Category Archives: Sentencing

“Three Strikes, You’re Out” Report Shows Failures & Inequities

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Three Strikes and you’re out of the game in California

Photo courtesy of Isabella Roesler and Anna Silverman.

A report prepared by the Civil Rights Clinic at Seattle University School of Law and the Fred T. Korematsu Center for Law and Equality found scathing inequalities continue to exist in the criminal justice system. In Justice is Not a Game, they rely on data to demonstrate that Washington’s Three-Strikes Law fails to meet its penological goals. Consequently, this punishment is arbitrary and cruel.

WHY “THREE STRIKES, YOU’RE OUT” IS UNJUST

“Three Strikes, You’re Out” has at least five strikes against it: (1) it is overly retributive, punishing much more harshly than is justified, which makes it an immoral punishment; (2) it fails as a deterrent, making it ineffective as a policy choice; (3) it excessively over-incapacitates, imprisoning people far beyond when they would continue committing serious offenses; (4) it fails to allow for rehabilitation and redemption; and (5) it is applied in a racially disparate manner, making this punishment arbitrary and hence cruel.

Ample research demonstrating the first three points already exists. ThE report focuses on the latter two—the denial of redemption and the striking racial injustice. It also provides historical context of the POAA and explains in detail why repeal of the Persistent Offender Accountability Act (POAA) is a justifiable policy choice that would leave the rest of Washington’s Sentencing Reform Act (SRA) intact.

THE NUMBERS

According to the study, Black people are 18 times more likely than White people charged with three strikes crimes to be sentenced as persistent offenders. Also, Indigenous persons are sentenced to life without parole three times more often than White persons. In a state where only 4.6% of the population is Black, about 40% of those sentenced to life without parole are Black persons. There is no way this severe racial disproportionality can be justified.

One of the most prevalent areas imposing three-strike sentences is second-degree assault, the basis for 142 of the 270 three-strike sentences in Washington. Of those convicted of this crime, 33% are Black, and 5% are Indigenous. Compared to the state population, Black people are over-represented by a factor of 7, while Indigenous persons are over-represented by a factor of 2.5. Likewise, life without parole sentences for anticipatory offenses imposed on Black and Indigenous persons are also severely discriminatory, with 32% of them imposed on Black persons and 11% imposed on Indigenous persons.

Evidence indicates that none of the penological goals of incarceration are met when a court imposes a life without parole sentence. As those serving these sentences age, the sentences fail to meet the interests of justice as they can no longer be justified as retributive or to increase public safety. Instead, the sentences operate to incarcerate those who pose no danger to the community.

HOW CAN THIS STUDY BE USED?

If you have a three-strike case, you can use this study to argue that three-strike sentences are arbitrary and unconstitutional. The racial disparity inherent in the sentences makes them cruel and, as such, violates Washington’s Article I, Section 14’s ban on cruel or unusual punishment. Our Supreme Court has recognized that this type of detail is more than adequate to make a constitutional challenge. It is time for Courts to acknowledge the extreme arbitrariness of this law and strike it down.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

The “Second Look” Movement

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rear view of a silhouette man in window

Photo by Donald Tong on Pexels.com

A recent article in the Sentencing Project reports that numerous states have enacted “second look” judicial review policies to allow judges to review sentences after a person has served a lengthy prison sentence.

Titled, “The Second Look Movement: A Review of the Nation’s Sentence Review Laws,” the report provides a detailed analysis of second look legislation and court decisions in 12 states, the District of Columbia, and the federal government. It also delves into the implications of such laws on youth offenders and emerging adults, along with recommendations for enhancing their application.

“Research has clearly established that lengthy sentences do not have a significant deterrent effect on crime and divert resources from effective public safety programs. Nevertheless, existing parole systems, like executive clemency, are ineffective at curtailing excessive sentences in most states due to their highly discretionary nature, lack of due process and oversight, and lack of objective consideration standards,” ~Kara Gotsch, executive director of The Sentencing Project. 

Research has also established that lengthy sentences do not have a significant deterrent effect on crime and divert resources from effective public safety programs. Nevertheless, existing parole systems are ineffective at curtailing excessive sentences in most states due to their highly discretionary nature, lack of due process and oversight, and lack of objective consideration standards.

As a result, we’ve seen legislators consider and adopt second look legislation as a more effective means to reconsider an incarcerated person’s sentence in order to assess their fitness to reenter society. While much work remains, we’re thrilled to see this momentum across the country.

