Privatization of the Prison System

PRIVATIZATION of the PRISON SYSTEM and the IMPACT of the DIFFERENTIATION of SENTENCING in POWDER vs. CRACK COCAINE OFFENSE and the IMPACT on African-American OFFENDERS

HISTORICAL BACKGROUND of the POLICY

In 1986 and 1988, the U.S. Congress passed federal sentencing laws related to crack cocaine that differentiated the sentences imposed upon defendants in powder and crack cocaine related offenses in what is known as the 'Anti-Drug Abuse Act of 1986'. These stricter sentencing guidelines were passed to address the emerging issue of crack cocaine which was perceived to be."..a social menace that was categorically different from powder cocaine in its physiological and psychotropic effects." Crack cocaine is powder cocaine mixed with banking soda and then cooked into hard rocks, which are then broken up into smaller pieces and sold to those who use the drug by smoking it. Crack cocaine is cheaper than powder cocaine and aroused great public concern when it first hit the streets in the United States. According to Alfred Blumstein of Carnegie Mellon University, as reported by Coyle (2002) in the work entitled: "Race and Class Penalties in Crack Cocaine Sentencing" crack cocaine began as an innovation in the drug market "crack distribution rights and boundaries were apportioned amongst competitors with the use of violence." (Coyle, 2002) the following table relates the median street-level dealer drug quantities and mandatory minimum imposed by the Anti-Drug Act of 1986.

