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December 2, 2007 - Connecticut Post (CT)

Drug Laws Called Unfair To Minorities

By Peter Urban

Return to Drug War News: Don't Miss Archive

WASHINGTON - More than 200 inmates incarcerated in federal prisons in Connecticut for crack cocaine offenses could see their sentences cut by an average of 27 months under a plan contemplated by the U.S. Sentencing Commission.

The independent commission is considering applying newly established crack cocaine sentencing guidelines retroactively to those sentenced prior to Nov. 1, when the guidelines took effect.

In Connecticut, the retroactive proposal would mean that 57 federal inmates would be eligible for release within the first year, 87 more would be eligible for release in the following five years and another 47 after that.

Overall, 19,482 federal inmates sentenced between Oct. 1, 1991 and June 30, 2007 could be eligible for a reduced penalty with as many as 3,800 freed within the next year.

Cliff Thorton, executive director of Hartford-based Efficacy, a nonprofit social justice organization, said there is a definite racial and socio-economic bias in the nation's drug laws. "There are two types of justice -- one for the well-connected and one for the unconnected," he said.

Thorton pointed out that those convicted of drug crimes involving crystal methamphetamine - a drug popular in rural, White America - do not face similarly stringent sentencing guidelines even though the drug is considered as dangerous as crack.

"The driver behind this whole thing is money and the glue is race. If whites were incarcerated for drugs like this there would literally be armed insurrection," he said.

While applauding the proposed changes, Thorton said more needs to be done to repair the damage of two decades of discrimination that has "screwed up the lives" of not only the crack convicts but their families and communities.

"I feel strongly that we have to look at what we are going to do with all these people. We've screwed up their lives forever. It is difficult to reintegrate into the community and it will be tough to get jobs," he said. "And, I'd be willing to bet that the kids on the street today - one or both of their parents is serving time for drug charges."

Congress established harsh mandatory minimum penalties for crack cocaine in 1986 after the death of University of Maryland basketball star Len Bias, who had just been selected as the top NBA pick by the Boston Celtics. Bias died after snorting powder cocaine.

Since then, more than 76,000 crack offenders have been sentenced under the federal guidelines. In 2000, the average prison sentence for trafficking in crack was 117 months, while the average sentence for trafficking in powder cocaine was 74 months.

The commission, which was established in 1984 to bring more consistency to sentencing in federal courts, has recommended a reduction in harsh sentencing guidelines for crack cocaine offenses since 1995 but had been thwarted by Congress until this year.

This May, the commission again proposed reducing penalties for crack cocaine to bring them more in line with powdered cocaine and Congress took no action to block the effort. The new guidelines took effect Nov. 1. The change is expected to reduce new crack sentences by an average of 15 months.

The commission is now deciding whether to apply the guidelines retroactive as it has done previously when it reduced sentences involving LSD and for growing marijuana.

More than 33,000 letters of comment have already been sent to the commission on the retroactive proposal. The commission also recently held a public hearing on the subject at Georgetown University School of Law.

The Bush administration opposes the new plan, arguing that it would overburden federal courts and release potentially dangerous drug offenders.

U.S. Attorney Gretchen Shappert, who serves in the Western District of North Carolina, argued against applying the sentencing guidelines retroactively saying it would harm African-American communities. "Crack cocaine is not a victimless crime. The victims are the people who are addicted to it, their neighbors and the communities," she said. "They create open-air drug markets where there is 24-hour-a-day dealing in relatively small quantities of crack that profoundly impact the community."

Shappert also argued that going back to review the 536 defendants in her district that could be eligible for a reduced sentence would take time away from prosecuting new cases.

"We have seen, in the past year and the past three years in Charlotte, a significant rise in the murder rate, an increase in violence. Indeed, the murder rate has gone up 44 percent since 2005 and has remained at that level," she said.

U.S. Attorney Kevin O'Connor in Connecticut agreed with Shappert and said he is concerned that revising prior sentences for crack convictions would burden his office and the courts.

"One of the challenges is not just the number of cases involved but many of the prosecutors in those cases have left the office," he said. "So we would have to have someone else get up to speed on those files that have not been looked at for years."

O'Connor said that his office has focused most of its drug enforcement strategy on those bringing large quantities of drugs into the state rather than on the street-level dealer. Most of the cases involve crack cocaine or heroin, which tend to be the drugs of choice in Connecticut.

State Rep. Michael Lawlor, who co-chairs the Judiciary Committee, said that treating crack cocaine differently than powdered cocaine is unfair and ineffective.

"We are talking about different penalties for the same drug. It would be like having one penalty for drunk driving if you drank whiskey and a different penalty if you drank beer," Lawlor said.

Until 1995, Connecticut imposed higher penalties for those convicted of drug crimes involving an ounce of powdered cocaine or 0.5 grams of crack cocaine. State lawmakers tried to raise the "trigger" to an ounce for both types of cocaine but Gov. Jodi Rell vetoed that bill.

A compromise was reached later, setting the "trigger" at 0.5 ounces for each variety.

Beyond the obvious disparity in setting different standards for essentially the same drug crime, the law also drew sharp criticism as unfairly targeting poor African-Americans.

Of the 19,482 federal inmates that could receive a reduced sentence for possession and distribution of crack cocaine 86 percent are African-American, 8 percent Hispanic and 6 percent white, according to the commission's analysis.

The commission did not break down the racial or ethnic profiles of the 217 Connecticut inmates that could be eligible for a reduced sentence. Hilary Shelton, director of the NAACP's Washington bureau, urged the commission earlier this month to make the sentencing guidelines retroactive.

"Few people today argue that policy makers could have foreseen, 20 years ago, the vastly disparate impact the 1986 law would have on communities of color, yet the fact that African-Americans and especially low-income African-Americans continue to be disproportionately and severely penalized at much greater rates than white Americans for drug use," she said.

While 83 percent of those convicted of federal cocaine offenses are African-American, the federal government's most recent survey found that less than 18 percent of the nation's crack cocaine users were African-American, Shelton said.

U.S. District Judge Reggie B. Walton also told the commission that the sentencing disparity between crack and powdered cocaine is fundamentally unfair to the African-American community that has seen a "disproportionate number" of African- American males incarcerated for significant periods of time as a result of their involvement in crack cocaine.

After some soul searching, Walton said he also came to believe that the new guidelines should apply retroactively.

"I just don't see how, in good faith, one can say that just because someone was sentenced on October 30th, that they get a certain sentence, whereas someone who's sentenced on November 1st receives a different sentence," he said.

While the commission can take some steps to reduce the disparity in sentencing, it cannot change the mandatory minimum and maximum sentences in the law enacted by Congress.

Congress, however, is contemplating those changes in at least three bills that have been introduced in the Senate.

Sen. Joe Biden, D-Del., has proposed legislation that would eliminate sentencing differences between crack and powder cocaine in favor of a single mandatory minimum at the current powder cocaine levels.

Sen. Orrin Hatch, R-Utah, has introduced a bill this year that would increase the amount of crack cocaine needed to trigger the five-year mandatory minimum sentences from five to 25 grams and the 10-year mandatory minimum from 50 to 250 grams.

And, Sen. Jeff Sessions, R-Ala., has proposed a bill that would raise the crack cocaine "trigger" to 20 grams for the five-year minimum sentence and 200 grams for the 10-year minimum. It would also reduce the "trigger" for powdered cocaine from 500 grams to 400 grams for the five-year minimum and 5 kilograms to 4 kilograms for the 10-year minimum.

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