The Rafay Murders: An Interview with Jason Flom (Part One)
Back in Capanne prison, I was lucky to receive daily correspondence from family, friends, and strangers alike. Not all of it was good; I got used to throwing out the death threats, marriage proposals, and images of my face photoshopped onto pornography. I received a number of letters from other inmates, too, almost always male, and they began in the (what I learned to be) typical way: “My name is ___. I’m 5’11’, 185 lbs, athletic build, brown hair, brown eyes.” In Italy, inter-prison courtship was as popular a pastime as playing cards and watching soap operas.
Another one of these, I thought, as, one day, the guard handed me a letter whose return address was Monroe Correctional Complex in Washington state. I was wrong. The man who’d written me didn’t offer his “credentials.” Instead, he was reaching out to offer his support; he had heard about me in the news and could relate―he had been wrongly convicted, too. He was educated, articulate, well read―not traits I could count on in most of my present companions, many of whom were illiterate. At Capanne, I often felt bereft of intellectual peers, and here was one from my native Pacific Northwest! I wrote to him about an Italian poet I was reading, Alberto Moravia. He quoted to me from Zalmen Rosenfeld’s Feeling and Form: “there may be in us all, no matter how damaged―and we are all damaged―a spark of that incorruptible beauty.” Here was a prisoner who kept his spirit up and his mind active. I admired that. He had been in prison for many more years than me, and as sad as that was, I saw in him a hopeful vision of myself, under the circumstances. I was looking forward to 26 years in that cell.
Our correspondence was short-lived. An official at Monroe realized that Casa Circondariale Capanne was a prison, and my new friend was forbidden from writing me again. His final letter was an apology and a bundle of all the letters I had written him sent back to me. We lost touch.
Many years later, I met an extraordinary man named Jason Flom. Who’s Jason Flom?
Jason Flom
I am Jason Flom, and I have been working on criminal justice reform writ large for almost 30 years now. I am the founding board member of the Innocence Project in New York, and have been deeply involved and committed to their work and their mission for over a quarter century now.
Amanda Knox
What is the mission of the Innocence Project?
Jason Flom
The Innocence Project is an organization that utilizes DNA to prove actual innocence in cases where people have been convicted of crimes they didn’t commit, and in which DNA is a factor and is available. That being said, there are Innocence Projects around the country, many of whom do work on non-DNA cases. But the Innocence Project in New York has been almost exclusively involved in DNA cases, and has also been a driving force in dozens of legislative changes to protocols that will help to prevent these types of tragedies from happening with such alarming regularity in the future.
Amanda Knox
What are the kinds of wrongful convictions cases that most catch your eye?
Jason Flom
Wow, that’s a great question. I don’t even know how to answer it, Amanda. They’re typically involving someone like yourself who has been railroaded. I can’t say that I particularly gravitate towards cases involving a certain type of person or a certain type of crime. Sometimes I just see one and my spidey senses go off and tell me I have to get involved.
Professionally, Jason is a big wig in the music biz. At Atlantic Records, he discovered and developed bands like Skid Row, the Stone Temple Pilots, Matchbox Twenty, and the Trans-Siberian Orchestra, and artists like Kid Rock, Jewel, Tori Amos, and Sugar Ray. By the mid-2000s he was chairman and CEO of Atlantic, Virgin Records, and Capital Music Group, and founded Lava Records, signing Katy Perry and Lorde.
But I know Jason through his philanthropy work, which is extensive. In addition to being a founding board member of the Innocence Project, he’s on the board of Families Against Mandatory Minimums, the Legal Action Center, Proclaim Justice, the Drug Policy Alliance, Injustice Watch, and VetPaw (he’s also vegan).
What makes Jason an effective media mogul is also what makes him an effective philanthropist. He excels at forging connections, doggedly advocating for the people and causes he believes in, and persuading those with power and influence to revisit what has been overlooked, and fix what has been broken.
Over the years, Jason and I have become close friends. We refer to each other as big brother and little sister. Jason has connected me with other wrongly convicted people like Jens Soering, whose case I featured on my podcast, The Truth About True Crime, and Noura Jackson, whom I interviewed for this publication. Recently, he patched me into a call with another man serving a wrongful sentence, and when I heard his voice, I was shocked to discover it was my old pen pal, Atif Rafay.
