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Federal News Service
May 11, 2000, Thursday
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PREPARED TESTIMONY OF WADE HENDERSON LEADERSHIP CONFERENCE ON CIVIL RIGHTS
BEFORE THE HOUSE
COMMITTEE SUBCOMMITTEE ON CRIMINAL
SUBJECT - DRUG SENTENCING PRACTICES AND ISSUES
Mr. Chairman and members of the
Subcommittee: I am Wade Henderson, Executive Director of the Leadership
Conference on Civil Rights. I am pleased to appear before you today on behalf of
the Leadership Conference to discuss the civil tights implications of drug
sentencing practices in the United States.
The Leadership Conference on
Civil Rights (LCCR) is the nation's oldest and most diverse coalition of civil
rights organizations. Founded in 1950 by Arnold Aronson, A. Philip Randolph, and
Roy Wilkins, LCCR works in support of policies that further the goal of equality
under law. To that end, we promote the passage of, and monitor the
implementation of, the nation's landmark civil tights laws. Today the LCCR
consists of over 180 organizations representing persons of color, women,
children, organized labor, persons with disabilities, the elderly, gays and
lesbians, and major religious groups. It is a privilege to represent the civil
and human tights community in addressing the Subcommittee today. We commend the
Subcommittee for convening this very timely hearing. Last week the LCCR, in
conjunction with the Leadership Conference Education Fund, released a major new
policy report entitled Justice on Trial: Racial Disparities in the American
Criminal Justice System. The Report examines inequities in the enforcement of
criminal laws, and devotes substantial attention to the issue of today's
hearing, drug sentencing. In my testimony today, I will first provide an
overview of our report. I will then discuss in greater detail the civil rights
implications of drug sentencing laws and practices.
I. Overview of
"Justice on Trial."
There is growing concern about racial disparities in
criminal justice. The new LCCR report, Justice on Trial, is an effort to compile
and comprehensively analyze evidence about disparities in every aspect of the
criminal justice system, from police practices to sentencing laws. Our
conclusion is that the criminal justice system is beset by massive unfairness.
Both the reality and the perception of racial inequities in law enforcement have
disastrous consequences for minority communities and for the criminal justice
We respectfully submit the full report for the record. It
is also available over the Internet at www.civilrights.org.
century has passed since the LCCR was founded. In that time, the nation has made
great strides in combating racial discrimination and other vestiges of
segregation. But in one critical arena - criminal justice - racial inequality is
growing, not receding. Disparities in law enforcement threaten to render
irrelevant fifty years of hard-fought civil tights progress. The Civil Rights
Act of 1964 bans employment discrimination. But today, three out of every ten
African American males born in the United States will serve time in prison,
severely limiting their prospects for legitimate employment. The Voting Rights
Act of 1965 guarantees the franchise. But today, thirty one percent of all black
men in Alabama and Florida are permanently disenfranchised as a result of felony
convictions. Nationally, 1.4 million black men have lost the right to vote under
these laws. The Immigration and Nationality Act of 1965 sought to eliminate
racial discrimination in immigration laws. But today, Hispanic and Asian
Americans are routinely and sometimes explicitly singled out for immigration
enforcement. In 1968 Congress passed the Fair Housing Act. Yet the current
housing for approximately 2 million Americans - two-thirds of them
African-American or Hispanic - is a prison or jail cell.
- Our civil
rights statutes abolished Jim Crow laws and gave minority citizens the right to
travel and use public accommodations freely. But today, racial profiling and
police brutality make such travel hazardous to the dignity and health of law-
abiding black and Hispanic citizens.
Today we have equality in law, but
we do not have equality in law enforcement.
The system by which
lawbreakers are apprehended and punished is one of the pillars of any democracy.
But for that system to remain viable, the public must be confident that at every
stage of the process, individuals in like circumstances are treated alike,
consistent with the Constitution's guarantees of equal treatment under the law.
Today, our criminal justice system strays far from this ideal.
on Trial details how unequal treatment of minorities characterizes every stage
of the process. Black and Hispanic Americans, and other minority groups as well,
are victimized by disproportionate targeting and unfair treatment by police and
other front-line law enforcement officials; by racially skewed charging and plea
bargaining decisions of prosecutors; by discriminatory sentencing practices; and
by the failure of judges, elected officials and other criminal justice policy
makers to redress the inequities that become more glaring every day. Just this
week, California police and city officials agreed to meet with the nation's top
civil rights enforcement officer, acting assistant attorney general Bill Lann
Lee, to begin negotiations about long-sought changes in police training and
procedures in an effort to avert a lawsuit.
