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01 March 2015

The Case Against Mandatory Prison Sentences, and Privatised Prisons

After a spate of judicial 'soft decisions', people are calling for mandatory sentences for specific crimes. We must be careful about this, particularly in any legislation which may be written that can be construed as a knee jerk reaction 'in the public interest'.
The trickle down effect can devastate a person's life for a minor 'crime'.
To demonstrate this, we highlight the case of Fate Winslow...

Life in Prison for Selling $20 of Weed
Homeless and hungry, Fate Vincent Winslow wanted something to eat, so he agreed to sell pot to a stranger—an undercover cop.


On September 5, 2008, Fate Vincent Winslow watched a plainclothes stranger approach him. Homeless and hungry, on a dark street rife with crime, the 41-year-old African American was anxious to make contact, motivated by one singular need: food.

Another man, this one white, stood next to Winslow. He is referred to in court documents exclusively as “Perdue.”

It was nearly 9:20 p.m., hours after the sun had dipped below the abandoned buildings surrounding them. The lights of downtown Shreveport, Louisiana, flickered in the distance as the plain-clothes man—unbeknownst to them, an undercover cop—arrived.

“What do you need?” Winslow asked. “A girl and some weed,” Officer Jerry Alkire replied.

Perdue remained silent as Winslow and Alkire negotiated the costs. Winslow wanted a $5 delivery fee for the $20 (two dime bags) of pot. Fine. Money settled, he grabbed Perdue’s bike and took off. In the meantime, Alkire and Perdue waited. According to the police report, the two hardly spoke.

A “girl” was the prime reason Alkire was there. Prostitutes were known to frequent these seedy streets, and he was looking to nab one. It was for this reason that an arrest agent, Sgt. Ricky Scroggins, sat listening to the bug hooked up to his ear from an unmarked vehicle nearby.

The details of what happened next remain murky. Winslow returned to the scene, allegedly with marijuana. Money and drugs were exchanged between hands in the dark. When Scroggins and the other officers rushed to the scene after Officer Alkire confirmed the pot, they found $5 on Winslow and $20 on Perdue. Both bills had been marked, but no one could explain how, exactly, they got there.

Police arrested Winslow, drove him to prison, and locked him up. Six months later, a jury found him guilty of distribution of a schedule I substance (marijuana). Three months after that, a judge sentenced him to life imprisonment with hard labor, without the benefit of parole.

Perdue was never arrested.

“Why did you get involved in this crime?” one survey question reads. “To get $5 dollars to get something to eat,” he writes.

The felony for selling marijuana on September 5 was, in Winslow’s case, the straw that broke the camel’s back. Using his existing criminal record, the prosecution sought the maximum punishment. His prior convictions, all non-violent felonies, made him a candidate for the notorious mandatory minimum sentencing laws.

In 1985, at the age of 17, Winslow was convicted of simple burglary and sentenced to three years. In 1994, at 26, he was charged with the same, this time given 8½ years. In 2004, he was arrested for possession of cocaine, landing him 18 more months in prison. Multiple felonies left Winslow moneyless, jobless, and ineligible for food stamps (those with drug felonies are permanently banned from applying).
Less than three years into navigating this tough road, Officer Alkire came along, looking for weed.


Winslow’s story, preserved in court documents, transcripts, and witness testimony, never made headlines in Louisiana. If it weren’t for the American Civil Liberties Union (ACLU), the story may have all but disappeared. But in 2012, while launching an investigation into life sentences for nonviolent offenders, they selected the then 45-year-old as one of 650 inmates to investigate.

On four 8½ x 11 inch pages lined with questions, Winslow scribbled down his story. “Why did you get involved in this crime?” one survey question reads. “To get $5 dollars to get something to eat,” he writes. Amid an appeal for money to find a new lawyer, mentions of suicidal thoughts, and confessions of alcohol addiction, Winslow flips the script. In bold black letters, written at the law library of the notoriously horrific Angola prison, he poses a question of his own:

“[They] let [Perdue] go and I got life: Please explain.”

Winslow’s case may be one of the most egregious for marijuana violations, but it’s far from an anomaly. Jennifer Turner, the investigator behind the ACLU report, says the severity of his punishment is all too familiar. “[Fate’s] case is tragically typical,” she says. “A typical example of the draconian punishments meted out under three-strikes laws.”

