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Mandatory Minimum Sentencing Might Have a ‘Girlfriend Problem’

Congress forced federal judges to impose harsh sentences as a way to deter crime, but the result is often long prison sentences for women tangentially connected to offenders

Rudy Valdez and Cynthia Shank, Park City, Jan. 22, 2018.

Rudy Valdez and Cynthia Shank, Park City, Jan. 22, 2018.

Michael Buckner/Deadline/Shutterstock

In 2008, Cynthia Shank was sentenced, as a first-time offender, to 15 years in prison on drug-conspiracy charges. She had once been the girlfriend of Alex Humphrey, a Lansing, Michigan, drug dealer, who was shot and killed in a drug bust in 2002. In the years since she’d lived with Humphrey, she had completely rehabilitated her life: She had a job at a restaurant chain as a manager, was married and had two children, with a third on the way.

But because Shank had shared a past life and home with a drug dealer, she was a conspirator, and Federal Mandatory Minimum guidelines for crimes like Humphrey’s delivered severe and punitive sentences to their “conspirators” — especially girlfriends.

A mandatory-minimum guideline is a sentencing limitation, instituted by Congress to force federal judges to impose harsh sentences as a way to deter crime. When harsh-sentencing guidelines were passed in the late 1980s, a hidden effect was the so-called Girlfriend Problem — long prison sentences given to women tangentially connected to violent or severe offenders.

Conspiracy is a charge often assigned to low-level members of a drug organization, with prosecutors exchanging plea bargains for information to help capture higher-level criminals. Women personally connected to these organizations, however, often have little information to exchange. Additionally, many refuse to cooperate as informants against family so they end up the victims of harsh sentences that have little to do with their roles.

Cindy Shank photographed in Park City, Utah, Jan. 22, 2018.

Cynthia Shank photographed in Park City, Utah, Jan. 22, 2018. Photo: Michael Buckner/Deadline/Shutterstock

The defense’s argument that Shank was a victim — abused by Humphrey, forced to carry money and stay quiet — didn’t convince a jury. Neither did the argument that, by 2008, she was a productive member of society, half a decade removed from the crimes committed by her dead boyfriend’s criminal organization.

The court allowed Shank to complete her pregnancy before she was put behind bars, but six weeks after Shank gave birth to her third daughter, she was taken to prison. The decade of Shank’s life behind bars is the subject of “The Sentence,” an HBO documentary directed by her brother, Rudy Valdez. Shank had been charged with similar crimes years prior, and some close to her case suspect that the return of her conspiracy charges was related to a plea from one of Humphrey’s former associates — more than a dozen had been incarcerated in the years leading up to Shank’s 2008 arrest.

Shank claims she always knew there was a chance the law would come calling again, and when it did, she would be contrite and honest. During her relationship with Humphrey, she had been involved in criminal activity, but after his death in 2002 she had rehabilitated her life completely. Because of this turnaround, Shank was shocked at her sentencing. “When the judge read the sentence, it didn’t register that it was 15 years,” she later said. “I still naively believed they got it wrong and I wasn’t going to serve time.”

Valdez, then a teacher in New York City, also figured that this was all some sort of misunderstanding, and began filming Shank’s family — fishing trips with Dad, dance recitals, phone calls with Mom — mainly as a scrapbooking effort for when she was eventually released. As the sentence dragged on, reality set in. “It wasn’t until two years after I lost my appeal, and then lost a second appeal, that it hit me — this wasn’t a mistake,” Shank said.

Her sentence has also punished her family. Like more than 70% of women behind bars, Shank was the primary caretaker of multiple children, and when she went to prison, her husband Adam took full custody of all three girls, with some help from Shank’s family.

Cynthia Shank's children, Annalis, Autumn and Ava, "The Sentence"

Cynthia Shank’s children, Annalis, Autumn and Ava, “The Sentence” Photo: HBO

Meanwhile, Valdez’s videos became a documentary-in-progress. As her family endured her absence and fought for her release, “The Sentence” would chronicle her punishment’s damaging effects. The scrapbook had inadvertently become an advocacy project — not just for Shank, but for the thousands of women swept up by these laws.

Minimum-sentencing guidelines weren’t always ammunition in the War on Drugs. In the late 19th century, for example, they were used to carry out and enforce the 13th Amendment and punish potential slave traders and importers.

But in 1951, the Boggs Act established mandatory-minimum sentencing as an attempt at crime deterrence. What was really operating was an anti-immigrant, anti-working-class fervor, targeted at minorities and young people who smoked pot. Under the Boggs Act, first-time marijuana possession carried a minimum sentence of two years in prison. This would be repealed in 1970, but a precedent had been established. As a response to a nationwide panic, Congress could now force the judiciary to fight crime with outsize prison sentencing.

