Michael Mayo was on his way to get some new braids. He didn't know he would end up spending the next two decades in prison.
Police were watching as Mayo, then in his early twenties, made his way through his north St. Louis neighborhood back in July 2001. And Mayo, a street-level drug dealer, decided to do a little business before getting his hair done. That's when police say they saw Mayo make a hand-to-hand transaction with somebody in the middle of the road. Without hesitation, the cops jumped out of an unmarked vehicle and placed Mayo in handcuffs.
On his person, police found roughly two grams of crack, a joint's worth of marijuana and $176 in cash. Mayo said the money was for the braids he was on his way to get, not profits from drug sales. Besides, what kind of legit drug dealer has only a couple grams of crack?
Such a small amount of drugs usually fetches a person probation, drug court or, at most, a year or two in prison. But not for Mayo. He already had been busted for possession twice — racking up a total of five felonies during those two busts — and was currently on probation after receiving shock time in jail.
This time prosecutors would teach Mayo a lesson by charging him under Missouri's Prior and Persistent Offender statute, a law that doles out a minimum ten-year, no-parole sentence to repeat drug offenders.
In October 2001 a jury found Mayo guilty of second-degree drug trafficking. At his sentencing a few weeks later, Mayo's mother, Ester, urged the judge to be lenient.
"Give him a try so he can raise his kids," she pleaded. "He just got off with the wrong crew and into the wrong people, and he will probably do better if you just give him a try."
"You understand though, ma'am, that during the course of the trial your son was found as a prior and persistent drug offender," responded Judge Henry Autrey.
"I don't understand," Ester said.
"Under the laws of the State of Missouri, that means that your son is not eligible for probation or parole," said Autrey.
He continued: "[Mayo] gets a minimum of ten years up to thirty without probation or parole. The only flexibility the court has is that the sentence be between that minimum range and that maximum range. Probation is not an option, and [the court] has no discretion."
It was then Mayo's turn to speak, but he deferred to his lawyer, Eric Barnhart.
"There are people all the time in this courthouse that get lesser punishments [for crimes like] murder second and robbery," Barnhart said. "I just think that the drug laws are harsh, and you should not give him more time than someone who has murdered somebody, or raped somebody, or hurt somebody."
But prosecutor Krista Boston strongly disagreed and argued for a harsh penalty.
"This is a case in which, with five prior felonies, this young man is clearly never going to see the light," Boston emphatically told the judge. "He didn't see it on those five cases. He is not going to see it now. The state is asking for twenty years. He is a drug dealer, and the state is asking for twenty years without probation or parole."
After hearing both lawyers state their cases, Autrey, a bespectacled and bearded man who would soon be appointed to a federal judgeship by President George W. Bush, lashed out at Mayo.
"In comparing or balancing this offense with other more serious offenses like homicide, it seems to me that considering your past history, that the legislators in their wisdom created this particular circumstance for people like you," he said.
Autrey then railed against drugs and the damage they cause to society and America in general. And being a low-level drug dealer, Mayo was no better than the terrorists who had flown planes into the World Trade Center just weeks earlier.
"What America promises everybody is the ability to lead a decent and protected life. Today, Mr. Mayo, we are at war with people in foreign lands because of that principle," he continued. "We work hard at not allowing anybody to disrupt or interfere with America's ability to prosper.... But some people, Mr. Mayo, have decided, such as yourself, to interfere with that ability."
And finally, after a few more words about how drugs threaten democracy, Autrey announced the sentence and gave the prosecutors what they wanted:
"It will be the order and judgment of the court that the defendant will be sentenced to twenty years in the Missouri Department of Corrections."
Similar sentences for nonviolent drug dealers are not uncommon in St. Louis, where city prosecutors employ the Prior and Persistent Drug Offender statute far more often than their counterparts elsewhere in Missouri. But it's necessary, says the St. Louis Circuit Attorney's Office, in order to stamp out street slingers and keep the city safe.
"It's a tool that the legislature has given us to inform the court and to protect our community," says Boston, who now heads the CAO's Drug Enforcement Task Force.
Critics of the sentencing tactic say that there's little evidence that the Prior and Persistent Drug Offender statute helps curb drug dealing. One place it does make an impact, however, is in the black community, where African American males most often see their drug offenses enhanced under PPDO sentencing.
