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Crack_race1.pdf

Michael Hallstone, Ph.D. hallston@hawaii.edu

Crack and Race Lecture Sources Duster, Troy 1997 “Pattern, Purpose, and Race in the Drug War: The Crisis of Credibility in Criminal Justice” in Crack in America:

Demon Drugs and Social Justice. Reinarman and Levine (eds.) Los Angeles: University of California Press: 260-287.

Sentencing Project 2008 “Federal Crack Sentencing” Sentencing Project, Washington, DC. Available online

http://www.sentencingproject.org/Admin/Documents/publications/dp_cracksentencing.pdf 2000 “Facts about Prisons and Prisoners” Fact sheet put out by the Sentencing Project, Washington, DC. Available

online www.sentencingproject.org. 1997 “Intended and Unintended Consequences: State Racial Disparities in Imprisonment, Marc Mauer” Fact sheet

put out by the Sentencing Project, Washington, DC. Available online www.sentencingproject.org/policy/9050.htm.

1995 “Young Black Americans and the Criminal Justice System: Five Years Later, by Marc Mauer and Tracy Huling

Fact sheet put out by the Sentencing Project, Washington, DC. Available online www.sentencingproject.org/policy/9070.htm.

US Sentencing Commission (1998-2004) “Source Book for Federal Sentencing” http://www.ussc.gov/annrpts.htm Reinarman, C., and H. G. Levine, 2004. "Crack in the Rearview Mirror: Deconstructing Drug War Mythology." Social

Justice, 31.

Introduction

With the Anti-Drug Abuse Act of 1986, Congress passed a slew of federal drug laws with stiff

penalties. This is sort of unique, in terms of the way the US Constitution, and indeed the country, was

created. There were 13 colonies and each had it’s own functioning criminal justice system. As such

street crimes were meant to be handled by the individual states. Indeed, for almost all crimes you can

think of you would be prosecuted by the state government and not the federal government. You

would be tried in a state court and sent to a state prison. In the 1980’s this all changed, with the

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Race and Crack Cocaine

Federal Sentences for Crack and Racial Discrimination

source:http://www.hbo.com/thewire/img/episodeguide/season04/ep39_05.jpg

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dramatic expansion of federal drug crimes and of people serving time in federal prison for those

crimes. But to be sure, the vast majority of drug felons serve time in state prisons. It just so happens

that the federal laws for crack created huge racial disparities in federal prisons, and this is the topic of

this lecture.

So, what is strange about the Anti-Drug Abuse Act of 1986 is that it created a whole new duplicate set

of drug dealing laws. Before this law, drug dealers could only be charged by the state criminal justice

system in which the drug dealing occurred. So if a person was caught dealing cocaine in Hawaii they

would be charged under Hawaii Law in a Hawaii state court and if convicted sent to a Hawaii state

prison. The Act created a sort of “double-jeopardy” in that now a person caught dealing 5 grams of

crack cocaine in Hawaii could be charged both under Hawaii law and under a new set of federal laws.

So the Act created a whole new set of duplicate federal laws whereby a person caught dealing 5

grams of crack cocaine in Hawaii could also be charged by federal laws, convicted in a federal court,

and sentenced to serve time in a federal prison for the exact same crime. It just so happens, that for

the most part the new federal drug laws had stiffer penalties, and that states were for the most part

happy to shift the costs of these prosecutions and prison terms to the federal government.

As mentioned above, this federal duplication of a crime is quite unique and is somewhat contrary to

the way the framers of the US Constitution intended; street crimes were meant to be handled the

individual states and the federal government was only to pass criminal laws where there was an

abiding federal interest [i.e. immigration law, treason, etc.] or when there was a conflict [committing

crimes across state borders].

Why we use only federal prison data in this lecture

So, based upon the fact that each of the 50 states currently have there own laws prohibiting selling

crack cocaine, it should come as no surprise that there are a whole lot of people sitting in state

prisons for the crime. It is beyond the scope of this lecture to include statistics for crack all state

prison systems by race for what I hope are obvious reasons. [There is no single source that has

compiled these statistics to my knowledge. It would take many many hours to track down these

statistics from the individual states.]

Federal Drug Penalties

l  Note that crack amounts have been lowered but this was after 5 grams caused racial disparities in those incarcerated for federal crack charges

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However, compilation of these data are done for us in FEDERAL PRISONS by the US Sentencing

Commission on an annual basis. Federal Prisons have grown dramatically over the span of the War

on Drugs, primarily due to a whole new set of federal drug crimes enacted in the 1980’s [which carry

very long prison sentences].

