Prisoner Releases Start Under “Drugs Minus Two”
David Mosby, 63, dressed in prison garb, enjoyed a mammoth, country-style breakfast with his family a few days ago at a Cracker Barrel restaurant.
It was, literally, his first taste of freedom.
David, an amazing dad and classic American character, was freed 10 years early from federal prison. He’d been serving a cruel, unjustifiable 40-year/no parole meth sentence since the first George Bush was president.
The Missourian’s release is just the beginning of tens of thousands of family reunions just starting under the landmark federal drug sentencing reform, called “Drugs Minus Two.”
Perhaps 20,000 or 30,000 federal drug prisoners are in the process of having sentences reduced by an average of 19% under Drugs Minus Two. The historic reform was conceived by Julie Stewart and Mary Price of Families Against Mandatory Minimums in 2007 and approved by the U.S. Sentencing Commission in 2014.
It’s occurring under the radar because the U.S. Sentencing Commission (a panel of mostly federal judges) did it, rather than Congress or the President. But it’s positive effect on drug prisoners, the scapegoats of the last generation’s drug war folly, will be more profound than anything elected officials have accomplished since screwing up the federal criminal justice system in the 1980s.
Methamphetamine offenders will benefit in the greatest numbers, a measure of the insane length of federal meth sentences. (Meth prisoners are a roughly equal mix of poor whites and Hispanics, mostly Mexicans.)
Demographically, Hispanics and African-Americans will get nearly 75% of the sentence reductions, a reflection of the drug war’s racial bias. When the drug war escalates, minorities go to prison; when it’s lessened, minorities get freed.
Drugs Minus Two reduces all federal drug sentences by two notches on the 43-level federal sentencing grid. For example, a Level 38 sentence becomes a Level 36 sentence, if a judge approves. This seemingly small adjustment might cut a drug sentence from 17.5 years to 14 years.
The Sentencing Commission estimates 46,376 inmates — about 22% of federal prison population — are eligible to ask for sentence reductions. These prisoners are now serving an average of 11 years and a month and might get that trimmed to nine years.
It’s like a diet that reduces weight a person’s from 450 to 390 pounds.
Fewer than 46,000 will get reductions because judges consider many factors, such as public safety and deterrence. The Sentencing Commission will release data this summer on how many prisoners are getting reduced sentences.
When it happens
Prisoners can’t be freed from federal custody until November 1. However, the Bureau of Prisons releases prisoners to halfway houses and home confinement up to a year before a sentence ends to ease re-entry.
Many long-time prisoners — as many as 8,000 — may be released immediately on November 1. David Mosby is one of those.
Another is Marco Xavier Ramirez, now 56, sentenced in Oregon to more than 23 years in prison in 1998 for meth. He will be released November 1 after 17 years but won’t see his mom until November because she can’t drive to his halfway house.
His sister, Angie Jenkins, 50, got a 36-month sentence reduction but won’t be released until 2021. Crack lifer Robert Shipp has his life sentenced reduced to 30 years, making him eligible for freedom in November 2019.
Federal drug sentences are purposelessly long.
Typically, a prisoner moves to a halfway house six months before a sentence ends and to home confinement a month or two after that. In this re-entry stage, men and women are encouraged to seek employment and reunite with family.
One good family at a time
David worked at an aluminum plant after losing the family farm in his hometown of Wardell, Missouri (pop. 427). His case exemplifies what’s right with sentencing reform and wrong with the broken federal criminal justice system.
David was ripped from his daughter’s life when she was in elementary school. Dad called his daughter every day from prison for more than two decades, maintaining a close relationship under extraordinarily difficult circumstances.
Today, his daughter is 30 and a mother. She treated him to breakfast at Cracker Barrel. He will live with her when he leaves a halfway house in St. Louis.
How government did wrong
David’s 40-year sentence was a crime.
The lacked proportion and a meaningful relationship to the offender or offense. It did nothing that a four-year sentence wouldn’t have done, other than: (1) deny a child her parent, (2) cost taxpayers $600,000, (3) rob the economy of $600,000 of productivity, and (4) let a good and contrite man return a regular life after a brief battle with meth.
What’s most disturbing about David’s sentence is its legality — a legal wrong.
“This sort of punishment cannot be justified in a civilized society,” wrote U.S. Appeals Court Judge Myron H. Bright while upholding David’s 40-year sentence and those of his co-defendants in 1992.
“While I am obligated to affirm the sentences, I need not and will not put my stamp of approval upon them,” wrote the judge, now 96, and still handling cases in his native Fargo, N.D.
Most interestingly, Bright made a rare human and moral point, not just a legal one: “The suffering imposed on these men and their families cannot be calculated in monetary terms.”
The mechanisms of harm
David’s case provides a checklist of why people lose respect for the federal criminal justice system when they see it in action:
- Kingpins get off, underlings get prison. Robert Jerry Duncan, the motorcycle gang leader who started the meth operation and ran it for years, testified against his underlings. Federal court records and federal prison records don’t show him serving any prison time.
- Conspiracy laws punish people for what they didn’t do. David sold (and used) meth for a few months. Conspiracy law made him responsible for what others did years before he was involved. Federal conspiracy law punishes groups, not individuals, and compounds the foolishness by punishing individuals for the drug weight of everyone in the group before and after a defendant’s involvement. David sold drugs in 1990 but had decades added to his sentence because others — such the top guy, who got off easy — sold meth in 1985.
- “Not guilty” = prison. The jury found David (and his co-defendants) not guilty of possessing guns while trading drugs. No matter. Under federal law, he got extra prison time for using a gun anyway. In federal court, acquittal is a mere technicality.
- Trial penalty. When higher-ups get reduced sentences for testifying against lower-downs, the small fish and the innocent are forced to pay “trial penalty” for making their case to a jury. Sentences for those convicted at trial are roughly double for those pleading guilty to the same offenses — a “trial penalty.” (Often, even winning isn’t enough. See above.)
- Followers are leaders. Federal drug cases use language, twisted Orwellian-style, to favor the government. Federal drug laws define of “supervisor” and “manager” so broadly that the family dog can qualify. Legal labels function as prosecutorial tools to lengthen sentences, not as descriptions of objective reality. David was a drug business supervisor in the same way a Walmart cashier is a supervisor of his register.
Phony definitions explain why so many poor people whose biggest asset is a an old car are sentenced to decades in prison as supposed kingpins of Dubuque. Legally true. Factually false.
What was I supposed to do?
Mosby’s 40-year sentence illustrates how federal prosecutors commit moral wrongs by doing right technically. They follow the famous moral code of J.F. Blake.
You remember him, don’t you?
He was the bus driver who had Rosa Parks arrested for not moving to the back of the bus. Before his death, Blake beautifully articulated the prosecutorial “the law is my defense” creed.
“She was in violation of the city codes, so what was I supposed to do? That damn bus was full and she wouldn’t move back. I had my orders.”
Good question. “What was I supposed to do?”
Freedom is arriving for David Mosby decades late, at age 63, after 25 years in prison.
David’s daughter, like millions of other children, had a parent stolen by an unjust sentence. One in nine African American children has a parent in prison.
Laws are not right because they are laws. J.F. Blake was an ignorant coward, not a righteous man.
David is the hero of this story. Parenting from prison — “this call is from an inmate in a federal prison” — is close to impossible.
His daughter is a hero. The righteous do what needs to be done.
Sometimes that’s as simple as a meal …fried eggs, bacon, sausage, biscuits, gravy, hash browns, more bacon, Grandma’s Molasses and ice water.
For David, justice was served at Cracker Barrel.