A weekend visit to family on Long Island, New York, turned into Kenneth Hogan’s last days of freedom.
At 20 years old, Hogan was a father of two and his mother’s main support system. Hogan says he sold drugs in Albany, New York, to financially survive and yet he aspired to break his family’s generational curse. He was the last of his siblings to serve time in a local jail or state prison, but that changed in 2000. Hogan was arrested along with his cousin for the murder and robbery of his cousin’s associate. Hogan admits he was present when the shooting happened, but he was not the shooter. Law enforcement tied the gun to his 19-year-old cousin.
What Hogan wasn’t prepared to wrap his young adult brain around was the complexities of the criminal justice system and its felony murder law or the legal concept of “acting in concert” that have placed more Black people under 25 years old in prison for lengthy sentences even though someone else pulled the trigger.
Hogan sits inside the Eastern Correctional Facility in Napanoch, New York, 23 years later, as his attorneys are making a second attempt at petitioning the New York governor’s office to grant him clemency. He’s also among the thousands of Black men whose cases, prison reform advocates say, underscore how young men and boys are unjustly stuck in the criminal legal system for decades because of poor legal representation and harsher prison sentences.
Black men receive harsher prison sentences than white men who commit similar crimes, according to the U.S. Sentencing Commission. And although national figures on the racial disparity of felony murder convictions are not available, The Sentencing Project, a nonprofit criminal justice reform and research organization, has found that the number of Black people in Pennsylvania, Missouri, Michigan, and Cook County, Illinois, with felony murder convictions far outweigh other races. In a 2022 investigation, Injustice Watch, a nonprofit news organization, found that in Illinois, “Black men 25 years old and younger made up about 40% of those charged with felony murder.”
Since 2002, 86% of those convicted of felony murder are Black or Latinx in New York, according to details of a bill introduced in February to the New York State Assembly that seeks to repeal the state’s felony murder rule.
Hogan says that he would have accepted a seven to 15-year plea deal had his trial attorney properly advised him on the offer. Instead, Hogan gambled his fate with a predominantly white jury in Nassau County that convicted him without hearing his testimony. The jurors would never know that beyond being a Black man from the projects who sold crack cocaine and did not kill anyone, Hogan was always in survival mode. His parents were addicted to crack cocaine, to which, at 11 years old he stole a drug dealer’s stash and sold it to a neighbor for $30 to get groceries for the house.
At sentencing, Hogan says he was remorseful and apologized to the victim’s family. Nonetheless, the judge gave Hogan the maximum sentence for murder in New York, 25 years to life, and ordered the 25- and 15-year sentences for the robbery and gun charges, respectively, to run concurrently.
“I was punished for exercising my right to go to trial…There’s no reason why I should be sitting here doing 25 years when I was offered seven to take a plea,” the now 43-year-old says from inside Eastern Correctional Facility in June. “For my children, yes, I would have taken the plea.”
The pitfalls of ‘trap sentencing’
Michael Thompson is not only making up for the time he lost with his children and grandchildren, but the 72-year-old is also calling for an end to harsh sentences that sent many of the men of his generation to prison.
In 2021, Michigan Gov. Gretchen Whitmer granted him clemency. He served 25 of a 60-year sentence in prison for selling 3 pounds of marijuana.
Shortly after, he launched the Michael Thompson Clemency Project, a nonprofit prison reform advocacy organization. He’s joined in the call to reform felony murder and felony firearms charges. A recent poll by the Families Against Mandatory Minimums found that 79% of Pennsylvania residents are in favor of reforming their state’s felony murder laws.
He’s also calling for the end to what he calls “trap sentencing” – when charges are stacked against a suspect that weren’t a part of the original crime and can result in longer sentences. Thompson says that felony murder is a form of trap sentencing. As a result of the 1994 crime bill, sentences for nonviolent drug convictions were enhanced if a murder happened during a sale, and resulted in the mass incarceration of mostly Black people.
[READ MORE: The Land of the Free Leads the World in Incarceration. Why?]
“Long-term sentences need to be revisited because when a person committed a crime 30 years ago, they’re not the same person when they committed that crime. Mentally, they are no longer involved in crime, especially if they were caged up that long, ” Thompson said.
“When is enough, enough?” Thompson asked, especially for those who did not have the intention to kill when a crime happened.
Thompson and Hogan say their experiences are proof that the criminal legal system needs to seriously consider the long-term impact of incarceration on mental health.
