Death By Preponderance
By: Eric A. Hicks
To those who are engaged in the plight for criminal justice reform, the voiceless and faceless women and men behind the veil of prison walls: thank you. If you are among the uninformed regarding why there is an exigent need to lift the veil that shrouds the policies and practices of the criminal justice system (particularly on the federal level), remember that 'Democracies Die In The Darkness.' Hopefully my words pierce the veil and serve as the impetus that compels you to action.
There are two sentences within the American judicial system that share virtually the same moribund characteristics: A death sentence and a sentence of life without parole. The Supreme Court has discussed the dire nature of the sentence of life imprisonment without the possibility of parole and why it compares on the same terms as a death sentence and noted that no execution of the offender serving a sentence of life without the possibility of parole occurs, but the sentence alters the offender's life by a forfeiture that is irrevocable. Life without the possibility of parole deprives the offender of the most basic liberties without giving hope outside the prison walls — no chance for reconciliation with society, no hope. In a word, it functions as an alternative death sentence. Dual death sentences of this nature are routinely dispensed in some other countries through extrajudicial executions or inquisitions masquerading as judicial proceedings. What should distinguish America, is not the absence of these dual sentences of death but the idea that the defendant in the American judicial system is entitled to his/her full scope of constitutional safeguards (mainly that a jury of his/her peers concluded that their conduct legally warranted this particular punishment) before being subjected to sentences of this nature. There could not possibly exist in America a scheme (not in intention but in application) that would rival any other nefarious systems of justice, could it? Before you answer this question in haste — read.
Urban America was introduced to me and me to it in 1970 in Washington, D.C. The age of innocence abruptly ceased in 1975 and the child first came to comprehend the true essence of the blues. It was during this year that my parents drove away and were reported missing. To date, more than 40 years later, they have yet to be found. The love, strength and guiding hands of my Grandmother (who passed away in 2008) are what restored the shaken humanity of the parentless child and planted the seeds of virtue that would ultimately usher me into manhood. Upon my graduation from Dunbar S.H.S. in 1988, D.C.—like so many other urban areas throughout the nation, was ensnared in the embryonic stages of the scourge that came to be known as the 'crack epidemic.' As a mercurial 18-year-old, the profligate lifestyle that the crack trade appeared to offer proved to be detrimentally tantalizing.
The myopic vision of life that I held as a young man immersed in the crack trade came to an unceremonious end in October 1992 when I was arrested for federal drug charges. One of the offenses for which I was indicted — participating in a Continuing Criminal Enterprise (21 U.S.C. 848(b))—is known as the federal kingpin statute and upon conviction prescribes a mandatory penalty of life imprisonment without the possibility of parole. Among the critical features of this statute that the government was required to prove to the jury beyond a reasonable doubt at the time of my trial was whether the offense involved the distribution of 1.5 kilograms or more of crack and whether the defendant was a leader/organizer in an enterprise that involved 5 or more people. Another of the offenses which I was charged was the lesser included offense to the CCE — a general conspiracy (21 U.S.C. 846). Unlike the CCE, the prevailing law at the time of the trial in relation to drug quantity only required the government to prove that a person conspired to distribute a 'detectable amount' of crack — an amount as miniscule as $5 worth of crack — to sustain a conviction thereunder. At the conclusion of my trial, the jury returned a verdict of guilty for the lesser 'general conspiracy' and could not reach a verdict on the more massive CCE conspiracy. Consequently, the judge declared a mistrial as to the CCE and the government opted not to seek retrial for this offense.
Undeterred by this setback and armed with the policy of the United States Sentencing Guidelines known as 'relevant conduct,' the government was afforded the proverbial 'second bite' at the apple at the sentencing proceedings with respect to the core features of the CCE — viz., drug quantity and leader/organizer. However, during this stage of the proceedings, under the policy of 'relevant conduct' the government was free to completely disregard the jury's verdict (or lack thereof) insofar as it was not required to prove these factors beyond a reasonable doubt as had been mandated at the trial. Rather, employing the policy of 'relevant conduct,' it was only necessary for the government to prove the issues of drug quantity and leader/organizer by a preponderance of the evidence — the standard of proof used in civil proceedings and also the absolute lowest standard of proof of all standards applicable in judicial proceedings. Under this low standard, the government was not only able to prove that the conspiracy involved more than 1.5 kilograms of cocaine; it was able to hold me accountable for 21.9 kilograms of 'ghost' crack—that is, drugs that have not been physically seized. The government was also able to prove under this low standard that I was a leader/organizer in an enterprise involving 5 or more people.