Atif is still fighting his wrongful conviction for an infamous 1994 triple homicide in Bellevue, Washington, not far from where I grew up. In the early morning hours of July 13, 1994, 18-year-old Atif Rafay and his best friend Sebastian Burns came back to Rafay’s parent’s home from a night out on the town to a gruesome crime scene. Sebastian called 911.
Youtube Sebastian Burns 911 Call
Sebastian: “There’s, I need an ambulance.”
Dispatcher: “OK. What’s your problem there?”
Sebastian: “There’s been some kind of break in.”
Dispatcher: “Just calm down there. What’s your problem?”
Sebastian: “The two, my friend, his mom and dad are, we think they’re dead.”
Dispatcher: “Just calm down.”
Sebastian: “I don’t think it’s safe here. I want, we’ll be outside.”
Dispatcher: “OK. Go ahead and go outside.”
Sebastian: “Please, fast, OK?”
Dispatcher: “We’re on the way.”
The Rafay family had recently moved to Bellevue from Vancouver, British Columbia. Atif and Sebastian lived at their respective colleges, Sebastian in Canada and Atif in New York, but both had been visiting and staying with the Rafays for nearly a week.
The Bellevue police responded to the 911 call within minutes. Atif and Sebastian were waiting for them outside. Inside, police found the bludgeoned bodies of Tariq and Sultana, Atif’s father and mother. Basma, Atif’s mentally disabled sister, was unconscious but still alive. She died a few hours later in the hospital.
Detectives quickly determined that Sultana had been attacked first while she was unpacking boxes downstairs. Then the killer or killers had attacked Tariq while he lay asleep in bed, before moving on to attack Basma in her room. Tariq’s body was by far in the worst shape―he was unrecognizable, and his blood and brain matter were splattered all over the bedroom. Multiple neighbors reported hearing loud banging between 9:15 and 10:00 pm.
One peculiarity set the investigation on track: the break-in was…off. Boxes had been overturned, but not rifled through, and very little seemed to be missing. This staged break-in, combined with the viciousness of the attack, made the police suspect that the murders were not random, but targeted and personal.
The Rafays were highly educated, liberal Muslims of Indian descent. Tariq was a structural engineer who had calculated that the qibla, the direction to which Muslims pray, was off by a couple degrees, and should be adjusted. He was also co-founder of the Canadian-Pakistan Friendship Organization, which championed multiculturalism and bridge-building between ethnic communities. In the days following, detectives received two separate leads indicating that the Rafay murders may have been religious executions.
The first lead was a Royal Canadian Mounted Police (RCMP) informant who reported that, two days before the murders were committed, a man told him he had been offered $20,000 to kill a Pakistani family that had recently moved from Vancouver to Bellevue, Washington. The second, an FBI informant, reported that a militant Islamic faction had stated that Tariq Rafay should die. He also observed a baseball bat in the trunk of a militant’s car, and believed it to be the murder weapon―indeed, impacts to the walls in the Rafay home confirmed that they had been killed with a baseball bat.
Detectives did a cursory investigation into these leads, but dismissed them quickly, unconvinced that Tariq’s liberalism and quibbling over a few qibla degrees was enough of a threat to Islamic fundamentalism to make him the target of a terrorist organization. And anyway, they had other, more accessible, suspects already in mind.
Amanda Knox
Why was none of this evidence ever taken seriously by investigators?
Jason Flom
There’s a tunnel vision element to this. Once they focused on Rafay and Burns, they weren’t really interested or even able to process this other information.
After questioning Atif and Sebastian outside the Rafay home and at the police station, detectives checked them into a cheap motel and submitted them to several days of further questioning. The teens each provided a detailed account of their evening leading up to their discovery of the crime scene―dinner, movie, nightclub, nightcap―confirmed by sources at each location. They willingly submitted to examinations for blood and gun residue, and came up clean. As for incriminating forensic evidence, an exhaustive search produced only what you’d expect to see from the two teens living at the residence for the past week, before someone turned it into a bloodbath.
