Blog: Criminal Defense

Yesterday, the Obama administration gave its support for lesser mandatory sentences possessors of small amounts of crack-cocaine.

The 1986 and 1988 Anti-Drug Abuse Acts created a mandatory federal sentence for those in possession of a small amount of crack-cocaine. (We are not talking about major drug-dealers here; we are talking about users.) Those caught in possession of just 5 grams of crack-cocaine were required to be sentenced to a statutory minimum of 5 years in federal prison; however, a person would have to be caught with 500 grams of powder-cocaine to trigger the same mandatory 5-year sentence. The 5 grams/crack vs. 500 grams/powder = a 100-1 disparity. (21 U.S.C. 844.)

The federal sentencing laws were created in an effort to reduce the rampant spread of crack-cocaine in the 1980′s. But the effect did not slow down the use of the drug; instead, it created a disparity between blacks and whites because blacks are more likely to use crack-cocaine while whites are more likely to use powder-cocaine.

According to the Sentencing Project, in 1980, approximately 40,000 people were incarcerated for drug offenses; however, approximately 500,000 people are incarcerated for drug offenses today – that is a 1100% increase!

As a criminal defense attorney, I am in the courts daily. The majority of my clients facing drug charges are black. In fact, I do not think I’ve ever represented a white person caught with cocaine. (That said, I often expunge and seal records of whites caught with small amounts of cocaine.)

SENTENCING IS THE SECONDARY PROBLEM – WE MUST FOCUS ON ENFORCEMENT

The problem is not just the sentencing laws; sentencing is the final step in prosecution. If we are going to apply the same sentencing laws for crack and powder cocaine, then we also must apply similar drug enforcement strategies.  Drug use is more prevalent in college fraternities and in the fanciest clubs and restaurants than it is in predominantly black areas – the difference is enforcement. The police patrol the streets of black and poor areas far more than they patrol the streets where whites reside and socialize. Have you ever seen a police surveillance camera on the corner of Rush St. in Chicago or outside of the casino at the Bellagio?  Users who are patrons inside of a fancy establishment are protected!

CAUTION – THIS LAW DOES NOT CHANGE THE STATE LAWS

I do not think that the federal sentencing guidline amendment for crack cocaine will change the number of blacks in our state prisons and jails. This crack v. powder law is specific to federal sentencing.  I have never personally represented a person arrested and charged with federal possession of such a small amount of crack-cocaine.  Usually, most users are arrested by the local police, not the Feds.  So, as much as I support the amendment of the federal sentencing disparity laws, let’s not get lost in the issue because most low-level offenders are charged with state possession, not federal possession!

Until we recognize that general drug abuse is not color blind, regardless of the type of drug, sentencing issues are a secondary issue. Drug enforcement must not have barriers based on demographics and we must focus on rehabilitating addicts, not incarcerating them.  Whether a person gets probation, serves 5 months or 5 years in prison, punishment does not cure addiction.

www.xpunged.com and www.tamaraholder.com

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