A Guest Post on the Racism in Our Drug Laws, the Few Efforts to Ameliorate It, and a Hint at Future Litigation.

December 6, 2016
By Hanging Out with Carl Gunn

Today we have a guest post from former Central District of California DFPD Myra Sun:


Now that we know our president-elect’s choice for Attorney General, where we’ve been and where we’re going with federal criminal prosecutions — drugs and beyond — is worth thinking about a little.

In 1987, Congress enacted mandatory minimum sentencing statutes carrying a 100-to-1 disparity in sentences for people convicted of crack cocaine crimes, as opposed to powder cocaine crimes.  Dealing 50 grams of crack cocaine, or less than the weight of the crumbs you’d get if you crushed a two-ounce snack pack of potato chips, led to a mandatory minimum 10-year sentence.  But dealing powder cocaine wouldn’t lead to the same sentence unless the amount was at least 5,000 grams, or about 11 pounds, which is, well, more than 10 pounds of actual potatoes.  The sentencing guidelines reflected these mandatory minimum penalties, rather than tracking past sentences, as many of the original sentencing guidelines did.

As was recognized even then, these statutory schemes represented Congress losing its collective head, in a particular way that — as implemented — harmed specific groups of people disproportionately.  Much has been said and written about this.  No doubt someone else has already described a memory similar to my own:  through the early 1990s, the rows of young, shackled African American men, sitting in rows on Monday morning at the then-weekly post-indictment arraignment calendar.  I’m not a particularly dogmatic person.  But viscerally the picture in my mind was bad:  what does this remind you of?  I sometimes thought.  Does this feel like the past repeating itself?

When I first started as a deputy federal defender, “P.I.A.” was held in the relatively smaller courtroom of whichever magistrate was handling the calendar that week.  But eventually they built a bigger courtroom just for arraignments, closer to the Marshal’s lockup in the Spring Street courthouse.

It was easy in those days to fret, as I sometimes did, that maybe by being a federal defender I was abetting something that shouldn’t be abetted.  On the other hand, I had a colleague, Barbara O’Connor, who litigated the case that became United States v. Armstrong, 517 U.S. 456 (1996), a sort of frustrated, failed punch-back effort seeking discovery in support of a selective prosecution motion.  We did a similar sort of thing when we first were swamped with illegal reentry cases, with similar results.  See United States v. Gomez-Lopez, 62 F.3d 304 (9th Cir. 1995) (denying a request for circuit-wide discovery); United States v. Candia-Veleta, 401 F.3d 243 (9th Cir. 1996) (denying a request for nationwide discovery).

And so crack-cocaine prosecution numbers swelled, as they did around the country, undeterred by a 1995 Sentencing Commission report that said Hmm, maybe this was a mistakeSee Cocaine and Federal Sentencing Policy (February 1995),  http://www.ussc.gov/research/congressional-reports/1995-report-congress-cocaine-and-federal-sentencing-policy.  From 1992 to 2000, the absolute numbers of crack cocaine cases sentenced more than doubled, from a little over 2,200 to 4,805 people, and over 90% of them were African-American.  The absolute numbers of people sentenced for powder cocaine offenses dropped slightly in the same period, from a little over 6,500 people to a little over 5,200, with 27% to 30% (the percentage rose a little) being African-American.  United States Sentencing Commission, Cocaine and Federal Sentencing Policy (2002), Table 3 at 63, http://www.ussc.gov/research/ congressional-reports/2002-report-congress-federal-cocaine-sentencing-policy.

The 2002 report was an important Whoa, that was really wrong moment.  The Commission found that crack cocaine was not a more dangerous drug than powder cocaine, either medically or in the nature of collateral crime it engendered; that the effect of the prosecutions was lengthy sentences for low-level dealers when the federal focus was supposed to be on high-volume traffickers; and that, as noted above, African-Americans were disproportionately targeted in the prosecution of crack cocaine cases.  Now-familiar correctives followed:

• In 2007, the Commission reduced the crack cocaine guidelines by two levels in response to this data.  United States Sentencing Commission, U.S.S.G. 2D1.1(c)(1), Am. 706 (eff. Nov. 1, 2007).