But the detectives didn’t like their attitudes. They didn’t like how emotionally detached Atif seemed, and that he stood to cash in on $500,000 from his parents’ life insurance policy. They didn’t like how Atif and Sebastian left their motel to rent movies and buy books. Digging through old school records, they didn’t like how Sebastian had performed in a play about two friends who commit the perfect murder together. And they especially didn’t like how, after three days of isolation in unofficial police custody, Atif and Sebastian hopped on a bus to Canada to stay with Sebastian’s family, and out of the detectives’ reach.
Atif and Sebastian were their prime―and only―suspects, and they were not about to let the lack of evidence against the teens be the final word.
Amanda Knox
How does the Rafay and Burns case compare to other wrongful convictions cases that you’ve looked into?
Jason Flom
For the two guys to be framed in a way that is patently illegal in this country, it just really set me off, the idea that somehow the courts in America chose to allow a practice that is illegal here just because it was conducted in a different country.
Flom is talking about a law enforcement technique called Mr. Big, which is illegal in the U.S., but was used in Canada to coerce Atif and Sebastian into confessing. And why did they go to such lengths? Because these two precocious college kids didn’t act aggrieved enough in the wake of a heinous murder? Is it any wonder that, over a decade later, Atif wrote to me to say, “I know what you’re going through,” and a decade later, Jason Flom called me to say, “Amanda, you gotta talk to this guy”?
The Rafay Murders: An Interview with Jason Flom (Part Two)
Jason Flom
I’ve gotten to know him speaking to him over the phone, and I’m very taken by his calm and gentle spirit and demeanor. He’s a thoughtful guy. He’s a very smart guy. He is a person who has been through a type of hell that very, very few people in the world can even imagine. A lot of people have lost their families, but to be accused of killing them and convicted and sent to prison for the rest of your life for that is a fate that is out of Greek tragedy.
Jason Flom is a founding board member of the Innocence Project, and he’s talking about Atif Rafay, who was convicted of murdering his entire family when he was just 18-years-old. And, small world, Atif and I were pen pals for a short time while I was imprisoned in Italy, before officials at Atif’s prison put an end to our correspondence.
The impression Atif made on Jason and myself is at direct odds with the impressions he and his friend, Sebastian Burns, made on the Bellevue, Washington police detectives investigating his family’s murders. They were convinced that the two teens―one of whom once performed in a high school play about a murder―were criminal masterminds.
July, 1994. Bellevue, Washington. The brutal massacre of a family in a quiet, middle-class, suburban neighborhood caught the attention of local media―as did Atif, the surviving son. Headlines from the weeks following the murders read: “Police Check On Alibi,” and “Can Play’s Plot Be Linked to the Murders?: High School Yearbook Combed.” No article failed to report that Atif had “not been ruled out as a suspect.” Reporters pursued him to a memorial service in Canada, where Atif hid from (or flirted with?) the cameras, and left the mosque with a little too much spring in his step.
It was no secret that within days of calling 911, both Atif and Sebastian were the prime suspects in the brutal killings of Tariq, Sultana, and Basma Rafay―Atif’s father, mother, and older sister. They willingly submitted to questioning and physical examinations, but the detectives didn’t like their attitudes―aloof, condescending even, and more giddy than aggrieved. But their alibis checked out and the police had nothing on them, so there was nothing they could do when Atif and Sebastian hopped on a bus and went to Sebastian’s home in Vancouver.
Well, there was almost nothing they could do. Six months later, in January 1995, Bellevue police detectives met with the Royal Canadian Mounted Police (RCMP) and requested their assistance in investigating Atif and Sebastian, who had since moved in with a friend of theirs named Jimmy Miyoshi. The RCMP agreed and wiretapped their house. Over the course of a few months, they obtained over 4,000 hours of recordings.
But that wasn’t all. The RCMP also executed an undercover operation designed to elicit confessions. “Mr. Big,” an interrogation technique usually employed in cold cases, involved undercover officers posing as members of a criminal organization and orchestrating “scenarios” to develop a relationship with and break down a suspect. The method is illegal in the U.S., and at the time, Atif and Sebastian were the youngest suspects ever targeted by a Mr. Big operation.
