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Excerpted from: Amanda E. Smallhorn, Excusing “Women of Circumstance”: Redefining Conspiracy Law to Hold Culpable Offenders Accountable, 36 Quinnipiac Law Review 409 (2018) (224 Footnotes) (Full Document)


Amanda E SmallhornThere are a lot of women who are in prison because of their association with a man. We may not necessarily be involved with the crime, but knowing about it is what makes us guilty .... People should know that with conspiracy law, you don't have to know anything to be brought in with those charges. You could be in a car with someone, you could stop by someone's house, you could even make a phone call to someone. So don't pass judgment on those who have been sentenced to serve prison time because of this law. Research it. Understand it fully. We're not all guilty to the degree that we should be sentenced so seriously in the courts.

Twenty-five year-old Ramona Brant met Donald Barber in 1989, soon after relocating from New York to North Carolina. When she moved in with him, she knew he dealt drugs, but had no idea he ran an interstate drug ring. One month into their relationship, Barber began violently beating Ramona when he was angry, a pattern that continued for years. On the various occasions when Ramona left or tried to leave, Barber threatened to harm her or her loved ones and promised to change, so she returned. Ramona and Barber had two sons together; once while she was trying to call for help from a gas station payphone, Barber punched Ramona so hard that she miscarried their third child.

In May 1993, the police pulled over one of Barber's associates, Christopher Durante, for speeding, and found two guns and 21 grams of crack cocaine in his car. Durante implicated Barber as his source for the drugs, which led to Barber's arrest several months later. The eventual charges alleged that Barber and his drug ring conspirators were responsible for 183 kilograms of powder and 97 kilograms of crack cocaine.

The government did not indict Ramona as a conspirator until June 1994. When the police questioned Ramona, she said that Barber made her carry a gun and physically forced her to accompany him when he traveled to Florida or New York to pick up cocaine or to meet clients. She admitted making phone calls and delivering messages for Barber, but insisted that she did not personally direct his drug trade. Barber forced her to be present at drug deals to manipulate her, saying that if she “was present during some of the activities, she couldn't rat on him, she didn't have any power anymore over him with regard to that.”

Unfortunately for Ramona, her minimal involvement was no defense to the charges: conspiracy law says that “[a] member of a conspiracy is liable for all the foreseeable acts of co-conspirators in furtherance of the agreement .... If the defendant is in for a penny, [s]he is in for a pound.” The Supreme Court held in Pinkerton v. United States that conspiracy liability makes all criminal conduct admissible against, and attributable to, each member of a conspiracy, regardless of whether the individual had actual knowledge of the entire conspiracy. Under federal law, Ramona was legally responsible for the entirety of the drugs sold by any member of the conspiracy, anywhere, anytime, whether she helped with, or even knew of, the sales or not. She could be charged with the very same crimes as Barber, the actual leader and mastermind of the drug ring.

The War on Drugs and Congress's subsequent creation of mandatory minimum sentences triggered by the type and quantity of drugs charged make it nearly impossible for a federal drug conspirator like Ramona to receive less than the mandatory minimum sentence. In mandatory minimum drug cases, sentences can range from a low of five years to a high of lifetime imprisonment. There are two ways to avoid the mandatory minimum for drug conspiracy. One way is to provide the government with “substantial assistance,” which it can subsequently use in cases against other conspiracy members, essentially creating a “rat race” between conspirators to see who can give the government the most useful information first. The other way is to meet a statutory safety valve's strict requirements, which rewards low-level drug-trafficking offenders who have no prior criminal history, but only if they also have no aggravating factors, such as the use of a firearm during the offense. In a case like this one, with a high quantity of drugs and various aggravating factors, including the use of a firearm, Ramona's role as a conspirator meant that she was facing a potential life sentence, unless she could successfully “snitch” on Barber.

Sure enough, the government offered Ramona a plea deal in exchange for information on Barber, and agreed to reserve her the right to allocute on the basis of duress or coercion at sentencing. Ramona signed the plea agreement on August 11, 1994, despite having very little useful information to offer, because she was advised that the plea would result in probation and she could remain home with her infant children. But she refused to plead guilty at her September 11, 1994, hearing after she was told that the plea would result in jail time. She decided that going to trial and asserting a duress defense to her minimal involvement was a better option.

At trial, however, several of Barber's associates, including Durante, testified that Ramona was extensively involved in Barber's drug trade. Despite her shock at this testimony, Ramona was confident that proof of Barber's constant physical abuse toward her would support an affirmative defense to her alleged involvement. But Ramona's public defender never presented the numerous police reports that documented the abuse she suffered, nor did he ask Ramona's family members to testify about their knowledge of the abusive relationship. After a two-day trial, the jury found Ramona guilty of conspiracy to possess with intent to distribute a quantity of cocaine and cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 846.

At the sentencing hearing, the judge barred Ramona's lawyer from introducing the police reports about her abuse or admitting an expert to testify about Battered Women's Syndrome to support a duress departure. With no other grounds for a departure, Ramona faced a maximum sentence of life in prison without the possibility of parole for her first time, nonviolent drug conviction. The statute and sentencing guidelines mandated how many years Ramona should receive based on the quantity of drugs in the charge and other aggravating factors, not based on her individual culpability. The trial judge stated that he “hope[d] that the Government can find some basis for filing a motion for sentence for you to serve that's less than what the guidelines mandated, because ... it would be counterproductive for society to keep you in prison for the rest of your life ....” Unfortunately, the government did not make a motion and Ramona received an LWOP sentence. When she appealed, the appellate court ruled that evidence of the abuse should have been taken into account at sentencing, and remanded for re-sentencing.

