How a flawed criminal justice system put a pregnant Detroit activist behind bars By Tom Perkins

Siwatu-Salama Ra is the kind of young Detroiter who inspires hope. Raised between Northwest Detroit and California, the black mom began fighting for environmental justice in the city at just 19 years old, taking on polluters like Southwest Detroit’s Marathon Oil Refinery and the Detroit Renewable Power trash incinerator.Now, seven years later, the 26-year-old is the co-director of the Cass Corridor’s East Michigan Environmental Action Council. In recent years she channeled her energy toward educating other young Detroit moms about nutrition and how to avoid harmful chemicals in food. Before that, she developed programs in Detroit schools to engage kids in environmental causes, and some of those students are now graduating college and building their own careers around environmental justice. She represented Detroit in events at the Paris Climate talks, and is organizing a large conference in the city that will bring together environmentalists from around the nation in May.And yet today Ra — who is pregnant — sits in prison, where she faces the prospect of giving birth to her second child in June. According to her attorneys, she’s there because she brandished a registered firearm to defend herself, her mother, and her 2-year-old daughter from an attack by a woman who repeatedly tried hitting them with a car.Michigan’s Stand Your Ground Law covers those acting in self-defense, but Detroit Police, prosecutors, and a jury say Ra acted as the aggressor. That led to felonious assault and felony firearm convictions, the latter of which carries a mandatory sentence of two years.Law enforcement and the jury arrived at their verdict, in part, because the assailant gave police a different account of events, and on the surface it’s a he-said-she-said case with contradictory stories. But Ra’s supporters say there’s much more at play. They contend a confluence of larger forces out of her control determined her fate, and a two-year prison sentence for one of the city’s most promising young, black leaders exposes deep flaws in the criminal justice system.That starts with questionable investigative policy at the Detroit Police Department — an attorney for Ra says a detective testified that it investigated her as the aggressor from the outset simply because the other party filed a police report several hours sooner. In other words, whoever reaches the Detroit police first is considered the victim. ‘I don’t believe they could imagine a black woman being scared — only mad.’click to tweetAt the sentencing, Michigan’s mandatory sentencing laws for crimes committed with a gun stripped the judge of any discretion. That eliminated consideration for the incident’s circumstances, Ra’s clean record, her community work, and other factors that should weigh into a sentence. Ra’s attorneys stress that they don’t blame the judge — they fault the Michigan Legislature, which passed the minimum sentence law in 1977.Beyond that, attorneys say that the jury appeared hurried to wrap up the case before a snowstorm hit, made its decision while unaware of the two-year mandatory prison term, and arrived at a contradictory verdict.And at her sentencing, Ra spoke of the role she believes race played in the jury’s decision.“The prosecutor convinced the jury and judge that I lacked fear and that’s not true,” Ra said. “I was so afraid, especially for my toddler and mother. I don’t believe they could imagine a black woman being scared — only mad.”The case also raises other questions about race in the criminal justice system and Stand Your Ground. Multiple studies show mandatory sentences and mandatory minimums disproportionately send African Americans to jail.About two years ago, white men and women in the “Bundy gang” carried out an armed siege of government property in Oregon. They pointed assault rifles at police officers in an armed standoff that lasted 41 days, yet that group’s leaders walk free after being acquitted on felony firearm charges.Meanwhile, in Detroit, a young, black community leader sits in prison for brandishing a handgun that wasn’t loaded in an effort to defend her child and mother from a physical attack. An obvious question is, “Would Siwatu-Salama Ra be in prison if she was a right-wing white man wearing a 10-gallon hat?”

Victoria Burton-Harris, one of Ra's attorneys, isn't so sure.
“You're allowed to behave differently when you’re fearful based on the color of your skin,” Burton-Harris tells us. “George Zimmerman was allowed to be fearful and to act on that fear. He was allowed to take the life of an unarmed black child. Juxtapose that next to my client who had a car coming at her mother, and that same car had just presented danger to her child. It was driven by the complaining witness, but Siwatu wasn’t allowed to be fearful and rely on her government-licensed and sanctioned firearm to ward off her attacker.”

The incident 

The confrontation took place in July 2017 in front of Ra’s mother’s house on Sturtevant Street in Detroit, and stemmed from a fight that took place a few months earlier between Ra’s niece and the niece’s friend.In an interview with Metro Times, Ra’s legal team described its account of the events: When that friend showed up at Ra’s mother’s house in July, Ra ordered her out. That allegedly led to a verbal confrontation between Ra and the friend’s mother, Chanell Harvey, who had driven to the home to pick up her daughter.The team said the situation escalated quickly, with Harvey using her car to ram Ra’s vehicle while Ra’s 2-year-old daughter played inside. Harvey then allegedly attempted to run over Ra’s mother, at which point Ra grabbed her registered — and unloaded — handgun from her glovebox.Ra pointed the gun at Harvey’s car, which deterred the attack. But instead of fleeing, the team said Harvey pulled out her cell phone and snapped three photos of Ra holding the gun. She then went to the police and reported that she was confronted by a hostile and gun-wielding Ra.“It’s not a very truthful account,” says Burton-Harris.