The undercover officers’ primary target was Sebastian. Over several months, they offered him illicit means of making fast cash through money laundering and trafficking stolen merchandise. They had him count stacks of cash and boasted about “toasting” people who had double crossed them, including and especially those in their employ who might get arrested and become a legal liability. Sebastian assured them he was up to the challenge, that he was willing to sell drugs and even act as a “hit man” if necessary. But when the officers probed Sebastian for information about the Rafay murders, he repeatedly denied any involvement.
It wasn’t until mid-July, when the undercover officers showed Sebastian a fake document indicating that the Bellevue police would soon arrest him, that Sebastian changed his tune. The undercover officer told Sebastian that he could arrange to destroy whatever evidence the police had on him, but that he would not do so unless Sebastian told him the complete details of the murders. Sebastian resisted. The undercover officers got angry―”I’m not putting up with this bullshit, you lying to me now,”―and upped the ante―“Don’t fuckin’ sell me short, and don’t ever let your fuckin’ friends try to sell me short, because if they start selling me short, you being in the middle is gonna hurt.” Finally, Sebastian broke. The next day, so did Atif and Jimmy Miyoshi, who claimed to have known about the murder plan a month in advance, but had not participated because he was too busy at work.
By the end of July, just over a year after the killings occurred, Atif and Sebastian were in handcuffs and charged with first degree murder. Because of protracted litigation over their extradition to the U.S., their trial didn’t begin until November 24, 2003.
The most contentious, and compelling, pieces of evidence were their confessions. On the tapes, Sebastian callously described moving through the Rafay home in his underwear, beating each of Atif’s family members to death with a baseball bat. When asked why they had killed his family, Atif claimed that it was to “become richer and more prosperous and more successful.”
Amanda Knox
Can you describe what Mr. Big is and why it’s illegal in the US?
Jason Flom
Basically it involves the undercover police posing as mobsters, gaining the trust of the suspect, and then luring them into their little gang, and then, upon gaining their trust, say to them, “Look, we’ve got information. You guys are going to be implicated in these murders and you’re going to be in big, big trouble. But we can help you. We can make your troubles go away. But in order for us to do that, you’ve got to first tell us what really went down.” And then they make them basically weave this web of lies in order to prove their worthiness to this gang, make themselves seem tough, and at the same time they’re also being made to believe that these people are the only people that can really help them.
Atif and Sebastian’s attorneys argued the confessions shouldn’t be admitted as evidence because they were obtained through a deceptive, coercive method illegal in Washington state. There were any number of non-incriminating reasons Atif and Sebastian might have falsely confessed―intimidation, bravado, belief that the Bellevue police were actively framing them and their only allies were dangerous criminals who might “toast” them if they continued to deny involvement or got arrested. The intense spotlight of both law enforcement and the media on these teens as suspects in a gruesome murder effectively destroyed any normal social life they might have hoped for. The undercover officers, posing as gangsters, were offering Atif and Sebastian a precarious but powerful allyship at a time when they were most alone and most vulnerable. But Superior Court Judge Charles Mertel ruled to admit the confessions, arguing that there was no evidence of any duress or coercion; after all, Atif and Sebastian were highly intelligent, and always free to not associate with the undercover officers.
Amanda Knox
Why is there this sort of idea that suggestibility and impressionability correlates with a lack of intelligence, and that if you are intelligent, you’re not impressionable?
Jason Flom
I think that in order for people to maintain that belief that they themselves would never do something this crazy, they have to then psychologically assign that to a different group of people who they feel are somehow challenged. “Those people might do that, but I would never do that.” Of course, the facts fly directly into the face of that. We know that, yes, people whose brains are not fully formed, anyone under 25, are most likely to confess. Around 25% of all DNA exonerations have involved people [who] confessed falsely to the crimes they didn’t commit. That should give everyone who’s ever going to serve on a jury a reason to be skeptical about a confession, especially if there isn’t compelling physical evidence that has corroborated it.