So in practice this means that person who is arrested for possessing enough drugs is eligible for both

state and/or federal law, is likely to be prosecuted by the federal criminal justice system [if the federal

drug penalties are more severe]. Below is a table that describes the amount of drugs a person must

be caught with in order to be prosecuted by the feds and thus be sent to a federal prison for drugs

A few examples of amounts needed to be eligible for federal penalties (downloaded 1/7/2012)

drug minimum amount to be

eligible for federal offense 1st offense 2nd offense

cocaine 500 grams (approx 1lb)

At least 5 no more than 40 years (5-40 years)

At least 10 not more than life in prison (10 years to life in prison)

crack cocaine

28 grams* (about 1 ounce) *recently raised from only 5

grams

5-40 years 10 years to life

Heroin 100 grams 5-40 years 10 years to life "Meth" 5 grams (about ¼ ounce) 5-40 years 10 years to life

Marijuana 10 kg (20.2 lbs) hash or 50 kg

mixture Not more than 20 years Not more than 30 years

Marijuana 100 (202 lbs) kg or 100 plants 5-40 years 10 to life in prison

Marijuana 1000 kg (2020 lbs) or 1,000

plants At least 10 years not more

than life in prison 20 years to life

Marijuana 1 to 49 plants Not more than 5 years Not more than 10 years

What is Crack and How Did It Become popular

Crack vs. Powder

Cocaine became popular in the US in the 1970’s era and was viewed as a “rich man’s” drug and

most users snorted powdered cocaine. [There was some injecting and smoking via “free-basing” but

it was, as now, not a very popular way to ingest the drug.] Crack is nothing more than powdered

cocaine that has been turned into “rocks” that can be smoked. Turning powdered cocaine into

freebase cocaine [also smoked] requires very volatile, highly flammable chemicals. Making crack is

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Crack vs. Powdered Cocaine

l Defining Crack vs. Powdered Cocaine l Myth �Crack is Cheaper�

–  Marketing Innovation l Pharmacology of Crack, Bingeing, and

High Sales l Demonizing Crack and Stiff Federal

Penalties

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very simple and requires using only cocaine powder, a common household cooking ingredient, water,

and heat. The underlying drug in crack and powdered cocaine are the same. Crack is merely

reconstituted powdered cocaine – powdered cocaine turned into rocks that can be smoked.

Crack is not cheaper and is a marketing phenomenon or innovation

There is [or was] a myth that “crack was cheaper than cocaine.” Actually, the notion of crack being

cheaper is merely a function of marketing. Since crack is created from powdered cocaine, it cannot

be “cheaper” than it’s raw product. Crack was merely sold in SMALLER DOSES than powdered

cocaine in the past. In the 1970’s era powdered cocaine was traditionally sold in units of $100 a gram

and was thus viewed as a “rich man’s” drug. The traditional “retail sale” was $100 or maybe $50 for

a half gram –a considerable amount of money. Reinarman and Levine write,

Crack was also new in a second and perhaps more important sense. Unlike

powder cocaine, which was typically sold in half-gram or one-gram units for $50

to $100 in the mid-1980s, crack was sold in small “rocks” for $5 to $10. Whereas

powder cocaine tended to be used in private settings among more affluent people,

crack was sold by and to a whole new class of people on inner-city street corners.

In short, crack was a marketing innovation, not a new drug (Reinarman and Levine, 2004: 184).

While crack use never turned into the “epidemic” or “plague” warned about in media reports, crack

use (and sales) did experience a wave of popularity in inner city ghettos, where the “extreme users”

seeking “extreme highs” have always gravitated.

But, all of a sudden instead of needing $100 to get high, street dealers were selling small amounts of

cocaine. So now to get high you need only to come up with $10, or $20, etc. Thus crack cocaine is

not cheaper than powdered cocaine, it is just sold in smaller amounts.

Pharmacology of crack creates high use and high sales

Smoking cocaine provides a quicker transfer of the drug to the bloodstream than snorting (Morgan

and Zimmer, 1997), creating a high that most users describe as shorter in duration, but more intense

and euphoric; indeed some users describe the crack high as similar to a sexual orgasm (Waldorf,

Reinarman, and Murphy, 1991; Williams, 1992). Equally important, the “crash” or “down” following

the intense high can be more rapid and intense when one is smoking cocaine, especially during

bingeing episodes which are more prevalent with smokers (Waldorf, Reinarman, and Murphy, 1991).

