One woman’s story illustrates the devastating effects of mandatory sentencing for nonviolent, drug-related crimes—a Reagan-era policy that Jeff Sessions is intent on continuing
A Broken System Exposed in The Sentence
cynthia shank was sure it was a mistake. It was February 2008, and a judge had just sentenced the 35-year-old to 15 years in prison. As he read the judgment, she could hear two of her three young daughters—one of them 4, the other 2—playing outside the courtroom in Grand Rapids, Michigan. “This is a mistake. Something’s going to change,” she remembers thinking. “I’m not going to be in here for long.”
Within months of Shank’s incarceration in a federal prison in Illinois, the realities of mandatory minimum sentencing were painfully clear. Nine years later, she would still be behind bars for a nonviolent drug crime.
In 2002, her boyfriend, Alex Humphry, was murdered. When the police searched their house, they found 20 kilograms of powder cocaine, a kilogram of crack cocaine, 40 pounds of marijuana, $40,000 and guns. She was initially indicted for multiple drug crimes and offered a plea bargain—13 years in prison if she pled guilty—which she rejected. “I’ve always said the truth,” Shank tells Newsweek. “I knew what he was doing, but not the extent. I did not sell those drugs. Because there was no evidence against me, my case was dismissed.”
She moved on with her life and married a man named Adam Shank; they bought a house and had children. That all came to an end on an early morning in March 2007; police knocked on the family’s door and arrested her on federal charges of conspiracy to distribute cocaine. “Five years later,” she says, “the prosecutor goes back to the defendants and asks, Are you sure you don’t remember anything about Cindy? They’ve been sitting in prison for five years, they’re facing 20-, 30year sentences, and now they remember stuff?”
No one told Cynthia Shank why her case was reopened, but she and her attorneys suspect those who testified against her were offered a reduced sentence to do so. The result for Shank: She was charged for her knowledge of Humphry’s crimes, and 15 years was the mandatory minimum sentence.
The Sentence, which won the Audience Award at Sundance and airs October 15 on HBO, tells Shank’s story. Filmmaker Rudy Valdez, her younger brother, began making home videos of his nieces on a spare video camera as a way to record them growing up. (At the time, he was a pre-k assistant teacher.) Before long, Valdez began to see the videos as an opportunity to show mandatory minimum sentencing through “the people left behind.” And his sister was eager to cooperate: “Tell everyone,” she told him. “Please, somebody see us.”
Shank’s youngest daughter was 6 weeks old when she was sentenced, and after she was moved to a federal prison in Florida seven years ago, visits from her children, who continued to live with their father, were reduced to once a year. (They became slightly more frequent when Shank was transferred to a Kentucky prison in 2014.) “Missing my daughters grow up, that’s what I was sentenced to,” she says in the film.
Through Shank, Valdez exposes a broken justice system, one that began with the Reagan administration’s war on drugs. Mandatory minimum sentences for nonviolent cocaine and marijuana crimes were introduced as part of the Anti-drug Abuse Act of
1986—an attempt by Democrats to respond to the crack cocaine epidemic following the highly politicized, fatal overdose of college basketball player Len Bias. Mandatory sentences are lengthy for drug offenses; in 2016, the average carried 7.8 years—more than double the average sentence for a drug offense without a minimum. As a result, defendants are encouraged to consider accepting a plea bargain— the option Shank rejected—to receive a lesser sentence than the minimum.
In theory, plea bargains—ruled constitutional by the Supreme Court in 1970—offer leniency to criminals who accept responsibility for their actions, allowing the accused and the state to avoid a time-consuming and expensive trial. In reality, defendants, even if they proclaim their innocence, are often pressured to plead guilty; go to trial, they are told, and you will likely get a much longer sentence. Such bargains have now become the norm: A 2017 New York Times investigation found that 98 percent of felony convictions occurred after a plea deal. And according to annual reports published by the Administrative Office on the U.S. Courts, total jury trials for U.S. criminal cases had
dropped by roughly half between 1997, when there were 3,932 cases, and 2017, when there were 1,742.