Disparities in the criminal
justice system are unjustified. The vast majority of blacks and Hispanics are
law abiding citizens and law enforcement tactics that assume otherwise are
unfair and intolerable. As Representative John Lewis (D-GA) says in the foreword
to Justice on Trial:
"...the unequal treatment of minorities at every
stage of the criminal justice system perpetuates the stereotype that minorities
commit more crimes. This perception helps fuel racial profiling and a vicious
cycle that affects both innocent and minority citizens. The reality is that the
majority of crimes are not committed by minorities and most minorities are not
Our report discusses the consequences of these policies in
detail. Consider the following: In 1995, almost one in three black males aged
20-29 is on any given day under some form of criminal supervision - either in
prison or jail, or on probation or parole. A Hispanic male born in 1991 has a
one in six chance of spending time in prison.
- There are more young
black men under criminal supervision than there are in college, and for every
one black male who graduates from college, 100 black males are arrested.
Justice on Trial includes ten broad recommendations to begin to redress
racial disparities in the Criminal justice system:
Accountability into tile Exercise of Discretion by Police and Prosecutors. Law
enforcement discretion is necessary, but cannot continue to be exercised without
meaningful, independent oversight and national standards.
the Diversity of Law Enforcement Personnel. Much of the hostility between
minority communities and the police can be traced to the under-representation of
minorities in law enforcement. Police departments and prosecutors' offices
should redouble their efforts to recruit minorities. Police departments should
encourage, and perhaps require, that officers live in the cities they patrol.
Three: Improve the Collection of Criminal Justice Data Relevant to
Racial Disparities. As in other areas of American life, we need to be more
conscious of racial issues in criminal justice in order to achieve a color-blind
criminal justice system eventually. The collection of racial data is essential
to identify flaws in current policies and devise the means to redress them.
Four: Suspend Operation of the Death Penalty. The decision of who will
be sentenced to death depends, in significant measure, on the race of the
defendant and the race of the victim. The LCCR opposes capital punishment
altogether. But even death penalty supporters should acknowledge the need for a
nationwide moratorium on application of the death penalty while flaws in death
penalty procedures are studied and remedies are proposed.
Mandatory Minimum Sentencing Laws. As I will discuss later in my testimony,
mandatory minimum sentencing laws are engines of racial injustice. The repeal of
mandatory minimum sentencing laws would be a significant step toward restoring
balance and racial fairness to a criminal justice system that has increasingly
come to view incarceration as an end in itself.
Sir: Reform Sentencing
Guideline Systems. Sentencing guideline systems are often based on and infected
by the racial disparities in current sentencing statutes. So even after
mandatory minimum sentencing laws are repealed, it will be necessary to reform
guideline systems. In particular, few policies have contributed more to minority
cynicism about the war on drugs than the crack/powder cocaine disparity. If
anti-drug efforts are to have any credibility in minority communities, these
penalties must be equalized as the U.S. Sentencing Commission initially
Seven: Reject or Repeal Efforts to Transfer Juveniles into the
Adult Justice System. Laws that shun rehabilitation of youthful offenders in
favor of their transfer into the adult criminal justice system are applied
disproportionately to minority youth, and threaten to create a permanent
underclass of undereducated, untrained, hardened criminals.
Improve the Quality of Indigent Defense Counsel in Criminal Cases. Many of the
racially disparate outcomes in the criminal justice system are attributable to
inadequate lawyering. We recommend a systematic review of indigent defense
services in the United States in order to inject new resources and effect
Nine: Repeal Felony Disenfranchisement Laws
and Other Mandatory Collateral Consequences of Criminal Convictions.
Disenfranchisement laws are antithetical to democracy and disproportionately
affect minorities, eroding the important gains of the civil rights era. These
and other collateral consequences of criminal convictions such as eviction from
public housing and restrictions on student loans should not be mandatorily
imposed. Criminal sentences, including these collateral consequences, should be
tailored to the nature of the crime and the circumstances of the offender.
