Minimum Mandatory
By Eric Rickstad

From Gadfly May 1999


It was October 1992, and Jake was standing in my kitchen, naked. He'd stripped bare because he didn't want me thinking he was wearing a wire. It was ridiculous, him stripping. I'd known him since we were two years old. I trusted him. He shifted his weight from one foot to the other, the kitchen floor cold on his bare feet. He told me to trust no one. No one.

"I'm going to prison," he said.

"No, you're not," I said.

"Unless I cooperate, turn someone in, which isn't gonna happen, I'm going to prison."

I didn't understand how he could be so sure. "You haven't even been charged with anything," I said.

"They have me on tape," he said. "They sat me down and told me to listen to what they had on tape. It's bad. They want me to wear a wire. Turn in someone else. If I do I'm charged with a state misdemeanor. I do maybe sixty days. If I refuse I'm charged with two felonies. Do five years, minimum mandatory."

"How can they do that?" I said. "Charge you however they want for the same crime?"

"They can do anything they want," he said.

Turned out he was right.

Jake and I graduated from high school in 1985, in the midst of the Reagan era, the "war against drugs" and "This is your brain on drugs" public service announcements. To us, Reagan was an actor first, a figurehead second and a president last. Politically or socially, we gave him and his policies little thought. We were teenagers. The war on drugs was a war waged against cocaine cartels out of Central and South America, organized crack rings in New York City and South Central. Public service announcements were fodder for jokes, aimed more at our parents than at us.

None of it pertained to us.

We didn't snort or shoot, and the only thing we smoked was pot, and for several years Jake was clean and didn't even drink.
Jake had always been an athlete. A hockey player, a good one, 6' 3" and 220 pounds, he was fast and deft and fearless. He was charming, vain, witty and cocky, a guy who was liked for the same reasons he was disliked. In 1985, he took up cycling and quickly became hooked. His physique wasn't best suited to a sport whose top athletes resembled jockeys more than linebackers, and he couldn't climb well. But he had endurance, strength and tenacity and soon found success racing in criteriums.

In regional New England races, he got on good teams with sponsors who afforded him free equipment, if not travel or lodging expenses. Vermont weather didn't allow year-long training, so he began to winter in Florida to "keep his legs." For five years he trained and raced from November to May. He began placing in races that drew national teams and travelled to Atlanta, Gainesville and Charlotte. In 1988, he raced in Oregon in the nationals and nearly placed himself as a reserve on the Olympic team. He was on the cusp of reaching the next level.

But the better he became, the larger the catch-22 he found himself up against. Jake drew no financial support from his family in a sport that, as competitiveness heightened, began to cost him more and more for travelling and competing. To excel, he needed money. He needed to train and race full time, but couldn't find the resources. Working full time to save for summer travelling expenses left him unable to train as hard and often as necessary during the winter. If he worked full time in the summer, during peak racing season, in order to have winters free to train, he couldn't get to all the important races. He needed money. Not a lot. A few grand, in one lump sum. Just once.

We both had friends and friends of friends who grew marijuana and sold it to a limited circle of friends. Nothing big-time. But it was cash money.

When he returned to Burlington, Vermont, from Florida for the summer of ’92, Jake looked into growing and decided it was a risk he could take. He could grow and sell enough to get a good chunk of change up front, so he could dedicate a full year exclusively to training and racing — take his shot.

His cousin Karl was interested in growing with him. Karl owned a house. He knew plenty of people they could sell to. They could start plants inside, then transplant them at night, in late May, when the chance of frost had passed and the plants were mature enough to live outside. It would work out. They were cousins. They could trust each other.

They had no hydroponics. Their grow lights were standard fluorescent tubes. Neither of them knew how to clone or sex plants. On a folding card table, beneath the florescent lights, they put out three hundred Styrofoam cups filled with soil and a single seed in ten rows of thirty plants. They figured that out of three hundred seedlings, maybe 250 would survive long enough to be transplanted. Out of those 250 plants, half would be worthless males. That left 125 females that stood a chance to survive outdoors. Of those, they suspected, half would perish from the elements and foraging animals. They hoped for seventy mature females, at best. Thirty-five plants each. At one-quarter to one-half pound of bud from each plant, they might, at most, have ten pounds each. Twenty thousand dollars, sold in pounds, the best way to get rid of it fast.

