Phil Donahue

Kemba Smith and the Failing Drug War

Next, a woman who was sentenced to 24 years in jail just because she was holding money for her drug-dealing boyfriend. The Rockefeller laws -- unfairly jailing mothers? Separating them from their children? It has to stop. Back in a moment.

(COMMERCIAL BREAK)

DONAHUE: We're back with Kemba Smith. Miss Smith, how old are you now?

KEMBA SMITH, SERVED 6 YEARS FOR DRUG OFFENSE: Thirty. I'll be 31 in August.

DONAHUE: How old were you when you went to jail?

SMITH: Twenty-three.

DONAHUE: And you were sentence to what?

SMITH: Twenty-four and a half years in prison.

DONAHUE: You were sentenced to 24 and a half years in prison, not under the Rockefeller laws, which are getting so much attention lately. But it's the same situation, under the federal drug laws, and a mandatory sentence. Isn't that right?

SMITH: Yes, that's right.

DONAHUE: You -- did you know, you probably know this, that --I think it's 2/3 of the people in federal penitentiary now are there for drug crimes.

SMITH: Yes.

DONAHUE: And you were one of them.

SMITH: Yes.

DONAHUE: You were carrying money for your boyfriend.

SMITH: Yes.

DONAHUE: Your boyfriend was a dealer.

SMITH: Yes.

DONAHUE: Would you happen to know, of all the young women you met in prison who were similarly situated, how many got there through a boyfriend?

SMITH: Most of them. Most of them that I knew of.

DONAHUE: You loved this guy?

SMITH: I loved him, feared him. It was often an abusive relationship. And I was also a college student at the time, when I met him.

DONAHUE: Right. How long after you met him did he hurt you? Was there a frightening incident? I mean, apparently he was charming.

SMITH: Right. He was charming and everything. You know, a knight in shining armor at first. And I had low self-esteem issues and trying to adjust to the college environment. But I would say it was maybe about six to eight months where the first experience happened.

DONAHUE: You were raised in a home with discipline.

SMITH: Yes.

DONAHUE: Your mama was boss and you better believe it, I'm sure.

SMITH: Yes, an only child.

DONAHUE: Loved her daughter and wanted the best for her. You were at Hampton University, Virginia.

SMITH: Yes.

DONAHUE: And that's where you met. You were going to be somebody. You meet this guy and, eight months later, after you thought everything was wonderful, he starts to beat you up. When you did you first -- when did the drug issue first come to your attention?

SMITH: After that...

DONAHUE: And you didn't use, did you? You probably smoked pot, right?

SMITH: Yes.

DONAHUE: But you didn't use anything else.

SMITH: No. The prosecutor said I didn't use, handle, or sell the drugs that were involved. But, as far as with him, I just had low self-esteem. And unfortunately, in the college environment, he was sort of looked up to. And he made me feel special, you know, initially.

DONAHUE: Right. Also, men led and women followed. I assume you had a traditional home, is that right?

SMITH: Yes.

DONAHUE: So you saw your mother -- of course, that must have been a pretty good marriage. Let's not disparage it. But your view of women was whatever he wants, that's what you do.

SMITH: Right. But, as far as initially when the abuse happened, I really didn't know how to deal with that because I had never experienced anything like that, never seen it. And I felt as if my best interest was to protect myself.

DONAHUE: Right. You didn't carry drugs. You were not arrested for carrying drugs. No one ever found drugs on you. That's because you never carried drugs.

SMITH: That's correct.

DONAHUE: You carried money. Explain this to us. I don't know how this went down.

SMITH: Well, actually I turned myself in at seven months pregnant. There was no evidence, no drugs, no money, no nothing. Actually, with the money incident, I told that to the authorities because I pled guilty. I was accepting my responsibility. By no means did I say that there was nothing that I did. But I was under extraordinary circumstances because I was abused. And I did the things that he told me to do when he strapped money onto my waist, because I was fearful of the consequences if I didn't do it.

