How a flawed criminal justice system put a pregnant Detroit activist behind bars 

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click to enlarge Siwatu-Salama Ra and her daughter pictured on vacation. Ra is now pregnant with her second child and imprisoned for a mandatory minimum sentence on gun-related charges. Her defense says she was acting in self defense. - COURTESY PHOTO
  • Courtesy photo
  • Siwatu-Salama Ra and her daughter pictured on vacation. Ra is now pregnant with her second child and imprisoned for a mandatory minimum sentence on gun-related charges. Her defense says she was acting in self defense.
The absurdity in minimum sentencing

The law required the judge to send Ra to prison for two years, so — in essence — Michigan’s Legislature had actually determined Ra’s sentence, and the sentence for anyone committing a gun crime. Though one can only speculate on what kind of sentence Ra’s judge — Thomas Hathaway in Wayne County Circuit Court — would have handed down were no mandatory sentence in place, he would have had a lot more to consider.

“It doesn’t take into account who you are, why a felony was committed, what the circumstances were — so it takes that discretion away from the judge, who is the person who gets to see the defendant and knows the case’s facts,” Burton-Harris says. “Instead, it lumps groups of people together without analyzing each case, without analyzing facts, and without merit.”

That may be, but don’t these type of laws keep us safe?

Multiple reports have concluded that they do not.

“There is no credible evidence that the enactment or implementation of such sentences has significant deterrent effects, but there is massive evidence, which has accumulated for two centuries, that mandatory minimums foster circumvention by judges, juries, and prosecutors; reduce accountability and transparency; produce injustices in many cases; and result in wide unwarranted disparities in the handling of similar cases,” University of Minnesota law professor Michael Tonry wrote in the 2009 study The Mostly Unintended Effects of Mandatory Penalties: Two Centuries of Consistent Findings.

That’s also what Mark Osler, a former U.S. Attorney who worked in Detroit during the ’90s crack epidemic, found after years of filing charges that carried mandatory minimums. He regularly sent low-level Detroit drug users to prison for a mandatory five years for possession of a small amount of crack, and another five if they carried a pistol.

But Osler walked away from the job in 1997 after he started to see the depth of the cruelty and absurdity in mandatory sentences, he says. Since then, he’s worked to undo harsh sentences through litigation and built the country’s first federal commutations clinic, which he runs with law students at the University of St. Thomas in Minnesota.

What he finds problematic with mandatory minimum sentences is that while they’re designed to deter, they’re not particularly good at deterring crimes that occur in situations that unfold quickly and unexpectedly.

“The idea is that they'll create deterrents, and people will know that there is this mandatory minimum, and they'll decide not to take that action,” Osler tells us. “There are two things that are crazy about that. First, people need to know that the minimum is there. And second, they need to be making a rational cost-benefit analysis. [Ra] is addressing a sudden situation — she’s not taking into account the mandatory minimum, and she probably doesn't even know about it.”

Then there’s the cost. The Michigan Department of Corrections previously said up to 2,500 people were serving prison sentences at one point in 2015 because of mandatory sentences for guns. Housing 2,500 inmates at about $34,000 per inmate costs taxpayers roughly $85 million annually, and that figure doesn’t include the bill for providing public defenders, jury trials, and other strains on the court system.

“You’re exacting a high price for people and you’re not solving a problem,” Osler says. “Look at this case — what problem is it solving to incarcerate her for two years?”

Still, it’s the kind of law supported by many prosecutors, as well as local and state politicians — including Detroit Mayor Mike Duggan — who want to appear tough on crime. But in the face of mounting evidence of the law's ineffectiveness, the cost of imprisoning the convicted, and polling that regularly finds opposition to mandatory minimums, a bipartisan group of Michigan lawmakers proposed eliminating mandatory sentences for guns in 2015. The bill ultimately failed, but it highlights the mixed feelings for the rules.

Burton-Harris adds that if there must be minimum sentences, then juries should be aware of what a guilty verdict means for defendants. She wonders how that might have impacted Ra’s case.

“It’s improper for a jury to believe that there’s no mandatory punishment, and that everything is in the judge’s discretion,” she says. “That couldn't be further from the truth when you have judges who order mandatory sentences.”

Activists hold a #FreeSiwatu banner at the March for Our Lives rally for gun reform on March 24, 2018 in Detroit. - COURTESY PHOTOS
  • Courtesy photos
  • Activists hold a #FreeSiwatu banner at the March for Our Lives rally for gun reform on March 24, 2018 in Detroit.

Sending more young black people to prison

In 2013, Detroit Police Chief James Craig infamously urged residents of his city — one that is more than 80 percent black — to arm themselves.

That didn’t work out well for Ra, who would be sentenced to two years in prison in 2018 for essentially following Craig’s advice. In fact, black people around the nation who live in lower income areas are locked up for the mandatory sentences at a high rate.

Though there’s no data available in Detroit, a study of gun charges in Baltimore — a city with similar demographics and violent crime levels — found that of 881 first-time gun offenders between 2015 and 2017, 96 percent were African American; 63 percent were under 25 years old, and none had felony convictions.

Also notable is that Baltimore’s prosecutors could use minimum mandatories that are already on the books at the state level in 75 percent of 3,733 cases. In other words, Maryland’s minimum sentencing guidelines aren’t having their desired effect. Yet “tough on crime” prosecutors and politicians claim they’re making everyone safe.

“These kinds of arguments have been marshaled in support of mandatory minimums before,” former Maryland Deputy Attorney General Thiru Vignarajah wrote in a 2017 Baltimore Sun op-ed in which he spoke against proposed mandatory minimums at the city level. “Over the past 40 years, however, at untold costs to communities of color, we have learned that mandatory minimums are not the answer.”

What’s next

Ra’s attorneys say they plan to file an appeal once they receive trial transcripts.

Meanwhile, Burton-Harris says Ra is receiving poor health care and treatment. She’s Muslim so she doesn’t eat pork, but isn’t provided a pork-free diet in prison. On a recent trip to the hospital for treatment for an infection that caused contractions, she says guards tightly chained her ankle and feet to her bed, cutting off circulation and causing pain.

“They put the shackles so tight around her ankles that she couldn't even walk and lost all feeling in her feet,” Burton-Harris says. “She’s six to seven months pregnant, so ankles are already swollen. She doesn’t have access to good health care, and it’s totally inhumane to shackle a pregnant woman’s feet to a bed as she’s getting a vaginal exam.”

Attorneys tell Metro Times that while Ra was in the hospital, they and the family didn't know her whereabouts, and prison officials would not provide any information. 

The defense says it previously requested that the sentence be delayed until after Ra gives birth, but Judge Hathaway denied that motion. Ra’s attorneys are particularly concerned because complications in her last pregnancy caused her to give birth early. Ra’s doctor sent a letter to the court stating that there’s a strong possibility that she could experience the same complications, and she recommends that Ra not give birth while incarcerated.

Attorneys say they will ask that Ra be released on bond during the appeal process.

(Ed note: The Detroit Police Department denies it has a policy in place that says that the first person to arrive at the police station is considered the victim. An earlier version of the story stated that DPD confirmed that policy is in place. However, Ra's attorneys say that a detective testified that the department considers the person who arrives at the police station first to be the victim.)

Check freesiwatu.org for more information. A pancake dinner fundraiser takes place from 6 p.m. to 10 p.m. on April 13 at Rose’s Fine Food in Detroit; 10551 E. Jefferson Ave., Detroit, 313-822-2729; rosesfinefood.com. Buy tickets for the event here.

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