Crack/Powder Cocaine Disparity

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As Pressure Mounts, Holder Acts on Sentencing Reform [FEATURE]

US Attorney General Eric Holder announced Monday a comprehensive federal sentencing reform package with a strong emphasis on drug sentencing. He said he will direct US Attorneys that low-level, nonviolent drug offenders not tied to gangs or major trafficking organizations should not be charged in ways that trigger lengthy mandatory minimum sentences.

Attorney General Eric Holder (usjoj.gov)
Holder's announcement is only the latest indicator that -- after decades of "tough on crime" politics in Washington -- pressure is mounting to do something about the huge number of people in federal prisons. The Chronicle will be reporting on the rising calls for reform in both the executive branch and the Congress later this week.

In a major speech to the American Bar Association in San Francisco Monday morning, Holder laid out Obama administration sentencing reform plans, some of which can be implemented by executive action, but some of which will require action in the Congress. The comprehensive sentencing reform package is designed to reduce the federal prison population not only through sentencing reforms, but also through alternatives to incarceration in the first place.

"A vicious cycle of poverty, criminality and incarceration traps too many Americans and weakens too many communities," Holder said. "However, many aspects of our criminal justice system may actually exacerbate this problem rather than alleviate it. Too many Americans go to too many prisons for far too long and for no good law enforcement reason. We cannot simply prosecute or incarcerate our way to becoming a safer nation."

On drug sentencing, Holder said he would direct US attorneys across the country to develop specific guidelines about when to file federal charges in drug offenses. The heaviest charges should be reserved for serious, high-level, or violent offenders, the attorney general said.

There are currently more than 100,000 people incarcerated in federal prisons for drug offenses, or nearly half (47%) of all federal prisoners. The federal prison population has expanded an incredible eight-fold since President Ronald Reagan and a compliant Congress put the drug war in overdrive three decades ago, although recent federal prison population increases have been driven as much by immigration prosecutions as by drug offenses.

"It's time -- in fact, it's well past time -- to address persistent needs and unwarranted disparities by considering a fundamentally new approach," Holder told the assembled attorneys. "While I have the utmost faith in -- and dedication to -- America's legal system, we must face the reality that, as it stands, our system is in too many respects broken. The course we are on is far from sustainable. And it is our time -- and our duty -- to identify those areas we can improve in order to better advance the cause of justice for all Americans."

One of those areas, Holder said, is mandatory minimum sentencing.

"We will start by fundamentally rethinking the notion of mandatory minimum sentences for drug-related crimes.  Some statutes that mandate inflexible sentences -- regardless of the individual conduct at issue in a particular case -- reduce the discretion available to prosecutors, judges, and juries," said the former federal prosecutor. "Because they oftentimes generate unfairly long sentences, they breed disrespect for the system. When applied indiscriminately, they do not serve public safety. They -- and some of the enforcement priorities we have set -- have had a destabilizing effect on particular communities, largely poor and of color. And, applied inappropriately, they are ultimately counterproductive."

In addition to reducing the resort to mandatory minimum sentencing and directing prosecutors to use their discretion in charging decisions, Holder will also order the Justice Department to expand the federal prison compassionate release program to include "elderly inmates who did not commit violent crimes and who have served significant portions of their sentences."

Beside the executive branch actions, Holder also committed the Obama administration to supporting sentencing reform legislation currently pending before Congress, specifically the Justice Safety Valve Act (Senate Bill 619), which would give federal judges the ability to sentence below mandatory minimums when circumstances warrant, and the the Smart Sentencing Act (Senate Bill 1410), which would reduce mandatory minimums for drug crimes, slightly expand the existing drug sentencing safety valve, and apply retroactively the Fair Sentencing Act of 2010's reduction in the crack-powder cocaine sentencing disparity.

"Such legislation will ultimately save our country billions of dollars," Holder said. "Although incarceration has a role to play in our justice system, widespread incarceration at the federal, state and local levels is both ineffective and unsustainable."

Sentencing and drug reform advocates welcomed Holder's speech and the Obama administration's embrace of the need for criminal justice reforms, but also scolded the administration and lawmakers for taking so long to address the issue and for timidity in the changes proposed.

"For the past 40 years, the Department of Justice, under both political parties, has promoted mandatory minimum sentencing like a one-way ratchet. Federal prison sentences got longer and longer and no one stopped to consider the costs and benefits," said Julie Stewart, founder and head of Families Against Mandatory Minimums (FAMM). "Today, at long last, the politics of criminal sentencing have caught up to the evidence. The changes proposed by the Attorney General are modest but they will make us safer and save taxpayers billions of dollars in the process."

"There's no good reason, of course, why the Obama administration couldn't have done something like this during his first term -- and tens, perhaps hundreds, of thousands of Americans have suffered unjustly as a result of their delay," said Drug Policy Alliance executive director Ethan Nadelmann in a message to supporters. "But that said, President Obama and Attorney General Holder deserve credit for stepping out now, and for doing so in a fairly decisive way."

[See our related story this issue, "Is There a Perfect Storm for Federal Sentencing Reform?"]