In 1986, Ronald Reagan was President and a tough-on-crime Congress took advantage of a widespread alarm around crack cocaine to propose many of the mandatory-minimum sentencing laws that are still in effect today.

University of Maryland's Len Bias, 1985, Atlanta.

University of Maryland’s Len Bias, 1985, Atlanta. Photo: Bob Jordan/AP/Shutterstock

That June, a top NBA prospect, Len Bias, died of a cocaine overdose two days after his selection in the NBA draft. Bias was clean-cut, young and promising  — the Number Two pick, a future all-star — and the large gulf between his public image and shocking overdose resonated with lawmakers, who staged a nationwide debate and “morality play” out of the martyrdom of his death. Racist rumors swirled that Bias had smoked crack cocaine, when the reality was probably that he’d experimented with powder cocaine while celebrating the new chapter in his career. But the country had the story it needed, at the time it needed, to make aggressive legislative change.

By October, with no reports or committee hearings, Congress passed the Anti-Drug Abuse Act overwhelmingly, 378-16. Because of a little-known firearms law from 1968, drug offenders who are tangentially related to a drug crime that involves the possession of a firearm can have their sentences “stacked,” and be forced to serve them consecutively, instead of concurrently. In 1988, Congress added “conspiracy to commit” to these sentencing guidelines, broadening the scope to those who lived with a drug dealer, spent their money, or aided their operation.

Shank’s circumstance at first seemed like a personal tragedy, but it soon revealed itself to be an institutional problem. “Somebody’s going to realize that they made a mistake, and this is going to be fixed,” Valdez remembers thinking after Shank’s sentencing. “And as I started doing my research and understanding what was going on and what was happening to her, I realized that not only is it not a mistake, but it was happening to thousands of other people.” Her conspiracy charges, and later appeals, reveal a justice system eager to indict, and a sentencing system with zero leeway for any concerns pertinent to her circumstance or life.

“People say, ‘If you can’t do the time, don’t do the crime.’ What’s always hard to convey to people is: ‘What is the right amount of time?’ We’ve just lost all sense of how long these sentences are,” says Kevin Ring, head of Families Against Mandatory Minimums (FAMM). “When it comes to families, regardless of the crime, we should be thinking: Do we have any alternative to separating families from their children? Is there somebody who thought Cindy Shank, if she came back after two or three years, that that somehow wouldn’t have been sufficient — [that] other people wouldn’t have been deterred from what she did?”

Even after Shank’s final appeal failed, Valdez asserted that his sister’s innocence was never the point. In both appeals and clemency petitions, contrition is key. Yes, Shank committed crimes, Valdez says, but the point is the sentence: “Did she make a mistake in her life? No doubt about it. Did she deserve to be punished? Yes. Did it need to be something that completely flipped her life — put in prison for 15 years, losing her job, being forced to have taxpayers pay for her being in there?”

Rudy Valdez, "The Sentence"

Rudy Valdez, “The Sentence” Photo: HBO

Valdez’s documentary had become an activism effort, and Valdez an activist, trying to complete the film regardless of whether he would affect his sister’s sentence or somehow help earn her release. “I was very cognizant in putting it together that I wanted to not alienate anyone. Every screening that we have is a bipartisan screening. We’re not really leaning left or right. We’re trying to get as many people to join forces and move forward.”

One of the first people to reach out to Valdez after seeing “The Sentence” was Sen. Mike Lee, a Republican from Utah often considered the most conservative in the Senate. Because it can be viewed as a fiscal as well as a moral issue, many advocates of drug and mandatory-minimum-sentencing reform are, at first surprisingly, staunch conservatives.

Cory Booker and Mike Lee, Senate Supreme Court, 2018

From left, Sen. Cory Booker, D-N.J., and Sen. Mike Lee, R-Utah, in Washington D.C., Sept. 7, 2018. Photo: J Scott Applewhite/AP/Shutterstock

Lee came to the issue from his time as a prosecutor, seeing firsthand the outsize punishments judges were forced to hand out. “I knew it would be hard to find allies generally, because no one wants to be branded as being soft on crime,” says Lee. But he found support from Sens. Patrick Leahy and Dick Durbin followed by Sen. Cory Booker. “Little by little, we’ve been building this coalition and fortunately we’ve added a number of Republicans and it’s become a bipartisan issue,” says Lee.

Valdez isn’t picky about which side of the aisle shows support. “I don’t care who does it, as long as they do it,” he says.

Republican Sen. Chuck Grassley has previously sponsored a sentencing-reform bill, the Sentencing Reform and Corrections Act. This bill would expand sentencing leniency for judges and retroactively apply the 2010 Fair Sentencing Act, which reduced the disparity between sentences related to crack cocaine and powder cocaine, freeing many current nonviolent incarcerated criminals.