The prosecution didn’t have compelling physical evidence to corroborate Atif and Sebastian’s confessions. The murder weapon was never found, and physical evidence of their presence at the crime scene could be innocently explained. What the detectives did have was Jimmy Miyoshi. Detectives threatened to charge him with conspiracy to commit murder, which carried a life sentence, but then offered him immunity if he testified against his friends. Jimmy complied.
Amanda Knox
How common is it for investigators to coerce potential witnesses like this? And how is it possible to determine if his testimony is reliable or not?
Jason Flom
I’m glad you brought that up. It’s pretty nuts when you consider that everyone knows that you cannot bribe a witness, but the government can do it with the most valuable bribe that there is. We see that just time and time again. It’s a very, very common thing. And in a lot of cases, the jury doesn’t know that. It’s a really nefarious aspect of our system, and I can’t understand how it’s allowed to exist, but it does.
Meanwhile, the trial and headlines rang with anti-elitism: “Lawyers mock ‘teenage geniuses’,” “Brilliant teens no match for cops,” further vilifying Atif and Sebastian for their education and intelligence. The prosecution cited―and the media published―unflattering, but ultimately irrelevant scribblings pulled from their high school yearbooks, in which Sebastian and Atif had written about themselves as “titans” who “descended from the clouds” and felt “furious contempt” for the “petty struggles” of “the plebs.”
Amanda Knox
What is the impact of media portrayals on criminal investigations and trials?
Jason Flom
Probably the most famous example of it is yours. It can be devastating. When a trial is conducted in the media, [it’s] a really daunting task to find an impartial jury. We’d like to think that they’re all unaffected by it, but it can affect the views of judges, prosecutors, even defense lawyers. The impact of the media basically declaring somebody guilty is really worthy of consideration, and I think should be a factor in everybody’s mind if they end up serving on a jury.
The defense was hamstrung. All evidence relating to the militant Islamist faction was barred from court. Unable to present an alternative theory of the crime, and up against a compelling case of character assassination, Atif and Sebastian didn’t stand a chance. The jury found them guilty on May 26, 2004. At sentencing, the judge called them “amoral” and “arrogant” killers.
Amanda Knox
A lot of people who are supportive of Rafay and Burns think that they were convicted based on public opinion. What does that mean about our justice system?
Jason Flom
It’s an indictment, but it’s also reality. It’s the world we live in. The justice system doesn’t exist in a bubble.
Both Atif and Sebastian were sentenced to life imprisonment without the possibility of parole―a sentence not without its own controversy. For however horrific the Rafay murders were, Atif and Sebastian were teenagers at the time they were committed, and the practise of imposing a death sentence or life imprisonment on people who committed crimes before their brains have fully developed has come under scrutiny.
Amanda Knox
What is the status of the current debate around sentencing people under the age of 25 to life without the possibility of parole?
Jason Flom
The Supreme Court has made a number of rulings in the past decade related to this. First they ruled that juveniles, which is under 18, could not be sentenced to life without possibility of parole for non-homicide crimes. Then they ruled that they also couldn’t be sentenced to life without parole in homicide cases. Of course, there have been dirty tricks played in certain jurisdictions, where they have resentenced people [to] 75 years or something, so it’s effectively a life sentence anyway. But I think there is a growing momentum for change, and for us to, as a country, get more in line with the rest of the Western world, whose sentencing practices are not as draconian as ours.
In January 2020, the Juvenile Sentencing project published a memo proposing legislation to reduce the sentences of young adults aged 18-25. In Washington state, Governor Inslee signed legislation in 2018 that extended the juvenile jurisdiction for certain offenses. In February 2020, the Washington state Senate passed a bill to reform youth sentencing based on “recognized neuroscientific research showing that the brain does not fully develop until age 25.”
But that momentum for change hasn’t reached Atif and Sebastian―at least, not yet. Sebastian exhausted all of his appeals as of 2016, and Atif has just one avenue of opportunity left―a habeas petition submitted this July 22. A ruling is expected in September.
