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The testimony of Kemba Smith, who had never handled, used, or sold any drugs when she was sentenced as a first-time non-violent drug offender to almost twenty-five years in prison, defines the contours of “the girlfriend problem.” This chapter presents Smith's testimony before the Inter-American Commission on Human Rights. Three days before Christmas 2000, President Bill Clinton commuted Smith's sentence of 24.5 years for [a] drug conspiracy charge. If Clinton had not done so, Smith would still be in federal prison, to be there until the year 2016. If her parents had not waged a campaign in the news media, in the churches, and among the criminal justice reform community, she would not have been freed from prison to raise her eleven-year-old son. In her testimony, Smith laments that some federal drug sentencing laws disproportionately affect people of color like her. When the U.S. Congress created the mandatory minimum sentences and collateral consequences for drug offenses, they may not have been acting with the intent to inflict special punishment upon people of color, but that has unquestionably been the effect.

Since 1990, civil rights advocates have lost ground to conservative attacks on color-conscious remedies for institutionalized racism. Insisting that the Constitution is color-blind, a conservative Supreme Court has limited affirmative action, declared a key provision of the Voting Rights Act unconstitutional, limited others, and affirmed state voter ID laws that limit minority voting. Despite electing the first black president in 2008, liberals have enjoyed limited success in defending civil rights protections. They secured passage of the Civil Rights Restoration Act of 1991 to reverse damaging Supreme Court decisions, renewed the Voting Rights Act in 2006, and won cases defending affirmative action. Groups like Black Lives Matter have sparked a new grass-roots activism to protest police violence and pressed for an end to mass incarceration. While their success is limited, they continue a tradition that has shaped the nation since its inception.

Chapter 5 tells the story of the first official Citizens’ Initiative Review (CIR) through the eyes of one of its participants, Marion Sharp. The CIR asked twenty-four demographically stratified voters to review an Oregon ballot measure that increased mandatory minimum sentencing for repeat sexual offenses and driving under the influence of intoxicants. Over five days, participants heard from expert witnesses and reviewed evidence related to the need for and potential impact of mandatory sentencing. Participants engaged in facilitated discussion aimed at gauging the credibility of that evidence and distilling it for voters. Despite flare-ups among participants and behind-the-scenes challenges, at the end of the review Marion and her fellow panelists drafted a Citizens’ Statement containing key facts about the measure and the best arguments favoring and opposing it. That statement appeared in the state Voters’ Pamphlet for the electorate to use before casting their ballots.

This chapter examines the extent to which death has shaped life under imprisonment. It considers the rise of an elaborate machinery of civil death—comprised of laws, jurisprudence, institutional practices, and affective structures—in the course of the nineteenth century, coterminous with the rise of the penitentiary house and cellular prison. It argues that the rise of the prison did not replace the question of death, but merely transformed it. It explains how the original character of American prisons as enforcers of a novel species of involuntary servitude generated and sustained a jurisprudence of civil death that ultimately fixed the legal status of both prisoners and convicts. It also explores how civil death provided a boost to advocates of capital punishment, minimum mandatory sentencing, and three strikes laws. Finally, it looks at some of the buried structures of legal thought and practice that distinguished and delimited the convict's two lives.