Prisoners of War:
How Mandatory Minimum Sentencing in the War on Drugs Ravaged Black Communities
Federal sentencing guidelines and the corresponding mandatory minimum sentencing structures that exist in the United States of America have contributed to the overwhelming problem of mass incarceration in our country. The War on Drugs declared by President Richard Nixon in 1971, which has continued on in American justice policy over the decades, is the single largest contributor to the mass incarceration malady that plagues our country. Since 1980, America’s rate of incarceration has ballooned by more than 335%, with African-American and Latino populations experiencing the greatest negative impact (Cummings, 2012).
In 1980, the federal inmate population was 24,640; however by 2013, this number grew to 219,298 (Federal Bureau of Prisons [FBP], 2015). As of October 24, 2015, 93,262 (48.3%) of all federal inmates were serving prison terms for drug crimes (Federal Bureau of Prisons [FBP], 2015), about half of whom did not have a significant or previous criminal record (United States Sentencing Commission [USSC], 2012). The severity and duration of federal drug sentences mimic patterns of political and social pressures, and racial disparities in the criminal justice system have continued to rise dramatically over the decades following the inception of the disastrous War on Drugs.
Our nation’s young Black population faces staggering obstacles at all phases of the criminal justice system. Black men, especially those without a high school diploma, have rates of incarceration that are exorbitant when compared to their White counterparts. In the wake of President Ronald Reagan’s (1984) Sentencing Reform Act and the resulting mandatory minimum sentencing guidelines, incarceration rates for Blacks skyrocketed while those for Whites stayed relatively low and constant (Kahn & Kirk, 2015). The discrepancy has since narrowed minimally, and the rate of incarceration for Blacks dropped dramatically after the implementation of the Fair Sentencing Act of 2010; however the disparity between Black and White rates of incarceration remains prominent and concerning (Kahn & Kirk, 2015).
Although meant to be race-neutral, policies such as mandatory minimum sentencing in the War on Drugs unfairly burden young Black males, especially. The United States of America was built on the notion that all men are created equal; however our country has failed at ensuring equal and fair treatment in the justice system for all. African Americans are incarcerated at a rate that is six times higher than Whites (NAACP, 2015). The (2004) U.S. Sentencing Commission report shows that rates of White, Hispanic, and other racial groups being imprisoned dropped, while Black rates of incarceration spiked dramatically. Because of the targeted enforcement of drug offenses in urban areas, minorities began to see a much larger increase in drug arrests than Whites. This disparity continued to increase over decades, and persists today.
In 1980, Blacks were arrested for drug offenses nearly three times more often than Whites; and in the most racially disparate period of the War on Drugs (1988 through 1993), Blacks were arrested at rates over five times higher than Whites for drug offenses (Human Rights Watch [HRW], 2009). When the crack and cocaine concerns of the War on Drugs began to dwindle in the mid to late 1990s, law enforcement diverted their focus toward arresting marijuana and methamphetamine offenders (HRW, 2009). Although Whites use methamphetamine at higher rates than Blacks, and marijuana use is consistent across all races, the arrest rates for Blacks continue to be greater than Whites for these substances (HRW, 2009).
From 1980 to 2003, the rate of arrest for drug offenses surged by 225% for Blacks, and only 70% for Whites; however some cities saw greater than a 500% increase in Black drug arrests during that period (HRW, 2009). From 1986 to 1991, Black women also saw a massive increase of 828% in the population of those serving drug sentences (The Sentencing Project, 1995). Of Blacks incarcerated in federal prison, 64% of males and 71% of females in 1995 were serving sentences for drug offenses (Bureau of Justice Statistics, 1996). The long-term disparity and devastation in Black communities created by Nixon’s War on Drugs was evidenced in 2007, when urban Blacks constituted 6% of the national population, but 29.8% of all arrests for drug offenses (HRW, 2009).