• A month later, in Kimbrough v. United States, 552 U.S. 85 (2007), the Supreme Court noted the amendment, ultimately agreed that the crack-powder disparity made no real sense, and held that district courts could take this irrationality in the sentencing guidelines into account in sentencing.

• In 2010 the Fair Sentencing Act reduced the disparity between crack cocaine and powder cocaine offenses — the ratio now stands at 18-to-1.  Fair Sentencing Act, P.L. 111-220, 124 Stat. 2372.

• In August 2013, this was followed by a Department of Justice refinement to the prosecutorial criteria for charging mandatory minimum drug amounts and recidivist penalties, discouraging the use of these enhancements for non-violent, low-level drug clients.  See https://www.justice.gov/sites/ default/files/oip/legacy/2014/07/23/ag-memo-department-policypon-charging-mandatory-minimum-sentences-recidivist-enhancements-in-certain-drugcases.pdf.  (See also a prior post, “Is There Some Real Change Going to Happen Out There?,” in the January 2014 link at the right.)

• In 2014, the Sentencing Commission amended the advisory drug guidelines again, reducing, by two, the base offense levels for many drugs. United States Sentencing Commission, Supplement to Appendix C ( Nov. 1, 2016), Am. 782 at 63-70.  Partly, this was because the previously-set offense levels led to slightly higher sentences than the corresponding mandatory minimum sentences, which often sat just below the low end.  The new offense levels incorporated the mandatory minimums, instead of being higher.  But there was another reason, too:  “The amendment was also motived [sic] by the significant overcapacity and costs of the Federal Bureau of Prisons” — prison costs were “crowding out” spending on aid to local law enforcement, crime victim, and crime prevention programs.  United States Sentencing Commission, Supplement to Appendix C, Am. 782, (Nov. 1, 2016) at 72-73.

Also in 2014, the Justice Department invited sentencing-commutation petitions from prisoners who were sentenced before all of the above changes were implemented.  The National Association of Criminal Defense Lawyers coordinated volunteer attorneys to represent some of these clients through Clemency Project 2014.  I’ve represented three clients who have gotten their sentences commuted, and I’ve helped screen many others entering the process.

Preparing these petitions involved a straightforward inquiry:  for a person who has served at least ten years of a federal criminal sentence, how much lower would that sentence be if imposed today, in view of the above-described changes in sentencing laws, guidelines, or policies?  Most of the applicants have been serving drug sentences, and are able to answer that question by citing the more equitable crack-powder ratio, the narrower mandatory minimum or recidivist enhancement charging criteria, and the revised guidelines.  We all know that 15- or 20-year sentences weren’t necessary to improve their characters, or make society safer, or deter other people from getting into drug dealing, or any of that.  Clemency petitions were a way to recognize that.

Doing this work was gratifying in the same way as a few cases I had at the tail end of my years as a federal defender, since I did that work long enough to hear from my own clients who got out, without the benefit of clemency, after serving these crazy-long sentences.  Sometimes a client would call, having put his life on track, wanting to know if there was something I could do about his supervised release term, because it was keeping him from moving on.  My clients felt great relief, and I took great pleasure, in those few cases when I could go back to the court and ask, as I have done in the clemency cases, Hey, how about you cut this guy loose now?

I know the clemency work has been “micro,” while what Barbara did with Armstrong was more “macro.”  It seems to me that the opportunities for “macro” approaches are greater now.  She litigated that motion in a non-Internet world.  I’ve heard it said that there’s so much more information out there now.  I don’t know if that’s necessarily true about facts — sometimes it’s just the same facts, repeated — but it is true that we hear from our leaders-to-be in many more ways, uncut and unfiltered; that’s the way we like it.  Is that information from which we can infer the government’s intent in pursuing any given prosecutorial initiative?  What more detailed support could be made for a selective prosecution motion today in response to renewed, or even more draconian, prosecutions in any given category?

I look forward to seeing what, if anything, happens.