“There are still a lot of people out there suffering the ill effects of a horribly unjust law,” said Carl Gunn of the Federal Public Defender’s Office in Los Angeles. The newer ratio, he said, was only a small step, but at least it was in the right direction.46
FAMM tells the tale of DeJarion Echols, a student with a partial football scholarship who had been forced to leave Texas College when he ran out of money and subsequently turned to dealing narcotics to raise enough cash to return to school. In 2006, at age twenty-three, Echols was sentenced to a mandatory ten years for possession of forty-four grams of crack. The $5,700 in cash that police found at his family’s home in Waco, Texas, was, under the statutory formula, considered equal to an additional 450 grams. The unloaded rifle under Echols’s bed added another ten years to his sentence. Rifles are commonly kept in that part of Texas, and the judge seemed convinced by Echols’s contention that the rifle was unrelated to the drugs. But that additional ten years was mandatory because crack was seized at the same address.47
The judge, disgusted by the mandatory sentence he was forced to pronounce, declared in court that this was “one of those situations where I’d like to see a Congressman sitting before me.”48 Echols wasn’t a career criminal, and his mistake didn’t need twenty years to correct, but the zero-tolerance drug law, designed to wage and win a “war,” was inflexible. Echols’s projected release date is in 2023, and apparently the new sentencing provisions won’t apply to his case. He, like so many other inmates, was victimized by panicky statutes passed by legislators in Congress and state capitals. How many of them even remember casting those votes?
For the thousands of drug offenders serving sentences under these laws, time in prison moves slowly. At the federal level, inmates incarcerated for drug offenses comprise half of the prison population.49 Thanks to the length of their sentences, these numbers keep going up. Few of these inmates are major players in the drug trade, and many, like Echols, have no prior criminal record for a violent offense. They constitute a fraternity of the forgotten, a contemporary version of witches condemned not to burn, but to grow old in the Gulag, where time licks at them like slow fire.
Consider the case of John Ray Wilson.50 An uninsured multiple sclerosis (MS) patient, he was sentenced in 2010, at age thirty-eight, to five years in prison by a New Jersey judge for manufacturing and possessing seventeen marijuana plants he’d been growing to treat symptoms of his disease. He wasn’t accused of transportation or sales and was both the victim and the perpetrator of his crime. “He was in a situation where he had no health insurance and no other way to obtain medical coverage,” said his attorney, James Wronko. Jurors weren’t allowed to hear the mandatory penalties included in the statutes so that their verdict wouldn’t be affected by them. Among the counts against Wilson, one—operating a drug-production facility—was punishable by up to twenty years in prison. The jury acquitted him of that charge.
Ultimately, after much wrangling, Wilson was allowed to make a brief, one-sentence declaration that he had medical reasons for growing the marijuana, but Superior Court Judge Robert Reed wouldn’t allow him to explain to the jury that he grew the plants only for personal use. Neither would Reed let Wilson’s lawyer call an expert witness to testify about the medicinal effects of marijuana. An appellate court later ruled that the judge had acted correctly and upheld both the trial and sentence, rejecting an argument that five years was too harsh a punishment.
Ironically, Wilson, who’d been suffering from MS for nine years, was convicted one week after Governor Chris Christie approved the establishment of medical marijuana dispensaries in New Jersey. Had they existed earlier, Wilson might have avoided prosecution altogether. He began serving his term in August 2011 and presumably will now be prevented from committing crimes against himself.
At the start of 2013 eighteen states had decriminalized personal possession of marijuana for proved medicinal use. Colorado and Washington had legalized it for recreational use. The herb remains illegal under federal statutes.51 We reside in a confusing, betwixt-and-between stage of twilight legality. Local authorities in some precincts, hampered by liberalized state law, call in federal authorities to make arrests. The result of all these conflicting statutes is a hodgepodge justice that sends one hapless soul to a lengthy prison sentence while someone else who committed the same act walks off barely inconvenienced.
Marcia G. Shein is a defense lawyer in Decatur, Georgia, who specializes in federal criminal law and takes cases all over the country. She still loses sleep over the case of a deputy sheriff in Marengo County, Alabama, who at age twenty-five was sentenced to life without parole after being convicted of conspiracy in the sale of crack cocaine and marijuana. “I almost left the practice of law over this case,” she told me. “It’s just so incredible that they would put someone in jail for the rest of his life on this charge. I have murder cases in which defendants are eligible for release, and this kid gets life without parole. There were no firearms involved; he had no criminal record; there wasn’t any violence. It’s a tragedy that we’ve allowed our system to go so far to the right.”52
The deputy, Wilmer Breckenridge, was convicted based on the testimony of one informant, another deputy who was sentenced to 150 months. There was no corroborating evidence or witnesses, no physical evidence, nothing to tie Breckenridge to the charges except the word of Deputy Robert Pickens, a conniver who sold drugs, took payoffs from dealers, and once even torched his own car to collect insurance money. Pickens testified that Breckenridge had agreed to warn dealers of any impending busts. There were no audiotapes, and not one drug dealer claimed Breckenridge worked with them or took their money. In fact, dealers who’d conspired with Pickens were willing to take the stand and say that they had no such dealings with Breckenridge, but neither side asked for their testimony.
Shein, who didn’t come into the case until the appeals stage, said all possible remedies have been exhausted—a motion for a new trial, a commutation of sentence, all of it. She added,
I did everything I could do for this kid, but I just couldn’t break through. The case is so draconian. He’s going to have a pine box exit. Unless his health goes bad and he’s over sixty-five. Then they might throw him out. He was given, in essence, a prison term death sentence.
All your life something can eat at you. This is the one, the one that breaks my heart. Even the original lawyers admitted they didn’t do a good job.
For example, they failed to hire a private investigator who might have proved that Pickens’s statements were false. “But the judge just ignored all that,” Shein said, “and let him rot in prison…. He’d never been in trouble, he’s lost his kids, his wife, and he’s been transferred eleven different times.” Like so many other inmates who once worked in law enforcement, Breckenridge refuses to request protective custody, which is essentially solitary confinement. Prison authorities try to protect his identity, but eventually word leaks out among inmates. According to Shein, “Then they throw him in the hole and transfer him someplace else.”