Jason Flom
It makes me super sad that Sebastian Burns is just literally out of options, barring the longest of long shots, which is a gubernatorial clemency. And it is heavy on my heart that Atif Rafay is facing a date with destiny in the fall which, if it doesn’t go well, is a living death sentence. The idea that we’re going to doom this, I’m still gonna call him a kid, to spend the rest of his life and die in prison is just fucking awful.
Renewed interest in the convictions of Atif and Sebastian peaked with the release of Netflix’s The Confession Tapes in 2017. That is, interest on the outside. Inside, Atif spends every single day trying to push the boulder up the hill towards freedom. He called me the other day, and in a conversation interrupted by the prison phone system counting down our minutes, we talked about his habeas petition, about poetry, and life, and it was good to hear his voice. But it also crumpled my heart a bit. I remember what it was like to wake up each morning in my cell, struggling to rekindle some fight within me, to spend another day not giving up on my freedom, when my rational self could see all too clearly that the odds were against me, that I better make plans for life on the inside.
All too often, the stories of the wrongfully convicted are presented as stories of the truth inevitably triumphing against the odds. But more often than not, the wrongfully convicted stay wrongfully convicted, their lives―and the truth―swept under the rug. The innocence movement is ridden with more losses than wins, and today, there’s no telling on which side Atif and Sebastian will ultimately fall.
Amanda Knox
How does this not grind you up inside? How do you keep doing this after 30 years?
Jason Flom
I don’t know. The only answer I can give is that the joy that comes from the ones that we’ve been able to help makes up for all the frustration and sadness and anger of all the people that we haven’t been able to help.
Jason Flom
My closing thought on this would be to say that I hope people will get involved in this case. Go to the websites, sign petitions, write letters, talk about it anywhere you can, every time you can, not just about Atif and Sebastian, but about wrongful convictions in general. Of course, please check out my podcast, Wrongful Conviction. If you want to learn more, you can also follow me on Twitter and Instagram: @ItsJasonFlom. It’s going to take all of us working together to make a change, because our system is bloated, and it is a killing machine. It just grinds people up and spits them out. As long as this disastrous, failed social experiment―mass incarceration―persists, there’s always going to be mistakes made in extraordinary numbers. It could happen to anyone, anyone who’s ever been in the wrong place at the wrong time. It’s the most awful fate. Go to InnocenceProject.org. Learn more, donate, tweet, talk, get involved.
The Case of Michael Thompson: An Interview with Sarah Gersten
In 1996, 45-year-old Michael Thompson was convicted in Michigan on five charges: possession with intent to deliver marijuana; conspiracy to possess with intent to deliver marijuana; delivery of marijuana; possession of a weapon by a convicted felon; and possession of a weapon during the commission of a felony.
The maximum penalty for these combined offenses amounted to just over a decade in prison. However, Thompson’s sentence was significantly lengthened when prosecutors applied the habitual offender law. Thompson already had three previous felony convictions for nonviolent drug offenses on his record. The habitual offender law stretched Thompson’s decade-long sentence into a decades-long sentence. For just a single one of his charges, the state of Michigan imposed 40 to 60 years ― a de facto life sentence.
Advocates argue that Thompson is the victim of two grave injustices. The first is the habitual offender law, which results in sentences vastly disproportionate to the crimes. The second injustice is that the most egregiously disproportionate sentence ― 40 to 60 years ― was imposed for a crime that Thompson should never have been convicted of in the first place.
I reached out to Sarah Gersten, who represents Thompson, to understand what the story of one man, convicted as an incorrigible violent offender and effectively sentenced to life, reveals about our criminal justice system.
Amanda Knox
Could you please give me a brief introduction of yourself and how you became involved in Michael Thompson’s case?
Sarah Gersten
My name is Sarah Gersten. I am the Executive Director and General Counsel for the Last Prisoner Project. The Last Prisoner Project is a nonprofit organization that advocates for those still incarcerated for victimless cannabis offenses. So the bulk of our work involves direct services around, of course, providing legal services to help release those still incarcerated, as well as re-entry services to help those post-release rebuild their lives, reenter society, and actually create pathways to employment into the cannabis industry for justice-impacted individuals. Pretty early on in my tenure at Last Prisoner Project, I heard about Michael’s case. We have a group of advocates who are in communication with prisoners that have the most egregious life or de facto life sentences for nonviolent cannabis offenses. And Michael is one of those cases.
