The U.S. Senate Judiciary Committee passed a bill titled ‘ The Smarter Sentencing Act’ on January 30,2014 that would expand the ability of judges to sentence non-violent drug offenders to smaller terms than the draconian and rigid mandatory minimum sentences that have become a blight on the American justice system.[1]

[2] Interestingly, the bill received fairly bi-partisan support unthinkable in this age of partisanship and kowtowing to corporate welfare from people such as Republican Senators Rand Paul of Kentucky and Ted Cruz of Texas in addition to the ACLU and Families Against Mandatory Minimums (FAMM). The ACLU and FAMM lent their support despite publicly voicing their reservations against the introduction of mandatory minimums for cases of domestic violence and sexual abuse submitted by the Republican Sen. Chuck Grassley of Iowa to the bill.[3]

More intriguing perhaps is the critique of the bill by The National Association of Assistant United States Attorney (NAAUSA) who eventually report to the US Attorney General Eric Holder who has stated the Department of Justice would not be charging low-level drug offenders with the same crimes as those of drug gangsters or drug ring cartels. NAAUSA explained that their objection was based on their opinion that mandatory minimum sentences allow prosecutors and federal law enforcement to effectively disrupt large-scale drug trafficking in addition to keeping violent and armed criminals off the streets.[4]

One might not be so aghast at such an explanation if viewed through the lens of self-interest. Surely, as can be reasonably derived, a prosecutor such as an Assistant U.S. Attorney is often judged by his/her conviction rate and drug cases are most often simple affairs requiring a showing of drug possession by the alleged individual. Why then would the association willingly want to do away with mandatory minimum sentencing that makes their job a lot easier and makes them look more effective in the ‘War on Drugs’ than they really are.

More tellingly, acknowledging the wide racial disparity in sentencing, high costs of over-incarcerating non-violent drug offenders and the detrimental effects it has over time on the family would open prosecutors to congressional inquiries, lawsuits or even worse: admitting that their legal policies, tactics and methods over the last few decades were ill-conceived and faulty at birth.

The ‘War on Drugs’ has been widely seen by a growing number of the populace as a very costly, ineffective and indeed a very devastating incursion on civil liberties and not one that focuses on the root causes of drug addiction and dangerous trade of drugs such as poverty, unemployment, lack of opportunities to engage in meaningful and rewarding activities owing to the growing income inequality.

The brunt of this war has been borne by communities of color especially low-income and African American that have systematically been decapitated by such sentencing and imprisonment. According to one set of stats from the Bureau of Justice, if current outrageous trends of incarceration continue then a black male born today has a 32.2% chance of spending time in prison during his lifetime as compared to 17.2% for Hispanic males and 5.9% for white males.[5] Despite the wide-held belief that incarceration rate always equals actual involvement in crime, there are notable studies showing that such rates of proportionality are rapidly decreasing due to incarceration of drug offenders and because of racist court policies or previous criminal histories.[6]

Higher incarceration of blacks in drug offenses is related to the concept of racial profiling whereby in states such as Florida or New Jersey, law enforcement are more likely to stop African American or other colored drivers for alleged traffic infractions which often lead to further searches of the vehicle that may reveal possession of drugs.[7]

A key statistic that bears noting is that African Americans represented 33.9% of drug arrests in 2005 that does not correspond with the 14% share of being current drug users.[8] This stat leads strong credence to the fact that law enforcement disproportionately target colored communities especially those in the low-income class whether it be through racial profiling or prosecution of the accused.

The Omnibus Anti-Drug Abuse Act of 1988 passed by congress criminalized even the simple possession of 5 grams or more of crack cocaine and imposed a mandatory minimum sentence of 5 years as opposed to the maximum penalty of one year for possession of any other form of cocaine or any other drug. As a result, African Americans are incarcerated for possessing crack cocaine on average for about 58.7 months, which nearly equals the 61.7 months that whites do on average for a violent offense.[9] This is blatantly unfair given that the majority of those convicted for powder cocaine offenses are white.

Such disparity is equally true of death penalty cases especially those which have garnered media coverage in Harris County which also includes Houston, Texas. A report prepared by Professor Raymond Paternoster from the University of Maryland’s institute of criminal justice and criminology examined the case of Duane Buck, a black male on death row whose sentence is being reconsidered.[10]

Paternoster found that from the small pool of 20 cases most resembling Buck’s case, 7 out of the 10 African American men were sent by the District Attorney for capital trial as compared to just one out of the five white defendants similarly situated.[11] In Harris County alone, African Americans represent exactly half of the prison population despite only being 19% of the total population in addition to 68% of the past 34 executions being black inmates.[12]

What might be safely inferred is that combining overly harsh drug sentences in an already nonsensical war launched by the federal authorities with overtly racist law enforcement leads to a disproportionately disastrous targeting of a minority community that not only has a crippling effect on the community but also allows for festering misconceptions and stereotypes by high-income and mostly white communities.

 


[1] http://www.alternet.org/drugs/major-progress-fixing-cruel-drug-war-prison-sentences

[2] Id.

[3] http://associationsnow.com/2014/02/sentencing-reforms-make-progress-but-without-prosecutors-support/

[4] Id.

[5] THOMAS P. BONCZAR, BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, PREVALENCE OF IMPRISONMENT IN THE U.S. POPULATION, 1974–2001, at 1 (2003), available at http://www.ojp.usdoj.gov/bjs/pub/pdf/piusp01.pdf.

[6] Alfred Blumstein, On the Racial Disproportionality of United States’ Prison Populations, 73 J. CRIM. L. & CRIMINOLOGY 1259, 1280 (1982); Alfred Blumstein, Racial Disproportionality of U.S. Prison Populations Revisited, 64 U. COLO. L. REV. 743, 751 (1993) [hereinafter Blumstein, Prison Populations Revisited].

 [7] MATTHEW R. DUROSE, ERICA L. SCHMITT, & PATRICK A. LANGAN, BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, CONTACTS BETWEEN POLICE AND THE PUBLIC: FINDINGS FROM THE 2002 NATIONAL SURVEY 4, 8 (2005), available at http://www.ojp.usdoj.gov/bjs/pub/pdf/cpp02.pdf.

 [8] Data calculated from the OFFICE OF APPLIED STUDIES, SUBSTANCE ABUSE AND MENTAL HEALTH SERVICES ADMINISTRATION, DEP’T OF HEALTH AND HUMAN SERVICES, RESULTS FROM THE 2005 NATIONAL SURVEY ON DRUG USE AND HEALTH: NATIONAL FINDINGS 234 tbl.1.28B (2006), available at http://www.drugabusestatistics.samhsa.gov/nsduh/2k5nsduh/2k5results.pdf.

 [9]Testimony of Jesselyn McCurdy,ACLU Legislative Counsel, At A United States Sentencing Commission Hearing On Cocaine and Sentencing Policy  (November 14,2006) http://www.aclu.org/racial-justice_prisoners-rights_drug-law-reform_immigrants-rights/testimony-jesselyn-mccurdy-aclu-le

[10]The Guardian,Research exposes racial discrimination in America’s death penalty capital,( 13th March,2013) http://www.theguardian.com/world/2013/mar/13/houston-texas-death-row-black-inmates

[11] Id.

[12] Id.

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