Key findings from the report highlight the provisions and recommendations necessary to ensure the effectiveness and fairness of second-look legislation. These include expanding eligibility criteria, implementing fully retroactive provisions, granting judicial discretion in sentence reduction, and providing timely and accessible review processes.

Among the states examined, six — Connecticut, Delaware, Maryland, Oregon, Florida, and North Dakota — and the District of Columbia allow courts to reconsider sentences under specified conditions, such as age at the time of the offense and duration of incarceration. Meanwhile, California, Colorado, and New York focus their reviews on specific populations, such as military veterans, habitual offenders, and domestic violence survivors, respectively.

In addition to California, four states – Illinois, Minnesota, Oregon, and Washington – have enacted prosecutor-initiated resentencing laws that allow prosecutors to request the court to reconsider a sentence.

Moreover, the report underscores provisions allowing for compassionate release for federal inmates based on extraordinary and compelling reasons, as well as for the elderly age alone for those incarcerated in the District of Columbia.

My opinion? Second look legislation is imperative to end mass incarceration, accelerate racial justice, and better invest in public safety.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

During COVID-19, Prison Inmates Died at 3.5 Times The Rate of the Free Population

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COVID-19: Authorities must protect health of detainees, staff and ultimately surrounding communities

Photo courtesy of the International Committee of the Red Cross

According to the Marshall Project, during the COVID-19 Pandemic, people in prison died at 3.4 times the rate of the free population. The elderly were hit the hardest. A national study gives the details.

THE STUDY

Over 6,000 incarcerated people died in the first year of the pandemic, researchers found. This data numbers they collected from state prison systems and the Federal Bureau of Prisons. the overall prison mortality rate spiked at least 50%, and potentially exceeded 75%, with roughly 50 or more people dying per 10,000 in prison in 2020.

The virus hit older generations especially hard, the study’s data shows. Not all states shared counts by age. But in the eight states that did, death rates for people aged 50 and older rose far higher than for others. The data reaffirms how much more vulnerable older prisoners are to the virus.

At the same time, incarceration rates dropped during the first year of the pandemic, but not because an extraordinary number of people were released. Despite a range of advocates calling for releases — particularly for older adults, who have higher health risks and statistically lower chances of committing a crime — data shows fewer people than in a typical year were let out in 2020. Instead, there was a dramatic reduction in prison admissions.

The slowdown in admissions meant that prison systems reduced the number of younger people exposed to COVID, while the older people already inside were left there. That’s because incarcerated people are generally older than those likely to be sent to prison.

By the end of 2020, Bureau of Justice Statistics data shows the number of people in state prisons under 55 fell by 17%, while the 55 and older population was down by 6%.

Prison deaths spiked almost everywhere across the country, varying in magnitude from state to state.

WERE THE WIDESPREAD DEATHS IN PRISONS PREVENTABLE?

According to the Machall Project, states and the federal government have legal tools to release at least some people, but rarely used them during the most urgent phase of the pandemic. In most states, only the governor and parole board can release people from prison without a court order.

Most state constitutions allow for governors to issue a pause in a criminal sentence known as a reprieve. Historically, governors use this power even less often than commutations, which lets them shorten sentences and free people without post-release supervision or expectation that they return. No state governors used either power for large-scale releases during the COVID-19 emergency, and only a small number performed any at all.

In a minority of states, corrections officials have some limited authority to release prisoners — usually due to terminal illness, or total physical or cognitive disability — or to seek certain kinds of inpatient medical care, according to data collected by the sentencing reform advocacy group Families Against Mandatory Minimums. These policies are not designed to release people based on risk of future illness, however.

