Yet another commission tasked with studying the problem of racial disparity in criminal sentencing has reported that black defendants are more likely to be sent to prison than their white counterparts in the State of Illinois, the same state that sent the last three black senators to Washington and one of the same to the White House. In a report that was commissioned by state senator Mattie Hatter, the commission found that black defendants were more likely to be sent to prison for low-level drug offenses than white defendants. Unfortunately, this is nothing new. Reports on the disparity are only skin deep; to find the root causes, we need to reconsider some bipartisan and popular decisions that stretch back over decades.
The Illinois Disproportionate Justice Impact Study Commission, formed in 2009, found that 19 percent of black defendants charged in 2005 were sentenced to prison after being charged with a low-level drug possession felony.
Only 4 percent of white defendants went to prison under the same charges, the group reported in a newly released study on the issue.
The disparity grew worse in Cook County where black defendants arrested for the low-level charge were eight times more likely to be sentenced to prison than whites, the group found.
Study: Racial disparity in drug sentences
In 1986, the Democrats in Congress saw a political opportunity to outflank Republicans by "getting tough on drugs" after basketball star Len Bias died of a cocaine overdose. In the 1984 election the Republicans had successfully accused Democrats of being soft on crime. The most important Democratic political leader, House Speaker "Tip" O'Neill, was from Boston, MA. The Boston Celtics had signed Bias. During the July 4 congressional recess, O'Neill's constituents were so consumed with anger and dismay about Bias' death, O'Neill realized how powerful an anti-drug campaign would be.
O'Neill knew that for Democrats to take credit for an anti-drug program in November elections, the bill had to get out of both Houses of Congress by early October. That required action on the House floor by early September, which meant that committees had to finish their work before the August recess. Since the idea was born in early July, the law-writing committees had less than a month to develop the ideas, to write the bills to carry out those ideas, and to get comments from the relevant government agencies and the public at large.
One idea was considered for the first time by the House Judiciary Committee four days before the recess began. It had tremendous political appeal as "tough on drugs." This was the creation of mandatory minimum sentences in drug cases. It was a type of penalty that had been removed from federal law in 1970 after extensive and careful consideration. But in 1986, no hearings were held on this idea. No experts on the relevant issues, no judges, no one from the Bureau of Prisons, or from any other office in the government, provided advice on the idea before it was rushed through the committee and into law. Only a few comments were received on an informal basis. After bouncing back and forth between the Democratic controlled House and the Republican controlled Senate as each party jockeyed for poitical advantage, The Anti Drug Abuse Act of 1986 finally passed both houses a few weeks before the November elections.
Eric Sterling, U.S. House Committee on the Judiciary from 1979 to 1989 and participant in the passage of the mandatory minimum sentencing laws, available at PBS Frontline
The measure was very popular; indeed, it passed the House of Representatives by 392-16. In 1988, the act was amended to create the now infamous "Office of National Drug Control Policy," including the so-called "drug czar." The office acts as an institutional buffer against decriminalization of marijuana, medicinal marijuana or other popular initiatives that would threaten the increasingly deep pockets of the nation’s drug warriors.
This law was not well-received by those who were responsible for its implementation. As early as 1991, the U.S. Sentencing Commission cried foul, responding to the criticism of defense attorneys, judges and nearly half of all prosecutors surveyed. The crack sentencing guidelines were a particular source of frustration, and the Sentencing Commission attempted to correct the injustice, a move that was ultimately rejected by President Clinton and the Democratic majority that controlled the House and Senate in 1995:
In 1994, these concerns [over federal sentencing policy] led Congress, in the Violent Crime Control and Law Enforcement Act of 1994, to direct the Sentencing Commission to issue a report and recommendations on cocaine and federal sentencing policy. On February 28,
1995, the Commission issued a comprehensive report to Congress in which it
unanimously recommended that changes be made to the current cocaine sentencing
scheme, including a reduction in the 100-to-1 quantity ratio between powder
cocaine and crack cocaine. The report indicated that the Commission would
investigate ways to account for the harms associated with cocaine offenses in the
sentencing guidelines and would then recommend appropriate enhancements and
adjustments in the quantity ratio
On May 1, 1995, by a 4-3 vote, the Commission sent to Congress proposed
changes to the sentencing guidelines for cocaine offenses. The changes proposed by
the majority would have made the starting point for determining sentences for
powder and crack offenders the same by adopting a 1-to-1 quantity ratio at the
powder cocaine level and would have provided sentencing enhancements for
violence and other harms disproportionately associated with crack cocaine. See 60
Fed. Reg. 25074. The minority dissented based on an assessment that the
recommended enhancements could not sufficiently account for the added harms
associated with crack cocaine and thus did not warrant the total elimination of a
differential between base sentences.
