CRAIGSVILLE — After an ongoing News Leader investigation, the same prosecutor's office that helped put Nick Robinson behind bars as a teen for more than three decadesis now willing to back his bid to be released early from prison.
"We would support Mr. Robinson’s petition for clemency given his apparent remorse, his good behavior during incarceration, and his efforts to prepare himself to return to society as a peaceful and productive citizen," saidKelli Burnett, Richmond's deputy commonwealth's attorney.
It was seen as a stiff sentencefor a crime wherenobody was injured, especially in a case involving a young Black man — a segment of Virginia's population historically over-policed and slapped with more severe punishments than white defendants.
But does the Richmond Commonwealth's Attorney's Office share part of the blame for Robinson's harsh 33-year prison term?
It was Burnett whopiled up the charges against Robinson — many of them carrying mandatory minimums prison terms —and then opted to prosecute him as an adult after initially only issuingtwo charges against him in juvenile court.
After a jury found Robinson guilty of the 2008BB gun robbery (the gun was unloaded) and convicted him of nearly 20 charges, because of the way he was chargedthe judge had no optionbut to sentence him to the minimum of 33 years in prison. Robinson was just 16 years old when sentenced.
Some argue he was done in by what's known as the "trial tax."
In Virginia,when a defendant exercises their right totrial and dares to reject a prosecutor's offer, a complete about-face by the prosecutor can sometimes takeplace, as it did in Robinson's case.
Burnett said she had her reasons for charging Robinson the way she did,but few so much as blinked an eye when theyoung teenage boy was "disappeared" and orderedlocked away for 33 years.
Twelve years later, Robinson, 28,remains in prison at the Augusta Correctional Center in Craigsville.
Doing the crime, then lots of time
There was no longterm planning of the robbery, just a small group of teens and young menscheming one night inside a Richmond apartment in December 2008.
At the time, Robinson had beenstayingwith his older sister and her two small children for almost two years after his mother began living with a convicted sex offender. A younger brother and sister also resided in the cramped two-bedroom apartment.
Robinson handed an unloaded BB gun pistol to one of his accomplices and the four of themdescended onto their chosen target — the closest house to Robinson's apartment complex.
The robbery of several individuals inside the home, including a child, was swift but not smooth. The BB gun was pointed at a woman's head before oneof the victims wrestledthe unloaded weapon away from one of theassailant's. Soonthe group,with Robinson manning a backdoor the entire time, was off and running with a small amount of stolen property.
Within 20 minutes, officers from the Richmond Police Department were already at Robinson's apartment. He and a second accomplice, a 19-year-old, were arrested. Two others managed to avoid capture.
Robinson said he was initially charged as a juvenile with robbery and a gun charge.
But after rejecting a plea deal, Burnett choseto try him as an adult and slapped him with a robbery charge for each victim, seven in all. To go along with the seven robbery charges, he was also hit with eight charges of use of a firearm in the commission of a felony, each charge carrying a mandatory minimum of five years in prison, except for one, which was a mandatory three-year term. There was also a burglary charge.
While the case was still in juvenile court, Robinson said he was advised by his defense attorney, Robert Shrader Jr., not to take the first plea offer, which would have given him an indeterminate amount of time in the juvenile system. "He said don't take that, we're going to see how the preliminary hearing playsout," Robinson recalled.
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After the prelim, Burnett hit Robinson with a slew of charges.Hesaid a second offer was made the day of his trial.
"Headvised that it was a pretty good plea," Robinson said of Shrader.
His mother thought he should take the second offer. But Robinson saidShrader, who died this year in March, also told him he had a 50/50 chance of beating the charges.
"I chose not to take it," said Robinson, who doesn't deny that he was"guilty as hell."
Because his gun convictions carried mandatory minimums (one was dismissed), following his convictions in 2009the judge had no option but to sentence Robinson, then just 16 years old, to 33 years in prison as an adult, the minimum amount she could possibly give him.
Fast-forward about a dozen years laterandRobinson is still living in cramped quarters, only "home" isa cell with 72 square feet anda double bunk, a toilet and a sinkhe shares with his cellmate.
Inmates at Augusta Correctional are allowed a few belongings in their cell. One of them isa 15-inch TV, but it will put them back about $230.
"If your family'sfortunate enough help you pay for that, because ain't no (prison) job gonna do that for you at 27 cents an hour," said Robinson, who shares his TV with his cellmate.
Inmates can buy fans from the prison commissary, which are much needed at Augusta Correctional Center during the hot months.One version is 8 inches for $40, and a smaller one that is 6 inches goes for $20. Robinson said the smaller versionreminds him of the cheap hand-held fans that sprayed water when he was a child.
