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Sentencing Reform: Congress Attempts to Inject a Little
Sanity into the Nation’s Criminal Justice System
By Fletcher Word
Sojourner’s Truth Editor
In June 1971, President Richard Nixon declared a “war on drugs.”
He dramatically increased the size and presence of federal
drug control agencies, and pushed through measures such as
mandatory sentencing and no-knock warrants.
In December 2018, a long
overdue sentencing reform act was approved by the United
State Congress in December and signed by the president. The
First Step Act, the result of years of work by members of
both major parties, is an important start to bringing some
sense of sanity into a criminal justice system that has
resulted in the United Stated having the highest
incarceration rate in the world, much of it due the
long-running “war on drugs.”
What the First Step Act
does is introduce four changes to federal sentencing laws.
First it shortens mandatory minimum sentences for some
non-violent drug offenses; second, it allows judges more
leeway to use the “safety valves” to go around mandatory
minimums in some instances; third, it clarifies that the
”stacking mechanism making it a federal crime to possess a
firearm while committing another crime, such as a drug
offense, should only apply to those who have been previously
convicted; fourth, it allows those convicted before 2010 of
the then much harsher crack cocaine sentences to petition
for relief.
What it does not do is
significantly address the reasons for the sentencing
disparities that result in the incarceration of a
disproportionate number of black males. The “War on Drugs,”
or, more accurately, “the war on young black men” continues.
The war, which President
Richard Nixon announced in 1971, has been particularly
devastating in the African-American community for two
reasons: one, it has targeted black men for arrest and
incarceration at a disproportionate rate compared to their
white counterparts and, two, the sentences that black
defendants have received have been wildly unjust when
compared to those received by white defendants.
The origins of the current
high rate of incarceration within the general population
and, in particular, the minority population are rooted in
the President Ronald Reagan administration and the
Sentencing Reform Act, part of the Comprehensive Crime
Control Act of 1984.
The Sentencing Reform Act
was the result of years of study by congressional committees
and among its stated goals was an effort to avoid
“unwarranted sentencing disparities among defendants with
similar records that have been found guilty of similar
criminal conduct …”
The Congressional intent,
as stated, was to promote “honesty in sentencing” and also
to reduce “unjustifiably wide” sentencing disparity. The
honesty part was addressed by abolishing parole forcing
inmates to serve virtually all of their sentences. The
disparity part was addressed by establishing a sentencing
commission that would set sentences for similar acts of
criminal conduct and give the sentencing judges “guidelines”
to follow, that is, a very narrow range of options.
Although the SRA was
passed by both houses of Congress, it was the U.S Senate
that was the driving force behind the Act and for the Senate
conservatives, such as the old-time Dixiecrat, Strom
Thurmond of South Carolina, the Act would ensure that
criminals stayed in prison for a long time – thereby
avoiding the charity of judges and/or parole boards who were
soft touches.
For the Senate liberals
(in fact, no one was really liberal on the issue of crime)
every criminal deserved to serve the same length of sentence
as every other criminal whose offense was similar. The
actual length of those sentences was of not much concern
during the 1980’s when everyone was fixated on what seemed
to be a dramatic increase in crime, particular crime
associated with drug trafficking.
However, after the SRA was
passed, and while the Sentencing Commission was getting
organized, the “crack epidemic” took hold and, according to
observers, threatened to destroy the black inner city
communities and eventually, and more importantly, infect the
white suburbs as well.
In a panic, Congress
reacted by passing the Anti-Drug Abuse Act of 1986,
superseding some of what the Sentencing Commission was
working on and establishing mandatory minimum sentences for
certain levels of drug trafficking. For crack cocaine,
supposedly the drug of choice in the African-American
community and among black drug dealers, the mandatory
minimum sentences were set at a ratio of 100-one, crack to
powder cocaine. A defendant sentenced for the possession of
five grams of crack cocaine – enough for a short party for
two or three people – would receive a sentence of five
years, the same sentence as a defendant found guilty of
trafficking 500 grams of powder – enough to earn thousands
of dollars in sales to eager customers.