The PPDO statute allows prosecutors to charge those with two prior drug convictions with a higher-level offense the next time they're busted for drugs. That means someone arrested for a B-level felony (say, for a charge of cocaine possession with the "intent to distribute" that might carry a five- to fifteen-year sentence with the possibility of parole) can have those charges increased to an A-level felony if it's their third drug charge. And under the PPDO statute, the sentence for that A-level felony will carry a minimum of ten years without parole.
Since 2001, Missouri prosecutors have applied the PPDO statute approximately 1,500 times, according to Missouri Department of Corrections data, with more than 700 of those instances coming from St. Louis Circuit Court. Those numbers include cases where several PPDO charges were issued against a single individual. St. Louis also counts more than 300 PPDO charges where a defendant's priors may not have been drug related but he was caught with drugs on — or after — a third strike.
Given its status as a concentrated urban area with far more crime than smaller rural counties, it's not surprising that the Gateway City has more cases where the PPDO statute is applied. But when compared to Kansas City — which includes the surrounding Jackson County area and has a comparable drug-trafficking and crime rate — St. Louis outpaces Kansas City's use of the statute by a margin of nearly 100 to 1.
And over the past fifteen years, the use of the statute has only increased in St. Louis. Before 2001, St. Louis prosecutors used the PPDO statute on an average of 15 to 25 cases per year. But that's jumped up dramatically since Jennifer Joyce won the office in 2000 as St. Louis' circuit attorney. In 2004, Joyce's office used PPDO 95 times. And each year since then, the number of PPDO charges have exceeded 100. In fact, 2013 saw the most ever, with 173 cases involving PPDO.
A big reason for this disproportionate use of the PPDO statute is that St. Louis prosecutors have a no-negotiation policy when it comes to plea bargaining.
"We don't offer plea agreements," says Susan Ryan, Joyce's spokesperson. "If a defense attorney wants to come to us and make a recommendation to prosecutors, he or she is welcome to do that, and we'll entertain that. But we don't go out and make plea agreements with defense attorneys."
Michael Mayo's attorney, Eric Barnhart, knows that from experience: "They don't do pleas. They call it a negotiation, but what they do is, if you're interested in a deal, you have to submit to them what you're interested in, and they say 'yes' or they say 'no.'"
That's a different tactic than what's done on the other side of the state, according to Kansas City public defender Susan Hogan, who says that prosecutors there will often use PPDO as a bargaining chip to induce defendants to plead guilty. But negotiations between prosecutors and public defenders do happen, resulting in more plea deals that, once finalized, do not make use of the PPDO statute and its no-parole mandatory minimums.
"It's brought up just about every time it's eligible," says Hogan. "It's a matter of whether we can negotiate out of it or not."
In negotiated plea deals, priors are usually not brought up, thereby nullifying the use of the PPDO statute.
"We do a lot of negotiating and settle a lot of cases that way," says Hogan, who adds that the pleas also reduce the number of trials.
In St. Louis, the circuit attorney's office touts a 98 percent overall conviction rate, with nearly a third of felony cases involving drugs. And 95 percent of drug cases end in plea deals, according to Ryan. In cases that go to a jury, the CAO's winning percentage in recent years falls to between 68 and 79 percent. Still, prosecutors here would like to avoid trial when they can. Trials are costly, and the city is known for having a backlog of cases on the docket.
When it comes to repeat drug felons, the PPDO statute is often used as leverage, defense attorneys say. Either accept the terms the prosecutor offers; enter a "blind plea" that requires admitting guilt and having a felony record but allows a judge to have more flexibility over the sentencing; or go to trial and risk getting a minimum ten-year prison term.
"What happens is, it ties the judge's hands — even if he wanted to give probation, the judge cannot," says defense attorney Nick Zotos. "And therefore, they can force a plea more easily because the guy is reluctant to go to trial when he's subject to a mandatory-minimum, no-parole sentence."
City prosecutors do not shy away from their use of the PPDO statute and readily admit their use of it whenever they deem necessary.
"We save this for those offenders who we feel are a detriment on our city's neighborhoods," says Boston.
And according to Ryan, the use of PPDO allows prosecutors to charge suspects at a level higher than what they might have evidence for.
"A lot of times, police or we can only charge them with possession when we know perfectly well they were out trafficking," says Ryan.
She adds: "It doesn't mean that they're not traffickers because they haven't been convicted."
But in using the PPDO statute, Zotos says, prosecutors often equate petty drug dealers charged with "possession with intent" with big-time traffickers.
