Tuesday, August 03, 2010

Thoughts on a "victory"

This morning at 11 a.m., President Obama signed S. 1789, the Fairness in Sentencing Act, in the Oval Office, reported by The Caucus blog at The New York Times. The House passed the bill on July 28 on a voice vote. I have been working for a bill on this subject since 1993.

This bill raises the quantities of crack cocaine that trigger the mandatory minimum sentences for trafficking enacted in 1986 (from 5 grams to 28 grams and from 50 grams to 280 grams) creating a ratio of cocaine to crack of 18 to 1 instead of 100 to 1. The Act also repeals a mandatory minimum sentence for simple possession of 5 grams of crack or more -- enacted in 1988, provides various directives to the U.S. Sentencing Commission regarding drug sentencing, calls for a review of the effectiveness of drug courts, and raises the fines that can be imposed for the crime of drug trafficking.

In 1986, I was counsel to the House Judiciary Committee, and played a key role in the creation of that law. A person who is convicted of distributing (or is part of a conspiracy to distribute) at least 500 grams of powder cocaine (a little more than a pound) or 5 grams of crack cocaine (a very small amount -- the weight of 5 packs of artificial sweetener or one nickel must be sentenced to at least 5 years (up to 40 years) in Federal prison. A person who is convicted of distributing (or is part of a conspiracy to distribute) at least 5000 grams (5 kilograms or about 12 pounds) of powder cocaine or 50 grams of crack cocaine (the weight of a typical candy bar) must be sentenced to at least 10 years (up to life imprisonment) in Federal prison. These sentences are triggered by different quantities for other drugs -- all relatively small quantities. In 1986, the federal prisons held 36,000 prisoners. This week there are over 211,000 federal prisoners, more than half of them there on drug charges, and a large fraction serving unjustly long sentences. Over 70 percent of the prisoners are serving sentences longer than 5 years.

The quantities that trigger mandatory sentences are mistakenly small. Contrary to the intent of Congress, they do not indicate that a trafficker is a major drug trafficker. A major cocaine trafficker organizes transactions in hundreds and thousands of kilos. One thousand kilos is one metric ton, which equals one million grams. The U.S. consumes about 300 metric tons of cocaine annually.

Unfortunately, year after year about 80 percent of the federal crack cocaine defendants are African-American. About 8 or 9 percent of the defendants are white. The racial disproportionality is utterly unwarranted.

Perhaps just as scandalous is that most federal drug defendants are neighborhood-level dealers, not the national level or international level dealers who should be the primary target of federal drug enforcement efforts. If most federal drug convicts were trafficking in hundreds or thousands of kilos, and operating at a very high level, no one would concerned about their race or ethnicity.

I have been working to repeal or reform the mandatory minimums I helped write since I left the Judiciary Committee in January 1989. I helped found Families Against Mandatory Minimums in 1991. In 1993, I wrote a draft of legislation to eliminate separate crack cocaine quantities so that at least crack and powder would be equal at the 500 and 5000 gram levels that was introduced by U.S. Rep. Charles Rangel (D-NY), the former Chairman of the House Select Committee on Narcotics Abuse and Control. He called the bill the "Crack Cocaine Equitable Sentencing Act." With that title, I thought it would never pass, and it never did.

Beginning in 2005, the Open Society Policy Center assembled a coalition that I joined along with Drug Policy Alliance, the ACLU, the Sentencing Project, Families Against Mandatory Minimum Sentences, the Methodist General Board of Church and Society, the National Association of Criminal Defense Lawyers, the NAACP, the Leadership Conference on Civil Rights, and many other groups including SSDP and LEAP, to push Congress to end the crack - powder disparity. For the coalition I drafted a bill I called the "Cocaine Kingpin Punishment Act" which eliminated the crack provisions and raised the fines that could be imposed against convicted traffickers.

In 2007, Sen. Joe Biden introduced a bill, S. 1711, with "cocaine kingpin" in the title and included some of the provisions of my draft. Senators Barack Obama and Hilary Clinton cosponsored his bill. There was a day of hearings on the bill, but no action. Rep. Sheila Jackson Lee introduced a companion bill in the House.

In 2009, Senator Richard Durbin (D-IL) introduced a revision of the Biden bill, now called the Fairness in Sentencing Act. He worked with Senators Jeff Sessions (R-AL) and Orrin Hatch (R-UT), who had expressed concern about the racial disparity in cocaine prosecutions, and what Sen. Hatch referred to as the "girl friend problem" of sentencing co-conspirators like principals. With Sessions and Hatch, Durbin was able to reach the compromise on 28 and 280 grams (18 to 1) and get it out of the Senate Judiciary Committee and out of the Senate on a voice vote.

I was very pessimistic that the House Democratic Leadership would bring the bill to the floor and risk a recorded vote. But House Majority Whip James Clyburn (D-SC) worked to get it to the floor. I believed that House Republicans would resist the bill as "soft on drugs," as Rep. Lamar Smith (R-TX), the ranking Republican on the Judiciary Committee, argued on the floor.

But I was wrong. The bill was brought to the floor, and Representatives James Sensenbrenner (R-WI) and Dan Lungren (R-CA) supported the bill. There was no record vote.

Since I did not think the bill would pass, and it did, my thoughts are that this is the best our political system can produce right now.

Republican support creates a political opening for President Obama to begin to issue orders commuting some sentences that are especially unjust -- if the Pardon Attorneys office is reorganized and expanded.

Ideally the Justice Department will begin more careful oversight of U.S. Attorney offices to assure that they focus on high level cases.

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