That same year, 77% of all drug arrests materialized in urban cities (HRW, 2009), leaving many White drug offenders unpunished for the same criminalized behaviors. In 2008, Blacks and Hispanics comprised 58% of America’s incarcerated population, although they comprise just 25% of our country’s racial demographic (National Association for the Advancement of Colored People [NAACP], 2015). In 2013, the racial gap in incarcerated individuals serving federal drug sentences continued to be perplexing. According to the BJS, there were 20,800 White, 37,400 Black, and 36,300 Hispanic inmates under federal drug sentences in 2013 (BJS, 2015). Most recently, the ratio of Black to White arrests for drug offenses dropped to around 3.9 to one (HRW, 2009), but our country should not be satisfied until all disparities are addressed and corrected.
Young Black men aged 18-34 are the most negatively affected by the War on Drugs for numerous reasons, and this disadvantage is felt throughout families and communities (Hattery & Smith, 2007). The mandatory minimum sentencing structure stifled millions of Black men in the prime of their lives from working, attaining higher education, and starting or providing for a family by locking them behind bars for extensive periods of time. By the time this population is released, they are many years behind their non-incarcerated counterparts, with their capacity to generate human capital severely depleted.
Felony convictions also carry an array of stigmatizing factors that markedly limit young Black men’s opportunities for economic, political, and social mobility. The 2000 U.S. Census data show that 32.8% of White men aged 18-24 were in college, while only 1.1% were in prison – a ratio of 28:1 (Hattery & Smith, 2007). The data for Black men of the same age are troubling, with 24.9% in college, and 9.5% in prison – a ratio of 2.6:1 (Hattery & Smith, 2007). Individuals with prior drug convictions have severely limited access to federal financial aid for higher education (U.S. Department of Education, 2015), and without adequate education, and individual’s options in today’s economy are critically squelched. Only 40% of employers state that an individual’s prior criminal conviction record would not be a factor in hiring decisions (Schmitt & Warner, 2010). Limited educational opportunities, a criminal record, and discrimination in hiring practices are compounding factors that place Blacks at a disadvantage in America, and the impact of these is evidenced by the racial demographics of each of these realms.
The U.S. Department of Education data show that although the percentage of college degrees for Blacks has risen in recent years, this racial group is not adequately represented among bachelors, masters or doctoral degree recipients (National Center for Education Statistics [NCES], 2012). In 2012, only 10.3% of bachelor’s degrees, 12.5% of master’s degrees, and 7.4% of doctoral degrees were awarded to Black candidates; while White candidates received 72.9%, 72.8%, and 74.3% of degrees, respectively (NCES, 2012). The most recent Bureau of Labor Statistics data show that rates of unemployment are correlated with level of education (Bureau of Labor Statistics [BLS], 2015). Individuals with less than a high school diploma have a 7.7% rate of unemployment; high school graduates have at 5.5% unemployment rate; 4.4% with some college or an associate’s degree; and only 2.5% unemployment for individuals with a bachelor’s degree or higher (BLS, 2015). It is of the utmost importance that previously incarcerated individuals are given a fair opportunity at obtaining an education to promote successful re-entry, lower recidivism, and ease the future fiscal burden on the criminal justice system.
In the 2008 presidential election, 1.4 million Black men were unable to vote for a candidate to run their country because of a previous felony conviction (National Conference of State Legislatures [NCSL], 2015). The massive loss of political influence for Black former felons has created an unfair tilt in power in America, with many conservatives remaining in local and federal government who disregard the welfare of this population. Many states also have restrictions or complete bans on receiving public assistance benefits following a drug conviction (Sentencing Project, 2013). The overall loss of power and potential created by the War on Drugs has been crippling to so many in our country’s Black communities.
In 1986, the average length of federal drug sentences was 45 months for possession, 60 months for distribution and manufacturing, 66 months for importation, and 195 months for general trafficking or miscellaneous drug offenses (Bureau of Justice Statistics [BJS], 1988). From 1988 – 2006, however, average federal drug sentences rose from 71.3 months to 87.2 months (BJS, 2006). According to 1999 data, the harshest sentences were given to drug offenders who possessed a firearm during the commission of their crime (133 months), those who had lengthy prior criminal records (125 months), and crack-cocaine offenders (114 months) (BJS, 2006). In 2012, crack-cocaine offenders continued to receive the longest average sentences for drugs (97 months), followed by methamphetamine (92 months), powder cocaine (83 months), heroin (73 months), other (59 months), and marijuana (36 months) offenses (USSC, 2012).