Pursuant to 28 U.S.C. § 994(p), Congress passed and the President signed
legislation rejecting the Commission’s proposed guideline changes. See Pub.L. No.
104-38, 109 Stat. 334 (Oct. 30, 1995).
Federal Sentencing Guidelines Report, 1997.
The federal government was not the only game in town, of course; state legislatures also passed draconian sentencing laws, including reforms to habitual offender legislation, the most notorious of which was the California "Three Strikes" law ultimately upheld by the United States Supreme Court. Many of these laws imposed mandatory minimum and even life sentences for certain drug offenses, sentences that were routinely upheld against federal Eighth Amendment challenges.
Before the advent of the "War on Terror," Congress suffered from a bipartisan addiction to criminal justice spending at the same time it defunded social welfare programs. Before it passed welfare reform in 1996, Congress took aim at gangs, prisoner education, constitutional violations and assault weapons and violence against women in the "Violent Crime Control and Law Enforcement Act of 1994." You can also thank the Vice President for this monstrosity; he wrote it. Among other things, the bill established the COPS program, or Community Oriented Policing Services, a popular program that put more cops on the beat and in our streets. More on this in a minute.
How did the Congressional Black Caucus respond to these pieces of legislation as history unfolded around them? With decidedly mixed results. Rep. Kweisi Mfume, who chaired the Caucus in 1994, supported the 1994 crime bill; so did John Conyers for that matter, and I would be hard pressed to uncover a more progressive representative. Indeed, Representative Conyers has been one of the more vocal critics of mandatory minimums, and was not among the three hundred plus cosponsors of the 1986 Anti-Drug Abuse Act. Other CBC members were not as attentive to the probable effects of the mandatory minimums.
When the mandatory minimum sentences of the Anti-Drug Abuse Act of 1986 were introduced, they were not particularly innovative. Mandatory minimum sentencing dates back at least to 1790, and were routinely used for drug offenses between 1951 and 1970: in 1951, Congress passed "The Boggs Act," which contained mandatory minimums for certain narcotics offenses with no chance of parole or probation after the first offense. A mandatory minimum of two years was attached to the first offense, five years for the second, and ten years for the third. Subsequent amendments increased the penalties, but widespread experimental use of drugs in the 1960s led to calls for reform by 1970, with President George Herbert Walker Bush, then a Congressman, leading the call for sentencing reform.
The current regime was implemented in response to concerns over sentencing disparity. The Sentencing Reform Act of 1984 sought to impose more uniformity in federal sentencing with the introduction of the federal sentencing guidelines. Before 1984, the federal government used an indeterminate sentencing range: Congress defined the maximum sentence, a judge would impose a sentence within the range but not exceeding the maximum, and the executive branch, through a parole office, would determine the actual duration of imprisonment. Federal parole was abolished and the range of sentences contemplated by the guidelines was mandatory for district court judges. The United States Supreme Court upheld the mandatory guidelines and the delegation of congressional power to a United States Sentencing Commission in United States v. Mistretta, 488 U.S. 361 (1989).
The sentencing regime began to buckle under the Supreme Court’s Sixth Amendment line of cases. Among other things, the Sixth Amendment guarantees a right to a jury trial. When the Supreme Court issued its decision in Apprendi v. New Jersey, 530 US 446 (2000), the development of the right to a jury trial and its impact on sentencing guidelines was unclear. In Apprendi, the Defendant fired several shots into the home of an African-American family and made a statement, later retracted, that he had done so because he didn’t want a black family in his neighborhood. He was later charged and convicted of second degree possession of a firearm for an unlawful purpose. The sentence for that charge was five to ten years. After he entered his guilty plea, the prosecutor filed a motion to enhance his sentence pursuant to New Jersey’s hate crime statute. The judge determined, by a preponderance of the evidence, that Apprendi’s actions were racially motivated and imposed a sentence of twelve years, two years more than Apprendi would have faced had he been convicted of second-degree gun possession alone. The Supreme Court reversed, holding that the enhancement violated Mr. Apprendi’s right to a jury trial. Any fact that increases the maximum sentence, other than a prior conviction, the Court reasoned, must be submitted to a jury and proved beyond a reasonable doubt.