Amanda Knox
How is it that his nonviolent marijuana offense came to be sentenced as a violent offense?
Sarah Gersten
This is something that we see often and that’s why I try not to use the word “nonviolent,” although I feel that that describes Michael. Sometimes I’ll use the phrase “victimless” because his actions never harmed anyone. There was never any victim of anything that he’s done. There was no violence. But unfortunately, in our justice system, the label of a violent offense is often put on to something that the public consciousness would not deemed to be violent. And this is a really good example. The underlying offense that Michael was charged with was marijuana distribution. He sold marijuana to an undercover informant. After that sale had happened, the police searched through Michael’s house and they found two firearms. One was his wife’s firearm, and the other was an antique firearm locked in a safe. But because Michael had prior nonviolent drug offenses, despite the fact that these weapons were not used ever in the commission of any crime, just the fact that he was in possession of those firearms, that essentially made him a violent offender.
Amanda Knox
Can you tell me about this habitual offender provision that was used to lengthen his sentences?
Sarah Gersten
This is essentially the Michigan State equivalent of the federal three strikes laws. Unfortunately, this is something that really accelerated in the ’80s with the war on drugs. Mandatory minimums and three strikes laws, or habitual offender laws, were really tools to continue to criminalize and marginalize already disadvantaged communities, and particularly our communities of color. We see that in our sentencing. Black men are much more likely to face charges and get sentenced for nonviolent drug offenses. And once you’ve had one, it’s very easy to then get caught up in this system. That is a big piece of why our work involves re-entry services. Unfortunately, our system doesn’t make it easy to rebuild your life and not reoffend. That’s why we have about a 70% recidivism rate in this country. We put up so many barriers to finding gainful employment, finding housing, finding financial assistance, once you are labeled an offender in the system, and so things like habitual offenders laws are the most egregious example of how we don’t work to rehabilitate individuals. We just continue to punish people. It really shows you this disparity in sentencing between someone like Michael, who is served with a de facto life sentence, while I’m sure any of us can think of other examples of violent offenders, murderers, who don’t get life sentences.
Amanda Knox
Even if someone had a rap sheet and they had an antique firearm in their home and they knew maybe I could get in trouble for that, I don’t think anyone in their right mind would expect a de facto life sentence. How is it that any rational person would choose to stack the charges against Michael like this if no one could reasonably ever expect that to be the punishment?
Sarah Gersten
I hear oftentimes from the judiciary that they feel hamstrung by mandatory minimums and habitual offenders laws. It is true that, to an extent, our judiciary is bound by what the law says in terms of sentencing. But it’s also very clear that there is a great disparity in sentencing, and that particularly black men are much more likely to receive the maximum sentence as opposed to their white counterparts.
Amanda Knox
Does there need to be a reimagining of the distinction between nonviolent and violent offenses? It seems like right now, those terms aren’t really being applied intuitively.
Sarah Gersten
Absolutely. I want to make it abundantly clear that this is an individual that poses no threats to society, is no harm to public safety, and has never been. I will employ the use of the word “nonviolent” because that is the easiest signal that someone is not going to pose a threat to public safety, that this is someone that deserves relief. But you’re absolutely right that when you really dig into the terminology of what legally a violent or a nonviolent crime really is, that distinction really does not comport with our notions of violence. One of the most common examples of a violent offense that I see is resisting arrest. And, of course, disproportionately that is used against black and brown individuals who, in my opinion, during the course of their arrest, employ zero violence, but police will skew the facts of the case to suggest that someone was resisting arrest, and that immediately labeled that individual as a violent offender.
Amanda Knox
How has Michael’s sentence impacted him and his family?