In 1971, President Richard Nixon declared a “War on Drugs” in response to an increase in reported illicit drug use during and following the Vietnam War. Some United States servicemen were coming home from Vietnam with drug addictions, often as a form of self-medication to endure the trauma of combat. Nixon labeled drug abuse as “public enemy number one” with public and political panic following, essentially criminalizing the behavior of veterans suffering with post-traumatic stress disorder resulting from their combat experience. The War on Drugs and the mandatory minimum sentencing guidelines are primarily to blame for America’s skyrocketing rates of incarceration and corresponding racial disparities among America’s incarcerated population (Mauer, 2010).
Because crack-cocaine was deemed a “Black” drug, police focused their drug enforcement efforts largely on inner city nonwhite communities, disregarding the fact that Whites have higher rates of drug use (Desmond & Emirbayer, 2010). Drug purchases in urban communities take place in public settings more often than in more wealthy areas, so it was also easier for drug arrests to be focused in urban areas (Desmond & Emirbayer, 2010). Nixon’s focus on punishing drug use continued throughout administrations in the 1970s and 1980s, and ultimately came to a head with the Sentencing Reform Act and Anti-Drug Abuse Acts enacted under President Ronald Reagan.
Enacted by President Reagan, the Sentencing Reform Act of 1984 (SRA) was created to decrease judicial discretion in sentencing, in hopes of reducing sentencing disparities within America’s criminal justice system; while also increasing uniformity in punishment for certain offenses (NeSmith, 2015). Mandatory minimum sentencing guidelines were one aspect of the SRA legislated in hopes of reducing the preexisting disparities in sentencing; however the ways in which these mandatory minimums were utilized and enforced had the extreme opposite effect, resulting in even greater disparities among our nation’s incarcerated population. In 1991, there were ninety-one offenses mandated under the SRA’s mandatory minimum guidelines; however in 2011, almost two hundred offenses carried mandatory minimum sentences, with more than seventy-five percent of these for drug crimes (United States Sentencing Commission [USSC], 2011). The ramifications of these federal sentencing guidelines are fiscally, politically, and socially irresponsible.
The Reagan administration also passed the Anti-Drug Abuse Acts of 1986 and 1988, which imposed mandatory minimum sentences for federal drug crimes and increased the population of incarcerated drug offenders to rates never before seen in America (NeSmith, 2015). In the 1980s, a social panic erupted over drug abuse in our country, with the media and politicians fueling the fire and citizens following suit. The “Just Say No” and “This is your brain on drugs” campaigns filled our nation’s airspace with messages of the dangers of illegal drugs, contradicting evidence that drug use had been steadily declining over the previous decade (Goode & Ben-Yehuda, 2009). Underlying the social and political panic over drug use were a few catalysts that spread through the media like wildfire, striking fear in American society.
The ultra-conservative political climate in the 1980s helped shape the public and media response to the chosen demons of the time – homosexuality, abortion, pornography, and drugs (Goode & Ben-Yehuda, 2009). In June of 1986, two professional athletes died unexpectedly, both of whom were highlighted in the media as linked to cocaine abuse (Goode & Ben-Yehuda, 2009). Crack cocaine use became a prominent social concern in the mid 1980s, with a number of communities in urban areas suffering from widespread use and dependency (Goode & Ben-Yehuda, 2009). Although the threat of a national crack cocaine epidemic was not nearly as critical as American society believed, stories of crack babies and violent crack addicts were magnified in the media, creating yet another undue social frenzy.
The most shocking aspect of the Anti-Drug Abuse Acts was the 100:1 sentencing discrepancy between crack cocaine and powder cocaine that existed until the Fair Sentencing Act of 2010 was enacted by President Barack Obama (United Stated Department of Justice [DOJ], 2010). In an effort to stave off a feared crack epidemic, even some black legislators voted for the 100:1 crack to powder ratio; however these efforts created an era of mass incarceration in America (Gabbidon & Greene, 2013). In his opinion on United States v. Clary (34 F.3d 709 [8th Cir. 1994]), federal Judge Clyde Cahill called the crack disparity a form of “unconscious racism” (Bernstein, 1995), and stated “The 100-to-1 ratio, coupled with mandatory minimum sentencing provided by federal statute, has created a situation that reeks with inhumanity and injustice….If young white males were being incarcerated at the same rate as young black males, the statute would have been amended long ago.” (Alexander, 2012). Under the 100:1 ratio between crack and powder cocaine offenses, as of 2004 Blacks were given sentences of similar length for nonviolent drug offenses as Whites were being given for violent offenses (American Civil Liberties Union [ACLU], 2014). In 2010, before the Fair Sentencing Act was applied, 85 percent of the 30,000 people sentenced under the 100:1 ratio were Black (ACLU, 2014).