San Francisco, CA
United States

Chronicle Book Review: Race to Incarcerate: A Graphic Retelling

Race to Incarcerate: A Graphic Retelling by Sabrina Jones and Marc Mauer (2013, The New Press, 111 pp., $17.95 PB)

Marc Mauer, the executive director of the The Sentencing Project, a Washington, DC-based nonprofit devoted to reforming harsh sentencing practices and the way we think about crime and justice, first published the groundbreaking Race to Incarcerate back in 1999. With clinical precision, Mauer showed how -- and why -- our prison population began skyrocketing in the 1970s, driven less by crime than the politics of "tough on crime" and "tough on drugs," and how the issue of crime was inextricably interwoven with issues of race and class.

http://stopthedrugwar.org/files/race-to-incarcerate-graphic-retelling.jpg
The book garnered good reviews and generated some discussion on crime policy from social justice activists, academics, policy wonks, and other interested parties. In fact, it proved popular enough to merit a second edition in 2007. And now, there is Race to Incarcerate: A Graphic Retelling, a new, updated edition in graphic novel form -- one aimed not at the policy set, but at a broader and more youthful audience.

As Michelle Alexander, author of The New Jim Crow notes in her forward to this edition, she used Race to Incarcerate as an organizing tool, sending copies off to people who could wade through and benefit from its number-crunching and policy analysis. But she generally didn't send it to young or uneducated people, relying instead on videos, magazine articles and the like. A Graphic Retelling is designed to be accessible to people who aren't policy analysts or academics, and it succeeds impressively.

With its appropriate dark illustration by graphic artist Sabrina Jones, the graphic version of the book tells the complex and convoluted tale of America's incarceration obsession in a way that is easy to grasp, yet as powerful as paragraphs of dense text -- if not more so. With the help of Jones, Mauer's astute and pointed analysis leaps off the page in easily digestible and visually pleasing -- if sometimes disturbing -- imagery. How better to show (rather than tell) America's position as the world's leading incarcerator than a graphic of men crammed into tiny boxes piled atop more men crammed into tiny boxes in a pile that stretches to the sky?

Mauer and Jones take the reader/viewer on a tour of American punishment going back to the colonial era, when imprisonment was rarely used -- physical punishments, such as whippings or the stocks were instead the norm -- and the first "reform," the "Pennsylvania model," where penitent prisoners resided in a penitentiary, locked in their cells alone all day with their work and their Bibles, to reflect on the error of their ways. Advanced by the Quakers and seen as a humane alternative to physical punishments, the "Pennsylvania model" laid the groundwork for the prison system that has metastasized into the present-day American gulag.

But the "Pennsylvania model" had its critics early on, including Charles Dickens, who called the enforced, prolonged solitary confinement "worse than any torture of the body." Still, a century and a half after Dickens, the penitentiaries endure, and so does the massive use of solitary confinement, even though human rights groups qualify it as a human right abuse.

Race to Incarcerate really takes off, though, in the 1970s, when the prison population, which had been relatively stable for decades, also began taking off. Frightened by the tumult and turmoil of the 1960s, American voters elected "tough on crime" Richard Nixon as president, and the race to incarcerate was on, only to accelerate under Ronald Reagan, and continue full speed ahead under Democratic and Republican administrations alike until the early years of this century.

Along the way, we revisit the draconian Rockefeller drug laws of the 1970s, the model for mandatory minimum sentencing that was to sweep Washington and state capitals in the years to come, as well as successive -- and successively more harsh -- federal drug and sentencing laws that have stuffed our prisons full of nonviolent, low-level drug offenders.

Many of those nonviolent, low-level drug offenders we pay billions to keep behind bars are poor people of color. Too many. A disproportionate number, given the percentage of black people in the population and their rates of drug use (about the same as whites).  Mauer shines here with his analysis of the race and -- gasp! -- class dimension of mass incarceration, and the shameful failure of the American political system to respond to social problems with anything other than a prison cell, especially if you happen to be the scary black male "other."

America's imprisonment binge has also inspired a contemporary reform movement, of which Mauer is both member and narrator. And, as he notes in a preface to the new edition, that movement is gaining ground. The overall prison population is now stabilized, if not actually declining, thanks to sentencing reforms in the states and, to a much more limited degree, at the federal level. (The states have had to deal with their budget crises by making real policy choices, such as reducing imprisonment levels; the federal government, on the other hand, simply prints more money and goes on its merry way.)

But even with the progress that has been made, America remains the world's unchallenged leader in imprisoning its own people. Eliminating drug prohibition would cut our prison population by about a fifth, but we would still be the world's leading jailer even then. It's not that Americans are more criminal than anybody else; it's that we lack the will or the imagination to come up with more humane solutions to our social problems -- and some politician can always count on gaining support by playing to fear and the "lock 'em up" vote.

The tide may, finally, be beginning to turn, but there are many, many battles left to fight. Race to Incarcerate: A Graphic Retelling is a perfect tool for educating the young and the non-wonkish about the issues involved and the forces involved in that All-American urge to punish. This book deserves a place in the high school class room, among youth groups, and among those hoping to educate and mobilize for positive change on crime, race, class, and social justice issues. It is a powerful tool for good.

Federal Appeals Court Panel Extends Crack Sentencing Retroactivity

In a Friday decision, a three-judge panel of the US 6th Circuit Court of Appeals in Cincinnati held that the provisions of the 2010 Fair Sentencing Act that reduced the sentencing disparity between crack and powder cocaine offenses should apply to people convicted even before the law was passed. If upheld, the ruling could reduce the sentences of thousands of inmates, mostly black, who were sentenced under the draconian old laws.

