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.