In 2018, when Michigan legalized recreational marijuana, then-Gov.-elect Gretchen Whitmer pledged to help people trapped in the criminal legal system for pot crimes. “I think that the people of Michigan have said that for conduct that would now be legal, no one should bear a lifelong record for that conduct,” she said.
Whitmer now has a chance to do just that. On January 29, Michael Thompson, who has spent nearly 24 years in prison for a pot crime, filed his third petition for clemency. The petition will go through the state’s parole board, which will consider the severity of Thompson’s crime and whether he’s changed. Once they issue their recommendation, Whitmer can decide whether to pardon Thompson or commute his sentence. A spokesperson from the governor’s office told The Intercept that if recommended by the parole board, “this is something we will review closely.”
Thompson’s incarceration, which he’s serving at Michigan’s Muskegon Correctional Facility, stems from a 1994 incident in which he sold pot to an old friend who was working as a police informant. After he was busted, police raided his properties, where they found guns, including some that were antiques, some locked in a safe, and a firearm that belonged to his wife. He hadn’t been armed during the pot delivery and didn’t have a history of gun violence. But prosecutors used a mix of Michigan’s three-strikes law, mandatory minimums, and “constructive possession”— a vague legal term that allows prosecutors to pin a gun possession charge on someone who was not carrying a gun at the time of the alleged crime — to get him locked up for 40 to 60 years.
The longest part of Thompson’s sentence stems from the gun charge, and he and his lawyers argue that his case should be viewed as a nonviolent drug offense.
“It’s a marijuana case,” said Kimberly Corral, Thompson’s attorney. “And even if it were a gun sentence, it’d still be absurd.”
Even as pot becomes legal in more states, people can still get entangled in the criminal legal system for using or selling weed (according to the American Civil Liberties Union, black people are four times as likely to be arrested for pot, despite not using the drug at greater rates than white people). Although — obviously — marijuana arrests rates fall when pot is legalized, they don’t end entirely, new data from the Department of Justice shows. And as The Intercept previously reported, in some nonlegal states, pot arrests can go up after legalization in neighboring municipalities, while in legal states they don’t fall as sharply as one would assume: It’s actually pretty easy to run afoul of the rules of tightly regulated legal markets. Unsurprisingly, young people of color are more likely to be targeted, as NPR reported in 2016.
“I am truly anticipating the Michigan Governor to show humanity, instead of continuing this political madness.”
The length of Thompson’s sentence is extreme, but his case is typical in the sense that few people are serving long sentences solely for possessing pot. The continuing prevalence of habitual offender laws and mandatory minimums (and, in some cases, the rush to impose gun control without considering what that would mean in terms of locking more people up) mean that despite good-faith efforts to roll back the excesses of criminal law, lawmakers have to reframe “violent” and nonviolent crime if they’re serious about reform. And that means considering mercy for someone like Thompson, who wasn’t a first-time offender but shows all indications that he doesn’t intend to commit crimes if he is released early from his 40-year sentence.
It will take the state’s parole board at least two months to decide whether Thompson’s clemency petition has merits. That time frame is designed to allow two separate 30-day notification periods for prosecutors, the sentencing judge, and other public officials to weigh in. Overall, the process will likely take four to eight months, Corral said. If he’s denied, he can’t reapply for another two years.
“I am truly anticipating the Michigan Governor to show humanity, instead of continuing this political madness,” Thompson, who is 68 years old, wrote in a message to The Intercept last week. “After [almost] 24 years I have become sort of numb. However, I feel truly blessed today!! Because I truly believe that ‘God’ will answer all my prayers and turn this evil incarceration into a promising future.”
Thompson’s last bid for freedom was denied by the parole board and then-Gov. Rick Snyder on November 21, 2018, a few weeks after Michigan voted to legalize pot. The parole board is not required to give a reason for its denial — and didn’t in this case — making the process opaque and confusing to petitioners trying to gain their freedom.
His latest petition argues that his offense was nonviolent in 1994 and essentially legal now. Plus, his sentence is far harsher than penalties handed down for actually violent behavior. “All of Michael’s convictions were victimless crimes,” the petition reads. Legally speaking, Thompson is still in prison because of the gun charge. But Corral points out that this is a technicality that does not negate his argument that he counts as a nonviolent drug offender.
“The nexus between the sale of the marijuana and the guns is preposterous,” said Corral, who recently took up Thompson’s case, after hearing about it from Brittany K. Barnett, a lawyer for Alice Marie Johnson, the nonviolent drug offender whose sentence was commuted by Donald Trump. “He sold marijuana. The transaction didn’t happen in his home, so the warrant was suspect. The money to buy the drugs wasn’t found in his home either. He didn’t ever have a gun on him. The concept of constructive possession … it’s a legal fiction. Michael was never seen carrying the gun, didn’t use the gun.”
In contrast to Thompson’s victimless crime, actual violent crimes are, on average, punishable by far less time in Michigan. In 2017, the average sentence handed down for homicide or attempted murder in Michigan was 12 years. Child sexual abuse: 7.5 years. Armed robbery with serious injury: 11.3 years.
“You can shoot somebody with a gun and get less time,” Corral said. She hopes Thompson will be let out by his birthday in April, but she worries that bureaucratic drag will unduly delay his release. “He shouldn’t spend one more day in prison,” she said.
Thompson is almost 70. Even if he had been violent in his youth — of which there’s no evidence — research affirms that almost all people age out of violent criminal activity. And Thompson has had a stellar disciplinary record. “I’ve only observed Thompson as respectful towards the officers and other inmates,” his morning correctional officer wrote in a recent behavioral report. “I’ve heard of no complaints about him + haven’t had any negative interactions with him.” A Department of Corrections spokesperson told WZZN that Thompson’s record was “remarkable.”
His clemency petition is supplemented by statements from a handful of men he has been incarcerated with. At Muscogee, Thompson organized a workshop intended to help men process their feelings, eschew violence, and fulfill their family obligations. Some of the men he spoke with will get out; many have life sentences. Nevertheless, the workshops, they wrote to the parole board, helped them talk about their lives, process their feelings, come out with a better understanding of themselves.
The men described the power of watching Thompson break down crying when he shared with them what it was like to learn that his only son had died while he was in prison. Robert Cannon, who helped organize the workshop, said he broke down after listening to Thompson. “I too revealed some deeply hidden secrets and when I shared how I had been used up by the men that raised me, I broke down, which surprised me because I don’t remember the last time I shedded tears.”
Another man concurred. “You have to understand that it was very unusual for men in prison to bear their heart and souls to total strangers, but these guys did, so it compelled me to tell me more of what they were saying to everyone,” the man, who is serving a life sentence, said.
“I have to say that I have never met another man in prison like Mr. Thompson who became like a grandfather figure to me, which I never had and he showed me that I was more of man because I wasn’t afraid to show my emotions in prison,” a younger incarcerated person observed.
Thompson also counsels younger people who are incarcerated alongside him, sharing his story to help them do better on the outside. He thinks most of them are smart kids, who need some help dealing with their emotions as well as access to good, mentally stimulating jobs, to prevent them from succumbing to a life of crime. If Thompson’s petition for clemency is approved, he wants to continue counseling young people to stay away from violence and crime, especially those involved in gangs. “I want to help our community big time,” he told The Intercept. “These kids … everyone is turning their heads. We need to get these guys in a workshop, get them jobs, good quality jobs.”