The case was US v. Cornelius and Jarreous Blewitt, in which the Blewitt cousins were convicted in 2005 of federal crack cocaine charges and sentenced to mandatory minimum prison sentences. The Blewitts appealed their sentences, citing the Fair Sentencing Act's impact on crack cocaine sentencing, and seeking retroactive sentencing in line with the act.

Even though the Fair Sentencing Act had reduced the 100:1 ratio between crack and powder cocaine for sentencing purposes to 18:1, "thousands of inmates, most black, languish in prison under the old, discredited ratio because the Fair Sentencing Act was not made explicitly retroactive by Congress," the court noted.

"In this case, we hold that the federal judicial perpetuation of the racially discriminatory mandatory minimum crack sentences for those defendants sentenced under the old crack sentencing law, as the government advocates, would violate the Equal Protection Clause, as incorporated into the Fifth Amendment," the court wrote, noting that the Fifth Amendment forbids federal racial discrimination in the same way as the Fourteenth Amendment forbids state racial discrimination.

The US Supreme Court had already approved sentencing retroactivity for crack offenders who were charged before the Fair Sentencing Act went into effect but sentenced after it in Dorsey v. US, but this decision from the 6th Circuit dramatically expands the impact of the Fair Sentencing Act's sentencing reductions by applying it to all federal crack cocaine offenders.

[Ed: Whether the ruling will survive the scrutiny of the 6th Circuit en banc or the US Supreme Court, if it gets that far, remains to be seen.]

Cincinnati, OH
United States

Celebrities Urge Obama Forward on Drug, Sentencing Reform [FEATURE]

A coalition of more than 175 artists, actors, athletes, elected officials, and civil rights and civil liberties advocates Tuesday sent an open letter to President Obama urging him to redouble his efforts to shift from a punitive, repressive federal criminal justice policy to one emphasizing prevention and rehabilitation.

Russell Simmons, 2012 Tribeca Film Festival (courtesy David Shankbone via Wikimedia)
The US is the world's leading incarcerator, with more than 2.3 million people behind bars. The US leads the world both in absolute numbers of prisoners and in prisoners per capita, with 715 per capita, comfortably leading the nearest per capita contenders, Russia (584) and Belarus (554).

Of those 2.3 million people behind bars, more than 500,000 are charged with drug offenses. While the number of prisoners being held by the states and the number of drug offenders held by the states have begun to decline slightly in recent years as state-level policy makers grapple with economic problems, the federal prison population continues to grow, driven in part by drug offenders. According to the Bureau of Justice Statistics, there were some 95,000 federal drug war prisoners at the end of 2011, nearly half the federal prison population. That's up from only 70,000 a decade ago.

"It is critical that we change both the way we think about drug laws in this country and how we generate positive solutions that leave a lasting impact on rebuilding our communities," said hip-hop mogul Russell Simmons, who helped organize the star-studded effort. "We need to break the school to prison pipeline, support and educate our younger generations and provide them with a path that doesn’t leave them disenfranchised with limited options."

In the letter, the coalition praised Obama for criminal justice reforms he had undertaken, such as the Fair Sentencing Act, which reduced (but did not eliminate) the crack-powder cocaine sentencing disparity, but urged him to do more. "Mr. President, it is evident that you have demonstrated a commitment to pursue alternatives to the enforcement-only "War on Drugs" approach and address the increased incarceration rates for non-violent crimes," the letter said. "We believe the time is right to further the work you have done around revising our national policies on the criminal justice system and continue moving from a suppression-based model to one that focuses on intervention and rehabilitation."

The coalition called for specific reforms.

"Some of the initial policies we recommend is, under the Fair Sentencing Act, extend to all inmates who were subject to 100-to-1 crack-to-powder disparity a chance to have their sentences reduced to those that are more consistent with the magnitude of the offense," the letter said. "We ask your support for the principles of the Justice Safety Valve Act of 2013 (Senate Bill 619), which allows judges to set aside mandatory minimum sentences when they deem appropriate."

The letter also implicitly chided the Obama administration for its failure to make much use of his power to pardon and commute sentences. In fact, Obama has pardoned prisoners or commuted sentences at a much lower rate than any of his recent predecessors. He has granted only 39 pardons and one commutation (of a terminally ill cancer patient) in five years in office, while failing to act on such deserving and well-publicized cases as that of Clarence Aaron, who is now 20 years into a triple life sentence for a cocaine deal in which he was neither the buyer, seller, or supplier of the drugs.

"We ask that you form a panel to review requests for clemency that come to the Office of the Pardon Attorney," the letter said. "Well-publicized errors and omissions by this office have caused untold misery to thousands of people."

The letter also applauded Obama's "staunch commitment" to reentry programs for prisoners who have finished their sentences and urged him to expand those transition programs, and it urged him to support the Youth Prison Reduction through Opportunities, Mentoring, Intervention, Support, and Education (Youth PROMISE) Act (House Bill 1318), "a bill that brings much needed focus on violence and gang intervention and prevention work."

The coalition also asked for a meeting with the president.

