" (Vagins and McCurdy, 2006) Additionally stated by Vagins and McCurdy is: "In 2000 there were more African-American men in prison and jails than there were in higher education, leading scholars to conclude that our crime policies are a major contributor to the disruption of the African-American family. The effects of mandatory minimums not only contribute to these disproportionately higher incarceration rates, but also separate fathers from families, separate mothers with sentences for minor possession crimes from their children, create massive disenfranchisement of those with felony convictions, and prohibit previously incarcerated people from receiving some social services for the betterment of their families. In short, this policy is a failed policy in that the goal of this law was to target high-level drug traffickers but in reality, mandatory penalties for crack cocaine offenses "apply most often to offenders who are low-level participants in the drug trade." (Vagins and McCurdy, 2006) Sentencing Commission data has revealed that "73% of crack defendants have only low-level involvement in drug activity, such as street-level dealers, couriers, or lookouts." (Vagins and McCurdy, 2006) II. CURRENT PROBLEM

The current problem at issue is the perceived 'right' of the Judge presiding over crack offense case sentencing to depart from mandatory minimum sentencing on crack cocaine offenses. This issue is presently before the U.S. Supreme Court. The work of Schwartzol (2006) entitled: "Rocks and Powder: Will Congress Listen to the Courts and Fix Drug Sentencing?" states that: "In federal court, crack offenses generate sentences 100 times greater than comparable powder-cocaine crimes. In other words, while it takes 500 grams of cocaine to trigger a five-year mandatory minimum sentence, 5 grams of crack earns the same punishment. Federal judges have long blasted the 100-to-1 ratio for punishing street-corner crack peddlers more harshly than major powder traffickers. But the biggest judicial gripe has been that the disproportionate penalties treat African-Americans unfairly. Blacks account for 80 to 90% of defendants convicted of crack offenses; whites and Hispanics for more than 70% of powder offenders. In 1992, one federal appellate judge said that the 100-to-1 ratio "makes the war on drugs look like a 'war on minorities.' " (Schwartzol, 2006) However, in 2005 the Supreme Court's ruling on sentencing in the case United States v. Booker states findings that: "mandatory sentencing guidelines violate a defendant's constitutional right to a jury trial (by requiring courts to assign a sentence based on facts found by judges, after the jury has issued a conviction). The federal sentencing guidelines, mandatory since they went into effect in 1987, became merely "advisory." Many trial judges saw Booker as authorization to renew the attack on the 100-to-1 ratio because of its impact on black defendants. One judge in Wisconsin reduced a 10-year recommended crack sentence to 18 months. Another judge pointed out that the penalty scheme "leads to, at the very least, a perception that the crack/powder disparity is racially-motivated" and knocked down a crack offender's sentence to 10 years, from 16 to 20. In the year and a half since Booker, about two dozen district courts have issued sentences below the ranges in the sentencing guidelines at least in part because the crack penalties were too harsh. But three appellate courts around the country have refused to go along. They have thrown out the reduced sentences for crack offenders on the grounds that Booker allows courts to take into account the specifics of each case at sentencing, not to disregard a penalty because it has statistically pernicious effects. Other appellate courts may see the matter differently, and eventually, the Supreme Court may weigh in. But for the time being, the maneuvering room eagerly claimed by many district courts may be disappearing. This is why the senators' new bill to remake the sentencing ratio is so remarkable. Some members of Congress are heeding the trial judges' call -- and they're proposing to make some sentences more lenient, hardly the usual congressional course." (Schwartzol, 2006) Congress did make a major change in sentencing law which was a "far reaching provision in the form of an attachment to a bill targeting child exploitation" (Schwartzol, 2006) that makes if much more difficult for judge to sentence beneath the mandatory minimum sentencing guidelines and makes it much easier for a win on appeal by the government in appeal of sentencing decisions. It was the conception of the Reagan administration that existing was an unrelenting and growing...

The work of Jensen, Gerber and Mosher (2004) entitled: "Social Consequences of the War on Drugs: The Legacy of Failed Policy" states that "the 1986 War on Drugs has resulted in some of the most extensive changes in criminal justice policy and the operations of the justice system since the due process revolution of the 1960s." (Jensen & Gerber, 1996, p. 421) Additionally stated by Jensen, Gerber and Mosher is: "This most recent in a series of drug wars in the United States has now lasted almost 17 years. Although huge amount of economic resources, $18.8 billion by the federal government in fiscal year 2002 alone, personnel, and massive prison construction have been hurled at the problem, the drug war has failed to eliminate illegal drug use. In fact the Household Survey of Drug Abuse shows that illegal drug use was declining substantially in the 6 to 7 years before the drug war was declared by President Reagan and continued this downtown for the next 6 years with fluctuation occurring since the early 1990s." (Jensen, Gerber and Mosher, 2004) the fact is that the war on drugs has failed miserably. A 2006 report by the Department of Justice, Bureau of Justice Statistics relates a 1,300% increase in those incarcerated related to drugs between the period of 1980 and 2001. (Jensen, Gerber and Mosher, 2004) Since the War on Drugs began "incarceration and prison construction have become major industries; in part replacing the old rust belt industries that were the economic backbone of America for decades." (Jensen, Gerber and Mosher, 2004) Furthermore, law enforcement personnel are being redirected away from handling other types of crimes in favor of drug offenses." (Jensen, Gerber and Mosher, 2004) Special courts have been created just to deal with the heavy caseload created by the drug case offenses. "For the first time in American history much harsher sentences are required for one form of an illegal drug (crack) than another form of the same substance (powder cocaine)." (Jensen, Gerber and Mosher, 2004) Charges are now being filed against women who used drugs during their pregnancy and child protective services are using this offense to remove the baby from its mother. Jensen, Gerber and Mosher, 2004 state: "The drug war has also spread over into the civil arena. This pandemic spillover of state intrusion into the civil arena in the name of controlling crime represents a rapid and drastic slide down the slippery slope of reducing what heretofore were considered the due process rights of Americans. The most pervasive example of crime control absent due process is the civil forfeiture of assets in drug-related cases. Law enforcement agencies seized nearly $7 billion in allegedly drug-related assets from fiscal year 1985 through 1999. When law enforcement is partially self-financed, it becomes less accountable to the public. Public school students are required to take drug tests in an increasing number of schools even when drugs have not been shown to be a serious problem in the school.Drug-sniffing dogs are frequently used in schools and school parking lots to uncover illegal drugs without search warrants." (Jensen, Gerber and Mosher, 2004) it was argued by criminologists in the 1960s that the expectations were that prison populations would experience a decrease with community programs replacing convictions with prison sentences. However, a 1980 study by the National Institute of Justice stated findings that: "...as a matter of history, history, this study has found that state prison populations were more likely to increase in years immediately following construction than at any other time, and that increases in the numbers of inmates closely approximates the change in capacity. (National Institute of Justice, 1980; pp. 138-139; as cited in Jensen, Gerber and Mosher, 2004) Jensen, Gerber and Mosher relate that in the 1990s three 500 capacity prison facilities were opened each week on the average. One of the results of the War on Drugs has been the "unprecedented racial disproportions in our prison population." (Jensen, Gerber, and Mosher, 1980) Changes have been made since the Reagan Administration to public policies that have "exacerbated this problem." (Jensen, Gerber and Mosher, 2004) in that since that time "dozens of laws were passed restricting the kinds of jobs for which ex-prisoners can be hired, easing the requirements for their parental rights to be terminated, restricting their access to welfare benefits and public housing, disqualifying them from a host of…