After 20 Years, the Debate Over Mandatory Minimum Sentencing Laws for Cocaine Heats Up

In the 1980s, Walton pushed for tougher sentences for crack cocaine cases as a top drug policy advisor to former President George H.W. Bush. To Walton and other drug experts, the perceived greater risk of addiction and the level of violence associated with the crack trade warranted a sentencing disparity where the sale of five grams of crack cocaine garners the same five-year prison term as selling 500 grams of powder cocaine.

However, in testimony before the U.S. Sentencing Commission last fall, Walton acknowledged he “never thought that the disparity should be as severe as it ultimately has become,” adding that it was “unconscionable” to maintain the current sentencing structure.

Walton is part of a growing push from judges, civil rights groups and lawmakers for sweeping changes to federal and state crack cocaine mandatory minimum sentencing statutes, which they say disproportionately affects blacks.

Several new bills addressing federal mandatory minimum sentencing laws have been proposed in Congress. States have also moved toward repealing or revising their versions of mandatory minimum sentencing laws. This fall, the Supreme Court is set to wade in on whether judges can issue lighter sentences than those called for under the federal mandatory minimum sentencing guidelines. What’s more, the U.S Sentencing Commission, an independent expert panel charged with developing federal sentencing guidelines, recently issued its fourth recommendation that called on Congress to reform the laws.

Federal mandatory minimum sentencing laws for cocaine have long been scorned for creating racial disparities in drug sentencing. In 2003, African Americans constituted more than 80% of the defendants sentenced under federal crack cocaine laws, whereas whites comprised of only 7.8% of the convictions, according to a U.S. Sentencing Commission report. That disparity is even more troubling for critics of the mandatory minimums given a 2004 survey by the federal Substance Abuse and Mental Health Services Administration, which said 66% of the nation’s crack cocaine users are white or Hispanic.

As a result, blacks are serving longer sentences in prison for cocaine crimes. The average sentence for crack cocaine offenses in 2003 of 123 months was 3.5 years longer than the average sentence of 81 months for a powder cocaine offense. The sentencing laws have also contributed to the widening difference between the average time African-American drug offenders serve in prison, which increased by 77% from 1994 to 2003, and the time whites serve, which increased by only 28% increase during the same period, according to the Bureau of Federal Statistics.

Impact on Black Women

The federal mandatory minimum sentencing laws have also had a profound affect on African-American women. For example, the incarceration rate for African-American women for all crimes has increased by 800% since 1986 compared to 400% for women of all ethnicities, largely due to drug convictions. Since federal judges have little or no flexibility to consider the reasons why women are involved in the drug trade, such as domestic violence or financial dependency, they often receive the same or harsher sentences as major drug traffickers, policy experts say.

Kemba Smith was the girl next door from the Richmond, Va. suburbs. But her three and a half-year relationship with an abusive ex-boyfriend, which tragically ended in 1994, forced Smith into the drug life. As a student at Hampton University in Virginia in 1989, Smith became unknowingly involved with a much older drug dealer, she says, to fit in.

“He was my knight in shining armor,” says Smith, who is 35. “I was naïve at 19 and 20 years old and didn’t know it (the relationship) could have an adverse effect.”

The relationship grew severely abusive, sometimes over jealousy. Smith says she was trapped and too afraid for her life to leave. Initially, her boyfriend left Smith in the dark about his drug-dealing life. But he later relied on her to deliver money-filled envelopes, and to register vehicles and bank accounts in her name to launder money. She also lied to federal investigators about her boyfriend’s whereabouts.

“I feared the consequences for me and my family,” she says.

Smith eventually fled West with her boyfriend as he left federal agents and blood shed behind back East. In 1994, Smith surrendered to police, later agreeing to plea guilty to federal charges that she conspired to distribute cocaine, lied to authorities and laundered money. What more, her 31-year old ex-boyfriend was found dead days after she surrendered.

Left to face the charges and a maturing pregnancy alone in jail, Smith says she dwelled on how she betrayed herself and her family. “It was something I thought about constantly,” she says.