A race to the police department

Still, lawyers say it’s the only account DPD detectives would consider.Attorneys say Ra filed her police report several hours after Harvey, but it wouldn’t be until three weeks later when a SWAT team raided Ra’s Macomb Township house that she would learn that the DPD didn’t care what she had to say. Months later, during the trial, a DPD detective testified that the department considers the person who arrives at the police station first to be the victim, lawyers say. Thus, detectives were not allowed to speak to Ra directly.Such a policy seems to make the process of determining what happened — investigating — rather difficult, and opens up a very real possibility of a wrongful conviction.A DPD spokesperson told Metro Times that such a policy is in place, but didn’t speak with the detective in question. However, Burton-Harris says such an approach is a real problem that she frequently encounters in court. Multiple studies show mandatory minimum sentences disproportionately send African Americans to jail.click to tweet“I see way too many cases that shouldn't be there because the quality, or lack thereof, in local police departments’ investigations,” she says. “To have a policy that you don't investigate allegations because they were made second is asinine. It doesn't protect anybody, it doesn't help you to do a good job and investigate what the truth is, and it clogs up the court system.”In Ra’s case, the prosecutor’s office didn’t question DPD’s investigation, yet it filed two felonious assault charges — one for Ra pointing the gun at Harvey, and another for pointing it at her daughter, who was also in the car.But how could Ra — a properly licensed gun owner — be charged with assault for pointing a licensed gun at an assailant?Desiree Ferguson, an attorney acting in an advisory role on Ra’s appeal, explains that Michigan’s concealed pistol license and Stand Your Ground laws authorize a person to carry a gun and use it if they are physically threatened. But the question of whether one is acting in defense or committing an assault becomes a matter of fact for the jury to determine.“If someone points a gun at me and I didn’t do anything, then that’s a crime,” Ferguson explains.And that, in essence, is the prosecutor's office and DPD’s claim — Harvey’s repeated attempts to run over Ra’s family members somehow didn’t warrant Ra to pull out a gun. And they asked the jury to agree.

The trial 

Before they did so, the prosecutor told Ra that if she waived her right to a preliminary examination, then she wouldn’t be hit with a felony firearm charge.Ra declined the offer because it would have resulted in the exclusion of Harvey’s inconsistent testimony from the trial. Burton-Harris says Harvey — the prosecution’s main witness — changed her story four times between the original statement and the February trial.Still, a jury found Ra guilty. Burton-Harris says she believes that could be the result of other factors. The jury was told the trial would likely only last two days, but it didn’t begin deliberations until midway through Thursday — the fourth day. The forecast called for a blizzard on Friday, and the judge told the jury that it would return to court regardless of the weather if it didn’t arrive at a decision. (It’s worth noting that the court did close on Friday.)

Burton-Harris adds that the jury wasn’t aware that Ra would receive a two-year prison sentence were she found guilty of any of the felony firearm charges because juries aren’t informed of mandatory sentences.When the jury began deliberations with the snowstorm looming, it could be heard hotly debating the case from the jury room, Burton-Harris says. Still, it quickly came to a decision — guilty on one charge of felonious assault against Harvey, acquittal on a second felonious assault charge against Harvey’s daughter, and guilty on the felony firearm possession charge.But the decision doesn’t make sense, Burton-Harris says, because the jury found that Ra acted in self defense by pointing the gun at Harvey’s daughter in the passenger seat, but assaulted Harvey in the driver’s seat. How could she be assaulting the person driving the car, but acting in self defense against the person in the passenger seat? Burton-Harris says she believes that the trial’s length and the snowstorm factored into the jury’s quick and inconsistent decision: “I believe that they couldn’t come to an agreement so they said, ‘Let’s just split the baby.’”

