.

And because he didn’t give up, it allowed us not to give up on him.

We owed it to him, and to ourselves, to keep fighting. And justice won. 

He deserved to be punished. But not for his life to be taken.

The wrong has been made right.

And for that, we’re eternally grateful.

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Read the Fargo Forum’s story about Donavan’s case here.