Chasing this transient but seductive and enchanting high (and or trying to avoid the crash or “running

from the low”) causes many cocaine smokers to ingest a considerable amount of cocaine in short

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periods of time; some report smoking binges that would last as long as they had a supply of cocaine

(Waldorf, Reinarman, and Murphy, 1991; Williams, 1992). Because of this phenomenon, a crack

habit can be incredibly expensive.

So crack sales were profitable for this reason. Inner city drug dealers sold it and it was a “good

business” for the reasons described above: people on a crack binge can go through a lot of cocaine in

a small amount of time. Think about it: if a person uses a lot of crack cocaine, they buy a lot of crack

cocaine – selling crack (especially in small retail amounts) is a profitable business.

Demonization of Crack leads to stiff federal penalties

Cocaine was undoubtedly the most publicized drug of the War on Drugs. Cocaine, especially crack,

exploded on the national scene in 1986 (Reinarman and Levine, 1989) and quickly replaced

marijuana as the “new and improved” drug villain. Two Presidents gave nationally televised

addresses to extol its evils. Horror stories and descriptions of its ill effects were widely disseminated

by both politicians and the media; politicians publicly challenged each other to take urine tests;

cocaine was blamed for a myriad of social problems, such as violent crime, youth gang violence,

unemployment, and poverty (Trebach & Zeese,1990; Waldorf, Reinarman, and Murphy, 1991;

Reinarman and Levine, 1989).

These lurid images of crack led politicians [especially federal politicians] to create stiffer federal

penalties for crack described in this lecture.

Growth in Federal Systems during the War on Drugs

There has been exponential growth in our federal prisons over the span of the War on Drugs; the Anti

Drug Abuse Act of 1986 created federal penalties for all drug crimes, but as we will see over the

course of this lecture, they created huge differences between the minimum amount of crack cocaine

vs. powder cocaine needed to be eligible for a federal drug offense. When the law was enacted you

only needed 5 grams of crack to be eligible for “at least 5 years” in federal prison; you needed 100

times more powdered cocaine (500 grams) to be eligible for the same 5 years in prison.

This “at least five years” in prison for 5 grams of crack stood for over 25 years and helped create

tremendous racial disparities in federal prisons for crack offenders (discussed below). The minimum

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Growth in Federal Prisons during War on Drugs

% of Federal Prisoners for Drug Offenses

0%10%

20%30%

40%50%

60%70%

1980 1985 1990 1995 1999 2000 2003 2006

% of prisoners

year %

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amount has been raised 28 grams of crack. The Fair Sentencing Act of 2010 (Pub. L. No. 111–

220),signed by the President on August 3, 2010 (and implemented on April 6, 2011), raised the

minimum amount of crack to 28 grams.

Furthermore, these have led to huge racial disparities in our Federal Prison systems as Blacks have

been the overwhelming majority of prisoners sentenced for crack offenses.

Growth in Federal Prisons for Drug Convictions

The growth in federal prisons for drug convictions has been staggering. In 1980: 25% in federal

prison on drug charges, 1992: 58%, 1996: 60% , 57% in 2000, 55% in 2003, and 53% in 2006(1996

data from Sentencing Project, 2000, 2000, 2003, and 2006 data from “Prisoners in 2006)

Percent of Federal Prisoners Who Are Drug Offenders

Year % 1980 25% 1985 34% 1990 53% 1995 59% 1999 57% 2000 57% 2003 55% 2006 53%

Note: The reason for the lowering of the percentage of drug users since 2003 seems to be related to two things: other offenses related to drugs (such as weapons charges) and growth in immigration offenses since “9/11.” This is hard to determine as the federal report started adding new offenses in the early 2000’s. So it is hard to track over time now.