In 1980 and before Reagan’s Sentencing Reform Act, federal level drug offenders comprised 22% of individuals entering America’s prisoners (Gabbidon & Greene, 2013). In 1989, federal drug sentences represented a more substantial 39% of prison admissions; 42% in 1990; and a colossal 52% in 1992 (Gabbidon & Greene, 2013). When analyzed by racial demographic, the data show more than a 90% increase in in rates of African American drug sentences from 1980 and 1992 – more than three times the increase in White drug sentences during the same period (Gabbidon & Greene, 2013). Within the first decade of the Sentencing Reform Act legislation, the number of African American drug sentences expanded by 700% (Gabbidon & Greene, 2013).
Prior to the passing of the Anti Drug Abuse Acts and mandatory minimum sentencing guidelines for offenses involving crack cocaine, Blacks received federal drug sentences that were 11% longer than their White counterparts (American Civil Liberties Union [ACLU], 2006). Just four years following the enactment of federal mandatory minimums for crack cocaine, Blacks were given, on average, sentences that were 49% higher than Whites (ACLU, 2006). The 100:1 sentencing discrepancy for crack and powder cocaine offenses that existed for almost twenty five years in America essentially criminalized a behavior attributed to Blacks – crack cocaine use; while slapping the wrists of powder cocaine users – primarily Whites.
In their 1991 report on mandatory minimum sentencing, the Sentencing Commission highlighted the racial disparity in the application of these guidelines, with Whites more likely to receive sentences less lengthy than Blacks or Hispanics (Mauer, 2010). The application of mandatory minimum sentencing guidelines may be partially based on an individual’s prior criminal record, which also creates a disproportionately negative impact on Black communities in America (Mauer, 2010). Blacks are more likely to have previous contact with the criminal justice system than Whites due to numerous structural disadvantages; therefore this aspect of mandatory minimum sentencing has ravaged black families and communities nationwide (Mauer, 2010).
The Violent Crime Control and Law Enforcement Act of 1994 was a breath of fresh air to many federal judges who opposed the new sentencing structure implemented with the Sentencing Reform Act. For first time federal drug offenders, judges were granted back the option of whether to apply the mandatory minimum guidelines or forego them in favor of a less static method of applying punishment (Bernstein, 1995). Unfortunately, the racial concerns that have plagued our justice system in the past were not corrected or improved after President Clinton’s changes to the Sentencing Reform and Anti Drug Abuse Acts.
Along with attempts at reducing the harsh and unfair implementation of mandatory minimum sentences for federal drug crimes, President Clinton increased prison funding to hold a massive increase in America’s incarcerated population, as well as the enactment of three-strikes laws, which perpetuate the cycle of racism in our justice system (John, 2014). Clinton also refused a U.S. Sentencing Commission recommendation to eliminate the crack to powder cocaine sentencing disparity; however before the end of his term in office, Clinton stated that our drug sentencing structure should be scrutinized and that marijuana use should be decriminalized (Drug Policy Alliance, 2015). Due to the aforementioned higher number of contacts with the criminal justice system among Black individuals, the racial discrepancies in our criminal justice system remained unconscionable following the Violent Crime Control and Law Enforcement Act.
In their 2002 report to Congress entitled Cocaine and Federal Sentencing Policy, the U.S. Sentencing Commission confounded the existing misconceptions upon which federal drug policies were based (Gabbidon & Greene, 2013). First, the Commission highlighted that both crack and powder cocaine produce “the same physiological and psychotropic effects” (U.S. Sentencing Commission, 2002, p. v) and produce the same prenatal exposure effects, which are equal to tobacco exposure but less harsh than alcohol exposure (U.S. Sentencing Commission, 2002). These findings undermine any form of sentencing disparity between crack and powder cocaine offenses, and call into question current regulatory practices for all intoxicating substances.
