Congress
Should Listen To The Judges on Mandatory Sentencing
By Earl Ofari Hutchinson,
BlackNews.com Columnist
Every
effort to scrap or modify the blatantly unfair minimum mandatory
sentencing law for illicit drug abusers has crashed against
two things. The first was then President Bill Clinton’s half-hearted
fight to change the disparity sentencing in the law in Congress
in the mid-1990s. Next, it crashed against President Bush
and the Republican controlled Congress’s dogged battle against
changing the sentencing disparity. The law requires that judges
slap a minimum mandatory sentence of five years on anyone
caught with crack cocaine. Those convicted are mostly poor
blacks. Those caught with the same amount of powdered cocaine,
mostly whites, often middle-class suburban whites get a comparative
hand slap sentence.
Clinton,
Bush and Congress easily turned a tin ear to those screaming
for reform as along as they were the usual suspects, the ACLU,
black and Latino activists, a handful of elected officials,
drug reform organizations, and criminal justice reform advocates.
Congress may have a harder time ignoring the latest to raise
their voices against the law. The ones screaming louder this
time are federal judges. Many of them are Reagan and Bush
appointees, have impeccable conservative credentials, and
are not bleeding heart liberals on crime. But a growing number
of them say its time for change in the laws.
Michigan
Democrat John Conyers, the new chair of the House judiciary
Committee, and a long time crusader against sentencing disparities
has pledged to hold hearings on the disastrous impact of the
laws. And they have been a disaster.
When
Congress enacted the law in 1986, the idea was to use
tougher drug sentencing to rid the streets of violent,
drug kingpins. At the time, drug and gun violence tore
many poor black neighborhoods, and police and terrified
residents demanded a crackdown. The law hammered poor
blacks, had almost no affect on the drug lords, and
gave white drug users a relatively free legal pass.
The problem for the judges was that the laws stripped
them of much of their discretionary legal authority
to impose sentences. In several judicial districts,
judges quietly rebelled, bent the rules, and lightened
sentences for some first time offenders.
In at least one case, a judge resigned from the bench
in protest against the mandatory sentencing laws. Even
Supreme Court Justice Stephen G. Breyer, Anthony M.
Kennedy, and the late William Rehnquist have publicly
called for scrapping or at least modifying the mandatory
law. This drew a loud rebuke from then Attorney General
John Ashcroft. There were open threats to retaliate
against the dissenting judges.
Meanwhile, the majority of blacks that are sentenced
under the law, and that’s upward of 80 percent, are
poor, ill educated. They fit the increasingly standard,
and disturbing profile of thousands of federal prisoners.
Though studies confirm that black illicit drug use is
no greater than that of whites, they are less likely
to be offered a chance to plea bargain, black drug offenders
are more likely to fall under federal or state minimum
mandatory sentencing law, and will serve a sentence
nearly double that of whites. The escalation in black
incarceration is the single biggest cause of the massive
bulge in the number of inmates in federal prisons. The
number has jumped four fold since the late 1980s, and
more than half of them are there for drug crimes, or
other petty offenses.
The law has wreaked havoc on many black communities
and families. A handful of states permanently ban ex-felons
from voting. More than half of those disenfranchised
are black men. The voting ban diminishes the political
power of the black communities. Women convicted of felony
drug offenses are also barred for life from receiving
welfare benefits. This puts thousands of women and their
children at dire social risk and increases the likelihood
that they will commit more crimes. The high black imprisonment
rate also drastically increases health risks and costs
in black communities, since many prisoners are released
with chronic medical afflictions, particularly HIV/AIDS.
The mandatory sentencing law has been a costly white
elephant, and has done nothing to curb violent crime.
More states realize that stuffing thousands in jail
cells is no cure for crime and drug ills. In Michigan,
California and New York, courts are much more willing
to send people to drug treatment programs rather than
prison. And a growing number of states have repealed,
or modified their mandatory sentencing laws.
Still, it’s the judges that can make a difference with
Congress. Breyer, Kennedy and the other federal judges
that protest minimum mandatory sentencing have repeatedly
said that the laws are wasteful, harmful, and a judicial
embarrassment that threatens the legal independence
of judges. The law further mocks the concept of equal
protection under the law for rich and poor alike.
Conyers should move with all due speed to get congressional
hearings going and show the damage of sentencing disparities.
Then Congress should change or end them.
BlackNews.com
columnist Earl Ofari Hutchinson is an author and political
analyst. His new book The Latino Challenge to Black
America: Towards a Conversation between African-Americans
and Hispanics (Middle Passage Press and Hispanic Economics
New York) in English and Spanish will be out in September.
For
media interviews, contact:
Mr. Hutchinson at 323-296-6331 or hutchinsonreport@aol.com
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