A Knock at Midnight(42)

Her response came in a few hours later.

“I felt numb,” she wrote. “I had absolutely no understanding. When other women in here ask me my time, it’s like I can’t even fix my mouth correctly to let the word roll off my tongue. I refuse to believe I will die in here.”

I refused to believe it, too.



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I WAS DETERMINED to get Sharanda out of prison. Everything about her conviction and sentence seemed fundamentally flawed. So I spent nights and weekends in the law library, digging deeper into federal statutes and case law to see how I could get Sharanda’s case back into court.

I came across the 2005 case of United States v. Booker, in which the U.S. Supreme Court held that mandatory federal sentencing guidelines were unconstitutional. Rigid and unforgiving sentencing guidelines had tied the hands of federal judges for nearly twenty years. After Booker the guidelines were made advisory, restoring some semblance of individualized sentencing discretion stripped from Sharanda’s judge in 1999. Booker also instructed appellate courts to review all district court sentencing decisions for “reasonableness.”

    The U.S. Supreme Court then issued several decisions mapping out the advisory sentencing guidelines system that Booker created. Kimbrough v. United States seemed the most promising. Based on a categorical disagreement with the 100-to-1 policy, the Court ruled that federal judges could use their discretion in sentencing a defendant below the sentencing guideline range in crack cocaine cases.

Once again I couldn’t believe what I was reading—but this time it was a pleasant surprise. In her opinion, Ruth Bader Ginsburg, my favorite Supreme Court justice, examined the disparate treatment of crack and powder cocaine in federal sentencing. She came to the exact same conclusion I had in my critical race theory paper. Disparate sentencing between crack and powder greatly harmed Black people.

“The crack/powder sentencing differential ‘fosters disrespect for and lack of confidence in the criminal justice system,’?” wrote Ginsburg, “because of a ‘widely-held perception’ that it ‘promotes unwarranted disparity based on race.’ Approximately 85 percent of defendants convicted of crack offenses in federal court are black; thus the severe sentences required by the 100-to-1 ratio are imposed ‘primarily on black offenders.’?”

This was it! I knew I could make the argument that Sharanda’s life sentence was unreasonable. It was beyond the point of legitimate debate that Sharanda’s permanent removal from society offended prevailing standards of human decency.

But as I read further, my heart sank. Kimbrough v. United States was not made retroactive. The decision would help people in Sharanda’s situation going forward, but it couldn’t undo what had already been done. In fact, under Booker and its progeny, I was procedurally barred from getting Sharanda back into court.

None of this made any sense. If a law is wrong today, wasn’t it wrong yesterday? And shouldn’t the people in prison because of it get another shot at justice? I had learned in law school that there was a limit to a lawyer’s use of creativity. We were bound by the law. But increasingly, it seemed that we were bound by laws entirely outside the bounds of moral consciousness.



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    THAT SPRING, I interviewed with Winstead PC, a national law firm and among the largest business law firms in Texas, and received an offer to join as summer associate between my second and third year of law school. I spent the summer accompanying partners to meetings with clients, listening in on risk assessment conference calls, even analyzing a few cases. But even as I found renewed focus at work, I was determined to figure out how to get Sharanda out of prison. That summer, while I threw myself into corporate law by day, I spent four nights a week in a constitutional law course focused on cruel and unusual punishment, hoping to find a solution for Sharanda.

There had been some recent movement in the courts, and in Congress. In May 2010, the Supreme Court ruled in Graham v. Florida that it was unconstitutional to sentence juveniles to life imprisonment for nonhomicide offenses. Debates were heating up in Congress over a potential change to the law that would eliminate the crack and powder cocaine disparity. The Senate had passed a bill in the spring, and I was hopeful that the House would do the right thing by passing it as well. The Obama administration had encouraged Congress to adjust the 100-to-1 sentencing ratio to 1-to-1. In order to get both sides of the aisle to agree, they compromised to a ratio of 18-to-1. The Fair Sentencing Act was by no means perfect, but at least it marked some recognition by Congress that the draconian penalties for crack offenses they had codified in the 1986 Anti-Drug Abuse Act were unfair.

On August 3, 2010, the day before his birthday, President Barack Obama made history by signing the Fair Sentencing Act into law. In our emails to each other, Sharanda and I were almost giddy with anticipation. We were sure the new law would enable her to get back into court.

And it surely would have, had it applied to her. But the FSA had one life-shattering deficiency aimed directly at Sharanda and the thousands like her already serving excessive sentences for crack. Like Booker, it was not made retroactive.

    We were devastated. I returned to Professor Udashen’s office, seeking some combination of explanation and commiseration.

“It all boils down to compromise and convenience,” he said. “Congress makes compromises to get a bipartisan consensus. And courts claim that retroactivity overburdens judicial resources.”