(1)
Sentencing Reform
The Reality of Federal Drug Sentencing
By Alex Stamm
ACLU Center for Justice
November 27, 2012
http://www.aclu.org/blog/criminal-law-reform/reality-federal-drug-sentencing

Federal drug laws create a labeling problem. When you hear the term "drug trafficker," you might think of Pablo Escobar or Walter White, but the reality is that under federal law, drug traffickers include people who buy pseudoephedrine for their methamphetamine dealer; act as middleman in a series of small transactions; or even pick up a suitcase for the wrong friend. Thanks to conspiracy laws, everyone on the totem pole can be subject to the same severe mandatory minimum sentences.

To the men and women who drafted our federal drug laws in 1986, this might come as a surprise. According to Sen. Robert Byrd, cosponsor of the Anti-Drug Abuse Act of 1986, the reason to attach five- and ten-year mandatory sentences to drug trafficking was to punish "the kingpins-the masterminds who are really running these operations", and the mid-level dealers.

Fast forward twenty-five years. Today, almost everyone convicted of a federal drug crime is convicted of "drug trafficking", which more often than not results in at least a five- or ten-year mandatory prison sentence.
That's a lot of time in federal prison for many people who are minor parts of drug trade, the vast majority of whom are men and women of color.

This is the system that federal district Judge Mark Bennett sees every day. Judge Bennett sits on the district court in northern Iowa, and he handles a lot of drug cases. "Never could I have imagined," he writes in a recent piece in The Nation, "that.after nineteen years [as a federal district court judge], I would have sent
1,092 of my fellow citizens to federal prison for mandatory minimum sentences ranging from sixty months to life without the possibility of release. The majority of these women, men and young adults are nonviolent drug addicts." What about the kingpins?  "I can count them on one hand," he says.

The numbers can't convey the absurd tragedy of it all.
This is how he describes a recent drug trafficking case:

    I recently sentenced a group of more than twenty
    defendants on meth trafficking conspiracy charges.
    All of them pled guilty. Eighteen were `pill
    smurfers,' as federal prosecutors put it, meaning
    their role amounted to regularly buying and
    delivering cold medicine to meth cookers in exchange
    for very small, low-grade quantities to feed their
    severe addictions. Most were unemployed or
    underemployed. Several were single mothers. They did
    not sell or directly distribute meth; there were no
    hoards of cash, guns or countersurveillance
    equipment. Yet all of them faced mandatory minimum
    sentences of sixty or 120 months.

We have data to suggest that Judge Bennett's experience is not uncharacteristic. In 2007, the U.S. Sentencing Commission compiled substantial data on cocaine and crack sentencing. They found that in 2005, the majority of the lowest-level cocaine- and crack-trafficking defendants-men and women described as "street-level dealers", "couriers/mules", and "renter/loader/lookout/enabler/users"-received five- or ten-year mandatory prison sentences. This is especially true for crack-cocaine defendants, most of whom are black; despite the Fair Sentencing Act of 2010, selling a small quantity of crack cocaine (28 grams) carries the same mandatory minimum sentence-five years-as selling
500 grams of powder cocaine.

This is the reality for which proponents of severe federal drug laws must account. We cannot pretend that heavy sentences for women like Kemba Smith and men like Jamel Dossie are the fluke mistakes of overbroad laws.
We must admit that our sentencing of minor players in the drug trade to prison terms meant for the leaders of large drug organizations-as a common occurrence, not as an exception. As a result, we needlessly imprison lots of minor offenders for long periods. Judge Bennett decries the human costs of these sentences:

    If lengthy mandatory minimum sentences for
    nonviolent drug addicts actually worked, one might
    be able to rationalize them. But there is no
    evidence that they do. I have seen how they leave
    hundreds of thousands of young children parentless
    and thousands of aging, infirm and dying parents
    childless. They destroy families and mightily fuel
    the cycle of poverty and addiction.

Here, again, we have evidence that Judge Bennett is
right: long mandatory sentences are unnecessary for most drug offenders. In 2002 and 2003, Michigan and New York repealed mandatory sentences for drug offenders and gave judges the power to impose shorter sentences, probation, or drug treatment. The sky didn't fall, but crime rates did. So did prison costs.

For decades, Judge Bennett has seen a system that doesn't make sense. He has seen mandatory laws written for the most serious, large-scale drug dealers applied to the men and women on the lowest rungs of the drug trade, and he has seen it happen a lot. We once imagined that severe mandatory sentences would be used to deal with the leaders of large drug operations. It's time our federal drug laws were fit to the people that they really target.

Judge Bennett was also featured along with other criminal justice experts in Melissa Harris-Perry's recent segment on mandatory minimums, which you can see here.


(2)
How Mandatory Minimums Forced Me to Send More Than
1,000 Nonviolent Drug Offenders to Federal Prison Judge Mark W. Bennett This article appeared in the November 12, 2012 edition of The Nation.
October 24, 2012
http://www.thenation.com/article/170815/how-mandatory-minimums-forced-me-send-more-1000-nonviolent-drug-offenders-federal-pri#
 
Growing up in blue collar Circle Pines, Minnesota, in the 1950s, raised by parents from the "Greatest Generation," I dreamed only of becoming a civil rights lawyer. My passion for justice was hard-wired into my DNA. Never could I have imagined that by the end of my 50s, after nineteen years as one of 678 federal district court judges in the nation, I would have sent 1,092 of my fellow citizens to federal prison for mandatory minimum sentences ranging from sixty months to life without the possibility of release. The majority of these women, men and young adults are nonviolent drug addicts. Methamphetamine is their drug of choice. Crack cocaine is a distant second. Drug kingpins? Oh yes, I've sentenced them, too. But I can count them on one hand.
While I'm extremely proud of my father's service in World War II, I am greatly conflicted about my role in the "war on drugs."