The First Step Act, a House prison-reform bill, would allocate $50 million a year to promote programs in prisons aimed at reducing recidivism. But Congress until recently hasn’t been able to line these two bills up: Many in the Senate see First Step as a half-measure and demand more comprehensive prison reform, thereby holding all reform efforts hostage. Others have simply been afraid of appearing soft on crime in an election year, and this divide is likely why Sen. Mitch McConnell has so far refused to move ahead with any sentencing reform. Senator Lee has stated that by merging the two bills and adding a few items from the First Step to the Senate’s bill, reform is on the way.

On Nov. 12, Grassley’s coalition claimed to have a tentative deal on sentencing reform — a version of First Step that could eliminate “stacking,” but even if a lame-duck Congress puts together a bill that passes, the onus still rests on President Trump.

As recently as last month, Ring was less optimistic. “This is what happens every time,” he says. “They hold off until the election year, and everybody gets nervous, and then you need unanimous support to pass. There’s broad bipartisan support for sentencing reform, which is pretty incredible that things have moved a long way, but in this climate you need unanimity, and you’re not gonna get that.”

There have been other obstacles in the Trump White House. Former Attorney General Jeff Sessions has signaled, quite bluntly, that he believes tough sentences lead to reduced rates of crime. And despite Jared Kusher signaling that his father-in-law is interested in bipartisan sentencing reform, President Trump nominated William Otis, a Federalist Society judge once called the “arch-nemesis of criminal-justice reform,” to the Federal Sentencing Commission. Sessions urged Trump to nominate another judge, the aggressive, tough-on-criminals Henry Hudson, nicknamed “Hang ‘Um High” to the same sentencing commission. The New York Times speculated that the departure of Sessions has bolstered and invigorated the senate’s reform efforts, but for two years Trump has claimed interest in criminal justice reform while cutting programs to help prisoners rehabilitate and treating pardons as political favors.

Meanwhile, none of these reform efforts — or the new compromise, should it pass — could retroactively help Shank. As her sentence dragged on, her family went broke defending her appeals, and Valdez sank all his time away from work and extra resources into making “The Sentence.” Shank’s father sold scrap metal to a junkyard to pay for her telephone minutes. In 2011, she was moved from Illinois to Florida, and the cost of a visit went from a long drive to potentially three or four plane tickets to bring the whole family. Shank’s husband lost his job due to the increased responsibility of single parenthood.

Cynthia Shank's husband Adam with her children Autumn, Annalis, Adam and Ava on the phone with Cindy, "The Sentence"

Cynthia Shank’s husband Adam with her children Autumn, Annalis, Adam and Ava on the phone with Cindy, “The Sentence”. Photo: HBO

Aware that Shank could be in prison until 2021, the couple divorced, with the father retaining custody of the kids. A 15-year sentence threatened to comprise her children’s entire childhoods — her youngest daughter had never known her mother outside of prison, and her oldest would be out of high school by the time she was released. The family watched Shank’s appeals fail. In one, the court reminded her that she could have faced 293 months and that her 15 years is a “55-month downward variance from a ‘quantity alone’ consideration.” Another paragraph bluntly concludes, with Kafkaesque clarity: “Shank’s sentence was reasonable.”

After a final failed appeal in 2011, it was clear that any change to Shank’s incarceration and sentence would require a new catalyst. Outgoing President Obama had been reluctant to offer pardons and clemency, and even so, typical presidents rarely pardon until the final years of their terms. But in 2014, Obama announced a Clemency Initiative, offering priority to nonviolent drug offenders with no prior record and good behavior. Shank’s application checked nearly every box, but Valdez and the family knew a happy ending was still unlikely — the list of clemency candidates contained over 35,000 people.

Clemency rally in Washington, D.C., featured in "The Sentence"

Clemency rally in Washington, D.C., featured in “The Sentence”. Photo: HBO

The window was closing and likely to soon be closed for good. Working with a non-government-affiliated program, the Clemency Project and a pro-bono lawyer, Valdez and Shank filed the first of many petitions. In March 2016, Shank received a call, and Rudy’s documentary received an unexpected final act: The sentence was over, and “The Sentence” could wrap: Cynthia Shank was coming home.

Though a massive prison population is slowly decreasing, and Shank’s story has something close to a happy ending, sentencing reform faces a huge uphill battle, both in the Senate and in public opinion. Shank and Valdez hope “The Sentence” can put a face to a complicated problem that is complicated by design.

“We can tell people and try to describe to them: It’s this many Christmases or this many birthdays,” says FAMM’s Ring. “We hear about decades-long sentences. I think that’s an important thing — to recalibrate everyone’s sense of just how tough these sentences are.”

Valdez agrees. “Cindy’s story, as gut-wrenching as it is, it’s not a unique story. As soon as I realized that, it was almost this added fire, but also added pressure to making the film. I realized this is much bigger than my family.”

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