By Earl Ofari Hutchinson, New America Media
WASHINGTON -- Illinois Senator Dick Durbin's Fairness in Sentencing Act 2009 is anything but fair to the thousands of inmates serving time for drug crimes in federal prisons. The Durbin bill, and the companion bill the House Judiciary Committee passed in July, will scrap the blatant racially biased sentencing for first time crack cocaine possession. The law currently requires that judges slap a minimum mandatory sentence of five years on anyone caught with crack cocaine. More than 80 percent of those sentenced for crack use are poor, ill-educated blacks. Those caught with the same amount of powdered cocaine, mostly whites, often middle-class and suburban, get probation and referrals to drug diversion programs.
The problem is that Durbin's bill and the House bill are not retroactive. The legislation doesn't require judges to take a second look at any of the sentences of those currently incarcerated for crack possession. This is not fair and it's not justice. The reason Durbin and the House committee took action on ending the sentencing disparities in the first place was because of the legions of terrible, heart-wrenching stories of mostly young, poor blacks who have been warehoused in America's jails in the past two decades for possessing crack.
Despite studies confirming that illicit drug use by African Americans is no greater than that of whites, black offenders are less likely to be offered a chance to plea bargain and more likely to fall under the federal or state mandatory minimum sentencing law. The escalation in black incarceration is the single major reason for the massive bulge in the number of inmates in federal prisons. The number has jumped four-fold since the late 1980s. More than half of them are there for drug crimes or other petty offenses.
When Congress enacted the dual drug sentencing 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 up many poor black neighborhoods. Police and terrified residents demanded a crackdown. But the law, which hammered poor blacks, had almost no effect on the drug lords and gave white drug users a relatively free legal pass.
The law has wreaked havoc beyond the prison system. It has debilitated many black communities and families. Women convicted of felony drug offenses are 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 and AIDS.
Every effort to modify the blatantly unfair mandatory minimum sentencing law for illicit drug abusers has failed. Former President Bill Clinton made a half-hearted effort in the mid-1990s to change the disparity in sentencing in Congress. Congress said no. President Bush and the Republican-controlled Congress flatly ruled out any move to change the law.
However, lawmakers did take note of the loud protests in 2005 from many federal judges who said that it was time to change the sentencing law. The judges were moved to protest in part out of outrage over the patently unfair disparity in sentencing drug offenders for virtually the same crime, and in even greater part out of deep resentment that the law hamstrung their discretion to impose sentences. Mandatory minimums were clearly a slap at their judicial power. In several judicial districts, judges quietly rebelled, bent the rules, and lightened sentences for some first time offenders.
Supreme Court Justices Stephen G. Breyer, Anthony M. Kennedy, and the late William Rehnquist publicly called for repealing or at least modifying, the law. The judges' outspoken advocacy in support of changing the laws drew a loud rebuke from then-Attorney General John Ashcroft. There were open threats to retaliate against the dissenting judges. The issue momentarily died down, and other than an occasional call from some members of the Congressional Black Caucus for hearings on the sentencing disparities, little more was said about changing the law in Congress during the remainder of Bush's second term.
President Obama's election re-opened the door on efforts to do away with the disparities. Obama has taken a guarded stance in support of changing the law. While he has not made it a priority of his administration, many in Congress have. But sadly, they have got it only partly right. In making no provision to offer relief to those who are already languishing in federal prisons under the racially skewed laws, Congress continues to mock the concept of equal protection under the law.
Earl Ofari Hutchinson is an author and political analyst. His forthcoming book, "How Obama Governed: The Year of Crisis and Challenge" (Middle Passage Press) will be released in January 2010.