“With more than half a million infections behind bars and over 3,000 deaths, America’s response to COVID-19 in prisons and jails was a failure. Federal, state, and local governments ignored public health guidance, refused to implement even the most basic mitigation strategies, and failed to reduce their incarcerated populations to the level necessary to avoid these catastrophes.” ~Prison Policy Initiative

Prison is a terrible place. Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Mass Incarceration Deepens Inequality and Harms Public Safety

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Local Impacts of Mass Incarceration: A Community Round Table - Center for the Humanities and the Public Sphere

A report from The Sentencing Project explores laws and policies that exacerbate inequality and disproportionately overburden communities of color. Specifically, the report gives the following examples:

  • Fines, fees, and predatory pricing exacerbate the economic precarity of justice-involved Americans and their families.
  • Employment during incarceration comes with low, and sometimes zero, wages. The average minimum wage for the most common forms of prison labor is $0.13/ hour. The average maximum is $0.52/ hour.
  • A criminal conviction creates lifelong barriers to securing steady employment and housing. Many states disqualify people with felony drug convictions from cash assistance and food stamps. Nearly all states also restrict voting rights for people with criminal convictions. Yet research has shown that post-incarceration employment, access to food stamps, and voting are associated with lower recidivism rates.
  • Finally, the high cost of mass incarceration comes at the expense of investing in effective crime prevention and drug treatment programs. These laws and policies exacerbate the marginalization of justice-involved people—who are disproportionately people of color—by eroding the economic and social buffers against crime and increasing the likelihood of police contact.

WHAT ARE THE SOLUTIONS?

Fortunately, jurisdictions around the country have initiated promising reforms to reduce the direct and indirect harms of criminal convictions and redirect resources to more effective interventions:

  • To promote beneficial contact with support networks, some jurisdictions have made all phone calls from their prisons free.
  • To end the injustices associated with prison labor, many jurisdictions have removed language allowing “slavery and involuntary servitude” in the case of punishment for a crime. Advocates are still working to ensure that this change bans forced and unpaid labor among incarcerated workers.
  • To reduce labor market discrimination resulting from a criminal record, a majority of states and many cities “Ban the Box.” This action removes the question about conviction history from initial job applications and delays a background check until later in the hiring process.
  • A majority of states no longer impose bans on food stamps or cash assistance for people with a felony drug conviction.
  • Finally, Washington, DC, has joined Maine, Vermont, and Puerto Rico in fully untangling voting rights from criminal legal involvement by permitting its prison population to vote.
  • The federal government and states are also increasing investments in crime prevention.

My opinion? For the criminal legal system to uphold the principle of justice, policymakers and practitioners will need to protect and expand these reforms.

Also, prison is a terrible place. Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

“No Hostile Contact With Police” Sentencing Condition Held Unconstitutionally Vague

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Void for Vagueness Doctrine

In State v. Shreve, the WA Court of Appeals held that a felony sentence condition prohibiting the defendant from having any future hostile contact with law enforcement was unconstitutionally vague.

BACKGROUND FACTS

In March 2022, Shreve attended a party at a hotel. He got into a physical altercation with another individual at the hotel. A hotel security guard intervened. When approached by the security guard, Shreve drew a knife and lunged toward him. The security guard blocked the attack and disarmed Shreve. The security guard confiscated the knife and brought Shreve to the lobby.

Police were dispatched. Upon arrival, a police officer saw Shreve seated in the lobby while the security guard stood nearby. Shreve appeared to be intoxicated and angry. The police officer and the security guard initially decided to allow Shreve to leave the hotel without his knife. However. Shreve escalated the situation by suddenly and aggressively moving toward the security guard.

A physical scuffle ensued. The officers forced Shreve to the ground and attempted to handcuff him. Ultimately, Officer Hannity was forced to use his taser to subdue Shreve.

On June 30, 2022, Shreve pleaded guilty to a single count of second degree burglary. Shreve was sentenced the same day. As a first-time offender, Shreve was sentenced to one day of confinement and twelve months of community custody. The sentencing court imposed several community custody conditions, including “No hostile contact with law enforcement/first responders.”

Shreve appealed his community custody sentencing condition. He argued that the community custody condition prohibiting him from having “hostile contact” with law enforcement is unconstitutionally vague and not crime-related. Shreve also argued that the condition was overbroad and infringed on his First Amendment rights.

COURT’S ANALYSIS & CONCLUSIONS

Ultimately, the Court of Appeals agreed with Mr. Shreve.

First, it addressed Mr. Shreve’s arguments that his community custody condition is unconstitutionally vague. He asserts the term “hostile” is not subject to a clear definition and is especially susceptible to arbitrary enforcement because it could encompass a wide range of everyday conduct and permit law enforcement officers to decide subjectively for themselves what constitutes hostile behavior.

“Whether a condition is sufficiently specific is a constitutional issue,” said the Court of Appeals. “Due process requires that individuals have ‘fair warning’ of what constitutes prohibited conduct.”