It’s a phenomenon she captured in her resulting report, a 240-page document titled A Living Death: Life Without Parole for NonViolent Offenders. Published in November 2013, the analysis exposes a justice system teeming with stories like Winslow’s—people serving life sentences for crimes many would consider minor.

Currently, there are 3,278 prisoners sentenced to die in prison for nonviolent offenses. Some of these offenses involve property crimes, ranging from stealing tools from a tool shed to shoplifting a $159 jacket. The vast majority, however, stem from drugs. Seventy-nine percent of these inmates are serving life for drug offenses. Sixty-five percent of them are black.

Nowhere is the inequity of this system more apparent than Louisana. With 429 inmates serving life sentences for crimes like Winslow's, the state holds the record for the most nonviolent offenders locked up for life. A staggering ninety-one percent of these inmates are black. Louisiana State Penitentiary, where Winslow is housed, has the largest population of black men serving life sentences for non-violent crimes in the world. It’s a problem so rampant, even the warden of the prison itself is speaking out.

“There’s an answer to this without being so extreme. But we’re still-living-20-years-ago extreme. Throw the human away. He’s worthless. Boom: up the river,” says Angola Prison Warden Burl Cain. “And yet, he didn’t even kill anybody. He didn’t do anything, he just had an addiction he couldn’t control and he was trying to support it robbing. That’s terrible to rob people—I’ve been robbed, I hate it. I want something done to him. But not all his life. That’s extreme. That’s cruel and unusual punishment to me.”


According to documents from Caddo County Clerk of Courts, state prosecutor Jason T. Brown offered Winslow a plea deal. Winslow refused. Three months later, the case went to trial. The day it began, December 10, 2008, was a racially charged one in Shreveport. After a tumultuous few weeks, police charged a 25-year-old with second-degree battery after he and two other white males jumped a 32-year-old black Obama volunteer after he finished getting gas. The three men allegedly beat him senseless while screaming “fuck n******" and "fuck Obama." Kaylon Johnson, the victim, was left with a broken nose, eye socket, and baseball-sized bruises.

The city, like much of Louisiana, struggles with race. According to the latest U.S. Census data, 54 percent of the population in Shreveport in 2010 was black and 41 percent white. But data analysis from the Shreveport Times shows that just 6 percent of the 26,000 black students attend one of the district’s eight magnet schools in 2013. Offering far superior education, many of those schools are located in the middle of all-black neighborhoods.

Caddo Parish, the larger region encompassing Shreveport (LA recognizes parishes instead of counties), has a long history of racism. In the Equal Justice Initiative’s recent ranking of the locations where the most lynchings occurred, Caddo Parish placed second in the nation. From 1877 to 1950, 273 African Americans were brutally murdered in the region—some, just blocks from where Winslow stood.


In the opening statements at Winslow's trial, Prosecutor Brown began by admitting that another person (Perdue) may have been involved that night. He urged the jury not to focus on that aspect of the case, implying that it would be handled separately. “While somebody else could also be responsible, that’s not why we’re here today,” he said. “We’re trying one individual and one individual only and that’s this defendant.”

Winslow’s attorney, Alex Rubenstein, is all but nonexistent in the court documents. His opening statement, no more than 30 seconds long, failed to even mention Winslow by name. “[Brown] already told you that when you hear all of this you’re going to find him guilty,” said Rubenstein. “I don’t believe that, but it’s up to you to make that decision, it’s up to you to choose which witness to listen to.”

The prosecution’s two main witnesses were the agents involved, Officer Alkire and Sgt. Scroggins. The direct examination of Alkire is confusing, at best. In the transcripts from court, he mixes up how much marked money he found on Winslow, initially stating he found $11, then backtracking and stating just $5.

His memory of the transaction itself is even muddier. “I gave the money to the defendant,” he said on the stand, failing to specify how much. “It looked like [Winslow] was handing [Perdue] something…his back was to me so I could not see exactly what was going on,” he said. “It looked like he was holding his hand out and the white man was holding his hand out and that they did some kind of hand-to-hand transaction…I did not see exactly what it was.”

Scroggins’ testimony, from the nearby car he was parked in, was similarly vague. “I saw a hand-to-hand movement, but from that distance, I couldn’t see what was exchanged,” he said. All he was confident about was that the exchange was between Alkire and Winslow. Rubenstein challenged this—one of the only attacks he launched on the defense. “From 100 yards away, you could determine…which parties were going back and forth?” asked Rubenstein. “Yes sir, it’s a very well let area…there are street lights.” “Would you call the lighting intermittent?” Rubenstein posits. “It was almost as good as daylight.” (Five years later, Rubenstein says he doubts "any crime scene is well lit." At the time, he said nothing).