Median Street-Level Drug Quantities and Mandatory Minimums

Drug

Median Drug Weight

Mandatory Minimum

Crack Cocaine

52 grams

10 years

Powder Cocaine

340 grams

Source: Coyle (2002

Congress created the United States Sentencing Commission in 1984 for the purpose of developing federal sentencing guidelines for the purpose of bringing about a reduction of sentencing disparity. By 1994 in alliance with provisions set out in the Omnibus Violent Crime Control and Law Enforcement Act, the Commission was instructed to conduct a study relating to different penalties in powder- and crack-cocaine sentencing. The study lasted the duration of one year with recommendations by the Commission to the U.S. Congress to revise the crack/powder 100:1 sentencing disparity due to findings that due to the small differences in the two forms of cocaine that such sentencing disparities were not justifiable. Commission advised an equalization (1:1) of the quantity ratio that would require mandatory sentencing relating to the two forms of cocaine. Commission recommendations included advisement that guidelines in federal sentencing should be based upon criteria other than the type of drug for determination of the lengths of sentences. These recommendations were rejected by the U.S. Congress along with refusal to make changes to the law and was in fact the first such move in the history of the United States Sentencing Commission since its' formation. Once again, recommendations were made in April 1997 regarding the disparity in sentencing between crack- and powder-cocaine that the differential sentencing should be balanced through provision of a range of 2:1 to 15:1 for Congress to choose from among. This new recommendation "was based on both raising the quantity of crack and lowering the quantity of powder required to trigger mandatory minimum sentences." (Coyle, 2002) Once again, Congress failed to act on the Commission's recommendation. The political climate provided support for the rejections of the Commission's recommendations by Congress and it was not until: "...the last year of his second term" that President Clinton endorsed a "10:1 ration to be arrived at by raising crack weight minimums and lowering powder ones. Congress however made no revisions." (Coyle, 2002) Originally, both the public and congress held a view of crack cocaine as being the instigator of violent offenses due to the chemical makeup of the drug and its reaction on the human system. It was widely believed that crack users were violently enraged due to the effects of the drug on the individual. This did appear to be the case in the advent of crack cocaine on the streets because violence and gang-related crimes were occurring simultaneously to the emergence of crack cocaine. The view held included perceptions such as those stated as follows: "Crack is a more dangerous and harmful substance than cocaine powder for a number of reasons. The most common routes of administration of the two drugs cause crack to be the more psychologically addictive of the substances, particularly because smoking crack produces quicker, more intense, and shorter-lasting effects than snorting cocaine powder. Identifiable social and behavioral changes occur much more quickly with the use of crack than with the use of cocaine powder. Crack can also be broken down and packaged into very small and inexpensive quantities for distribution and is thereby marketed to the most vulnerable members of society, including those of lower socioeconomic status and youth. Additionally, the open-air street markets and crack houses used for the distribution of crack contribute heavily to the deterioration of neighborhoods and communities. Finally, the present crack market is associated with violent crime to a greater extent than that of cocaine powder." (House of Representatives Report 104-272, Sept. 29, 1995) Changes have occurred in the perspectives held toward crack-cocaine since the 'Anti-Drug Act of 1996', which imposes harsher sentencing on crack-cocaine offenders than on powder-cocaine offenders. In a October 2, 2007 report entitled: "Supreme Court Examines Disparity in Crack and Powder Cocaine Sentences" it is related that "A federal judge's decision to slice a few years off a lengthy prison terms has brought to the Supreme Court the radically tinged issue of harsh sentences for dealing crack cocaine. Derrick Kimbrough, a black veteran of the 1991 Gulf War, received a 15-year prison term for selling both crack and powder cocaine, as well as possessing a firearm in Norfolk Virginia." (PR-Inside World News, 2007) the mandatory minimum sentencing laws relating to crack cocaine were called 'ridiculous' by U.S. District Judge Raymond a. Jackson whose decision is now going before the U.S. Supreme Court of Appeals. The primary result of the 100:1 sentencing guidelines is the disparity in the incarcerations between white and black defendants. Black Americans are much more likely to be sentenced for offenses of dealing crack cocaine than are white individuals because the more affluent white individuals prefer powder cocaine and because powder cocaine is the 'trendy' and 'in' form of the drug to do. The work of Levenson (2006) entitled: "The Cocaine Sentencing Disparity" relates that: "Crack is often portrayed as a violence inducing substance. The stereotypical crack user is a poor black urbanite who will use any means necessary to get his next fix. Powder cocaine, on the other hand, is seen as an upper-class white drug used by businessmen and clubbers. This distinction has led policy-makers to justify their sentencing recommendations by labeling crack traffickers and users as volatile and violent, more so than powder cocaine dealers." (Levenson, 2006) So prevalent is this disparity that a poor black women, with children who has purchased 5 grams of crack to feed her addiction "would be sent to jail much longer...than for buying 5 grams of powder cocaine which she could not afford." (Levenson, 2006) Levenson further relates that the racial disparity that exists "among person convicted of possession or trafficking of crack cocaine is obscene and is only aided by the 100:1 ratio. According to a report published by 'The Sentencing Project' about 2/3 of crack cocaine users are white or Hispanic. However, crack cocaine convictions for possession in 1994 were handed primarily to blacks. The defendants in 1994 were 84.5% black, 10.3% white and 5.2% Hispanic. For the offense of trafficking, the defendants were 88.3% black, 10.3% white and 5.2% Hispanic. For powder cocaine, in 1994, the defendants of possession were 26.7% black, 58% white and 15% Hispanic, and for trafficking, the defendants were 27.4% black, 32% white, and 39.3% Hispanic." (Levenson, 2006) White this trend has