Man sentenced for nonviolent drug offense deserves clemency from Gov. Kelly | Opinion

Deshaun Durham sits in a Kansas prison in Hutchinson hoping for an early release and another chance at freedom. He’s served almost two years of a near 8-year prison sentence after pleading guilty to possession of marijuana with intent to distribute, a felony.

Durham, 23, is a non-violent, first-time offender, according to court documents filed in the case. He was found with what amounts to about 2.4 pounds of pot. If you ask me, he is an unjust victim of Kansas’ archaic war on a drug that is legal in some form in most states.

He asked Gov. Laura Kelly for mercy. His application for executive clemency is under review, according to Eric Rorstrom, legal coordinator for Kelly’s office.

Kelly should strongly consider commuting Durham’s sentence and give him another opportunity to do what’s right. He’s stayed clear of trouble since his 2020 arrest and hasn’t broken any prison rules, his mother Brandi Wishard said.

“I’ve been trying so hard to get people to help me,” Wishard said in a recent phone interview. “It’s been hard. I cry often. I feel bad for him because I know how hard it will be for him when he gets out.”

It wouldn’t be the first time Kelly used executive powers to grant clemency to a non-violent drug offender. In 2021, she commuted the sentences of Joseph Agrillo, Dominic Holder and Loren Thibodo for marijuana-related convictions. They were among 8 people Kelly offered relief to then. She hadn’t granted clemency to anyone before or since.

Prior to his 2020 arrest, Durham’s criminal record was clean, defense attorney Paul Oller of Hays, Kansas, argued in legal filings. Court records indicate Durham’s criminal history level was “I”, the lowest in Kansas, according to state sentencing guidelines.

Despite admitting guilt in May 2022, Durham’s 8-year prison sentence was excessive, Wishard said. I found it hard to disagree with this heartbroken mother. She cried a few times during our interview.

It’s fair to question why Durham received such a harsh sentence. Sadly, Kansas is one of 12 states in the U.S. that has not legalized marijuana for medical or recreational purposes.

At least 54% of Americans live in a state where recreational pot use is legal, according to the Pew Research Center.

Pot column led to email

Recently I wrote about Ken Shimer, a South Carolina man busted with more than 60 pounds of marijuana in Junction City, Kansas. He was sentenced to 52 months in prison. After four years behind bars, Shimer is out now but I questioned the legality of the traffic stop that led to his arrest.

After reading that column, Wishard reached out to me to talk about her son’s conviction. She couldn’t help but notice the discrepancy in prison time. Shimer is white. Durham, Wishard’s son, is biracial and identifies as Black.

She forwarded to me an email exchange she had with Rorstrom, the legal coordinator for Kelly’s office.

“We are still in the process of reviewing Deshaun’s application,” Rorstrom wrote in the correspondence. “As clemency is a discretionary act, we cannot provide an exact timetable for when a decision will be made.”

In a letter sent to Kelly’s office on Durham’s behalf, Wishard wrote: “My concern is not that he was punished, my concern is why are we willing to let a young man who made a mistake at the age of 19, rot in prison for almost 8 years on a first-time marijuana offense? Could he not be given a second chance to make better decisions?”

No one should be in a Kansas prison for nearly a decade for possessing a drug that is readily available in neighboring states Colorado, Oklahoma and Missouri.

‘Victim is society?’

Durham was just 19-years-old when authorities in Riley County, Kansas, raided his Manhattan apartment and found more than 1,000 grams of pot, according to court documents. Two years later, Durham took a plea deal in the case expecting 36 months in prison, a much lighter sentence than the 92-months he was given by District Court Judge John Bosch of Riley County.

Bosch’s sentence was unusual considering Durham’s lack of a criminal record. The ruling also made little sense to Wishard. As she rightfully pointed out, Bosch is the same Riley County judge that onced sentenced a 24-year-old Kansas State University graduate student to two months in prison after a head-on drunken collision he caused killed two people.

Public outcry from the victims’ families and advocates against drunk driving followed the lenient sentence. Prosecutors there appealed and the sentence was overturned by the Kansas Court of Appeals.

In this case, neither Bosch or Riley County deputy prosecuting attorney Bethany Fields took into consideration Durham’s age or criminal history as Bosch did in the drunk driving case.

In response to Durham’s request for a lighter sentence, Fields wrote: “The victim in this case is society and the people the defendant sold marijuana to on a regular basis.”

Fields couldn’t be more wrong. And Bosch’s sentence isn’t remotely fair.

“His sentencing practices don’t sit right with me,” Wishard said.

I reached out to Kelly’s office to find out what factors weigh into these sorts of decisions.

“These factors may include, but are not limited to, the nature of the offense, demonstration of rehabilitation, whether the crime had a victim and victim input, criminal history, disciplinary issues, and indicators of success upon release,” Ashley Stites-Hubbard, Kelly’s deputy chief counsel, wrote in an email.

‘Hard in here at Hutchinson’

Durham was a small-time pot dealer trying to make ends meet, Wishard told me. After his arrest, Durham straightened up, got a job and stayed on the straight and narrow. Before he was sentenced, several people spoke on his behalf, including the owner of a Chinese restaurant Durham worked for in Manhattan.

Durham also has support from the Last Prisoner Project, a pro-marijuana prison reform group. In a blog post from December 2023, Durham shared some of his experience locked up.

“It’s hard in here at Hutchinson Correctional Facility,” he wrote. “I just turned 23 and have been locked up for 20 months already. I get out in 2028. LPP newsletter brought me hope that maybe one day things will change.”

Durham, described in the non-profit’s blog post as a passionate Kansas Chiefs fan, aspires to attend welding school and become a father.

Kelly, a two-term governor with political clout in Kansas, has nothing to lose here. She must act. Durham made a youthful mistake that harmed no one. He and other nonviolent cannabis offenders in Kansas deserve a second chance at freedom.