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The Trial That Is the Obama Admin's Greatest Shame

The US still jails thousands of African Americans on sentences it admits were unfair.

The differential treatment of crack cocaine and powder cocaine by America's criminal "justice" system has been exposed as discriminatory and admitted to be unfair. Yet, the secret nightmare continues for thousands of African Americans still in prison for crack cocaine offenses, while people convicted of powder cocaine offenses – the majority of whom are white or Hispanic – have served far shorter sentences. Even as the US government has reformed the injustice of punitive sentencing for crack, it has doubled down on the injustice for those imprisoned before the reforms.

I'll never forget the first time I had to explain federal crack cocaine laws to a client. I was 25 years old, fresh out of law school, and working as a public defender in Alabama. I had come to the local jail, where my client was being held in a 6ft x 8ft cell with three other men and no access to fresh air or to a single window.

My client thought he would be released from jail and home with his family after our first appearance in court. Instead, I told him, the tiny bag of crack cocaine that police had found in his car – less than half the size of a ping-pong ball – meant that he would likely spend the next five to 40 years in prison.

Last month, President Obama quietly did something that should shake every American to the core. Seeking to enforce federal crack cocaine laws that have since been repealed, the  Obama administration asked a federal appeals court to ensure that thousands of human beings, mostly poor and mostly black, remain locked in prison – even though everyone agrees that there is no justification for them to be there.

To understand Obama's decision and to understand why you have probably not heard about this, it is important to realize just how normalized rampant incarceration has become in our society. America now puts people in prisons at rates unparalleled in the modern world and unprecedented in American history. The US has 5% of the world's population and 25% of its prisoners.

Half of all human beings in federal prison are there because of a nonviolent drug offense. The number of nonviolent drug offenders in prisons and jails around America has increased 1100% since 1980. The vast majority of those in prison are very poor. African Americans constitute only 14-15% of the nation's drug users (about the same as their percentage of the general population); yet, they constitute 37% of those arrested for drug offenses, 59% of those convicted for drug offenses, and 74% of those sentenced to prison for a drug offense.

The result: twenty years or so into the "war on  drugs", America incarcerated blacks at a rate six times higher than South Africa did during apartheid.

Until President Obama signed the Fair Sentencing Act, on 3 August 2010,  there had been, for over two decades, a 100:1 disparity in the quantities of drugs seized that would trigger the mandatory minimum penalties faced by tens of thousands of people like my client. In other words, while my client's five to 40 years was triggered by only 5g of crack cocaine, it would take 500g (half a kilo) of powder cocaine to trigger the same penalty.

A further disparity: 82% of federal crack cocaine defendants are African-American; only 27% of powder cocaine defendants are African-American. In the early years of the 100:1 ratio, from 1988 to 1995, no whites at all were brought to trial by federal prosecutors under the crack provisions in 17 states, which included major cities such as Boston, Denver, Chicago, Miami, Dallas, and Los Angeles.

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