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Guest Editorial
Out of Sight
Marion Clarke
Guest Editorial Archives
Friday, November 5, 2004; Page 18
Stringent enforcement of U.S. narcotics laws does not reduce drug use in this country. Rather than to treat drug use as a public health issue, we send hundreds of thousands of non-violent drug users to prison to be warehoused, while continuously failing to adequately address the nature of the problem.
President G. W. Bush and conservative lobbyists champion for tougher drug crime laws, proving no interest in support for the rights of felons who have served their sentence to vote and still today, we as a society just the same walk away unmoved by the harsh reality.
African American males are being warehoused and relegated to excessively high rates of prison time throughout the nation disproportionately and at an alarming rate for street-level, non-violent, first felony drug offenses, included among the charges, possession with intent to distribute or selling/manufacturing of a controlled substance or narcotic, such as crack cocaine of less than one ounce.
The arrests are homeless men, Black men on crack, no weapons, simple possession for no more than five grams of crack. Is there a collaborative attempt to undermine the potential of men in this condition? Felony charges on simple possession of five grams of crack, under the mandatory minimum law, carries an automatic mandatory minimum five-year prison sentence without parole. Once these men are taken away, the legal system loses all interest.
In June, the U.S. Supreme Court issued a momentous decision, Blakely v. Washington. The Court ruled that procedures used to enhance sentences under the Washington state sentencing guidelines violated our Constitution's Sixth Amendment right to a jury. In other words, “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt, according to and first expressed in Apprendi v. New Jersey, 530 U.S. 466 (2000). It was simply unwise to take away discretion from the U.S. judges.
In 1986, at the height of the crack epidemic, Congress enacted the mandatory minimum law to focus on felony convictions for drug crimes in the hope of putting away drug kingpins. Judges are permitted to deliver fixed sentences to individuals convicted of a crime, uniform according to the offense. Federal mandatory minimums resulted in a shift in discretion from the judge to the prosecutor. Sentencing discussion is limited to the offender’s criminal history and the crime for which he is charged; and judges are not permitted to consider the culpability, mitigating factors or chances of recidivism.
Eric E. Sterling, an attorney, president of the Criminal Justice Policy Foundation, then counsel to the House Judiciary Committee Subcommittee on Crime, who drafted the law, is quoted as having said in, Rangel Crack Amendment Will Refocus Federal Law Enforcement on High-Level Cocaine Offenders, “The Federal crack law is being improperly used by the U.S. Department of Justice.”
Based on the U.S. Sentencing Commission Report to Congress, Cocaine and Federal Sentencing Policy 1995, Sterling said, “Only 5.5 percent of Federal crack defendants are high-level dealers.” In fact, he said, “65 percent of federal crack defendants are street dealers, bodyguards, couriers and mules. Less than $600 worth of crack cocaine gets a mandatory five-year sentence.” Ninety-six percent of the defendants in federal crack cocaine cases reported were African Americans or Hispanics. This is not what Congress intended for the purpose of mandatory minimums.
U.S. Supreme Court Justice Anthony M. Kennedy, a moderate conservative, has come out against the practice of imposing mandatory minimums. The mandatory minimum law should be “revised downward,” he said in his August 2003 keynote address to the American Bar Association (ABA) in San Francisco, California. “If revised downward, I accept neither the wisdom, the justice nor the necessity of mandatory minimums.”
Congress passed a revamp of more laws in 1988, allowing the harsher penalties to fall almost exclusively on minorities, namely the Anti-Drug Abuse Act, singling crack cocaine as the only drug to carry a mandatory minimum for possession, under the mandatory minimum law which carries a five-year prison term; the same exact sentence for the “sale” of 500 grams of pure cocaine. This is despite the larger participation of drugs routinely involving the same subculture of whites, whose rates remained stable or decreased. The increased penalties associated with crack resulted in minority prisoners arrested at three to five times their prior rate, creating an influx of Black men under the control of the criminal justice system, a 100:1 ratio even still today.
There’s no good reason for this. Reported by the U.S. Bureau of Justice “Prisons and Jail Inmates at Midyear 2003” are 2.1 million people in America behind bars in federal or state prisons or local jails, and an increase in the prison population of 40,983, the largest increase in four years, rising at 2.9 percent, despite failing crime rates and budget shortfalls across the nation. A bleak assessment in contrast by the Bureau reports 4,834 black male prisoners per 100,000 black males in the United States in prison or jail, compared to 1,778 Hispanic male inmates, and 681 white male inmates per 100,000.
“The guidelines, in my view, are necessary,” said Kennedy, to curb the “wild disparities” between sentences that different judges would give. But there is an “egalitarian insistence,” a rigid insistence on the same sentence for everyone, and also longer sentences. Once the prisoner is taken away, he says, the legal system “loses all interest” in the prisoner.
Crack-powder cocaine disparity is unjust. The mandatory minimum law violates the 8th Amendment of the U.S. Constitution, which prohibits cruel, unusual, excessive punishment. The 8th Amendment provides a safeguard to proportionality between the offense and the punishment rendered. Congress tried to cure judicially created disparities but failed to consider what sector of society the new law would disproportionately affect.
Marion Clarke is a freelance journalist in the D.C. metropolitan area. She can be reached at marionLclarke@yahoo.com. |
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