Thousands of Inmates Hang in the Balance of Friday Sentencing Vote
(CN) - More than halfway through a nearly 20-year sentence for moving meth to fund her addiction, former Texas honor student Dana Bowerman will be cut out of an initiative to reduce lopsided prison terms for nonviolent drug users if Attorney General Eric Holder wins a policy vote Friday, she explained from jail.
Bowerman, 43, seems a model candidate for Holder's "Smart on Crime" initiative, a policy the attorney general unveiled last year that promised to crack down on what he called "draconian mandatory minimum sentences."
The Washington-based advocacy group Families Against Mandatory Minimums (FAMM), one of the most prominent nonprofits lobbying for criminal-justice reform, highlighted Bowerman's case as an example of a first-time offender spending decades behind bars for a crime tied to her addition.
The Atlantic magazine profiled Bowerman for a 2007 piece titled "Irrational Sentencing, Top to Bottom," and PBS reported earlier this year that she would benefit from the passage of an amendment that lets drug offenders apply retroactively for a sentencing reduction.
Whereas the original plan would have let roughly 50,000 people apply for 23-month reductions on average, Holder endorsed a plan that barred prisoners who received certain "sentencing enhancements" from applying.
These restrictions would narrow the pool of applicants to fewer than 20,000, shutting out thousands of prisoners who, like Bowerman, had been accused of obstruction of justice or other uncharged offenses, data from Federal Defenders shows.
The Holder administration's proposal would also have shut out Willie Mays Aikens, a former Kansas City Royals first baseman whose crack addiction sidelined his career in baseball decades ago.
Aikens, now 59, left prison to become a criminal-justice reform icon, testifying before Congress to lower sentencing disparities between crack and powder cocaine.
In exclusive interviews, Bowerman and Aikens shared their stories and their views on the Sentencing Commission's upcoming vote, in which a seven-member panel of judges, professors and lawyers will decide on the proposed exclusions.
Speaking from her prison, Alabama's FCI Aliceville, Bowerman said the adoption of the Justice Department's proposal would mean she would be "punished twice" for a lie that she insists that she never told.
When she was busted at age 30, Bowerman said that she had spent half her life as a "functioning addict," juggling legal-secretary work with a methamphetamine habit.
Despite warnings to stay away from her dealer, whom she said already had a record, Bowerman said she turned to that man for help supplementing the income she earned working for a bankruptcy attorney and several oil and gas companies.
With her primary income meant to fund her education at a technical school, Bowerman said she earned a "couple of hundred dollars" from her dealer by shipping drugs between Las Vegas and Texas.
Bowerman said she acted as a courier only that one time and then sent two Western Union MoneyGrams to a recipient she did not know. Prosecutors ultimately accused her of having a larger role in a 15-person methamphetamine ring. Her father, Gerald Bowerman, who she insists never knew of or condoned of her drug use, was swept up in that group.
Agents raided the house Bowerman shared with some of her co-conspirators in Wichita Falls, Texas, in 1999, but they did not arrest her at the time. She moved to Dallas right after that to take up a new job at Kadane Corp., an energy company.
On the early morning of May 15, 2000, she said her new boss at Kadane fired her after seeing eight law-enforcement vehicles and more than 10 federal agents surround the office and handcuff her outside.
"It was my first arrest and I was scared to death," Bowerman said in an email. "I was upset because I lost my job but didn't really know what I was facing at that time. I still thought that I might get 2-5 years for a first offense."
The indictment pushed Bowerman far over that range by charging her with distributing 12.25 pounds of methamphetamine, but she asserts that she dealt far less. DEA agents found no drugs on Bowerman or her property, and her financial profile hardly resembled that of a kingpin.
"My truck was on its last legs," she said. "I had $11 in the bank when I got arrested."
Bowerman added that the man she calls her dealer received a nonjail sentence for testifying against her, leading to convictions for meth-distribution and money-laundering conspiracies.
Probation officers recommended giving Bowerman a sentencing enhancement for obstruction of justice based on another witness's lies to the grand jury.
Bowerman maintains that the witness took it upon herself to lie. Prompted or not, that lie proved costly for Bowerman.
Combined with her convictions, it brought the lower end of Bowerman's guideline range up to 19 years and seven months in prison, a sentence handed down to her in 2001.