The absurdity in minimum sentencing

The law required the judge to send Ra to prison for two years, so — in essence — Michigan’s Legislature had actually determined Ra’s sentence, and the sentence for anyone committing a gun crime. Though one can only speculate on what kind of sentence Ra’s judge — Thomas Hathaway in Wayne County Circuit Court — would have handed down were no mandatory sentence in place, he would have had a lot more to consider. “It doesn’t take into account who you are, why a felony was committed, what the circumstances were — so it takes that discretion away from the judge, who is the person who gets to see the defendant and knows the case’s facts,” Burton-Harris says. “Instead, it lumps groups of people together without analyzing each case, without analyzing facts, and without merit.” That may be, but don’t these type of laws keep us safe? Multiple reports have concluded that they do not. “There is no credible evidence that the enactment or implementation of such sentences has significant deterrent effects, but there is massive evidence, which has accumulated for two centuries, that mandatory minimums foster circumvention by judges, juries, and prosecutors; reduce accountability and transparency; produce injustices in many cases; and result in wide unwarranted disparities in the handling of similar cases,” University of Minnesota law professor Michael Tonry wrote in the 2009 study The Mostly Unintended Effects of Mandatory Penalties: Two Centuries of Consistent Findings.That’s also what Mark Osler, a former U.S. Attorney who worked in Detroit during the ’90s crack epidemic, found after years of filing charges that carried mandatory minimums. He regularly sent low-level Detroit drug users to prison for a mandatory five years for possession of a small amount of crack, and another five if they carried a pistol.But Osler walked away from the job in 1997 after he started to see the depth of the cruelty and absurdity in mandatory sentences, he says. Since then, he’s worked to undo harsh sentences through litigation and built the country’s first federal commutations clinic, which he runs with law students at the University of St. Thomas in Minnesota. In essence, Michigan’s legislature had actually determined Ra’s sentence, and the sentence for anyone committing a gun crime.click to tweetWhat he finds problematic with mandatory minimum sentences is that while they’re designed to deter, they’re not particularly good at deterring crimes that occur in situations that unfold quickly and unexpectedly. “The idea is that they'll create deterrents, and people will know that there is this mandatory minimum, and they'll decide not to take that action,” Osler tells us. “There are two things that are crazy about that. First, people need to know that the minimum is there. And second, they need to be making a rational cost-benefit analysis. [Ra] is addressing a sudden situation — she’s not taking into account the mandatory minimum, and she probably doesn't even know about it.”Then there’s the cost. The Michigan Department of Corrections previously said up to 2,500 people were serving prison sentences at one point in 2015 because of mandatory sentences for guns. Housing 2,500 inmates at about $34,000 per inmate costs taxpayers roughly $85 million annually, and that figure doesn’t include the bill for providing public defenders, jury trials, and other strains on the court system. “You’re exacting a high price for people and you’re not solving a problem,” Osler says. “Look at this case — what problem is it solving to incarcerate her for two years?”Still, it’s the kind of law supported by many prosecutors, as well as local and state politicians — including Detroit Mayor Mike Duggan — who want to appear tough on crime. But in the face of mounting evidence of the law's ineffectiveness, the cost of imprisoning the convicted, and polling that regularly finds opposition to mandatory minimums, a bipartisan group of Michigan lawmakers proposed eliminating mandatory sentences for guns in 2015. The bill ultimately failed, but it highlights the mixed feelings for the rules.Burton-Harris adds that if there must be minimum sentences, then juries should be aware of what a guilty verdict means for defendants. She wonders how that might have impacted Ra’s case.“It’s improper for a jury to believe that there’s no mandatory punishment, and that everything is in the judge’s discretion,” she says. “That couldn't be further from the truth when you have judges who order mandatory sentences.” 

• Courtesy photos
• Activists hold a #FreeSiwatu banner at the March for Our Lives rally for gun reform on March 24, 2018 in Detroit.

Sending more young black people to prison

In 2013, Detroit Police Chief James Craig infamously urged residents of his city — one that is more than 80 percent black — to arm themselves.That didn’t work out well for Ra, who would be sentenced to two years in prison in 2018 for essentially following Craig’s advice. In fact, black people around the nation who live in lower income areas are locked up for the mandatory sentences at a high rate.Though there’s no data available in Detroit, a study of gun charges in Baltimore — a city with similar demographics and violent crime levels — found that of 881 first-time gun offenders between 2015 and 2017, 96 percent were African American; 63 percent were under 25 years old, and none had felony convictions.Also notable is that Baltimore’s prosecutors could use minimum mandatories that are already on the books at the state level in 75 percent of 3,733 cases. In other words, Maryland’s minimum sentencing guidelines aren’t having their desired effect. Yet “tough on crime” prosecutors and politicians claim they’re making everyone safe.“These kinds of arguments have been marshaled in support of mandatory minimums before,” former Maryland Deputy Attorney General Thiru Vignarajah wrote in a 2017 Baltimore Sun op-ed in which he spoke against proposed mandatory minimums at the city level. “Over the past 40 years, however, at untold costs to communities of color, we have learned that mandatory minimums are not the answer.”

What’s next

Ra’s attorneys say they plan to file an appeal once they receive trial transcripts.Meanwhile, Burton-Harris says Ra is receiving poor health care and treatment. She’s Muslim so she doesn’t eat pork, but isn’t provided a pork-free diet in prison. On a recent trip to the hospital for treatment for an infection that caused contractions, she says guards tightly chained her ankle and feet to her bed, cutting off circulation and causing pain.“They put the shackles so tight around her ankles that she couldn't even walk and lost all feeling in her feet,” Burton-Harris says. “She’s six to seven months pregnant, so ankles are already swollen. She doesn’t have access to good health care, and it’s totally inhumane to shackle a pregnant woman’s feet to a bed as she’s getting a vaginal exam.”

Attorneys tell Metro Times that while Ra was in the hospital, they and the family didn't know her whereabouts, and prison officials would not provide any information. The defense says it previously requested that the sentence be delayed until after Ra gives birth, but Judge Hathaway denied that motion. Ra’s attorneys are particularly concerned because complications in her last pregnancy caused her to give birth early. Ra’s doctor sent a letter to the court stating that there’s a strong possibility that she could experience the same complications, and she recommends that Ra not give birth while incarcerated.Attorneys say they will ask that Ra be released on bond during the appeal process. 

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