Later that year, a judge sentenced Smith to 24 years in prison under the federal mandatory minimum sentencing guidelines – one year in jail for each year of her life. After serving six years in prison, Smith was pardoned by former President Bill Clinton in 2000 following an intense campaign by civil rights groups and a flood of media coverage.

Today, Smith studies law at Howard University and runs the non-profit Kemba Smith Foundation, a grassroots organization designed to alert young people to dangers of drugs, domestic violence, teen pregnancy and other issues affecting youth.

Though she has a different view on the world today, Smith says she uses her story to inspire others. “My strategy is to be the voice to prevent what happened to me from happening to others,” she says.

Crack in the Community

With a break from hearing evidence in the CIA leak trial of former White House advisor Lewis “Scooter” Libby, Walton’s focuses his attention on mandatory minimum sentencing laws while sitting in his Constitution Ave. office.

As a U.S. Judge for the District of Columbia, Walton often weighs in on high-profile Washington issues. But the impact the rising drug-related incarceration rates have had on African-American families is one of the most troubling, he says.

“Today, a big problem we’re seeing is that kids don’t have fathers,” said Walton, who is African American, with a large body frame, rimmed glasses and a tough, yet compassionate demeanor. “A large number of our kids don’t have men in their lives. We have to mend the (black) family.”

Ironically, African-American children were one of the driving factors for the federal mandatory minimums sentencing laws in the 1980s. A recent study estimates that one out of every 14 African-American children has a parent in prison today. The study also found that African-American children are nine times more likely to have an incarcerated parent than white children.

In 1986, crack cocaine use spread from large urban cities such as New York, Miami and Los Angeles to smaller U.S. markets — and so did turf wars, violence and fears of a nation of “crack babies,” who would plague cities for decades.

As the White House’s Associate Director of the Office of National Drug Policy, Walton had a close view of the crack cocaine epidemic in the African-American community.

“Crack came into its own in the late 1980s,” he says. “There were turf wars, murder rates were astronomical, and most of it was associated with the drug trade.”

Community members began urging law enforcement to develop a strategy to combat drug crime, Walton says. “They wanted relief,” he says, noting that the community initially asked for tougher laws on crack crime. “We knew how desperate they were. We were seeing what was happening to the children and began weighing what type of punishment would have the greatest impact. ”

Washington’s War on Drugs

Congress became especially nervous about the emergence of crack cocaine following the 1986 death of University of Maryland basketball star Len Bias. Days after being drafted by the Boston Celtics, Bias died of a drug and alcohol overdose. It was largely assumed at the time that Bias died of a crack overdose. With heightened media attention surrounding Bias’ death, and an approaching mid-term election, Congress quickly passed 1986 Anti-Drug Abuse Act, which severely increased the penalty for crack.

Government policy experts say the bill was passed without certain hearings, and without a consistent rationale for the crack-powder penalty disparity.

“There were no hearings on how mandatory minimums would work,” says Eric E. Sterling, president of the Criminal Justice Policy Foundation, who served as counsel to the House Judiciary Committee in 1986. “It didn’t matter. There was a broad consensus that crack was a terrible drug.”

By the time it was revealed that Bias actually died of an overdose on powder cocaine, the bill had already passed through Congress. That October, former President Ronald Regan signed the bill into law, establishing federal mandatory minimum sentencing sentences with a 100-1 sentencing disparity between crack and powder cocaine. Several states followed suit with their own mandatory minimum sentencing laws for crack cocaine in the coming years.

But in 1988, with drug-related crimes still on the rise, Congress intensified its war on drugs by creating a 5-year mandatory minimum and a 20-year maximum sentence for a simple possession of 5 grams of crack – the weight of two pennies.

Dispelling the Myths

In the 20 years following the enactment of federal mandatory minimum laws, a bevy of criminology, biological and sociological studies were released that contradicted the rationale for the policy.

One later disputed myth about crack was the notion that crack is much more addictive than powder cocaine, with users getting “hooked” instantly. A 1996 study published in the prestigious Journal of the American Medical Association said the physiological and psychoactive effects of cocaine are similar no matter whether it’s in the form of powder or crack. The study also concluded that the susceptibility to addiction was more based on method of use, amount used and frequency, and not the form of the drug.

