Lionel Henderson was given a longer prison sentence than his younger brother, Keith, but was released earlier. Photo / Emily Kask, The New York Times
A patchwork of attempts to roll back mass incarceration and harsh sentences for crack cocaine resulted in a reunion after 13 years.
Lionel and Keith Henderson did everything together.
They played football, camped in the woods and fished side by side in Amelia, Louisiana, not far from the Gulf of Mexico. And after Lionel began selling cocaine as a teenager, Keith, four years younger, began doing the same, despite his brother's protests.
In 2006, the brothers were tried together and were convicted of drug trafficking and conspiring — with each other — to sell crack. Keith was sentenced to more than 24 years in prison, and Lionel to life.
But last Sunday, the two reunited at a cookout near their hometown, embracing amid family, friends and lots of seafood.
Though Lionel, 43, had the more severe sentence, he was released earlier, having been granted clemency by former President Barack Obama in 2017. Keith, 39, stepped out of a federal prison in Arkansas last week because of the First Step Act, a bipartisan criminal justice bill that President Donald Trump signed in December.
The story of the brothers shows the patchwork nature of efforts, by all three branches of government and under both parties, to roll back mass incarceration, a process as complex as the maze of sentencing rules that led to their prison terms in the first place.
Some 3,100 people were freed last week because of a change, under the new law, in how the Bureau of Prisons calculates time off for good behavior. But Keith was freed under a different provision, which made retroactive a 2010 law, signed by Obama, reducing the disparity between sentences for crack and powder cocaine.
The 2010 law lowered crack sentences, which have been widely criticised for filling prisons with a disproportionate number of young black men, but it did not make the change retroactive.
Legal experts said changes over the last decade show an increase in support for overhauling the criminal justice system but also reluctance to release those who are currently incarcerated.
"They're all wary of doing something that looks like they're giving someone a break," said Rachel Barkow, a law professor at New York University, citing the "Willie Horton effect." Horton raped a woman and stabbed her boyfriend while released on a prison furlough program in Massachusetts; his case was featured in an ad attacking the 1988 Democratic presidential nominee, Michael S. Dukakis, who had been governor at the time of his release.
"That concern that anything that might be viewed as a benefit or an early release could come back to haunt you makes politicians very wary of doing these kinds of things," Barkow said.
Lionel and Keith Henderson were initially sent to the same prison compound but were housed in different buildings. Lionel was imprisoned in a more secure facility because of his longer sentence, which was the result of prior drug convictions. Their only contact for the next 13 years was through a prison email service.
In 2014, Keith's sentence was reduced by more than four years after federal sentencing guidelines were lowered for many drug crimes, but he still had years to go.
Lionel walked free in 2017, among hundreds of people who were granted clemency by Obama just days before Trump was sworn in. Keith's last petition for clemency had been filed toward the end of Obama's time in office and was not reviewed.
Keith rejoiced at his brother's release but knew his loved ones, including his four children, were waiting for him to get out, too.
"I knew my family still wasn't whole," Keith said. "My kids were saying, 'How's my uncle released and my dad still not home?'"
"And my mom was saying the same thing: 'Y'all went to trial together; y'all were found guilty together; y'all went to prison together. How are you not released together?'" Keith added.
In separate interviews, the Hendersons recalled how Lionel had admonished Keith to stick to football and to avoid getting caught up in the streets. He got into a fight with Keith one night trying to keep him from following him, and he even told neighbourhood drug pushers to keep crack out of Keith's hands.
But then Lionel did time in juvenile detention. When he returned, he said, his younger brother "was headfirst in it." They didn't look back until they were charged by federal agents.
It was never his intention "to make it a lifestyle," Lionel said of dealing. "You end up more addicted than the users."
After the two were convicted, Keith addressed the judge at his sentencing hearing, saying the prison term he was about to receive was effectively a death sentence.
"To tell you the truth, your honor, if that's what I get sentenced to today — I mean, what's left?" Keith said to the judge, Tucker L. Melançon, according to a transcript. "Ain't no more life. It's over. And that's about all I have to say."
Melançon, who had sentenced Lionel earlier that day, expressed dismay at the length of the prison terms.
"I'm not unmindful when I sentence you that I'm sentencing not only your four kids, but a lot of these other folks out here who love or care about you," the judge said to Keith, later adding: "Even though I'm society's voice right now, it's not Judge Melançon that did that. And, you know, I feel for you as one human being to another."
Judges have a close-up view of the effects of criminal justice statutes that lawmakers do not.
"They were thinking El Chapo, and the judges are seeing the actual people in front of them facing these sentences," said Barkow, who until January served on the U.S. Sentencing Commission, which has recommended lowering crack sentences since 1995.
When Keith was released last week, it wasn't without opposition. The U.S. attorney for the Western District of Louisiana argued that the First Step Act shouldn't apply because a report filed with the court before Keith's sentencing said he had handled far more cocaine than was reflected in the jury's conviction.
Reuters reported Tuesday that Justice Department lawyers have opposed scores of sentence reductions for similar reasons and have sought to put some people who were released back behind bars.
The judge who reviewed Keith's petition for release, Robert G. James, sided with him, ruling that the statue he was convicted under, rather than the behavior outlined in the report, should dictate whether he was eligible for release.
Out of prison for more than two years, Lionel is living in Lafayette, Louisiana, and working as a field service technician, servicing heat exchangers around the country for Kelvion, a chemical company. Keith will be job hunting in Plano, Texas, beginning this week, but first he had something to tell his son.
Keith had always instructed his son to stick to football, echoing the advice he had ignored from his older brother a quarter-century ago.
"I said, 'Hey man, you see what happened to me and Lionel? It's got to stop with you, bro. It's got to stop,'" Keith said. "I told him what I wanted him to do, and I'm proud of him, because he did it."
Keith Henderson Jr. will be playing football at Nicholls State University as a freshman in the fall.
Written by: Nicholas Bogel-Burroughs
Photographs by: Emily Kask
© 2019 THE NEW YORK TIMES
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