The Court extended its holding to Washington state’s mandatory sentencing guidelines in Blakely v. Washington, 542 US 296 (2004). In that case, Blakely’s exposure under the statute was ten years, but the mandatory guidelines called for a sentence of under five years unless the judge determined that he had acted with "deliberate cruelty." At sentencing the judge made a finding that Blakely had acted with deliberate cruelty and sentenced him to 90 months, or about 7.5 years. The Supreme Court reversed, extending the reasoning of Apprendi to mandatory sentencing guidelines. Without any additional facts, Mr. Blakely’s guilty plea exposed him to less than five years, but under the mandatory Washington state guidelines his sentence would be increased to 90 months if the judge, and not a jury, determined that he acted with deliberate cruelty by a mere preponderance of the evidence standard, as opposed to the reasonable doubt standard applicable in criminal proceedings. The "relevant statutory maximum" was not the maximum statutory penalty of ten years, but the guidelines penalty of 90 months.
You can guess what happened to those unpopular but mandatory sentencing guidelines imposed by Congress in 1984. In 2005, the Court extended the reasoning of Apprendi and Blakely to the federal sentencing guidelines and issued its decision in booker, effectively invalidating mandatory sentencing under the guidelines and holding that judges were to consider the guidelines and sentences were to be reviewed for reasonableness. Booker, supra at 249-265. This remedial portion of the Court’s opinion was authored by Justice Breyer, who dissented on the question of the jury trial right and who also served on the US Sentencing Commission in the 1980s. The Court would later extend its reasoning to California’s sentencing scheme, which imposed a "presumptive" middle term out of three possible terms, low, middle and high, unless the judge, and not a jury, found factors in aggravation or mitigation. Cunningham v. California, 549 US 270 (2007).
So what’s the problem? The problem is, opposing mandatory minimums is not enough. Eliminating overt racial bias in the criminal justice system is not enough. Decriminalizing pot is not enough. The drug warrior industry does not rest on mandatory minimums, racial profiling or pot prosecutions alone. In order to understand why, consider the much-touted "community policing" measures promoted by former President Clinton and other "anti-crime" Democrats, and discussed a bit above. However one judges their efficacy, the decision to allocate funding is a boon to local politicians, ranging from members of Congress to mayors, police chiefs and even city council members. Consider, for example, the Justice Department’s COPS or Community Oriented Police Services program. Consider their competitive hiring program:
A competitive grant program that provides funding directly to state, local and tribal law enforcement agencies nationwide to hire and/or rehire full-time sworn officers to increase their community policing capacity and crime prevention efforts. CHP grants provide 100 percent funding for approved entry-level salaries and fringe benefits for three years (36 months) for newly-hired, full-time sworn officer positions, or for rehired officers who have been laid off or are scheduled to be laid off on a future date as a result of local budget cuts. Up to $298 million was appropriated for CHP in fiscal year 2010.
Sounds nice, doesn’t it? Indeed, there are many states and municipalities that want this grant money; too many, in fact, for the Justice Department to grant it to anyone. So there is criteria that applicants need to meet. That’s what makes it competitive, after all.
So who were the winners in 2010, at least as measured by twenty or more officers funded? Alabama for starters; their Department of Public Safety netted thirty-eight additional officers, while the City of Montgomery netted funding for twenty. That represents over $10 million. In Arizona, the City of Tucson was the big winner, a grant of more than twelve million dollars for fifty officers. In California, Kern County netted funding for twenty-seven police officers, Sacramento County 50, and San Jose and Riverside (the cities) 16 and 15 officers, respectively. They can’t afford any public defenders to represent those new defendants, though; there’s that. Anyway, moving on we have Dade County netting fifty officers in 2010. The next big winner is Louisville; they get 32. The Michigan State Police got 21. Greensboro, North Carolina got 30. Tulsa netted 23. The great city of Pittsburgh got 25, while the commonwealth of Puerto Rico netted fifty. Quite a bargain at four million dollars, to get double the number of officers Pittsburg could afford for just a million dollars more. I’m sure that the Tea Party express will get right on that. Chattanooga gets 23 at a higher price than Pittsburgh. And God bless Texas: Fifty officers for Houston (no doubt to deal with "them," the local white racist vernacular for blacks) and 22 for Laredo. That’s it for twenty or more officers.
