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