Thousands Are Victimized by the Mandatory Harsh Sentencing for Crack -- Will They Get Justice?

Over 12,000 prisoners serving harsh sentences for crack cocaine possession and distribution may have their sentences reduced. Previously, people convicted for crack--overwhelmingly black--were given sentences 100 times greater than those convicted of possessing the same quantity of powder cocaine, two pharmacologically identical drugs. Under the Fair Sentencing Act, signed by President Barack Obama in August 2010, the ratio fell to 18:1. The United States Sentencing Commission will soon decide whether to make the law retroactive.

“It takes 50 grams of crack [to get a mandatory ten years], versus 500 keys of cocaine,” says Lawrence Garrison of Washington D.C. He was released two years ago after a 2007 Commission decision to make a smaller sentencing reduction retroactive, along with 2,788 other prisoners. “And that’s a lot of cocaine.”

Garrison, who served 11 years and 5 months, still has a twin brother behind bars. Lawrence and Lamont Garrison still maintain their innocence of charges of conspiracy to distribute cocaine and crack cocaine.

The vast sentencing disparity between crack and powder cocaine has wreaked disproportionate havoc on African-Americans. Under the 1986 Anti-Drug Abuse Act, judges were required to impose harsh mandatory minimums minimum sentences, and the Commission established a range of extended sentences in cases where there was an aggravating factor, like a weapon or prior conviction. Someone convicted of possessing just five grams of crack (cocaine processed into a smokable rock crystal) would be sentenced to a mandatory minimum of five to 40 years in prison--the same for someone convicted of possessing 500 grams of powder cocaine. 50 grams or more of crack would trigger a minimum sentence of 10 years to life, compared to 5,000 grams or more of powder cocaine.

Five grams of crack is about 25 doses, the amount the lowest-level street dealer might carry in his pocket. And ironically, since most cocaine is trafficked in powder form before being processed into crack, larger drug dealers were far less likely to be get hit with the harsh mandatory minimums for crack.

Under the new law, there is no mandatory minimum for less than 28 grams of crack. But 28 grams or more will still trigger a five to forty-year sentence, and over 28 grams 10 years to life.

If the Commission rules that the guidelines should be applied retroactively, 12,040 prisoners--85 percent of whom are black and 96 percent of whom are male--could petition for a reduction. The Commission estimates that the average eligible prisoner would receive a reduction of 37 months, from 164 to 127 months. 280 prisoners, however, would receive a reduction of over ten years. And while a little over a third of the prisoners would likely be released within a year, slightly less than a third would still face at least 5 more years behind bars.

On June 1, the Sentencing Commission will hold a hearing to determine whether to make the amended guidelines effective retroactively. The online civil rights group Color of Change has initiated an email campaign, where supporters can contact the Sentencing Commission in favor of the proposal.

The Garrison twins were arrested in April 1998. Karen Garrison, their mother, says that more than a dozen police arrived at 5:30 am, throwing her to the floor of her bedroom and handcuffing her sons, both of whom were a month away from graduating Howard University.

“The only record they had was a school record,” says Karen. “They went to school every day.”

The police moved through the house, and searched everything.

“It looked like something off of cable TV,” she tells me, her voice still betraying amazement 13 years later.

They found guns and drugs--but not at her house. Tito Abea, a major drug dealer in the neighborhood, pleaded guilty to selling drugs from his auto body shop. He cut a deal with prosecutors, and he was pointing his finger at the Garrison twins. Though the twins were never found with any drugs, the testimony of three drug dealers--Tito, his brother Pedro Abea, and Felix Ogando--and almost nothing else was enough to put them behind bars. The defense requested that that the District Court judge remind the jury that the testimony of witnesses seeking a deal from prosecutors should be “weighed...with greater care than the testimony of a witness who has not testified pursuant to a cooperation agreement,” and “should consider whether the witnesses who fit that circumstance are testifying falsely and in order to obtain favorable consideration from the government or some other disposition in their own case."

The judge denied the request. The large amount of drugs the twins were convicted of distributing was based solely on Tito Abea’s testimony.

Lawrence says that they were initially charged just for powder cocaine, but that the prosecutors found a way to pin crack on them, dramatically upping the sentence. He says the prosecutors wanted to use the large sentence to pressure them to cut a deal and name names--like they did with Tito.

“The government came and said, ‘you have to tell us who these people are, these people in New York.’ And we didn’t know these people!”

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“Conspiracy” charges allow prosecutors to charge anyone found to be part of a “conspiracy” for the same underlying drug crime.

“The effect of this amendment was to make everyone in a conspiracy liable for every act of the conspiracy,” Eric E. Sterling told PBS. Sterling is president of the Criminal Justice Policy Foundation and former Counsel to the U.S. House Committee on the Judiciary, where he helped draft drug enforcement legislation including the 1986 law. “If a defendant is simply the doorman at a crack house, he is liable for all the crack ever sold from that crack house -- indeed, he is liable for all of the crack ever sold by the organization that runs the crack house.”

And, says Sterling, defendants “can also be the victims of lies by codefendants who have figured out how to cut a deal and manipulate the sentencing laws to their advantage.”

“A drug offender while in jail awaiting trial may learn the names of other persons awaiting trial. He may learn all about substantial assistance. He may learn that he can easily make up a story that will get him out of prison fairly soon if his story provides ‘substantial assistance’ in the prosecution of someone else as a ‘high level trafficker.’ The quantity of drugs in a drug case need not be shown by physical evidence. You don't need 500 kilograms of cocaine powder to establish 500 kilograms for sentencing purposes. The simple testimony of a witness, usually offering ‘substantial assistance,’ is enough to ‘prove’ that a quantity of drugs was sold. A clever informant can prove that someone else is a ‘high level trafficker’ without too much trouble.”