If the Holder administration's exemptions prevail on Friday, Bowerman will not be eligible for release until her time is fully served on March 29, 2018.
When reached for an interview, Bowerman's sister, Paula Bailey, was preparing for a prison visit to Alabama, where Dana transferred because of overcrowding at the local prison in Fort Worth. Bailey noted that her sister learned how to train service dogs in a program at her old prison and could become a veterinarian upon release.
Bailey found it "bogus" that sentencing enhancements could stop her sister from moving on with her life sooner.
"They're unbelievable, because it's like new charges that the jury didn't even find on," Bailey said.
Prosecutors declined to comment on Bowerman's case.
Defense attorney Sarah Gannett, who testified at the Sentencing Commission last month for Federal Defenders, noted that "sentences are commonly increased by facts that are never found by a jury."
"In fact, federal law permits judges to enhance sentences based on acquitted conduct; that is, conduct for which the jury found the client not guilty beyond a reasonable doubt, but which the judge finds by a preponderance of the evidence at sentencing," Gannett said in an email.
Citing a Federal Defenders analysis of "proxy" data, Gannett estimated that the obstruction-of-justice bar will prevent 2,500 people like Bowerman from seeking relief.
The Sentencing Commission and Justice Department have not released the raw statistics related to the proposed exclusions, Gannett added.
"From our perspective, it is disturbing that a decision could be made to limit retroactivity that could affect the liberty of thousands of people without similar transparency about the effects," Gannett said over the phone.
Other restrictions against prisoners with higher criminal-history categories and those given so-called "gun bumps" will eliminate nearly 30,000 eligible prisoners from the application process, she added.
While the Holder administration justifies these exclusions on public safety, FAMM spokesman Mike Riggs said the "arbitrary, one-size fits all" categories are not always what they seem.
"People in higher criminal-history categories often are there because of small and petty offenses that under the guidelines quickly add up," Riggs said. "As for excluding people with gun enhancements, gun 'bumps,' as those enhancements are called, are applied frequently when the gun is possessed by a co-defendant and the prisoner had no relationship with the gun."
This, in fact, happened to Dana's father and co-defendant, Gerald Bowerman, the 5th Circuit found in 2003.
Striking an enhancement for firearm possession, the court ruled that the gun was not Gerald's and that the trial record was "devoid of testimony" that he ever used it for a crime.
Although the Bowermans are white, the proposed exclusions impacting their fates will have a "disproportionate impact on African-American inmates," according to the analysis from Federal Defenders.
That group would, however, include Aikens. The former major league slugger has spoken out in the past about racially disproportionate criminal-justice policies.
Indeed Aikens said an undercover officer entrapped him, and raised his penalty 100 times under the former guidelines, by asking him to cook powder cocaine into crack.
The U.S. Sentencing Commission gave Aikens a break on his 21-year sentence by voting for retroactive application of an amendment to the mandatory-minimum law for crack.
Within a year of his release in 2008, Aikens got married, rebuilt his relationship with his daughters and reconnected with the Royals to work as a minor league coach. He shared his story with the House Judiciary Committee the next year to have them reduce the disparity between crack and powder-cocaine sentences, long criticized as irrational.
"All you have to do is add water and baking soda to it," Aikens said, referring to the chemical composition of the two drugs. "So, the disparity, it doesn't make any sense, and I told them that."
Congress eventually passed the Fair Sentencing Act, lowering the difference from 100:1 to 18:1.
Like Gerald Bowerman, Aikens also got a gun-bump sentencing enhancement that he contested. He said he bought a gun legally two days before his arrest but his undercover officer claimed that he had it earlier.
The officer's testimony contradicted her police reports, Aikens said.
"She said that she had forgotten to put a gun in a report," Aikens commented. "A police officer is not going to forget to put a gun in a report, if they see one on an assignment like that."
Believing the officer, the jury rejected the entrapment defense and saddled Aikens with another conviction, which also became an enhancement.
Aikens said he "would have been incarcerated for another four years" if applying for relief were tied to enhancements.
"If this is implemented into the law, it's going to affect somebody like myself," Aikens said. "I think it's totally unfair. I think it should be omitted, and it shouldn't be a part of the process."
The Justice Department did not respond to a request for comment.