Theresa McIntyre Smith had never been in trouble with the law. College-educated and pursuing a degree in criminal justice, Smith 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.
Smith met Roy Mercer at a Houston-area hair salon; he was her family’s stylist. The two became friends, but unbeknownst to her, he was dealing drugs. When it became too costly for Smith to pay for hair appointments for herself and her daughters, Mercer suggested doing her family’s hair in exchange for favors, including Smith’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 Smith’s employment at the airline to facilitate his drug distribution. At Mercer’s request, on three occasions, Smith drove his associates to or from the airport, and provided Mercer with discounted plane tickets that enabled inexpensive drug transport.
In 1999, Smith 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. Smith said she had been told by Mercer that the suitcase contained his nieces’ clothes. For this first-time non-violent offense, Smith 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?’” Smith 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.”
Smith 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 Smith, said she herself didn’t even know he was a drug dealer.
“I told them, if his wife doesn’t know, why should I know?” Smith said of her testimony.
At Smith’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 Smith knew that she was helping distribute cocaine.
Her trial attorney, William Penn Hackney, argued that Smith had limited 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 a 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 Smith. One had his sentence reduced from 20 years to 6 years.
Unlike the other defendants, Smith insisted 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.
“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.”
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