Second, the Commission found that 28.5% of all federal crack cocaine cases involved small quantities of less than 25 grams of the drug, while only 2.7% of federal powder cocaine offenses involved such a small amount (USSC, 2002). The average sentence length given for convictions with less than 25 e grams of crack cocaine was 64.8 months, and the average time given for an equal amount of powder cocaine was 13.6 months (USSC, 2002). Next, the hysteria surrounding the correlation between crack cocaine abuse and violence was found to be unsubstantiated (Gabbidon & Greene, 2013). In the year 2000, only 2.3% of federal crack cocaine offenses involved the offender discharging a weapon, while 75% of cases did not involve an offender with a weapon (USSC, 2002). Finally, the Commission emphasized the blatant racial disparity in federal crack cocaine sentencing, with 85% of those subjected to these guidelines in 2000 being Black (USSC, 2002). Heroin and cocaine (including crack cocaine) offenses comprised the majority of drug arrests from 1987 to 1995; however marijuana arrests have seen a sharp increase in volume since 1996 (Bureau of Justice Statistics [BJS], 2005).
Three EPIC U.S. Supreme Court cases in 2004, 2005, and 2007 changed the way mandatory minimum sentences were calculated at the state and federal levels. In Blakely v. Washington (542 U.S. 296 ), the Court decided at the state level that it is in violation of the Sixth Amendment of the Constitution for judges to include sentence enhancements based on details not heard by a jury or admitted by the defendant (U.S. Supreme Court, 2004). The following year, the Court referenced its Blakely (2004) decision to rule in United States v. Booker (543 U.S. 220 ). In Booker (2005), the Court applied the same conditions it applied to the state-level case of Blakely (2004) to the federal mandatory minimum sentencing guidelines.
In 2007, the Court made a critical ruling that impacted the way crack cocaine, specifically was handled during sentencing at the federal level. Kimbrough v. United States, (552 U.S. 85 ) essentially made minimum crack cocaine sentencing guidelines advisory instead of mandatory, and allowed judges to consider the questionable crack to powder ratio when making their decisions. Despite these adjustments, in 2010 crack cocaine continued to receive the longest average sentence length of all illegal drugs. Crack sentences averaged 26.1 months longer than powder cocaine, despite evidence showing their relative similarity in effect (Gabbidon & Greene, 2013). This series of rulings by the U.S. Supreme Court paved the way for legislative changes aimed at further reducing the harm done by the foolish sentencing disparity.
In 2010, President Obama enacted the Fair Sentencing Act to help reverse the disparate nature of the existing federal sentencing structure. The Fair Sentencing Act of 2010 reduced the sentencing disparity between crack and powder cocaine from the 100:1 ratio set in the Anti Drug Abuse Acts, to a much lower but still unreasonable 18:1 (United States Congress, 2010). The mandatory minimum sentence for simple possession of crack cocaine was eliminated; and the quantity thresholds for triggering mandatory minimum sentencing for possessing larger amounts of crack cocaine were increased (United States Congress, 2010).
Although the number of individuals charged with federal crack cocaine offenses has been quite low over the past decade, by 2013, the passage of the Fair Sentencing Act reduced the number of new individuals sentenced to mandatory minimum sentences for crack cocaine to zero (USSC, 2015). Another aspect of Obama’s Fair Sentencing Act of 2010 was the demand for a review of our nation’s federally funded drug courts for effectiveness at reducing recidivism rates and providing viable alternatives to incarceration (United States Congress, 2010). In 2010, before the Fair Sentencing Act was enacted, 78.5% of incarcerated crack cocaine offenders were Black, while only 7.3% were White; and Blacks and Hispanics comprised 81.5% of powder cocaine offenders, as compared to 16.8% that were White (Gabbidon & Greene, 2013). Considering the fact that Whites use drugs at higher rates than Blacks or Hispanics, these numbers are outrageous and cannot be explained by logic.
