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Copyright 2000 Federal News Service, Inc.  
Federal News Service

May 11, 2000, Thursday


LENGTH: 4414 words


 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 system itself.

We respectfully submit the full report for the record. It is also available over the Internet at

A half 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.

Justice 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 criminals."

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:

One: Build 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.

Two: Improve 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.

Five: Repeal 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 proposed.

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.

Eight: 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 significant improvements.

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 crime.

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.

II. 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 United States.

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.

Mandatory 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.

The 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.

An 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.

The 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 offenders.

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.

Mandatory minimum 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.

While three 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.

The 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 minorities.

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 inconsistency."

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 initially proposed.

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.


The Leadership Conference on Civil Rights would welcome the opportunity to work with this Subcommittee and others in Congress to reform drug sentencing laws and practices. In our view, such criminal justice reforms are a civil rights challenge that can no longer be ignored.


LOAD-DATE: May 12, 2000

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