An End to Unfair Mandatory Drug Sentencing Is In Sight
On Monday, Eric Holder announced a Department of Justice policy shift on mandatory drug sentencing to further crack down on racial sentencing disparity for drug crimes. You may recall that back in 2010, President Obama signed the Fair Sentencing Act, which reduced the penalties for offenses involving crack cocaine. (For more on the crack/cocaine sentencing disparity madness, click here.)
But Holder and the DOJ want to do more — they want to flood the streets with criminals! More gangs of crack-addled black folks roaming the streets, furiously scratching their ashy skin and scaring the holy crap out of innocent white folks who just want to smoke their marijuana cigarettes, get high, and eat gluten-free tortilla chips.
Well, not really.
Holder and the DOJ just want to ensure that our overflowing prison system isn’t stocked with low-level drug offenders, many of whom are brown folks who live in communities that are overpoliced and young brown kids who attend schools that are similarly overpoliced (school-to-prison pipeline, anyone?), where justice is meted out based on the color of one’s skin and not necessarily the severity of one’s crime.
How do they plan to do this? By implementing a new DOJ policy that requires prosecutors to stop specifying the quantity of drugs carried by people who are busted for drug offenses when they were busted for carrying said drugs. Why? Because if prosecutors don’t charge suspected drug offenders with carrying a specific quantity of drugs, then judges can use their discretion in sentencing those drug offenders, rather than being required to follow the mandatory sentencing guidelines — guidelines which can result in people convicted for low-level drug offenses being sent to the hoosegow for, like, ever.
Via Charlie Savage at The New York Times:
Under a policy memorandum being sent to all United States attorney offices on Monday, according to an administration official, prosecutors will be told that they may not write the specific quantity of drugs when drafting indictments for drug defendants who meet the following four criteria: their conduct did not involve violence, the use of a weapon or sales to minors; they are not leaders of a criminal organization; they have no significant ties to large-scale gangs or cartels; and they have no significant criminal history.
Seems great, yeah?
Except, not really, as Emily Bazelon points out at Slate:
OK, so what can the Justice Department, on its own, do about all of this? Holder’s main fix involves centralizing a particular facet of prosecutorial discretion that has giant consequences for how long drug offenders spend in prison. As Charles Savage explains in the New York Times, Holder is telling prosecutors not to specify the quantity of drugs they are charging for certain categories of defendants, about which more below. If prosecutors don’t list the amount of drugs, then the indictment won’t trigger the attendant mandatory minimum sentence upon conviction. For example, if you carried 5 kilograms of cocaine, you’d normally be under the gun for a 10-year mandatory sentence. Without the amount specified in the indictment, you could be sentenced to far less. Or not. Your sentence will now be up to the judge, who can take into account the 5 kilograms if he or she wants. It just won’t be automatic.
In other words, if Tyrone Jenkins gets busted carrying 5 kilograms of cocaine, federal sentencing guidelines require that he be sentenced to 10 years, minimum. It doesn’t matter if there are mitigating factors. Under the new DOJ policy, a prosecutor can’t specify in the indictment documents that Tyrone was busted with 5 kilograms of coke, thus leaving it to the judge to decide whether Tyrone should go to prison for ten years, or for some amount of time less than ten years. Maybe Tyrone goes to jail for only two years or gets put on probation. Hooray for Tyrone, right?
No, not really. Because if history is any indication, judges will be less inclined to exercise discretion in favor of poor Tyrone Jenkins, but will be falling all over themselves to exercise that discretion for, say, Chadwick Von Moneypenny. Tyrone probably gets tossed in the slammer for ten years, while Chadwick gets a slap on the wrist and a commendation from the Mayor, because racism, that’s why. (Ok, Chadwick probably won’t get a commendation from the Mayor. Jokes, people — jokes.)
Still, when it comes right down to it, “judicial discretion in sentencing” isn’t exactly the boon that we Browns™ were hoping for.
But, the Obama Administration’s policy shift coupled with yesterday’s decision by the U.S. Sentencing Commission to review mandatory sentencing guidelines? Now that might just be something worth twerking about (Sit down, Miley!).
On Thursday, the sentencing commission set as its top priority continuing to work with Congress to change federal mandatory minimum sentencing guidelines.
The seven-member commission wants Congress to reduce the severity and scope of mandatory minimum penalties and consider expanding a law that exempts certain low-level nonviolent offenders from mandatory minimum prison terms.
“With a growing crisis in federal prison populations and budgets, it is timely and important for us to examine mandatory minimum penalties and drug sentences, which contribute significantly to the federal prison population,” said Patti Saris, commission chairman and a federal judge.
The commission establishes sentencing policies and practices for the federal courts.
Long mandatory prison terms that apply to low-level drug offenders are a legacy of the government’s war on drugs in the 1980s.
Justice for Tyrone.
Imani Gandy (ABL)
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