Next, the Court of Appeals applied a two-prong analysis to determine whether a condition is sufficiently specific and not unconstitutionally vague. A condition is not unconstitutionally vague if (1) it defines the prohibited conduct so an ordinary person can understand what the condition means, and (2) it provides ascertainable standards to protect against arbitrary enforcement.

1. THE TERM “HOSTILE” DOES NOT CLARIFY WHAT BEHAVIOR IS PROHIBITED.

The Court reasoned that here, the term “hostile” does not clarify what behavior is prohibited. The term “hostile” has a wide variety of dictionary definitions, which is indicative of its imprecision in this context. An individual’s conduct may be considered hostile when it is marked by malevolence and a desire to injure. However, it may also be considered hostile when it is marked by antagonism or unfriendliness.

“Given the broad range of conduct this term could cover, what the condition prohibits is guesswork. Thus, the ambiguous scope of the term “hostile” fails to provide Shreve with fair warning of the type of behavior prohibited by the condition. The first prong of the vagueness analysis fails.” ~WA Court of Appeals

2. THE CONDITION WAS SUSCEPTIBLE TO ARBITRARY ENFORCEMENT.

The Court of Appeals explained that a community custody condition is unconstitutionally vague when enforcement relies on a subjective standard. It reasoned that here, even assuming Shreve could generally understand what “no hostile contact” means, the condition fails the second prong because it is overly susceptible to arbitrary enforcement.

“Considering that interactions with police officers are often investigative or even adverse in nature, separating hostile contact with law enforcement from an adverse, but non-hostile, contact is simply too subjective to be constitutional.” ~WA Court of Appeals

With that, the Court of Appeals decided  Shreve’s “no hostile contact with law enforcement” condition was unconstitutionally vague.

My opinion? However well-intentioned by the sentencing court to protect law enforcement and first responders from enduring undeserved aggressive interactions, this particular community condition cannot withstand constitutional scrutiny.

Clearly, some community custody conditions are unconstitutional. Best to avoid felony convictions altogether. Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

“Rapid Recidivism” Sentencing Aggravator Upheld

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Unusual Jail Sentences: When the Punishment Really Fits the Crime - A&E True Crime

In State v. Jackson, the WA Court of Appeals held the Sentencing Aggravator of committing a criminal current offense shortly after release from incarceration on a different criminal conviction was not inappropriate. The sentencing aggravator was not unconstitutionally vague simply because “shortly after” is not defined.  Also, committing Vehicular Homicide and Felony Hit and Run only 93 days after release from incarceration constituted “shortly after.”

BACKGROUND FACTS

On November 11, 2015, Mr. Jackson crashed his vehicle into a large power vault while driving under the influence of alcohol. A passenger in the vehicle died instantly from skull fractures and brain avulsion as a result of the “extremely high speed crash. The vehicle was traveling at nearly 80 miles per hour, significantly higher than the posted 25 mile per hour speed limit, when the collision occurred. Jackson’s blood alcohol content was later calculated to have been between .135g/100mL and .22g/100mL. Jackson fled the scene without reporting the collision or seeking medical care for his passenger. He also evaded police until the next morning, when he “aggressively resisted arrest.”

Following a bench trial, Jackson was convicted of Vehicular Homicide and Felony Hit and Run. The superior court found that these offenses had occurred “shortly after” Jackson’s release from incarceration on August 10, 2015. Accordingly, the court determined that, as to both convictions, the aggravating circumstance of rapid recidivism applied. At the time, Jackson had two prior felony convictions, including a conviction of second degree robbery.

For those who don’t know, Prosecutors can offer evidence of aggravating factors that would merit a harsh sentence during trial. Criminal statutes often identify specific factors that should result in harsher punishments. A common aggravating factor is a prior record of similar convictions. Other aggravating factors typically relate to the circumstances of the offense itself, such as the use of a weapon or the severity of the injuries suffered by a victim. With the exception of prior convictions, a court may not use aggravating factors to impose a harsher sentence than usual unless the jury found those factors to be true beyond a reasonable doubt.

Based on these prior convictions, the sentencing court imposed an exceptional upward sentence on Mr. Jackson based on aggravating factors. It determined that Jackson was a persistent offender and sentenced him to life imprisonment without parole. The court also determined that an exceptional sentence was appropriate and imposed a sentence of 400 months of incarceration.