Sarah Gersten
He has essentially lost his life to the system. I literally was just getting off the phone with him before I hopped on with you. In the 25 years he’s been incarcerated he’s lost several family members, including his mother and his only son. And his mother’s wish on her deathbed was that Michael would not die in prison. And now with Covid rapidly increasing in infection rates in Michigan state prisons, Michael every minute of every day is acutely aware and afraid of the potential of the virus getting into his facility, and him contracting coronavirus. He is 69 years old. He has type two diabetes. He is extremely at risk of death if he does contract Covid. So for him to think every day that he might not be able to live up to that one last wish of his mother because coronavirus might now be the thing that kills him and makes this already egregious sentence a death sentence for him, the impact that has on someone, and that has on Michael’s family, is just devastating.
Amanda Knox
Has the community come to be behind Michael over time?
Sarah Gersten
One hundred per cent. We are absolutely in a moment where we are starting to reimagine our justice system in a way that I have never seen in my lifetime. The founder of our project, Steve DeAngelo, was very involved in cannabis advocacy very early on in the state of California, and he always talks about how, even in the early 2000s, he would be sitting at the table with legalization advocates talking about how we can’t move this forward without working to release those that still sit in prison for the same activity that we are now going to be profiting off of, and he would just get laughed out of the room. No one sitting at that table trying to build this industry wanted to even contemplate justice for cannabis prisoners. And now today, even in the past two weeks, I’ve seen so many individuals of the mainstream, Elon Musk, Billy Eilish, tweeting about the injustice of the legal cannabis industry, while others still sit in prison. I think we are absolutely starting to reimagine our justice system, particularly in the context of things like, “Why are individuals like Michael Thompson sitting in prison? Why do nonviolent drug offenders serve much longer sentences than some violent offenders? What do those terms even mean? How does our justice system use language to try to indoctrinate us into what we think is right or wrong, or just or unjust? How do we reimagine what is a violent crime? What is policing? What is effective rehabilitation?”
Amanda Knox
What would be a just outcome for Michael?
Sarah Gersten
Unfortunately, I personally believe that Michael will never find justice. You can’t undo taking away a quarter of a century of someone’s life. You can’t undo him not being able to be with his family members when they’ve died. You can’t give that back to Michael. I’ve never met a person less than deserving of this kind of injustice. But of course, for him to be freed, for him to be able to enjoy the last years of his life in peace with his family, that would at least go a little bit of a way towards giving him back what he’s lost.
Amanda Knox
What obstacles are there to achieving that outcome?
Sarah Gersten
There are several. When we filed Michael’s clemency case in January, we had a lot of public support for this case. I genuinely believed I would be on a plane to Michigan in February, going to walk with him to return home. And then February passed, and then March happened, and Covid hit and threw everything out the window. On the one hand, we recognize that Michael should be the perfect example of someone who deserves compassionate release, of someone who’s at a particularly urgent health risk of contracting Covid and dying because of coronavirus. We sent an expedited request for them to reconsider Michael’s petition in light of Covid. But at the same time, now the parole board, as well as the governor’s office, are overwhelmed, and unfortunately, it’s really delayed his petition being reviewed. So now that we are three months past that point, we felt it was the right time to reengage all of these supporters that have come to know Michael’s story and become really passionate about it, and put in another call to action to the parole board, to the Governor, to review Michael’s clemency petition and to release him after our initial call to action in April. The county prosecutor who originally prosecuted Michael’s case, his office came on in support of Michael’s petition. That is not something that I have ever seen. It is very unusual to have a prosecutor’s office support someone’s clemency application. I’m still hopeful that the governor and the parole board will see that, but unfortunately, they just keep delaying. So I think now it really comes down to public pressure. I just have to hope that if we put enough public pressure on the Governor’s office and the parole board that they’ll do the right thing. Michael’s case is such a good example of a lot of what’s wrong with our system. That’s a part of why we are highlighting Michae’ls case. But Michael is just one of several clients I work with serving life or de facto life sentences for victimless marijuana offenses. It is really difficult every day to know that these really incredible individuals are sitting in prison for something that I engage in multiple times a day, for something that a lot of white men are now profiting off of. But I, for the first time in a really long time, have started to feel really hopeful that we have reached a tipping point, that all of these recent protests are going to lead to the release of a lot more of my clients.
