Snitch-driven prosecutions and mandatory minimums lead to justice system nightmare

Snitch-driven prosecutions and mandatory minimums lead to justice system nightmare
Joe Courter
February 1999

A panel discussion on mandatory minimum sentencing entitled "The Kemba Smith Nightmare" revealed the ugly and unjust side of the drug war. The forum was held in January at the new Seminary Lane Center, and although there was little press coverage, the information presented was astounding. Panelists included University of Florida Law Professor Kenneth Nunn, and County Court Judge Phyllis Kotey, as well as concerned local citizens. The panelists agreed that recent changes in the laws, law enforcement techniques, and the way cases are prosecuted have created snitch-driven justice, and incredibly long sentences for minor offenses.

Kemba Smith is a 23-year old African American woman now in prison on drug conspiracy charges. She had been a college student in Hampton, Virginia, and became the girlfriend of a guy who was an entrepreneur in the drug trade. She had no other arrests, not even a traffic ticket, but because of her involvement with this man she was sentenced to 24 years in federal prison. Hers is just one of many cases. Dr. Nunn cited another:

"Let me tell about Stephanie George, a 27-year old hairdresser with 3 kids. She was not a perfect angel, she had a couple prior [convictions], a couple small-time state drug cases. Her boyfriend, however, was a crack dealer. He kept his crack in her attic and when they busted him, they busted her. He did a long sentence, he got a big time sentence; he got 26 years, doing a little more than Kemba is. But Stephanie George got life; she had 2 prior [convictions]; minor misdemeanor kinds of drug possession cases. This was her third strike, so she got life, Federal life, no parole, no nothing. Stephanie is serving her time in Tallahassee."

This case illustrates another point, which is that mandatory sentences for crack cocaine are much more severe than for cocaine powder. Although it is the same drug, crack sentencing hits African Americans harder. That fact, coupled with mandatory minimums and draconian "3 strikes" rules, mean a lot of people are facing long terms in prison for one or a few relatively minor offenses.

From the panel discussion, the picture emerged that the drug trade, as it plays out in Gainesville and many other places, is a trade that is more monitored than shut down by the ever-expanding police forces and ever more intrusive search and trespass laws. Where the drug trade is allowed to take place, and by whom, becomes a tacit agreement between dealers and cops. Who goes to jail and for how long becomes a function of mandatory sentencing guidelines and the deals people cut for their "downward departures." Often these downward departures involve setting up someone else for a bust; those better at setting up a bust get less severe sentences, or can even stay in business on the street, while those who are busted and who have nothing to offer because they are so low in the trade hierarchy, get the brunt of the severe sentences.

Dr. Nunn cited another example: "Kelly Mann was a college student in California. She met a boy, her boyfriend, and the boyfriend said, 'you know, I'd really like to get some LSD, I'm living in Atlanta now and I can't find it. You're in California, can you get it and send it?' So she went--she'd never bought drugs before, never had any involvement with them, but she loved this guy--so anyway she went and looked around, tried to find out where she could get some LSD. She found some LSD, she was naive, got it from a dealer. The dealer called the police, and said, 'look some woman is going to send some LSD to some guy in Atlanta, be on the look out for it--and you owe me a favor now.' And so what happened is they busted the boyfriend when he picked up the LSD. Of course he told it was the girlfriend who sent it. She's serving ten years in the Federal Penitentiary. Her boyfriend who said 'send me the LSD' got three years."

"Tracy Hill is a young woman who has an IQ of 76 ... She took 125 grams of crack from New York to DC for her boyfriend. And she, as a consequence, with no prior record... wound up with ten years. Her boyfriend, naturally, got four years--he's already done. The interesting thing about Tracy Hill is it depends on the philosophy of the US Attorney who is in the office. Tracy Hill was prosecuted under Joseph DeGenova and they were prosecuting everything that happened, so she got ten years. But she wouldn't have been prosecuted as a federal case because they will not prosecute anything less than 1000 grams in DC now. So she was 900 grams below this, but she got her sentence fair and square, so she's doing her time in the Federal Penitentiary as we speak..."

"What these cases have in common is that they're 'girlfriend cases.' And that's what they're referred to as in the system. They're a dime a dozen, they happen all the time. What mandatory minimum sentencing means is that [it hits] people who are low on the totem pole, the girlfriends, the people just running across the street, the mules. ... The problem with the guidelines of course is that you can get the downward departure, but the only way you can get that is if you "cooperate." If you're the low person, you have nothing to cooperate with, so you're stuck, whereas the boyfriend, who's the real drug dealer, gets off. How do they get off? By snitching."

"[As documented in the recent Frontline documentary] it's transformed criminal justice. Instead of a situation where people are caught doing something wrong,and then the police prosecute them and they do their time, the police are generating crime because they are sending people out to commit crime and to catch other people, so that they then can prosecute them, and everybody gets back on the bandwagon the next time down the line, because it's the only way to get a reduced sentence. So everybody's out there churning up some crime, trying to find more people. That's the way the system is going."

The constant generation of more cases of dubious merit does nothing for the actual problem of poverty, lack of jobs, or drug use, panelists pointed out. All these cases do is provide statistics that seem to demonstrate that police are doing their job, that crime is being fought and kept at bay. This illusion is in lieu of more direct assistance such as drug treatment, jobs, education, and counseling. It does, however, provide a boost for the booming prison industry... Mandatory sentencing guarantees long-term virtual slave labor.

Since the court system is flooded with cases, according to the panel, cold-blooded sentencing guidelines have been installed simply to process the volume. Points are assessed to the circumstances of a case--the person's prior convictions, circumstances of the crime, to the point that the state presentation of the case removes the judge's ability to be flexible in sentencing--it's all a formula. And different jurisdictions enforce their sentencing at different levels of severity. The Hampton area where Kemba Smith was prosecuted is very severe, Dr. Nunn commented. He also said our own district here is very severe. Often this severity in prosecutions is inversely proportional to the actual crime problem in the area, meaning areas of high crime, like large urban areas, are much less likely to charge people to the full extent of the law, because if they did such mandatory sentencing would paralyze the system. Whereas in areas where major crime isn't so severe, but the police budgets and "corrections" facilities capacities are high, the prosecutor will go after people to the fullest extent, as if to justify their existence.

Panelists and audience members cited ways this runaway "fight against crime" is also an assault on our rights, from expanded rights of police to search your vehicle, to roving wiretaps where a targeted person's use of your phone can lead to your phone being tapped, to blanket trespass warrants, where everybody entering, say, a housing project, has to justify their presence there and be subject to questioning.

Dr. Nunn noted that the war on drugs and drug prevention are not the same thing: "Clearly, [these] cases... tell us something is wrong with the way justice is being served. The Rand Corporation did a study on the drug problem and among the conclusions, they found that if you spend $100 million on tougher sentences, you will see a 13-kilogram drop in consumption, but if you spend that same money on treatment you will see a 100-kilogram drop, that is, ten times more of a reduction in [drug] consumption."