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Mattresses are coveted, with some inmates trying to fool correctional officers by combining two for more comfort. It's almost impossible to convincingly conceal two mattresses together and inevitably they're always caught, Robinson said.
Inmates can only have as many commissary items in their property box —about 2 feet by 3 feet —that it can hold, according to Robinson. They can have some pictures on the wall, and are allowed up to 10 books.Certain book topics, however, are off limits, such as martial arts or computer science books.
"I'm at capacity with that," Robinson said."Most of my books are educational."
He also gets a daily newspaperand said it helps him stay up on current events as well anything political in his former city of Richmond, where he hopes to one day run for city council.
"My plan is to intern with somebody in politics," said Robinson, who obtained his GED behind bars, works as a prison tutor and has taken several college courses. "I'm very serious about the political world."
But for now, he can only fantasize about being on the outside. And with prison comes time, time to think about lost loved ones — Robinson's father died in 2016 —and dreams of whatcould still be.
Do prosecutors have too much power?
Mandatory minimums, in Robinson's case and in many others, are to blame for his disproportionate sentence. Without the mandatory minimums, thejudge couldhave decided Robinson's fate once he was convicted. Instead, the judge was cut out of the decision-making processbecauseof Burnett'sdecision to hit him with so many charges that carried mandatory minimums.
"Once the prosecutor decides to invoke it, it's over," said Kevin Ring, president of the Washington D.C.-based Families Against Mandatory Minimums. "Every other system actor is cut out. Even the jury is not allowed to know that the defendant is facing a mandatory sentence."
According to Ring, mandatory minimums have given prosecutors too much power, and he said they often abuse this power when a defendant opts to taketheir case to trial instead of accepting a plea deal. In other words, if a suspect doesn'tplay ball with the prosecutor,they get hammeredfor exercisingtheir constitutional right to have a trial. Ring said it's commonlyknown as the "trial tax."
"That is not how that's supposed to work. That has no relation to justice," he said.
Ring said the following example happens far too often: a prosecutor offers a defendant a three-year plea deal, but when the defendant turns down the offer and opts to go to trial, the prosecutor then slaps them with acharge that carries a 15-year mandatory minimum.
"That 12-year delta has nothing to do with public safety," Ring said.
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The system, as it is currentlyset up, has made the courtroom trial a rare occurrence and made the criminal courtsa system of pleas, according to Ring.
"This is how they get plea deals, is because of the coercion that comes with threatening those longer sentences. It's why 97 percent of all criminal cases end in plea deals. There's no trials anymore — the trial is disappearing. But for the public that watches 'Law & Order'and sees every case start with an investigation and end with a trial, that's just not how it works," he said. "You have a right to put the government to its proof. You should just be able to go to trial, that's the right you have."
Ring said mandatory minimums have always been part of the penal code, at both the state and federal levels, but he said they proliferated during the 1980s and 1990sduring an effort to "get tough" on crime and to rectify what some deemed lenient sentencing by judges.
"All it did was change who decided the sentence, becausenow it's the prosecutor who decides when and against whom to bring a mandatory charge," Ring noted.
Ring, who spent 20 months in federal prison after being ensnared in the Jack Abramoff investigation more than a decade ago, wasn't always against mandatory minimums, and said he helped draft new laws as a staffer on Capitol Hill in the late 1990s that instituted mandatory minimums for meth dealers.
"Back then, I thought prison and sentencing reform were problems that only plagued 'others'— the bad people, the wayward children from broken homes, the criminal class.
"I ended up serving time with people whose unnecessarily long sentences were caused by the laws I helped write," he told USA TODAY in 2018.
Ring said another issue in cases like Robinson's is "sentenceinflation,"and he said Americans have become de-sensitized to lengthy prison terms, be it a child who is given three decades in prison as an adult for a crime where there were no injuries, or a drug courierwho gets a quarter of a century for shipping methamphetamine.
"Thirty-threeyears doesn't sound bad in a country where we're giving out 25 years for drug offenses," Ring said."It's nuts in any rational world. Sentence inflation has made us numb."
Nicole Porter, a spokesperson forThe Sentencing Project in Washington, D.C., said the trial tax is a "stain on the United States" and something that happens regularly in Virginia becauseprosecutors are abusing their powers. She said Robinson's case is not unusual.
