Mandatory Injustice: Losing the War on Drugs

By William Fisher

Stephanie Nodd grew up in Mobile, Alabama. The young African-American became pregnant in ninth grade and dropped out of school to care for her child. She was barely 20 years old when she met John, a handsome drug dealer new to the city with lots of money. He showered her with compliments and promised to reward her generously for helping him set up in the area.

Stephanie introduced John to people and local drug spots, sold crack to customers on the street and later delivered cocaine and picked up money for him. In return, John gave her cash, money which Stephanie, a single mother, needed to provide for her four young children.

A little over a month after meeting John, Stephanie was arrested, charged and convicted as part of John’s crack cocaine business.

According to her judge, “this defendant is not an organizer, she was not the boss of this operation. She was only a lieutenant. And I feel that because of her young age, she was influenced to a great extent by [John].” She had no prior criminal record.

So the judge departed from the life sentence required by the then-mandatory guidelines, which he calculated using the relevant conduct guideline, and held her accountable for eight kilograms of crack cocaine handled by the organization.

Stephanie was pregnant with her fifth child when she was sentenced to 30 years in federal prison a few days before Christmas of 1990. And that’s where she is today.

Had she been sentenced for involvement with powder cocaine, as opposed to crack, she would have left prison more than seven years ago.

There are literally tens of thousands of Stephanies in our prisons today.

How does this happen?

In 1986, the U.S. Congress passed laws that created a 100 to 1 sentencing disparity for crack vs. powder cocaine possession. People convicted in federal court of possession of five grams of crack cocaine receive a minimum mandatory sentence of five years in federal prison. Possession of 500 grams of powder cocaine carries the same sentence.

Many legal experts and human rights advocates consider this to be a racist law that discriminates against minorities, because African-Americans are more likely to use crack than powder cocaine. Powder is considered an upper middle class drug, largely used by whites as a weekend “recreational” drug.

One such legal expert is Chip Pitts, president of the Bill of Rights Defense Committee and a lecturer at Stanford University Law School. He told Truthout, “I believe that the original ‘rationale’ for the cocaine sentencing disparity was implicit and just evolved: i.e. it was probably racism, pure and simple, that allowed the disparity to emerge to begin with (since elites and mainly whites used powder and poor and minorities used crack).”

The emphasis on drug quantity as opposed to individualized culpability has resulted in scores of unjustifiably draconian sentences.

Reform along these lines would ideally come both from Congress and the United States Sentencing Commission: Congress should reformulate the triggers for mandatory minimums away from mere drug quantity, and the Commission should eschew reliance on drug quantity as the driving factor in determining the offense level.

Although the US Senate passed a bill on March 20, 2010 that would cut the crack-powder sentencing disparity to 18:1, that law is still awaiting passage in the House of Representatives and the signature of the President. And Congresspersons of both parties are so terrified of being seen as “soft on crime” that, year after year, voting to abolish mandatory minimums has become a major “third-rail” vote – and has consistently failed.

Law enforcement is generally, but not unanimously, in favor of the status quo. This is true at both Federal and State levels. However, state treasurers and Federal budget-makers are appalled at the skyrocketing costs of incarceration. Nonetheless, those associated with the so-called War on Drugs generally believe long incarceration to be a deterrent to drug abuse, and lobby aggressively for even more severe sentences.

What are the consequences of the current system?

The most shocking is that the U.S. has the largest prison population in the world. We have less than 5% of the world’s population, yet we incarcerate about 25% of all people in prisons and jails everywhere in the world.

And the cocaine/powder ratio used in drug sentencing is reportedly among the most important reasons for the explosion of our prison population. In the 1980s, while the number of arrests for all crimes was rising 28%, the number of arrests for drug offenses rose 126%. By 2008, the "War on Drugs" resulted in 1.5 million Americans being arrested for drug offenses, and 500,000 of them being imprisoned.

Moreover, crime statistics show that black Americans are consistently far more likely to be targeted by law enforcement for drug crimes, and to receive much stiffer penalties and sentences than non-minorities. Those same statistics also show that such events are far more likely to take place in areas with high minority crime, including low income housing neighborhoods and city projects.

Nationwide, African-Americans are sent to state prisons for drug offenses 13 times more often than other races, even though they reportedly comprise 13% of regular drug users only.

