Taking a new look at the war on drugs

October 2, 2013

Attorney General Eric Holder announced that his Justice Department is reconsidering draconian sentencing. Helen Redmond provides the background for this move.

AFTER 40 years of a ferocious and unrelenting "war on drugs," which has targeted primarily African Americans, the Obama administration is proposing reforms, with the Department of Justice (DOJ) announcing a new policy to reduce draconian penalties for low-level drug offenders.

In a speech to the American Bar Association in August, Attorney General Eric Holder made a long overdue public admission:

Too many Americans go to too many prisons for far too long, and for no truly good law enforcement reason...A vicious cycle of poverty, criminality and incarceration traps too many Americans and weakens too many communities. The war on drugs is now 30, 40 years old. There have been a lot of unintended consequences. There's been a decimation of certain communities, in particular, communities of color.

Holder stopped short of saying the war on drugs is racist, but the stunning racial disparities replicated decade after decade cannot be denied. From the neighborhoods that are subjected to violent drug raids, to the people who are stopped and frisked, to the application of mandatory minimum drug sentences, Black people are disproportionately targeted by the police and treated more harshly by the criminal justice system.

Attorney General Eric Holder with President Barack Obama
Attorney General Eric Holder with President Barack Obama

THE WAR on drugs is first and foremost a war on Black people. The drug war is directly responsible for disappearing generations of young Black men and women into America's gulags. It is the main driver of mass incarceration.

According to the Federal Bureau of Prisons, there are 89,000 people doing time for drug offenses. They are the largest category of federal prisoners and account for nearly half of all federal prisoners. The Sentencing Project estimates that more than 60 percent of those in prison for drug offenses are racial and ethnic minorities.

The United States imprisons a larger percentage of its Black population than South Africa did at the height of apartheid. African Americans are only 14 to 15 percent of the nation's drug users, about the same as their percentage in the general population, yet they represent 37 percent of those arrested for drug offenses, 59 percent of those convicted for drug offenses, and 74 percent of those sentenced to prison for a drug offense.

The racism of the drug war was most starkly revealed in the differential treatment between crack cocaine and powdered cocaine. In the 1980s, mandatory minimum sentencing laws were passed that used a 100-to-1 differential in the quantity of drugs seized to determine the length of prison terms. The possession of five grams of crack resulted in an automatic sentence of five years, but it took 500 grams of powdered cocaine to trigger the same sentence.

Despite the media-driven, racist crack hysteria, Blacks do not use crack more than whites; in fact, more whites use crack cocaine. Moreover, the two substances are pharmacologically identical: crack is not more addicting than powdered cocaine and doesn't make users more violent. But guess which communities and crack users law enforcement targeted? The numbers speak volumes: 82 percent of federal crack cocaine defendants are African American.

In the early years of the 100-to-1 rule, from 1988 to 1995, no whites at all were brought to trial by federal prosecutors under the crack provisions in 17 states, including the cities of Boston, Denver, Chicago, Miami, Dallas and Los Angeles.

The U.S. Sentencing Commission (USSC) released three reports that documented profound racial bias in the 100-to-1 rule and argued for a complete repeal. For more than 24 years, both Democratic and Republican administrations ignored the USSC's recommendations.

Who are the thousands of human beings locked up by mandatory minimum drug laws? Families Against Mandatory Minimums (FAMM) has chronicled the lives that have been stolen by the war on drugs. The stories are jaw-dropping and make real the inhumane impact of drug laws that chuck mainly poor, young mothers and fathers in to cages for decades and even for life.

Here are a few of those stories:

-- Reynolds Wintersmith has spent his entire adult life and nearly half of his entire life, in federal prison. In 1994, at the age of 20, he was sentenced to life without parole for his role in a crack cocaine conspiracy--his first conviction.

Atiba Parker is serving 42 years in prison for less than three grams of crack cocaine. He has a diagnosis of schizoaffective disorder.

Sisters Angela and Kimberly Bush were sentenced to 15-and-a-half years and 19-and-a-half years respectively for conspiracy to manufacture cocaine base. Angela has three children, one of which was placed in foster care after her arrest, and Kimberly's six children are split up between three different aunts.

