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Drug-Sentencing Disparities


As many as 12,000 inmates in federal prison could soon be released early including 1,800 who are eligible for immediate release thanks to the U.S. Sentencing Commissions vote earlier this year to provide retroactive application of the Fair Sentencing Act that was passed by Congress last year. The new policy took effect on November1.

Does that mean that murderers and armed robbers will now be roaming the streets to prey on us? Not at all. The prisoners eligible for early release are those incarcerated for the crime of possessing drugs.

The Anti-Drug Abuse Act of 1986 established, among other punishments for drug crimes, a disparity of 100:1 between federal penalties for crack cocaine and powder cocaine. The Act also instituted a five-year mandatory minimum sentence for first-time possession of five grams of crack cocaine.

Critics of the Act have viewed the disparity as racially discriminatory because black drug offenders are more likely to be charged with crack possession and therefore serve longer prison terms than white offenders.

After numerous legal challenges, proposed legislation, and recommendations over the years to reduce this sentencing disparity, the Fair Sentencing Act (S.1789) was passed by the U.S. Senate on March17, 2010, by unanimous consent, and by the House of Representatives on July27, 2010, by voice vote. The bill became Public Law111-220 after being signed by Barack Obama on August3, 2010.

The Fair Sentencing Act amended the Controlled Substances Act by increasing the amount of crack cocaine required for the imposition of mandatory minimum prison terms for trafficking (from 5 to 28 grams) and directed the U.S. Sentencing Commission to, among other things, promulgate guidelines, policy statements, or amendments required by this Act as soon as practicable, but not later than 90 days after the enactment of this Act.

On October15, 2010, the U.S. Sentencing Commission voted to amend federal sentencing guidelines to reflect the changes made by the Fair Sentencing Act. On June30, 2011, the Commission voted to make the changes retroactive beginning on November1, 2011.

The sentencing disparity for possessing crack versus powder cocaine is now 18:1 instead of 100:1. The average federal sentence for crack cocaine offenses will still be about 127 months, according to Judge PattiB. Saris of the Federal District Court in Boston.

But that is not good enough, according to opponents of the Fair Sentencing Act.

Predictably, the Fraternal Order of Police and the National Sheriffs Association opposed the Act. The NSA even supported increasing the prison sentence for powder cocaine rather than significantly reducing the sentence for crack cocaine.

Lamar Smith (R-Tex.), House Judiciary Committee chairman, actually argued that the Act would hurt minorities instead of eliminate the institutionalized racism that the sentencing disparities have engendered:

Why would we want to reduce the penalties for crack cocaine trafficking and invite a return to a time when cocaine ravaged our communities, especially minority communities? This bill sends the wrong message to drug dealers and those who traffic in destroying Americans lives. It sends the message that Congress takes drug crimes less seriously than they did. The bill before us threatens to return America to the days when crack cocaine corroded the minds and bodies of our children, decimated a generation, and destroyed communities.

Smith has also expressed his opposition to a bill (H.R.2306) coauthored by Ron Paul, the Ending Federal Marijuana Prohibition Act of 2011, that would end the federal ban on marijuana.

Drug warriors aren’t happy about the retroactive application of the Fair Sentencing Act, either.

William Otis, a former federal prosecutor and special White House counsel under George H.W. Bush, maintained that the early releases would inevitably lead to more crime.

Lamar Smith issued a statement expressing his disapproval:

Nothing in the Act nor in the congressional record implies that Congress ever intended that the new crack cocaine guidelines should be applied retroactively. And yet, the Sentencing Commission may release thousands of crack traffickers before they have fully served their sentences.

The war on drugs has made criminals out of many otherwise law-abiding Americans and unnecessarily swelled prison populations.

The DEA made almost 31,000 arrests last year. According to the FBI’s latest Crime in the United States, report, more than 1.6million Americans were arrested on drug charges in 2010, with almost half of those arrests just for marijuana possession. There is one drug arrest in the United States every 19 seconds.