Moreover, a 2002 report by the U.S. Sentencing Commission undermined the belief that crack caused more violence behavior than powder cocaine – a driving factor of the original federal mandatory minimum legislation. The report found that 64.8% of overall crack offenses did not involve weapons and only 2.3% of crack offenders actively used a weapon.

“All the myths are being dispelled,” says Jesselyn McCurdy, legislative counsel with American Civil Liberties Union. “Now that we have more information than what we did twenty years ago, it’s time to reform this law.”

Sterling, at the Criminal Justice Policy Foundation, says mandatory minimum sentencing laws were designed to curtail major drug traffickers, but instead have netted mostly low-level street dealers and users, who are easier to prosecute.

“It’s how you evaluate prosecutors – based on their conviction rates,” he says. “The greatest crime of law enforcement of the last 20 years has been the Justice Department’s work to prosecute low-level drug offenders, who happened to be black.”

A Tool for Order

Law enforcement agencies, prosecutors and police are leading the opposition to weakening or repealing mandatory minimum sentencing, saying the laws can be an effective tool in catching major traffickers.

“The only way to get the top dealers is to deal with the street dealers,” says Chuck Canterbury, national president of the Fraternal Order of Police, an organization of law enforcement officers with 324,000 members. “If you don’t help to curb the demand, then the supply is going to be there.”

Canterbury, a retired law enforcement officer with 26 years experience in Horry County, S.C., said crack cocaine arrests tend to be more violent than those for powder cocaine.

“If you talk to police, they will tell you how much more likely crack cocaine (cases) are to be violent than powder cocaine,” he says. Canterbury said his membership does not support reducing the penalties for crack cocaine convictions. However, members would be in favor of tougher powder cocaine laws, he says. “We don’t support lowering the trigger for crack, “Canterbury says. “We would rather see the penalty for powder cocaine stiffened.”

Reversing the Past

Faced with the expensive problem of overcrowded prisons in their home states, and with a democratic majority in Congress, several lawmakers have proposed revising the current federal mandatory minimum sentencing laws for cocaine. A bill introduced this year in Congress by Charles Rangel, a New York Democrat, would eliminate certain mandatory minimum penalties for crack cocaine offenses, making the sentences equal to those for powder cocaine. Other bills introduced by conservative lawmakers would reduce the disparity in the quantity ratio to 20 -1 by raising the quantity of crack that would trigger a mandatory minimum sentence and lowering the quantity of cocaine that would prompt the penalties.

Despite the opposition and convincing evidence against federal mandatory minimum sentencing laws, Congress has been cool on the idea of repealing the policy.

Douglass A. Berman, a law professor at Ohio State University and sentencing policy expert, says politicians often tout mandatory minimums sentencing laws to show voters they’re strong on crime.

“The differential treatment between crack and powder cocaine in the federal system exists because of politics,” Berman says. “It’s uniquely easy to make mandatory minimums sound like a good idea. But it’s very hard to make a defense of why crack mandatory minimums are so severe versus other alternatives.”

Several states have repealed or are revising their cocaine mandatory minimum sentencing laws. Michigan eliminated its mandatory minimum sentences in 2002, choosing to focus more on other factors, such as gun possession and criminal history, opposed to just drug weight in sentencing decisions. In Rhode Island, state legislators this year voted to end such laws, giving judges more discretion in sentencing and reducing maximum penalties for drug convictions. New York, with one of the nation’s oldest and harshest mandatory minimum drug laws, eased its Rockefeller Drug Laws in 2004 and is considering additional reforms following growing pressure from judges, voters and New York City‘s influential hip-hop community.

“People know this is bad policy,” McCurdy says. “The question is whether people are willing to put the politics on the line to do the right thing.” About 13 states currently have some form of mandatory minimum sentencing laws for cocaine, she says.

To unite voters against mandatory minimum sentencing, the ACLU has joined with other civil rights organizations to promote a grassroots letter writing campaign aimed at persuading federal lawmakers to support reform legislation.

