Crack in the System by Rick Kern
Thu, Mar 20, 2008 On Monday, March 10, the U.S. Supreme Court, in a 7-2 vote, handed down a decision that will give federal judges 'discretionary' powers to give reasonably shorter sentences for crack cocaine related crimes.
The victory was bolstered by several Amicus Curiae (Friend of the Court) briefs filed by the American Civil Liberties Union, the National Association for the Advancement of Colored People, and the National Association of Criminal Defense Lawyers who contend that crack cocaine offenders have been unfairly marginalized by excessive prison terms under the mandatory sentencing guidelines.
Kimbrough v. United States worked its way up through the appellate system when its namesake, Derrick Kimbrough, pled guilty to distributing more than 50 grams of crack-cocaine and was sentenced to 15 years in prison instead of the 19 to 22.5 years suggested by the guidelines in question.
U.S. District Court Judge Raymond Jackson felt that the federal guidelines were excessive and supplanted what some consider an 'evenhanded approach' to justice in the case. Additionally, he noted that if Kimbrough had possessed only powder cocaine, his guidelines range would have been far lower at 97 to 106 months-less than a decade.
The Fourth Circuit reversed the decision, sending it on its path to the Highest Court, finding that a sentence outside the guidelines was, "unreasonable when it is based on a disagreement with the sentencing disparity for crack and powder cocaine offenses."
Eventually the U.S. Supreme Court accepted the case feeling that the circumstances described in the attorney's petition justified the full Court's review of the case. In their opinion, drafted by Justice Ginsburg, the High Court decided that, "The ultimate question in Kimbrough's case is whether the sentence was reasonable-i.e., whether the District Judge abused his discretion deviating from the Guideline's range."
Seven of the justices concluded that, "Giving due respect to the District Court's reasoned appraisal, a reviewing court could not rationally conclude that the 4.5-year sentence reduction Kimbrough received qualified as an abuse of discretion."
Following the Kimbrough ruling, the U.S. Sentencing Commission tendered a unanimous vote allowing inmates doing time for crack offenses to pursue sentence reductions under recently adopted guidelines. And while multiple factors weigh in on the net effect of the prospective reductions, sentences for crack offenders could reportedly be shortened by as much as 25 percent. The Sentencing Commission's recent vote is expected to eventually impact nearly 20,000 prisoners and bring the possible release of an estimated 1,600 inmates within the year.
Karen Bailey Turner, Esq., an Associate Attorney at Brown & Hutchinson law firm here in Rochester, applauds both the Supreme Court and the Sentencing Commission, calling their decisions "milestones on the path to equitable justice."
"Over the last two decades, the African-American community has suffered tremendously from the disparate and harsh sentences meted out to our men and women for dealing crack cocaine," she said, adding, "It's appalling to think that for some time, under our criminal justice system, a person who deals five grams of crack cocaine has faced the same sentence as someone who deals 500 grams of powder cocaine, since (statistically) the person dealing crack cocaine is more likely to be black and the person dealing powder cocaine is more likely to be white."
Turner's view is shared by many advocacy groups including the Human Rights Watch organization, who says Blacks make up a staggering 62 percent of drug offenders incarcerated in state prisons and comprise more than 80 percent of all people sent to prison on drug related charges. Furthermore, Black men are sent to state prison on drug charges at 13 times the rate of White men. And amazingly, one in every 20 African-American men over the age of 18 in the United States is in state or federal prison compared to one in 180 White men.
According to crackthedisparity.com, a cooperative website established by several advocacy groups, "The Sentencing Commission's guideline changes will not eliminate or even significantly alleviate the very long mandatory minimum sentences that many people are serving for crack cocaine offenses. Congress still must act in order to eliminate the statutory 100 to 1 disparity between crack and powder cocaine."
The National Association of Criminal Defense Lawyers (NACDL), who cited various sources on their website, says "the average crack cocaine sentence, 120 months, is greater than: the 103-month average sentence for robbery; the 76-month average sentence for arson; the 64-month average sentence for sexual abuse; and the 31-month average sentence for manslaughter."
For their part, the Justice Department is reported to have expressed grave concern that the dramatic sentence reductions and release of so many offenders will put dangerous criminals back on the streets. However, countering their misgivings is the fact that judges are required to approve sentence reductions on a case by case basis giving them the latitude to keep historically dangerous prisoners behind bars.
A recent CNN article addressing the issue profiled a statistical duel between the Attorney General's office and the U.S. Sentencing Commission. "Attorney General Michael Mukasey told a police group last week that statistics from the Sentencing Commission show that nearly 80 percent of the almost 20,000 who can ultimately apply in the coming years for reductions have a prior criminal record," the news giant reported.
"The commission, however, in a recent report pointed out that only 1 percent of the 1,600 immediately eligible were considered "career criminals."
The law firm of Jenner & Block which drafted the Amicus brief for the NAACP, made the powerful point that the Sentencing Commission was able to police itself, determining that its punitive structure was unrealistic and based upon false assumptions. The brief explained the "Sentencing Commission ("Commission") has determined that the Sentencing Guidelines ("Guidelines") overstate the seriousness of crack cocaine offenses, fail to provide just punishment for such offenses, and, as a result, promote disrespect for the law.
Specifically, the Commission found that the Guidelines' differentiation between crack and powder cocaine offenses lacks penological justification because crack cocaine is not more harmful or addictive than powder cocaine, does not cause more violent behavior than powder cocaine, and is not more likely than powder cocaine to coincide with or increase the likelihood of other crimes."
According to CNN, the Congress has introduced some four bills that would level the playing field between crack and powder cocaine sentencing. Among the more popular proposals is a joint measure led by Senators Orrin Hatch, R-Utah, and Edward Kennedy, D-Massachusetts which is also supported by the Sentencing Commission. The law would revise the cocaine ratio downward to 20-to-1.
Nonetheless, Turner reminds us that "Successful motions for sentence reductions will result in the earlier return of many inmates to African-American communities all over this country. It is crucial that we advocate for and participate in programs that focus on re-entry and on helping former prisoners successfully transition and positively contribute to our communities." |
