In recent years many states have made changes to their criminal codes in an effort to reduce their prison populations. Those amendments, however, are rarely retroactive and leave those already imprisoned to serve out lengthy sentences that are no longer imposed.
Alabama is one state that exemplifies the injustice of leaving in place sentences from the “tough on crime” era. In 2018, it eliminated sentences of mandatory life in prison without parole for drug trafficking based on quantities, making life with the possibility of parole the maximum sentence.
There are 1,532 Alabama prisoners serving life without parole. Of those, 534 are for crimes other than murder or capital murder, and 20 more have non-parolable life sentences for drug trafficking. The lowering of the maximum sentences has no effect for those prisoners under the statutes.
That fact has not dissuaded some determined lawyers. “The Eighth Amendment hangs its hat on these evolving standards of what is proportional punishment, and we could say now that understanding has changed,” said attorney Courtney Cross, Director of the Domestic Violence Law Clinic at the University of Alabama.
Cross took on the case of Geneva Cooley, who was serving a non-parolable life sentence for drug trafficking. Cooley was a heroin addict from New York who was offered $1,500 to make a trip to Alabama for the purpose of picking up drugs and delivering them to a friend. When Cooley, then 55, got off the train in Birmingham in 2002, she met two people and was handed a sock full of drugs, which she stuffed into her pants. When she exited the bathroom from where the deal went down, police were waiting for her. The amount of heroin in the sock subjected her to a drug trafficking charge and resulted in a sentence of life without parole.
Activist Susan Burton meet Cooley when she did a reading of her memoir, Becoming Ms. Burton, at Julia Tutwiler Prison for Women. Burton was moved by Cooley’s story. “It just took the breath out of me,” Burton said. “I knew that could be anyone of us.”
Burton connected with Cross, who decided to take on Cooley’s case with six law students. “Geneva is the poster child of a nonviolent drug offender getting an oversized punishment.” While the change in law did not explicitly impact Cooley’s case, Cross and her colleagues saw it as an opening to argue Cooley’s sentence was cruel and unusual punishment. Many attorneys Cross consulted considered it a “fool’s errand.”
In 2018, newly elected District Attorney Danny Carr did not oppose the motion to change Cooley’s sentence to life with the possibility of parole. Jefferson County Judge Stephen Wallace granted the motion, finding that Cooley, 72, was just a drug courier and “is hardly the drug baron envisioned by the law” and that she had no role in the manufacture or sale of drugs. “Her minor role was more the product of her own heroin addiction,” he wrote.
Wallace’s order pointed to the nationwide movement away from life without parole for drug convictions. He cited the First Step Act as an example of reducing sentences for drug offenses.
Cross was thankful for the result, but she took issue with the current injustice others still face from excessive sentences that are now no longer on the books. “What galls me is those of us who are getting any luck are getting it because we just happen to have the right combination of system actors and not because there is a mechanism for making this work,” Cross said.
For Cooley, the end result was a parole in October 2019. Meanwhile, 19 Alabama prisoners convicted of drug trafficking are still serving life without parole sentences.
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