DONAHUE: Strapping money to your waist so you could fly somewhere and pay off somebody?

SMITH: Yes.

DONAHUE: Is that how this is?

SMITH: Yes.

DONAHUE: I see. And what moved you to turn yourself in?

SMITH: Basically because I was pregnant.

DONAHUE: No, but I mean, you didn't do anything. Were they looking for you?

SMITH: Yes.

DONAHUE: Because he had done something.

SMITH: They wanted to get to him through me. And they knew that I was abused. They knew that he had killed his best friend for cooperating with authorities. But they wanted me to give them him. And I was too fearful to do that. Fearful for my safety and my parents' safety, because he had been in my home and met my parents as well.

DONAHUE: So, at some point, the federal agents came down on you.

After you went to them, they put you in jail. And you're sentenced.

SMITH: Yes.

DONAHUE: You're going to meet the head -- in a moment -- the head of Drug Enforcement Administration. I speak of Asa Hutchinson. And also Governor Gary Johnson of New Mexico, who is for legalization, who thinks the drug war isn't working. That the drug war is buying helicopters and a lot of things that go boom, but not enough rehab and we've got to do something about it. We'll be back in just a moment.

(COMMERCIAL BREAK)

DONAHUE: Kemba Smith didn't use drugs, acknowledges having smoked pot, but she did not do what we call hard drugs. She never carried drugs. She didn't deliver drugs. She did have a boyfriend who said that she should strap the money on her body so as not to be uncovered. Cash makes a lot of people at the airport and other places very, very suspicious so that would be the reason for covering the money. You had a baby while you were in jail.

SMITH: Yes, that's correct, where I had to be shackled to the bed immediately after I gave birth to him.

DONAHUE: You were able to hold your baby.

SMITH: Yes, I was able to hold him but they had my foot shackled to the bed after I gave birth to him.

DONAHUE: And how long after birth was the baby taken from you?

SMITH: Two days. I stayed awake the whole two days while I was there.

DONAHUE: Just to look at your baby?

SMITH: Right. And, fortunately, my parents were there to take him, but usually most women don't have that type of support.

DONAHUE: And you couldn't nurse?

SMITH: No, I couldn't, and I had to go back to a cold jail cell with bars and cement.

DONAHUE: And how did you explain being away from him for so long?

SMITH: Initially I just explained it in time-out type of format, but I was always...

DONAHUE: Mommy had a time-out?

SMITH: Right.

DONAHUE: We are joined by DEA Director Asa Hutchinson. How would you like to have his job, the director of a Drug Enforcement Administration? He is on the satellite from Arkansas with New Mexico's Governor Gary Johnson.

Governor Johnson is a Republican and serving a second term. I have to say, governor, I personally admire what you're doing here. I present my bias openly to the director when I say that you are joining all kinds of very powerful people with your message. George Soros (ph) the billionaire, William Buckley, George Schultz, the former secretary of state, so many people who see the drug war as not working. Governor, what's your briefest speech here? You want to legalize drugs altogether, is that right?

GOV. GARY JOHNSON ®, NEW MEXICO: No, actually Phil, what I want to say regarding drugs is, like everybody says, don't do drugs. There isn't anybody giving a positive message when it comes to drugs, and I got to tell everybody that's watching here to quit drinking alcohol also. You're looking at somebody who hasn't had a drink in 15 years. It's an incredible handicap. When it comes to smoking cigarettes, tobacco, I mean so don't do any of these substances. That's my message.

I got invited to do my fourth Ironman Triathlon in Hawaii. I've kind of dedicated my life to fitness. But with that said, the war on drugs is an absolute miserable failure. We can not continue to arrest 1.6 million people a year in this country. Half of those arrests are for Marijuana. Ninety percent of all those arrests are for possession only.

So, we can not continue along this path. So, I believe that what we need to do is we need to legalize Marijuana and we need to adopt harm reduction strategies for all these other drugs. And, when I talk about harm reduction, I'm talking about basically looking at the drug problem as a health problem, rather than a criminal justice problem. And when I say legalize, it's never going to be legal to smoke pot and do harm to somebody else, same as alcohol. It's never going to be legal to sell drugs or to sell pot to kids or for kids to smoke pot, or...