Mandatory minimum sentencing guidelines greatly increase our nation’s incarcerated population in general; however young Black men disproportionately feel their impact. Mandatory minimum sentencing places additional weight on behaviors and traits more commonly found among Blacks, such as possessing a firearm or being in public housing. Mandatory minimum sentences also increase the likelihood of being imprisoned or being given a longer sentence for violent crimes and drug crimes – both of which Blacks are arrested more often.
By removing power from federal judges in the sentencing stage of the justice process, primary discretion lies with prosecutors, which creates a racial discrepancy before sentencing is even a consideration. Three ways exist in which individuals are able to be granted reductions in their mandatory minimum sentence length. First, judges were granted back a bit of discretion with President Bill Clinton’s passing of the Violent Crime Control and Law Enforcement Act of 1994, which added a “safety valve” to allow judges to take prior criminal activity and use of violence into consideration when sentencing convicted individuals (Bernstein, 1995). Individuals may also provide “substantial assistance” to the prosecution by cooperating as a witness or providing pertinent information in other cases (Fischman & Schanzenbach, 2012); however this process has also been proven to negatively impact minorities, while benefitting Whites (Kansal, 2005). And finally, prosecutors may choose to decline charging an individual with an offense that comes with a mandatory minimum guideline in favor of a plea bargain, a lesser offense or no charges at all (Fischman & Schanzenbach, 2012). The disparities that the Sentencing Reform Act were meant to reduce during sentencing simply became a part of other aspects of the criminal justice system.
Prosecutors are known to make decisions on whether to file charges, offer plea bargains, and offer sentence reductions for individuals who provide “substantial assistance” to the prosecutor (Hartley, Maddan, & Spohn, 2007). In federal cases, the race of the offender has been shown to impact prosecutorial decisions in crack cocaine and powder cocaine cases, as well as mandatory minimum and less serious guideline cases (Hartley, et al., 2007). In fact, race was the only consistent factor across all four aforementioned case types that affected a prosecutor’s decision on reducing sentence length for cooperation (Hartley, et al., 2007). In cases where a substantial departure in sentence length is an option, both Blacks and Hispanics have much lower rates of being granted this leniency than Whites with similar case characteristics (Hartley, et al., 2007). Black and Hispanic males received similar rates of sentence reduction for federal drug convictions regardless of the drug or corresponding sentence; however both of these groups of ethnic males received sentence reductions in far less cases than White males (Hartley et al., 2007).
Prosecutors are also given discretion over mentioning prior convictions during the judicial process, which has an enormous impact on the length of a sentence – especially when mandatory minimum guidelines are concerned (Sullum, 2013). In 1997, just a decade following the enactment of the Anti Drug Abuse Act, it was shown that Black defendants who provide substantial assistance in exchange for special consideration, on average received a 13% reduction in their likelihood of incarceration; Latinos received an average 14% reduction; and Whites received an astounding 23% reduction (Kansal, 2005).
Plea-bargaining before trial is the most common outcome for defendants who are charged with a federal drug crime. When faced with a potentially harsh and lengthy mandatory minimum sentence, plea-bargaining is an oft-used tool to avoid trial and reduce sentence length. It is not uncommon for an innocent individual to plead guilty during the pre-trial process because they face such daunting mandatory sentences if they are convicted. Before the federal mandatory minimum sentencing guidelines were enacted in the 1990s, plea bargain rates were already astounding at 87 percent; but by 2004 in the federal court system, an even greater portion, 97 percent of convictions are a result of a guilty plea and corresponding reduction in the mandatory minimum guidelines (Starr, 2013).
While plea-bargaining is often cost and time-effective, the process a charged individual must endure to accept a plea bargain can often be intimidating and overwhelming. Federal prosecutors are known to use scare tactics to coerce defendants to plead guilty, threatening them with terrifyingly long sentences if they do not cooperate (Human Rights Watch [HRW], 2013). With only 3 percent of federal drug cases actually going to trial, and nine out of ten federal drug trials resulting in conviction (HRW, 2013), the plea bargain process must be evaluated for fairness in its methods to avoid overuse and misuse. Prosecutors have powers that go largely unchecked and unquestioned, and the passage of the Sentencing Reform Act and federal mandatory minimum guidelines served to increase their clout.