been noticed by the courts in the United States, and challenges to the sentencing policy have been posited on constitutional grounds, and even though "arguments have been set forth that the 100:1 quantity ration denies equal protection and due process, constitutes cruel and unusual punishments, and that the policy is vague under the terms of the constitution...these arguments have failed in federal appellate court." (Levenson, 2006) Levenson states that it is unfortunate that in the United States inner-city blacks have been stereotypes as: "...poor, violent, drug users who are a threat to society. The same stereotypes peg poor blacks as prime candidates for crack cocaine use as it is cheaper than the powdered version. Thus, to keep the violent addicts of the street the government struck using the very crack that kept the users poor." (Levenson, 2006) Finally, it is related by Levenson that: "The presence of racism is especially striking when we take note of the fact that 2.3 of crack cocaine users are white or Hispanic." (Levenson, 2006)the work entitled: "Cracks in the System: Twenty Years of the Unjust Federal Crack Cocaine Law" (2006) relates the fact that: "In 1986, before the enactment of federal mandatory minimum sentencing for crack cocaine offense, the average federal drug sentence for African-Americans was 11% higher than for whites. Four years later, the average federal drug sentence for African-Americans was 49% higher." (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 problem with illegal drug abuse in the United States and due to this conceived problem new policies were issued and great amounts were allocated for fighting this war on drugs. 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 job training programs." (Jensen, Gerber and Mosher, 2004) Furthermore, the ability to find and retain key employment are factors in forming bonds to the convention society and desistance from criminal behavior." (Jensen, Gerber and Mosher, 2004) Other outcomes include the fact that "one of the strongest predictors of urban violence is family structure. With other factors controlled, in cities where family disruption is high the rate of violence is also high." (Jensen, Gerber and Mosher, 2004) the result is stated to be that the "binge of imprisonment for drug offenses has substantial negative outcomes for society and inner-city African-American communities in particular. The incarceration of large numbers of young Black men for drug offense has created an artificially low unemployment rate in the United States in recent years." (Jensen, Gerber and Mosher, 2004) in 2002 approximately 600,000 people were released from prison, which has resulted in hundreds of thousands of young Black men "with the stigma of ex-convict back into primarily low-income urban communities each year." (Jensen, Gerber and Mosher, 2004) Because of the barriers these men face in obtaining gainful employment along with stability in marriage "should be focal points of public concern and social policy in the immediate future." (Jensen, Gerber and Mosher, 2004) Further exacerbating the problem is the increasing rate of HIV-positive individuals and statistics show that "Two percent to 3% of state and federal prisoners are HIV-positive or have AIDS - a rate five times higher than that of the general population." (Jensen, Gerber and Mosher, 2004) Jensen, Gerber and Mosher state that it is important to address, from the viewpoint of HIV disease, the number of sexual assaults taking place each year in prison. A study conducted rendered findings with estimates of 530,000 male rape victims in the prison system in the United States. The effectiveness of the war on drug policy is clear in that it has not been effective. For the low-level offenders who have been imprisoned, and the families that were left behind the present and the future is bleak. Those coming out of prison have very little chance in obtaining gainful employment and are likely to return to a life on the streets. Furthermore, "As state governments take funds from education and social programs to expand their prison systems, citizens are less able to compete in an increasingly competitive marketplace. Skills will be low, employment opportunities limited, and more people will live in poverty. Such conditions are crimnogenic, but instead of investing in programs to prevent criminal activity, the government spends dollars on the final result of the poverty circle." (Jensen, Gerber and Mosher, 2004) Jensen, Gerber and Mosher (2004) state that the World Health Organization has recommended that the state of federal government "...implement progressive policies such as making condoms, bleach, methadone, and sterile injection equipment available to prisoners" (Jensen, Gerber and Mosher, 2004) but that "given recent history, it seems unlikely,.." (Jensen, Gerber and Mosher, 2004) Jensen, Gerber and Mosher (2004) note the work of Marquart et al. (1999) who states, after conducted a study of women prisoners in Texas that: "Recent drug control policies, grounded in deterrence and based on harsh legal penalties, have led to the incarceration of numerous offenders who are low criminal risks but represent major public health risks on release. Criminal justice policies penalizing drug users may be contributing to the spread of HIV infection in the wider society." (Jensen, Gerber and Mosher, 2004)

III. DESCRIPTION of POLICY

The 'Anti-Drug Act of 1996' specifically mandates mandatory sentencing in crack cocaine related offenses, even low-level offenses, referred to as the 100:1 law due to the disparity in sentencing within the scope of these guidelines. There appears to be a hidden and sinister agenda based on racial disparity in the policies and framework of this law passed in 1986 and 1988 by the U.S. Congress. Members of Congress have failed to listen to Judges who feel that the sentencing guidelines are 'harsh' and 'ridiculous' as well as other critics who have noted the negative impacts to community, families, and society-at-large resulting from the mandatory sentencing guidelines. Furthermore, the policy has been shown to be ineffective and one that has ultimately failed in its attempt to target high-level drug dealers and instead has resulted in the disproportionate incarceration of poor black African-American individuals. Added to this is the privatization of prisons in the United States, which has led to profiteering in the operation of prisons and has led to a push to fill the newly constructed sprawling facilities in order to fund the operation and justify the existence of these prisons. In attempting to understand how policies are defined and implemented the decision-making model proposed by Lapierre (1973) is in part reproduced in the following figure.