DONAHUE: Well, it's illegal to sell Marlboros to them now, so.

JOHNSON: It is now and, as you know and as everybody in this country knows, 80 million Americans have done illegal drugs. So, in spite of what we say, 54 percent of the graduating class of the Year 2000 did illegal drugs. It seems to me that we're sending the opposite message. We ought to tell kids to do drugs and with that, perhaps, maybe we'll cut down on use.

Clearly, the message that we're sending them is not correct. So, what we need is a new bottom line drug strategy, and that is to reduce death, disease, and crime. Let's put more money into education, which is don't do drugs. Don't do alcohol. Don't do tobacco and put more resources into treatment for individuals that want and need treatment.

DONAHUE: Director Hutchinson, please, a patient man, you wanted to say.

ASA HUTCHINSON, DIRECTOR, DRUG ENFORCEMENT ADMINISTRATION: First of all, I'm delighted to be on the program, Phil. In reference to Kemba Smith, that reflects a lot of the heartache that is involved, both for those that go to prison, but those who suffer from cocaine.

Her story is much more complicated. She participated. The judge found she had substantial involvement in a drug ring that put $4 million of cocaine on the streets.

DONAHUE: Her substantial involvement, Director Hutchinson, was to carry the money for her boyfriend who probably did facilitate that kind of traffic, but she didn't do it. She wasn't venal. She acknowledges she wasn't very smart, but she didn't facilitate. It's not fair to say that of her.

HUTCHINSON: Well, all I said was the judge found that she had substantial participation.

DONAHUE: Should she have done 24 years?

HUTCHINSON: She received a sentence by the judge. She appealed it.

DONAHUE: Twenty-four years.

HUTCHINSON: She appealed it, and ultimately President Clinton pardoned her, which I have no problem with. But it reflects a lot of the heartache out there, but also you have to see the heartache on the street of America where cocaine addiction causes such a problem, and tough penalties are part of how we've addressed it and reduced cocaine use in this country by 75 percent over the last 15 years.

In regard to Governor Johnson, I have respect for him, but we disagree vehemently on this direction. I think America needs to be consistent in the direction we go on drug policy. When we've reduced overall drug use by 50 percent in the last 20 years, I think that's a sign of success. Nine million people fewer are using drugs on a regular basis today than 20 years ago.

I think we need to be consistent in our approach, certainly invest in education and treatment, which I advocate and President Bush does, but I think there's a reflection of a good policy.

DONAHUE: Go ahead, governor.

JOHNSON: Talking about the statistic that drug use has been cut in half, and I grant Asa that this is a scientific poll that was done. I don't buy the fact that in the late '70s there were 25 million users in this country and today there are like 12 million, given the fact that we've arrested almost 20 million people over that same amount of time. I just, I don't buy the fact that there are 12 million users of drugs in the country right now, when we're arresting 1.6 million of those people a year.

I got a great one for you here. It's a sentence that I commuted a couple of weeks ago. It was Marianne Gomez Velasquez (ph). Marianne was addicted to Tylenol with codeine. This is her only crime.

From the age of 14 to the age of 40, she wrote herself 150 prescriptions for Tylenol 3 with codeine. This was her only crime. She got caught for this, though, three times, and because of mandatory sentencing, in 1998, she was sentenced to 25 and a half years in jail. This is what we're doing in this country right now.

Now in New Mexico, that happens to be more than for rape, kidnapping and rape. We're talking about a mask and rape. We're talking about second degree murder. This is more than second degree murder. We're talking about twice the penalty for drinking and killing somebody, while under the influence of alcohol.

DONAHUE: Sorry. Sorry.

JOHNSON: This is crazy.

DONAHUE: Governor, let's let-you've heard these stories, Director Hutchinson.

JOHNSON: I've seen it firsthand.

