Conviction is not the end

Not many lawyers can say they helped secure a presidential commutation before they passed the bar. But Bailey Ellicott, L’24, an alum of the Institute for Actual Innocence — or IAI, one of Richmond Law’s criminal law clinics — is one of those rare lawyers.

Ellicott played a key role in IAI’s latest headline-worthy accomplishment of successfully petitioning President Joseph Biden to reduce the sentence of an over-punished clinic client. Portions of her 2L and 3L years focused on helping said client, Leshay Rhoton, return home more than 12 years earlier than her original release date.

While Ellicott is now fresh out of law school, the Institute for Actual Innocence has a 20-year history. Established in 2005 by professor Mary Kelly Tate, IAI takes on post-conviction cases for those who have been overly punished or wrongfully convicted by the criminal legal system. IAI’s academic work builds a story that intimately portrays the client’s character — their personality, history, and oftentimes traumas — to make the case for resentencing, release, or exoneration. It’s also an ideal exercise for budding lawyers on their way to the bar.

“In terms of a learning experience and in terms of actuating a person’s formation of a professional identity, the clinics are a unique landscape,” Tate says. “You can take the knowledge that you have gained in a traditional classroom and bring it to bear in assisting clients who are in situations of dire importance. In a criminal setting, it is [the client’s] life or liberty that is at risk.” The stakes are high. For IAI’s clients — many of whom are serving lengthy prison sentences from both state and federal cases — the work of Tate and her students could mean the difference between freedom and a continued life behind bars. It’s a weighty responsibility — one that the IAI team embraces with dedication and compassion.

The war on drugs

The focus of IAI’s clemency work today arises from changes to federal criminal law in the 1980s, says Erin Collins, a professor at Richmond Law who teaches courses on evidence law and criminal procedure. “There was a serious ramping up of the severity of drug crimes [regarding their punishment], specifically those involving crack cocaine in the 1980s,” Collins says. “This is part of the war on drugs, tough-on-crime era.”

One aspect of this era was the disparity in sentencing between crack and powder cocaine offenses. Despite being chemically identical substances, crack cocaine was — and still is — punished far more harshly. “The way that the federal system punished people convicted of crack cocaine offenses was so severe that you had to have 100 times the amount of powder cocaine to get the same severity of penalty as you did for crack cocaine,” Collins says. While there have been some reforms over the years, including the Fair Sentencing Act of 2010, which reduced the disparity from 100:1 to 18:1, the impact of these harsh sentences continues to be felt today.

The IAI advocates not only for legal exoneration, but also for mercy and fairness in sentencing. Were a client sentenced in the 1980s for crack cocaine to be resentenced today, the outcome would likely be quite different. Tate has expanded IAI’s scope beyond solely factual innocence to add on cases of over-punishment where, in her estimation, mercy is warranted based on the totality of a person’s life circumstances.

“We take cases where I have made the determination that an over-punishment has occurred,” Tate says. “We also take cases where I have come to believe the person just absolutely deserves mercy — that even if you could make the argument that the punishment was proportional, when you look at the totality of the situation, an observer or decider who was operating from a sense of fundamental fairness would say to themselves, ‘This person deserves mercy.’”

A holistic approach — and an effective one

As the Institute for Actual Innocence makes each case for mercy, it addresses the full human context of its clients’ lives and experiences. Anne Wroniewicz, IAI’s administrative coordinator, describes the approach as holistic. “It’s not just that person. Our approach is holistic as to who this person is, holistic as to who their children are, who their parents are, their sister, their brother. It’s everything.”

“A huge component is the social history and the human portraiture of the individual,” Tate says. “For instance, if your client is 50 years old and born in Dallas, Texas, and came from a family with 10 children and was the oldest and the father died when your client was 11 years old, you are going to paint that portrait of what it was like to be that little 11-year-old boy in Dallas, Texas with all those younger siblings and the father dying.”

This nuanced view of justice has led to some remarkable outcomes. In 2017, one of IAI’s clients had his life sentence for a nonviolent drug offense commuted by President Barack Obama. It was a stunning victory that Tate ranks as one of IAI’s proudest achievements.

