Paper Title - Topic: The Forces that Drive Crack-Cocaine Sentencing Reform

-- By CarinaWallance - 09 Feb 2008

Who gets punished and how severely is not the product of an objective standard and application of criminal justice. Rather, it is a function of subjective judgments and interests that render the criminal justice system incapable of achieving its stated purpose. Crack-cocaine sentencing minimums are a form of cruel and unusual punishment that pervade our criminal justice system. Absent from the recent controversy over how to address the sentencing guidelines is a focus on the guidelines’ underlying injustice and racial discrimination. Instead, the development of crack-cocaine sentencing is driven by social forces – largely in the form of political actors and public fears.

Section I - Crack-cocaine sentencing: What the law does

Federal crack-cocaine mandatory minimum sentencing laws have denied equal protection and due process to black defendants since their enactment over 20 years ago. While crack-cocaine and powder cocaine are chemically identical and cause similar physical reactions, the sentences for possession and intent to distribute are disturbingly different. Under federal law, a conviction for selling 5 grams of crack-cocaine is subject to the same five-year mandatory minimum sentence as a conviction for selling 500 grams of powder cocaine. Put another way, it takes 100 times more powder cocaine than crack-cocaine to trigger the same mandatory minimum penalty.

While drug use rates are similar among racial groups (two-thirds of crack cocaine users in the U.S. are white or Hispanic), four of every five crack-cocaine defendants are black. In contrast, most powder cocaine convictions involve whites or Hispanics (USSC, Report to Congress: Cocaine and Federal Sentencing Policy (May 2007) 3). Thus, even though the offense characteristics of crack-cocaine violations are comparable to those of powder cocaine violations, by virtue of the 100-1 ratio, black defendants receive vastly harsher sentences.

• But you've characterized this as a constitutional violation, which from a legal point of view is hardly an easy position to justify, inasmuch as no court has ever accepted it. This is not a "disparate treatment" claim, in which black criminal defendants are treated differently than white ones; this is a "differential effects" problem, in which--lacking proof of discriminatory intent--a fourteenth amendment claim (or a derivative claim under the non-existent equal protection clause of the fifth amendment) has been held to fail throughout your lifetime. See Washington v. Davis, 426 US 229 (1976). The history of this problem is accordingly the history of attempts to get a legislative solution to a problem of legislative misperception. You either needed to justify your constitutional conclusion, or abandon it.

Section II - The Forces of "Progress"

On Tuesday, the Senate Democrats rejected Attorney General Michael Mukasey’s request to block the U.S. Sentencing Commission’s amendment that retroactively granted eligibility for reduced sentences to people already convicted of crack-cocaine offenses. While this is an important step, the reductions are only minor and follow over 10 years of repeated Congressional refusal to accede to the Commission’s requests to reduce the quantity disparity between the two forms of cocaine. The Commission’s proposed amendment only marginally reduces average crack-cocaine sentences by about one-quarter, resulting in sentences that are still 2 to 5 times longer than those triggered by the equivalent amount of powder cocaine.

Subsection II(a) Judicial Discretion

The current momentum towards sentencing reform stems in large part from an effort to preserve judicial discretion and to relieve the overburdened prison systems. Recent Supreme Court decisions, namely the crack-cocaine case Kimbrough v. United States, have restored federal judges to their central role in criminal sentencing by granting them the discretion to impose what they determine to be reasonable sentences, even when doing so departs with the sentencing guidelines. The central objective of these developments is to strip government prosecutors of the expansive power they maintain under mandatory sentencing policies and return the judge to his role as the distributor of justice. While affirmation of judicial discretion generally represents a move towards more equitable sentencing terms, it is the power-struggle between judges and prosecutors for the courtroom, and not the undue and racially discriminatory effects of the sentencing guidelines that ultimately drive this process.

Subsection II(b) Prison Costs and Population

Similarly, the enactment of the Commission’s proposed amendment is in large part a response to the unmanageable costs and overcrowding of prisons that plague the American government. The prison population in the United States exceeds 2 million and continues to grow at one of the world’s fastest rates. Drug offenders account for over half of the federal prison population. Retroactive enactment of the Commission’s proposed amendment would make 19,500 crack cocaine offenders eligible for reduced sentences.

Section III - Opposition: Political Actors and Public Fear

On the other side, public fear and misinformation, fed by the media and political officials, have impeded the development of substantive sentencing reform. Mukasey, speaking before the House Judiciary Committee last week, sought to capitalize on this fear by gravely overestimating and mischaracterizing the consequences of retroactively limiting prison terms. While apparently willing to permit reduction of federal prison terms for first time, nonviolent offenders, Mukasey uses alarmist and misleading rhetoric to argue that the Commission’s amendments should be blocked since they will fill our communities with violent gang members and clog up the courts. “Unless Congress acts by the March 3 deadlines, nearly 1,600 convicted crack dealers, many of them violent gang members, will be eligible for immediate release into communities nationwide,” Mukasey warned.

According to this “logic,” after years of implementing racially discriminatory policy in the sentencing penalties, now the criminal justice system is incapable of properly responding to the grave injustice that it has created.

• Maybe, but giving retroactive effect to constitutional remedies where the consequence is large-scale jail delivery, even where the constitutional wrong has been adjudicated, has been optional since long before you were born. See Linkletter v. Walker, 381 US 618 (1965); Stone v. Powell, 428 US 465 (1976). So this argument is just rhetoric, not law.

Mukasey ignores the fact that under the guidelines eligible inmates would have their petitions for release heard by a federal judge who would evaluate their ability to reenter society. Furthermore, the total impact is expected to occur incrementally over the course of 30 years due to the limited nature of the amendment. (USSC, Press Release, December 11, 2007).

• NO. On this evidence, Mukasey is not ignoring anything. He says 1,600 out of almost 20,000 would be eligible to apply for release immediately. That's not self-evidently false and is probably true. He says reviewing judges would have little legal ground not to release such applicants, and that their probability of future dangerousness could certainly not be used to hold them. Once again, that's not obviously false and is probably true. Your criticism is untenable.

Conclusion

The pursuit of justice and equality form, at best, the distant backdrop of the development of crack-cocaine sentencing reform – one on which the proponents of reform can conveniently draw to advance their more immediate concerns. Recent changes do represent progress – albeit minimal – in alleviating the cruel and unusual punishment for crack-cocaine offenses.

• Assuming that the sentences handed out for crack cocaine distribution are irrationally disproportionate, how did you manage to conclude that they are therefore cruel and unusual punishment? See Solem v. Helm, 463 US 277 (1983).

However, the determinative role played by social and political forces suggests that fairness and equity constitute not the unshakable foundation of the criminal justice system, but merely ideals that can be reduced to rhetorical tools at the players’ disposal.

• This isn't the conclusion one expects. The essay itself levies any number of constitutional claims that--as I have indicated--were not carefully edited for legal accuracy and are not sustainable in their current form. So have we here claims about fairness and equity that, rather than being law, are reduced to rhetorical tools at the essayist's disposal?