New Law Changes Mandatory Minimums, But More Must Be Done

November 13, 2010

New Law Changes Mandatory Minimums, But More Must Be Done

On August 3 of this year, President Obama signed legislation changing the federal mandatory minimum sentences for crack cocaine, bringing them closer to that of powder cocaine. The new law repeals older legislation passed in the 1980s, when many saw crack as a growing epidemic that could devastate urban areas. At the time, the earlier laws had the support of many African-American lawmakers and leaders, but the fallout from those laws has been that of unfair bias against urban blacks. Along with other recent changes to sentencing rules and state laws, this represents another important step in changing how the nation deals with drug crime. But there are still racial and income disparity aspects to drug crime laws that need to be addressed.

1980s Laws

Under the old law, the sale of just five grams of crack triggered the same mandatory minimum sentence as the sale of 500 grams (half a kilo) of powder cocaine. The new law raises the amount of crack cocaine that can result in a mandatory five-year sentence to 28 grams. In other words, if it's more than 28 grams of crack cocaine, the judge's hands are tied, and he or she must sentence the offender to a mandatory minimum sentence of five years in prison. But below that amount, the judge now has discretion and can take into account other factors such as the person's history, whether violence was involved, et cetera.

Perhaps surprisingly, the recently-passed legislation had broad support from both parties, and passed both the House and Senate on a voice vote -- no roll call was taken. This reflects the growing consensus that the nation's drug policy over the last 30 years has misallocated resources and unfairly targeted minorities and the poor -- and resulted in 1 out of every 100 adults being in prison or jail.

Under the old standard, it took 100 times more powder than crack to qualify for the same sentence. Now the ratio is only 18 times more powder, but this still reflects the view that crack cocaine is somehow more dangerous than powder cocaine, which has been refuted by scientific studies. Crack cocaine is cheaper, which makes it more accessible to people of limited economic means. But the 100-to-1 ratio meant that small-time crack users were being punished at the same level as major cocaine dealers.

Mandatory minimums are a relic of an era in which lawmakers were frustrated by drug crime, but failed to understand the nature of drug addiction. So instead of today's approach of getting many non-violent offenders the treatment that they need, legislators instead tied the hands of the nation's judges in an effort to lock up anyone guilty of a drug crime.

But while it's one thing to take the bad apples out of the barrel, it's another to take a significant portion of the population out of the local community. Although blacks accounted for 30 percent of crack users nationwide, they make up 82 percent of the convictions. For predominantly black communities, this sentencing disparity had a real impact on homes, businesses and churches -- the very social institutions that need to be strong during times of crisis. Add in the stigma of a prison record for those released from prison, and the net result was a worsening of conditions for the very communities that the mandatory minimums were designed to help.

Other Recent Progress

Changes to state laws and federal sentencing guidelines are also encouraging. Legislation signed by New York governor David Paterson essentially did away with the last of the Rockefeller Drug Laws -- a series of mandatory minimum laws enacted by governor Nelson Rockefeller in the 1970s which were later copied by many states.

Under the old New York laws, the district attorneys who prosecute drug crimes were in a position to decide which offenders would be allowed to have access to treatment programs. Those who didn't take the DA's plea deal and were later found guilty in court faced mandatory sentences, regardless of what the judge in the case might have preferred.

Now under New York law, judges once again have discretion to send low-level drug users to treatment rather than to prison. This comes on the heels of reforms enacted in 2004 by Governor Pataki, which reduced the length of some mandatory minimum sentences.

Another reduction of mandatory minimums came at the federal level in 2007, when the U.S. Sentencing Commission changed the guidelines that judges consult to determine proper sentences, and made those changes retroactive, meaning that some individuals who had already been sentenced could apply to have their sentences reduced. While only Congress can change the laws, the sentencing guidelines bring crack cocaine more in line with powder cocaine, and thus reduced the length of some longer sentences.

Taken together, these changes show society going from a "get tougher" policy to a "get smarter" policy when it comes to drug crime. But more still needs to be done. Minority defendants face difficulties at every stage from arrest to sentencing, and because minorities comprise a disproportionate number of indigent defendants (those entitled to free, court-appointed legal representation) they may receive substandard legal representation. Until these differences are eliminated, we cannot truly claim to dispense equal justice under the law.

Article provided by Brill Legal Group, P.C.
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