Copyright © New America Media
THIS IS A BUNCH OF B-------. IF IT WOULD HAVE BEEN MORE WHITES THAN BLACKS THE LAW WOULD HAVE BEEN PASSED. THE HOUSE KNOWS THIS IS RACIAL AND ITS NOT RIGHT.I BET IF THEIR SON/DAUGHTER GET A POSSESSION CHARGE IT WONT BE A MANDATORY FIVE YEARS, IT WILL BE SWEPT UNDER THE RUG LIKE THE REST OF THEM IS. GOD IS GOOD AND WHEN JUDGEMENT DAY COME I WOULD LIKE TO KNOW THEIR ANSWER THEN
November 2, 2009 2:51 PM | Reply
The public defender assigned to my husband's situation, made a decision at desk level not to prepare and present a motion in his behalf for the Crack Amendment that was past in 2007. My husband has been incarcerated 13-years of his 15-years sentence now. I can’t afford a private attorney to prepare this motion and I am at my wits end as to what to do. If the motion is presented to a judge and he is turned down, so be it. It is torturous to have him spend so much as one day there if he doesn’t have to. He is a non violent offender with a stable situation to come home to and to be a productive person again. This Crack Amendment held so much hope for our family. As adults, we know about dealing with the reality of inequity in the system. But the children have been hoping so much that their father might possibly be home for them. It appears no matter what the law says, there are those at levels along the way that don’t agree with decisions made and have their own way of being nice, but doing nothing. Then there are those that seize the opportunity and for a price will assure you that they know the process and will "get things done", then nothing happens and the money is spent and there is always a good reason why, your impatience was the problem. The inmate and the families are being held hostage to the judicial systems foot soldiers and we don’t know which way to run turn. If there is anybody out there that can point the way, HELP, please.
November 3, 2009 9:48 PM | Reply
does anyone know as of right now oct 21st if the pres. passed the bill or not cause this affects alot of inmates in federal system.They need to reform these people instead of locking them up like animals and treated like one to by its goverment that we rely on to protect the safty of all. Now this is not protecting anyone a baby killer/molester gets out faster than if you have crack . whats wrong with this picture. But in all reality the gov. is trying to build there own Guantano Bay out here in the us. to harden the hearts of those in feds for these petty crimes. but go molest a child they get slapped in the hand andtold not to do it again/or kill a baby they are getting less time also. I don't understand the system. I know it's all the white man! cause I know the blacks,spanish the system is ment to bury the minoritys under there prisons. But no one see that the pres. and his administration are nothing but the biggest dealers in the nation and the biggest cartel they are nothing but gangsters in suits.
December 21, 2009 2:23 AM | Reply
This argument to equalize the punishment is totally ridiculous, and I'm already tired of reading about it-that law need not be changed! The fact that crack is cheap and therefore more available to the poor has nothing to do with it because crack is highly addictive to the rich and the poor alike, so poor people just need to find a new way to make $ without getting everyone hooked on super-addictive drugs for god's sake! I know which one is more addictive because I've tried them, and I hate coke! When you hit crack you go str8 to that heavenly whole body orgasm in like ten seconds and IMMEDIATELY want more and badly as it takes you to the same place a lot faster than coke, so of course it is more addictive! I'm enraged by people who argue that just because black people aren't as likely to actually use crack and are more likely to get busted selling it (or having it for an unknown reason-their case somehow merely "involves" crack-stupid defense), they don't deserve any harsh punishments. They won't taste their own medicine because they'd rather use addicts, who are willing to pay their outrageous prices, for $ and power! Why not contrast this idea with the one that Mexico had about why they should legalize small amounts of marijuana, cocaine, and heroine for personal use. They did that because they didn't want to continue to fill their jails with "people who have these addictions". In the same way, people who are busted with possessing coke or small amounts of crack for personal use in the USA may be offered rehab as part of a deferral program to help with their addiction because they are prone to use (5 grams is NOT a small amount of crack for personal use). But then we have these non-using, black, crack dealers! They don't get involved with crack because they have a substance abuse problem at all as half of them have never used it in their whole life; they only get involved with crack because they don't wanna work, and they wanna make free $ on the black market even though they know that it could be at the expense of their own freedom! They actually DECIDE to do that in spite of the well-known consequences. They're too smart to be foolish enough to use the addictive substance, but the truth is they're not smart enough to keep from getting set up and sent to prison for life for selling it to criminal informants like myself. They just need to go to jail for trying to mess everyone up for free $! And I think that the fact that they don't use makes their involvement with the substance less understandable and not more so! If the punishment for crack is so bad, why don't they just stop selling crack? Most white people find other, more productive, ways to make a living as they are less likely get caught in that net of justice because crack is an extremely addictive drug that is dangerous to get busted screwing around with and for good reason! They're always getting busted with it, yet statistics show they don't use it as much. So it's laughable to suggest that they should be offered any chance of drug treatment instead of prison. That will not fix them-they are sick, lazy people looking for any easy way OUT and using a hard substance that often ends up being an easy way IN to some hard time! It's not racial disparity, it's disparity against fools!