Jackson appealled, in part, on arguments that the aggravating circumstance of rapid recidivism is unconstitutionally vague. He further asserts that the evidence is insufficient to support a finding that he committed the offenses “shortly after being released from incarceration” under RCW 9.94A.535(3)(t). Thus, he argued, the court erroneously imposed an exceptional sentence based on the rapid recidivism aggravator.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals reasoned that under WA’s Sentencing Aggravator Statute, a sentencing court may impose an aggravated exceptional sentence based on a finding that the defendant committed the current offense shortly after being released from incarceration. It also acknowledged, however, the term “shortly after” is nowhere defined in the statute.

“When a statute does not define terms alleged to be unconstitutionally vague, we may look to existing law, ordinary usage, and the general purpose of the statute to determine whether the statute meets constitutional requirements of clarity,” said the Court of Appeals. It further reasoned that here, Jackson committed the current offenses on November 11, 2015, after being released from incarceration on August 10, 2015—a period of 93 days. He needed to demonstrate that a person of reasonable understanding would have to guess that reoffending 93 days after release from incarceration would subject the defendant to an exceptional sentence pursuant to RCW 9.94A.535(3)(t). “Jackson has not done so,” said the Court of Appeals. “Accordingly, the rapid recidivism aggravator is not unconstitutionally vague as applied to his case.”

Next, the Court of Appeals addressed Jackson’s argument that there was insufficient evidence of the rapid recidivism aggravator because he committed “impulse crimes” that are unrelated to his prior offenses”

“Here, Jackson committed offenses while highly intoxicated that resulted in the violent death of another person. He then sought to avoid accountability by fleeing the scene and aggressively resisting arrest when later discovered. He did so only 93 days after his release from incarceration. Whether Jackson’s conduct constituted rapid recidivism is a question for the finder of fact. Plainly, some rational fact finders could conclude that Jackson committed the current offenses “shortly after” his release from incarceration, and that such conduct evidenced disdain for the law, rendering Jackson particularly culpable in committing those offenses. Accordingly, sufficient evidence supports the resentencing court’s rapid recidivism finding.” ~WA Court of Appeals

With that, the Court of Appeals concluded that Jackson’s claims on appeal were without merit. The Court affirmed his exceptional sentence imposed by the lower court.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Public Safety Beyond Extreme Sentencing

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Long prison sentences are cruel and ineffective: here's the proof - The Boston Globe

A policy brief from the Sentencing Project explores five social interventions that can improve public safety in the United States without increasing the reliance on mass incarceration.

According to the report, America’s criminal legal system has produced excessive levels of punishment and a diversion of resources from investments that would strengthen the capacity of communities to address the circumstances that contribute to crime.

After 50 years of mass incarceration, the United States faces a reckoning. While crime is far below its peak in the early 1990s, the country continues to struggle with an unacceptable amount of gun violence. Meanwhile, the drug war harms too many Americans and has failed to prevent fatal overdoses from reaching an all-time high.

The report offers five recommendations for policymakers and community members to potentially improve safety without deepening our reliance on extreme sentencing:

  • Implement community safety solutions – Community-based interventions such as violence interruption programs and changes to the built environment are a promising approach to decreasing violence without incarceration.
  • Transform crisis response – Shifting responses to people in crisis away from police toward trained community-based responders has the potential to reduce police shootings, improve safety, and decrease incarceration.
  • Reduce unnecessary justice involvement – Ending unnecessary police contact and court involvement by decriminalizing and diverting many offenses can improve safety.
  • End the drug war – Shifting away from criminalizing people who use drugs toward public health solutions can improve public health and safety.
  • Strengthen opportunities for youth – Interventions like summer employment opportunities and training youth in effective decision-making skills are a promising means of reducing criminal legal involvement.

“A growing evidence-base for all of these interventions demonstrates that policymakers can think beyond police and incarceration to create safety in their communities and should invest in bringing innovative alternatives to scale.” ~The Sentencing Project

Research demonstrates that many social interventions have the potential to be more cost-effective and equitable than criminal legal responses. The highlighted interventions below in violence prevention, crisis response, early childhood education, harm reduction, and therapeutic support for youth are ways to reduce unnecessary contact with the criminal legal system while protecting public safety.

The report emphasizes our opportunity to expand on programs that improve safety while scaling back incarceration.

