by Jeremy Leaming
President Obama and Congress took a significant step toward “fair and proportionate penalties” for some drug offenders with enactment last year of the Fair Sentencing Act, but additional reform legislation is needed to overcome the harsh effects of the nation’s so-called War on Drugs, a new ACS Issue Brief states.
Kara Gotsch, the director of advocacy for The Sentencing Project, details, in her Issue Brief, the effect of the “War on Drugs” on
our criminal justice system, noting that two laws enacted in the late 1980s created “hefty mandatory minimum sentences for drug offenses, including mandatory penalties for crack cocaine offenses that were the harshest ever adopted for low-level drug offenses.”
Specifically, Gotsch writes, persons convicted of “possessing as little as five grams of crack cocaine were subject to a mandatory minimum sentence of five years in prison. Defendants with at least 50 grams were subject to a ten-year mandatory minimum sentence.” But offenses involving powder cocaine resulted in significantly lighter sentences.
This sentencing disparity falls disproportionately on “African Americans despite evidence that the prevalence of drug use is similar across racial ethnic groups, suggesting disparate enforcement of facially neutral policies. An estimated two-thirds of all crack cocaine users are white or Hispanic, and surveys of users suggest that they generally purchase their drugs from sellers of the same racial and ethnic backgrounds. Nevertheless, 79 percent of federal crack cocaine defendants in 2010 were African Americans.”
In 2004, Gotsch notes, the U.S. Sentencing Commission, created in 1984 by Congress and comprising federal judges and lawyers, issued a report declaring that revising “the crack cocaine thresholds would better reduce the [sentencing] gap than any other policy change, and it would dramatically improve the fairness of the federal sentencing system.”
Although enactment of the law “marked the first time in 40 years that Congress eliminated a mandatory minimum sentence,” therefore representing a “milestone,” Gotsch says many experts “remain committed to ending the disparity. Despite the sentencing improvements, the new quantity triggers will still entangle people far less consequential in the drug markets than the major traffickers, those who the federal government claims to prioritize in its enforcement.”
Federal appeals court judge Andre M. Davis, in a Dec. 8 column for The Baltimore Sun laments the unfair sentencing rules. He writes that after “25 years of watching” drug offenders “serve out impossibly long sentences for transgressions that would be better served by drug treatment and social safety nets, I say with certainty that mandatory minimums are unfair and unjust. They cost taxpayers too much money and make very little sense. It was recently reported, for example, that in New Jersey, the cost of a year in state prison exceeds the cost of a year at Princeton University.”
Davis, who has served on the federal bench since 1995, and was confirmed to a seat on the U.S. Court of Appeals for the Fourth Circuit in 2009, lauds the Fair Sentencing Act, and the U.S. Sentencing Commission for taking action to reduce the crack-cocaine sentencing disparity, but concludes that federal mandatory minimums should be done away altogether.
“With mandatory minimums,” he writes, “judges are hindered from handing out fair and just sentences, but prosecutors are given unwarranted power to dictate sentences. Nonviolent drug offenders are serving longer sentences, filling our prisons at an unsustainable rate. Meanwhile, communities are destroyed, society is unjustly served and the ‘war on drugs’ fails.”
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