Kids, families take the collateral damage of mandatory minimums, critics argue

Stephanie Nodd always wanted to be a mother.

Growing up around Mobile, Alabama she had a lot of nieces around her mom's house. "They were always messing with their hair," she said. "I told myself, 'When I have kids, I want a boy. No hair to mess with.' "

She'd work if she had to, like the women who raised her, but she wanted to stay home. Then she developed a few ideas she regrets. She became "overprotective," she said, and did not want to depend on anyone, not even a man.

And so by 20 she was raising four boys on her own. Looking back, she says, she knows that was a mistake. And she made other mistakes.

By the time she was 22 she was in prison.

Each night, staring at the blank walls of her cell, she fell asleep thinking of home, worrying about her kids. She would exercise hard and go to sleep late, so there was less time to lay awake in pain. "I cried a lot in the shower," she said. "I would walk the track and cry. Christmastime was hard, and so was their birthdays."

She took comfort in the fact that they were well cared for. The three oldest boys she had sent to live with her mother. The fourth went to live with his dad and paternal grandmother. Stephanie's sister took in the newborn, a little girl named Jasmineh, born after Stephanie entered prison.

<b>Edge of a wave</b>

Stephanie Nodd and her kids were on the edge of an incarceration wave that pulled in thousands of parents and hundreds of thousands of children at the end of the last century. In 1991 there were 936,500 minor children with a parent in state or federal prison. By the end of 1999, there were 1,498,800, according to the Bureau of Justice Statistics - a more than 50 percent leap in less than a decade.

That sea change traced back to the advent of "mandatory minimums," which dramatically changed how judges doled out prison terms. Prior to mandatory minimums, judges were expected to weigh circumstances when they issued sentences - including past offenses and the likelihood of reoffending.

But by the late 1980s, legislators and the public were fed up with rising crime rates, including the crack epidemic that ravaged American inner cities. Sentencing was being removed from judges' hands, and by 1994 - when California voters passed the state's famous Three Strikes Law - state and federal mandatory minimum sentences reached to an ever-wider array of offenses with ever-harsher penalties.

It took years for the impact of this policy shift to become evident. Year by year, the American prison population burgeoned, far outstripping any other country in the world. Corrections expenditures skyrocketed, putting a strain on state finances, and prisons became overcrowded.

Meanwhile, some began to take note of unforeseen effects on kids and families. "U.S. crime policy has, in the name of public safety, produced more vulnerable families and probably reduced the life chances of their children," Christopher Wildeman of Yale University and Bruce Western of Harvard University argued in a 2010 study.

Mandatory minimums still have defenders, of course. Some view them as necessary for law enforcement investigations. Others credit them with crime rates across the U.S. now at near-record lows. And the current rules enjoy the awesome force of inertia in American politics.

Today, the future of mandatory minimum sentences stands at a crossroads. Movement has been slow, even glacial, but more and more the ice is cracking. At first, budget concerns spurred the shift, says Julie Stewart, president of Families Against Mandatory Minimums, "but lately there has been a shift in thinking, perhaps a moral shift, in how law enforcement, legislators and the public look at who should be behind bars."

<b>The crime</b>

People often asked Stephanie how she ended up in prison. She never really fit the mold. Unlike most of her cellmates, she never used drugs. She didn't drink, had never even smoked tobacco. None of that interested her. But she was naïve. She had no real idea what drugs did to people, how addiction controlled and destroyed lives.

When she was a teenager, honest work had been hard to come by in Mobile, Ala., and a boyfriend's influence amidst a street culture awash in crack cocaine had sucked her in to a life of crime.

She sold crack off and on for a couple of years. That she admits. When she was 20, she briefly helped coach a new dealer from Tampa on how the local market worked in Mobile. She never handled, sold or transported drugs while helping him, she says. Once she did pick up some cash. Six weeks later, she ended the association and moved to Boston.

That brief association would haunt her. The associate was later swept up in a sting, and to lower his own sentence he accused others. By the time the prosecutors were done, what Stephanie insists was a brief advisory role had ballooned into kingpin status. She was charged with 18 kilos of cocaine, moving her into major player status under federal law. Those heightened charges, she insists to this day, were false.

<b>Disputed testimony</b>

With mandatory minimums as their chief weapon, critics argue, prosecutors are tempted to pile heavy drug weight burdens on low-level defendants to force their cooperation, forcing them to plead guilty and implicate others in exchange for leniency. Conviction will often hinge on disputed testimony offered by a witness motivated by something other than telling the truth.

"The easiest lie to tell is in a drug case," said Leonard Goodman, a prominent Chicago area defense attorney. "In a murder case there are known facts: a time of death, a body, a cause." But with drugs, the entire case often hinges on what people say. And federal prosecutors are deft at making it clear what they want, he said. "They'll interview these people 18 times," Goodman said, "and they'll keep asking, 'Was so-and-so there, too?' It doesn't take them long to figure out what they want them to say."