“The campaign is designed to let people know that this issue is on the radar screen in Congress and we need help in getting this reformed,” said McCurdy, discussing a recent rally in Birmingham, Ala aimed at encouraging Arturo Davis, an Alabama Democrat, to support mandatory minimum reform in Congress.

All-Encompassing Law

Not everyone caught in the net of mandatory minimum sentencing laws fit the typical drug-dealer profile.

Karen Garrison of Washington, D.C., has advocated since 1998 for the release of her twin sons Lawrence and Lamont Garrison, who were sentenced to 19 and 15 years in prison respectively under federal mandatory minimum sentencing laws. The Garrison twins, who were 25 years old, had graduated months earlier from Howard University. Despite a dearth of tangible evidence, the Garrison boys were convicted in a multi-million dollar crack and powder cocaine distribution ring, largely due to the testimony of another man, who fingered Lamont and Lawrence in the ring in exchange for a lighter sentence, Garrison says.

“I fell out when they (jury) said guilty,” says Garrison, who struggled as a single mother to shield her sons from drugs during the height of D.C.’s crack epidemic. “I knew this was just wrong.”

Garrison, who worked at a department store at the time, could not afford a private attorney and relied on court-appointed counsel largely because she believed the lack of evidence would sway the jury to acquit her sons, who were both aspiring attorneys. To Garrison, testimony from Howard professors that placed the Garrison twins in class everyday, making it difficult to be a part of complex drug ring, would be enough to warrant an acquittal. The boys were also saddled with tens of thousands of dollars in student loan debt, and with near-empty bank accounts.

“They never even got a speeding ticket before.” says Garrison, who is 53. “I thought there was going to be justice.”

Following the trial, Garrison quit her job to become a full-time advocate for her sons. Garrison, who had mostly service-oriented skills, such as cosmetology, became familiar with computers and began surfing the Internet. To solicit pro-bono help from lawyers, she created information packets about her sons’ case that grew thicker over the years. In 2001, Garrison appealed and lost a petition for a new trial in the U.S. Appeals Court for the Eastern District.

Yet, she hasn’t conceded her fight for a new trial. Garrison now works with the Washington-based Families Against Mandatory Minimums, where she often fields calls from others coping with the affects of mandatory minimum sentencing laws.

“I thought it was a good life because my sons had dreams,” Garrison says. “And I’m never going to give up.”

Mandatory Minimum Court Battle

Judges say mandatory sentencing laws impair their ability to make individualized decisions by eliminating or restricting their power to reduce sentences based factors such as government cooperation and first-time offenses.

In 2005, the Supreme Court ruled that mandatory minimum sentences were guidelines, and not mandates. The ruling created a grey area in law, which allowed some rebel federal judges to risk their careers by issuing lighter sentences than those outlined in federal sentencing guidelines.

By Christopher Windham

Human Nature magazine

WASHINGTON — U.S. District Judge Reggie B. Walton marked the 20th anniversary of federal mandatory minimum sentencing laws for crack and powder cocaine crimes last year by calling for a reexamination of the controversial policy which he once advocated for in the late 1980s.

One such case will be reviewed this fall by the Supreme Court. The court will again address the constitutionality of federal mandatory minimums in the case of a convicted drug dealer from Norfolk, Va., who was given a 15-year prison sentence for selling crack and powder cocaine. Federal sentencing guidelines called for a sentence of 19 to 22 years for Derrick Kimbrough, who is African American. Taking into account Kimbrough’s service in the Persian Gulf War and steady employment, an earlier judge issued a lighter sentence that was later reversed by a U.S. Appeals Court.

Recently, as part of a crackdown on violent crime, the Justice Department called for Congress to reinstate mandatory minimum prison sentences for all crimes, including the mandates for mandatory crack cocaine sentences.

While Judge Walton won’t amend his earlier position on the mandatory minimum sentencing laws, he says he’s challenged with balancing the needs of the justice system with the sensitivities in the African-American community.

“If you’re concerned, and have love for your own people, you have to think about what you can do to provide peace and tranquility, and at the same time, don’t have to lock a lot of people up,” he says.