"What's most significant about PPDO and why it's used, is it ups the ante on the defendant, especially if the guy is charged with possession with intent," he explains. "In a ten-year sentence, on a drug case, guys might do three or four years. But on a ten-year, no-probation, no-parole sentence, he'll have to do day for day. So it has a tendency to force a plea out of a lot of defendants."
Defense attorneys say it's not difficult to prove possession with intent to distribute, which has a far lower burden of proof than trafficking. But under PPDO, that charge of possession with intent can easily be upgraded to the more severe felony of drug trafficking.
Take, for instance, the case of Lewis Grant.On December 6, 2002, St. Louis police say they saw Lewis Grant, then 28 years old, leaning into a car on North Grand Boulevard. When they pulled up behind the vehicle, Grant ran. Police claim they saw him throw a small baggie before entering a home where he was arrested. The baggie turned out to contain 2.78 grams of crack cocaine — a small enough amount to reasonably be considered for personal use.
Still, prosecutors were able to charge him for possession with intent to distribute, also known as "trafficking in the second degree." Grant had two prior felony-level convictions from the early '90s and was charged as a PPDO, bringing his B felony up to the A level and mandating a prison term without parole if convicted.
Grant lost at trial and was sentenced to ten years without parole.
In 2009 a confidential informant told police that Arnold Lamont Taylor was selling drugs out of his mother's north St. Louis home. Police observed the house and saw Taylor sitting on the porch. At one point, a black male and a black female arrived at the property and left three minutes later. That short visit was enough for police to obtain a search warrant.
After breaking down the door to the home, police found three grams of cocaine, ten grams of heroin (divvied up into multiple baggies) and a tiny amount of marijuana — less than a gram. The cocaine and heroin qualified as B-felonies. But Taylor had two previous felony busts for cocaine and heroin possession over a course of twenty years. He also got busted for an illegal gun in 1984. This time prosecutors charged Taylor as a PPDO, and he lost at trial. At the age of fifty, Taylor was sentenced to twenty years in prison. The Missouri Court of Appeals has since upheld the conviction, based in part on Taylor's alleged statement to detectives shortly after his arrest in which he purportedly pleaded, "[L]ook, I'm not a big, big-time drug dealer. I'm a small-time guy. I just sell enough to get by."
It's guys like Mayo, Grant and Taylor — recidivists who have been in trouble with the law numerous times — for whom the PPDO statute was created. Missouri passed its PPDO law in 1989 during a time when legislators around the nation were vowing to stop the so-called crack-cocaine "epidemic."
"These prior and persistent laws, by and large, were inventions of that era because there was a public perception — frankly, often wrong — that people were committing heinous crimes and receiving very short sentences," Greg Mermelstein, a division director with the Missouri State Public Defender System, told Riverfront Times in an interview last year. "And as a result, there just became this tough-on-crime movement where everyone wanted to enact tougher laws to make sentences longer and longer."
Prison sentences of ten to twenty years for people convicted of non-violent drug crimes might sound severe to some, but the circuit attorney's office maintains it is necessary to rid the streets of criminals and provide a safer atmosphere for the people of St. Louis.
"The residents of this city deserve to feel safe, and drug crime is at the root of other, more violent crime," says Rachel Smith, the chief prosecutor of the circuit attorney's community affairs bureau.
But critics of these harsh, mandatory minimums say they're an archaic and ineffective way of fighting crime — and they're being dismantled around the country.
"The incapacitation of one particular drug dealer doesn't net any fewer drugs on the street," says Greg Newburn, communications director for the advocacy group Families Against Mandatory Minimums. "It doesn't impact usage rates or drug trafficking rates. The only thing it does is take a low-level drug offender and lock him up for ten or twenty years at tremendous cost to the taxpayer."
Newburn notes that PPDO laws have been struck down in states such as California, Michigan and New York, as well as the federal system.
"These laws don't offer the kind of deterrent benefits we were promised when they were passed," continues Newburn. "Instead you get massively filled prisons at huge public expense with no safety benefit in return."
Even Attorney General Eric Holder has urged federal prosecutors to restrain from using sentencing enhancement laws based on prior convictions.
"Prosecutors should decline to seek an enhancement...unless the defendant is involved in conduct that makes the case appropriate for severe sanctions," Holder wrote in a memo this year to U.S. attorneys. "An enhancement should not be used in plea negotiations for the sole or predominant purpose of inducing a defendant to plead guilty."