The plan to lock up black
drug dealers, especially those who dealt in crack cocaine,
worked to perfection. The United States prison population
increased from 329,122 in 1980 to 2.2 million in recent
years. Those in prison for drug offenses went from about
40,000 in 1980 to 500,000 today. Black Americans, who
comprise 12.2 percent of the general population, are 33
percent of the prison population – much of it, particularly
in federal prisons, because of crack cocaine offenses.
In addition to the
draconian sentences that were imposed by the mandatory
minimums for certain quantities of drugs that superseded the
sentencing guidelines, the guidelines themselves presented a
sterner approach to sentencing, an approach that took the
sentencing decisions out of the hands of the judges ... and
into the hands of the prosecutors.
Once the provisions of the
SFA became active in 1987, prosecutors, for all intents and
purposes, became the decision makers when it comes to
sentencing. Rather than judges, appointed for life, whose
decisions are virtually impervious to scrutiny, now
ambitious prosecutors, who work in a culture in which
scorecards are the measurement of success, can play God with
the lives of the accused. Prosecutors make the decisions
about what quantity of drugs or money or other criminal
activity the judge must hold the defendant responsible for
during sentencing..
Has the war on drugs worked? Cocaine use is down slightly
but marijuana use has increased over the past four decades;
heroin use has increased; meth use has exploded and opiates
… out of control.
The war on black people, however, has been really effective.
According to research,
black and white Americans sell and use drugs at similar
rates, but black Americans are 2.7 times as likely to be
arrested for drug-related offenses. To date, 84 percent of
federally convicted crack dealers have been African
American, serving much longer sentences than their white
counterparts convicted of selling powder cocaine.
Does crack cocaine justify
such a disparity? Yes, if the only goal is to lock up vast
numbers of black offenders. Regardless of the pervasive
myths that held sway in the 1980s and for decades
afterwards, powder and crack cocaine are chemically the same
substance, affect the nervous system in the same way and are
equally addictive.
Perhaps the most
disconcerting assumption about the crack cocaine problem, as
it was conceived in the mid 1980s and still today, is that
crack is the substance of choice for black America. In fact
most crack users are white – anywhere from 55 to 70 percent,
depending on the agency compiling such statistics and that
includes the U.S Department of Justice.
The economic cost of the
war?
The war on drugs has received over
$1
trillion in funding
since its inception. The government now spends around $12.6
billion a year to house and care for these hundreds of
thousands of inmates — a cost of $25,251 per person
according to the
Federal
Register. Compared to
the $10,591 spent to provide public education to a
single
student, the investment
in prosecuting the drug war vastly exceeds the investment in
the future of America’s children.
The sheer numbers of the incarcerated are staggering. The
United States, which has five percent of the world’s
population, houses 20 percent of the world’s inmates. This
nation has the world’s largest prison population and the
highest per capita incarcerated rate.
Finally in 2010, a ray of
hope. The U.S. Congress passed an adjustment to the
crack/powder disparity and reduced the 100-to-one ratio to
18-to-one – meaning 28 grams of crack cocaine would be
equivalent for sentencing purposes to 100 grams of powder.
The sentencing change was not made retroactive for those
already sentenced.
Now comes the First Step
Act of 2018, a product of five years of work by Senators
Richard Durbin (D-IL); Cory Booker (D-NJ); Charles Grassley
(R-IO). Originally, the legislation was the Sentencing
Reform and Corrections Act of 2015, a more expansive bill
that Senate Majority Leader Mitch McConnell (D-KY) refused
to give a vote.
That act would have made
the lower sentences for crack retroactive and reduced
mandatory minimum sentences. One can only hope that the
current First Step Act is indeed a first step, and that the
elements of the 2015 act will be the sensible next step.
Sensible has never been an
integral component of the war on drugs.
John Ehrlichman, counsel and assistant to President Nixon for
Domestic Affairs, later admitted in 1994: “You want to know
what this was really all about. The Nixon campaign in 1968,
and the Nixon White House after that, had two enemies: the
antiwar left and black people. You understand what I’m
saying. We knew we couldn’t make it illegal to be either
against the war or blacks, but by getting the public to
associate the hippies with marijuana and blacks with heroin,
and then criminalizing both heavily, we could disrupt those
communities. We could arrest their leaders, raid their
homes, break up their meetings, and vilify them night after
night on the evening news. Did we know we were lying about
the drugs? Of course we did.”
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