The prosecution called one other witness, an expert in forensic chemistry narcotics from Northwestern. The defense called none. In Louisiana, the testimony of a single undercover police officer is enough to convict someone of distribution of a Schedule One substance. Before sending the jury into deliberations, the judge urged them to focus on the arguments they heard in court. “Your determination of the facts must be based on evidence presented in court,” he said. For Winslow, who had not a single person come to his defense, this was bad news.

Unable to afford an attorney, he had been placed with Rubenstein by the state. Winslow says he had promised to subpoena two witnesses and the audio from the patrol car. Neither materialized in court. Aware that his life was on the line, Winslow fought for additional help. “I stood up and informed the judge that my lawyer Alex Rubenstein was inaffective (sic) as my council and he was doing nothing to help me,” he says. The motion for a new attorney was dismissed.

With multiple incriminating testimonies against Winslow, and zero to the contrary, the jury went into deliberations. Exactly 52 minutes later, just in time for lunch, they reached a verdict. Ten jurors, all white, voted guilty. The other two, both black, voted innocent. In Louisiana, where unanimous juries are not mandatory, 10 votes were enough. Guilty as charged.

Of the eight women and four men in the jury, just one responded to a request for comment—a woman whose job necessitates she remain anonymous. “The jury wasn’t told,” she says, referring to the life sentence that Winslow is now serving as a result of the verdict. This case, she says, was presented merely as a simple drug offense, not as the deciding factor in someone’s future. “I was instructed whether or not to convict on this interaction. [Pause]. It was, what it was. It was very clear, there was no doubt.”

In the years since the trial, her memory of it is limited. She can hardly envision Winslow’s face, or anything about his appearance, just that he looked “disheveled” and never took the stand. But there is one thing, as we keep talking, that creeps back into her mind. “I do remember it was a very small amount of marijuana. It was ridiculously small." “Whoever his lawyer was didn’t make any case for him,” she continues. “In my mind I thought…why are we doing this for such a small amount?” While she’s one of the 10 who found Winslow guilty of the charge, she’s audibly surprised to hear his fate. “I think it’s really an imbalance of the punishment fitting the crime,” she says. “I don’t think it’s fair when we’re looking back and states are legalizing this drug. Now it’s petty to me. I don’t know if it’s a petty crime, but its seems pretty petty.”


Five years later, Prosecutor Brown has all but forgotten the case. “Fate? As in…Fate?” he asks skeptically, his Southern accent lingering longer than the word. “I’ll have to call you back, that one doesn’t ring a bell.”

An hour later, he does. “I’ve got the case in front of me,” he says. “I’m at looking at my handwritten notes on the front of the file.”

“We’re not able to prove some of the more violent offenses they’ve been involved in,” he says. “So we use other crimes they’re involved in and enhance the convictions to get to the same thing.”

From what he remembers, Winslow—a “career criminal”—dug his own grave. While Winslow did have a criminal record prior to the offense, the fact that he was homeless pokes holes in the theory that his criminal endeavors were earning him a living (as the term “career criminal” implies). Evidently unbothered by this discrepancy, Brown refers to him by the term at least three more times.
His voice while recounting the case is subtly exultant. For him, it was a major victory, another home run in a game he calls “pro-active law enforcement.” It’s a system, he says, that revolves around using lesser crimes to lock up people he suspects to be guilty of other, more violent ones. “I guess kind of the way the U.S. used tax evasion,” he says (most famously, to seal the fate of notorious mob boss Al Capone).

Winslow, a middle-aged black man with a “prolific criminal record,” is the program’s bread and butter. It’s people like him who Brown believes need to be “treated more seriously.” Just because they’re imprisoned for nonviolent offenses doesn’t mean they’re nonviolent people, he says. Smaller charges, with the help of mandatory minimum sentencing laws, give him the opportunity to lock people up for good.

Many times, he suspects, these defendants are very violent—murderers, even. But owing to what he calls a lack of evidence (“you don’t have a witness; the victim is dead”) murder cases prove more difficult.

“We identify people that are repeat and dangerous offenders, and it may be that we’re not able to prove some of the more violent offenses they’ve been involved in,” he says. “So we use other crimes they’re involved in and enhance the convictions to get to the same thing.”