Several studies have revealed what being incarcerated does to one’s mental state, yet, prosecutors and judges continue to recommend and render, respectively, multi-decade sentences. And federal sentencing guidelines with mandatory minimums are still in place.
Thompson says serving one day- let alone 25 years – in prison will change anyone, especially those under 25 whose brains aren’t fully developed.
Thompson says his memory is burned from years of being under constant surveillance by prison guards as he used the bathroom, showered, washed clothes in his cell’s toilet, and ate “garbage” quality food. He says it was even more horrific to watch other incarcerated people getting sent to the hole, being chained up “like a dog” to be transported to the healthcare facility, and the mentally ill who were placed in the general population despite having a history of mental illness.
“It’s a little bit insane to take a human being for a mistake that they made, put them in a box and do nothing else. And then we say this increases public safety when it does not. It absolutely does not,” said Cynthia W. Roseberry, the leader of ACLU’s Redemption Campaign and acting director of its Justice Division. “All of the resources that we spend, for example, on young Black men, to incarcerate them, we should spend on the front end to make sure that they have all of the things that a community needs to thrive.”
Clemency, Remorse and Second Chances
Throughout Hogan’s 23 years of incarceration, he says that all he could do in between filing for appeals was sit back and wait to get permission to go into the law library, work, take college classes, sign up for self-development courses, and get certified for skills he believes he will use beyond prison walls one day.
After exhausting all of his appeal options, Hogan set his next goal with his attorney Malik Shabazz to petition New York’s governor to have his sentence reduced to time served through the clemency process.
This is Hogan’s second attempt at clemency. After his first rejection from former Gov. Andrew Cuomo, Hogan became eligible to take personal and professional development courses. He has completed over 100 hours of self-development courses, is certified in safety and health training by OSHA (Occupational Safety and Health Administration), and last month received his bachelor’s degree from Bard College.
Although Hogan is eligible for parole in two years, he says his prayers are to get home to his children, wife and family sooner.
Clemency is an executive power given to the president, governors and parole boards that is written in the Constitution. Advocates say that clemency is not used enough for low-level marijuana convictions, the elderly, and ill people who are languishing in prison under old laws, and for those incarcerated under technical violations of probation and parole, especially those who tested positive for marijuana.
“We want retrospective application of that law to reflect an evolution in our thinking for people convicted of drug distribution and possession offenses. We have evolved in our views on drug possession and distribution and the law needs to reflect that,” Roseberry said.
But anytime those executive powers are used to release someone convicted of a homicide-related crime, there’s understandable backlash from the victim’s family and some members of the community who feel that their elected officials are releasing criminals into the community to repeat their offenses.
Kimmi Herring, associate vice president of community programs for Safe Horizon, a nonprofit crime victim advocacy organization in New York City, says that some families are strongly opposed to clemency.
“The families that I have worked with where someone has been arrested, tried and convicted, what I can say is, I haven’t had any family that is totally satisfied with the sentence much less thinking about the day that this person would be up for parole or granted clemency,” Herring says.
Because judges tend to give the maximum sentence for homicide-related convictions, loved ones of the victim have the option to have their recorded or written victim impact statement available in perpetuity for the parole board if the convicted person becomes eligible.
“The process of considering clemency can be emotionally challenging for families. It can bring up painful memories, reopen wounds, and generate intense emotions. The possibility of clemency can also disrupt the grieving process and create stress and uncertainty. For some clients, it’s unbearable,” Herring says.
Research from The Sentencing Project shows that people who were convicted of violent crimes such as homicide were less likely to get rearrested for the same crime, and dozens of law enforcement officials including district attorneys from across the country have agreed that extreme sentences should come to an end.
“More people understand that a need for a second chance is important,” Roseberry says. “People are not disposable and our system has treated people as if they’re disposable after they make one horrific mistake.”
Hogan says once he’s out and gains employment, he wants to donate 10% of his annual salary to the Crime Victims Association and work with the local police department to help get guns off the street.
“I’m not trying to diminish the crime, the crime was serious and someone lost their life,” he says. “I’m guilty because I brought a weapon from Albany because I was selling drugs so I carried a weapon. That’s my involvement. They know I didn’t pull the trigger.”
Correction: Kenneth Hogan received a bachelor’s degree from Bard College last month. An earlier version of this story misidentified his degree.
