Many oppressed by mandatory minimum sentencing
Kemba Smith freed by Clinton
Steve Schell
January 2001

Just 3 days before Christmas, Kemba Smith walked out of prison a free woman--and she has President Clinton to thank for it. Kemba was among 62 men and women who were granted clemency, pardoned, or had their sentences commuted by the President as he prepares to leave office in January.

Kemba Smith had been in prison for over six years, a victim of this nation's expensive and ineffective War on Drugs. "President Clinton's commutation of Kemba's sentence answers our prayers--nearly seven years of prayers, which seem like an eternity," said her parents, Gus and Odessa Smith. In a statement, Kemba said, "Since I was incarcerated in September, 1994 . . . I have dreamed of the opportunity to be an everyday parent." She can finally begin that now, with her son Armani, who was born while she was in prison.

In the early 1990s, Kemba was a sophomore at Hampton University in Virginia when she became involved in a relationship with Peter Hall. Hall turned out to be a drug dealer who used young women as drug-carrying mules in his crack distribution ring. Initially, Kemba had no knowledge of Hall's drug activities. But gradually, Hall began to use Kemba in his business--she bailed him out of jail, she carried money for him, rented a storage space or rented a car. She also began to fear him as he became abusive toward her. She never actually handled any drugs, yet she was charged with trafficking 255 kilograms of crack cocaine.

A doctor testified at her trial that she was a classic victim of battered woman's syndrome, unable to break from her abuser. But Federal District Judge Richard B. Kellam said, "I think there isn't a soul alive that can understand how any woman or girl would permit some man to beat on her and then continue to live with him and to love him." He sentenced her to 24 years and 6 months in prison, a sentence greater than the average state sentence for murder or voluntary manslaughter.

The NAACP Legal Defense and Educational Fund took her case pro bono in 1996. Director Elaine Jones said it was a dramatic example of the need to eliminate mandatory minimum sentences. Congress established mandatory minimum sentences with the 1986 Anti-Drug Abuse Act, passed just when crack cocaine was coming to the fore, and signed by President Reagan just a week before Election Day. The 1988 Omnibus Anti-Drug Act went further, adding mandatory sentences for simple possession of crack cocaine and changing the drug conspiracy penalties so that a co-conspirator faces the same penalties as the person who actually commits the offense. The Acts were hailed as a way to eliminate big-time drug traffickers. The high-level players, however, will many times cooperate with the authorities and offer up information in exchange for reduced sentences. Peripheral players, like Kemba Smith, don't have any information to offer and many times end up with longer prison sentences than those who run the drug rings. Among all controlled substances, crack is the only one with a federal mandatory minimum sentence for a first offense of simple possession.

Under mandatory sentencing, if you are found to have possessed or distributed a specific amount of a particular substance, you will serve a legislatively-mandated number of years, regardless of the circumstances of your crime, your character or any other mitigating factors. The judge has zero discretion and must impose whatever sentence the legislature requires. Conspiracy laws are even worse. Under mandatory sentencing, people who sell even small quantities of drugs can wind up with extreme prison sentences. But under conspiracy laws, even those who don't sell drugs but who merely have the bad fortune, or judgment, to be associated with people who do, can wind up with those same sentences.

The "conspiracies" that lead to these convictions rarely involve overt plotting and scheming to distribute large quantities of drugs. For a woman whose husband or boyfriend is involved in the drug trade, conspiracy may consist of having drugs in the house, taking phone messages from drug associates or driving the husband or boyfriend to the bank to make a deposit. In many cases, prosecutors are not even required to prove that a "conspirator" knew she was committing any of these acts. A finding that she should have known what her husband or boyfriend was up to has been enough to secure a conviction. "President Clinton has acted correctly," Jones said. "We hope Congress will move forward to reform these overly harsh sentencing policies."

Laura Sager, Executive Director of Families Against Mandatory Minimums, said, "these individuals are the tip of a very large iceberg. There are thousands of low-level, nonviolent offenders in federal prisons and more pouring in every day."

"As her attorney I'm extremely relieved that there's a happy ending to this story," said Donald J. Munro, a Washington lawyer who helped in Smith's appeal. "This is an extremely sad case and I'm pleased and grateful that the president has listened to us and decided to pardon her. I also hope that Congress takes this as a sign that the sentencing guidelines and sentencing laws of this country need to be reviewed."

Also freed was Dorothy Gaines, of Mobile, Alabama. She had been sentenced to 19 years and seven months. Gaines' 16-year-old son Phillip wrote to Clinton seeking a pardon for his mother. "I said the greatest gift you could send me was to send me my mom. And he did it."

Dorothy was serving her sentence at the Federal Correctional Institution in Tallahassee. Although the government had no physical proof of her guilt, Dorothy was convicted on two counts of conspiracy to possess and distribute over one and a half kilograms of crack cocaine. All the government had was the testimony of others - some of whom were defendants from the same busted drug ring and who faced long prison terms unless they cooperated with the prosecution to build cases against other suspects. The defendants knew her name because she was an acquaintance of one of their friends. But because she didn't name names, she did not have her sentence reduced. One witness, who was already serving time for prior felony convictions on gun and drug charges, was released early. The ringleader was facing a possible life sentence, but he helped the government build cases against others - including Dorothy, and was sentenced to less time than Dorothy was.

Sentencing guidelines were born out of the noble intention to reduce inequality in our justice system. Too often judicial discretion meant that blacker, poorer defendants got stiffer sentences than whiter, richer convicts. But the plan has backfired. Poor minorities remain the overwhelming target for harsh sentences, but now the drug war's ever more voracious appetite finds victims within every class and race. Even Drug Czar Barry McCaffrey admits that "we can't incarcerate our way out of the drug problem." And this from Rep. Henry Hyde: "Not only are such sentences morally troublesome, they threaten to sap the willpower we must maintain to deal with the true threats to society." It's past time for mandatory minimum laws to be repealed. It's the first step in ending our miserable War on (some) Drugs.

Clemency is an umbrella term meaning a merciful or lenient act by a judge, governor or president. A commutation reduces a criminal penalty, such as shortening a prison term. A pardon releases a person from the punishment of a crime. States have different criteria for restoring the individual rights of those granted presidential pardons, according to the Justice Department.

Families Against Mandatory Minimums
November Coalition:
Also see the book, Shattered Lives, available at the Civic Media Center.

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