The 100-1 sentencing disparity between crack and powder cocaine finally ended last month, but anger over a law that ruined the lives of thousands of young African Americans lingers on. For many, the reform came too late.
Many Americans' lives are destroyed by narcotics. But for Lawrence and Lamont Garrison, it was a controversial federal drug law that abruptly cut short their future.
The twin brothers were promising students at Howard University in Washington DC when, in October 1998, they joined the thousands of young black men who were condemned to long stretches in prison during the 1980s and 1990s for crack possession and/or alleged distribution. They had been sentenced under a 1986 law that established harshly different penalties for offenses involving crack cocaine and powdered cocaine.
Both claim they were unjustly imprisoned. According to Lawrence, who was released from prison last year after having his 15-year sentence reduced by three years, they were the victims of a plea deal arranged by the owner of a local body shop where they had taken their car for repairs. The shop owner succeeded in getting his own sentence for crack dealing reduced in exchange for fingering the brothers–falsely, they argue–as fellow members of a crack-selling ring. Even though there was no other evidence against them produced in court, the twins, both 25, were each convicted of multiple counts of dealing cocaine, including a charge of conspiracy to sell 500 grams of crack cocaine–enough to ensure that a 10-year mandatory minimum federal prison sentence was the least amount of time they could serve. Lamont Garrison, who was sentenced to 19 years, will remain in federal prison until at least early next year.
Guilt or innocence aside, what is indisputable about the case is that it inflicted a draconian punishment on two young people who, but for the substance they were accused of selling, might have gotten a very different outcome. The twins were, at the time, ambitious work-study students at Howard. (Lawrence, who hoped to pursue a career in law, worked for the Department of Justice as part of the federal work-study program.) Had they only been charged with selling 500 grams of powdered cocaine, their sentences would have been reduced by at least half.
That so-called 100-to-one sentencing disparity, long at the heart of one of the bitterest and longest-running debates about inequities in the U.S. justice system, was finally addressed last month when President Barack Obama finally signed into law the Fair Sentencing Act of 2010, which has reduced the inequity in favor of a more measured approach to crack crime sentencing.
While the new act has returned some element of fairness to an issue that had been clouded by the rush to punishment fueled by the “law and order” anxieties of the 1980s, the injustice arguably continues.
While Lawrence is pleased that lawmakers have made the crack and powder sentences more equitable, he notes sadly that the sentence reduction is not retroactive, and has therefore left incarcerated many victims of the sentencing policies that unjustly trapped low-level users along with, he says, innocents like himself and his brother.
“It shows that there is still a line that [lawmakers] don’t want to cross,” Garrison told The Crime Report in a recent interview. “Why is crack different? (It's) like separating water and ice. And you can ask, why?”
A lot of people are asking the same question.
The Politics of Fear
For nearly two decades, sentencing policies on crack owed more to the politics of fear than science.
“When crack cocaine first appeared on the scene, there was near-panic in the halls of Congress,” Illinois Democratic Sen. Richard Durbin said at a July press conference introducing the new bill. “It scared us to death and we overreacted.”
Although scientists have repeatedly declared there is no chemical difference between crack and powdered cocaine, the 1986 federal Anti-Drug Abuse Act enshrined starkly different penalties for possession and sale of the two versions of the drug. The immediate trigger had been the death that summer of University of Maryland star basketball player (and Boston Celtics draftee) Len Bias from a crack cocaine overdose. But it fed into existing perceptions that crack cocaine was uniquely responsible for a wave of violence on the streets of American cities. The drug was seen as devastatingly addictive and tightly linked to organized crime.
Under the 1986 law, possession of just five grams of crack was enough, for instance, to trigger a five-year mandatory minimum prison sentence; but you would have to “possess with intent to distribute” 500 grams of powdered cocaine to net the same mandatory sentence. Similarly, if you were found guilty of selling 50 grams of crack, you faced a 10-year mandatory minimum sentence; while it would take being charged with selling 5,000 grams of powdered cocaine to net the same sentence.
Or so it was until August 3, when the President signed the new law, after countless hours of congressional testimony by criminal justice professionals (including police and prosecutors), advocates such as Families Against Mandatory Minimums (FAMM), and members of the United States Sentencing Commission, as well as accounts of cases like the Garrisons'–all of whom argued the 1986 approach was either ineffective or unjust, or both.
The new law hasn’t eliminated the disparity altogether, and the failure to make the change in law retroactive means that thousands of people remain incarcerated under long sentences for what were, in many cases, drug offenses that would have been treated as minor if they had used a different version of the same drug. .
“This is a very compelling class of people,” says Mary Price, general counsel for FAMM. “It's like saying 'we’ve learned lessons from you, but we’re leaving you behind.' We’ll now have people sentenced to less time for more quantity.”
The law was supposedly targeted at drug kingpins and traffickers. By establishing mandatory long sentences to “the traffickers who keep the street markets operating and the heads of drug trafficking organizations, responsible for delivering very large quantities of drugs,” according to 2009 testimony to Congress by Assistant Attorney General Lanny Breuer, legislators believed they could tackle the root of the problem.
