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Crack Users Do More Time Than People Convicted of Manslaughter

When crack cocaine possession means 24 years in prison and manslaughter means only 3, you know something is seriously wrong with the U.S. criminal justice system.
 
 
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The death of Alva Mae Groves on Aug. 9 of this year went largely unnoticed outside of her family and fellow inmates at the Tallahassee Federal Corrections Institution, where she lived out the last 13 years of her life. She never went to high school, lived her entire life dirt-poor and raised her nine children for the most part without the help of her abusive husband.

In 1994 Alva Mae "Granny" Groves was locked up for conspiring to trade crack cocaine for food stamps. It was largely her son, whose trailer home she lived in, who ran an operation that her family and neighbors contested, but some customers testified that Alva Mae would sell them small bags when he wasn't around.

"The only money I received came from SSI (Supplementary Security Income) and what money I could earn selling eggs from my laying hens (I had about 100 chickens)," Alva Mae wrote shortly before her death in a letter asking for a pardon so that she could die near her family. "I also cleaned houses when I was able, and sold candy bars and soft drinks to the kids coming from school in the afternoons."

Because she refused to testify against her son, and because of the money she had saved in the bank, which was weighed against her for its value in crack, and most of all because of the current sentencing system for crack cocaine offenders, Groves was condemned to 24 years in jail at the age of 72.

In 1986, Congress passed a law that established an unprecedented five-year mandatory minimum sentence for anyone found in possession of two sugar packets worth of crack, regardless of whether or not that person had a criminal record. Beyond the minimum, additional "sentencing guidelines" tack on extra months or even years for obstruction of justice (which, in some cases, means refusing to admit guilt), whether or not there was a weapon on the premises and prior convictions.

Crack cocaine is treated more harshly than any other drug on the streets right now, mostly because of the "tough on crime" response that was en vogue at the time of its introduction. Marc Mauer, executive director of the Sentencing Project, a D.C.-based advocacy group that works for fairness in sentencing, explained that Congress attributed the sentencing tiers at the time to a desire to "protect the black community."

Ron Hampton, a retired D.C. police officer and executive director of the National Black Police Association, takes issue with that rationale. "It's hard for me to believe that you are going to have legislation that severely cripples and victimizes members of our community in order to do something good for us," he said.

Nonetheless, 20 years later, the sentencing structure still stands, and it is precisely the black community that is suffering the most.

According to the U.S. Sentencing Commission (USSC), a division of the judicial branch that monitors and advises Congress on sentencing policy, in 2006, more than four-fifths of crack cocaine offenders in federal courts were black.

The 1986 drug laws have had a devastating effect on the U.S. criminal justice system. Drug offenders in prisons and jails have increased 1100 percent since 1980, from 41,000 people to nearly 500,000.

Nearly 6 out of 10 people in state prison for a drug offense have no history of violence or high-level drug-selling activity but are often receiving harsher sentences than people who do. People caught with the drug in 2004, the last year for which data is available, served an average of ten years in federal penitentiaries, while the average convict served 2.9 years for manslaughter, 3.1 years for assault and 5.4 years for sexual abuse.

Many legislators, police officers and even federal judges have been vocal critics of the sentences being handed to crack cocaine offenders.

In 2002, Roger Williams University Law Professor David Zlotnick conducted a series of interviews with Republican-appointed federal judges to survey their views of various sentencing tiers. He found the majority of them saw crack cocaine sentencing as "completely unacceptable," "a grave injustice" and a "discrepancy that has no basis in fact."

However, says Monica Pratt, spokesperson for Families Against Mandatory Minimums, "Because crack cocaine mandatory minimums have applied mostly to people of color and poor people, there has been a lack of political will to do something about it."

Until now. The massive mobilizations in Jena, La., last month shined a much-needed spotlight on continuing disparity in the U.S. justice system. With a Supreme Court case addressing the issue starting on Oct. 2, a promising reform bill currently in the Senate and proposed USSC amendments just weeks away from taking effect (pending congressional opposition), a confluence of forces just might create the perfect storm that advocates for sentencing reform have been hoping for.

Said Mauer, "We have more momentum now than we have seen at any time since the laws were passed in 1986."

The main rallying point for many critics is the sentencing disparity between crack cocaine and powder cocaine, two drugs that are pharmacologically identical. The main difference, they contend, is who does them and in what neighborhoods.

