We Are Our Brothers’ and Sisters’ Keeper: Executive Clemency And Sentence Commutation Is Simple Justice Long Overdue

smartBy Honorable Sheila Jackson Lee TX 18th Dist.

Last August, at the direction of U.S. Attorney General Eric Holder, the Justice Department launched the “Smart on Crime” initiative, a set of internal policies and reforms to ensure federal laws are enforced more fairly and efficiently. These reforms are consistent with the President’s constitutional obligation to take care that the laws are faithfully executed.

This effort is a clarion call to all civil rights and faith community members and advocates for sentencing reform to redouble their efforts to fix a federal criminal justice system that has seen an 800 percent increase in the number of federal inmates over the last 30 years, from 30,000 to more than 216,000.

One of the smart reforms is a modification in the department’s charging policies so that certain low-level, nonviolent drug defendants, with no significant ties to large-scale organizations, gangs, or cartels, will no longer be charged with offenses triggering mandatory minimum sentences. Instead, they will be charged with offenses that allow judges to impose sentences appropriate to their conduct.

The “Smart on Crime” initiative is an exciting development that should be welcomed and supported by everyone because the status quo simply was not making the criminal justice system better, it was creating more problems than it solved. And we are spending more than $6.5 billion annually to incarcerate inmates, money that could be better used to fund job training, and educational opportunities, invest in infrastructure, support veterans, and promote reentry programs to reduce recidivism.

The United States incarcerates nearly 25 percent of the world’s inmates, even though it only has 5 percent of the world’s population. No other country imprisons a larger percentage of its population than the United States or spends anywhere near the amount we do to incarcerate our citizens.

The cost of imprisoning so many non-violent offenders is fiscally unsustainable and morally unjustifiable and it will take the combined efforts of policy makers, reform advocates, legal professionals, and private citizens to solve the problem.

There is no shortage of stories chronicling the damage done to the lives of thousands of individuals and their families by the draconian sentencing laws passed by Congress and state legislatures beginning in the late 1980s in the so-called “War on Drugs.” Few are as tragic as the story of Clarence Aaron, who grew up in a public housing project in Mobile, Alabama.

In 1992, shortly after his grandfather’s death, Clarence made a mistake that would change his life. He agreed to introduce an old high school football teammate to a college classmate whose brother was a drug dealer. Clarence was present during one of the brother’s drug transactions and during another attempted transaction for which he received $1,500.

He was later arrested by federal law enforcement officers and charged with conspiring to process 20 kilograms of powder cocaine and distribute it as crack cocaine. Even though this was his first offense, Clarence was sentenced to life in prison without the possibility of parole. Shocking as this sounds, the judge was powerless to adjust the punishment to fit the crime because he was required by law to impose the sentence called for by the then-mandatory federal sentencing guidelines.

It would be comforting to think that the case of Clarence Aaron is an aberration, a rare miscarriage of justice in a system that otherwise works well for all Americans. It would be comforting but it would also be wrong.

The sad fact is that for thousands of inmates in the federal penal system, especially African Americans and Hispanics, the case of Clarence Aaron is not the exception but the rule. As recently as 2010, more than half of all inmates in the federal system (52%) were incarcerated for drug offenses, a rate more than three times as great (17%) as found in the state penal system.

And the racial and ethnic composition of federal inmates incarcerated for drug offenses is equally troubling story because while whites and African Americas use drugs at similar rates, African Americans are much more likely to be arrested and sentenced for drug offenses. Indeed, African Americans and Hispanics comprise more than 6 in 10 federal inmates incarcerated for drug offenses.

Moreover, according to the U.S. Sentencing Commission African American offenders receive sentences that are 10 percent longer than white offenders for the same crimes and, according to a report by the Sentencing Project, African Americans are 21 percent more likely to receive mandatory-minimum sentences than white defendants.

Many persons concerned about the fair administration of justice were alerted to and alarmed by the danger posed by the imposition of mandatory-minimum sentences for non-violent drug offenses and worked to restore balance and justice to sentencing policy.

In 2005, I introduced the “No More Tulias Act of 2005” (H.R. 2620) in response to the infamous drug task force scandal in Tulia, Texas that occurred six years earlier, during which 15 percent of the town’s African American population was arrested, prosecuted and sentenced to decades in prison based on the uncorroborated testimony of a federally funded undercover officer with a record of racial impropriety.

This legislation, which was endorsed by more than 50 of the leading civil rights, religious, and criminal justice reform organization was designed to help put an end to these abuses by enhancing the evidentiary standard required to convict a person for a drug offense, improving the criteria under which states hire drug task force officers, and denying federal money to states that do not have laws preventing convictions for drug offenses based solely on uncorroborated testimony.

Later, in 2007, I introduced the “Drug Sentencing Reform and Cocaine Kingpin Trafficking Act of 2007” (H.R. 4545), bipartisan legislation eliminating the unjust and discriminatory 100 to 1 disparity between crack and powder cocaine sentences in federal law. Companion legislation in the Senate was introduced by then Senator Joseph Biden of Delaware (S. 1711).

This legislation attracted wide-spread support because scientific research had by this time clearly refuted the myth upon which the 100 to 1 ratio was based that use of crack cocaine was far more addictive and dangerous than powder cocaine. Instead, the pharmacological effects of crack cocaine were repeatedly shown by scientific and medical experts to be no more harmful than powder cocaine and that the effect on users is the same. Since there was no pharmacological difference between the two drugs, the “Drug Sentencing Reform and Cocaine Kingpin Trafficking Act” removed the distinction in federal law between them for sentencing purposes. Similar bills to remedy the inherent unfairness in federal drug sentencing were introduced by Senators Edward M. Kennedy and Orrin Hatch, and Jeff Sessions.

In 2010, after years of working to reform our drug sentencing laws, our efforts finally bore fruit when the Congress passed and President Obama signed into law the “Fair Sentencing Act of 2010”  (P.L. 111-220), which finally ended the 100:1 ratio that had resulted in unconscionable racial disparities in the average length of sentences for comparable offenses. Indeed, the 100:1 regime was so draconian that it typically resulted in African Americans serving as much time in prison for non-violent drug offenses as whites did for violent offenses. The Fair Sentencing Act incorporated all of the key components of my  “Drug Sentencing Reform and Cocaine Kingpin Trafficking Act” and is a watershed moment in the fight for fair and equitable drug sentencing policy.

But since the provisions of the “Fair Sentencing Act” were not retroactive there is still much work left to be done. The federal prison system still houses thousands of inmates sentenced under the old, unfair 100-1 ratio regime.

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