“We are a tiny operation, and we punch above our weight,” she says. “For 20 years, IAI has involved me, my students, and our administrative coordinator, who is absolutely essential to the team. But we used to be a two-credit clinic that occurred once a year in the spring. By footprint, for 19 of those 20 years, we were absolutely the smallest in-house Innocence Project in the country. Yet we have had two DNA exonerations in the state of Virginia — definitively proving the innocence of those two men through post-conviction DNA testing — and we have had two presidential commutations leading to the freedom of two federally incarcerated individuals. That is extraordinary.”

The clemency process

One of the key avenues the Institute for Actual Innocence pursues is clemency. In 2024, IAI achieved a significant victory when client Leshay Rhoton had her sentence commuted by President Biden. Rhoton’s 25-year prison time — for conspiracy to possess with intent to distribute crack cocaine — became a 12.5-year sentence, more closely resembling the sentence she would likely have received under current law. Rhoton was released in 2024, a success that highlights the potential of clemency as a tool for addressing the lingering effects of harsh drug sentencing policies.

However, as Collins points out, the clemency process is far from straightforward: “A sentence commutation has the same impact as a resentencing, but [pleading] to the president [rather than a judge]. But the thing is, clemency doesn’t give anyone a right to have their sentence reduced. It’s basically throwing yourself at the mercy of the person in power.”

As Ellicott puts it, “It’s the final Hail Mary.” Students like Ellicott, under the guidance of experienced professors like Tate, spend many hours researching, writing, and advocating for their clients. They piece together compelling narratives that not only address the legal aspects of a case, but also highlight the human story of the petitioner.

It is a marathon of information gathering. Students conduct numerous interviews with the client over several months, speaking not just to the incarcerated individual, but also to family members and friends who can provide additional context. They collect hundreds of pages of documents related to the original conviction, a process Tate describes as “laborious.”

As the team builds their understanding of the case, they begin shaping the document that will ultimately be submitted to decision-makers, be it a parole board, a governor, or the federal pardon office. This document must weave together the human story of the client with a rigorous legal analysis of deficiencies in the original case.

“The word choice and narrative flow are eminently important,” Tate says, “because in no way, shape, or form are we diminishing the social harm of drug trafficking or any other offense. We are not diminishing the culpability of the individual who has entered into a conspiracy or such. What we are doing is we are saying: ‘In its totality, when you look at this case, please, decision-maker, use your sense of fundamental fairness and conclude that based on the entire human context of this human being’s life and the legal deficiencies in the case, that society is better served by this individual not remaining incarcerated.”

Once the petition is submitted, there’s nothing left to do but wait — often for months or even years. It’s a process that requires patience and resilience from the students, Tate, and clients.

On a human level

While the legal victories are the essential focus, the relationships formed between students and clients are also deep and sometimes even lasting. “I considered it a win anytime I got to connect with a client,” Ellicott says, “or anytime I could help a client feel better about their circumstances or just feel like someone cares.”

Tate is continually impressed with her students’ abilities to connect meaningfully with IAI’s clients. “To be able to forge and develop, over time, a trusting, respectful relationship with a human being who is in extremis, which incarcerated people are — they are in continuous extremis — to be able to do that as a young person and to do it well is what I am most proud of with my students,” Tate says.

This human connection is not just a feel-good aspect of the work — it’s essential to building the strongest possible case for a client. By developing trust and understanding the full context of a client’s life, students can craft more compelling narratives when advocating before parole boards, governors, or even the president.

“We are putting together narratives that involve a variety of components, and each component is a very different texture in nature,” Tate says. “You have to combine the finesse and poetry of human storytelling with the granular, intensive legalistic analysis, and you have to thread those together. No easy feat.”

A bigger picture

In addition to client work, IAI also addresses systemic issues in the American criminal legal system that create the need for the clinic to exist in the first place.

“For a democracy’s criminal legal system to have a perception of legitimacy, there has to be a widely held view that the system operates in a fundamentally fair way,” Tate says. “And so when we persist in operating our criminal legal system in ways that disadvantage the poor and minorities, we are playing with fire.”