"We request the opportunity to meet with you to discuss these ideas further and empower our coalition to help you achieve your goals of reducing crime, lowering drug use, preventing juvenile incarceration and lowering recidivism rates," the letter said.

From the Hollywood community, signatories to the letter included: Roseanne Barr, Russell Brand, Jim Carrey, Cedric The Entertainer, Margaret Cho, Cameron Diaz, Mike Epps, Jamie Foxx, Jon Hamm, Woody Harrelson, Ron Howard, Eugene Jarecki, Scarlett Johannson, the Kardashians, LL Cool J, Eva Longoria, Demi Moore, Michael Moore, Tim Robbins, Chris Rock, Susan Sarandon, Sarah Silverman, Jada Pinkett Smith, Will Smith, and Mark Wahlberg.

From the music community, signatories included: Big Boi of Outkast, Sean "Diddy" Combs, Chuck D, DJ Envy, DJ Pauly D, Ani Difranco, Missy Elliot, Ghostface Killah, Ginuwine, Jennifer Hudson, Ice-T, Talib Kweli, John Legend, Ludacris, Lil Wayne, Natalie Maines, Nicky Minaj, Busta Rhymes, Rick Ross, RZA, and Angela Yee.

From the civil rights and civil liberties community, signatories included: Harry Belafonte, Julian Bond, Dr. Benjamin Chavis, Law Enforcement Against Prohibition leader Neill Franklin, Rev. Jesse Jackson, NAACP head Benjamin Todd Jealous, National Urban League leader Marc Morial, Drug Policy Alliance head Ethan Nadelmann, Rev. Al Sharpton, ACLU head Anthony Romero, Families Against Mandatory Minimums head Julie Stewart, and Dr. Boyce Watkins.

From the faith community, signatories included:  Bishop James Clark, Bishop Noel Jones, Bishop Clarence Laney, Bishop Edgar Vann, Dr. Iva Carruthers, Deepak Chopra, Father Michael Pfleger, Rabbi Robyn Fryer Bodzin, Rabbi Menachem Creditor, Rabbi Nina Mandel, Rev. Jamal Bryant, Rev. Delman Coates, Rev. Leah D. Daughtry, Rev. Dr. Fredrick Haynes, Rev. Michael McBride, Rev. Dr. W Franklyn Richardson, and Rev. Barbara Skinner Williams.

Media and academic figures who signed on include: CNN's TJ Holmes, Radio One's Cathy Hughes and Alfred Liggins, former MSNBC host (and now hydroponic farmer!) Dylan Ratigan, "The New Jim Crow" author Michelle Alexander, Michael Eric Dyson, Naomi Klein, Julianne Malveaux, and Spelman College's Dr. Beverly Daniel Tatum.

Also signing were businessmen Virgin Airlines magnate Sir Richard Branson, US Black Chamber of Commerce head Ron Busby, and St. Louis Rams owner Chip Rosenbloom, elected officials Congressman Tony Cardenas (D-CA), Congressman Keith Ellison (D-MN), Congresswoman Marcia Fudge (D-OH), Congresswoman Barbara Lee (D-CA), Congressman Bobby Rush (D-IL), and Congressman Bobby Scott (D-VA), and professional athletes Brendon Ayanbadejo, Lamar Odom, Isaiah Thomas, and MikeTyson, among others.

"The letter is intended to be a respectful appeal to the Obama administration asking that we develop productive pathways to supporting families that have been harmed by the War on Drugs," said Dr. Boyce Watkins, author, entrepreneur, and current scholar in residence in entrepreneurship and innovation at Syracuse University. "Countless numbers of children have been waiting decades for their parents to come home, and America is made safer if we break the cycle of mass incarceration. Time is of the essence, for with each passing year that we allow injustice to prevail, our nation loses another piece of its soul. We must carefully examine the impact of the War on Drugs and the millions of living, breathing Americans who've been affected.  It is, quite simply, the right thing to do."

"So called 'tough on crime' policies have failed our nation and its families, while 'smart on crime' policies work," said NAACP head Benjamin Todd Jealous. "When we know that drug treatment is seven times more effective than incarceration for drug addicts, basic human decency demands our nation makes the switch. The fate of hundreds of people and the children who need them home and sober hang in the balance. Great progress is being made in states from New York to Georgia with strong bipartisan support. The time has come for all of us to do all that we can. The future of our families, states, and nation demand it."

Will President Obama respond to this clarion call for action? Stay tuned.

The Democratic Platform on Drugs

The Democrats are on their way home from the national convention in Charlotte, and now is a good time to examine their official stand on drug policy. A review of the 2012 Democratic National Platform suggests there's not much new there.

There are only a handful of mentions of drugs or drug policy in the text of the platform -- and the word "marijuana" doesn't appear at all -- all of them having to do with either combating international organized crime or touting the Obama administration's baby steps toward a progressive drug policy.

The first mention of drugs comes in the section about "Strengthening the American Community" and its subsection about Puerto Rico. It calls for more drug law enforcement there: "We support increased efforts by the federal government to improve public safety in Puerto Rico and the United States Virgin Islands, with a particular emphasis on efforts to combat drug trafficking and crime throughout our Caribbean border."