The Sentencing Reform Act of 1984 was legislated in part to eliminate judicial discretion in sentencing. Prior to the SRA, although judges often agreed on verdict decisions, they greatly varied on appropriate sentence length (Yang, 2003). To reduce the sentencing disparity thought created by judicial discretion, the SRA legislation stated that race, ethnicity, socioeconomic class, religion, or gender could not be used to make sentencing decisions (Yang, 2003). As valiant an effort as this was, unfortunately the same individually held biases, as well as biased legislation and enforcement of laws, continue to contribute to an unfair and discrepant United States criminal justice system.
Presidential candidates from both the Republican and Democratic parties have acknowledged the flaws in America’s criminal justice system. Ted Cruz (R-Texas) is calling for mandatory minimum sentencing guidelines to be reformed, as well as greater oversight on prosecutorial discretion and the plea bargaining process (Campbell, 2015a). Marco Rubio (R-Florida) believes that our laws need to be more easily understandable, and that the civil forfeiture process should be reevaluated (Campbell, 2015a). Rand Paul (R-Kentucky) addresses the disparity of young Black men in our nation’s jails and prisons for nonviolent offenses (Campbell, 2015a). Paul helped introduce legislation to eliminate the crack to powder cocaine disparity, as well as free those incarcerated under the old 100:1 or 18:1 ratios (Campbell, 2015b). Paul has also supported legislation to increase judicial discretion in mandatory minimum cases; restore voting rights to nonviolent offenders; lessening the punishment for small amounts of drugs to reduce non-violent felony drug convictions (Balko, 2015).
Hillary Clinton (D-New York) seems to glance over criminal justice policy reform ideas geared toward lessening the racial disparity caused by mandatory minimum sentencing and the War on Drugs. Clinton has stopped short of agreeing with the legalization of recreational marijuana during debates, but called for reforms in the area of non-violent drug sentencing (Newman, 2015). Martin O’Malley (D-Maryland) is running on a platform to eliminate the crack to powder cocaine disparity, reclassify marijuana as a less serious Schedule-II substance, and eradicating mandatory minimum sentencing structures for non-violent and minor drug offenders (Balko, 2015). O’Malley also supports educational funding, job training, and other supports to aid prisoner re-entry to the civilian world (Balko, 2015). Bernie Sanders (D-Vermont) supports marijuana legalization to reduce the number of lives ruined by non-violent drug convictions (Newman, 2015). Sanders also calls for prisoner re-entry support systems to aid in reducing the likelihood of recidivism and increasing employment opportunities, as well as restoring voting rights for felons who have completed their sentences (Hardy, 2015).
In the 114th Congress in April 2015, Representative Robert Scott introduced the Fairness in Cocaine Sentencing Act of 2015 (H.R. 1255) to dispose of any discrepancy between powder and crack-cocaine sentencing, and eliminate mandatory minimums in sentencing (Scott, 2015). H.R. 3530, also proposed during the 114th Congress, seeks to remove mandatory minimum sentencing guidelines for all drug offenses (Waters, 2015). The Sentencing Reform and Corrections Act of 2015 (S.2123) was submitted for consideration by the 114th Congress to reduce mandatory minimum sentences placed on non-violent drug offenders; and to retroactively apply the new standards to individuals convicted of a crack-cocaine offense before August, 2010 (Grassley, 2015). These proposed legislative ideas would go a long way in reducing the negative impact that the War on Drugs and the corresponding mandatory minimum sentencing guidelines have had on minorities in America.
It is essential to amend the federal sentencing guidelines so that no disparity exists between crack and powder cocaine. Crack and powder cocaine are forms of the same drug, with studies failing to show a significant difference in harm caused by usage of either. Reducing the 100:1 ratio to 18:1 is definitely a step in the right direction, but a 1:1 ratio would be a more evidence-based sentencing structure that should ultimately help reduce racial disparities in the federal system.