Angela Davis, an expert in criminal law at American University and author of Arbitrary Justice: The Power of the American Prosecutor, calls Brown’s statements ridiculous. “Suspected based on what?” she says of his claim that inmates like Winslow are dangerous. “We don’t convict people based on suspicion, we convict them based on proof.”

Davis takes issue with Brown’s strategy of enhancing the sentences of defendants who he believes may have committed other crimes. “A person isn’t convicted of a crime unless the prosecutor has the evidence to prove it beyond a reasonable doubt in court,” she says. “That’s the foundation of our criminal justice system.”

The Winslow case, she says, is a “prime example” of the abuse of power that’s endemic in our legal system. “The charging decisions are made behind closed doors in the prosecutor’s office; they don’t have to explain to a judge—or to anyone—why they chose to prosecute one person under a mandatory sentencing law and not another,” she says. “There’s no transparency…which results in a prosecutor with this tremendous power and almost no accountability.”

When I ask if he thinks this was an appropriate sentence, keeping in mind that people serve less time for murder, he responded: “I do.”
“[Brown’s] attitude, I imagine, is not unique,” says Davis of this particular prosecutor. “You have all this power and you’re never held accountable. There’s no punishment, there’s no deterrent effect, so you start behaving that way—a lot of prosecutors behave that way.”

With recent racially charged stories in the legal realm, such as the deaths of Michael Brown and Eric Garner, she’s seen an increase in people paying attention to this problem. It’s something she hopes will continue. “The Supreme Court has specifically said that the role of prosecutors is not to get convictions,” she says. “The role is to seek justice.”

For Brown, it seems, convictions are the point. In his mind, using the mandatory minimum sentencing laws to lock up people like Winslow for life isn't just legal, it's simply the right thing to do. “We’re doing what is within the law,” he says. “It is kind of what you want prosecutors to do. You don’t want us to act arbitrarily and treat everyone the same, because they’re not.”

Winslow’s defense attorney, Alex Rubenstein, has researched the case before we finally speak on the phone. This case is one he seems to have strong feelings about—few of them in favor of Winslow. While he admits that Prosecutor Brown is “notorious” for using the law to enhance sentences on cases like this one, he doesn’t necessarily think it was the wrong call this time. “He was distributing marijuana,” says Rubenstein of Winslow. “I can’t really be sympathetic.” When I ask if he thinks this was an appropriate sentence, keeping in mind that people can serve as little as nine years for murder, he responds: “I do.”

Rubenstein says he doesn’t remember Winslow standing up to tell the judge that he was being ineffective, but doesn't necessarily rule it out. He stands by not bringing any witnesses to the stand in Winslow's defense. He says there was no one to bring. It’s something that he sees a lot as a public defender, representing a majority black, underprivileged population from high-crime areas. “You have to be realistic about it, we don’t have the best clientele in the world,” he says. “I’m not saying they’re all losers—we win some cases, we try our best—but sometimes there just isn’t anything there.”

Part IV
Molly Gill, staff attorney and special projects director for Families Against Mandatory Minimums, has studied the history behind these laws at length. Mandatory minimum sentences date back to 1951, when Representative Hale Boggs sponsored a bill imposing two to five year sentences on drug offenders. The bill, Gill says, was motivated by fear at the time that drug addiction was a contagious and incurable disease, meaning “addicts should be quarantined.”

As drug skyrocketed in the 1960s, researchers began to study whether these prison sentences actually reduced drug abuse. The conclusions were simple: they did not. Upon learning this, President John F. Kenney sought a new solution: aimed drug rehabilitation. President Richard Nixon honored this policy in 1970 by passing the Comprehensive Drug Abuse Prevention and Control Act of 1970, which effectively rejected mandatory minimum sentencing laws.

It was a new era of drug reform where addiction and abuse were treated as diseases rather than crimes. But when the 1980s brought the crack cocaine epidemic, rationality was once again obscured by fear. National panic over the trend reached a breaking point in 1986, when beloved basketball legend Len Bias died suddenly from an apparent overdose. Just days after his death, the speaker of the House of Representatives, Thomas P. “Tip” O’Neill Jr., called an emergency committee meeting on drugs.

