May 16, 2017
By Victoria Law, Truthout
In the federal prison in California, Michelle West described people standing in front of the television in shock this past Friday as they learned about Attorney General Jeff Sessions’ memo, which promises to intensify the war on drugs.
“They knew it was going to be bad because of his past comments regarding the criminal justice system, but not this bad,” West said.
In federal prisons across the country, a similar scenario played out as people, many of whom were sentenced under the drug war policies of the 1980s and 1990s, learned about Sessions’ two-page memo entitled Department Charging and Sentencing Policy. The directive instructs federal prosecutors to pursue the most serious, readily provable offense. It thus resurrects the emphasis on mandatory minimum sentencing requirements, which have required judges to impose draconian sentences for drug crimes, even when they don’t believe these sentences are warranted. Sessions’ memo rescinds and reverses the reforms implemented by former Attorney General Eric Holder, which urged prosecutors to charge people with low-level drug cases to avoid triggering mandatory minimum sentences. Nearly half (or 92,000) of the people in federal prison are serving sentences for drug convictions.
Michelle West is one of the thousands of women who was charged and incarcerated under the policies that Sessions is now resurrecting. She was sentenced to life in prison and has spent the past 24 years behind bars.
Ramona Brant, who spent years in the federal system with West, was also a victim of mandatory minimums. In 1995, Brant, a mother of two young children, was sentenced to life in prison for drug conspiracy. It didn’t matter that she had not actually sold any drugs. Nor did it matter that she had endured six years of abuse from her boyfriend and had police records to prove it.
What mattered to the prosecutor, said Brant, was that she refused to accept an “open plea” agreement, which would have meant testifying against her boyfriend in exchange for a plea bargain that didn’t come with a specified sentence. In other words, she might testify and still end up serving time.
Brant refused the plea and was charged with conspiracy. At trial, her public defender failed to present police reports that evidenced the abuse she’d suffered, or call on family members to testify about her boyfriend’s violence. If he had, the jury might have heard about Brant’s attempt to end the relationship — and her boyfriend’s retaliation. Her brother was beaten up in front of his wife and children; her boyfriend told Brant that her mother would be next if she didn’t come back. She returned and, she recalls, from that point on, was forced to travel with him, always surrounded by his men. In other words, she was present during drug-related transactions, but she didn’t have much choice.
In court, however, that amounted to conspiracy. “Someone said I was always present. And I was,” she told Truthout. “My children’s father was very abusive, so I wasn’t there willingly.”
Brant was convicted. At sentencing, the judge told her, “It appears to me that it would be counterproductive for society to keep you in prison for the rest of your life. I think that after you learned your lesson, that you will come out and have the capability of being a useful citizen.” Nevertheless, sentencing guidelines required him to hand down a mandatory life sentence. The chances that Brant would emerge from prison at all were virtually nonexistent.
However, Brant was one of the lucky ones. In December 2015, she was granted clemency by President Obama, as one of his 1,715 sentence commutations. She walked out of prison three months later, having served 21 years. Few incarcerated people are hopeful about a sentence commutation under Sessions or Trump — and Brant noted that Sessions’ recent memo makes their situation appear even bleaker.
Brant isn’t the only clemency recipient horrified at the return to failed drug-war policies. Amy Povah, who was incarcerated for a drug offense, was granted clemency by President Clinton in 2000. She is now the founder and president of CAN-DO Foundation, a national organization that advocates for clemency for people in federal prison for drug convictions. During Obama’s presidency, Povah pushed tirelessly for sentence commutations. She organized with family members to bring attention to their loved ones’ draconian sentences. She spoke with media, communicated with over 200 people in prison and held vigils outside the White House. Of the 105 women eventually granted clemency, 44 (including Brant) were CAN-DO members. Many had played peripheral, and sometimes unwilling, roles in drug sales, and, faced with plea bargains that included prison time, chose to take their chances at trial.
“It’s frightening to me that they’re going to return to these tactics,” Povah told Truthout.
As reported earlier on Truthout, Povah was initially sentenced to 24 years and four months for conspiracy related to her husband’s ecstasy dealing. In contrast, her husband — who fully cooperated with the authorities and named his wife as part of the conspiracy — was sentenced to six years in a German prison. He served four years and three months, and left prison in 1993. That year, Povah was still looking at 20 more years behind bars. By the time she was granted clemency, her husband, who was responsible for her arrest and incarceration, had been out for seven years.
Under Sessions’ directive, others in Povah’s position will be facing similar scenarios. Though Sessions has said that the directive “advances public safety,” Povah notes that her own story, as well as numerous others, have shown otherwise.
Even under the flawed logic of the criminal legal system, it’s difficult to see how these women’s long sentences could have anything to do with ensuring “safety.”
Povah points to the trial of Michelle West, who was convicted of drug conspiracy and abetting a drug-related murder in 1993. The murder charge against West and her then-boyfriend hinged on the testimony of the man who had actually committed the murder. That man was granted full immunity in exchange for testifying, and did not serve any prison time.
