Retroactivity Needed Now to Right an Unfair Sentence | FAMM

Retroactivity Needed Now to Right an Unfair Sentence

Brian Keys is ten years into a 15-year sentence for selling drugs in a school zone, his first felony. Remarkably, he now has the support of the judge who sentenced him, plus the sheriff of the county where Brian was arrested. Both of them see a man who has changed and lives a sober, productive life as best he can behind bars. And both see a man – like many others in the state’s prisons – who is serving an outsized sentence under Tennessee’s old harsh and unfair school zone law. The law has been changed, but it’s not retroactive.

 

Brian Keys’ life took a tragic turn when he was just a child, in 1988. “My brother Brent and I were only 13 months apart. He was my best bud. During spring break from T-ball practice, we went to Florida on vacation. Brent was only 7, and I was 8.” One terrible day of the vacation, Brent drowned in the ocean as Brian stood watching in horror, unable to do anything to help his “best bud.” “I still don’t understand why he was taken so young,” says Brian, now 41.

It’s impossible to know exactly how early trauma affects a person’s life, but Brian’s family struggled hard for equilibrium following Brent’s death. Brian’s parents divorced, and his father’s health declined. Although he remained a loving father, he developed a gambling problem.

For a while, Brian seemed to rise above the difficulties, joining the Honor Society at school, playing sports, and working toward what he hoped would be a promising college career.

But then tragedy hit again. “I don’t believe my dad ever got over Brent’s death. We found him dead from a massive heart attack. I was 16. After this, I dropped out of school, got with the wrong crowd, and started using drugs.” In the years that followed, Brian struggled to stay afloat but addiction had him in its grip. He started various small businesses and took classes at community college. Eventually, though, he got sucked back into a dead-end lifestyle, using more drugs, and eventually dealing.

“I was a junkie. In 2011, a childhood friend asked me to find him some drugs. I sold to him to support my habit.” It turned out that the “friend” was a confidential informant, and Brian was arrested. He was charged with three counts of selling cocaine in a drug-free school zone – within 1,000 feet of a school. The sales occurred in the informant’s home, with no children nearby, and Brian did not know he was within 1,000 feet of a school, but Judge Robert Holloway couldn’t consider any of this at sentencing, and was forced to hand down a mandatory 15-year sentence.

The location of the drug sale wasn’t the only thing that the judge couldn’t take into consideration. He couldn’t let anything he knew about Brian, Brian’s family, or Brian’s addiction influence the sentence. The same holds true for every other person sentenced under Tennessee’s drug-free school zone law before July 1, 2020. Since that date, Tennessee judges now have the freedom not to apply the mandatory sentence. There are still 400 people in prison serving sentences under the old drug-free school zone law. FAMM has urged the governor to grant clemency to those people.

All these years later, Judge Holloway now has written in a letter of support of commutation for Brian: “Mr. Keys sold cocaine and deserved to be punished. However, based on my experience with sentencing defendants in drug cases, if I would have had discretion like trial judges now have, I would have sentenced Mr. Keys as a Range I standard offender for a Class B felony and two Class C felonies to an effective sentence of eight years at thirty percent service … Mr. Keys has served over ten years of his sentence and I support commutation.”

Brian has another unlikely ally — Maury County Sheriff Bucky Rowland. In a letter of support, he wrote, “Although my knowledge of Mr. Keys is limited, I do know he has a strong support system behind him when he is released from incarceration… I’ve been informed of the progress Brian has made during his incarceration and find hope for his future.”

Brian also has hope. “I should have stayed in college,” he says now. “I took art classes in college because I loved to draw. I have been drawing since I was 5. I want to keep learning, I want to get my degree and keep growing.”

Returning to those early dreams, he’s not wasting any time now; he’s filled his years in prison with as much education as he can get. He was granted admission into a highly selective prison education program with Nashville State Community College for two years. He’s taken advantage of as much prison programming as possible, and has worked several different jobs.

His mother, Donna Keys Witherow, has been a source of huge support, as well as the rest of the family. They have given him a second chance; now they just want the system to do the same. The law that put him away for so long has changed, and so should his sentence. Meantime, Brian works hard at self-reflection and keeping hope alive. “I try to keep a positive attitude and try to encourage others. No one can take my joy away.”

FAMM is fighting to make retroactivity a reality – in Tennessee and beyond. Please join FAMM and help us. Sentencing laws have been reformed, but Brian and so many others have been left behind. If a law is wrong today, it was wrong years ago, as well.

Brian (top right), his mom (top left), and his cousin

The Facts:

Name:  Brian Keys

Sentence:  15 years

Offense:  Schedule II drugs, Drug Free School Zone

Priors:  None

Year sentenced:  2012

Age at sentencing:  32

Projected release date:  2026

State: Tennessee
Issue: Drug-free school zone law