Proving false testimony is rare. In 2010, Goodman had a stroke of luck when a prosecution witness told a detailed lie that placed his client in a place he could never have been. The conviction was overturned, with the 7th Circuit Court of Appeals holding on appeal that "the government's star witness had testified falsely, that the government knew this testimony was false, and that the government relied upon it to secure the defendants' convictions."

"But the same prosecutor is still working on this case," Goodman said. A prosecutor who can suffer no career consequences after the 7th Circuit body slams her for knowingly using false testimony, he argues, has no incentive to play straight.

<b>Who did you kill?</b>

But even if Stephanie Nodd were guilty as charged, her sentence would, by any measure, be extreme. In 1988, she was handed a 30-year sentence for a first-time nonviolent offense. Federal law has no parole, just a 15 percent "good time" reduction. The minimum she would serve would be 25-&frac12; years.

The average convicted rapist in the era in which Stephanie was convicted served 5.4 years of a 12-year sentence, according to a 1992 U.S. Justice Department study. In her native Alabama today, the mandatory minimum for Class A felonies, including rape and kidnapping, is 10 years. Manslaughter, a Class B felony, carries a minimum of 2 and a maximum of 20.

It is thus no surprise that over the years, whenever prison officials heard how long her sentence was, they would ask, "Who did you kill?"

<b>Mothering by phone</b>

Once Stephanie was in prison she quickly woke up on the drug issue. A 40-hour drug awareness class left an imprint. So did her fellow inmates. She saw the gaunt faces of meth addicts, the sleepiness and scratching of heroin addicts.

She played cards with women who were still addicted to crack after eight or 10 years in prison. They could taste it in their mouths, they said. They went to sleep early, because the cravings grew more intense late at night. It wasn't long before she became a strong anti-drug advocate. The more she saw, the more she worried about her own kids. But beyond her 15-minute calls and intermittent visits, there was little she could do.

She knew it would be years until she could be with her children again, but she was still their mother. So she used the phone. Usually she called her mom's house, because her kids would all congregate there in the afternoons. She would talk to each child.

She paid for her own calls with the $1.65 an hour she earned working in prison. Calls were 23 cents a minute with a 15-minute limit per call and 300 minutes maximum per month. She always used up every minute.

She talked to her kids about life, about school, about sex, about drugs. She urged a 17-year-old boy to buck up and get out the house. "Life doesn't stop because I'm in prison," she said. Later she would urge another 17-year-old, her daughter, to wait to have a child. "You don't want to mess with kids now. Get your education first," she said, the voice of experience.

"I knew if they talked a lot, things were OK," she says. "But if they were quiet, something was wrong."

She didn't tell her kids how long her sentence was, fearing it would break their hearts. They found out on the street. At first, they resented her for not telling them. Later, they understood. "They were so young," she said. "How can you tell a child that you got 30 years?"

<b>Tough on crime</b>

Critics of mandatory minimums often say that we tend to "imprison people we are mad at, not just people we are afraid of." But in the 1980s when mandatory minimums came into vogue, that distinction often blurred.

Mandatory minimums came about at a time when violent crime was climbing. Homicide rates spiked 83 percent from 8.7 per 100,000 in 1985 to 15.9 in 1993. While victims and offenders were disproportionally young, black, male and geographically concentrated, crime fears became widespread and politically potent.

Often, new sentencing rules were spurred by some specific, horrible event, said Don Stern, who served as U.S. Attorney for Massachusetts from 1993 to 2001. The murders of two young girls by repeat offenders, for example, drove momentum for 1994 California's Three Strikes Law.

The mid-1980s saw the sudden emergence of crack cocaine - cheap, lucrative and suddenly pervasive on the streets. Battles over turf for crack markets led to violence, and the 1986 overdose death of Len Bias, a University of Maryland basketball star who had just been drafted by the Boston Celtics, fed a widespread perception that crack cocaine was much more dangerous than powder.

That perception of higher danger led to the extreme sentencing differences between crack and powder, Stern said, with crack getting 10 times the severity of powder in federal law.

"I've never been to a community meeting where a community group said, 'Go easier on crime,' " Stern said. "I only know the one ones where they say, 'The cops know who the dealers are.' It's always popular to be tough on crime. It's less popular to be fair or smart."

<b>At a crossroads</b>

Reaction against extreme mandatory sentences formed early, but it took decades to become mainstream.

In 1986 the Sentencing Project launched, a high-profile nonprofit research and advocacy effort focused on supporting defense attorney and promoting alternatives to prison.

Another early mover was Families Against Mandatory Minimums, formed in 1991 when the tough sentencing era was still in its booming growth phase. FAMM organizes families of prisoners, tells their stories and lobbies for change. It also helps craft legislative change at state and federal levels.