% of Federal Prisoners for Drug Offenses

0%10%

20%30%

40%50%

60%70%

1980 1985 1990 1995 1999 2000 2003 2006

% of prisoners

year %

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By the way: 1 in 4 jail inmates in 1989 in for drug offense compared to 1 in 10 in 1983, drug offenders

23% of state prison inmates in 1996 (Sentencing Project, 2000)

Federal Penalties for Crack vs. Powder Cocaine prior to change

This section describes how the 5 grams of crack cocaine led to racial disparities in federal prisons; in

plain English in the 20+ years that the 5 gram rule was in effect [approx 1986 to 2011], blacks and

Hispanics were vastly over represented for the crack possession in federal prisons. The data

presented below are what led to the eventual change in the law, increasing the minimum amount of

crack from 5 to 28 grams in 2011. It remains to be seen whether or not the 28 gram rule will eliminate

racial disparities over time.

The 1986 law made crack offenses “100 times” more severe for crack, compared to powdered

cocaine responding the sense of “crisis” or “epidemic” around crack that had begun in the summer of

1986. Figures below represent the 100:1 ratios. (The way to think of it is it took 100 times more

powdered cocaine than crack cocaine to trigger the same federal penalty.)

5 year mandatory minimum sentences

5 grams* of crack (~10-50 doses) = 5 year mandatory minimum sentence

500 grams of powdered cocaine (~2,500-5,000 doses) = 5 year mandatory minimum sentence

now been changed to 28g (~56-280 doses) which still is not a large amount compared to powdered

cocaine

10 year mandatory minimum sentences

50 grams of crack (100-5000 doses) = 10 year mandatory minimum sentence

5,000 grams of powdered cocaine (25,000-50,000 doses) = 10 year mandatory minimum

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Federal Prison Sentences for Crack vs. Powdered Cocaine

Original 5 year mandatory minimum sentences l  5 grams of crack (10-50 doses) = 5 year mandatory

minimum sentence [now 28 grams or 1 ounce] –  5 g = “100x more punitive” notion

l  500 grams of powdered cocaine (2,500-5,000 doses) = 5 year mandatory minimum sentence

10 year mandatory minimum sentences l  50 grams of crack (100-5000 doses) = 10 year

mandatory minimum sentence l  5,000 grams of powdered cocaine (25,000-50,000

doses) = 10 year mandatory minimum sentence

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100:1 ratio led to longer average sentences for crack

Average crack sentences are about 3 years longer than for powdered cocaine. For Quantities of less

than 25 grams the average sentence is 14 vs. 65 months.

SIDE NOTE: Sentences for crack cocaine are also nearly two years longer than for methamphetamine and four years longer than for heroin. Crack cocaine is also the only drug that carries a mandatory prison sentence for a first-time possession offense. A person convicted in federal court of simple possession of 5 grams of crack is subject to a mandatory five-year prison term while a person convicted of possessing 5 grams of powder will probably receive a probation sentence. In fact, the maximum sentence for simple possession of any other drug, be it powder cocaine or heroin, is one year in prison.

Sentences designed to punish “high level dealers” – are they?

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Longer Crack Sentences

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Average Drug Quantities in Federal Cocaine Cases

Average crack case triggers a 10 year mandatory minimum while the average powdered cocaine case does not even trigger the 5 year sentence [the lowest mandatory minimum sentence in federal drug sentencing guidelines.

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The following quote says it all,

“The federal sentencing laws Congress passed in the 1980s were intended to impose tough sentences on high-level drug market operators, such as manufacturers or heads of organizations distributing large quantities of narcotics, and serious traffickers with a substantial drug-trade business. However, the weights attached to the sentences failed to capture the different roles within the crack trade. As research from the Commission has shown, the 5 grams of crack set by Congress as the trigger for a five-year mandatory sentence is not a quantity associated with mid-level, much less serious, traffickers. The median drug quantity for a crack cocaine street level dealer charged in federal court (comprising two-thirds of federal crack defendants) in 2000 was 52 grams, enough to trigger a 10-year mandatory sentence. For powder cocaine, the median quantity for a street level dealer was 340 grams, not enough even to trigger the 5-year sentence.” (Sentencing Project 2008: 3)

This means that crack offenses are punishing mainly “low level” drug dealers

Low level crack dealers represent more than 60% of federal crack defendants. “The unfortunate

reality, according to the Commission, is that crack cocaine penalties “apply most often to offenders

who perform low-level trafficking functions, wield little decision-making authority, and have limited

responsibility.” So in plain English the crack laws were designed to capture “big time” dealers and the

figure below illustrates that the laws have achieved quite the opposite - most are simply street level

dealers (note: I am guessing the second biggest category below – wholesaler – is merely one step

above the street dealer, or the person who sells the to street level dealer).

