Racial Disparities in Federal Drug Sentencing – Testimony of Wade Henderson

Categories: Testimony

Location: U.S. Sentencing Commission

GOOD AFTERNOON. I AM WADE HENDERSON, EXECUTIVE DIRECTOR OF THE LEADERSHIP CONFERENCE ON CIVIL RIGHTS. I AM PLEASED TO APPEAR BEFORE YOU TODAY ON BEHALF OF THE LEADERSHIP CONFERENCE TO URGE THAT THE SENTENCING COMMISSION TAKE AGGRESSIVE ACTION TO REMEDY RACIAL DISPARITIES IN FEDERAL DRUG SENTENCING.

THE LEADERSHIP CONFERENCE ON CIVIL RIGHTS (LCCR) IS THE NATION’S OLDEST AND MOST DIVERSE COALITION OF CIVIL RIGHTS ORGANIZATIONS. FOUNDED IN 1950 BY ARNOLD ARONSON, A. PHILIP RANDOLPH, AND ROY WILKINS, LCCR WORKS IN SUPPORT OF POLICIES THAT FURTHER THE GOAL OF EQUALITY UNDER LAW. TODAY THE LCCR CONSISTS OF OVER 180 ORGANIZATIONS REPRESENTING PERSONS OF COLOR, WOMEN, CHILDREN, ORGANIZED LABOR, PERSONS WITH DISABILITIES, THE ELDERLY, GAYS AND LESBIANS, AND MAJOR RELIGIOUS GROUPS. IT IS A PRIVILEGE TO REPRESENT THE CIVIL AND HUMAN RIGHTS COMMUNITY IN ADDRESSING THE COMMISSION TODAY.

THE COMMISSION HAS SOUGHT PUBLIC INPUT ON A NUMBER OF PROPOSED GUIDELINE AMENDMENTS, AND HAS ALSO POSED SEVERAL “ISSUES FOR COMMENT.” MY TESTIMONY WILL ADDRESS ONE OF THESE ISSUES: WHETHER THE THRESHOLD QUANTITIES OF CRACK COCAINE AND POWDER COCAINE THAT TRIGGER LONGER SENTENCES UNDER THE GUIDELINES AND STATUTES SHOULD BE REVISED. THIS MATTER TOUCHES ON CIVIL RIGHTS CONCERNS OF PARAMOUNT IMPORTANCE TO OUR COALITION.

THE WELL-KNOWN 100-TO-1 CRACK-POWDER RATIO IN FEDERAL LAW IS ONE OF THE MOST VISIBLE MANIFESTATIONS OF RACIAL DISPARITY IN THE CRIMINAL JUSTICE SYSTEM. THE CIVIL RIGHTS COMMUNITY WAS BITTERLY DISAPPOINTED BY CONGRESS’ REJECTION OF THE COMMISSION’S 1995 PROPOSAL TO ELIMINATE THE DISPARITY, AND WE HAVE GROWN INCREASINGLY FRUSTRATED BY THE FAILURE OF FEDERAL AUTHORITIES TO ADDRESS THE SUBJECT SINCE.

RECENT STATISTICS COMPILED BY THE SENTENCING COMMISSION SHOW THAT THE PROBLEM RELATES NOT JUST TO THE UNJUSTIFIED DIFFERENCES BETWEEN CRACK AND POWDER COCAINE PENALTIES. RATHER, MINORITIES ARE NOW DISPROPORTIONATELY SUBJECT TO THE HARSH PENALTIES FOR BOTH TYPES OF COCAINE. THE ISSUE IS NO LONGER JUST THE “RATIO” BETWEEN CRACK AND POWDER, ALTHOUGH THAT REMAINS A SERIOUS CONCERN. THE ISSUE IS THAT MINORITIES ARE ALMOST EXCLUSIVELY TARGETED FOR ALL FEDERAL COCAINE ARRESTS, AND THEN FIND THEMSELVES IN A MECHANICAL SENTENCING SYSTEM THAT RESULTS IN UNACCEPTABLY HIGH MINORITY INCARCERATION RATES.