The system “allows prosecutors to hold all the cards,” says litigator Marjorie Peerce, co-chair of the National Association of Criminal Defense Lawyers Sentencing Committee. “Even if the government doesn’t have sufficient evidence, people plead guilty, for fear they’ll be convicted, then sentenced with a mandatory minimum,” she says. “People shouldn’t be penalized for exercising their constitutional right to trial.”
And of those penalized, the majority are black or Latino. A 2014 study found that black offenders were 75 percent more likely to face a charge carrying a mandatory minimum sentence than a white offender who committed the same crime. In 2016, Latinos represented the largest racial group in federal prison convicted of an offense that came with such a sentence. (Shank is Latina.)
All of this was news to Valdez, who, after researching mandatory minimums, got involved in prison reform activism by heading to Washington to attend hearings, rallies and protests. He says he spoke to “anyone that would listen, and some people who wouldn’t.” His strategy was simple: Repeat his sister’s name—“cynthia Shank, Cynthia Shank, Cynthia Shank”—in the hopes that when her file reached someone’s desk, they would recognize it.
It worked: Eight years into her sentence, Shank’s application was picked up by former President Barack Obama’s Clemency Project 2014, a Justice Department initiative that encouraged qualified federal inmates to petition to have their sentences commuted or reduced.
“When you talk about mandatory minimum sentencing, you rarely see the people left behind.”
(Qualifications included crimes that would warrant lesser sentences today, nonviolent offenses and good behavior in prison.) The odds were not in Shank’s favor: Over 35,000 prisoners qualified for the initiative, and only 1,600 were commuted. Thousands of lawyers (including Peerce) worked pro bono to help prisoners submit their applications.
For years, Shank received no details on her application. Each time Obama released a new commutation list, she would race to the prison computer and frantically search for her name. She knew time was running out: “As the Obama administration was ending, so was my hope for any form of clemency.” Then, in November 2016, just after President Donald Trump was elected, Shank checked the list and saw her name: “I was on the second-to-last list.” She was released on December 21, 2016.
For thousands of others, the future is grim. In 2010, then–attorney General Eric Holder attempted to roll back mandatory minimums by instructing prosecutors not to specify the amount of drugs involved in a case. This allowed defendants to avoid minimums triggered by a certain quantity of drugs and gave judges discretion to sentence below the guidelines.
It was a Band-aid for a gaping wound—one that Attorney General Jeff Sessions is attempting to rip off. In a May 2017 memo, Sessions ordered prosecutors to “charge and pursue the most serious, readily provable offense” and “disclose all facts that impact the sentence guidelines,” writing that this policy was “moral and just, and produces consistency.”
That attitude has many advocates for criminal justice reform fearing a revival of the war on drugs, as well as an expansion of mandatory minimum sentencing. (Top Republicans, including Trump’s senior adviser Jared Kushner, crafted a bill that would reduce mandatory minimums for nonviolent drug felonies, but in August the president, despite initial signs of support, declined to pursue the proposal until after the midterm elections.)
Shank’s happy ending has been bittersweet: “My children suffered, my parents, my ex-husband—my marriage did not last. We were divorced four years into my sentence.” She doesn’t have the memories of her children that mothers cherish, “the little things I should have seen,” says Shank. “I still don’t get tired of staring at them.”
Her daughters—now 10, 12 and 14—divide their time between their father and mother these days, an adjustment for them too. “I am very strict,” says Shank, adding with a laugh, “Just because Mom was in prison doesn’t mean you can’t do your homework.”
“Even if the government doesn’t sufficient evidence, people will still plead guilty, for fear that they’ll be convicted.”
BEHIND THE BARS Mandatory minimum sentences for nonviolent drug offenses—introduced by the Reagan administration—largely impact minorities.
FREE AT LAST Clockwise from top: Shank, front row center, sitting beside her brother, Valdez, director of The Sentence, and the ɿlm’s producers; Nancy Reagan brandishing a “Just say no” sign, her war on drugs motto; Sessions.