Gordon Johnston’s application for clemency is one of more than 400 that have been sent to Gov. Jared Polis’ desk since he was first elected.
Johnston, 46, is in his 12th year at the Sterling Correctional Facility and his story goes like this: At 9 years old, he was removed from his mother and her boyfriend’s home in Missouri because they were using a lot of drugs and neglecting and abusing him.
Johnston was sent to group homes and bounced around until he was 17 years old. No one ever tried to adopt him. He didn’t have any social or emotional support.
At 18, he no longer qualified for group-home living and was essentially kicked out. Still in Missouri, he was homeless and constantly scratching around for food and clothing. He fell in with a guy who convinced him that selling cocaine was easy money. Johnston was never a drug user but found the money he made from selling drugs hard to turn away from.
By 1999, he had been arrested for a third felony, a crack possession charge. He went to prison for a few years, and by 2006 he had successfully completed parole in Missouri. He moved to Colorado where he could be near a surrogate family who lived in Denver and promised to help him.
But he fell on hard times again, and his lawyer said he felt too ashamed to ask his family for help. Johnston went back to selling drugs — this time it was ecstasy.
He was eventually arrested again and when he was in Arapahoe County court in May 2011, prosecutors offered him a plea bargain of 4 to 8 years in prison, if he waived his preliminary hearing. Johnston agreed to that and his attorneys filed a motion seeking the identity of a confidential informant. Ultimately, another prosecutor withdrew that original offer and instead pushed towards a trial and added a habitual sentence enhancer, according to his petition for clemency.
Sentenced in Colorado
In 2010, Johnston was sentenced to 64 years in prison for the nonviolent offense -- that enhancer added by prosecutors, plus the fact he went to trial, meant a mandatory sentence of four times the maximum prison term that otherwise could have been imposed, his lawyer said.
“You begin your tumultuous journey with very little hope and then as time goes on you begin to find your rhythm and there is a pattern you develop for your day-to-day,” Johnston said, in a phone interview with his attorney from prison. “I’m not one to believe bad things are necessary to create opportunity, but I do believe the best of us find a way to prevail under duress.”
In prison, Johnston has participated in the canine science program and is among the best trainers inside. He has now trained more than 60 dogs and his skill level is such that they frequently assign him the most difficult dogs with disabilities or behavioral problems. He also trains service dogs.
“It was about finding something that I can call my own, and I discovered dogs,” he said.
Johnston has served 12 years in this case and his parole eligibility date is in 2040.
His lawyers and his family say he has three main things going for him right now: acknowledgment and understanding about his past crimes; proof that he has worked hard to distinguish himself in prison as someone who can be useful and a hard worker; and a supportive family on the outside who have vowed to help him.
“There are regrets in terms of what I’ve done and how it affected the people who mean the most to me, but if I had it over to do again, I think I have the formula for success,” Johnston said. “I don’t think I’d make the same mistakes … Life is about learning.”
Commission considers sentence reform ideas
Short of Polis’ approval for Johnston’s clemency, there are a number of legislative proposals in the works that could change Johnston’s fate.
This includes a “second look” proposal being worked on by the Colorado Commission on Criminal and Juvenile Justice that would allow incarcerated people to be able to apply to have their sentence reviewed after they’ve served some percentage of their time.
Boulder District Attorney Michael Dougherty is working on a sentencing reform task force. He said the idea, which is still in the works, could allow incarcerated individuals to apply either to a prosecutor’s office or a judge to have their case and sentence reviewed and given a second look to determine whether they could be released.
Dougherty said that prosecutors don’t have control over an imposed sentence — even if they think it may be too high.
“I don’t have the freedom to go into court and say this sentence should be lower as a matter of justice,” Dougherty said. “There are controls in place … and so there have been discussions about whether the DA or the courts should have the power to go back and reduce sentences after some period of time.”
This reform idea is part of a larger discussion on felony sentencing reform taking place on the commission.
Separately, criminal justice advocates are also working on a proposal that would require more transparency in clemency applications and would remove the Department of Corrections from the equation, said Jamie Ray, head of civic engagement efforts at the Second Chance Center.
Currently, there is no generalized data collection on clemency applications and, because Corrections is so understaffed, applications for clemency often get stuck on case managers’ desks or aren’t moved along in a timely manner, Ray said.
She said there isn’t a centralized space where it is easy to see how many people have applied, how many people have been denied, their race and ethnicity, whether a prosecutor’s office supported it and whether the incarcerated person has a private attorney or is representing himself.
In 2019, Polis granted clemency to eight individuals — five pardons and three commutations. In 2020, that number was 22 — 18 pardons and four commutations. Last year, Polis granted clemency to 18 people — 15 pardons and three commutations. He also pardoned 1,351 convictions for possession of 2 ounces or less of marijuana through an executive order.
A spokesman for his office declined to give a timeline of when Polis may grant clemencies in 2022, but in years past it was usually in December.
Her proposed bill would fix the clemency application and transparency part, said Ray with the Second Chance Center.
‘I have no doubt he would succeed if he was given another chance’
Earlier this year, Arapahoe County prosecutors responded to Johnston’s application for clemency saying he didn’t deserve any “extraordinary relief” given his multiple convictions for selling drugs.
“He does not acknowledge the strain placed on societal resources as law enforcement, human services, and medical professionals strive to combat the illegal drug trade and clean up the devastation left in the wake of drug use,” wrote Ann Tomsic, chief deputy district attorney in a March letter to Polis. “He repeatedly has sought relief from the courts, asking to be treated in his sentence as though he is not a repeat offender. However, repeatedly Mr. Johnston engaged in the same illegal conduct, contributing to the ongoing drug problem in this state.”
But Gail Johnson, Johnston’s attorney, believes his case presents several compelling factors that support clemency.
“You have an excessive sentence to begin with, and you have someone who is very rehabilitated from their time in prison and has done good work in prison, and you have a strong re-entry plan,” she said. “He’s not going to live under a bridge, he’s going to end up in the bosom of a warm, loving law-abiding family, who will be there for him. I have no doubt he would succeed if he was given another chance.”
For Johnston, who hopes to live with his surrogate family if he gets out and help take care of his aging parents, he said his dream is to become a professional dog trainer and open an indoor, climate-controlled dog park.
He realizes that may start with first just getting a job at a pet store.
Johnston said he sees himself in the troubled dogs prison officials always send him.
“A lot of dogs end up with the family that gives up on them if they can’t figure out how to fit in to the family dynamic, if they can’t figure out how to overcome their challenges, their personality quirks, they may start out by chewing the sofa and then they lose their home,” Johnston said. “In some ways, I see myself in that.”
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