The rate of imprisonment in the United States is between five and eight times higher than countries in Western Europe and 12 times higher than Japan. And the average federal sentence in the United States has tripled in length since the advent of mandatory minimum sentences 25 years ago.

A second major factor in the explosion of the prison population is found in application of the Mandatory Minimum Guidelines for federal judges - mandatory, that is, until 2004, when a major change happened this way:

A man named Blakely pleaded guilty to kidnapping his estranged wife. The facts admitted in his plea, standing alone, supported a maximum sentence of 53 months, but the judge imposed a 90-month sentence after finding that petitioner had acted with deliberate cruelty, a statutorily enumerated ground for departing from the standard range.

The Washington Court of Appeals agreed, rejecting Blakely’s argument that the sentencing procedure deprived him of his federal constitutional right to have a jury determine beyond a reasonable doubt all facts legally essential to his sentence.

But the Supreme Court disagreed. It ruled on June 24, 2004, that the Sixth Amendment right to trial by jury required judges to use only facts proved to a jury, not decided by a judge alone, to increase a sentence beyond the standard range.

Thus, the guidelines became voluntary guides for Federal judges, not mandatory orders. A number of States followed suit.

Here’s how the Guidelines worked:

Under the federal sentencing scheme, a defendant's range of possible punishments was reduced to a mathematical formula. If you had a long criminal history, your sentence would be longer. If the prosecutor could persuade a judge and jury that you sold a large amount of drugs, your penalty range climbed still higher. If you were the gang leader, you would get still more years on the inside. Being young could lighten your sentence. So could ratting out your accomplices, as could a confession.

The Guidelines left judges with little to judge, perhaps a minimum and a maximum separated by only a few years. A federal judge could ignore the guideline range, but the decision would likely be appealed and ultimately reversed.

The Blakely decision changed all that.

Defense attorneys lauded the decision. But while the once-mandatory guidelines are now voluntary, they are still with us, largely because some states have not adopted the new voluntary regimen and some judges appear to have difficulty shedding the old, more punitive ways, resulting in overly harsh sentences.

The Guidelines are perhaps a perfect illustration of good intentions going wrong, or proof of the law of unintended consequences.

The Guidelines were the work of the United States Sentencing Commission, which was created by the Sentencing Reform Act of 1984. The primary goal was to alleviate sentencing disparities that research had indicated were prevalent in the existing sentencing system, and provide for determinate sentencing.

This refers to sentencing the actual limits of which are determined at the time the sentence is imposed, as opposed to indeterminate sentencing, in which a sentence with a maximum (and, perhaps, a minimum) is pronounced but the actual sentence is determined by a parole commission or similar administrative body after the person has started serving their sentence.

Sentencing criteria already in use by judges were adopted as guidelines, essentially codifying existing practice. Future modifications often reflected Congressional mandates, as in the case of the Anti-Drug Abuse Act of 1986 that imposed increased and mandatory minimum sentences.

Jay Rorty, who heads the Drug Law Reform Project for the American Civil Liberties Union, has strong feelings about mandatory minimums. Here’s what he told the Sentencing Commission in May:

“Mandatory minimum sentences defeat the purposes of sentencing, create unwarranted racial disparity and over-crowd our prison system. They take discretion away from judges and give it to prosecutors who use these high sentences to frustrate Constitutional rights.”

“In 1991, the USSC delivered a report to Congress denouncing mandatory minimums and calling for their abolition. The report gathered widespread support from policymakers, judges and practitioners in the field of federal sentencing. But in the years since the report, Congress increased the number and length of mandatory minimum sentences.”

He continued: “We cannot continue to use a one-size-fits-all approach to sentencing. Instead, we must balance public safety with the need to assist individuals on the path to health and rehabilitation.”

The Commission has been telling Congress precisely that for many years. And its pleas have fallen on largely deaf ears.

The one mandatory minimum that Congress appears poised to revise is that governing crack cocaine offenses. The law, which penalizes five grams of crack as harshly as 500 grams of powder cocaine, has been denounced by the ACLU, congressional leaders and the Obama Administration as racially unfair. The Fair Sentencing Act, referring to above, would reduce the 100:1 crack-powder ratio to 18:1, and also eliminate the mandatory minimum for simple possession.