You might think the Northern District of Iowa-a bucolic area home to just one city with a population above 100,000-is a sleepy place with few federal crimes. You would be wrong. Of the ninety-four district courts across the United States, we have the sixth-heaviest criminal caseload per judge. Here in the heartland, I sentence more drug offenders in a single year than the average federal district court judge in New York City, Washington, Chicago, Minneapolis and San Francisco- combined. While drug cases nationally make up 29 percent of federal judges' criminal dockets, according to the US Sentencing Commission, they make up more than 56 percent of mine. More startling, while meth cases make up 18 percent of a judge's drug docket nationally, they account for 78 percent of mine. Add crack cocaine and together they account for 87 percent.

Crack defendants are almost always poor African- Americans. Meth defendants are generally lower-income whites. More than 80 percent of the 4,546 meth defendants sentenced in federal courts in 2010 received a mandatory minimum sentence. These small-time addicts are apprehended not through high-tech wiretaps or sophisticated undercover stings but by common traffic stops for things like nonfunctioning taillights. Or they're caught in a search of the logs at a local Walmart to see who is buying unusually large amounts of nonprescription cold medicine. They are the low-hanging fruit of the drug war. Other than their crippling meth addiction, they are very much like the folks I grew up with. Virtually all are charged with federal drug trafficking conspiracies-which sounds ominous but is based on something as simple as two people agreeing to purchase pseudoephedrine and cook it into meth. They don't even have to succeed.

I recently sentenced a group of more than twenty defendants on meth trafficking conspiracy charges. All of them pled guilty. Eighteen were "pill smurfers," as federal prosecutors put it, meaning their role amounted to regularly buying and delivering cold medicine to meth cookers in exchange for very small, low-grade quantities to feed their severe addictions. Most were unemployed or underemployed. Several were single mothers. They did not sell or directly distribute meth; there were no hoards of cash, guns or countersurveillance equipment. Yet all of them faced mandatory minimum sentences of sixty or
120 months. One meth-addicted mother faced a 240-month sentence because a prior meth conviction in county court doubled her mandatory minimum. She will likely serve all twenty years; in the federal system, there is no parole, and one serves an entire sentence minus a maximum of a
15 percent reduction rewarded for "good time."

Several years ago, I started visiting inmates I had sentenced in prison. It is deeply inspiring to see the positive changes most have made. Some definitely needed the wake-up call of a prison cell, but very few need more than two or three years behind bars. These men and women need intensive drug treatment, and most of the inmates I visit are working hard to turn their lives around. They are shocked-and glad-to see me, and it's important to them that people outside prison care about their progress. For far too many, I am their only visitor.

If lengthy mandatory minimum sentences for nonviolent drug addicts actually worked, one might be able to rationalize them. But there is no evidence that they do.
I have seen how they leave hundreds of thousands of young children parentless and thousands of aging, infirm and dying parents childless. They destroy families and mightily fuel the cycle of poverty and addiction. In fact, I have been at this so long, I am now sentencing the grown children of people I long ago sent to prison.

For years I have debriefed jurors after their verdicts.
Northwest Iowa is one of the most conservative regions in the country, and these are people who, for the most part, think judges are too soft on crime. Yet, for all the times I've asked jurors after a drug conviction what they think a fair sentence would be, never has one given a figure even close to the mandatory minimum. It is always far lower. Like people who dislike Congress but like their Congress member, these jurors think the criminal justice system coddles criminals in the abstract-but when confronted by a real live defendant, even a "drug trafficker," they never find a mandatory minimum sentence to be a just sentence.

Many people across the political spectrum have spoken out against the insanity of mandatory minimums. These include our past three presidents, as well as Supreme Court Justices William Rehnquist, whom nobody could dismiss as "soft on crime," and Anthony Kennedy, who told the American Bar Association in 2003, "I can accept neither the necessity nor the wisdom of federal mandatory minimum sentences." In 2005, four former attorneys general, a former FBI director and dozens of former federal prosecutors, judges and Justice Department officials filed an amicus brief in the Supreme Court opposing the use of mandatory minimums in a case involving a marijuana defendant facing a fifty- five-year sentence. In 2008, The Christian Science Monitor reported that 60 percent of Americans opposed mandatory minimums for nonviolent offenders. And in a
2010 survey of federal district court judges, 62 percent said mandatory minimums were too harsh.

Federal judges have a longstanding culture of not speaking out on issues of public concern. I am breaking with this tradition not because I am eager to but because the daily grist of what I do compels me to. In 1999, Judge Robert Pratt of the Southern District of Iowa, a courageous jurist whose brilliant opinion in Gall v. United States led to one of the most important Supreme Court sentencing opinions in my professional life, wrote a guest editorial in The Des Moines Register criticizing federal sentencing guidelines and mandatory minimums. He ended by asking, "If we don't speak up, who will?" I hope more of my colleagues will speak up, regardless of their position on the fairness of mandatory minimum sentences for nonviolent drug offenders. This is an issue of grave national consequence. Might there be a problem when the United States of America incarcerates a higher percentage of its population than any nation in the world?

See Judge Bennett in the Sundance award-winning documentary, The House I Live In, in theaters now.
For more of my work please check me out at -
http://redroom.com/member/rodney-d-coates





The song that lies silent in the heart of a mother sings upon the lips of her child..
Kahlil Gibran




Rodney D. Coates
Professor and Interim Director of Black World Studies


-----Original Message-----