Similarly, in the platform's subsections on "Transnational Crime" and "The Americas," the mention of drugs and drug policy comes only in the context of fighting crime. The former section merely notes that "transnational criminal organizations have accumulated unprecedented wealth and power through the drug trade, arms smuggling, human trafficking, and other illicit activities" and touts the Obama administration's comprehensive Strategy to Combat Transnational Organized Crime.

In the latter section, there is more "tough on crime" talk: "We have strengthened cooperation with Mexico, Colombia, and throughout Central America to combat narco-traffickers and criminal gangs that threaten their citizens and ours. We will also work to disrupt organized crime networks seeking to use the Caribbean to smuggle drugs into our country. As we collectively confront these challenges, we will continue to support the region’s security forces, border security, and police with the equipment, training, and technologies they need to keep their communities safe. We will improve coordination and share more information so that those who traffic in drugs and in human beings have fewer places to hide. And we will continue to put unprecedented pressure on cartel finances, including in the United States."

The only other mention of drugs or drug policy comes in the platform subsection on "Public Safety, Justice, and Crime Prevention." Here, even as they acknowledge that serious crime is at a 50-year low, the Democrats say they are "fighting for new funding that will help keep cops on the street" and "to ensure our courageous police officers and first responders are equipped with the best technology, equipment, and innovative strategies to prevent and fight crimes."

The platform also says that Democrats will "[continue] to invest in proven community-based law enforcement programs such as the Community Oriented Policing Services program" and "support local prison-to-work programs and other initiatives to reduce recidivism, making citizens safer and saving the taxpayers money."

The Democrats "will continue to fight inequalities in our criminal justice system," the platform says, pointing to the passage of the Fair Sentencing Act as "reducing racial disparities in sentencing for drug crimes." The act actually addresses only crack cocaine sentencing.

Finally, the platform calls for increased law enforcement cooperation: "We must help state, local, territorial, and tribal law enforcement work together to combat and prevent drug crime and drug and alcohol abuse, which are blights on our communities. We have increased funding for the Byrne Justice Assistance Grant Program over the last four years, and we will continue to expand the use of drug courts."

This is your Democratic platform on drugs.

For our take on the Republican platform, go here.

DOJ to Sentencing Commission: Fewer Prisoners, Please

In a congressionally mandated annual report to the US Sentencing Commission on the operation of federal sentencing guidelines, the US Department of Justice (DOJ) said continuing increases in the federal prison populations and spending are "unsustainable" and called on the commission to work with other stakeholders to reduce federal corrections costs. But the report failed to address the single largest factor driving the growth in the federal prison population: the huge increase in the number of federal prisoners doing time for drug offenses.

Even the feds can no longer sustain current mass incarceration policies. (US Supreme Court)
According to data compiled by Drug War Facts and based on Bureau of Justice Statistics reports, in 1980, there were some 19,000 federal prisoners, with some 4,500 having a drug offense as their most serious offense. By 2010, the number of federal prisoners had increased tenfold to more than 190,000, and a whopping 97,000 were doing time for drug offenses, also a tenfold increase. The percentage of drug offenders increased during that period from roughly 25% of all federal prisoners in 1980 to 51.7% in 2010.

As DOJ noted in its letter, the first decade of that period corresponded to the end of decades of increases in crime and violent crime, leading to record high crime rates, which had generated a number of policy responses, including more police, harsher sentencing, and an increased emphasis on illegal drugs. But as DOJ also noted, beginning in 1992, violent crime has dropped consistently, and the US is now safer than it has been in decades.

All that costs money. The DOJ report noted that state, local, and federal criminal justice expenditures jumped nearly six-fold between 1984 and 2006, from $32.6 billion to $186.2 billion. State and local spending continued to rise until 2009, when the financial crisis and subsequent economic recession took hold, while federal criminal justice spending rose nearly ten-fold, from $4.5 billion to $41 billion.

But even though the federal government is more cosseted from economic hard time than the states, even it can no longer spend freely. As the DOJ letter noted, "The Budget Control Act of 2011 sent a clear signal that the steady growth in the budgets of the Department of Justice, other federal enforcement agencies, and the federal courts experienced over the past 15 years has come to an end."

While federal criminal justice budgets have been relatively flat in the last few years, the costs of imprisoning an ever-increasing number of people has not, and that means fewer resources for other criminal justice spending, including aid to state and local law enforcement and prevention and intervention programs. Within DOJ, the core law enforcement functions (policing, prosecution, prisons) have increased from 75% of the budget in 2002 to 91% this year.

"The question our country faces today is how can we continue to build on our success in combating crime and ensuring the fair and effective administration of justice in a time of limited criminal justice resources at all levels of government?" the DOJ noted. "In other words, how will the country ensure sufficient investments in public safety, and how will those involved in crime policy ensure that every dollar invested in public safety is spent in the most productive way possible?"

With budgets flat, criminal justice spending has to get more bang for the buck, the DOJ letter said.

"We must ensure that our federal sentencing and corrections system is strong but smart; credible, productive and just; and budgetarily sound," the letter said. "But maximizing public safety can be achieved without maximizing prison spending. The federal prison population -- and prison expenditures -- have been increasing for years. In this period of austerity, these increases are incompatible with a balanced crime policy and are unsustainable.