Indeed, the highest-level dealers are in the best position to inform on the largest number of people, and thus most likely to benefit from a sentence reduction. If defense attorneys attempted to pay a witness, of course, that would constitute an illegal act of bribery.

The wide use of conspiracy charges have been condemned for allowing hearsay evidence obtained from government informants to help convict innocent people and for convicting girlfriends, mothers and sisters with no substantial connection to drug dealing.

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Karen Garrison is glad to have her son Lawrence back home. But Lamont is still behind bars, and she hopes he might get out early if the Commission makes the new guidelines retroactive.

““He was 36, 37?,” she says, when asked about Lawrence’s first day back home. “I didn’t even know him. I just knew the little boy...It just changed everything. Everything you thought was going to happen, it didn’t. My aunts are in their late 80s now, and they’re just happy to live to see one of them home.”

Since the twins were arrested in 1998, Garrison has dedicated her life not only to winning her sons’ freedom, but to fighting against the harsh mandatory minimum drug sentences that have destroyed working class black neighborhoods like the Northeast D.C. neighborhood of Trinidad where she raised her sons.

“Everybody got arrested,” says Garrison, who quit her work as a makeup artist and joined the organization Families Against Mandatory Minimums. “And everyone’s waiting for the phone call. It’s like we all went to jail.”

Lawrence was sentenced to 15 and a half years, but Lamont got 19 and a half for obstruction of justice, meted out for “committing perjury.” He had stated that he was not a drug dealer, so when he was convicted of being a drug dealer, that statement was deemed a lie.

The two brothers did everything together growing up, and wrote each other three times a week in prison.

“It’s hard one without the other. He looks so funny without his brother, you know?” says Karen.

“I haven’t seen my brother in 13 years,” adds Lawrence. “I was able to write him, but that was it. I miss my brother every day I’m home. I really felt it when I was away. But when I was first able to turn the key in my home where my mother and I live, I felt like he would be there. But he wasn’t.”

The new Fair Sentencing Act has major shortcomings, the most important being that the reduced mandatory minimums cannot be made retroactive except by another act of Congress. If the Commission makes the new guidelines retroactive, prisoners could only receive a sentence reduction above the mandatory minimum. Someone convicted for, say, possession of five grams of crack--the old mandatory minimum--on January 2010 cannot have his sentence reduced. According to the Commission, 5,082 prisoners fall into the category of people who will continue to serve longer sentences than if they were sentenced today. The study also matter-of-factly notes that five offenders are “projected to die before the end of their sentence,” and thus will likely not be eligible for a reduction.

And judges are in open revolt over a loophole that seems to require them to sentence offenders under the old law if they were arrested before the bill was implemented in August.

The 1986 law was enacted amidst hysteria over the inner-city crack epidemic. The cocaine overdose of college basketball star Len Bias--initially attributed to crack--fueled the fire. House Speaker "Tip" O'Neill was eager to make the Democrats look tough on crime after Republicans had successfully used the strategy against Democrats in 1984. The law was drafted and passed without a single expert being consulted. 

In 1995, the Commission proposed adopting a 1:1 sentencing ratio, but congress and President Clinton rejected it. The next day, riots exploded at federal prisons nation-wide.

In 1997, the Commission reiterated its criticism of the sentencing disparity, and proposed that Congress enact a 5:1 ratio.

But in recent years, the budget crisis has forced lawmakers to think twice about the huge expense of mass incarceration, and for the first time a number of prominent conservatives like Newt Gingrich have called for prison reform. The conservative former Republican congressman, DEA administrator and U.S. attorney Asa Hutchison has called on the Commission to make the new rules retroactive.

And in the 2007 case U.S Booker v., the Supreme Court pushed back against strict federal sentencing guidelines, restoring judge’s power to choose more lenient sentences.

The courts that convicted the Garrison twins, however, had no problem abiding by the harsh guidelines.

The Eastern District of Virginia accounts for a full 7.3 percent of the crack convictions that could be eligible for relief, and the 4th Circuit of which it is part--and which denied the twins' appeal--a staggering 25.7 percent.The Fourth Circuit was notoriously right wing before recent Obama appointees took their seats, handing down decisions supporting the Bush Administration’s detainee policies and striking down a law allowing rape victims to sue their assailants in federal court. In 1999, they even voted to overturn the requirement that police read suspects their Miranda rights--a requirement the Supreme Court later upheld. 

“Virginia was the worst circuit,” says Karen Garrison. “They called it the ‘rocket docket.’”

Harsh and uneven mandatory minimums, and the Drug War in general, have fueled the mass incarceration of black American males in both state and federal prisons. In 2009, there were 208,118 people locked up in federal prisons, nearly half of them drug offenders. The number of state inmates grew 708 percent between 1972 and 2008, according to the Pew Center on the States, before declining slightly in 2009 to 1,404,503.

“Most of the people who were in prison were just like my brother and I,” says Lawrence. “First time offenders, mainly non-violent. But their sentences were very, very disproportionate to the crime: first time offenders serving 15 to 20 years. That was the norm. And unfortunately, they were African-Americans...We’re the minority in this country, but we’re the majority in prison.”