The Search for Silver Linings in Defeat – Bret I. Parker

Some of the most satisfying legal matters I’ve handled in my career have been pro bono cases. From a food stamp case as part of a law school clinic, to a civil rights trial for a prisoner when I was at a law firm, to the many pro bono cases I handled while working as an in-house attorney, these representations sharpened my skills, provided me a way to give back, and often resulted in the most appreciation I’ve ever received from clients. But in pro bono, we sometimes face an uphill battle to an uncertain victory, and cases don’t always end as we would like. Attorneys don’t often tout their “losses,” but having just failed to get my client the justice I believe he deserved, I’m here to say that I’m glad I took on the case. Let me explain.

Peder Jakobson was approximately five years into a seven-year prison sentence in connection with a motor vehicle accident that occurred when he was 27 years old when I agreed to take his request for clemency on a pro bono basis. Driving under the influence of a variety of drugs on a drizzly morning after attending a concert the night before, he collided with another vehicle. The driver of the other car was injured, but recovered. There was no evidence that Jakobson was speeding, going against traffic, or driving erratically, and he immediately expressed remorse at the scene, stating, “I’m so sorry, oh my God, man, I’m so sorry.” Portions of his conviction were vacated on appeal by the Appellate Division, Second Judicial Department, because the Court found that Jakobson had not acted with depraved indifference to human life.

This incident was the culmination of childhood and young-adult years during which Jakobson struggled with alcohol, drugs, and mental health issues. The crisis that landed him in prison forced him to address his problems, and as a result of his incarceration he had been free of alcohol and drugs for a lengthy period of time for the first time since he was a teenager. Jakobson had suffered from attention deficit hyperactivity disorder (ADHD) and other related conditions for which he received years of treatment and medication, all of which made school challenging. Despite these issues, Jakobson stuck with his education. He received his high school diploma and then attended the University of Vermont, but struggled. He attended Nassau Community College, was on the Dean’s Honor List for some semesters, and received his Associate’s degree, and he attended the State University of New York (Old Westbury) for a few years, just one semester shy of receiving a B.S. degree.

Had first-degree counts not been at issue, Jakobson would likely have faced a lower sentence than the seven years he received and would likely have been out of prison by the time he requested clemency. Additional time in prison would only delay his return to being a productive member of society and extend the financial burden on the government, which would have to house, clothe, feed, and provide medical care for him. Whenever he was going to be released from prison, Jakobson had a fulltime job waiting for him. He hadn’t maintained relationships with the troubled people with whom he associated at the time of the accident when he was in his 20s (he is now in his mid-30s), and he had the ongoing support of his family, who stood ready to welcome him home.

In the clemency request I submitted, I attached as an exhibit an opinion piece headlined “Can You Get Over an Addiction?” that ran in the New York Times in June 2016. The author’s description of how she matured and was able to kick her addiction as she emerged from her early 20s mirrored Jakobson’s story. After serving nearly five years in prison, Jakobson was clearly ready to reintegrate into society without risk to the public or himself. He had made a horrible mistake several years before and had been incarcerated long enough that the best course for his re-entry to society, and best use of the government’s resources, was to allow him to return home as soon as possible.

Despite my best efforts, and a number of helpful and constructive contacts with the Governor’s office, the petition for clemency was effectively denied.

As disappointing as this was, I don’t think the effort was totally for naught. I know that’s easy for me to say when I wasn’t the one in prison. But representing Jakobson involved frequent conversations with him and his mother, and both were clearly appreciative that he hadn’t been just locked up with the key thrown away. I believe that even the prospect of an early release helped keep Jakobson clean and sober, and it gave him and his family hope as well as faith in the criminal justice system. I also believe that Jakobson’s rehabilitation and application, when combined with similar stories, could encourage decision makers and policy makers to view cases involving substance abuse through a medical and rehabilitative paradigm rather than through the prism of punishment. In addition to the years he did, maybe that’s another small way Jakobson paid back his debt to society.

Jakobson was recently released from prison at the end of his term.

Bret I. Parker is Executive Director of the New York City Bar Association.