Sentencing guidelines

by Jeremy Leaming

President Obama and Congress took a significant step toward “fair and proportionate penalties” for some drug offenders with enactment last year of the Fair Sentencing Act, but additional reform legislation is needed to overcome the harsh effects of the nation’s so-called War on Drugs, a new ACS Issue Brief states.

Kara Gotsch, the director of advocacy for The Sentencing Project, details, in her Issue Brief, the effect of the “War on Drugs” on our criminal justice system, noting that two laws enacted in the late 1980s created “hefty mandatory minimum sentences for drug offenses, including mandatory penalties for crack cocaine offenses that were the harshest ever adopted for low-level drug offenses.”

Specifically, Gotsch writes, persons convicted of “possessing as little as five grams of crack cocaine were subject to a mandatory minimum sentence of five years in prison. Defendants with at least 50 grams were subject to a ten-year mandatory minimum sentence.” But offenses involving powder cocaine resulted in significantly lighter sentences.

This sentencing disparity falls disproportionately on “African Americans despite evidence that the prevalence of drug use is similar across racial ethnic groups, suggesting disparate enforcement of facially neutral policies. An estimated two-thirds of all crack cocaine users are white or Hispanic, and surveys of users suggest that they generally purchase their drugs from sellers of the same racial and ethnic backgrounds. Nevertheless, 79 percent of federal crack cocaine defendants in 2010 were African Americans.”

In 2004, Gotsch notes, the U.S. Sentencing Commission, created in 1984 by Congress and comprising federal judges and lawyers, issued a report declaring that revising “the crack cocaine thresholds would better reduce the [sentencing] gap than any other policy change, and it would dramatically improve the fairness of the federal sentencing system.”

By Nkechi Taifa, senior policy analyst for the Open Society Policy Center. She will discuss drug policy reform during two panel discussions at the Congressional Black Caucus Foundation’s Annual Legislative Conference this week.

For a quarter of a century mandatory minimum sentences have resulted in egregiously severe and harsh punishments which often do not fit the crime, have racially disparate outcomes, increase overcrowding, and exacerbate prison costs. These sentences are the result of a war on drugs that has been disproportionately fought in Black and Latino communities. The impact of the war on drugs on individuals, families, and communities has been likened to a “new Jim Crow,” resulting in the mass incarceration and over-representation of people of color in the criminal justice system. 

As a quick reminder: A mandatory minimum sentence is a prison term predetermined by Congress and automatically imposed for certain crimes, primarily drugs and firearms. It is the minimum penalty that a judge must impose. In most cases the sentence is at least five years, and often it is 10, 15, or 20 years or more, even for nonviolent first time offenders. 

One of the problems with inflexible mandatory sentencing laws is that they are applied regardless of the role of the defendant and of other factors, which judges traditionally take into account for sentencing, such as the history and characteristics of the defendant and the likelihood of rehabilitation.