Ten: Restore Balance to the National Drug Control Strategy. Even if
criminal justice procedures were reformed, we would be left with a national drug
control strategy that seeks to combat drug abuse by locking up addicts. The
current strategy inspires racial disparities and is ineffective in reducing the
availability of drugs. The United States needs a more balanced drug strategy,
one that adequately supports treatment, prevention, education, research and
other efforts to reduce the demand for drugs in order to reduce drug-related
Drug treatment and education are actually more effective weapons
against drug abuse than mindless incarceration. The Rand Corporation has
estimated that investing an additional $
1 million in drug
treatment programs would reduce fifteen times more serious crime than enacting
more mandatory sentences for drug offenders.
Nowhere in these
recommendations does the LCCR propose less public safety or ineffective law
enforcement. The issue is not whether to be tough on crime, but whether to be
fair and smart in the course of being tough on crime. There is no contradiction
between effective law enforcement and the promotion of civil rights.
Drug Sentencing Laws and Practices Sentencing, the topic of today's hearing, is
arguably the most important stage of the criminal justice system. While policing
strategies help determine who will be subjected to the criminal process, and
prosecutorial choices help determine who will be granted leniency from the full
force of the law, sentencing is where those earlier decisions bear fruit.
No one who has ever visited a prison and seen human beings locked in
cages like animals can ever be unmindful of the enormity of society's decision
to deprive one of its members of his or her liberty. The decision to sentence a
convicted criminal to prison has, until recently, been viewed as a profound
responsibility, one entrusted solely to impartial judges. Increasingly, however,
sentencing has become mundane and mechanistic, a decision effectively controlled
by legislators, prosecutors, and sentencing commissioners. This change in the
culture of sentencing has had disastrous consequences for minorities in the
In particular, the mandatory sentencing laws enacted by
Congress and many state legislatures in the mid-1980's have led to racial
injustice. These laws establish a minimum penalty that the judge must impose if
the defendant is convicted of particular provisions of the criminal code, and
deprive judges of their traditional discretion to tailor a sentence based on the
culpability of the defendant and the seriousness of the crime.
minimum sentencing laws are not truly mandatory because they provide
opportunities for prosecutors to grant exceptions to them. Prosecutors can
choose to charge particular defendants with offenses that do not carry mandatory
penalties or they can agree to a plea agreement in which the charges carrying
mandatory penalties will be dismissed. And under federal law, only the
prosecutor may grant a departure from mandatory penalties by certifying that the
defendant has provided "substantial assistance" to law enforcement.
Mandatory minimums therefore embody a dangerous combination. They
provide the government with unreviewable discretion to target particular
defendants or classes of defendants for harsh punishment. But they provide no
opportunity for judges to exercise discretion on behalf of defendants in order
to check prosecutorial discretion. In effect, they transfer the sentencing
decision from impartial judges to adversarial prosecutors, many of whom lack the
experience that comes from years on the bench.
I should note that some
civil rights supporters originally supported mandatory sentencing as an antidote
to racial disparities in sentencing. But the evidence is clear that minorities
fare worse under mandatory sentencing laws than they did under a system of
judicial discretion. By depriving judges of the ultimate authority to impose
fair sentences, mandatory sentencing laws put sentencing on auto- pilot.
Discretionary decisions of law enforcement agents and prosecutors engaged in
what Justice Cardozo called "the competitive enterprise of ferreting out crime"
are more likely to disadvantage minorities than judicial discretion.
effect of current sentencing policies, including mandatory minimum sentencing
laws, has been dramatic. In 1972, the populations of federal and state prisons
combined were approximately 200,000. By 1997 the prison population had increased
500 percent to 1.2 million.Similar developments at the local level led to an
increase in the jail population from 130,000 to 567,000. America now houses some
2 million people in its federal and state prisons and local jails.
increasingly large percentage of those incarcerated are charged with or
convicted of non-violent drug crimes. Between 1980 and 1995, the number of state
prison inmates serving time for drug crimes increased more than 1000 percent.
Whereas only one out of every 16 state inmates was a drug offender in
1980, one out of every four in 1995 was a drug offender. By the middle of the
1990's, 60 percent of federal prison inmates had been convicted of a drug
offense, as opposed to 25 percent in 1980. There are now some 400,000 federal
and state inmates almost a quarter of the overall inmate population -- serving
time or awaiting trial for drug offenses. Drug offenders accounted for more than
80 percent of the total growth in the federal inmate population - and 50 percent
of the growth of the state prison population - from 1985 to 1995.
