Mukasey's Racist Threats on Changing Crack Sentencing Fall on Deaf Ears

Look out: Michael Mukasey wants you to know that you're less safe today than you were last week -- and it's got nothing to do with FISA.

The attorney general has been issuing dire warnings for months about the horrible things to befall society if Congress allows a change in federal sentencing guidelines that could lead to the early release of some 20,000 prisoners convicted for crack cocaine offenses. The sentencing revision was officially decided upon by the U.S. Sentencing Commission on Nov. 1; on Dec. 11 it voted to make the decision retrocative, meaning that federal prisoners already serving draconian sentences for crack cocaine convictions could also catch a break. The first wave of prisoners became eligible for release on Monday, March 3 -- but not before Mukasey made it his mission to stop it.

The attorney general -- who some would argue might have better things to do -- went before Congress multiple times to try to derail the measure, employing classic White House-style fear-mongering. "Unless Congress acts by the March 3rd deadline," he warned members of the House Judiciary Committee in February, "nearly 1,600 convicted crack dealers, many of them violent gang members, will be eligible for immediate release into communities nationwide." Channeling Dick Cheney, he said, "Many of these offenders are among the most serious and violent offenders in the federal system, and their early release at a time when violent crime is rising in some communities will produce tragic, but predictable results."

In fact, the vast majority of people locked up on federal crack cocaine charges are nonviolent offenders -- with one recent analysis by the Sentencing Commission showing the number close to 90 percent.

Regardless, Congress wasn't convinced by Mukasey's theatrics and let the revision stand. March 3 came and went. In the few days since the new sentencing guideline took effect, hundreds of court orders have flooded the Federal Bureau of Prisons. It is unclear how many prisoners have been freed.

Are you reeling from the sudden crime wave?

Laid bare, Mukasey's mission was not only dishonest, it was racist. If there was ever a baldly discriminatory criminal justice policy -- one that has long attracted bipartisan criticism -- it's the sentencing disparity between powder and crack cocaine offenses. First codified in 1986, when Ronald Reagan signed the Anti-Drug Abuse Act, the law imposed five-year minimum sentences on anyone found guilty of distributing five grams (about two sugar packs' worth) of crack cocaine. Yet it took 100 times that amount -- 500 grams -- of powder cocaine to get the same sentence.

Fueled by the fear of the crack epidemic, the guiding rationale was that crack cocaine was more addictive -- but years' worth of study have demonstrated this to be a myth. The real difference, aside from street price (crack is cheaper to produce and purchase) lies in the populations who use crack versus powder cocaine. The former is vastly more common in African-American communities. In 2006, more than 82 percent of federal defendants sentenced for dealing crack cocaine were black.

Anybody with a capacity for common sense can see the problem. But common sense has never had a governing role in the disastrous policies of the 30-year War on Drugs. Racism, on the other hand, has.

Thus, for more than 20 years, mandatory sentencing for crack cocaine -- 63 to 78 months for first-time offenders caught with five grams or more and 121 to 151 months for 50 grams or more -- has dismantled the lives of thousands of people, most of whom were convicted of street dealing and possession and many of whom were victims of circumstance.

Take the case of Dorothy Gaines (featured in an ACLU briefing here.) Romantically involved with a crack addict in 1994, she was slapped with drug conspiracy charges despite the total absence of drugs in her possession (or a criminal record for that matter). Sentenced to 19 (thanks to false testimony by snitches facing federal charges), Gaines was forced to abandon three children to go to prison. "I left a 9-year-old-son, an 11-year-old daughter, and a 19-year-old daughter," she said recently in emotional testimony. Natasha, her 19-year-old, dropped out of college so that her younger siblings would not be sent to foster homes.

In some ways, Gaines was lucky. She served only six years, her sentence commuted by Bill Clinton -- who recently expressed regret for his failure to curb sentencing disparities -- in 2000.

Michael Short wasn't so lucky.

"I was sentenced to 19 years and seven months, and I served 15 years, 8 months of that sentence for distributing 63 grams of crack cocaine, which is equivalent to $2,500," he said at the same ACLU hearing. "… It didn't take me 15 years to realize that what I did was wrong."

Nor should it have taken policy makers 20 years to realize that a sentencing disparity of 100 to one is horrible, racially discriminatory policy. But that's what happens when the people most brutally affected by unjust laws are the same people who are chronically ignored or -- when it's politically expedient -- demonized by elected officials.

Fortunately, elected officials from both parties have come around, as have former DEA officials, even the Supreme Court. But not the attorney general. "These offenders are often violent criminals who are likely to repeat their criminal activities," hetold the Fraternal Order of Police last month.

Earth to the AG: You can stop now. No one's buying it anymore.


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