“By combining social interventions that address some of the root causes of crime and legislative reforms that reduce the harm of the criminal legal system, policymakers can create safer, fairer, and more equitable communities.” ~The Sentencing Project

Excellent research by authors Liz Komar and Nicole D. Porter.

Please contact my office if you, a friend or family member are charged with a crime. Prison should be avoided whenever possible. Hiring an effective and competent defense attorney is the first and best step toward justice.

Sentencing Enhancements For Dealing Drugs Near School Zones

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Drug Problem Facing Local Campus - Newport Beach News

In State v. Richter, the WA Court of Appeals held that the Blake decision does not invalidate the enhancement for trafficking drugs within 1000’ of a school bus route stop just because a drug dealer might deal drugs without knowing he or she is close to such a stop.

FACTUAL BACKGROUND

Mr. Richter was convicted of three counts of delivery of a controlled substance within 1,000 feet of a school bus route stop and one count of possession of a controlled substance with intent to deliver. The trial court imposed an exceptional upward sentence of 168 months based in part on former RCW 69.50.435(1)(c). The statute allows judges to double the statutory maximum sentences for drug offenses that occurred in certain locations.

Richter appeals his sentence. Among other things, he argued his sentence violated due process under the reasoning in State v. Blake, In the Blake case, the Washington Supreme Court struck down Washington’s drug possession statute, because the statute violated due process and was therefore void. The law criminalized “unknowing” drug possession. As a result,  people could be arrested and convicted even if they did not realize they had drugs in their possession.  Consequently, Mr. Richter hoped that his appeal would persuade the WA Court of Appeals to reverse his conviction for the same reasons.

COURT’S ANALYSIS & CONCLUSIONS

The WA Court of Appeals began by summarizing the Blake decision. In Blake, the WA Supreme Court declared Washington’s statute criminalizing simple possession of a controlled substance to be unconstitutional because the statute allowed conviction even if the possession was unknowing.

The Court of Appeals emphasized that Blake court held that active trafficking in drugs was not innocent conduct. States have criminalized knowing drug possession nationwide, and there is plenty of reason to know that illegal drugs are highly regulated. The Court of Appeals also emphasized that the Blake court then distinguished the unconstitutional simple possession statute from other valid strict liability crimes. Ultimately, the difference hinges on whether the statutes penalize conduct or passive and innocent nonconduct.

That, reasoned the Court of Appeals, is where Mr. Richter’s argument on appeal collapsed.

The statute imposed increased consequences for affirmative conduct, not the kind of passive nonconduct that the Blake court declared to be innocent:

“Here, although Richter may not have known that he was within a school bus route stop zone, he does not dispute that he intended to sell methamphetamine, and the delivery amounted to affirmative conduct. Therefore, the Blake court’s reasoning does not apply to this case or to former RCW 69.50.435(1) more generally.” ~WA Court of Appeals.

With that, the Court of Appeals denied Richter’s appeal on this issue.

Please contact my office if you, a friend or family member are charged with Drug Offenses or any other crimes. Hiring an effective and competent defense attorney is the first and best step toward justice.

DOJ Ends Crack Cocaine Sentencing Disparities

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No More Crack/Powder Disparities – Dr. Carl Hart, PhD

The US attorney general, Merrick Garland, moved to end sentencing disparities that have imposed different penalties for different forms of cocaine. This signaled an end to arbitrary drug policies that have worsened racial inequity in the US justice system.

For decades federal law has imposed harsher sentences for crack cocaine even though it isn’t scientifically different from powder cocaine, creating “unwarranted racial disparities,” Garland wrote in a memo Friday to federal prosecutors. “They are two forms of the same drug, with powder readily convertible into crack cocaine.”

With changes to the law stalled in Congress, Garland instructed prosecutors in non-violent, low-level cases to file charges that avoid the mandatory minimum sentences that are triggered for smaller amounts of rock cocaine.

Civil rights leaders and criminal justice reform advocates applauded the changes, though they said the changes would not be permanent without action from Congress. The Rev Al Sharpton led marches in the 1990s against the laws he called “unfair and racially tinged” and applauded the justice department direction, which takes effect within 30 days.

“This was not only a major prosecutorial and sentencing decision – it is a major civil rights decision. The racial disparities of this policy have ruined homes and futures for over a generation.” ~Reverend Al Sharpton

At one point, federal law treated a single gram of crack the same as 100 grams of powder cocaine. Congress narrowed that gap in 2010 but did not completely close it. A bill to end the disparity passed the House last year but stalled in the Senate.