Such efforts have long had allies on the left, but in recent years they have been joined by potent voices on the right, especially a new breed of libertarian-leaning Republicans.

A key force here is a Texas group called Right on Crime, which counts former House Speaker Newt Gingrich and anti-tax crusader Grover Norquist among its strongest supporters. "It's really striking," the Sentencing Project's Jeremy Haile told the New York Times, speaking of conservative thought leaders. "Now they're arguing the other way: Who can be the smartest on crime?"

Texas has been especially active, passing sweeping reforms in 2007 and dramatically trimming its prison population. By shifting nonviolent offenders to alternate programs, Texas has moved from needing to quickly build more prisons in 2006 to closing prisons today.

In 2010 Congress lowered the federal mandatory minimum sentences for crack cocaine, bringing them in more line with powder cocaine penalties. In the summer of 2011, the U.S. Sentencing Commission made that change retroactive. Stephanie Nodd was released a few months later - after 21 years into her sentence, but 4 years "early."

Last month the U.S. Senate Judiciary Committee approved a bipartisan bill cosponsored by Sens. Mike Lee of Utah and Richard Durbin of Illinois. The bill would ratchet down some mandatory sentences for nonviolent drug offenses. The bill won broad support from the committee.

Evolving public opinion may be smoothing these policy shifts. For decades, as Stern observed, the public has had an unslakable thirst for stronger sentences. But multiple polls now suggest attitudes have shifted. A Reason Foundation poll in December, for example, found that 71 percent now favor eliminating mandatory minimums in favor of giving judges more discretion in sentencing.

<b>Serious criminals?</b>

Still, many prosecutors and traditional Republicans argue that the mandatory sentences are critical to building successful drug trafficking investigations. And those who get heavy penalties, they say, are usually hardened criminals.

When the Senate Judiciary Committee took on mandatory minimums in January, the National Association of Assistant U.S. Attorneys defended the system. "They reach to only the most serious crimes," their letter read. "They target the most serious criminals. They provide us leverage to secure cooperation from defendants. They help to establish uniform [sic] and consistency in sentencing."

The NAAUSA letter further argued that the bipartisan U.S. Sentencing Commission was still weighing the mandatory minimums issue, and that Congress should wait to act until after the commission had offered its judgment.

But in fact, the Commission's four Democrats and three Republicans had in September unanimously endorsed efforts to revamp mandatory minimums, arguing that the few of those caught up are major players and that they "are unevenly applied, leading to unintended consequences." The Commission thanked the Senate Judiciary Committee in that statement - including Sens. Leahy, Durbin and Lee by name - for proposing "legislation corresponding to many of our key recommendations."

NAAUSA did not respond to request for an interview.

<b>Pressure to perjure</b>

In the mandatory minimums regime, all the discretion previously held by the judge now belongs to the prosecutor. Federal prosecutors have a fearsome 98 percent win rate at trial. Combined with extreme sentences, this gives them enormous leverage: Plead guilty and implicate someone in exchange for a lighter sentence. Maintain innocence and refuse to offer up other targets, and face a stiff minimum sentences when you lose.

Stephanie <i>could </i>have had a much shorter sentence. She herself had been snagged when her former associate and two women she hardly knew testified against her in exchange for leniency.

Prosecutors offered Stephanie a bargain if she would testify against others. They repeatedly suggested names, including two in Florida whom she had never met. The pressure to get out by putting someone else in was intense. But she refused. "I wanted to take care of my own problems," she said.

She also refused to plead guilty to excessive charges. She says she confessed to everything she had done, but she would not confess to more than that. So she went to trial, took to the witness stand, and set her word against theirs. She lost, as the prosecutors knew she would.

<b>Home at last</b>

After 21 years in prison, Stephanie was released in 2011 under the retroactive crack cocaine sentencing revisions. In November of 2011 she walked out of a federal prison near Orlando, Fla., into the arms of her sister, her best friend, and Jasmineh, the adult daughter who had been born after Stephanie arrived in prison.

The four women stopped in Tampa to shop for clothes. They then drove the seven hours to Mobile, back to the same home where she had been raised, now owned by her brother. Family and friends swarmed her as she stepped out of the car.

"When I got into bed that night," she said, "I lay there thinking about my mama and how everything had changed. I thought about the girls in prison, wishing they were home, and that made me sad. Then I said a little prayer asking God to please continue watching over those in prison and to keep them strong. And I fell asleep."

Today, Stephanie does billing and sales for a local furniture store, a job she has held for two years. Mostly, she loves being with her children and grandchildren. The grandchildren all belong to her boys. Jasmineh, now 22, has been dating her boyfriend for five years, but is not having kids any time soon.

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