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Targeting �High Level� Dealers?

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What does “over-representation” or “under-representation mean?”

The one of the main points of this lecture is that blacks are over represented in federal prisons for

crack offenses. Here is what it means. Pretend that people with brown hair constitute 20% of the

general population. Now if our criminal justice system is unbiased and convicts people equally, then

20% of the prison population should have brown hair. If less than 20% of the people in prison have

brown hair, brown-haired people are under-represented. If more than 20% have brown hair in prison,

then they are over-represented.

So below you will see that over 80% of crack defendants are black. But blacks make up only about

14% of the general population but over 80% of crack defendants in prison. This means that

“something is going on” with race and catching crack dealers. If blacks make up only about 14% of

the general population, then “all things being equal” they should make up about 14% of crack

defendants in prison – yet they make up over 80%. This means blacks are “over represented” for

crack offenses in prison.

Racial Impact of Crack Sentencing

So blacks make up about 14% of the US population but over 80% of crack defendants. This means

they are over represented for crack offenses. [By the way, clearly Hispanics are over represented

for powdered cocaine offenses]. The Sentencing Project article points out that although 80% of crack

defendants are black, approximately 2/3 [66%] of all crack users are White or Hispanic and drug

users typically buy from sellers within their own racial group (Sentencing Project, 2008).

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Racial Impact of Crack Sentences

What does “over representation” mean?

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These figures are made more compelling by the following quote,

African American drug defendants have a 20 percent greater chance of being sentenced to prison than white drug defendants. Between 1994 and 2003, the average time served by African Americans for drug offenses increased by 62 percent, compared to an increase of 17 percent for white drug offenders.9 Moreover, African Americans now serve virtually as much time in prison for a drug offense (58.7 months) as whites do for a violent offense (61.7 months). As a result, the Commission reported in 2004 that “[r]evising the crack cocaine thresholds would better reduce the [sentencing] gap than any other single policy change, and it would dramatically improve the fairness of the federal sentencing system.”

(Sentencing Project, 2008: 4)

I’m confident this report had much to do with the eventual change in 2011-2012 from 5 to 28 grams of

crack (see above).

Troy Duster: Why Did Blacks End Up The Primary Victims of the Crack War?

Duster argues the primary ‘causalities’ of the War on Drugs have been poor inner city blacks and

Latinos. Furthermore, when you look at crack, Blacks have been the primary victims. I have updated

data above to bolster his argument (published in 1997). So clearly, blacks are being punished more

frequently by the super harsh crack laws.

Quick summary of his argument:

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Duster Explains Why

l Economic Changes in Inner City l Police focus on Street Level Drug Sales

–  Obvious practical reasons (not a simple �conspiracy�

l Harsher Penalties for Crack –  Which tends to be dealt �on the street� in Inner

City by blacks

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• increased participation of young black males in street level drug sales of the “new

underground economy” due to changes in US economy.

• Selectively enforcing drug laws on street level sales. This makes it more likely that blacks

will get caught up in the net of the criminal justice system.

• Penalties for crack harsher than for powdered cocaine. (Falls on blacks because they are

more likely to use and sell crack as compared to whites.)

Changing US Economy hurt blacks more than whites.

Essentially the argument is that the US economy has changed from an industrial production based to

service based which has hurt blacks (and Latinos) residing in the inner cities far worse than whites

[who have a better “fit” into the service economy].

Industry has left country and the inner city, reducing employment opportunities of blacks who live

there and decimating tax bases in these communities eroding education, services, etc. Hawaii is

unique as the tax base for education and social services, police, jails, etc. tend to be “state-based,”

but on the mainland services and school systems are funded by “county level” government [with

some help from state and feds]. So a community’s vitality is dependent upon good jobs to pay local

sales taxes and especially property taxes. Good paying jobs help fund local tax coffers (the pot of

money from taxes that is used by government to pay for things).

In the past 50 years or so, good paying blue collar manufacturing jobs have left the US in droves. As

these jobs left, the communities had more people “needing help,” but since their tax base was eroding

(less people to spend money for sales taxes and own a home and pay property taxes), the ability to

help them via spending on social services (including welfare) and education a vicious cycle

developed. Loss of more jobs and industries spirals, leading to more and more tax base decimation,

more and more unemployed needing help, but communities having less of an ability to pay to provide

that help. It is vitally important to understand this vicious feedback loop – jobs leave, tax income goes

down, more people need help due to jobs leaving (repeat cycle).