The United States leads the world in the incarceration rate and in the total prison population. According to the Department of Justices Bureau of Justice Statistics Bulletin Prisoners in 2009 (the latest year available), there were, on December31, 2009, 1,613,740 prisoners under the jurisdiction of state or federal correctional authorities, with 1,405,622 in state prisons and 208,118 in federal prisons. Almost 20percent of the state prison population are incarcerated because of drug charges. Almost half of the federal prison population are incarcerated because of drug charges. There are almost 350,000 Americans in state or federal prison at this moment because of drug charges.

Some members of law enforcement oppose the liberty-destroying war on drugs. Law Enforcement against Prohibition, or LEAP, is an international organization of criminal-justice professionals who favor a repeal of drug-prohibition laws. In Sacramento, California, A group of police officers, prosecutors, judges, and other criminal-justice professionals have endorsed the Regulate Marijuana Like Wine Act of 2012, a ballot initiative to end marijuana prohibition in California and regulate the sale of marijuana the same way the wine industry is regulated.

By means of the Controlled Substances Act of 1970, the federal government has classified hundreds of drugs as controlled substances and ranked them on five schedules on the basis of their potential for abuse and currently accepted medical uses. The well-known drugs diacetylmorphine (heroin); d-lysergic acid diethylamide (LSD); marijuana; 3,4-methylenedioxymethamphetamine (ecstasy); and methamphetamine (meth) are classified as Schedule I controlled substances, while drugs such as amphetamine (speed), morphine, oxycodone (OxyContin), and cocaine are classified as Schedule II controlled substances.

Although most illicit drugs are used for the same basic purpose (to get high or alter the mood in some way), there are a myriad of penalties for mere possession, or possession without a prescription, of the various controlled substances and trafficking or dealing (terms the government uses instead of selling to make them sound ominous) in controlled substances. Sentences can vary widely depending on the drug type and amount, along with other mitigating circumstances. That is, sentencing for drug crimes is extremely arbitrary in nature like the sentencing disparity for crack and powder cocaine that was just reduced.

Trafficking in Schedule I drugs, even for first-time, nonviolent offenders, can result in a defendants being put away in prison longer than hijacking, kidnapping, or rape when multiple sales are stacked in one proceeding, and especially when a gun is found on the defendant, whether he brandished it or not.

In the case of United States v. Angelos (2006), Weldon Angelo’s was accused of selling marijuana to a police informant on several occasions over a period of a few weeks. Because of the mandatory minimum sentences for possessing a firearm during a drug deal, Angelo’s who had no prior convictions was sentenced to 55 years of mandatory prison time in addition to the drug charges, which were later reduced to one day. And because there is no parole in the federal prison system, he effectively received a life sentence for selling marijuana. He lost on appeal, the Supreme Court declined to hear the case, and a federal judge denied his request for a new trial.

Federal judge Roger Vinson, expressing his concern over an earlier similar case in which a defendant receiving an additional 45 years in prison because he possessed a gun during a series of controlled buys, reasoned that because the case involved controlled buys, the government had complete and unfettered discretion to increase the defendants mandatory time by prolonging the investigation and making more buys.

The solution to all of this madness in drug sentencing has nothing to do with reducing the sentences for crack cocaine possession, or increasing the sentences for powder cocaine possession, to eliminate disparity and racism. Nor does it have anything to do with reducing mandatory minimum sentences or eliminating stacking. And neither does it have anything to do with making or not making any sentencing guidelines retroactive.

The war on drugs is a monstrous evil that has undoubtedly ruined more lives than drugs themselves. Thousands of Americans (about 93 percent of them men) are locked in cages where they face rape, humiliation, financial ruin, the loss of the their families, and a criminal record that will haunt them the rest of their life for the crime of possessing or selling a substance the government doesn’t approve of.

Does this mean that prisoners who have committed violence to person or property in conjunction with their drug crime should be released? Not at all. Persons who commit acts of violence whether drugs are involved are not should suffer the consequences of their actions. But anyone in prison merely for possessing or dealing drugs should be released immediately, as should everyone else imprisoned for victimless crimes.

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