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Theresa McIntyre Smith

“I raised four daughters – three of them are college graduates and you think I have time to sell drugs? I don’t think so,” – Theresa McIntyre Smith

Theresa McIntyre Smith had never been in trouble with the law. College educated, pursuing a degree in criminal justice, Theresa worked for many years in the airline industry, eventually becoming a flight attendant. After her 21-year marriage ended in divorce, she continued to raise her four daughters who ranged in age from 8 to 19 years old.

Theresa met Roy Mercer at a Houston area hair salon where he was her family’s hair stylist. The two became friends. Unbeknownst to her, he was a drug dealer. When it became too costly to pay for her and her daughters’ hair appointments, Mercer suggested doing her family’s hair in exchange for favors, including Theresa’s employee-discounted plane tickets.

“If he would do my hair and three of my daughters’ hair in one day, he’d take a 'Buddy Pass' in exchange,” she recalled. “He would call and say ‘my cousin or my brother needs a plane ticket.’”

But Mercer eventually used Theresa’s employment at the airline to facilitate his drug distribution. At Mercer’s request, on three occasions, Theresa drove his associates to or from the airport, and provided Mercer with discounted plane tickets that enabled inexpensive drug transport.

In 1999, Theresa was arrested at an airport after she met a drug courier in Mercer’s network and according to the government, identified a suitcase containing eleven kilograms of cocaine for the courier. Theresa said she had been told by Mercer that the suitcase contained his nieces’ clothes. Though she was a first-time, non-violent offender, Theresa was sentenced to a ten-year mandatory prison term.

 “I didn’t think this was going to happen. When [the judge] said 120 months I looked at the attorney and I said ‘what does that mean?’ Theresa recounted. “I had no emotion. I was thinking, this was not happening to me. I stayed in bed for two days; it was just before Thanksgiving. I didn’t believe until the day I walked through those doors.”

Theresa consistently maintained that she never knew that Mercer was a drug dealer, but was simply doing favors for a close friend. In fact, Mercer’s wife, who testified on behalf of Theresa, said she didn’t even know he was a drug dealer.

“I told them, if his wife doesn’t know, why should I know?” Theresa said of her testimony.

Born and raised in South Central Los Angeles – an area infamous for criminal activity within some of its communities – Theresa said she thought she had a keen eye for those up to no good. “You knew a drug dealer when you saw him. Roy was doing hair … he was not driving anything nice and he dressed like a bum.”

At Theresa’s trial, Mercer was called as a government witness, and testified that he “used” and “manipulated” her. She was nonetheless convicted of participating in a conspiracy to distribute in excess of ten kilograms of cocaine through the legal theory of “willful blindness.” Conspiracy laws hold individuals responsible for the entire amount of the substance involved in an offense, without regard to the individual’s involvement in the “conspiracy.” The government never had to prove that Theresa knew that she was helping distribute cocaine.

Her trial attorney, William Penn Hackney, argues that Theresa had no culpability. “[Theresa] was  not a drug dealer; she was not gaining anything out of this,” he said. “The fact that she identified a suitcase as having come from Roy for one of his couriers to pick up – it wouldn’t have mattered if it had gold bracelet, five grams of cocaine, anthrax, she gets stuck with what he was trying to send. She had no culpability with respect to the quantity of the drugs.”

Other individuals involved in the conspiracy, who were known drug dealers and had gained vast profits from the trade, received significantly less time because they cooperated with the government by giving testimony against others, including Theresa. One had his sentence reduced from 20 years to 6 years.

“The [other] women [involved], they got 12 months and a day, or 24 months; they were the real couriers making $2,000 a trip, and doing it as often as they could. They ended up getting two years or less,” Hackney said.

Unlike the other defendants, Theresa insists she didn’t have any information to give the government, and so the judge ruled that she didn’t qualify to have her sentence reduced, for providing “substantial assistance” to the prosecution.

Federal mandatory minimum sentencing laws punish drug crimes based on the quantity of the substance involved, rather than the depth of the offender’s involvement. Judges are not able to consider how peripherally a person may have been involved. Theresa Smith’s punishment does not “fit the crime.”

“She’s a poster case for the insanity of mandatory minimums,” said Hackney. “Mandatory minimums work in a way that totally ignores a person’s personal culpability and in fact uses it against them. Congress started doing these since 1986. Since every election, it seemed. It’s political insanity and hysteria. They think they’re generating more votes.”

Theresa’s family –“little” Theresa, 17; Latrece 25; Lisa, 26; and her oldest who is now married, Erica Carroll, 28 – are adjusting, but it has been difficult. Erica, who is a school teacher and the mother of two toddlers, is now raising her youngest sister, Theresa, who was 16 when their mother went to prison. She graduates from high school next spring – her mother won’t be there to congratulate her. Lisa, a financial service professional, and Latrece, who is also a teacher and pilot awaiting her license, have two-year-olds who can’t be spoiled by their grandmother.

Erica says they try to see their mother as often as they can, although the prison is a two-hour drive away.

“They got together for a housewarming for Latrece,” Theresa said of yet another recent family gathering which she could not attend. It’s always the same: “I call while everyone is there. They joke because they can’t cook without me. They pass the phone around.” ­

She continued: “There’s a lot of ladies that I’ve seen that are leaving as a result [of the USSC’s amendment.] There are some that didn’t. There are women in wheelchairs in their 60s and 70s for crack; they didn’t qualify for reduction. I plan to be a very, very big advocate; they have more old ladies in here with grey hair that would not hurt a fly.”

Issue Area(s): Sentencing Policy, Incarceration, Racial Disparity, Drug Policy, Women