In early May, Jake drove to his cousin's house. In a week they would transplant the plants outside. Inside his van, he had bags of vermiculite and manure, a few film canisters of seeds and two foxhole shovels.

He parked and went up the steps to his cousin’s house.

It was a sunny spring afternoon. The front door was open, partly off its lower hinge. Jake called out for his cousin, but no reply came. He walked down the hall. As he entered the kitchen a pistol barrel was jammed against his neck. He was pushed to the floor and his identification was taken from his pocket. He was pulled to his feet, a 9mm trained on his face.

There were four men. They announced themselves as DEA agents. Two looked around the room and in the cupboards, idly, touching glasses and plates, seemingly disinterested in what was transpiring.

The other two, the one with his gun drawn, the other with Jake's identification, stood in front of him.

The one with the identification asked him what he was doing there.


"That right?"

"That's right."

They didn't believe him. Why was he was really there? What did he know about what was going on in the basement?

He told them he didn't know what they were talking about. He was visiting his cousin.

They pressed. The muzzle of the 9mm remained fixed on his forehead.

He maintained his ignorance. They told him if he confessed now, rather than later, it would be better for him. They could work with him.

He shrugged.

They grew agitated. Jake, taller and bigger than all of them, leaned back on the counter and crossed his arms casually.

"We know," the agent with his identification said. "We know. Don't be stupid."

Jake's heart was pounding so hard and fast he was afraid he might pass out. He felt lightheaded. But he tried his best to remain composed. His composure pissed the agents off.

The one with the 9mm said, "So, if we go out and check your van we're not going to find so much as one seed?"

Jake thought about the supplies in his van. He stood up straight. "No," he said. "And when you don't, I'm gonna sue your ass. You put a gun in my face? Keep me here against my will?"

They didn't check and he was allowed to leave. But not before they told him to expect a call.

He drove for miles, out into the country, accelerating on straightaways to make certain he wasn't followed. He dumped everything in his van in the woods and drove home, the whole time feeling as if his heart might give.

He called me and told me what had happened. He was scared. He didn't know what to do. His cousin Karl had called him and said he'd driven by the house and hadn't stopped because he'd seen the front door open and he hadn't left it that way. He'd seen two sedans parked out front. He thought maybe they'd been found out somehow. Jake told his cousin to stay away from the house. Said if they nabbed him he would help. He could get the plants out late at night in a few days, get him a lawyer somehow. They were in this fifty-fifty. He told his cousin not to say a word to them, if they arrested him. To plead the fifth. Neither of them had to go along with them.

Jake met his cousin twice more, over the next few days. Once on the street. Once at a diner outside of town. They both talked about what they were going to do.
But Karl had been wearing a wire. Taped it all. He hadn't driven by his house. He'd gone inside and the DEA had grabbed him. He'd cut a deal. Worn a wire against Jake in exchange for a lesser charge. A state charge. Karl's girlfriend had ratted on them, after she and the cousin had been in a fight.

The DEA called Jake in and told him all this and offered him the same deal. They thought Jake and Karl were part of a big ring. That there were more people involved. They wanted names. They wanted to cut Jake the same deal.

There were a few friends he could have fingered. But it wasn't in him to make a friend pay for something he'd done. "It begins and ends with me," he told them.

The DEA had the power to charge Jake with a misdemeanor of possession, or to charge him with cultivation with intent to sell three hundred kilos of marijuana. A felony. The DEA could charge him, if they wanted, for the potential of the three hundred seedlings, not the actual amount of marijuana he possessed, which was three hundred seedlings, none over nine inches tall, the entirety not weighing more than a few ounces. The DEA's figures assumed each plant could produce 2.2 pounds of saleable marijuana, even though half would, statistically, be useless males, half of the remainder would likely have died and none would have produced close to one-half the amount of bud that the DEA projected.

Which of two distinct sets of charges with extremely disparate consequences Jake would be charged with was based on his "cooperation." It was entirely at the DEA's discretion.