The Justice Department has acknowledged that some mandatory minimums are too harsh, has called the resulting spike in the prison population "unsustainable," and agreed that some reform was warranted.

But it also maintains that using mandatory minimums to pressure defendants into plea bargains is a legitimate sentencing practice.

The policy of the U.S. Attorney’s Office for the Northern District of California illustrates how mandatory minimums can be used to compromise Constitutional rights and dramatically intensify sentences. In that district, until recently, prosecutors routinely threatened to file Informations under 21 U.S.C. § 851 against defendants with prior convictions. The effect of such an Information would be to double the mandatory minimum or require a mandatory life sentence.

Then prosecutors then use that threat to force defendants to bargain away their Constitutional rights to request bail, remain silent, move to suppress
illegally acquired evidence, discover the evidence against them, and receive a trial by jury — all as the price for not being exposed to the higher minimum.

Says the ACLU’s Rorty, “Congress sought to create a uniform baseline for sentencing that reflects all relevant factors, including offense conduct, actual social harms of the offense, and offender role and circumstances — not to make prosecutors’ jobs easier and facilitate the abrogation of defendants’ rights.”

The ACLU has submitted three seemingly common-sense recommendations to the Sentencing Commission – acknowledging that the Commission is not about to repeal mandatory minimums any time soon.

First, it says that lowering minimums or eliminating a subset of minimums would have many salutary effects beyond simply decreasing sentences. For example, it would expand judicial discretion to consider individual offenders’ circumstances and roles in their offenses, and thus to craft fairer sentences.

Second, reducing the impact of the mandatory minimums on the ultimate sentence would reduce their outsized influence as a prosecutorial scare tactic that can be deployed to force defendants to trade in their constitutional rights to avoid facing draconian sentences.

Third, lowering mandatory minimums will reduce the racial disparities that result when different prosecutors make different charging decisions for different defendants.

“As a by-product of decreased sentences, federal prison populations — and therefore federal prison expenditures — will experience a long-term decline, resulting in substantial savings to the public,” the ACLU believes.

And what is the likely picture for the future?

Over the past forty years, U.S. taxpayers have financed a $1 trillion "War on Drugs." Many observers say the program has failed to meet any of its declared goals.

“That's putting it mildly,” says the ACLU. “While the favored ‘drug du jour’ varies over time, overall illicit drug use in America, by and large, has remained steady (while) arrests of drug users have skyrocketed. Drugs are cheaper, purer, and more available than ever.”

Meanwhile, the ACLU alleges, “The U.S. is suffering a crisis of mass incarceration fueled most significantly by the War on Drugs. The racially skewed way in which the war is waged has devastated our communities of color…and while the U.S. continues to throw money at ineffective supply-side strategies aimed at stopping drugs at their source or intercepting them at the border, international cartels have set up shop in our own national parks, and Mexico bleeds.”

The “drug czar”, Gil Kerlikowske, Director of the Office of National Drug Control Policy (ONDCP), recently told the Wall Street Journal that his office now considers the drug war to be a public health problem.

“We moved from 'it's a police problem' or 'a criminal justice problem' to 'it's a criminal justice, public health and social policy problem' to 'it's a public-health problem’,” he said.

Yet the 2010 National Drug Control Strategy still allocates 64 percent of federal drug control dollars to "supply reduction" law enforcement strategies and only 36 percent to "demand reduction" strategies like treatment and prevention.

Moreover, ONDCP altered its accounting methods in 2003 to omit the cost of warehousing drug offenders in federal prisons, counting only the costs of programs provided to the inmates.

According to Peter Reuter, who founded the RAND Corporation's Drug Policy Research Center, which makes the Bureau appear, by function, “only as a treatment agency.”

The Sentencing Commission is not slated to issue its report to Congress until October –just a month before the mid-term Congressional elections. Truthout asked Congress watchers whether anyone who has experienced the craven craziness of those who represent us at that particular point in the calendar honestly believes that any Congressperson will take any action likely to make us proud of them?

Well, they tell us there may be some anonymous nibbling around the margins. And Sen. Jim Webb’s proposed National Crime Commission bill may become law, opening the door to a more focused, more aggressive look into all aspects of our justice system, including sentencing.

But, for major changes, the answer for now seems –again -- to be a resounding “not this year.”

This article originally appeared in Truthout.org.