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�It�s The Economy Stupid� l Manufacturing to Service Economy l Tax Base in Local Communities

–  The vicious cycle l Service Economy �Fit� l Hawaii example l Many blacks turned to illicit economy and street

level drug sales l All adds up to blacks being �targeted� by 100:1

crack sentences

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The loss of manufacturing jobs has affected all communities, but Duster argues that this trend has

hurt inner city blacks the most. Blacks were more dependent upon these blue collar jobs than whites.

For example, in 1954 black and white youth unemployment were about equal, with blacks actually

having slightly higher levels of employment. By 1981, the black unemployment level had nearly

quadrupled while the white rate increased only marginally.

Blacks are also less likely to become gainfully employed in the service sector. Some studies have

shown racist hiring practices on matched pairs of blacks and whites and others a “lack of cultural fit”

between black culture and the service industry. Language and culture (especially modes of conflict

resolution) are different and becoming more so as inner city black communities become increasingly

isolated, deprived of tax revenue and education spending. Duster refers to Philippe Bourgois’ work

as yet another illustration of the ill fit between inner city culture and the service economy.

It is hard to appreciate this shift if one’s experience is limited to Hawaii, but there is at least one

parallel: HI has shifted from sugar and pineapple production [which after WWII became “good” union

jobs that paid well enough for these workers to enter the middle class]. As those jobs have went

overseas [due to “high” labor costs], HI has switched to a tourist based service economy [although

some construction jobs remain]. Certainly, to be employed in the tourist economy one has to have a

“cultural fit” yes? One cannot speak only hard core pidgin with tourists from the mainland and remain

employed in a tourist job right? One must be able to have that “customer service attitude” too right?

Certainly standard English and a customer service attitude are less central to being a successful

sugar or pineapple worker.

Now, back to inner city blacks. Because they have fewer legitimate economic opportunities, they

have turned to illicit economy, especially street level drug sales.

Only in the last 3 decades has the US witnessed the development of an aggregation of people, mainly black but increasingly Latino, who live in the central cities, suffer unprecedented levels of unemployment, participate at unparalleled levels in both alternative and underground economies, and have extraordinary high rates of contact with the criminal justice system. (Duster, 1997:269)

Well crack sentences have focused upon street level dealers of crack who are disproportionately

black which ultimately led to the huge racial disparities in federal crack sentences.

Conclusion

So, in order to understand why blacks ended up being disproportionally “scooped up” into our federal

prisons for crack cocaine laws you need to understand the dynamics of the changing US economy

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which led to more service work and a reduced ability of government to help and educate people in the

inner cities combined with the federal laws for crack implemented in 1986.

Some history behind the changes in 100:1 crack laws

Congress reforms sentencing and Supreme Court Decision

In the 2010, Congress passed a federal law reducing the disparities between crack and powder

cocaine from about 100:1 to roughly 18:1. As noted in the article below, “The disparity was reduced

to about an 18-to-1 ratio, compared with the prior law which treated 100 grams of powder cocaine as

the equivalent of one gram of crack cocaine, or a 100-to-1 ratio.” There was a Supreme Court case in

2012 that decided exactly when the lower penalties of the new law should be applied. In essence the

lower penalties now apply to those sentenced after August 3, 2010. The former stricter laws are in

place for people sentenced before that date, making this basic problem described in this lecture still

relevant. It is yet to be seen whether the new law will reduce the racial disparities described here.

Stay tuned.

http://www.reuters.com/article/2012/06/21/us-usa-court-cocaine-sentences-

idUSBRE85K19S20120621

By James Vicini

WASHINGTON | Thu Jun 21, 2012 12:43pm EDT (Reuters) - The U.S. Supreme Court on Thursday extended more lenient penalties of a new law for crack and powder cocaine to criminals convicted but not yet sentenced when the law took effect, a ruling that could affect thousands of defendants. By a 5-4 vote, the high court ruled for two men convicted of crack cocaine crimes, but sentenced after the 2010 measure became law. Congress changed the law due to concerns that the longer prison terms were racially biased and unfair. The Fair Sentencing Act, signed by President Barack Obama on August 3, 2010, sharply reduced the difference between sentences for crimes committed by crack cocaine users, who tend to be black, and powder cocaine users, who tend to be white. The disparity was reduced to about an 18-to-1 ratio, compared with the prior law which treated 100 grams of powder cocaine as the equivalent of one gram of crack cocaine, or a 100-to-1 ratio. Justice Department attorneys told the Supreme Court the issue at the heart of the case could potentially affect thousands of defendants, not just the two involved in the ruling. One of the two, Edward Dorsey, pleaded guilty in June 2010 to possessing 5.5 grams of crack cocaine in 2008 with intent to distribute it and was sentenced to 10 years in jail. Under the 2010 law, he probably would have received a sentence of about four years. In the other case, Corey Hill was convicted in 2009 of selling 53 grams of crack cocaine in 2007 and sentenced to 10 years in prison. Under the 2010 law, he would have received a sentence of around five years.