Retroactively applying the 2010 Fair Sentencing Act to all pre-existing federal drug sentences is another crucial piece of reform that must be enacted to reduce the percentage of America’s Black communities behind bars. As of 2014, 7,748 pre-existing mandatory minimum sentences for crack-cocaine were given retroactive relief under the FSA; however 6,242 requests for relief were also denied for a variety of reasons (USSC, 2014). Highlighting the overwhelming racial disparity in crack-cocaine sentencing and how outrageous the mandatory minimum guidelines are for Blacks in America is the data on FSA crack sentence relief. When the Fair Sentencing Act was enacted, 435 Whites and 612 Hispanics were granted sentence relief, while 6,607 Blacks were granted relief (USSC, 2014). In 2011, the Bureau of Prisons estimated that the reduction in sentencing disparity would save $200 million in the first five years alone by considering roughly 12,000 current federal inmates serving crack cocaine sentences for early release (Gresko, 2011).
Enforcing prosecutorial adherence to ethical standards during the charging and pre-trial process is also imperative. It has been proven that allowing prosecutors as much discretion as they have been given is a recipe for disaster. From prison expansion to charging decisions, plea bargains, and sentence reductions, prosecutors hold an enormous and unchecked amount of power in our criminal justice system. Removing judicial discretion and placing it in the hands of prosecutors in the Sentencing Reform Act has backfired and caused even higher rates of racial disparity throughout the justice process than before this failed piece of legislation was enacted.
We also must reform punishment, sentencing, fines and compensation structures to better consider the racial and socioeconomic factors that may contribute to these disparities. An individual’s socioeconomic status or race should not put them at an automatic grave disadvantage when they come into contact with the criminal justice system. We must conduct more research into the underlying causes of the enormous racial disparities in the application of mandatory minimums. From arrest through sentencing, every aspect of the criminal justice system must be overhauled until justice, and not systematic racism prevail.
In order to reduce racial disparities throughout the criminal justice system, we must demand an increase in the sensitivity and racial justice education level of all people involved in the administration of justice in order to address unconscious racial bias in the criminal justice system. Police, the first point of contact with the criminal justice system, have a history of blatant racially charged behavior. Although Blacks compose only 13% of our national racial demographic, in New York City, 83% of pedestrians stopped by police for stop-and-frisk encounters are Black or Latino, while just 10% were White (USSC, 2015). Blacks and Whites have comparable rates of drug use, and Whites sell drugs at a much higher rate than Blacks; however Blacks have a rate of drug incarceration that is ten times higher than Whites. (Kahn & Kirk, 2015).
Obstacles that prevent obtaining educational funding following a drug conviction or period of incarceration should be removed in favor of programs that seek to assist in reducing the hardship placed on individuals who have served their sentences and wish to successfully reintegrate into society. Employers must be banned from requiring applicants to disclose their prior criminal conviction record, or using a conviction as a basis for an employment decision. Being incarcerated has been found to reduce an individual’s employment rates by 15% to 30% (Schmitt & Warner, 2010). The overwhelming negative impact that incarceration has on earning power after release is a second form of punishment for former inmates. Once they have served their sentence, we must provide them with re-entry assistance services as job training, housing aid, and educational assistance. Incarceration is meant to be both punitive and rehabilitative, and to abandon the promise of rehabilitation is a disservice to American society.
Misconceptions about the correlation between race and crime fed into the public and political desire to focus on drugs as the primary focus of law enforcement endeavors. Without using evidence-based premises for legislation, hundreds of years of justice policy have contributed to a egregious racial disparity in our incarcerated population, with the War on Drugs being the main contributor to both the era of mass incarceration and overwhelming disparity in our criminal justice system. America’s national drug control spending rose dramatically from under $2 billion in 1981 to $3.2 billion in 1995 (BJS, 1995), to greater than $18 billion in 2001 (Desmond & Emirbayer, 2010).
The United States of America has gotten far away from its stated core value of equality for all people, and it is imperative that we take the necessary steps toward closing the racial disparities within the justice system. The enormity of this problem warrants further research and widespread reforms that undo the damage done to our nation’s Black families and communities. Our lawmakers must put forth legislation based on logic and evidence, not misinformation and social panic. It is time for America to face the sobering fact that the War on Drugs has been a losing effort since its inception in 1971, and to evaluate and reform our approach to drug use and abuse in our country. Freedom following incarceration should be just that – freedom, not the continuation of an already arbitrary and unjust prison sentence. Until we fix racial disparities and mindsets throughout the criminal justice system and society as a whole, these policy recommendations are merely Band-Aids on a gaping wound that is racism in our world.
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