DONAHUE: Let me give him a chance. You've heard these stories. You know, it seems to me the drug war is unfair to the cops. We're sending them into Black neighborhoods. We're knocking doors down. We have two million people in jail, most of them Black and brown, and without good lawyer assistance. Doesn't this bother you a little bit?

HUTCHINSON: Phil, one of the great myths of this decade is that somehow we're locking up all the users. Governor Johnson refers to how many arrests have been made. Most of those arrests resulted in no one going to jail. It was a penalty that was given, but they were not given a prison sentence.

If you look at federal prison today, of all the drug offenders in federal prison, 95 percent are in for serious trafficking charges. The other five percent usually have pled down to a possession charge. We do not put people in jail for possession of small amounts of drugs. The federal government does not do that. That's not our priority.

DONAHUE: Well, Governor...

HUTCHINSON: The states have different policies. Governor Johnson in New Mexico has talked about a case in his state under state law. But, there are some adjustments in our policy today. We're looking at more treatment options for those people who are non-violent offenders, as long as they can have treatment with accountability. Those are drug courts. We fully support that movement.

DONAHUE: Right. Here's-take my word for it. Believe me, this is sugar. See it. That's five grams. If you're caught-the federal law, if you're caught possessing five grams, you're going to do five years. Here's three and a half pounds, 20 years. How much time do you think you should have gotten, Kemba?

SMITH: At maximum, I would say about two years, because I do accept responsibility for my choices, but also the unfairness in it. You know I was grateful enough to get a second chance, but there are so many other individuals who are still there, and I guess my question to Director Hutchinson is that the government is willing to-would have been willing to keep me in prison for 24 and a half years, spending $22,000 a year to house me.

These laws were not intended for people like me. What does the government, what does your agency intend to do to try to make a change, because Monday morning somebody will go in court and get sentenced, first time, non-violent offender, to 20, 30, there are people who have life sentences in federal prison who have never been in trouble before because of their associations with someone or with a drug dealer. And they may have done minor acts as well, but it still doesn't warrant a life sentence and no second chance, especially if they have children.

JOHNSON: As governor of the State of New Mexico...

HUTCHINSON: There's no question, the best thing...

DONAHUE: Let him have a shot here gov, just one second. Go ahead, director.

HUTCHINSON: OK, but the best thing that can happen in terms of drug policy, if voices like yours are out there discouraging young people from engaging in drugs, encouraging people to stay away from drugs. That's a terrific message.

From our standpoint, in 1994, the mandatory minimums, Congress put in an escape clause so that when there are extraordinary circumstances, the judge can opt out without creating an injustice. We certainly ought to continue to look at these penalties to make sure they're fair and they reflect the outrage of society toward drugs, but they don't create an injustice as well.

DONAHUE: Governor. Governor, with only seconds left, you wanted to say briefly?

JOHNSON: Look, 50 percent of what we're spending on law enforcement, 50 percent of what we're spending on the courts, and 50 percent of what we're spending on the prisons is drug related. What I'm saying is, don't do drugs, but I'm also telling my kids that I love my kids, and my kids would be abnormal statistically if they didn't go out and try drugs, and yet if they're caught, they're going to be subject to these incredible penalties.

We are arresting 1.6 million people a year. This is staggering. This is affecting every single aspect of our lives. There is not a bigger problem facing this country today that actually has some practical solution, and the practical solution is hey, do drugs and do harm to somebody else, hey let's lock you up. You know smoke Marijuana, get behind the car, behind the wheel of a car impaired, let's put you behind bars similar to alcohol. We've tried prohibition before. It doesn't work.

DONAHUE: I regret I have to interrupt an important conversation. I thank you all. Kemba, happy life, your baby is now seven.

SMITH: Yes.

DONAHUE: And I'm sure you're the best mother there is.

This transcript is a portion of the show aired on July 18, 2002. It is not for syndication or sale. You can visit the Donahue show at http://www.msnbc.com/news/donahue_front.asp.

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