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U.S. appeals courts have been divided on how to apply the law. An appeals court in Chicago in the case involving the two men ruled that the law applied only to crimes committed after August 3, 2010. The Supreme Court reversed that decision. Writing the court's majority opinion, Justice Stephen Breyer said Congress intended the law's more lenient penalties to apply to offenders who committed their crimes before August 3, 2010, but were sentenced after that date. The U.S. Justice Department initially took the position that the new sentences only applied to crimes committed after Aug 3, 2010. But after Democratic lawmakers in Congress complained, U.S. Attorney General Eric Holder in a memo issued on July 15, 2011, said the law should apply to all sentences handed down after August 3, 2010, regardless of when the crime had been committed. In the opinion, Breyer said applying the more lenient penalties to all those sentenced after August 3, 2010, made it possible to foresee a reasonably smooth transition under new federal guidelines calling for lower sentences involving crack cocaine. He was joined by the court's three other liberals, and moderate conservative Justice Anthony Kennedy. The court's most conservative members, Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito, dissented. Scalia wrote that the court majority misinterpreted federal law and added, "The mischief of the court's opinion is not the result in this particular case, but rather the unpredictability it injects into the law for the future." The Supreme Court cases are Dorsey v. United States, No 11-5683, and Hill v. United States, No. 11-5721. (Reporting By James Vicini; Editing by David Brunnstrom)

Attorney General calls for prosecutorial discretion with federal drug laws.

Basically it looks like Holder is calling on Federal prosecutors to not impose federal mandatory

minimums on non-violent offenders.

http://bigstory.ap.org/article/holder-proposes-changes-criminal-justice-system-0

Holder goes after mandatory federal drug sentences By PETE YOST and PAUL ELIAS

— Aug. 12 6:16 PM EDT —

WASHINGTON (AP) — Attorney General Eric Holder announced a major shift Monday in federal sentencing policies, targeting long mandatory terms that he said have flooded the nation's prisons with low-level drug offenders and diverted crime-fighting dollars that could be far better spent. If Holder's policies are implemented aggressively, they could mark one of the most significant changes in the way the federal criminal justice system handles drug cases since the government declared a war on drugs in the 1980s As a first step, Holder has instructed federal prosecutors to stop charging many nonviolent drug defendants with offenses that carry mandatory minimum sentences. His next step will be working with a bipartisan group in Congress to give judges greater discretion in sentencing. "We will start by fundamentally rethinking the notion of mandatory minimum sentences for drug-related crimes," Holder told the American Bar Association in San Francisco. There are currently more than 219,000 federal inmates, and the prisons are operating at nearly 40 percent above capacity. Holder said the prison population "has grown at an astonishing rate — by almost 800 percent" since 1980. Almost half the inmates are serving time for drug-related crimes.