Hopeful for justice, Ramona returned to court and presented the evidence of her abuse and an expert testified about Battered Women's Syndrome, but the judge felt the evidence did not satisfy the standard for a duress departure. The judge again stated, “I thought the sentence that I originally imposed on you was entirely too harsh, but it was mandated by the sentencing guidelines.” The judge then “confirm[ed] the sentence as it exists, even though I absolutely am shocked at the severity of the sentence. And I wish right now that the government would make a motion that would permit me to downward depart from it.” The government did not make a motion, so Ramona was sent back to prison for life.

Over the last thirty years, the female inmate population in the United States has grown by over 800 percent, with the majority of female inmates convicted for low-level, nonviolent drug or property offenses. According to Families Against Mandatory Minimums (“FAMM”), about fifty-six percent of women are in jail due to the drug war or over property crimes, which carry mandatory minimum sentences with no ability for the judge to consider mitigating circumstances. Sociological studies indicate that men represent the vast majority of upper-level drug traffickers, which drug conspiracy laws were intended to target, but national news and prisoners' rights advocacy agencies have highlighted the widespread phenomenon of harsh sentencing of unintended targets: wives and girlfriends who had minimal involvement in the underlying crime.

The inequity in sentencing outcomes for women like Ramona Brant demonstrates how the law “presumes that males and females are equally situated in the drug economy” and therefore equally deserving of punishment. Mandatory sentencing reforms resulting from the 1980s War on Drugs made sentencing gender-neutral, but also switched the power of discretion in sentencing from judges to prosecutors. While facially neutral, these reforms resulted in the imposition of harsh sentences for conspiracy on women like Ramona, who were merely “dating, trusting, acquiescing, or submitting to the dominance of a boyfriend or husband who engages in the drug trade ....”

But the inequity in sentencing is not just gendered, it is also raced and classed--the female population in prison is “disproportionately people of color, overwhelmingly poor and low-income, survivors of violence and trauma, and have high rates of physical and mental illness and substance use.” Wives and girlfriends of drug dealers are often involved in drug activities solely because their partner uses or sells drugs, but “tend to have less extensive criminal histories than their male counterparts.” Scholars refer to this less culpable subset of women as “women in relationship” or “women of circumstance.” None of these scholars claim that every woman involved in drug activities is a woman of circumstance. They do agree, however, that it is often difficult to tease out the main reason why women participate in drug crimes with their husbands or boyfriends, making it a challenge to determine if a particular woman is a less culpable woman of circumstance. Coercion and duress get women of circumstance involved in drug conspiracies, but our current non-intersectional legal doctrines offer limited means for these minimally involved women to raise a defense to get out of the mandatory minimum sentences that entail.

This Note aims to discuss the harsh mandatory federal sentences imposed on peripherally involved wives and girlfriends of drug dealers, like Ramona Brant, and better ways to hold these less culpable offenders accountable.

Part I of this Note explores the history of two “women-only” excuses and the impact they have had on current views of criminal culpability of women in the United States.

Part II describes who some of the women of circumstance are and how these women find themselves uniquely involved in the criminal justice system because of drug conspiracy laws.

Part III demonstrates how an intersectional analysis of “women-only” excuses is necessary to ensure that women of circumstance have equal access to justice when charged under drug conspiracy laws.

Part IV proposes changes to conspiracy law in general and ways of sentencing women of circumstance specifically to better serve the purposes of deterrence and retribution. Part IV(A) proposes substantive changes by (1) legally excusing women of circumstance from conspiracy charges and (2) adjusting the standard to meet a duress defense. Part IV(B) proposes ways to move out of the federal mandatory minimum sentencing regime by (1) recalculating drug quantities under the current definition of conspiracy, (2) changing the elements to meet a safety valve, and (3) creating a “cooperation under duress” departure.

Ultimately, our goal should be to hold the culpable offenders accountable--women of circumstance do not rise to the level of culpability warranting LWOP or other mandatory minimum sentences.

. . .

It has now been thirty years since the mandatory sentencing guidelines were put into practice. It is high time for our legislature to take a serious look at the gendered and racialized results of these sentencing laws, especially in the drug conspiracy context, and ask why women of circumstance are being locked up at a greater rate than their male counterparts. What began as a well-intentioned legislative goal of making sentencing for drug crimes more equal by being gender-neutral, has resulted in a disproportionate number of women of circumstance being subjected to harsh sentences designed to deter and punish the most culpable leaders and organizers of drug conspiracies. It is hard to believe that this was the outcome Congress envisioned.

To be fair, it does not make sense to go back in time and revive the old, outdated “women-only” legal excuses that protected married women who acted at the will of their husbands. Arguably, it may even be time to discard the BWS theory of duress and self-defense because of its own pitfalls in painting women as inferior creatures who cannot make rational decisions and stigmatizing them as having a mental illness. But the proposed solutions for women of circumstance in this Note cannot be equated to the misogynistic doctrines of the past. These solutions are only necessary because of the havoc that mandatory minimums have created when unintended targets are caught in the expansive web of drug conspiracy laws. Changes, either to substantive law or to the mandatory minimums themselves, can ensure fair sentencing by holding the culpable offenders accountable for their actions.

J.D., May 2018, Quinnipiac School of Law; B.A., University of Connecticut.