The Harm of ‘Get Tough’ Policies
The Supreme Court's ruling on federal cocaine sentences could be a turning point—toward justice and righting an old wrong.
For two decades, the United States has pursued, prosecuted and sentenced cocaine offenders in a way that borders on insanity--targeting petty criminals over serious drug dealers--while fostering contempt, instead of respect, for the policies that have sent tens of thousands to jail. On Monday, the Supreme Court said enough was enough and empowered federal judges to reject sentencing guidelines rooted in hysteria and ignorance. The move has considerable support on the federal bench. It allows judges "who actually see the people and understand the local community," to better consider their communities' best interests, said Jack B. Weinstein, a federal district judge in New York.
The significance of the issue--and the enormity of the shift in expert opinion--was underscored a day later. The U.S. Sentencing Commission took the unprecedented step of announcing, unanimously, that nearly 20,000 federal inmates convicted of crack possession could apply for (relatively small) reductions in sentences. "In this business, you don't get too many good days … Now, two in a row," said Marc Mauer of the Sentencing Project, a Washington-based organization that tracks criminal-justice trends.
The court's two 7-2 decisions--authored by Ruth Bader Ginsburg and John Paul Stevens, respectively--contained no rousing rhetoric; they methodically built on the logic of two prior opinions. But Ginsburg's ruling catalogued, at length, criticisms of federal cocaine policy. "This may be the first sentencing decision since the mid 1980s that actually talks about justice, that seems to have some blood in it," said Graham Boyd, director of the ACLU's drug law reform project. Boyd compared the potential impact of Ginsburg's decision to the famous Brown v. Board of Education desegregation ruling. "When the Supreme Court says that something is wrong, the other institutions of government pay attention," said Boyd.
Ginsburg's carefully worded decision did not exactly say the Feds were wrong, but it explicitly gave federal judges permission to reach that conclusion on their own. The case revolved around a former Marine who had fought in Desert Storm and had no prior convictions and a good work record. Police found Derrick Kimbrough and a companion in a car with crack, powder cocaine and a gun. Kimbrough's guilty plea to four felonies should have sent him to prison for at least 19 years. The trial judge noted that had Kimbrough possessed powder cocaine in the same quantity as the combination of powder and crack, his potential prison time would have been more than halved. Judge Raymond Jackson split the difference, sentencing Kimbrough to 15 years. The appeals court said he was out of line; the Supreme Court ruled he was not.
On its face, the debate was over how much deference had to be paid to the guidelines; but it was also over whether those guidelines made sense. For embodied in them was the notion that a defendant caught with 50 grams of crack should face the same penalty as one with 5,000 grams of powder cocaine. Yet, crack is nothing more than powder cocaine and baking soda dissolved in water that is boiled away. And, as Ginsburg pointed out, they "have the same physiological and psychotropic effects." So why is possession treated so differently?
The answer lies in the Anti-Drug Abuse Act of 1986. In crafting the law, Congress concluded that someone dealing a small quantity of crack was the functional equivalent of someone dealing a large quantity of powder. Why conclude such a strange thing? Eric Sterling, then assistant counsel to the House Committee on the Judiciary, fingers an "expert consultant" named Jehru St. Valentine Brown. A narcotics detective when not advising Congress, Brown convinced legislators that "a trafficker in 20 grams of crack cocaine was trafficking at the same 'serious' level … as a trafficker in 1,000 grams of powder cocaine," said Sterling. Given such expert advice, it made sense to treat the drugs very differently--all the more so given the widespread conviction that crack was a superaddictive drug, spawning crack babies and rampant violence on a scale society had never before encountered. Fear took the place of science, leading the sentencing commission to adopt and build upon the 100-to-1 scheme embodied in the statute.
The result has been a tragic playing out of the law of unintended consequences. Instead of focusing on dangerous drug kingpins, federal efforts have been mostly directed at people possessing relatively small amounts of crack. Only 7 percent of federal cocaine cases are directed at high-level traffickers, with a third of all cases involving quantities that weigh less than a small candy bar, says Sterling, who now runs the Criminal Justice Policy Foundation: "Street-level crack dealers are actually punished 300 times more severely than high-level cocaine powder traffickers on a punishment-per-gram basis." To add to the mess, drug policy has become highly racialized. As Ginsberg noted, approximately 85 percent of those convicted of crack offenses in federal court are black--even though more whites use crack than blacks. The numbers, says Sterling, reflect "conventions of law enforcement" and a predisposition toward "prosecuting a class of lowlifes who happen to be people of color."
