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Attorney General Eric Holder
U.S. District Court Judge Terry Hatter, Jr.
It had been established sometime ago that federal sentencing guidelines (a misnomer) has been used to incarcerate people of color at a disproportionate rate.
By Yussuf J. SimmondsSentinel Managing Editor
Recently issues of racial profiling have been in the news relative to a series of incidents: from the Shirley Sherrod fiasco to the involuntary manslaughter jury decision of the ex-BART officer, the dragging death of a Black man by a White man in South Carolina to the Arizona immigration law. Now here comes a substantial change about the disparity in the sentencing law between the users of crack cocaine and powder cocaine, an issue that has been dormant but not dead for a number of years.
Last week, the Congress modified the crack versus powder cocaine sentencing guidelines that both Democrats and Republicans have agreed were unfairly meted out to Blacks and Browns (mostly the users of small amounts of crack cocaine), than to Whites (mostly the users and suppliers of powder cocaine). The disproportionate sentencing stemmed from the method that was used to evaluate the amount of cocaine an individual used or possessed. Since the crack cocaine weighed more than the powder--which incidentally was more potent--then the heavier the cocaine one had, the more he was assumed to be in possession of. It was a distorted view which cried out to be modified. Well, Congress just did ... a little ... somewhat.
In a recent interview with U.S. District Court Judge Terry Hatter, Jr., a proponent of making the sentencing guidelines more equal and proportionate with the amount and the type of the drug (cocaine versus powder), said, "I told them (the sentencing commission) it was too intricate for one thing; they adopted the Minnesota guidelines--a state that was not as diversed as California and a number of other states. Why don't you follow what California is doing; it has a three-tier system in the Superior Court and what I finally said to the sentencing commission was, if that's what you're going to do, don't call them guidelines; just say, it's the mandatory sentencing scheme. Because, if they are guidelines, we'd welcome them," he said. "And after 31 years on this bench, I find that sentencing is the toughest thing that I have to do, so I'd welcome guidelines. One reason for the guidelines is to get rid of disparity in sentencing."
Though the Congress has finally acted, there is still some disparity which, in the present racial climate, continues to give rise to racial discrimination in sentencing. According to the statistics the sentencing ratio of crack cocaine to powder cocaine was a 100 to one disparity against low-level crack cocaine users. The modification just passed by the Congress reduces that racial disparity to a 18 to one ratio for users of a relatively small amount of crack cocaine.
In a stark contrast to the previous administration, just after Attorney-general Eric Holder took office he made it clear, "One thing is very clear: We must review our federal cocaine sentencing policy. This administration firmly believes that the disparity in crack and powdered cocaine sentences is unwarranted; it must be eliminated." It was a direct hit to existing sentencing policies despite opposition from the Sentencing Commission, drug and criminal justice system reform advocates, an increasing number of prosecutors and judges, and an increasing number of legislators which evidently resulted in the actions of the Congress.
On hearing of the passage of the modified version of the cocaine sentencing, Holder said, "I congratulate the House of Representatives on today's passage of the Fair Sentencing Act. The bill greatly reduces the unwarranted disparity in sentences for crack and powder cocaine offenses, and will go a long way toward ensuring that our sentencing laws are tough, consistent, and fair." And according to the White House, the president has already signed it into law. However, it is not yet the total elimination of the disparity.
If Congress had followed the suggestions of Judge Hatter maybe it would have come closer to equality in sentencing. But he ought to be commended for his yeoman's efforts in seeking equal justice for all. For as Judge Hatter had said, "All I did was try to provide some justice (for others), that's all. I try to provide equal justice to those who appear before me. In reference to the powder/crack cocaine sentencing disparity, he continued, "The Congress has weakened the statute somewhat and it's so draconian and I've railed against it from the very beginning. Ninety-nine percent of the people in here for crack cocaine are minorities--Black or Brown--and the most telling thing to me is not the disparity, but where it goes. It shouldn't be a hundred to one no matter which way it goes, but if there's to be a disparity, it should be the other way: people with powder should get tougher sentences than those with crack, because you can't have crack unless you have the powder. So when they bring the powder in, that's when you should be hitting them the hardest."