IN MY TESTIMONY TODAY I WILL BRIEFLY EXPLAIN THE CIVIL RIGHTS CONTEXT IN WHICH THIS ISSUE ARISES. I WILL THEN TURN TO THE SPECIFIC ISSUE OF FEDERAL COCAINE PENALTIES AND STRONGLY URGE THE COMMISSION TO ADOPT SIGNIFICANT CHANGES TO THE RELEVANT SENTENCING GUIDELINES AND TO PROPOSE SIMILAR CHANGES TO THE CORRESPONDING STATUTES.




I. RACIAL DISPARITIES IN STATE AND FEDERAL CRIMINAL JUSTICE SYSTEMS

THE FEDERAL SENTENCING RULES FOR CRACK AND POWDER COCAINE DO NOT EXIST IN A VACUUM. INSTEAD, THIS GLARING INEQUITY IS PART OF A PATTERN OF DISPARITIES THAT THREATENS THE CREDIBILITY OF THE CRIMINAL JUSTICE SYSTEM IN MINORITY COMMUNITIES.

TWO YEARS AGO LCCR, IN CONJUNCTION WITH THE LEADERSHIP CONFERENCE EDUCATION FUND, RELEASED A POLICY REPORT ENTITLED JUSTICE ON TRIAL: RACIAL DISPARITIES IN THE AMERICAN CRIMINAL JUSTICE SYSTEM.* THE REPORT EXAMINED INEQUITIES IN THE ENFORCEMENT OF STATE AND FEDERAL CRIMINAL LAWS, AND DEVOTED SUBSTANTIAL ATTENTION TO THE ISSUE OF DRUG SENTENCING. WE CONCLUDED THAT THE CRIMINAL JUSTICE SYSTEM IS BESET BY MASSIVE UNFAIRNESS, AND THAT BOTH THE REALITY AND THE PERCEPTION OF THIS UNFAIRNESS HAVE DISASTROUS CONSEQUENCES FOR MINORITY COMMUNITIES AND FOR THE CRIMINAL JUSTICE SYSTEM ITSELF.

THE REPORT DETAILED HOW UNEQUAL TREATMENT OF MINORITIES CHARACTERIZES EVERY STAGE OF THE PROCESS. BLACK AND HISPANIC AMERICANS, AND OTHER MINORITY GROUPS AS WELL, ARE VICTIMIZED BY DISPROPORTIONATE TARGETING AND UNFAIR TREATMENT BY POLICE AND OTHER FRONT-LINE LAW ENFORCEMENT AGENTS; BY RACIALLY SKEWED CHARGING AND PLEA BARGAINING DECISIONS OF PROSECUTORS; BY HARSH MANDATORY SENTENCING LAWS; AND BY THE FAILURE OF JUDGES, ELECTED OFFICIALS AND OTHER CRIMINAL JUSTICE POLICY MAKERS TO REDRESS THESE PROBLEMS.

THESE DISPARITIES ARE UNJUSTIFIED. THE VAST MAJORITY OF BLACKS AND HISPANICS ARE LAW-ABIDING CITIZENS AND LAW ENFORCEMENT TACTICS THAT ASSUME OTHERWISE ARE UNFAIR AND INTOLERABLE. AS REPRESENTATIVE JOHN LEWIS (D-GA) SAYS IN THE FOREWORD TO JUSTICE ON TRIAL:


“…THE UNEQUAL TREATMENT OF MINORITIES AT EVERY STAGE OF THE CRIMINAL JUSTICE SYSTEM PERPETUATES THE STEREOTYPE THAT MINORITIES COMMIT MORE CRIMES. THIS PERCEPTION HELPS FUEL RACIAL PROFILING AND A VICIOUS CYCLE THAT AFFECTS BOTH INNOCENT WHITE AND MINORITY CITIZENS. THE REALITY IS THAT THE MAJORITY OF CRIMES ARE NOT COMMITTED BY MINORITIES AND MOST MINORITIES ARE NOT CRIMINALS.”



OUR REPORT DISCUSSED THE CONSEQUENCES OF THESE POLICIES IN DETAIL. CONSIDER THE FOLLOWING:




  • ALMOST ONE IN THREE BLACK MALES AGED 20-29 ON ANY GIVEN DAY IS UNDER SOME FORM OF CRIMINAL SUPERVISION ? EITHER IN PRISON OR JAIL, OR ON PROBATION OR PAROLE.


