Drug Sentencing and Race

US District Judge Jack B. Weinstein’s well-researched 126 page Statement of Reasons for Sentencing Pursuant to 18 USC § 3553(c)(2) in US v. Bannister, 2000 WL 1113591 (E.D.N.Y. March 24, 2011) is worth reading for its in-depth historical, cultural, economic, and social analysis of the law’s treatment of the inner city drug trade. Discussing the mandatory minimum sentence guidelines in the case of 8 of 11 black and Hispanic young men charged in street-level dealing of heroin and crack near the Louis Armstrong Houses in the Bedford-Stuyvesant section of Brooklyn, Judge Weinstein makes no excuses for the choices that the defendants made that led them to his courtroom. He spends the first 40 pages tracing “fixed artifacts of history” including hundreds of years of enslavement of African Americans, Reconstruction, Jim Crow, northward migration, de jure and de facto segregation, decades of neglect, and intermittent improvement efforts by government.

He then goes on to address the effectiveness of long-term sentences for drug offences in reducing crime as well as the disparity in sentencing for offences involving cocaine in powder versus crack form. In the end, he follows the precedent of US v. Moore 54 F.3d 92 (2d Cir. 1995) that mandatory minimum sentences do not violate equal protection as well as precedent that Congress did not enact the sentencing disparity in the treatment of crack cocaine versus powder cocaine with a discriminatory intent (a ratio of 100 to 1 ratio under the Anti-Drug Abuse Act of 1986 later reduced to a ratio of 17.8 to 1 by The Fairness in Sentencing Act of 2010). But his statements that mandatory minimum sentencing provisions prevent the exercise of a fundamental judicial duty, that lengthy incarcertion fails to serve the purposes of sentencing, and his strong suggesion to revisit precedent is a likely basis for future challenges to lengthy drug sentences for failure to comply with 18 U.S.C. § 3553(a).

The recent entry at Sentencing Law and Policy by Prof. Doug Berman contains excerpts from the opinion including these stirring words:

Pragmatism and a sense of fairness suggest reconsideration of our overreliance on incarceration. Though defendants are hemmed in by circumstances, the law must believe that free will offers an escape. Otherwise, its vaunted belief in redemption and deterrence—both specific and general—is a euphemism for cruelty. These defendants are not merely criminals, but human beings and fellow American citizens, deserving of an opportunity for rehabilitation. Even now, they are capable of useful lives, lived lawfully.

For further reading, see Crack Pipes and Policing: A Case Study of Institutional Racism and Remedial Action in Cleveland at 33 Law & Policy 179 (April 2011) availalble at the Brooklyn Law Library circulation desk.