Notice anything about those cities, counties and states? Let’s start with California. See, California doesn’t have a large black population. I think the estimate is about 6%. In Sacramento County, though, it is a little over ten percent, and let me tell you, they are waaaaaaaaay overrepresented in the criminal justice system. Just under twenty percent of the county is Latino/Hispanic, and ditto. I’m shocked to discover that the county is majority white. Why, you ask? Because when I lived there I pretty much saw brown and black skin all day, at least in the county jail and court. Now, there were white boys going through the system, too (to date I have not seen a black man convicted of a federal child pornography offense...just sayin’). But not that many. So what do you think the probable effect is going to be of a few dozen more police officers in Sacramento? Even the City of Sacramento admits that they are more likely to stop and arrest black and Latino drivers. They key point is, more likely to stop them in the first instance. I could have smacked the kid in my sentencing class who asked how hard it was not to commit a felony; every white lady who shares vicodin with her husband commits a felony, mon ami. It is called "possession with intent," and there’s even a mandatory minimum in some states.
Tucson? SB 1070, nuff said. Alabama? Well...there’s Montgomery, which is majority black. And then of course there is Alabama proper; can’t begin to imagine a racially disparate impact resulting from the infusion of more police officers into a jurisdiction that still needs clearance before implementing any change in voting laws because of historic discrimination against black Americans. For that matter, Arizona still needs to be cleared.
Which is not to say that I am absolving my own state of responsibility for its checkered past; on the contrary, although I would imagine that Detroit is not a prime candidate for receiving any federal grants premised in part on fiscal health, and in any event did not apply, I can’t imagine that the Michigan State Police are less likely to be engaged in racial profiling. Michigan has serious problems with racial profiling, and more to the point, serious, persistently ignored racial problems.
Why be concerned about the allocation of funding for police? Because you can break down criminal cases into a series of stages, from the designation of an activity as a crime with a set penalty, to commission of a crime, to investigation, arrest, formal charges, trial, sentencing, incarceration and release. At each of these stages, or points that fall within these stages, a decision can be made that results in a racial, economic, gender or other disparity. It is when you look at the stages as a whole that you can begin to make judgments about what must be done to correct sentencing disparities. Funding decisions are often made with little to no oversight, however; the decision to apply for $12 million for the City of Detroit for law enforcement purposes might be seen as beneficial, and in fact local politicians may support it and may even be rewarded by their constituents for that decision. But the infusion of police officers results in more enforcement, which means more arrests. Remember, too, that at every stage the economic status of a defendant may be outcome-determinative. They do not have the lobbies to prevent criminalization in the first instance; consider that the agriculture lobby in California was able to insert language into the state’s penal code making theft of certain agricultural goods a felony when the value of the goods taken exceeds $100, as opposed to $400 for most other goods. Who knows how many other examples there are of this naked lobbying power?
The Sentencing Project has produced a useful manual for practitioners and policy makers. One area that is not discussed in great detail, but which might concern us here, is the relative ease with which funding for law enforcement can be secured, as compared to educational funding or other social welfare spending. Being tough on crime is politically beneficial; no one wants to be perceived as being "soft" on crime, and being overly punitive does not usually result in a political backlash. But it is a deceptively easy decision, because at the end of the day deciding that you want a war on plant life means allocating funds for eliminating that plant life. How important is the criminalization of crack cocaine? Is it worth cutting primary and secondary teaching jobs?
Progressives and liberals need to start asking tough questions of local politicians who look to the federal government for more cops. Let's start with supporting Senator Webb's National Criminal Justice Commission Act, and start paying more attention to the criminal justice decisions being made at the local level.