Whether this is indeed a watershed moment is yet to be seen. Even the Supreme Court's influence is limited. In the end, "all the courts do is interpret the law," said Deborah Small of Break the Chains, a New York nonprofit promoting drug-policy reform. But Judge Weinstein is among those who believe things are changing. "There is a sense of a turning point," he told NEWSWEEK. "And partly it's due to economics. The cost [of the current path] is tremendous, to the community and to taxpayers."
For more than a decade, the sentencing commission has been urging Congress to rethink the law and its crack-powder ratio to no avail. This year, the commission took matters in its own hands and slightly reduced the sentencing disparity. And it again appealed to Congress to change the underlying law. The message is simple: it's not just that the "get tough" policies of the 1980s don't work; they actually do harm--by, among other things, undermining faith in the fairness and efficacy of the justice system itself. The Supreme Court finally has noticed that. It's time that Congress did the same.
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Ellis Cose, author, columnist and contributing editor (since 1993) for Newsweek magazine and former chairman of the editorial board and editorial page editor of the New York Daily News, began his journalism career as a weekly columnist for the Chicago Sun-Times—becoming, at the age of 19, the youngest editorial page columnist ever employed by a major Chicago daily. Cose, who is also an independent radio producer, is a popular campus lecturer and public speaker.
In addition to serving as a columnist, editor and national correspondent for the Chicago Sun-Times, Cose has been a contributor and press critic for Time magazine, president and chief executive officer of the Institute for Journalism Education, chief writer on management and workplace issues for USA Today (where he has also served as an occasional columnist and member of the board of contributors) and a member of the editorial board of the Detroit Free Press. He has also been a fellow at the Gannett Center for Media Studies at Columbia University, at the National Research Council/National Academy of Sciences, a senior fellow and director of energy policy studies at the Washington-based Joint Center for Political Studies, and a consultant to the Ford and Rockefeller Foundations.
Cose's Bone to Pick: On Forgiveness, Reconciliation, Reparation and Revenge, was published by Atria (a Simon and Schuster imprint) in April 2004. The book is a wide-ranging look at a number of societies—the United States, Ghana, South Africa, East Timor, and Peru among them—and their ways of coping with cruelty and pain. The Washington Post had this to say: "The complex questions surrounding 'forgiveness, reconciliation, reparation, and revenge' probably require a scholarship of jurisprudence, philosophy, psychology, history and literature. This is the kind of ambitious enterprise that the world's great religions deal with. But Cose meets the challenge, and Bone to Pick ranges over centuries of contested histories, across five continents, spinning individual tragedies in and out of collective traumas, seeking the nature of 'forgiveness, albeit as a proxy for a larger set of values.' … The truth may be a prized (and politicized) commodity in the quest for social justice, but as Cose observes, quoting Czech novelist Milan Kundera, 'The struggle of man against power is the struggle of memory against forgetting.' Bone to Pick is a timely reminder of that axiom and a useful addition to the canon of that struggle."
Cose's The Envy of the World, an in-depth essay on the state of black men in America, was published by Washington Square Press (an imprint of Simon and Schuster) in 2002 and has appeared on several best-seller lists, including the Essence magazine list, where it was number one. Newsweek featured the book on its cover and National Public Radio produced a special a program based on it. Kirkus Reviews called The Envy of the World, "A slender volume with a substantial and significant message." The Washington Post described it as "lucid, eloquent and deeply personal book." The Chicago Tribune called its author "a gifted, rhapsodic essayist." "Cose charts both an urgently argued history of black masculinity and a moving and nuanced snapshot of where it is now," declared Publishers' Weekly. The paperback edition was published in January 2003.