January 15, 2010 3:47 AM | Reply
wel i understand youre comment but at the same time. there is a problem with this situation about the drug law yes they should be punish but why lock them up for so many years instead of getting into drug class getting them into school so they wouldnt have to sell or as you put it make easy money. just like they made a choice to sell. you made the choice to buy. we all need direction into ours lifes i feel that if you have got the help through the system and still continue to keep messin up yes you should received more time but first time offender try to work on the situation not just leave them behind bars because were the ones paying money for each prisoner to sit on there ass and still be lazy put our money to work let us see a changed in the system because locking these fast money lifestyle attics up hasnt solve the problem as you see because if it has the chain will be broken so dont get yourself caught up in the white man system because there the ones that put this easy way of making fast money out to the black communtiy our young and old, black men and women are suffering so i feel that instead of locking them up for so many years letsw try to help them we all need to stay together to solve this situation. thank you.
January 24, 2010 4:44 PM | Reply
Well I have to say that based on the number of grammatical errors in your post, I would be very much suprized if you ever so much as graduated high school. I can't beleive that I was even able to follow it as it's riddled with fragments, improperly used contractions, and sometimes even the wrong words altogether! The funny thing is, though yours is by far the worst, it's not just you-virtually every single post on here looks like it was made by someone undereducated and who needs to learn how to write! I wouldn't even feel the need to comment were it not for the fact that EVERY SINGLE sentence in your post is either a fragment or run-on sentence! Having said that, I partially agree with you: people busted with crack should not have to do almost as much time as if they had killed someone especially in the case of a first offense, but drug classes WON'T WORK for people who only sell the substance! Not to mention that they all had the opportunity to better themselves with education/occupations but chose to play with fire and got burned, so who could genuinely feel sorry for them unless they somehow had no idea what they were getting into?
January 25, 2010 5:45 PM | Reply
I FEEL THAT IT'S NOT RIGHT TO BUT ALL THIS TIME ON THE DRUG OFFENDERS AND PETTY OFFENDERS, WHEN THEY GIVE THE SAME AMOUNT OF TIME TO THE ATTEMPTED MURDERERS AND LEAST TIME FOR THE SEX OFFENDERS. THEY SAY SELLING DRUG IS LIKE ATTEMPTED MURDER. BUT I FEEL LIKE IF THEY WANT TO DO DRUGS, THEY'RE COMMITTING SUICIDE. I'M NOT SAYING SELLING DRUGS IS RIGHT BECAUSE IT NOT. WHAT I'M SAYING IS ALL THAT TIME THEY GIVE IS UNNECESSARY. THEY TAKING THEM AWAY FROM THEY'RE FAMILY'S WHEN ALL THEY WAS TRYING TO DO IS PROVIDED FOR THEY'RE FAMILY. FOR SOME, ITS BEEN ROUGH AND THAT'S ALL THEY KNEW WAS TO DO THE WRONG THINGS. SO YES PUNISH THEM AND ALSO HELP THEM TO SEE THAT IT'S MORE TO LIFE THEN THE ILLEGAL WAY. GIVING ALL THAT TIME IS NOT HELPING, IT'S ACTUALLY MAKING MOST PEOPLE WORSE THAN BEFORE. SO YES PASS THE LAW AND HELP THESE PEOPLE OUT AND MAKE MORE ROOM FOR THE PEOPLE WHO DESERVE TO ME THERE. AND ALSO IF YOU'RE GOING TO LOCK UP THE DRUG DEALERS IT ONLY FAIR TO LOCK UP THE DRUG USERS. BECAUSE I JUST DON'T UNDERSTAND ITS OK TO DO DRUGS BUT ITS NOT OK TO PROVIDE. I FEEL BOTH SIDES OF THE TREE NEEDS HELP.
February 12, 2010 3:34 PM | Reply
My Grand-daughter is serving 7 years of a 10 year sentence. first offence of any kind. With her boyfriend, selling crack cocaine. His third offence. He is serving 9 years, of a 20 year sentence. What is wrong with this picture? My daughter and I have her baby to raise.The law should become retroactive for all first crack offenders. If they come out and do it again, stick them back in there forever. Federal and State.We can't afford an attorney, so we just sit and wait, hope ,and pray That This law will help us in some way.. I am not a racist,nor do I hate anyone.Justice should be served, but fairly for all..Even for old and young white women.
March 9, 2010 10:14 AM | Reply