In addition to increasing my sentence by decades, these two 'relevant conduct' findings alone mandated a sentence of life imprisonment without the possibility of parole for the lesser conspiracy that I was actually convicted of. While the government's use of 'relevant conduct' in this regard is perfectly legal, the sanguinary and iniquitous nature of this procedure is obvious, as it effectively allowed the government two opportunities to try its CCE case: once before the jury where I had the full panoply of constitutional safeguards, including the reasonable doubt standard, and (because it was not satisfied with the outcome of the trial) again before the court at the sentencing proceedings where constitutional safeguards are basically non-existent. When the 'relevant conduct' option is used, the chances of a defendant being arbitrarily convicted (and sentenced) of an uncharged, acquitted or dismissed offense (as occurred here) increases exponentially as does the specter of the augmentation of one's sentence by decades since the government is only required to prove that it is 'more likely than not' that the defendant committed the uncharged, acquitted or dismissed offense. Nearly 30 years after my arrest, 'relevant conduct' has essentially defined my existence because I remain interred behind prison walls serving a sentence of life without the possibility of parole where the government was able to manipulate this policy to impose this internecine sentence for a crime that it ultimately had to acquiesce to dismissal based on its failure to secure a conviction at trial.
Through these roughly three decades that I have been incarcerated, all of the attempts to overturn the convictions or reduce the life sentence have been futile. Even more grievous, the 'relevant conduct' produced enhancement for the 21.9 kilograms of crack, and the leader/organizer role that were both components of the dismissed CCE offense have conspired to render me ineligible for all of the remedial modifications of law including, as discussed infra, the First Step Act.
Like the sister Alice Johnson, I was appointed counsel as a part of former President Obama's Clemency Initiative of 2014. Clemency counsel prepared and submitted the clemency petition on my behalf. Similar to Ms. Johnson, my clemency petition was denied without reason on former President Obama's final day in office. Recently, I was again appointed counsel to file a motion on my behalf for a reduction of sentence pursuant to the First Step Act signed by President Trump on December 18, 2018. In what perhaps was intended to be legislation designed to remedy the past injustices wrought by the 100:1 crack ratio, the CCE-related enhancements for the 21.9 kilograms and leader/organizer role were the core factors cited as the basis of the court who recently refused to modify the sentence of life imprisonment without the possibility of parole. One must seriously wonder if members of Congress or the President knew or expected for the remedial legislation that was designed to ameliorate an injustice to be perverted by the incorporation of an equally offensive procedure.
As a young man, I made an imprudent decision to sell crack. Nearly three decades has been spent endeavoring to apologize to society, the community and my family for this irresponsible conduct. There will not come a time in my life where I am not diligently trying to make amends to all of the aforementioned. To the extent that I transgressed the laws of democracy, justice necessitated that some form of punishment was warranted for my actions. Justice, however, is not only about punishing the guilty. It is also about assigning a punishment consistent with the jury's verdict for the offense for which one has been duly convicted — a process that becomes uniquely malevolent when the policy of 'relevant conduct' is employed as a means to punish a defendant for uncharged, acquitted or dismissed crimes by a preponderance of the evidence. Permitting this policy to function in this capacity denigrates the jury's purported role as a check against arbitrary or oppressive exercises of prosecutorial power, especially where it results in the imposition of a de facto death sentence for an offense in which a person has not been duly convicted.
If in fact this law was intended for me to perish behind these prison walls serving this sentence, I will meet that fate with an erect spine and not an iota of trepidation. In the interim, as I travel towards whatever may be my inevitability, steadfastly will I embrace the notion that America can evolve towards egalitarian ideals — an unadulterated reflection of the mass of people of every race, gender and ethnicity. Surely, there have been moments in history where we have had to confront individuals and/or policies which have promoted overt and subtle injustices. But as has been proven by the abolishment of slavery in the 13th Amendment, granting women suffrage via the 19th Amendment, the Japanese Internment Reparations, Reparations for the Rosewood, Florida families, the Civil Rights Act of 1964 and the Voting Rights Act of 1965, our moral pendulum has the ability to swing towards justice. This time is no different.