As crack use decreased, the war on drugs shifted to marijuana. In 2012, drug offenses were the single most common cause of arrest, and marijuana possession made up 42.4 percent of the arrests--that's over 850,000 people.

Like crack, arrests for marijuana are not race-neutral. A report by the ACLU showed that despite similar rates of use, a Black person was 3.73 times more likely to be arrested for marijuana possession than a white person. Busting Black people for small quantities of marijuana is the bread and butter of the war on drugs.

THE CORE of the Justice Department's new policy is to reduce excessively long prison sentences for low-level drug offenses. Now, prosecutors are to omit references to specific quantities of illicit substances that then trigger mandatory minimum sentencing laws.

But the policy change only applies to defendants who meet the following criteria: the offense didn't involve violence, the use of a weapon or selling drugs to minors; they are not leaders of a criminal organization; they have no significant ties to large-scale gangs or drug trafficking organizations; and they have no significant criminal histories.

The new policy affects defendants who are currently in the criminal justice system but haven't been sentenced, and defendants who have been charged but guilt hasn't been established. For those who have been found guilty but no sentence has been enacted, prosecutors have discretion about whether to apply the new policy.

Holder wrote in a memorandum: "They [prosecutors] are encouraged to apply the policy in guilty-plea cases where legally and practically feasible," but they should generally "not seek relief for a defendant" who chose to go to trial.

And most significantly, the new rules don't apply to prisoners currently incarcerated by mandatory minimums. It means that more than 75,000 prisoners aren't eligible for sentencing reductions.

Molly Gill, an attorney at FAMM, said of the DOJ policy: "We've been getting a lot of calls asking, does this mean my loved one gets to go home?...For the vast majority of people, it doesn't change their sentences and it isn't retroactive."

To be sure, thousands of prisoners will now be able to avoid outrageously long prison terms, but why should a law that the DOJ acknowledges is unfair and racially biased not be applied to all prisoners? And the lack of retroactivity isn't the only problem.

The excessive criteria will be difficult for thousands to meet. For example, many drug users and dealers have "significant" criminal histories (often for petty crimes like drug possession, theft and street-level drug dealing), or have been associated with gangs. In large cities, gangs control drug markets and are a major source of employment. And prosecutors will still have enormous power in deciding which defendants meet the criteria.

Curiously absent from Holder's new directives was President Obama's ability to issue commutations and pardons to prisoners of the drug war. Thousands apply every year to the Office of the Pardon Attorney. To date, according to ProPublica, just one convicted drug offender had their sentenced reduced. Obama commuted the 22-year prison sentence of Eugenia Jennings, a mother of three.

There's racial bias in presidential pardons, too. ProPublica found that white applicants were nearly four times as likely to receive a pardon than minorities, even when the type of crime and sentence were considered.

THE DOJ didn't just wake up to the fact that mandatory minimum sentences were unjust and should be reformed. The changes in sentencing laws are the result of a number of factors that have coalesced: criminal justice activism that has consistently exposed the racism and barbarity of the war on drugs; the 40th anniversary of the Nixon-initiated, trillion-dollar drug war, which has clearly failed by every measure; the willingness of some politicians to criticize mass incarceration; the legalization of marijuana in the states of Colorado and Washington; the ruling in New York City that stop-and-frisk is racially biased and unconstitutional; and the skyrocketing costs of mass incarceration.

The major impetus, though, for reforms in the criminal justice system cited by many politicians and some liberal reformers is cost--suddenly it's too expensive for taxpayers and a waste of money to lock up thousands of people for nonviolent drug crimes.

The primary motivation isn't to win racial justice or to root out endemic racism in the criminal justice system. In an era of fiscal austerity, the $80 billion that is spent every year on the prison-industrial complex is no longer sustainable. And that's why still "tough on crime" Democrats and Republicans are now in favor of limited reforms.

That approach is wrong. As Michelle Alexander, author of The New Jim Crow, argued:

The argument that many criminal justice reformers have been making--that prisons should be downsized because they're too expensive--is doomed to fail in the long run. If cost is the limiting principle, then prison populations will rise as soon as we can afford to lock up more people again. Indeed, private prison companies admit that they're banking on exactly that.

The real issue we should be concerned about is not the cost to taxpayers but the human cost--the needless destruction of people, families and communities. Our children are not for sale and are not disposable--at any price.

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