"We believe federal sentencing policy should be reviewed -- both systemically and on a crime-by-crime basis -- through the lens of public safety spending productivity. Adopting that perspective, we think it is clear that there are many areas of sentencing policy that call be improved," the letter continued. "We have identified many of the crime-specific areas over the last several years that warrant substantive reexamination. And we have also put forward legislative proposals to make systemic changes that would help control prison costs in a responsible way that furthers public safety. As to the guidelines process itself, we think reforms -- including some simplification of the guidelines and some limits on sentencing appeals -- are worth fully considering."

It is clear what is driving the growth in the federal prison population and the federal corrections budget: drug war prisoners. While the Obama administration DOJ is to be credited with taking some steps that move in the direction of reducing the number of prisoners and the corrections budget, such as supporting the partial reform of the crack/powder cocaine sentencing disparity, its failure to directly address the consequences of policies of mass imprisonment of drug offenders means that it is missing the elephant in the room.

Washington, DC
United States

Some States Move on Sentencing Reform

With state budgets devastated by the 2008 financial crisis and subsequent slow economic growth, the impulse to incarcerate is being blunted by fiscal realities. This year, a number of states have passed legislation designed to ease the financial burden of mass incarceration.

The slight trend away from mass incarceration by the states has been evident for the past couple of years, as for the first time in decades, the number of prisoners being held by the states has declined. According to the Bureau of Justice Statistics, at the end of 2010, the last year for which numbers are available, the number of combined state and federal prisoners declined for the first time since 1972. The decline was driven by the states, with state prison populations down 0.5%, while the federal prison population grew by 0.8%.

A number of states, including California and Texas, have in the past decade begun reforming their sentencing practices, accounting for the decline. Recently passed sentencing reforms in several states could help see those numbers drop even further. These include:

Hawaii

Last month, Gov. Neal Abercrombie (D) signed into law two bills, House Bill 2515 and Senate Bill 2776. They will, among other things, allow judges to impose probation for first- and second-time drug possession charges. The bills also expand the use of pre-trial and parole hearing risk assessment to identify and release low-risk offenders and prisoners. And they provide funds for community-based drug treatment programs.

Illinois

Late last month, Gov. Pat Quinn (D) signed into law Senate Bill 2621, which restores good time credits to non-violent offenders who complete drug treatment, job training, or other rehabilitation programs. Quinn had suspended the good time credits after a 2010 scandal in which it was revealed that many prisoners had won early release after serving only weeks in prison. The new new law requires prisoners to serve at least 60 days before they could be released for good time credit, and prisoners can earn no more than 180 days of good time credit.

Missouri

Last week, a bill that reduces the sentencing disparity between crack and powder cocaine began law without the signature of Gov. Jay Nixon (D). The bill was approved by the Republican-led legislature on the last day of the session and reduces the state's 75-to-1 ratio in sentencing for the two different types of cocaine to a ratio of about 18-to-1.

New Jersey

Late last month, the legislature passed Senate Bill 881, under which non-violent, drug-dependent offenders will receive treatment rather than prison. The bill also removes prosecutorial objections to sending someone to drug court and expands eligibility for the state's drug court program. Gov. Chris Christie (R) is expected to sign the bill.

Ohio

Late last month, Gov. John Kasich (R) signed into law Senate Bill 337, which allows people to seal the records on one felony and one misdemeanor or two misdemeanor convictions. The idea is to make it easier for former prisoners to find work. The law also creates a certificate of qualification that will give ex-offenders the ability to get some occupational licenses they were previously barred from obtaining.

Pennsylvania

Earlier this month, Gov. Tom Corbett (R) signed into law Senate Bill 100, which incorporates many of the recommendations of his Justice Reinvestment Working Group and passed both houses of the legislature unanimously. It expands eligibility for alternative sentencing programs, allows for intermediate sanctions so that fewer technical parole violators are sent to prison, and diverts some low-level defendants from prison. But it's not all good: The bill also eliminates the pre-release program that allows qualifying prisoners to be paroled to halfway houses before their minimum dates.

Tennessee

In May, Gov. Bill Haslam (R) signed into law Senate Bill 3520, which allows some former prisoners to expunge certain felonies and misdemeanors from their criminal records. It only applies to those with a single conviction, but legislative fiscal analysts projected it would increase expungement requests by 60,000 a year.

The states are not undertaking a radical rethinking of the rote resort to incarceration, but they are nibbling at the edges, particularly when it comes to drug offenders. Every little bit helps.

Supreme Court Grants Lesser Sentences in "Pipeline" Crack Cocaine Cases

The US Supreme Court ruled last Thursday that decreased crack cocaine sentences approved by Congress in 2010 also apply to people who were convicted but not yet sentenced when the law took effect. The decision could result in reduced sentences for thousands of so-called "pipeline" federal crack cocaine defendants.

Congress passed the Fair Sentencing Act and President Obama signed it into law after years of complaints about the sentencing disparities between crack and powder cocaine and the racial impact of those disparities. Under laws passed in the late 1980s, it took 100 times as much powder cocaine to generate mandatory minimum prison sentences as it did for crack cocaine. The act reduced the quantity disparity to 18:1.

The decision in two cases of men convicted on federal crack charges but sentenced after the act became law came on a narrow 5-4 vote. The two cases were consolidated in a single ruling in Dorsey v. United States.

