Jus­tice

A Bro­ken Sys­tem Ex­posed in The Sen­tence

Newsweek International - - CONTENTS - by ANNA MENTA @an­nalikest­weets

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 have 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 film’s pro­duc­ers; Nancy Rea­gan bran­dish­ing a “Just say no” sign, her war on drugs motto; Ses­sions.

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