President's fiscal year 2001 budget calls for the construction of 17 new federal
prisons. Even after these facilities are built, the prisons population is
projected to exceed capacity by more than 30%.
These statistics describe
a national strategy to address the public health problem of drug abuse with
massive incarceration of those who use and sell drugs. A drug control strategy
that depends so heavily on prison building is unwise and ineffective for many
reasons, most beyond the scope of this testimony. But one of the chief failings
of undue reliance on imprisonment is that this approach results in serious
racial disparities. Incarceration rates for minorities are far out of proportion
to their percentage of the U.S. population.
Racial disparities can be
found in the fact of incarceration and in the length of prison time served.
According to a Justice Department review of state sentencing, whites who serve
time for felony drug offenses serve shorter prison terms than their black
counterparts: An average of 27 months for whites, and 46 months for blacks.
These discrepancies are mirrored with regard to non-drug crimes. Whites serve a
mean sentence of 79 months for violent felony offenses; blacks serve a mean
prison sentence of 107 months for these offenses. Whites serve a mean sentence
of 23 months for felony weapons offenses, blacks serve a mean sentence of 36
months for these offenses. Overall, whites serving state prison sentences for
felony conduct nationwide in 1994 served a mean time of 40 months, as compared
to 58 months for blacks.
As the overall prison population has increased
because of the war on drugs, so too has the percentage of minority Americans as
a proportion of the overall prison population. From 1970 to 1984, whites
comprised about 60 percent of those admitted to state and federal facilities,
and blacks around 40 percent. By 1991, these ratios had reversed, with blacks
comprising 54 of prison admissions versus 42 percent for whites. Other minority
groups have also been affected by this trend: Hispanics represent the fastest
growing category of prisoners, having grown 219 percent between 1985-1995. The
percentage of Asian-Americans in prison has also grown; their percentage of the
federal prison population increased by a factor of four from 1980 to 1999.
The changing face of the U.S. prison population is due in large measure
to the war on drugs: Between 1985 and 1995, while the number of white drug
offenders in state prisons increased by 300 percent, the number of similarly
situated black drug offenders increased by 700 percent, such that there are more
than 50 percent more black drug offenders in the state system than white drug
The fact that minorities are disproportionately disadvantaged
by drug sentencing policies is not because minorities commit more drug crimes,
or use drugs at a higher rate, than whites. According to federal health
statistics, drug use rates per capita among minority and white Americans are
similar. Given the Nation's demographics, this means that many more whites use
drugs than do minorities. Moreover, studies suggest that drug users tend to
purchase their drugs from sellers of their own race.
But while blacks
constitute approximately 12 percent of the population, they constitute 38
percent of all drug arrestees. Indeed, by 1989, with the war on drugs in full
force and overall drug arrests having tripled since 1980, blacks were being
arrested for drug crimes at a rate of 1600 per 100,000, while whites were being
arrested at one-fifth the frequency per capita -- 300 per 100,000. The
statistics in certain United States cities were even more eye-catching: In
Columbus, Ohio, black males accounted to 11 percent of the total population, and
for 90 percent of the drug arrests. In Jacksonville, Florida, black males
comprise 12 percent of the population, but 87 percent of drug arrests.
Why are minorities the primary targets of the war on drugs? Much of this
discrepancy can be traced to practices such as racial profiling. The assumption
that minorities are more likely to commit drug crimes and that most minorities
commit such crimes prompts a disproportionate number minority arrests. Drug
arrests are easier to accomplish in impoverished inner-city neighborhoods than
in stable middle-class neighborhoods. Whites are committing drug crimes too, but
police enforcement strategies do not focus on white neighborhoods.
Blacks are not only targeted for drug arrests. They are also 59 percent
of those convicted of drug offenses and, because they are less likely to strike
a favorable plea bargain with a prosecutor, 74 percent of those sentenced to
prison for a drug offense. Thus, blacks are disproportionately subject to the
drug sentencing regimes adopted by Congress and state legislatures. And these
sentencing regimes, across all levels of government, increasingly provide for
more and longer prison sentences for drug offenders.
sentencing laws result in the extended incarceration of non-violent offenders
who, in many cases, are merely drug addicts or low-level functionaries in the
drug trade. Indeed, in the first two years after enactment of California's
"three strikes, you're out" law, more life sentences had been imposed under that
law for marijuana users than for murderers, rapists, and kidnappers combined. An
Urban Institute study examining 150,000 drug offenders incarcerated in state
prisons in 1991 determined that 127,000 of these individuals - 84 percent - had
no history of violent criminal activity, and half of the individuals had no
criminal record at all.