"I'm sure in every courthouse across the state there are similar examples ofyoung men who have been disappeared behind Virginia's prison walls and have been subjected to an extreme amount of time," Porter said. "The idea thatprosecutors would abuse their authority tocreate case outcomes (where) they have all the advantages is abhorrent."
Porter said because Black people are over-policed in general, the trial tax has had a disproportionate impact on Black defendants. "Race is a huge factor," she said.
Virginia prosecutor responds to sentencing
Burnett said she initially charged Robinson based on the evidence police had gathered at that point in the investigation.
"The victims in the case did not speak English, and not all of them were interviewed by responding officers on the night of the robbery. It took some time for the detective to conduct full interviews with the assistance of a Spanish interpreter," she said in an email to The News Leader.
Burnett labeled the crime a "terrifying experience," and said home invasions can be extremely traumatic for victims. The prosectorsaid after Robinson rejected the first offer and pleaded not guilty, she moved forward with additional charges that "were reviewed and approved by supervisors."
Butwhy so many charges when initially Robinson only faced two as a juvenile?
"A prosecutor must prepare for all of the risks that come with trial," Burnett said in the email."These include the possibility that some witnesses will not be available after several months, or that a jury will convict on some charges but not others."
Stacking the deck, she slapped Robinson with the seven robbery charges, eight gun charges with mandatory minimumsand a burglary charge.
"Mr. Robinson was represented by an experienced attorney who specialized in juvenile criminal matters, and who would have explained the severity of potential outcomes to his client," Burnett said.
Robinson remains buried under the convictions.
Dreams of family dinners, Disney
While Robinson is making the most of his time behind bars by tutoring, taking classes, educating himself in his downtime, mentoring inmates, writing poetry,working on his mental health and trying to stay focused on the present, there are times when his mind delves into his past.
He dares to imagine a future beyond his prison walls. Robinson regrets that he longer has his father's brain to pick for advice. He also relishes the chance to go to another family reunion.
"I wish I would have taken advantage of them more," he said.
If and when he does get released, Robinsonplans to do some traveling, and would especially like to experience a cruise. "I always wanted to go on a Disney cruise!" he said, unable to mask his excitement.
Another thingRobinson misses is family dinners on Sundays, something that despite their economic circumstances was a regular event at his sister's apartment before he was locked up.
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But, for now, Robinson remains behind bars at Augusta Correctional Center. Because of the pandemic, he hasn't seen anyone in his family for more than a year as the DOC has yet to resume visitations.
During visits with family, Robinson said it's the one time inmates can relax and be themselves, and for a brief moment in time they can almost forget they are prisoners of the state. That's the upside to visitation.The tremendous downside is catching that last glimpse of family when they leave.
"That's when the moment of reality hits," Robinson said. "It's almost like when the judge tells you 'rise' (and)you hear the verdict.And when you hear it,and you're going to prison...you look back and the last people you see is the people you love."
Seeking an assist from Gov. Northam
To help earn his freedom and get him back into the community, Robinson has reached out to John Coggeshall, a Norfolk attorney who specializes in securing pardons for inmates who are wrongly held for disproportionately long sentences when compared to their crimes.
Coggeshall was instrumental in helping getting pardons for four Virginia inmates the past few years, all of whom were serving either life sentences or decades behind bars for their crimes, including Travis May, who was interviewed in 2018 for a News Leader article.
Like many other pardon petitions that have been sent to the governor's office in years past, Coggeshall said Robinson's 2017 request has not been granted or denied.
"Nobody seems to know what happens to them," he said of the petitions.
Coggeshall said he re-filed Robinson's pardon petition with at least 20 additional exhibits in an effort to sway the governor. The only other option that Coggeshall said he has is that he can seek Robinson's parole after 20 years thanks to a new law signed in 2020 by Gov. Ralph Northam. The law allows those who were sentenced for crimes they committed before they were 18 a chance for parole eligibility after two decades. That means Robinson, if not pardoned, will have to wait another eight years for a parole hearing.
"Looking across the board, his best option is a governor's conditional pardon," according to Coggeshall.
Coggeshall said Robinson's sentence "shocks the conscience," a legal phrase in the U.S. that judges can use to intervene in an effort to remedy a case. He isn't shocked, though, that Burnett chose to charge him so harshly.
"It's difficult to get upset with commonwealth's attorneys, that's their job," he said. "It's not their job to be sympathetic or empathetic. Their job, what they get paid for, is to represent the victims."
Brad Zinn is the cops, courts and breaking news reporterat The News Leader. Have a news tip? Or something that needs investigating? You can email reporter Brad Zinn(he/him) at bzinn@newsleader.com. You can also follow him on Twitter.