But by that measure the law was a failure, According to a 2007 report by the U.S. Sentencing Commission (USSC), an arm of the federal judiciary, the majority of individuals (55.4 percent) sentenced in fiscal year 2005 for crack crimes were street-level dealers. Just 1.8 percent were “high-level suppliers.”
Moreover, the USSC consistently found that the law disproportionately impacted minority populations, and especially blacks. Texas Federal Judge Ricardo Hinojosa, then the acting chair of the USSC, told Congress that in fiscal year 2008, more than 80 percent of defendants sentenced to do federal time on crack charges were African American.
The growing opposition to the law received a boost from law enforcement, which argued that the disparities complicated their efforts to fight the drug trade. The effects of the sentencing scheme,
John Timoney, then Miami police chief and president of the Police Executive Research Forum, told Congress in 2009, were no less than an “unmitigated disaster.”
Still, attempting to fix the problem only entangled the issue further. Competing bills filed over the last decade sought to address the disparity in different ways. Some lawmakers (including Barack Obama) preferred creating parity by raising possession limits of crack to equal those already codified for powdered cocaine crimes. Others sought to strike a different kind of balance.
The bill that finally became law this summer eliminated the 100-to-one disparity in favor of an 18-to-one disparity. Under the new law, it takes the sale of 28 grams of crack to net a five-year mandatory minimum sentence, while it still takes selling 500 grams of powdered cocaine to net the same.
That wasn’t exactly what Sen. Durbin, the bill’s primary author, wanted. He was in favor of true parity. But the compromise was a way to maintain bipartisan support for passage, he said in a July presss conference, by striking a balance that would win support of legislators, as well as prosecutors and narcotics officers, who opposed parity.
Chief among the skeptics is Alabama Republican Sen. Jeff Sessions. A co-author of the bill, Sessions concedes that Congress “did over-react” in passing the 1986 law, but he continues to argue that crack is different from powder cocaine and requires a different sentencing scheme.
“I think this is a serious drug problem that does tend to breed violence and addiction in very short order,” he said during the same press conference.
Durbin responded that in the end compromise was the only way to change a policy that “wreaks…disrespect on the…process” of the criminal justice system. The bill, he said, wasn't “perfect…but it marks significant progress.”
Indeed, among the other major provisions of the law is the repeal of a five-year mandatory minimum for mere possession of crack. It was the first time in some three decades that Congress eliminated a mandatory minimum sentence.
'Do the Right Thing'
But there is still work to be done, says FAMM’s Price. Importantly, the law needs to be made retroactive. “We’re asking Congress and the Sentencing Commission to do the right thing,” she said.
During the July press conference, the assembled lawmakers appeared hesitant about pushing the retroactivity issue. Durbin and Sessions seemed inclined to see first if the USSC could right the problem when it incorporates the new law into the federal sentencing guidelines.
In passing the Fair Sentencing Act the Congress gave the USSC emergency power to make a temporary amendment to federal sentencing guidelines to bring them into line with the new 18-to-one sentencing scheme. The Commission could also vote to make the adjustment retroactive, which would give those already incarcerated a way to get back into court to have their sentences reconsidered.
While the USSC only has the power to authorize the reconsideration of sentences above and below the drug quantity levels that trigger a mandatory minimum sentence, the ability to provide already incarcerated individuals the chance to petition the court for a sentence reduction is considerable.
That's the reason that Lawrence Garrison has now been out of prison for more than a year.
When the USSC last made a moderate crack-sentencing change retroactive in 2007, Lawrence applied. He was granted a 36-month reduction in his sentence, though he was previously not eligible for release until February 2012. Lamont was also given a considerable reduction, 46 months, and may come home as early as next year. Lamont was originally sentenced to 46 more months than his twin, says Lawrence, because Lamont chose to testify on his own behalf at the brothers’ trial. When he was ultimately found guilty, the court tacked on the additional time for “obstruction of justice,” because he testified that he was innocent, Lawrence claimed.
After the USSC voted to make its sentencing adjustments retroactive in 2007 more than 24,000 people applied to have their sentences reduced. Nearly 66 percent succeeded in getting their sentences lowered, according to FAMM.
Nonetheless, it would still take an act of Congress to make the re-setting of the mandatory minimum triggers retroactive. That is something FAMM is pushing for; but whether that will happen remains to be seen.
“We’ve started talking to members [of Congress] about it,” said Price. “My sense is that people think it’s a heavy lift, but so was [changing] crack [sentencing]. So that’s not a reason not to do it.”
Since getting out of prison, Lawrence Garrison has hit the ground running. He’s obtained his real estate license and is working with cars, buying at auctions for a wholesaler. Thoughts of a law career have long since been abandoned.
As he waits for his brother to come home, the anger still lingers. But his bitterness is mixed with relief that his long ordeal behind bars is finally over. “I know,” he says, “that any day that I wake up not in prison is a good day.”
Jordan Smith, a winner of this year’s John Jay/Guggenheim Award for Excellence in Criminal Justice Journalism, is an investigative reporter for the Austin Chronicle. Also this year, she was named winner of the Molly Ivins Give ‘Em Hell Award given by the Texas Civil Rights Project.