In the federal system, 62 percent of those
sentenced to prison under mandatory minimum drug sentences laws were considered
"low-risk," based on a lack of prior criminal histories. Yet these low-risk
traffickers were expected to serve an average of 51 months in prison, as
compared to 17 months for similarly situated federal prisoners who had been
sentenced prior to the enactment of mandatory minimums.
strikes laws and mandatory minimums limit judicial discretion to reduce prison
sentences, they do not reduce prosecutorial discretion over charging and plea
negotiations - decisions which determine whether strict sentencing laws apply.
For example, Georgia District Attorneys sought life sentences for 16 percent of
black criminal defendants eligible for such sentences under the State's "two
strikes, you're out law." By contrast, Georgia prosecutors sought a life
sentence in only one percent of the eligible cases involving white defendants.
The result was that 98.4 percent of those serving life terms under the Georgia
statute were black. Similarly, as of 1996, blacks made up 43 percent of
Californians sentenced to prison under the State's "three strikes you're out"
law, despite comprising only seven percent of the total State population.
Much of the racial discrepancy at the federal level is the result of
differences in the sentencing of offenses involving crack and powder cocaine.
These disparities, enacted into law as part of the Anti-Drug Abuse Act of 1986,
arise from the different thresholds for the imposition of mandatory minimum
prison sentences for crack and powder cocaine dealers. In short, federal law
imposes mandatory 5-year federal prison sentences on anyone convicted of selling
5 grams or more of crack cocaine, and 10-year mandatory sentences for selling 50
grams or more of crack. But in order to receive the same mandatory 5- and
10-year sentences for selling powder cocaine, a defendant must be convicted of
selling 500 and 5000 grams of powder cocaine.
Studies have shown that
blacks and whites convicted of federal powder cocaine offenses go to jail for
approximately the same length of time; so too do blacks and whites convicted of
crack cocaine offenses. The problem is that few whites are prosecuted for crack
offenses in federal court, and are instead prosecuted in state systems that may
not impose mandatory minimum penalties for crack offenses. Indeed, in 1993, 95.4
percent of those convicted for federal crack distribution offenses were black or
Hispanic. By contrast, almost one third (32 percent) of those convicted of
federal powder cocaine distribution offenses in 1993 were white.
crack/powder sentencing disparity, combined with the almost- exclusive federal
targeting of blacks and Hispanics for crack-related crimes, means that
minorities in general serve longer sentences for similar drug crimes than do
whites. Combined with the far greater drug arrest rates for blacks than whites,
and the general reliance on mandatory minimums for drug crimes, these longer
sentences ensure that federal prisons house a disproportionately large number of
In 1995, the U.S. Sentencing Commission recommended to
Congress that the drug statutes and sentencing guidelines be altered to
eliminate the differences in crack and cocaine sentencing thresholds, noting
both the inequality inherent in these differences and the cynicism they
engendered toward America's criminal justice system. After Congress blocked
those changes, the Commission revisited the issue and has recommended a
reduction, not an elimination, in the current 100- to-1 disparity, noting again
that "It)he current penalty structure results in a perception of unfairness and
To date, Congress has not adopted any of the
Commission's recommendations on this subject. The result is perpetuation of a
sentencing structure that every observer believes is irrational, and that many
minorities view as racist. Few policies have contributed more to minority
cynicism about the war on drugs than the crack/powder cocaine disparity. If
anti-drug efforts are to have any credibility, especially in minority
communities, these penalties must be equalized as the U.S. Sentencing Commission
Although sometimes conceived as a means to combat
unwarranted racial disparity in sentencing, mandatory minimum sentencing laws
are, in fact, engines of racial injustice. They have filled America's prisons to
the rafters with thousands of non-violent minority offenders. The repeal of
these laws would be a significant step toward restoring balance and racial
fairness to a criminal justice system that has increasingly come to view
incarceration as an end in itself.
Conference on Civil Rights would welcome the opportunity to work with this
Subcommittee and others in Congress to reform
laws and practices. In our view, such criminal justice reforms
are a civil rights challenge that can no longer be ignored.
May 12, 2000