by Stephen Cooper
In 2016, together with former colleague Assistant Federal Public Defender Donnie W. Bethel, I wrote, “People of all persuasions, political parties and philosophies have awakened to the terrible toll the crises of overcriminalization and mass incarceration have wrought on America.”
Then, a year later, highlighting the “criminalization of addiction,” I wrote about Benny King – one of Bethel’s clients – a gregarious, good-hearted, God-fearing 53-year-old Black man incarcerated for 14 months at the federal correctional institution in Jessup, Georgia, for violating conditions of his supervised release. Reprinting Bethel’s arguments, I demonstrated, just as Bethel had, how King’s conduct in a nonviolent, low-level federal criminal case bore no relation to his incarceration other than the fact that it, too, like the entirety of King’s nonviolent criminal history, was a byproduct of decades-long untreated drug addiction.
Now, in 2019, as if time were standing still despite the “awakening” Bethel and I (perhaps too naively and optimistically) announced, what seems like ages ago in our 24-hour news cycle, the stories of injustice coming out of the Middle District of Alabama are no better. They’re still replete with nonviolent, disproportionately Black defendants with longstanding drug problems – ones who commit victimless crimes tied to unsuccessfully or untreated addictions – receiving draconian sentences.
These overly harsh outcomes come recommended by the Federal Sentencing Guidelines – a cold, unfeeling, mathematical rubric – that reduces crimes committed, and the men and women who commit them, to a range of prison time to be imposed. These “advisory guidelines,” which far too many federal judges follow lockstep, are not only devastating to defendants and their chances of rehabilitation and redemption (instead of recidivism), they cause immeasurable pain and problems for the families of these defendants, their community and ultimately our nation, which for far, far too long has been blighted by a racist mass incarceration problem.
Take the case of Willie Blackshire. On April 21, 2017, Blackshire’s house was raided by police who found two guns (one belonging to Mr. Blackshire’s wife), some ammunition, slightly over half a gram (0.603) of cocaine, baggies, and three digital scales. Because at the time, Mr. Blackshire was on probation for being convicted in 2012 of selling ten pain pills (opioids) to a confidential informant, he was charged and eventually pled guilty to “Possession of a Firearm by a Convicted Felon.”
Urging Judge Marks for a downward variance of Mr. Blackshire’s federal sentencing “guidelines range” of 92 to 115 months in prison to 24 months, Assistant Federal Defender Bethel urged:
“How much cocaine was found? 0.6 grams. [A] package of Sweet ‘N Low or Splenda is a one-gram package. [Mr. Blackshire had] a little more than half a package of Sweet ‘N Low.”
“[Mr. Blackshire] talked about how he had his pelvis crushed in a car accident and he put the cocaine between his cheek and gum like you would chewing tobacco, for instance, and used it essentially to self-medicate. There was no large sum of cash found. We often see a logbook, a list of clients, people that still owe money to someone who sells drugs. There was nothing like that.
“How much cocaine was found? 0.6 grams. [A] package of Sweet ‘N Low or Splenda is a one-gram package. [Mr. Blackshire had] a little more than half a package of Sweet ‘N Low. What we often see, too, is a lot of individual baggies of drugs that have been bagged up and are ready for sale. That wasn’t present in this case.
“Mr. Blackshire would take – he did have some of those little baggies. And what he would do is when he traveled[,] [h]e would simply take those along and use it when he was in pain. [And] lately, every client that I have – that’s whether it’s drug possession or drug distribution – they all have digital scales, because they’re cheap.
“No drug user wants to be ripped off by a drug dealer. And because scales are so cheap, every drug user out there brings his own scales – it’s just that simple. I looked online this morning. I could get a set of digital scales at Walmart for $3.29.
“Your Honor, I know that the Court is going to get tired of me beating this drum if it hasn’t already – and we’ve only been working together for six months – but it bears repeating in every single case that involves a felon in possession of a firearm: There are no victims in this offense. The advisory guidelines are just that; they’re advisory.
“And if we’re going to impose a guideline sentence in every case … regardless of what the other mitigating factors might be, well then I’m not sure why we go through the whole point of a sentencing hearing. Ninety-two months, almost eight years, for a regulatory offense that doesn’t have any victims is insane. It makes no sense. There’s some variance that must be imposed … because to do otherwise simply puts the Court’s imprimatur on what is a patently unreasonable guidelines range.”
Next Mr. Blackshire addressed the court in a heart-wrenching plea before assembled family, friends and supporters, concluding: “Prison rehabilitation isn’t for everybody. I’m over there with a guy now who said, man, you’re crying about one Christmas, and I’ve not seen 13 Christmases. I’m 37. I have one felony that brought me in front of you. So I’m begging you, please.”
Given her turn to opine, the federal prosecutor maintained Mr. Blackshire wasn’t entitled to any variance from his “guideline range,” and, as federal defenders in Alabama have begrudgingly become accustomed to, Judge Marks agreed, imposing a 96-month (eight year) prison sentence. Mr. Blackshire’s sentence is on appeal to the 11th Circuit Court of Appeals.
But, if there’s anyone out there who thinks a man with minor criminal history shouldn’t go to jail for eight years in a case with no victims, a miniscule amount of cocaine, and an addiction tied to physical suffering, there’s zero reason for hope. Because as Bethel bitterly observed at Blackshire’s sentencing: “The 11th Circuit Court of Appeals has never found a guidelines sentence to be substantively unreasonable. Never found an upward variance of any amount to be substantively unreasonable. I find it a little curious that the only time the 11th Circuit has found a sentence to be substantively unreasonable is when it’s a below-guideline sentence.”
And mass incarceration continues.
Stephen Cooper is a former D.C. public defender who worked as an assistant federal public defender in Alabama between 2012 and 2015. He has contributed to numerous magazines and newspapers in the United States and overseas. He writes full-time and lives in Woodland Hills, California. Follow him on Twitter at @SteveCooperEsq.