Articles Posted in Drug Crimes

An article in yesterday’s New York Times examines federal drug sentences as part of the overall picture which shows that the U.S. leads the world in the number of people incarcerated, as well as in the length of those sentences. Part of the article looks at statistics showing how federal criminal sentences have exploded in the past two decades. Around 1980 there were 40,000 people serving time for federal crimes. That figure has expanded to almost 500,000 federal prisoners at the present time. The article points out that more than half of the people doing federal time were convicted of drug crimes. Here is a little background on how this amazing expansion of federal drug prisoners came to be.

When I was just out of law school in the early 1980’s, I worked for a couple of federal judges as a law clerk. It’s a great job where recent students help the judge and also get to see the legal system up close and in action. I always watched the criminal trials with interest. The drug cases tended to be prosecutions of large-scale dealers, importers and middle men. Cocaine seemed to be the drug that federal prosecutors focused upon.

I remember one case involving a pretty big dealer where the judge for whom I worked imposed what I thought was a rather harsh sentence, 15 years in prison. Later, the judge laughed when he explained that the guy would be out in under 5 years, maybe less. The reason was the old parole system used by the feds really only required the person to do about one-third of the actual sentence.

Sentences in federal court for crack cocaine offenses will be reduced for many people, based on an amendment issued by the United States Sentencing Commission on December 11, 2007. This is good news for defendants who have been forced to spend longer in prison than similary situated defendants who were convicted of powder cocaine violations.

As I wrote about recently, crack cocaine is punished 100 times more severely than powder cocaine. Virtually all crack cocaine defendants are non-white, while at the same time people of all colors are prosecuted under the less stringent powder cocaine rules. For years, scientists and criminal defense attorneys have been arguing that this difference makes no sense, is unfair, and promotes widespread disrespect for the law.

The Sentencing Commission finally saw things our way, and agreed that the 100-1 ratio is unfair and makes no sense. For years now, the Commisson has been asking Congress to do something, but our elected lawmakers have failed to act. Earlier this year, the Commission published new rules designed to help this situation a little bit. After a six month period during which Congress could have squashed the changes, the new rules went into effect. Even more importantly, the December 11 amendment made these changes retroactive, which is a fancy way of saying the new rules apply to people who have already been sentenced. In other words, if you or a loved one was sentenced even many years ago, there is a chance that sentence can be reduced.

Federal sentences for crack cocaine crimes are grossly unfair. For almost two decades, many people have been fighting against a system in which a person with crack cocaine is punished 100 times more severely than a similarly situated offender who happens to have a powder version of this drug. Although there are a series of recent developments that show promise for remedying this gross disparity, I still wonder if the legislature or the courts will ever show the courage to do the right thing.

A bit of history first. Cocaine dealers have been prosecuted in the federal courts for many years. In the early and mid-1980’s, drug dealers and users discovered that by “freebasing” the drug, the user got a much more intense “high.” Many of us of a certain age remember that the amazingly funny Richard Pryor almost killed himself using this method. Later, the dealers took this method to the next level, resulting in a solid version of the drug which came out in cookie form. The dealers would have to crack off a piece from the cookie every time they wanted to sell some, hence the term “crack.” By the mid-1980’s, crack was taking over, and resulted in a lot more violent crime in the drug trade. The publicity came to its high point when college basketball sensation Len Bias died from an overdose of crack cocaine the dayy after the Boston Celtics made him their number one pick in the draft. Shortly thereafter, Congress enacted a series of mandatory minimum penalties for federal drug crimes, and among these laws were rules that punished crack cocaine violators 100 times more harshly than persons who were involved with a powder version of the crime.

When prosecutors began using these new penalties, it became clear that only black people were getting charged with crack cocaine penalties, while powder cocaine penalties were imposed on both black and white offenders. Myself and other lawyers began mounting challenges against these unfairly disparate laws. I remember going to a seminar when we were trying to figure out how to raise challenges, and we listened to a famous pharmacologist who gave us a lesson on the chemistry of cocaine and how cocaine acts on the human body. I asked the scientist how crack differs from powder cocaine when it affects the human body, and was amazed when he said there is no difference!

Drug crimes in federal court involving young people are unfortunately too common. However, most young people, and many of their parents, do not realize how the harsh sentencing schemes in federal court can have a severe impact on what appears on the surface to be merely a youthful indiscretion.

I have several current clients who come from very nice families, young people whose lives can be impacted severely because of some stupid involvement in drug crimes. The reason that these crimes can have severe impacts are the set of mandatory minimum sentencing schemes enacted by Congress back in the 1980’s. These harsh sentencing laws can result in 5 or 10 year minimum sentences, even for some of those least involved in a drug crime. A good example on how even the least involved person can get caught up in these harsh mandatory sentences is an appeal we won for a client several years back.

These mandatory sentences can be amazingly harsh, especially for anyone foolish enough to deal in either crack cocaine or LSD. Small amounts of either substance can yield 5 or 10 years in a federal prison, with absolutely no hope of parole. What makes it even more absurd is that the sentence depends on the weight of the “mixture of substance” that contains even a “detectable amount” of the drug. The Supreme Court has had held that the blotter paper on which some foolish young person drips the drug is included in the weight. Many families have been so incensed about these ridiculous sentencing schemes that they have bonded together in the Families Against Mandatory Minimums lobbying group.