  • A BLACK MALE BORN IN 1991 HAS A ONE IN THREE CHANCE OF SPENDING TIME IN PRISON AT SOME POINT IN HIS LIFE. A HISPANIC MALE BORN IN 1991 HAS A ONE IN SIX CHANCE OF SPENDING TIME IN PRISON.


  • THERE ARE MORE YOUNG BLACK MEN UNDER CRIMINAL SUPERVISION THAN THERE ARE IN COLLEGE. FOR EVERY ONE BLACK MALE WHO GRADUATES FROM COLLEGE, 100 BLACK MALES ARE ARRESTED.



IN PARTICULAR, THE MANDATORY SENTENCING LAWS ENACTED BY CONGRESS IN THE MID-1980’S HAVE LED TO RACIAL INJUSTICE. THESE LAWS DEPRIVE JUDGES OF THEIR TRADITIONAL DISCRETION TO TAILOR A SENTENCE BASED ON THE CULPABILITY OF THE DEFENDANT AND THE SERIOUSNESS OF THE CRIME. MANDATORY MINIMUM SENTENCING LAWS ARE NOT TRULY MANDATORY BECAUSE THEY PROVIDE OPPORTUNITIES FOR PROSECUTORS TO GRANT EXCEPTIONS TO THEM. PROSECUTORS CAN CHOOSE TO CHARGE PARTICULAR DEFENDANTS WITH OFFENSES THAT DO NOT CARRY MANDATORY PENALTIES OR THEY CAN AGREE TO A PLEA AGREEMENT IN WHICH THE CHARGES CARRYING MANDATORY PENALTIES WILL BE DISMISSED. AND UNDER FEDERAL LAW, ONLY THE PROSECUTOR MAY GRANT A DEPARTURE FROM MANDATORY PENALTIES BY CERTIFYING THAT THE DEFENDANT HAS PROVIDED “SUBSTANTIAL ASSISTANCE” TO LAW ENFORCEMENT.

MANDATORY MINIMUMS EMBODY A DANGEROUS COMBINATION. THEY PROVIDE THE GOVERNMENT WITH UNREVIEWABLE DISCRETION TO TARGET PARTICULAR DEFENDANTS OR CLASSES OF DEFENDANTS FOR HARSH PUNISHMENT. BUT THEY PROVIDE NO OPPORTUNITY FOR JUDGES TO EXERCISE DISCRETION ON BEHALF OF DEFENDANTS IN ORDER TO CHECK PROSECUTORIAL DISCRETION. IN EFFECT, THEY TRANSFER THE SENTENCING DECISION FROM IMPARTIAL JUDGES TO ADVERSARIAL PROSECUTORS, MANY OF WHOM LACK THE EXPERIENCE THAT COMES FROM YEARS ON THE BENCH.

I SHOULD NOTE THAT SOME CIVIL RIGHTS GROUPS ORIGINALLY SUPPORTED MANDATORY SENTENCING AS AN ANTIDOTE TO RACIAL DISPARITIES IN SENTENCING. BUT THE EVIDENCE IS CLEAR THAT MINORITIES FARE WORSE UNDER MANDATORY SENTENCING LAWS THAN THEY DID UNDER A SYSTEM WITH MORE JUDICIAL DISCRETION. BY DEPRIVING JUDGES OF THE ULTIMATE AUTHORITY TO IMPOSE FAIR SENTENCES, MANDATORY SENTENCING LAWS PUT SENTENCING ON AUTO-PILOT. DISCRETIONARY DECISIONS OF LAW ENFORCEMENT AGENTS AND PROSECUTORS ENGAGED IN WHAT JUSTICE CARDOZO CALLED “THE COMPETITIVE ENTERPRISE OF FERRETING OUT CRIME” ARE MORE LIKELY TO DISADVANTAGE MINORITIES THAN JUDICIAL DISCRETION.

THE EFFECT OF CURRENT SENTENCING POLICIES, INCLUDING MANDATORY MINIMUM SENTENCING LAWS, HAS BEEN DRAMATIC. IN 1972, THE POPULATIONS OF FEDERAL AND STATE PRISONS COMBINED WERE APPROXIMATELY 200,000. BY 1997 THE PRISON POPULATION HAD INCREASED 500 PERCENT TO 1.2 MILLION. SIMILAR DEVELOPMENTS AT THE LOCAL LEVEL LED TO AN