“Write me some god-damn legislation,” O’Neill reportedly “thundered” in the meeting of representatives. “The papers are screaming for blood. We need to get out in front of this.” Nearly overnight, mandatory minimum sentencing laws were reborn. “They didn’t do studies, they picked the sentences arbitrarily, they passed them without research,” says Gill, who equates the structure to a drinking game. “We end up stuck with them 30 years later and we’re seeing the consequences of these knee-jerk reactions.”

Mandatory minimum sentencing laws themselves are exactly what they sound like—they assign rigid sentences to specific offenses, leaving no room for exceptions. They can result in mandatory prison time, but only if the prosecutor on the case decides to pursue the law. If they do, like Brown did in Winslow’s case, the judge is powerless to intervene. “This is Obamacare for the courtroom,” says Gill. “We’re telling every judge what to do and using one solution for every crime: prison.”

Many of these judges, it seems, are just as outraged. “I think a life sentence for what you have done in this case is ridiculous. It is a travesty,” Judge R. Spencer told Landon Thompson, an African-American 10th-grade dropout he was required to hand a life sentence to for cocaine. “I don’t have any discretion about it. I don’t agree with it, either. And I want the world and the record to be clear on that. This is just silly.”

It was a sentiment shared by Judge William H. Byrnes, who was forced to sentence 22-year-old Rayvell Finch, also black, with life imprisonment for possession of heroin. At the ruling, Byrnes condemned the sentence, calling it “clearly excessive, and designed to cause needless suffering.”

Blacks are sentenced to prison for nonviolent crimes at 20 times the rate of whites. Federal Judge Milton I. Shadur summarized the issue in the courts when sentencing a 25-year-old Mexican-American named Rudy Martinez with life imprisonment for drugs.“[F]airness has departed from the system. It is no longer the operative standard for federal judges,” he said. “And as a result, in a way, it is sort of an insult...to the process to talk of fairness within the context of standards that, to such a great extent, do not involve considerations of fairness.”

In August 2013, then-Attorney General Eric Holder replied to these concerns in a memo addressed to U.S. prosecutors and assistant attorney generals. “We must ensure that our most severe mandatory minimum penalties are reserved for serious, high-level, or violent drug offenders,” wrote Holder. “Long sentences for low-level, non-violent drug offenses do not promote public safety, deterrence, and rehabilitation.”

But perhaps the most troubling issue is where it all begins: the arrest. If it’s mandatory minimum laws landing young black men in prison for life, it's unfair arrests that are getting them there. Despite data that they use drugs at the same rate as whites, African Americans are 3.73 times more likely to be arrested for marijuana related crimes.

Once arrested, blacks are sentenced to prison for nonviolent crimes such as drug possession at 20 times the rate of whites. Individual state’s racial disparities are even worse. Blacks are 23 times more likely to be sentenced to life for a nonviolent crime in Louisiana, 18 times more likely than whites in Oklahoma, and an incredible 33 more in Illinois. Louisiana isn’t the only state to have a majority of black inmates make up their life sentence for nonviolent crimes. Mississippi’s population of prisoners serving life sentences for nonviolent crimes is 78.5 percent black; in Illinois it’s 70; South Carolina and Florida, above 60.

In her book The New Jim Crow, author Michelle Alexander explains the fatal flaw of mandatory minimums:

“People choose to commit crimes, and that’s why they are locked up or locked out, we are told—but herein lies the trap. All people make mistakes. All of us are sinners. All of us are criminals. All of us violate the law at some point in our lives,” she writes. “In fact, if the worst thing you have ever done is speed ten miles over the speed limit on the freeway, you have put yourself and others at more risk of harm than someone smoking marijuana in the privacy of his or her living room. Yet there are people in the United States serving life sentences for first-time drug offenses, something virtually unheard of anywhere else in the world.”

At the end of Winslow’s ACLU questionnaire, he echoes the absurdity Alexander seeks to highlight. “Life sentence for two 5 (sic) dollar bags of weed. People kill people and get five,” he writes.

The final question they ask is simple, the answer is chilling. "What’s life been like in prison?" they write. “There is no life in prison…just waiting to die.”

In Australia, where we have begun to follow the US strategy by privatising prisons, that is, prisons for profit, stories are beginning to unfold of excessive force. Particularly recently in Nauru and Manus.

And with websites like Kangaroo Court of Australia (kangaroocourtofaustralia.com) detailing corrupt judges, magistrates, and legal system, the story of Fate Winslow has, can, and will again happen in Australia.