In May 2004 the Rockefeller Foundation issued Beyond Brown v. Board: The Final Battle for Excellence in American Education—a major report authored by Cose on the legacy of the historic Brown v. Board of Education school desegregation decision and the current challenges facing American educators. The report was the basis of a Newsweek cover feature and for a David Broder column and other stories in the national press. In November 2006, the Institute for Justice and Journalism at USC's Annenberg School published Cose's Killing Affirmative Action: Would ending it really result in a better, more perfect Union? That report, featured in several newspaper and in Newsweek magazine, examined California's 10-year experience living with Proposition 209, the measure that ended affirmative action in the public sector in California.
Cose's best-selling The Rage of a Privileged Class, a book-length essay on race in America, was published by HarperCollins in January 1994. It was featured as a Newsweek cover story and described by The New York Times Book Review as a "disciplined, graceful exposition of a neglected aspect of the subject of race in America." His A Man's World (published by HarperCollins in June 1995), was featured in a front page review in The New York Times Book Review. The Washington Post called it "a valuable, cogent and well-written contribution to an enormously complex subject."
Color-Blind: Seeing Beyond Race in a Race-Obsessed World (published in January 1997 and also excerpted in Newsweek) explored America's continuing obsession with race. The New York Times Book Review called it "a book this country desperately needs, one with genuine healing potential," and included Color-Blind among its best book of the year recommendations for 1997. Cose edited an essay collection entitled The Darden Dilemma published by HarperCollins in March 1997. His debut novel, The Best Defense, was published by HarperCollins in September 1998 ("a formidable first novel...crisp, fast-paced and engaging. In a genre glutted with lightweight fare, The Best Defense reaches higher"— The Seattle Times).
Cose is also the author of A Nation of Strangers, a history of American immigration, published by William Morrow and Co. in 1992 and of The Press, published by Morrow in 1989. He is the author of Energy and the Urban Crisis (1979) and the editor of Energy and Equity: Some Social Concerns (1978), both published by the Joint Center for Political Studies. He also wrote The Rebirth of Community Power, published by Westview Press: 1983.
At the Institute for Journalism Education (at the University of California, Berkeley), Cose designed and directed a widely quoted study on journalism careers published by IJE: The Quiet Crisis: Minority Journalists and Newsroom Opportunity (1985). He also instituted and served as inaugural director of IJE's Management Training Center at Northwestern University.
In his capacity as president of Ellis Cose, Inc. Cose has produced, written and hosted the pilot for a multimedia documentary series: "Against the Odds." The radio project (which has received funding from the Ford Foundation and will be distributed by Public Radio International) profiles individuals who have overcome tremendous adversity. It aspires to provide continuing and better coverage—in public radio but also on the web and in other media, including print—of people and communities often relegated to the margins of society. It also aims to stimulate thinking on how they, and their respective societies, can overcome that marginalization. The pilot focuses on a young man from a refugee camp in northern Kenya who, studying by the light of a rechargeable lamp, managed to get himself into Princeton University.
Cose has appeared on The Today Show, Nightline, Dateline, ABC Evening News, Good Morning America, the PBS "Time to Choose" election special, Charlie Rose, CNN's Talk Back Live, and a variety of other nationally televised and local programs. He has been interviewed for British, Brazilian and Canadian television. He is also a judge for the New York Public Library Helen Bernstein Book Award for Excellence in Journalism. Cose has received fellowships or individual grants from the Ford Foundation, The Andrew Mellon Foundation, the Rockefeller Foundation, the Aspen Institute for Humanistic Studies, and numerous journalism awards—including the University of Missouri medal for career excellence and distinguished service in journalism, two Clarion awards, and four National Association of Black Journalists first place awards. He was also named the 2002 winner of the New York Association of Black Journalists' lifetime achievement award, winner of the 2003 award for best magazine feature from the National Association of Black Journalists as well as the winner of two New York Association of Black Journalists' first place 2003 awards for commentary and magazine features. In 2004 Cose was named the first recipient of the newly inaugurated annual Vision Award from the Maynard Institute for Journalism Education. In 2006 he won a Unity award for commentary and also shared in a first place award from the Society of Professional Journalists.
A Chicago native, Cose holds a master's degree in Science, Technology and Public Policy from George Washington University. He is married to Lee Llambelis, former legal director for the Puerto Rican Legal Defense and Education Fund and current director of intergovernmental relations for the Attorney General of New York. He has a daughter, Elisa Maria.
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