In a similar case in San Diego, Steven White, 32, faced a mandatory sentence of 25 years to life for shoplifting a $130 VCR. He decided instead that a bullet through the brain was the less painful way to go. The suicide note he left offered apologies to his parents for the heartbreak he caused them, but suggested that spending that much time in prison was too high a price to pay for a misdemeanor. The sentence White faced is a result of one of the many federal and state “mandatory minimum” sentencing acts that have been enacted by Congress and various state legislatures since 1986. White’s case fell under California’s so-called “three strikes you’re out” law.
Like me, White had a sporadic history of heroin addiction and nonviolent criminal offenses. His first two strikes–burglary convictions-dated to 1983. His “third strike”–the shoplifting charge, which occurred in 1994–was elevated to a felony by being classed as “petty theft with a prior conviction of theft.” Two judges pleaded with prosecutors not to seek the 25-to-life sentence that the recently enacted law called for. They refused.
Many groups oppose mandatory minimum sentences, including the National Association of Veteran Police Officers, the U.S. Sentencing Committee, the American Bar Association and Families Against Mandatory Minimums. Supreme Court Chief Justice William Behnquist calls mandatory minimums “a good example of the law of unintended consequences.”
There are currently 1.2 million people incarcerated in federal and state prisons in this country. The majority of them are up on drug-related crimes, and many are there as a result of mandatory minimum sentences. The average cost of housing a federal prisoner is $20,804 annually. It is ultimately the taxpayer who foots this enormous bill. Furthermore, the hodgepodge of state and federal mandatory drug sentences sometimes leads to violent offenders-Florida’s rapists, robbers and murderers, for example–being released early to make room for nonviolent, first-time drug offenders serving lengthy, mandatory-minimum sentences.
Ironically, I came close to being classed as a violent offender. On one of my shoplifting sprees I struggled with a Fred Meyer’s department-store security guard as I tried to escape her grasp. If she had described my desperate struggle as resistance and my shoplifting partner’s presence as a threat, I could have been charged with robbery 2, which now carries a mandatory five-year sentence under Oregon’s Measure 11. But the issue is only partially whether the punishment fits the crime. There are a number of federal prisoners doing life without parole for marijuana sales, for example, while rapists are routinely paroled after only four years.
The more central question, however, is this: is it the American way to remove all discretion from judges and invest prosecutors with an extraordinary degree of power?. Are there no circumstances-youth, a previously clean record or varying levels of culpability among codefendants-that might mitigate the degree of punishment that must be meted out? Not under any of the mandatory minimum sentences.
In my case, by the time I appeared before Judge Frankel I had behind me a 15-year on-again, off-again history of heroin addiction that resulted in numerous petty-theft convictions, three felony heroin-pos-session convictions and four stints in county jails.
Judge Frankel was free to weigh this unsavory history against what I had accomplished in the four drug-free years prior to my recent relapse. After my release from jail in 1989 1 went from a homeless ex-offender to a working writer. I also initiated and managed a self-help work project in Boston that successfully employed 19 individuals who were dealing with homelessness, AIDS, addiction and mental illness.
The judge, using the discretionary powers that have been an integral part of the American judicial system for 200 years, sentenced me to 30 days in jail, 90 days of work-release, $700 in restitution fees and two years’ probation. The work-release program allowed me to pay society back through community-work programs, maintain family connections, earn money at outside work to pay a substantial portion of my incarceration costs and to save funds for post-release living expenses.
Contrast my experience with that of Stephanie Lomax, a former Portland, Ore., resident whose family shared her story with me. Lomax and two codefendants were convicted in Nebraska on conspiracy charges involving crack cocaine. White House drug czar Lee Brown recently stated that crack-cocaine mandatory sentences primarily affect African-Americans, thus adding a racial bias to federal drug laws. He calls crack-cocaine mandatory sentences “bad law” based on “bad information.”
Lomax, a 25-year-old pregnant black mother and first-time offender with no previous criminal history, continues to maintain her innocence. She was sentenced to life without parole. This means, literally, that she will die in the same prison system where she gave birth to the child she can no longer hold.
Americans are understandably frightened and frustrated by the impact of drugs and crime on society. One can only hope that our fears have not also destroyed our sense of compassion and justice, and that we can still respond to Stephanie Lomax (and untold thousands like her).
“Does anyone care about what is going on in the system today?” she writes from her cell at the Pleasanton federal prison in California. “I am poor. I have no assets and I’m very much in need of help. Can you help me and my family?”