But Holder's words carry little weight with St. Louis prosecutors, who are out of the attorney general's jurisdiction and feel that the PPDO statute has a deterrent effect on crime. But when asked how well it works, the CAO's Smith doesn't give a ringing endorsement.
"This is the best tool we have available to us right now," she says.The circuit attorney's office does not keep statistics on the race of people it prosecutes. Data from the Missouri Department of Corrections, however, suggests that the vast majority of defendants sentenced under PPDO in St. Louis are black.
A random sampling of 100 of the most recent PPDO cases prosecuted in St. Louis found that 98 percent of the defendants were black. That figure more or less correlates with the overall percentage of African Americans sentenced to state prison through the St. Louis Circuit Court. As of August, the Department of Corrections housed 4,713 inmates convicted in St. Louis — 4,083 of those prisoners (or 86 percent) were black.
Prosecutors have an explanation for why the numbers might be lopsided.
"The majority of our crime unfortunately happens in very low economic areas that are predominantly African American," says the CAO's Boston. "And I think it's more an economics issue than a race issue. Because the city is structured the way it is with the population we have, those people tend to be our victims — sadly, they also tend to be our offenders."
There's no reason to believe that a certain statute would be used to target one race over another. But there are many reasons to believe that a certain statute does have a greater, if inadvertent, impact on particular races.
"With all mandatory minimums, especially with the drug laws, they're contingent on enforcement of the law in the first place," says Newburn. "And often enforcement of drug laws take place in poor and minority communities at far higher rates than outlier communities."
A recent analysis by Jonathan Rothwell, a researcher at the Brookings Institution, found that black people are arrested at a far higher rate than white people for drug crimes, despite evidence showing that whites are slightly more likely to use and sell drugs.
Based on numbers from the National Survey on Drug Use and Health, Rothwell found that 6.6 percent of white adolescents and young adults aged 12 to 25 sold drugs, compared to just 5 percent of blacks — a 32 percent difference.
As University of Minnesota Law School professor Michael Tonry notes in his book, Malign Neglect, it simply takes less police work to make arrests in poor urban areas than middle- and upper-class areas, which are predominantly white.
"[I]n poor urban minority neighborhoods, it is easier for undercover narcotics officers to penetrate networks of friends and acquaintances than in more stable and closely knit working-class and middle-class neighborhoods," writes Tonry. "The stranger buying drugs on the urban street corner or in an alley, or overcoming local suspicions by hanging around for a few days and then buying drugs, was commonplace. Police undercover operations can succeed [in working- and middle-class neighborhoods], but they take longer, cost more and are less likely to succeed."
Thus, in St. Louis, a black person selling drugs on a corner in north St. Louis is more likely to be arrested than a white person selling the same drug out of their apartment in the Central West End.
And with enhanced sentencing laws like PPDO, Newburn says, blacks in cities like St. Louis are more likely to be targeted.
"Drug laws are enforced more heavily [in minority neighborhoods], and that subjects residents of those areas to these harsh sentences at a much higher rate than other communities might face, even if their usage and dealing rates are similar," he says.
The CAO doesn't deny that felonies pile up for those in certain populations. In fact, that's their reason for why PPDO is used more often in St. Louis.
"Over the course of fifteen years, people catch more felonies," says Ryan. "And if they do, we'll charge them accordingly."
Christi Griffin, founder of the Ethics Project, a St. Louis-based nonprofit that advocates against mass incarceration, has a different take. She points to the systemic problems that face the black community, especially in regard to drug law enforcement. And she says small-time dealers should be treated with sympathy instead of punished like drug kingpins under the PPDO statute.
"He is no less a victim of an oppressive society than a drug addict and should receive the same considerations until the conditions have changed," says Griffin. "It makes absolutely no sense for a wealthy society that created the conditions that produced both the drug addict and the drug dealer to...expect the drug dealer to return to the same conditions and do something different merely to survive — and pay the back child support, restitution, drug-testing fees and parole visit fees that are demanded. "
Meanwhile, the circuit attorney's office says it can't address how its drug prosecutions disproportionately affect the black population because, again, it doesn't keep track of defendants' races.
"I think the question is: Is it being used disproportionately against similarly charged people who are Caucasian or white?" says Boston. "I don't know the answer to that because we don't keep stats by race."
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