Moreover, a 1994 study from the Federal Judicial Center concluded that black and Hispanic offenders are disproportionately affected by federal drug sentencing laws when compared with whites. Under the minimums, it takes 500 grams of powder cocaine to trigger the same five-year sentence as five grams of crack--a drug whose use is higher among blacks. Also, for whatever reasons, whites are more likely to plead guilty and receive reductions for cooperating with investigators.
Even as prominent a conservative as U.S. Supreme Court Chief Justice William H. Rehnquist said the mandatory minimums were "perhaps a good example of the law of unintended consequences."
Robinson and, more recently, Legal Defense Fund attorneys, have filed a steady stream of appeals and civil motions on Kemba's behalf charging that, even aside from the promises allegedly made to Kemba by the prosecutors, her own attorneys failed her: They should have been able to show that her level of participation in the drug ring in no way merited a 24 1/2-year sentence.
The U.S. Attorney's Office says this simply isn't true.
"The judge found that her participation [in the ring] was in fact substantial," says U.S. Attorney Helen Fahey. "The idea that she didn't do any harm, I think, ignores the fact that $4 million of crack cocaine ended up on the street with her assistance."
Fahey suggests that the discrepancy between sentences for drug crimes and those for, say, second-degree murder may reflect that the system is too lenient, rather than too tough: "The problem may be that the sentences for other crimes, especially violent crimes, have been inappropriately low in the past."
The latest civil action on Kemba's behalf was filed in December in the 4th Circuit Court of Appeals. If it fails, Kemba's lawyers say their only choice would be to go to the Supreme Court. It's a long shot, to say the least. Even those who are sympathetic to Kemba Smith suggest that legal maneuvering may not work.
Judge Robert Doumar has been presiding over the appeals in district court. In rejecting a civil motion in October, Doumar wrote: "The court is indeed sympathetic to the plight of petitioner Smith. She is the recipient of a truly heavy sentence--an occurrence that has become standard practice under the Sentencing Guidelines. . . . In the opinion of the undersigned, the Guidelines represent a prime example of how Congress is sometimes unaware of the unintended consequences of its legislation."
But he added that his hands were tied under the law.
He recommended she apply to the president for a pardon.
Odessa Smith wasn't cut out for this type of crusade. She cries over the telephone and while speaking in front of auditoriums. Her voice breaks when she says the word "prison." When she talks to her daughter, it is she who despairs and Kemba who comforts. To this day, Odessa has not read the government's presentencing report, which lays out the body of her daughter's crimes. It hurts too much.
Gus, on the other hand, keeps a war room.
It is stocked with articles written about his daughter, court documents, letters from strangers in support of his daughter. He has T-shirts with Kemba's picture on them. He keeps mementos from the different universities where they have traveled to speak: Columbia, Virginia Commonwealth, George Washington, Alabama State, Michigan State. Sometimes they go to four in a month.
It is December. Gus is speaking to students at the University of Massachusetts. He talks about race and sex and the war on drugs.
"If this is justice," Gus is saying, "then we need to change the definition of justice in America." He shakes his fist and jabs his index finger.
Odessa sits off to the side. She wears all black, as she often does these days. She is petite, and when she sits, hands together, feet together, she seems to curl into herself. If Gus believes his daughter is part of a bigger picture, Odessa can't get past the missing.
In the audience, Armani wriggles on a woman's lap. After the speeches, while the crowd mills, he runs over to the podium and seizes a box of sugar cubes that Gus uses to demonstrate the sentencing disparity between crack and powder cocaine. (This is one sugar cube of crack, Gus explains during his speech, and this is one box filled with cocaine. Either one will get you five years.)
Armani runs with the sugar toward his grandfather. "Daddy, your crack cocaine! Daddy, your crack cocaine!"
Gus takes the box, and explains carefully that it is sugar, not drugs. Drugs are not to be toyed with.
"He's getting confused," Gus says. "He's getting very confused."
True. But the confusions are often piercing. Armani is an intelligent and feisty preschooler, with a love for crab legs, Pokemon and stickers. He struggles to comprehend the absence of his mother. Gus says that one day recently, Armani remarked, "I don't want to die before Mommy comes home."
But, when will she? The Smiths are more cautious about Kemba's prospects than they were in the beginning. There was a flurry of attention following a lengthy magazine article on Kemba four years ago, and Gus and Odessa thought for sure the activity would generate freedom. The injustice seemed so obvious to them.
But it hasn't happened. In the meantime, the money situation since Kemba's incarceration has been tricky. Because of attorneys' fees topping $40,000, and because Gus lost his job, the Smiths twice declared bankruptcy. They put a second mortgage on the house and liquidated their retirement funds.
Telling her story in a penitentiary visitors' room, Kemba says she knows that her chances of getting out soon are slim. But what alternative is there to hope when reality is intolerable?
If she serves her full sentence--at least 21 years if she qualifies for "good time"--she will be in middle age when she gets out. Her parents may no longer be alive. Her son will be a grown man, and will have long since formed an opinion about why his mother was in jail.
A visitor asks her what she sees when she looks 19 years ahead, and she says she doesn't see anything. It's all cloudy.
And then, a few moments later, she interrupts with this:
"I don't see myself in prison, though--that's important." She laughs, as if this goes without saying.
"I do know that. I hope. I can't see myself in prison 'cause if I do I'll go crazy. I can't do 19 years."