West pointed out that the policy that Sessions is returning to encourages people accused of crimes to place others in danger; it rewards “informing” on friends and relatives, and often, the people punished most severely are not the ones who committed the offense in question. She noted that, had she accepted a plea bargain and cooperated, she would be home by now. But cooperating would have meant informing on others — placing others who were only tangentially associated, in the same position as herself. Cooperating also could have jeopardized her own and her daughter’s lives, a risk that West wasn’t willing to take. West received two life sentences plus 50 years.
When she learned about Sessions’ memo, she was devastated.
“Sessions’ new directive will worsen racial disparities, increase the number of women serving draconian sentences, like my own, and do nothing to improve public safety,” West wrote.
Under Sessions’ directive, even in the rare instance that a prosecutor wishes to make an exception to pursuing the highest possible charge, they must obtain approval from a US Attorney or an Assistant Attorney General.
Nkechi Taifa is the advocacy director for criminal justice at the Open Society Foundations, and works on issues related to sentencing reform and clemency. “We’re going to be seeing people like Ramona Brant and Amy Povah get either life in prison or lengthy sentences,” she told Truthout.
Taifa also noted that when Sessions specifies that an offense should be “readily provable,” that can simply mean that someone who wants a lighter sentence has provided testimony about it. That means that people with the least amount of information to trade — often girlfriends and wives — face the brunt of the system. “That’s why we saw such an explosion of women in the system,” Taifa said.
As of 2015, nearly 60 percent of women were in federal prisons for drug convictions. And, as with any facet of the criminal legal system, race also plays a major role in who is arrested, charged and incarcerated, and Sessions’ memo will no doubt exacerbate the long-term incarceration of many Black and Brown people.
“This is where we get into the institutionalization of racism,” reflected Taifa. “The system is saying it has to be this way.” Though white people are actually more likely to sell drugs, Black people are more likely to be arrested and prosecuted for doing so. Inside federal prisons, 51 percent of Black people and nearly 58 percent of Latinx people are serving sentences for drug crimes.
Sessions’ memo directly impacts the federal system only, but it could also cause reverberations on the state level.
“The feds set a norm, a standard,” Taifa explained. “Who knows what incentives will be held out for states to adopt similar policies?” She points to the 1994 Violent Crime Control and Law Enforcement Act as a prime example. While the Crime Bill was a federal piece of legislation, it provided financial incentives for states to adopt “truth-in-sentencing” laws that restricted parole, mandating that people with violent offenses serve at least 85 percent of their sentences. Oklahoma, for instance, not only has the nation’s highest rate of female incarceration, but the number of people who are 50 years and older in the state’s prisons grew from 85 in 1980 to over 5,455 in 2015. According to the Council of State Governments, much of this growth has been caused by Oklahoma’s adoption of truth-in-sentencing laws.
The resurrection of these policies doesn’t only affect individuals, but also families. Ramona Brant’s children were ages three and four when she was arrested. They were in their mid-twenties by the time she was released. Both of Brant’s parents, as well as her brother died while she was incarcerated. With each loss, Brant was denied permission to attend the funeral because of her life sentence.
While Brant was able to secure a clemency under Obama, Alice Johnson, who was sentenced to life in prison for passing phone messages about drugs, is still experiencing the devastation of being torn away from her family. “This is my 21st year of being in prison and separated from my children on Mother’s Day,” she wrote. “The failed War on Drugs created a culture which caused the over-criminalization of women who, in too many cases, received much harsher sentences than men. The families who have been destroyed and the children who have been left motherless are the unseen casualties. Even the suggestion of re-energizing the War on Drugs should be cause for great alarm for Americans.”
Povah concurs. Sessions’ new directive, she said, “is just more kerosene on the fire that’s been raging for way too long in this country.”
Inside the federal women’s prison in Alabama, Johnson wrote that she and others were filled with “shock and unbelief that he has given those directives after all the studies which have shown the aftermath of what the War on Drugs has NOT accomplished. We are living the reality of the past harsh sentencing and mandatory minimums. The women are very down in spirits because, for sure, there does not appear to be any relief in sight for a long time; in fact, it looks like things are about to get a lot worse.”
Across the country, at the federal prison in California, there is a similarly somber tone. “The mood has been doom and gloom since Obama left office and it shows on a lot of the faces of the ones who have extremely long sentences,” wrote West. Povah, who is in contact personally with 150 people in federal prisons, has heard similar sentiments repeatedly.
But while the mood in federal prisons is grim, advocates on the outside are determined to keep fighting.
“Power concedes nothing without a demand. It never did, it never will,” reflected Taifa, quoting the well-known words of Frederick Douglass. “We need to remember that. We may feel our protests aren’t changing anything, but we need to become a sustained justice movement. We need to be creative and be audacious.”
Copyright, Truthout. May not be reprinted without permission.
Victoria Law is a freelance journalist who focuses on the intersections of incarceration, gender and resistance. Her first book, Resistance Behind Bars: The Struggles of Incarcerated Women, examines organizing in women’s jails and prisons across the country. She writes regularly for Truthout and is a contributor to the anthology Who Do You Serve, Who Do You Protect? Her next book, co-written with Maya Schenwar, critically examines proposed “alternatives” to incarceration and explores creative and far-reaching solutions to truly end mass incarceration. She is also the proud parent of a New York City high school student. Find more of her work at victorialaw.net.