In one case, Edward Dorsey was arrested in 2008 and pleaded guilty in July 2010 to possessing 5.5 grams of crack with the intent to distribute. He was sentenced to a mandatory minimum 10 years; under the new law, his sentence would likely have been around four years.

In the other case, Corey Hill was convicted in 2009 of selling 53 grams of crack in 2007 and sentenced to 10 years in prison; under the new law, his sentence would have been around five years.

Federal appeals court split on whether the new law should be applied retroactively, prodding the Supreme Court to take up the cases and bring clarity to the issue.

The court split in what has become almost standard for the Roberts court. All four liberal justices weighed in on the side of extending the sentencing reductions and were joined by swing justice Anthony Kennedy. The court's four staunch conservatives all dissented.

Sentencing reform advocates welcomed the ruling.

"We are thrilled with the court's decision," said Julie Stewart, executive director of Families Against Mandatory Minimums, which had filed a friend of the court brief in the case. "We considered it patently unjust to make these pipeline defendants serve longer sentences under a scheme that was completely repudiated by Congress. As the court found, doing so would have flouted the will of Congress, which called on the US Sentencing Commission to lower crack cocaine sentences 'as soon as practicable' after the Fair Sentencing Act was signed into law. Especially exciting is the fact that Justice Breyer's opinion for the majority recognized that people who were sentenced after August 3, 2010 to an old law sentence are eligible to seek relief in federal courts."

Washington, DC
United States

Why Is Clarence Aaron Still in Federal Prison? [FEATURE]

Sentenced nearly two decades ago to three life prison sentences for his peripheral role in a crack cocaine deal, Clarence Aaron became a poster child for the inequities and harshness of drug war policing and sentencing policies. His case has garnered attention in media outlets from PBS to Fox News, and he was featured in the 1999 PBS documentary "Snitch."

Clarence Aaron
Aaron, then a linebacker at Southern University in Baton Rouge, introduced the brother of a drug supplier to a cocaine dealer he knew from his high school days in Mobile and was present when a nine-pound cocaine deal went down. Despite his tangential involvement, when federal authorities busted the cocaine operation, Aaron ended up with by far the longest sentence of anyone involved, because the other players cooperated with the government and named him as a major player, and because he refused to testify against his friends.

Now, the 43-year-old Alabamian is becoming a poster child for yet another drug war inequity: the failure of the Justice Department's Office of the Pardon Attorney to promptly and accurately report to the president on requests for pardons and commutations.

In a pair of lengthy investigative reports, the most recent published last Saturday, ProPublica and the Washington Post revealed that when Aaron tried for commutation for a second time in 2008, Pardon Attorney Ronald Rodgers, who is still in the post, failed to convey critical information about his request to the Bush White House, including recommendations from the US Attorney and his sentencing judge that his application be granted. 

"I have reviewed various documents submitted by Clarence Aaron in support of his petition for commutation of sentence and agree that Aaron should receive a commutation of his life sentence," wrote US Attorney for the Southern District of Alabama Deborah Rhodes in her November 2008 memo to Rodgers.

US District Court Judge Charles Butler, Jr., also shifted from an earlier stance of neutrality on Aaron's request to one of support. "Looking through the prism of hindsight, and considering the many factors argued by the defendant that were not present at the time of his initial sentencing, one can argue that a less harsh sentence might have been more equitable," he wrote in response to a motion filed by Aaron’s attorneys.

Via a phone interview with the pardon office, Butler told staff attorney Samuel Morison that Aaron "should be granted relief" immediately by the president. Morison then sent an e-mail to Rodgers telling him what Butler had said and asking whether he should update Aaron's file with the new positions taken by the judge and the prosecutor. Rodgers responded by saying he would take care of it.

He didn't. Instead, he made no new recommendation to the White House and did not revise Aaron's file to reflect the new stances by the judge and prosecutor. Nor did he pass on years of favorable prison reports describing Aaron's rehabilitation or mention an affidavit Aaron filed with the pardons office in 2007 in which he expressed further remorse and asked "for a second chance to be a productive citizen."

The Bush administration, acting on the Office of the Pardon Attorney's recommendation, turned down Aaron's commutation request in December 2008.

When ProPublica showed the statements from the judge and prosecutor to Kenneth Lee, the White House lawyer working on Aaron's case, Lee was mind-boggled. He said that had he seen those statements, he would have recommended a commutation.

"This case was such a close call," Lee said. "We had been asking the pardons office to reconsider it all year. We made clear we were interested in this case."

Aaron isn't alone in getting sub-par treatment from the pardon office. ProPublica and the Post cited a former pardon office lawyer as saying some applicants have been turned down "en masse," with little or no review. But it gets worse. The first ProPublica and Post report on the pardon office, published in December, found that white offenders seeking pardons and commutations were four times more likely to receive them than black ones.

And, as the number of commutation requests has risen along with the prison population, the likelihood of actually winning one has been declining. It was one out of a hundred under Reagan and Clinton, but declined to little more than one out of a thousand under George Bush. President Obama so far has commuted the sentence of one person out of 3,800.

The Office of the Pardon Attorney has been backlogged for much of the last decade, and that may account for some of the problem. When Rodgers took over, he attempted to streamline the office to address the backlog. Instead of having office attorneys review and research each case, he turned them over to paralegals. The result was too often merely a pro forma review.