A drug abuser whose drug of choice is powder cocaine would have to be found with more than two cups of it (500 grams) before receiving the same sentence as a person caught with two sugar packets worth (5 grams) of crack. All along the sentencing tier, 100 times more powder cocaine is required to trigger the same mandatory minimum penalty as crack. It is a system referred to as the "100-to-1" drug quantity ratio.

Since crack is made by cooking powder cocaine with baking soda or another base when it reaches the street retail level, the 100-to-1 ratio has served to exact harsher punishments on low-level dealers than the kingpins supplying the raw material. According to USSC data, low-level crack sellers are punished 300 times more severely than high-level, international cocaine traffickers on an imprisonment-per-gram basis.

There are two different types of sentences given to drug offenders: the mandatory minimums established by Congress and the sentencing guidelines tacked onto those minimums by federal prosecutors and accepted or denied by federal judges.

"The congressional wheel in many ways is the most important right now, because without congressional action, the mandatory sentences are still going to stand, whether the USSC changes the guidelines or the Supreme Court changes the way the judges administer them," says Pratt.

There are three bills currently introduced in Congress that attempt to address the 100:1 disparity, but only one that would eliminate it. The Drug Sentencing Reform and Cocaine Kingpin Trafficking Act of 2007 ( S.1711), introduced by Sen. Joseph R. Biden Jr., D-Del., would bring the penalties for possessing crack cocaine in line with those for cocaine in its powder form. It offers, according to the American Civil Liberties Union, a "long-awaited fix to discriminatory federal drug sentencing" that will take place only with increased pressure.

The sentencing guidelines are also slated to change, unless Congress moves to block them. The USSC sets the guidelines, barring congressional objections, and has proposed amendments to crack penalties in the past, which have been shot down. They forged ahead this year, however, bringing crack cocaine guidelines in line with powder guidelines in a list of amendments introduced last spring. They will go into effect on Nov. 1 unless somebody notices and tries to stop them. If implemented, the commission predicts the change would shorten 69.7 percent of incoming crack cocaine sentences, resulting in an average reduction of nearly 13 months.

In a highly unusual move, the USSC is also considering making the amendments retroactive and are seeking public comment on the issue. FAMM has been mobilizing its base, consisting predominantly of people incarcerated on drug charges and their families, to get involved in the political process and voice their opinions. "The public information officer for the USSC told our president, Mary Price, that they have received 10,000 letters on this issue already," Pratt said. The USSC predicts that retroactivity would reduce the sentences of approximately 19,500 current inmates.

Then there is Kimbrough v. United States, a crack-related case that just got under way in the Supreme Court. The case challenges a judge's discretion in sentencing a crack cocaine convict below federal sentencing guidelines and centers around the sentencing hearing for Derrick Kimbrough, a Desert Storm veteran in Norfolk, Va., who pled guilty in 2005 to possession with intent to distribute 56 grams of crack. Although he had no previous felony convictions, his mandatory minimum and federal sentencing formula recommended he be sentenced to 19 to 22 years. However, Federal District Judge Raymond A. Jackson called the guideline "ridiculous" and instead handed Kimbrough a 15-year sentence, a move that an appeals court later challenged his authority to make.

However, according to retired D.C. Officer Hampton, the crack problem that plagues many low-income communities across America won't go anywhere without a more "holistic" approach that considers responses that are more than punitive. "If they wanted to help, one of the best things they could do is treat people who use crack cocaine much like they do for powder cocaine," Hampton suggested. "They need to look it as a disease. That's another problem embedded in the disparity, not just the sentences, but the amount of treatment that is available to them."

Indeed, a "significant number" of dealers are also addicts, who might not find themselves in the courthouse without their addictions, according to Zlotnick's research.

"But more than that," says Howard, "we need to develop some strategy that focuses on the systemic issues that cause people to look for it in the first place. I think a lot of the problem is the despair in our community, because of lack of housing, lack of jobs, a poor educational system -- they all have a lot to do with why people do it. If we were to address those problems in our society, we'd probably see a lot less people doing crack."

But, for the meantime, he says, the laws are as good a place as any to start.

Jessica Pupovac is an adult educator and independent journalist living in Chicago.