Jake didn't cooperate, and the DEA charged him with a felony and with bribing and coercing a federal witness. Jake's telling his cousin to plead the fifth and not to go along with the DEA, as well as his offer to help his cousin financially, constituted such a crime, even though Jake's cousin had led and coerced Jake into the conversations and everything that was said was said under false pretenses.
If convicted, Jake faced five years, minimum mandatory, for the cultivation with intent; he faced another one and one-half years for the bribing and coercing charge. Six and one-half years in all. No probation. No parole. Felonious drug charges carried the only minimum mandatory sentencing in the country; federal judges had no jurisdiction in this matter and could not consider leniency for any reason, even if the defendant was a first-time, non-violent drug offender. In no other situation were judges' hands so tied. No other crime carried a minimum sentence that did not allow for parole or probation.

Jake was tried and convicted. The DEA had the tapes—that was enough. At the sentencing trial, I sat directly behind my friend. His attorney argued, pleaded, with the judge for leniency. He told the judge about my friend's cycling career, how far he'd come on his own. He told the judge how his client was not a big-time, highly organized drug dealer. The setup was a card table and Styrofoam cups, the lighting amateur. His client made a bad choice — a stupid, regrettable choice. He picked up a shoebox and took the cover off and approached the bench. He tilted the box in order for the judge to see its contents. "This," the attorney said. "This," he lifted up a few scraggly dried greens and let them fall back into the box. "This is what we're going to send this young man to prison for? Someone with a clean record? For six and a half years? He's twenty-five now. He'll be thirty-two when he gets out."

The judge leaned forward and folded his hands together.

"I hear what you're saying," he said. "And I understand it. I appreciate it. If I could, I'd sentence the defendant to eighteen months and suspend most of it. He'd do his time. To think about what he's done. I'd give him a break, but let him know if I ever saw him back here I'd sentence him to ten years without blinking. I'd give him a chance, but I can't. I don't have the power. I wish I did. I don't know how they expect judges to do their jobs, and I don't like that my hands are tied. But that's how it is."

He sentenced Jake to six and one-half years for half a shoebox of dried seedlings.

His cousin received sixty days in the state correctional center.

But it doesn't end there. Vermont has no federal penitentiary and the government had to find Jake a prison. For several weeks he was held in numerous federal prisons and state correctional facilities in Vermont, New York and New Jersey. At one point he was flown to Oklahoma, though I didn't—nor did his family—know where he was at the time. His phone calls had stopped, and he'd disappeared.

Then one day I came home to find a message on my machine. Jake was singing: "I fell down in a burning ring of fire / And I burned burned burned, as the flames grew higher." Then he spoke: "I'll call you soon. I just spent a week in hell."

Jake had been flown to Oklahoma, though he hadn't known where he was at the time. No one would tell him. He'd ended up in a high-security prison because of "lack of space" in other facilities. For a week he was kept in an eight-by-eight-foot cell. His bed was a steel cot, bolted to the floor. He was allowed no reading materials. His window was a one-by-one-foot steel plate with pencil-sized holes drilled into it.

He slept little; all night inmates howled and guards yelled for their silence. There was a television at the end of his cell block. It ran twenty-four hours a day, the volume up loud. Once a day, two guards came, and one held a shotgun on him as they slid his meals through a mail slot–sized door. He showered every other day with the help of two guards. One held the shotgun on him as he knelt, his back to his cell door, and inched backward on his knees to put his hands through the bars. He was handcuffed; a guard was let in to shackle his legs; shackled, he was unhandcuffed from the bars and handcuffed again, his hands in front of him. He was guided out at the point of the shotgun to the showers, where he was given soap and three minutes with the cold water. The first day there, realizing he wasn't where he should be—legally he was supposed to be held in a low-security prison—he'd tried to tell a guard he was in the wrong place.

"I'm not supposed to be here," he said.

The guard, who carried a sawed-off twelve gauge, ignored him on his first couple passes by the cell. On the guard's third pass, Jake again said, "I don't think I'm supposed to be here."

The guard turned abruptly and leaned in, glaring. "You say something?" he said. Jake began to respond, to tell him there'd been a mistake, when the guard barked, "I didn't think so. I didn't think you said anything," and walked away.

Jake was transported to Fort Dix, New Jersey—a federal penitentiary on part of an old air force base.