“This has been one of the policies that has sent thousands and thousands of predominantly Black men to the federal prison system,” said Janos Marton, vice-president of political strategy with the group Dream.org. “And that’s been devastating for communities and for families.”

While he welcomed the change in prosecution practices, he pointed out that unless Congress acted, it could be temporary. The bill that passed the House with bipartisan support last year would also be retroactive to apply to people already convicted under the law passed in 1986.

The Black incarceration rate in the US exploded after the Anti-Drug Abuse Act of 1986 went into effect. It went from about 600 per 100,000 people in 1970 to 1,808 in 2000. In the same timespan, the rate for the Latino population grew from 208 per 100,000 people to 615, while the white incarceration rate grew from 103 per 100,000 people to 242.

The mandatory-minimum policies came as the use of illicit drugs, including crack cocaine in the late 1980s, was accompanied by an alarming increase in homicides and other violent crimes nationwide.

The act was passed shortly after an NBA draftee died of a cocaine-induced heart attack. It imposed mandatory federal sentences of 20 years to life in prison for violating drug laws and made sentences for possession and sale of crack rocks harsher than those for powder cocaine.

Friday’s announcement reflected the ways that years of advocacy had pushed a shift away from the “war on drugs” tactics that took a heavy toll on marginalized groups and drove up the nation’s incarceration rates without an accompanying investment in other services to rebuild communities, said Rashad Robinson, president of Color of Change.

“It is a recognition these laws were intended to target Black people and Black communities and were never intended to give communities the type of support and investments they need,” he said.

My opinion? It’s about time. The sentencing disparity between crack and powder cocaine was racist. It was never based in sound policy, and has not improved public safety. Far from it — it is science fiction that has driven racial disparities, bloated our carceral system, and ruined thousands of lives.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Racial Disparities in Sentencing

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Opinion | At Long Last, a Measure of Justice for Some Drug Offenders - The New York Times

The Sentencing Project and the ACLU submitted a shadow report to the United Nations on the impact of racial disparities in sentencing.

The report addresses sentencing and imprisonment. It also discusses racism in the application of the death penalty. Finally, it focuses on issues for youth in the adult and juvenile justice systems.

According to the report, the proportion of people of color who are incarcerated in the nation compared with their representation in the general population epitomizes the need to achieve racial justice.

“The nation incarcerates almost two million people—more than any other country in the world—and over five times more per capita than just 40 years ago,” it says. “But the burden of criminal sentencing and imprisonment is not inflicted equally.” It goes on to say that Black and Latinx residents are incarcerated at rates five and three times higher than white residents, respectively. One of every 81 Black adults in the U.S. is in prison.

“These staggering disparities create individual and community barriers to full and equal participation in American society. Criminal convictions and imprisonment can prevent individuals from voting and gaining employment, undermine access to safe housing, negatively impact the life outcomes of children, and substantially lower lifetime earnings, amongst other social, political and economic disadvantages.” ~Racial Disparities in Sentencing in the United States, July 14, 2022

The report argues that while these are individual consequences, there are also societal consequences: high levels of imprisonment in communities bring about crime, poverty and neighborhood deterioration through decreased political power that fuels greater disparities. This cycle of suffering, social exclusion and disempowerment is primarily experienced by African Americans and other people of color.

The enormous racial disparities, discrimination and inequality created by the United States’ system of mass incarceration did not occur by happenstance. They are the product of deliberate legal and policy choices created by a dominant white population supported by a culture of white supremacy.

The report says, for instance, that the so-called “War on Drugs” which greatly accelerated America’s mass incarceration build-up starting in the 1970’s was initiated as a deliberate effort by President Richard Nixon and his administration to disrupt, vilify and oppress communities of color for political gain and control, rather than a legal initiative primarily concerned about improving public safety.

These racist underpinnings of the criminal legal system in the United States must be acknowledged in order for meaningful reform to be accomplished and human rights to finally be upheld. Despite the centrality of racial disparities in the criminal legal system, and in sentencing and imprisonment in particular, these critical areas of race discrimination and disparate impact receive scant attention in the U.S. government’s combined tenth to twelfth periodic reports submitted to the Committee on the Elimination of Racial Discrimination in 2021.

Kudos to the Sentencing Project and the ACLU for their insightful report. And please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.