"The office types up a list of names, along with basic sentencing and offense information for each prisoner, and sends the list to the White House with a note that says the attached cases are meritless and should be denied," Morison said.

Rodgers reverted back to the old system in 2010, but that was too late for Clarence Aaron and the thousands of others summarily rejected by the pardon office. The apparent problems at the pardon office have sentencing advocates calling for changes.

"We need to see some change on several fronts," said Marc Mauer, executive director of the Sentencing Project. "First, the administration needs to look at what's happening or not happening at the Office of the Pardon Attorney, and some of that should include a rethinking of how the pardon process takes place. There are calls for an independent commission to make these recommendations to the president, not an entity within the Justice Department. That's at least worthy of consideration to see what the trade-offs are," he mused.

"Also, the White House should make it clear that to be consistent with its longstanding support or the reform of crack cocaine sentencing, there should be an examination of those older cases currently in prison," Mauer added. "They should consider recalculating those mandatory minimum sentences as if they were sentenced today, to put them in sync with the new law. That would not only be consistent, it could have a substantial effect on the federal prison population."

Mauer's first suggestion echoes one made by former Obama White House counsel Gregory Craig, who told an American Constitution Society panel on the pardons issue last week that the president could eliminate the pardon office by executive order. He suggested a bipartisan review panel reporting directly to the president.

"We cannot improve or strengthen the exercise of this power without taking it out of the Department of Justice," Craig said.

Families Against Mandatory Minimums (FAMM), which has championed Aaron's case as well as many others, called the ProPublica report "extremely disturbing but not surprising." The organization is calling for a congressional investigation and, on Monday, issued a sign-on letter to demonstrate public support for the call.

"Between this report and ProPublica's earlier report on the pardon process, the Pardon Attorney's office has been shown to willfully misrepresent the facts of commutation requests to the President and contribute to a racial imbalance among pardon recipients. The Pardon Attorney's office is not a gatekeeper but a brick wall," said FAMM president Julie Stewart. "Congress should investigate this egregious behavior immediately with oversight hearings. The entire clemency process should be removed from the Department of Justice's control. It is not in the president or the public's interest to have a Pardon Attorney's office that is captive to a prosecutorial agenda, doesn't take clemency cases seriously, and doesn't treat applicants fairly."

FAMM pointed to other cases it said suggested something was seriously wrong with the pardon office.

"We have long believed that the Pardon Attorney's case evaluations have been subjective and misleading," said Stewart. "Now we know that is true in the case of Clarence Aaron. Many other cases are suspect, too. President Obama denied a commutation to Barbara Scrivner, a low-level, nonviolent drug offender who has served 16 years of her 30-year sentence for her minor and addiction-driven role in her husband's methamphetamine activity. Did the Pardon Attorney ever inform President Obama of Scrivner's extraordinary rehabilitation and the support she had from the prosecutors who tried her, the judge who sentenced her, and her congressman? If someone with that much support cannot get a favorable recommendation from the Pardon Attorney, who can?" she asked.
 

"We learned there have been only 12 commutations in the past 12 years, and only one under this president, and at least one derailed under Bush," said FAMM general counsel Mary Price. "And then there are the problems with the pardons. There is a lot more to investigate. I don't see how lawmakers can come to the conclusion there's not a serious problem. Not only Congress, but the administration and the Justice Department ought to be taking notice of this and acting accordingly."

"The letter sent today demonstrates that this story is not going to go away and that DOJ cannot sweep the Office of the Pardon Attorney's disturbing behavior under the rug," said Stewart.

Whether the Obama administration or the Congress will be moved to act on these latest revelations remains to be seen. Meanwhile, Clarence Aaron sits in federal prison, where he will die if he does not win a commutation. He filed a new application in 2010. That one is still pending.

Washington, DC
United States

Missouri House Approves Crack Cocaine Sentencing Reform

The Missouri House of Representatives last Thursday approved reducing the sentencing disparity between crack and powder cocaine offenses. The move came as the House approved a larger judiciary bill, which now heads to the Senate.

Some cocaine is still more equal than other under a Missouri bill, but there is less of a sentencing disparity. (wikimedia.org)
The disparity in Missouri's crack sentencing law, adopted in 1989 in the midst of drug war hysteria, is the most extreme in the nation. Under the law, a person convicted of selling 2.5 grams of crack cocaine earns the same mandatory minimum 10-year prison sentence as someone selling 425 grams of powder cocaine.

Under the measure approved by the House, it would take the sale of 28 grams of crack to generate that same mandatory minimum sentence.

"I think it's a matter of fairness," House Speaker Steven Tilley (R-Perryville) explained.

The move to address the disparity gained traction after a Sentencing Project report last year highlighted the extreme nature of the Missouri disparity. "Harsh drug penalties like these are a contributing factor to the exceptionally high rates of incarceration and overcrowding in state prison facilities," the report noted.

While the measure had bipartisan support in the House with only one no vote, the judiciary bill's prospects in the Senate are unclear. The bill deals with a variety of other issues, ranging from fees for trial transcripts to guidelines to licensing foster care providers to making the St. Louis circuit clerk position an appointed one, rather than an elected one.

Columbia, MO
United States

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