I visited Jake in New Jersey over the months and years. Each time he had changed. He'd started out by saying how crazy it was in there and talked of his hopes that the minimum mandatory laws would be overturned and he'd be grandfathered. But his hope waned. And with his hope went his faith—his faith in justice, in the law and in an individual's protection from cruel and unusual punishment. He became disillusioned. In prison it became clear to him that many of the numbers used on the nightly news as evidence of victory in the war on drugs were drawn from cases like his. The numbers for "time served" were bolstered by minimum mandatory laws. Many, if not most, of the convicted were first-time, non-violent offenders incarcerated for growing marijuana, not for violent involvement in underworld cartels selling crack or cocaine or heroin, as news reports might lead you to believe.

During the second year, Jake began to talk of "friends" he'd made inside. Pharmacists who'd taken their business into the home and set up labs. Embezzlers. Guys inside for less than he'd done. Guys who were serving five additional years because the homes in which they grew also happened to have shotguns and rifles in them at the time of the arrest—shotguns and rifles used for hunting, stored in gun cabinets, on display in living rooms—not sawed-off shotguns, or Uzis, or Mac 10s or AK-47s hidden under beds and kept in case the DEA came breaking down the door.

He'd become bitter and hardened and resentful. He'd begun to adopt the philosophy that the government had no useful purpose, that everyone inside had been wronged, cheated in some way. I warned him against thinking that way. I told him to try to remember who he was before all this had happened. His goals. His beliefs. He told me he'd have done one year in state prison if he'd had to, served time that suited his crime and not blamed others for his paying for what he'd done. But this. This was a nightmare. Six and a half years, he kept saying. Gone was any thought of the Olympics or ever again cycling competitively. Gone were his twenties. He regretted what he'd done, but his resentment toward his unfit punishment overwhelmed all other thoughts. He began to speak of guys on the inside who could help him when he got out. He began to take part in the game of survival inside. Favors. The bartering and trading of drugs and other contraband. He had a job mowing the lawns on the air force base; low security allowed that. He told me of a woman with whom a friend of his who'd been released had set him up. They met in the woods and had sex on his lunch breaks. He was walking a thin line. Any violation and he could get another year or two tacked on. But his anger drove him. I told him that these guys weren't friends. But he argued otherwise. I didn't understand. These were guys he could relate to. Guys who understood him, who knew him well, as I once had.

In the spring of 1994, Jake learned that the Federal Sentencing Commission, a government commission whose duties include looking into the constitutionality of laws, particularly federal, was looking into the basis for his being charged, into how someone could be charged with cultivation with intent to sell three hundred kilos of marijuana when, in actuality, they only possessed a few ounces.

His hopes resurged and his rancor leveled, if it didn't lessen. Word was, the Commission was being swayed. They were to vote soon, and it looked promising that they would deem the basis on which his charges were founded to be unconstitutional, and he, along with fifteen thousand others convicted on the same premise, would be released. At that time, he'd been inside for about twenty months. If he could get out now, he might be saved from the path he was going down.

But there was a snag. The Clinton administration was unveiling their massive crime bill, and with that at the forefront of the media, the Federal Sentencing Commission's vote was put off. How would it look if fifteen thousand convicted drug felons were released during the passing of a tough crime bill?

In the summer of 1995, the Commission did vote that the DEA's basis for charging offenders for the potential of their plants was unconstitutional. The most that the DEA could now charge a person in possession of immature plants or seedlings with was four ounces per plant.

Jake would be released, but not until Congress passed the amendment into the law based on the Commission's findings. He would have to wait until October of 1996, four years after being sentenced.

When he was released, he was still a convicted felon. For six months after his release, he was under house arrest, wearing an anklet with a homing device, reporting to his parole officer weekly, unable to leave the state and unable to leave his house except for work and four allotted hours on Saturdays. He is on probation until 2002. In all, ten years of his freedom will have been lost, more than most arsonists, murderers and rapists will lose in Vermont for first offenses.

When I watch the news now and see a big bust, consisting of tons of marijuana or pounds and pounds of cocaine or heroin or hash, when I hear of bribing and coercion, and that the DEA seized weapons, I cannot help but think of the evening of my friend's sentencing and how the local news reported it: "Today Jake____ was convicted to five years in federal prison for the cultivation and possession of, with intent to sell, three hundred kilograms of marijuana, with a street value of over $750,000. He will also serve eighteen months for bribing and coercing a federal witness."

I think of the image that conjures for an unaware public, and for those keeping score in the "war on drugs." And I think of the sixty days in a state correctional center that Jake’s cousin received—and how the minimum mandatory law still stands.

And then I think of the shoebox.