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Holder said he also wants to divert people convicted of low-level offenses to drug treatment and community service programs and expand a prison program to allow for release of some elderly, non-violent offenders. The speech drew widespread praise, including from some of the people Holder will need most — Democrats and Republicans on Capitol Hill. Sen. Rand Paul, R-Ky., said he is encouraged by the Obama administration's view that mandatory minimum sentences for non-violent offenders promote injustice and do not serve public safety. Paul and Senate Judiciary Committee chairman Patrick Leahy, D-Vt., have introduced legislation to grant federal judges greater flexibility in sentencing. Leahy commended Holder for his efforts on the issue and said his committee will hold a hearing on the bill next month. Sen. Dick Durbin, D-Ill., the No. 2 Democrat in the Senate, said he looked forward to working on the issue with Holder and senators of both parties. But support was not universal. House Judiciary Committee Chairman Bob Goodlatte, R-Va., said Holder "cannot unilaterally ignore the laws or the limits on his executive powers. While the attorney general has the ability to use prosecutorial discretion in individual cases, that authority does not extend to entire categories of people." Sen. Chuck Grassley of Iowa, top Republican on the Senate Judiciary Committee, said whether the law needs to be changed should be decided by the Congress, along with the president. "Instead we're seeing the president attempt to run roughshod over the direct representatives of the people elected to write the laws," Grassley said. "The overreach by the administration to unilaterally decide which laws to enforce and which laws to ignore is a disturbing trend." Still, the impact of Holder's initiative could be significant, said Marc Mauer, executive director of the Sentencing Project, a private group involved in research and policy reform of the criminal justice system. African-Americans and Hispanics probably would benefit the most from a change. African-Americans account for about 30 percent of federal drug convictions each year and Hispanics account for 40 percent, according to Mauer. If state policymakers were to adopt similar policies, the impact of changes at the state level could be even broader. Currently, about 225,000 state prisoners are incarcerated for drug offenses, according to the U.S. Bureau of Justice Statistics. One national survey from 15 years ago by the Sentencing Project found that 58 percent of state drug offenders had no history of violence or high-level drug dealing. "These proportions on state prisoners may have shifted somewhat since that time, but it's still likely that a substantial proportion of state drug offenders fall into that category today," said Mauer. In a three-page memo to all 94 U.S. Attorneys' offices around the country, Holder said rising prison costs have resulted in reduced spending on law enforcement agents, prosecutors and prevention and intervention programs. "These reductions in public safety spending require us to make our public safety expenditures smarter and more productive," the memo stated. In some cases where a defendant is not an organizer, leader, manager or supervisor of others, "prosecutors should decline to pursue charges triggering a mandatory minimum sentence," Holder's memo stated. In his speech to the ABA, the attorney general said "we need to ensure that incarceration is used to punish, deter and rehabilitate — not merely to convict, warehouse and forget." Holder said new approaches — which he is calling the "Smart On Crime" initiative — are the result of a Justice Department review he launched early this year. The attorney general said that some issues are best handled at the state or local level and that he has directed federal prosecutors across the country to develop locally tailored guidelines for determining when federal charges should be filed and when they should not. He said 17 states have directed money away from prison construction and toward programs and services such as treatment and supervision that are designed to reduce the problem of repeat offenders.

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In Kentucky, legislation has reserved prison space for the most serious offenders and refocused resources on community supervision. The state, Holder said, is projected to reduce its prison population by more than 3,000 over the next 10 years, saving more than $400 million. He also cited investments in drug treatment in Texas for non-violent offenders and changes to parole policies which he said have brought about a reduction in the prison population of more than 5,000 last year. He said similar efforts helped Arkansas reduce its prison population by more than 1,400. He also pointed to Georgia, North Carolina, Ohio, Pennsylvania and Hawaii as states that have improved public safety while preserving limited resources. San Francisco County District Attorney George Gascon applauded Holder's speech. "It's obviously a big shift in policy," Gascon said. "Now let's see how the follow through works." In a state experiencing severe prison overcrowding, Gascon has been advocating "alternative" sentencing of low-level drug offenders since taking office as district attorney in January 2011. He previously served as the city's police chief. Last week, the Supreme Court refused to delay the early release of nearly 10,000 California inmates by year's end to ease overcrowding at 33 adult prisons. Praising Holder's efforts, Laura W. Murphy, director of the American Civil Liberties Union's Washington Legislative Office, said the attorney general "is taking crucial steps to tackle our bloated federal mass incarceration crisis." Julie Stewart, president of Families Against Mandatory Minimums, said, "For the past 40 years, the Department of Justice, under both political parties, has promoted mandatory minimum sentencing like a one-way ratchet." Former federal appeals court judge Timothy Lewis recalled that he once had to sentence a 19-year-old to 10 years in prison for conspiracy for being in a car where drugs were found. Lewis, a former prosecutor, said the teen, who was African-American, was on course to be the first person in his family to go to college. Instead, Lewis had to send him to prison as the teen turned and screamed for his mother. "I am just glad that someone finally has the guts to stand up and do something about what is a pervasively racist policy," said Lewis, who is African-American. ___ Associated Press writer Paul Elias reported from San Francisco. AP writer Maryclaire Dale in Philadelphia contributed to this report.